5 Common Questions Regarding Employment Law
The first question I often get is, do I need an employee handbook? The short answer is that there is no law that requires you to have an employee handbook, but having one can make everything in the workplace go more smoothly and less expensively. Think of an employee handbook like the inside of the Monopoly box game lid or any game for that matter. It’s really difficult to play the game when you don’t know the rules and it’s worse when all the players are playing by their own presumptions about what those rules are.
A handbook sets up employer expectations so that everyone is playing with the same set of rules. It also gives your managers a clear understanding of how to handle situations and make sure that every employee is being treated the same. It is much easier for a disgruntled employee to sue you when the expectations weren’t clear. The rules weren’t clearly broken and everything is being handled on a case by case basis or at least so it seems. Some employers balk and say, “I don’t want to spend money on a handbook,” but I can tell you that litigation is 20 to 50 times more expensive than a handbook. Other employers say, “Well, I’ll just cobble something together myself and what I find online,” and this can cause expensive problems too, every state has its own employment laws and even the federal rules, which you find in many of the forms you can purchase, don’t apply to every employer. It’s so much cheaper and easier to do it right on the front end than spending money to unravel costly mistakes on the back end.
Back to the original question, do I need an employee handbook? Legally speaking, no. Practically speaking or as a matter of best practices, yes.
The next question I often get is, I would like to have my new employees on a probation period for the first three months. Is that okay? Technically it’s okay, but it’s completely unnecessary and can cause confusion. In Minnesota, unless you have an employment agreement that guarantees employment for a certain length of time, you’re likely an at will employee, meaning you can be fired at any time for any reason with or without cause. In other words, we’re all on probation for our entire careers. For that reason, I don’t recommend probation periods.
The next question I often get is, I purchased a handbook from an online company and has a progressive discipline plan that looks pretty great. What do you think? And as I’ve said, forms that have not been tailored to your individual business can create expensive problems or obligate you to provide your employees with rights that you are not legally obligated to provide. Those forms play to the common denominator and that’s not always your business. By getting specifically to the question about progressive discipline plans, just so we’re clear, what that means, a progressive discipline plan is one that says upon the first violation you will get a verbal warning and upon the second violation you’ll get a written reprimand. And upon the third violation it kind of works its way up toward termination.
Progressive discipline plans are another example of setting up expectations for your employees. When you don’t follow that plan to the letter, an employee is more likely to sue. It is better practice as simply say the employer has sole discretion how to discipline, and an employee could be terminated upon the first violation. The more flexibility for the employer, the better.
Next question I get is, do I have to provide sick leave to my employees? Well, the answer to that is it depends. If your business is in St. Paul or Minneapolis, there are city ordinances that require certain number of hours for sick and safety leave. Generally speaking however, there is no statute in Minnesota that requires you to provide sick leave with the exception that there is FMLA to contend with if you have 50 or more employees. And there are also parenting leave statutes to take into consideration, depending on how many employees you have. In addition, if you have 21 or more employees, you’re required to accommodate health conditions related to pregnancy or childbirth if the employee requests. Unless the accommodation would pose a demonstrable undue hardship. Leave can be an accommodation. There are lots of nuances here to consider.
If you do choose to have a sick policy, and have 21 and more employees, the employee must be allowed to use that sick leave for a larger number of family members than just their immediate family, including parents-in-law, and grandchildren as well as for safety leave if they are the victims of sexual assault, domestic abuse or stalking. There’s some time limits and some hours limits on this, but there’s a lot to consider when it comes to sick leave and it’s worth talking to an attorney about.
The last of the five questions that I have often receive is, can I fire someone who’s in a protected class? In Minnesota, the protected classes for the moment are race, color, creed, religion, national origin, sex, sexual orientation, marital status, familial status, status with regard to public assistance, membership or activity in a local commission, disability and age, which means over 40. The answer is yes, you can fire someone who is a member of a protected class. What you can’t do is fire them because they are member of a protected class. No one has a free pass to perform poorly on the job just because of their protected status. What’s important for employers therefore is to keep good records and a well papered personnel file on each of your employees so there is a record of performance issues. An employee who was surprised by a termination is the most likely to sue. Even though it can be uncomfortable, keeping your employees well informed about their performance is one of the easiest ways to prevent future litigation.
That’s the end of the five frequently asked questions that I get from employers. If you have questions, please feel free to call me at Sjoberg and Tebelius, (651) 738-3433.