South Carolina Lawyer
SC Lawyer, May 2008, #4.
Lawyers as Employers: Hiring, Firing and Everything in Between - Part 2
South Carolina Lawyer May 2008 Lawyers as Employers: Hiring, Firing and Everything in Between - Part 2 By Molly Hughes Part One of this article appeared in the March 2008 issue.
The "Everything In Between": What do you do about discipline?
Once a law firm has hired someone, the focus shifts to retaining the employee and managing his or her relationship with other employees in the office. Even when a proactive approach has been taken to hire the right employee for the law firm, there will inevitably be other issues to address.
A. How should firms deal with general performance or behavior in the office?
Address it promptly. Address it appropriately. Address it privately.
Once misbehavior in the workplace arises, it is important to address the situation promptly. A law firm that permits an employee to continue working after a workplace infraction may be viewed as condoning the conduct. Additionally, depending on the issue being addressed, other employees and clients may be exposed to breaches of confidentiality or even to danger.
To address the situation appropriately, an investigation should be conducted before implementing discipline; this should be done as completely and fairly as time and the situation permit. Addressing the situation appropriately will depend on the circumstances. As an initial matter, if the firm has a handbook or disciplinary policy, be sure to comply with any procedures that may be required. Depending on the severity of the situation, addressing the issue may range from a verbal warning to suspension or termination. Not only should the firm consider the severity of the issue when implementing discipline, it should also consider how similarly situated employees have been treated. Disciplining employees differently for similar misbehavior can lead to an employment discrimination claim.
Also, proper documentation of any employment decision is important. When addressing a specific instance of misbehavior or a performance issue, the employee should be asked to acknowledge the discipline or other action in writing. Note, however, that one instance of misbehavior, particularly in terms of job performance, may be indicative of many more. To this end, it is important for a firm to evaluate its employees accurately. Often, lawyers would rather avoid negative comments regarding employees, such as rating an employee as "acceptable" or "average" instead of "unacceptable." If an employee is ultimately discharged for poor performance, the employee's evaluation should reflect the poor performance. While performance evaluations are helpful tools, it is often better for a law firm to have no performance review system than to have one that is inaccurate. An appropriately documented personnel file will be a helpful defense against later charges of unfair treatment. Additionally, proper documentation will be useful, if not necessary, for purposes of defending any potential claim for unemployment benefits that the departing employee may file.