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  • #16
    Re: Employee problem

    CW Smith, Please extend my thanks to your son for all the advice and distilling down a complex issue into one which is understandable.

    Frankie, You are right. Without going into all the details one of my pals fired a guy. A year and thousands of dollars in lawyer's fees later he was forced to hire the guy back.

    Charlie, Here's the deal. I will pick you up, buy coffee and doughnuts and lunch plus, and this is a biggie, I will throw in 10 cups of dog food a day. They must eat a lot.

    Tom

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    • #17
      Re: Employee problem

      Franki,

      Thanks for pointing these things out... I guess I was just focusing on the legality issues that were originally posted and ignoring the very obvious which I considered everyone knew. "Sexual Harrassment" and "Unsafe Work Conditions" are obvious problems and they can very well get the employer in trouble.

      With sexual harrassment, both the employer and the employee has to keep thier guard up and it's difficult to prove your case, either in the accusation or in the defense of such allegations. Many work situations put a employer at risk for such accusations and often it's a case of one's word against the other. If you are the subject of such harrassment, documentation of times and events and proofs of such, go a long way to making your case. On the defensive side, an emplorer or fellow employee needs to ensure that they don't put themselves in a position where they are defenseless against such accusations.

      Unsafe work conditions are easier to prove, if you can get witnesses to testify or you can document and verify (photo's, incident reports, etc.) But in most cases, almost everything is on the side of the employer.

      Depending on where you stand of course, most things are on the side of employers. For example: Getting laid off because you are considered too old. There is the Federal "Older Workers Protection Act", but it is so watered down and so restricted that it's almost impossible to prove. In fact, from the date of the layoff you only have 30-days to file a claim. 30-days is hardly time to find an attorney who will even listen to your problem, much less have the necessary paperwork to file. Beyond that very short time limit, you don't have a case at all.

      And, the employer can summon up all kinds of reasons for your dismissal, including re-defining the job which could make you no longer qualified. They can also just say that the job was no longer considered affordable and then a few months later re-create it for a new younger employee... in which case your time for filing a complaint has long since expired.

      Basically, an employer can simply decide they don't like you, or your manners, or your hair or eye color, or simply the way you blow your nose and you're gone. All the defense you have is that it can't be because of age, sex, religion, or race and that you can seriously make a case for those reasons.

      I hope this helps,

      CWS

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      • #18
        Re: Employee problem

        As an example of how far out of hand some of this stuff has gotten, I was involved in a sexual harassment issue - AS THE VICTIM - and I didn't even know it. My wife is an administrator in a large corporation, we have different last names. Someone wrote an unsigned letter to my wife's director complaining that they noticed an unequal balance of power between my wife and me and hinted there was probably some sexual issue between us. (While all that is true on a domestic basis none is true in the world outside our house.)

        My wife went to Human Resources as soon as her director showed her the letter. They told her they pay no attention to unsigned letters. But imagine the potential for trouble because someone stuck their nose into someone else's business.

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        • #19
          Re: Employee problem

          I would add that if you choose to put a dress code or uniform requirement in place that you put it in writing and have the employee sign a statement that they were given and explained the rules and understand them. That takes the "you never told me bla, bla, bla" out of the equation.
          "It's a table saw, do you know where your fingers are?" Bob D. 2006

          https://www.youtube.com/user/PowerToolInstitute

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          • #20
            Re: Employee problem

            Originally posted by Bob D. View Post
            I would add that if you choose to put a dress code or uniform requirement in place that you put it in writing and have the employee sign a statement that they were given and explained the rules and understand them. That takes the "you never told me bla, bla, bla" out of the equation.
            I hate to be a pain in the butt, but...there were many instances when I/we refused to sign anything except our pay check. If an employee refuses to sign such a statement or something such as "The Rules We Work By", or anything else, you must have a witness present and document "employee refuses to sign".

            If you give written evaluations be careful what you put on paper, especially if the employee gets a copy! Several reviews fo "performing all tasks well" or "works well with others" could work against you if it comes time to give a bad review. The employee could claim personality conflicts if given a bad review, "I've always done a good job, now all of a sudden for no reason you are faulting me".

            I don't envy the job of a boss, but I have seen how human nature and personality conflicts can negatively affect a good worker who is doing a good job. I was asked to be management several times over the course of my career, no thank you!

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            • #21
              Re: Employee problem

              Originally posted by Frankiarmz View Post
              I hate to be a pain in the butt, but...there were many instances when I/we refused to sign anything except our pay check. If an employee refuses to sign such a statement or something such as "The Rules We Work By", or anything else, you must have a witness present and document "employee refuses to sign".
              You were working under contract. If an employee ever refused to sign something with Home Depot they were fired for the refusal alone. The termination was normally after a quick review for HR. They only needed to confirm what they were asked to sign was a legitimate HD document and the person requesting the signature had the authority to do so.

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              • #22
                Re: Employee problem

                Originally posted by boytyperanma View Post
                You were working under contract. If an employee ever refused to sign something with Home Depot they were fired for the refusal alone. The termination was normally after a quick review for HR. They only needed to confirm what they were asked to sign was a legitimate HD document and the person requesting the signature had the authority to do so.
                Not so sure about that depending on the state? I'm pretty sure that in NY contract or not, the only thing you must sign is your pay check. Your signature is a powerful thing and usually can't be coereced. Companies like Home Depot count on employee's fear and ignorance of the law. I'm willing to bet a lot of folks fired by Home Depot were done so illegally.

                You would be amazed at how much you can learn by reading the statutes governing labor. When I worked as a mechanic for NYTel, one of my bosses said I want you here at 5pm in uniform ready to work. Well, the law says time required by the employer is to be considered time worked. The boss had a choice, either pay us ahead of time to be in uniform, or patiently wait while we changed from our street clothes! I worked hard, but had fun with bosses who thought they could bully me.

                Prior to becoming a mechanic and Lineman, I used to clean the garages, bathrooms and all. A foreman told me to clean a urinal with my hands since we were out of gloves. He made the mistake of touching my arm to "help" me along. I told him he would be in need of an ambulance if he did not let go and I was serious! You don't need a contract to stand up for your rights and get the best of folks who are drunk with power. Home Depot, Walmart, put labor back 100 years, but their time is coming.

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                • #23
                  Re: Employee problem

                  Franki,

                  You are right of course with your concerns and opinion regarding abusive foremen and supervisors. No employee should ever feel that they need to do things that are harmful or potentially harmful. Likewise, no employee should ever be made to feel "inferior" or "enslaved" or "bullied". It's sometimes difficult to really know what one's rights are and we do very little to educate future or current employee's.

                  IF I WERE KING, I would have highschool, college, and pre-employment education courses to inform every worker as to their rights and what can and cannot be expected of them. There's really no excuse whatsoever, why we haven't done this, as a country. It would go a long, long way in preventing the abusive and often illegal labor practices and that many of our youth are subjected too, before they have the experience to know better. And, it would certainly eliminate the vast number of cases of improper labor relations. So too, would it help alleviate a lot of the over-reaction by some workers, when legitimate practices are instituted.

                  But that said, one needs to understand that when it comes to "contracts" and "written" employer stipulations (here in NY State anyway), such "signings" are generally a requirement of the job. For example, my ex-employer had you sign a "non-disclosure" agreement upon initial hiring. In addition, we were periodily given a "Code of Ethics" which required a signature. Other "contracts" that were part of employment were things like an "inventions and copyrights" clause which stipulated that any inventions or copyrights that an employee secured while in the employment of the company were the property of company, if they were in any way, shape, or form derived from the vocation, experience, or training by the company. The failure to sign or comply with any of these is basically seen as "termination", not by the employer, but by the employee themselves as such refusal can be interpreted as an employee's desire to no longer comply to company policy and thus their desire to end employment. Simply stated, it's no different than refusing any other part of the job, like the company stipulated work hours or following work procedures. Other than just doing a job, employers have a right to expect their employees to follow certain rules. Part of that may be compliance contracts, dress and ethic codes, etc..

                  While a union may have contract wording that provides exceptions, here in NY an employee has very little recourse if they wish to hold a job and receive a paycheck. Your "pay" is for your "service" to the company and not just for the hours that you perform a particular task.

                  That in no way, means that any employee has to put up with abuse, tasks which may be dangerous or unhealthy, or belittling (like in the urinal case you cited). No employer, or superior, has the right to belittle, physically contact, or in any way intimidate any employee. However, it must be recognized that such cases are very difficult to prove and in most every case, the company will clearly take the side of the superior over the employee... unless of course there is a history of such claims.


                  CWS
                  Last edited by CWSmith; 10-20-2010, 09:19 PM.

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                  • #24
                    Re: Employee problem

                    Originally posted by Frankiarmz View Post
                    Not so sure about that depending on the state? I'm pretty sure that in NY contract or not, the only thing you must sign is your pay check. Your signature is a powerful thing and usually can't be coereced. Companies like Home Depot count on employee's fear and ignorance of the law. I'm willing to bet a lot of folks fired by Home Depot were done so illegally.

                    You would be amazed at how much you can learn by reading the statutes governing labor. When I worked as a mechanic for NYTel, one of my bosses said I want you here at 5pm in uniform ready to work. Well, the law says time required by the employer is to be considered time worked. The boss had a choice, either pay us ahead of time to be in uniform, or patiently wait while we changed from our street clothes! I worked hard, but had fun with bosses who thought they could bully me.

                    Prior to becoming a mechanic and Lineman, I used to clean the garages, bathrooms and all. A foreman told me to clean a urinal with my hands since we were out of gloves. He made the mistake of touching my arm to "help" me along. I told him he would be in need of an ambulance if he did not let go and I was serious! You don't need a contract to stand up for your rights and get the best of folks who are drunk with power. Home Depot, Walmart, put labor back 100 years, but their time is coming.
                    Frank I'm pretty sure you are misinformed. NY is an at will state, even more so then most others. Many companies choose to grant employees specific exceptions and it creates the illusion those employees have rights, but in general in the US employees have very few rights, the rights they do have are very specific. In general in the US you are best to assume the company has rights and the employee does not.

                    Employment at will means exactly that. The employer or the employee can end the relationship at any point for any reason. Company can say sign this or you are fired. The employee can say if you are going to make me sign that I quit. Neither the company or the employee is granted specific legal recourse for the end of employment. ie the employee can't sue for the loss of income due to termination and the employer in turn can't sue for loss of revenue due to the employee quitting.

                    In regards to uniforms in NY I'd challenge you to actually produce such a law. The area of law you are speaking of is 'Portal to Portal Law'. Almost every state defaults to the federal standards. The rulings have been fairly consistent that the employer can require show up in uniform unless it can be determined the uniform is a 'necessary and integral' part or the job. As it can be argued a police officer's uniform is necessary to perform the duties(no ones going react the same to the guy in blue jeans waving a gun at them). They are required to be paid for the time changing in and out of uniform. The McDonald's employee however could perform the job duties without the uniform so they are not required to be paid for that time. Mc'Ds can easily lay out under employment at will, that showing up without a uniform on will get you fired.

                    In New York employees are even required to pay for their own uniforms. The only exception is if the cost would reduce their yearly earnings below minimum wage. So show up in clothes that have no value outside of work you had to pay for or you are fired. Fair game.

                    If you were working as a lineman it can be argued the uniform is integral and necessary as rated clothing, goggles and hard hats as without them your work environment would be unsafe. But the law is not simply about time required, that time must be 'necessary and integral.' Convenient for employers however employers aren't by default well versed in law either. So a group of guys(who they need) telling them the law says they have to be paid for the time regardless could easily be enough to convince the employer to change their own policy in favor of the employees.

                    Relatively recently however there was a case against Hooters. Hooters requires their waitresses to be 'camera ready' which is inspected on arrival by strict standards, in many cases the waitresses spent 30-40 minutes putting on make up styling hair and putting on uniforms. All unpaid time. The district court found in favor of the waitresses even though it can be argued the uniform and styling is not 'necessary and integral' the waitresses needed to be paid for that time. So we may see changing laws regarding portal to portal.

                    Again this is the US. We've a 200 year history of employers doing everything they can to restrict employees from having any rights. The few and only advances in workers rights have had have been through massive labor movements. As we haven't had one of those for some time now, companies do what they do in their own best interest and do everything to roll back or prevent workers from having rights. You can fall back on opinions that it is the law or it should be the law but the fact of the matter is workers rallying for rights is a rare thing while companies fighting against rights is an everyday thing. When you turn around and look at the actual laws you will almost always find they are in the employers favor.

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                    • #25
                      Re: Employee problem

                      Originally posted by CWSmith View Post
                      Actually Franki, here in NY State, such "signings" are generally a stipulated requirement of the job. For example, my employer (30 years) had you sign a "non-disclosure" agreement upon initial hiring. In addition, we were periodily given a "Code of Ethics" which required a signature. Other "contracts" that were part of employment were things like an "inventions and copyrights" clause which stipulated that any inventions or copyrights that an employee secured while in the employment of the company were the property of company, if they were in any way, shape, or form derived from the vocation, experience, or training by the company. The failure to sign or comply with any of these is basically seen as "termination", not by the employer, but by the employee themselves as such refusal basically is interpreted as an employee's desire to no longer comply to company policy and thus employment. Simply stated, it's no different than refusing any other part of the job, like the company stipulated work hours or procedures. Other than just doing a job, employers have a right to expect their employees to follow certain rules. Part of that may be compliance contracts, dress and ethic codes, etc..

                      While a union may have contract wording that provides exceptions, here in NY an employee has very little recourse if they wish to hold a job and receive a paycheck. Your "pay" is for your "service" to the company and not just for the hours that you perform a particular task.

                      CWS
                      CWS, my employment was in NY and all we were required to comply with codes of ethics or rules we work by were initials. Like I said your signature is a serious instrument and I'm not sure if state law would force and employee to sign such company documents. I am not positive, so I won't push the issue. I do agree that employment is much more involved than time worked. There can be and are conflicts such as the company pushing "safety First" and then dismissing the rule when it fits their needs. Several times I was pushed to work in asbestos, airborne lead, raw sewerage, and other structural, environmental and biohazards. There are contradictions and it's a give and take on both sides.

                      I think we can never assume employment is guaranteed, simply because we are good workers. While working as a mechanic at NYTel, a plumber who was working on our new gas tank installation showed up one day almost in tears. He said the eighty man Union shop he had worked from for almost thirty years was closing down at the end of the week. He said the announcement came over a loud speaker, and that several of the older men became physically ill. Some folks see it coming and some are blind sided.

                      Nowadays I would urge workers to do their best to help their employers. This is not the time to upset the apple cart, too many apple vendors just waiting to take your place.

                      Comment


                      • #26
                        Re: Employee problem

                        I think there was some earlier post regarding "reviews" and that it could, in some way, provide an employee some form of recourse if they were terminated. The fact is, that a good review (or even a bad review) doesn't offer much in the way of testimony in the face of a layoff. "Firerings" happen and it doesn't have to be "just" at all. No reason has to be given and it can simply be a matter of a "poor fit". Likewise, I've never in my entire work life, had a bad review. The worse review I ever had was "average" and even with that, I responded with a well documented project record, that showed proof that my efforts were not only successful, but that they markedly exceeded any three members of the dept. But, my manager was an jerk and though HR agreed with me, his review stood and I took steps to transfer out to another dept.

                        But, even with a "commendable" review, I was once layed off. That company simply decided to rewrite my job description and I was no longer qualified.

                        Regarding "signature" vs "initials"... I think that's a matter of "labels"... both are binding; and if you break a contract that you agreed too and initialled, you stand no better than if you had "signed it in full". In either case, you have "agreed" and "signed" (which could simply be your "mark"). Either way, you are subject to the extent of whatever penalty that results.

                        I feel for those that have been laid off and there are a lot of lousey ways that such deeds are executed. My "layoff" after 27 years with the company came on "inventory" day. Each October, the company conducts a full, "physical" inventory of every nut, bolt, casting, etc. To do so, every employee participates... union, salaried, exempt and non-exempt, manager and worker, with very few exceptions.

                        On that day, we are expected to come in a 6:00 AM, take our assignments and start the count. I worked that entire day, saw my manager several times and it wasn't until 5:30 that afternoon when I returned to my office to check the phone that my manager told me that "my job position has been eliminated, and unfortunately so are you!".

                        Two days later I was back, under a "consulting contract" where I continued my "service" for another three years.

                        My Dad was a unionized "steam-fitter". I remember he once got laid off, via a telegram. He left the job site on a Friday, drove 300 miles home only to find a letter via Western Union waiting for him. It was from his local's business manager, telling him he was laid off. He had to drive back down there on Monday to pack up his tools, load the camper in which he lived down there, and bring everything home. So, even if you are in a Union, they still can still mistreat you. (As a matter of fact, his experiences working for the Union were well beyond almost any horror story I have heard in the workforce.)

                        So, I think boytyperanma is correct in his opinion that U.S. workers are not treated very well at all. The laws are for the most part, very much on the side of the company. We do of course have laws covering safety, discrimination, unfair practices, etc.; but, they are routinely ignored and quite often openly abused by companies. Everybody in government, from your Congressman right down to your local councilman is on the side of the employer and even when the employer is caught, the penalty is barely a slap on the wrist.

                        And, have any of you ever tried to find a labor lawyer? There are more accident and liability lawyers than you can shake a stick at... but labor lawyers are very few and those that are out there are often on retainer with the very company that you have a grievance with.

                        I know first hand, as there wasn't a single law firm in my area that would even listen to my grievance, even though I had first hand advice from a son with a Industrial Labor Relations degree and had full documention and proof of my case, as well as a violation statement from the State Dept of Labor and the Internal Revenue Service.

                        I had to go out of town, and of the two law firms that I contacted, the first was under a retainer from my employer (75 miles away).

                        As one attorney put it, "You only make $$ a year, and you've lost three years, and even if I could get you every dollar of those three years and I'm going to take 1/3 of that for my fee. Now seriously, do you think I am going to tie my law firm up for three or four years for a measely $$$? This isn't the movies!"

                        I did find an law firm after several months, but the case took two years. I found that I could not sue for age descrimination, because under the Older Worker's Protection act, such cases have to be filed in federal court within 30 days of the layoff. (It took me seveal months to find a law firm.) Under federal and state labor law, there can be no pecuniary (sp?) damages. There is no award or possibility of award for legal fees. There is no award beyond proven wage and benefit differences, and certainly no award for stress, loss of health, or property as a result of job loss.

                        The United States is not labor friendly and it never has been. The few laws that do exist are rarely inforced and are in many ways, framed to be highly in favor of management and very restrictive against labor.

                        CWS
                        Last edited by CWSmith; 10-21-2010, 07:45 PM.

                        Comment


                        • #27
                          Re: Employee problem

                          Tom W: Hope the situation is resolved. I got this about the situation, based on what you have posted:

                          The guy is your only employee.

                          You did not like the way he wore his hat. He changed his hat because you did not like the way he wore it (due to your expressed opinion that it would affect customers' view of you and your company).

                          He sets the seat all the way back in the truck.

                          All the rest is immaterial. What you give him for free: Picking him up, giving him a free lunch, etc, is your doing, not his. You said he did not ask for any more than his paycheck.

                          First point: Does he do the job you are paying him for? If so, get off your prejudices.
                          Second point: Can you do better with a new employee? That is probably a crap shoot. If your only benefits are a ride to work and a free lunch, it may be difficult to find talented help.

                          If you want him to leave, cut out the extras, and see if he still comes to work (a lot harder to take away after giving than not giving in the first place, something you may want to remember for his replacement). Because he was getting the free-bees, do not expect him to be happy without them.

                          Bottom line: Keep it all business in the business. Pay the wage and expect the return in labor and talent.

                          Ask yourself why you are self-employed: Could it be you did not want someone else telling you how to dress,etc?

                          I think there is a lot more to this than just a couple of changes in his behavior. Changes in behavior can signal a problem with drugs, women, and caffeine/junk food dependency (only known to be statutory problem in the States of California and New York ) Seriously, I think you have suspicions of a deeper problem, or you are the problem.

                          Whatever, do not lose sight of the fact that you have a business and it is your livelihood. Make objective decisions on how his actions affect your business and nothing else. May seem cold if he has a personal problem, and if you determine that, I encourage you to refer him to seek help from whatever resources you know are available, but if that is the case, he has to be part of the solution. All you can do is steer him towards it.

                          JMTCW

                          Go
                          Practicing at practical wood working

                          Comment


                          • #28
                            Re: Employee problem

                            Employment-at-will is often misunderstood. It does mean that employment can be terminated by either the employee or the employer at any time for any reason -- however, in the US, employment-at-will is trumped by a company's internal policies and procedures. Many companys, in particular larger ones, those that have collective bargaining agreements, or those that are in industries that have a hard time attracting and retaining employees, have a variety of internal policies that essentially protect the employee, irespective of employment-at-will. Large companies typically have a comprehensive HR manual that covers every aspect of employee behavior ranging from acceptable standards of dress, to use of unacceptable language, violence, alcohol and drug use, misuse of company property (i.e., making personal phone calls), punctuality, sexual harassment, safety violations, creating a hostile work environment, etc. There are often employee behaviors that are, per policy, grounds for immediate termination... such as bodily violence or the threat of violence, bringing a weapon onto Company property, serious safety violations, theft, intoxication, etc.

                            Irrespective of employment-at-will, a Company is obligated to act in accordance with its internal policies and to follow its internal procedures. This means that if the company has, as most do, a progressive discipline policy, the employee has to be disciplined in accordance with the policy. He/she cannot be terminated based on employment-at-will. Any attempt to terminate outside of company policy would be wrongful discharge. There are plenty of wrongful discharge cases filed in employment-at-will states and they are for the most part based on a company not following its stated policies. If you're a manager in such a company, you already know how difficult it is to terminate an employee. Employment-at-will doesn't really matter much for companies that have well-defined internal HR policies regarding emplyee behavior and progressive discipline.

                            If employment-at-will really meant that an employee had no rights, as has been stated in this thread, then there would be NO wrongful termination lawsuits and no judgements for the plaintiff/employees. And that is quite simply and obviously not the case.

                            Fact is, a set of HR policies (essentially, rules), that no doubt some will find onerous, actually serve to protect the employee since they supercede employment-at-will. You cannot be summarily let go by your boss if there is a company policy that says you have to recieve a verbal warning and two written warnings. Moreover, you can't be fired without cause as long as there are policies defining what is "cause". If home depot lets people go for refusing to sign a document, then I will bet that it is in their policy. In that case, it is foolish for an employee not to sign... no matter what the document, the written policy means that the employee is signing under duress... good chance that the employee can't be held to his signature in that case.

                            Layoffs are different than a termination for cause. A layoff is generally job loss associated with a change in business conditions or lack of work. To my knowledge, no state, be it an employment-at-will state or not, prohibits an employer from reducing his workforce in accordance with business needs. Most, including employment-at-will states, specifically consider it to be wrongful termination if an employee is laid off as a ruse to fire an employee ("fire" means, terminate for cause) without following Company policies and procedures for termination for cause.

                            Sure, there are many cases where companies are in the wrong regarding treatment of employees. It is also true that tons of frivolous lawsuits are brought against companies by gold digger employees looking to make a buck. Even a frivolous lawsuit generally gets settled, with what the legal department euphemisticaly calls "nuisance money" - because it would be too expensive for the Company to fight the case. Here in California there are pages and pages of lawyers in the phone book that will file these nuisance suits, generating a steady stream of income!

                            I don't buy the argument that US companies treat employees poorly. From my experience, between labor unions, Federal and State labor laws, OSHA, minimum wage laws, overtime regulations, and a judicial system that seems to tend to side against those with the deeper pockets, it seems clear to me that we in the US treat employees with kid gloves. If anything, I think that employers have a very tough time getting rid of poor employees without inviting lawsuits. Compare our treatment of employees with that of others around the globe. The vast majority of workers in the world are in Asia... they certainly don't have it better than workers do in the US. Of course there are developed countries in Western Europe and a select few other places that are comparable to the US. But we do pretty well in the context of the entire world.

                            Personally, I feel that when you are being paid by the hour, OR you present yourself as an agent of the company to the public, the employer has a perfect right to dictate your appearance and behavior. You are, after all, the public face of the Company. This means that the employer should have employment policies, dress code, safety rules, etc. If their policies disallow you from swearing, having girlie pictures on display in your toolbox, dashboard or desk... then that is all fine. You are selling your time to the Company. They are buying your time, so they, IMO, have the perfect right to dictate the image you present during that time as well as the standard of work you perform. Dress however you want, put the centerfolds up in your garage at home, and swear like a sailor (no offense to Sailors meant) on YOUR time - not the time you're selling to your employer. If you don't like the fact that you have to buy your uniform.... simple. Find someone else to work for.

                            I believe that an employer has a common-sense obligation to disclose to an employee what he expects of that employee in terms of job performance, appearance, behavior, etc. If the emplyer does this, and the employee meets those expectations, then it's all good. If the employer doesn't do any of this, has no company policies, and no precedents set through his dealings with other employees, then employment at will comes into play. Personally, I don't like that scenario and wouldn't work for such an employer. If I did find myself working for that employer, I would be looking to get out at the first opportunity. The employee is always free to leave.

                            Comment


                            • #29
                              Re: Employee problem

                              Originally posted by Andy_M View Post
                              Employment-at-will is often misunderstood. It does mean that employment can be terminated by either the employee or the employer at any time for any reason -- however, in the US, employment-at-will is trumped by a company's internal policies and procedures. Many companys, in particular larger ones, those that have collective bargaining agreements, or those that are in industries that have a hard time attracting and retaining employees, have a variety of internal policies that essentially protect the employee, irespective of employment-at-will. Large companies typically have a comprehensive HR manual that covers every aspect of employee behavior ranging from acceptable standards of dress, to use of unacceptable language, violence, alcohol and drug use, misuse of company property (i.e., making personal phone calls), punctuality, sexual harassment, safety violations, creating a hostile work environment, etc. There are often employee behaviors that are, per policy, grounds for immediate termination... such as bodily violence or the threat of violence, bringing a weapon onto Company property, serious safety violations, theft, intoxication, etc.

                              Irrespective of employment-at-will, a Company is obligated to act in accordance with its internal policies and to follow its internal procedures. This means that if the company has, as most do, a progressive discipline policy, the employee has to be disciplined in accordance with the policy. He/she cannot be terminated based on employment-at-will. Any attempt to terminate outside of company policy would be wrongful discharge. There are plenty of wrongful discharge cases filed in employment-at-will states and they are for the most part based on a company not following its stated policies. If you're a manager in such a company, you already know how difficult it is to terminate an employee. Employment-at-will doesn't really matter much for companies that have well-defined internal HR policies regarding emplyee behavior and progressive discipline.

                              If employment-at-will really meant that an employee had no rights, as has been stated in this thread, then there would be NO wrongful termination lawsuits and no judgements for the plaintiff/employees. And that is quite simply and obviously not the case.

                              Fact is, a set of HR policies (essentially, rules), that no doubt some will find onerous, actually serve to protect the employee since they supercede employment-at-will. You cannot be summarily let go by your boss if there is a company policy that says you have to recieve a verbal warning and two written warnings. Moreover, you can't be fired without cause as long as there are policies defining what is "cause". If home depot lets people go for refusing to sign a document, then I will bet that it is in their policy. In that case, it is foolish for an employee not to sign... no matter what the document, the written policy means that the employee is signing under duress... good chance that the employee can't be held to his signature in that case.

                              Layoffs are different than a termination for cause. A layoff is generally job loss associated with a change in business conditions or lack of work. To my knowledge, no state, be it an employment-at-will state or not, prohibits an employer from reducing his workforce in accordance with business needs. Most, including employment-at-will states, specifically consider it to be wrongful termination if an employee is laid off as a ruse to fire an employee ("fire" means, terminate for cause) without following Company policies and procedures for termination for cause.

                              Sure, there are many cases where companies are in the wrong regarding treatment of employees. It is also true that tons of frivolous lawsuits are brought against companies by gold digger employees looking to make a buck. Even a frivolous lawsuit generally gets settled, with what the legal department euphemisticaly calls "nuisance money" - because it would be too expensive for the Company to fight the case. Here in California there are pages and pages of lawyers in the phone book that will file these nuisance suits, generating a steady stream of income!

                              I don't buy the argument that US companies treat employees poorly. From my experience, between labor unions, Federal and State labor laws, OSHA, minimum wage laws, overtime regulations, and a judicial system that seems to tend to side against those with the deeper pockets, it seems clear to me that we in the US treat employees with kid gloves. If anything, I think that employers have a very tough time getting rid of poor employees without inviting lawsuits. Compare our treatment of employees with that of others around the globe. The vast majority of workers in the world are in Asia... they certainly don't have it better than workers do in the US. Of course there are developed countries in Western Europe and a select few other places that are comparable to the US. But we do pretty well in the context of the entire world.

                              Personally, I feel that when you are being paid by the hour, OR you present yourself as an agent of the company to the public, the employer has a perfect right to dictate your appearance and behavior. You are, after all, the public face of the Company. This means that the employer should have employment policies, dress code, safety rules, etc. If their policies disallow you from swearing, having girlie pictures on display in your toolbox, dashboard or desk... then that is all fine. You are selling your time to the Company. They are buying your time, so they, IMO, have the perfect right to dictate the image you present during that time as well as the standard of work you perform. Dress however you want, put the centerfolds up in your garage at home, and swear like a sailor (no offense to Sailors meant) on YOUR time - not the time you're selling to your employer. If you don't like the fact that you have to buy your uniform.... simple. Find someone else to work for.

                              I believe that an employer has a common-sense obligation to disclose to an employee what he expects of that employee in terms of job performance, appearance, behavior, etc. If the emplyer does this, and the employee meets those expectations, then it's all good. If the employer doesn't do any of this, has no company policies, and no precedents set through his dealings with other employees, then employment at will comes into play. Personally, I don't like that scenario and wouldn't work for such an employer. If I did find myself working for that employer, I would be looking to get out at the first opportunity. The employee is always free to leave.
                              Andy, your post reminded me of the time I was offered a job at Disney World in Orlando over thrity years ago. They were upfront about no facial hair (mustaches, etc), no long hair. I declined the job because there might come a time when I wanted to grow a beard, or mustache and felt their rules to restrictive over my appearance.

                              Fast forward to the present time when a muslim woman working at Disney insists on wearing her burka and I believe she is offered a job out of the sight of the public. I think we may be reaching a time when some dress codes will be challenged and defeated by muslims. I don't mean to pick on muslims, I just wanted to point out that some of the things we have come to believe were set in stone are suddenly on shaky ground. What's next?

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                              • #30
                                Re: Employee problem

                                I think saying I believe employees aren't treated very well would be an inaccurate assessment of the totality of my beliefs on these issues.

                                We have a system good bad or otherwise it's the system we have. What I find most problematic is the average employee in the US has a different understanding of that system then what it actually is.

                                Incidents like described are not unusual in the basic premise the employee thinks he can simply dress or behave in a manner other then what the employer would want.

                                Common conversation include statements like 'it's unfair I was fired for calling out I was sick and went to the doctor'

                                'There was a car accident on the way to work that caused me to be 15 minutes late and they fired me that's unfair'

                                The American sense of fairness on this issues does not fit with the law.

                                Given those situation I'd be personally doubtful those single incidents is what lead to the terminations, but even if they were it is still completely fair for the employee to fire them.

                                The laws concerning an employee handbook replacing employment at will vary per state. In some cases you are correct, the handbook replaces the states lack of policy in others the employee handbook has the weight of toilet paper in court.

                                Rarely will you find a handbook that omits the employers ability to fire someone without cause. It is usually explicitly stated they can.

                                Statements like anything signed on threat of termination is done under duress is patently false in a court of law, unless you have somehow established that person has a right to the job. An employee without documentation of such, unless in a right to work state, does not have a right to a job. You are not taking away something they would otherwise have. It's equivalent to me asking you to send me your signature and I'd give you a hundred bucks. You have no obligation to sign and I also have no obligation to pay you if you don't sign.

                                A simple management concept is an employer never fires an employee. As an employer your duty is to define the terms of employment, you lay out the rules and if the employee chooses not to abide by them they have made a personal choice to leave the company. A pink slip is merely the employer giving official notice to the employee of their own choice.


                                One thing that does throw a wrench into things is government contractors. In order to be able to sell so much as paperclip to the government you must abide by set out rules in order to obtain a contract. The list of compliance is exhaustive and there is a whole subset law associated where employees working for a government contractor are afforded rights they might not otherwise have. Many may think those rules are only for companies like Boeing or Lockheed Martin but they extend to every company the government touches. Walmart, Staples, Home Depot and McDonalds are all technically government contractors.

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