If you laid off or fired some employees last year, you have a potential problem that some disgruntled ones might turn you in to your state Labor Commission for an unfair labor practice. We’re not going to cover workplace injuries in this blog….that’s for a separate blog.
Right or wrong, you have to appear, and the best course of action is to request mediation (you can represent yourself), but if you do appear, there are some pitfalls:
1. You need to have well documented in the employee’s file (and you need to have employee files) the deficiencies in performance. If you can put a financial number to the deficiencies, so much the better.
2. You really should have an employee manual of practices that employees should follow. Such manuals used to cost money, but they’re now all over the internet. You can copy and adapt the manual. If you can find a manual that’s drafted by a labor attorney, so much the better, but they’d undoubtedly charge you for it. It’s hard to say if the manual you find on the internet should be reviewed by an attorney. ALL OF YOUR EMPLOYEES SHOULD READ THE MANUAL AND SIGN A PIECE OF PAPER SAYING THAT THEY’VE READ IT.
3. When you go before the mediator, don’t volunteer any excess information, but don’t withhold information, either. Most mediators are not employer friendly (and there’s no way to find out if they are or are not, unless you’ve got some Employers Commission that keeps score).
3. Even in a right to work state, mediators aren’t pro-business, so don’t expect an even break. He/she might rule for the employee in question even if the facts support your side of the case.
4. Mediations are final in most cases (not all), so ask what your appeal rights are if you don’t like the mediator’s decision. There might be a panel of judges to which you can appeal.
5. If you have a history of contentious employee relations, consider using a PEO (personnel leasing organization), because they should represent you in a mediation hearing, and even before, they should tell you how strong your case is.
There’s much more that can be written on this topic, but the above words will at least get you thinking about what you should do to stay away from an Industrial Commission, aka Labor Board.
Thanks to my friends Mark Trimble of ESG HR and Paul Edwards, from the Center for Employee Dispute Resolutions.