Monday, January 4, 2016

A Conundrum

There are two phrases I find myself using a lot when talking to employers. The first is, "Do the right thing." The other is, "No good deed goes unpunished." I am serious about both of them, but they sometimes put us in a conundrum.

Doing the right thing is different than doing the legal thing. No, you don't have to provide breaks. No, (at least in Texas), you don't have a limit on the amount of time you can work an employee in a day. No, you don't have to pay an employee mileage for the use of their vehicle if you pay them minimum wage. That doesn't necessarily make these actions right, and in some cases, could be dangerous and open your company to liability if tired employees have an accident. Doing the right thing means to look at more than what is required to what is ethical when framed with your company's values and your belief system.

But sometimes, employers give employees the benefit of the doubt, or give more than they are required to and the employee takes advantage of the employer. You have someone who has a seemingly legitimate personal problem, and you want to help. You let them slide on policies, work performance or behavior. You may give them money or time off beyond what you are required to do by statute or policy. The employee seems to think that you owed them this, and you should perhaps do more. Sometimes they later file accusations to a government agency because we didn't document anything, as we just were trying to help them out. And of course, once you have done for one employee, others expect the same consideration. Right? Now you're leery of going out of your way to help someone ever again. A lot of handbook policies come from situations in which an employee took advantage of an employer so the employer reacts by forbidding any similar actions in the future.

It can be confusing and emotionally taxing (and in some cases, fraught with legal peril) to decide the right thing to do when you are in that gray area between what you have to do versus the Utopian we want to be wonderful to everyone perspective. Given that, here are a few thoughts to provide a yardstick as you think your way through these conundrums.

Be clear about your values and your philosophy about the relationship between employees and an employer. There really shouldn't be a lot of doubt about this if you have clearly articulated values. But truthfully, many companies do not. Worse, some have clearly articulated values that everyone who works there knows are pure B.S. Values are important--they are put in place to guide decision making. Use them.

Be sure you do know what employment laws require--and always comply. This is the minimum bar. I occasionally have employers who want to withhold something they are legally required to give the employee because the employee (in their mind) messed them over. Don't go there.

Carefully think through your company policies. Capture what is important and that you will enforce. Forget the rest.

Give yourself some flexibility. There is nothing wrong with making exceptions to policies in some circumstances, so give yourself some wiggle room. I am not a fan or zero tolerance on most anything (there are some exceptions--but they are pretty extreme.) But if you are going to use that wiggle room a lot, perhaps you need to get rid of or modify the policy.

The company should be a primary consideration. Without the company, none of your employees would have jobs, so we should never jeopardize the company for an employee--do carefully consider potential liability. I am not one to turn away from the right thing for that reason, but I want to know what the risks are and be sure I know what I am getting into. By the same token, don't give what you can't afford.

Be fair. We don't have to give everyone the exact same thing, but I will go out of my way more for a long-term employee with a good work history than one who hasn't given me a decent day's work in the week he has worked for me.

Document exactly what you are doing and why. If you are making an exception to policy, document it and explain your reasoning. If it is a performance issue, I suggest a time limit. Something like, "Because you need some time to make different child care arrangements due to a personal situation, for the next 2 weeks, your work schedule is reduced to 32 hours. As a special consideration, Company A will pay you for 40 hours during this 2-week period. As of  (date), I expect you to have made arrangements to return to work your normal shift of xxxxx, and you will be paid only for hours worked as of that date." You may want to discuss such arrangements and the wording with your employment attorney--I just think it is important that there be a clear understanding you are making a limited exception for special circumstances. And what if you pay your employee for hours she didn't work for those 2 weeks and then she comes in and quits? Console yourself that you are a good person who did what you thought was right and it didn't cost you much. Don't try to change the agreement and just pay her for the hours worked.  The phone call to your attorney will cost you more than those few hours when she files a complaint with the Texas Workforce Commission (or your state's equivalent) because you didn't pay what you agreed.

Lose the users. There are just some people who always have problems and excuses. You can help them some, but at some point, enough is enough. Decide where that line is and when you reach it, cut your losses. And if they lied to get special consideration, don't even think about it--let them go.

Sleep well. If you think these things through, based upon values and following the laws and your reasonable policies, you will do the right thing. You may occasionally be taken advantage of, but I can live with that if I know I acted in good faith.

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