Do you want to hire project based or temporary workers but are unsure of how to NOT get sued for wrongful termination? Review this informaiton for more answers:
What is At-Will Employment?
"At-Will Employment" means that if an employee is not covered by an employment contract, the employee can't be forced to stay with an employer and, in turn, an employer can't be forced to keep the employee and can terminate him/her at any time. In other words, the employee can quit at any time and the employer can let the employee go at any time. It has been the unwritten employment contract for decades. (It had its origin in English common law and had begun to gain acceptance in the U.S. by 1877.) However, during the past twenty years, some state courts have made exceptions to the "at-will" doctrine. These exceptions are designed to protect employees from abuse or unequal treatment by their employers. This opened the door for an onslaught of litigation. In many states, discharged employees can now recover economic losses and get their jobs back by proving: (1) that the employer broke an implied contract of continued employment (such as an implied promise of job security); or (2) that the termination was contrary to public policy (such as dismissal for refusing to violate a law). A few states also include (3) that the termination violated an implied covenant of good faith and fair dealing (meaning the company was unfair).
Limitations on At-Will Employment
Employers do not have the right to discriminate against an employee illegally or to violate state or federal laws, such as those controlling wages and hours. Most state discrimination laws are quite broad. In addition to protecting against the traditional forms of discrimination based on race, color, religion, national origin and age, many also protect against discrimination based on sexual orientation, physical and mental disability, marital status and receiving public funds. Separate state laws protect workers from being fired or demoted for taking advantage of laws protecting workers from discrimination and unsafe workplace practices. And there are a number of other more complex reasons that may make it illegal for an employer to fire you -- all boiling down to the fact that an employer must deal with you fairly and honestly.
Promises of Continued Employment
Unless you want to create an employment contract that obligates your employee to work for you for a period of time and limits your right to fire the employee for the same period, do not put language in your handbook that promises employees a job as long as they follow your rules. A court might interpret this as a contract of employment, promising that employees will not be fired absent good cause. To avoid this, state in the handbook that your company reserves the right to terminate employees for reasons not stated in the handbook or for no reason at all. Even though you may never have to rely on this language, at least your employees will know where they stand.
Thursday, July 27, 2006
Free Agent Los Angeles
Below is an article from the Los Angeles times that exemplifies the movement to Independent Contractor status by former employees...
L.A. Area Leads in Employers That Aren't
By Molly Selvin and Molly Hennessy-Fiske, Times Staff Writers
July 27, 2006
One hundred workers count on Betsy Briones for their paychecks. But not one of them works for her.
Briones is a so-called nonemployer, relying exclusively on contract or temporary workers. This arrangement, which allows employers to avoid the soaring costs of health insurance and other benefits, is booming in California, according to a Census Bureau report to be released today.
The 63-year-old Briones runs a busy referral agency for in-home care workers out of her Los Angeles residence, placing caregivers with elderly or disabled clients. All of her caregivers are independent contractors and are responsible for obtaining their own benefits, she said.
Los Angeles County — a hotbed for small business — seems to be the capital of this "free agent nation." It has more nonemployers than any other U.S. county, although their ranks are now growing even faster in the Inland Empire, according to the census report.
California businesses have been hiring contract and temporary workers in construction, administrative and high-tech jobs for years, and the practice appears to be spreading to industries such as real estate brokerages, beauty salons and insurance agencies, the report said.
The number of nonemployers grew 19% statewide from 2000 to 2004, reaping 27% more in revenue, according to the Census Bureau. During that time, the number of nonemployer real estate offices grew 46%, while healthcare and social assistance businesses increased 27% and architectural and engineering services jumped 12%, the report said.
Los Angeles County added 4.6% more nonemployers in 2004, while Riverside and San Bernardino counties added 7% and 7.1%, respectively, according to the report.
As the economy slows, analysts expect the tight labor market and increased business investment to boost demand for temporary workers, already up 2.7% in June compared with last year, according to the Labor Department.
"A lot of people want to have a business but don't want the headaches of actually having to employ people," said Jack Kyser, chief economist at the Los Angeles County Economic Development Corp. The recent growth of nonemployers — particularly in the entertainment, transportation and warehouse industries — is dramatic, Kyser said.
Los Angeles-area businesses become nonemployers to avoid the costs of workers' compensation, paid leave, health insurance and state taxes, he said. Contractors end up paying more for their own healthcare or go without it.
Gary Pavlica used to employ 12 men in his West Los Angeles construction company. He had been paying for their health, workers' compensation and liability insurance.
"But it got to be too expensive," he said. "I couldn't make a decent profit."
A few years ago, Pavlica encouraged each of them to get a contractor's license for their particular trade. Now, he hires the same men as independent subcontractors to do the framing, electrical work, painting and other work on his jobs.
"It's up to them now to get their own insurance," he said.
Pavlica characterized the new arrangement as a win-win situation. "Basically I'm exempt from the insurance responsibilities," he said. And his subs "work for other contractors instead of just waiting for me to get the work for them. They're licensed and insured and bonded."
Briones felt the same, noting that as independent contractors, many of the caregivers she places also list themselves with other agencies, giving them more opportunities for employment. The same flexibility applies to nonemployers. If business slows, they don't need to lay off anyone; they just use fewer contractors.
"You talk to these people and they say the same thing: 'I'm not hiring anyone ever,' " said William Dennis, a senior research fellow at the Washington-based National Federation of Independent Business Research Foundation.
Some workers prefer these conditions because it gives them the flexibility to make their own schedules, take time to care for young children or ailing parents and live where they want. Computer technology enables independent contractors or "permatemps" — permanent temporary employees — to work from home. Some are part of the "EBay economy," buying and selling on the Internet for themselves.
"I just don't think I could ever work for anyone; I'm too independent," said Sarah Shaw, 41, who runs her women's accessories business out of her Hollywood garage. She said she preferred paying for her own benefits over working for someone else.
Many successful free agents can do better as independent contractors than as employees.
Monday, July 10, 2006
Terminating an "At Will" U.S. Employee - Factors to Consider
When terminating an "At Will" employee in the United States there are 3 factors to consider:
By Kevin Muir, Author of the Employee Termination Guidebook
www.employeeterminationguidebook.com
(Author’s note: As you read this article, you’ll notice I use "he" to describe the problem employee. Please be aware I’m referring to a problem employee of either gender.)
Factor #1: Fight Or Flight… How The Problem Employee Will Take Advantage Of You
Even when you don’t tell him directly, the problem employee always knows he’s “on the bubble” and may be fired soon. It’s almost as if he can read your mind.
This wouldn’t be a problem if the employee would take the hint and improve his performance and behavior. But, this seldom happens because a bad apple remains a bad apple. Instead, you’ll notice that his behavior will get worse. He’ll either:
Begin an intimidation campaign against you to save his job, or,
Become a zombie doing little work.
You’ll notice these behaviors match the “fight or flight” response you learned in school. If you recall, when an animal gets into trouble, there are just two reactions, fight or flight. As we’ve seen, your employee will react the same way when his job is threatened.
In either case, he's taking advantage of you and your company by taking a paycheck and not doing his job… and this will only continue if you don’t do something right away. Your only recourse is to get rid of the employee as quickly as possible.
Let me cover each of these reactions.
In my experience, most employees will decide to “fight” and carry out an intimidation campaign. Sometimes these campaigns are subtle, but often they’re very public. Here’s what happens.
He starts politicking including telling lies about you, turning others against you and destroying your reputation. He wants you to suffer as much as possible. His goal is to build up his political base and force you to back off.
In this case, you only have one choice. You must show him (and others) you’re the boss and fire him right away. You can’t have an employee undermining your authority. His malicious behavior justifies his termination.
Now let’s discuss the opposite reaction, “flight.” In this scenario, the problem employee shuts down and stops working. He’s always late to work and misses more goals and deadlines. And, he spends much of his time on the phone, in e-mail and instant messaging his friends.
At this point, the employee has accepted that you’ll eventually fire him. So, his strategy is to drain as much money as possible out of the company while doing the least amount for it. In effect, he’s daring you to fire him.
What do you do? You can try to rehabilitate him, but the employee is now too far gone. Your best choice is to terminate now ... but you need to do it right.
(By the way, this is also the best thing for the employee as well. It's clear that he's not happy and productive. It's better to give him the push to get another job that is better suited for him. There's nothing worse in life than going into a job you hate and that makes you miserable. You are actually doing the problem employee a favor when you terminate.)
Factor #2: The Problem Employee Will Destroy Your Morale and Results… If You Don’t Do Something About It Today
Suppose you decide to give the problem employee an extra chance and let him stay with the company. What happens to you and your department?
Let me give it to you straight. The employee will poison your relationships with everyone he interacts with including customers, suppliers and co-workers. This is a natural outcome to being “on-the-bubble” and having a bad attitude.
Your results will suffer because you’ll be losing customers and suppliers… and because you now have to spend so much time managing just this one employee. Unfortunately, it may take you years to patch-up these relationships.
Besides this, the employee may poison your department and company as well. Your “good” employees will see it’s all right to act badly and not do their jobs. Your department and company morale will drop, and this will further erode results.
Here’s the worst part. You’ll lose your best performing employees. They don’t want to work for a company with poor morale and terrible results. They would rather work with other winners in a positive and productive environment.
The problem employee is a cancer in your organization. This cancer spreads by turning good employees into bad ones and by forcing your best employees to leave. In either case, you must cut out the cancer at its source before it spreads further.
Factor #3: The Longer You Wait… The Harder It Is To Terminate The Employee
If you wait to fire the employee, there is a good chance you’ll never be rid of him.
Let me give you two common reasons this happens.
First, if you decide to rehabilitate the problem employee, he’ll drain all the energy from you. You’ll find yourself spending all your time managing this one employee and firefighting any damage he’s causing with customers, suppliers and co-workers. Eventually, he wears you down, but you still can’t fire him.
Why? Because firing him is admitting that your rehabilitation effort failed. (By the way, if this describes your situation, I want you to know you’ve not failed. Most problem employees can’t be saved regardless of what you do. Remember… a bad apple remains a bad apple.)
Second, by waiting to fire, you’re giving the problem employee time to build a legal case against you. His strategy is to unmask your weaknesses as a manager and document any mistakes you’ve made. You can tell when this is happening when you see him taking notes of your meetings and discover him copying important files to take home.
Soon, he’ll go to a lawyer who will tell him how to make your life miserable.. Then, you can’t fire him because you're now risking a wrongful termination suit.
So why do managers and supervisors wait to fire a problem employee… when it’s obvious you should terminate right away?
The primary reason is most managers and supervisors have never been trained in proper termination procedures… and they're afraid of legal mistake. But don’t let this hold you back. In the next section, you’ll discover an easy and low risk way to terminate even in the most difficult employees.
By Kevin Muir, Author of the Employee Termination Guidebook
www.employeeterminationguidebook.com
(Author’s note: As you read this article, you’ll notice I use "he" to describe the problem employee. Please be aware I’m referring to a problem employee of either gender.)
Factor #1: Fight Or Flight… How The Problem Employee Will Take Advantage Of You
Even when you don’t tell him directly, the problem employee always knows he’s “on the bubble” and may be fired soon. It’s almost as if he can read your mind.
This wouldn’t be a problem if the employee would take the hint and improve his performance and behavior. But, this seldom happens because a bad apple remains a bad apple. Instead, you’ll notice that his behavior will get worse. He’ll either:
Begin an intimidation campaign against you to save his job, or,
Become a zombie doing little work.
You’ll notice these behaviors match the “fight or flight” response you learned in school. If you recall, when an animal gets into trouble, there are just two reactions, fight or flight. As we’ve seen, your employee will react the same way when his job is threatened.
In either case, he's taking advantage of you and your company by taking a paycheck and not doing his job… and this will only continue if you don’t do something right away. Your only recourse is to get rid of the employee as quickly as possible.
Let me cover each of these reactions.
In my experience, most employees will decide to “fight” and carry out an intimidation campaign. Sometimes these campaigns are subtle, but often they’re very public. Here’s what happens.
He starts politicking including telling lies about you, turning others against you and destroying your reputation. He wants you to suffer as much as possible. His goal is to build up his political base and force you to back off.
In this case, you only have one choice. You must show him (and others) you’re the boss and fire him right away. You can’t have an employee undermining your authority. His malicious behavior justifies his termination.
Now let’s discuss the opposite reaction, “flight.” In this scenario, the problem employee shuts down and stops working. He’s always late to work and misses more goals and deadlines. And, he spends much of his time on the phone, in e-mail and instant messaging his friends.
At this point, the employee has accepted that you’ll eventually fire him. So, his strategy is to drain as much money as possible out of the company while doing the least amount for it. In effect, he’s daring you to fire him.
What do you do? You can try to rehabilitate him, but the employee is now too far gone. Your best choice is to terminate now ... but you need to do it right.
(By the way, this is also the best thing for the employee as well. It's clear that he's not happy and productive. It's better to give him the push to get another job that is better suited for him. There's nothing worse in life than going into a job you hate and that makes you miserable. You are actually doing the problem employee a favor when you terminate.)
Factor #2: The Problem Employee Will Destroy Your Morale and Results… If You Don’t Do Something About It Today
Suppose you decide to give the problem employee an extra chance and let him stay with the company. What happens to you and your department?
Let me give it to you straight. The employee will poison your relationships with everyone he interacts with including customers, suppliers and co-workers. This is a natural outcome to being “on-the-bubble” and having a bad attitude.
Your results will suffer because you’ll be losing customers and suppliers… and because you now have to spend so much time managing just this one employee. Unfortunately, it may take you years to patch-up these relationships.
Besides this, the employee may poison your department and company as well. Your “good” employees will see it’s all right to act badly and not do their jobs. Your department and company morale will drop, and this will further erode results.
Here’s the worst part. You’ll lose your best performing employees. They don’t want to work for a company with poor morale and terrible results. They would rather work with other winners in a positive and productive environment.
The problem employee is a cancer in your organization. This cancer spreads by turning good employees into bad ones and by forcing your best employees to leave. In either case, you must cut out the cancer at its source before it spreads further.
Factor #3: The Longer You Wait… The Harder It Is To Terminate The Employee
If you wait to fire the employee, there is a good chance you’ll never be rid of him.
Let me give you two common reasons this happens.
First, if you decide to rehabilitate the problem employee, he’ll drain all the energy from you. You’ll find yourself spending all your time managing this one employee and firefighting any damage he’s causing with customers, suppliers and co-workers. Eventually, he wears you down, but you still can’t fire him.
Why? Because firing him is admitting that your rehabilitation effort failed. (By the way, if this describes your situation, I want you to know you’ve not failed. Most problem employees can’t be saved regardless of what you do. Remember… a bad apple remains a bad apple.)
Second, by waiting to fire, you’re giving the problem employee time to build a legal case against you. His strategy is to unmask your weaknesses as a manager and document any mistakes you’ve made. You can tell when this is happening when you see him taking notes of your meetings and discover him copying important files to take home.
Soon, he’ll go to a lawyer who will tell him how to make your life miserable.. Then, you can’t fire him because you're now risking a wrongful termination suit.
So why do managers and supervisors wait to fire a problem employee… when it’s obvious you should terminate right away?
The primary reason is most managers and supervisors have never been trained in proper termination procedures… and they're afraid of legal mistake. But don’t let this hold you back. In the next section, you’ll discover an easy and low risk way to terminate even in the most difficult employees.
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