One of the goals of good Human Resources is to prevent lawsuits. But your HR person and your employment lawyer don’t follow you all the time. So corporate attorney Josh Joel, Counsel at Stanton Law, compiled a list of phrases that often come out of the mouth of executives. If you start to think like that, you’re ready to be charged.
“I’ll just give this employee 1099.” “He’s employed, I don’t have to worry about overtime.” “Non-compete clauses are not enforceable, right?” “I will handle this EEOC charge on my own.” “This complaint is stupid, I’m not even going to respond to it.” “Aren’t you proud we have an all-female? [or any other protected characteristic] team?” “I’ll look for an employment contract online.” “I’m going to withdraw your pay if you…[fill in the blank]”I’m a nice guy. I don’t want to have that conversation.” “Just tell them they’re doing it right.” “This employee is a problem, let’s move them to another role.”
This is why these sentences are such ominous signs.
“I’ll just give this employee 1099.” The IRS and the Department of Labor both have strict requirements that determine whether an individual is an employee or a 1099 contractor. You can’t choose. And people who receive 1099s are never employees. Prepare for a hit from the DOL or the IRS.
“He’s salaried, I don’t have to worry about overtime.” Paid does not mean exempt. Exempt employees must complete certain duties before you don’t have to pay them overtime. Double-check with HR or your employment lawyer whether you are paying your employees correctly.
“Non-compete clauses are not enforceable, right?” While many non-competitors aren’t worth the paper they’re written on, don’t assume they are. Have your employment lawyer double check. States have very different laws about this – don’t assume and let your new employee’s former company come after you.
“I will handle this EEOC charge on my own.” You might as well say, “Oh, I’d like to lose this case.” EEOC cases are tricky and you can get in a lot more trouble by not hiring a lawyer. Contact an employment attorney as soon as you get a notification that the EEOC is involved.
“This complaint is stupid, I’m not even going to respond to it.” It might be stupid. The complainant can be a nag and a liar. It does not matter. Please don’t ignore it. Investigate and consult with legal counsel.
“Aren’t you proud that we have an all-female? [or any other protected characteristic] team?” The law requires that you don’t discriminate on the basis of gender, not that you can discriminate against men, but not women. This is basically an announcement that you are engaging in illegal discrimination.
“I will look for an employment contract on the internet.” While this sounds cheaper than a lawyer, do you know what is expensive? When you get sued or run into some other problem because that online contract didn’t meet your actual needs. State laws are critical to employment law, and something you find online may not meet your state requirements. And are you sure it’s up to date? Spend the money to hire a lawyer. Plus, it’s just not that expensive to get a professional contract.
“I’m going to collect your wages if you…[fill in the blank]There are only a few cases where you can collect the payment. Unless your employment attorney already approves this particular thing, you’re probably breaking the law if you pin the payment.
“I’m a nice guy. I don’t want to have that conversation.” Do you know why managers make more money? Because they need to have these spirited conversations. Whatever conversation you’re avoiding right now, it’s going to get worse. If an employee has a problem, address it immediately instead of letting it fester.
“Tell them they’re doing it right.” This goes along with the above problem. If you have an underperforming employee and you tell the employee they are doing well – something crazy is happening – they believe you. And if you give them a “meets expectations” rating, you’ve documented that. And then if you can no longer stand their poor performance and want to stop, your employee won’t believe it’s for performance reasons. If they claim discrimination, how do you prove it wasn’t? After all, their performance was “fine,” according to your documentation.
“This employee is a problem, let’s move them to another role.” Moving a problem employee from one department to another does not solve the performance problems. This is different from finding a job that the employee is more suited to – if I do accounting work I will be a failure, but if I switch to HR I will be running the business in a week. But if your employee has bad attitudes, bullying, ignoring rules, or some other major problem, moving the employee won’t solve the problem and more will likely arise.
So if you find yourself saying any of the above phrases, it’s time for a bowel check and a call to HR or your employment attorney. Don’t let these problems continue and know your own limits.
The opinions expressed here by Inc.com columnists are their own, not Inc.com’s.
This post If you say any of these 11 phrases at work, prepare for prosecution
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