In my many years of consulting with small companies I have seen a lot of mistakes be made by employers, but I have probably not seen as many as defense attorneys have seen. I was reading a post by attorney Daniel Schwartz entitled Things Employment Lawyers Don’t Want to Hear. Very interesting and I recommend you read it. But one thing he said struck me was that you don’t assume an employee knows the rules.
Actually I paraphrased what he said. What he actually said was
““How does the employee know the rule? Trust me. He knows.” I love this one. In defense of the employer, it’s probably true more often than not. However, you will never be able to get the employee to admit that he knew it if the rule isn’t in writing. And if you don’t have it in writing, you won’t be able to defend yourself if the employee “forgets” what he “knew.”
This falls into the category documentation. I tell clients and students that you have to live the mantra of “document, document, document.” I don’t do this because I love documentation, but I am realistic and experienced enough to know that without documentation rules and events get easily forgotten.
One of the easiest forms of documentation is your employee handbook. You want to make it complete but try not to get lost in the details. It is NOT necessary to point out every possible rules violation that could possibly occur, but you certainly want to cover the major issues. And of course you need to have the acknowledgement signed as that is really the first step in your defense that the employee was exposed to the rules. But honestly you need to go beyond that. You need to make sure that the employee was exposed to and learned the rule through a well conducted onboarding process. With this process you can avoid the mistake of assuming the employee knew. After all we all know what ASSUME means, correct?
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