Memories don’t influence judges. Documentation wins lawsuits. That’s why it’s important that travel agency owners who choose to hire employees take the time to document everything about their employee relationships, from the moment you choose to create a role, to an individual’s ultimate departure.
At the 2017 American Society of Travel Agents (ASTA) Global Convention, ASTA General Counsel Peter Lobasso reminded a packed room of agents that “putting it in writing” is the first line of defense.
Once you’ve decided to create a role in your organization, the first thing you need to do is write a job description, Lobasso said. While you might feel a company with only one employee doesn’t need such a formal 'corporate’ thing, you have no idea what the experience of being an employee manager will be like with this individual, so it is best to write down what is expected for that position.
Another often overlooked document even the smallest agencies should have is an employee handbook outlining everything about the agency that impacts the employee’s role. A copy of the handbook should be provided to the employee upon hire, and an “acknowledgment receipt” should be signed by them.
Court dockets are filled with battles that could have been short-circuited if the judge could have reviewed a job description and other documentation that showed the employee had no case.
Most states offer a general set of laws that make any hire an “at will employee” who can generally be terminated for no cause whatsoever. But Lobasso cautioned against that kind of thinking. “Terminating a worker without a valid reason is a very bad idea and inviting trouble,” he said. “A written contract modifies ‘at will’ relationships” so that a judge can understand when an employee violated their contract with you, the employer.
Not putting it in writing can cost you
Additionally, a job description can make it clear to state and federal agencies what an employee’s role was, so that you can properly qualify someone having exempt or non-exempt status. This is especially important for documenting accurate payroll requirements.
“If you call someone a ‘manager’ but they don’t manage people, they are not automatically an exempt employee. You cannot get creative with job titles,” Lobasso said. This is critical when it comes to paying employee overtime; or if the employee works on an hourly basis and you don’t have an accurate history of the hours they worked.
“You need to have a written policy on pay and overtime, and track your employees’ time. Avoid informal understandings of both what hours are expected of them, and whose responsibility it is to clock them in and out,” he said.
Lobasso also cautioned small agencies against coming up with informal spoken agreements that on the face of it seem innocent enough at the time. “I know some agency owners who will tell an employee, ‘Take a paid hour off next week for that hour of overtime you worked this week.’ That won’t work. The [U.S.] Department of Labor looks at pay and hours worked on a weekly basis.”
Lobasso noted that there are also state laws that an owner needs to comply with, complicating pay issues even more. For example, while the federal government looks at a 40-hour work week, California judges by an eight-hour day.
“If you have a written policy for working overtime, that will allow you to be able to track it in a manageable way. But you need to maintain and preserve accurate payroll records.”
Remain diligent over time
Getting off on the right foot as an employer should not make you complacent, Lobasso noted. He often sees cases where an agency employee grows into their role, and takes on new responsibilities that could impact how a judge perceives their contract with the agency.
“Accurate job descriptions for every worker might have changed since you hired the worker,” he said. Also critical are regular employee evaluations, so an owner can document the employee’s performance over time.
“If you have an employee with positive evaluations, and they sue you for discrimination, those evaluations can demonstrate that there is a lack of bias,” he said. Of course, if your performance evaluations for that employee are negative, “it can show deficient job conduct justifying you taking action.”
Lobasso also noted how an agency’s risk grows as it adds employees.
That employee who loved you when you first hired them, might change as new employees are added. This is when claims of discrimination might arise, so documenting any changes in responsibilities and/or job-related issues you might have with that employee become more important.
“Employee personnel files are not always kept up to date, and this creates vulnerabilities for an owner defending a claim. That file should include their employment application, which shows the employee’s education, prior work experience, etc.,” he said. This kind of information is especially important when an agency grows to multiple employees, because it documents differences that might have led you to pay one more than the other, or to offer different roles and responsibilities.
This is where Lobasso sees more risk around something called “disparate treatment,” when a person in a protected class, with a disability, etc., is treated less favorably than a colleague.
Establish a grievance procedure
Make sure you have a grievance procedure in your employee handbook, Lobasso said, that escalates issues appropriately. The policy should describe how any infraction will be treated. “Will the first discussion be a verbal warning?” Lobasso asked, “then a written warning? What happens after that? Suspension?”
“When you have, use and document procedures like this, you can support your defense that discipline was imposed, and it was not done arbitrarily. That can help you prove there was no ulterior motive or bias involved.”
Lobasso also has been seeing more age discrimination claims as the workplace population grows older. Too often, he said, owners will only verbally discuss what seem like small issues with a worker, because they are being overly kind about something like showing up late consistently, or not being able to accurately perform tasks.
“Writing down things you are seeing, documenting their number of late days, etc., once again makes it apparent to anyone that you were seeing a decline in performance and you shared that with the employee. Don’t rely on memory.”