Jane Harrison

How to Avoid Age Discrimination

Employee Performance Evaluation

If you scan through the national newspapers you will find article after article about managers and supervisors who are agonizing over the behavior of employees. Sometimes this agony is brought about by the employee’s lack of performance or sometimes by deliberate insubordination. According to The Insurance Journal nearly 90% of corporations are involved in multiple lawsuits. And many of these are brought about by a lack of due diligence with documenting employee performance.

The question begs to be asked, why are these managers or supervisors not letting these employees go? My experience has been that they are afraid of a lawsuit and the effect it will have on the business and/or their career. When you talk with them about the benefits of documentation you find that they either didn’t document or are unsure of the quality of the documentation.

Labor Boards/Courts Awarding Punitive Damages:

Labor boards and courts are siding with terminated employees more and more. They are awarding punitive damages or requiring payment of compensation in cases where the grounds for termination are not clear. Even right to work states see their fair share of litigation alleging unfair termination. The EEOC will investigate alleged Title VII violations. If an EEOC investigator even thinks that there could be a violation the matter will move forward.

What is unfortunate is that most businesses err on the side of not documenting from day one. I mediated a case for the EEOC where a customer of a small local restaurant asked for a job. This was an older woman who frequented the restaurant daily. She alleged Age Discrimination.

Accused of Deliberately Trying to Make Her Fail:

They hired her because she was “sweet” and a loyal customer. During training Loyal Customer Wannabe Employee was not able to learn how to use the computerized cash register. Her continued comments to the manager attempting to train her on the use of the register were:

• The registers that she worked on in the 60’s were better;
• She could just use a calculator to factor making change;
• No cash register could accurately determine if the food prepared by the kitchen added up to the amount of food sold;
• They were deliberately trying to make her fail because of her age.

After two weeks of trying to train Loyal Customer Wannabe Employee to use the cash register, the restaurant’s owner decided to switch her to hostess. This is a small restaurant with thirty (30) tables. The cashier helped with seating people.

It’s not nice to chuckle at the angst of those for whom you are mediating, but I couldn’t resist on this one. Loyal Customer Wannabe Employee refused to learn the seating chart or to even use the seating chart. Her reasoning:

• I know everyone who comes here and where they want to sit;
• The waitress should be able to handle however many people I seat in her section;
• I’ve been coming to this restaurant long enough to know how to seat people.

Clear ADA Accommodations Request:

The restaurant owner had a good employee handbook that his attorney had drafted. It clearly stated each job description, the training process and how to request ADA accommodations, among other things.

  • Changes Afoot in Texas Noncompete Law?

    November 27, 2014

    The Texas Court of Appeals 2013 decision in Nacogdoches Heart Clinic, P.A. v. Pokala raises some puzzling questions about the direction of noncompete law in Texas. It makes sense from a public policy perspective, but …

  • The Consequences of Scraping Data From A Competitor [e221]

    September 07, 2015

    The guys discuss the lawsuit filed by PhantomAlert against Waze concerning accusations of data scraping a database. Transcript: NASIR: All right. Welcome to our podcast where we cover business in the news and add our legal twist. …

  • Can You Get Fired For Being Racist? [e215]

    August 17, 2015

    Nasir and Matt discuss how racism led to employees getting fired and another instance where a judge overturned a decision to terminate a racist employee. Transcript: NASIR: Okay. Welcome to our podcast where we cover business in …

  • What to Look for When Buying a Franchise

    March 05, 2015

    Thinking of buying a franchise?  That’s very exciting. For many, franchising is the first foray into owning your own business. As with any business purchase, however, you will want to make sure that you can …

  • How to Protect Trade Secrets

    January 26, 2016

    Coca-Cola’s recipe for its soda is supposed to be one of the best kept secrets ever. The original recipe is said to be kept in a vault in the company’s Atlanta home where visitors to …

  • Employee Monitoring and Wearable Technology [e258]

    March 09, 2016

    Nasir and Matt discuss the new iPhone update that employees should pay attention to. They also talk about the pitfalls of employers issuing wearable technology to their employees. Transcript: NASIR: Welcome to our podcast where we cover business …

  • Nine Legal Strategies to Protect Your Brand

    June 25, 2015

    Perhaps you’re never dreamed of a Google or Facebook-sized business empire – multiple products generating multiple streams of income that seem to semi-magically renew themselves. Something a bit more modest might be fine as well. Whatever …

  • State Mandated Retirement Savings Plans

    July 30, 2015

    Twenty-four states and New York City either are or have very recently considered establishing state run retirement savings plans.  Several of these are modeled on SB 1234, the California Secure Choice Retirement Savings Trust Act. …

  • How to Avoid Age Discrimination

    November 05, 2015

    Employee Performance Evaluation If you scan through the national newspapers you will find article after article about managers and supervisors who are agonizing over the behavior of employees. Sometimes this agony is brought about by the …

  • Alcoholic Employees: What are an Employers' Rights and Responsibilities?

    April 14, 2016

    If Mad Men taught us anything, it's that corporate America has come a long way since the 1960's with regard to its treatment of alcohol in the workplace. Some viewers of the show may envy that …

Moving her from cashier to hostess was a clear attempt to accommodate her inability. Had there been a true Title VII issue, Small Business Owner had, in good faith, worked to accommodate this individual.

When Restaurant Owner had to let Loyal Customer Wannabe Employee go, he was very careful in his words and had LCWE’s immediate supervisor there to validate all that was said. At first she cried asking for another chance, then she threatened a lawsuit.

Mediation of Age Discrimination:

When this came to mediation, Loyal Customer Wannabe Employee had filed a complaint alleging Age Discrimination. While she did fit the criteria, she had never asked for any accommodation. What kept this moving forward was the lack of documentation by Small Business Owner that could have adequately disputed her Age Discrimination claim.

Employee Handbook/Performance Documentation:

While they had a great employee handbook, they did not have great policy in place for workers’ performance documentation. Especially documentation during the training period. Our owner didn’t realize the importance of written policy for day to day operations that would address performance documentation.

Employee Reviews:

Many business owners, even major corporations, neglect to document employee performance adequately. Employee reviews can be useful, but ongoing little notes in an employee’s file can make the difference.

I worked on a case involving a national provider for prison healthcare. The allegations brought against them in this class action were, in part, complex issues. What brought this case relatively fast closure was the daily documentation written by supervisors, managers and co-workers. This group had put in place a system of daily performance documentation. Every day, without fail, each employee who worked that day had some type of written evaluation.

Protocol for Negative Evaluation:

If it was a negative evaluation the employee was notified within twenty-four hours and given an opportunity to respond within three (3) work days in which they actually worked.

The amount of documentation was overwhelming, but it gave us insight as to the lack of standing in the claims. Best of all, they had quarterly reviews that reinforced the daily performance reports. The yearly review was based upon all the foregoing. No employee was blindsided by a new complaint. Each employee who had performance issues had multiple documented times where the performance issue had been addressed and what the resolution had been.

Does this sound like a lot of work? In the long run it wasn’t. Most reports were one or two sentences. Some were a few words, “Excellent day!” or “Keep up the good work!” or “Love having so-and-so on my team!” When someone with exemplary comments began to underperform it was easy to spot in the record. Some of the documentation reflected problems at home or an unknown underlying anger toward a supervisor. The point is, we could read in real time what was happening.

So what happened to Small Business Owner and Loyal Customer Wannabe Employee? Lack of documentation hurt the business owner. While employees who worked with LCWE testified consistently about the problems encountered, she had a lot of anger. Because of a lack of documentation the business could not effectively defend her firing for insubordination. They could show that they had made concessions to accommodate her inability to learn the cash register by moving her into the hostess position. They did not, however, document where she had stated to co-workers and the restaurant’s owner her ongoing refusals to seat patrons according to protocol.

Documented Grounds for Termination:

This situation had nothing to do with Age Discrimination. It had everything to do with the efficient running of a business. Because there was no ongoing documentation of the infractions, Small Business Owner could offer no documented clear grounds for termination beyond he said she said.

In meeting with the owner and several co-workers, they personally liked Loyal Customer Wannabe Employee. Each one felt badly that she couldn’t learn how to use the cash register. Each one was frustrated that she refused to follow seating protocol and the difficulties that created when the restaurant was at peak performance.

Ongoing Documentation Accepted by EEOC:

In the end Loyal Customer Wannabe Employee was offered several hundred dollars in gift cards to this restaurant – after all it was her “favorite place to eat and meet her friends.” She accepted.

A year later I checked in on Small Business Owner to see how things were going. LCWE was still happily dining there on a daily basis. Best of all, Small Business Owner had worked with his attorney to draft AND implement an ongoing review protocol. With the protocol in place he had recently had to let go an employee for continued tardiness. Because of the ongoing documentation, when the EEOC contacted him with allegations of discrimination, he was able to produce the necessary proof for the EEOC to dismiss the allegations. When the employee went to an attorney to sue privately, Small Business Owner produced the documentation and the suit was dropped.

As a business owner you should have a very detailed employee handbook. But you should also have a very detailed operations manual that clearly sets forth protocol for performance documentation. Ignoring performance documentation can open the door to a lawsuit. Careful and consistent ongoing documentation can give you all you need to quash a potential lawsuit. So work with a trusted, experienced attorney and document, document, document!

Read More