TED SMITH Cornell Smith & Mierl, L.L.P S. MoPac Expwy., Suite 330 Austin, Texas (512) EMPLOYMENT LAW 2005: How to Keep your Employees as Assets, not Liabilities

EMPLOYMENT LITIGATION PREVENTION TWO KINDS OF EMPLOYEES: AT WILL & FOR CAUSE AT WILL & FOR CAUSE GENERAL RULES OF THUMB: HIRING TO FIRING HIRING TO FIRING TOP TEN WAYS TO AVOID EMPLOYMENT LITIGATION

THE TWO TYPES OF EMPLOYEES "FOR CAUSE" EMPLOYEES"FOR CAUSE" EMPLOYEES MAY BE TERMINATED FOR A GOOD REASON ONLY "AT-WILL" EMPLOYEES"AT-WILL" EMPLOYEES MAY BE TERMINATED Ý For Good Reason Ý For Bad Reason Ý For No Reason Ý But….

…Not for an Illegal Reason Such As: S Filing personal bankruptcy S Asking questions about overtime pay S Refusal to engage in a criminal act S Filing of a workers’ compensation claim S Retaliation for taking FMLA leave

UNLAWFUL DISCRIMINATION S Sex/pregnancy/sexual orientation S Race S National origin S U.S. Citizenship S Religion S Age (protecting persons age 40 and over) S Disability S Retaliation for having claimed discrimination

GENERAL RULES OF THUMB KEY INTERVIEWING RULES l If It Is Not Job-Related, Don’t Ask! EXAMPLES: EXAMPLES: –Are you married? –Do you have young children? –How old are you? l Be Consistent

KEY MANAGING RULES l Be Familiar With Your Personnel Handbook l Avoid Legal Pitfalls -- Involve Human Resources / Legal Counsel l Be Honest In Employee Evaluations

KEY MANAGING RULES l Be Consistent In Disciplinary Actions l Document! Document! Document! l Anything You Say Can Be Used Against You And The Company

KEY FIRING RULES l Avoid Legal Pitfalls -- Involve Human Resources / Legal Counsel l Follow Written And Oral Company Policies l Consider Progressive Discipline

KEY FIRING RULES l Consider Whether Employee Was Counseled l Has The File Been Properly Documented? l Be Considerate! l Be Honest About The Basis For The Decision

KEY FIRING RULES l State Just The Facts To Avoid Slander / Libel l Listen Politely To Their Side l Check Company Policy Before Giving Any Reference Or Recommendations

THE TOP TEN COMMON EMPLOYMENT LAW MYTHS

“I PAY EVERYONE A SALARY TO AVOID OVERTIME.”

WE LEASE OUR EMPLOYEES SO WE’RE NOT LIABLE!

SINCE SHE CONSENTED, IT’S NOT HARASSMENT

NO OFFENSE WAS INTENDED SO IT’S NOT HARASSMENT

IT WASN’T A FORMAL COMPLAINT

AT LEAST THERE’S NO INDIVIDUAL LIABILITY

DOCUMENTING PROBLEMS BLOWS THEM OUT OF PROPORTION

THE EQUAL OPPORTUNITY SCREAMER IS NOT A PROBLEM

ANNUAL EVALUATIONS ARE A GREAT IDEA

WE CAN’T AFFORD TRAINING

NO. 1 WAY TO KEEP YOUR EMPLOYEES AS ASSETS, NOT LIABILITIES! HIRE A TOP-NOTCH EMPLOYMENT LAWYER TO TRAIN YOUR MANAGEMENT!

TED SMITH Cornell Smith & Mierl, L.L.P S. MoPac Expwy., Suite 330 Austin, Texas (512) EMPLOYMENT LAW 2005: How to Keep your Employees as Assets, not Liabilities