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Is it OK to Spy On Your Employees?

Ah, the digital age. So much progress. So much productivity. So many more ways for your employees to avoid doing their jobs while they’re on the clock. And that’s where employee-tracking software comes in. For those who don’t know, this is perfectly legal software you install on your office’s computers to track what your employees are doing on the computer throughout the day. But as a manager, officer, director, or whatever position of power you hold in your company, you need to make sure you are implementing your employee-monitoring policies in a proper way. And here are three key points to keep in mind that can go a long way to properly implementing your policies.

Anonymity

While you may think the best policy is to hunt down those time-wasters so you can single them out for termination, a much better policy is to analyze the employee-tracking readouts in bulk to get a better feel for what your employees are doing on the whole—not necessarily individually. This way you can keep morale high since you’re not on a warpath to eliminate jobs, and you can avoid all kinds of wrongful termination suits that may spring up from disgruntled employees where terminated after you were spying on them.

Transparency

As with any company-wide policies—and especially ones with such negative connotations as employee-tracking—you need to be as transparent as possible when it comes to monitoring your employees. The more they know, the more at ease they will feel about the whole process. And the more at ease they feel, the more accurate the data you’ll be able to collect and analyze. And again, be clear with your employees you’re using that tracking information as a learning tool instead of a tool used to eliminate your staff based on their on the job browsing habits.

Good Judgment

Finally, the best way to properly institute an employee-tracking program is to make sure you use your best judgment. If something seems wrong, it probably is and you should not do it. Keep in mind whether you would like to be in the employee’s position and whether if you, in that position, would feel like your privacy was being completely violated by your employer’s actions. As long as you use your best judgment in implementing employee tracking, you’re already on the right track to staying out of trouble.

Image Courtesy: kevin dooley

6 Must-Include Items in an Employee Termination Letter

Wrongful termination. Those two words should strike fear into the heart of any employer. And while they can often mean a big payout for a disgruntled employee (and her attorney), employers shudder at the fact that the person they just fired may end up being an even bigger thorn in their side once they’re no longer employed. However, a well-drafted termination letter can go a long way to helping avoid dealing with a wrongful termination claim—but here’s the catch—the employee termination letter has to be as close to perfect as possible. And here are six items you should make sure your lawyer includes in her termination letter.

  1. The Reason Why the Employee Was Terminated. I’m just going to jump right into the quagmire that scares a lot of employers. “Why include the reason for termination?” the employer asks. “Won’t that just subject me to liability for wrongful termination?” The answer is simple. You should include it because a well drafted reason for termination can go a long way to helping prove the reasons why the employee was terminated in the first place. However, be mindful not to go into too many details regarding the reasons for termination—but don’t be too vague either. If you try to be too specific, you may find you cannot possibly prove this reason in court if the employee does end up suing you for wrongful termination. And if you are too vague, you run the risk of damaging your credibility and looking as though the stated reason for termination is not the actual reason for termination.
  2. The Date of Termination and the Last Day of Work. This really needs no discussion, but these dates should be included so as to document some of the most important dates in the termination process. Also include the date the terminated employee must return all of your belongings and supplies, if necessary.
  3. Information About Any Prior Warnings Given. If you’re the type of employer who feels the need to give a number of prior warnings to employees before terminating them, you should include the dates you gave them and the reasons behind them. A well documented record of pas poor performance (for example), can go a long way in deterring any kind of wrongful termination suit.
  4. A List of the Benefits the Terminated Employee is Entitled To. A number of employers give their employees the right to avail themselves of healthcare benefits, among other things, after they’ve been terminated. If your company is one that allows for such continued benefits, be sure to tell your terminated employee about it. And also don’t forget to include information about unemployment benefits.
  5. Whether the Employee Was Discharged or Terminated. Pretty self-explanatory, all termination letters should state whether the employee was discharged or terminated.
  6. Whether the Employee Could Have Appealed the Termination. The question of whether you should provide some kind of appeal system for employees who have been terminated is a topic for another blog post. However, if you do provide a system for the employee to appeal her termination, make sure you specify the proper method for appeal in your termination letter and if the time to appeal has already passed, then discuss whether the terminated employee took advantage of the appeal system.

Image Courtesy: Thomas Leuthard

The Problem With The Employee Probationary Period

A close friend of mine recently hired a new employee. Things were going swell, and the employee was working out great, but then that person decided they’d rather seek employment elsewhere. During the time that employee worked there, my friend decided the best bet was to test the waters with the employee—try out an employee probationary period whereby everything that employee did was highly scrutinized, given feedback, and, if necessary, terminated for cause. It turned out the employee left before the probationary period ended, but what if they hadn’t?

My friend may have had a terrible situation on his hands. Something no employer wants to have to deal with.

An implied employment contract.

Yes, even though he meant for the employee to be “at-will” and terminable at any time for any reason (any legal reason, anyway, but that’s a post for another day), by simply having a probationary period, my friend might have unwittingly created a contractual employment relationship that could have superseded the desired at-will employment terms.

So how does this work exactly? Well, you start the employment relationship with an at-will employee agreement. That’s fine. That’s what everyone wants. But then you tell your employee that for the first 60 days, you’re going to give her extra feedback and fire her only if warnings have been given in advance. Uh oh. You see, the problem is that some courts have found that an oral employment contract can exist, and if you haven’t structured your employee handbook or employment agreement carefully, you may run right smack into a court saying that your probationary period created an oral employment agreement

There’s the problem. And here’s the solution. Ditch the probationary period all together. You can still keep an extra watch on new employees and give them feedback without the need for probation. After all, you probably tell your veteran workers when they make a mistake and if you’re an effective boss, you know exactly how well every one of your employees does their job—whether they’ve worked there a week or a decade.

Of course, if you really love the probationary period and can’t possibly let it go, you can always make sure it doesn’t affect your at-will employment relationship with a few quick fixes. First, make sure all employment agreements are in writing and include a provision that prevents the formation of any oral employment contracts. Second, include the facts of the probationary period in your written employment agreements and make sure that you outline in specific detail that the conclusion of the probationary period does not create any additional obligations for you or your employee. Third, make sure you have a well-drafted employee handbook and that the handbook explicitly states that no additional benefits, such as vacation time, paid time off, etc., will entitle your employee to permanent employment as opposed to at-will employment. If you keep those three factors in mind, and contact an attorney who can help you make sure your employment documents are in order and legally sound, you will significantly lower the risk that an employee can turn a successful employment period into an oral contract for permanent employment at your business.

Image courtesy: Victor1558