Challenges & Solutions
Challenge
#1
"How do I terminate an employee who gets his job done,
but causes constant friction and has a negative
attitude? This employee also happens to legally be
considered a minority."
Solution #1
Florida is an “at will”
employment state. This means that if the employee does
not have an employment contract, an employer has the
right to fire the employee for any reason or no reason.
An employer, however, cannot terminate an employee in
violation of the state and federal discrimination laws.
Certainly, causing friction and having a negative
attitude are sufficient non-discriminatory reasons to
fire the employee. And if your company has less than 15
employees, it is not subject to these discrimination
laws. Assuming you have the requisite number of
employees, and assuming that you have already tried to
counsel the employee in hopes of salvaging an otherwise
productive employee, there are certain steps that you
can take to try to avoid a potential discrimination
claim. First and foremost, you should make sure that you
have documented your problems with the employee,
preferably in the employee’s personnel file. Include
memos describing any counseling sessions, as well as any
complaints from other employees. Also, if you have an
employee manual that sets forth a progressive discipline
policy, you should follow that policy to the letter. If
your company has a severance policy, you should consider
offering the employee severance pay in exchange for a
release of the employee’s potential claims. Be careful
though, as offering severance coupled with a release
might give the employee the idea that he or she has a
valid claim.
Finally, when you fire the employee, be professional and
treat the employee with dignity and respect. Many claims
are filed simply because the employer unnecessarily adds
insult to injury in the termination process. There’s
probably nothing you can do to prevent a discrimination
claim, but if you follow these steps, you will at least
be in a better position to successfully defend yourself
if and when a claim is filed.
William J. Cook
Barker, Rodems & Cook, P.A.
400 North Ashley Drive, Suite 2100
Tampa, Florida 33602
wcook@barkerrodemsandcook.com
(phone) (813) 489-1001
(fax) (813) 489-1008
Solution #2
In this situation, as in
many circumstances in business, the law should be
treated as an outer bound on your behavior. Of course
you should never rush blindly into any complicated
business problem without a reasonably good idea of what
the law says you may do -- and may not do -- to solve
it. But it is a mark of good leadership to treat
reliance on legal boundaries as the contingency of last
resort.
You say this person gets his job done, so perhaps he is
worth salvaging? Before just firing him, it might first
be worth your time to explore some remedial
possibilities for keeping this productive person around.
Why not take this person to lunch? Tell him outright
that you are happy with his performance, but not with
his attitude. Tell him the personality conflict is
hindering your impression of his overall suitability for
working in your company. Tell him you don't expect
everyone to be happy all the time, but that you do not
want to have to deal with a chronically bad attitude.
Ask him if there is anything you can reasonably do to
increase his job satisfaction. If he is frustrated with
his work due to perceived problems, encourage him to
stop complaining and to make productive suggestions for
doing something about it. Figure out what his problem is
and ask for his advice on how to solve it. Give this
person the opportunity to take responsibility for his
behavior.
Of course, you must be open to this kind of frank
discussion and do your best to forestall it from
devolving into a heated argument. You must steel
yourself against what may turn out to be a litany of
criticism. And, ultimately, you must be prepared to
accept that there is no solution and that you've just
got yourself a bad apple.
Either way, you will have at least tried to keep the
matter as productive as possible, not only within the
bounds of the law, but also with tact, good ethics, and
steadfast leadership.
Brent Britton, Esq.
Squire, Sanders & Dempsey L.L.P.
201 N. Franklin Street Ste 2100
Tampa, FL 33602-5813
813-202-1300
bcbritton@ssd.com
Challenge
#2
As a state certified contractor, I spent a lot of time
and money to do things legally. My license, insurance,
and continuing education add significant costs to doing
business. Then I am beat out by unlicensed, uninsured
persons advertising as "Home Repairmen" or "Handyman",
who will have the homeowner pull the permit and then do
the same work - but much cheaper - because they don't
have the same expenses that I do. On bigger jobs, they
even hire some of the same sub-contractors that I use,
and supervise them as though they were a licensed
General Contractor - which they aren't! The Times
Classified runs their ads and so does the Flyer - no
license number - which is illegal. They have business
cards - no license number - which is also illegal. They
put signs on their trucks and do business - also
illegal. How do I compete with this? I am not a snitch
and can't justify being a one-person crusade to tattle
on these people. Besides, there are too many of them.
There doesn't seem to be any enforcement. Unless a
complaint is filed, the jurisdictions having authority
do nothing. What can I do?
Solution:
You are operating your business within the laws of the
State of Florida and within the confines of the
licensing boards to whom you report. You are correct
that, by law, the license number must be displayed on
the contractor’s vehicle, business cards and contract.
However, we are all not law abiding citizens and
business owners. That's why there are regulatory boards.
The Department of Business Professional
Regulation/Construction Industry Licensing Board is
responsible for licensure and regulation of your
industry. Their phone number is 850-487-1395. The
complaint process is relatively simple. Further, within
the county in which you work, there are also licensing
requirements and you should contact them as well. Here
are some numbers that will help you:
-
Citrus County Building
Division, Department of Development Services, (352)
527-5310; citrus.fl.us/building/online permitting.htm;
-
Hernando County Development
Department, (352) 754-4050;
www.co.hernando.fl.us/bldg;
-
Hillsborough County
Contractors Licensing, (813) 635-7309 or (813) 635-7308;
www.hillsboroughcounty.org/pgm/contractor;
-
Pasco County Building
Development, Contractor Licensing, (727) 847-8797;
opal.pascocountyfl.net and;
-
Pinellas County Construction
Licensing Board, (727) 536-4720.
You must also view it as a
necessary part of doing business.
Don't view the situation as "tattling", but rather as
upholding the integrity and quality of your profession.
You clearly are not alone in this predicament. How many
contractors obtain licenses, pursue continuing
education, and secure Workers Compensation Insurance?
Ask around and you will find an army for your crusade.
Albert Garcia is Tampa-based workers compensation
attorney with over 15 years in the business and
insurance industry. He has a bachelor of arts degree
from the University of Florida and a Juris Doctor from
Stetson University.
albertgarcia@flatworldmedia.com.
Challenge
#3
I’ve had an unsubstantiated sexual harassment suit
brought against my company. Even though it was
eventually found not to have merit, it was very costly.
Is there insurance available for such an unfortunate
occurrence?
Solution:
Yes. It is called EPLI coverage - Employment Practices
Liability Insurance. A couple of the bigger insurance
companies like AIG and CHUBB provide this. However,
there are many exclusions and I recommend reviewing all
of them with your agent prior to purchase.
Albert Garcia is a Tampa-based workers’ compensation
attorney with over 15 years in the business and
insurance industry. He has a bachelor of arts degree
from the University of Florida and a Juris Doctor from
Stetson University.
Editor’s Comment
There were several insurance companies who responded to
this challenge, so there should be many options for the
challenge inquirer. Now that we know there is insurance
available for this type of claim, we’ve asked an expert
to submit an article for the next issue that will
expound on this subject.
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