ADDITIONAL LABOR MANAGEMENT INFORMATION
Editor's Note: We were recently privileged to have Gregory Billikopf, an agricultural labor management advisor with the University of California, speak at the Utah Dairy Seminars in Richfield, Provo, and Logan. We believe everyone who attended got something useful out of his presentations. As a follow-up to his visit, Gregory suggested that the following article would be of interest to those who attended. Also included are a phone number and E-mail address for
those who might want to contact him, as well as the address of his web site on agricultural personnel management, which is a virtual treasure-chest of information on this subject. If you can't access this information and would like further information on the subject, please contact Allen Young at (435) 797-3763 or E-mail at email@example.com.
No ifs, ands or buts ...
SUSPENSION SHOULD PRECEDE EMPLOYEE TERMINATION
Gregory Encina Billikopf
University of California
You are ready to fire that employee. But wait. Not so fast. You may be able to avoid embarrassment as well as the cost of a wrongful termination suit by suspending him first.
Clear cut cases
Even if you are absolutely sure that you want to fire an employee, suspend him first. Take for instance, the vineyard worker you caught filling the foreman's gas tank with water after the two had a confrontation. Or, the dairy employee who missed two days-- without even notifying you--and now shows up intoxicated. Think of the clearest cut case where a person really
deserved to be terminated on the spot.
Even then, first suspend the employee for two or three days without pay. At that time, calmly inform the worker that he may be terminated, but will be notified as to a final decision when he reports back to work. When the employee returns to work, hand him a paycheck--California's Labor Code (Section 201) requires employers to immediately pay workers that are terminated. This final check should be for all wages owed, including reporting-time pay and vacation pay.
Reporting-time pay consists of half of a regular day's pay. However, employees need to be compensated for at least two hours and for no more than four hours when they report to work and you have no work for them.
In the event the farmer is sued for wrongful termination, judges, arbitrators and members of the jury will give the employer credit for not having terminated the employee in the anger of the moment.
In a swine operation a farmer justifiably fired the worker. The herd manager, however, told the worker that he had to finish the day because he was desperately needed. When one of the farmer's sons found out what had happened, he unfired the worker altogether. Had the employee been suspended instead, all involved could have met together and made a decision with a united front.
A dairy farm manager ended up re-hiring an irresponsible employee after asking for legal advice, and finding that he had not terminated the employee in a legally graceful manner. Even worse off is the employer who is forced to re-hire and pay back wages to a terminated employee.
Get legal advice
A few days suspension gives the farmer time to call a labor attorney and review the case together. The attorney may be able to point out a crucially missing step--or a key factor--that may influence how best to proceed. For instance, the employee may have recently filed a Worker's Compensation claim and still be out with the injury. The employee may belong to a "protected" class. The employee may have worked for the farming enterprise for a long time, and the reason for termination may appear weak. The farmer may have not have told the employee of his poor performance. The most frequent missing detail may come in the form of a farmer who although she has told the employee where improvement was needed, failed to tell him--in writing-- the consequences for not improving.
A good labor attorney, like a good physician, will know what questions to ask in determining what course to take. The attorney's advice, however, will only be as good as the details provided. Any unusual circumstances should be communicated to the attorney. Apparently insignificant matters may make an important difference.
In most cases, employees who are not performing acceptably can be terminated. It just may take a little longer to do so, if certain steps have not been followed.
If you decide not to terminate the employee when he returns from suspension, the employee needs to be given a written notice outlining expected areas of improvement as well as consequences for not doing so. A suspension also gives an employee a lot of time to think and to evaluate whether she wants to re-commit herself to the job.
Some have suggested that even a short suspension with pay can be effective. This is a fine idea for workers with an excellent past record who have the skills, knowledge, and ability to perform. The idea is to ask the employee, this time directly, to take a hard look at whether or not he wants to continue to work for the farm enterprise.
In a properly conducted disciplinary and termination process most employees feel that they have terminated themselves, rather than they have been terminated by the farmer. The extra time and effort that a suspension involves is well worth it in terms of peace of mind.