News & Events

Don’t Be Your Employee’s Banker/Counselor/Doctor!

Employers are regularly characterized poorly in various media outlets. While there are those who deserve it, most don’t. Throughout the years, we have met, and worked with, some of the nicest employers, who genuinely want to do right by their employees. This is to be commended, no doubt. The world needs many more good employers to outweigh the bad.

Unfortunately, sometimes the “nice” employers take this desire to do right too far–to a level that is not recommended. This can result in employers crossing boundaries that they shouldn’t and put their business at risk for liability.

Ensuring that employees are paid properly and are given every right due them under the law is a must. To be a good employer, you must be focused on this part of managing employees. You also need to create a good environment with good working conditions, which should certainly include having a solid team that provides support and who generally treat each other well. To retain your employees and compete with your colleagues for good employees, employers must be competitive with providing good benefits, paid time off and so on. This includes mentoring, coaching, teaching and training.

What you shouldn’t do is go beyond these essentials and become the employee’s counselor, psychologist, medical doctor, act like a parent, or anything else beyond being a good, solid employer. While it can be instinctual to want to lend a helping hand, provide emotional support, or in some other way “be there” for an employee, it can wreak havoc on you and your business in the real world if you go too far.

We’re not suggesting you suddenly become a cold-blooded individual and completely disregard your employee’s needs. We are simply suggesting that you carefully manage your actions to ensure you’re not inadvertently creating problems for yourself or your business. Let’s look at some ways this can play out at your business and how you can handle them to minimize potential problems.

Pay Advances
Your long-term employee, who you love, has just come to you and asked for a pay advance. She has provided a very compelling story about why she’s short financially and needs income fast to help her through this hard time. She’s a good employee, and you have no reason to doubt her. Besides, it’s only two weeks’ worth of salary – can’t be that bad, right? You decide to give it to her. Unfortunately, before she can pay it all back, she quits. You’re mad because she quit and owes you money. How dare she after how good you’ve been to her?

This started off okay – good and trusting employee, not much money, long-term individual – you thought you were doing a good thing. But then, you get burned because the employee is leaving even while owing you money. This is where the nice aspect becomes a problem for you – how do you get the outstanding balance returned to you? Are you just out this money?

All too often, we find that employers believe the outstanding balance can be deducted from the employee’s final paycheck. This is a mistake. While there is no federal law prohibiting this type of deduction, it does put limitations on how much can be taken at any one time. The employee must always earn minimum wage for all hours worked, without exception, and so, even if you can deduct it, you may not get much, depending on how big the outstanding balance is.

State laws do impose restrictions on deductions that can prevent any amount being recovered. Some states simply do not allow this deduction at all (looking at you California). Some states require written authorization that must be signed by the employee at the time the advance was provided before a deduction can be taken. While other states require employers to obtain permission from the state Department of Labor before being able to manage outstanding balances through paycheck deductions.

While it’s nice to help someone out like this, you may find it’s not worth it in the long run. This money may simply be a loss to you depending on the state you’re in and how your employee decides to treat you.

Suspected/Known Alcohol Abuse
Your employee is coming in late, missing work, looks disheveled, and has been seen over indulging at a local bar on weeknights. You suspect, or maybe even truly know, that he does have an alcohol problem. While this is affecting work and needs to be corrected, you are more concerned with his wellbeing. If it weren’t for the problems that have been occurring, you otherwise like this person, feel like a friend to this person and only want him to get better. You know that firing him will not help his situation. Wouldn’t it be better to give him support to get treatment? Wouldn’t it be better to help him correct the problem and remain employed?

Unequivocally, I think everyone would answer “yes” to those questions. Understandably, no one wants to see someone battling the problem of alcoholism and would instinctively want to get that individual help. Sadly, only the person in that situation can make the choice to get help. No one else can do that for him.

Two things can happen in these situations if the employer decides to get involved with “fixing” the employee: One, the employee can react badly. If s/he doesn’t think there is a problem, the individual can get defensive, angry, feel insulted, or feel as though their privacy has been invaded and so on. Ultimately, this can create more problems than is intended by the employer who is just trying to be nice.

Second, employers can put themselves at risk for liability because alcoholism can be considered a disability. In fact, even just coming to the conclusion that someone is an alcoholic can be a “perceived disability.” Either way, this means the employee is now protected by certain laws, which, if not handled properly, could become problematic for the employer in terms of liability.

It is best, and we recommend, handling only the job-related issues with the employee. Is the employee having attendance issues? Address that. Is the employee’s appearance suffering? Address that. Manage the employee’s performance and how it is affecting their job and your business – not why the performance is below your standards. Why performance is poor is not your concern and, in some cases, can create more problems for you. Until, or unless, you are forced to deal with issues like alcoholism, focus your efforts on job-related and objective issues and nothing more. You’re not a trained counselor – don’t try to be one.

Suspected/Known Mental Illness
Directly or indirectly employees can make it known that they have depression, anxiety, or other mental illnesses. In some cases, this kind of information cannot be ignored by the employer. In other cases, it doesn’t have to become part of the employment relationship or managed by the employer. It really depends on the facts of the situation at hand.

Mental illnesses become the employer’s responsibility when the employee, either directly or indirectly, indicates that his/her performance is hindered by what is probably a disability (i.e. the mental illness). For example, the employee states that s/he cannot handle a certain job duty because of his/her anxiety. In this situation, it is best to get professional guidance on how to manage this appropriately and legally because certain laws exist in this area.

If performance is otherwise okay and there is no indication that the mental illness is impacting the employee’s job, then employers should leave it be and not get involved further. Do not ask questions. Do not inquire about prescription drug use (unless there is a job-related reason or safety concern). Do not talk to the employee about problems in his/her personal life that can be impacting the mental illness. Do not probe the employee to know more about the illness s/he is dealing with. And so on.

Much like alcoholism, blurring the lines between employer and counselor can create liability. There are laws in place that protect employees from having to share this information. There are laws in place that must be followed if someone has a true mental illness, which results in a disability, and needs an accommodation. If not properly followed, you can experience serious consequences if the employee chooses to make this an issue with proper government officials.

Knowing this kind of detail about your employees can always be used against you, even though you may be attempting to be nice. Let’s say you probe your employee about her anxiety. What is it? What is she doing about it? Does she need drugs? Is she taking those drugs? Then, after getting this information, somewhere down the line you decide to terminate this employee. Although the reason has nothing to do with the mental illness you talked to her about, the employee (and her attorney) can certainly make it appear as though it is. Unless you have the documentation to prove otherwise, this may be a losing (and costly) battle.

Don’t put yourself in this situation. Keep things professional. Be cognizant of the employer/employee boundary and don’t cross over it unless you have to and, when you’re forced to manage this situation, reach out to professionals to handle it properly.

Being an employer can be challenging. Sometimes it seems cruel because doing what’s right for your business may interfere with your ability to be someone’s friend, confidant, support person, etc. Sometimes following the laws means you have to keep your distance. While this is not a call for you to be mean, callous or completely disregard your employees and the situations that may impact them, it is important that you recognize what it means to do that, and what it means to cross those boundaries.

We wholeheartedly believe that keeping the employment relationship job-related, objective and professional is the best and safest approach for managing your employees as a whole. It’s hard for things to go wrong when you do that.