Employment Law

I recently did some hiking and other activities throughout the South Island of New Zealand. While kayaking, I noticed a mountainside, otherwise covered with trees, with a huge bare patch from the top all the way down to the water’s edge. A local resident explained that this was the result of a “tree avalanche.” She explained that the mountain’s surface consists of smooth rock, so tree roots do not burrow into the mountain itself. Rather, they become interwoven within a layer of peat and moss on the mountain’s surface. The area gets a lot of rain, and when the unstable foundation of peat, moss, and water no longer are able to cling to the mountainside under the weight of the trees, the trees give way, bringing with them all of the neighboring vegetation to which their roots are tethered, and everything in their path.

A few days later while hiking the Milford Track, I saw the effects of another tree avalanche.

The pile of trees and the void on the mountainside strike me as analogous to the fall-out from mass departures of employees. Employees connect with one another not through intertwined roots, of course, but through daily interactions at work, social media, and personal relationships outside of work. If employees do not have a meaningful connection to their employer, the foundation for retention can be as unstable as peat and moss on smooth rock in a rainy climate. When a frustrated co-worker leaves, other employees who were connected to that co-worker are at a greater risk of leaving too. The employer may find that it must fill a larger void than one would expect if the employees were more deeply rooted in the organization.

To illustrate, ask yourself: Have you ever had an employee leave for another job and soon thereafter successfully recruit several more of your employees to join him/her? Did you wonder why it was so easy?

Employers in several industries face current and anticipated shortages of qualified employees. The “National Summary – Employment and Wages” in the Federal Reserve’s July 2019 Beige Book references reports of “continued worker shortages across most sectors.” Talent retention may be critical to long term viability. Talent retention often depends on employee engagement. The more deeply rooted an employee is in the organization, the more likely he or she will stay, even when faced with adversity or the departure of a friendly co-worker.

There are countless views on the best way to improve employee retention. Offering salary and benefits competitive with those offered by similar employers in your industry and market often is critical. Other than that, what is “best” likely varies by employer. Below are a few examples of practices that I have found helpful, many of which can be implemented by employers regardless of size and financial resources.

Recruiting

Be up front about who you are and what you expect of the successful candidate. There are few more direct routes to a work relationship imploding than a person taking a job (and quitting a job to do so) based on a misunderstanding of their new role and/or company.

Embrace Diversity

We live in a complicated world. Different perspectives facilitate creative solutions to internal and external business challenges. In addition, there are many individuals who, because of gender, race, disability, religion, sexual orientation, socioeconomic background, or a variety of other reasons, have encountered discrimination or similar adversity. Perhaps overt, perhaps subtle, perhaps being around people who are making jokes or comments without realizing they are demeaning the listener, or perhaps just feeling like they are different than everyone else in the room. Being forced to navigate such situations can provide a person with unique strengths that can be of great value when facing a variety of business challenges. Moreover, learning from others’ experiences that are unlike anything one has experienced personally can be quite energizing.

Onboarding

Onboarding should be more than filling out forms and cursory orientation. Help new employees understand what is expected in order for them to succeed. Make a conscious effort to assimilate them to the team. If there is a pathway for advancement, provide initial information around the time of hire, and make this an ongoing discussion. It is easier to become engaged if you can envision your path forward.

Training

Provide regular training to help employees succeed in their current job and, if applicable, prepare for advancement. Think broadly about what each employee needs to be well-rounded. For example, I often train managers how to manage in compliance with applicable employment laws. This is not technical or clinical training in their area of expertise; rather, it is intended to help them feel more confident interviewing candidates and evaluating and managing their employees. Investing in employees’ futures fosters mutual commitment.

Encourage Cross Training and Teamwork

If you have been on a team in sports, business, the military, or some other setting, you likely understand the feeling of not wanting to let your teammates down and the thrill of successfully working together to achieve a common goal. Employees who embrace a team concept become invested in something greater than themselves, often leading to deeper engagement.

Performance Management

Have you ever received a recommendation to terminate an employee for poor performance, only to find there is no record of concerns ever being raised with the employee, either in a performance evaluation or separate counseling? There are, of course, situations where immediate termination makes sense. In many cases, however, a process of providing notice of concerns, clarifying expectations, explaining what will happen if expectations are not met, and offering to help may resolve the employer’s concern and likely will be viewed by employees as fair. A perception of fair treatment is conducive to talent retention.

Consider encouraging managers to address concerns as they arise, to explain what will happen if things don’t improve on a sustained basis, and to revisit the issue on formal performance evaluations intended to cover the time period in question. As part of your effort to make your concerns and intentions clear to the employee, consider building the following into your counseling form/record:

• Where did the incident occur?
• When did the incident occur?
• Who was involved?
• What happened?
• Explain how the employee has failed to meet expectations
  • Identify the expectation
  • Remind the employee of how he or she was made aware of the expectation
  • Explain how the employee has failed to meet the expectation
• Describe prior counseling/discipline
• Describe disciplinary action being taken at this time
• Explain expectations for the future
• Explain the consequences of failing to meet expectations
• Offer assistance
• Offer the employee an opportunity/space to make comments

If, following a reasonable opportunity to improve, the employee still does not show signs that meeting expectations on a sustained basis is in the cards, consider a transfer to a vacant position that might be a better fit, or part ways with dignity (see “Termination” below), keeping in mind at all times potential application of the ADA or other laws to the particular situation.

Response to Employee Complaints

I have had enough encounters with employees to understand that, when an employee reports a complaint, it is very important to the employee. Even if you fail to see why a complaint is a big deal, or you think the employee is over-reacting, hear the employee out. After all, you presumably want to be taken seriously when you report a concern about something. Moreover, even if you decide not to give the employee what he or she is asking for, explain your decision in a respectful manner. Although few people like to be told “no,” employees typically appreciate an environment where concerns are listened to, considered, and responded to in a respectful manner.

Compensation

Make every effort to provide equal pay for equal work. This is a growing area of litigation and legislation/regulation. That said, managing litigation risk probably is not the main concern when the business issue that you are trying to address is talent retention. When viewing pay through a talent retention lens, perhaps it is enough to ask yourself how you would react if you found out that you were paid less than a coworker of a different gender, race, etc. performing essentially the same type of work. If retention is your goal, be prepared to explain why an employee is paid less than similarly situated employees, because questions are more likely to arise in the coming years than in the past.

Benefits

Some employers are limited in available resources and cannot offer much in the way of benefits. Others have more flexibility. For those who have the resources, the following are examples of some desired benefits.

• Paid parental leave, treating fathers and mothers the same for “bonding” leave
• Assistance with student loan payments
• Education (internal and/or assistance with external) to help current employees position themselves to move up in the organization
• Flexible work schedules

If your workplace size and culture is conducive to doing so, consider asking your employees what benefits are important to them. You might be able to prioritize spending consistent with the employees’ wishes to help get the most out of your investment.

Ad Hoc Rewards

Recognizing extra effort with rewards such as a floating day off, discretionary bonus, gift card, bringing in breakfast or lunch, or something similar can mean a lot to employees. If nothing else, a verbal “Thank You” often goes a long way.

Termination

You cannot control how an employee reacts to a termination, but you can reduce the risk of negative gossip or social media posts among co-workers. Do your best to end relationships with dignity. Be honest about the reasons, and communicate them in a professional and respectful manner. If the employee escalates, don’t engage in kind. When preparing for likely scenarios at and immediately following the termination meeting (for example, gathering personal items), give some thought to how you would want it handled if you were the person being terminated. Someday, that might be the case.

Walk the Talk

Mission statements and policies are relatively meaningless if management does not follow them. For example, it is difficult to convince an employee that you are committed to a discrimination- and harassment-free workplace if the employee’s manager is routinely observed making sexist comments. Impress upon your management team the importance of leading by example.

Honor Your Word

If you tell employees that you are going to do something, do it. If you cannot come through because of a mistake or change in business conditions, explain to the employees once that becomes apparent to you. Employees might not like the result, but they will appreciate the explanation.

Explain Change

Many people fear change. Whether dealing with a change in policy, in a computer system or program, or in some other aspect of your business, it is natural for an employee to wonder what change means for his/her job and whether more change is coming. Anticipate anxiety and explain the reason for the change and what it means for the impacted employees.

Please keep in mind that the above are examples of practices intended to address not just retention, but also more broadly employee engagement. Engagement can be a key component of talent retention. As the picture from Lake Wanaka below shows, a well-nurtured tree can establish roots and thrive in a wide range of environments. I think the same largely holds true for well-nurtured employees.

(This post is not legal advice. Consider consulting with a lawyer about specific situations.)