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The Retail Employer

July 2006

The Hiring Process—Part Five

by David E. Nagle

The consequences of bad hiring can be significant: diminished productivity, lost opportunity costs (in time invested in training, supervision, and turnover, and the disruption, expense and uncertainty of litigation. Hiring is an investment, and skill in managing the hiring process must be acquired. Like all skills, it takes considerable training, effort and experience to develop, and a review of all of the legal considerations applicable to the hiring process would be incomplete even if we devoted the entire two day seminar to that topic. This article summarizes the author’s presentation to the Advanced Employment Issues Symposium conducted in Las Vegas. It focuses upon (a) the way in which organizing the hiring process can help reduce the risk of litigation, and (b) selected issues where legal considerations require particular attention. One step will be featured in each issue of the Retail Employer.

Commencing the Employment Relationship

It is critical that an employer secure a signed acknowledgment of the conditions of employment.

This document should be drafted by or with significant input from counsel. Do not let HR sensitivity interfere with this invaluable legal document. It can and must be blunt and unequivocal. To the extent that there is ever a challenge later on any of the terms included therein, the more direct the employer's language, the more meaningful the new hire's acknowledgment of it will be. Appropriate conditions of employment to be addressed:

  • The employment relationship is terminable at will

  • Obligation to comply with employer's policies and governing principles, e.g., integrity, ethical behavior, fiduciary duties, preservation of confidentiality

  • Restrictive covenants, if applicable, tailored to position

    • Non-competition

    • No solicitation

    • No raiding

    • Commitment not to use confidential information acquired through previous employment

    • All above should be drafted by or with counsel, taking into consideration the legitimacy of business interests to be protected, reasonableness of the duration, territorial restriction, and scope of prohibited conducts.

  • Commitment to arbitration, not litigation, for the resolution of disputes arising out of the employment relationship.

    • This provision should be written in such a manner as to constitute an agreement to arbitrate, to be enforced pursuant to the Federal Arbitration Act. The easiest and least expensive approach is for this provision to incorporate the rules of the American Arbitration Association. By doing so, there is no need for detail on procedure here, and no need for the employer to have a separate document that contains arbitration procedures. If employer has developed proprietary rules, or will utilize the rules of another Alternative Dispute Resolution service, do not incorporate them here.

    • The employer should consider including a similar provision in the application form, so that an agreement to arbitrate is obtained with respect to any claims that arise out of the process in the event that the individual is not hired.

  • Explanation of probationary period for new hires

    • This should not be a mere waiting period for benefits to begin, but a legitimate period during which an assessment is made of the new hire's ability and suitability for the position. There should be performance standards, based upon the job description, and measurement of the new hire's performance against these standards.

    • This is the stage where the supervisor takes full responsibility for the new hire, and either commits to the projected success of the individual, or documents the performance deficiencies that warrant termination at or before completion of the probationary period.

    • Must be aggressively-enforced. Supervisors must bear responsibility for identifying the standards against which the new hire will be measured, and for rigorously enforcing the standards. Supervisors must be held accountable in their own performance evaluations for any failure to fulfill these responsibilities.

This information was taken from an article by David E. Nagle of the LeClair Ryan law firm in Richmond.  He can be reached at (804) 343-4077, or dnagle@leclairryan.com.  The information originally appeared in an article he wrote for the Virginia Employment Law Letter, published monthly by M. Lee Smith Publishers, Inc.  For information on that publication, call 1-800-274-6774

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Employee Feedback using Positive Feedback

Getting better performance with positive reinforcement is the fastest and easiest way to motivate your employees. Another way to characterize this would be to call it “Catch your employees doing things right”. I know it sounds too simple and textbook but the funny thing is that it works!

Positive Reinforcement

Think of the last time your boss publicly complimented you. In particular how you felt and more importantly how you reacted towards your responsibilities. Whether said or unsaid employees are elated with the recognition and they try to do even better.

Get better performance with positive reinforcement.
Some basics:

  • Always praise in public
  • Provide feedback at once; do not allow too much time to elapse.
  • Follow the GET model listed below

GET Model

  • Give credit for work well done
  • Explain the importance of the specific result / behavior and explain “why”
  • Tell them “THANKS”

Explain “Why?”

When you say things like,” Good Job!” it is not effective. The point that is most often missed is the “Why”. Although it is important to follow all the steps, taking the time to say specifically why you were impressed and why it is important to you or the organization is critical. That is the part that reinforces the importance of the behavior / result. Frankly it is the part that is best remembered.

Try it, you will be pleasantly surprised!

This article is reprinted with permission of Mike Dunleavey, Executive Associate —Business Support Center—Retail Merchants Association.

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Learn to Lead: Rewards and Recognition

This series has explored how great leaders guide their employees to success on a consistent basis. Using the tools of feedback, trust and performance reviews is a great place to start, but how can employers motivate workers after these feats have been accomplished? Rewarding good performance is the final tool in any leader’s management toolbox.

Great leaders reward performance according to desired productivity levels. In other words, the quality of the recognition should coincide with the quality of work. Rewards need to be achievable but not easily attainable or else they run the risk of becoming meaningless. Employers should clearly state expectations for employees upon hiring and should reaffirm their expectations regularly. To prevent any confusion or misunderstanding, it is vital to explain rewards criteria to workers.

Getting creative with rewards helps keep costs low and employee morale high. Creative awards can be used along with traditional rewards such as bonuses, plaques and gift certificates. Here are some ideas for alternative rewards:

Time Off

Paid time off (PTO) is becoming increasingly prized by employees across the board. In fact, according to the Yankelovich Monitor, a comprehensive marketing research report, employees surveyed would take a pay cut for more time off. This reward is great for employees who value free time. Plus, this reward has the added bonus of employees returning to work refreshed and energized.

Recognition from the Supervisor

According to the National Association for Employee Recognition, employees strongly believe that recognition from supervisors improves morale and work productivity. Turn recognition into a reward by offering lunch with the supervisor or chief executive officer to show appreciation. This reward is great for employees who thrive on being in the spotlight.

Powers of Responsibility

Many employees believe that growing in their career is a great motivator. That is why increased responsibility is a terrific reward. But leaders should remember that there is a fine line between delegating to employees and dumping work on them. This reward should be used with career-oriented individuals.

Just Ask

Employers who aren’t sure what to offer individual employees should ask them. This method allows employees to provide some input on their incentives for outstanding work and is a great motivator because they are working toward a personal goal.

In the end, recognition can be as simple as a letter of appreciation from the supervisor or as elaborate as a paid vacation to Hawaii. Implementing or revitalizing a rewards program can keep high performing employees working hard and motivate others to excel as well. Apply these ideas to jump-start an awards program or refine an existing one to better recognize productive workers and weed out low performers.

This article is reprinted with permission of www.ExpressPersonnel.com . Contact Mr. Lars Nordin at Lars.Nordin@ExpressPersonnel.com if you would like to be added to their distribution list.

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