First for a Reason:  A New Year’s Resolution


As 2023 fades into 2024, I can’t help think about New Year’s resolutions.  How many times per week do I think I can get to the gym?  Shouldn’t I throw out all that leftover Christmas candy and cookies that is in my house, just tempting me?  It’s tough to make resolutions and even more tough to stick with them, and the most unpleasant things often fall down on my “to do” list.  But as a lawyer who sometimes works in the employment area, I want to urge you not to put off the unpleasant tasks that sometimes are involved in making decisions and taking actions with regard to your employees.  Make a New Year’s Resolution to be prompt and timely when it comes to employment issues.  Here’s why.

First, routine practices like conducting performance reviews can seem like pulling teeth (or more like having them pulled), but if things go off the rails with an employee, those routine reviews can be a lifesaver when it comes to documenting that you were counseling an employee on areas to improve.  North Carolina is what is called an at-will state, meaning you do not need a reason to fire an employee so long as you are not firing him or her for an illegal, discriminatory reason.  However, if your employee files for unemployment benefits, the Employment Security Commission is very employee-friendly.  You may have had a right to fire, but even the most egregious behavior by a former employee may not preclude getting unemployment benefits if you didn’t take the time to document and counsel the employee.

Second, if you reach the decision that an employee has irremediable problems, do not sit on it.  Letting a bad employee stay can seem like the kind and gentle thing to do, and it may seem like the thing to do right now when employees can be hard to come by. However, there are two significant risks of doing so.  Bad employees generally are unhappy employees, and they often can be the rotten apple that spoils the barrel.  Just as good attitudes are infectious, so are bad, and you don’t want to subject your good employees to that poison.  The even greater risk, however, is the bad employee who then has a complication in his or her life.  I have counseled clients who came to me about bad employees who needed to be fired, but in the meanwhile a husband had lost a job, a medical condition developed, or the bad employee became pregnant.  The development of complications doesn’t preclude you taking the action you need to, but it certainly complicates it.  It makes you wonder if now is the wrong time to terminate the employee, either because it would be inhuman or because it would look legally suspect.  Sure, I can help you demonstrate that you didn’t fire the person because she got pregnant, but wouldn’t life have been easier if your decision had been made earlier, avoiding even the suspicion that you are doing anything wrong.      

So, as you look over 2023 and look forward to 2024, make a commitment to deal with employment issues as they arise, not when they become a boiling pot about to bubble over.  And if questions arise along the way, call the Hotline.  We answer those questions, too.