An Ounce of Prevention

Discipline and dismissal decisions should follow written policies. “If you fire one person but not another for the same behavior, you may have a basis for a discrimination lawsuit,” Tarkow says. Written policies help workers and managers understand and play by the same rules; they also help managers treat a large group of individual workers consistently. “Employers should be consistent when administering and enforcing policies and procedures,” he says. “There’s no legal requirement to have a policy, but it’s a good employee-relations thing to let everyone know what the rules are.”

Written policies can state your position on harassment and misconduct. In addition, you can address an issue that many large companies have faced recently and specify your expectations regarding employee blogs. You’re within your rights to tell workers that they will be disciplined or fired for writing false and defamatory things about the company on their personal Web sites.

Policies should also include your expectations for appropriate dress and grooming, piercings, and tattoos. “The employer has the right to dictate the image it wants workers to portray to those who patronize the business,” Tarkow says.

An employee handbook can also explain drug and alcohol policies. You can’t fire an employee who uses tobacco, alcohol, or any other legal substances on their own time—Minnesota’s Lawful Consumables Act protects them. You can, however, state how you will deal with workers who come in to work drunk or high. “You need a policy that says, ‘We won’t tolerate people coming to work in an impaired condition,’” says Dayle Nolan, chair of the labor and employment department and a partner at the Bloomington-based law firm Larkin Hoffman.

Navigating the No-Match

No-match letters from the Social Security Administration inform an employer that the Social Security number it provided for an employee doesn’t match administration records. Mishandling these missives is a common problem for Minnesota employers. “The letter says not to take adverse action, but employers freak out anyway,” says Robert Metcalf, a partner with Metcalf, Kaspari, Howard, Engdahl & Lazarus, P.A., a law firm in Minneapolis. Concerned that they may have hired someone who is not legally allowed to work in the United States, some employers fire the workers in question. Others “immediately suspend people and say, ‘Don’t come back to work until this is straightened out,’” Metcalf says.

But “this is one of those rare cases where doing less actually works out better than doing more,” Metcalf says. There’s no need to fire or suspend anyone. In fact, an employer has no obligation to take any action or get resolution, though it’s advisable to tell affected employees that you’ve received a no-match letter. Employers who take punitive action may be breaking federal or state law, he adds.

Check your records to make sure that the mistake wasn’t yours. Some Social Security no-match letters reflect problems with immigration status, but others are the result of a transposed number or a name change that wasn’t reported to Social Security. Checking your records may also protect you from an IRS penalties, Metcalf says.