More than six months have passed since the Midwest began feeling the impact of the 2019 novel coronavirus. In the second week of March, dozens of states and local governments began enacting shelter-in-place orders and other restrictive measures. Flash forward two months and students, teachers and parents alike faced horrible disappointment as commencement ceremonies were postponed or cancelled. As of October 22, 2020, 8,378,569 cases and 222,157 deaths have been reported nationwide. While there is no clear end to the COVID crisis in sight, these trying times have already provided much in the way of lessons learned.

Employers have been on the frontline of the pandemic, constantly working to understand and implement new laws and regulations whilst keeping their businesses afloat. Classifying workers as essential or non-essential; setting up the workspace to be socially distant; determining leave eligibility for workers with the virus or those with preexisting conditions, children home from school, or a lack of public transportation. And all of this being done in the shadow of lurking agency enforcement actions. So, as the country transitions from reactive to proactive efforts while awaiting a potential resurgence in the coming months, what can employers take away from the past six months? This blog series will address four principle takeaways from the COVID pandemic and forward-looking strategies for employers.

Separating the wheat from the chaff.

The problem: Nothing draws out the true nature of an employee quite like a global pandemic. Some workers rose to the occasion and worked tirelessly to ensure the safety of their families and communities. On the other hand, some took advantage of remote work or limited supervision by watching Tiger King or baking a lot of bread.

What’s been done: Employers facing this spectrum of human behavior over the last several months have often felt like their hands were tied. How do you reward the hard work of your best employees when recognition lunches aren’t an option? Conversely, how do you prove Employee A spent three hours of his shift fruitlessly searching for toilet paper and Lysol wipes at stores across town? And so long as the work is getting done, does it matter?

One lesson which became glaringly apparent is that it is essential to have high-quality staff. Most employers will recognize the following situation or some variant thereof: you have this one employee who produces mid-level work and generally shows up on time, but has had a string of recent “illnesses” which happen to fall on Mondays and Fridays; you’re getting to the breaking point, but don’t feel like you have true grounds to fire him (and he’s got that family to support), so you let it continue for months, planning to address it at that next annual review. Well, when a pandemic strikes and this employee is suddenly missing deadlines and claiming his mother needs his live-in care following a COVID exposure, how are you supposed to react? Now, due to the FFCRA implications, you’re risking a discrimination complaint and investigation if you terminate him. And that doesn’t even account for the bad press when he takes to Facebook to complain about his firing “because he had to care for his poor, sick mother”—he of course will neglect to mention the months of unreliable work that preceded it. So, how can you avoid this HR and PR nightmare?

Moving forward: Do your best to hire quality employees, even during staffing shortages. Even in periods of low unemployment, you should never just hire the first person who meets the minimum qualifications. The current necessity of remote interviews can make this judgment call even more difficult, so designate someone to spearhead the hiring process for each position. If it is a critical position, consider working with a staffing company or headhunter—the return on investment will be worth it. Current estimates place the cost of training a new employee near $2,000. That investment is well worth it to onboard someone who fits with the vision and values of your organization and will be a boon to the bottom line. But hiring the wrong person can do far more damage than that initial $2,000. A bad fit can impact other employees’ productivity, morale, and retention. If the position is customer-facing, the fallout can be even more significant.

If you find yourself in the regrettable position of having hired a liability, let the pandemic be a lesson to document consistently and cut ties early when appropriate. Employers are often hesitant to put a performance problem in writing. First, there is the time required on the manager’s end to create and maintain such disciplinary files. Second, there is generally a sense that employees should be given the opportunity to improve without having negative notations in their file. This urge for leniency often does not serve the employer’s interests. It should instead be emphasized to employees that a note in their file is not the end of the world—it is simply there to document issues and opportunities for growth so that both the employee and employer can look back and see how far the employee has come (or not).

A company who responds to an agency investigation by saying the employee was terminated for poor performance without having any documentation to support that reasoning is in a very bad position. Documenting performance or attitude issues helps the employer in the long run by providing contemporaneous evidence of the problem. A failure to document can trip an employer up at the final stage under the McDonnell Douglas framework used in employment litigation. Under that analysis, the burden begins with the plaintiff to initially provide a prima facie case of discrimination, shifts to the employer to provide a non-discriminatory reason for the adverse employment action, and finally shifts back to the employee to prove the non-discriminatory motivation proffered by the employer is in fact a pretense. If the company has documented the problematic behavior well, it is highly unlikely a plaintiff will succeed at this final, critical step.

Sometimes, though, a well-papered file is not enough to save the day. If a worker is going to be a “bad apple” poisoning the rest of the employee barrel or is not motivated to work hard for the company, it is better to recognize that reality early and cut your losses. This eliminates the possibility of the bad attitude spreading to the rest of the workforce and prevents the situation described above, where a company fears firing a bad employee simply because of poor timing or optics.

This may also be a good time to reevaluate how many employees you really need. The adage of “quality over quantity” rings true when it comes to a solid, dependable workforce. If you have employees working one to two times per week, are they really necessary? Can that work be divvied up among the other employees—maybe even resolve a complaint amongst the others that they don’t receive enough hours? Obviously, you need enough staff to cover an illness (particularly in COVID times) or family emergency, but if there are extra people on your payroll that could subject you to state or federal employment laws (i.e. the 15-employee minimum for the Americans with Disabilities Act to apply), it may be time to eliminate unnecessary positions.

Staffing decisions are never easy, and a global pandemic only complicates the matter further. Look for the next three blogs in the series for more employment lessons learned from the COVID crisis, and don’t hesitate to reach out if you need help with an employment matter. Our attorneys in the Sioux City, Sioux Falls, and Omaha offices are here to assist you.



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