The world of human resources and employment law presents employers with what may seem to be unique problems on a regular basis. However, regardless of the exact nature of a problem, this article offers a seven-step protocol that HR professionals should follow in addressing and resolving day-to-day problems they may face.

1. Get the facts

Before making any decision, a human resources professional must dig and get the "true" facts that relate to the problem presented. Care must be taken to avoid hearsay or secondhand information and to get firsthand, credible information.

Fact-finding will require interviewing all witnesses and collecting any other information or documents that may be remotely relevant. Getting the "who, what, when, where and why" are critical to effective problem-solving.

2. Identify the issues

The second step in addressing any problem is to "tease out" the specific legal issues that are or may be presented by the particular set of facts. For example, a typical attendance problem could involve, among other things, issues with the Americans with Disabilities Act, Family and Medical Leave Act, Title VII or the Pregnancy Discrimination Act or even applicable state or local disability or leave laws.

You don't have to be a lawyer to identify all of the possible legal issues that may be presented, but it is difficult to assess the legal risks associated with a problem without some basic understanding of labor and employment law.

3. Check the relevant paperwork

Regardless of the specific nature of a problem, most employers will have some kind of written policy on the issue. Again, with the typical attendance problem, the employer may have policies relating to absenteeism and tardiness, reporting of absences, reasonable accommodations, modified or light duties, workers' compensation, short- or long-term disability pay or salary continuation, equal employment opportunity or other specific policies that must be considered.

Not only will these written policies give guidance for how employers should resolve such problems, they would also be sought in discovery if the matter blossoms into employment-related litigation.

In addition to just the employer's policies, other paperwork may be relevant to any given situation. For example, performance evaluations, past disciplinary actions, issues with other employees, unemployment paperwork or other documents may also be applicable.

4. Review the current processes

After collecting and reviewing the relevant paperwork, the next step in the protocol would be to review the employer's processes that have been used in the past in comparable situations. For example, using our typical attendance problem, you would want to review the process that the employer has used in the past for handling similar situations.

Over time, employers should adopt consistently-followed processes for important HR decisions such as screening applicants, conducting background checks, providing responses to reference checks, orienting employees, disciplining and discharging employees, granting leaves of absence, conducting workplace investigations, testing employees for banned substances, etc.

The more an employer can standardize these processes, the better the foundation or road map for addressing and successfully resolving issues that arise from time to time.

5. Consider mitigating facts

It seems that every employment situation has some facts that distinguish it from prior situations. Therefore, it is essential to consider all of the special, mitigating facts in any given situation.

For example, an employee may have just announced that she is pregnant or complained that she has been subjected to some form of harassment or discrimination. Or, the employee may have a 25-year, unblemished disciplinary record or be the highest-performing salesperson, or the employer may have just made an exception to the policy for someone in a different protected category.

A full evaluation of these mitigating factors will help to understand the risk profile of a given situation and may ultimately drive the decision that is made.

6. Consult with outside resources or "lifelines"

Every employer should have a bench of investigators, experts, consultants or lawyers with whom they consult before making decisions that might lead to employment litigation. Using our typical attendance problem, the employer may have a workers' compensation physician, occupational therapist, insurance broker, employment lawyer or other expert that would need to be consulted prior to making a decision.

Anticipating that such experts will be necessary in the future and building relationships with them in advance is helpful to building a foundation for solving problems as they arise.

7. Make the decision and document it

After following the preceding steps, ultimately the employer will make a decision.

Before getting back to business, the employer should make sure that the process and the decision are appropriately documented. Not only will documentation help the defense of any claims relating to a particular situation, but the documents and process will also inevitably become relevant to future decisions regarding similar issues.


By following this standard seven-step protocol, human resources professionals can systematically deal with, and hopefully resolve, many of the day-to-day problems that arise in the workplace.