Legally Speaking: A practical approach to doing more with less

Thomas Clement MRA General Counsel
Thomas Clement, General Counsel, Michigan Retailers Association

By TOM CLEMENT, MRA General Counsel

A positive experience for your customers is always a top priority and a primary focus of day to day operations. With the difficulty employers are having finding qualified employees, ensuring a positive experience is tougher than ever. Studies show that negative interaction with staff is the most common customer complaint, placing ahead of issues directly affecting consumer finances such as billing and refunds. In order to maintain positive customer interactions, employers are having to get creative. Easier said than done when employee count is at an all-time low!

Retailers have always been creative, and post COVID-19 is no exception, with increased use of signage to make clear that staffing is low, self-check-out options and increased use of sales and giveaways to encourage customer patience. Equally as important is making sure that the customer has the best experience possible, despite short staffing. In order to do so, employers need to communicate clear expectations to employees while also being prepared to respond properly when employees fail to follow through.

A few days a week on the way home from work I frequent a store close to my home, usually to pick up a missing ingredient for dinner. My interactions at this store have always been positive and consistent. Every time I enter the store I’m greeted by an employee, usually the cashier. At least once during my visit I’m asked if I need any assistance. When I check out, I’m always asked if I have a rewards card and whether I found everything I was looking for. These occurrences are clearly the product of a well thought out store policy designed to ensure consistently positive customer experiences. Of course, this type of policy is not unique to my local store. I have similar experiences in many stores that I visit, but not all.

The best way to ensure a positive customer experience is to implement a written procedure designed to provide each customer with a similar experience. A written procedure will also leave your employees with no doubt as to what is expected of them and make it easier to address the issue if they come up short. Once you have established your procedure, broadcast it. Post it in every employee-only space, practice it, and see that it’s being put into practice consistently.

Even with a clear policy and thorough implementation, some employees will fail to follow through. As with all personnel matters, when this occurs the employer must address the issue in a way that both solves the problem and avoids any legal pitfalls.

In some ways the solution is simple. If an employee refuses to follow direction, they can be terminated and employers would be justified in doing so. Most employees are at-will employees and can be fired at any time and for any reason, with or without cause. In the circumstance of an employee who refuses to follow direction, for cause dismissal may be warranted whether they are an at-will employee or not. In today’s employment market, terminating the employee and further depleting your workforce may not be the answer.

Oftentimes, the best solution to a problem is the most practical one. In my past work with human resource departments, we would ask ourselves two questions. First, how do we quickly address the immediate problem, and then how do we correct the behavior. Unless the conduct was egregious or involved illegal conduct, termination wasn’t considered until practical approaches were exhausted.

Where an employee refuses to follow a written procedure, address the immediate problem by removing them from tasks that require following the procedure and re-assign them to another task. If there’s no other task, consider a short suspension. Then, talk to the employee in an effort to understand what the problem is. Perhaps the employee is extraordinarily shy with strangers and should never have been placed in a customer facing role to begin with. If the workplace has room for a non-customer facing employee, you may have an easy solution. What if the employee doesn’t understand the purpose of the procedure, or its importance. This may be an opportunity for a face-to-face explanation of why the procedure was put into place and a reminder that it should be followed whether they understand its purpose or not. Maybe the employee tells you that they think the procedure is dumb and they aren’t going to follow it. Now termination, or at a minimum, a corrective action plan, enters the picture.

Regardless of the result of your discussion, document it and have the employee acknowledge it. If they refuse, simply write “employee refused to acknowledge” on the form. A well-documented file in the face of an unlawful termination lawsuit has exponentially more value to a lawyer than trying to piece it together based on memory.

Practical troubleshooting is oftentimes the easiest and least time-consuming approach to a problem, usually yields the most positive outcome and is a good way to avoid any legal issues.