Law Meets Psychology

Lane_Dora

by Dora Lane

We are seeing Northern Nevada build something that is larger than the sum of its parts. The region is growing an economic ecosystem that will sustain a wide range of businesses for years to come. But Nevada’s small businesses potentially face a wide range of potential litigation related to their employees.

One of the things I love about being an employment lawyer is the need to approach client problems from both the legal and “human element” perspectives. Let’s face it — sometimes litigation can be avoided by understanding human nature and motivation, and using a little common sense. Because of this, I enjoy reading psychology books (not to be confused with self-help books), and especially the ones bearing on organizational psychology.

My latest read was “The Gift of Fear” by Gavin de Becker. While the book has a far broader application, I was particularly intrigued by a chapter titled “Occupational Hazards,” in which Mr. de Becker discusses workplace safety issues and the roots of these issues. The chapter caught my attention because I found that many of the things I consider from a legal perspective are the same or very similar to the things Mr. de Becker analyzes from a psychological perspective in making workplace violence assessments.

For example, good hiring practices aimed at understanding who the applicant is as a person, what drives them, what makes them “tick,” and how they view their prior employment experiences are beneficial from both legal and psychological perspectives. From the legal end, hiring applicants with a sense of entitlement and inflated view of self- worth means they are not likely to respond well to performance management (or ultimately termination), which in turn may increase an employer’s risk of litigation. For these same reasons, the employee may also pose a workplace violence risk.

Lack of proper supervision and timely correction of performance issues is another danger zone from both legal and workplace violence perspectives. While the legal pitfalls resulting from lack of proper supervision are multiple, as one example, this may lead to lost opportunities for documenting an employee’s performance issues.

Such documentation is often key to successfully defending an employment discrimination lawsuit. According to Mr. de Becker, workplace violence issues may arise when supervisors give up on correcting the employee because it is easier to do so than confront the problem. The employee then may begin to feel treated differently and singled out based on a perception of potential violence. Mr. de Becker indicates that an employee who perceives that the employer believes him to be dangerous has a higher likelihood of acting out.

Another point I found important in Mr. de Becker’s book was that many employers who faced serious workplace safety issues were slow to fire employees who needed to be fired. According to Mr. de Becker, “[a] problem employee is easier to terminate before he makes a substantial emotional investment in the job[.]” From the legal perspective, retaining someone who is not meeting an employer’s legitimate business expectations may give rise to arguments that the employee’s performance issues were not as serious as the employer later states (because otherwise the employee would have been fired sooner). And, from an operational perspective, retaining a poor-performing employee may negatively impact morale.

“The Gift of Fear” makes many other excellent points and contains tips on how to interview applicants and for what traits and attitudes to look in applicants and employees. I very much enjoyed reading it.

Dora Lane is a partner with Holland & Hart in Reno, where she advises businesses on labor and employment issues. Since its inception in 1947, Holland & Hart’s approximately 500 lawyers have consistently been recognized by leading national and international peer and industry review organizations for innovation and dedication to the practice of law.

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