I just read an article in HR Morning, 6 Common Manager Mistakes That Can Get Your Company Sued, by Jared Bilski, that offers great advice. Below is the article with my comments in italics.
What do employment attorneys see as the common thread that lands well-meaning employers in court time and time again? Costly mistakes by their front-line managers.
To safeguard your firm from these five common manager blunders cited by attorneys, have HR meet with all front-line managers and supervisors and remind them to avoid:
The Big 6
- Sloppy documentation. Managers’ documentation should never, ever seem subjective. It should always be written as if it could wind up in a jury’s hands.
JL: Document conversations about performance and conduct issues on the same day that the meeting takes place. If it is not possible to take notes during the meeting, write down your notes by the end of the day so that your memory about the details will be fresh. If the employee takes legal action against you or the company in the future, your written record and credibility can be called into doubt if you waited too long to record the events. All documentation of performance and conduct conversations with employees should include the date of the conversation, your name and title, and the employee’s name and title. This may sound obvious but it is not done consistently, in my experience.
- Inflated appraisals.Many managers avoid difficult conversations by inflating the performance ratings of employees. This can make it impossible to justify a discipline decision in court.
JL: Inflated evaluations give employees a false sense of security, deprive them of an opportunity to improve, and create a possible litigation risk for the company.
- Applying policies inconsistently.When managers don’t apply their policies to all employees, it leaves the company wide open to an array of discrimination suits. Another critical mistake in this area: Not knowing certain policies even exist.
JL: If you enforce a policy for one employee, but not for another, your company will lose if you are sued. Inconsistent enforcement opens the door for the employee’s attorney to allege discrimination,
- Being unaware of the law.It’s become a troubling trend in employment law cases: Front-line managers blatantly admit to not knowing about laws like the FMLA or the ADA. Managers need to be trained on the ins and outs of these critical employment laws.
JL: Your supervisors should know the following laws.
- Title VII of the Civil Rights Act covers an employer who has fifteen (15) or more employees and prohibits discrimination against any individual on the bases of race, religion, color, sex (including pregnancy and gender identity), sexual orientation, parental status, national origin, age, disability, family medical history or genetic information, political affiliation, military service, or any other non-merit based factor. The law also protects individuals from harassment in the workplace. Supervisors are to treat all employees respectfully, avoid unwanted/unwelcomed behavior that constitutes harassment, and cannot retaliate against an employee.
- The Fair Labor Standard Act (FLSA) establishes standards for minimum wage, overtime pay and child labor, and defines which employees are considered exempt and non-exempt. The law also addresses what work time needs to be paid, including waiting, on-call, training/meetings, and travel time, as well as rest periods, meals, and breaks. Supervisors must ensure that employees are paid properly in accordance with the law’s provisions and for all hours that they work (particularly overtime). In addition, supervisors must understand which employees are exempt and non-exempt and should work with HR before making changes to their employees’ essential duties, which could affect their exemption status.
- The Family and Medical Leave Act (FMLA) entitles employees who have worked at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. When employees request medical leave or time off to address medical issues, supervisors must refer them to HR. Supervisors also must listen for requests that would meet the FMLA criteria (such as references to a health condition or family member’s health condition) since employees don’t need to use the words “FMLA leave” to gain protection under the law. Supervisors are to maintain contact with employees on leave and remain informed of changes to their condition or leave, and communicate those changes to their HR department. Finally, supervisors also need to follow privacy, confidentiality, recordkeeping, and other FMLA-related responsibilities that their organization has in place.
- The Americans with Disabilities Act (ADA) prohibits discrimination based on a disability that substantially limits a major life activity. The law also requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer (“undue hardship”). Supervisors play a key role in the interactive process of discussing what accommodations may fit the individual. Supervisors must also address the day-to-day management and administration of employee accommodations (such as flexible schedules, assignment modifications, etc.).
- The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against anyone at least 40 years of age in hiring, promotions, wages, benefits or terminations. Supervisors must never take a person’s age or proximity to retirement into account when making employment decisions such as assignments, hiring, firing, pay, benefits, or promotions, training programs, and other terms and conditions of employment. Supervisors must never assume that older workers can no longer do a particular task or job, communicate in a way that implies bias, replace older workers with younger ones for illegitimate reasons, or discipline older workers more harshly.
- The Equal Pay Act (EPA) prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs that require substantially equal skill, effort and responsibility under similar working conditions. Although supervisors are often not responsible for deciding compensation, in collaboration with their HR department, supervisors should ensure that employees of both genders are paid equally if they are in the same job, and should take any complaints of pay discrimination to HR.
- The Occupational Safety and Health Act (OSHA) is the primary federal law which governs occupational health and safety in the workplace. It ensures that employers provide employees with a safe and healthy work environment free from recognized hazards, such as exposure to toxic chemicals, excessive noise levels, mechanical dangers, heat or cold stress, or unsanitary conditions. Supervisors must provide employees with a work environment that is free of recognized hazards that could cause serious physical harm, and also need to comply with occupational safety and health standards. Supervisors may also be responsible for ensuring that employees receive safety training, assessing hazards in the work area, determining the type of protective equipment needed, investigating incidents and inspecting equipment, and reporting all accidents and injuries that employees have at work.
- The Pregnancy Discrimination Act (PDA) prohibits sex discrimination on the basis of pregnancy or a pregnancy related condition. Women who are pregnant or affected by pregnancy-related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations. This law applies to employers with 15 or more employees. If an employer does not have a leave policy, female employees are entitled to take leave for a “reasonable period of time” for pregnancy and childbirth. Supervisors should treat pregnant employees the same as other employees with temporary disabilities on the basis of their ability or inability to work. This includes requests for accommodations in order to perform the essential duties of the job. For example, if you provide light duty for an employee who can’t lift boxes because of a bad back, you must make similar arrangements for a pregnant employee. Similar to other laws, supervisors should not discriminate against pregnant employees in terms of hiring, firing, compensation, training, benefits, and other terms and conditions of employment.
- The National Labor Relations Act (NLRA) defines the rights of employees and employers, including their right to collectively bargain and engage in concerted activities such as grievances, strikes, etc. for the purpose of collective bargaining or other mutual aid and protection. Supervisors are prohibited from taking adverse action against employees who engage in such activities, such as discrimination, retaliation, interference, or restraint.
- Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits discrimination against employees or applicants because of genetic information and it prohibits employers from using genetic information to make employment decisions. If supervisors inadvertently become aware of an employee’s family medical history or information about a medical condition in an employee’s family through the process of FMLA or other medical leave, this information cannot be used to discriminate against the employee. Under GINA, supervisors are also prohibited from harassing an employee or retaliating against an employee because of their genetic information.
5. Ignoring complaints.Granted, some employees complain incessantly. But to stay safe, each and every compliant about unfair treatment or harassment must be taken seriously and investigated.
JL: When you’ve investigated an employee’s complaint and reached a decision, let the employee know how it turned out. While certain details may need to be withheld, notifying the person of the general outcome of their complaint shows you care.
- Blatant rudeness.Sometimes there’s a fine line between being stern and being flat-out rude. But when managers err toward the latter, it can make employees think they disapprove of a specific protected trait — such as age, race or gender — and potentially lead to a discrimination lawsuit.
JL: Treating people with respect and understanding that your employees are your most important asset will help you mitigate risk.