There are many topics for manager and supervisor training but, according to HR Advisor, these six are the keys for keeping your company out of court. Train on them first.
Why it’s a challenge: Supervisors and managers think they know the rules, but the rules are more complex than they think they are.
Typical manager/supervisor blunders:
“I won’t pay for unauthorized overtime.”
In most cases you must pay for all hours worked even if you forbid workers to work. You can discipline them for disobeying, but you have to pay them.
“Yeah, they grab the phone now and again when they’re home.”
If non-exempt workers are spending more than a de minimus amount of time answering business phone calls after work hours, they probably need to be paid.
“I’m not recalculating overtime just because I gave a little bonus at the end of the month.”
Overtime must be paid on the “regular rate” which includes many bonuses and other payments. If the bonuses are awarded after pay for the period has been made, you must recalculate and pay the additional amount.
Why it’s a problem: Most managers are uncomfortable, unprepared, and untrained in interviewing. They end up having a chat rather than an interview. They are likely to ask:
Do you plan to start a family soon?
When did you graduate from high school?
What sort of accent is that?
We usually hire young guys right out of college for that job.
All of these questions and many more are forbidden as they set the company up for a charge of discrimination. Managers may say, “Oh, I was just making conversation,” but courts will assume you asked the question for a reason, and what reason could there be other than discriminating?
Why it’s a challenge: Unfortunately, it’s natural for managers to feel upset when someone complains about their department or their management style. So they are likely to think:
He’s not getting away with going above my head—we’ll see about this.
I think she won’t get that raise and promotion after all.
And there’s a special problem with retaliation—juries really don’t like it. It seems so unfair for the big corporation to single out one employee or to be “out to get” an employee. In court, you’ll have to overcome that sympathy vote, and it’s not easy.
Of course, maybe whatever negative action you took against the employee was deserved and it’s “just a coincidence” that it happened two days after the employee filed a complaint. Unfortunately, even the least competent opposing attorney can fairly easily turn that coincidence into a convincing case.
Why it’s a problem: Appraisals are a problem because managers and supervisors are uncomfortable giving bad news or criticism, so they fail to clearly describe performance failures.
For example, they may say “satisfactory” when performance is anything but, secure in the knowledge that at their company “satisfactory” is a low mark. But it won’t seem low to a jury (“Just what did your signature mean here where you wrote ‘satisfactory’?”)
Work to clarify your performance appraisal system for managers and supervisors and, for sure, make sure that they are honest in their appraisals of individuals who are not performing up to standard. Those are the people who are likely to sue.
Why it’s a problem: Documentation a pain, it’s not an immediate issue, managers don’t know what to write, and no one’s checking to see whether it gets done.
When documentation shows a clear record of poor performance or poor behavior, and shows that an employee had ample opportunity to improve, companies can mount a strong defense to a lawsuit for discrimination or wrongful discharge, for example.
However, when documentation is scant, sloppy, or—worst case—nonexistent, defending yourself is nearly impossible. Unfortunately, juries expect that companies will be organized and orderly in the way that they conduct business. They assume that if there was something important to write down the manager would have written it.
Documentation that is written at the time of the event, and that is business-like (that is, signed, dated, formal) will be accepted. Documentation written after the fact, undated, unsigned, and messy will not.
And then there’s another kind of documentation—bad documentation, or “smoking gun.” For example: e-mail that says,
“He’s too old for this job; get me someone younger.”
“She’s just going to get pregnant on us, hire the guy instead.”
Or maybe not smoking gun level, but still potentially dangerous: A margin note on a resume, written just as a reminder, “Heavy black woman.”
Plaintiffs’ attorneys slaver when they see this kind of documentation.
What to do? Train, train, train. Give managers examples of what documentation should look like.
Why it’s a problem: It’s often done in haste, without thinking the ramifications through. It’s what most gets employees in a suing frame of mind.
Person fired for an offense for which there is poor or no documentation
Company executives give conflicting reasons for the termination
There is retaliation or a perception of retaliation, especially when the terminated employee has recently performed a protected act like making a wage and hour complaint or an EEOC complaint.
Person fired in a demeaning way in public.
Person fired for an offense that others have not been fired for, especially if the person terminated is a member of a protected class.
Again, managers and supervisors have to be trained. Probably the best training to give is this simple: If you are contemplating a termination, go to HR to discuss it before taking action. Yes, like most things in HR, the key to success is manager/supervisor training. But who has the budget and time to organize a full-blown training program?
Good news from Prestige… all of these topics (and many others) are available to clients at no additional cost through theUniversityofPrestige. For more information, contact Prestige.