I was assisting a manager, Jim, with an interview when he asked the job candidate, who was female, “if she had children or had plans to have them.” In Jim’s mind, he felt it was job-related to ask questions about children because he had experienced challenges with one of his former employees who was late and had absenteeism problems, in part, related to her not having arranged sufficient childcare for her young children. What this manager did not realize is he put the company at risk of being sued for discrimination in their hiring practices, potentially violating Title VII of the Civil Rights Act, and the Pregnancy Discrimination Act.

Why We Care What Supervisors Say & Do

What supervisors say and do is binding on the organization, as they are legal representatives of the business. Their statements and actions may end up costing the company millions in lawsuits, fines and attorney fees.  The average lawsuit in 2010 was over $326,000 for discrimination related complaints. Not only are there legal risks, but supervisor actions and statements have strong impacts on employee engagement, morale, productivity, quality, service, sales, and profitability.

When to Be Most Careful

Anytime supervisors are involved in employment decisions, care must be taken to ensure they operate within the law. Employment decisions include, but are not limited to such things as: interviewing, hiring, training, appraisals, corrective action, terminations, pay, promotions, performance management, or coaching.

The following are other risky areas where supervisors need to handle things correctly:

  • Job Classifications: If supervisors are involved in determining if someone is exempt or non-exempt from the Fair Labor Standards Act (FLSA) or in determining independent contractors, care must be taken to ensure they follow the correct processes/laws.
  • Work Hours Tracking/Handling: Often leaders are involved in determining what work time is tracked and reported. They further influence if overtime hours are tracked and reported correctly. For example, if supervisors allow someone to work off the clock, with or without permission, they create risk of violating the
  • Leave of Absence/Family Leave/Disability Request Handling: Supervisors are the first line of defense where employees go to request time off or ask for reasonable accommodations related to medical challenges. Leaders must make sure they are not violating the Family Medical Leave Act, Worker’s Compensation Laws, or the American’s Disability
  • Response to Complaints: How leaders respond to employee complaints creates or eliminates risk for the company. For example, here’s a risky situation: The employee tells her supervisor, “Joe keeps asking her out and putting his arm on her shoulder.” The supervisor responds by saying, “That is just the way Joe is, go back to work and don’t worry about it.” Attorney’s love it when leaders react this way. Take all complaints seriously and involve professionals and senior leaders in these
  • Retaliation: How the leader treats and responds to employees who whistle-blow on legal violations, complains of harassment, or in some other way exercises a legal right, can create risk of a retaliation lawsuit. Most discrimination lawsuits nowadays include retaliation as part of the claim. Care must be taken to not treat employees differently or violate their rights after a complaint.

What Leaders Can’t Say or Do

Leaders are sure to get themselves and their company in trouble by making comments about any of the following topics or in some way implying they are included in employment decisions:

  • Age, religion, national origin, gender, skin color, pregnancy, race, or sexual preference
  • Health or comments about someone’s disability
  • Imply bias or prejudice
  • Promise or imply permanent employment
  • Statements or actions that imply retaliation
  • Inconsistent statements or treatment of employees

The following are risky leader behaviors:

  • Being unfair or inconsistent with employees
  • Making promises that are contrary to policy
  • Taking corrective action when someone is out on medical leave or disability
  • Not responding correctly to requests for medical leave or disability accommodations
  • Not acting immediately upon complaints
  • Not documenting coaching, corrective actions or discharges
  • Asking different interview questions from candidates for the same position
  • Making decisions using non-job-related information
  • Being biased or prejudice
  • Being dishonest
  • Inflating appraisals or performance feedback
  • Ignoring nonverbal signs they see in employees or not resolving conflict
  • Discharging someone on the spot
  • Allowing harassing behaviors
  • Talking bad about others
  • Being negative or not supporting senior management
  • Being “one of the gang” or trying to be liked
  • Being harsh or disrespectful (attacking)

How to Keep Leader Statements/Actions Legal

Leaders are generally pretty safe, if they keep all employment related decisions and statements job related. Certainly they should avoid the risky statements and actions covered in this article. In addition leaders should be trained and have clear guidelines.

Leader Training

Not only should leaders be trained in what they can and cannot say in a work environment, they should be trained in these key areas:

  • Employment laws that apply to them
  • Interviewing, selection, and hiring
  • New hire orientation
  • Handling corrective actions
  • Documentations
  • Conducting appraisals
  • Performance management and coaching
  • Conducting discharges
  • Responding to complaints
  • Resolving conflict
  • Employee relations, engagement, and reinforcement

Leader Guidelines – Handbook

Organizations go to great length to make sure they have clear policy guidelines for employees, but fall short when it comes to defining leader policies and procedures related to the above training topics. We recommend creating a leader handbook defining policy and procedures for the above training items.

Organizations cannot afford to assume leaders are skilled in employment related decisions and overall handling of people practices. They really are the true HR managers in organizations as they are more and more involved in key employment decisions/actions.

What leaders say and do creates legal risk or creates a positive, productive work environment. Invest in your leaders, making sure they are trained and skilled in working with your employees.

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