If you are involved in employment law – heck if you are involved in the work world and don’t have your head in the sand, playing ostrich – you know how important managers are when it comes to employee lawsuits. Virtually every employee lawsuit has a manager smack dab in the middle of it – what did the manager say? What did she do? Fail to do? They are almost always a player in litigation.
And let’s face it, managers are the company for purposes of employment law. What the manager said, the company said. What the manager did, the company did. And what the manager has notice of, the company has notice of.
When you are training your managers, and advising your clients, here are my top ten practical tips for managers. They are beyond basic harassment and discrimination training:
1. An employee can make a “complaint” without using any magic words.
This comes up in investigations all of the time. “But she didn’t say she was filing a complaint.” “No one said they were being harassed.” “She said he was just joking.” Train your managers that no one needs to use the secret password “complaint” in order to put the company on notice that there may be a harassment, discrimination or other problem. If what your managers hear should reasonably suggest to them that there is a violation of the law or a policy, they are on notice and so is the company. And they have to act.
2. Every time a manager prepares a performance evaluation, he is preparing an exhibit at trial.
Any performance evaluation will be evidence at trial. So what does this mean for your managers? First and foremost, they need to be honest in the evaluation. It’s human nature that most people don’t like delivering bad news. Grade inflation in performance evaluations is rampant. But if your managers aren’t honest, they get the “were you lying then, or are you lying now?” cross examination at trial. And the real truth is, it’s not fair to the employee to get dishonest feedback about their performance. How can they fix problems or improve if they aren’t told clearly what the problems are?
3. When a manager interviews applicants, any notes she writes down must be job related.
Managers need to be trained that they cannot make notes about any job applicant that are not related to the job, and they can’t make any notes about protected characteristics. Sounds like common sense right? Well, not everyone knows this. I had a case where hiring managers made notes like, “wants to start a family,” “raised by a single mother,” and “looks like a gangsta.” Seriously. I’ve also seen notes that may not be as jarring but open the door to negative interpretations, like “lacked energy” [for a candidate over 40], “not a good cultural fit” [minority candidate]. These kinds of comments can raise all sorts of questions about whether the hiring process is lawful or is instead using impermissible factors in the decision.
4. The time to deal with a problem employee is when he STARTS to become a problem.
I can’t tell you how many times I have done an investigation that involved an employee who had been causing disruption and problem in the workplace for years, and no one dealt with it until the problem blew up. Putting off this kind of management results in all kinds of problems – no documentation in the file, or a slew of documentation jammed in all before a termination, or made-up documentation. It kills morale to have employees getting away with bad behavior while your stellar performers plug away and wonder why they even bother. Big problems all around. Your managers have to know that they must address bad behavior when it happens, and take the proper steps to document what they’ve done.
5. Speaking of documentation . . .
Everyone expects there to be documentation in personnel files. And by everyone, I mean judges, juries, the employee, the guy on the street – everyone. If you don’t have it, it looks bad. And documentation should happen when it is supposed to – at the time of the event. Papering the file right before termination makes it look like you were out to get the person. Going back and creating documentation – even for events that really happened – is not only wrong and slimy, it will lose you your case. Having no documentation makes it look like you are either an incompetent manager, or you have something to hide.
6. Retaliation can happen, even where an employee’s underlying complaint has no foundation.
Retaliation is the number one successful employment law claim for a reason – it’s the easiest for an employee to bring and it doesn’t have to involve any actual discrimination or harassment (which are much harder to prove). All the employee has to show is that he or she made a complaint or took some other “protected action,” and then she suffered a termination, demotion or some other adverse action because of her complaint. That’s it. The underlying complaint could have no basis whatsoever, but if your managers react and retaliate, the employee has a claim. Your managers need to understand what kinds of reports are protected, and how to avoid retaliation after they’re made.
7. Workplace banter based on a protected class can result in successful harassment claims.
This can be true even if it’s between two employees who are both in the protected class, or if the complaining employee went along with the joking. The bottom line for your managers is that by tolerating this conduct from anyone, they are allowing a hostile environment to be established in your workplace. They have to intervene and tell people that joking about stuff like this is against the company’s policy and they have to knock it off. If it continues, they have to deal with it, document and discipline.
8. An incident of violence is the single worst thing that can happen in your workplace, and your managers need to take this stuff seriously.
Employment lawyers and consultants like me spend a lot of time advising clients about how to avoid litigation, but there’s no doubt that the worst thing that could possibly happen in any workplace is an incident of workplace violence. That’s why your managers need to know what to do when they hear threats, see alarming displays of anger or have any inkling that workplace violence is a possibility. You need to train your managers and employees that if they see something, they say something (Thanks TSA). You should have a violence policy and response plan in place and your managers need to know how to use them.
9. An “FMLA request” is likely to come to your managers first and they must know how to recognize it.
Managers are very frequently the first people employees talk to when they think they might need time off for health or family reasons. But I can’t tell you how many times I have had an investigation where a manager’s response is, “But she never said anything about FMLA,” or “I told him to go to HR.” Your managers don’t need to understand the intricacies of FMLA leave, but they must know what to do when an employee comes to them about needing time off for health or family reasons. “I’m having some health issues and I may need time off,” or “My mom had a stroke and I need time off to help her,” should trigger an Aha! moment for your managers. And sure, they should tell the employee to go to HR but they need to make sure this happens – either by walking the employee to HR, or by calling HR themselves.
10. If there is ever a lawsuit, a manager will be asked what kind of training they have had on employment law issues.
My HR colleagues get some push back from managers about training. “It’s boring, it’s a waste of time, I already know what to do.” The fact is that employment laws are changing all the time, not to mention different from state-to-state. Who knows how the DOMA ruling from the Supreme Court will play out across the states in terms of discrimination, harassment and other issues, for example? If your managers are ever deposed in a lawsuit, they will certainly be asked if they have had training on the relevant issues. They’ll be asked how long ago it was, how long the training lasted and what it covered. Training is important, and it gives your managers tools and resources to help them navigate the employment law issues they will face.