Why Companies are Falling into the Management Lawsuit Trap

 

News headlines continue to show there are a myriad of ways managers set themselves for lawsuits. Small and Many Big Companies Are Ripe for EEOC Complaints.

In 2011, AT&T was forced to settle an age-bias lawsuit. Capri Home Care was sued for alleged pregnancy discrimination. American Laser Centers settled an EEOC lawsuit over sexual harassment. Bass Pro Shows Companies was accused of worker reprisals.

The majority of lawsuits targeting management usually stem from a half dozen poor practices.

They include:

1. Adherence to policies and procedures. Time and again, businesses are sued because managers fail to comply with company policy manuals. Principals should always review policy manuals with managers, and get a signed receipt indicating that they understand policies. (Yes, any manager who strays from policy should be disciplined.) Only then, the managers should review the handbook with non-exempt staff.
2. Following discrimination and harassment policies. Periodically remind managers to be diligent to prevent discrimination and harassment in the workplace. Their employment status will be affected if they fail to adhere to policies, or if they to act professionally should policy violations occur.
3. Poor management of employee problems. Make certain managers know how to respond – not react in a knee-jerk fashion to employee problems. That means thinking about how to respond in all situations. Typical worker problems include attendance, alcoholism drug use, and insubordination.
4. Retaliation or the appearance of being retaliatory. For example, courts frown on transfers if they look like a demotion. It looks suspicious if an employee suddenly receives an unsatisfactory performance appraisal or is not treated equally like other workers.
5. Terminations. Courts look to make certain terminations are handled well legally, and with civility and fairness. Here are 3 Key Human Resources Questions in Terminating Workers.
6. Family and Medical Leave Act (FMLA). Typical problems result from FMLA misunderstandings over attendance policy, eligibility, notice requirements and worker reinstatement.

For more strategies, here are 21 Quick Tips to Avoid the Dark Side of Management, and How to avoid EEOC Discrimination Suits.

From the Coach’s Corner, here are the 12 Errors to Avoid in Evaluations.

“Good management consists in showing average people how to do the work of superior people.”
-John D. Rockefeller

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Columnist Terry Corbell is also a business-performance consultant and profit professional. Click here to see his management services (many are available online). For a complimentary chat about your business situation or to schedule Terry Corbell as a speaker, why don’t you contact him today?

Many Big Companies Ripe for EEOC Complaints

 

Sept. 2, 2011

Despite all the court cases, warnings and complaints filed at the Equal Employment Opportunity Commission, a new study shows big companies are guilty of favoritism in their promotion practices.

It’s true that certain people are identified and groomed for promotion. But a 2011 study by Georgetown University’s McDonough School of Business would indicate large companies need to be more sophisticated in their human resources programs.

My sense is that they’re leaving themselves wide open for legal action.

Ninety-two percent of the surveyed senior executives say they’ve witnessed favoritism. Eighty-four percent say they’ve seen it at their companies. But only 23 percent confess using the practice.

Research firm Penn Schoen Berland (PSB) conducted study headed by PSB’s Jonathan Gardner, who is also a grad student at the university.

“This study confirms what many have suspected – that favoritism plays a much greater role in employee advancement than companies normally portray,” Gardner said. “I hope this study will help us acknowledge the prevalence of favoritism in employee promotions so that we can find ways to better understand the role it plays.”

According to the school, 29 percent admitted they only considered one candidate in their last promotion of a person.

“When more than one candidate was considered, 56 percent said they already knew who they wanted to promote before deliberations,” said the school. “Not surprisingly, of that group, nearly all – 96 percent – report promoting the pre-selected individual.”

What were the reasons given for promoting an employee?

The top five answers:

• Has excelled in current position
• Leadership potential
• Job-related skills
• Strong interpersonal skills
• History of strong performance reviews

Gardner shows some understanding of the typical executive’s dilemmas.

“Employees should keep in mind,” said Gardner, “that despite widespread favoritism, objective measures such as past performance, leadership potential, and job-related skills are viewed as key criteria by those in charge of promotion decisions, and it is important for young workers to focus their efforts on these factors that are well within their control.”

In our litigious society, however, the risks are great. Not to mention employee morale if word gets out in the rumor mill.

Here’s a basic checklist – what to do if an EEOC complaint is filed:

1. Be comprehensive with detailed, strategic responses.
2. Have a paper trail for your HR decisions. Documentation is critical.
3. Make certain your responses are accurate.
4. Show your track record’s consistency in fair treatment of employees.
5. Respectfully education the EEOC about your business – don’t assume EEOC employees understand your actions.
6. Act with confidentiality. Demonstrate your respect for individuals’ privacy.
7. Respond promptly. Don’t delay and ask for extensions of your appeal.
8. Have good lawyer, and seek advice.
9. Assuming you have insurance including employment-practices liability coverage, keep your carrier in the loop.
10. Keep all relevant documentation.

So beware.

From the Coach’s Corner, here’s How to avoid EEOC Discrimination Suits.

“Discrimination is a disease.”
-Roger Staubach

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Terry Corbell is a business-performance consultant and profit professional. Click here to see his management services (many are available online). For a complimentary chat about your business situation or to schedule Terry Corbell as a speaker, why don’t you contact him today?

 

21 Quick Tips to Avoid the Dark Side of Management

Plus, the 4 Ways New Managers Misfire in Communication

 

News headlines from Seattle to New York are cause for some serious head slapping. The U.S. Equal Employment Opportunity Commission (EEOC) continues to be inundated with worker complaints.

Even the U.S. State Department has issued a critical report of an ambassador, a Seattle businesswoman who was a prolific fundraiser for the Obama election campaign. She was accused of countless personality conflicts, verbally abusing employees, and dubious liquor and travel expenses.

It’s hard to believe countless numbers of managers in the public and private sectors continue to generate complaints and legal action.

Consider a mere sample of headlines:

‘Abusive’ ambassador says she filed rebuttal EEOC Healthcare Bias Complaints on the Rise Pacific Seafood To Pay $85K To Settle Retaliation Suit EEOC sues Amtrak for gender discrimination Pregnant employee claims discrimination by Pizza Hut In 2010, nearly 100,000 charges – 99,922 to be exact – were filed with the EEOC. That’s just the tip of the iceberg. What about the issues employees haven’t filed with the EEOC? What about the incidents you see every day at your place of employment? It’s true that not all complaints are valid. Many aren’t. Some originate from mere office politics. Managing employees is difficult. So the purpose here is not to indict the managers who are professional – assiduous, empathetic, good motivators and make sure their workplace stays out of legal trouble. But the fact remains these headlines are indicators that many managers fail to perform their jobs. Another way to put it – managerial dysfunction. That’s often the case because a significant number of workers are mistakenly promoted into management. You’ve heard of The Peter Principle, right? People rise to their level of incompetence. University of Southern California professor and author Laurence J. Peter also theorized about what he called “percussive sublimation.” That’s when people are promoted to get them out of the way of high-performing workers. When, actually, they should be demoted to their level of competence. So many people don’t receive adequate professional management training or they don’t receive any at all. So what can be done? My prescription is lots of professional training and self study. Consider there are basic shortcomings of many new managers. They simply don’t understand human nature. There are four ways new managers misfire in communication, including: They don’t correctly address attitude problems among their employees. They don’t adequately follow organization policies or direction from their supervisors. Because of a lack of authority with peer managers, many fail to use persuasive tactics to resolve problems. Open communication is not used to issue directives to their staff – employees perform better when directives are explained well. Again, many obstacles to organization success could be avoided if managers were better students of human nature. They must learn to deal with know-it-all workers; shy people who aren’t assertive even if they have good ideas; or motivate workers who only view their tasks at the end of their nose and simply follow orders – no matter what the consequences. And managers need good listening skills, especially for the majority employees who are competent with good ideas and performance. The best managers create a positive environment and encourage the expression of ideas from their workers. In disagreements, they need to be assertive in managing disagreements.   Here are 21 quick tips: Keep an open mind. Don’t think or act like you know everything. If you’re a new manager, don’t make changes right away unless it’s critical to do so.   Practice listening. Know your employees. Get to know your staff. Walk the floor a couple of times a day. Engage your staff. Ask for their ideas. Communicate effectively to avoid unwelcome surprises. An added benefit – you’ll hear about problems early before it’s too late. Be approachable. Don’t flaunt your position. When an employee asks to talk with you. Let the person talk or set a more convenient time for you both. When the discuss starts, put the pen down. Show good listening skills. Maintain good eye contact.   Avoid the over-use of the pronoun, “I.” Look for opportunities to use the word, “we.” That goes for meetings and written communication. Try never to start a paragraph using “I.”  Recognize employee productivity. Always give due-credit for performance. Be assertive. Don’t procrastinate on threats to your staff or the organization. Deal effectively with politics. For every problem, anticipate a multitude of solutions. They might not all work, but be resourceful. Keep your ego in check. Understand the difference between being assertive vs. aggressive. Don’t be thin-skinned and don’t let fear motivate your actions. Remember an acronym for FEAR is frantic effort to avoid responsibility.  Timing and mode of communication are important. Know the time when it’s best to communicate matters and how to do it. Personal meetings are more productive than e-mails on introducing critical topics.   Respect your employees. Be fair.  Don’t under-estimate them. For example, if you have a cash-flow issue, talk with them about it and discuss options. Eliminate all possibility of discrimination.  Don’t confuse process with outcomes. Explain what’s going on without making rash promises you can’t keep, especially where it applies to remuneration. Budget your time. That goes for your employees in listening and delegation. If you’re bogged down in clerical work remember you are an unnecessarily expensive and wasteful manager. And budget your time effectively for interfacing with your boss.  Use diplomacy. Watch what you say and how you say it. Measure your words correctly with employees. Bosses don’t like to be told what to do. If you have suggestions about a sensitive subject to discuss with your boss, use phrases like “You might wish to consider.” Flaunt your human-mess. Take responsibility. If you should make a mistake flaunt it. Your boss and employees will respect your honesty. Make amends wherever appropriate ASAP. Don’t be a milquetoast. Remember people-pleasers are ineffective managers.  Consider the welfare of the organization to be paramount. Don’t let one or two employees disrupt the team.  Lead by example. Practice what you preach in values and productivity. Mentor and demonstrate the paths you want employees to take in their work. Show how it’s important to the bottom line.  Motivate with autonomy. Instead of micromanaging, explain parameters and let your employees make decisions and take actions.  Maintain confidences. Maintaining confidentiality where appropriate shows wisdom. If pointedly asked, say something like “I’m not free to comment now.”  Do your footwork before making controversial decisions. Good managers market important decisions and changes, personally, in a one-on-one basis. Remember many employees are apprehensive about change. Anticipate who will be the obstinate employees and their reasons. Your organization won’t be rife with rumors and other morale issues. Continually check your productivity. Regular assessments of your performance and your employees matter – for the welfare of your organization.  If you have profit and loss responsibilties, stay on top of financials. Understand your break-even analysis. Be a student of how to grow profits and your company’s assets. Keep a positive work-and-life balance. Otherwise, both your personal and professional lives will suffer. Encourage your employees to do the same. Treat your employees as assets – as human and intellectual capital – with respect and professionalism. You’ll avoid the dark side of management and you will be successful. From the Coach’s Corner, here is additional reading: Human Resources – Slow Motion Gets You There Faster Boss Checklist: 16 Strategies for a Competitive Edge Human Resources – Profit By Not Letting Your Stars Become Free Agents Leadership Strategies to Profit from Employee Respect How to avoid EEOC Discrimination Suits Human Resources: 12 Errors to Avoid in Evaluations Strategies for Productive Meetings to Improve Your Company’s Performance

How To Deal With An Oppressive Employer

 

In the private and public sectors, organizational performance is strong when employees are confident. In turn, employees perform well and they are confident in their employers if the organization is competitive. That can only come if an organization is well-managed, and employees are confident about their future and are treated well.

So it was disturbing when someone recently asked me  what to do about an abusive boss. The degreed employee had just received a negative -performance appraisal, and is a white-collar professional over 40 years old. The appraisal threatened a coaching and counseling session in 90 days as a precursor to being terminated.

So I asked some open-ended questions to get the person to open up to me. The person mentioned examples of increasing hostility from the boss, micro-management, uneven treatment compared to coworkers, and reduced duties after trying to speak up. Also cited were cases of other employees who were forced out after long tenures.

Among my conclusions: The boss was guilty of age discrimination, harassment and retaliation.

Even in the face of such bad management, my personal philosophy is to try to avoid calling attorneys or the Equal Employment Opportunity Commission (EEOC). The self-esteem benefits from triumphing over such adversities are worth it.  So, before calling the EEOC, I suggested an alternative.

My counsel included these measures:

• Respond in writing to the appraisal after doing some research. (Research should include best-practices management, related-EEOC definitions on discrimination and harassment, the organization’s employee handbook and the organization’s published management principles.)
• Then compare the supervisor’s behavior with the best-practices management, EEOC standards, and the organization’s employee handbook and management principles .
• Document and compile a list of management misbehavior – try to reach the magic number of six allegations of poor management.
• Write a response using five steps in “How To Assertively Voice  A Complaint.”

The five steps:

1. Ask for a meeting and suggest two options (e.g. “How about Monday at 10 or Wednesday at 2?” ).  It’s a good sign if the person selects the first option. Either the boss is a decent person or anxious to find out what’s on the employee’s mind.
2. At the start of the meeting, give the person two strokes – two valid compliments. Even an abusive boss has two qualities worth mentioning. The extreme example I use in HR teamwork classes is Adolph Hitler, the world’s most notorious madman. Even Hitler could have been complimented for his cunning and for being an excellent orator, right? I suggested to the employee  –  in the event two qualities didn’t come to mind – then, the employee is culpable, too, because of  a negative or fearful attitude. Negative or fearful attitudes are manifested in poor work performance.  (What, if any of the supervisor’s criticism is valid?)
3. Hand the supervisor the written response that includes steps 2-5 , starting with the compliments and mention how and why the boss  makes the employee feel uncomfortable. NOTE: Here’s where you insert your six complaints. (e.g. “I feel uncomfortable when…”).
4. Then, tell the person what you want (e.g. “What I want is…”)
5. Get a contract or an agreement by asking a simple question (e.g. “Are you willing to…?”). Then, pause and wait for the person to answer. If the person agrees, shake hands and watch for improvement. If the person says no, don’t make any threats but politely leave and head for the telephone to call the EEOC. Remember in adversarial situations,  never  give away your power by telegraphing your next move.

In the three decades I have used this assertive process – or taught it to others – it has always worked. True to form, the employee received a re-worded employee appraisal with the threat of termination deleted.

From the Coach’s Corner, here are two resources: 

• If you’re lacking in confidence in business or other relationships, try reading an excellent book on how to be assertive. It’s a best-seller entitled, “When I say no, I feel guilty,” by Dr. Manuel Smith.
• If you’re a manager and want to avoid employee problems, consider the readings in the HR section of this site, including: “Managers Be Careful – EEOC Discrimination Suits Are Skyrocketing.”

How to avoid EEOC Discrimination Suits

 

Updated Feb. 7, 2012

If you’re an out-of-work attorney, the good news is that the Equal Employment Opportunity Commission (EEOC) is on a hiring binge. The EEOC’s Web site also indicates the agency is recruiting for investigators to handle employment discrimination complaints. Of course, mediators, administrative support, managers, and IT personnel are also in demand.

That means employment discrimination complaints are sky-high. In recent years, for example, Boeing’s Mesa, Arizona operation settled two sexual harassment cases for $380,000. A KFC franchisee was forced to pay $1.1 million in a sexual harassment case involving 19 female employees.

Here’s a look at years 2007 through 2009:

In late 2007, I wrote about several respected companies caught in the crosshairs of the EEOC for alleged violation of federal law. It was hard to believe they included Nordstrom, the American Ballet Theatre, Delphi and Bloomberg.

In 2010, EEOC-related cases resulted in massive monetary damages totaling an aggregate $54.8 million.

In 2008, the EEOC charged 95,402 companies with employment violations. The monetary damages totaled $102.2 million.

In 2009, there was a slight drop in EEOC charge statistics – 93,277 cases, but the early indication is that the aggregate amount will prove to be higher when the cases are finally settled.

Among all the categories in 2009, retaliation cases comprised 36 percent of the total – a slight increase from 2008 when retaliation cases were 34.3 percent.

That’s a sad commentary for businesses and public agencies that are large enough for a human resources department. Increasingly, HR departments appear to be supporting and implementing such retaliation. As a Biz Coach, I’ve heard from employees seeking tips from abusive employers in both the private and public sectors.

And that’s just the federal cases. State courts across the nation are filled with discrimination cases, too, because complainants want to avoid the federal caps on monetary damages.

Historically, high-profile harassment cases are a catalyst for additional complaints by other workers. EEOC cases also lead to declining morale, retention problems and poor productivity, which are also costly.

While a federal-agency investigation doesn’t indicate a company is guilty of discrimination, there are several measures that will insure success. The first step in fighting lawsuit abuse is risk management.

Veteran managers are guilty and so are new managers. Here are strategies to succeed as a new manager.

Here are the six basics for micro-companies to remember:

1. Get a mentor and join your local chamber of commerce.
2. Consider outsourcing your payroll.
3. Implement benefits and retirement plans.
4. Create a policy and procedures handbook (job descriptions, hiring, appraisals, compensation, firing and operations).
5. Stay aware of all employment laws.
6. Document everything.

For larger companies, every company’s situation is different, but in general there are 13 basics to avoid EEOC headaches. In my experience, it’s important to learn how and why complaints are filed, and to treat employees with respect and confidentiality.

Law firms have asked my company to help their clients after U.S. District Court actions. In one case, I was asked to implement a wage and compensation plan after a trucking firm inadvertently violated federal laws. A well-meaning technology employer was fined for comments in an inappropriate interview-process and I was asked to conduct sexual harassment training.

Both companies were heavily fined and their lawyers cost even more. One company is no longer in business. So, it’s vital to know the proactive steps to eliminate workplace discrimination and harassment, and the practical benefits to you of equal opportunities for employees.

The key is to start where the proverbial tire meets the road – when employees are hired.

Here are 13 strategies:

Fully understand the required skillsets. Naturally, first decide what each job requires. When a person leaves, decide what additional qualities you want in the job description. While experience and skills are an important consideration for meeting your requirements, there are several other considerations including hiring for attitude and professional appearance and aptitude for teamwork and customer service.

Review your application process. The appearance of discrimination can be unfortunate opportunities for applicants or the EEOC to file complaints regarding your hiring decisions. Review your interview checklist questions and employment applications so that you only inquire about applicants’ talent for the job and availability for attendance according to your required work hours.

When anyone requests an application stay safe by providing it, but don’t do it selectively to avoid the appearance of discrimination. Don’t set deadlines for applicants to apply unless you strictly adhere to them.

Interviewing. When you interview, ask open-ended questions to get the applicant to talk about any issues related to the job. Closed-ended answers in which an applicant answers with a “yes” or “no” won’t be productive. You’ll want to know about the person’s attitudes, expectations and values. A skilled interviewer is careful about commenting on an applicant’s answers.

Background checks. A background check is critical. If you ask questions of a reference or former employer, make certain to take the same precautions as you do with the applicant. If you utilize credit reports, adhere to the provisos in the Fair Credit Reporting Act.

Making an offer. Put your offer in writing to successful applicants, but stipulate that you’re an at-will employer. State the salary in weekly or monthly amounts – so that longtime employment tenure is not implied – and whether there are any contingencies, such pre-employment medical exams. Hopefully, you have highly trained interviewers, but make clear that the letter is your company’s last word in employment and that it supersedes any other representations by interviewers.

Drug testing is often valuable for screening purposes. Applicants with a drug history will sometimes withdraw their applications, but the test is effective for those who don’t. In my experience, drug users are the most dishonest employees – at a much higher rate than even alcoholics.

Insuring success. Make full use of your probationary period. Assuming an employee adequately demonstrates technical skills, remember the No. 1 employer-complaint about new hires is their lack of soft skills – a poor attitude and inability to communicate effectively with coworkers and customers. Appraise them accordingly.

Employee handbook. For legal and productivity reasons, the employee handbook should be utilized to inform employees of your expectations. But clearly state a disclaimer – it’s not an employment contract – employment is conditional. Either party may terminate without cause or notice. Preferably, employees will be given an acknowledgment form regarding their at-will employment status.

The handbook should include policies such as attendance, benefits, vacation, employee-monitoring systems, probationary periods, sick leave, and FMLA (family and medical leave, if you employ 50 or more workers).

Make clear the company will not tolerate harassment and the procedures for reporting it. Remember, employers are liable for behavior of their employees. Should harassment allegations be raised by an employee, be sure to follow through with an immediate investigation and discipline, if proven, and don’t tolerate retaliation. Sexual harassment training, in particular, should be regularly given.

Avoid favoritism. Be consistent make sure of adherence to policies.

Be proactive about workplace complaints. Do not avoid taking action. Make sure you are actively listening.

Safety counts. Be empathetic and show respect. Be safety conscious.

Wage and hour practices. Stay current with all state and federal wage and hour laws and regulations. Some companies have run into trouble because their hourly employees are working longer hours as exempt managers and not paid for overtime. Carefully document your records.

Of course, try to be competitive in pay and benefits.

Continuous policy training. To insure success, make certain managers, human resource interviewers and workers are knowledgeable about your business policies. You’ll be in a better position to prevent harassment, hire correctly and appraise employees accurately. You’ll also be in a stronger position, if you do encounter the threat of litigation. Stay on top of all details, but also be mindful of the protected classes of workers to avoid federal intervention.

Evaluations and terminations. Supervisors and managers must be schooled in worker behavior, performance and if necessary, terminations. Not to oversimplify, but remember every employee is entitled to know three things: What’s expected; what’s in it for them; and how they’re doing.

Make certain that terminated employees can’t conclude they’re being let go for reasons of discrimination. Again, that means documentation and thorough footwork.

These minimal reminders will help you to avoid employment and EEOC traps. However, if you do find yourself in the EEOC crosshairs, be careful how you respond in crafting your position.

From the Coach’s Corner, here are informative federal-government Web sites:

- U.S. Department of Labor, www.dol.gov

- U.S. Equal Employment Opportunity Commission, www.eeoc.gov

“Discrimination is a disease.”

-Roger Staubach

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Columnist Terry Corbell is also a business-performance consultant and profit professional. Click here to see his management services (many are available online). For a complimentary chat about your business situation or to schedule Terry Corbell as a speaker, why don’t you contact him today?