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?

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?