Management Training That Can Help HR Avoid Legal Risks April 25, 2018 In-House Counsel Conference
PRESENTED BY: Diane Carman, General Counsel Ablynx, Inc. Rosemarie S. Hoslyn, Legal Counsel PFM Financial Advisors LLC Public Financial Management, Inc. Todd Alan Ewan, Esquire Fisher & Phillips LLP
HIRING
Finding Candidates the HR Perspective Job description Required skills Desired skills Internal v. External Advertising Headhunters Word of mouth
For anyone involved in hiring, he/she must: Understand the complete ins and outs of the open position Know what he/she needs in terms of an individual s abilities to fill that position Listen to the applicants during interviews to determine if they have the abilities needed for the open position Be able to record his/her thoughts about applicants accurately for later group consumption, making sure to stay objective Be able to speak about his/her interviews in a way that others will be able to utilize when making the hiring decision Know that certain topics are taboo e.g. age, religion, national origin, etc.
Protected classes with which managers should have familiarity? FEDERAL LAW includes Race Color Religion National origin Gender/sex (includes pregnancy) Age (if 40 or above) Disability (mental/physical) Veteran status Family leave STATE/LOCAL LAW adds others such as Sexual orientation Gender identity/transgender status Marital status Age (with lower age limit) Family relationships Injured workers Workers compensation Domestic violence leave Crime victims Expunged juvenile records Lawful off-duty activities
So what can a manager take into consideration? Skills Experience Performance Education Seniority Merit system Quantity/Quality Training Geographic location Etc.
PAY RIGHT
Proper Classification Paystub Compliance Proper Calculation of Regular Rate of Pay Meal and Rest Period Compliance Accurate Timekeeping Are non-exempt employees working off the clock Think e-mails being sent, received, and responded to during off hours
EVALUATE
Performance Management Objectives Employee performance Continuous dialogue (no surprises) Effective Performance Evaluations: Be honest Be fair Identify expectations not met Identify any violations Be accurate Be clear no reading between the lines Be consistent
Performance Management Objectives Consistency in performance-based decisions (e.g., pay increases and bonuses) Compensation Evaluation Separation Consistent disciplinary protocols Cultural support of management from top-down Personnel decisions are legally defensible
SMART Principles of Documentation S Specific M Measurable A Aligned R Realistic T Time-related (or not.) (specify when the result can and will be achieved)
Annual Performance Rating Perils Halo effect rate employees the same on every trait Regression to the mean lack of rating differentiation between employees Excessive leniency avoid honest ratings to avoid conflict Similarity favorable rating to employees who have similar values or interests to the rater. Recency and Primacy Effects failing to incorporate entire review period into ratings.
EMPLOYEE COMPLAINTS
An employee complained. What now? Report it? HR? Upper Management? Investigate? Do not retaliate
Handling Employee Complaints Take all complaints seriously and respond promptly Ask who, what, where, when and why Listen; do not argue Notify HR that you received a complaint HR will conduct a careful and timely investigation Follow-up and set time to get back together
Handling Employee Complaints Maintain confidentiality (to fullest extent possible) Communicate findings to employee Document entire process Be cautious of retaliation or appearance of retaliation
The Training Train your managers, supervisors and all who administer the policy how to: receive and respond to complaints follow up with the employee track complaints do not promise complete confidentiality do not instruct complainant to keep complaint confidential
PERSONNEL CONFLICTS
Personnel Conflicts Hear out both (or all) sides (manager will have to determine if joint/group meeting makes sense) Define the problem Determine points of agreement Determine points of disagreement Structure mutually acceptable resolution (avoid deciding right and wrong ) Reaffirm company policies If conflict persists, discipline may be required
SOCIAL MEDIA MONITORING
Monitoring of Social Media Do not try to obtain employees social media passwords or intrude on an employee s social media account Be careful when monitoring You may regret what you learn What can be found on Facebook or other social media sites Race Age Genetic Information Disability information Sexual Orientation Protected Concerted Activity
Monitoring of Social Media Tips for Managers Do not become friends with employees Do not reveal anything you would not say or post in public Do not engage in fraud ( fake friend requests or passwords) Remember web content can be false
Invasion of Privacy? Employee had expectation of privacy in text messages sent over employer-provided device (Quon v. Arch Wireless Operating Co. (9th Cir. 2008)) Why? Manager told employees that messages would not be audited Tip: Ensure managers are not contradicting your privacy policy
Stored Communications Act Facebook posts are protected electronic communications under the SCA, so long as the posts are limited to friends and not on the person s public Facebook pages. Even though Facebook posts are protected, an employer does not violate the SCA if the employer receives the posts from someone authorized to obtain them. The authorized user exception applies where (1) access to the communication was authorized, (2) by a user of that service, (3) with respect to a communication intended for that user.
Stored Communications Act Employer violates the SCA if it obtains Facebook (or other social media posts) by: Using a password retrieved from the hard drive of the employee s employer-owned electronic device. Accessing the account by using the employee s employer-owned device where the password populates automatically. Creating a fictitious person on Facebook to friend the employee. Pressuring co-workers into divulging the employee s Facebook posts.
WORKERS COMPENSATION/FMLA/ADA
Workers Compensation Pretty straight forward employee injured on the job, report it to the proper company designated person who will have the employee pursue the appropriate channels. If you hear that an employee was injured on the job, make sure that it is reported to the proper company designated person.
FMLA The Basics Protected leave that eligible employees have the right to take without retaliation or interference from managers Types of leave Continuous (full 12 weeks) Intermittent (as needed) Reduced Work Schedule Managers can have individual liability
FMLA Managers do not need to know the ins and outs of the FMLA If a manager learns of an employee s medical issue that might impact the employee s ability to be present and/or perform the job, the designated people in the company (presumably HR) should be notified If a manager learns of an employee s need to care for an family member, the designated people in the company (presumably HR) should be notified
FMLA If a manager learns that an employee or his/her spouse is pregnant, the designated people in the company (presumably HR) should be notified If a manager learns that an employee is about to adopt a child, the designated people in the company (presumably HR) should be notified
FMLA If a manager learns of an employee s need to deal with military deployment issues, the designated people in the company (presumably HR) should be notified If a manager learns of an employee s need to deal with the care of a returning military member, the designated people in the company (presumably HR) should be notified
ADA Three Steps: The Request for Accommodation No magic words required The Interactive Process Do not automatically say no! (HR should be involved directly or in the background) Avoid being emotional just because it has not traditionally been done does not mean an accommodation cannot be granted The burdensome standard and whether it applies Implement the Accommodation Avoid delays Do not disclose to others Liability for violations
ADA If a manager learns that an employee needs some form of assistance in performing his/her job, the designated people in the company (presumably HR) should be notified
DISCIPLINE
The CLEAN Doctrine C - consider the facts behind discipline. L - learn what managers, witnesses, and documents have to say. E - evaluate what disciplinary action has been taken in the past. A - analyze risk. N - narrow down potential options and decide.
Failure to Enforce Company Policies Consistently In litigation, inconsistency = disparate treatment Lawyers and government agencies will ask about application of the policy to others Consistent enforcement suggests fairness
Snakes in the Grass Worker s compensation HR Claims Wage and Hour Complaints Reporting illegal activity Safety complaints Accommodation requests
DON T: Make false excuses or reasons for the discipline. The truth is your friend!
REFERENCES
References Name, rank, and serial number Handle centrally... Train managers to provide only: Position last held Dates of employment Salary? NOTHING MORE!
Questions?
PRESENTED BY: Diane Carman, General Counsel Ablynx, Inc. dcarman610@gmail.com Rosemarie S. Hoslyn, Legal Counsel PFM Financial Advisors LLC Public Financial Management, Inc. hoslynr@pfm.com Todd Alan Ewan, Esquire Fisher & Phillips LLP tewan@fisherphillips.com