Special from SHRM Annual Conference & Exposition
Mr. Please Sue Me, aka Hunter Lott, one of the Society for Human Resource Management’s (SHRM) top-rated speakers, entertained the large audience in his inimitable style, while providing many practical tips and suggestions for avoiding lawsuits.
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Think It Through
Columbia University Professor Sheena Iyengar studies how people choose, Lott says. She finds that the average CEO handles 139 tasks per week. Fifty percent of the decisions he or she makes relating to those tasks took less than 9 minutes, and only 12 percent of those decisions took more than 1 hour.
You have to get them to count to 10, says Lott. “Let’s think about this.”
Think Like an Outsider
“Mr/Ms Manager, do you want to go on 60 Minutes or TMZ to defend your actions?”
Start at the finish, Lott says. Don’t let people say, “It’s legal so I can do it.” Think it through. You can serve alcohol at the company picnic, but do you really want to defend the alcohol-related problems? Certainly avoid the “6-pack at second base rule” and the chug-a-lug contest. (If you do serve alcohol, at least have Uber there to drive people home, Lott says.)
My Gut Tells Me
Don’t let managers trust their guts, says Lott. (Or any wacko system, he adds. He has encountered a manager who only hired Georges or Georgettes, and another who used a divining rod.)
The Harvard Business Review of March 2016 finds that the best forecasters constantly reassess and share their estimates. The most accurate forecasters depend on both logic and intuition. The least accurate forecasters rely overwhelmingly on intuition.
The New Overtime Rule
There are three basics for responding to the new rule:
- Get up to speed on exempt vs. nonexempt.
- Train your managers.
- Audit pay practices to get ready for the December 1 deadline.
Two important points to consider:
- Wage/hour lawsuits are attractive to plaintiffs’ attorneys because judgments include attorneys’ fees.
- There may be personal liability for wage/hour violations.
Get Out of the Babysitting Business
Go to paid time off (PTO), says Lott. Do you really want to be policing who’s actually sick or whether the death of a neighbor qualifies for bereavement leave?
Retaliation
Beware, Lott cautions. According to many employment attorneys, the Equal Employment Opportunity Commission’s (EEOC) new guidance will make it harder for employers to defend retaliation claims. This is especially concerning because the threat of being sued for retaliation is enormous: According to the EEOC, in 2014, retaliation claims made up 48.4% of all charges filed under federal civil rights statutes.
Handbooks
Overly broad employee handbook rules that might be interpreted as restricting employees from exercising their Section 7 rights—that is, the right to engage in “protected concerted activities”—are not acceptable to the National Labor Relations Board (NLRB).
To be sure you’re covering the bases, Lott suggests including this NLRB disclaimer:
Let’s be clear … No policy in this handbook should be interpreted to interfere with, restrain or otherwise inhibit you in the exercise of your rights guaranteed in Section 7 of the National Labor Relations Act. You have a right to your own wage/salary and may share that information with anyone. You have a right to raise concerns about wages and general work conditions publicly. Nothing in this employee handbook is considered proprietary or in any way secretive.
Social Media
And then, how about this for a social media policy that is acceptable by the NLRB?
While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission. You are personally responsible for the content you publish on blogs, wikis, or any other form of social media. Be mindful that what you publish will be public for a long time. Be also mindful that if the Company receives a complaint from an employee about information you have posted about that employee, the Company may need to investigate that complaint to ensure that there has been no violation of the harassment policy or other Company policy. In the event there is such a complaint, you will be expected to cooperate in any investigation of that complaint, including providing access to the posts at issue.
In tomorrow’s Advisor, more of Lott’s tips.