Sometimes it seems as though there are a thousand ways supervisors and managers—although well-meaning—can get it wrong, and end up begging for employee lawsuits. We’ve distilled it down into 10 major sins HR can talk to its managers and supervisors about. Here, BLR editor Steve Bruce presents the 10 Sins of Supervisors–with the help of actor portrayals/examples–and explains why and how to avoid each mistake and keep your company out of legal trouble.
Sin #1. Making Unlawful Pre-employment Inquiries
Interesting accent you have? Where were you born?
Do you have children? Any daycare problems?
Inappropriate questions during interviews and other pre-employment contacts are a primary source for claims of discrimination. The courts generally assume that if you asked a question, you intended to use the answer as a factor in your hiring decision. Therefore, any questions about or references to protected categories like sex, age, race, national origin, or religion, can later be used against you in court in a discrimination claim.
To the extent possible, we recommend standardizing the application and interview process. Ask all applicants fundamentally the same questions. Keep questions objective and focused on the job requirements and the skills necessary to perform the job.
Sin #2. Delivering “Dishonest” Evaluations
I’m giving you a “satisfactory” rating and I think we both know what that means in this company.”
I gave her a “good” rating even though her work is poor, because I think a “poor” rating would upset her.”
Many managers and supervisors avoid the discomfort of delivering a review that indicates poor performance and instead cop out with a “satisfactory” rating. As a result, many legitimate actions taken against an employee based on poor performance can be questioned because the performance reviews are positive.
So it’s important to be honest with performance evaluations. That’s easier when there are clear standards; if they are not met, just say so.
Sin #3. Too Vague in Discipline and Performance Writeups
Sally, your work could use improvement.
I’m making a note here that we talked about your performance.
Jay’s poor performance is unacceptable, and I’m just going to spell it out—he’s lazy.
Similarly, and again to avoid unpleasantness, managers and supervisors will often write something on performance evaluations like “needs improvement.” That’s too vague—Does that mean the employee does a great job, but there’s always room for a little improvement, or does that mean that the employee is terrible?
Or how about “Talked to Sally about her performance and behavior.” (Was that to tell her how exceptional her performance and behavior were?)
And then we’ve got judgment words like “lazy.” Again, too vague. Offer documentation and documented examples of behavior
Sin #4. Making Rash Disciplinary Decisions
“That’s it, I’ve had it, you’re fired.”
Maybe you will ultimately determine that firing is the appropriate thing to do, but this isn’t the way to do it. First of all, an angry tirade, especially if in public, gets those “I’m going to sue” juices flowing. Second, you should never fire without carefully reviewing the circumstances with HR. You may, for example, want to:
- Conduct an investigation.
- Review the employee’s personnel file.
- Review company policy pertaining to the incident.
- Ascertain that the employee received a copy of the policy in question and knew the consequences of failing to follow it.
- See if there are any contractual obligations, for example, a union contract, or a handbook guarantee of progressive discipline.
- Give the employee an opportunity to give his or her side of the story.
- Make sure similarly-situated employees have been treated the same.
Sin #5. Making uninformed responses to medical leave requests
You want what? You want bonding leave during our busiest season? I don’t think so.”
You’re going to take every Friday off? That’s not going to happen.”
Few supervisory situations are as frustrating and challenging as dealing with employee requests for medical leave—it’s the Bermuda triangle of FMLA, ADA, and workers’ compensation. And it seems it’s never convenient. But managers and supervisors have to curtail any frustration and respond professionally.
The basic rule for managers and supervisors should be to contact HR when employees are going to miss work for reasons that might involve FMLA. You just don’t want your managers and supervisors trying to manage FMLA leave.
Sin #6. Not realizing the “power” of the supervisor
“Let’s go out for a drink after work. Then maybe we’ll grab dinner.”
I hope everyone will contribute generously to my charity.
Inviting an employee out for a drink after work may seem a simple gesture, but the employee may view it as an order. Especially if the request is repeated, it can always be viewed as coercion or harassment. Supervisors and managers are agents of the company, and when they engage in behavior that may be considered harassment, it’s especially egregious because of the power they have over their employees.
Another aspect of supervisor agent status is that if the supervisor knows, the company knows. The company can’t say “We weren’t aware of the situation.”
So train supervisors and managers to be aware of situations in which they may be perceived to be exercising their power inappropriately. And make sure they know to report to HR indications of improper behavior or complaints or allegations
Sin #7. Not knowing and not enforcing policies
We’re busy now. Talk to me about that harassment next week.
If you think the work’s not safe, you’re free to quit any time.
Nobody in this department can mention the company or our operations to outsiders including facebook friends and anyone else on line.
Supervisors and managers are the front line for interpreting and enforcing the company’s policies. But if they don’t know the policies and their associated responsibilities, they’ll be begging for lawsuits. For example, imagine a supervisor telling an employee that he or she does not have time to listen to a claim of unwelcome harassment, or safety issues, or potential NLRB violations.
Regularly review your policies with all supervisors and update them on all changes before the policies are distributed to employees.
Managers have an obligation, as unreasonable or impracticable as it may be, to be aware of and understand the policies and laws that apply to their workplace. Failure to comprehend these laws can initiate lawsuits, can cause embarrassment in court (“You’re responsible for upholding these laws, and you’ve never had any training?”)
Sin #8. Making wage\hour blunders
We’re out of overtime. Can you clock out and then set up for tomorrow?
You’ll be working alongside out regular employees, but you new recruits are all independent contractors.
Tracy, make sure you stay close to the phone during lunch and keep your phone near you evenings for calls from the West Coast.
Wage and hour should be simple but it just isn’t. The most common problems are:
Overtime. Failure to track it, failure to pay it, and failure to include bonuses in the “regular rate.”
Off the clock. For example, the supervisor says, “We’re out of overtime; can you clock out and then set up for tomorrow?” (You have to pay even if the employee volunteers, and even if you’ve forbidden the employee to do work.)
Misclassification. For example, calling employees exempt whose duties do not meet the criteria for exemption (and therefore not paying overtime).
Independent contractors. Many employees who are labeled as independent contractors are actually employees who need to be paid overtime.
Docking exempt employees. Docking exempt pay is allowed only in limited circumstances.
Sin #9. Letting problems fester.
He’s crossing the line with his behavior, but he surely knows he’s making me unhappy—he’ll figure it out.
“Oh, that’s just Jimmie. He means no harm—he’s just oldschool.”
With bad behavior, it’s always tempting to ignore the problem in hopes that the behavior will improve on its own. But you know that’s not going to happen.
And, unfortunately, as time goes by, you appear to be condoning the behavior. “You’ve known he was doing this for six months, and you did nothing, and now suddenly it’s a firing offense?
Sin #10. Making “side agreements”
Managers under stress may be tempted to make “side agreements,” that is agreements that either go against policy or are promises that likely won’t be kept:
Stay after you clock out for the next two weeks until we get this job out the door, and I’ll make it up to you by writing in extra overtime next month when the budget switches over.
Take this transfer, and I’ll guarantee you a promotion at the end of the year.
I can’t pay you for this work, but you and your spouse can go out for a nice dinner on the company account.
Sometimes, these agreements are directly contrary to law and policy; for example, employees can’t waive their right to overtime or pay for hours worked—even if they agree, even if they are eager to do a little work on the side. And three problems arise:
- It’s illegal behavior and there will be subsequent lawsuits
- Employees will be left feeling that agreements haven’t been honored
- There’s unequal treatment, so others who didn’t get the special treatment or privilege may sue.
OK, that’s our top 10 sins of supervisors and managers. Avoid them, and stay hassle—and lawsuit—free.
For all your HR hassles, we recommend http://HR.BLR.com. This is Steve Bruce for the HR Daily Advisor.