There are certain management mistakes that make lawyers rub their hands in glee—but most can be avoided, says Attorney Adam Klein. He usually represents employees in suits against employers, but today he turns the tables and shares typical mistakes he looks for when developing cases against management.
Klein, a nationally known expert on class-action suits, is a partner with the law firm of Outten and Golden LLP. His remarks came at an HR/NY legal conference. Here are his picks for worst management mistakes:
1. "Our promotion, hiring, and compensation decisions are completely ad hoc."
When there is no system, decisions tend to be made on the basis of personal relationships, such as golf or club friendships. That often leads to adverse impact, Klein says.
2. "We do not monitor pay and promotion practices across titles, departments, facilities, etc."
Without comparative data, the organization has no idea whether protected classes are treated equally, Klein says.
3. "We do not document performance problems before taking adverse employment actions."
This makes it hard to refute claims of discrimination.
4. "We do not pay too much attention to our Affirmative Action Plan."
Klein notes that he has seen employers with no plan, superficial or meaningless plans, or even made-up plans. “It’s not enough to go out and buy a package,” he says, “and be careful if you outsource this job.”
5. "We don’t do harassment and EEO training for supervisors and managers."
“You’re nuts not to,” says Klein.
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6. "Our HR department lacks a professional HR person with relevant training."
“You would be surprised how often I’ve deposed HR managers who don’t know much," Klein says. For example, they can’t answer a question such as, "Would it be a violation of Title VII to fire an employee based on his or her race?” Train HR managers who are likely to be deposed and be called as witnesses, he urges.
7. "We don’t do anything about complaints of discrimination, and then retaliate against the employee who complained."
“This happens all the time,” Klein says. And he also notes that it is generally easier to prove retaliation than it is to prove the underlying claim.
8. "Our CEO or other senior manager overrides HR department decisions."
For example, a manager is harassing a group of women, but the CEO says, “Can’t fire Bob; he’s doing a great job.” Klein predicts that "Bob’s going to cost this company a lot."
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Another lucrative group of mistakes relates to compensation and overtime. Employers tend not to worry about these infractions, says Klein, but when they turn into class actions, the costs can really mount up.
9. "No one in our organization gets overtime."
This is Klein’s favorite call to get from an employee.
In tomorrow’s Advisor, we’ll feature more of Klein’s management mistakes, and we’ll take a look at a unique HR policies program that will help you to eliminate most of those mistakes.
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