In yesterday’s Advisor, we featured the first nine of attorney Adam Klein’s "Management mistakes that are music to my ears." Today, we’ll add a few more of his favorites, and we’ll take a look at an extraordinary policies program that will help your managers avoid those costly mistakes.
Klein usually represents employees in suits against employers, but today he shares typical mistakes he looks for when developing cases against management.
Klein is a partner with the law firm of Outten and Golden LLP. His remarks came at an HR/NY (the New York City Chapter of the Society for Human Resource Management) Legal Conference. Here are his picks for worst management mistakes:
[Go here for mistakes 1 through 9]
10. "We used an objective fact or criterion to make our reduction in force (RIF) decisions, so there’s no problem."
No matter what the selection criteria, says Klein, "If there is adverse impact, I’ll challenge your business reason."
11. "We don’t need to run an adverse impact analysis in connection with a RIF."
“We certainly will run one,” says Klein, who finds that his analyses often show adverse impact. For example, in one case, the employer said that it had used performance evaluations as the criterion. When Klein ran an adverse impact analysis, he found that the employer had, in fact, used performance when selecting men for termination, but not when selecting women. Women had been selected without regard to performance.
“I love statistics,” says Klein.
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12. "There’s no adverse impact for employees over the age of 40 as a group, so no problem."
”That’s not going to cut it. We will run adverse impact analyses for age bands, e.g., 40-45, 46-50, 51-55, 56-60. Often we find that there is adverse impact on the older group. That’s a claim,” he says.
Bonus! FMLA/ADA-related mistakes
As a bonus, Klein offered several FMLA- and ADA-related mistakes, which he says are some of his favorites.
"Isn’t the ADA basically dead? Whew."
“Don’t believe it,” says Klein.
"We allow employees to return from medical leave only if they have fully recovered."
“No. They have to be able to perform the essential functions, but not necessarily be fully recovered,” says Klein.
"We’re just a small company—surely we are not expected to pay for reasonable accommodations."
“Not as much as larger companies, perhaps, but many accommodations cost only a few dollars to a few hundred dollars, an amount which most organizations would be expected to cover.”
"The replacement is better than the employee on leave, so we’re keeping the replacement."
Many types of leave provide that employees have return rights that must be honored, even if the replacement is much better, says Klein.
Final Tip
Finally, Klein warns employers, "Don’t be lulled into thinking that your organization’s lawyer will be able to scare off your employee’s lawyer.
"Think again," says Klein.
Are your managers making any of Klein’s mistakes? Maybe right now, as you are reading this? The only avenue of defense is policies—clear, well-distributed policies that help your managers make the right decisions and follow the appropriate procedures.
How clear and up to date are your policies? Our editors estimate that there are 50 or so policies that need regular updating (or maybe need to be written?). It’s easy to let it slide, but you can’t afford to backburner work on your policies—they’re your only hope for consistent and compliant management that avoids lawsuits.
Fortunately, BLR’s editors have done most of the work for you in their extraordinary program called SmartPolicies.
Don’t write that policy! We’ve already done it for you, and at less than $1 each. Inspect BLR’s SmartPolicies at no cost or risk.
SmartPolicies’ expert authors have already worked through the critical issues on some 100 policy topics and have prewritten the policies for you.
In all, SmartPolicies contains some 350 policies, arranged alphabetically from Absenteeism and Blogging to Cell Phone Safety, EEO, Voice Mail, and Workers’ Compensation. What’s more, the CD format makes these policies easily customizable. Just add your company specifics or use as is.
Just as important, as regulations and court decisions clarify your responsibilities on workplace issues, the policies are updated—or new ones are added—as needed, every quarter, as a standard part of the program.
SmartPolicies is available to HR Daily Advisor subscribers on a 30-day evaluation basis at no cost or risk … even for return postage. If you’d like to have a look at it, let us know, and we’ll be happy to arrange it.
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