In today’s Advisor, Attorney Barbara Meister Cummins shares the 10 most lawsuit-attracting lines she hears from managers. Fortunately, she says, managers can be easily trained to avoid them.
Cummins, principal of the Law Offices of Barbara Meister Cummins in New York City, offered her remarks at a Human Resources Association of New York Legal Conference. Here are her top 10 quotes you don’t want to hear:
1. That guy who wants to hire Joe? I told him that Joe was a lousy performer and a sneak, and I’m convinced he did drugs.
There are several problems that may arise from giving poor references, advises Cummins. First, if any aspect of the reference is false, you could be facing a defamation claim. Defamation cases are long, arduous, and costly.
In addition, you may face tort claims on the basis of either interference with prospective business relationships or invasion of privacy. Furthermore, poor references can be viewed as retaliation.
To avoid lawsuits, Cummins suggests:
- Prohibit references other than name, title, and dates.
- Mandate that reference requests be directed to HR.
- Train employees and supervisors about rights and retaliation.
2. Great interview! Heard all about her Middle Eastern parents and the religious conflicts over there.
Straying from job-related areas of discussion increases liability potential under Title VII, the Immigration Reform and Control Act, and state privacy protections, Cummins says.
If personal information is volunteered, do not follow up. Say, “We only consider qualifications.” However, if news of a disability is offered by the applicant, the supervisor should ask if the person is raising the issue because he or she needs an accommodation. If the answer is No,” drop it.
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3. Aw, that little exchange in the hallway? Just a little good-natured teasing.
Teasing (Or is it bullying? Or harassment?) is often ignored, particularly in smaller, close-knit companies or departments, Cummins says. Remember that harassment can involve sex, race, age, or a disability.
Don’t get caught thinking, “We haven’t received a formal complaint so we won’t act.” If there’s a complaint or problem, act immediately. Your best defense is an offense of following up, Cummins says.
4. That bit about Jim’s doctor saying he can’t work overtime is BS; I told him, “Work or find a new job.”
"Don’t let your supervisors go solo on disability issues," says Cummins. The Americans with Disabilities Act (ADA) requires accommodation of an otherwise qualified disabled person. There is no requirement for an employee to use the magic word “accommodate.” They may say “I can’t do X” or may simply ask for assistance or support.
The ADA mandates an interactive process, and failure to engage in the interactive process is an independent violation of the ADA.
However, don’t assume that any statement of need for accommodation requires you to accommodate, Cummins says. In fact, accommodating without the need could prove disastrous later with a charge of “regarding” someone as disabled. If you want to be helpful, advise the employee that you’re doing it as a favor and that it isn’t permanent.
Do not suggest an Employee Assistance Program even out of genuine concern or sympathy, Cummins says. Supervisors want to help, but once they suggest treatment, they are knee-deep in “regarded as.” Supervisors should address work performance issues and “leave a hole open.” They can hope the employee will say, “Well, I do have a little problem.”
5. Of course I let my secretary work through lunch; she’s been doing it for years.
Regardless of salary, title, or signed agreement, overtime must be paid to nonexempts. Work is any time that an employee is required to be on duty. It includes interrupted breaks (for example, when an employee is still on duty to answer the phone or radio call) or when training occurs during the break.
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6. Did you see that hilarious e-mail with the sex jokes?
E-mail and the Internet create many problems. Cummins suggests:
“Write and disseminate a realistic working policy. (Saying “no private use” is unrealistic.) Insure that your policy lists impermissible actions, including transmittal and downloading of harassing, offensive, obscene, pornographic, or copyrighted material.”
Finally, advise employees that everything is subject to monitoring and that all the equipment is company property.
In tomorrow’s Advisor, the rest of Cummins “Top 10” list and an easy-on-the-budget training solution for your supervisors and managers.
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