In yesterday’s Daily, we covered the first six of attorney Barbara Meister Cummins’ Top 10 ways managers beg employees to sue. Today, quotes seven through ten, plus we’ll introduce a unique guide for the tricky maze of California leave laws.
Cummins, principal of the Law Offices of Barbara Meister Cummins in New York City, offered her Top 10 at a Human Resources Association of New York Legal Conference.
(Go here for quotes one to six)
7. Naw, I didn’t need HR’s help with the firing. I just told Sue we were eliminating her job.
Managers often resort to little white lies to spare employees’ feelings or because they don’t have adequate documentation of poor performance.
Unfortunately, you must assume there will be a charge or lawsuit after termination, Cummins says. Lawsuits mean depositions and testimony. False or inconsistent reasoning shoots your credibility. Telling the truth up front solves the problem.
8. Oh, you didn’t know? I’m dating my secretary Sally now.
Office romance is a recipe for disaster, says Cummins. You will likely face claims of favoritism, fears of pillow talk, and a perception that one gets ahead by sleeping with the boss, a situation recognized by many courts as a viable hostile environment claim.
Other nightmare possibilities: There’s a wife who insists that Sally be fired. Or, you transfer Sally, who sees the transfer as retaliatory. Or, the relationship ends, and Sally is the most qualified for a promotion. Don’t promote, and it’s retaliation. Promote, and brace yourself for complaints from employees who didn’t sleep with the boss.
To nip these problems in the bud, Cummins suggests:
- Have a no-dating policy for supervisors.
- Expand your nepotism policy to cover any employee engaged in a relationship.
- Train managers in the downside of dating a subordinate.
- Have an involved subordinate sign a “love contract” indicating that the relationship is consensual, and no threats were involved. Or, have HR conduct an interview with the subordinate, and then document the results.
California’s own Bermuda Triangle is the intersection of FMLA, CFRA, and ADA (and a few others). Here’s help: ERI’s brand-new HR Management & Compliance Report, How To Comply with California and Federal Leave Laws.
9. 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.”
10. We all knew she wasn’t coming back after the baby, so I just told her we’ve replaced her.
An employee’s statement of intent not to return after a leave must be unequivocal. For example, in one case the statement, “We’re going to part company at the end of this leave,” was not sufficient notice, Cummins says.
Remember, she adds, that the Family and Medical Leave Act is a strict liability law. In other words, if leave or return is denied to an eligible employee, there are no defenses.
“I want leave”—the most annoying words in California HR. Find out how to manage California and federal family leaves—including intermittent leaves—with our brand-new HR Management & Compliance Report, How To Comply with California and Federal Leave Laws.
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