In yesterday’s Advisor, attorney Mark Schickman helped us understand when supervisors must defer to HR. Today, when supervisor must stay out, plus an introduction to the “50×50” (50 Employment Laws in 50 States), the unique guide for employers with operations in more than one state.
We want our supervisors to manage and participate, but there are several circumstances in which they must step aside, says attorney Mark Schickman. Schickman, who is a partner with Freeland Cooper & Foreman, LLP in San Francisco, offered his tips at a recent webinar sponsored by BLR® and HR Hero®.
When the Supervisor Is the Subject
Sometimes the supervisor is the subject of the complaint. So policies should not say, bring complaints to the supervisor, because the employee will take the complaint straight to an agency or attorney, says Schickman.
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You must provide alternatives for the employee to complain: a hot line, supervisor’s supervisor, HR, etc.
When the supervisor is the subject of a complaint, he or she must step aside from the investigation and must be meticulous not to retaliate. The temporary removal of the supervisor is sometimes necessary.
Other situations in which the supervisor must step aside:
- When the alleged actor is a “buddy”
- When the supervisor has “a history” with the complainant
- If the supervisor took part in similar activity
- There is any other APPEARANCE of partiality
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No Little White Lies
Another key message for supervisors is that they must be honest, says Schickman. For example, they have to give the real reason for termination. If the real reason is that the person is not performing, say that. Don’t say, We’re eliminating positions.
And don’t say, “We’ve decided you need to take some time on the golf course.” That’s going to be age discrimination, says Schickman.
You don’t need to say everything, but everything said must be true, says Schickman.
Jurors won’t forgive untruths, and that’s not a position you want to be in.
Most Common Mistake Supervisors Make
The most common mistake Schickman sees is managers and supervisors acting first and coming to HR after the fact. Once you’ve told an employee, “You can’t do that,” and then you come to HR, it’s too late.
Schickman see this most often in the reasonable accommodation of a disability. The supervisor makes an assumption that the requested accommodation won’t work and says no without consideration or interaction. You can’t operate on the basis of assumptions, Schickman says, you have to have the interactive discussion.
Remember, however, that reasonable accommodation does not necessarily change the essential functions of the job. For example, if a proofreader is supposed to read 300 pages a day, asking to read only 150 pages a day is not a reasonable accommodation. Asking for a bigger screen or more light could be, but not 150 pages a day.
Trying to teach supervisors when—and when not— to supervise is a constant challenge. Unfortunately, the scope of many of these challenges is doubled when state laws apply along with the federal. How do you find out about the various state laws that affect your operations, especially if you operate in more than one state? It’s not easy to track the ins and outs of different laws in 50 different states—and that’s where the unique 50×50 comes in.
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