It’s time to debunk many of HR’s urban legends, says popular SHRM speaker, attorney Joseph L. Beachboard. These misplaced beliefs can only encourage laws
Beachboard made his remarks at SHRM’s Annual Conference and Exhibition, held recently in Chicago. He is a shareholder in the Los Angeles and Torrance, California, offices of law firm Ogletree Deakins.
Urban Legend #1
Yelling at people is OK as long as I’m equally abusive.
Truth: Not only is this a bad management technique but it may also lead to legal liability.
Equal opportunity abuse (“I don’t discriminate, I abuse everyone”) is no longer a defense, says Beachboard.
Regarding bullying, he says, employees in the United States who are bullied at work don’t have a distinct cause of action against their employers. However, plaintiffs can tailor their claims into a variety of causes of action.
- Antidiscrimination laws
- Intentional infliction of emotional distress
- The National Labor Relations Act
- The Occupational Safety and Health Act
Urban Legend #2
What starts as consensual must always be consensual.
Truth: Romance in the workplace is at all-time highs, as is the litigation it generates.
Consider the following negative outcomes from workplace relationships, Beachboard says:
- Potential for favoritism
- Claimed or actual retaliation
- Litigation brought by parties to the relationship or by coworkers
- Decreased performance due to distractions
What to do? Consider using a “love contract.”
Urban Legend #3
White lies are OK if done to avoid hurting someone’s feelings.
Truth: No good deed goes unpunished.
When does this happen? You should reclassify a worker as nonexempt but you don’t because “he would think of it as a demotion.” Or there’s the classic “layoff of one,” says Beachboard.
Urban Legend #4
We don’t need to pay interns.
Truth: Most “interns” are employees and must be paid.
The DOL has established six criteria to determine when internships can be unpaid.
If all six factors are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern.
You know your managers could do a better job if they were trained, and now there’s a convenient and reasonable way to get it done—BLR’s Leadership Library at the online, 24/7, TrainingToday. Get More Information.
Urban Legend #5
Business-use-only computer policies will protect us from liability.
Truth: Extremely difficult to enforce. Employers should consider “reasonable use” policies.
Many companies have “no personal use” policies … and virtually everyone violates them, says Beachboard. Consider a “reasonable use” policy:
- Allow incidental and occasional personal use that does not: (1) interfere with the employee’s work performance; or (2) adversely affect the operation of the computer system.
- But explicitly state that no user should have any expectation of privacy in any file, image, or data created, sent, or retrieved.
Urban Legend #6
Assistants and secretaries need to have BlackBerries to better support those they work for—and they understand that (and don’t expect to get paid).
Truth: Any work performed by nonexempt employees during nonworking time must be tracked and compensated.
Hours worked = hours paid, says Beachboard. And it’s the employer’s duty to exercise control to see that work is not performed if the employer does not want to pay. Promulgating a rule is not enough. Management has power to enforce rules and must make every effort to do so.
Urban Legend #7
A signed agreement that an individual is an independent contractor will make it so. (“Besides, we 1099 them.”)
Truth: An agreement stating that someone is an independent contractor has no value if the tests are not met. Ditto with the 1099.
“The individual wanted to be paid on a 1099” is not a defense, Beachboard says. Having individuals treated as employees performing the same jobs as independent contractors (e.g., under “consulting agreements”) won’t make them independent contractors.
Urban Legend #8
The National Labor Relations Act (NLRA) does not apply to us because we don’t have any unions.
Truth: The NLRA applies to all employers—and the recent focus of the NLRB has specifically been on nonunion employers.
NLRA Section 7 grants employees the right to “engage in other concerted activities for the purpose of mutual aid and protection.” This has been interpreted to protect non-union employees’ concerted efforts to better the conditions of their employment.
Trying to get your employees trained to show leadership? It isn’t easy to fit it in—schedulewise or budgetwise—but now there’s BLR’s Leadership for Employees Library. Train all your people, at their convenience, 24/7, for one standard fee. Get More Information.
Urban Legend #9
“Probationary” employees have fewer job rights.
Truth: While employers may have more flexibility to take action with respect to workers who have not been employed long, they have all the same “legal rights” as long-term employees!
Whether an employer places an employee on a “probationary” period at the beginning of his or her employment, or an employee is on probation for disciplinary reasons, the employer is still required to abide by minimum wage, discrimination, and workers’ compensation laws regarding that employee.
In tomorrow’s Advisor, more urban legends of HR, plus a solution to the “we don’t have time to train” dilemma.
uits and other challenges for HR.
I can easily see this article becoming part of HR’s training for new managers. I especially like how you label them as “urban legends” instead of something more insulting like “mistakes,” which puts managers on the defensive.
These are not, by any definition, “urban legends.” They’re not even “myths” in the common vernacular. They’re more like perceptions or opinions.
I would also suggest looking up the word “debunked.”
Urban Legend #14: 9 = 13.