The Six Training Topics that Will Keep You Out of Court

1. Wage/Hour/FLSA

Why it’s a challenge: Supervisors and managers think they know the rules, but the rules are more complex than they think they are.

Typical manager/supervisor blunders:

• “I won’t pay for unauthorized overtime.” In most cases you must pay for all hours worked even if you forbid workers to work. You can discipline them for disobeying, but you have to pay them.
• “Yeah, they grab the phone now and again when they’re home.” If non-exempt workers are spending more than a de minimus amount of time answering business phone calls after work hours, they probably need to be paid.
• “I’m not recalculating overtime just because I gave a little bonus at the end of the month.” Overtime must be paid on the “regular rate” which includes many bonuses and other payments. If the bonuses are awarded after pay for the period has been made, you must recalculate and pay the additional amount.

2. Hiring

Why it’s a problem: Most managers are uncomfortable, unprepared, and untrained in interviewing. They end up having a chat rather than an interview. They are likely to ask:

Do you plan to start a family soon?
When did you graduate from high school?
What sort of accent is that?
We usually hire young guys right out of college for that job.

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All of these questions and many more are forbidden as they set the company up for a charge of discrimination. Managers may say, “Oh, I was just making conversation,” but courts will assume you asked the question for a reason, and what reason could there be other than discriminating?

3. Retaliation

Why it’s a challenge—Unfortunately, it’s natural for managers to feel upset when someone complains about their department or their management style. So they are likely to think:

He’s not getting away with going above my head—we’ll see about this.
I think she won’t get that raise and promotion after all.

And there’s a special problem with retaliation—juries really don’t like it. It seems so unfair for the big corporation to single out one employee or to be “out to get” an employee. In court, you’ll have to overcome that sympathy vote, and it’s not easy.

Of course, maybe whatever negative action you took against the employee was deserved and it’s “just a coincidence” that it happened two days after the employee filed a complaint. Unfortunately, as one expert says, even the least competent opposing attorney can fairly easily turn that coincidence into a convincing case.

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4. Appraisals

Why it’s a problem. Appraisals are a problem because managers and supervisors are uncomfortable giving bad news or criticism, so they fail to clearly describe performance failures.

For example, they may say “satisfactory” when performance is anything but, secure in the knowledge that at their company “satisfactory” is a low mark. But it won’t seem low to a jury (“Just what did your signature mean here where you wrote ‘satisfactory’?”)

Work to clarify your performance appraisal system for managers and supervisors and, for sure, make sure that they are honest in their appraisals of individuals who are not performing up to standard. Those are the people who are likely to sue.

In tomorrow’s Advisor, the rest of the top six, plus an introduction to the new, full-function total training resource, Training Today.