Re: Managing Difficult Situations

There’s no shortage of negative employee behaviors that can have an ill effect on the entire workplace. The problem is when the behavior is not so bad to warrant discipline or termination, but the manager must do something. And that something isn’t to drop the problem employee in HR’s lap!

Learn how to overcome some of the most griped-about employee behaviors with these tricks of the managerial trade.

Gripe #1: She thinks she’s too good to [fill in the blank] just because she’s an exceptional performer.

Manager actions: You need to set this employee straight. If you want her to complete the duties that she finds beneath her, then by all means tell her so.

Just so there’s no confusion, explain exactly what you expect her to do. In other words, don’t just tell her she has to start doing the “grunt” work; give her a bulleted list of the tasks you expect her to complete and the frequency with which she’s to complete them.

Remind her that the duties are part and parcel of the job and that success is not a get-out-of-grunt-work-free card. Express your confidence in her abilities to handle these duties while remaining a high performer.

Gripe #2: He constantly interrupts my conversations with other employees for no good reason.

Manager actions: There’s an art to putting someone off without making him feel put off, which requires being firm and polite. When his issue doesn’t warrant that you immediately stop what you’re doing and devote your attention to him, then boundaries need to be set. Explain why he must wait and when he will get his turn. Say something like: “Jane and I are just finishing up resolving a customer’s complaint. We’ll be done in 10 minutes. I’ll come down to your office then.”

People often interrupt due to an inflated sense of self-importance. The tactic described above ought to do the trick. But in situations where the individual is riddled with self-doubt and truly believes his issues require immediate attention, then take the extra step to allay his fears that waiting 10 minutes will not mean the end of the world.

Gripe #3: She gets her work done, but she always waits until the last minute to get started.

Manager actions: Point out the obvious—that she shouldn’t wait until the last minute in case she needs to drop everything in order to put out a fire. If pointing this out doesn’t case a change in her behavior, you need to work with her on prioritizing and scheduling her work. Establish a game plan ahead of time. Cut big projects into smaller assignments and set mini-deadlines for them.

Or, give her false deadlines. Nothing drastic, perhaps a day or two earlier than normal; just make sure she still has a reasonable amount of time to complete the task, but also enough time to handle anything that may pop up unexpectedly.

Re: Employment Law–Basic Training

When you’re faced with an employee or applicant who may have a physical or mental disability, your legal antenna should go up right away. That’s because the complex Americans with Disabilities Act (ADA) gives qualified disabled people special rights in the workplace. Here’s what a manager needs to know about the ADA:

Who is protected?

The ADA covers more people than those who are deaf, blind or in wheelchairs. Technically, people are “disabled” under the ADA if they have a physical or mental impairment that “substantially limits one or more major life activities,” such as sleeping, standing or working.

Depending on the person’s condition, that can include ailments such as epilepsy, diabetes or arthritis, plus mental impairments, such as major depression and bipolar disorder. The ADA protects people with a history of such impairments, such as an employee whose cancer is in remission.

The law also says that if an employer treats a person as being disabled, then that person earns protection under the law, even if he or she wouldn’t otherwise qualify. That’s why, when faced with an employee or applicant who may be disabled, it’s important for managers to talk with HR about how to respond.

What are you required to do?

Employers must make sure that people with disabilities have equal access to jobs, compensation and promotions. The ADA also requires employers to prevent harassment because of a person’s disability. With limited exceptions, you must keep confidential any medical information about applicants or employees. If a person is “disabled” under the law, you must provide reasonable accommodations to assist that person.

Can you ask disabilities?

The ADA says employers can’t ask questions about a person’s disability during the application process. That includes direct questions about the impairment, questions about medications they take or questions about the person’s workers’ comp history.

You can, however, make business-based inquiries, such as:

• Whether they have the right experience, training and skills.
• Whether they can satisfy the job’s essential functions.
• How much time off the applicant took in past jobs (but not why).

After making a job offer, you can then ask any disability-related questions and conduct medical exams, as long as you do this for everyone in that same job category. You can’t pull back a job offer simply because you discover a person is disabled. That would be blatant discrimination.

You can, however, withdraw a job offer if it’s clear after the medical inquiry that
the person can’t perform the job’s essential functions with or without a “reasonable accommodation.”

Note: You don’t have to hire a disabled person who doesn’t have the appropriate skills and experience. But if the deciding factor is the disability, you must prove that the disability interferes with the job’s essential functions.

What's a 'reasonable' accommodation?

If an employee has a qualified disability, you must make “reasonable accommodations” to help him or her perform the job’s essential functions. Some examples:

• A diabetic employee may need regular breaks to eat properly and monitor blood levels.
• A person with a back problem may need a stiff-backed chair.
• A person with cancer may need leave to have radiation treatments.

When potentially disabled employees approach you with accommodation requests, they set in motion the ADA’s “interactive process.” It’s important to be able to identify such requests as possible ADA-covered requests and then alert HR. You should begin laying a paper trail now to show a good-faith effort to comply with the law.

Employers don’t have to go along with every accommodation request. Requests are unreasonable if they cause the organization an “undue hardship,” meaning it’s too difficult or too expensive to provide.

What if a disability threatens safety?

The ADA allows you to ask questions related to a disability and even require a medical exam if an employee’s medical condition appears to be causing performance or safety problems. You can also reject a job applicant (or terminate an employee) with a disability for safety reasons if the person poses a direct threat to others.

What about drug and alcohol use?

Current illegal use of drugs isn't protected by the ADA, so you don’t need to hire or retain someone who is using illegal drugs or fails a drug test. Also, employees who are found drinking on the job can be fired for company violations.

However, recovering alcoholics may be a different story; they could be covered under ADA protections. As a result, you may need to offer accommodations, such as allowing periodic calls to their AA sponsor or leave for meetings.

The ADA at a glance

The ADA prohibits private employers with 15 or more employees from discriminating against qualified people with disabilities during hiring, firing, promotions, pay and training. (Some state laws apply to smaller employers.) Specifically:

• You can’t ask about a person’s disability during hiring.
• Job offers can be conditional on a medical exam, as long as all applicants take the same exam.
• The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.”
• Employers must make reasonable accommodations for the person’s disability unless doing so would create an “undue hardship” for the organization.

Re: Employee Lawsuit Risks

Lawsuits by employees against their employers have grown tremendously in the past decade. Sometimes those lawsuits have merit, sometimes they don’t. But either way, those lawsuits cost time and money to fight—money that is better spent on product development, training and raises.

Even worse, some laws—including federal overtime law and the FMLA—allow employees to sue their supervisors directly, meaning a manager’s personal bank account could be at stake.

Most lawsuits are not triggered by great injustices. Instead, simple management mistakes and perceived slights start the snowball of discontent rolling downhill toward the courtroom.

Here are 12 of the biggest manager mistakes that harm an organization’s credibility in court. Use these points as a checklist to shore up your personal employment law defense:

1. Sloppy documentation

Most discrimination cases aren’t won with “smoking gun” evidence. They’re proved circumstantially, often through documents or statements made by managers. Documents, particularly email, can help the employee show discriminatory intent.

The lesson: Always speak and write as if your comments will be held up to a jury someday.

2. Not knowing policies, procedures

Courts expect supervisors to know their organization’s policies and procedures. If a manager admits ignorance, legal experts say juries typically view that as purposeful, not forgetfulness.

That’s why it’s vital to make sure you understand company policies. Don’t make decisions based on a vague memory of a policy. Double-check it or check with HR before taking action.

3. Inflated appraisals

Performance reviews are one of the most important forms of documentation, yet managers sometimes inflate the ratings for various reasons. If a manager later tries to cite “poor performance” for that same person’s termination or demotion, those overly positive appraisals create a heap of credibility concerns.

Be direct, honest and consistent.

4. Shrugging off complaints

Turning a blind eye to any employee’s complaints of unfairness or perceived illegal actions is a guaranteed credibility buster. Comments like “I’m not a babysitter” or “Boys will be boys” will hurt employee morale and jeopardize your standing in court.

5. Interview errors

It may be easy to answer the question: “Why did you hire that person?” But managers often run into trouble when they have to answer: “Why did you reject certain other candidates?”

That’s because rejection decisions typically aren’t well-documented and the decisionmaker may not recall the reasons later.

During interviews, avoid any question that doesn’t focus on this central issue: How well would this person perform the job he or she has applied for? Never ask about age, race, marital status, children, day care plans, religion, health status or political affiliation.

6. Changing your story

If an organization changes its reasoning for making an adverse employment decision (firing, discipline, demotion, etc.) midstream, its credibility is shot.

Be straight with employees from the start about reasons for discipline. Don’t sugarcoat your comments.

7. ‘Papering’ an employee’s file

Most managers hear the mantra, “Document, document, document.” But it’s possible to overdocument, especially when it occurs right before a firing. Courts will be able to see through a rush of disciplinary actions cited in the days before termination.

Be consistent in documenting negative and positive performance and employee behavior. It’s best to keep a “performance log” for each employee, regularly making notes in each file.

8. Being rude, mean-spirited

An organization can have the best case in the world, but if the key supervisor comes across as rude, insensitive and mean, the attorney’s job of selling the case to the jury will be much harder.

Use the golden rule in handling staff.

9. Careless statements to feds

When responding to charges filed with the EEOC or state agencies, employers often have to submit position statements. Managers may be called upon to help provide some of that information. You can bet the employee’s attorney will review these statements, particularly affidavits, and introduce them at trial, especially if your story has changed. Keep your story consistent.

10. Lack of legal knowledge

Juries will expect—and the plaintiff’s lawyer will encourage them to expect—that employers stay abreast of developments in employment law. Refresh yourself regularly on your organization’s policies, read communications sent from HR and, when in doubt, ask questions.

11. Dictating accommodations

Under federal law, employers must make “reasonable” workplace changes to accommodate an employee’s disability. How do you choose those accommodations? The law says it must be a give-and-take process to reach a solution. Managers too often try to dictate the solution.

12. Firing employees too fast

Managers who fire without first trying to improve the worker’s performance will appear insensitive and potentially discriminatory in court. Conversely, managers who try to improve things before resorting to firing will stand a better chance of avoiding a lawsuit.

Conducting workplace investigations is one of the most challenging and most important duties that HR professionals must take on. How you respond to complaints about harassment or other misconduct can have huge legal and practical implications for your organization.

Here are the 10 most common workplace investigation mistakes:

1. Ignoring complaints

Failing to take action on a complaint is one of the biggest mistakes employers can make. Choosing not to conduct an investigation after learning of allegedly inappropriate conduct may result in the company being legally responsible for harm caused to any employee, client or others due to the inappropriate conduct. Investigate regardless of how frivolous or unfounded the complaint appears, or who complained.

Note: Just because a complaint is anonymous does not excuse failure to investigate.

2. Not having a plan

Create a preliminary plan for the investigation so you understand the purpose of the investigation. Think about these five W’s:

• Why are you investigating?
• Who will conduct the investigation?
• Who are the witnesses who need to be interviewed?
• What evidence needs to be collected?
• What is your investigation timeline?

3. Taking too long

Delaying the start of an investigation may lead to employer liability. Particularly in harassment and discrimination cases, deciding to wait to begin an investigation may be viewed as subjecting the employee to additional unlawful behavior.

Your timing goal: to strike a balance between adequately preparing for the investigation and avoiding unreasonably long delays.

4. Not training investigators

Poorly trained investigators can’t promptly respond to complaints, making the inquiry ineffective. Train several employees to conduct an impartial, professional and credible investigation.

Another option is to hire a trusted HR colleague or use in-house counsel or an outside attorney to conduct the investigation. No matter who you choose, making sure that the investigator is trained and able to begin the investigation promptly is key.

5. Accepting half-measures

Conducting a sloppy investigation by failing to interview necessary witnesses, failing to review relevant documents and ignoring potential issues that come up during the investigation can create just as much legal exposure as not doing an investigation at all.

6. Conducting unlawful searches

Searching an employee’s personal belongings or monitoring certain communications without consent can violate several federal and state laws. Avoid liability by informing employees of surveillance policies. Obtain their consent to monitor and access information on any devices employees use at work.

7. Interviewing too aggressively

Aggressive tactics may result in legal claims such as false imprisonment and coerced confessions. More practically, you risk dissuading employees from cooperating in the investigation, thus failing to understand what happened.

Advice: Conduct interviews in appropriate locations, outline questions in advance and use open-ended questions when possible, to get the entire story.

8. Promising confidentiality

Never promise an employee that his or her complaint will remain confidential. There will always be certain information that must be disclosed in order for a thorough investigation to be completed. You run the risk of a possible violation of federal labor law if you demand absolute confidentiality from the witnesses.

9. Failing to create a report

Document investigation processes and findings to support the company’s action regarding the allegations. Failing to document evidence, results of interviews and other relevant findings is just as bad as failing to conduct an investigation.

Prepare a report for every investigation. Include a summary of the matter; the identity of all parties and witnesses; a description of the documents, findings and credibility determinations; and recommended action.

10. Pulling punches at the end

Failing to reach a conclusion and take the necessary steps to address misconduct will ultimately expose the employer to legal liability. Once the report has been completed, a determination should be made regarding whether misconduct occurred and what appropriate actions should be taken.

Make sure the complainant does not suffer any adverse employment actions resulting from the determination unless you can prove that the allegations were made in bad faith.

David M. Ferrara is a member of Bond Schoeneck & King and Alyssa Campbell is an associate.