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New Year’s Resolutions for a Healthy Employer
- “Get a Check-up” –
Conduct a Targeted Employment Practices Audit
- “Adopt a Healthy Lifestyle”
– Develop Best Employment Practices
- “Get in Shape” –
Train, Train, Train
- “Stay in Shape” –
Develop Easy to Use Resources to Reinforce Training
- “Stop Smoking” –
Put an End to “Smoking Guns” in Your Files
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Throughout the year, Avoiding Lawsuits encourages
employers to think in practical terms about improving the
health and fitness of their businesses. As in any health and
fitness program, however, the most difficult part is getting
started.
There’s no time like the present… the beginning
of the New Year has long been recognized as the time to commit
to self-improvement. So in that spirit, we offer the following
New Year’s Resolutions for employers who seek health
and fitness through the avoidance of debilitating and expensive
employment law claims and liabilities.
I. Resolve to Complete a Targeted
Employment Practices Audit
An analysis of established employment policies
and procedures – in our parlance, a targeted “legal
audit” -- will allow an employer to focus on and eliminate
the most likely sources of future employee claims and liabilities.
A legal audit of this type, properly conducted
by an expert in the field, will generally proceed in two stages.
The first stage will seek to analyze a company’s policies
and procedures from the point of view of legal compliance
and practicality. Do the policies and procedures conform
with the law? Are they workable, understandable and business-friendly?
Do they fail to address certain issues that should be addressed?
Do they anticipate the problems the company is likely to face?
Are they consistent? Are they up to date? The answers
to questions like these help to define a company’s lawsuit
prevention agenda.
The second stage of the legal audit is more challenging: through
interviews of the employees who are tasked with the job of
actually carrying out the policies and procedures, it seeks
to illuminate the difference between what’s written
in the manual, and what actually occurs in practice.
It is in the gap between theory and practice where some of
the most insidious lawsuit generators reside. Picture a company
executive being cross-examined by a wronged employee’s
attorney. The attorney points out the fact that the company’s
manual includes the proper ADA procedures, and then points
out that, nevertheless, the company inexplicably allowed its
managers to utilize unlawful procedures. “So, Mr. Smith,
it’s not as if you didn’t know how to comply with
the law – it’s right there in your very own manual.
It’s that you purposefully chose to violate the law,
isn’t that right?”
A legal audit should separately analyze matters
pertaining to executive employees, management employees, white
collar employees, and blue collar employees, in addition to
issues pertaining to union versus non-union employees. The
areas of focus should include, at the very least, the following:
- Review of existing employment policies and procedures,
including all manuals, memos and other directives comprising
or defining such policies and procedures;
- Review of employment application, interview and hiring
procedures;
- Review of disciplinary procedures;
- Review of employee evaluation/promotion/work assignment
procedures;
- Review of termination procedures;
- Review of employee complaint-handling procedures;
- Review of compliance with basic employment law requirements,
such as Americans with Disabilities Act, Family and Medical
Leave Act, Age Discrimination in Employment Act, Equal
Pay Act, Pregnancy Discrimination Act, sexual harassment
issues, other Title VII issues (i.e., discrimination on
the basis of gender, race, religion, nationality), and
Fair Labor Standards Act;
- Review of file documentation procedures pertaining
to, for example, employee performance, evaluation, and
discipline;
- Review of employee training and knowledge at all levels
in order to identify primary training focus;
- Review of prior employment claims and dispositions;
- Review of collective bargaining agreements and union
procedures and their impact on employment policies and
procedures.
II. Resolve to Develop a System
of “Best Employment Practices”
Once an employer completes a legal audit, it
will have identified what areas of its business practices
need to be addressed and changed, and a tailored effort to
devote attention where it is most needed and can do the most
good can begin.
In this effort, there is frequently a temptation
to use a formulaic, off the shelf policy manual approach.
This is extremely dangerous. It cannot be stressed too much
that, when it comes to matters affecting the employer-employee
relationship, there is no one-size-fits-all solution. Employers
who use canned “best practices” approaches soon
find out that they are spending time and effort fixing things
that really don’t need fixing, while ignoring the individualized
focus that should be placed on less obvious, but more risky
areas of concern. It is not unlike getting a physical –
some people may have high blood pressure; others may have
no blood pressure problems but may have problematic cholesterol
levels; others may be overweight and benefit from a jogging
program; others may require more exercise, but may have knee
problems that mandate a different kind of exercise program.
The cure has to fit the particulars of the disease.
To do it right, employers must make judgments,
and design and implement compliant policies, procedures, practices
and forms, based on the risk factors revealed by the legal
audit, as well as the specifics of company culture and business
methods, number of employees, percentage of off-site employees,
number of blue collar/white collar employees, industry nuances,
locations where offices are maintained and business is conducted,
specific regulatory requirements, technology capabilities,
budget . . . all of this goes into the analysis of what is
really a “best practice” for a particular company,
as opposed to what some form book calls a “best practice”
in a generalized sense.
During this process, it is also important to
remember that employment law does not always make common sense.
Consequently, in many instances, a primary goal of any “best
practices” effort is to substitute well-defined and
easy to use forms, policies, procedures, and protocols for
management discretion in key decision-making areas –
even the most seasoned and reasonable managers can make horrific
legal mistakes by doing what seems “right,” and
the goal should be to institutionalize “do this when
that happens” protocols for management
ad-libbing.
At the same time, it is equally dangerous for
managers to assume that they always must accede to employee
demands, for fear of violating some unknown and nonsensical
employment law. Best practices should also be geared toward
establishing a “know when to say no” basis for
employment decisions.
There are two, particularly important “best
employment practices” subjects that will be included
in virtually any effort to minimize lawsuits and liabilities:
an employee complaint procedure; and a supervisor’s
guide.
A. Employee Complaint
Procedure
A crucial strategy in preventing employee claims, particularly
harassment claims, is to establish a legally-compliant internal
complaint procedure. Numerous court cases have focused on
the nature and content of the complaint procedure as a key
determinant of employer liability. Once in place, and so
long as the procedures have been respected by management
and properly communicated to the workforce, an employee
who refuses to abide by the process will often have his/her
complaint dismissed by a court or agency, whether or
not the employee was actually wronged. The idea is
that if the employee did not give the employer a chance
to rectify the problem by using the complaint procedure
the employer provided for that purpose, then the employee
should not have the right to proceed.
Establishing such a complaint protocol can be invaluable
for a number of other reasons as well. For instance, a complaint
procedure serves as a check and balance that can allow a
company to reverse a poor decision, and that can minimize
(or eliminate) the employee’s claim. It can also give
management the opportunity to discuss alternative remedies,
aside from formal claims, with employees who have been wronged.
And a complaint procedure, properly presented, will allow
a company to capitalize on the sense of fair play already
imbedded in the culture of the company.
B. Supervisor’s Guide
When you teach someone to drive, you go beyond bare explanations
of traffic rules – you stress why it’s important
to respect the rules regarding a yellow light or a crosswalk
or a “work area” sign, how to deal
with situations involving the rules, and the consequences that can result if the rules are violated. In the effort
to increase the likelihood that the new driver will become
a safe driver, you intuitively seek to provide an understanding
of why the rules are important, how to deal with them, and
what will happen if they are not respected. All of that
makes it more likely that the new driver will become a competent
and safe driver. It’s the same with almost anything
else, from teaching someone how to play baseball, to training
a new administrative assistant.
Yet, in the world of employer-employee relations, many companies
simply distribute a policy manual to supervisors (i.e.,
anyone with the ability to affect the job conditions of
any other employee), and send them on their way. There is
very little structured training on why the policies are
important, how to implement and interpret them in the real
world of the work environment, and the consequences
that will befall the employee, the supervisor and the company
if the rules are not respected.
A Supervisor’s Guide helps to fill this crucial gap.
In addition to explaining the “why to do it,”
“how to do it” and “what will happen if
you don’t do it” explanations, the guide should
provide forms, procedures, checklists and “cheat sheets” that will help the supervisor translate company policies
into tangible actions designed to prevent, minimize and
quickly resolve potential claims. Typical topics include
the following:
- Applicant interview procedures;
- Applicant hiring decisions;
- Employee discipline;
- Employee evaluation;
- Promotion and work assignment decisions;
- Employee layoff and termination decisions;
- Handling employee requests for accommodations based
on claimed physical or emotional conditions (i.e., preventing
ADA claims);
- Handling employee requests for leave (i.e., preventing
FMLA claims)
- Preventing sexual harassment claims;
- Preventing overtime claims;
- Preventing discrimination claims;
- Documentation techniques and requirements
III. Resolve to Implement
Your Best Practices
Through Management Training
 Promulgating policies and procedures, by themselves, is an
exercise in business futility, and the ultimate triumph of
form over substance. Policies and procedures must be coupled
with training, for at least two reasons.
First, without training, policy and procedure manuals become
empty and quickly-forgotten words.
Second, in the wake of Supreme Court rulings on this subject
in the late 1990s, legal precedent establishes that merely
publishing a policy and procedure manual, without effective,
meaningful training, will subject a company not only to liability,
but to the prospect of punitive damages.
However, the problem with most corporate training –
whether in person or e-learning, whether focused on top executives,
line managers, or in-house HR personnel -- is that it quickly
loses its effect when the training session is over. That’s
because most corporate training seeks to convey information,
instead of know how – that is, most training
in the employment field is comprised of Power Point lectures
defining what the ADA provides, for instance, instead of also
focusing on how to use and apply the ADA in everyday situations.
The latter is, obviously, much more difficult than the former,
just as teaching someone how to cook is much more difficult
than handing them a recipe.
For companies seeking to utilize e-learning methods, the
problem is exacerbated: a skillful in-person trainer using
the right techniques can hold the interest of trainees, but
when the training session is presented on a computer monitor,
grabbing and retaining trainee focus becomes much more difficult.
The result is that most so-called e-learning is, candidly,
boring, to the point of being painful; the presentation becomes
a two-dimensional lecture with slides and, however “glitzy”
the production may be, boredom and inattention, coupled with
a lack of retention, inevitably results. As e-learning becomes
more popular, studies abound in support of the concept that,
in order to be effective, e-learning must take a
wholly different form than in-person training.
The following principles guide our recommended approach:
- Canned training presentations are ineffective.
The training must be customized to the employer and the
realities of its workforce. Again, one size does
not fit all. In both in-person and e-learning presentations,
in order for training to have any impact, it must speak
to the audience. Participants should feel that the trainer
understands not only their business in general, but the
true realities of day-to-day operations. When the training
speaks to the specific concerns of employees and the employer’s
particular risks, the lessons become much more meaningful
and effective.
- The training must focus less on knowledge and
more on decision-making skills. There is a huge
gap between telling people what they are and are not supposed
to do in the abstract (which is where most corporate training
begins and ends), and equipping them with the “under
the gun” decision-making and problem-solving skills
they will need when faced with a real problem in the real
world. Effective training must focus on demonstration
and participation more than do’s and don’ts
(for example, the right way to conduct an employment interview,
how to recognize and react to a request for accommodation
under the ADA, what to do when faced with a sexual harassment
complaint, and so on).
- The content of the training doesn’t matter
if no one pays attention to it. Most of the trainees
who attend these kinds of training sessions are required
to do so, and they may resent being force-fed this know-how.
That makes it particularly difficult to get and hold the
trainees’ attention. One of the most effective ways
to do this is to focus on how the training will help not
only the company, but the trainees themselves –
in terms of their career advancement and security, and
in terms of avoiding the personal embarrassment of a damaging
deposition or court appearance in which their con-compliant
conduct is exposed. Other than that, packaging is everything,
and effective training takes a lot more than a talking
head, PowerPoint presentation. Today’s employees
have been raised on the rapid fire, graphic-based approaches
of CNN, USA Today, and MTV. You can’t fight that
reality and expect to succeed.
Feel free to contact
us for a demo disk of our e-learning training, our new
“live e-learning” technology, or for more information
on our training strategies.
IV. Resolve to Make the Effect
of Your Employment Practices Changes
and Management Training Last for the Long Term
Even the best training fades from memory unless pro-active
steps are undertaken to incorporate the major points of the
training into the trainee’s work day. You have to turn
the training from talk to practice – you must create
behavioral changes that last.
For example, here are some of the techniques we use in our
training engagements:
There is nothing more frustrating than doing the right thing,
and not being able to prove it in the face of an accusation
that you did the wrong thing. Judges, hearing examiners and
juries do not have “truth-o-meters” – they
cannot accurately determine who is telling the truth merely
by looking at them. There are some people who would never
tell a lie, and yet they appear to be liars; and there are
some people who have no respect for the truth, and yet they
appear eminently sincere and trustworthy. Good liars often
win lawsuits.
The antidote for this unfortunate reality is simple to state,
but difficult to implement: in the battle between truth-tellers
and liars, documents are the ultimate weapon. If you have
the right kind of documentation to back up your side of the
story, much more often than not, those charged with the responsibility
to decide who is telling the truth will see things your way.
But there is also a dark underside to documentation: just
as your documentation may prove you did the right thing, it
may also be used to prove you did the wrong thing. And, even
worse, this could happen even if you did do the right
thing. For example, suppose you fire an employee for being
incompetent over a lengthy period of time. The employee charges
discrimination. The employee’s attorney wants to see
the employee’s evaluations. You pull them out and, rather
than documenting the employee’s failures, they are consistently
average – the employee’s supervisors took the
easy way out, and checked the “meeting expectations”
box to save themselves the hassle of dealing with a disgruntled
employee. Your documentation will become the smoking gun that
your employee will be use to hold you up for an unjustified
settlement.
Here are the basics:
Lesson #1 - EVERYTHING is Exhibit “A.”
Notes, memos, e-mails and, everything else that ends up
in a file can be used as evidence. As a result, it is
absolutely mandatory to develop documentation policies
that reduce the risk of creating damaging documents and
increase the risk of producing truthful documents that
show what really happened. All employees must understand
that whatever they put in writing may end up in a courtroom.
Lesson #2 – Consistency, consistency,
consistency. You cannot selectively
document – that makes it appear as though you manufacture
documents when it benefits you to do so, and you bury
the evidence for everything else. To be effective, documentation
has to be the rule, not the exception.
Lesson #3 – Maintain control
of the files. Nothing is more dangerous
than the unknown. All documentation pertaining to an employee
should be kept in a centralized location, preferably within
the HR or Legal Departments, depending on the structure
of the organization. There is no such thing as “private
personal notes” in litigation. Everything is subject
to discovery. And you better discover it before your adversaries
do.
Claims by employees against employers are increasing exponentially.
Make this the year you resolve to balance the burdens of legal
compliance and liability avoidance against the demands of
operating a profitable business. At the very least, all companies
should consider the following:
- A “legal audit” analysis of employment policies
and procedures, and a “best practices” revision
where required;
- Basic management training in preventing employee claims
and liabilities, including a 2-3 hour in-person training
session for top management, and an efficient e-learning
option (CD-ROM, over the web, or via our new “live
e-learning” technology) for lower level managers.
Getting healthy, in any context, is never easy, but it does
not have to be painful – and when weighed against the
alternatives, delay is never the best option. Helping employers
minimize the inconvenience and cost of this effort is our
core business. We would be happy to meet to discuss the options.
Let us know if
we can help.
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