by Stephen Bruce, PhD, PHR
Sometimes it seems as though there are a thousand ways supervisors and managers—with the best of intentions—can practically beg for a lawsuit. We’ve distilled it down into 10 major sins you can talk to your supervisors about (and you might as well include your managers).
Sin #1. Making Unlawful Pre-employment Inquiries
That’s an interesting accent you have. Where were you born?
Do you have any children? If so, will you have any daycare problems?
By the way, we’re all about diversity here.
Inappropriate questions during interviews and other pre-employment contacts are a primary source for claims of discrimination. The courts generally assume that if you asked a question, you intended to use the answer as a factor in your hiring decision. Therefore, any questions about or references to protected categories like sex, age, race, national origin, or religion can later be used against you in court in a discrimination claim.
Sin #2. Delivering “Dishonest” Evaluations
I’m giving you a “satisfactory” rating and I think we both know what that means in this company.
I gave her a “good” rating even though her work is poor, because I think a “poor “rating would be demotivating.
Many managers and supervisors avoid the discomfort of delivering a review that indicates poor performance and instead cop out with a “satisfactory” rating. As a result, many legitimate actions taken against an employee based on poor performance can be questioned because the performance reviews are positive.
Sin #3. Too Vague in Discipline and Performance Write-ups
Sally, your work could use improvement.
I’m making a note here that we talked about your performance.
Jay’s poor performance is unacceptable, and I’m just going to spell it out—he’s lazy.
Again because of the desire to avoid unpleasantness, managers and supervisors will often write something on performance evaluations like “needs improvement.” That’s too vague. Does it mean the employee did a great job, but there’s always room for a little improvement, or does it mean that the employee did a terrible job?
Or, how about “Talked about your performance.” Was that to tell her how exceptional her performance and behavior were?
And then we’ve got judgment words like “lazy.” Again, too vague. Offer documentation and give specific examples of the unacceptable behavior.
Sin #4. Making Rash Disciplinary Decisions
That’s it, I’ve had it, you’re fired.
Ultimately, firing may be the appropriate thing to do, but instantly in anger isn’t the way to do it. First of all, an angry, public tirade gets those “I’m going to sue” juices flowing. Second, you should never fire without carefully reviewing the circumstances with HR. They are in a good position to evaluate the appropriateness of the punishment and its consistency with previous similar cases.
Sin #5. Making Uninformed Responses to Medical Leave Requests
You want what? You want 5 weeks of bonding leave during our busiest season? I don’t think so.
You’re going to take every Friday off? That’s not going to happen.
Few supervisory situations are as frustrating and challenging as dealing with employee requests for medical leave, but managers and supervisors have to curtail that frustration and respond professionally.
You just don’t want your managers and supervisors trying to deal with FMLA leave. The basic rule for managers and supervisors should be: Contact HR.
Sin #6. Not Realizing the “Power” of the Supervisor
Let’s go out for a drink after work. Then maybe we’ll grab dinner.
I’m hoping everyone will contribute generously to my charity.
Inviting an employee out for a drink after work may seem a simple gesture, but the subordinate may view it as an order. Especially if the request is repeated, it can always be viewed as coercion or harassment. Supervisors and managers are agents of the company, and when they engage in behavior that may be considered harassment, it’s especially egregious because of the power they have over their employees.
Another aspect of supervisors’ agent status is that if the supervisor knows, the company knows. The company can’t say, “We weren’t aware of the situation.”
Sin #7. Not Knowing and Not Enforcing Policies
We’re busy now. Talk to me about that harassment business next week.
If you think the work’s not safe, you’re free to quit any time.
Nobody in this department can talk about salaries or benefits with other employees or outsiders, especially online.
Supervisors and managers are the front line for interpreting and enforcing the company’s policies. But if they don’t know the policies and their associated responsibilities, even with the best of intentions, they’ll be setting you up for a lawsuit.
Sin #8. Making Wage/Hour Blunders
We’re out of overtime. Can you clock out and then set up for tomorrow?
You new recruits will be working alongside our regular employees, but you will all be independent contractors.
Tracy, make sure you stay close to the phone during lunch.
Sandy, keep your phone near you evenings for calls from the West Coast.
Wage and hour should be simple but it just isn’t. The most common problems are:
- Overtime. You have to track it, pay it, and include bonuses in the “regular rate” for overtime calculations.
- Off the clock. You have to pay for all hours worked, even if the employee volunteers and even if you’ve forbidden the employee to do work.
- Misclassification. Many “independent contractors” are actually employees who need to be paid overtime. And many “exempt” employees have duties that do not meet the criteria for exemption.
Sin #9. Letting Problems Fester
Teresa’s crossing the line with her behavior, but she surely knows it—she’ll figure it out.
Oh, that’s just Jimmie. He means no harm—he’s just “old school.”
With bad behavior, it’s always tempting to ignore it in hopes that the behavior will improve on its own. But you know that’s not going to happen. Unfortunately, as time goes by, you appear to be condoning the behavior.
Sin #10. Making “Side Agreements”
Stay after you clock out for the next 2 weeks until we get this job out the door, and I’ll make it up to you by writing in extra overtime next month when the budget switches over.
Take this transfer, and I’ll guarantee you a promotion at the end of the year.
I can’t pay you for this extra work, but you and your spouse can go out for a nice dinner on the company account.
Managers under stress may be tempted to make “side agreements” that either go against policy or consist of promises that likely won’t be kept.
Three problems arise with side agreements:
- They are illegal and there will eventually be lawsuits.
- Employees will be left feeling that agreements haven’t been honored.
- Others who didn’t get the special treatment or privilege may sue.
OK, that’s our top 10 sins of supervisors and managers. Avoid them, and stay hassle—and lawsuit—free.