It’s not always the employee’s fault when things go bad for an employer. Sometimes the employer has no one to blame but itself. Here are six of the most common ways employers sink their own ships.
No. 1: Pointless workplace rules that just make employees mad. I can’t take credit for this one — I got the idea from this article that recently appeared in Forbes. I don’t agree with the author 100 percent, but I adamantly agree with her on some of them, especially requiring an employee to bring a doctor’s note whenever he is out sick (not requesting leave under the Family and Medical Leave Act, not requesting a reasonable accommodation for a disability, but just “out sick”). Also, amen to No. 5 in the Forbes article.
No. 2: Failure to “meet employees where they are.” My ideal workplace would be a more diverse version of Mayberry, North Carolina, where everyone is quirky as heck, and Sheriff Taylor knows it and makes allowances for them — even to the point of letting Barney Fife continue as a deputy as long as he keeps his one bullet in his pocket instead of in his gun, or letting Otis put himself in jail himself when he’s drunk. A real-world workplace can’t (and shouldn’t) be that flexible, but it’s good for employers to take employees’ individuality into account as much as they can. When a reasonable accommodation issue arguably arises under the Americans with Disabilities Act, or is needed because of the employee’s religious beliefs or practices, pregnancy, or lactation, of course the employer should try to make it. But I’d go beyond that and try to accommodate employees’ needs and personalities (within reasonable limits) even when it isn’t legally required.
No. 3: Terminating in the heat of passion. No matter what an employee has done, you can always suspend her for a couple of days while you regain your composure and, perhaps, ask for a second or third opinion. Then you can objectively assess whether termination is the right thing to do under the circumstances, whether you’ve treated “similarly situated” employees the same way, whether to allow the employee to resign, whether to offer severance pay, and how to articulate the reason for the termination. I’ve never seen an employer go wrong by taking a few days to chill.
No. 4: Falling behind on essential training. You know, like workplace harassment, safety, all that important stuff. In the harassment context, the mere fact that you conducted training may give you a defense in a lawsuit. (It’s true!) In addition, training tends to flush out fresh complaints that you might not otherwise hear about. When you hear about it, you can put a stop to it, which is a good thing. And, of course, it serves as a valuable refresher for supervisors, who have to handle complaints properly, and for employees, who need to govern their own behavior and know what to do if they become victims. Plaintiffs’ lawyers love to ask supervisors (1) whether they ever had harassment/EEO training, (2) how long ago they had it, and (3) who conducted it. (If they’re really mean, they’ll also ask the supervisor to describe in his own words what he was taught.) Could your supervisor answer these questions? Don’t count on it.
No. 5: Doing nothing about the “boss from hell.” Like this guy (allegedly), not to mention his brother (allegedly). The folks who get away with this kind of behavior are often extremely talented, but those in authority need to keep them in line, as I noted last week.
No. 6: Messing with people’s pay. Most employer mistakes about pay are honest ones, but occasionally you come across a bad apple who is really trying to cheat employees out of their rightful wages. Or the occasional employer who isn’t deliberately cheating employees but just doesn’t care enough to make sure they’re being paid properly. And there are so many ways to mess with an employee’s pay: requiring employees to work off the clock, misclassifying them as exempt when they clearly are not (which may deprive them of overtime pay), misclassifying them as “independent contractors” when they are clearly “employees” (which may deprive them of overtime, benefits, tax withholding, and the employer’s share of Social Security), or using “creative” ways to calculate overtime. Pro tip: It’s never a good idea to be “creative” where the Fair Labor Standards Act or state wage-hour laws are concerned.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.
