Resolve or Report

We expect our supervisors to resolve some issues on their own and to report other things to human resources—or possibly to in-house counsel—rather than to resolve them independently.

But do they know which is which? Do you? Here’s an example of each: If an employee is frequently late, we expect the supervisor to resolve the issue by confronting the employee about his lateness and handling it according to established company policies.

If, however, the chronically tardy employee responds by saying that he has been late because of chemotherapy appointments, we don’t want the supervisor to determine whether a work accommodation is appropriate. We want the supervisor to report the disclosure to HR so HR can make that determination.

Seems simple enough, but many organizations don’t clarify for supervisors which matters they should resolve and which they should report. Even where some guidance is available, it may be scattered among various policy documents, memoranda and notices, rather than presented to supervisors in a comprehensive and accessible fashion.

The result? Supervisors sometimes report things they should manage on their own, and sometimes attempt to deal independently with things they should report. But how can we blame them if we haven’t given them clear guidance?

This article discusses some important situations that supervisors—including managers and officers—should report rather than resolve, and explains why reporting is so important in each of these situations. Sharing the rationale with supervisors is a sign of due respect, and also makes them more likely to remember and comply with the reporting requirement.

Discrimination, Harassment Or Retaliation Complaints

An HR professional finds almost nothing more frustrating than receiving a formal Equal Employment Opportunity Commission (EEOC) complaint or charge and learning—for the first time—that the aggrieved employee had previously complained to a supervisor who failed to report the matter to HR. Avoid that frustration—not to mention possible liability—by instructing supervisors to report to HR all complaints of unlawful discrimination, harassment or retaliation, even if:

• The employee requests that the complaint be kept confidential.
• The employee implores the supervisor not to consult with HR.
• The complaint appears to lack merit.

Why is this so important?

First, in the eyes of the law, the supervisor is the employer. When the supervisor has notice, so does the employer, and its duty to investigate and take appropriate corrective action kicks in.

Second, the supervisor does not know what the supervisor does not know. For example, the supervisor might consider a complaint relatively minor but be unaware of the fact that the alleged wrongdoer is on final warning for other similar behavior.

Third, there later may be a dispute as to what the employee told the supervisor. The allegations must be documented carefully, and supervisors typically lack the training to draft this type of documentation properly.

An employer’s failure to require supervisors to report harassment complaints may render unavailable the Faragher-Ellerth affirmative defense, which is based on the employer’s policies for prevention and correction. Lack of a reporting requirement also may increase exposure to damages for unlawful discrimination or retaliation by depriving the employer of an early opportunity to correct any legal wrong that may have been done.

Wage Complaints

If employees complain about not being paid as much as they deserve, that is usually an employee relations issue, not a legal issue. When employees complain that the employer has failed to pay them for time worked or has made improper deductions from their pay, however, educated supervisors will see legal red flags.

For nonexempt employees, improper deductions may include things like not paying for short breaks. For exempt employees, improper deductions may include deductions inconsistent with the salary basis requirement of the Fair Labor Standards Act’s (FLSA) overtime regulations.

A supervisor’s immediate report of a wage complaint allows HR to determine whether the complaint has merit. If no money is owed or no improper deductions made, HR can correct—or at least try to correct—the employee’s misunderstanding. On the other hand, if there was a mistake, HR can correct it before the employee files a complaint with an administrative agency or court.

This should go a long way toward minimizing the employer’s exposure to liquidated damages for willful violations of the FLSA, and it also may mitigate an employer’s liability under state wage and hour laws, whose requirements and penalties are often more stringent than federal law.

Supervisors must report even minor wage claims. A single employee’s small wage loss may signal a systemic problem affecting other employees—in other words, a class action waiting to be born.

Allegations Of Other Wrongdoing

More and more employees are “blowing the whistle” on alleged wrongs that may not directly affect their terms and conditions of employment—alleged corporate fraud, for example. Instruct supervisors to report immediately complaints of criminal or fraudulent activity, or violations of statutes such as the Sarbanes-Oxley Act. (For more information on HR’s role in Sarbanes-Oxley compliance, see the cover package.)

Supervisors also should be told to report alleged violations of core employer policies that may have material legal and business consequences: conflict of interest policies, business ethics standards, codes of conduct. Explain to them that a judge or a jury may view their failure to report complaints of this nature as perpetuating any wrongdoing.

Consider going one step further: Give supervisors an affirmative duty to report suspected wrongdoing, even in the absence of a specific employee complaint.

Disclosure Of Medical Information

Instruct supervisors to report to HR any applicant’s or employee’s disclosure of a serious health condition or a physical or mental impairment. Be sure they understand that this duty to report applies even if the applicant or employee does not specifically seek an accommodation.

Of course, supervisors cannot ask about these health or medical conditions, but that does not prevent applicants or employees from disclosing them.

As we all know, supervisors may ask applicants during interviews whether they can perform the essential functions of the job for which they have applied, but they may not pursue any medical inquiries before making a conditional offer of employment.

Likewise, where a current employee’s performance or behavior is below standard, the supervisor should focus on the deficiencies, and not inquire or speculate as to any suspected medical reason that may underlie them.

One of the Americans with Disabilities Act’s (ADA) unfortunate unintended consequences is that any attempt by the supervisor to discern a possible health-related reason for the problem exposes the employer to a perceived disability claim.

But what if an applicant states during the interview that he cannot perform a particular function because of clinical depression? Or, an employee acknowledges her performance deficiencies but contends that lethargy resulting from her heart condition has caused them?

In these cases, even though there was no direct request, the disclosure puts the employer on notice that the applicant or employee may need an accommodation. Accordingly, the employer—that is, HR and not the supervisor—may need to begin the interactive process to determine what, if any, accommodation is needed, and whether it is reasonable.

We don’t want the supervisor making these determinations because, first, it takes a fair amount of ADA knowledge to determine whether and when to initiate the interactive process. Most supervisors won’t have that knowledge.

Second, in the course of an interactive process appropriately begun, the employer ordinarily needs to obtain medical information. Supervisors should not be privy to that information; if they don’t have it, they can’t credibly be accused of improperly disclosing or relying upon it.

Third, the interactive process itself can be subtler and trickier than one might expect. Assume, for example, that the employee tells the supervisor that he needs the employer “to remove all stress-inducing duties.” A reasonable supervisor might dismiss such a request out of hand. HR professionals know, however, that they need to work with the employee to identify specific stress-inducing duties and then assess whether any accommodation would enable the employee to perform those that are essential. (Essential duties need not be eliminated as an accommodation.)

Even if the supervisor believes reasonable accommodation is possible, the supervisor still needs to check with HR. The supervisor might be tempted to eliminate an essential job function to hire or retain a stellar individual. While that would address a current business need, it also becomes “precedent” that may come back to haunt the employer in connection with another applicant’s or employee’s request.

Accommodation or Leave Requests

Because we want supervisors to report disclosures that might suggest the need for an accommodation, we obviously want supervisors to report applicants’ or employees’ specific accommodation requests. For similar reasons, supervisors should report employee requests for leaves of absence.

Train new supervisors and periodically remind experienced ones that an applicant or employee need not use the legal words “ADA accommodation” or “Family and Medical Leave Act (FMLA)” to trigger statutory rights. The key is whether a reasonable supervisor—with some training in the relevant laws—would recognize the individual’s communication as a request for an accommodation or a leave of absence.

With regard to accommodations, for example, supervisors should report requests for help, support, job changes and so on if the employee—contemporaneously or previously—has disclosed the existence of a serious health condition or impairment.

As for leaves, supervisors should report requests for “time off” for medical or other potential FMLA situations, even if the employee does not utter “FMLA.” Even if the employee clearly is not eligible for FMLA leave, the supervisor nevertheless should report a request for time off, because a leave could be a reasonable accommodation under the ADA regardless of FMLA eligibility.

Evidence of Union Activity

Train supervisors to report signs of union activity. If 30 percent of eligible employees in an appropriate bargaining unit sign union authorization cards, the union can petition the National Labor Relations Board for an election. Even if an employer wins the election, the victory can be very costly. Employers’ ultimate goal is to avoid elections, not to win them.

The key to avoiding elections is early detection of and rapid response to union activity. But employers often begin their counteroffensive only after the union has obtained the 30 percent showing of interest. Sometimes, this is because of supervisors’ failure to report to HR what they may see as “isolated” signs of union support. However, a bundle of isolated, minor occurrences may amount to evidence of a serious union campaign.

Accordingly, require supervisors to report to HR any direct or indirect evidence of union activity. Considering all such reports, HR can assess the extent of a union campaign.

But what are warning signs of union activity? Direct signs would include, for example, an employee handing out a union flier in the parking lot or wearing a pro-union T-shirt. Indirect warning signs would include unusual off-site gatherings of employees—at barbecues, bowling alleys and bars.

In addition to training supervisors to recognize and report signs of union activity, employers also must train them as to the restrictions on their behavior under the National Labor Relations Act. A shorthand approach: Supervisors cannot SPIT on their employees. That is, they cannot:

• Spy on employees to see who may be engaging in union activity.
• Promise employees benefits for refraining from union activity.
• Interrogate employees as to whether they or others are engaging in union activity.
• Threaten or take adverse action against employees for engaging in union activity.

Frame supervisors’ duty to report within these legal restrictions. While they cannot spy, supervisors can, for example, report what they see in plain view. They cannot interrogate employees about their union sympathies, but they can report what is volunteered or what they inadvertently overhear.

Government Communications

Supervisors must inform human resources immediately if they receive any communication from a government agency, official or entity. This includes everything from a charge of discrimination filed with the EEOC or other agency, to an on-site visit from a U.S. Department of Labor investigator asking to review certain files in connection with alleged overtime pay violations of the FLSA.

Supervisors should not be deciding whether and to what degree to cooperate. They have neither the knowledge nor the authority to make that judgment. Nor do we want supervisors to cooperate fully with whatever request is made of them. Sometimes, government officials ask for more than they are entitled to. And even where they have a legal right to the requested information, the manner in which the employer communicates can determine the legal outcome and damages that may flow from it.

In addition to instructing supervisors to report government communications immediately to HR, coach them on how to respond to in-person or telephone contacts that cannot be immediately forwarded. Tell them to be polite and say something like this:

“Our organization/company will cooperate with your request. However, I do not have the authority to respond. Let me give you the name and telephone number of the HR professional with whom you should speak. I also am going to contact HR right now.”

This may seem pretty basic, but these encounters can be alarming for a supervisor. Coaching in this detail is necessary to eliminate avoidable risks.

Lawyer Communications

Tell supervisors that they must immediately, and without responding, forward to HR any subpoenas or letters from lawyers who do not represent the employer. In case of “friendly calls” from lawyers who are “just curious” about a few things, script an appropriate supervisor response to any unavoidable call.

Supervisors should never promise cooperation—there is no duty to cooperate with an attorney on a fishing expedition. (If the employer is represented by counsel in an ongoing adversarial proceeding, opposing counsel’s inquiry of a supervisor may even violate attorneys’ rules of professional conduct.) Instead, supervisors should say something like this:

“I do not have authority to talk with you. Please give me your name and number and I will forward them to HR.”

Signs Of Workplace Violence

Not all workplace violence is preventable. But sometimes there are warning signs that supervisors immediately need to report to HR and/or security:

• Discussions of or particular fascination with perpetrators or victims of violence.
• Talk of weapons that seems abnormal in frequency or content.
• Statements about hearing voices or receiving signals.
• Threats of suicide.

Caution supervisors not to draw any conclusions or make any statements about an employee’s mental health. Failure to heed this warning could spark defamation or perceived disability claims.

In case of actual violence, every employer should have a crisis control plan that tells supervisors how to respond in the event an employee brandishes a knife, attacks a co-worker or the like. The plan, obviously, should include a call to 911.

Getting the Word Out

At the very minimum, employers should give supervisors a list of these and other reportable events, possibly as part of new supervisor orientation. Ideally, the employer also should provide training that covers the rationale and the finer points of the reporting obligations.

Explain to supervisors how to make reports, addressing, among other issues, the risks inherent in e-mail reports. Specifically, supervisors sometimes record things in e-mail messages that later can be used against the employer in litigation because of their imprecise wording or emotional tone.

Assume that an applicant is blind, for example. A supervisor might write in an e-mail: “Do I have to hire a blind applicant?” Such a question might reasonably be construed as hostility toward hiring of a disabled person; it could just as reasonably indicate an awkward sensitivity to the legal issue involved and a plea for guidance.

Accordingly, encourage supervisors to make reports the old-fashioned way: by telephone. If they are unable to reach an appropriate person, a secure voice mail message is safer than e-mail. If e-mail is the only available medium, tell supervisors that “less is more” as far as the content is concerned.

Finally, be careful not to imply that supervisors cannot be trusted to handle these difficult issues on their own. Explain that their obligation to report has to do only with the proper allocation of corporate responsibility and the associated skill sets.

Consider framing it this way: “If an operational issue involving you arises, I would contact you. If an HR issue arises, I need you to contact me.” Stating it that way makes it clear that you are not treating supervisors like children. To the contrary, you are empowering them by freeing them up to do their jobs.

Author’s Note: This article should not be construed as legal advice or as pertaining to specific factual situations.

Jonathan A. Segal, Esq., a contributing editor of HR Magazine , is a partner and the vice chair of the Employment Services Group of Wolf, Block, Schorr and Solis-Cohen LLP in Philadelphia. His practice concentrates on counseling clients, developing policies and strategic plans, and training managers to avoid litigation and unionization.