Steer Managers Clear of Common Legal Mistakes

 

Allen Smith, J.D. By Allen Smith, J.D. January 24, 2018
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Managers typically aren't as familiar as HR professionals with employment laws and often land organizations in legal hot water. When it comes to equal employment opportunity obligations, health and wellness initiatives, wage and hour issues, and labor relations and other concerns, a host of laws mandate what employers can and can't do. Managers need to know the ins and outs of these laws, and it's up to HR to help get them up to speed.

According to author Natasha Bowman in You Can't Do That at Work: 100 Legal Mistakes That Managers Make in the Workplace (Performance ReNEW Publishing, 2017), HR has its work cut out for it. The book provides a handy list of some of the most common managerial missteps, including:

  • Letting complaints about high-value employees slide.
  • Allowing nonexempt workers to work through lunch unpaid.
  • Retaliating against former employees.

Managerial misperceptions are plentiful as well, such as:

  • Believing that as long as a decision-maker is in the same protected class as the complainant, there can be no discrimination.
  • Thinking the only religious beliefs that must be accommodated are those that relate to traditional religions.
  • Being unaware that the Pregnancy Discrimination Act covers conditions related to past pregnancies as well as intended and future pregnancies.
  • Failing to realize that even if a long period of time passes between a protected activity and an adverse action, that action can be considered retaliation.

In addition to increasing legal risks, "keeping bad managers around can also have hidden costs and dangers by way of high turnover, absenteeism and high health care expenses," Bowman cautions.

Discrimination

Unlawful discrimination takes many forms, Bowman notes.

For example, it can crop up when a manager mistakenly assumes that because a parent has family responsibilities, that individual will not be able to devote as much attention to work as other employees. Although parents are not explicitly protected by Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission has issued enforcement guidance on the unlawful treatment of workers with caregiver responsibilities.

Religious discrimination often is overlooked as well. An employer must grant a request for a religious accommodation unless making the accommodation would pose an undue hardship for the business. In one case, two Muslim truck drivers were fired when they refused to transport alcoholic beverages due to their sincerely held religious beliefs. The court concluded that you can't do that at work, the book notes—a refrain that will become familiar to readers.

Bowman also has recommendations for HR professionals. For example, she suggests they should avoid tying diversity goals to incentives for hiring managers. It still is unclear when two candidates are equal whether a manager can lawfully select the minority candidate to fulfill diversity goals.

Leave Laws

Bowman has a law degree and once worked in Wal-Mart's employment compliance group. She also has worked as an HR practitioner and HR consultant.

On a personal note, she had a congenital heart defect that resulted in open-heart surgery when she was 11 years old.

"My childhood medical issues occurred before any laws were passed that would have protected my parents' jobs when they cared for me," she notes. "But they were lucky. I had two sets of grandparents, two great-grandmothers and many aunts and uncles and church members who assisted them with my care." Her parents also were educators who had the summers off. "Not everyone has that support system or flexibility," she says.

Even though most employees usually do not abuse leave laws, Bowman adds that it's common for managers to falsely believe that most employees use job-protected leave to:

  • Avoid disciplinary action for time and attendance issues.
  • Take denied vacation.
  • Work another job.
  • Live it up somehow, such as going to the beach and then bragging about it on social media.

A beach trip might be compatible with an employee's recovery, she cautions. Moreover, moonlighting isn't an automatically terminable offense if there is no policy prohibiting it during leave.

Managers need to be trained on how to respond to an employee's accommodation request, which may include a leave request. They also need help tracking intermittent leave, the book notes.

Allen Smith, J.D., is manager of workplace law content at SHRM.


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