Train Managers to Spot Employment Law Issues

Allen Smith, J.D. By Allen Smith, J.D. June 17, 2018

CHICAGO—There's been an accident at work, an employee is injured and multiple co-workers witnessed the event. After the injured worker has been helped, the manager supervising the crew should:

A. Gather all the witnesses in one room to get an account of what happened and then submit that account in a report to HR.

B. Write up his or her own version of what happened.

C. Notify HR before gathering witness statements.

As an HR professional, you want your managers to respond "C." But would they be able to answer the question correctly?

What seems like a commonsense response—gathering all the witnesses to collect statements—may not be the best or most legally compliant response, said Gregory Hare, an attorney with Ogletree Deakins in Atlanta, speaking at a Sunday preconference session at the SHRM 2018 Annual Conference & Exposition.

HR professionals need to train managers to spot employment law issues and bring them to HR's attention, he said, and he highlighted a few points for HR professionals to make with their companies' managers.

Notify HR

Sometimes managers operate on their own and think that they've found brilliant solutions to workplace disputes when in fact they're putting the employer at risk, he noted at the session, "Managing Within the Law: What Every Manager Should Know About Employment Law."

For example, an untrained manager might think that the best way to handle a sexual harassment complaint is to get the complainant and alleged harasser in the same room to talk it out. While this may seem like a commonsense approach to the manager, Hare said, "it's a terrible idea." It will look like the company is ganging up against the complainant.

In the accident scenario above, the loudest employees may drown out other witnesses, Hare said.

Instead, managers should be taught to notify HR when there are accidents, harassment claims or other incidents, so there can be one-on-one meetings during a harassment or post-accident investigation.

Supervisors also need to know that what they do or fail to do can make a company liable.

Nothing is off the record when an employee comes to a supervisor with a complaint. Once the company is on notice about a problem, the business has to act, he emphasized.

All of HR needs to be knowledgeable about employment laws, said Charles Munk, director of human resources for Lake Shore Systems Inc. in Kingsford, Mich. He was attending the session with the intent of sharing Hare's recommendations with his direct reports, so the information would flow out to the company's managers.

Where to Tread Carefully

Managers need to know the variety of taboo topics under employment laws, Hare emphasized. These off-limit topics include:
  • Race
  • Sex
  • Religion
  • Age
  • Pregnancy, marital status, child care
  • Disability
He recommended treating religious accommodation requests just like Americans with Disabilities Act (ADA) accommodation requests, saying, "It's a balancing test. You can't just say, 'no.' "

Hare said that he has seen an uptick in pregnancy discrimination litigation. Employers may think an employee qualifies for Family and Medical Leave Act (FMLA) leave, but what if the worksite doesn't have the 50 employees within a 75-mile radius needed to be covered by the FMLA? Or what if the employee hasn't worked 12 months or hasn't worked the 1,250 hours during the past 12 months needed to be eligible?

In these cases, don't forget about the Pregnancy Discrimination Act (PDA), Hare cautioned, saying that law may afford some protections.

[SHRM members-only toolkit: Managing Family and Medical Leave]

The Genetic Information Nondiscrimination Act (GINA) should be on managers' radar as well, Hare said. He said he had a client with multiple manufacturing plants and different HR practices at each location. At one site, applicants were asked probing questions about their medical history. This was "entirely impermissible" under GINA. One employee complained, leading to an expensive nationwide audit of the company by the Equal Employment Opportunity Commission (EEOC).

Job descriptions should be kept current to ensure compliance with the ADA, Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act, he noted.

Train managers that the company is not trying to cut corners but is trying to do things the right way and compliance is important, Hare noted.

State and Local Laws

Federal laws aren't an employer's only employment law concerns, observed attendee Andrea Healy, SHRM-CP, vice president of human resources with North Brookfield Savings Bank in North Brookfield, Mass. She said that she is particularly interested in the challenge of complying with her state's Equal Pay Act, effective July 1, and the Pregnant Workers Fairness Act, effective April 1.

As Hare also observed, "employment law is becoming more and more local."


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