The SESCO Report – May 2007
Top 6 Ways Managers Will Land Your Company In A Lawsuit
Mistake #1: Terminating Without Tact
Termination is an area ripe for potential legal liability. One reason why so many employees file complaints (and so many juries hand down large dollar awards): perceived unfair treatment. Although there is no way to prevent all post-termination litigation, you can certainly reduce the risk by training managers on how to terminate with tact and sensitivity.
Mistake #2: Mishandling Employee Problems
Dealing with common employee problems can be a sticky wicket for managers. Snap responses to everyday issues often get managers into trouble with their employers and employees, and with the law. For this reason, managers must learn how to deal with employee problems productively and confidently in order to prevent the mistakes that can lead to legal skirmishes. Here are some of the most common employee problems, along with advice you can pass on to your managers so they become first-rate problem solvers.
Mistake #3: Straying From Policies and Procedures
Spelling out company policies and procedures in the company handbook is just the first level of legal protection. The second step involves putting those policies and procedures into practice. Managers who fail to follow the policies and procedures, or who enforce them inconsistently, can land your company in court.
Typically, the emphasis is put on managers to review policies and procedures with employees. Don't forget the importance of going over the handbook with managers first. Give them the chance to ask you questions and seek clarification if there are any misunderstandings. Now is also a good time to iron out any discrepancies between the written policies and their actual practices. Train managers on how to enforce policies correctly that they haven't been faithful in following. In certain instances, though, you may find that a policy modification is in order. It's better to make that change before the policy is passed out to employees.
Just as you do with employees, get signed acknowledgements from managers that they have received, read, and understood the handbook. Keep the acknowledgement form on file.
Mistake #4: Failing To Follow Harassment/Discrimination Policies
Managers are supposed to lead by example. So if they don't adhere to harassment/discrimination policies, why should employees? And why should employees fear the consequences of not following company policies, if they know managers let harassment/discrimination complaints slide? Break this vicious "monkey-see-monkey-do" cycle in which your managers and employees may be caught up, before a court breaks it for you.
Mistake #5: Creating A Perception Of Retaliation
An employee who files a complaint or returns from a leave of absence and shortly thereafter suffers an adverse employment action is likely to smell a retaliation rat. But what's considered an adverse action? The answer to that question has left courts divided.
It used to be that some courts decided that adverse employment actions cover only "ultimate employment decisions," such as termination, demotion, refusal to hire or promote, compensation, and granting leave. But a 2006 U.S. Supreme Court ruling defined adverse employment actions more broadly to include actions that result in a significant change in employment status; actions that materially alter the terms and conditions of employment.
Mistake #6: Failing To Understand The Family And Medical Leave Act
Managers are usually the first to know about employee absences and must make decisions about attendance-related issues. Without proper knowledge of the Family and Medical Leave Act (FMLA), it's easy for managers to run afoul of the law. Manager training on FMLA leave should focus on these problem areas.
Notice requirements: Although employees must give notice about the need to take leave, they don't have to specifically say the magic words "FMLA leave." That sets the stage for all sorts of misunderstandings. Employees are only required to provide verbal notice that is sufficient to make their manager aware that they need FMLA-qualifying leave and the anticipated timing and duration of the leave. It is then the manager's responsibility to get more information to determine whether the FMLA actually comes into play or not. When in doubt, set the FMLA wheels in motion and give the employee the proper certification to fill out. This makes it possible for the manager to make an informed decision about designating the leave as FMLA.
Eligibility requirements: Another source of FMLA confusion is recognizing a serious health condition. The law sets out guidelines for determining the seriousness of a health condition, but there is no set list to fall back on. When employees are out for more than three days, or are out for less than that but have a chronic illness, managers should never automatically write off the absence as non-FMLA. Again, the safest course of action is to get the proper certification.
Attendance policy requirements: It is important to designate FMLA absences as such as soon as possible because those absences may not be held against employees under the company's normal attendance policy, including no-fault attendance policies. Managers must keep detailed and accurate attendance records to ensure that FMLA absences will not put employees on the path toward termination for excessive absenteeism.
Call SESCO to schedule in-house management training designed to reduce liability and ensure compliance with employment regulations.
- Bill Ford
10 Steps To Effectively Implement A Wellness Program
The Partnership for Prevention, a national advocacy group, recommended using this same 10-step process in its "Healthy Workforce 2010" wellness guidance, which large, medium, or small companies can use to plan a worksite wellness program.
1. Establish a planning committee. It should include someone to represent employees (who will utilize the program), senior management (who are responsible for budgets and contracting with outside vendors), and middle managers (who control employee schedules).
2. Determine senior management support and employee interest. Find out how much management will be willing to budget and what kinds of activities will be allowed. To get upper management's buy-in to a program, show them articles on the need for, and success of, well-designed wellness programs.
Survey employees about their interest in various types of health promotion activities, the most convenient times and places to schedule activities, and/or suggested organizational changes to promote a more healthful work environment. You may also have employees voluntarily fill out a health risk appraisal (HRA) to self-report risk factors, determine the level of interest in changing unhealthy behaviors, and collect baseline data for evaluating the program later.
3. Develop mission statements, goals, and objectives for designing the wellness program. The mission statement should list the values that drive the program, including the goals and accomplishments the company is striving for with the program. Linking it to the company's general mission statement is helpful.
4. Develop a realistic timeline, and work out a budget. Pick a time of year to start the program that won't conflict with company events and seasonal busy times, such as heavy vacation or holiday periods. Schedule activities at times that are convenient for potential participants.
An internal staff person, with input from the planning committee and management, should develop a program budget to pay staff salaries and/or health promotion
vendor costs, and program materials. The budget should be translated into per employee or participant cost.
5. Select incentives. To motivate employees to make lifestyle changes, consider external rewards that will encourage them to take steps in the right direction. But, be sure to comply with the Health Insurance Portability and Accountability Act (HIPAA), if applicable. (HIPAA's non-discrimination rules for wellness programs are discussed later in this report.)
6. Get outside support. Many high quality programs are available for free or at low cost from voluntary health organizations, such as the American Heart Association, the American Cancer Society, and the American Lung Association. They can provide small workplaces with HRAs, smoking cessation programs, weight management and nutrition programs, exercise and fitness programs, blood pressure screening and control, and colorectal screening, among others.
Small employers can also recruit free speakers for health awareness activities, such as monthly brown-bag lunch programs, from local hospitals, public health departments, universities, voluntary health associations, and private physician practices.
Don't forget to check what your company's own health plan provider offers.
7. Market the program. An endorsement from the company president or another senior manager at a meeting costs nothing. Place program notices on bulletin boards, in e-mail messages, or in an employee newsletter, if you have one. Word-of-mouth from pleased program participants is the best marketing program. Also, make the program fun. Use balloons, flowers, and music to create an enjoyable atmosphere for health fairs or health screening activities.
8. Implement the program. Put the plan into action. This may require making arrangements with wellness vendors, recruiting speakers, negotiating with health plans and/or health clubs, and scheduling health program activities. Begin the program with activities most likely to succeed.
Be sure to remove barriers to employee participation. For example, allow flexible schedules so workers can participate. Sign-up sheets and the activities themselves should be conveniently located.
9. Evaluate the program. Gather participation counts and have participants evaluate the program. Get answers to these questions.
- Were all activities implemented as planned? If not, why?
- Who used the program?
- Which activities were the most popular?
- Did the program meet participants' needs?
- Are participants happy with class instructors, program materials, and incentive choices?
10. Modify the program as needed. If you determine that there was a shortcoming in your program, such as low participation, survey employees to find out why. This data will provide information about program changes to consider.
- Phil Richards, Director of Client Services
SESCO Client Feedback
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- Mark Parham, West Broad Volkswagen-Audi
"The key to successful leadership today is influence, not authority."
- Ken Blanchard
"I start with the premise that the function of leadership is to produce more leaders, not more followers."
- Ralph Nader
Handling Employees Who Refuse To Comply With Dress Code Policies
When employees refuse to comply with your dress code, you have several options for dealing with them. First, you should start off by reiterating your policy, just to ensure that no one can argue that they didn't know about it. To clear up any misunderstandings, hold a meeting or send a memo that goes over specific violations. Don't say, "The shirt Jane wore..."; use general terms to describe the mistakes made (e.g., t-shirts, yes, cropped shirts, no; khakis are ok, but torn/ frayed khakis are not; dressy sandals, but not beach flip-flops).
For repeat offenders, you may have to go through the disciplinary process; however, if firing employees for dress code violations is too extreme, consider sending them home to change. Non-exempt employees can be sent home off the clock (i.e., unpaid). Give employees fair warning before you start sending them home. The prospect of losing pay or vacation time may be enough of a deterrent.
Sending employees home may not be viable, though, if it means that too many employees would be gone at once. One way around this is to send employees home in shifts, rather than immediately. Although some employees will be working for part of the day in their inappropriate attire, you're still getting your point across by sending them home without pay.
For dress code violations that involve "underdressing" (e.g., cropped tops, mini-skirts, low-slung pants), you may solve the problem by keeping a few extra articles of clothing on hand ? unflattering clothing, like large baggy sweatpants, sweatshirts, or t-shirts ? that employees must wear all day.
- Brenda Wampler, Handbook Development Specialist
SESCO Client Inquiry — Staff Response
Question: How long does an employee have to file an EEOC charge?
Answer: EEO charges result from people believing they have been discriminated against when applying for a job or on the job because of race, color, sex, religion or national origin. Charges can also be filed because of opposing a prohibited practice (such as being disciplined or fired for speaking in favor of union activity) or their involvement in another person's EEO charge (such as testifying on behalf of someone who files a charge.) There are strict time deadlines for filing a charge with the EEOC employers should know. Failing to follow these will almost always cause the EEOC to throw the charge out. They are:
Title VII of the Civil Rights Act — Charges must be filed within 180 days of the alleged discriminatory act. However, in states that have antidiscrimination laws, charges must be presented to that state or local agency first. In such states, charges must be filed with EEOC within 300 days of the discriminatory act, or 30 days after the state or local agency has terminated the processing of the charge, whichever is earlier.
Americans with Disabilities Act (ADA) — 180 days.
Age Discrimination in Employment Act — 180 days.
Equal Pay Act (EPA) — If an EPA charge is filed with the EEOC, the procedure is 180 days. However, individuals are not required to file an EPA charge with the EEOC before filing a lawsuit, and time limits are different for filing in court.
Always contact SESCO if you receive an EEOC charge.