Avoid These 3 Common HR Mistakes

The numbers are simply staggering: In 2013, individuals filed over 93,000 employment discrimination charges with the Equal Employment Opportunity Commission (“EEOC”). The EEOC collected $372 Million in damages from employers during that time. Similarly, thousands of minimum wage and overtime claims were brought against companies under the Fair Labor Standards Act, and the Department of Labor collected $250 Million in back pay damages in 2013. Moreover, approximately 20% of the lawsuits filed in Federal Court in 2013 stemmed from an employment dispute. It feels like litigation roulette – you never know when your company’s time is up, but if you keep playing the game (i.e. running your business), eventually you will get sued.

Given this, companies should take steps to reduce the risk of becoming the next defendant, and put themselves in a solid defensive position. One way to do so is to avoid making one of these 3 common human resources (“HR”) mistakes:

Mistake #1: Failing to properly screen applicants. Remember the old principle “garbage in, garbage out”? Hire a loser and all you get is a loser employee you can’t get rid of fast enough. How about avoiding that hassle? Start with a laser-like focus on the employment application. Has the applicant never held a job longer than 3 months? If so, why do you think he would last any longer at your place? Has the applicant conveniently failed to answer the “reason for leaving” question after a former employer’s name? This silence should speak volumes. Worse yet, does it say something disturbing like “dispute with supervisor”? And how did the applicant answer the “conviction record” question? These answers and/or omissions all need to be addressed with the applicant. Trust but verify with reference checks; a recent survey of hiring managers revealed that 60% found false information on applicants’ job applications and/or resumes. Finally, never hire someone based solely on the recommendation of a friend or co-worker.

Mistake #2: Failing to terminate a poorly performing employee. Not all hires turn out well. Some employees are simply poor performers. But why are they still employed by your company? Are you running a business or a charity? Managers should give employees clear performance expectations. If an employee fails to meet them, he should receive progressive discipline. If the employee still does not improve his performance, the company should terminate his employment. Consider the alternative – lowered workforce morale and a less profitable company bottom line. Retaining a poor performing employee can also result in a good deed getting punished: if you terminate someone else for the same poor level of performance, and the terminated employee falls into a different “protected classification,” you will be sued for discrimination. Like bad wine, life is too short to work with bad employees. If you have the opportunity to terminate one, take it.

Mistake #3: Failing to recognize threat levels. You need to be able to recognize potential legal risks and plan accordingly. Does the employee you intend to terminate fall into one or more protected classifications (i.e. race, over 40, disabled, etc.)? Has the employee mentioned an “L word” – lawyer or lawsuit? Has the employee referenced the “EEOC” or “discrimination”? Has the employee cited chapter and verse of the requirements of a particular statute? Has the employee requested a copy of her personnel file? Is the employee trying to tape record conversations? If any of these have occurred, you are approaching litigation threat level “DEFCON 1.” To reduce the threat, make sure that you have all of the facts, have reviewed the employee’s prior disciplinary record, have looked at your disciplinary practice in comparable situations, have adequate documentation, and a legitimate business reason for the employment decision.*

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws

* Portions of this article first appeared in the Wisconsin Institute of CPA’s October, 2014 magazine, The Bottom Line.

 

 

 

 

If Your Employee Does This … You Might Be Getting Sued

“If you’ve ever had to remove a toothpick for wedding pictures, you might be a redneck.” 

-Jeff Foxworthy

jeff-foxworthy-2__large

Remember Comedian Jeff Foxworthy’s “you might be a redneck” jokes?   They were tell-tale signs of human behavior that revealed a person was a classless and/or clueless hick. They were funny because you either knew someone who acted like the character in the joke, or could easily see someone behaving that way.

But, my human resources (“HR”) and management friends, did you know that there are also tell-tale signs of employee behavior that reveal that your company will likely be sued?

So without further ado (and with apologies to Mr. Foxworthy), put your hands together and give a warm HR welcome to this Edition of  “You Might Be a Redneck Getting Sued”:

1. If your employee submits a 4 page, single-spaced typed rebuttal to a verbal warning, you might be getting sued.

(And if your dog and your wallet are both on a chain, you might be a redneck)*

2.  If your employee urgently demands a copy of his personnel file and says he needs to take the afternoon off for “personal business,” you might be getting sued.

(And if you’ve ever financed a tattoo, you might be a redneck)

3.  If your employee attempts to tape record her performance review, you might be getting sued.

(And if you have the local taxidermist’s number on speed dial, you might be a redneck)

4.  If your employee recites the requirements of an employment law statute better than your HR Department can, you might be getting sued.

(And if you’ve been on TV more than 3 times describing the sound of a tornado, you might be a redneck)

5.  If your 70 year old employee (with 35 years of service) that you just terminated has a personnel file thinner than a potato chip, you might be getting sued.

(And if you think the French Riviera is foreign car, you might be a redneck)

6.  If your employee walks around with a bulging notebook documenting every conversation she has had with co-workers and supervisors, you might be getting sued.

(And if you’ve ever mowed your lawn and found a car, you might be a redneck)  

7.  If your employee goes on an epic Facebook rant that his supervisor is treating him “unfairly,”  you might be getting sued.

(And, finally, if your idea of a “7-course meal” is a bucket of KFC and a six-pack, you might be a redneck)

Ba dom bomp!  Thank you! Don’t forget to tip your waiters and waitresses. I will be here all week…

Of course, getting sued by an employee is no laughing matter. Watch for the above warnings signs.  If you observe any of them, make sure that you have a sound business reason (backed up by sufficient documentation) before taking any disciplinary action against the employee.  Otherwise, the joke will be on you.

*All jokes courtesy of Mr. Foxworthy

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
              @wagelaws 

 

 

 

EEOC Expands Reach of Pregnancy Discrimination Act

stork-and-baby

On July 14, 2014 the Equal Employment Opportunity Commission (“EEOC”) issued its first “enforcement guidance” on the Pregnancy Discrimination Act (“PDA”) since 1983.  One of the more significant aspects of the Guidance is the EEOC’s view of an employer’s duty to accommodate pregnant workers under the Americans with Disabilities Act (ADA).

The EEOC now takes the position that employers must accommodate a pregnant employee’s work restrictions to the same extent it accommodates non-pregnant employees with similar restrictions.

This means, in the EEOC’s view, that employers who offer light duty work to individuals injured on the job must also offer light duty work to pregnant employees with work restrictions, regardless of the fact that the light duty policy only applies, by its terms, to those employees who have restrictions stemming from a work related injury.

The EEOC’s Enforcement Guidance is quite extensive.  The entire Guidance document can be found here:

http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm .

The EEOC also issued a “Questions & Answers” document, found here:

http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm .

As if that wasn’t enough summer reading, the EEOC also issued a “Fact Sheet” that summarizes the PDA’s requirements at:

http://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm .

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws

Four Things To Expect During An EEOC On-Site Visit

“Guests, like fish,  begin to smell after three days old.”

– Benjamin Franklin 

You know the drill.  An employee or ex-employee files a discrimination charge against your company with the Equal Employment Opportunity Commission (“EEOC”).  You file a position statement denying the allegations and then wait.  You hear nothing and hope that no news is good news.  But, as they say, hope is not a strategy.

Instead, you are introduced to the EEOC’s new, more aggressive investigation strategy.  No longer willing to accept a company’s written response at face value, the EEOC now frequently demands on-site visits to interview witnesses and gather information.

As one can imagine, these on-site fishing expeditions visits offer little “upside” to the company.  To avoid floundering like a fish out of water, one needs to be prepared.  Here are just a few things you can expect to see and hear during an EEOC on-site visit:

1. The Tour.  The EEOC Investigator almost always requests to take a tour of the facility before conducting witness interviews.  Knowing this, the company should make sure there are no potential OSHA violations that could be spotted.  In addition, confirm the location(s) where the company posts the required federal labor and employment law posters, and double-check to make sure all of them are  actually posted; the Investigator will want to verify this.  Finally, have someone who is familiar with the facility and articulate but not verbose lead the tour.

2.  Probing the Company’s Story.  Recall that the EEOC Investigator typically comes on-site after the company has filed its position statement.  The Investigator will question witnesses to see if their recollections match the facts the company presented in its position statement.  Thus, every potential management witness should read the Discrimination Charge and the company’s position statement at least a couple of times before the on-site in order to [re-]familiarize themselves with the facts of the case.

3. Questions about Employment Law Knowledge & Training. EEOC Investigators will interview Human Resources (“HR”) personnel who are involved in the case.  Investigators often ask HR representatives: (1) about their general knowledge of employment laws; (2)  whether they have a college degree in the HR field; (3) whether they have recently attended HR seminars or conferences; and (4) what training they have provided to company employees on topics such as discrimination and harassment.  As “ignorance of the law is no excuse,” it is important that the HR representative comes across as knowledgeable of the anti-discrimination laws and the employer’s obligations thereunder.

4.  Selective Note Taking.  Watching the EEOC Investigator take notes of witness interviews will test one’s patience, as it often seems that the only statements being written down are those not helpful to your case.  All of the good points your witness is making are seemingly ignored.  If you observe this occurring, you or your counsel may need to re-emphasize key points to the Investigator to give him or her the “equal opportunity” to write them down.  You do not want the Investigator leaving with a distorted record of the facts.

Ultimately, your goal is to have your “uninvited guest” finish his/her visit and leave that same day.  Anything longer would really stink.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
 Twitter: @HRGeniusBar@wagelaws

Wisconsin Modifies Wage Law’s Recordkeeping Requirements

Wisconsin employers recently received some good news from the Legislature: effective April 17, 2014 employers are no longer required to keep payroll records tracking the “hours worked” of their salaried employees who are “exempt” from Wisconsin’s overtime compensation laws.  This change brings Wisconsin’s payroll recordkeeping requirements in line with those of the Federal Fair Labor Standards Act (“FLSA”). Wisconsin companies no longer have to keep precise daily or weekly time records for their salaried exempt professional, executive (i.e. managerial and supervisory), administrative, and computer professional employees.  See Wis. Stats. §104.09.

Employers who previously struggled complying with Wisconsin’s recordkeeping obligations will obviously welcome the lowered administrative burden. But this lower burden may come at a higher price – what if an employee files an overtime pay claim in court or at the Department of Labor (“DOL”) alleging that the employer “misclassified” him/her as overtime exempt?

Often in these cases an employee claims to have worked substantial amounts of overtime hours each week, and offers as “evidence”: (1) a self-serving log or spreadsheet showing a huge number of overtime hours worked; and/or (2) self-serving testimony that he/she worked all hours of the day and night, including weekends. Employers who do not have time cards to refute the claimed amount of overtime hours worked are then forced to rely on anecdotal evidence such as: (1) observations of when the employee “typically” arrived at and/or left work; or (2)  the employee’s computer “log on” and “log off” times.  The DOL or jury then decides how many overtime hours the employee worked each week.

Given this risk, employers would be well served to re-examine whether the employees they classify as “salaried exempt” truly satisfy all of an applicable exemption’s requirements.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
 Twitter: @HRGeniusBar
 @wagelaws

 

3 AMERICANS WITH DISABILITIES ACT MYTHS

adasigning2

Although the Americans with Disabilities Act (“ADA”) was enacted in 1990,  employers and employees still hold certain misconceptions about the law and its requirements.  Here are three common myths surrounding the ADA:

MYTH #1 – The company can condition an employee’s return to work on the employee providing a “full medical release” without restrictions.

REALITY:  The company can require a medical release before an employee can return from a medical leave.  But, it cannot demand that the release be “restriction free.”  Rather, if the employee presents  restrictions with the release, the company must determine if it is able to provide a reasonable accommodation to the employee to enable the employee to perform the job’s “essential functions.”

MYTH #2 – If an employee’s disability is controlled by medication(s), the employee is not disabled.

REALITY:  The amendments to the ADA make clear that an employer cannot take into account the mitigating effects of medication or equipment on the employee’s medical condition in assessing whether the employee has a disability.  The employee can still be considered disabled even if the medication or device adequately controls the employee’s symptoms.

MYTH #3 – A company can enforce a leave of absence policy that provides an employee will be terminated if unable to return from a medical leave after a specific number of weeks or months.

REALITY:  Although a “leave of absence” can be a reasonable accommodation, the Equal Employment Opportunity Commission (“EEOC”) takes the position that an employer cannot “automatically” terminate an employee if the employee is unable to return to work after a specific period of time (e.g. 6 months or a year).  Rather, the EEOC views such “blanket” policies as violating the ADA’s requirement that the employer treat each accommodation situation on an individual basis.  Instead, the employer would have to establish that no other reasonable accommodation exists before terminating the employee.

 

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws

 

 

Sue Early And Sue Often

“You got to know when to hold ’em. Know when to fold ’em.
Know when to walk away. Know when to run.”

Kenny Rogers, “The Gambler”

As certain as death and taxes, each day in this great country someone, somewhere is filing a head scratchingly stupid lawsuit.  “Sue early and sue often” seems to be the mantra in our litigious society. The latest example comes from Sin City, where a gambler is suing a casino to recover his massive gambling losses. 

The gambler’s argument?  He was too drunk to know what he was doing.  As Dr. Seuss might say, he drank in the limo on the way to the casino, he drank playing Keno*, he drank at dinner, he drank hoping to be a winner, he drank at the gaming table, he drank because he was able.

The gambler admits he was drunk for almost 3 days straight, and lost hundreds of thousands of dollars in his “blackout” state.  Now he wants his money back.  His theory?  The Las Vegas casino kept providing him “free” drinks and loans to gamble with when they knew he was blitzed.  In other words, he was the sloppy drunk overserved victim.

Personal responsibility?  That’s for losers, man!  Bad choices?  Give me a break (and a refund)!

So listen to Kenny Rogers – the man is a Grammy winning singer/songwriter, actor, roasted chicken magnate, and suspected plastic surgery aficionado after all.  Don’t gamble that your company won’t get sued.  You will, and often for ridiculous reasons.  (Remember the $2.9 Million Dollar McDonald’s lawsuit over spilled coffee?  Coffee is hot?  Who knew?)

Increase the odds of your company winning an employment lawsuit  by following sound human resources practices.  First, don’t hire losers.  Review employment applications carefully, contact employment references, and do background checks.  Second, administer clear written policies in a non-discriminatory manner. Third, document all significant personnel decisions.  Fourth, honestly communicate the reasons for termination.  And finally, don’t drink on the job.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
: @HRGeniusBar
@wagelaws

*Not sure if he played Keno, but it rhymes.