Tag: complaints

Good Employers Bad Ideas

5 Bad Business Ideas for Good Employers

You’re in charge of managing a workforce. Maybe you own the company. Or you could be in human resources. Or another aspect of management. I assume you want to be considered one of the good employers, right?

In that case, here are 5 things you should never do!

1. Date Subordinates

Okay, you know what I’m talking about. But let’s start with what I’m not talking about. Especially if you own or help operate a small business, it’s reasonable that your spouse or longtime partner may also become involved. I’m not strictly advocating “no nepotism” policies. But don’t cross dangerous lines needlessly!

No matter how well you and your direct reports get along, it needs to stay professional, or at most friendly. Dating, where it could become romantic, isn’t worth the risk. Sure, it might work out great. But there are many ways it could go south.

First, advances may be rebuffed. If that happens, then the relationship between the two of you may be permanently tainted.

Second, even if a relationship develops, what are the motives? Is your employee only dating you to keep the job, to get ahead, to set you up? This just isn’t the right way to look for love!

Third, even if the relationship is real and works out, other employees may not like it. They might see it as creating a bias in favor of the employee you’re dating. And, let’s face it, you probably would, even should, be biased in that situation. What happens if the employee’s performance drops below an acceptable level and you have to fire your significant other?

Fourth, sexual harassment claims. By your desired paramour. From other employees. And these could come months or years down the road in some cases. These claims are a big hit for otherwise good employers!

If you nonetheless do find yourself dating an employee that reports to you, figure out a way to minimize the risk. Yes, there are even so-called “love contracts” where both parties make representations in writing to help the employer avoid liability. Hopefully, you don’t have to go that far in most cases. Reassigning the employee may solve, or at least help, the problem. But don’t just assume you can date an employee and have everything go smoothly. It probably won’t.

You don’t have to just take my word for. Get The Scoop on Love Contracts.

2. Keep Problem Employees

Any business with multiple employees over time will eventually end up with a bad one. This doesn’t necessarily mean someone with bad motives, but it can. More often, it’s just an employee who isn’t the right fit for the job for whatever reasons.

Some good employers think they can right the ship no matter what. “I hired this guy . . . I can fix him.” But that philosophy doesn’t always work. Okay, it usually doesn’t work.

Even if you could retrain a chronically underperforming employee, it probably isn’t worth the effort. You could find someone else better out there right now.

And if someone lies to you once or twice, can you afford to give them another chance?

This doesn’t mean you should have a zero tolerance policy in all respects. It just means you need to be realistic. If someone isn’t the right fit now, they probably won’t be in six months either.

Here’s another secret. The longer you employ someone, the more it costs to get rid of them. There are many inputs in this calculation. They may include training costs, severance pay, risk of litigation, etc. Do the analysis earlier rather than later, compare the cost of trying someone else, and make the difficult decision. You’ll be glad you did.

Check out my 5 Tips for Firing Problem Employees!

3. Hire People Like You

We are all predisposed to like people who resemble us. We’re automatically more comfortable and familiar with them. We know how they think, how they behave, and what motivates them. Or, at least we assume we do.

There are two big problems with hiring based on similarities:

The first is a legal concern. Discrimination. If you only hire/promote people similar to you in race, age, gender, etc., then you may be systematically disadvantaging particular classes of candidates. This can mean litigation, legal fees, and settlements or damages awards. Not good, obviously.

The second is a business concern. Do you really need more people like you? You already do you better than anyone else. What you need is a mix of “not-yous” to complement your strengths and weakness.

This doesn’t mean you can or should only hire people who are nothing like you. To be sure, only hiring employees of a different race or sex may also constitute discrimination. But good employers embrace diversity of experience, personality, characteristics, etc., not only because it’s the right thing to do, but because it works for their business too!

While you’re at it, Don’t Ask These Questions During Job Interviews!

4. Ignore Complaints

No one is perfect. Your business is going to make mistakes, or at least the people working for you will. It’s better to foster a culture where people are open about their mistakes so that they can be corrected. Otherwise, they build on themselves, making matters worse.

So, how do you foster this positive culture? First, don’t overreact. Try not to scream or disparage someone when you find out they did something wrong. If this is simply a performance matter, then try to correct it and move on. Obviously, consistent poor performance is another issue, addressed above.

Now, let’s say you find out about a mistake because another person files a complaint. And let’s say this complaint alleges harassment, discrimination, or other mistreatment. Then you have to investigate, but, again, don’t overreact.

Just because someone complains about a co-worker, it doesn’t always mean they want to sue you. Often, your investigation will reveal a misunderstanding that can be remedied. Other times, you may discover that someone has crossed the line. But even then, it doesn’t necessarily mean they meant to. Where possible, correct the mistake and make sure it doesn’t happen again.

Especially in the harassment context (sexual, racial, age-based, etc.), the potential liability often arises once an employer knows of misconduct and fails to act. But acting doesn’t have to mean firing anyone, or even transferring employees. The investigation may be sufficient.

But if you don’t take a complaint seriously or don’t try to get to the bottom of things, then you create a big target if the unwelcome behavior persists. Yes, this often increases the employer’s legal responsibility for this conduct. More importantly, it increases the likelihood that the complaining employee will go outside your organization to seek redress.

Be prepared for these situations in advance. Read my post on Responding to Employment Discrimination Complaints.

5. Forego Overtime Pay

Overtime is a major compensation issue that many employers, including good employers, get wrong. Yes, it’s nice to have employees who are willing to work as much as you need them to. But if you don’t pay them as required, it can cost you tremendously.

Lawyers representing employees are eager to file lawsuits against employers for failure to pay overtime. Not only can they recover handsomely for their clients. They also receive their fees from the employer if they win. Don’t be a target for these lawyers. Do it right!

The basic rule is that employees who work over 40 hours in a week must be paid overtime at time-and-a-half. Some employees can be exempt, meaning they don’t have to receive overtime pay. And, in some cases, different hour thresholds and payment requirements apply.

Here are some of the common mistakes:

  • Not accurately recording all hours worked.
  • Not paying overtime when earned.
  • Providing “comp time” instead of overtime pay, which isn’t allowed for private employers and has specific limits for public employers.
  • Improperly classifying an employee as exempt.
  • Miscalculating the overtime rate.

Remember, in most cases, employees can’t simply agree not to be paid for overtime. The law requires it, so any such agreement probably won’t hold up. If there is a claim in court or with the Department of Labor, then it’s the employer’s burden to show compliance with the law.

Keep in mind that the U.S. Department of Labor is in the process of reviewing its overtime exemption rules.

My Most Important Tip for Good Employers Like You!

There are so many traps in the employment law minefield. And the laws and workplace realities simultaneously change all the time. You need to stay up-to-date on what’s going on if you want to remain one of the good employers out there. My free email newsletter can help you be one of the great ones! Sign up here now!

Employment-Discrimination-Complaints

Responding to Employment Discrimination Complaints

Many state and federal laws prohibit employment discrimination across the United States. While it is ideal to prevent discrimination before it occurs, sometimes employers do receive complaints and have to deal with them. How you handle complaints of employment discrimination can have a significant impact on your organization, for better or worse. Hopefully by reading this it will be for the better!

[Click here get my FREE step-by-step guide to Investigating Workplace Harassment Complaints!]

What Laws Prohibit Employment Discrimination?

At the federal level, some of the key employment discrimination laws are:

  • Title VII of the Civil Rights Act of 1964 (race, color, sex, national origin, religion)
  • Americans with Disabilities Act (disability, perceived disability)
  • Age Discrimination in Employment Act (age: 40+)
  • Genetic Information Nondiscrimination Act (genetic information)
  • Equal Pay Act (sex: compensation)

Across the State of New York, the New York Human Rights Law also provides protection based on the following categories:

  • Race
  • Creed
  • Color
  • National origin
  • Sexual orientation
  • Military status
  • Sex
  • Age
  • Marital status
  • Domestic violence victim status
  • Disability
  • Pregnancy-related condition
  • Predisposing genetic characteristics
  • Prior arrest or conviction record
  • Familial status

For employees in the five boroughs  of New York City, the New York City Human Rights Law also provides protection based on the following characteristics:

  • Age
  • Alienage or citizenship statue
  • Color
  • Disability
  • Gender (including sexual harassment)
  • Gender Identity
  • Marital status and partnership status
  • National origin
  • Pregnancy
  • Race
  • Religion/Creed
  • Sexual orientation

What Is Employment Discrimination?

Generally speaking, discrimination under the above laws is an adverse or negative impact that is based, at least in part, on one of the legally protected categories. Discrimination may occur with respect to hiring, firing, promotion, compensation, or other terms and conditions of employment. Discrimination also includes harassment.

Unlawful harassment consists of unwelcome conduct that becomes a condition of continued employment and is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

The employment discrimination laws also prohibit retaliation for opposing unlawful discriminatory practices.

Internal Employment Discrimination Complaints

Investigating Workplace Harassment Complaints
Click for your FREE copy of this valuable reference guide!

Sometimes employees will make employment discrimination complaints to their employers directly. They may first complain to human resources, a supervisor, or perhaps an owner of the company. These complaints should always be taken very seriously. Under the various employment discrimination laws, employers may sometimes have legal defenses based on whether they have been made aware of alleged discrimination and how they responded to the allegations. Obviously, evidence that legitimate complaints were ignored will not help the employer’s case!

A lead investigator (often a human resources professional) should then investigate the allegations in the complaint. This will usually begin with interviewing the complaining employee. If applicable, other witnesses and the alleged discriminator(s) should also be interviewed. Once the investigator has completed the investigation, he/she should prepare findings and recommend an outcome. The outcome should usually be conveyed to the complaining employee. Sometimes additional employees, such as alleged harassers and relevant supervisors will also need to be notified.

If warranted, the employer may take disciplinary action against one or more employees as a result of the allegations. In some cases, appropriate corrective action will instead involve making changes to workplace policies, procedures, etc. In other cases, the aggrieved employee may receive a job change, compensation correction, or other modification to remedy the perceived discrimination.

Employment Discrimination Complaints to Governmental Agencies

In many cases New York employees have a choice of filing employment discrimination complaints with either the New York State Division of Human Rights (State Division) or the U.S. Equal Employment Opportunity Commission (EEOC). There are also some local civil rights agencies within the state, such as the New York City Commission on Human Rights. In many cases, a complaint filed with one of these agencies will be cross-filed with another. Usually, however, one agency takes the lead in investigating a particular complaint.

Once the State Division or EEOC receives a complaint that is valid on its face, they usually send a copy of the complaint to the employer involved. Employers are first given the opportunity to submit a position statement and relevant documents in response to the allegations made in the complaint. Employers should take this step very seriously, as it sets the basis for their defense to the claims made. Most employers should involve legal counsel familiar with responding to employment discrimination claims at this stage.

The position statement will explains the employer’s side of the story. Sometimes the employee’s account is accurate, but incomplete. Other times, it is inaccurate in the first place. Either way, the reality is that the employer may know more about the circumstances than the employee does at this stage.

Once the agency receives the employer’s position statement, they typically send it to the complaining employee for review and comment. Therefore, a complete, well-written position statement can be used not only to show the government investigator that no discrimination occurred, but also to demonstrate to the employee that they weren’t wronged in the way they thought they were. This can sometimes persuade the employee to either withdraw or at least lose interest in their complaint.

After receiving the position statement and any rebuttal statement from the complainant, the agency may conduct further investigation. This can include a request for additional documents or other evidence or interviews with individuals involved. When interviewing (non-complainant) supervisory employees, the State Division and EEOC will usually permit an attorney representing the employer to be present. The investigators may seek contact information to be able to speak to non-supervisors directly, without employer representatives present.

Sometimes the agencies will hold investigatory conferences where both the employer and complainant will be present together. These may occur either by phone or in person. Typically, the investigator asks all of the questions, and the parties do not get to cross-examine each other. Nonetheless, employers should have legal representation at this stage. Attorneys can help ensure that all of the helpful information is presented, such as by subtly suggesting that the investigator may want to ask a particular question. Plus, it best that the attorney have the opportunity to observe all witnesses present for the investigative conference in case the matter proceeds to a hearing or further litigation.

Often investigators will conclude an investigatory conference by requesting additional information from either or both parties. After all information is submitted, the State Division or EEOC will make a determination as to whether to proceed with the case.

Possible Outcomes of Agency Investigations

After completing its investigation, the New York State Division of Human Rights will issue either a “Probable Cause” or “No Probable Cause” finding. If they find Probable Cause, then the case will continue to a public hearing. The hearing is similar to court trial, but is somewhat less formal and usually held in a conference room rather than a court room. A No Probable Cause finding ends the administrative case in favor of the employer; however, employees can appeal the State Division’s determination through the courts.

In most cases the EEOC will issue a Notice of Right to Sue to the employee regardless of its investigatory findings. This Notice gives the complaining party 90 days to file a lawsuit in court under the applicable federal employment discrimination statutes. The Notice of Right to Sue will further identify the basis for the dismissal, essentially again indicating whether the EEOC found any basis for the charge of discrimination. However, the EEOC’s finding does not determine the outcome of a possible court case.

If it finds a case particularly worthy of pursuing, the EEOC can file a lawsuit on its own behalf against the employer on the basis of an employee’s discrimination claim. Given limited enforcement resources, the EEOC only takes a small percentage of charges to litigation. Often these are cases affecting numerous employees or featuring especially egregious examples of discrimination.

If an employment discrimination case ends up in either an administrative public hearing or in court, then employers will particularly benefit from having had legal counsel involved throughout the process.

Don’t Forget This Part

It’s not the end of the world if your business receives an employment discrimination complaint. With the proliferation of laws protecting employees, any organization with employees can be hit with a complaint at any time. Sometimes there is just a misunderstanding that needs to be worked out. Other times, the process will take longer to resolve, but employers often prevail in these matters.

As a starting point, download my free Guide to Investigating Workplace Harassment Complaints!

And please do obtain legal advice, especially once an administrative agency like the New York State Division of Human Rights or the EEOC gets involved. Experienced employment lawyers can offer various levels of assistance with the process depending on your needs and circumstances. If you think I would be the right person to assist you, let me know.