By Melissa Fleischer
Matt Manager would like to know why he has to attend employment law training. What does employment law have to do with Matt’s job anyway? His job requires him to make sure his employees are being productive and making money. Employment law is HR’s responsibility. Matt has no time or patience for such matters.
Unfortunately, Matt’s conclusion could not be further from the truth. Now more than ever, managers need to understand and be familiar with employment laws because acting within the law, following the company’s policies, and avoiding liability are all part and parcel of the manager’s job duties.
Begrudgingly, Matt Manager attends the training class and is pretty shocked by what he learns. The first part of the training deals with hiring and what he can and cannot ask the applicants he interviews. He never knew, for instance, that you could not ask an applicant if they are a U.S. citizen, if a female employee is married, or if an employee is disabled. Who knew?
In many states the laws prohibit employers from asking questions about citizenship, marital status, disabilities, and sexual orientation, among other things. More accurately, the laws prohibit an employer from refusing to offer employment to an applicant based on the applicant’s citizenship, marital status, disability, sexual orientation, or any other protected class under federal, state, or local law.
Once the manager asks questions on these topics, the applicant who is not hired might claim that the real reason he was not hired was a discriminatory motive on the employer’s part as evidenced by asking such questions and now having such information regarding the applicant.
Moving from hiring issues to the major issues that arise during an employee’s employment, Matt learns that under many state laws, he as a manager can be held personally liable for harassment that he engages in or condones under the state’s aiding and abetting law.
What does personal liability mean? It means that he has to pay out of his own pocket damages awarded against him for his harassment in the workplace. In one case, a manager was held personally liable for $1 million! Matt’s ears perk up now. Matt needs to understand how to not engage in harassment himself and how to ensure his employees do not engage in harassment.
Matt next learns about the other major problems that arise during an employee’s employment. He learns that he can violate employment laws by terminating an employee out on leave that is protected by the Family and Medical Leave Act (FMLA) or by failing to provide a disabled employee with reasonable accommodation under the Americans with Disabilities Act (ADA).
Moreover, Matt thought that if an employee was a poor performer, it would be no problem to get rid of him. Little did he realize that even at the termination stage, the employment laws control every move a manager makes. Although every state other than Montana is an employment-at-will state, he should not just fire an employee for being a poor performer without engaging in progressive discipline. He needs to warn that employee that his behavior is unacceptable and that, if he fails to improve, he could be subject to further discipline up to and including discharge. He also needs to provide the employee with an opportunity to improve before terminating him.
Matt also learns that before he can terminate an employee he better create a paper trail complete with disciplinary warnings as well as the poor performance being reflected in the employee’s performance review. Otherwise, Matt learns when the employee sues for discrimination, as he ultimately will, he will be successful because there will be no documentary evidence substantiating Matt’s claims that he fired this employee because he was a horrible employee and not because the employee was too old, Hispanic, and gay.
Matt comes running to HR after the employment law training thanking them for providing this valuable and enlightening training. He encourages HR to provide it to all managers at the company so they, too, can better understand the important role they play in enforcing the company’s employment law policies and protecting the company and themselves from liability.
About the author:
Melissa Fleischer, Esq., is founder of Melissa Fleischer & Associates and an employment law attorney with many years experience. Fleischer has successfully represented numerous clients in employment discrimination litigation. She also has provided in-house employment law and human resource training to many of her clients on various employment law topics such as sexual and unlawful harassment training, FMLA, ADA, Workplace Violence Prevention, and labor relations. Fleischer is the president and founder of the HR Learning Center, a full-service training and consulting firm for management and human resource professionals specializing in the area of employment law. She can be reached at (914) 417-1715 or at [email protected].
Reprinted with permission from HR.com.