One of my clients, an industrial construction company, recently asked me to conduct their annual employment law training. Here are my observations and lessons learned.
- The Nike Rule: Just do it. Training is often a back-burner project, and if you don't make a priority, it won't get done. So pick several days, schedule multiple sessions, require all supervisors to attend, and be sure to keep the sign-in sheets. This is good evidence in a lawsuit or Equal Employment Opportunity Commission (EEOC) charge, and is also good business – your company is only as strong as your first-line supervisors.
- The More the Merrier: Be sure those first-line supervisors are included. I know the working foremen in my sessions didn't think they needed to be there. One foreman even said “This is easy – if there's a problem, just refer it to safety or HR.” True enough, but first-line supervisors need to be able to distinguish a real problem from a minor gripe or personality conflict. Training helps them do just that.
- The MTV Rule: The MTV Rule is universal – it's the belief that My Time is Valuable. Keep training sessions focused and limit them to no more than an hour. My client developed a 25-minute video for its training sessions, so I showed the video and then gave examples and answered questions for another 25 minutes. The sessions were lively, interactive and productive, but even so, I'm sure that no one thought they were too short.
- Eyes and Ears: I don't want supervisors to be employment law experts; all I want is for them to identify potential problems and bring them to management's attention. My mantra for supervisors is: “you are the eyes and ears of the company.” I am asking them to pay attention, look and listen, and feel no hesitation when contacting HR or upper management.
- Hot Issues: These will vary from workplace to workplace, but most training sessions will need to cover the following:
- ADA/FMLA: Supervisors need to know that medical conditions, including both physical and psychiatric conditions, may trigger legal obligations. Bottom line: if an employee says “I have X problem and it is interfering with my work,” and X sounds like something medical, call HR.
- Wage & Hour Compliance: Supervisors need to understand that time records must be completely accurate and should be signed or initialed by each individual employee. Emphasize that the company does not tolerate “off-the-clock” work of any kind, not even from the enthusiastic employee who voluntarily shows up a half hour early every day. (In my recent sessions, supervisors were surprised to hear that this is a disciplinary issue.)
- Discrimination: Supervisors need to know that any employment decision, such as a termination or layoff, may be challenged, and in most cases they won't hear about the challenge until long after the decision was made. To defend themselves, they need written documentation. It is not enough to say “the job was winding down and I had to let go one of our three welders.” Why was that particular welder the first one to be let go?
- Retaliation: Supervisors need to be aware that their least favorite employees – the complainers – need to be treated with caution. Employees are protected from retaliation if they have complained about a legal issue (such as the issues listed here), complained about workplace safety, or filed a workers' comp claim. These employees can still be disciplined or terminated if appropriate, but those actions need to be handled carefully and with the assistance of HR.
- Harassment: Supervisors need to know that workplace harassment is still a common problem, and that issues that appear to be minor, or appear to be caused by a simple personality conflict, may in fact be signs of unlawful harassment. Supervisors also need to know that same-sex harassment can be unlawful, and that the company will not tolerate a “boys will be boys” atmosphere at its construction sites or anywhere else.
Next month: more on same-sex harassment and the recent Fifth Circuit decision in EEOC v. Boh Brothers Construction.