Training Your Supervisors to Recognize Employment Law Danger Zones Lauri D. Chaudoin

Why Train? The economy requires it. – Studies show that just a 1% increase in unemployment can lead to a significant increase in lawsuit filings. The law requires it. – Supreme Court: to guard against supervisor misconduct, employers should “screen them, train them, and monitor their performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998). – “Good-faith efforts”: effective anti-harassment policies, procedures and practices – no liability for punitive damages

Why Train? The law requires it. – Many cases hold that employers who do not hold training are not acting in good faith. EEOC v. Federal Express Corp., 513 F.3d 360 (4 th Cir., 2008) – ADA, reasonable accommodation Andreoli v. Gates, 482 F.3d 641 (3 rd Cir., 2007) – supervisor had history of complaints, but no training/investigation Swinton v. Potomac Corporation, 270 F.3d 794 (9 th Cir., 2001) - $1MM punitive damages: training held 7 months after complaint and harassers never disciplined

Why Train? The law requires it. – EEOC and DOL consent decrees – EEOC Enforcement Guidance recommends that all supervisors, managers and employees be trained periodically, in the event of an internal complaint, and if an individual is found to have engaged in harassment.

Danger Zone 1: Harassment Types of prohibited harassment Conduct that constitutes harassment Manager’s responsibility: prevent and respond

Danger Zone 1: Harassment What to do when a complaint is received How to manage post-investigation – avoid retaliation Training on employer’s specific policy – Reporting mechanisms – Get acknowledgement

Danger Zone 2: Discrimination Protected classes Importance of diversity Interview risks: don’t ask that question! “Adverse job action” Importance of frank and thorough performance reviews

Danger Zone 2: Discrimination Progressive discipline: a chance to improve Documentation is key Consistent treatment is critical – use resources to ensure Terminations – evaluate fully, call for backup

Danger Zone 3: Americans with Disabilities Act (ADA) Types of conditions that may be disability Accommodations in hiring How to address reasonable accommodation requests “Record of” and “Regarded as” dangers Establishing essential job functions

Danger Zone 4: Family and Medical Leave Act (FMLA) Examples of “Serious Health Condition” Qualifying family members Discipline for poor attendance and possible FMLA application Importance of “the paperwork” Right to take leave “intermittently” Importance of past practice regarding discipline

Danger Zone 5: Wage and Hour Exempt/Non-Exempt Classification Working “off the clock” – Importance of policy disciplining violations Compensatory time usually not allowed “Preparing to work” Relatives helping out Carrying hours to next week

Overall Messages Familiarity with policies Responsibility to enforce policies – courage to be the “bad guy” Importance of good documentation

Overall Messages Consistency is key Beware of Retaliation a jury favorite – especially workers’ comp Use company resources - HR

Training Tips Choosing the trainer – Supervisors will respect a trainer with industry experience – Executive level will respect an experienced outsider When outsider echoes HR, HR profits from this respect Attention-getter: many employment laws allow personal liability on the part of the supervisor

Training Tips Timing is everything – Modules over several weeks preferred to a week- long training – Assignments in between Target various learning styles – Lecture – Group interaction – Visual – Written materials

Training Tips Make it mandatory – Otherwise, the ones who need to hear it most may not attend – Shows important to management Have some fun! – Many good games available online Use stories and anecdotes to illustrate Allow group discussion time

Training Tips Have Human Resources at the training – policy questions will come up Keep class sizes small, if possible (12-14 is ideal) Keep good attendance documents