Managing and the Law

The Supreme Court case, Kolstad v. American Dental Association, and subsequent cases have made clear that employers should train their managers how to avoid workplace discrimination. Indeed, in the case Mathis v. Phillips Chevrolet, Inc., the Court of Appeals ruled that an employer’s failure to train managers how to avoid discrimination in the hiring process amounts to “reckless indifference” such that damages to punish the employer should be awarded.

In this course, managers learn how to:

• Effectively interview applicants to determine their qualifications for the job using behavior-based interviewing techniques

• Avoid unlawful or poorly phrased questions and comments during the interview

• Select the best candidate and properly document the selection

All class participants are provided with the following resources:

• Table identifying lawful and unlawful questions on several topics

• Sample behavior-based interview questions on several topics

Employees who perform poorly or commit misconduct cost organizations billions of dollars each year. But many managers are reluctant to confront poorly performing employees. First, many managers want to avoid conflict. Second, managers may not feel confident in their ability to provide constructive criticism or effective discipline. And third, managers may fear making a disciplinary mistake for which their organization could later be sued. Indeed, each year improperly handled discipline and termination decisions cost employers millions of dollars in litigation costs, verdicts, and settlements.

In this course, managers will learn how to lawfully and effectively coach and, when necessary, discipline employees.  Managers will learn the practical skills they need to confidently:

• Document poor performance or misconduct
• Counsel or discipline employees at the first sign of problems, rather than waiting until problems have escalated
• Document disciplinary actions properly
• Terminate employees lawfully, working with the HR department
• Avoid discrimination, wrongful termination, retaliation, due process, and other employee lawsuits

Managers will learn about the following:

Purpose of Corrective Action

• Goals of providing employees feedback, counseling and discipline
• Why supervisors are reluctant to honestly evaluate and promptly discipline employees when needed, and the legal and organizational dangers of not doing this

Documenting Employee Performance and Discipline

• Identifying and keeping a diary of specific incidents and behaviors
• Properly documenting counseling and disciplinary meetings with employees
• Keeping documentation focused and professional

Meeting With the Employee to Discuss Your Concerns

• Restricting comments to specific incidents of poor performance or poor behavior
• Asking for an employee’s suggestions on how to prevent problems from recurring
• Handling your emotions and properly responding to the employee’s emotions
• Choosing the appropriate level of discipline
• Making sure that an employee has the resources and training necessary to do the job
• Ensuring that the employee understands your expectations and performance requirements, the specific actions he or she will need to take to improve, and the consequences of not improving

Performing Follow-Up Meetings

• Reviewing each incident of poor performance or misconduct and informing the employee of problems remaining or of the employee’s successful improvement
• Discussing further violations of organization policy

Factors to Consider When Deciding Whether to Terminate an Employee

• Ensuring that discipline is applied consistently
• Avoiding terminations that could be seen as discriminatory

Termination Meeting

• What should you say and not say?
• Should you tell the employee the reasons for the termination? How much detail should you give?
• Documenting terminations properly

Post-Termination Issues

• Protecting other employees and your organization’s property
• Handling requests for references

Wage and hour lawsuits are one of the fastest growing types of employee lawsuits. The judgments and settlements in wage and hour lawsuits have been massive, with several in the tens of millions of dollars. This course provides an overview of the federal Fair Labor Standards Act and teaches managers their specific responsibilities for complying with wage and hour laws. The instruction is customized to reflect state and local laws and organization policies that relate to wage and overtime issues.

The course addresses the following topics:

Managers’ Responsibilities

• Knowing which employees are classified as exempt (not entitled to overtime) and which employees are classified as non-exempt (entitled to overtime).
• Understanding which activities of non-exempt employees are paid and properly recording those activities.
• Avoiding job changes and disciplinary actions that jeopardize the exempt status of an employee.
• Ensuring that employees’ work hours are properly recorded and that the documentation is maintained.

Non-Exempt Employees

Under what circumstances must non-exempt employees be paid for the following?

• Volunteer time
• Work from home
• Work done over lunch
• Rest and meal breaks
• Time spent preparing to start the day
• On-call time
• Training time
• Travel for work
• Commuting time
• Time when employee specifically ordered not to work
• Can non-exempt employees be provided with compensatory time in lieu of overtime pay?

Exempt Employees

• Are all salaried employees exempt and therefore not entitled to overtime?
• Under what circumstances can you dock an exempt employee’s pay?
• Can you dock an exempt employee’s pay if he or she shows up to work late?
• Can changing an exempt employee’s job status or duties lose the exempt status?

Other Issues

• What must I report relating to wage and hour issues?
• What if I discover that a mistake has been made in someone’s pay?
• How can I avoid retaliation claims?

This course provides managers practical skills for complying with the Family and Medical Leave Act and applicable state and local laws and organization policies. Among other things, this course addresses the following issues:

Before Leave

• What are the conditions for which FMLA leave may be taken?
• Can we require the employee to provide a doctor’s note?
• Can we ask for a second or third opinion from another doctor?
• Must the employee specifically say that he or she is requesting, “FMLA leave”?
• How much notice of the need for leave must the employee give?
• How quickly must we respond to an employee’s leave request?
• What steps should supervisors take to ensure that we are not forced to provide employees with more leave than the law requires?

During Leave

• How much leave is an employee entitled to?
• Can we require an employee to take FMLA leave concurrently with other available leave?
• When is an employee entitled to intermittent or reduced schedule leave?
• What can we do to monitor abuse of intermittent and reduced schedule leave?
• What if we need to discipline or terminate an employee who is out on FMLA leave?
• How do we avoid discrimination or retaliation claims from employees?

End of Leave

• Can we require employees who were on FMLA leave for their own serious health conditions to provide medical certification of their ability to perform the essential functions of the job?
• Should we require a fitness-for-duty report before the employee returns to work?
• Once FMLA leave expires, can other laws, such as the Americans with Disabilities Act, require additional leave?
• Do we have to return the employee to the same position when he or she returns to work?

Most employers have adequate policies on reasonable accommodations of disabilities and religious practices. However, such policies are not effective unless all managers have been trained how to properly apply those policies to the situations that they may encounter in real life.

Through a series of scenarios and interactive exercises, participants will learn practical skills for handling accommodation requests and other disability and other disability issues. Among other things, the course addresses the following questions:

Disability Accommodations

• Must an applicant with a hidden disability disclose that disability during the hiring process?
• What questions can I ask about an applicant’s disability during the hiring process?
• How do I respond to questions from those who are seeking a reasonable accommodation?
• Who in my organization should I contact when I receive a request for a reasonable accommodation?
• Can I ask an applicant or employee to provide documentation of his or her disability?
• How do I balance an employee’s request for a reasonable accommodation with the business needs of my organization?
• What are my responsibilities for maintaining the confidentiality of disability-related information?

Religious Accommodations

The course will address common types of religious accommodations requested by employees, and the factors to take into consideration when determining whether a requested accommodation would cause undue hardship.  The course will also address how to respond when:

• A requested accommodation seems contrary to the employer’s policy
• Several employees present competing interests
• Customers or clients disregard an employee’s right to accommodation of religious practices
• More than one possible accommodation is available

Michael W. Johnson, CEO of Clear Law Institute, is a former U.S. Department of Justice attorney. He has trained thousands of professionals how to effectively interview witnesses and spot deception in internal investigations.

The United Nations hired Mr. Johnson to train UN staff on investigative interviewing techniques in New York, the Congo, and Sierra Leone. He has served as an expert witness in cases challenging the adequacy of employer investigations.

Mr. Johnson is a graduate of Duke University and Harvard Law School.

We have provided Managing and the Law training to numerous organizations, such as the Public Broadcasting System (“PBS”) and the City of Annapolis, Maryland.

In Person

We often deliver the course in-person at a client location or locations.

Webcast Session

We can webcast the course so that participants can watch a live video stream of the session on their computer, tablet or smartphone. Participants are able to ask questions throughout the session.  The session can be recorded so that those who cannot attend the live session can participate at their convenience.