Managing employees is never easy, but in today’s economy it can be particularly challenging. Many managers feel increased pressure to do more with less – and in many cases, a lot less. Mistakes will inevitably occur, but managers can avoid some of the most common errors by knowing where the traps lie. By reviewing the Top 10 Management Mistakes below, managers can help safeguard against potential claims and keep the workplace running smoothly. 1. Email Blunders Scenario #1: An employee emails you that, after 25 years with the company, he is giving some thought to resigning from his position. You write back that you agree it is about time he retire and enjoy his “golden years” and attach information about Social Security and MediCare. Scenario #2: You have a disagreement with an employee and let off some steam by sending some particularly nasty comments about the employee to your fellow manager. Scenario #3: You are checking your gmail account from your desk. A friend forwards you a YouTube video that is hilarious yet full of offensive language. You forward it to a coworker you know will love it. Emails can “make or break” a case that is in litigation. Common email mistakes include: Thinking emails are deleted after pressing the delete button Believing emails are confidential if written only to internal management Viewing emails as a conversation instead of a formal letter Not reviewing carefully before pushing “send” Recommendation: Before finalizing any email, imagine it blown up to a 3’x4’ poster size and read aloud in front of a jury. Taking this step may help you avoid all too common email blunders. 2. Failing to Document (Even Verbal Warnings) Rule of Thumb: “If it is not in writing, it didn’t happen.” The employment lawyer’s mantra is “document, document, document.” Various methods of documentation include notes to the file, letters to the employee, memos to general staff, emails to management personnel, minutes of management meetings, etc. In whatever form, almost everything that happens in the workplace with regards to possible employee claims should be documented (including in-person meetings and verbal warnings). 3. Not Documenting Properly Rule of Thumb: “If it’s not documented well, better that it not be documented at all.” Though documentation is crucial, a poorly documented incident can weaken even the strongest case. Managers should carefully review all documentation and consider consulting counsel before finalizing any writing. 4. “Sugar Coating” Reviews and Terminations Managers are often tempted to “sugar coat” reviews and the reasons an employee is terminated. This could turn sour if the employee is angry and inclined to sue. It is inconsistent if at the time of discharge, a manager tells the employee, “You are being laid off. It has nothing to do with your performance,” and then turns around during litigation and attributes the layoff on “poor performance.” Similarly, positive performance evaluations are commonly used by terminated employees in litigation in an effort to demonstrate they were good performers and the reasons they were given for termination were “pretextual.” Pretextual means “a fictitious reason that is concocted in order to conceal the real reason.” Examples include where an employee is fired for having work-related injury, for lodging complaint (e.g., harassment, discrimination) or for excessive absences related to “protected activities” (e.g., disability, jury duty, witness duty, etc.). Recommendation: Discuss and plan what you are going to say or write before saying or writing it. Be honest and concise. Explain the reasons behind the review or termination, but don’t be defensive or argue. Remember, a single review or termination may be the linchpin for a future claim. 5. Ignoring Employee Complaints As a supervisor, you represent the company. Being a supervisor is a 24/7 job. If you learn of potentially unlawful conduct, you must notify HR or upper management immediately. Once a supervisor is aware of such conduct, the company is deemed to be on notice. Once certain complaints arise (e.g., harassment, discrimination, etc.) conduct is reported, the company must promptly conduct an investigation. Workplace investigations are essential not only to managing the workplace and resolving disputes before lawsuits arise, but employers are under a legal obligation to conduct investigations. Moreover, properly conducted investigations often lead to an important defense after a lawsuit is filed. General investigation guidelines include, but are not limited to: Interviewing the complainant and alleged perpetrator Interviewing additional witnesses Gathering additional evidence Documenting every step Evaluating and determining a factual conclusion Assessing and addressing (if necessary) the future impact of the complaint on the workplace environment 6. “Off the Clock” Work Employers have record keeping obligations, which include keeping track of all hours worked by non-exempt employees. Employers should record the stop and start time of all work being performed, including the beginning and ending of each meal period. Employers must pay for all work they actually know or “should know” is being performed by employees (including any “off the clock” work). Managers are often accused of pressuring employees to work “off the clock” in an effort to avoid paying employees for all the hours worked and overtime premiums or “shaving” time records in an effort to reduce costs and increase bonuses for themselves. Sometimes honest mistakes are made, which may still lead to false accusations. Example: Employee forgets to clock in or out and manager makes correction on time card. Recommendation: Have employee initial the change to acknowledge that the corrected time accurately reflects the time worked. 7. Meal and Rest Break Violations Meal Break Rules California law currently requires employers to provide a 30-minute unpaid, duty-free meal break for each work period of more than 5 hours. However, if the total work period is no more than 6 hours, the meal period may be waived by mutual consent of both the employer and employee. A second meal period of not less than 30 minutes is required if an employee works more than 10 hours per day. But, if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee, but only if the first meal period was not waived. Employees must be relieved of all duty during their 30-minute meal period. “On duty” meal periods are permitted only when (i) the nature of the work prevents an employee from being relieved of all duty, and (ii) agreed to in writing by the employer and employee. The penalty for failing to provide a meal period is one additional hour of pay for each workday the meal period is not provided Recommendation: Ensure employees are provided meal breaks and that records reflect meal breaks are in fact taken (i.e., require employees to clock out and in for the full 30-minute break). Rest Break Rules Employers must “authorize and permit” non-exempt employees to take a 10-minute rest break for each 4-hour work period, or major fraction thereof. However, no rest break is required for employees whose total daily work time is less than three and one-half hours. Rest breaks should be taken in the middle of each work period, if possible. Rest breaks may not be combined with meal breaks or used to come in late or leave early. Recommendation: Do not deny employees the ability to take 10-minute rest breaks. 8. Not Enforcing Overtime Rules/ Failing to Pay Overtime California employers must provide time-and-one-half the employee’s regular rate of pay for (i) all hours worked beyond 8 in a single workday (or 40 in a workweek), and (ii) the first 8 hours worked on the seventh consecutive day worked in a single workweek. Employers must pay double the employee’s regular rate of pay for (i) all hours worked beyond 12 in a single workday, and (ii) the hours worked beyond 8 on the seventh consecutive day worked in a single workweek. Payment of overtime wages earned in a pay period may be delayed until no later than the payday for the next pay period. If you delay payment of overtimes wages to the following pay period, you must itemize the hours as corrections on the pay stub for the period in which they are paid and identify the date of the pay period to which they are attributable. Failure to pay overtime results not only in an obligation to pay the overtime owed, but also in other potential penalties under the Labor Code. 9. Not Being Familiar With Various Leave Rules In California, certain leaves are required by law while others are optional. Additionally, some leaves apply only to employers of certain sizes. For example, Pregnancy Disability Leave (PDL) applies to employers with five or more employees whereas the federal Family and Medical Leave Act (FMLA) and state California Family Rights Act (CFRA) only apply to employers with 50 or more employees. All employers (even those with only one employee) must provide workers’ compensation disability leave and jury and witness duty leave. Yet, no employer is required to provide paid vacation or sick leave. Because the different types of leaves, both required and not, interact with each other in different ways, it is important to understand the various laws and corresponding obligations. 10. Writing Up Employees for “Protected” Activities (and Using Those Write-Ups as Basis for Termination Decisions) There is an extensive list of activities that cannot be used as grounds for terminating an employee. Certain activities are protected by the law, and employers may not terminate an employee for participating in such activities. Nor should employees be written up for these reasons. They include, but are not limited to, disclosing wages, political activity, taking limited time off for a child’s school or day care activities and refusing to take a polygraph test. For more information on Lewitt, Hackman, Shapiro, Marshall & Harlan’s two-hour seminar on Top 10 Management Mistakes…and How to Avoid Them, contact Sue Bendavid or Nicole Kamm at (818) 990-2120.
Top 10 Management Mistakes…and How to Avoid Them
