© cgi business solutions, 2015 human resources issues impacting managers

Human Resources Issues Impacting Managers

Disclaimer• None of the information contained herein is

considered tax or legal advice.• This is a Human Resources perspective on

common HR issues facing managers.

Role of Manager • Business

development• Staffing• Training/mentoring• Project manager

• Counselor

• Influencer • Scheduler • Innovator

Role of Human Resources• Strategy• Compensation• Recruitment• Training &

development

• Benefits • Safety • Liability• Compliance

Interplay of Roles/Responsibilities• Areas of potential conflict– Unclear roles– Unclear policies ( and/or inconsistent application)– Lack of collaboration – Lack of knowledge

• Risk tolerance – Company– Manager – Human resources

Common Wage/Hour Issues (FLSA concerns)

Common myths• If an employee is “salaried” they’re not eligible

for overtime (not necessarily)– State law versus federal law– FLSA – exempt and non-exempt (two tests)*

Common myths• Substitution of time off instead of paying

overtime is acceptable– Currently only allowed in public sectors– Illegal for private sector companies

Wage and Hour Laws• Failure to follow federal and state wage &

hour laws (i.e. meal and rest breaks, record of all time worked)

• Misclassification of employees

Proper Classification of EmployeesFair Labor Standards Act (FLSA) • Requirement to pay employees OT for working over

40 hours in a workweek at 1 ½ times the rate of pay• Special rules to qualify as “exempt” from OT• Salary basis test and “duties” test

New – Impact to Employee Classification & Overtime

Salary Basis Test– General rule (current rule)• $455/week–Equivalent to $23,600 per year

– Proposed rule• $970/week–Equivalent to $50,440 per year

Highly Compensated Standard increase

Recommendations

• Review status of employees (exempt/nonexempt, salaried/hourly, employee/independent contractor)

• Ensure all hours worked are recorded• Review OT and time off policies and actual

“practices” (i.e. comp-time)• Prepare for communicating new classification

to EEs

Documentation –Most Common Mistakes

Not Outlining Company Expectations

• Describe specific expectations - employees should understand exactly what’s required of them.

• Recorded in writing (paper, email, etc.)• During litigation, good documentation

provides evidence to defend business decision

Failure to Provide Specific Changes Required of Employee

• Focus on behavior rather than the person.• Provide detailed examples – so employee

understands exactly what is not working

Not Telling Both Sides of Story

• Don’t forget to include both the supervisor’s and employee’s perspective on the situation documented.

• Dual purpose – opens lines of communication and provides comprehensive documentation in court

Not Outlining Plan

• Effective documentation is blueprint which maps out specific goals (and how employee will accomplish them).

• Example: increased productivity or decrease in errors should list specific steps employees would take to meet goals

Forgetting to List Consequences

• Failure to make improvements should outline consequences.

• Example: Employees “may” be disciplined, demoted or terminated if failure to improve in areas listed

(CAUTION: review discipline policy and use “may” and not “will” unless appropriate)

Failure in Establishing Timeframe• Include an improvement timeline – realistic

period of time

• Follow the timeline in the documentation

• Example: if stated 30-day performance improvement plan, actual follow-through upon 30 days

Failure to Follow-Up

• Crucial part of documentation is following up according to the document itself.

• Most effective managers use follow-up sessions to gauge progress, offer feedback and make further recommendations for improvement.

Most Common FMLA Mistakes

Giving FMLA to Ineligible Employees

• Important to know “who” is eligible for FMLA and how much time they’re entitled to.

• Example: court case where manager allowed more time off, company terminated employee for excessive absenteeism – court ruled manager’s responsibility to inform employee of amount of leave (Cutting v. Ferrous and Trading Co.)

NOTE: Interaction with State leave laws & Co. policies

Failure to Adjust Performance Standards

• Discipline for poor performance acceptable UNLESS the performance are somehow related to the medical leave.

• Example: Court case where employee was terminated for failing to meet yearly sales quota – employee sued (and won) claiming only reason for missing quota was due to FMLA leave (Wojan v. Alcon Laboratories, Inc.)

Asking for Too Much Medical Information

• FMLA places strict limits on information employers can request.

• Certification form is to be used to determine if the leave is a “serious health condition” and duration of leave needed. (No diagnosis is required)

• Example: Court case where Employer requested additional information on diagnosis, employee refused and then terminated. (McDougal v. Altec Industries, Inc.)

Delaying the Response to a Request

• Provide FMLA paperwork as soon as possible – delays can be seen as discouraging employees from taking leave (even if eventually approved)

• Example: Court case where employee told supervisor she needed FMLA and asked for the necessary forms. After several requests and three months later, she received the forms and HR approved leave. Employee sued claiming boss was trying to keep her from taking leave (and won). (Mueller v. J.P. Morgan Chase & Co.)

Confusing FMLA and Unexcused Absences

• Interaction of FMLA tracking in HR and managers tracking unexcused absences. (NOTE: Could also impact ACA eligibility tracking)

• Ensure absence audit is done prior to any “absence-related” action is taken against employee using FMLA.

Recommendations• Review FMLA, state and company leave of

absences laws, policies, internal processes, forms, etc.

• Ensure timeliness of all responses to employees.

• Coordinate with Human Resources on any “possible” leave of absences situations with employees (i.e. excessive absences, employee statements alluding to need, performance issues, etc.)

Workplace Harassment- Manager’s Role

Scenario

• Employee in good standing complains that he is being sexually harassed by another male employee. Direct supervisor does investigation with both parties present and decides to terminate both employees.

• Employee that complained sued and won….why?

Four mistakes to avoid

1. Direct supervisor doing investigation (instead of HR or trained investigator)

2. Interviewing both parties at the same time (should be interviewed separately)

3. Only interviewing alleged harasser and complainant (interview all knowledgeable parties, if appropriate)

4. Retaliation

Recommendations

• Take all claims of harassment seriously.• Immediately inform Human Resources (or

senior management) of situation.• Do not allow keep situation “confidential”

from Human Resources (or senior management) even if requested by employee.

• Review remedial measures to ensure retaliation doesn’t occur

Terminations

Reasons Managers Avoid

• Hope for improvement – “Maybe they’ll improve” – Usually an idle hope– Improvement would have occurred earlier, if

proper remedial steps were taken– Not taking action could be a sign of a weak

manager

Reasons Managers Avoid • Staffing concerns – “Better to have a warm

body in the job than nobody at all”– Bad employees not only do their own job poorly,

other employees’ behavior/work is impacted too– Critical function of the employee “irreplaceable”

Reasons Managers Avoid • Concern over reputation – “Other employees

will think we’re cruel – they’ll think I’m a bad person”– If employee is not performing, co-workers already

are aware – Co-workers most likely wonder why EE is still

there– Longer the wait, less respect from the co-workers

• Thinking possible “fit” in other position within

company – “Maybe they’ll do better in another position”– Very rare this occurs, but should be considered– Look at attitude, work ethic and transferable skills– Workers with questionable attitudes and subpar

performance should not be considered (moving cancer around)

• Concern over reaction of employee – “This

could get really ugly – they might cry or become violent”– Sometimes legitimate concern– No reason to delay, even if true– HR can arrange to mitigate this concern with

timing, proper “choreography” of exit

The “Termination” Meeting

• Timing• Location• Attendees• Common mistakes

Timing• Day of week - Psychology behind choice• Time of day • Respectful treatment – Employee should leave

with dignity (regardless of reason terminated)

Location

• Private area • Safety first• Ease of exit for employee

Who Should Attend?

• Manager• Human Resources (or other experienced

objective manager) • NEVER solo!

Common Mistakes

• Losing control/losing temper• Not preparing for the meeting• Trying to “soften the blow”• Engaging with employee in their negotiation

attempts (decision made is final)• Forgetting to document termination meeting

Personal Liability of Managers

Wage and Hour issues

• Failure to pay overtime• Example: Court case where company was sued

for failure to pay an employee overtime and the company was ordered to pay $141,000 in back pay. In addition, the manager who was in charge of the employee was forced to pay the same amount in punitive damages! (Chao v. Hotel Oasis, Inc.)

• Termination while taking FMLA leave.• Example: Court case where employee was

terminated while taking FMLA leave. Court decided to hold both the manager and the HR manager personally liable due to their “direct or indirect” authority of the employer. (Spagnoli v. Brown & Brown Metro, Inc.)

Harassment and Discrimination

• Federal law vs. state laws• Threat for all supervisors to be aware of in the

event future court cases change direction of laws.

• Example: California case (retaliation lawsuit – tossed) New York Case (discrimination case - allowed to proceed)

Recommendations

• Review all policies, processes and forms.• Hold regular management meetings with

Human Resources to review areas of focus, outstanding issues, etc.

• Consider ongoing internal supervisory training on variety of HR topics (i.e. harassment, FMLA, ADA, Wage & Hour laws, etc.)

Questions?

Catharine Mirabile, SPHR, SHRM-SCPCGI Business SolutionsDirector of Human Resources & Compliancecmirabile@cgibenefitsgroup.com(603) 622-4600 x246

© cgi business solutions, 2015 human resources issues impacting managers

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