HR understands the liability companies face when managers don’t pay attention to legal training or skip it completely — but that doesn’t mean all managers get it. And it’s especially tough to change their minds when you don’t have direct authority over the person.

It’s not a lost cause, though. Here are some ways to boost the interest in training:

• Help them out with time – If time really is the main reason supervisors are reluctant to be trained, work with them to make it as convenient as possible. They may be able to complete the program in bite-sized sessions; or they might prefer to take care of it in one day. The only way to know is to ask.
  
• Relate it to their people – Many managers don’t buy into training because, as they say, they “already know how not to harass anyone.” So make sure they understand the other key topics you cover — like effectively communicating with their staff and dealing with problematic behavior of the people who report to them.
• Look to the top – When you notice a problem with a supervisor, talk to upper management. Those execs will likely have a better grasp of how legal training relates to the bottom line — and they can discipline managers who still have problems with attending.

How has your HR department increased buy-in from managers when it’s time for harassment training? Share your advice in the comments section below.

HR knows how to comply with all of FMLA’s requirements. But not all managers do — and they’re normally the first ones employees talk to when they need time off. That leaves many companies open to lawsuits caused by some common FMLA mistakes.

What’s the best strategy? Remind managers to come directly to HR any time they have a situation involving FMLA.

Otherwise, they may end up making these common mistakes that could get the company in big trouble:

1. Giving leave to ineligible employees – It’s important for managers to be aware of who’s allowed to take FMLA and how much time they get — otherwise the employer may be stuck granting more leave than the law requires. In one recent case, an employee on FMLA called her boss to ask for more time off because she needed follow-up surgery. Even though the extra time put her over her 12-week guarantee, the manager said it was okay. But when the company fired her for missing too much work, she sued — and won. The court ruled it was the supervisor’s responsibility to let her know she was out of leave (Cite: Cutting v. Ferrous Processing and Trading Co.).
2. Failing to adjust performance standards – Mangers can discipline employees for poor performance even if they take FMLA — unless the performance problems are somehow related to their medical leave. In a recent case, an employee was fired after she failed to meet a yearly sales quota. However, she sued, claiming the only reason she couldn’t close enough sales was that she was out on FMLA for three months. The court agreed — the company should have lowered the standard to account for the three months she missed (Cite: Wojan v. Alcon Laboratories, Inc.).
3. Asking for too much medical info – The FMLA places strict limits on what information employers can gather when employees take leave. In one recent case, an employee submitted a certification form listing her symptoms and how long the condition would last. But that wasn’t enough for her manager. The company asked her for another form, this time with a specific diagnosis. She refused and was fired after she began her leave anyway. The matter ended up in court, and the company lost. The employee’s first form had everything the company needed — verification that she had a serious medical condition, “medical facts” to back that up and a probable duration. Employers aren’t entitled to a specific diagnosis when an employee takes leave (Cite: McDougal v. Altec Industries, Inc.).
4. Delaying the response to a request – Managers are busy, but handing out FMLA paperwork is one task that can’t wait. Companies can be on the hook if it looks like they discourage employees from taking leave — even if an employee’s request is eventually approved. In a recent case, an employee told her boss she needed FMLA and asked for the necessary forms. She had to badger him several times and wait three months before she finally got them. Once she turned in the forms, HR approved the leave. But she sued, claiming the boss was trying to keep her from taking FMLA. The court agreed, and the company lost (Cite: Mueller v. J.P. Morgan Chase & Co.).
5. Confusing FMLA and unexcused absences – Between HR tracking FMLA use and managers tracking employee absences, it’s easy for the facts to get lost in the shuffle — and managers may end up disciplining an employee for being absent too often when some of that time was protected under FMLA. Before any absence-related action is taken against an employee who’s used FMLA, companies should conduct an audit to determine if any absences the manager has tracked should’ve been excused.

The facts:

An employee, driving his own car, struck another vehicle and injured its driver. It turned out the employee was driving with a blood alcohol level of 0.24% — over the legal limit. He was also carrying a company-issued cell phone and pager, because he was on call at the time.

The injured driver sued the employer, claiming it was liable for the accident since the employee was working at the time.

The employer said:

There was no evidence that the employee was responding to a call or doing anything other than personal business at the time of the accident. Since he wasn’t engaged in company business, the company couldn’t be liable.

Who won the case?

Answer: The accident victim.

Why: A jury decided the man was acting in the scope of his employment –  mainly because he was carrying the cell phone and pager. Also, the accident occurred near one of the locations the employee supervised, which was enough evidence for the jury that he was on his way to perform work for the company.

The final verdict: The company had to pay the victim $300,000 in damages.

The lesson: Many companies have gotten in trouble after employees cause accidents while operating company-owned equipment, including cars and cell phones. That’s one reason why establishing and enforcing a safe driving policy is a must for some employers.

Cite: de Jesus Uribe v. Aviles

In one recent case, an employee was fired after dozing off during duty.

His job: flight instructor for Southwest Airlines. Frequently he would fall asleep while giving lectures. The problems continued for about a year and a half before he was terminated.

The employee suffered from sleep apnea — meaning he often couldn’t control when he fell asleep. He told his manager the problems would be limited if his shift was changed — but that would have required other employees working longer, so no change was made.

He also argued that he could work just fine despite his condition. But the company wouldn’t take any chances — after all, his job was to make sure pilots could do their jobs safely. So, without any other options, the company fired him.

He sued, claiming Southwest fired him because of his disability, in violation of the Americans with Disabilities Act (ADA).

Accommodating sleeping disorders

Who won the case?

Answer: the company.

The court ruled it would’ve been unreasonable for the company to continue having an employee with a sleep disorder train their pilots on how to stay safe. Since he couldn’t perform the essential functions of his job — and no reasonable accommodation seemed to be available — the company was right in firing him.

Note: ADA suits are always case-specific. A condition that prevents employees from performing one job may not have the same result in others.

In some positions, allowing an employee the chance to take short rest periods may be a reasonable accommodation for a sleeping disorder.

What unusual accommodation requests have you received? Let us know in the comments section below.

Cite: Grubb v. Southwest Airlines

One of a manager’s hardest tasks: Dealing with a difficult employee who’s constantly making frivolous complaints. What can supervisors do without being accused of retaliation?

A recent court case involved an employee who didn’t get along with his boss or his co-workers. He claimed his supervisor treated him different than younger, female employees.

Throughout his employment, he filed several complaints with management and HR. For example, he alleged:

• his supervisor refused to take his suggestions during staff meetings
• his work was monitored more closely than other workers’, and
• a performance review that labeled him as a difficult employee was the result of age and gender bias.

HR investigated each complaint, but could find no evidence of discrimination. The conclusion: The employee was “sensitive to feedback” and needed to work out his personal conflict with his supervisor. After each investigation, he was told to improve the relationship and “move on.”

Can manager discipline constant complainer?

The company began outsourcing some of its operations and had to shrink the employee’s department. He was one of the employees chosen to be terminated.

He sued, claiming he was treated unfairly because of his gender and fired in retaliation for his complaints.

The company argued that all of the employee’s complaints were handled properly and the company issued  appropriate responses. The constant complaints were disrupting the workplace, so the employee was asked to improve the relationship with his boss.

Who won the case? Answer: the company. The court ruled the complaints and the termination weren’t connected.

The judge took the situation for what it was: The company disciplined — and then chose to get rid of  — a difficult, poor-performing employee.

The lessons for managers dealing with difficult people who complain:

1. Treat all complaints the same. Assuming someone’s claims are frivolous is an easy way to avoid correcting a real problem. That could get the company sued.
2. Educate employees on what constitutes harassment and discrimination. One way to limit frivolous complaints is to educate people on what is and isn’t against the law.
3. Don’t avoid dealing with difficult people. As this case shows, managers can take action when an employee’s constant complaints disrupt the workplace. Just make sure all the problems are documented.

Cite: Brinkman v. Andersen Corp.

The process won’t always be successful in keeping a disabled employee on the job. But the law requires employers to try.

Here are some keys for doing it right, from the employment law firm Jackson Lewis:

• Don’t just spell out one accommodation as a take-it-or-leave-it offer. It’s possible there’s only one reasonable solution, but all alternatives should be considered and discussed before the decision is made.
• Ask for the employee’s preference. The law says employees and employers have to have an interactive conversation. That doesn’t mean the employee will get what he or she wants, but the company at least needs to explain why the preferred accommodation is unreasonable.
• Document everything. If no reasonable accommodation is found, a written record of everything that was discussed with the employee will be necessary to prove the company did everything it could and met its legal obligations.
• Don’t forget the “last resort” accommodation — transferring the employee to an empty position that he or she can handle. But remember, that’s only to be considered after all other possibilities are exhausted.

Correcting it quickly can keep the company off the hook. Here’s what happened in one recent court case:

After a truck driver was involved in an on-the-job accident, her manager made the decision to demote her. However, the company’s policy did not call for a demotion after the first such offense.

When upper management learned about the mistake, the employee was put back in her old position and given back pay to cover the amount she lost while working in the lower position.

But before the reversal went into effect (21 days after the demotion), she filed a complaint with the EEOC — claiming she was demoted because of her race — and took the company to court.

Was corrective action enough?

The woman claimed the demotion — even if it was temporary — was an “adverse action” and caused her to suffer depression and anxiety.

The court didn’t buy it. She got her job back, along with back pay. By timely correcting the mistake, the company was able to avoid a discrimination charge.

Note: The key word is “timely.” If the woman was kept in the lower-level job for an extended period of time, that might’ve been enough to constitute an adverse action.

Cite: Jackson v. UPS, Inc.

The Employee Free Choice Act is one of the President-elect’s top legislative priorities for the upcoming term — and an increased Democratic Congressional majority could make its passage likely. What does it mean for employers, and what should HR do now to prepare?

The EFCA was passed in March by the House of Representatives but blocked by a Republican-led filibuster in the Senate. With Barack Obama’s presidency and more Democrats in the Senate, the bill (or at least a version of it) could be pushed through early next year.

The main provisions in the bill’s current language:

1. Card check authorization

For unions to be authorized now, they need signed cards from at least 30% of the employees they’re looking to organize. Then, the National Labor Relations Board holds a secret ballot election to see if a majority of employees want to be unionized.

But under the EFCA, unions can be approved as long as more than 50% of employees sign authorization cards. In other words, no more secret ballots — which could open employees up to more pressure from union representatives.

2. Mandatory arbitration

If a union is certified through a card check, employers will have 10 days to start bargaining with the union. If an agreement isn’t reached in 120 days, the negotiation will be referred to a federal arbitrator who’ll decide any contract issues that still aren’t agreed on — such as pay, benefits, hours, etc.

As many unionized employers can attest to, these things often take more than 120 days to negotiate. Therefore, arbitrators will likely have greater influence under the EFCA than they currently do.

3. Increased penalties

Currently, employers are only held liable for back pay if they’re found to have unlawfully fired pro-union employees. The EFCA would add liquidated damages up to two times an employee’s back pay, as well as a $20,000 penalty if a court finds a violation was willful or repetitive.

What should HR do now?

Here are some steps employers can take to prevent potential problems if the EFCA becomes law:

• Educate supervisors about the dangers of retaliating or discriminating against pro-union employees.
• Resolve any unsolved employee issues and complaints that could make a union look more appealing to your workers.
• Use new-hire orientation to explain the advantages of your company’s union-free status. Talking about the drawbacks of unionization with current employees before organization attempts are made can be helpful, too, and
• Make sure non-solicitation policies are in order, so you can prevent third parties from coming on-site to drum up support for a union.

Bad bosses may literally make their employees sick.

Researchers at the Karolinska Institute in Stockholm followed a sample of 3,000 men over 10 years of employment, and examined their health over the years.

The managers they worked for were rated on a competency scale. The men were asked questions such as:

• I have a clear picture of what my boss expects of me, and
• I am praised by my boss if I have done something good.

The results of the study, published in the Journal of Occupational Environmental Medicine: Those with the lowest-rated bosses were more likely to have health problems, including heart disease and high blood pressure.

For men who worked at least four years under an “incompetent” boss, the risk of heart disease increased by as much as 64%.

With non-exempt employees, the answer is simple: If they miss work, either because the office is closed or because they personally can’t make it in, you aren’t required to pay them. They’re only paid for the hours they actually work.

But with exempt employees paid on a salary basis, things get trickier. Under certain circumstances, you can make whole-day deductions from the weekly salary. Here’s some guidance, courtesy of a Department of Labor (DOL) Opinion Letter:

When you’re closed

When the office is closed for less than a full week, you need to pay exempt employees for the whole week, whether you’re closed for one day or four. In general, according to the Fair Labor Standards Act (FLSA), when exempt employees are “ready, able, and willing to work,” their weekly salaries can’t be reduced when the workplace is closed.

However, you can deduct from the vacation bank for any days people miss due to the closings. But if someone has no accrued paid time off, he or she must be paid anyway.

When you’re open

In other cases, the office may be open, but the weather prevents some exempt employees from coming in. When that happens, you don’t need to pay them. Essentially, the employee chooses not to come in, and that’s considered an absence “for personal reasons,” which you can deduct for.

But what about when people come in late or leave early because of the weather? If exempt employees do any work at any time during the day, you need to pay for the full day (but again, you can deduct from vacation banks for any hours missed, if you want).

Read more in the DOL’s Opinion Letter here.