In Business Wisconsin / February 2012 / Managing the manager: Heading off employment law disasters

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Managing the manager: Heading off employment law disasters

They sound like an HR director’s worst nightmare – supervisors who go rogue in the most blatantly inappropriate ways, making a company or organization a local laughingstock or, worse, the target of litigation.

A newly elected county clerk fires all the employees who supported his opponent, then fires another employee who wrote a Facebook post expressing sympathy for the terminated employees.

A manager at a major retailer refuses to allow an employee with diabetes to keep her testing kit near her desk, forcing her to keep it in her locker at the other end of the store.

A male deputy chief and another male supervisor videotape a female nurse while she is nude in a decontamination booth following an on-the-job exposure.

They’re outlandish stories that would make anyone’s skin crawl if they were made up, but they happen to be real-life examples, taken from a newsletter circulated by a prominent Wisconsin law firm.

Indeed, they beg the question: How could common sense fail these bosses so spectacularly? And how did they find their way into positions of authority in the first place?

Most importantly, how does an employer avoid getting into trouble for something one of his or her boneheaded managers did on the job?

“What comes to mind, especially in connection with all three of those real-life situations, is even with things that come across as very sensational, there are oftentimes a piece of it that’s a lack of common sense, and other times there are ones that, even if you use your common sense, you can get into trouble,” said Erik Eisenmann, a member of the Labor and Employment team in the Milwaukee office of Whyte Hirschboeck Dudek.

“With respect to the common-sense ones, those are the ones that you can tend to address a bit easier. You talk about training, talk about communication. But even if you’ve done a decent job communicating with supervisors about what the law is and what their obligations are, there are tricky pieces of employment law, and there’s tricky areas that are evolving, and where the law is evolving as technology changes.”

Of course, there’s no cure for stupidity, but there are steps that employers can take to insulate themselves from trouble with regard to both outlandish cases and more mundane situations – and sometimes it’s just a matter of keeping on top of changes in employment law.

“I think in terms of addressing some of these issues, even if it seems like common sense would solve the problem, our recommendation would really be on two fronts,” said Eisenmann. “One is internal, and we call that the training aspect of it. So that’s making sure that you have a representative of human resources involved in all employment-related decisions, make sure that supervisors know to get someone from HR involved, whether it’s going to be a written warning, whether it’s going to be all the way to an employment termination, but to have someone act kind of as a third party who can look objectively and make sure you’re following all the rules.

“And then even if you do all that and you’ve got the best-laid plans, our recommendation is going to be that there’s also a component here for counsel. And that’s where you have someone, an attorney who’s got experience in these sorts of issues across the employment spectrum, to kind of take a fresh look at them.”

Staying on top of the issues

When it comes to avoiding employment law pitfalls, Eisenmann says some of the most treacherous territory resides in the areas of employee leave and employee retaliation. With respect to leave, there are a few different legal issues that employers need to be aware of.

“Obviously, the FMLA [Family and Medical Leave Act] provides leave to eligible employees for certain protected reasons up to 12 weeks, and then you’ve got certain individuals who may or may not be eligible through the FMLA, but even if they’re not covered by the FMLA, they may still be eligible for some sort of accommodation under the Americans With Disabilities Act or a state analog like the Wisconsin Fair Employment Act, which provides some accommodation rights to people with disabilities,” said Eisenmann.

“Even if you’re not eligible for FMLA, if the individual is asking for a short-term leave to recover from a disability, courts both in Wisconsin and across the country have deemed that to be a reasonable accommodation, so an employer may have an obligation to give that sort of job protective leave.

“Then, obviously, you have worker’s compensation issues that can come into play. In Wisconsin in particular, we have an especially employee-friendly worker’s compensation statute, which makes it illegal for an employer to unreasonably refuse to hire someone who suffers an injury in the workplace.”

Eisenmann said employee retaliation claims are also becoming more common, and that employers need to look beyond the fear of racial discrimination, sex discrimination, and sexual harassment claims, which would have comprised the bulk of claims adjudicated in the past.

“There are the claims where an employee maybe raises a complaint, whether it be to a supervisor or whether it be through a formal process through human resources, subsequently some action is taken … and that employee subsequently makes a claim that says that this action was taken against me because I engaged in protected activity by raising a complaint,” said Eisenmann.

In some of these trickier cases, employment lawyers might work with their clients to help them do something called “issue spotting.”

“That is, identifying places where you need to get additional assistance, and what we like to do is help our clients get to a point where they can handle day-to-day stuff by themselves, but they’re confident enough to identify those situations where they need to reach out for additional assistance.”

Of course, the ideal solution for avoiding such pitfalls is to hire good employees and supervisors and train them well. But what happens if common sense fails and a supervisor ends up making a potentially damaging error?

“From time to time, we do get a case where you’re dealing essentially with a rogue supervisor, and the employer can have followed all the rules, they can have the policies in place, they can have the oversight, they can have done everything they were supposed to do on the front end, but you have someone make a bad decision as a supervisor and create an issue for you as an employer,” said Eisenmann. “The key in that situation is to be proactive and to avoid the tendency to simply cover it up and move on. Instead, you want to make sure that you fully address it, and you can document to demonstrate the steps that you’ve taken to solve the problem.

“Clearly, if it’s a case where you expect litigation is going to ensue from it, there’s things you need to do. You want to make sure you have an attorney involved, and take it seriously.”

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