Tragic HR Mistakes Managers Make IHFA Leadership Conference April 2010

Tragic HR Mistakes Managers Make

IHFA Leadership ConferenceApril 2010

• This seminar is not legal Advice.

• No statement from this seminar should be considered legal advice and no action should be taken by you in reliance upon any statements.

• Labor and employment counsel should be consulted prior to making significant employment decisions.

DisclaimerDisclaimer

• We will discuss material that may be more explicit than you would normally encounter in the workplace, including words, phrases and descriptions that you might find objectionable.

• These real life examples are not intended to offend you, but rather are offered to help you understand and prepare you for preventing and handling such situations.

• Names, however, have been changed to protect the innocent…or in these cases, the guilty.

DisclaimerDisclaimer

10. Playing favorites – inconsistent enforcement of company policy

Top Ten Tragic HR Mistakes Managers Make

Believe it or not…Believe it or not…

SandraSandra – Crew – Crew

TonyTony – General Manager – General Manager

Sandra is working drive-thru during Sandra is working drive-thru during a Wednesday lunch rush when…a Wednesday lunch rush when…

Why is Consistency Why is Consistency

Important?Important?

• Avoiding the appearance of favoritism

• Avoiding discrimination claims and lawsuits based on a “protected category”

• It is just good HR…

Discrimination & Discrimination & HarassmentHarassment

Protected Categories:

Race, Color, National Origin, Religion, Sex, Age, Pregnancy,

Disability, & Veteran Status

*** Depending on your state or local laws,

there may be other protected categories you should be aware of such as sexual orientation, marital status, status as a smoker, etc…

When Taking An Adverse When Taking An Adverse Employment Action, Ask Employment Action, Ask

Yourself…Yourself…

• Is there a valid job-related reason for taking the contemplated disciplinary action against the employee?

• Have the facts been investigated and reviewed objectively?

• Has the employee been presented with the opportunity to explain his or her actions?

• Has the employee’s entire record been reviewed and taken into consideration?

• Is the recommended action consistent with the company’s policies, practices and procedures?

9. Firing the annoying complainer




SandraSandra – Crew – Crew TonyTony – General Manager – General Manager

Tony liked Sandra a lot. Instead of Tony liked Sandra a lot. Instead of interviewing her in the restaurant, he did so interviewing her in the restaurant, he did so

over a nice meal and some wine. He over a nice meal and some wine. He thought she had huge potential so he hired thought she had huge potential so he hired her. He frequently made flirty comments to her. He frequently made flirty comments to her and eventually she complained about her and eventually she complained about

the comments to a coworker. The the comments to a coworker. The complaint was investigated and Tony was complaint was investigated and Tony was

disciplined. He was upset that the disciplined. He was upset that the employee complained and…employee complained and…

What is wrong with What is wrong with this picture?this picture?

Sexual Harassment andRetaliation

**** Employees MUST NOT be

retaliated against for reporting discrimination or harassment (not just sexual harassment), or for participating in an investigation, so long as it has been done in good faith.

Sexual HarassmentSexual Harassment

Sexual harassment can come in several forms:

• Favors: “If you kiss me, I’ll let you off shift early.”

• Threats: “If you don’t kiss me, I will see that you get fired.”

• Hostile Work Environment: making every day a miserable day.

What Is A “Hostile Work What Is A “Hostile Work Environment”?Environment”?

Inappropriate comments and/or actions in the workplace

“Severe or pervasive”

RetaliationRetaliation

• What is “protected activity’?

• What are some examples of actions that may be considered retaliation?

• What if you think the original complaint was totally bogus?

• Don’t let an unfounded complaint turn into an HR nightmare…

8. Asking the wrong questions during interviews

9. Firing the annoying complainer10. Playing favorites – inconsistent

enforcement of company policy



SandraSandra – Applicant – Applicant


Tony had a couple recent bad experiences hiring female employees who had issues

with reliable childcare. He was also annoyed that a couple employees

requested off on Sundays to attend church services, even though he still had more than enough willing employees to cover the Sunday schedule. He didn’t

want to repeat that mistake, so when he interviewed Sandra, he asked her…

Unacceptable Unacceptable Interview Questions Interview Questions

• How old are you?• Do you go to church?• Do you have any medical

issues we need to know about?

• Have you ever been injured on the job?

• Where were you born?• Are you a U.S. citizen?• Do you have any children?• Are you married?• Have you ever been

arrested?

7. Thinking new hire paperwork isn’t a big deal








Sandra certainly didn’t look foreign so Tony was sure she

was not an unauthorized worker. That was why he really didn’t need to review documents to

complete her I-9…

The Form I-9…The Form I-9…What could be more exciting?!What could be more exciting?!

• The U.S. Citizenship and Immigration Service (USCIS) released a new Form I-9 in 2009.

• It must be used for ALL new hires and employment re-verifications.

• It must be completed within 3 days of an employee’s hire.

• There are HUGE penalties for non-compliance, and ICE is cracking down on employers, especially in certain states.

• Point to remember? There are NO social security numbers that start with an 8 or a 9…

6. Avoiding the tough conversations









Tony believed that managers should only focus on the positive, not dwell on the

negative. He also didn’t like conflict. For Sandra’s performance review…

Employee Feedback Employee Feedback

Formal and informal employee feedback

Using a uniform grading system

5. Being “too busy” to document

6. Avoiding the tough conversations7. Thinking new hire paperwork isn’t a big

deal8. Asking the wrong questions during

interviews9. Firing the annoying complainer10. Playing favorites – inconsistent






It was the fifth time in a month that Sandra was late to work. Tony was swamped and just

told Sandra that it had to stop…

“Ink is better than the best memory.”

- Chinese Proverb

Why bother documenting?Why bother documenting?

Documenting Employee Documenting Employee DisciplineDiscipline

• Very important when there is an employment complaint arising out of an employer’s disciplinary action.

• Supports an employer’s disciplinary action.

• Creates a “paper trail.”

• Has stronger credibility than documentation that is produced after a complaint is filed.

• Can have a big impact of unemployment compensation.

4. Mishandling medical matters

5. Being “too busy” to document6. Avoiding the tough conversations7. Thinking new hire paperwork isn’t a big








Sandra’s mother was sick. She was fighting a terminal illness and Sandra had called out to

take care of her for three days in a row. Tony was over it and

told Sandra...




Several months later, Sandra breaks her arm when she slips and falls at work. She is out of work for one week and when she returns, she is unable to

lift more than ten pounds until her doctor gives her a full release. Tony tells her…

Some Quick Facts…Some Quick Facts…Family and Medical Leave Act (FMLA)• If an employer has 50 or more employees, up to 12

weeks of unpaid leave must be given to a qualified employee under certain circumstances (childbirth or adoption, serious illness, taking care of a seriously ill immediate family member, etc.).

• An employee must be “qualified” to take the leave (i.e. worked over 1250 hours in a 12-month period).

• State leave laws may extend the protections afforded under FMLA (e.g. Tenn. Leave Act)

Workers Compensation• You cannot terminate or retaliate against an

employee because they were injured on the job.• You cannot refuse to hire someone because of a

previous work-related injury.• You may be required to offer an injured employee

light-duty work. • You are NOT a doctor.

3. Saying too much to reference seekers

4. Mishandling medical matters5. Being “too busy” to document6. Avoiding the tough conversations7. Thinking new hire paperwork isn’t a big






SandraSandra – Former crew member – Former crew member


Tony received a call from a manager of a restaurant. He was asking about Sandra, an employee Tony had fired for

giving away food to her friends. Tony told him…

Employee Reference Employee Reference ConsiderationsConsiderations

• Defamation issues• Keep references as brief as

possible• Don’t give false flattery • Avoid discussing employee

terminations with your staff• NEVER call an employee a “thief”

or say he or she was terminated for “stealing”

2. “Creatively” saving on labor costs

3. Saying too much to reference seekers4. Mishandling medical matters5. Being “too busy” to document6. Avoiding the tough conversations7. Thinking new hire paperwork isn’t a big








Tony was getting pressure from his District Manager about

controlling labor costs. Then, Tony had a “brilliant” idea…

Wage and Hour ComplianceWage and Hour Compliance

• The difference between exempt vs. non-exempt

• No non-exempt work off-the-clock

• No illegal deductions for register shortages

• Know state-specific break laws

• YOU can be sued for violations

1. Not seeking out expert advice

2. “Creatively” saving on labor costs3. Saying too much to reference seekers4. Mishandling medical matters5. Being “too busy” to document6. Avoiding the tough conversations7. Thinking new hire paperwork isn’t a big






SandraSandra – Applicant – Applicant


Sandra interviewed for an Assistant Sandra interviewed for an Assistant Manager position. Tony was Manager position. Tony was

impressed since she had previous impressed since she had previous management experience and a great management experience and a great attitude. He had already decided to attitude. He had already decided to hire her when she said to him, “Just hire her when she said to him, “Just

so you know, I am 3 months so you know, I am 3 months pregnant – it won’t be a problem pregnant – it won’t be a problem

with work though. The money will with work though. The money will be a huge help and I will only need a be a huge help and I will only need a

few days off.”few days off.”

Pregnancy Discrimination Pregnancy Discrimination ActAct

• You cannot refuse to hire someone because she is pregnant.

• You cannot fire an employee or force them to take a leave of absence because she is pregnant.

• You cannot unilaterally switch an employee’s job to something “easier” or “less risky” because she is pregnant.

• You cannot cut an employee’s hours because she is pregnant.

• You must treat a pregnant employee the same way you would treat any other employee.

• Other laws may apply—e.g. the ADA, FMLA, or a state-specific leave law.

1. Not seeking out expert advice

2. “Creatively” saving on labor costs

3. Saying too much to reference seekers

4. Mishandling medical matters

5. Being “too busy” to document

6. Avoiding the tough conversations



9. Firing the annoying complainer


Top Ten Tragic HR Mistakes Manager Make


Any Questions?

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Tragic HR Mistakes Managers Make IHFA Leadership Conference April 2010