Training Your Supervisors to Recognize
Employment Law Danger Zones
Lauri D. Chaudoin
www.chaudoinlaw.com
lauri@chaudoinlaw.com
Why Train?
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The economy requires it.
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Studies show that just a 1% increase in unemployment can
lead to a significant increase in lawsuit filings.
The law requires it.
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Supreme Court: to guard against supervisor misconduct,
employers should “screen them, train them, and monitor
their performance.” Faragher v. City of Boca Raton, 524
U.S. 775, 806 (1998).
“Good-faith efforts”: effective anti-harassment policies,
procedures and practices – no liability for punitive damages
Why Train?
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The law requires it.
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Many cases hold that employers who do not hold
training are not acting in good faith.
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EEOC v. Federal Express Corp., 513 F.3d 360 (4th Cir.,
2008) – ADA, reasonable accommodation
Andreoli v. Gates, 482 F.3d 641 (3rd Cir., 2007) –
supervisor had history of complaints, but no
training/investigation
Swinton v. Potomac Corporation, 270 F.3d 794 (9th Cir.,
2001) - $1MM punitive damages: training held 7 months
after complaint and harassers never disciplined
Why Train?
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The law requires it.
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EEOC and DOL consent decrees
EEOC Enforcement Guidance recommends that
all supervisors, managers and employees be
trained periodically, in the event of an internal
complaint, and if an individual is found to have
engaged in harassment.
Danger Zone 1: Harassment
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Types of prohibited harassment
Conduct that constitutes harassment
Manager’s responsibility: prevent and
respond
Danger Zone 1: Harassment
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What to do when a complaint is received
How to manage post-investigation – avoid
retaliation
Training on employer’s specific policy
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Reporting mechanisms
Get acknowledgement
Danger Zone 2: Discrimination
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Protected classes
Importance of diversity
Interview risks: don’t ask that question!
“Adverse job action”
Importance of frank and thorough
performance reviews
Danger Zone 2: Discrimination
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Progressive discipline: a chance to improve
Documentation is key
Consistent treatment is critical – use
resources to ensure
Terminations – evaluate fully, call for backup
Danger Zone 3: Americans with
Disabilities Act (ADA)
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Types of conditions that may be disability
Accommodations in hiring
How to address reasonable accommodation
requests
“Record of” and “Regarded as” dangers
Establishing essential job functions
Danger Zone 4: Family and Medical
Leave Act (FMLA)
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Examples of “Serious Health Condition”
Qualifying family members
Discipline for poor attendance and possible
FMLA application
Importance of “the paperwork”
Right to take leave “intermittently”
Importance of past practice regarding
discipline
Danger Zone 5: Wage and Hour
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Exempt/Non-Exempt Classification
Working “off the clock”
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Importance of policy disciplining violations
Compensatory time usually not allowed
“Preparing to work”
Relatives helping out
Carrying hours to next week
Overall Messages
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Familiarity with policies
Responsibility to enforce policies – courage
to be the “bad guy”
Importance of good documentation
Overall Messages
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Consistency is key
Beware of email
Retaliation a jury favorite – especially
workers’ comp
Use company resources - HR
Training Tips
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Choosing the trainer
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Supervisors will respect a trainer with industry
experience
Executive level will respect an experienced
outsider
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When outsider echoes HR, HR profits from this respect
Attention-getter: many employment laws
allow personal liability on the part of the
supervisor
Training Tips
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Timing is everything
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Modules over several weeks preferred to a weeklong training
Assignments in between
Target various learning styles
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Lecture
Group interaction
Visual
Written materials
Training Tips
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Make it mandatory
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Have some fun!
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Otherwise, the ones who need to hear it most
may not attend
Shows important to management
Many good games available online
Use stories and anecdotes to illustrate
Allow group discussion time
Training Tips
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Have Human Resources at the training –
policy questions will come up
Keep class sizes small, if possible (12-14 is
ideal)
Keep good attendance documents