If you’re a business owner, you’ve probably thought a lot about your HR Department and how important it can be for a successful and sustainable business. But what if you don’t have a human resources department?
The workplace issues addressed by an HR program don’t simply disappear.
If that’s the case, your managers assume the role of human resources, meaning they handle functions such as onboarding, training, payroll, compliance, and recordkeeping.
For many small and mid-size businesses, managers are the first (and sometimes only) people employees approach with workplace concerns. A manager may hear a complaint about harassment, learn about a medical condition, receive a request for time off, or be told that employees believe they’re being paid incorrectly.
One of the most important management concepts is that employees don’t have to use legal terminology or a formal complaint to trigger an employer obligation or create a retaliation risk. Managers don’t necessarily need to know whether an employee’s concern has legal merit.
But managers need to be able to identify issues that could implicate employment law and may require escalation up the chain of command. If they don’t properly spot the issue, and then take an adverse action against an employee, it could put the employer in hot water. If you’d like more information on retaliation risks, you can check out our blog from earlier this year.
Complaints About Discrimination and Harassment
Take this example: an employee approaches her manager to complain about the sexually-suggestive comments a coworker made.
New York’s Human Rights Law prohibits discrimination, harassment, and retaliation in employment. A manager facing a scenario similar to the example above shouldn’t attempt to decide whether the behavior legally qualifies as discrimination or harassment. Comments such as “that’s not discrimination,” or “don’t make a big deal about it,” can create additional problems for the employer, and often can be used as evidence later.
Instead, a manager dealing with a discrimination or harassment issue should listen, avoid promises about the outcome, document relevant information, and promptly escalate the issue to their superior. That’s you!
And then you shouldn’t hesitate to contact an attorney if a legal determination is implicated. For example, in New York State, certain behavior constitutes harassment if it rises above “petty slights or trivial inconveniences.” Because “petty slights or trivial inconveniences” is a legal standard, an employer should contact an employment attorney to determine if that legal standard is met.
Otherwise, if a manager or even the business owner himself tries to handle a harassment or discrimination issue, there’s higher risk for problems down the line.
Medical Conditions and Accommodation Requests
Managers also are likely to be the first to learn that an employee has a medical condition or needs an accommodation.
Warning signs include:
- “I have X medical condition that makes my job difficult”
- “My doctor says I can’t do X”
- “I need a different schedule to undergo treatment”
A serious mistake would be for the manager – or the business owner herself – to simply treat these statements as attendance, performance, or scheduling issues. Just as federal and NY laws protect against workplace discrimination and harassment, employees also are entitled to reasonable accommodations and protections relating to disability or pregnancy.
Generally, a manager shouldn’t diagnose the employee, decide whether the condition is serious enough for an accommodation, demand unnecessary medical details, or make an independent determination about whether an accommodation is required. The critical step is to recognize the potential accommodation, disability, or leave issue and appropriately escalate it.
Wage and Hour Complaints
New York Labor Law § 215 prohibits retaliation against employees for certain complaints about Labor Law violations and other protected activity. The New York Department of Labor has identified potential retaliatory actions such as reduced hours, less-desirable scheduling, discipline, increased scrutiny, and reassignment.
Importantly, employees don’t have to use legal terminology when making a protected wage or hour complaint. Your managers should pay close attention if an employee says something like:
- “I wasn’t paid for all the hours I worked”
- “My overtime is missing”
- “We’re being told to clock out and keep working”
Managers may be able to address such complaints themselves by correcting any wage or hour recordkeeping errors. However, if further investigation is required, managers need to be especially vigilant to not take retaliatory action resulting from complaints for Labor Law violations. Even if a manager honestly believes they’re not retaliating against an employee, their knowledge of the complaint and the timing of something that do that seems to hurt or offend the employee can create serious issues for the employer.
Whistleblowing and Legal or Safety Concerns
Another situation where a manager should elevate the issue instead of personally addressing it is a statement by an employee suggesting the company is violating the law or creating an unlawful safety risk. New York Labor Law § 740 provides significant whistleblower protections for disclosures or objections to conduct an employee reasonably believes violates the law or presents public health or safety dangers.
Employers are prohibited from taking retaliatory action against employees for whistleblowing.
Managers should recognize the issue if statements sound like:
- “I think we’re violating the law”
- “These records were falsified”
- “This method of X is not safe”
If faced with an employee disclosure or objection to an allegedly unlawful practice, managers should not promise to “take care of it quietly” nor should they discourage the employee from reporting. That creates even more liability for the company! Instead, the concern should be immediately elevated to the employer or legal counsel so that the company can determine how to investigate and respond – and reduce risk to the company.
Protected Concerted Activity
Employees also can have protections when they act together concerning matters such as wages, schedules, safety, staffing, or other working conditions and unionizing is not necessarily required. Specifically, the National Labor Relations Act protects the rights of employees to engage in concerted activity, which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.
A manager should take notice if the following is said to them:
- “Everyone is upset about our pay”
- “My coworkers asked me to bring this to management”
- “We’re circulating a petition”
- “The team wants to complain about staffing”
The National Labor Relations Board says that threats, coercive questioning, discipline, and discharge related to protected concerted activity as potential violations. In other words, these are examples of actions a manager should not take when approached with a possible concerted activity issue. Doing so can result in severe penalties for the employer.
The better course is for a manager to elevate the issue and let the appropriate authority determine how to handle the problem.
A Common Thread and Bottom Line
What these scenarios highlight is that the period immediately after an employee raises a protected concern is worth special attention. Managers should give particular care to these protected concerns because a misstep in subsequent action can expose the manager and employer to an increased risk of liability. Suppose an employee complains about harassment on Monday? On Tuesday, the manager decides to cut the employee’s hours or begin a disciplinary process. Even if the manager believes the action is justified, the timing – along with the manager’s actions – can create a retaliation issue.
An important point for employers and managers to remember is that a manager’s job is to recognize potential issues, not judge them. Managers shouldn’t be determining if an employee is legally protected, if an employee was harassed, or if a complaint is legitimate. Instead, managers should be looking for key language that implicates protected activity and promptly escalate issues when appropriate. Tell your managers to be curious and ask good questions. And don’t discipline a manager for bringing a concern to ownership.
If you’re an employer faced with a legal question concerning employment issues, contacting your attorney can also ensure you’re not violating New York or federal labor laws.
The Coppola Firm is here to help.
