{"id":17582,"date":"2015-08-15T18:05:22","date_gmt":"2015-08-15T22:05:22","guid":{"rendered":"https:\/\/www.glensfalls.com\/glensfallsbusinessjournal\/2015\/08\/business-report-five-most-common-employer-mistakes.html"},"modified":"2015-08-15T18:05:22","modified_gmt":"2015-08-15T22:05:22","slug":"business-report-five-most-common-employer-mistakes","status":"publish","type":"post","link":"https:\/\/www.glensfalls.com\/glensfallsbusinessjournal\/2015\/08\/business-report-five-most-common-employer-mistakes\/","title":{"rendered":"Business Report: Five Most Common Employer Mistakes"},"content":{"rendered":"
\n
\n\n<\/div>\n
Michael Billok is an attorney associated with the firm of Bond, Schoeneck & King.\n<\/div>\n<\/div>\n
BY MICHAEL D. BILLOK<\/p>\n
Over the years, handling a variety of cases, \nfrom discrimination claims to Occupational \nSafety and Health Administration (OSHA) \ncitations, from wage and hour actions to \ncharges filed with the National Labor Relations \nBoard (NLRB), there are common \nerrors employers make in the workplace.<\/p>\n
What follows are the five most common I \nhave seen that can potentially result in liability. \nIf you can avoid making these unforced \nerrors, hopefully you can avoid the resultant \nliability as well.<\/p>\n
1. It’s just one person’s word against another’s. \nWhat can we do? \nThis argument arises in the context of a \nharassment or discrimination complaint, in \ncases where there are no witnesses and no \ndocuments, just an accuser and accused. \nWhat to do? As they say, not making a decision \nis a decision in itself–a decision not to \ncredit the accuser’s complaint.<\/p>\n
So make a decision. You may utilize a \nhost of factors: body language, eye contact, \nconsistency, plausibility, etc., to come to a \nreasonable determination crediting the word \nof one person over another. You may later \ndiscover you were wrong, of course, but if you \ndocument the explanations, you can show \nyou reached that determination reasonably, \nwhich is what is required.<\/p>\n
2. Who called OSHA\/the Department of \nLabor\/etc.?<\/p>\n
When a government agency arrives for an \ninspection following a complaint, the first \ntemptation is to discover the identity of the \nperson who made the complaint. But for \nwhat purpose? That person is most likely \nprotected by one or more various whistleblower \nstatutes. You will derive no benefit \nfrom learning the person’s identity, and indeed, \nif you later discipline or terminate the \nemployee for legitimate reasons, the fact \nthat you knew (or sought to discover) that \nthe person had made a protected complaint \nwill only cause you difficulty.<\/p>\n
Don’t seek to discover a whistleblower’s \nidentity; just focus on the inspection at hand.<\/p>\n
3. I’m not paying this–we didn’t authorize \nthe overtime.<\/p>\n
These are not the words of human resource \nprofessionals (as this would sound \nlike nails on a chalkboard to them). These \nare the words of supervisors and managers \nwho, unfamiliar with wage and hour laws, \ncome to the conclusion that the company \nshould not have to pay for time worked that \nwas not authorized. The two-fold answer \nhere is simple: first, any time worked–authorized \nor not–must be paid, with the \nimportant note that an employee can be \ndisciplined for working time that was not \nauthorized. And second, make certain your \nsupervisors and managers know this, and \nthat they know not to adjust time cards to \n“correct” for time worked in excess of what \nwas authorized.<\/p>\n
4. We have a policy here…somewhere…<\/p>\n
I commonly come across this issue when \nresponding to a charge of harassment or \ndiscrimination. Someone at the company \nrecalls a policy prohibiting the behavior \nan employee was accused of, goes digging \naround, and eventually blows a dust cloud off \nof a forgotten yellowed parchment to reveal \nthe handbook or policy.<\/p>\n
Needless to say, in the eyes of a federal or \nstate investigator, an unused or selectively \nutilized policy is practically equivalent to \nhaving no policy at all. If your handbooks or \npolicies were last updated sometime during \nthe Ford Administration, it’s best you had \nthem updated and started implementing \nthem consistently.<\/p>\n
5. They can’t say that about the company!<\/p>\n
“Our pay is too low.” “Smith is the worst \nsupervisor in the world; he refuses to get us \nthe safety equipment we need.” “They work \nus to death–we work too many hours as it is, \nand then they make us work mandatory OT.” \nYou get the picture. When employees \npublicly make these statements on Facebook, \nTwitter, Tumblr, etc., it is difficult to stomach, \nand the first natural reaction is to seek \nto terminate the employee for disparaging \nthe company. But this first reaction is not the \ncorrect one. The NLRB–which enforces the \nNational Labor Relations Act at both unionized \nand non-unionized workplaces–has \nrecently focused its enforcement efforts \nagainst employers that terminate employees \nfor engaging in “protected, concerted” \nactivity.<\/p>\n
In non-legalese, that is activity that employees \njointly engage in to improve their \nworking conditions. And, in recent decisions \nthe NLRB has held that a few expletives \nhere and there do not cause employees to \nlose their protections. So be very cautious \nbefore taking actions against employees for \nwhat you consider to be “disparagrement.”<\/p>\n
Billok is associated with Bond, Schoeneck \n& King’s Albany office and represents employers \nin a variety of labor and employment \nrelated contexts.<\/p>\n
Michael Billok is an attorney associated with the firm of Bond, Schoeneck & King.BY MICHAEL D. BILLOK Over the years, handling a variety of cases, from discrimination claims to Occupational Safety and Health Administration (OSHA) citations, from wage and…<\/p>\n","protected":false},"author":88,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[9],"tags":[67,107],"yoast_head":"\r\n
Business Report: Five Most Common Employer Mistakes - Glens Falls Business Journal<\/title>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\n\t\n\t\n\t\r\n