10 Mistakes Employers Make and How to Avoid Them

Focus on Ten Mistakes, Eliminate 90% of Problems

Sometimes it seems that there are one thousand ways to go wrong managing people, but attorney Peter Janus suggests that 10 critical errors cause most of the problems.

1. Conducting Unlawful Pre-employment Inquiries
Inappropriate questions can be a source for claims of discrimination. To the extent possible, standardize the application and interview process. Make sure that all applicants for a particular position are asked fundamentally the same questions. Keep questions objective and focused on the job requirements and the skills necessary to perform the requirements. Ask:
•Does this question disproportionately screen out minorities, women, or individuals with disabilities?
•Does this question measure or explore something other than a person's ability to do the job?
If the answer to either question is yes, is there a way to ask the question to obtain the information needed that is not inappropriate?

2. Delivering "Dishonest" Evaluations
Too many managers and supervisors would rather be nice than honest. As a result, many legitimate actions taken against an employee based on lack of performance can be questioned on the basis of the nice reviews. Janus suggests the following:
•Avoid putting off the inevitable
•Do not overinflate performance evaluations
•Do not make promises that you cannot keep
•In narratives, avoid making personal comments
•If you set standards and they were not met, say so
•Rely on documentation and objective criteria whenever possible
•Do not rely on incidents arising in a time period that is not covered by the evaluation.

3. Making Rash Disciplinary Decisions
Before disciplining an employee, evaluate the circumstances to avoid (or defend, if necessary) claims of discrimination and wrongful discharge. Consider the following:
•Conduct a thorough investigation
•Review company policy and the employee's personnel file
•Ascertain that the employee received a copy of the policy
•Give the employee an opportunity to give his or her version of the facts
•Make sure similarly-situated employees were treated the same.

4. Committing Termination Errors/Omissions
Terminations are tough for everyone involved, and it's easy to make mistakes in the interest of getting through the uncomfortable process as quickly as possible.
•Conduct a thorough review before discharging an employee
•Determine whether the employee was given any oral or written assurances of continued employment
Do tell the worker in person
•Do use prepared notes
•Do keep it brief (10 to 15 minutes)
•Do treat people like adults
•Do clarify the logistics of leaving and severance
•Do have an outplacement counselor nearby
•Do escort the employee to the next appointment
•Don't say "How are you, Good to see you" or use platitudes like "I know how you feel"
•Don't chitchat or try to be funny
•Don't threaten or berate
•Don't make promises you can't keep
•Don't apologize
•Don't talk about other employees

5. Making Uninformed Responses to Medical Requests
Few management tasks are more challenging than dealing with employee medical problems—the Bermuda triangle of FMLA, ADA, and workers' compensation. The time to avoid the legal pitfalls is when you are first aware of the situation. The following questions will help:
•Does the worker have a serious health condition under FMLA?
•Is there an impairment that substantially limits a major life function under the ADA?
•Does the employee have any other handicap, infirmity, or impairment of any kind that might be covered by state disability law?
•Is there an injury present that occurred during work which would mean workers' compensation would apply?
Generally, managers should contact HR when employees are going to miss work for reasons that might involve "the triangle."

6. Failing to Update Policy Handbooks
Many employers have a handbook that they prepared and distributed to employees years ago and have not kept up. As many changes have occurred in the course of the last decade, these old handbooks and policies can create serious legal problems.
You should consider your handbook as a document that must change with the times, and it must be reviewed and updated regularly.

7. Supervisors Not Knowing and Enforcing Policies
Supervisors are responsible for much of the day-to-day enforcement of the company's policies. Many of them do not know the company's position on key issues. For example, imagine a supervisor telling an employee that he or she does not have time to handle a claim of unwelcome harassment. Regularly review your policies with all supervisors and update them on all changes before the policies are distributed to employees.

8. Managers Not Knowing All Applicable Policies and Laws
"Ignorance of the laws is no excuse." Managers have an obligation, as unreasonable or impracticable as it may be, to be aware of and understand the policies and laws that apply to their workplace. Failure to comprehend these laws can initiate lawsuits, can cause embarrassment in court ("You're responsible for upholding these taws, and you've never had formal training in how they work?"), and may even result in legal action against the manager as an individual.

9. Making Incorrect Wage/Hour Assumptions
The costs of wage/hour mistakes can add up fast. Typical examples:
•Thinking that paying a salary makes an individual exempt from overtime.
•Reducing an exempt employee's pay for disciplinary reasons.
•Having employees voluntarily agree in writing to receive less than time-and-a-half for overtime hours. Employees cannot waive their rights to overtime.

10. Including Medical Records in the Personnel File
Medical records should not be included in an employee's personnel file. Medical records include all papers, documents, and reports prepared by physicians, psychiatrists, or psychologists, that are in the possession of an employer and work-related, or upon which the employer relies to make employment-related decisions.

Today's HR Daily Advisor Tip:
Janus is a partner with Siegel, O'Conner, Zangari, O'Donnell & Beck, P.C. in Hartford, Connecticut. This material originally appeared in our sister publication, the HR Manager's Legal Reporter.