In this episode of The Workplace podcast, CalChamber Associate General Counsel Matthew Roberts, Senior Employment Law Counsel Erika Barbara and Employment Law Subject Matter Expert Vanessa Greene tackle what is often referred to as “hard” compliance skills necessary for supervisors to help maintain a liability-free workplace in California.
The state’s complex regulatory environment can create a number of legal quagmires for companies that are not staying on top of employee compliance and training — especially where managers and front-line supervisors are concerned.
Breaks Interrupted: Avoiding Wage and Hour Compliance Problems
One of the many areas in which businesses may find themselves in legal trouble relates to wage and hour issues — meal and rest breaks, timekeeping, etc. The lack of understanding — or worse yet, a lack of consistent enforcement — by managers and supervisors can lead to compliance issues and claims against a company.
“California has so many wage and hour requirements, so that means there’s many, many areas where compliance issues can come up, but one of the most common that we see is around meal and rest breaks,” Barbara explains.
Interrupting an employee on their lunch break or not requiring them to take it at the proper time, for example, constitutes a violation of wage and hour laws. Even asking simple questions of an employee who is on their break is problematic and creates unnecessary liability for the employer, Barbara explains. As such, supervisors must be trained to understand and enforce these rules.
“Supervisors can create risk if they don’t understand the law. So, we may have a business with legally compliant wage and hour policies in the handbook, but if the supervisors don’t understand those policies, or they do understand them and they’re just not following them, they’re creating potential liability, particularly with meal and rest breaks.” Barbara adds.
In a similar vein, accurate timekeeping is also essential to avoiding violations. Businesses must ensure that they can account for employee time accurately and that supervisors put a stop to unacceptable employee behaviors, like off-the-clock work.
Barbara recommends a three-part approach to prevent wage-and-hour compliance problems: having compliant policies, comprehensive training for supervisors and holding supervisors and managers accountable for enforcing the policies consistently.
When to Elevate Leave and Accommodation Requests
Employee accommodation and leave requests are one particularly sticky area for supervisors, according to Greene, who notes that many don’t have the necessary understanding of the law to make snap assessments independent of HR.
In California, sick leave is protected and the law prohibits a supervisor from asking an employee for a doctor’s note or forcing them to find someone to cover their shift when they are using sick leave. Similarly, requests for accommodations for things like disabilities or pregnancy should be taken to HR immediately to make sure the request is handled appropriately and within the law.
“I think a simple rule of thumb is just telling supervisors if an employee mentions any kind of limitation or any kind of need, flag it for HR. Instead of making your own judgment call, make sure to loop in HR,” Greene says.
Consistency Is Key: Discipline and Termination
It’s not unusual for a supervisor to have a favorite employee, but it can be a problem if the rules are being enforced inconsistently. The same is true when it comes to performance evaluations.
Greene sees the most problems in this area when supervisors are conducting performance evaluations unevenly or failing to document issues. When it comes time to terminate an employee, the evidence to support the decision simply isn’t there.
It’s important to set clear expectations, address issues as soon as they arise, and document any item of interest — this can range from simple feedback about a project to more serious corrective guidance.
“If it’s not written down, it didn’t happen,” Green says, driving home the point that documentation is the evidence an employer needs to prove that a termination is justified.
Setting the Tone: Keeping Harassment Out of the Workplace
One of the most critical functions of a supervisor is to report inappropriate or harassing behavior among employees as quickly as possible. Whether they witness the unacceptable conduct firsthand or receive a complaint from an employee, they have a legal duty to report the conduct to the company so it can be addressed promptly.
Under the law, once a supervisor is aware of this sort of behavior, it’s deemed that the company is aware as well — even if the supervisor never reported the issue to HR, Barbara notes. “No complaint should ever stop with them; they have to make sure that they report it to the appropriate person…” she emphasizes.
When handling complaints from subordinates, Greene says supervisors must be cautious not to promise complete confidentiality while also making an effort to keep the complaint as confidential as possible. While they have an obligation to elevate the complaint to HR, sharing juicy details about a complaint or incident should be avoided at all costs.
Supervisors can also be their own vectors for liability, Barbara says. Because supervisors set the tone for their teams, any inappropriate behavior on their parts can become a much larger issue when other staff members follow their lead.
“Remember, there’s strict liability for harassment by supervisors, meaning that a company can be liable for harassing conduct by a supervisor even if it doesn’t know that the conduct was occurring. So, we really need to make sure that our supervisors are conducting themselves in a respectful and a professional way in the workplace,” Barbara says.
These “hard skills” are not the only tools supervisors need to manage their workforce. Part 2 of this podcast will cover the “soft skills” that are just as important for supervisors to lead their teams effectively and keep their companies in compliance.
