Author: Brett Holubeck

Manager’s Guide to Discrimination in the Workplace

Published by Brett Holubeck on April 27, 2020

Image of umbrellas at the beach to represent diversity in the workplace and demonstrate that diversity is beneficial to an — Photo by XiaoXiao Sun on Unsplash

Discrimination in the workplace is not something that ended in the 1960’s with the passing of the civil rights act and desegregation of public schools. It continues today.

A recent Glassdoor survey found that 61 percent of U.S. employees “have witnessed or experienced discrimination based on age, race, gender or LGBTQ identity in the workplace.”

In particular the survey found that:

Forty-two percent of working adults in the US have either been a victim of racism or have witnessed racism at work.
Around 45 percent of workers in the US have either experienced or witnessed ageism at work, which makes it the most common form of discrimination in the workplace

Most people will eventually witness some form of discrimination while they are at work. Sometimes people will shrug off the discrimination or think that it is no big deal, but should they have to? Discrimination in the workplace is something that no one should have to tolerate and one that no business should want to occur.

Basically, every company needs to be aware of the issues surrounding discrimination in the workplace so they can act. You do not want workers (or the business itself) to discriminate against people. The average cost of an employment lawsuit can cost tens of thousands of dollars. One survey by Hiscox found that the average cost of defense and settlement was $160,000. Companies need to deal with employees, managers, and even clients that discriminate against workers. Businesses that fail to do so will subject themselves to lawsuits, have less productive employees, poor morale, and a higher turnover.

What is Discrimination?

Discrimination comes in many forms. Title VII protects employees from discrimination based on a person’s sex, race, color, national origin and religion. The ADEA protects employees from discrimination based on age (at least if the person is over 40) The Americans with Disabilities Act Amendments Act (ADAAA) protects individuals with disabilities from discrimination. You can read more about accommodating individuals with disabilities here. The Equal Pay Act prohibits paying employees doing the same work differently unless certain conditions are met.

Stereotypes, jokes about someone’s racial characteristics, concerns that someone cannot do something or would not want a promotion because they are pregnant, and the idea that disabled people are somehow less able to complete a task have no place in the workplace.

For example, most people think that young people are best apt to start a business or run a company based on the companies that we frequently see in the news that were started by young founders (Facebook, Apple, and a number of other tech companies). These are not typical companies. One study found that “a 50-year-old founder is 1.8 times more likely to achieve upper-tail growth than a 30-year-old founder.” Many older founders benefit from their experience in founding a company, experience that younger people have not been able to achieve yet. Everyone’s unique experience brings some benefit to the workplace.

Creating a Culture that Does not Allow Discrimination

The most important thing that companies and managers can do to correct discrimination is to take an active role in preventing it in the workplace.

First, companies need to educate their managers, supervisors, and other leaders about discrimination issues and gather information about it. Supervisors need to understand the laws on discrimination and the areas where discrimination is most likely to occur so that they can take an active role in preventing it. Moreover, companies should gather data about terminations, promotions, and pay to ensure that they are not inadvertently discriminating against any members of any protected category.

Managers need to understand that discrimination in the workplace is not something that will ever be tolerated and they need to act quickly when they witness it, or someone reports it to them. This is the way that you fight discrimination or any bad behavior in the workplace. You have to act! You have to call things out! You cannot let things slide! Managers need to be acutely aware that a joke or a comment is a lot more than that to the person on the receiving end.

Culture is not something that you learn at a one-hour seminar where the speaker uses a ton of buzzwords and everyone leaves excited. It takes an incredible amount of hard work and leadership at the top to create an organization with the right culture. It is something that is built day by day and person by person in the organization. A bad leader can create a culture of discrimination very easily.

In the context of preventing discrimination, there are a few different types of bad leaders that can destroy the culture pretty quickly and cause discrimination issues. Any leader that actively participates in making inappropriate jokes in the office will cause problems. A boss that ignores complaints and let’s things go will create a welcome environment for discrimination.

To be effective, a manager or supervisor needs to set the tone in the workplace. In a lot of ways, it is like parenting. If you tolerate behavior that is inappropriate, then people will think it is permissible and will continue to do it. Managers need to be willing to step in and stop any instances of discrimination in the workplace.

To do this, managers also need to set the tone about appropriate behavior and make employees aware that they can report issues to the managers. Managers can do this by having short meetings at the beginning or end of a shift reviewing procedures and practices at the company. For example, managers refresh employees’ minds about the appropriate ways to report a complaint, to request a disability accommodation, and perform other actions that will reduce the possibility of discrimination.

Acting to Reduce Hiring Biases

The only way to reduce bias in hiring and terminations is to examine your data.

In general, you need to know what the makeup of your workforce is compared to the workforce available in your area if possible and your applicant pool. If you are not hiring enough of a certain group or never hire any qualified applicants of a certain group, then it can start to look like you are either purposefully not hiring individuals with a certain protected characteristic or there is a disparate impact on certain individuals in the hiring process.

If you do have a disparate impact in hiring, then you need to consider where you are hiring individuals. For example, if you are a tech company and only hire on college campuses, then there is a good chance that you are discriminating against older individuals through your hiring methods. Older people tend not to be college students.

Another common issue that some worksites have is paying women different than men in the same job and that they are doing similar work. The Equal Pay Act states that you cannot pay men and women differently for doing the same job. As noted in the Act, you can have different pay for people in the same job doing the same work when the salary is determined by:

(i) a seniority system;
- (ii) a merit system;
- (iii) a system which measures earnings by quantity or quality of production; or
- (iv) a differential based on any other factor other than sex

One final point, a person’s ability to negotiate a better salary is not a factor other than sex. If you pay people differently because they negotiated differently, then you may be subject to a discrimination claim.

You can read more about correcting disparities among protected groups in my article on preparing an affirmative action plan. It only applies to federal contractors, but it has considerations for businesses to help address the issue.

How to Reduce Bias in Termination and Discipline

To eliminate discrimination in the discipline and termination process you can review my article about the questions that you should ask when considering whether to discipline someone, what level of discipline to apply, and whether you should terminate someone.

For purposes of determining whether the action was discriminatory the most important questions are:

Was progressive discipline applied?
Is there any written documentation?
Does this violation warrant termination or the level of discipline applied?
Have all other employees who violated the rule or policy been similarly disciplined or terminated?
Are there extenuating circumstances that would mitigate the level of discipline or termination

Essentially, the questions are focused on whether you have applied your policies consistently and how you have treated individuals in the past. All companies should have a progressive discipline policy where they are consistent in treating violations of company policy the same. Obviously, the most important question for purposes of determining whether there has been discrimination is whether other employees were treated the same in the past. You need to treat everyone the same when disciplining and terminating employees.

It is that simple to say, but it is more difficult in practice. You need to review circumstances and past practices carefully to ensure that you are treating people fairly. Sometimes, there will be extenuating circumstances and you may treat people differently. You need to document why you treated them differently or made an exception to your rule when you discipline employees. A haphazard approach is likely to lead to liability and lawsuits.

How to Respond to an Allegation

As I have said before, all companies need to have a complaint procedure and train your supervisor on those procedures. I also wrote about conducting a workplace investigation before and much of that information is relevant to an allegation of discrimination. The most important part of that article in this context is to keep good records on past behavior; respond in a timely manner to a complaint; gather the information quickly; and take a systematic approach to wrapping up the investigation by examining the evidence, your past practices, and assessing the witnesses’ credibility carefully.

I do have a couple of additional items to add to those articles that are specific to these kind of discrimination claims.

You need to understand that these are sensitive issues for the people that are discussing them. A claim that someone was discriminated against on the basis of their sex or was on the receiving end of jokes about their sex should have investigators or people that they can report the claim to that are both women and men. It can be very uncomfortable to discuss these issues. A woman may not feel as comfortable about reporting discrimination to a man and vice versa. There needs to be other channels for them to report to that take this kind of factor into consideration.

As I said above, a claim that there has been disparate treatment for individuals with a certain protected characteristic may require the company to run a statistical analysis to determine whether the actions of the company in hiring individuals discriminated against a certain group. The best way to fight these lawsuits is to examine your data regularly and adjust your hiring practices if it causes a disparate impact on a protected group.

Conclusion

You can reduce discrimination in the workplace. It takes an effort of all team members, supervisors, and upper management to do so. Managers are in a unique place to reduce discrimination because they witness employee behavior. A good manager knows how to respond to employee problems and quickly stop any inappropriate behavior which helps build a positive and respectful culture over the long term.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

How to Reopen a Business and Recall Employees

Published by Brett Holubeck on April 24, 2020

Image of a shop sign with the words "Yes, we are open" to show that the store reopened. — Photo by Artem Beliaikin on Unsplash

With COVID-19 still raging through the country and unemployment projected to hit 32% and affect 47 million people, recalling employees may seem to be one of the last things on employees’ minds right now. However, it is something that all companies need to seriously be concerned about.

Moreover, with President Trump’s plan to reopen the economy and Governor Abbott’s plan to reopen Texas it is something that all Texas employers need to start to consider. Governor Abbott stated that retail stores will be able to open under a retail-to-go plan on April 24, certain “nonessential” surgeries will be able to be performed, and state parks were opened on April 20. There will be additional announcements on April 27 and later as the plan to reopen Texas develops.

So, what should companies do when they reopen?

Issues that Companies Face When Reopening and Recalling Employees

There are a number of issues that employers face when they are trying to reopen. If you read my COVID-19 article, article on protecting essential workers, or the WARN article, then you understand some of the issues that companies must consider when they reopen and recall employees.

Here are some additional issues to consider:

Avoiding WARN Act Issues

If you temporarily laid off your employees and intended to bring them back (I hope you listed an intended date of return on your notice to them if WARN applied), then you need and ought to take certain steps. The most important step is recalling employees to ensure that you do not meet one of the thresholds where WARN would have been triggered. As a reminder, the DOL states that

[a] covered mass layoff occurs when 50 to 499 employees are affected during any 30-day period at a single employment site (or for certain multiple related layoffs, during a 90-day period), if these employees represent at least 33 percent of the employer’s workforce where the layoff will occur, and the layoff results in an employment loss for more than six months. If the layoff affects 500 or more workers, the 33 percent rule does not apply.

If you laid off employees temporarily and want to bring them back, you must be extremely careful and act quickly.

Keeping in Contact with Laid Off Employees

You should be in contact with your employees. Now is a time to show them that you actually care about them. If you had a temporary layoff or are now recalling employees that were permanently laid off, then you should do things that actually demonstrate that you meant you would like to bring them back and show that you care so that you get the employees back when that time comes.

Some simple things that you can do to show that you care and keep in contact is to:

Update the contact information (phone numbers, email addresses, and mailing addresses) for all employees
If you gave a date when you expected the closure to last until then consider reminding employees and checking in before that date to inform them of what they will need to do to return to work and whether the opening will proceed on that date.
Write and send letters of recommendation for former employees if they are applying for jobs.
Do not contest unemployment and consider filing for mass unemployment while they are not working for you.
When you contact employees you need to ask how they are doing. They are human. They are going through a lot. Businesses that show that they care about their employees are more likely to succeed.

Recalling Employees

Companies need to follow their protocols to recall employees.

If a company will rehire employees that were previously laid off or recall employees that were furloughed, then the most important thing a company needs is some form of objective criteria to determine which employees they will recall if they do not recall everyone. Typically, employers would first look at their employee handbook to see whether it outlines any return to work policy. Unionized companies must follow their collective bargaining agreement. If there is no policy in place, then employers should attempt to develop a policy that they will follow.

What criteria should you consider before you bring employees back when you are not bringing everyone back?

What jobs need to be brought back? Are there any jobs that do not need to be brought back?
Will any employees need to come back before other employees? For example, some machinery may require maintenance before it is able to operate again. You may need to recall your maintenance staff first so that they can get any machinery that has been turned off up and running again.
What skills do you need? Some employees may have cross-trained and be able to fill in other roles which could be important if less employees come back to work.
Will you use past evaluations to determine what employees should not be brought back in the same job? How will you measure performance?
Are you going to use seniority?
Are there any employees that you are not going to bring back? You should document why you are not bringing back certain employees.

The most important thing to do is to document the reasons that you are bringing back certain employees. While this may seem like an easy task, how you conduct a recall will have major implications on potential discrimination claims and morale issues, and potentially WARN Act issues if you fail to recall enough workers.

Special Recall Rules for Employers with Collective Bargaining Agreements

If you have a collective bargaining agreement, then you must follow the requirements within it to recall employees. Typically, a collective bargaining agreement requires that employers recall employees by seniority in each position. If everyone is not recalled, then there may be obligations to bargain with the union.

Age Discrimination Issues

Companies need to carefully review who they plan to recall and review whether any disparate impact occurs on employees. Sometimes companies choose to use salary as a factor for returning employees. This can cause a situation where the oldest employees, typically those that have worked for a company the longest and thus have the highest salary, are not recalled because the company is trying to save money. Companies must be careful to justify the reasons that they are bringing back certain employees and not others. This kind of situation could cause an age discrimination claim.

Families First Coronavirus Response Act Issues

Any employee that is recalled will be immediately eligible to take sick leave under the FFCRA. Employees are not eligible for expanded family leave until they have been an employee of the company and on the payroll for at least 30 days. Any recalled employee will be eligible to take sick leave under the FFCRA right away and the company will need to front the money to pay for it. This may be especially difficult for companies that have been closed for more than a month.

Preparing to Reopen Your Business

There are a ton of considerations before any business reopens. A lot of it is specific to the particular business. One issue is employee safety. Lear, a Fortune 500 company that produces automotive seating and automotive electrical systems, has put together a great guide that can help companies that are preparing to reopen their business.

There are a number of factors to consider when a business reopens:

Is there enough work? Can your business reopen, or should you file bankruptcy?
How much work is there? Does your business need to bring back only certain parts of the business that are likely to be the most profitable? Will you cut other parts of the business?
Are supply chains up and running and able to provide the business with the resources that you need to make your product or operate your business?
Are your customers operating? Is there a market for your product or business? Does the business need to wait for customers to reopen first?
Have you been keeping in touch with your employees as described above to ensure that you will be adequately staffed when you reopen? Some employees may not wish to come back especially if they are collecting more on unemployment. It is entirely possible that you may need to hire new/additional employees.
Have you updated your procedures and practices before you plan to reopen? Have you reviewed all the guidance from OSHA and the CDC that apply to your business? Implementing them to the extent possible at a business is critical to protect employees and avoid potential claims against the business for failing to provide a safe working environment, worker’s compensation claims if employees fall ill, and premise liability claims from customers that get sick?
Will you train your supervisors and cleaning staff to follow guidelines from OSHA and the CDC to ensure that cleaning is properly done? Have you identified areas that will need to be more frequently cleaned? Have you instituted new policies to space out employees in hallways, lunchrooms, and their workstations as is possible in your business? Will you institute staggered lunches?
Have you updated your handbook to include policies related to leave under the FFCRA?
Have you obtained the necessary safety supplies to clean areas and protect your employees including infrared (no contact) thermometers, masks, gloves, and additional cleaning supplies? Will you be using temperature checks when employees enter the facility?
Have you trained supervisors to handle employee accommodation requests? For example, an employee with a heart condition may have a disability that needs to be accommodated. Are supervisors prepared to address any disability accommodation requests related to the coronavirus?
Do you have a plan in place to let employees know all of the extra steps that you are taking to protect them and to receive feedback on any safety concerns? Are you posting flyers related to the steps that you have taken? Again, Lear has provided flyers that can be used.

These suggestions barely begin to scratch the surface of issues that businesses must consider to reopen. Every business is unique, and it is likely beneficial for businesses to seek outside guidance about their specific business as they prepare to reopen and recall employees.

Conclusion

With an over 20% “real” unemployment rate, many people in the country are suffering. This is not going to end soon. A lot of capital has been lost, supply chains have been destroyed, and the economy has changed forever. The more preparation businesses do to reopen, the more likely they will be successful in doing so.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Crisis Management: Employees and COVID-19 (Coronavirus)

Published by Brett Holubeck on April 17, 2020

Image of a medical person to illustrate employees that are working through the COVID-19/Coronavirus crisis. — Photo by Hush Naidoo on Unsplash

Anyone that is working right now is aware of the coronavirus. It is all over the news and is impossible to avoid. Every day the death toll is updated, and more infections are found. Moreover, the news reports are saying that the US may face 18 months of rolling shutdowns. The reality is, businesses will be dealing with COVID-19 (the Coronavirus) for the foreseeable future.

Last week I gave some tips on managing remote employees in light of the COVID-19 crisis. This week I thought I would talk about managing and working with the employees that are on the front lines: the essential workers.

What is an Essential Worker?

Most states are following the guidelines from the Cybersecurity and Infrastructure Security Agency (CISA) regarding what is and what is not an essential business. Some states have issued additional requirements on what is an essential business. Texas is following the “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response” from the CISA also.

The CISA has several categories of essential workers by industry including 1) healthcare, 2) law enforcement, public safety, and other first responders, 3) food and agriculture, 4 energy, 5) water and wastewater, 6) transportation and logistics, 7) public works and infrastructure support services, 8) communications and information technology, 9) other community or government-based operations and essential functions, 10) critical manufacturing, 11) financial services, 12) chemical, 13) defense industrial base, 14) commercial facilities, 15) residential/shelter facilities and services, and 16) hygiene products and services. You can read more about whether a business essential here.

Basically, essential workers are the ones that are striving to keep the country running by curing people that are sick, providing food, manufacturing needed goods, and making sure that everything is continuing to operate in this crisis. They are still coming to work every day. They are the nurses working in the emergency rooms putting themselves at risk with people that may be affected with COVID-19, the grocery workers that are stocking the shelves and serving customers, the nursing home staff that are caring for patients, and the food processing workers that are continuing to make products. They are the millions of people that are fighting day in and day out to do their best to keep people safe, fed, and cared for.

What Are They Feeling?

Employees are stressed. Businesses are worried. For employees that are “essential employees” many are extremely concerned about getting sick. Some of them are getting their wills done in case they die from the coronavirus. They are facing their own mortality in this crisis. Many are worried about taking care of their kids. A few are not going home because they are afraid of spreading the disease. Some essential employees are worried about paying their bills.

How Can Companies Help Essential Workers?

Safety Comes First

Employers must take action to keep employees safe and show employees that their safety is important while the world is facing this crisis. Some companies have already started to be sued by employees that have gotten COVID-19 at work and more lawsuits are sure to follow. There is a lot that employers can do to help prevent employees from getting sick and keep them safe.

Post the OSHA poster on COVID-19 in your workplace and follow the recommendations within (it is available here). You should also post information about washing hands around the facility.
Make efforts to obtain masks and other protective equipment. If you are able to obtain masks, then you should require employees to wear them. If you cannot obtain sufficient masks, then you should suggest employees wear masks or other cloth coverings that they bring from home if they are available.
Contact your worker’s compensation insurance provider to ensure that they are prepared to address any COVID-19 related claims in the workplace.
Follow all CDC recommendations to the extent possible at your operation
You should also follow guidance from OSHA regarding protecting employees.
Transition employees to remote work if possible.
Clean and disinfect all surfaces that are touched by employees frequently (doorknobs, light switches, microwaves, coffee makers, keypads, and other flat surfaces).
Space out employees in areas like hallways and lunchrooms.

Employees need to actually see that you are doing these things to understand how their employer is engaging in crisis management. Now is the time to emphasize your open-door policy. Employers should hold meetings with small numbers of employees, provide memos, and post fliers to explain all of the steps that they are taking to care for their employees. Managers and supervisors should call employees that are working remotely and essential employees that are present to ask how they are doing. Managers should ask employees if there is anything the employees need to do their jobs. Companies must empower employees to bring problems to your attention. Any employee complaints should be taken very seriously, and immediate action should be taken, if possible, to remedy the problem. Employers should then follow-up with employees about the steps that were taken to correct the problem.

If Employees Walkout

Employees have a right to walk out because they are concerned about COVID-19 and their safety in the workplace. This action is a type of concerted action that is protected under Section 7 of the NLRA. Employees refusing to work because they believe that they are in danger are also protected under Section 13(a) of the OSH Act.

Employees should not be disciplined, terminated or threatened if they walk out. Employers should try to address any issues that the employees raise about their safety and take additional steps to ensure employees that they are doing their best to keep employees safe after a walkout occurs. The best thing that employers can do to prevent a walkout and address any fallout from one is to constantly communicate the steps that they are taking to keep employees safe and make adjustments as employees raise issues and as new guidance on keeping a safe workplace is released. Companies should follow all guidelines from the CDC and OSHA to ensure that they are doing all that they can do to keep employees safe.

Conclusion

Crisis management is different than the day-to-day operations of a company. This is the time when companies can either succeed or fail, when your employees will either believe that you care about them or not. A good company will act because they care about employees. Employees recognize when an employer actually cares about them and this causes their morale to increase.

Employers have a great chance to build morale and better their company. Every business is unique, so every company needs to conduct its own assessment of its workplace and workforce to determine the best approach to take. The worst thing that companies can do is to keep working as if nothing has changed. We are in a crisis. COVID-19 (the coronavirus) has dramatically changed the workplace. All companies need to recognize that and take action.

The information provided is my own and does not reflect the opinion of my firm or anyone else.