Manager: Its Legal Definition

Posted by Rick Dacri, June 6, 2013

 This question came to me from one of my HR HelpLine clients:

Question: If I have a union employee, can I promote that employee to a management position, outside of the union? The management position would take on all the responsibilities of the union position plus additional responsibilities.

Answer: Yes, if the employee’s new responsibilities will have significant supervisory duties, such as hiring and firing. However, you may have a problem with the union and the National Labor Relations Board (NLRB) if the employee only has minor supervisory duties.

Remember, an employee’s job title does not determine whether the employee is a supervisor or manager. Rather, the term “supervisor” is defined to include any individual with the authority to perform any one of 12 specified functions, if the exercise of such authority requires the use of independent judgment and is not merely routine or clerical. Under the National Labor Relations Act (NLRA), the term “supervisor” means “any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”

Incorporate these components into the individual’s role, and he will likely be considered a manager.

 If you have questions, contact my HR HelpLine and receive expert advice on all your workforce issues.

 You may also like to read:

• Compliance: 6 Problem Areas for Employers
• EEOC Reports Nearly 100,000 Job Discrimination Claims
• 5 Strategies to Prevent Unions

I welcome your comments.

Federal Labor Laws By Number of Employees

Employers must comply with the various federal labor laws. Which law generally depends on the organization’s employee population. I have listed below the most common federal labor laws. Employers are also required to comply with their respective state labor laws (not listed here).

1-14 Employees

• Title VII of the Civil Rights Act of 1964 (for employment agencies and labor organizations). See 15-19 for other employers.
• Consumer Credit Protection Act of 1968
• Employee Polygraph Protection Act of 1988
• Employee Retirement Income Security Act (ERISA) of 1974 (if company offers benefits)
• Equal Pay Act of 1963
• Fair and Accurate Credit Transactions Act of 2003 (FACT)
• Fair Credit Reporting Act of 1969
• Fair Labor Standards Act of 1938
• Federal Insurance Contributions Act of 1935 (FICA) (Social Security)
• Health Insurance Portability and Accountability Act (HIPAA) of 1996 (if company offers benefits)
• Hiring Incentives to Restore Employment Act of 2010 (HIRE)
• Immigration Reform and Control Act of 1986
• Lilly Ledbetter Fair Pay Act of 2007
• National Labor Relations Act of 1947
• Newborns’ and Mothers’ Health Protection Act of 1996
• Occupational Safety and Health Act of 1970
• Sarbanes-Oxley Act of 2002
• Uniform Guidelines on Employee Selection Procedures of 1978
• Uniformed Services Employment and Reemployment Rights Act of 1994

11-14, add

• OSHA Recordkeeping (maintain record of job related injuries and illnesses)

15-19, add

• Title VII of the Civil Rights Act of 1964
• Americans with Disabilities Act of 1990
• Genetic Information Nondiscrimination Act (GINA) of 2008

20-49, add

• Age Discrimination in Employment Act of 1967
• Consolidated Omnibus Benefits Reconciliation Act (COBRA) of 1986

50 or more, add

• Family and Medical Leave Act of 1993
• EEO-1 Report filed annually w/EEOC if organization is a federal contractor
• Mental Health Parity Act of 1996 (for employers who offer mental health benefits)
• Mental Health and Addiction Equity Act of 2008 (for employers who offer mental health benefits)
• Patient Protection and Affordable Care Act of 2010 (for employers who offer health care benefits)

100 or more, add

• Worker Adjustment and Retraining Notification Act of 1988
• EEO-1 Report filed annually w/EEOC if organization is not a federal contractor

Federal Contractors, add

• Executive Order 11246 of 1965
• Vocational Rehabilitation Act of 1973
• Drug Free Workplace Act of 1988
• Vietnam-Era Veterans Readjustment Act of 1974
• Davis Bacon Act of 1931
• Copeland Act of 1934
• Walsh-Healy Act of 1936
•  Service Contract Act (1965)
• Contract Work Hours and Safety Standards Act (CWHSSA)

If you have questions about the laws or how you must comply, feel free to contact me at Dacri & Associates for assistance.

Light Duty Work: Must I Provide For Non-Work Related Injuries?

This question came in from a client who subscribes to my HR HelpLine.  Here’s the question and my advice:

Client Question: As part of our workers’ compensation program, we bring injured employees back to work on light duty. We now have an employee who was injured outside the workplace. Do we have to provide light duty to him too?

Answer: It depends on the circumstances. Many employers are reluctant to bring injured employees back who were hurt off the job because they fear if the employee aggravates the injury while on light duty at work, it may become a workers’ comp case. As a result, many employers put policies in place limiting light duty jobs to individuals with work related injuries or illnesses only.

However, and this is where it gets tricky, if the injury or illness meets the definition of “disability” under the Americans with Disabilities Act (ADA) and a light duty position is open and available, under the ADA, you would be required to consider reassigning that employee to the light duty position as a reasonable accommodation. The EEOC guidance states: If an employee with a disability who is not occupationally injured becomes unable to perform the essential functions of his/her job, and there is no other effective accommodation available, the employer must reassign him/her to a vacant reserved light duty position as a reasonable accommodation if (1) s/he can perform its essential functions, with or without a reasonable accommodation; and (2) the reassignment would not impose an undue hardship.  This is because reassignment to a vacant position and appropriate modification of an employer’s policy are forms of reasonable accommodation required by the ADA, absent undue hardship

If the injury does not fall under the ADA definition and if the employer does not fall under ADA guidelines, then you would not be required to offer light duty.

Modify your polices and practices to comply with the requirements. Studies also show that employees heal faster while on light duty.

If you need expert advice on employee issues, call the HR HelpLine. I provide operational advice, not legal advice, on how to address difficult employee and organizational issues. To learn more, click here.

EEOC Reports Nearly 100,000 Job Discrimination Charges

The Equal Employment Opportunity Commission reported that it received nearly 100,000 workplace discrimination claims during its 2012 fiscal year. These claims do not include those filed through state agencies. Retaliation, race and sex discrimination which includes allegations of sexual harassment and pregnancy were, respectively, the most frequently filed charges. The Commission further reported that it obtained $365 million for those who brought forth these claims.

To prevent discrimination from occurring in your company, you should do the following:

Employee Medical Information: Be Careful What You Ask For

(This guest post was written by attorney Glenn Israel from Bernstein Shur)

Earlier this week, the national department store chain Dillard’s agreed to pay $2M to settle a discrimination claim based upon its policy of requiring absent employees to provide a doctor’s note stating the medical reason for the absence. The U.S. Equal Employment Opportunity Commission took the position that once a doctor confirms the employee was absent for medical reasons, the employer is not entitled to ask for any additional information. This is consistent with the approach taken by the U.S. Department of Labor with regard to Family and Medical Leave Act requests. The DOL medical certification form asks the doctor to state whether the employee has a medical condition that prevents the employee from performing one or more essential functions of his or her job and also asks the doctor to “describe other relevant medical facts” which “may include symptoms, diagnosis, or any regimen of continuing treatment.” The DOL form does not, however, require the doctor to provide any of that additional information.

In a recent case that I handled in Maine, an employer and a mid-level supervisor found themselves in front of the Maine Human Rights Commission for asking one too many questions. The supervisor noticed that one of his subordinates was acting strangely and asked the employee if she was “on drugs.” The employee said “No, but I do take medication.” The supervisor innocently asked “For what?” The employee then revealed her mental health diagnosis to the supervisor and filed a claim with the MHRC.

The take away point is don’t ask too many questions. Here are some things you can ask an employee:

Discrimination Claims: Seven Ways To Effectively Protect Your Company

You can win claims of discrimination. Ken Moulison, President of Moulison North  in Biddeford, Maine proved that. When one of his employees complained to him that he was being subjected to racial comments on the job site, Ken immediately addressed the problem. That kind of behavior was not tolerated at Moulison—and Ken had a track record to prove it.

 Well before this incident, Ken engaged Dacri & Associates to put in place a comprehensive discrimination and harassment prevention program that included training, polices, a complaint procedure and employee education. Armed with this, Ken knew what to do when faced with an incident. Yet, even though Ken quickly corrected the problem, a fact admitted by the employee, a discrimination suit was still filed.

 Unwilling to settle this case to make it go away, Ken won the initial suit and then won the subsequent appeal. Having a strong anti-discrimination program in place—a fact cited by the judge, Ken wanted to send a clear message that his company does not tolerate discrimination in the workplace, nor would he back down to avoid an unwarranted legal fight—a decision Ken believes saved his company $100,000 in settlement and legal fees.

 So how can you protect your workforce and company against discrimination, similar to what Moulison did? There are seven key strategies necessary to eliminate claims of discrimination:

1. Invest heavily in management training.  Train all your managers annually in employment law basics, communication skills, and how to treat employees with respect.
2. Review all your employment practices.  Focus on hiring, promotion, discipline, layoffs/termination, performance appraisals and documentation. Look for and eliminate systemic practices that could result in discriminatory practices.
3. Have a broad anti-discrimination and anti-harassment policy.  The courts and the EEOC interpret having no policy negatively.  Include a complaint procedure, protections again retaliatory actions, language discouraging inappropriate behavior, and communication alerting employees that all employees should file claims promptly, along with clear procedures on how to file a claim.
4. Investigate all claims. Whenever an employee makes a complaint, investigate it quickly. Never dismiss a claim without a thorough, impartial review. Keep the alleged victim informed of your actions. And if harassment or discrimination does occur, dish out the appropriate discipline, while protecting the victim and any witnesses from potential retaliation.
5. Response mechanism. Train all managers on how to spot discriminatory practices and how to respond to employees who make claims. Eliminating discrimination before it occurs is the key. Properly responding to complaints will mitigate damage and will send a message that you care.
6. Create a respectful culture. Organizations that have a culture that is based on respecting all employees rarely have issues or claims of harassment and discrimination. Employees who respect each other don’t harass or discriminate. Be clear that harassment and discrimination will never be tolerated, but if it happens, it will be swiftly and forcefully addressed.
7. Follow your state law guidelines.  Multi-state employers must know all state laws to ensure compliance.

 Claims of discrimination or harassment can happen. But when companies have in place strong proactive programs and when managers know how to handle these situations, claims can be won. And managers can have the peace of mind that they did the right thing.

New ADA Regulations Issued: EEOC Rules Mean Virtually Everyone Is Disabled

 (This posting was written by the law firm Seyfarth Shaw)

 The Equal Employment Opportunity Commission’s long-awaited regulations under the ADA Amendments Act (“ADAAA”) has been issued. The regulations will become effective on May 24, 2011. Much of the new regulations and accompanying guidance is unsurprising and comports with the language of the ADAAA. For example: the statute is to be construed broadly; employers should focus on accommodations, as opposed to questioning whether someone is disabled; and mitigating measures including medicine, other treatments, and prosthetic devices must be set aside in analyzing whether an individual is “disabled.”

 What is surprising, and doubtless game-changing, is the agency’s decision to list conditions that, according to the EEOC, will “virtually always” be covered impairments. The EEOC says those impairments are not per se disabilities, as it must if the new regulations are to resemble the original statute. Yet, by characterizing listed conditions as “virtually always” covered, the agency has in effect labeled tens of millions of Americans disabled.

 The EEOC did not stop there. Rejecting the views of business organizations and employment attorneys, the EEOC has made clear that any impairment – no matter how brief in duration – can be a covered disability. By those changes and others, the EEOC’s new regulations will further burden employers, not only with compliance challenges but also litigation that will inevitably follow the EEOC’s expansive approach.

Discrimination and Retaliation Claims Set a Record in 2010

(This post was writen by Attorney Glenn Israel  of the law firm Bernstein Shur) 

 The U.S. Equal Employment Opportunity Commission (“EEOC”) recently reported that it received a record number of claims from employees in 2010 – nearly 100,000 new claims. Retaliation claims are the most frequently filed, but disability discrimination claims are on the rise, increasing by nearly 20 percent in 2010, and sex discrimination and religious discrimination cases continue to increase as well. Not surprisingly, the EEOC reports that the cost to employers of resolving these claims also continues to increase. We have seen a similar trend here in Maine. More of our clients are being sued for discrimination and retaliation, and the cost to resolve these claims has steadily increased. We also are seeing a marked increase in claims under the Maine Whistleblower’s Protection Act.

 There are a number of reasons for this disturbing trend. The down economy has caused increased layoffs and decreased job security which has resulted in a loss of employee morale, decreased employee loyalty, and increased employee desperation. These factors have driven more employees to commence litigation over real or perceived injustices in the workplace. Experts predict that this trend is likely to continue for several years.

 Now, more than ever, it is important for employers to do everything they can to avoid becoming defendants in discrimination or retaliation suits. There are some basic steps that you can take that do not cost very much and greatly reduce the likelihood that you will find yourself on the receiving end of a law suit. So, what can you do?

 Develop Policies – Every employer should have an anti-discrimination and harassment policy that addresses all forms of discrimination and harassment. It also is advisable to have policies that affirmatively require managers to consider and document objective criteria when making decisions regarding hiring, promotions, discipline, and discharge.

 Support and Follow Policies – Policies are only useful when they are fully supported by senior management and are consistently followed. Middle managers and rank and file employees all should understand that senior management is committed to following the established policies.

 Provide Training – Policies are not always self-explanatory Managers and employees must be educated regarding their roles and responsibilities in following and enforcing policies. This is the area where most employers fail. Once a policy has been developed and is fully understood by senior management, it is vitally important to make sure that all middle managers and employees share that understanding.

 Implement an Effective Complaint Resolution Process – Employees need to know how to bring problems to the attention of management and they need to be encouraged to do so. Managers need to know how to respond to employee complaints and concerns. To accomplish these goals, you need to implement a complaint resolution process and provide training to all managers and employees regarding how the process works.

 Maintain Complete Documentation – In the event that you are sued for employment discrimination, your best defense is a well maintained personnel file. It is important for employers to establish policies and procedures for documenting job performance and discipline issues, and to train all management personnel to follow these policies and procedures.  This is another area where many employers fail to protect themselves, either by not establishing policies and procedures in the first place or by not consistently following them. 

 It is clear that 2011 will be another challenging year for the economy and for employers. Employers may be tempted to avoid spending the time and money necessary to develop new policies or train managers and employees. However, a modest investment in anti-discrimination policies and training now can reduce the risk of costly claims later.