What should the supervisor do?
recently put together a proposal for supervisory
training for one of my clients. I started out by listing ten
situations a supervisor might have to handle. The point was to
demonstrate that labor law is not always intuitive.
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For each situation, answer the question:
“What should the supervisor do?”
1. An employee
insists that he does not want to be paid overtime for the extra
time he spends at his desk learning a new accounting program.
He is willing to sign a waiver stating that it is his idea not
to get paid. As an alternative, he asks if he can work through
lunch.
2. An opening
in another department is created. A black employee asks to be
transferred, but you think a particular white employee has a
better personality for that kind of work. The white employee
expresses no interest in the transfer.
3. It snows on
a Thursday, and you close the office at 3 p.m. to allow
employees to get home before the roads are impassable. You
decide to pay employees for the day. Three of your employees
normally leave at 4:30 p.m., rather than 5 p.m. They ask to
leave at 2:30 p.m, or be paid a half-hour of overtime.
4. You inherit
a 65-year-old assistant from your predecessor. She has great
evaluations for the 15 years she has been with the company, but
you think she is incompetent. She has a sign on her desk that
says: “Age Discrimination is Against the Law.”
5. You learn
that a truck driver may have sold company property and kept the
cash. You want to talk to him about it, and he asks if Phil,
the other driver, can sit in on the interview.
6. The new
receptionist is very attractive, and she dresses provocatively.
She hears from one employee that some employees in the
warehouse have been talking about how “hot” she is.
She tells you it bothers her knowing that they talk about her,
but she does not want you to do anything. She says she quit her
last job because she had problems with the way the manager
“glared” at her. That’s why she filed a
lawsuit against him.
7. The new
salesperson announces that she is pregnant and is due in four
months. She wants to know whether her job will be open when she
returns from maternity leave.
8. John tells
his coworkers that he has received a raise, and it causes
morale problems. You need to prevent this kind of fallout in
the future.
9. Sally tells
you that she has three disabilities: depression, diabetes, and
kleptomania. She says she will need to report to work late
several days a week, has to have three breaks a day to
administer insulin and eat some carbohydrate, and probably will
steal worthless trinkets from people’s desks now and
again.
10. An exempt
(from overtime), salaried employee starts coming in late every
day, and leaves early two days a week. He says he has a drug
addiction under treatment that will require him to keep this
schedule for the next 18 weeks.
Answers
1. Employees
cannot waive their right to overtime. Employees who work
through lunch must be paid. It is irrelevant that it is the
employee’s idea.
2. At a
minimum, post the job. If the white employee does not apply,
and the black employee is qualified, offer him the job. If they
both apply, make the selection based on objective criteria, not
subjective criteria like “personality and
attitude.”
3. Legally,
there is no requirement to do this. You may, however, need to
come up with a novel solution for the
“dispute.”
4. Give her an
evaluation after a reasonable period of time, and make sure it
is accurate and objective. It may require some time before she
can be terminated, but be patient in working out this problem.
5. Employees
have the right to have a co-worker present during an interview
that could result in discipline. Grant the request or forget
the interview.
6. Conduct a
refresher course in the shop on sexual harassment and
reporting. If further incidents occur, take action whether the
employee wants you to or not.
7. The Family
and Medical Leave Act does not apply because she is new. The
Civil Rights Act, however, does. You must treat this pregnancy
just like any other temporary disability for purposes of leave
and reinstatement.
8. Talk to the
employee, but under the National Labor Relations Act, you
cannot prevent employees from discussing wages. If you do, the
NLRB could take action against the company.
9. You may
have to figure out a “reasonable” accommodation to
the first two conditions under the ADA. Kleptomania is not
protected. It may or may not be reasonable to allow the
employee to come in late.
10. Under the
Fair Labor Standards Act, the employee cannot be docked. The
Family and Medical Leave Act may require you to grant this
intermittent leave. If the FLSA and the FMLA do not apply, you
should treat this as a performance problem.
If you got three or more right, you are
doing better than most. If you did not, I suggest you conduct
training for your supervisors and definitely sit in.
Frank Kollman is a partner in the law firm
of Kollman & Saucier, PA, in Baltimore, MD. He can be
reached by phone at (410) 727-4300 or fax (410) 727-4391. His
firm’s web site at www.kollmanlaw.com has articles, sample policies, news and
other information on employee/employer relations.
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