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HR Esq

Who's the Boss?

Devora Lindeman
Contributor: Devora Lindeman
Posted: 08/30/2010

Sometimes I think employers bend over backwards too far for their employees and forget they have a business to run and that they are the boss. While it is important to be civil and human, and understand that your employees are people, too, with lives and responsibilities outside of work, this can be carried too far. I’ve recently seen this create unintended potential legal liability for employers. As an employment lawyer, I prefer to see employers take control of their workplaces and act like the bosses they are.

Here’s the first one (obviously names and identifying facts have been changed): Beth is pregnant and expects to go out around October 30. Her employer has had no discussion with her regarding what her plans are after she has the baby. In fact, her employer is not sure exactly when the baby is due. He figured that Beth would tell him when she is ready to come back to work. I asked him how much leave time he generally provided employees after they give birth, and he told me he thought he had to give her as much time as she wanted.

He had previously allowed one employee to be out for eight months because she felt her baby was too young to put into day care. This created a real hardship for the company, but they managed somehow. He shrugged his shoulders and supposed he’d do it again. In actuality, employers, even large employers, would probably not be required under the law to provide eight months of leave in this situation. This employer hadn’t found out his legal obligations and wasn’t acting like he was the boss—he didn’t know that (putting aside time off needed due to medical complications), he could tell the employee when she needed to return to work.

Non-compliance

Scenario #2: Samantha held a monthly staff meeting for her department and each month required a different employee to talk briefly about the projects he or she was working on. One employee, Edith, repeatedly "declined" to participate. Samantha permitted this behavior and the other employees resented the fact that Edith never presented. Samantha did not act like the boss—she should not have permitted Edith to "decline." (A little digging revealed that presenting at staff meetings wasn’t the only thing that Edith "declined to do," and Samantha never called her on the carpet about those, either.)

There can be legal ramifications when managers acquiesce to employee non-compliance. When Edith is terminated for not performing the required functions of her job, she will claim that since she was never reprimanded or disciplined for not doing so when employed, the non-performance could not be the real reason for the termination. Rather she was fired because of her [fill in the blank – age, race, gender, etc.]. In short, Samantha potentially created legal liability for her company by not making sure her direct reports were doing their jobs, which was well within her rights to demand as the manager.

Tardiness

#3: Jason’s shift started at 8:30, but he showed up as late as 10:00 with a different excuse each time as to why he could not get to work on time: he needed to take his car to the shop, his child was sick, the dog was sick, there was too much traffic, he’d been up late helping a friend with a crisis . . . or presented no reason at all. Jason’s shift supervisor Robert just rolled his eyes and thought he had to accept this behavior since Jason’s work was satisfactory. To the contrary—punctuality is part of almost every employee’s job requirement. Robert did not realize that he could demand punctuality from Jason on a regular basis and that it was within his rights as a manager to do so. Again, legal liability lurks in failing to address the tardiness.

These employers let their employees control their workplace, instead of the other way around. When employers have not set out clear expectations for employees by implementing policies and job descriptions, and then have not held the employees to those expectations using properly documented performance management, it makes it very difficult for the companies’ employment lawyers to address the myriad of legal problems that then arise from these situations.

Employers are the boss. They set rules, limits and expectations and should demand that those standards be met. This of course should be done with civility and respect, but "being nice" doesn’t mean letting employees behave as they please.

Having standards, policies and agreements in place, and controlling employee situations (meaning being the one to set expectations, limits and boundaries and demand they be respected and complied with), not only makes us lawyers’ lives easier when we need to defend our employer/clients against claims brought by these very employees, but can help make the companies run more smoothly as well.

Have everyone contribute in the direction of producing the company’s products and services. Employment law is an area where companies can take actions to both prevent legal claims and set up defenses to those claims ahead of time. Take advantage of that. Be the boss.

Devora Lindeman
Contributor: Devora Lindeman
Posted: 08/30/2010