BY MICHAEL D. BILLOK
Over the years, handling a variety of cases,
from discrimination claims to Occupational
Safety and Health Administration (OSHA) citations,
from wage and hour actions to charges
filed with the National Labor Relations Board
(NLRB), there are common errors employers
make in the workplace.
What follows are the five most common I
have seen that can potentially result in liability.
If you can avoid making these unforced
errors, hopefully you can avoid the resultant
liability as well.
1. It’s just one person’s word against another’s.
What can we do?
This argument arises in the context of a
harassment or discrimination complaint, in
cases where there are no witnesses and no
documents, just an accuser and accused. What
to do? As they say, not making a decision is a
decision in itself–a decision not to credit the
So make a decision. You may utilize a
host of factors: body language, eye contact,
consistency, plausibility, etc., to come to a
reasonable determination crediting the word
of one person over another. You may later
discover you were wrong, of course, but if you
document the explanations, you can show you
reached that determination reasonably, which
is what is required.
2. Who called OSHA/the Department of
When a government agency arrives for an
inspection following a complaint, the first
temptation is to discover the identity of the
person who made the complaint. But for what
purpose? That person is most likely protected
by one or more various whistleblower statutes.
You will derive no benefit from learning the
person’s identity, and indeed, if you later discipline
or terminate the employee for legitimate
reasons, the fact that you knew (or sought to
discover) that the person had made a protected
complaint will only cause you difficulty.
Don’t seek to discover a whistleblower’s
identity; just focus on the inspection at hand.
3. I’m not paying this–we didn’t authorize
These are not the words of human resource
professionals (as this would sound like nails on
a chalkboard to them). These are the words
of supervisors and managers who, unfamiliar
with wage and hour laws, come to the conclusion
that the company should not have to pay
for time worked that was not authorized. The
two-fold answer here is simple: first, any time
worked–authorized or not–must be paid,
with the important note that an employee
can be disciplined for working time that was
not authorized. And second, make certain
your supervisors and managers know this,
and that they know not to adjust time cards
to “correct” for time worked in excess of what
4. We have a policy here…somewhere…
I commonly come across this issue when
responding to a charge of harassment or discrimination.
Someone at the company recalls
a policy prohibiting the behavior an employee
was accused of, goes digging around, and
eventually blows a dust cloud off of a forgotten
yellowed parchment to reveal the handbook
Needless to say, in the eyes of a federal or
state investigator, an unused or selectively utilized
policy is practically equivalent to having
no policy at all. If your handbooks or policies
were last updated sometime during the Ford
Administration, it’s best you had them updated and started implementing them consistently.
5. They can’t say that about the company!
“Our pay is too low.” “Smith is the worst
supervisor in the world; he refuses to get us
the safety equipment we need.” “They work us to death–we work too many hours as it is,
and then they make us work mandatory OT.”
You get the picture. With employees publicly
making these statements on Facebook,
Twitter, Tumblr, etc., it is difficult to stomach,
and the first natural reaction is to seek to
terminate the employee for disparaging the
company. But this first reaction is not the
correct one. The NLRB–which enforces the
National Labor Relations Act at both unionized
and non-unionized workplaces–has recently
focused its enforcement efforts against employers
that terminate employees for engaging
in “protected, concerted” activity.
In non-legalese, that is activity that employees
jointly engage in to improve their working
conditions. And, in recent decisions the NLRB
has held that a few expletives here and there
do not cause employees to lose their protections.
So be very cautious before taking actions
against employees for what you consider to be
Billok is associated with Bond, Schoeneck &
King’s Albany office and represents employers
in a variety of labor and employment related
Photo Courtesy Bond, Schoeneck & King