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General counsel have the unenviable task of monitoring myriad legal issues, just so they can spot the one that’s ready to explode. In contrast, outside counsel get to keep their eyes on a relatively narrow target — for me, it’s preventing and resolving workplace issues between employers and employees. As a result, I see the fallout from management missteps every day. Since Texas is No. 1 among the states in the number of job discrimination complaints filed by the Equal Employment Opportunity Commission between 1997 and 2000, according to a September 2000 report from Texans for Public Justice, it pays for GCs to learn what the most common mistakes are and how to help their companies avoid them. Here are the top four problems. MISCLASSIFICATION I have yet to meet an employer who has properly classified its employees as exempt or non-exempt from overtime pay. If a GC’s organization hasn’t conducted an internal audit based on the revisions to the U.S. Department of Labor wage and hour regulations that became effective Aug. 23, 2004, do it now. As Janis Joplin sings in “Me and Bobby McGee,” “Leaving’s just another word for nothing left to lose.” Employees who quit or are fired have nothing to lose by revealing diaries documenting all the hours they say they’ve worked without pay, while their employers labored under the mistaken assumption that they were exempt. GCs should not let this happen to their companies; take proactive measures by ensuring the company classifies all employees correctly the first time. POOR TRAINING Training supervisors to recognize potential legal problems when they see them constitutes prevention at its best. Just as lawyers learn in law school to spot legal issues, so too should frontline employees learn how to recognize legal issues when they see them. They don’t have to know the answer. The general counsel’s office and the human resources staff can find the answer. But if the eyes and ears of the organization don’t spot a problem early, cleanup can be costly. While management training isn’t mandatory in Texas, neither is exercise. But they’re both good for people. All supervisors and managers should receive a full day of training on legal issues related to managing employees within 90 days of assuming their new roles, plus a half-day of training every two years thereafter — at a minimum. HARASSMENT The difference between lawful and unlawful harassment continues to confound employees, many of whom believe that all manipulative or unfair managers who create a hostile, offensive work environment are breaking the law. This is not true. While the most evolved employers will want to prohibit lawful and unlawful harassment, the GC’s office should make it clear during training that only unlawful harassment is likely to be actionable under laws enforced by the federal and state government. My husband of six years is from France. When we married, I explained to him how U.S. workplace laws differed from those in Europe. When I finished, he asked, “Do you mean to tell me I can’t tell a woman co-worker that she’s sexy, but I can tell her she’s the ugliest thing I’ve ever seen, and that’s legal?” Well, yes. To him “sexy” was a compliment, while an honest assessment of “ugly” was the ultimate insult. Ugly isn’t a protected characteristic, while sex, race, color, national origin, religion, being over age 40 and disability are. In some Texas cities, so is sexual orientation. Part of the above-mentioned training should be teaching employees — particularly supervisors — to recognize a complaint and resolve it promptly. The costs of failing to do so far outweigh the cost of training. DOCUMENTATION Jurors assume that if something is not in writing, it didn’t happen, and move quickly to the conclusion that the employer took unfair action. Avoid those inevitable conclusions by asking to see the supervisor’s documentation before approving any termination request. If it’s not up to snuff, delay the termination. Supervisors who don’t have time to document don’t have time to be supervisors. An employee should never be surprised by a termination decision. The coaching, counseling and discipline that accompany a thoughtful progressive discipline process ought to eliminate the element of surprise. Finding out that the GC’s office requires documented reasons for an adverse employment action leads many supervisors to ask whether a company has to provide a reason for terminating a worker. They don’t in Texas, but it might be a good idea to do it anyway. A study reported in the September 2000 issue of Administrative Science Quarterly found that wrongful-termination claims were most strongly correlated with how workers felt their employer treated them at the time they were terminated (and with their expected winnings from such a claim, but that’s another article entirely). That’s just one more reason to document performance and attendance concerns, share them with the worker and avoid surprises. If all employers followed these tips, half my practice would disappear. But that’s OK, because I need the spare time. For example, my husband’s home right now, with a nice bottle of Bordeaux, eager to share with me how the women at work harassed him today. Really. Judy Osborn relishes her solo practice in Austin, Texas, where she fulfills her passion of supporting employers with careful listening, creative problem-solving and employee training. Her e-mail address is [email protected]

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