Beware management push-back on HR decisions: Case in Point
As an HR professional, you may come across employment practices that you think violate the law. What you do with that concern and how you express it may make the difference between engaging in protected activity or not—and by extension, whether you can sue for retaliation if upper management punishes you.
Recent case: Peggy Hayes worked for Crescent Real Estate Equities as vice president of HR. She told the managing directors that she believed bonuses that the company called discretionary were actually nondiscretionary payments. She added that hourly employees were not being paid appropriately because of the erroneous classification. The directors told her: “Drop it.”
Hayes didn’t. Instead, when she prepared the budget for the coming year and presented it to the directors, she listed a higher amount for labor costs and explained the reason was hourly employees had been underpaid under the Fair Labor Standards Act (FLSA) due to the nondiscretionary bonuses. The directors told her they weren’t going to change the practice and again warned her to stop raising the issue.
Shortly after, Hayes was terminated. She sued, alleging retaliation for engaging in protected activity. The court agreed and ordered a trial. (Hayes v. Crescent Real Estate Equities, No. 11-2201, SD TX, 2011)
HR can be awkward sometimes, and HR professionals must often bear bad news. If management pushes back against your recommendations, remind them that they (and you) may be personally liable for FLSA and FMLA violations.
Explain how key HR functions practically benefit managers and their departments.
1. HR function: Ensuring compliance with anti-harassment and discrimination laws. Explain that compliance enhances the organization’s reputation among potential job candidates. Stress that legal claims and lawsuits hurt their department’s reputation, the company’s bottom line and their own career path. Remind them that some laws allow managers to be personally sued for their employment law mistakes.
Manager benefit: Compliance helps managers avoid impediments to career advancement, and encourages job candidates to perceive the organization as a place where they want to work.
2. HR function: Managing and tracking compensation and benefits. Explain that HR and managers should work together to make sure employees are paid at levels that are fair, consistent and in compliance with wage laws. Make sure they understand your overtime rules and current law on exemptions. Last year’s Ledbetter Fair Pay Act made this even more important because employees can now reach back many years to sue for pay bias.
Manager benefit: In addition to the legal threat, pay protests can crush morale and turnover. Work with managers to conduct annual comp and benefits reviews for each employee as part of his or her review.
3. HR function: Hiring and recruitment. Use a checklist to clarify supervisors’ roles in the recruiting, hiring and orientation process. Explain what HR will do and what bosses are expected to do. Teach them the legal do’s and don’ts of interviews. Create a formal employee referral program that encourages workers to actively seek out new staff.
Manager benefit: Supervisors are more engaged in finding and choosing employees who can contribute to the profitability of their departments.
4. HR function: Overseeing compliance with conduct, ethics and performance policies. Explain that early and ongoing communication between HR and managers is the key to preventing and resolving issues involving employee violations.
Manager benefit: Managers expedite the process of dealing with problem employees, minimizing the impact on department morale.
