Feature

Best Practices for Managing Staff in the #METOO Era

By Christine M. Meadows

A law office manager recently noted, “my job would be easy if it weren’t for the people.” From the day-to-day personality conflicts to addressing performance and productivity issues, managing people is hard. As the employment relationship becomes increasingly regulated and tales of workplace harassment commonplace, managers can find themselves in situations where they are paralyzed by fear of making a mistake. In a smaller office, where one person may be juggling multiple duties, this can become even more overwhelming. While avoidance is not the answer, there are some best practices that law offices (small and large) can put into place to make managing staff easier and to avoid some of the most common workplace issues.

Employees should understand what is expected of them and whether they are meeting those expectations well in advance of any need for discipline related to performance. Policies and procedures should lay out the organizational expectations and standards and the process for employees to bring forward concerns. To make sure employees have the information they need, managers can implement some of the following practices.

Job Descriptions

Every position in the office should have a written job description that lays out the duties of the position. This serves multiple functions. It helps clarify roles and expectations, which may not have been clearly defined initially. Positions also can change over time as an organization grows or evolves. You may no longer need someone to take on a role that has become a job function for another position. To make sure that management and the employee are on the same page, review and update the job descriptions every few years. This can also be a reference tool when you need to clarify expectations with employees or address performance measures that are not being met. If you also include the essential functions of the position (the duties that really get to the essence of why that position exists), then future discussions of job accommodations will also be easier.

When hiring for a new position, create the job description first, before you even post the job. That way the skills and abilities needed in the office are the focus of your hiring process. Spend some time considering what skills and qualities are needed currently and in the future. If you are developing a new position, define it before you post the position. This is also the time to consider the pay range for the position, so you are setting rates based on the value of the skills and not what someone made at another job. This also helps avoid pay equity issues. Once the position is clarified, you can focus the process and communication on your organization and what you seek, so you can attract what you are looking for in an ideal candidate. Don’t generate a generic applicant pool and then adjust your expectations based on what you attract. If you aren’t clear as to what you are looking for, your applicants won’t be either. How you communicate about a position also communicates to applicants the type of workplace they can expect. Is the office organized and efficient or figuring things out along the way? The applicants will make judgments based on what they see.

Job Classifications

Include in your review of job descriptions a review of the classifications of each position. The Fair Labor Standards Act requires that any employee treated as exempt from overtime meet the salary requirements as well as the job duties tests. In most small law offices, non-lawyers who are not supervising two or more employees will not meet the duties test to qualify as exempt from overtime, meaning they are subject to overtime and must be paid at least minimum wage for all hours worked. This will impact how you need to manage these positions. In the past, offices sometimes characterized paralegals as exempt under the administrative duties test, but the requirement that administrative employees exercise discretion and independent judgment over matters of significance is usually in conflict with requirements that lawyers supervise (and take responsibility for) their work. To avoid potential wage and hour issues, non-exempt staff should be required to take mandated breaks and meal periods and track their time accurately each day to clearly delineate the start and stop time for any work (not just billable work). Failure to do so should be addressed as a disciplinary/performance issue.

Policies and Procedures

A policies and procedures document is a way to communicate your culture and expectations in writing to your employees. Every organization is different. Some have policies and procedures for everything, and some try to keep the written policies to a minimum. Regardless of the type of organization, there are a few policies that every office should have. First, you should have a policy that lays out the hours the office is open, the expected work hours, and the expectations for non-exempt employees to report all their time accurately and take their mandated breaks and meal periods. Second, you should have a policy that addresses drug and alcohol use. This does not have to include drug testing but should at least lay out the expectation that employees are not impaired while at work, the process if they appear to be, and the consequences for violating the policy. Third, owing to the nature of legal work, you should have a written policy that addresses confidentiality, securing files, and communication about client matters. This identifies the expectations in writing and reinforces appropriate practices. Fourth, you should have a policy statement identifying your firm as an equal employment opportunity workplace that does not discriminate based on race, national origin, color, sex, religion, age, disability, or other protected class and will work with employees and applicants to identify potential reasonable accommodations for disabilities. Finally, you need a policy prohibiting discrimination and harassment in the workplace, laying out the process, and identifying the one or two people who will be responsible for taking complaints and following up to address them. Some workplaces also include a professional behavior expectation to address inappropriate behavior that may not rise to the level of harassment or discrimination but will not be tolerated. Whatever form they take, make sure you distribute these policies and procedures to all employees. Good policies only work when employees know about them and they are properly applied.

Investigations and Response to Complaints

It is important to remember that getting a complaint of harassment or discrimination, while never pleasant, is an indication that your employees trust the system in place and have some confidence that their issues will be addressed. If no one ever lodges a complaint, it could be a sign of a larger problem—not that there are no complaints, but that people do not feel safe bringing complaints forward. Once a complaint is received, an employer has a duty to take prompt, corrective action. Where physical threats or safety are at issue, this may mean reassigning the accused or placing the accused on administrative leave to avoid contact with the complainant while you investigate. Unless the complainant requests reassignment, the accused should always be the party who is moved out of the situation.

The level of formal process will be dictated by the circumstances. In many cases, the investigation needed is minimal, a complaint can be addressed quickly, and the behavior corrected before it escalates to something more severe. Investigations of complaints about co-workers or managers making comments or inappropriate gestures could be as simple as taking a detailed report, meeting with the accused to gather information about the interaction, making a finding of fact about what most likely happened, determining if it violated the policy, and taking appropriate corrective action as necessary. Even where behavior didn’t violate the policy, if it was problematic in any way, coaching and counseling to reinforce expectations should be done.

With complaints of sexual harassment, the process should be similar. However, sometimes managers and employees will mistakenly apply a standard of proof they believe must be met to address allegations of potential harassing behavior. Often, the only thing required is to follow up to get more specifics about the complaint. Rather than turn away an employee who complains that a co-worker gives her a “creepy” feeling, the manager should follow up with additional questions. How are they interacting? Physical distance apart? Eye contact? Is the behavior the same with men and women? If not, how is it different? Through this process, the manager may learn the employee in question is standing behind female employees, leaning over their shoulder inches away from their face, pointing at the computer screen, and apparently looking at their chests. These are specifics that can be addressed with the respondent employee.

There will be times when an outside investigator should be brought in. A complaint involving egregious behavior or a senior-level employee may call for an outside investigator to avoid actual or apparent conflicts, for example. However, many types of complaints can be addressed internally, often in the same day.

Regular Employee Feedback

If you began practicing in the days of “no news is good news,” you may not be in the habit of giving your staff regular feedback, but instead you may expect they will know they are on the right track if you don’t have anything negative to say to them. While you don’t need to give constant feedback, adjustments or clarifications close in time are valuable tools to help employees get or stay on the right track. Best practices are moving away from a once-a-year annual review to more immediate check-ins to make sure projects are on track, to redirect focus as necessary, to let employees know when they are doing a great job, and to clarify assignments and priorities. When you give this type of feedback, make sure you document the basics for future reference (see below under Documentation). A scheduled monthly or weekly check-in for 15 to 30 minutes during which your employees can update you on projects and time lines and get any necessary feedback can be a good investment of time. If the office or department is small enough, a five-minute check-in at the beginning of the day could also be helpful to highlight any needed information about new projects, priorities, or staffing issues.

Feedback should be given privately for the most part. While publicly recognizing someone who went the extra mile can boost morale and help retain good employees, the same is not true of calling out mistakes. Avoid criticizing an employee publicly. This includes discussion of employee performance with others. When in doubt, praise in public and critique in private is a good rule of thumb.

Documentation

When you are offering informal coaching and counseling or giving feedback on an issue, make a note of the date and subject matter so you can refer to it later if needed. Documentation does not need to be elaborate. If you have an employee who regularly comes in ten minutes late and leaves ten minutes early, the most important thing to document is the date and time you addressed this pattern with the employee and what you communicated was the expectation. You do not need to log every date and time that the employee was late or left early. Don’t forget to make a note of the outstanding performance issues, too. If a client offers praise or an employee puts in hours of extra time to meet a deadline in advance, jot it down and make sure to communicate about it to the employee.

Performance Improvement Plans

Many managers watch an employee not perform to their expectations for months or years, finally terminating the employee “out of the blue” and triggering a complaint. An action arising from a performance issue or failure to meet an expectation should never be a surprise to the employee. If the issue is performance based regarding skills or abilities, make sure that you have given adequate communication of the expectations and issues and provided the employee an opportunity to perform. A performance improvement plan is a good intermediary step before discipline, but it isn’t discipline. It should be approached with the expectation that the employee will rise to the occasion. Lay out the specific performance issues in as much detail as possible. You may need to identify specific examples, calling on your documentation. Then identify your expectation and the measure that will be used. Finally, give an appropriate time line to gauge any improvement:

  • Issue: Failure to produce drafts with sufficient time for attorney review. We discussed this issue on 3/12/18 and again on 4/18/18.
  • Expectation: All drafts will be provided no later than one week before the stated deadline. They should be provided earlier, if possible.
  • Time line: This performance improvement plan will remain in place for the next 90 days. Please notify me immediately if there is any reason why you are not able to meet this expectation. We will review your progress periodically during this time period.

Accommodations

Many employees have hidden disabilities that they do not want to disclose to an employer. These disabilities may only become apparent at the point a performance issue has been identified and the employee explains a connection to a disability. Employees experiencing attention deficit hyperactivity disorder, depression, anxiety, and other non-apparent mental health disabilities may require reasonable accommodation. Managers should be aware of this. An employee may not explicitly say “I need a reasonable accommodation for this disability,” but once the employee makes you aware of the limitation and asks you to consider it in the process, you should treat that as a request. This may mean setting aside a discipline track while you go through the process to determine if there is a reasonable accommodation that can be made to address the limitation.

Discipline

The less surprised employees are if you need to have one of those conversations, the less difficult it is likely to be. With the other tools in place, by the time you need to impose discipline, the conversation can be relatively short and factual. Identify the issue and the discipline being imposed. Keep it simple. Make sure that before you meet with the employee, you have identified any potential factors that could impact the issue, such as use of protected time off, any identified needs for accommodations that have not been addressed, etc. This could change whether or how you proceed with the discipline. You should not discipline an employee for an issue that is related to a protected right, for example, a performance metric that was not met because the employee was on protected leave at the time. You may need to recalibrate, allow the employee to address the issue, and then determine if the expectation is still unmet.

Communication is key. Difficult conversations are unavoidable, but the more information employees have, the less painful the process will be for all parties involved.