As young or new lawyers, many of us are faced with being a “boss” for the first time. Like it or not, the legal assistants and (for new partners or senior associates) associates with whom you work likely perceive you as their supervisor, mentor, or guide, and in many circumstances you will be asked to participate in evaluating their performance. Even if your practice does not involve employment law, it is important for you to know some basic, practical principles to avoid liability.
Supervisor Tip #1: Equal Employment Opportunity
You’ve probably seen the phrase “equal employment opportunity” (EEO) before, perhaps on a poster in your office or in a statement in your employee handbook. Equal employment opportunity is the goal and premise of employment law: to ensure that everyone receives the same opportunities in the workplace regardless of race, religion, national origin, gender, age (40 and older), disability, veteran status, or genetic information. While federal EEO law protects employees and applicants from employment actions based on such characteristics, many states provide similar and additional EEO protections for employees and applicants (for example, protections based on sexual orientation or gender identity).
Even if you don’t know the ins and outs of the myriad of employment laws, implementing equal employment opportunity is a critical step not only in avoiding liability but also in being a good and fair employer. How do you implement equal employment opportunity? Make sure that you hire, discipline, fire, and make other employment decisions based on objective, identifiable (and, preferably, documented) criteria unrelated to the protected class to which applicants or employees belong. In legal terms, each decision you make sets a precedent, and you are bound by stare decisis. Of course, exceptions occur, but you should be aware of the potential for litigation over decisions made with respect to different employees under similar circumstances. When Sue asks to use personal time to attend her husband’s awards ceremony, keep in mind that you granted Bill’s request for personal time to attend his daughter’s soccer game. When Joe misses a deadline, he must have the same consequences as Jill who missed a similar deadline.
Supervisor Tip #2: Address Performance Issues
For people who are paid to be adversarial, litigators are often conflict-averse when it comes to evaluating those with whom they work. Either evaluations are not conducted or performance issues are glossed over in a way that does not provide feedback that employees need to improve. An important rule of thumb: Employees who are terminated for performance issues should never be surprised. Employees who are surprised by their terminations often are the ones who later sue their former employers for unlawful treatment.
You should discuss employee performance issues early and often and confirm in writing your conversations with employees. Do not sugarcoat employee performance evaluations. It does not help you or employees you supervise to give high marks on evaluations when those high marks are unwarranted. Additionally, providing a numerical score or a “meets expectations” assessment does not tell employees what they need to know about their performance (nor will it help you if you are asked to explain the basis for your ratings in later litigation). Spend time on your evaluations and provide concrete examples of why employees’ performance was stellar or lackluster. “Failed to carbon copy client on three letters in January, March, and July” provides more information than “lack of attention to detail.” By taking your supervisory role seriously and serving as a mentor to those with whom you work, your work relationships will benefit.
Supervisor Tip #3: Encourage Feedback
In addition to evaluating those you supervise, you should encourage them to evaluate you and your workplace. Employees must have viable options for voicing concerns and, upon receipt of those concerns, you must take action promptly and effectively.
When employees feel that something is amiss at work, it is better to know those feelings and address them before they become an issue in litigation. If you have human-resources professionals in your office, you should have them involved in handling employee complaints. If you do not have human-resource professionals in your workplace, you should ensure that thorough and fair investigations of employee complaints are completed and that employees know that you have handled the issues in complaints (even if you cannot reveal the results of investigations due to privacy concerns).
Don’t be afraid to ask for advice. Lawyers practicing in fields outside of employment law should seek help from lawyers specializing in employment law. Frequently, employment-law scenarios involve multiple statutes, and early consultation with an employment lawyer can save you headaches (and money) in the future. Additionally, although it is human nature to be angry when someone complains about you or your organization, avoid taking adverse action against complaining employees unless you have discussed the situation with someone else first. In 2010, for the first time ever, the federal Equal Employment Opportunity Commission (EEOC, the agency responsible for investigating claims under many federal employment statutes) received more charges alleging retaliation than it did race discrimination. More than one-third of all charges filed with EEOC in 2010 contained an allegation of retaliation.
Supervisor Tip #4: Avoid Office Gossip
Office gossip is inevitable, but, as someone in a supervisory role, you should avoid it. As anyone who has played the game “telephone” knows, gossip is often wrong and can spread quickly. You should not base employment decisions on information you have learned secondhand. Avoid discussing those whom you supervise with other employees unless it is part of performance evaluations or legitimate, work-related conversations.
Supervisor Tip #5: Beware of Technology
As wonderful as technology is, it also can be dangerous. While you can use email to document performance issues, you should not use it in lieu of discussions with employees. You should think before you hit “send,” as email is a ripe source for discovery in employment cases.
Social media also raise employment-law issues, including whether supervisors and subordinates should be “friends” on Facebook. There are differing opinions on whether employers and employees should connect via social media. If you choose to connect with those whom you supervise, be responsible. Do not post about employees or your workplace. If employees make negative comments about you, their workplace, or their coworkers via social media, analyze the situation before you implement discipline. In some circumstances, employees’ comments constitute protected activity that could result in retaliation claims if you take adverse action based on postings. If you and any hourly employees you supervise have email or social-media discussions during non-working hours, you or your organization could be responsible for compensating those employees for the time spent.
Being a supervisor is a daunting task, but one that can help your practice if done well.
Lynlee Wells Palmer is a shareholder in the Birmingham, Alabama, office of Gilpin Givhan, P.C.