Still More That Employers Can Learn From Legendary Coach John Wooden: Achievable, Basic Resolutions That Employers Should Keep in 2015
In a prior version of this article, I wrote that the legendary college basketball coach, John Wooden, famously taught his players on the first day of practice each year how to put their socks on correctly. Wooden believed that elite basketball players needed healthy feet, and that “sock instruction” was necessary to prevent blisters. Wooden’s record of excellence (10 national championships in 12 years) was predicated upon his belief that mastering the basics was crucial to success. The beauty of Coach Wooden’s success was (i) the simplicity and consistency of his principles and (ii) the importance of mastering the fundamentals. As Coach Wooden once said, “put good fundamentals on a player, you get a good player. Put great fundamentals on a player, you get a great player.” The same is true of employers and employees. With a nod then to arguably the greatest coach in any sport, below are seven achievable “basics” for employers that want to improve hiring, retention, and the bottom line.
1. Revise the Employee Handbook.
In 2014, the employment law landscape changed for employers because of legislative enactments, new decisions issued by state and federal courts, and agency directives and guidance. For example, a blizzard of overtime claims were filed in 2014, including many in which allegations were made that employees worked “off the clock” (i.e., at home, at customer sites, etc.) The District of Columbia passed legislation (that takes effect in 2015) that expands the rights of pregnant employees and the obligations of employers. This new legislation, entitled Protecting Pregnant Workers Fairness Act of 2014, was enacted approximately a year after Maryland passed similar legislation that requires employers of a certain size to reasonably accommodate pregnant employees with disabilities due to pregnancy (see, "DC Employers Must Accommodate Pregnancy, Childbirth, Breastfeeding and Related Conditions"). The EEOC also issued a new grievance in 2014 regarding the obligations of employers to accommodate pregnant employees. The District of Columbia modified the Sick and Safe Leave Act to expand its protections and to strengthen enforcement. Bottom Line: Employers need to update handbooks, among other things, to create or revise anti-discrimination/harassment policies, confidentiality policies, time recording and overtime policies, social media policies, computer usage policies, and anti-violence policies.
2. Update job descriptions.
If employers need a reason to create or update job descriptions, the alarming increase in wage/hour claims provides ample justification. Job descriptions help employers prevent wage/hour claims by forcing them to focus on the actual job duties performed by the employees, and whether those duties render an employee exempt from overtime. Job descriptions also help employers to prevent and defend disability claims. Fundamentally, they can be critically important in assisting employers to properly align the expectations of employees. The disconnect between employee expectations and employers is at the core of many, if not most, employment claims. Bottom Line: Creating and revising job descriptions is essential for employers to minimize the risk of employment claims.
3. Conduct manager training.
One of the worst kept secrets in the workplace is that mid-level managers and, for that matter, more senior level managers simply do not know how to manage effectively and, worse, often are too embarrassed to seek assistance. The benefits of training managers, preferably through experienced employment counsel, as to how and why their acts and omissions create unnecessary problems and legal exposures are significant. For example, effective training can result in mid-level managers learning (i) how they should handle complaints of improper treatment or harassment; (ii) how failing to provide thorough and accurate performance evaluations for the employees they supervise can create confusion in job expectations and, worse, legal exposure; and (iii) why failing to effectively communicate with senior executives and the human resources department is a prescription for legal and other problems. Bottom Line: Smart CEOs and their advisors understand that manager training is not, and never has been, an expensive luxury, but is a significant ingredient to creating a more functional workplace.
4. Prepare a new set of interview and reference questions.
Employees typically succeed or fail in an organization because they possess, or do not possess the emotional competencies necessary in a particular organization. They do not fail as a general manner because they lack sufficient IQ. But, is it that simple? Well, almost. Employers routinely fail to ask the probing questions of applicants, and of their identified references, that elicit whether the individual possesses the requisite emotional competencies. Just as significantly, employers need to train managers to not ask questions during the initial interview (or on job application forms) about an individual’s criminal history. In fact, Montgomery County, Maryland joined numerous counties and states throughout the country in enacting “Ban the Box” legislation that prohibits inquiries into a job applicant’s criminal history during the initial stages of the application process (see, "Montgomery County Employers Must Reexamine Use of Criminal Background Checks in Hiring Process.") Bottom Line: Employers and business advisors need to undertake a critical analysis of why employees succeed or fail in their organizations and then craft lawful interview and reference questions to determine whether the individuals they are considering to hire possess the requisite “success characteristics.”
5. Seek advice early.
Most patients, myself included, routinely wait too long to call their doctors. Often, we pay for “self-medicating” through longer and unpleasant illnesses that likely could have been treated effectively much earlier. The simple truth is that many employment claims can be addressed, if not resolved more cheaply and effectively if experienced employment counsel is contacted earlier in the process. Bottom Line: “Self-medicating” can be dangerous to your organization’s health and often is quite expensive.
6. Conduct in-person anti-harassment training.
Retaliation and discrimination claims continue to be filed at alarming rates. Almost as distressing for employers is the fact that judicial decisions applying the applicable standards are all over the map. In person training should be conducted for nearly all employers at least every 18 months. The Supreme Court has held that employers have an affirmative obligation to take appropriate measures to prevent the filing of discrimination and harassment claims, and to take appropriate measures to address such claims once they have been filed. Bottom Line: What constitutes unlawful discrimination or harassment often is difficult to determine. Although online harassment and training programs may convey the basics, there is no substitute for in person anti-harassment training by an experienced professional.
7. Review insurance coverage for employment claims.
In light of the alarming increase of overtime and compensation claims being filed against employers and the seemingly endless wave of new employment laws being enacted, employers must strongly consider acquiring Employment Practices Liability Insurance (EPLI) if they do not already have this insurance, and review and update their EPLI coverage if they do. Many employers are unaware that EPLI policies often exclude indemnity coverage for overtime and other wage claims. However, increasingly, employers can obtain insurance coverage for at least some portion of the defense costs (i.e., attorneys’ fees) incurred in defending such claims. Several employment statutes impose personal liability for individuals who have supervisory authority and the authority to implement personnel decisions. Bottom Line: Employers should carefully review their insurance coverage for employment claims to ensure that coverage is as comprehensive as is appropriate.
Smart CEOs and their business advisors understand that the readily achievable, fundamental measures outlined above will help prevent employment claims from being filed in the first instance; will better position employers to defend such claims if they are filed; and will provide diligent employers with a competitive advantage and a “winning” formula.
Happy New Year!
Marc Engel is an employment attorney and litigator at Lerch, Early & Brewer who advises employers of all types on employment issues, including compliance with the Fair Labor Standards Act, and provides strategies for preventing, defending, and resolving wage and hour claims. For more information, contact Marc at (301) 657-0184 or firstname.lastname@example.org.