Employers often dedicate substantial time and resources to creating lawful written policies. This includes working with lawyers to prepare an employee handbook that contains legally compliant policies, including policies on equal employment opportunity, prevention of harassment, and wage and hour laws.
Although maintaining legally compliant written policies is important, alone it is insufficient to ensure compliance with the employment laws that apply to your company. If ignored, the written policies may be worth little more than the paper on which they are written. The most important factor for any company with respect to complying with employment laws is the actions of the company’s managers, particularly those managers who regularly supervise and interact with the company’s rank-and-file employees. It is ultimately up to these managers to ensure that the company follows its own written policies and complies with the law.
Imagine the following scenario. Teresa, a supervisor within the company’s production department, is aware of California’s strict wage and hour laws, and she also knows that the company has a written policy that mandates compliance with those laws. However, Teresa considers meal period and rest period requirements a nuisance. To her, they simply get in the way of meeting production targets. Teresa does not think most workers care much about meal periods and rest breaks. After all, taking breaks just slows things down, and when workers take breaks, they often must remain at work even later to finish the production jobs. Therefore, Teresa tells employees to skip their rest breaks and only to take 20 minutes to eat their lunch. She also tells them to clock-in and out for 30 minutes for meal periods, but only take 20 minutes eating. That way, it will look like the workers are taking proper meal periods.
Also, imagine this scenario. Bonnie has told her supervisor, Ted, that a coworker named Andy has been making her feel uncomfortable. Andy regularly stares at her. On several occasions when he walked past her, he brushed up against her. He has been leaving her notes wishing her a pleasant day and even giving her small presents. He also recently told her that she should leave her boyfriend for a person who treats her better. Ted listens to Bonnie, but he does not think she has anything to worry about. In fact, he tells her she should be flattered by Andy’s kindness and attention. Ted knows that the company has an anti-harassment policy, but he does not think it applies here because he thinks Andy is just being nice. Ted does not report Bonnie’s concerns to Human Resources.
In both scenarios, the companies have rogue managers who are not following the company’s written policies. In the first scenario, Teresa is exposing the company to significant liability for violations of wage and hour laws, including meal period and rest period requirements. She is also encouraging employees to work off-the-clock, which would support legal claims for unpaid minimum wages, liquidated damages, penalties, and recovery of the employees’ costs and attorney’s fees incurring pursuing these claims.
In the second scenario, Ted has missed an opportunity to address Andy’s unwelcome conduct and to stop it from continuing. If Ted were to act promptly and the unwelcome conduct stopped, the company would have a good chance to avoid liability for Andy’s unwelcome conduct. If Andy persists and Bonnie ultimately files a lawsuit, the company will now have difficulty defending against claims of sexual harassment and the failure to prevent harassment. Under California law, it is unlawful for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (See California Government Code Section 12940(k).)
These scenarios illustrate that it is not enough for a company merely to maintain legally compliant written policies. A company needs to train its managers on those policies and make sure they understand them. Most importantly, it is critical that upper-level management and experienced HR employees actively manage those managers and supervisors who interact directly with hourly employees to make sure they are following the company’s written policies. Active management can include meeting with rank-and-file employees, periodically observing the operations of departments, making sure that managers are regularly and objectively reviewing the performance of subordinates, and closely evaluating managers’ performance in a variety of areas. Reviewing employee time and payroll records to ensure compliance with wage and hour laws is also recommended.
Companies should also consider retaining experienced employment law counsel, who can review company policies, provide training on equal employment opportunity and prevention of harassment, and audit compliance with wage and hour requirements. Employment law counsel can also provide valuable advice in resolving personnel issues as they arise.