Pay for Employee Who Clocks In Early (8/10)

We have a full-time hourly employee who consistently clocks in 15 or 20 minutes before her scheduled work time even though we have a rul against beginning work early.  Can we pay her only her scheduled hours even though the time sheet totals are more?

If the nonexempt employee is actually working the extra time, then you should pay her for all time worked.  Both the federal Fair Labor Standards Act (FLSA) and most state wage and hour laws require you to pay nonexempt employees for all time actually worked.      According to the FLSA regulations, found in 29 C.F.R. §§785.11, et seq., if you are aware that a nonexempt employee is working more time than is required, you must compensate the employee, even if your organization did not request the additional work.  For example, as in this case, an employee voluntarily may begin work early or continue to work at the end of the shift to finish an assigned task.  If your organization knows or has reason to believe that the employee is beginning work early or continuing to work beyond regularly scheduled hours, the time is considered working time that must be paid.  Therefore, it is management’s duty to stop employees from working additional time if it does not want to pay for the work time.  A rule against extra work is not enough; management also must make every effort to enforce the rule.        In addition, if you have a rule prohibiting unauthorized working time, your policy should not use misleading phrases such as “employees are not permitted to begin work more than 15 minutes before their scheduled starting times or to stop work more than 15 minutes after their scheduled quitting times.”  This wording implies that employees may work up to an extra 30 minutes each day without counting the time as working time.         Note, however, that the Supreme Court has recognized the “de minimis” rule (in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)) where an insignificant amount of time does not have to be counted as work time, such as when an employee spends a few extra seconds or minutes working.  Still, according to the DOL, this rule applies only where “there are uncertain and indefinite periods of time involved of a few seconds or a few minutes duration and where the failure to count such time is because of considerations justified by industrial realities.”      Accordingly, you should pay the unauthorized time, since one of the surest ways to provoke a wage and hour complaint is not to pay employees for time they have worked.  (Be aware, too, that the extra time may cause the employee to work more than 40 hours in a single workweek and, thus, trigger overtime obligations as well.)  You may still discipline the employee, as well as any manager who is not enforcing your rules, for violating your rules on unauthorized work time.  Most employers follow their normal progressive disciplinary procedure in these situations.

Your Harassment Response is Key to Prevent Liability (7/10)

Your response to a harassment complaint often will be the determining factor in either preventing or provoking a full-blown discrimination claim.  A weak reaction is no defense and may increase your legal exposure.

You probably have a harassment policy in place and know how important it is to train employees about what is appropriate and inappropriate conduct.  But, are you confident you know what your obligations are to take disciplinary action if your policy has been violated?  Or, in situations where it is not clear that harassment actually took place, do you know how to respond to prevent future harassment?      One of your more difficult jobs as an HR professional can be deciding what is an appropriate disciplinary response to a harassment complaint.  How you respond often will be the key to whether the complaining employee files a full-blown complaint with the Equal Employment Opportunity Commission (EEOC) or seeks redress with an attorney.  If your response is slow or inadequate, you may increase the likelihood of liability for your organization.  Alternatively, you don’t want to be too heavy-handed.  A reflexive or too harsh response, such as an automatic suspension or termination without regard to the severity of the conduct, may needlessly provoke a legal claim by the alleged harasser.  Fortunately, however, there are several simple steps you can follow to help determine the appropriate discipline.  Duty to Prevent Harassment  Your duty both to prevent workplace harassment and to take swift action to remedy it is well established.  Title VII of the Civil Rights Act prohibits harassment or a work environment that is abusive to employees because of their race, gender, color, religion, or national origin.  In addition, the Americans with Disabilities Act has been interpreted to prohibit harassment based on an individual’s disability.  Although the most common harassment claims involve allegations of sexual harassment, the same legal analysis applies when the offensive behavior is aimed at any legally protected class.  Most states also have laws forbidding workplace harassment, as do many cities and other local governmental authorities.      To meet this duty, most HR and legal experts suggest that you should have a strong and consistently enforced policy against sexual and other forms of harassment that shows your organization’s commitment to a productive work environment.  You also should take the following steps to implement the harassment policy properly:  (1) distribute the policy to all employees in a handbook or policy manual and post it on bulletin boards; (2) select a person (or persons) to oversee the policy who has an expertise in handling harassment complaints; (3) anticipate situations that can develop into harassment and try to prevent them; (4) train supervisors and employees about how to use the policy; (5) take all complaints seriously and conduct prompt investigations; (6) evaluate the evidence and determine if the policy was violated; (7) take appropriate remedial action if harassment occurred; and (8) communicate the results to the involved parties.  In addition, you should review and revise the policy regularly to ensure that it still meets the evolving standards of what is a legally effective harassment policy. When Your Harassment Policy Has Been Violated Of course, discipline is generally one of the last steps in any harassment procedure.  It should follow only after you have conducted a thorough and prompt investigation, interviewed all involved parties, and carefully weighed the evidence.  If you conclude that your harassment policy has been violated, disciplinary action is then the next step.       As a general rule, your disciplinary measures should take into consideration the nature and seriousness of the harassment and should also reflect whether it is the first violation of the policy or part of a broader pattern of harassment.  In addition, you should follow your organization’s standard disciplinary guidelines and make sure your action properly matches any similar past precedents.        Courts and the EEOC generally agree that, in order to escape liability under Title VII, employers must take appropriate remedial action that is “reasonably calculated” to stop the harassment and prevent any future occurrences.  In addition, the disciplinary measures also should be appropriate to the seriousness of the offense.  Most employers follow their normal progressive disciplinary system and utilize the following actions, either alone or in combination: 1.     Corrective counseling.  Counseling is most appropriate for first incidents of harassment involving relatively minor violations of policy, such as an inappropriate comment or offensive joke.  In addition, when the evidence is inconclusive, you can use counseling as a proactive way to call attention to your harassment policy. 2.     Harassment training.  Training often is used in combination with other disciplinary measures to reinforce your harassment policy. 3.     Oral reprimand.  A reprimand is a more formal step than counseling and drives home that the harassing behavior is a policy violation and must not recur. 4.     Written warning.  Written warnings usually are issued for more serious forms of harassment and are the last step before a suspension or termination. 5.     Transfer or reassignment.  This action is appropriate when the instances of harassment are severe and the harasser and complaining employee work in close proximity.  Some employers will transfer or reassign the complaining employee, but, as discussed below, this action can be viewed as retaliatory if the complaining employee appears to suffer a demotion, pay decrease, or other adverse employment action. 6.     Suspension.  A suspension is used as a final warning before termination and is reserved for severe harassment or repeated policy infractions. 7.     Termination.  Termination should be reserved for severe examples of harassing behavior, such as quid pro quo harassment (where a supervisor asks for sexual favors in exchange for some action, such as a promotion) or when the employee has already been disciplined for harassment and the behavior has continued.      Of course, for any discipline short of termination, the harasser also should be warned that further incidents will not be tolerated and will result in additional disciplinary action.      When deciding on the appropriate disciplinary action, you should resist the punitive approach of suspending or terminating all violators without regard to the severity of the conduct.  Zero tolerance policies are seldom reasonable or practical to implement.  Employees who feel they have been unjustly accused, treated too harshly, or unfairly terminated often bring wrongful discharge, defamation, or emotional distress claims.  Furthermore, overly harsh treatment against the accused can create resentment against the complaining employee.  On the other hand, an overly lenient response, such as only giving warnings in cases of severe harassment, may be ineffective to stop the behavior and can force the complaining employee to seek outside help.  In addition, a weak response provides no defense and may increase the monetary damages awarded the employee.   No Violation of the Policy If you investigate a complaint of harassment and determine that your policy was not violated, you should not take any action against the accused harasser or retaliate against the complaining employee.  You should, however, explain in appropriate detail to the complaining employee why the evidence did not support the claim.        You also need to be prepared for the complaining employee’s dissatisfaction with your decision.  As a safety valve, most employers invite the employee to submit any further evidence and assure her that it will be investigated.  In addition, you should remind the employee that she may appeal the decision using your normal complaint resolution procedure.  Any empathy you show for the complaining employee’s concerns may help neutralize the type of emotional reaction that often leads to a claim with the EEOC or to a lawsuit.      There also may be situations when the alleged harasser’s conduct is not a violation of your policy but still offends or disturbs the complaining employee and may affect her work.  For example, a female employee may be bothered by a male coworker’s comments on her appearance.  Comments such as “You look great today,” or “I like your new outfit” may seem benign and likely would not constitute harassment under your policy.  However, if they disturb the female employee, for example because they are too frequent or the underlying tone seems inappropriate, her concerns should be addressed.  Your response may include simply talking to the employee making the comments, informing him of their effect, and asking him to stop.  You also should encourage the complaining employee to use the harassment complaint procedure if the conduct continues of if it escalates into additional offensive behavior.  What if the Investigation Is Inconclusive?  Unfortunately, there often are circumstances when the results of the investigation are inconclusive or your findings are ambiguous.  However, even in these instances, you should not dismiss the complaint lightly or without explanation.  Any apparent lack of concern may aggravate the problems between the complaining employee and the alleged harasser and signal to other employees that your harassment policy is ineffective.      To preserve the integrity of your policy, you should explain to the complaining employee why the evidence was inconclusive.  You also should express the organization’s commitment to its policy and assure the employee that the alleged harasser will be warned about the consequences of any inappropriate conduct.  In addition, you should explain the appeals process and encourage its use if she feels the decision was unfair.        Finally, if there appears to be evidence of a continuing conflict between the two parties, you should attempt to resolve it or take some nondisciplinary action to ensure it does not continue.  This action can include the transfer of one of the parties or the reassignment of job duties.  Remember, however, you must be sure that any action taken does not appear to be retaliatory to the complaining employee, such as a demotion or a transfer without her agreement.  Evaluate Effectiveness of Remedial Action  Whatever action you take, you should follow up to ensure that there is no retaliation and that no new incidents occur.  This step is crucial because, even if your initial remedial action was sufficient, you have an ongoing legal obligation to respond if the harassment continues or intensifies.        This follow-up can be particularly important in situations where the alleged harasser receives only a warning or written reprimand, and then continues to work with the complaining employee.  Courts often have noted that while a verbal warning and counseling may be very effective initial steps, the employer has a further duty to make sure the harassment does not continue or recur.  It is not enough for you to “cure” one symptom of harassment if you do not address the entire disease.      In addition, any discipline you impose should be documented and communicated to both the complaining employee and the harasser.  You should assure the complaining employee that the harasser’s conduct will be monitored and encourage her to report any subsequent harassing or retaliatory conduct.        Both parties also should be given the opportunity to express any dissatisfaction with the outcome and to appeal the decision.  An appeals process conveys additional fairness and impartiality and may encourage both sides to accept the final decision as the product of a fair and complete process. Highlight Harassment Policy If you determine that the harassment is widespread and involves more than one employee, you may need to reinforce publicly your organization’s commitment to its harassment policy.  This reaffirmation could involve a memorandum reminding employees of the policy and the consequences of violations or a company-wide training session.  You should not publicize, however, details and resolutions of specific incidents even though you may be tempted to do so to show the organization’s commitment to its policy.  This type of publicity may expose you to claims of defamation, infliction of emotional distress, and other legal action from both the complaining employee and the alleged harasser. Action Important to Resolve Harassment Recent cases addressing workplace harassment show clearly that an employer’s prompt and effective response is key to limiting liability.  However, appropriate discipline should be just one step in your overall prevention and resolution strategy.        You also should have a strongly worded policy prohibiting harassment and encouraging complaints, should train your employees about the policy, and should implement a complaint procedure to investigate and resolve complaints in a timely fashion.  By taking these actions, you can both help prevent liability for harassment and, just as importantly, create a productive work environment.