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Training and Development: Federal

Training and Development requirements by state

Author: Phillip B. Russell, Ogletree Deakins

Summary

  • Providing adequate training offers career development opportunities, improves communication within the organization and reduces any organization's exposure to workplace legal risks. See Workplace Training Benefits.
  • Employers must provide training according to certain applicable federal and state requirements. This training may include the following topics: safety and hazards; antiharassment; and requirements associated with government contractors. See Assessing Training Needs.
  • HR, supervisors and employees should attend training with respect to internal policies, procedures and diversity initiatives. See Training Methods.
  • An employer should conduct training program audits to ensure proper documentation practices with respect to training programs. See Training Program Audits.

Workplace Training Benefits

Every employer should have a comprehensive employment training program in place to continually educate its employees, supervisors and managers. Not only does workplace training help an employer to reduce the risk of legal liability, but it also benefits employees by helping to further their professional development and improve internal communications. This is true whether an employer conducts a particular type of training voluntarily, or to fulfill a legal requirement.

Preventing Workplace Liability

Simply stated, training reduces any organization's exposure to workplace legal risks. In lawsuits involving workplace issues, including discrimination, harassment and compensation claims, the parties on both sides of the case frequently investigate the nature, extent and frequency of training the employer provided to its employees, supervisors and managers, including its HR personnel. To help prove that it complied with the law, an employer should keep detailed records regarding training in an easily accessible format and location.

For details about the kinds of training-related records an employer should keep, see Training Program Audits and Recordkeeping.

Legal actions have created an urgent need for employers to conduct training to reduce risk, even if federal and state laws do not require the types of training at issue. In other words, employers should conduct training not only for its many benefits, but also to successfully argue in defending against claims that they used all possible means to prevent or correct the alleged misconduct.

An organization that provides a comprehensive training program has one more layer of defense against, for example, allegations of workplace harassment. An employer can argue against a harassment claim by showing that it took steps to prevent the harassment from occurring.

For more information, see discussion of the US Supreme Court cases that established this affirmative defense.

In contrast, an employer that does not provide any training will have a more difficult time defending against harassment claims

Professional Development

A workplace training program can help further the professional development of employees by enhancing their skills, knowledge and education. The following are some of the ways in which employees can benefit from workplace training:

  • Supervisors and managers who undergo basic employment law training better understand workplace legal risk management;
  • Employees who are trained in leadership, development and communication skills become stronger candidates for supervisory and management positions; and
  • HR professionals who obtain continuing education units (CEUs) maintain their professional certifications and obtain new skills and knowledge that will enable them to advance in their field.

Improved Internal Communications

Workplace training can also help improve internal communications between employees and their supervisors, resulting in improved performance and fewer disciplinary issues. Employees should be trained to know and understand their multiple lines of communicating to decision-makers "up-the-ladder" in the organization.

Supervisors and managers, as well as HR personnel, also must understand their critical roles within the organization. Each represents the employer both from a practical and a legal perspective.

For more information, see the discussions in Recommended Training for Supervisors and Managers and the related Supervisor Training.

Most importantly, a comprehensive training program allows employees to achieve greater job and career success - thereby improving overall retention. Employees, supervisors, managers and HR personnel all have greater enthusiasm, productivity and attitude as a result of training opportunities.

Assessing Training Needs

Balancing Business Goals, Training Budgets and Liability Risks

Before providing any training to management or employees, an employer should conduct a training needs assessment to balance the business goals, budgets and risks to be addressed by the training. The training needs assessment may be simple and described on a one-page document, or it can contain a more detailed breakdown of information describing specific intended training topics, a training schedule and costs.

The initial training needs assessment should explore the following considerations:

  • The extent of executive management support;
  • An inventory of all types of training provided in the previous two years;
  • A review of allocable budget;
  • An analysis of any legal claims threatened or filed against the organization in the last five years;
  • The types of legal claims filed against other employers or similar organizations in the relevant geographic area in the last five years;
  • Input from supervisors, managers, employees and HR personnel regarding the types of training needed; and
  • A clear description of the metrics used to measure the value received from the training programs considered as a result of the needs assessment.

After completing the initial assessment, an employer should conduct periodic and ongoing assessments to ensure it is meeting its training goals.

Federal training opportunities or subsidies. An employer may also be able to take advantage of certain federally funded programs that provide training opportunities or subsidies for existing employees, such as those administered through the Workforce Innovation and Opportunity Act (WIOA). The WIOA, which reauthorizes the Workforce Investment Act (WIA) through 2020, overhauls existing employment, training and education programs and streamlines the current workforce development system structure. In general, the Act took effect on July 1, 2015, the first full program year after enactment. However, the State Unified Plans and Common Performance Accountability provisions took effect July 1, 2016. The US Department of Labor (DOL) issues further guidance on the timeframes for implementation of these changes.

Legally Required Training

Safety training. More than 100 of the Occupational Safety and Health Administration's (OSHA's) current standards contain training requirements.

Some of the topics that require training in OSHA standards include:

  • Means of egress;
  • Hazardous materials;
  • Personal protective equipment;
  • Medical services and first aid;
  • Fire protection;
  • Materials handling and storage;
  • Welding, cutting and braising; and
  • Toxic and hazardous substances.

Although OSHA does not specifically address an employer's responsibility to provide health and safety information and instruction to employees, it does include training standards for specific industries, such as logging, telecommunications, contracting, maritime, longshoring, construction, agriculture and federal employee programs.

OSHA's training guidelines also provide safety and health information an employer can use to instruct its employees on minimizing workplace risk. OSHA's training guidelines provide information on:

  • Identify training needs, goals and objectives;
  • Developing learning activities;
  • Conducting training;
  • Evaluating training program effectiveness; and
  • Improving training programs.

Harassment prevention laws. Although federal law does not require an employer to conduct training to prevent harassment, several states have enacted legislation either requiring or encouraging employers to do so. In some states, only public employers are required to provide training. Accordingly, an employer must review applicable state law when developing training programs.

Government contractors. Employers that are federal government contractors must comply with special training regulations enforced by the Department of Labor's (DOL's) Office of Federal Contract Compliance Programs (OFCCP). For example, government contractors need to comply with Executive Order 11246, governing equal employment opportunity requirements. +30 FR 12319.

Government contractors should provide training on the following topics:

  • Affirmative action requirements;
  • EEO-discrimination requirements;
  • Disability access requirements;
  • Ethics and code of conduct;
  • Drug and alcohol awareness;
  • Recordkeeping requirements; and
  • Apprenticeship training.

The OFCCP has strengthened federal contractors' affirmative action requirements under Section 503 with regard to individuals with disabilities. +41 CFR 60-741.1. In addition, the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) Section 4212 Regulations revise and update the OFCCP's affirmative action requirements. +78 FR 58614.

Apprenticeship training, which is administered by the DOL's Employment and Training Administration (DOLETA), has various EEO requirements government contractors must also comply with. +29 CFR 30.4. Employers should coordinate with DOLETA's state counterparts and verify state requirements.

Executive Order 129889 requires government contractors to use E-Verify - the internet-based database that an employer may use to verify a potential employee's authorization to work in the US - to verify the status of all employees working on a federal contract. +61 FR 6091. In addition, according to state-specific requirements, certain public agencies and public employers are also required to use E-Verify. Proper use of E-Verify may minimize potential negligent hiring or retention claims with respect to employing workers who are not legally employable.

Corporate administrators of E-Verify accounts need to attend web-based training administered by US Citizenship and Immigration Services (USCIS). Employers should ensure proper use of the database by providing training on the site's features. In addition, state law may require the use of and training on the E-Verify system for certain employers.

Recommended training for all employees (including supervisors, managers and HR), includes sessions on:

  • Employee handbooks, policies and procedures;
  • Diversity and respect;
  • Compliance and ethics;
  • Leadership and communications; and
  • Business development and marketing.

Employee handbooks, policies and procedures. An employer should highly prioritize both initial and recurring training regarding its employee handbook and other employment policies and procedures. The most critical policies governing the employment relationship are typically contained in the employee handbook. Handbook and policy training manages organizational legal compliance and employee expectations regarding the terms and conditions of employment for all levels of employees. So, although not legally required, this type of training is strongly recommended for all employees, supervisors, managers and HR.

An employer should conduct this training during new employee orientations and at least annually for all employees. Training should also be provided anytime there are substantial revisions made to the employee handbook or other policies or practices.

Handbook policies usually cover topics such as:

  • Equal employment opportunity;
  • Antiharassment;
  • Open door;
  • Ethics and codes of conduct;
  • Disciplinary procedures;
  • Overtime; and
  • Time keeping.

Although many kinds of workplace training programs can be "off-the-shelf" and applicable to many organizations, training regarding employee handbook policies should be specifically customized for the particular organization. To facilitate this training, an employer should ensure that it maintains a current employee handbook that is effective in its design, contents, layout and length.

Practical Example

Acme Industries provides a copy of its handbook to all employees. Information is included in a haphazard manner, and topics are not arranged according to importance. The very critical Equal Employment Opportunity policy appears on page 43 of the 89-page handbook. Because the EEO policy is not distinguished from less important policies and practices, the Acme handbook is ineffective. No amount of training will make it an effective tool for employees, management or HR professionals.

While best practices call for employers to train all employees on the employee handbook, the primary message of the training may differ based on which types of employees are being addressed. Recommended training topics vary depending on the audience.

Employee handbooks training for employees. Employees should receive employee handbooks training that covers the following:

  • How the employer's policies affect job, performance, disciplinary actions, compensation and other terms and conditions of employment. Work hours, compensation, benefits and related issues are of particular concern for new hire training;
  • Employees' expectations regarding policies contained in the handbook, and opportunities for discussion on the employees' understandings of those policies; and
  • Communication policies, such as those regarding open door, antiharassment and overtime.

If nothing else, employees should conclude their employee handbook training knowing that they can speak freely to their supervisors, managers, executives or HR professionals about a broad range of workplace issues.

Employee handbooks training for supervisors and managers. Supervisors and managers should receive training on employee handbooks that covers the following:

  • How to implement and communicate the organization's employment policies and procedures to employees on a regular basis;
  • Supervisors' and managers' respective roles in the organization and in carrying out the employee handbook policies; and
  • Understanding HR's role in the organization. Open lines of communication between supervisors, managers and human resources personnel are one way an organization can address issues when they arise both effectively and in a timely manner.

Employee handbooks training for HR professionals. HR professionals play a critical role in performance and risk management by sharing their knowledge and understanding of employer policies and procedures.

HR should be trained on the training requirements for specific classes of employees and supervisors, which may depend on the organization's status as a public, private, publicly traded or government contracted employer.

HR should ensure that other support personnel, who may be involved from time to time, understand policies and procedures in relation to their own particular jobs in the organization.

Finally, HR professionals should participate in the training for supervisors and managers.

For more information on professional development opportunities for HR, see Professional Development for HR.

Diversity and respect. All employers should provide diversity and respect training to everyone in the organization. The unfortunate reality is that all too often workplace disciplinary and legal actions arise from insensitive things people do and say to each other at work. There are limits to which topics may be discussed at work, and what jokes may be made.

The modern workplace values diversity. The term diversity does not simply mean enacting affirmative action programs. Employers should ensure diversity in the workplace is maintained by acknowledging and celebrating cultural differences. Diversity encompasses differences in:

  • Race;
  • National origin;
  • Sex;
  • Other categories protected by federal or state law; and
  • Generational identity.

Diversity training programs should encourage camaraderie balanced with a healthy respect for others' differences and feelings.

Compliance and ethics. Ethics training is imperative in organizations that have implemented codes of ethics and conflicts of interest policies, especially for publicly traded companies and public employers. For example, a publicly held company facing criminal liability may reduce criminal fines under the Federal Sentencing Guidelines by providing compliance and ethics training that is reasonably designed to reduce corruption or unethical behavior.

An employer should strive to maintain a culture of integrity as many whistleblower and retaliation laws and regulations protect employees for exposing certain kinds of issues (e.g., safety concerns, wage complaints or accounting irregularities) in the workplace. Employees need to fully understand the employer's policies and procedures for reporting such issues, how the reports will be handled and the protection they are entitled to from any adverse employment action for making such reports.

For in-depth coverage of the numerous retaliation protections available at the federal, state and municipal levels, see Whistleblower Protections and Employer Liability Concerns in Employee Management: Federal.

Leadership and communication. Leadership training for employees is primarily intended for those considered high potentials. If an organization has a leadership development program, employees who participate in that program will likely improve their chances of being promoted into management positions. Employers may also choose from a number of available third-party leadership and management development courses.

Business development and marketing. Business development or marketing training for employees in sales positions is often critical to an organization's success. Some organizations find that business development and marketing training provides a higher return on investment (ROI) than training regarding workplace policies and practices. Typically, an organization can measure the productivity of its sales employees by their success. Those employees who receive and participate in sales training are often more successful.

Many organizations providing business development or marketing training should strongly consider combining it with leadership and communication training. Moreover, organizations that are already providing training to employees in business development and sales have the opportunity to present to a captive audience other matters, such as compliance or diversity training.

In conducting a training needs assessment, an organization with employees who are undergoing sales training should determine how to provide training to them on other topics. Employers that provide business development and sales training to their employees, yet ignore training for workplace policies and antiharassment, tend to expose themselves to the criticism that they are only focused upon revenue generation and not integrity.

Training programs for supervisors and managers should focus on employment laws and best management practices. Management training has several purposes:

  • Provide an overview of employment laws. The training program should be designed to ensure that supervisors and managers have, at the very least, a basic understanding of the primary employment laws applicable to them and their employees. Many of the applicable employment laws impose express or implied duties and responsibilities on supervisors. Supervisors need to be aware of those duties and responsibilities and what they need to do to comply with them.
  • Improve success in managing employees. The training program should be designed to provide supervisors with information and guidelines that will help them to become better managers. Many of the same guidelines and practice tips that assist supervisors and managers to protect the organization from exposure to employment law claims will also help them be better managers to their employees.
  • Increase employee productivity and satisfaction. Many studies have shown that perceived or actual violations of employment laws, such as alleged sexual harassment in the workplace, have a direct negative effect on employee productivity, attitude and turnover. Employees who feel that they are being harassed, discriminated against or denied leave may become less productive and contribute to turnover. Supervisors and managers who understand their compliance roles and hold bad actors accountable can significantly improve employee morale, productivity and turnover.
  • Limit the organization's exposure to employment claims and lawsuits. By training managers on the applicable employment laws and their roles in ensuring compliance, an organization can reduce the risk of potential claims and exposure to lawsuits. Supervisors who understand and comply with applicable employment laws are less likely to have employees working for them who assert claims for violations. By giving this type of training to its managers, an organization clearly shows that it values legal compliance as important to its business.

Supervisor training should instill a sense of individual responsibility for compliance with employment laws. Supervisors must understand the potential consequences to both the organization and to them personally if they fail to comply with laws or internal policies.

Workplace legal claims and litigation have both direct and indirect costs. These costs include:

  • Devoting substantial internal resources to defending the claim;
  • Pulling together documents;
  • Identifying witnesses and interviewing them;
  • Providing testimony for depositions and trial;
  • Loss of productive work in assisting with the defense of the claim;
  • Potential damages from the claim; and
  • Attorney fees and expenses.

Typically, a single employee claim takes around two years to resolve. This type of case costs between $75,000-$125,000 in fees and costs to defend.

  • Limit potential personal liability. Some laws, such as the Fair Labor Standards Act (FLSA), make it possible for employees to sue their supervisors or managers in certain circumstances. For example, if a supervisor makes an employee work off-the-clock without compensation, the employee could sue that particular supervisor or manager personally for doing so.

In addition to personal legal liability, by being the subject of a workplace lawsuit, a supervisor could experience career setbacks and disruptions in their personal lives. For example, a supervisor accused of sexual harassment could experience negative consequences in their personal lives based on the allegations alone.

Supervisor training should include information on:

  • Roles and responsibilities;
  • Managing employees;
  • Nondiscrimination and nonharassment;
  • Nonretaliation;
  • Wage and hour;
  • Leave programs, benefits and rights;
  • Staying union-free;
  • Immigration compliance;
  • Workplace violence and bullying prevention;
  • Hiring and interviewing;
  • Performance evaluations;
  • Discipline and discharge; and
  • Privacy.

For training templates, see New Supervisor: How to Be Effective in Your Role - Supervisor Briefing and New Supervisor: Labor and Employment Law - Supervisor Briefing.

Roles and responsibilities. Supervisor training programs should have, as a starting point, a detailed explanation of supervisor roles and responsibilities within the organization. Supervisors must understand that, as legal agents of the organization, supervisors represent the organization. What supervisors do or do not do, say or do not say, know or do not know could expose the organization to legal risks. In terms of employer liability, a low-level field supervisor acting inconsistently with legal requirements is no different than the president of the organization engaging in the same conduct. The law will look at the two as the same.

For more information on employer liability risks based on the bad acts of a supervisor, see Avoiding "Cat's Paw".

Some topics to discuss in training regarding supervisory roles and responsibilities include:

  • Be the eyes and ears of the organization;
  • Educate employees;
  • Ensure compliance;
  • Minimize liability;
  • Manage employee relations;
  • Manage employee expectations; and
  • Always be on.

As agents to the organization and role models to employees, supervisors and managers play a critical role. It is vital that supervisors understand their roles and responsibilities as a part of any training program.

Nondiscrimination and nonharassment. Nondiscrimination and nonharassment training begins with a discussion of legally protected categories and provides explanations of discrimination and harassment. The particular focus of this training is to help supervisors and managers recognize potential acts of discrimination or harassment so that they can:

  • Prevent any form of discrimination or harassment;
  • Procure HR's involvement in addressing any issues that arise; and
  • Address the issues in a timely, compliant manner.

The nondiscrimination and nonharassment training should include an overview of all the protected categories under federal laws. These include:

  • Race;
  • Sex;
  • Color;
  • Religion;
  • National origin or ethnicity;
  • Age over 40;
  • Disability; and
  • Pregnancy.

States may have specific sexual harassment prevention training requirements, such as California. In addition, some states prohibit discrimination on other protected categories or circumstances including:

  • Sexual orientation;
  • Marital status;
  • Family status;
  • Military record; and
  • Gender identity.

Training should include discussion of the different and ordinary employment actions that could result in claims of discrimination or harassment, such as:

  • Hiring;
  • Compensation;
  • Performance reviews;
  • Promotions;
  • Demotions;
  • Disciplinary actions;
  • Reassignments;
  • Changes in job duties; and
  • Benefits or compensation.

Retaliation. An employer may not retaliate against an employee (or even a former employee) who has engaged in certain kinds of protected activity by taking any adverse action against him or her. Supervisor training on retaliation should include a discussion of the various kinds of protected activities in which an employee could engage that might trigger their protections under laws with anti-retaliation provisions.

Laws with anti-retaliation provisions include:

Various laws and regulations at the federal, state and municipal levels include whistleblower protections regarding the environment, safety and health concerns, and financial reporting. Some examples of protected activity include:

  • Complaining to management, HR or anyone else at the organization about discrimination or harassment;
  • Testifying in a legal proceeding;
  • Giving information to any attorney, government investigator or co-worker about allegations at the organization;
  • Filing a lawsuit or an administrative charge against an organization; and
  • Expressing an intent to complain to management or to file a claim.

Courts have found that the following actions can be considered adverse for the purpose of determining whether the alleged conduct constitutes unlawful retaliation:

  • Transfer of assignment, or reassignment;
  • Termination;
  • Demotion;
  • Suspension with pay;
  • Failure to promote;
  • Unjustified negative performance evaluations;
  • Alteration of required qualifications for a particular job applicant;
  • Refusal to process a grievance;
  • Selective strict enforcement of seldom enforced policies;
  • Providing negative references to prospective employers; and
  • Coercing other employees to harass the complaining employee.

Retaliation often occurs directly after a protected activity. However, retaliation may occur months after the employee engages in protected activity. An employee can successfully claim retaliation by showing a causal link between the protected activity and the adverse employment action, even if the illegal retaliation occurs months after the protected conduct.

Training for supervisors in avoiding retaliation claims should focus on ensuring the organization can produce proof that the adverse employment action had nothing to do with the employee's protected activity, regardless of the timing between the two. The training should focus on documentation practices, including working closely with HR to ensure the maintenance of well-documented personnel files.

Supervisors often forgo writing up employees for poor performance or documenting disciplinary conversations with employees in order to avoid difficult conversations. However, if no documentation regarding poor performance exists until after the employee engages in some protected activity, the documentation looks suspicious.

Guidelines for maintaining sufficient documentation include:

  • Routinely performing written evaluations and discussing those evaluations with employees;
  • Documenting problems as they occur; and
  • Forwarding all documentation to HR so that personnel files can be kept current. Supervisors may keep their own files on employees.

Supervisor training regarding retaliation should also focus on ensuring supervisors know what to do when an employee complains about discrimination, harassment, or engages in other protected activities. Supervisors should immediately forward all employee complaints, objections or other possibly protected activity to HR. HR professionals are trained in handling workplace investigations and can work with the supervisor or manager, as appropriate, to ensure a proper investigation and response by the employer.

In addition, supervisors and managers should know what to do if an employee makes a workplace complaint, but asks for anonymity. Supervisors should assure the employee that:

  • The information will be handled with discretion;
  • The information will be shared only with appropriate HR and management personnel; and
  • The employee will not suffer any kind of retaliation for bringing forth the information.

However, no supervisor should ever agree to maintain strict confidentiality of any employee's workplace complaint. Once an employee comes forth with information, the organization has a legal obligation to handle it appropriately. In addition, limiting employee communications by enforcing confidentiality could result in a violation of various laws and regulations, including the National Labor Relations Act and Securities and Exchange Act regulations.

Wage and hour. Supervisors and managers play a very important role in ensuring that all nonexempt employees are paid for all hours worked. Under the Fair Labor Standards Act (FLSA), nonexempt employees are entitled to receive minimum wage. In addition, the FLSA provides for an overtime premium for all time nonexempt employees work over 40 hours in a particular workweek.

Employers must ensure that they have a timekeeping system showing all nonexempt employees are lawfully paid for all the time that they work. In addition to having sufficient timekeeping documents, such as timesheets and payroll records, employers should train supervisors and managers on how the system works and what the legal requirements are for paying nonexempt employees for all the time they work. Special attention should be paid to ensuring no supervisor or manager ever makes or allows a nonexempt employee to work off-the-clock without pay.

Trends in employment law litigation show a large increase in claims alleging that employers failed to pay nonexempt employees for all the hours worked. This results in employer liability for:

  • Back pay;
  • Liquidated damages, i.e., an additional amount equal to back pay damages;
  • Attorney fees for both sides;
  • Costs; and the
  • Indirect cost of responding to the allegations.

Wage and hour training should also include the organization's overtime and timekeeping policies and paperwork. Supervisors and managers must be the immediate, frontline resource for nonexempt employees in completing their timesheets and other paperwork necessary to process payroll. One of the most important components of an effective timekeeping system is the timesheet, whether maintained digitally or physically. Supervisors and managers should then ensure that nonexempt employees are recording all of the time that they work, including:

  • Time in;
  • Time out for unpaid breaks;
  • Time back from unpaid breaks; and an
  • End time for each day.

For the week, the timesheet should show the total amount of time worked by the employee, broken down by regular time and any overtime. Ideally, the system should have some way for the employee to sign the timesheet or digitally indicate his or her agreement that:

  • All of the time worked has been recorded;
  • The employee is owed no compensation for any additional time; and
  • The supervisor signs his approval on the timesheet.

If a supervisor ever receives any report or complaint from an employee regarding his or her timesheet or regarding time worked, the supervisor should immediately report the complaint to HR for immediate handling.

Another type of claim filed under the FLSA involves employee classification (i.e., whether an employee is exempt or nonexempt). Under the FLSA, certain types of employees who fit within exemptions are not entitled to minimum wage or overtime compensation. The primary exemptions include:

Typically, supervisors and managers are not involved in an organization's decision regarding whether to treat a particular position as exempt or nonexempt. Often, a supervisor's own exemption may be questionable. An employer should ensure that misclassifications are avoided in order to minimize liability.

Leave programs, benefits and rights. Depending on an organization's size and jurisdiction, various forms of leave or time off from work may be available to employees. Supervisor training in this area should focus on a supervisor's roles and responsibilities in communicating any issues employees raise to HR or senior management. The training should not require supervisors to manage leaves or time off programs. That should be handled by HR personnel. In smaller organizations, senior management should have that responsibility.

Supervisors and managers should be trained on issue spotting regarding leaves. Supervisors are the eyes and ears of HR and senior management regarding the operation of various leave policies. Frontline supervisors are in the best position to know whether employees merit consideration for a particular kind of leave.

Family and Medical Leave Act. The Family and Medical Leave Act of 1993 (FMLA) provides eligible employees working for a covered employer up to 12 weeks of unpaid leave in a 12-month period. FMLA leave may be used as a block, intermittently or as part of a reduced schedule.

The FMLA only applies to certain absences caused by serious health conditions of employees or their spouses, children or parents. The FMLA is not intended to cover routine, less serious injuries or illnesses.

Unlike Title VII and other federal discrimination statutes, and as with the FLSA, as a general rule, there is potential for a supervisor's personal liability under the FMLA.

An employer's obligations under the FMLA begin once an employee places the employer on notice that the absence may qualify under the FMLA. The most important role supervisors and managers fill regarding the FMLA is recognizing when absences may qualify for FMLA consideration.

Supervisors and managers should understand the following:

  • An employee does not have to specifically request FMLA or family leave. An employee just has to provide enough information to make it possible that he or she might qualify for FMLA leave.
  • A supervisor need not always ask a sick employee questions to determine if his or her sickness qualifies under the FMLA.
  • All supervisors and managers are the employer. Anything any supervisor knows about an employee and his or her need to be absent for a potentially serious medical condition covered under the FMLA may expose the employer to liability.
  • A supervisor's key responsibility under the FMLA is the passing on of information to HR or senior management. Some FMLA buzzwords that may suggest to a supervisor that an employee might qualify for FMLA leave include:
    • Conditions such as diabetes, migraine headaches, depression, stroke, seizure, asthma, surgery, or heart attack;
    • Hospitalization of an employee or an employee's spouse, child or parents;
    • Qualifying exigencies for active duty leave or for caregiver leave related to military leave;
    • An employee stating he or she has to care for a sick father, mother, spouse or child; and
    • Absences of more than three days.

The FMLA prohibits an employer from:

  • Interfering with an employee's right to take the leave; and
  • Retaliating against an employee who has taken leave.

FMLA training for supervisors should include the following key points:

  • The FMLA does not excuse poor performance;
  • An employer cannot take into account an employee's FMLA absences when reviewing employee performance, promotions, demotions, raises, firings or other employment actions; and
  • When an employee returns from FMLA leave, he or she must be returned to the same job or an equivalent job with the same pay, benefits and job duties, with only very limited exceptions that should be reviewed by HR or senior management.

For more specific information on the FMLA, consult the Employment Law Manual's FMLA section and a Legal Insight exploring the law's interaction with other employee protections.

Other leaves. Training on additional leaves mandated by federal or state law should be provided to supervisors. These leaves include:

Maintaining a union-free workplace. Supervisors play a major role in keeping a workplace union-free. The National Labor Relations Act (NLRA) provides employees the right to self-organize, or to form, join or assist labor organizations in order to engage in collective bargaining. The NLRA also provides employees the right not to engage in these activities.

Under the NLRA, supervisors are designated as agents of the employer. This designation has several implications, including:

  • Everything said to a supervisor or by a supervisor may be attributable to the employer;
  • Supervisors cannot engage in any union activity. Rather, they must actively cooperate with the employer's position with respect to unions; and
  • Union membership and supervisory status are fundamentally incompatible.

Supervisor and manager training on remaining union free need not be overly complicated. Typically, the conduct of supervisors and managers with respect to potential union organizing campaigns may be summarized by the acronyms TIPS and FOE.

Specifically, supervisors cannot engage in:

  • Threatening behavior;
  • Interrogations;
  • Making promises; or
  • Spying.

On the other hand, supervisors may discuss:

  • Facts;
  • Opinions; and
  • Experiences or examples.

Supervisors and managers should be trained on identifying early warning signs of union activity. Potential warning signs include:

  • Strangers in and around parking lots or entrances to facilities;
  • Reports of contacts at home;
  • Group meetings off premises;
  • Groups of employees acting uneasily or who stop talking when supervisors approach;
  • Increased complaints;
  • Changing nature of complaints;
  • Increased questions about wages, benefits and work policies;
  • Changes in employee relationships, such as patterns of new friends or new enemies;
  • Emergence of new leaders;
  • Increase in union-related rumors and gossip;
  • Requests for lists of employee's names and home addresses; and
  • Former employees, especially terminated employees, loitering on or near the employer's premises.

Other training topics for supervisors and managers for remaining union-free include:

  • The benefits of remaining union-free from three perspectives: the organization as a whole, supervisors, and employees;
  • Why employees turn to unions;
  • The state of union organizing nationally and locally;
  • Traditional union-organizing techniques;
  • The power of positive employee relations in remaining union-free;
  • How union elections work;
  • How unions can organize a workplace without an election; and
  • Legal updates and changes in the law.

Finally, supervisor training on staying union-free should include thorough discussions regarding internal policies that protect union-free status:

Immigration compliance. Compliance with federal and state immigration laws has become increasingly complex. The federal government has failed to implement statutory reform and many states have passed their own laws, which may be challenged in federal court.

Generally, an organization should expect HR to be well trained in the proper completion of the Form I-9 and overall immigration law compliance, including the E-Verify system, if applicable.

Supervisors should identify potential issues regarding immigration compliance. When a supervisor aware, directly or indirectly, that an employee's immigration status is in doubt, that supervisor should report the information immediately to HR or senior management for proper handling.

A prudent supervisor would not engage in direct discussions with the employee regarding his or her status. Handling an immigration concern without proper counsel from HR, senior management or inside or outside counsel could result in an employee claiming discrimination based on national origin or other protections under federal or state law.

Workplace violence and bullying. Research on workplace violence and bullying has shown warning signs almost always precede acts of violence. In addition, most perpetrators of violent acts fit one or more profiles.

Managers and supervisors should be trained to recognize these profiles and warning signs, enabling them to intervene or to seek assistance before problems escalate. Managers and supervisors should receive training in techniques and procedures for safe and appropriate responses to threatening situations, specifically:

  • Risk factors and warning signs of violence;
  • Liabilities and costs to an employer;
  • Methods of recognizing potentially violent employees and customers or other third parties;
  • Effective intervention and diffusing techniques;
  • Procedures for responding to incidents of workplace bullying or violence and other crises, such as an active shooter event;
  • Types and victims of workplace violence;
  • Perpetrator profiles;
  • Managing and terminating difficult employees;
  • Managing difficult customers, clients or other third parties;
  • Threat recognition and assessment; and
  • Responses to threats or acts involving imminent and nonimminent injury.

Supervisors and managers constitute the organization's frontline source of information regarding risks and potential liability. Supervisors must understand the impact that workplace bullying and violence can have on any organization. Supervisors and managers should not be expected to be psychologists or mental health professionals, but they should be trained, as with many other issues, in how to spot issues and how to remedy the situation.

Hiring and interviewing. A supervisor's primary goal in hiring new employees should be to identify and select candidates with the education, work experience, skills, abilities and qualifications that best match the position for which they are being hired, as well as the business needs of the organization.

Supervisors should aspire to making good hiring decisions without exposing the organization to liability related to the selection process. For example, hiring claims may arise when a candidate is rejected for a position and claims that the rejection was tied to a protected characteristic or activity.

In order to substantially decrease the likelihood of a potential claim:

  • Keep the hiring process focused on the merits of the candidates;
  • Refrain from asking potentially problematic questions; and
  • Articulate and document why one candidate was selected over another.

Interviewing. When interviewing candidates for a position, the supervisor's questioning should be focused on the candidate's education, work experience, skills and abilities along with the particulars of the job for which the person is being interviewed.

Best practices in interviewing dictate that a supervisor have a set of predetermined questions to be used for each position for which the supervisor is hiring. For each candidate, the supervisor should use a new, clean sheet (or sheets) of these questions, and write down answers as the interview proceeds. This will serve several purposes:

  • The act of preparing the list of questions necessitates having the supervisor think through in advance what kinds of questions will help him or her get the necessary information from the candidates for this position;
  • The documentation will reflect that all the candidates for the position were subjected to a similar set of queries; and
  • It will create a record of how each candidate's responses in order to substantiate any decision-making based on those responses.

Supervisors should refrain from asking questions that are illegal or otherwise may expose the organization to potential claims. Examples of some of these types of questions include those regarding:

  • Disability issues;
  • Marital status or plans;
  • Children or plans for children;
  • Birth date or age;
  • Religion; and
  • National origin or ethnicity.

For some of these subjects, like disability, merely asking a question could be inappropriate and unlawful. For other subjects, although the questions may not be expressly illegal, they may expose the organization to liability. For example, an applicant may assume that the supervisor did not select him or her because of information provided in response to an improper question.

Practical Example

Margaret interviews for a sales position with Acme Widgets. During her interview, Joe, the sales director, deviates from his question sheet and asks Margaret whether she has had any children. When Margaret answered that she did not have children, Joe asked her about her plans to have children. Margaret replied that she was, in fact, pregnant. Margaret is not selected for the position. Margaret concludes that her pregnancy was the primary reason that she was not hired.

Selection and offer. A supervisor's goal should be to select the applicant who is best qualified for the position and who is best able to meet the needs of the position. Best practices in making employment selections dictate that the supervisor prepare a document that explains the following:

  • Why a particular applicant was chosen;
  • Why the supervisor believed he or she was the best qualified, using concrete examples if possible;
  • Why other candidates were not as well qualified; and

The document should never make reference to a candidate's protected characteristics.

When making an offer of employment, the supervisor should include the basics, including:

  • Position;
  • Location;
  • Rate of pay;
  • Any benefits;
  • Scheduling issues; and
  • Identification of the supervisor.

The supervisor should absolutely refrain from making any unnecessary promises that might lead the candidate to believe the job is something other than what it is. For example, promises should never be made about the potential permanency of the job. Sometimes candidates try to argue that those promises constituted a contract of long- term employment, to which the supervisor may not be authorized by the employer to enter.

For more information on best practices regarding verbal and written employment offers, see Employment Offer: Federal.

Performance evaluations. Many organizations provide employees with annual performance evaluations. Some conduct evaluations more often. The purpose of these formal evaluations is to:

  • Provide employees with helpful feedback regarding what they are doing well;
  • Show employees where they need improvement; and
  • Provide documentation of performance goals and issues.

Frequently used performance evaluation forms include:

  • Ratings with multiple choice components, e.g., needs improvement, meets expectations or exceeds expectations;
  • Opportunities to include comments; and
  • Supporting information.

Supervisors should be encouraged to provide supporting information for the scores by documenting concrete examples that reflect a score is warranted.

Many supervisors are uncomfortable with their role in evaluating employees because it could result in a difficult conversation. First, it takes time and real effort to sit down and honestly evaluate performance. For supervisors who are already very busy, taking the time to give a complete and honest evaluation poses a difficult challenge. Second, preparing an honest evaluation that identifies an employee's deficiencies is difficult. Many people shy away from providing this kind of candid assessment. Finally, some supervisors may harbor a fear that their subordinate employees will treat them differently if they provide truthful feedback that is negative.

Despite some of these natural tendencies, it is important for supervisors to adequately conduct performance evaluations. Failing to be completely honest in a performance evaluation may have consequences, including:

  • Deserving employees may not be properly notified of good performance. Failure to recognize top performers may result in discouraging them or in causing them to doubt their abilities;
  • Poorly performing employees who are not properly notified of their performance or conduct deficiencies may not realize that they have a problem, or may not understand that they need to improve. Performance reviews provide an opportunity to clarify the supervisor's expectations and to notify underperforming employees of their deficient performance;
  • The organization may have a record that does not adequately document the employee's performance. This becomes a particular problem where an employee claims that later discipline or termination was the result of discrimination, retaliation or was otherwise improper. If the discipline or termination was for performance or conduct issues that were not identified in a performance evaluation, but were a potential problem at the time of the evaluation, the validity of those issues is put into question; and
  • Supervisors may have engaged in grade inflation. A performance evaluation falsely reflecting that an underperforming employee was meeting expectations or otherwise performing well may later support an employee's claim of wrongful discharge. Similarly, a performance evaluation that fails to reflect a serious performance or conduct issue for which the employee ultimately was fired may be used to support a claim against the employer.

Conducting the evaluation. Supervisors conducting the evaluation should:

  • Be honest and candid;
  • Identify positives where possible, without glossing over the truth;
  • Provide as much detail as possible to justify each rating. Supervisors should use concrete examples to explain why a particular score was given;
  • Avoid generalities. Simply stating that an employee has "attendance issues" is not very helpful. However, stating that the employee has been absent for 10 shifts over the past year, and is consistently late for each shift by 10 to 15 minutes, is much more useful both for the employee and for the record;
  • Avoid sarcasm or inappropriate humor. A performance evaluation is serious and should be treated as such;
  • Not manufacture or overemphasize positives simply to make the employee feel better;
  • Not make direct comparisons to other employees in an evaluation; and
  • Not make any references to the employee's protected characteristics or protected activity.

For more information on conducting performance evaluations, see Performance Appraisals in the Employment Law Manual and Performance Management in the Best Practice Manual.

Discipline and discharge. Most employee discipline seeks to:

  • Reprimand the employee for the particular conduct at issue;
  • Encourage the employee to improve performance; and
  • Encourage the employee to refrain from engaging in the same misconduct or poor performance in the future.

Employee discipline may take several forms, including:

  • Verbal counseling;
  • Written counseling, including final warning;
  • Suspension;
  • Demotion;
  • Pay cut; and
  • Firing.

Deciding whether to impose discipline. Before imposing discipline, supervisors should obtain all the necessary facts. Some disciplinary cases warrant the imposition of immediate, short term measures. For example, an employee may be sent home before the end of a shift for physically fighting with another employee. Unless immediate disciplinary action is required, employers should engage in further consideration and, perhaps, an internal investigation. Supervisors should then determine the adequate level of discipline.

Supervisors may engage in some of the following activities before imposing discipline.

  • Where appropriate, interview witnesses and get statements. Supervisors should use discretion, speak to all potential witnesses to the conduct and collect as much information as possible;
  • Pull together and preserve relevant documents;
  • Identify and review the applicable work rule or policy;
  • Allow the employee to tell his or her side of the story. An employee who is not given a chance to communicate before being disciplined may perceive unfair treatment; and
  • Confer with HR. Although not every disciplinary action requires HR consultation, if the supervisor is in any doubt, HR should be consulted.

Appropriate level of discipline. Once the supervisor has determined that discipline is warranted, the supervisor should determine the appropriate level of discipline. Different types of performance and conduct issues require differing levels of discipline.

Supervisors should consider:

  • The importance of the policy or rule at issue;
  • The severity of the conduct and potential harm arising from it;
  • The attitude, performance level and work history of the employee to be disciplined;
  • Whether this employee has been disciplined in the past, and whether the discipline involved the type of conduct at issue;
  • What action the supervisor has taken against other employees who have engaged in similar conduct under similar circumstances; and
  • The consistency and uniformity of taking a particular action.

Documentation of discipline. Best practices dictate documenting all forms of discipline in writing, even verbal warnings. Documenting verbal counseling minimizes employer liability by creating a record that the verbal counseling occurred.

During supervisor training sessions, the trainer should distribute copies of the employer's disciplinary action forms and review each section.

At a minimum, disciplinary documentation should include the following:

  • Name of the employee being disciplined;
  • Date of the disciplinary action;
  • Identification of the applicable rules or policies;
  • Summary of the facts that resulted in the discipline, including the dates of any violations or conduct at issue;
  • Identification of the level of discipline imposed, e.g., warning or suspension;
  • Consequences of future misconduct violations (e.g., "any further violation of the company's cash handling policy within the next year will result in termination");
  • Dated signature of the supervisor; and
  • Identification of any prior discipline imposed on the employee, with corresponding dates.

Employers should file any supporting documentation for the disciplinary action, such as witness statements or cash register receipts, with a copy of the disciplinary documentation. Best practices dictate including supporting documentation with the copy of the disciplinary action in a separate file, not the employee's personnel file.

Meeting with the employee. Employers should discipline the employee in the context of a private meeting. Meetings should not be held in common areas, such as the kitchen or dining room, where other employees and guests can see or hear what is occurring

If possible, supervisors should have a witness present for the meeting. An employer should identify all persons attending the disciplinary meeting on the disciplinary documentation.

Disciplinary meetings should be kept short and to the point. Employers should allow the employee a chance to tell his or her side of the story before imposing the discipline.

Supervisors should review the details of the documentation with the employee and request that the employee sign an acknowledgement of receipt of the documentation. The acknowledgment need not state that the employee agrees with the discipline. If the employee refuses to sign the acknowledgement, then the manager should make a note and include the date. If there is a witness present, the supervisor should have the witness sign and date the refusal note as well.

The employee should also be given an opportunity to provide a written response. If possible, the supervisor should try to end the meeting on a positive note, stating his or her confidence that the conduct or performance will improve. Supervisors should reiterate that one of the purposes of discipline is to effectuate positive change in the employee.

Termination. If the appropriate disciplinary action results in the employee's termination, then the goal is no longer to effectuate positive change in the employee. A termination decision announces that the employee cannot or will not change, or that the conduct is too serious to permit the employee to continue working for the organization.

The same guidelines that apply to imposing other types of discipline apply to the decision to fire an employee. Supervisors must ensure that policies and practices are applied consistently and effectively in a termination decision because a discharged employee is more likely to file a claim.

Supervisors should be trained on the required approvals for deciding to terminate an employee. Adequately following an approval process ensures the correct course of disciplinary action under the circumstances.

During a meeting in which an employee is advised of a termination decision, supervisors should follow the above-referenced meeting guidelines, as well as the following:

  • Never tell the employee that he or she is being fired for any reason other than the real reason. For example, some supervisors may prefer to tell the employee that they are being laid off even if the employee is being terminated for a policy violation. Employers should not communicate a false story that may result in potential liability for the supervisor and the organization;
  • If applicable, the supervisor should obtain keys and other employer property from the departing employee before he or she leaves, and remind the employee of any continuing obligations under a nondisclosure agreement, if applicable; and
  • If applicable, supervisors should provide information regarding any benefits for terminated employees.

For in-depth information on employee discipline, see Employee Discipline section in the Employment Law Manual, Handling Discipline in the Best Practice Manual and our interactive workflow Discipline an Employee Using Progressive Discipline.

Managing employees. Supervisors will succeed in protecting the organization from employment-related claims by treating employees fairly. In order to implement best practices in employee management, supervisors should:

  • Periodically review and familiarize themselves with all internal policies. Periodic review provides supervisors with an opportunity to assess the effectiveness of existing policies, to raise concerns or to identify areas ripe for updating;
  • Ensure employees have received copies of relevant internal policies. All employees should have access to a copy of the most current employee handbook. Supervisors should coordinate with HR to ensure that all work areas have legally required posters;
  • Strive to improve communications with subordinates;
  • Ensure that their subordinates have fair notice of employer expectations as to performance and conduct;
  • Make employment decisions based on the merits of the situation, not on other factors such as protected characteristics, protected activities or other factors unrelated to the merits;
  • Strive for consistency in handling employment issues. Employees who have engaged in similar conduct should be administered a similar result. Supervisors should document instances where disparate treatment was appropriate, and articulate the reasons for the differentiation;
  • View HR as a resource and consult HR frequently;
  • Ensure documentation contains the necessary information and excludes extraneous information; and
  • Retain employee records. Supervisors should forward all personnel documents according to organization policy, although the supervisor may keep a copy for his or her files.

Privacy. Employees have very limited privacy rights at work, especially when using employer resources, such as computers, laptops and other mobile devices.

However, employees do have statutory rights to privacy regarding their medical records under both the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA). Supervisors and managers should be trained to respect workplace privacy, and to ensure that no employment decisions are based on such confidential information.

Training Methods

An employer may choose from a variety of options when selecting training methods for employees.

Internal or External

Employers enjoy a wide variety of resources for training directed at employees, supervisors, managers, HR professionals and executives. Typically those resources can be categorized as either:

  • Internal, including training provided by HR or professionals within the organization; or
  • External, including training provided by law firms or attorneys, consultants or professional trainers.

Cost often drives the decision on whether to conduct training internally or externally. However, best practices dictate that an organization's decision should be driven by the training's overall value to internal compliance strategy. Providing inexpensive training programs may lead to claims of willful violations of law if supervisors were given minimal, but not effective, training.

Organizations must also weigh the advantages and disadvantages of internal and external training resources. Internal trainers may personally know the employees, supervisors or managers that are participating in the training. This personal knowledge foundation could be useful in delivering effective messages.

On the other hand, external training resources, such as law firms, can often provide expertise that surpasses internal resource capabilities. Many organizations choose a combination of internal and external training resources in their overall training and development strategy.

Format

Whether an organization chooses to conduct internal training, use attorneys or employ consultants, a variety of training formats are generally available, including:

  • Live. Training delivered live and in-person is extremely effective. Live training sessions offer employees the opportunity to be personally engaged with a skilled professional, to ask questions, to make comments and to offer challenges. Live training offers the greatest variety of delivery, methodologies and feedback;
  • Online webcasts. Live web-based broadcasts, or webcasts, allow participants to simultaneously interact in a live presentation while sitting in their own office, or in any other location with internet and telephone access. Webcasts are typically multimedia enhanced and interactive, sometimes featuring live streaming video and interactive quizzes;
  • Webinars. Live webinars provide an effective format for training many people in different locations simultaneously, and at a reasonable cost. Webinars allow organizations to quickly and effectively communicate with employees on key developments, as well as effectively train supervisors and managers on key labor and employment law topics;
  • Prerecorded training sessions. Training programs and sessions that were conducted via webcasts, webinars or live may be recorded for replay at a later time. This can be an effective format, not only for employees who may have missed the live session, but also for a future refresher opportunity; and
  • Customized training. Many organizations seek to develop and implement a customized approach for their organizations using multiple formats.

Frequency

The most effective training programs usually occur annually. Best practices dictate training employees, supervisors, managers, HR professionals and executives at least annually on required or recommended topics. Training could occur more frequently if there are legal or workplace developments warranting refresher sessions or policy updates. For example, many organizations would use updates to their employee handbook as an opportunity to train everyone on the appropriate use of the handbook, as well as include other topics that may not have been addressed for some time.

Training Program Audits

Employers should ensure the proper documentation and recordkeeping of all types of training and development programs. Organizations should maintain the following types of documents to show compliance information:

  • Data reflecting attendees. All training should have a sign-in sheet for participants of in-person training, or a printout of attendees for online training programs. Who attended which training program constitutes a critical piece of information for organizations to maintain for future reference;
  • Documents ensuring completion. With some kinds of training formats, e.g., online, an organization must show the recipients of the training actually completed the training. Employers may accomplish this in several ways, including online checklists and certificates, as well as tests at the end of training sessions;
  • Trainers and certifications of documents. Organizations should also maintain records from trainers, whether internal or external, regarding content, outline and most recent revision dates on the training materials provided to attendees, regardless of format; and
  • Documentation and personnel files. All employees, supervisors, managers, executives and HR professionals should have information in their personnel files that reflects each and every training session in which they have participated. This information should include the title, content and length for each training program.

Future Developments

There are no developments at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

OSHA.gov

DOLETA Workforce Innovation and Opportunity Act Site

OFCCP

State Requirements

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