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Legal Clinic

Guidelines for the New Year

Dealing with shortened workweeks and devising best practices for preventing workplace discrimination -- policies, enforcement and performance management -- are the topics addressed this month.

Friday, December 28, 2007
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The holiday season is drawing to a close, leaving us to sort through the employment issues that inevitably arise at this time of year.

There are the obvious problems related to misbehavior at holiday parties, but those have not prompted any recent inquiries and we can leave them to the side.

Rather, this column focuses on an issue related to truncated workweeks, and closes with guidelines for preventing workplace discrimination -- make them part of your resolutions for the New Year.

Question: If a salaried (exempt) employee has worked over 40 hours in four days, are they required to use vacation or paid-time off for the fifth day if they take it off?

Answer: It depends. In general, salaried, exempt employees are expected to work a five-day workweek, and their hours may extend beyond a 40-hour week. Thus, the mere fact that an exempt employee had worked 40 hours by day four of the week would not excuse the employee from reporting to work on the fifth day. In this circumstance, the employer could require the employee to apply vacation or paid time off to be compensated for taking off a full day during the workweek.

Some employees may have a compressed workweek as a flexible-work arrangement. With a compressed workweek, an employee works less than a full workweek (usually four days) but logs longer hours each of those days to compress the workweek into a shorter period of time. An employee who has made this arrangement should be compensated at their standard salary, without using vacation or paid-time off on the days the employee is scheduled to be off.

Question: In a diverse, largely minority workforce, how can we best make sure that one minority group doesn't discriminate against another group? Some black employees have complained that they are written up by their supervisors for taking a day or two off for family emergencies, saying that Hispanics and Filipinos miss work more often without the threat of write-ups or disciplinary action.

Answer: There are a number of recommended best practices to prevent workplace discrimination. The three that I would put at the top of the list are policies, enforcement and performance management.

Policies: Employers should develop, distribute and train their workforce, particularly managers, on policies that ensure equal employment opportunity and that prohibit workplace discrimination (and harassment). It is also recommended that employers include a complaint procedure in their policies, as well as protection against retaliation, to provide a means for employees to advise management of inappropriate workplace conduct.

Enforcement: A good policy is of little use unless management adheres to and applies its provisions. Enforcement includes promptly and effectively responding to complaints of inappropriate conduct. It also includes proactively addressing inappropriate conduct that is observed by management, even if none of the employees present lodge a complaint.

Performance management: Employees should be evaluated based on their work performance (not their demographics), recognized for accomplishments and held accountable for their shortcomings. I regularly counsel clients that an end-of-year performance review or bonus award should not come as a surprise to an employee. Rather, managers should be meeting with their staff throughout the year and counseling employees who have been failing to meet performance expectations, have presented tardiness or attendance issues, or have demonstrated other inappropriate conduct.

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The specific example you present of potentially disparate treatment is actually one that is objectively verifiable. Assuming accurate attendance records are maintained, you should be able to conduct an audit to identify whether black employees are, in fact, being disciplined more severely than their co-workers for these attendance infractions.

In the event you find a disparity in the treatment of the black employees, you should review the challenged disciplinary action with the supervisors before making a final determination. It may be that the employees claiming discrimination have been late or absent more frequently than their co-workers or under more suspicious circumstances (for example in a pattern of three-day weekends) and that this was the reason their absences for "family emergencies" resulted in disciplinary action. Or it may be that a supervisor was playing favorites based on factors other than race and did not appreciate the consequences of his/her actions.

Appropriate disciplinary action is best determined following the completion of a thorough investigation. It may also be advisable to consult local counsel for guidance in conducting the investigation and determining the appropriate response.

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