Imagine the following headline: “The Jury Will Decide Whether a ‘Lead Employee’ is Really a Supervisor.” Though the headline is not real, the underlying message can be a reality for business leaders. In an actual lawsuit, for example, an hourly paid “lead employee” allegedly sexually harassed a co-worker. The co-worker sued the employer, claiming the company was strictly liable for the harassment. The company responded it could not be strictly liable for damages because the “lead employee” was not a true supervisor, and the question was ultimately put to the jury.
As the pressure to “flatten your organization” and “get rid of your indirect headcount” continues, business leaders should keep in mind that the company can be held to a stricter standard of liability for harassment by supervisors. Any employer who has faced the specter of a sexual harassment lawsuit is well aware that the company does not want the decision regarding who is a “supervisor” to rest in the hands of a jury.
Employers face significant liability when an employee is harassed on account of his or her race, color, sex, religion, national origin, age, disability, and even genetic information. If an employee is harassed by a co-worker, the employer is only liable if it knew or should have known about the harassment and did not take reasonable steps to correct the problem. Where the harasser is a supervisor, however, the company will be strictly liable unless it can meet certain requirements for an affirmative defense. If the harassment resulted in a “tangible employment action,” such as hiring, firing, promotion, demotion, or changes in work assignments, the employer has no defense.
What does this mean for you and your organization? It means corporate executives should determine who is and is not a first-line supervisor in the organization when preparing their staffing plans for a new budget year. This determination is based on an individual’s job function and not his or her title. To further complicate matters, there is no specific definition of the term “supervisor” in federal statutes, and courts often apply slightly different standards. According to the Equal Employment Opportunity Commission (EEOC), the federal agency charged with interpreting the nation’s anti-discrimination laws, however, an individual is a supervisor if he or she “has authority to undertake or recommend tangible employment decisions affecting the employee; or the individual has authority to direct the employee’s daily work activities.” EEOC, Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors.
Here is some good news: You have the ability to clarify who is a supervisor in your company before a court—or jury—considers the question. Because the question of who is a supervisor turns on what the individual actually does for the organization, the law does not require that you overhaul your compensation program. The law does not care whether a supervisor is paid on a salaried or hourly basis. The law does not worry about whether a supervisor receives overtime pay. The law does not care if the “person in charge” is called a supervisor, lead, coach, manager, director, or any other title.
What does the law care about? Here is a five-step analysis to help you determine who is a supervisor and ensure you have a strong, accountable first-line management team:
Decide whether you want a position to be a truly supervisory position. If so, then ensure that position is vested with independent judgment to exercise authority over other employees.
To help you conduct this fifth step, answer the following questions:
Once you determine which positions are supervisory, you must ensure that all superiors receive training regarding the company’s anti-harassment policy and understand their responsibilities under the law. It is also important to review your company’s anti-harassment policy and make sure the policy provides clear guidance to employees regarding how to report harassment.
As unemployment levels remain high, employers are more likely to see harassment and other discrimination claims brought by laid-off employees. For your organization to attain its business goals, you must have a strong team of first-line supervisors who are aware of their responsibilities to the company and under the law. By clearly identifying who in your company is a supervisor under the law, you can ensure roles and responsibilities are fulfilled to your expectations.
Chris Antone has represented management exclusively in labor and employment law matters for over three decades and in the Dallas Office of Jackson Lewis LLP. Antone can be reached at email@example.com.
#TexasCEO's 10 Most Read Articles Of 2017 #2 The Changing Of The Guard: San Antonio’s #Economic #Development Future texasceomagazine.com/features… @SanAntonioEDF #1 Deep Roots In The Heart Of #Texas: The Kaspar Family’s #Holistic Approach To #Ranching texasceomagazine.com/features…
#TexasCEO's 10 Most Read Articles Of 2017 #4 @Jim_nyquist: At The Inflection Point Of #IIoT texasceomagazine.com/features… #3 Building #Innovation: @turner_talk Builds On Empowering Individuals texasceomagazine.com/features… @Turner_DAL @TurnerSouthTX #MiddleMarket #entrepreneurs
#TexasCEO's 10 Most Read Articles Of 2017 #6 The Cilantro Diaries: #Business Lessons From The Most Unlikely Places texasceomagazine.com/book-rev… @lgomez123 #5 From #Franchisee To #Franchisor: How Gordon Logan Built @SportClips texasceomagazine.com/features… #MiddleMarket #entrepreneurs
#TexasCEO's 10 Most Read Articles Of 2017 #8 #Mexico Is The New #China by @DrPippaM texasceomagazine.com/departme… #7 Growing The Next Generation Of Texas #CEOs: #CEO-to-CEO #Mentoring texasceomagazine.com/features… #Texas #MiddleMarket #business #entrepreneurs