An airport manager whose job entailed conducting a survey of the airport, including walking the perimeter and sometimes going up on roofs, became wheelchair bound over the course of his seven-year employment. When the airport operator took issue with how this effected the execution of his job, there was a problem: the man had no official job description.
When the operator approached the manager with a job description after he was already wheelchair bound, the man did not want to sign it.
In a discrimination claim thereafter, “without that written job description signed by that employee, it was a hard case to defend,” said Peckar & Abramson PC Partner Kevin O’Connor, who represented the airport operator and co-chairs his firm’s labor and employment department. “Had the employer had a very clear job description from the inception, the case might not even have gotten off the ground.”
O’Connor was joined by Olender Feldman LLP Partner and litigator Howard Matalon and Susan Carrero, president and director of human resources for 7 Star HR, a Division of Triton Benefits & HR Solutions, for NJBIZ’s panel on workplace discrimination at the DoubleTree Hotel in Somerset on Oct. 29.
Cristina Amyot, president and chief executive of Tinton Falls-based human resources consulting firm EnformHR, moderated the panel.
New Jersey’s Law Against Discrimination prohibits employment discrimination based on race, creed, color, national origin, age, ancestry, nationality, marital status, sex, gender identity or expression, disability, military service, sexual orientation, atypical cellular or blood trait or genetic information.
Matalon said he most often sees gender and age discrimination in his practice.
“If you look around this room, pretty much everyone here is in a protected class, whether they know it or not. The average age of American workers now is 39, so we’re almost all in a protected age class,” he said. “Discrimination is very insidious when it comes in the pay area because the individuals assume that they have a right to sue if they’re being let go for any reason. And the employer doesn’t help itself when it terminates 10 people and nine of them are 50 or older.”
Just about everything in this country is discriminatory one way or the other, he said. But human beings use bias filters every day, seeing life through “our own prism.”
“The problem is when we project that prism in the workplace,” Matalon said.
“We treat people like objects rather than like assets; and remember, unlike any other capital asset in your business, the human being is the only one that’s [capable] of appreciating in value. Every other asset will depreciate. From the moment you take a car off the lot, it begins to depreciate in value; but the moment you hire an employee, you can actually raise them up. You can get more of a return on investment out of them if you treat them properly.”
The panel’s advice for employers: write job descriptions, create key performance indicators to tell workers what to shoot for and implement 360-degree performance reviews to let them know you want their feedback.
Performance reviews are important, panelists explained. If the employer doesn’t let an employee know what he or she is doing wrong, when it comes time to terminate them, HR expert Carrero has some questions.
“Did you communicate that to them? Did you talk to them, did you write them up, did they know that this was wrong? How many other people in the workplace do you allow to come in 10 minutes or 30 minutes late? So if you’re going to terminate, are you discriminating? Are you just picking on this one individual?” she said.
Many employers who hire her want to terminate employees quickly. She looks at past performance—did the employer communicate and address the issue? Are they being consistent?
“Communicating performance reviews is critical,” she said.
To mitigate the risk of harassment or discrimination complaints, it’s important for employers to have an open-door policy and to document everything, Carrero explained.
“Make [your open-door policy] very clear. Have that safe place for employees to go to where they really feel it’s a non-biased person that’s going to listen. It could be an email, or it could be a five-minute conversation, but at the end of the day, document it,” she said.
She recommends that the recipient of the complaint email the employee thanking them for taking advantage of the open-door policy and send a form for them to document details of their complaint. The employer then needs to ask what the employee’s requested relief is: can they not work with someone anymore, or do they just want some behavior to stop?
“Within 24 hours of that person coming to you, you need to communicate, because within 24 hours of talking to you, they’re going to talk to everyone. They’re going to communicate through the workforce, to their spouse, their friends, a labor attorney. You need to jump on it quickly,” Carrero said.
‘Look what just happened’
When receiving the claim, assure the employee that the complaint is confidential, or on a need-to-know basis. A company’s human resource department, or an outside HR group for small firms, will want to then investigate the claim, which is key to preventing legal issues thereafter.
“I firmly believe a botched investigation is one of the worst things that can happen,” moderator Amyot said. “It makes the culture and the climate for employees that much worse, and it has long-term effects other employees feel like well, you can’t go to HR because look at what just happened. You clearly are just handing over a court case to the employee.”
Before a case ever gets to court, O’Connor said employers need to know how to identify what will be considered a complaint. It’s not always a formal written document.
“What is a complaint? It’s not necessarily someone filling out a form. It can be just someone expressing their concern,” he said. “Training can be so inexpensive in the grand scheme of things. A case I handle could range anywhere from $5,000 to $500,000. Training [to identify a complaint] is absolutely essential.”
“Within 24 hours of that person coming to you, you need to communicate, because within 24 hours of talking to you, they’re going to talk to everyone. They’re going to communicate through the workforce, to their spouse, their friends, a labor attorney. You need to jump on it quickly.”
– Susan Carrero, president and director of human resources for 7 Star HR
Matalon said the employment life cycle has four phases: hiring, integration, retention, and elimination. While hiring and firing are the easier two, he said, “the integration and retention phases are the worst.”
To mitigate an employer’s liability for discrimination or harassment claims, training, employment practice liability insurance, and bringing a professional employer organization, which shares employer responsibilities as a co-employer, are all helpful.
“If training is the only thing you’re doing to bring your employees together, you’re already failing. What benefits are you offering? Are you offering programs that engage the employees together, are you offering any team building exercises? When’s the last time the management team came out and did a town hall with the employees?” Matalon asked. “We don’t have the time, we leave it to HR. Well, HR leaves it to the management. That’s a management responsibility.”
From a risk retention standpoint, employers mustn’t just get their policies together. If employees are not engaged, he said, most will be dissatisfied with their jobs — something Matalon calls “one of the biggest problems in the country right now.”
Even with all these considerations, O’Connor said, employers will still have to deal with claims.
“It’s a fact of life. I’ve been around long enough, I’ve probably seen four or five economic cycles where the economy cools and the claims go way up,” O’Connor said. “I think there is some predictor of economic slowdown in the next 12 months, so now would be a good time to get your house in order.”
To learn more about the next NJBIZ monthly panel discussion, visit our Events page.