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Ask the Expert

Whether you have a question about termination, recordkeeping, sex harassment, pay practices, or any other HR issue, just ask our expert. Here are a few of the questions our expert received and answered. If you want answers tailored for your business, you can buy Consultation Time with Nancye.

Question: My owner told me that I am under more strict rules about sex harassment than other employees because I am a supervisor at my company. Why is that?
Expert: Supervisors have considerable power over what happens to employees. They can give and take away jobs, promotions, raises, etc. If a supervisor abuses that power to gain sexual favors, the company can be held libel and the result can be very expensive. For this reason, many companies remind supervisors about what they call “vicarious liability” often.
Question: One of our employees filed a sex harassment charge in our HR Department against a supervisor for an incident that happened at a bowling alley when they were both away from work. Can she do that?
Expert: Yes, she can. The smartest thing to do is to remind supervisors they are never truly off from work. No matter where they are, it is very important for them to conduct themselves appropriately whenever they are in a setting where they are interacting with those over whom they have control in the workplace. Social settings, such as the bowling alley or a sports bar, can be a setting for a potential problem between a supervisor and a subordinate.
Question: I have a smart, beautiful wife and I am very proud of her. Photos of our vacation at the beach are on my office credenza and include many pictures of my wife in swimsuits. My Administrative Assistant told me the Warehouse Manager called the pictures “sexual, offensive, and suggestive.” I think he is just jealous but I am a little concerned about this. My question is, “Can family photos be the subject of a sex harassment claim?”
Expert: You sound like a great husband but you must also be a smart manager. Take the photos home and replace them with others that are more appropriate for display on your office credenza. Although you view the photos as beautiful, graphic images (photos, drawings, calendars, cartoons) that are sexually suggestive may be viewed as offensive. I actually handled an issue exactly like this one a few years ago and everyone ended up unhappy with the outcome.
Question: Does the employee time card belong to the company or to the employee?
Expert: Time records are the property of the company. Should an employee tell you he/she is taking the time card home, you can instruct that employee that all cards be left in the rack or wherever they are usually kept. Why? The Wage & Hour Laws say that the employer must keep records, not the employee.
Question: If we are on a two-week pay period and my employee works 55 hours one week and 25 hours the second week, can I average the two weeks and avoid overtime pay?
Expert: NOT A CHANCE. That has been tried a few hundred thousand times and has never worked. Each workweek stands alone. It is the 168 hour seven-day period that you call your workweek. You are not allowed to “average” hours to avoid paying overtime.
Question: What if my employees decide they want to be salaried and are willing to give up the overtime, just to have a regular salary. Can they do that?
Expert: First, the question of whether you will pay overtime is never left to the employee. The answer to the question is based on the type of work performed. Some work is exempt from overtime and some is not. Secondly, never let your employees decide on any issue of pay, benefits, or working conditions. The National Labor Relations Board has made it perfectly clear that pay, benefits and working conditions are reserved for Union negotiations and they may contend you have set up a company directed union. It is the responsibility of management to set hours of work and pay systems in non-union settings.
Question: I have known employees who are terminated “at-will” and are actually given the opportunity to voluntarily resign? Is that a wrongful discharge?
Expert: It might be (depends on factors surrounding the termination), but it is not uncommon for an employee who is being terminated to be given the opportunity to resign. Most of the time, it is a matter of deciding how the official documents will read. This includes what is being entered into the personnel record and what will be spoken to those who ask about the termination.
Question: If an employee is near retirement age, can I suggest that the employee retire?
Expert: No. In the United States there is no official retirement age, (except for the CEOs of certain public companies who get the boot at age 65). Even if an employee is eligible for retirement benefits or Social Security and Medicare, an employer may not ask an employee to retire. That is considered to be age discrimination.
Question: How do I explain a layoff to the employee who has been doing a good job and has no reason to believe his job is in jeopardy?
Expert: It is extremely difficult and painful and there are no words that adequately explain it. You must be straightforward and make no excuses. Employees may be surprised, hurt and they will feel angry and betrayed. After all, they have done nothing wrong. They feel powerless. Many fear they can’t find other employment. It is very important to be humane and remember the emotional impact your words will have on the employee.
Question: What is the purpose of a performance review since we all know that most employees do not want them?
Expert: The true purpose of a performance review is to help employees develop in their jobs. The notion that employees do not want them is false. Everyone wants to know how he/she is doing, but employees often fear they will hear unexpected bad news and will not get help to improve. Strange, but some supervisors “save up” all the performance problems and dump them on the employee at review time instead of handling them as they occur.
Question: Is there a performance review system that is better than any other?
Expert: No. The system you use should fit the needs of your workforce. Every system should have some sort of rating that lets employees know where they stand.
Question: Our performance review system requires me to enter a rating of one (poor) to five (outstanding). Should I view a rating of “3” as the rating for employees who do a good job?
Expert: Yes. On a rating scale of one to five, most employees should score somewhere around “3.” If you think of the Bell Curve that is used statistically to spread data over an entire population (or the way a teacher grades students in school), you may remember from studying statistics that about two-thirds are somewhere around the middle of the curve.
Question: Should I put such things as a Report of Injury at work or a doctor’s statement in the employee personnel file with all of the other forms?
Expert: They CANNOT be kept in the personnel file with routine personnel records to be seen by others. They have medical information on them. All medical related documents must be kept in a confidential employee file in a locked file behind a locked door. (Double locked) That means you need two files for your employee. One is confidential and contains sensitive employee records not available except for a special circumstance.
Question: Who actually owns the personnel file?
Expert: The file is the property of the business. It is not the property of the employee. So, if an employee asks for the file, the answer should be, “The file is the property of the company.”

If you have a question, Ask the Expert: nancyecombs@aol.com