Episode 219 - What Supervisors Need to Know, Part I: ‘Hard’ Compliance Skills

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Associate General Counsel for Labor and Employment with the California Chamber of Commerce. Hello listeners. As many of you know, we are laser focused on helping employers maintain compliance in an ever evolving employment legal landscape. While compliance may often be complex and dependent upon the unique circumstances of each business, compliance is fundamentally rooted in communicating expectations and enforcing those same expectations. Nowhere is this practice more important than when we work with our supervisory and management staff. As a practicing lawyer, most compliance issues that I ran across began with a supervisor or a manager taking an approach that would then ultimately snowball into an issue that resulted into a legal claim. So for us, it is important that owners, executives, human resources personnel and other managers know the rules. But also just as important is communicating those rules to our other managers and first level supervisors. To that end, we are launching a two part show to discuss supervisor essentials, the tools employers should impart on their supervisors to help effectively manage our workforce. In part one, we'll be discussing quote, unquote hard compliance or basically training supervisors on what the law actually entails. And then later in part two, we will discuss quote, unquote, soft skills that while not specific to the law, are are just as important for employers to comply with. So for this series we first welcome back Cal Chambers Senior Employment Law Council Erica Barbara, thanks for being here, Erica.

Thanks for having me, Matt. Looking forward to tackling this subject with you.

Great. Second, we also welcome back Cal Chambers employment law subject matter expert Vanessa Green. Thanks for joining me today, Vanessa.

Oh, you're welcome. Thanks for having me. It's fun to be here.

All right, well, in the hard compliance area, we know that there's a lot to know and a lot to get through. So for the first few focus on this section, I think we really do have to just start with wage and hour. Erica, I know you have extensive practice experience with wage and hour litigation. And while all aspects are important, what to you is one of the biggest gaps in knowledge for supervisors that you see?

Oh, Matt, I could talk about this all day. So California has so many wage and hour requirements. So that means there's many, many areas where compliance issues can come up. But really one of the most common that we see is around meal and rest breaks. So as I'm sure our listeners know, an unfortunate reality of doing business in California is the risk of wage and hour litigation, including PAGA claims. And really one of the most common claims that I saw when I was defending employers in these kinds of cases was for meal breaks. And in fact I was trying to think, did I have any cases that didn't include meal break claims? And I think there was only a handful. It was really one of the first claims that we would see. So minimizing the risk of lawsuits really starts with properly training our supervisors. So supervisors can create risk if they don't understand the law. So we may have a business with legally compliant wage and hour policies in the handbook, but if the supervisors don't understand those policies, or they do understand them and they're just not following them, they're creating potential liability, particularly with meal and rest breaks. So, for example, if supervisors don't understand the importance of meal break timing, then they may let employees take their breaks whenever they want instead of ensuring that breaks are taken timely, which then results in meal break violations. And sometimes employees would rather just take their meal breaks whenever they want. But that's not what our supervisors should be allowing. Now, supervisors don't understand that breaks must be interrupted and duty free. They may ask employees to, oh, just answer a quick question or help them with something while they're on break, which, again, results in violations. And if supervisors don't understand an employer's duty to provide breaks and the duty not to do anything to prevent or discourage employees from taking breaks, then they may not properly schedule employees to ensure coverage for breaks or ask employees to work through a break if it's busy, both of which can result in violations. So it's really critical that we train supervisors on wage and hour policies, including meal and rest breaks, so they understand what's required and how to comply. And if they're not following our policies, we hold them accountable, which means providing additional training or disciplining if necessary.

Right. And I like the discussion on the, you know, uninterrupted part of these breaks, because that's a huge requirement. And it's something that, as you said, hey, can I ask you a quick question? Or, hey, I know you're on your break, but I just need to know where that file is. Those things all require a reset of the break. And, you know, even in my experience, I've had managing attorneys come to me and say, well, does uninterrupted really mean uninterrupted? Like, if I need to hand my paralegal a file to go file, can I at least do that on their break and just say, you know, go do it later? And, you know, as you said, that's an interruption. And so that training is really important. So, Erica, is there another area where you see supervisors often creating issues, especially unintentionally for the employers when they don't have the right kind of training.

Yeah. Another area where I see issues come up is with overtime and off the clock work. So we need to make sure that we're training supervisors to understand that all overtime must be paid. So even if you have a policy where employees have to get a supervisor's approval before they work overtime, if they work it, it needs to be paid. So supervisors need to understand that and abide by that. And they also need to understand that hourly employees, non exempt employees, always have to be on the clock when they're working. And the way this typically comes up, where we have a supervisor needing to reach out to an hourly employee when they're not at work. And that may be a text message or a quick phone call or an email, but anytime that supervisor is reaching out to the hourly employee about work outside of work, they're creating an off the clock work situation. So we need to make sure they understand they shouldn't be having those communications with their employees who are off the clock. Wait till they come in for the next shift and deal with whatever it is then. And then another thing that we want to make sure our managers understand is the importance of accurate timekeeping records so we can expect and hold our employees accountable for clocking in and doing so accurately. And as a reminder, we need to make sure our hourly employees are clocking in at the start of their shift, clocking out for their meal break, clocking back in after the meal break, and clocking out at the end of the day. But if supervisors know that employees aren't properly clocking, they need to address it and make sure that those time records are accurate. If you find out that an employee is working off the clock, supervisor needs to address that. We can't have supervisors ignoring this kind of behavior because even though the employees are entering the time, ultimately it's on the employer to make sure that those time records are accurate.

Yeah. And I don't think that can be overstated, Erica. When I was a Plams attorney for several years, the first thing I do with a new client is go to their former employer and say, give me all of your payroll records or give me all your timekeeping records. And the first thing I go look for is any kind of suspect timekeeping records in there, or maybe even just the absence of timekeeping records, because like you said, Erica, it's the employer's responsibility. And I'm already on the right foot as a plaintiff's attorney. If you've got records that are a little bit suspicious or have some issues with them. So then in order to avoid supervisors creating this liability, and it's especially unintentional. Right. Supervisors are mostly focused, laser focused, really, on getting their job done, getting the work done, leading their department, and wage and hour stuff just never is in the front of mind. But what do you see is the best course of action employers can take with supervisors and these wage and hour issues you've discussed?

Sure. So I would recommend a three part approach. Number one is having compliant policies. Number two is training your supervisors. And then three is accountability for the supervisors. So making sure you have an employee handbook that has compliant wage and hour policies that should be distributed to all employees at hire, including your supervisors. And then as you update it, and we know we have to update our employee handbooks periodically as the laws change. And then have an expectation of your supervisors that they have read and understand that handbook and all of the policies contained in it. You know, provide somebody a contact for them to go to if they have questions, whether, you know, that's HR or someone else, someone that they can reach out to if they have any questions about the policies in the handbook. And then we need to have training. So we need to train those supervisors on the policies, particularly on the wage and hour policies that should be done at hire. And then periodically through their employment. Employment. We want to make sure that they understand the policies and that they're enforcing them appropriately in the workplace with the employees that they're supervising. And then lastly is what I refer to as accountability.

Right.

We're monitoring the supervisors, making sure that they're complying with our policies. And if they're not, we're holding them accountable. So maybe that means that they need additional training if they're unsure about something. Maybe it means that we need to discipline them if they know what the policy is and they're choosing not to follow it. But we really do need to hold them accountable. And this has always been important, but even more so now with the Paga reform that we had last year in 2024, because that reform includes the potential for a reduction in PAGA penalties if employers take all reasonable steps to be in compliance with the wage and hour requirements. And the law has said that all reasonable steps includes things like having compliant policies, training supervisors, and taking corrective action with your supervisors if they are not complying with those policies.

Yeah, I think those are excellent points, Erica. And we're all, like I said, we're always focused on supervisors and managing them or evaluating their performance based on how their department is doing. But this is a key performance indicator for supervisors. Are you enforcing our policies because we rely on you to do that? All right, Vanessa, let's get you off the bench there and into the game. Turning the page on wage an hour. Supervisors are often the first points of contact between employees and management. What's one overlooked area of communication that employers need to train supervisors on and how should they go about doing this?

So a big overlooked area that I see all the time is workplace accommodation requests. And so supervisors, a lot of times, they don't understand their role in handling situations when an employee comes to them and has some kind of accommodation request due to a medical disability or religious practice or pregnancy or things like that. So, for example, this could look like an employee coming to a supervisor and saying, I want a modified schedule because I have to perform religious prayers during a certain time of the day or certain days of the week or other examples I've seen. You know, a pregnant employee might tell their supervisor, I'm having a hard time standing so much during my shift and can I get a stool or something to sit on? Can I take more breaks to sit down? And so supervisors, they sometimes don't understand that they shouldn't be denying these requests themselves. They shouldn't be deciding these requests themselves. They really need to loop in HR or the appropriate person for that conversation and to do the assessment of whether or not the accommodation can be granted. And so if I'm an employer, I want to be thinking about the fact that my supervisors may not fully understand this. Right. So I want to make sure I'm training them and really setting them up for success to identify when these accommodation requests come in, how are they going to respond? How are they going to loop in hr? I think a simple rule of thumb is just telling supervisors if an employee mentions any kind of limitation or any kind of need, flag it for hr. Instead of making your own judgment call, make sure to loop in hr.

Excellent. So there's another area that employees go to supervisors first. Right. Instead of going straight to human resources or the high level management. And that's for requests for time off. Right. Maybe I'm sick, maybe I want vacation. But where do you see breakdowns with how supervisors handle these requests and what recommended fixes do you have for them?

Well, I see issues happening when supervisors do not fully understand the scope of leave laws and they unintentionally deny or discourage employees from taking legally protected time off. And in California, we have a lot of that legally protected time off that can come up. So, for example, a supervisor might not really fully understand, understand that California paid sick leave, that's extremely protected time. So when an employee calls out sick and they use their California paid sick leave, supervisors can't ask for a doctor's note. They can't require an employee to find a replacement for their shift. They can't discipline that employee for that absence. And supervisors sometimes don't understand this and get into some hot water when they're doing the wrong things here. And then other situations that maybe are a little more subtle but are also problematic are supervisors who do say things that are indirectly discouraging. Right. Maybe somebody's calling out and using a lot of sick time recently, and a supervisor is kind of like telling them, oh, again, well, you're out. You're out a lot. You're calling out all the time. Right. And saying these things towards the employee that can create a legal risk for retaliation claims. So they just really need to be careful around this protected time off. And I think employers, some steps that they can take to really help ensure that supervisors are properly trained on these protected leaves is just, number one, making sure supervisors understand what the leaves are right. And what's in your employee handbook, what, what your policies say. And then number two, how do they respond when somebody comes to them and wants to take time off? Right. What is their proper role in that situation? When do they loop in HR Supervisors really need to have a clear understanding of how to handle those situations successfully.

I really love your retaliation point, because we can all just feel that personally, right? If one of our employees that we supervise is out and they've just been out and it's made our job more difficult, we're just inclined to be more frustrated with that. And that's where you get the retaliation claims, because now you're motivated or you're biased against somebody because of a protected activity that they've taken. And it can even just show up in something as minor as a performance review, but it snowballs into those retaliation things, like you said. So I think that's a real major point for employers to know. Vanessa, maybe the ultimate exercise in employer employee communications is in proper discipline and termination decisions. What are some of the common mistakes we see from supervisors in this area, and how can we fix that?

So one big mistake that I see, I've seen across the years is a lack of consistency and how performing expectations are communicated and enforced. And so supervisors, you know, we all, we're human sometimes we have our favorite employees and we have the ones that maybe are not our favorite. And supervisors sometimes will allow certain behavior from their favorite employees, but maybe not let other employees get away with the same behavior. Right. Which can lead to claims of unfair treatment or discrimination. So we really need to make sure there's consistency with the expectations that we're setting in the workplace as a supervisor. And then another issue that I've seen over the years is poor documentation. And I think supervisors just don't really understand the importance of documentation to protect the company. And I've seen situations where they mistakenly believe that just because an employee is at will, they could terminate the employee for just not being a good fit. Right. Or not having really a clear reason or written record, when in reality, that lack of documentation, that can really create some legal risks for the company, especially if the termination is later challenged. And so employers really want to think about, how do we set up our supervisors for success when it comes to performance management? I think there's kind of three things that I would be recommending here. Number one is making sure that supervisors set clear expectations. So employees should always understand what is being expected of them, and those expectations need to be consistent, and people can't be treated differently in the same type of situation. Number two, we want to make sure that they're addressing issues early. Okay. And addressing problems as they occur. So we're not waiting for an annual performance review. The supervisor needs to promptly and constructively the performance problems with the employee and let them know how to get it corrected. And then number three is document, document, document. And this is so important, because if it's not written down, it didn't happen. I have a good HR friend who has this saying, if it's not on paper, it's vapor. And so how do we prove something? How do we really show we took the proper steps if we have no documentation? So supervisors can document the disciplinary actions they take. They can document their coaching discussions, their verbal warnings. They can create a paper trail to really help protect the employer so that if a situation does lead to termination, they have that paper trail to really show. Like, hey, here were all the issues that we had with this employee, with their performance or with their behavior. And here's why we ended up terminating this employee. That really goes a long way. And preventing missteps.

Great. Now, Erica and Vanessa, I'll bring you both in for this last area. Since we're all harassment prevention trainers here on this show, and part of our curriculum requires us to talk to supervisors about their role in responding to harassment in the workplace, can each of you share some practical Guidance on handling that role and how management and human resources can help enforce that role.

Sure, Matt. So I'll start here. When I do training, the most important thing that I'm making sure that supervisors is that they have a duty to report harassment. Either that is reported to them. So if they have a complaint made by an employee to them or conduct that they observe in the workplace, and it's so important that they understand this, they have to report. They have to take every complaint seriously. So even if they may think the complaint is trivial or they're questioning the validity of the complaint, it doesn't matter. They have to take it seriously. They have to to report that information to human resources or whoever the designated person is in the organization so that the company can address it. And they also need to understand that there can't be any off the record complaints. Right? They can't ignore a complaint after it's brought to them. And sometimes they may have an employee come to them with an issue and say, look, can't we just keep it between the two of us? And the answer to that is no, we can't. Because once the supervisor has knowledge of that harassing conduct, the company is deemed to have knowledge under the law. And if the supervisor doesn't share that information with anybody else, the company can't respond and address it. So that's another thing I want to make sure that supervisors always understand when we do this training is that they no complaint should ever stop with them. They have to make sure that they report it to the appropriate person so that the complaint can be addressed and the company can investigate it and figure out what steps need to be taken to prevent any further conduct.

I think that's so important, Erica, because a lot of times they. They don't really have a full understanding of that. And to kind of tie into what you just said in terms of there being no off the record complaints we need. Supervisors need to understand that they can't be promising confidentiality.

Right?

Because if there's no off the record complaints, we can't keep things 100% confidential. They really need to make sure that they're letting HR or whomever the appropriate person is know about the situation. But. But on the other side of the confidentiality coin, they do need to be keeping it as confidential as they possibly can and not sharing the information with folks who don't have a legitimate business reason to know it. And I've seen some supervisors get into hot water here because, you know, we all like to chatter and gossip sometimes, and they'll start telling their buddy, you know, oh, so and so complained about this, and all of a sudden it's spreading through the company like wildfire. So they just really need to be sensitive about confidentiality and in those situations and kind of keeping that balance. Right. Between not promising it, but also not breaching it. The other thing that's really important for supervisors to know with these harassment complaints is we have. They have a duty to prevent and avoid retaliation. And so they want to make sure we're keeping an eye on our team, on our workplace, when we have these complaints coming up and making sure that we don't see any red flags for retaliation happening. Right. Maybe the person who made the complaint, maybe all of a sudden they're being shunned by other coworkers and they're being isolated, they're being treated negatively.

Right.

We want to make sure we're keeping an eye on that situation if we're a supervisor. And then, of course, we don't want to be the ones retaliating. If we're a supervisor. We need to make sure that we are not taking some kind of adverse action against the employee, like demoting them or transferring them or doing things that could be perceived as retaliatory.

Yeah. And then I think the last thing, and I feel like this goes without saying, but we're going to say it anyway, is that we need to make sure that our supervisors are not creating liability for us based on their conduct. So we need to make sure that our training for our supervisors includes what is and is not appropriate conduct for them in the workplace. Remember, there's strict liability for harassment by supervisors, meaning that a company can be liable for harassing conduct by a supervisor, even if it doesn't. Even doesn't know that the conduct was occurring. So we really need to make sure that our supervisors are conducting themselves in a response, respectful and a professional way in the workplace. And how do we do that? Well, we train them on company policy and the law. We have to do that every two years. But there's nothing that says we can't do it more frequently. Some companies will do it every year just to make sure that supervisors are reminded of the policy, reminded of the law, and reminded of the important role that they play in the organization. And if we have issues come up with supervisor conduct, we need to address them and address them right away. That could mean disciplining a supervisor who is acting inappropriately in the workplace, maybe providing additional training. But what we should never do is ignore bad conduct by our supervisors because they really set the tone for the workplace. The people that they're supervising are going to look to them and to the way that they conduct themselves. And if they're acting in a way that's violating company policy, that's sending a message to the other employees that they're supervising that that kind of conduct is appropriate when it's not. And you know, we saw a number of notable court cases last year, some of which we covered in our employment law updates in January, where supervisors created liability for employers by engaging in really unprofessional and offensive conduct. And also we saw in those cases other supervisors being aware of that conduct and ignoring it, and even in some situations, HR being aware of it and not taking action. So. So we want to make sure that we're training our supervisors on how to respond to complaints and also on how not to create issues of harassment in the workplace by their conduct.

Yeah. And I think if there's one theme for this whole first part, set the tone is perfect. Right. Because while it's a huge deal with harassment and just how we interact with each other and engage with each other, setting the tone for how rest and meal breaks are supposed to work, or setting the tone for how we treat each other when they take protective time off, it all makes a difference with how the supervisors handle themselves. Because as you said, it does have this trickle down effect to the rest of the workforce. If I see my supervisor engaging in a certain way, I'm going to think it's okay and I'm going to engage in that same way. So, Erica and Vanessa, I want to thank the both of you for spending some time discussing how compliance here is not just an HR ownership concern, but really for all of our leadership. And I've really enjoyed this conversation and look forward to the second part of this program.

Sounds good. Thanks for having me here, Matt. Happy to talk about this with you.

Thanks, Matt. Looking forward to the next one.

And thank you listeners for joining this discussion on the workplace. Please share and subscribe to Cal Chamber's podcast by visiting calchamber.com.