But It’s Not Illegal — Or How Not to Manage Your Employees

Suppose you are a manager, looking to increase your team’s productivity. Do you:

a) take away all the chairs in the area;

b) deny your employees’ request to have a fan in the area that gets rather hot;

c) require your employees to keep their work phones on during their unpaid meal breaks so that they respond to any work-related issues;

d) None of the above — and what the @#$% is this a trick question?

I promise I’m going somewhere with this exercise, so work with me, OK? Let’s have a look at this scenario, particularly at what an employer should and shouldn’t do, and see what we can learn…

Yes, there actually IS an employer that did a, b, and c — at least according to Reddit’s r/antiwork sub, user @proud_basic_b***h.

The employer was a blood bank. The team in question worked in the lab. One of the employees was 6 months pregnant and as a result of her manager taking away all the chairs, she had to be on her feet for hours at a time. Another employee fainted from the heat at least once.

This Redditor told the manager that requiring employees to work through meal breaks to monitor temperature alerts was illegal. The manager said it was “grimy” of the employees, to “care more about their lunch break than they did the integrity of the blood samples and safety protocols.” (Wow, that’s not manipulative or abusive, at all, right?)

Rather than argue, the Reddit poster went to the DOL. Something prompted the boss to go to HR and then he apparently changed his tune. Now let’s look at the options in the multiple choice question.

Options A and B are likely illegal, with respect to at least some of the employees. I say “likely” because the fan and the chairs could be reasonable accommodations for pregnancy and/or a disability depending on specific facts. Whether an accommodation is reasonable will depend on the claimed disability, whether the requested accommodation will enable an otherwise qualified person to perform essential job functions and whether the requested accommodation poses an undue hardship on the employer. Depending on the facts, denial of such requested accommodations violate the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA).  In addition many states have similar laws (usually with a lower minimum employee requirement, and often with greater levels or protection for the employees).

I don’t see any employer successfully arguing that chairs, a fan  and true meal breaks pose an undue hardship. The ADA and in the case of the pregnant employee, the Pregnancy Discrimination Act will have something to say here.

Even if there is technically no violation, however, it is really dumb to deny those types of requests. What did this manager really expect to gain? Now he has a team that doesn’t respect him. Going forward, how does he expect to lead? How does such a person have any business even being a manager?

Option C, which involves the meal break issue, is a blatant FLSA violation as to any employees who are not overtime-exempt, Even this manager realized that after his chat with HR, and ultimately even instructed them to fill out paperwork so that they could be compensated for the break time they spent monitoring temperatures. That’s quite an admission from an employer.

Can you avoid these issues? Absolutely. How? Here are 2 starting points:

1. Be intentional about what types of employees you hire as managers. Consider investing in training so they can learn management skills. That is a very different skill set than the ones most of them would have acquired before they were given a managerial role. At best this manager needed training. At worst, he should never have been hired in a managerial role.

2. Train managers to hand off accommodation requests to HR or a designated point person in your company who knows something of the legalities if you don’t want them incurring liability on behalf of your company.

Are you an employer interested in proactively addressing workplace challenges and company culture? Visit my website, http://www.janetteleveylaw.com to contact me for a complimentary 20-minute consultation. 

Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?

Watch my television interview on Stop My Crisis with Vivian Gaspar.

Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ



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