EEOC protections and fair performance reviews in employment

Employment Law

Federal labor laws covered by the Equal Employment Opportunity Commission contain fundamental information of which managers must be cognizant and wholeheartedly employ. The labor laws address intuitive issues, but they are by no means intuitively understood as there are many conditions and situations that determine how the laws are applied, and to whom they may be applied. Management must ensure that employees with supervisory capacity receive thorough training in the laws enforced by the Equal Employment Opportunity Commission.

What's more, management must be sure to create a company culture that embraces the federal labor laws and that ensures managers will work in good faith to achieve benefits for the company and for the employees. From the Walmart case study, managers can clearly observe extremely inappropriate intimidation and retaliation of employees attempting to organize. There are many lessons to be learned from the callous, irredeemable behavior of many managers working at Walmart. Walmart provides a good case study for how not to manage personnel issues.

There is absolutely nothing positive that can be said about the culture of a company that tacitly agrees to treat employees so poorly, let along deliberately hires people for management positions who have the inclination to treat employees in such a reprehensible manner. To ensure that companies keep themselves out of court, out of trouble, and in the good graces of their employees and the unions, a number of recommendations for conducting fair, yet comprehensive employee performance reviews are provided.

Introduction

Employers cannot retaliate against workers for supporting a union or endeavoring to attend union meetings or participating in a strike ("OOEC," 2014). Nor can employers intimidate workers to discourage them from backing or joining a union ("OOEC," 2014). Federal law forbid retaliation across all aspects of employment: the law is interpreted broadly and includes job assignment and promotions, compensation, scheduling, hiring and firing, layoff, training, fringe benefits, union organizing activities, and "any other term of condition of employment" ("EEOC," 2014). The U.S. Equal Employment Opportunity Commission reports that,

"All of the laws we enforce make it illegal to fire, demote, harass, or otherwise "retaliate" against people (applicants or employees) because they filed a charge of discrimination, because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit)" ("EEOC," 2014).

A caveat: there are certain required attributes of a company that determine whether it the firm is covered by the laws that are enforced by the EEOC. Notably, the number of employees in a given company is pivotal to the eligibility of coverage by the EEOC. Other stipulations vary according to the type of employer involved and the kind of discrimination that is alleged. That is to say that the laws vary somewhat depending on whether an employer is an employment agency, a federal agency, a labor union, a private company, or a state or local government agency ("EEOC," 2014). In addition, discrimination claims can be based on age (40 or older), color (skin), disability, gender, genetic information, national origin, pregnancy, race, and religion.

Discrimination claims are generally considered to be difficult to prove, with the burden falling squarely on the employee or job candidate. However, blatant discrimination, particularly in the form of retaliation or intimidation, often provides a clearer case for employees to bring. One company with a deserved reputation for blatant discrimination is Walmart. A discussion of Walmart practices is relevant here as it illustrates how a culture of disregard for employees, organized labor, and federal laws can become so inculcated in a company that a sense of being above the law, and getting away with as much as possible, becomes the creed of the employer. Long lists of Walmart labor violations (and violations in a number of other categories, as well) are widely available and, it is fair to say, added to continually.

In January 2014, the general counsel for the National Labor Relations Board charged Walmart with committing illegal activities in 14 states. The ruling was the result of N.L.R.B's finding that roughly 70 Walmart workers were unlawfully disciplines and 20 of the workers in that group were also fired -- all on the heels of participating previously occurring strikes and protests that were associated with the group known as "Our Walmart." Our Walmart is backed by the United Food and Commercial Workers union, but is not actually a union. The organized Walmart employees who are members of Our Walmart filed the complaint with the labor board, citing illegal intimidation of workers at the Walmart stores in Placerville, California, and Richmond, California. Indeed, Our Walmart has organized a series of protests against Walmart over the past three years. On Black Friday in 2014, Our Walmart sponsored protests at more than one thousand Walmart stores around the country. The organized workers protested for more full-time jobs, a base wage of $15, and "an end to what it says is illegal intimidation and dismissals" (Greenhouse, 2014). The protests seem entirely warranted, as underscored by this brief case study.

During the week of December 8, 2014, National Labor Relations Board administrative law judge, Geoffrey Carter, decided against Walmart managers in California, citing they had unlawfully disciplined six employees at the Richmond, California, store for going on strike -- and told them that they would be looking for a new job when they returned to work after the strike that lasted just one day, and Walmart managers illegally threatened to close a store to keep workers from earning their wages if any of the employees at that store joined a group that was demanding higher wages (Greenhouse, 2014). The disciplined and terminated managers apparently felt free to say whatever came to mind when intimidating the employees.

Walmart workers who brought the case quoted the managers, saying that the remarks included: "If it were up to me, I'd shoot the union." Moreover, one Walmart worker who was wearing a rope around his waist and using it to pull a heavy load was told by his manager that, "If it was up to me, I would put that rope around your neck." With regard to a milder incident, Judge Carter determined that the Walmart dress code was overly broad in that it did not prohibit or discipline an employee who wore a shirt that had "Free Hugs" written on it, but Walmart did unlawfully forbid employees to wear clothing that had "Our Walmart" printed or embroidered on the items of clothing. The administrative law judge ruled that the Walmart dress code for the California workers "unduly restricted associates' rights to wear union insignia" (Greenhouse, 2014). Judge Carter also ordered Walmart to remove any write-up notes or reference to the disciplinary actions in the personnel files of the six employees who were unlawfully intimidated for going on strike in Richmond.

Management Practices and Employment Labor Laws

Questionable employment practices can have costly outcomes that are not limited to the fines and compensatory payments to wronged employees. Bad press can substantively damage the reputation of a company, especially since the internet has become such an accessible means of communication. Loss of good will can impact the prices of shares, making stockholders unhappy, as well.

One of the most important management practices that can be used to head off difficulties with employees is the year-end performance review. Indeed, one of the most effective changes to this important management tool is to change the year-end review to a performance review that is continually refreshed throughout the year rather than being dependent on an annual event that attempts to capture a year's worth of effort.

Important practices for management to use in order to give fair and appropriate feedback to employees are listed below (Bloom, 2010).

Be certain to review the entire year. This will require making thoughtful and complete notes about the performance of employees throughout the year.

Don't gloss over problems or sugarcoat the performance review. This means that plain but descriptive language must be used to explain perceptions of any problems and the proposed solutions to those identified performance issues.

Be sure to provide facts and not impressions of performance. Tie the employee performance to numbers whenever possible, and avoid the use of absolute words in the review, such as never and always.

Use criteria that are quantifiable, just as you do when creating SMART goals. For performance change to be gauged, it must be measurable.

Be sure to focus on the job and not personal issues, unless they are part of the job description and transparent expectations, such as wearing a clean, well-fitted uniform or avoiding talk of politics when in face-to-face meetings with clients.

Be prepared to identify unfortunate trends that have been persistent for a substantive amount of time. Note that these trends can be a reflection of managerial practices as much as they can be indicators of employee performance.

Maintain consistent comments, such that, the face-to-face workaday feedback you provide to employees is aligned with the comments on the annual performance review, and that both of these forms of feedback are reflected in action.

Be open to receiving feedback from employees as this is one way to ensure that some unfair action has, in fact, taken place, or that management has incomplete information or misinformation. Retain the employee's response in the review.

Take the old adage seriously: put your money where your mouth is, and align raises and bonuses with good performance reviews.

Prepare for the upcoming year by jotting down procedural issues or missteps that you wish to address before the next round of reviews occurs.

Don't wait to do performance reviews until the end of the year.

Although it likely goes without saying at this juncture in the discussion, management must be absolutely clear that it is illegal for an employer to refuse to promote an employee who ahs filed a discrimination charge with the Equal Employment Opportunity Commission, even in the case that the charges are found to be false -- that no discrimination has, in fact, occurred (Bloom, 2010).

Conclusion

With the right attitude and a healthy regard for its employees -- as the important company resources they are -- an employer can avoid the most egregious labor and management mistakes. Proper and comprehensive management training programs that incorporate the principles of continuous improvement, serve to head off many problems. The practice of aligning desirable management practices with performance reviews of managers is also a way to make a clear and emphatic statement about the importance of upholding the standards delineated by the company and by the Equal Employment Opportunity Commission.