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When listening to employees, it’s about more than words

Let’s walk through a somewhat common scenario in the world of HR. An employee walks into your office and says, “I have something I need to tell you, but I don’t want you to do anything about it. Remember Bruce who used to sit next to me? Well, before he transferred upstairs, Bruce would make comments about my outfits, and it made me feel uncomfortable. I don’t want Bruce to get in trouble, especially now that he has transferred, but I just thought it was important for you to know. Will you promise me that you won’t investigate or take any action against Bruce?”

So, what do you do? Do you comply with your employee’s request and do nothing? Or do you launch an investigation?

Hopefully, the answer is easy. Notwithstanding the employee’s request, as an employer, you have an obligation to investigate and act once you receive information about potential harassment or discrimination. This obligation takes precedence over your employee’s request that you do nothing. For all you know, other employees could also be on the receiving end of inappropriate comments from Bruce. Despite the employee’s reluctance, you are now on notice.

Hopefully, this answer does not come as a surprise, and you understand that sometimes your obligations as an employer supersede (and may even conflict with) the desires of your employees. Similarly, your employees may simply not understand your legal obligations, and you may be required to take actions that they don’t agree with. In order to be a good employer, you must sometimes disregard your employees’ wishes.

Here is another example. Sally, a new medical biller, is eager to make a good impression. After just a few weeks on a job, you are pleasantly surprised to find out that her production is almost double that of her more experienced coworkers. Moreover, her work is almost completely error free. One day you pull her aside to ask what her secret is, and she proudly explains that she actually works nights and weekends to complete additional bills and double check all of her work. She says that she was taught to work hard and do the job right, no matter how long it takes. When you ask if she has been recording all of her time or if she had permission to work extra hours, she says that she would never think to ask for extra pay. She simply wants to exceed expectations.

For some employers, this might sound like a perfect employee, someone willing to work off the clock to produce great results. However, a good employer will quickly understand that, notwithstanding Sally’s good intentions, she is creating a legal quagmire for the company. Regardless of the fact that Sally does not want to be paid for this extra time, the law requires pay for any time worked by a non-exempt employee that the employer knows about or should know about.

It may sound harsh, but in this situation, a good employer should discipline Sally, rather than reward her. (The employer should also speak to legal counsel about how to pay Sally for the extra hours worked.) This discipline need not be harsh or punitive, but the message should be clear. Sally needs to understand that working off the clock is prohibited and will result in additional discipline, even termination, if repeated.

Let’s finish with one more scenario. Graham comes to your office and says he’d like to use some PTO next week to deal with a family issue. You ask if everything is okay, and he explains that his mom is undergoing a medical procedure. He says it’s not a big deal and that he doesn’t want to jump through all the hoops about FMLA, paid family leave, and all those other laws. He just needs a week or two off and will be back at work quickly.

For many employers, it may sound like a blessing to not have to provide FMLA paperwork or consider whether his leave makes him eligible for certain benefits. Just apply the PTO and be done with it, right?

However, good employers know that, even though Graham hasn’t specifically requested FMLA or paid family leave, it is imperative that he be provided with the proper paperwork and, if his leave is covered, to make sure that his leave is properly certified and designated.

This is important for several reasons. For example, in the future Graham could change his tune and claim that he was not granted the leave to which he was entitled. Should performance issues arise in the future, he could deflect and try to point to your failure to grant protected leave as evidence of discrimination or unfair treatment.

In addition, failure to grant the covered leave to Graham now could potentially allow him to use even more leave in the future that would not otherwise be available to him. Imagine that after returning from caring for his mother, Graham says that he needs to take an additional 12 weeks off for another protected reason. By not requiring Graham to certify his initial leave, you may have now tied your hands, essentially providing him with even more leave than he is entitled to under the law.

Again, by trying to be the “nice and compassionate” employer, you may have actually created unintended problems for your company.

When I give trainings about good employer-employee relations, I often spend a lot of time talking about the importance of listening to employees. I hope this article makes clear that listening is about more than just hearing the words coming out of your employees’ mouths. It is often important to look past the words and understand what the employee is really saying – and what that really means to you and your company. As the famed rock band Extreme sang in their 1991 mega hit (which I’d be happy to play for you on my guitar), listening to employees is about “More Than Words.”

Ben Mudrick is a partner in the Labor & Employment practice at Harter Secrest & Emery.