Human Resource Blog

It is up to each employer to establish the standard work week for exempt employees at their place of business. The expected work week can vary from 35 to 75 hours per week — and even more for some employers. An exempt employee who does not meet the employers standards for the number of hours worked can be disciplined or terminated.

There is not a lot of data on this, but the average work week for exempt employees appears to be 45 to 55 hours per week.  

First of all, we are going to say that a *hostile work environment* is one of the least understood of all employment law concepts. Part of this confusion is fueled by TV shows like The Office, which use the term inaccurately. Unfortunately, these types of shows suggest that a hostile work environment is code for *my boss is being mean to me.* It is not.

It is much more likely that the supervisor is committing discrimination (or has poor management skills) rather than creating a hostile work environment. Usually, coworkers create a hostile work environment and the employer does nothing to stop it.

A hostile work environment exists when a) an employee is repeatedly the target of abuse or negative behavior due to his or her protected status and b) the employer knows about it, or should have known about it, and does nothing to stop it. Examples: When a female firefighter found pictures of naked women in her inbox at work every day for a year, and the employer did nothing to stop it, the courts found that this was a hostile work environment. When an African American male employee found a noose in his locker, White Supremist literature  in the break room and insulting graffiti including the n-word throughout a factory, the courts found that was a hostile work environment. When a deaf store manager was repeatedly belittled by the HR rep (!) and her District Manger with remarks like *CAN YOU HEAR ME NOW?!!* — you guessed it, the courts decided that was a hostile work environment.

The employee must be targeted because of his or her race, sex, color, religion, national origin, age (over 40), disability, or pregnancy for a hostile work environment to apply, according to the EEOC. If the employee is targeted for any other reason (such as the supervisor just does not like her) that may be poor management or a violation of company policy, but it is not a hostile work environment.

The basic steps for an HR pro to investigate any workplace complaint are the same.

1) Behind closed doors, get the employees side of the story fully. (Have another manager — not the accused supervisor – present as a witness if possible. Ask open-ended questions to get all the facts, and listen. Find out if any of the incidents were witnessed. Do not try to defend the supervisor or make statements like *I am sure Fred was just kidding* or *Fred is just like that.*) There is no requirement that the employee make these accusations to the supervisors face.

2) Ask the employee to hand write a complete statement of the facts, including as much detail as possible and the names of any witnesses. The employee should also note the dates and times of specific incidents, if possible.

3) Depending upon company policy, tell the employee the information will be kept as confidential as possible. Do not promise absolute confidentiality — if the case goes to court, that will probably be impossible. In some cases with (alleged) sexual harassment, it is impossible to keep the employees identity secret, by the nature of the claim.  

4) Sit down with the supervisor behind closed doors, without the employee, and get his or her side of the story. (Again, it is helpful to have another manager present as a witness. Ask open-ended questions, listen, do not argue or rebutt. If necessary, ask about the specific incidents the employee mention. Again, ask if any witnesses were present. Ask the supervisor to hand write a statement listing all the details and as many of the times and places as possible. ) The supervisor is not entitled to confront his or her accuser. Caution the supervisor against taking any retaliatory action.

5) Interview any witnesses to the incidents, individually, behind closed doors (with another manager present if possible.) Same rules as above, also get a hand-written statement.

6) Once you have interviewed everyone and have all the statements, sit down and review the case. Make a determination of what actually happened. You may want several people involved in this decision-making process. Determine if the law was broken, and if company policy was broken.

7) Determine what, if any, disciplinary actions should be taken. Remember that two wrongs do not make a right. If Tina comes to work 4 hours late, that does not give Fred the right to call her a bimbo. In this case, it is possible that Tina should be disciplined for tardiness and Fred should be disciplined for violating the company policy on sex discrimination.

8. Inform the employee and supervisor seperately of your decision. Some companies will give the complaining employee full details of any disciplinary action. Others will keep that information confidential, and will only tell the employee *we determined that the company policy against discrimination was violated, and have taken appropriate disciplinary action.* Have each employee promise to work with the other respectfully in the future. Emphasize to each that discrimination will not be tolerated in the workplace.

9) If you determine that this is basically a personality conflict, and not a violation of company policy, you may want to sit both employees down in the same room and allow them to each listen to the others point of view. However, this is not a good tactic if discrimination did in fact occur.

10) Determine if any change in company policy or retraining is necessary. Reiterate to both employees the companys commitment to providing a workplace free of discrimination.

This is one of the most difficult conversations to have with an employee. It is bound to produce some hard feelings, no matter how tactfully it is handled.

Opinions are divided on the best way to handle this. Some HR pros actually suggest leaving the employee a tactful note along the lines of *Bob, I am sure you do not realize it, but occasionally you have a body odor. If you could pay a little more attention to hygiene (i.e., showering daily, clean clothes and using deoderant) it would be appreciated by your coworkers. Thanks!* The note can be anonymous (*Signed, a friend* or *Signed, management*) or it can be signed by the supervisor or HR person. Some HR pros would consider this the cowards way out, but it results in less embarassment for the employee, which is usually the goal.

The other option is to bite the bullet and have a face-to-face conversation with the employee. The best tactic is that you are sharing comments from unnamed coworkers: *Bob, some of your coworkers have mentioned that at times you have a body odor. I need to ask you to pay more attention to personal hygiene, including a daily shower (etc.)…Can you help me with this problem?*

It is probably necessary to mention daily showering, using deoderant and wearing clean clothes daily. Not every employee will automatically be aware of these strategies.  

Yes, this policy could easily backfire.

Establishing a policy where employees in certain positions (such as the company president and vice presidents) have additional vacation time is not really an issue. Many companies negotiate perks like vacation time individually with executives, so there may not be conformity among those in different positions.

However, creating two classes of exempt employees with different working conditions and benefits may well result in discrimination if, for example, most or all of the *leadership* employees are male, or Caucasian. By the same token, this practice is defacto discrimination if none of the Hispanic or African American employees in the company fall into the *leadership* category. Under Title VII of the Civil Rights Act of 1964, it is illegal to discriminate in employment based on race, color, sex, national origin, religion, or age. Similar laws outlaw discrimination based on pregnancy or disability. Employment discrimination includes pay, working conditions, benefits, hiring, firing, promotion, etc.

Under Title VII, when a policy has a disparate effect on members of a protected group, that policy is discriminatory — even if it was not the employers intention to discriminate. In this example, if all the Asian or female managers fall into the *exempt* category, but not the *leadership* category, this would be de facto discrimination against Asian or female employees.

While it is very common for employees to have different job discriptions and duties, having different benefits can easily be deiscrimination. For example, in 2007 the EEOC filed and won a case against the Niketown store on Michigan Avenue in Chicago because the store (like others in the chain) gave employee discounts to full-time workers, and not to part-time employees. About 80% of the stores African American employees were part-time. The EEOC ruled that giving this benefit only to full-time workers meant most Caucasian workers enjoyed the benefit, and most African American workers did not. The EEOC found that this was de facto discrimination, even though that was Nike’s intention. Nike paid more than $6 million in damages and penalties for this and other discrimination at the store.

Of course, it is possible if this additional benefit results in a lawsuit or EEOC complaint, that the company might win. It is also likely to cost more than $100,000 in attorneys fees to defend the suit.  Your CEO needs to determine if the possible cost is worth it to him.

This policy also sends a message to employees that certain executives are above the law, and that the company does not treat all employees fairly. It suggests that the company does not value hourly and exempt (non-leadership) employees.  We recently saw the type of outrage this sense of entitlement generates, when AIG executives were awarded $165 million in bonuses. This type of elitism is not good business management in the 21st century. It is almost guaranteed to reduce employee morale.

A better tactic would be for the company to reward executives with additional weeks of paid vacation, higher salaries, or performance-based promotions.

No, this is really not an issue. As an employer, you have the right to change policies — including the dress code or personal appearance policy — at any time. There is no law that the employer must object to the employees appearance during the interview, or keep silent forever afterward. The employer can decide at any point that tattoos or excessive piercings are a problem, and take action at that time. As long as this policy is enforced uniformly against all employees, it is not discrimination and is not problematic.

Put very simply, any companys policies are subject to change, and the employees must adapt to the changes.

You should issue the new policy in writing, preferably giving employees advance notice of a week or two. You should also counsel existing employees with visible tattoos on covering them while at work. For example, an employee with a tattoo on her neck might be advised to wear a turtleneck under her uniform top. An employee with a tattoo on his hand might be encouraged to wear gloves, if practical. Small tatoos can be covered with a band-aid while at work. Although tattoos are becoming more accepted, individuals with visible tattoos should already be aware that those adornments limit their employment opportunities.

Employees with pierced body parts have the option of not wearing the jewelry at work. For example,  an employee with a pierced tounge or nose could simply leave out the stud while at work. If an employee has a pierced navel, wearing clothing that covers the stomach should conceal it. As an employer, it is really not your concern what ink or hardware the employee is hiding under his or her clothes — what is visible, is your concern.