By Richard T. Seymour
Copyright © 2010, Richard T. Seymour
Better Ways of Managing Employment Disputes: Training New Supervisors
Most employment disputes involving claims of discrimination, retaliation, or harassment, never make it to court. Employees choose not to pursue some disputes that far, or both sides reach a resolution before the EEOC or a State or local agency.
Of the cases that do make it all the way into court, however, an astonishing number involve the actions of new supervisors.
My personal perception is that employers, employees, and especially the new supervisors frequently mishandle the kinds of problems that predictably arise when a new supervisor is assigned. The result is a discrimination or retaliation complaint or lawsuit that could have been avoided.
Why Are New Supervisors Assigned?
There are three principal situations when a new supervisor is assigned, and the problems differ based on the situation.
First, a new supervisor may be assigned as a matter of routine, to replace a prior supervisor in a well-functioning unit, without any perception by higher levels of management that any important changes need to be made.
Second, a new supervisor may be assigned because higher levels of management do believe that important changes have to be made. A small unit that has operated effectively without its own supervisor may need to take on different or additional duties, or may be slated for expansion, and someone needs to oversee the changes. New equipment may require new skills, and a hands-on supervisor may be required to make it happen. The most urgent situation is that employees in the unit may have been performing poorly, and the prior supervisors may have let things slide, or may have been ineffective in dealing with problems, or may be unsuited to the future tasks of supervision.
Third, higher levels of management may use the occasion of a routine need for personnel change as a trigger to address perceived problems in the unit.
All of these occasions are completely legitimate judgment calls for managers to make. In the present economy, it should be clear to all that the failure to make needed changes and improve performance may make the difference between the survival and failure of the unit, or even of the employer itself. Everyone is relying on the ability of managers to make these decisions, experiment with what might work, and nimbly change direction as often as needed.
Does the Culture of Management Make a Difference?
It cannot be over-emphasized that management culture in dealing with employees makes an enormous difference in whether a dispute arises, and whether disagreements wind up in a complaint or lawsuit.
Many employers that end up in court are “close-mouthed” employers, in the sense that they do not communicate effectively to employees, in plain language, what management is doing, why they are doing it, and why employees should help to make changes work.
Speaking the plain truth matters. Employers who have over the years built up a reputation with employees for “playing it straight,” and for treating employees fairly, have small difficulty persuading employees to help make change happen. Employers who fail to provide the information the employees want to know, or who feed them false information, tend to make their own difficulties.
Employees are not fooled by double-talk, or by sham internal complaint procedures. Such a managerial culture discourages the enthusiasm that is needed to make management’s plans succeed.
Does It Make a Difference if a Union is Involved?
Supervisors should know, of course, that there are rules laid out in labor legislation when they are providing feedback to employees or disciplining them. These must be followed.
My point here is different. Experienced managers are aware that unions are extremely useful in acting as checks on the arbitrary actions of supervisors, and it has always seemed to me that they make a very large difference with respect to the mistakes of new supervisors. A lot of problems are resolved when a shop steward simply talks to an employee about the merit of a grievance, or talks to her or his opposite number on the management side about what the supervisor has done.
This informal process, before any lawyers are involved, gives both management and employee a chance to fix an avoidable problem before it goes further.
The union has an obligation to represent every employee in the bargaining unit fairly, but this does not mean that they have to call a strike or take every problem of every employee to the last degree, including arbitration. Within reasonable limits, unions have to have the ability to set priorities in light of the interests of the bargaining unit as a whole.
Unions are thus not a panacea for all problems in the workforce, particularly when there is a dispute among the employees in the bargaining unit, but their roles as safety valves in the workplace are not as appreciated or well understood as they should be.
What Problems Can Arise With a New Supervisor?
It is critical that a new supervisor, whether promoted from inside the unit or selected from outside the unit, has to establish her or his authority. This can be tricky.
The most common problem is that it is simple human nature for new or challenged supervisors to find a quick way to assert their new authority. Too often, this means an arbitrary decision, and sometimes an uninformed decision. New supervisors need to understand the old adage that, “if it ain’t broke, don’t fix it.”
New supervisors may have good reasons to want to change something, or get rid of someone, or bring into the unit someone with whom the supervisor has previously worked, but these are only paths to the goal of making the unit succeed. Achieving the goal requires both knowledge and flexibility, and too often new supervisors feel that listening to the employees in the unit — or recognizing that an initial decision is not working as hoped and changing it — would undermine their new authority.
Even where the new supervisor has been perfectly reasonable, an equally bad situation can arise if the employees in the unit wrongly believe that the supervisor is simply throwing his or her weight around, and that there is no point in trying to stay on the right side of the new supervisor.
Even worse, the new supervisor may start acting on the basis of personal predilections or bias, and may see his or her promotion as a “green light” for acting on the basis of personal bias, and the employer then faces an exposure it never intended.
In their 1969 book, The Peter Principle, Dr. Laurence J. Peter and Raymond Hull described a theory under which people who perform well in positions tend to be promoted, and to keep being promoted, until they land in a job they cannot handle well. Their progress tends to stop at that point, but they are not taken out of the position they are not performing well. In the language of the authors, they were promoted to their “level of incompetence.” There is a fair amount of truth in this observation, and it is applicable to some — hopefully few, but still some — new supervisors.
And worse yet, a new supervisor faced with an internal complaint may not have been trained, or may not stop to think, that it is usually much easier to prove retaliation than to prove the underlying discrimination claim. Such a supervisor may surrender to the urge to lash out at the employee who made the complaint, and a well-founded — and highly provable — retaliation claim can emerge.
The managers who chose the new supervisor legitimately feel a need to support the new supervisor come what may, and often do not think seriously whether the new supervisor and the employer would benefit more from a guiding hand than from reflexive support. By the time they realize that things have escalated out of control, it may be too late to avoid a dispute that has to be resolved in an outside agency or in court.
The standard corporate fail-safe of an internal complaint system too often smashes on the rocks of these first- and second-level managerial reactions, robbing it of its power to protect the employee from arbitrary action, to protect the employer from exposure to litigation and liability, and to train the supervisor where the training is most needed.
Better Strategies for New Supervisors
Every supervisor, and the employees in every unit, will have different strengths and weaknesses. A well-advised supervisor will try to find out whether there are particular difficulties in the new assignment, and what they are.
New supervisors should understand that their future success and career path will be affected by how effectively their employees support whatever new plans and changes managers think should be made. They should think about how to persuade this group of employees that it is important for them to get on-board with the change program.
New supervisors should talk with all of their employees, get their suggestions, and try to build at least some of the better suggestions into what the unit does. This is particularly important with employees who feel that they had legitimate grievances against prior managers, or who are in a small minority in the workplace (i.e., few women or few men in the unit, few of a particular race or ethnic group, few disabled, few of a particular religion, etc.).
New supervisors should get a sense of which employees the other employees respect, or who seem the most reasonable or effective, and regularly listen to their suggestions.
New supervisors need to understand the importance of demonstrating authority by making their expectations clear, providing routine feedback as to how employees are doing, being consistent when the expectations are not met, and making sanctions progressive. There is no better way to do it.
An under-appreciated leadership skill is the willingness to make an occasional apology for a mistake. Course corrections are much better than spectacular smash-ups on the rocks, followed by pink slips all around. Demonstrations of a willingness to learn and respect for good employees make for much smoother progress.
New supervisors who master this skill of flexibility will have a far easier time leading employees and getting their enthusiastic support for even the most uncomfortable or unwelcome changes.
A supervisor who is known as being firm, open-minded, consistent and fair will have far less difficulty motivating employees that a supervisor lacking one of these qualities.
How Can Employers Do It Better?
The model to follow here, as in so many other aspects of life, is provided by baseball. Players with promise are sent up the majors, trained, counseled, cajoled, and observed. If they do well, they play more often or in a better position, and are rewarded for their progress. If they are not up to the demands of the majors, they are yanked and sent back to the minors for more seasoning.
Employers’ choice of a corporate culture is important. Employers that are “open” — in the sense described above — have fostered a corporate culture that will encourage the qualities of openness they need. If there are real changes that have to be made quickly, they should give reasonable explanations to their employees and try to gain the support of employees for the changes. Employees of a company in a difficult situation are encouraged if they see management confronting real problems in a functional manner, while trying to be open and fair as they go about it.
The alternative of a closed culture can result in lowered morale, lowered productivity, high absenteeism and turnover, high training costs, and in touch economic times a thinner margin between the employer and bankruptcy.
Employers should provide feedback to new supervisors: Employers should provide both training and a feedback period to new supervisors and to supervisors promoted to greater levels of authority.
Employers should consider new or newly promoted supervisors probationary for a period of time long enough to see whether they are causing avoidable problems, or are instead defusing problems at an early stage.
Employers should give new or newly promoted supervisors a chance to improve before yanking them from their new positions, but should have no hesitation in replacing them if they either engage once in truly unacceptable conduct or repeatedly fail to improve despite the guidance they have received.
Internal complaint systems need to be audited from time to time to make sure they are being run by people who are both sensible and fair-minded. Automatic advocates for either employees or supervisors degrade the process. When this happens, the protection employers want to have against problems caused by arbitrary or unlawful actions becomes an illusion and exposure can accumulate.
How Can Employees Do It Better?
Employees faced with a new supervisor, whether they work for a “closed” employer, an “open” employer, or something in between, need to make a few new resolutions and to repeat them at home mornings and evenings until they are second nature. New and newly promoted supervisors would also profit from the same steps:
–> My flexibility is often the key to success in all of my relationships.
–> My work relationships are no exception.
–> I cannot let myself object to every change, just because it is different from the way we’ve always done it.
–> I cannot let myself object to doing things in a new way, just because it is different.
–> I can learn to do anything the job requires, and do it well!
–> I am not too young or too old, or too set in my ways, to work in whatever new way the company feels it has to throw at me!
–> I will try as hard as I can to have a good working relationship with the new supervisor.
–> I need to figure out what the employer has in mind for this new supervisor to do, and help the new supervisor and the unit to succeed.
–> If I think I know a better way for a problem in my unit to be handled, I will make a suggestion.
–> If my suggestion is not accepted, I will not let my nose get out of joint. If necessary, I will go to a chiropractor to push it back into shape. Or ask my spouse and kids, who will be only too happy to oblige.
Following all of the above suggestions will not bring about “workplace heaven” or guarantee an absence of disputes, but it will reduce greatly the avoidable disputes that have to be taken to internal dispute-resolution channels, filed with a government agency, or filed in court.
The suggestions above will also not eliminate all of the internal biases or retaliatory feelings supervisors or other employees may have, but all the law requires is that no one act on such biases or feelings.
Employment litigation before an administrative body, a court, or an arbitrator is in variable degrees much more expensive, time-consuming and unpleasant for both sides than following the above suggestions would be. Everyone — new and newly promoted supervisors, employers, and employees — can try to avoid the disputes that lead to these consequences.
From 1996 to 1997, I co-authored fifteen volumes of descriptions of decisions by federal Courts of Appeals in employment discrimination, for a book published by the Bureau of National Affairs (“BNA”) for the American Bar Association Section of Labor and Employment law, called Equal Employment Law Update (copyright © American Bar Association 1996-2007).
My co-authors were management lawyers Barbara Berish Brown of Paul Hastings Janofsky & Walker LLP in Washington, and John Aslin of Perkins Coie in Seattle. Our goal was to analyze and describe the critical features of the several hundred noteworthy employment law decisions handed down each year. They are among the finest defense lawyers in the country, and it was a privilege to work with them.
From time to time, I intend to offer some personal observations drawn from the review of so many cases and from decades of counseling employees and some employers, and from sitting down with friends who represent employers and trying to hash through the real problems in the employment relationship.
What I say in my blog, of course, is only my personal views and does not reflect my co-authors’ views or the views of the American Bar Association or its Section of Labor and Employment Law, or of any other organization with which I am affiliated.
While I usually represent plaintiffs, I also occasionally represent or am aligned with the employer, or the person accused of harassment or discrimination. I mediate employment cases, which means I have a first-hand chance to see the messes that one side or the other — or both — has made of the employment relationship, and have an opportunity to build a solution with which everyone can live.
I also arbitrate employment cases for the American Arbitration Association on occasion, which provides a valuable but completely different perspective on the problems that can grow out of clashing expectations and perceptions, misunderstandings, and miscommunications in the workplace.
- Copyright © 2010, Richard T. Seymour
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