At this point, millions have watched the movie “Bird Box” on Netflix. If you’re like me, your principal motivation for seeing the film was so you would not feel left out, or totally confused, when you scrolled through the dozens of Bird Box memes saturating social media. As a parent, I found the meme of blindfolded children, passing by a sink full of dirty dishes yet being unable to see them, especially hilarious and relevant as my own children similarly suffer from selective vision when it comes time to do their chores or clean up after themselves.
All of this Bird Box-induced mania got me thinking. Is there a lesson here for HR? Yes, and it is this: Unlike the dystopian fantasy world of Bird Box, HR professionals cannot ignore potential risks in the workplace in the hopes that they will just pass them by. Sure, that strategy may have worked for Sandra Bullock and her unimaginatively-named kids “Boy” and “Girl,” but it will spell disaster for your organization. Here in the real word you need to take a long, hard look at what is going on in your workplace, and attack your demons head on.
Courts have long recognized that an employer’s willful blindness is not a valid defense strategy to avoid employment law claims. Well-meaning employers frequently find themselves with an adverse judgment because they “looked the other way” or “put their head in the sand” or otherwise “failed to act” when they “knew or should of have known” that there were problems brewing in the workplace. I have witnessed this so-called Bird Box Method in action, time and time again, in the following scenarios. Take a look, if you dare, to see if any of these apply to you:
Have you observed employees telling dirty jokes at the water cooler and laughed right along with them? Have you received or, heaven forbid, forwarded along an off-color or racially-insensitive joke that you received by email from a co-worker? Have you ignored inappropriate comments or behavior toward an employee because the employee has not formally complained? Has an employee confided in you that her supervisor makes her feel uncomfortable or unsafe, but you’ve done nothing to address the situation because the employee asked you to “keep it confidential?”
Failing to Engage in the Interactive Process
Have you noticed an employee struggling to perform some of the functions of his or her position? Do you know that the employee is suffering from a disability because it is obvious or because the employee has shared information with you that put you on notice that the employee was having difficulty due to a medical problem? Have you approached that employee to find out whether there is a reasonable accommodation the employer could offer to enable the employee to perform the job? Or, have you instead ignored the floundering employee unless or until the magic words “I require an accommodation” are spoken?
Overlooking Wage and Hour Violations
Have you observed your non-exempt employees sitting at their desks before the work day begins or after it ends? Does your assistant clock out and eat lunch at her desk while she is still expected to answer your calls and emails? Do some of your exempt employees carry the title “manager” in name only, even though they have no supervisory authority and no managerial responsibility for the operation of the business? Are you aware of a supervisor who changed an employee’s timesheet because the employee worked overtime without approval, against company policy? Has an employee complained that he was instructed to work overtime but not to record the time on his timesheet? Has an employee expressed that it is impossible to get all of his work performed during normal work hours so his supervisor allows him to “volunteer” to work off-the clock in exchange for comp time?
Dispensing with Corrective Action for Poor Job Performance
Have you noticed an employee’s job performance declining and, instead of developing an improvement plan or addressing the performance issues with the employee, you just bide your time and eventually demote or discharge the employee? Have you ever let an employee go for poor performance, and the employee was shocked because he had no idea he was not performing to your expectations? Have you ever discharged an employee for a reason without any documentation, warning, or corrective action?
If you answered yes to any of these questions, then you too have employed the Bird Box Method of HR, which exposes your organization to legal risk. Don’t be frightened. Unlike the apocalyptic realm of Bird Box, it’s not the end of the world. Just take off that blindfold and stare down your workplace problems with courage. With your eyes wide open, you can avoid crashing your business against the rocks and fumbling around in the dark, always waiting for something bad to happen. Finally, if you need help vanquishing those workplace demons, call an employment lawyer to help guide you on your way.
- Marilyn G. Moran has been representing employers for nearly 20 years as a trusted advisor and experienced litigator. She is passionate about learning her clients’ businesses from the ground up and working with management and HR to solve problems and implement smart business solutions. In addition to litigating cases through the judicial and arbitration process, Marilyn provides advice and training on a wide variety of employment law issues, including discrimination, harassment, retaliation, wage and hour violations, and reductions in force. She also helps employers navigate the process of accommodating employees with disabilities under the ADA and managing employee leave under the FMLA. Find her on Twitter and LinkedIn.