July 25, 2018
The law assigns greater responsibility and greater significance to the statements, actions, and inaction of “supervisors” as compared to non-supervisors. Under the law, a supervisor may be deemed to be the employer; thus, if a supervisor takes improper action or fails to act when he or she should, the action or the failure to act may be imputed to the employer. Following are some examples of this principle:
If an employee complains of harassment to a supervisor, who does not forward the complaint to human resources for investigation for three weeks, the employer may be deemed to have failed to respond promptly to the complaint because of the supervisor’s three-week delay, even if human resources began investigating the complaint the same day the supervisor reported it to human resources.
If a supervisor asks an impermissible question during a hiring interview, the employer may be found in violation of various employment laws, even if someone other than that supervisor made the hiring decision and even if the impermissible question did not play any role in the hiring decision.
If a supervisor is aware that an employee has a medical condition that could qualify as a “serious health condition” under the Family and Medical Leave Act (“FMLA”), the employer may be deemed to be on notice of the employee’s need for FMLA leave.
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If a supervisor has not documented an employee’s performance deficiencies (e.g., through counseling forms/memos, disciplinary action, and/or honest and accurate performance evaluations), the employer’s decision to terminate an employee for performance deficiencies may be subject to attack as pretextual or otherwise improper.
If a supervisor makes an anti-union remark, then – depending on the context – disciplinary action could be set aside, the employer could be deemed to have engaged in an unfair labor practice, or a union election (in which the union lost) could be set aside.
Because of the legal significance of supervisors’ actions and inaction, it is important that supervisors be provided with the information and knowledge necessary to reduce potential liability for the employer. As described below, such information and knowledge will also help supervisors avoid potential personal liability, which is a risk under numerous employment laws.
B. Personal Liability for Supervisors
Many laws – including Hawaii’s employment discrimination laws, certain state or federal leave laws, wage and hour laws, and workplace safety and health laws – permit supervisors to be sued individually for their acts or failures to act. Supervisors may also face liability under laws of general applicability (non-employment specific laws) for such things as obstructing an investigation, destroying evidence, or lying under oath. In addition, supervisors may face liability under common law theories such as invasion of privacy, defamation, infliction of emotional distress, fraud or misrepresentation, etc.
It is an increasingly common trend to see supervisors sued individually, along with the employer, in employment cases. Recent jury verdicts in Hawaii illustrate the potentially significant individual liability for those found to have engaged in harassment; in both cases, juries assessed six-figure judgments against the harassers, personally:
Ho vs. Kissinger, Hawaiian Airlines (May 8, 2007): sexual harassment, infliction of emotional distress, invasion of privacy
- Compensatory damages: $120,000
- $66,000 attributable to individual pilot
- Punitive damages: $390,000
- $140,000 attributable to individual pilot
- Total award against individual pilot: $206,000
No judgment against another supervisor accused of not responding appropriately (but supervisor remained in case through trial) Aoki v. H.I.S. Hawaii (Dec. 7, 2006): sexual harassment, retaliation
- $135,000 in compensatory damages;
- $1.1 million in punitive damages;
- $100,000 attributable to supervisor
- Total award against individual supervisor: $100,000
In May 2012, the Hawaii Intermediate Court of Appeals interpreted the term “employer” in the Hawaii Employment Practices Law to mean supervisors, individually. The Hawaii Supreme Court agreed to consider the question and will issue a final and binding decision (not yet issued as of the date these materials were submitted). See Lales v. Wholesale Motors Co., No. 28516, 2012 Haw. App. LEXIS 477 (Haw. Ct. App. May 9, 2012), cert. granted, 2012 Haw. LEXIS 323 (Haw. Oct. 9, 2012).
C. Reducing the Risk of Personal Liability
Ten general suggestions for reducing the risk of personal liability andensuring proper action on behalf of the employer are listed below. Many of these suggestions are discussed in greater detail in particular contexts (e.g., hiring, discrimination/harassment complaints, performance evaluations, discipline and discharge) in the sections of these materials that follow.
1. Act within your authority
a. Follow company policies and rules
b. Discipline within company policies and rules
c. Understand your role -- advisor vs. decision maker
2. Act in good faith – do your best to do the right thing, for the right reason
Definition: Having honest intention
Compare “bad faith”: Malicious motive or intent to deceive
3. Make sound and supportable decisions
a. Full and fair investigation
b. “Due process”
c. Documentation to support decision
d. Based on legitimate and objectively reasonable grounds
4. Ensure consistent treatment of similarly situated employees
a. Review comparable situations
b. Higher level review/decision?
5. Be honest
a. Reasons for decision
b. Possible outcomes
c. In litigation (truthful testimony, retention of documents)
6. Maintain confidentiality of information
a. Consistently with company policy
b. Keep files/documents in secure location (note particular rules for certain kinds of information)
- Medical records
- Genetic information1
- Mental health records
- HIV/AIDS records
- Drug testing records
- Social security numbers
c. Be discreet in conversations
d. Limit information to those with legitimate need to know
e. Exercise particular care with respect to external disclosures
(1) Employment references
(2) Consent from employee/former employee
f. Just the facts
7. Have a witness
8. Avoid statements or conduct that could be deemed “threatening”
a. Overt threats
- “I’m so mad I could kill you”
- “Don’t make me go postal”
- “You better watch your back”
- “I know where you live”
b. Body language
c. Touching
d. Blocking/cornering/detaining
e. Be judicious in use of security guards
f. If force is necessary, defer to police, security personnel, etc.
9. Do not obstruct government investigations, litigation, etc. Government inspector/investigator shows up on premises Government request for information Destruction of records
10. Exercise common sense and remember the “golden rule”
D. Areas of Particular Importance for Supervisory Training
Any area of the employment relationship that is heavily regulated and in which supervisors play a role is a potential area where supervisors’ actions or inaction have liability risks for both the employer and the individual supervisor. These materials focus on some of those key areas:
The hiring process; Discrimination, harassment and retaliation issues; Disability and leave of absence issues; Employee performance problems; Discipline and discharge decisions; and Issues in the union context.
1 “Genetic information” includes information from genetic tests and information about a family member’s manifested disease or disorder.