Who's the crappier manager, me or my boss?
September 5, 2010 7:02 PM   Subscribe

Should I follow my own standards or my manager's when it comes to setting expectations for a contract employee I manage? What if there are ethical or legal concerns? (ARE there ethical or legal concerns?)

Last year, I was given a promotion, and as part of that promotion, I was asked to take over management of a contract employee. My company uses a lot of contract employees for entry-level work; we're a large software/IT company in California. This employee is a veteran of the first Gulf war, and due to a combat injury, has an ostomy device.

The ostomy device gives him some trouble, and in the past year, he's frequently needed to have it serviced at the VA, and recently needed to have it replaced. Because of these demands on his health and his time, he's not always physically present in the office during our core hours. He always works his 40 hours a week, though, and he always meets his deadlines. He's also very responsive by phone and by email when he's not present.

My feeling is that if he's working his hours and making his deadlines, that's good enough. My manager, though, wants me to take a harder line with him and enforce the necessity of him being present in the office every weekday from 10 AM - 4 PM. She points out that this was part of the employee contract he signed, and that it's appropriate to enforce it. I'm worried that could violate ADA and veterans' rights guidelines, plus it seems like a shitty thing to do to a permanently injured combat veteran. But she's my manager, and she's already dinged me for this on my review this year. What should I do?

Throwaway email: whosthecrappiermanager@gmail.com
posted by anonymous to Work & Money (10 answers total) 2 users marked this as a favorite
Talk to your HR. Do what they tell you to do.
posted by jstarlee at 7:05 PM on September 5, 2010

And if they tell you to come down hard on this guy, resign.

Jesus. Some days I cannot believe corporate culture.
posted by flabdablet at 7:15 PM on September 5, 2010 [7 favorites]

So not your lawyer, or a lawyer, and I think your HR person will have the answer you're looking for.

Now that that's out of the way, but I think, ADA-wise, you're asking about 'Reasonable Accommodation and Undue Hardship under EEOC guidelines, which is here: http://www.eeoc.gov/policy/docs/accommodation.html

The relevant text is below, and suggests that your employee can request modifying his schedule as long as it doesn't cause undue hardship, that is, as long as the person is getting the job done. But the question is - are the work hours central to the job. You say no, but your boss may think that their presence is affecting morale - others may feel it's not fair, or that the person is slacking, etc. There are ways that good managers address that, and the answer isn't 'making the person' come in. Another issue is that it sounds like this guy didn't formally ask for accommodation specifically, he just asked for some time off - so is he currently using sick leave, or what? That could be part of the issue for your boss as well.

But yeah - it could be that if you make a move against the person to ding them in a performance evaluation or fire them, that you would be opening up hell in a teapot. Get yourself to the HR person, and at the very least, point out to your boss that part of your challenge is that you need a better understanding of the ADA guidelines before you take action against that person, because you are under the impression that they are asking for a reasonable accommodation.


Sorry for the long EEOC text: http://www.eeoc.gov/policy/docs/accommodation.html

Modified or Part-Time Schedule

Must an employer allow an employee with a disability to work a modified or part-time schedule as a reasonable accommodation, absent undue hardship?
Yes.(63) A modified schedule may involve adjusting arrival or departure times, providing periodic breaks, altering when certain functions are performed, allowing an employee to use accrued paid leave, or providing additional unpaid leave. An employer must provide a modified or part-time schedule when required as a reasonable accommodation, absent undue hardship, even if it does not provide such schedules for other employees.(64)

Example A: An employee with HIV infection must take medication on a strict schedule. The medication causes extreme nausea about one hour after ingestion, and generally lasts about 45 minutes. The employee asks that he be allowed to take a daily 45-minute break when the nausea occurs. The employer must grant this request absent undue hardship.

For certain positions, the time during which an essential function is performed may be critical. This could affect whether an employer can grant a request to modify an employee's schedule.(65) Employers should carefully assess whether modifying the hours could significantly disrupt their operations -- that is, cause undue hardship -- or whether the essential functions may be performed at different times with little or no impact on the operations or the ability of other employees to perform their jobs.

If modifying an employee's schedule poses an undue hardship, an employer must consider reassignment to a vacant position that would enable the employee to work during the hours requested. (66)

Example B: A day care worker requests that she be allowed to change her hours from 7:00 a.m. - 3:00 p.m. to 10:00 a.m. - 6:00 p.m. because of her disability. The day care center is open from 7:00 a.m. - 7:00 p.m. and it will still have sufficient coverage at the beginning of the morning if it grants the change in hours. In this situation, the employer must provide the reasonable accommodation.

Example C: An employee works for a morning newspaper, operating the printing presses which run between 10 p.m. and 3 a.m. Due to her disability, she needs to work in the daytime. The essential function of her position, operating the printing presses, requires that she work at night because the newspaper cannot be printed during the daytime hours. Since the employer cannot modify her hours, it must consider whether it can reassign her to a different position.

How should an employer handle requests for modified or part-time schedules for an employee covered by both the ADA and the Family and Medical Leave Act (FMLA)?(67)
An employer should determine an employee's rights under each statute separately, and then consider whether the two statutes overlap regarding the appropriate actions to take.

Under the ADA, an employee who needs a modified or part-time schedule because of his/her disability is entitled to such a schedule if there is no other effective accommodation and it will not cause undue hardship. If there is undue hardship, the employer must reassign the employee if there is a vacant position for which s/he is qualified and which would allow the employer to grant the modified or part-time schedule (absent undue hardship).(68)An employee receiving a part-time schedule as a reasonable accommodation is entitled only to the benefits, including health insurance, that other part-time employees receive. Thus, if non- disabled part-time workers are not provided with health insurance, then the employer does not have to provide such coverage to an employee with a disability who is given a part-time schedule as a reasonable accommodation.

Under the FMLA, an eligible employee is entitled to take leave intermittently or on a part-time basis, when medically necessary, until s/he has used up the equivalent of 12 workweeks in a 12- month period. When such leave is foreseeable based on planned medical treatment, an employer may require the employee to temporarily transfer (for the duration of the leave) to an available alternative position, with equivalent pay and benefits, for which the employee is qualified and which better suits his/her reduced hours.(69) An employer always must maintain the employee's existing level of coverage under a group health plan during the period of FMLA leave, provided the employee pays his/her share of the premium.(70)

Example: An employee with an ADA disability requests that she be excused from work one day a week for the next six months because of her disability. If this employee is eligible for a modified schedule under the FMLA, the employer must provide the requested leave under that statute if it is medically necessary, even if the leave would be an undue hardship under the ADA.
posted by anitanita at 7:23 PM on September 5, 2010 [2 favorites]

Oh, and...your boss is the crapper manager. She's a crappy manager to you.

Because as soon as she saw that ostomy device, she should have realized she was out of her depth in terms of understanding accommodation and at least cleared the whole thing with HR. Then, when she dinged you in your performance evaluation, she should have made it clear that the institution had already decided that this was not a reasonable accommodation issue, and that your employee needed to be there during those hours.

It doesn't sound like she checked on this, and she's put you in a crappy spot. She's pressing down on you, which is no big deal - but she wants you to press down on him. This means if he does get all ADA/litigious, it's your ass on the line denying reasonable accommodation to a disabled veteran who you yourself admit is completing the work, not hers, since you're the direct supervisor. You minus well have a youtube video of yourself online throwing puppies into a river for all the shit that could come your way. And she might then just hang you out to dry as everybody and their sister in that company tries to distance themselves from you to limit bad press.

Crappy manager gold star for her.
posted by anitanita at 7:40 PM on September 5, 2010 [4 favorites]

Your boss should be assessing you for your performance at getting results, AFAIC. If you're violating culture or law, then she can ding you, otherwise I think it's none of her business, as a co-worker, it's totally irrelivant, as a supervisor, and it's a crappy thing to do, as a human.

You sound like a good manager.
posted by Quadlex at 7:51 PM on September 5, 2010

I do so many dumb things myself it generally takes something pretty stupid just to get me to open my eyes all the way, but I am totally shocked by your manager's foolishness.

What she's done already is enough to damage her reputation severely if it were to become generally known inside the company or out. If it goes much further, say if she were to fire him solely because he isn't in the office at the specified hours, and any media got hold of the story, she could find herself out of a job and unemployable until the story dies down a bit, not to mention being an object of general contempt.

I admire you for what you've done so far and for your motives, but I advise you, strictly for your own sake, not to involve yourself in harassing this man in any way, because your reputation is at much at stake as hers is if you do.

First, make sure you have as verifiable a copy as possible of the performance review where she dings you for letting this guy do his work without having to come in the way she would like.

Then flatly refuse to take a harder line with him because it could ruin your reputation, hers, and the company's.

After that, depending on whether you want to play hardball or not, you could take the performance review to higher management and get her removed. I'm afraid you might really have to, because it's hard to imagine a person who would act this way in the first place would be anything but vengeful.
posted by jamjam at 8:17 PM on September 5, 2010

Does your manager realize or care that if this gets out - some enterprising writer or blogger decided to make this a cause celebre - mistreating an injured veteran might well make the whole company look bad - "That's company X, you know, where they fired Joe because of his combat injury." You might want to bring this up (tactfully) with your boss - if it gets out that a disabled veteran was ill-treated or forced out this might lose you customers right and left.

Don't crack down on this guy - it's neither the legal nor the ethical thing to do.
posted by Rosie M. Banks at 8:27 PM on September 5, 2010 [2 favorites]

I think you should consult an employment lawyer to protect yourself and get some guidance on how to document the situation, and to dind out whether you may yourself be protected for standing up for your employee's rights.
posted by yarly at 8:31 PM on September 5, 2010 [1 favorite]

IANAL If you treat a contractor as an employee in terms of schedule, you may end up having to treat them as an employee, in terms of insurance, vacation, overtime, sick time, disability insurance, etc. Ask HR.

When you talk to your boss, emphasize the productivity of the employee and your concern about potential liability to the company. Use the flattery phrases "I knew you'd want me to be cautious" and "When you coached me on managing this staffer."

And, do the right thing, as well as the legally right thing. Your instincts are serving you well.
posted by theora55 at 8:41 AM on September 6, 2010

Is it possible that he might be able to re-arrange some of his appointments? It's not unheard of for contract types to not think of how things look to the boss. She does sound like an ass, but I think if you go as cautiously as you can, you can cover your own ass and appease her.

Does the company have a handbook for contract workers? Is the a published policy that you can somehow show her, all under the idea of making sure the company is protected?

Flatly refusing something gets you canned, and there's no one to protect this guy.
posted by Ideefixe at 5:59 PM on September 6, 2010

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