How to avoid employee lawsuits (in 4 easy steps)

Today’s Wall Street Journal offers the following three tips to small business owners to avoid lawsuits by employees:

1. Classify employees properly.
2. Maintain an antidiscrimination and harassment policy.
3. Document, document, document.

These are all excellent points, each of which I have covered here in depth in the past. Let me suggest, however, that each of these considerations are meaningless unless you add a 4th step to this list – Training. Your supervisors and managers need to know:

1. What your overtime policy is and how employees are supposed to be paid.

2. What discrimination and harassment mean, how to recognize them, and what to do upon witnessing it or receiving a complaint.

3. In a judge’s or jury’s eyes, an empty personnel file means that there are no problems with the employee. A blank slate will lead to search for an illegal reason for the termination.

Without this crucial 4th step, you leave a gaping hole to be exploited by employees in the lawsuits that are certain to be filed as a result of mistakes made by your management. Consider hiring a professional to train your managers and supervisors on an annual basis. The training costs are a drop in the bucket as compared to potential legal fees defending lawsuits and funding settlements or judgments.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #115

This week, the EEOC published proposed regulation on the reasonable factors other than age defense under the ADEA. The regulations (available for download as a PDF from Regulations.gov) suggest that the following 6 factors are relevant in
determining whether an employment practice is reasonable:

1. Whether the employment practice and the manner of its implementation are common business practices;

2. The extent to which the factor is related to the employer’s stated business goal;

3. The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);

4. The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;

5. The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and

6. Whether other options were available and the reasons the employer selected the option it did

Factors relevant in determining whether a factor is ‘‘other than age’’ include:

1. The extent to which the employer gave supervisors unchecked discretion to assess employees subjectively;

2. The extent to which supervisors were asked to evaluate employees based on factors known to be subject to age based stereotypes; and

3. The extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.

For more on these new regulations, check out the following:

• EEOC’s Proposed Age Discrimination Regulation Introduces Practical Significance –Stephanie R. Thomas

• EEOC Proposes New Age Discrimination Regulations – Dennis Westlind’s World of Work

• Proposed EEOC Rule on ADEA Defenses – Workplace Prof Blog

• EEOC Addresses Scope of Reasonable Factors Other than Age Defense Under the ADEA – Washington D.C. Employment Law Update

As to the rest of the week’s best employment-related thoughts…

Non-Competition Agreements

• Do You Know the Muffin Man? Bimbo Prevents Him From Switching Jobs – Dan Schwartz’s Connecticut Employment Law

• Dunkin’ Donuts Sued by Alleged Drunkin’ Ex-Exec – Philip Miles’s Lawffice Space

• Rethinking noncompetes – Jay Shepherd’s Gruntled Employees

• Burning Bridges Upon Departure: It May Feel Good, but It’s Bad Form – The Business of Management

Disability (and related) Discrimination

• An Employee Need Not be Disabled to Pursue ADA Claim – Warren & Hays Employment Law Blog

• Proposed Changes to Psychiatric Manual Stir Lawsuit Fears – Walter Olson’s Overlawyered

• The 7 Most Common Mistakes Employers Make Under GINA – Greg Gordillo

Miscellaneous

• Here’s a Novel Idea: Read Your Own Company Handbook – Mindy Chapman’s Case In Point

• Personnel Files: Review Before or After Interview, or Not at All? – Debra Reilly’s Workplace Investigations Blog

• Use the anchoring bias to buoy up performance in mediation – Work Matters

• Waiting Time is Often Work Time … and Must be Paid – Overtime Advisor

• Privacy in the Workplace: E-Mail Does Not Equal Texting – Michael Haberman’s HR Observations

• Alabama Shooting and Background Checks – The Word by John Phillips

• Model Jury Instructions Deal With Social Media Head On – Molly DiBianca’s Going Paperless

• In federal employment discrimination claims, race and sex of judges matter (a lot) – David Yamada’s Minding the Workplace

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Ohio’s efforts to create its own WARN Act hit all the wrong notes

Ohio House Bill 434 – which would require employers to give advanced notice of mass layoffs, worksite closings, and transfers of operation – is currently pending in the House Commerce and Labor Committee. The bill would create a maxi-WARN for Ohio employers, and goes above and beyond the requirements of the federal WARN statute:

• Where WARN requires 60 days notice of mass layoffs of plant closures, HB 434 requires 90.

• HB 434 requires 120 days notice for employment losses of 250 or more employees.

• HB 434 defines “affected employee” and “employment loss” more broadly than the federal WARN Act.

• HB 434 expands the depth of information require in the written notice, including  to the written notice required by the federal WARN Act.

The killer provisions in the bill, however, are the damages and penalties, which are severe:

• Double back pay for each calendar day of the violation, plus

• The value of benefits from the employer’s employee benefit plan for the entire advance notification period, including the cost of medical expenses that the employee incurred during the employment loss that would have been covered under the employee benefit plan if the employment loss had not occurred, plus

• Other economic damages and exemplary damages suffered by the affected employee and caused by the violation, plus

• Reasonable attorney’s fees and costs, plus

• Civil penalties of $500 for each calendar day of the violation multiplied by the number of employees who suffered an employment loss, increased to $1,000 if the employer acted in bad faith through intentional, willful, or reckless conduct.

Moreover, under the federal WARN Act, an employer can pay in lieu of giving notice. In other words, instead of giving 60 days notice, the employer can simply pay the affected employees 60 days of severance pay, and effectively avoid liability. HB 434 limits an employer’s ability to pay in lieu. An employer cannot pay in lieu (and avoid liability) if:

1. The payments were voluntary and unconditionally paid in an amount that is less than the value of the wages and benefits to which the affected employee was entitled during the notice period; or

2. The payments were made pursuant to contractual obligations of the employer.

If passed, this bill would be disastrous for Ohio’s efforts to recover economically. As the last 18 months have shown us, businesses sometimes have to layoff employees or close their doors. Because this law will make it impossible for businesses to do so without a severe economic penalty, it will act as a strong disincentive for businesses to open in, expand in, or relocate to our state.

Everyone feels badly about good people losing jobs because of the economy. The answer, though, is to create an environment to fosters job growth, not one that erects a fence at our border to keep businesses – and jobs – out.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

“Sue first” mentality costs EEOC $4.5 million in sanctions, yet I question whether this is a good thing

Shoot first and ask questions later, and don't worry, no matter what happens, I will protect you.
—Hermann Goering

In EEOC v. CRST Van Expedited (N.D. Iowa 2/9/10) [pdf] (courtesy of Ross Runkel and Workplace Prof Blog), a federal judge tagged the EEOC with $4,467,442.90 in attorneys’ fees and costs for its “sue first, ask questions later litigation strategy” in pursuing a systemic sex discrimination case. What did the EEOC do (or, more accurately, what didn’t it do) that led to this huge fine?

• Following summary judgment 67 of the original 270 plaintiffs remained in the case. Those 67 claims, however, never made it to trial.

• The court dismissed the claims of the remaining 67 plaintiffs because the EEOC “did not conduct any investigation of the specific allegations of the allegedly aggrieved persons for whom it seeks relief at trial before filing the Complaint—let alone issue a reasonable cause determination as to those allegations or conciliate them.” Indeed, “the EEOC did not even interview any witnesses or subpoena any documents to determine whether any of their allegations were true.”

• The EEOC did not make a reasonable cause determination as to the specific allegations of any of the 67 allegedly aggrieved persons prior to filing the Complaint. In fact, 27 of the women alleged they were sexually harassed after the lawsuit was filed, and the EEOC did not learn the substance of the allegations of another 38 until after it filed its Complaint.

• The court concluded that the EEOC’s failures prejudiced the employer: “The EEOC’s failure to investigate the claims of the 67 allegedly aggrieved persons deprived CRST of a meaningful opportunity to engage in conciliation and foreclosed any possibility that the parties might settle all or some of this dispute without the expense of a federal lawsuit.”

My first instinct is to applaud this court for holding the EEOC’s feet to the fire. It’s comforting to witness governmental accountability for a lack of diligence in an era of increased vigilance in the enforcement of EEO laws.

Yet, I think this decision will have deeper implications for the agency and businesses. While it will act as an important check on the EEOC’s recent run of federal filings, it will also cause the EEOC to dig deeper and wider at the investigatory stage to support the lawsuits that it does file. The agency now has a roadmap from a federal court setting forth what is necessary pre-suit: complainant and witness interviews, document reviews, reasonable cause determinations, and an offer of conciliation.

In other words, applaud the visceral appeal of seeing the EEOC take one on the chin, but be very wary of the increased administrative burden this decision will likely place on your business in future EEOC investigations.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Unsupervised waivers of federal wage and hour claims

Generally, courts recognize only two ways for an individual to release or settle a claim for unpaid wages under the Fair Labor Standards Act: 1) a DOL-supervised settlement under 29 U.S.C. § 216(c), or 2) a court-approved stipulation of settlement. Failing to use of these two options for the approval of a waiver will likely result in the invalidity of the waiver an the employee being able to sue for any unpaid balance.

If you are engaged in active litigation with an employee, the latter option is easy to achieve. You simply submit the settlement agreement to the assigned judge for his or her approval. Similarly, a DOL investigation will culminate in some combination of both options.

What are your options, though, if you are not in on-going litigation or already part of a DOL investigation? As I see it, you have 2 choices:

1. If you intend to pay less than the full amount owed, you can ask the employee to file a lawsuit for the sole purpose of judicial approval of the settlement; or
   
2. If you intend to pay the full amount owed, you can pay the employee in full for any wages owed and forego the release and waiver. This leaves a slight risk that the employee(s) could still bring a suit for unpaid liquidated damages (the FLSA provides for double back pay as liquidated damages for willful violations). Your voluntary mitigation, however, will go a long way to deterring any future lawsuits.
   

What shouldn’t you do? Contact the DOL for its supervision of the settlement. That is a radar that you do not want to be on. The supervised settlement will beget a full-blown wage and hour audit, which will beget an OSHA on-site, which will beget an OFCCP inquiry, which will beget an ERISA audit…. You get the picture. With the Obama administration pumping more funds into the DOL and promising increased enforcement, there is no need to throw yourself under its bus.

6 universal truths about avoiding retaliation liability

According to French philosopher Albert Camus, “Retaliation is related to nature and instinct, not to law. Law, by definition, cannot obey the same rules as nature.” In other words, it is human nature to retaliate, and if accused of wrongdoing, a natural response is to get even.

This month’s issue of the American Bar Association’s Law Practice Today contains my thoughts on what law firms can do to curb this natural instinct and limit potential liability for retaliation claims by employees. While the article’s intended audience is law firm partners and managers, its message is universal:

Retaliation claims are among the biggest risks facing employers in every industry…. It is the quickest way to turn to a defensible employment claim into a liability problem. It is incumbent upon everyone in your organization to take personal responsibility to suppress the natural urge to retaliate, and incumbent upon every firm to educate lawyers and staff about this critical responsibility.

For my 6 best-practices for avoiding retaliation within your organization, click over to Revenge Is a Dish Best Never Served to Employees: Avoiding Retaliation Liability.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #114

The big story this week is the Senate's successful blockage of NLRB nominee Craig Becker. Becker was potentially dangerous for businesses because of his fringe views on labor unions, and the risk that he would try to circumvent Congress by implementing the Employee Free Choice Act administratively.

• Nominee Craig Becker's Appointment to the NLRB is Blocked in Senate from Hunton Employment & Labor Law Perspectives™

• Outlook Not So Good Becker Recess Appointment from Jeffrey Hirsch at the Workplace Prof Blog

• Out in the Cold? Becker not confirmed, Labor not affirmed from LaborPains.org

• Article Paints Grim Picture for Labor Agenda from Washington D.C. Employment Law Update

• Senate Blocks Nomination of Craig Becker to NLRB from Washington Labor & Employment Wire

• 52- 33; Becker Loses from Michael Fox’s Jottings By An Employer's Lawyer

• Meyerson in WaPo: EFCA is Dead from EFCA Report

“Undercover Boss”

• “Undercover Boss” has lessons for upper management from Warren & Hays Employment Law Blog

• ‘Undercover Boss’: A Fairy Tale That Ignores Grim Reality from Workplace Fairness

• Undercover Boss: You Wish That's All It Took to Change Your Business... from The HR Capitalist, Kris Dunn

• What Kind of Boss Are You? from Minnesota Labor & Employment Law

• Why employment lawyers screamed more than those Denny’s chickens from Jay Shepherd’s Gruntled Employees

Wage and Hour

• Is It Working Time Or Not? Employer Compulsion Is The Key Element from Wage & Hour - Development & Highlights

• Staples, Inc. Settles Assistant Store Managers' Overtime Claims for $42 Million from WorkplaceHorizons

• President Obama Backs Department of Labor Misclassification Fight from Florida Employment Law Blog

• Don't Forget: States Have Penalties for Overtime Violations Too from Overtime Advisor

• Sales rep falls within FLSA’s “administrative” exemption because of independent strategic planning responsibilities from Employment Law Matters

Social Media

• Employment Law Blog Maven in 5 Easy Steps from Philip Miles’s Lawffice Space

• Social Media & HR Primer: 3 Key Tools from Molly DiBianca’s Delaware Employment Law

• A Tale of Two Reference Check Responses — Liability for One, But Not the Other from George's Employment Blawg

• Social Media: Your Best Offense or Your Best Defense? from HR Daily Advisor

• Employment Background Checks on Facebook from employeescreenIQ Blog by Nick Fishman

ADA

• $6.2 Million Settlement in EEOC Complaint Against Sears, Roebuck & Company Re: Inflexible Leave Exhaustion Policy Violates ADA from The Labor and Employment Law Blog

• The ADA Trumps Absence Policies at Sears from by Mary Keating’s Maryland Employment Law Developments

• An Important Step in the ADAA: The Interactive Process from Michael Haberman’s HR Observations

Statistics

• Including Statistical Analysis Into Your Employment Litigation Risk Management Plan from Stephanie Thomas

• Survey Statistics: Are You a Mean or a Median Aficionado? from Ann Bares’s Compensation Force

Miscellaneous

• (It's) Snow Joke: Weather Plays Games with Employers -- A Recap from Dan Schwartz’s Connecticut Employment Law

• It's not that hard to say you’re sorry from Michael Maslanka’s Work Matters

• Pitfalls to Avoid in Workplace Investigations from Debra Reilly’s Workplace Investigations Blog

• Another Valentine’s Day, Another Rant on Why Workforce Romance Is a Bad Idea from The Business of Management

• Conan Versus NBC Fiasco Illustrates Contract Law at Work in “Real Life” from Teri Rasmussen’s Ohio Practical Business Law

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.