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Will Your Employees Sue You This Year?
January 26, 2010
Some of your employees probably already frighten you, but things could get much worse—if they decide this is the year to sue you. As you get into the swing of a new year, Susan K. Lessack, a labor and employment law partner with Pepper Hamilton LLP, offers some key "to-dos" to minimize the risk of employment-related litigation:
1. Make sure your company has a pandemic plan. Consider how a potential pandemic of the H1N1 virus, for example, could affect the operations and finances of your company and those of your suppliers, vendors, and contractors, Lessack advises. "You also should estimate the effect of key employee absences; cross-train employees to help maintain vital functions; plan to use e-mail and teleconferencing more, to minimize face-to-face contact; and revise sick leave policies to reflect the new realities a pandemic can bring."
2. Check your policies to ensure you're a friend of GINA. The Genetic Information Nondiscrimination Act (GINA) is designed to protect Americans against discrimination based on their genetic information when it comes to health insurance and employment. "Now is the time to make sure genetic information is listed as a protected class in all relevant policies, such as your non-discrimination and anti-harassment policies," says Lessack.
3. Federal government contractors need to be sure they comply with the regulations issued by the Office of Federal Contract Compliance Programs (OFCCP). The regulations require contractors that have $50,000 or more in government contracts and 50 or more employees to have an affirmative action plan. "Since the Obama administration requested an increase in the 2010 budget of the OFCCP from approximately $82 million to more than $109 million, as well as a significant increase in employees, we would expect more aggressive enforcement activity," Lessack says.
4. Ensure disability leave policies do not contain inflexible provisions. Specifically, Lessack notes, the EEOC recently has been challenging the types of policies that result in automatic termination after an employee has been out for a certain period of time. "The Equal Employment Opportunity Commission (EEOC) has taken the position inflexible leave policies violate the Americans with Disabilities Act because they do not contemplate engaging in the interactive process to determine if additional leave or some other reasonable accommodation might be warranted," she notes.
5. Audit your wage-and-hour practices. Especially whether exempt employees are classified properly, and whether non-exempt employees are paid for all time worked, as well as overtime. Plaintiffs' class action lawsuits under the Fair Labor Standards Act continue to make the news. Lessack observes several class action lawsuits recently were filed against hospitals, claiming the plaintiffs were required to perform work during unpaid meal breaks.
6. Review relationships with independent contractors to evaluate whether those individuals are classified properly. "Are they truly independent contractors, or should they be classified as employees? If a worker who is actually an employee is treated as an independent contractor, the company could face tax penalties, liability for failure to pay overtime if applicable, liability for failure to provide benefits, and responsibility for unemployment compensation," Lessack says.
7. Consider having a policy that advises employees who need a reasonable accommodation to request one. "Policies should be crafted or revised with the recent amendments to the Americans with Disabilities Act and the anticipated final regulations in mind," says Lessack. "In addition, make sure managers and human resources personnel are trained in how to engage in the interactive process with employees who request reasonable accommodations."
8. Review existing communication systems to ensure employees have a way of raising concerns, and train managers to be effective in listening to and addressing those concerns. This to-do is one way employers can be prepared for any future passage of some variant of the Employee Free Choice Act. "Companies should use surveys, feedback, and audits to take the pulse of their employees," Lessack notes. They also should educate managers on the risks of union representation and how to respond quickly to provide fast responses at the first hint of any organizing campaign.
9. Develop a policy concerning employee use of social media, such as blogs, Facebook, and MySpace. "The policy should address whether employees can use such media while at work or on company computers," says Lessack, "and should remind employees not to post anything harassing, defamatory, offensive, or containing confidential company information."
10. Remember to document and communicate to employees any performance problems. "Given the economy and the number of unemployed, we anticipate an increase in employment discrimination cases," Lessack says, adding that often, the best defense in a case brought by an employee who was terminated for poor performance is a strong record reflecting the employer advised the employee of his or her performance problems and afforded the employee opportunities to improve. "In addition, be careful to review every adverse employment decision for consistency with past decisions affecting similarly situated employees, thus minimizing the risk an employee will be able to prove other employees were treated more favorably."
Is your company concerned with the potential for employee lawsuits? Are you doing anything this year to safeguard yourself against workers happy to sue you, or do you feel the risk of employee lawsuit is overblown? Join the discussion on www.trainingdayblog.com
Did you miss last week's Inside Training? To read it, click here
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