Want to Reduce Workplace Liability (And Be A Better Manager)? 5 Easy Steps

 EEOC released its year-end statistics for claims filed.  The bad news for employers is that claims have increased (surprise!!).  The good news is that avoiding claims and minimizing internal and external employee complaints is relatively simple and pretty straight-forward.  So let’s get started!  Here are my Fast Five:

1. Keep informed of relevant federal, state and local workplace laws and regulations (including regulations on harassment and retaliation, discrimination, and compensation); 
2. Maintain, update and distribute written policies on hiring, workplace behavior, time off, benefits, and termination;
3. Establish and communicate a confidential complaint procedure including designating an HR rep or other trained designee to assist with this procedure;
4. Conduct periodic training sessions for both managers and employees so that they are aware of workplace discrimination issues as well as conduct and language that might be considered inappropriate/unlawful;
5. Maintain up-to-date records for all employees, documenting performance evaluations, discipline, changes in compensation, attendance and other workplace events or changes.

This list is not exhaustive - but this fast five is a start.  If you're doing these things, you're in pretty good shape and have a solid foundation.  If you're doing some of the five - you're moving in the right direction, just keep going.  You'll notice that there are common threads with these steps - Document and Communicate.  In my experience, the best managers, not just the managers that avoid lawsuits, are managers that engage their workforce.  Communication is key: when employees know what is expected of them, they tend to work more effectively.  Having written policies, documents not only what the laws are, but also reinforces the communicated expectations.

If you have any questions or need help with any of these or other workplace issues, contact me or visit my website.

EEOC's Strategic Enforcement Plan and You - Pt 1

 At the end of 2012, the EEOC released its Strategic Enforcement Plan outlining its workplace priorities in enforcing employment laws for 2013-2016.  These employment laws include, Title VII anti-discrimination laws, the Americans with Disabilities Act, and the Family Medical Leave Act.  Read the full text of the plan here.  Employers should expect to see increased agency focus on these areas over the next 4 years:

• Eliminating Barriers in Recruitment and Hiring. The EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.
• Protecting Immigrant, Migrant and Other Vulnerable Workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.
• Addressing Emerging and Developing Issues. The EEOC will target emerging issues in equal employment law, including issues associated with significant events, demographic changes, developing theories, new legislation, judicial decisions and administrative interpretations.
• Enforcing Equal Pay Laws. The EEOC will target compensation systems and practices that discriminate based on gender.
• Preserving Access to the Legal System. The EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforcement efforts.
• Preventing Harassment Through Systemic Enforcement and Targeted Outreach. The EEOC will pursue systemic investigations and litigation and conduct a targeted outreach campaign to deter harassment in the workplace.

What does this mean to you?  The Language of the SEP addresses both policies and practices.  Be sure to have updated and written policies addressing sexual harassment, discrimination, anti-retaliation, performance evaluation and compensation.  But beyond that, you must ensure that the policies are communicated and consistently applied and that the employment practices are consisted with your written policies.  

In Part 2, I will examine the enforcement areas more specifically, translate the EEOC jargon and let you know the impact of each area in your workplace.  Stay tuned.

In the meantime, feel free to contact me with any questions or visit my website.   

Holiday Parties - Yikes!! How to Avoid Liability

Its that time of year again. Don't give plaintiffs attorneys any gifts!! The following are areas where even the best of intentions can go awry.

Alcohol - Having no alcohol at holiday parties can greatly reduce your risk of liability (e.g., injuries at the party, harassment/improper comments). But the reality is that everyone likes a little holiday cheer (in moderation). If you're planning to offer alcohol at your event, here are a few things to consider:

• Try to limit alcohol consumption by offering a variety of non-alcoholic drinks AND ensure that sufficient food is served. Also, consider serving only beer or wine and not offering any hard liquor; 
• Offer a limited number of drink tickets and a cash bar. Non-alcoholic beverages should be free and plentiful; 
• Provide cab vouchers or otherwise arranging for the safe transportation home (e.g., car pools). This can help reduce the risk of drunken employees driving on the roads; 
• Have a luncheon instead of an evening party. It's less likely that employees will drink too much (or at all) during the day.

Harassment - Although holiday parties are business events, employees sometimes do things at these parties that they wouldn't do at work. Management and Human Resources should look out for inappropriate behavior and respond promptly and appropriately to protect employees from otherwise avoidable incidents and the employer from liability. This doesn’t mean organizing a sentinel watch, but keep your eyes open. Even though employees are having fun, this is not the time for HR to look the other way.

Religious Discrimination – Be sensitive the variety of beliefs within your workforce. Be as inclusive as possible when organizing and promoting holiday events. 

Attendance - Attendance should be optional – if attendance is mandatory, you might have to pay your employees for attending.

Holiday parties should be fun and an opportunity for you to express your appreciation to your employees. Unfortunately, these can have the unintended effects of increasing employee complaints and possibly litigation. If you’re thinking about sponsoring a holiday party for your staff, plan carefully and hopefully everyone will enjoy themselves.

If you have any questions about holiday parties or any other employment law issues, please contact me or visit my website.

The ADA and Leave Policies - Don't Get Burned!!

The Equal Employment Opportunity Commission (EEOC) reported that Interstate Distributor Company, a trucking firm, agreed to pay $4.85 million to settle a lawsuit alleging pattern and practice violations of the Americans with Disabilities Act (ADA).  Read the EEOC’s press release here.  According to Interstate’s policy, if an employee, after exhausting 12 weeks of leave needed additional leave time Interstate automatically terminated them rather than determining if it would be reasonable to provide additional leave as an accommodation.  Under this policy, if an employee had restrictions, Interstate refused to allow them to return to work and failed to determine if there were reasonable accommodations that would allow the employee to return to work with restrictions. Interstate’s leave policy stated that employees on leave were automatically terminated after exhausting 12 weeks of leave unless they were able to return to full-duty work without limitation.  

This is a pretty straight forward policy – easy to administer; no discretion, objective on its face.  So, what’s the problem?

The EEOC charged that Interstate violated federal law by refusing to make exceptions to this "no restrictions" policy.  That’s the problem.  The EEOC holds the position that employers must make an individualized determination for each employee that has exhausted a leave of absence as to whether the employee can return to work with or without reasonable accommodation for a disability. The EEOC has been successfully pursuing this legal theory in court.  Enforcement of ADA claims remains a high priority for the EEOC and systematic violations, i.e., widespread or pursuant to employer’s policy or practice, are of special interest. 

Bottom Line  Employers would be wise to have their employee handbooks, policies and procedures reviewed and updated regularly to confirm that they are in compliance with the law.  Employers should have attendance policies and practices that address how reasonable accommodations will be provided – acknowledging that for paid or unpaid leave might be a reasonable accommodation for employees with disabilities.  Employers should also routinely provide EEO training for their managers and human resources personnel to insure that understanding and appropriate implementation of policies and procedures.  

Please contact the law office of Joycelyn McGeachy-Kuls if you're facing this issue or have any questions or visit our website at jmkuls.com for more information.