Colorado Discrimination Claims Soon To Be More Treacherous For Employers

Posted by Jennifer Gokenbach on May 15, 2013

Treacherous.jpgFive years in the making (previously introduced without success in 2009, 2010, 2011, and 2012), the Job Protection and Civil Rights Enforcement Act of 2013 (HB 13-1136) (PDF) was introduced again this year in the House on January 18, 2013, and took less than five months to pass through both branches of the Colorado legislature and get signed into law by the Governor on May 6, 2013, despite considerable opposition from business groups. 

Effective January 1, 2015, the Job Protection and Civil Rights Enforcement Act of 2013 significantly amends the Colorado Anti-Discrimination Act (CADA) to allow for the recovery of compensatory and punitive damages and prevailing plaintiff attorneys’ fees, among other changes, in employment discrimination cases brought under Colorado state law.

Regardless of size, small employers (defined as less than 15 employees) and large employers (more than 15 employees) should be aware of the changes to CADA and implement proactive steps to help minimize the increased exposure to future CADA claims.

What is CADA and What Are the Amendments?

The Colorado Anti-Discrimination Act (CADA) was enacted in 1957 and prohibits discrimination in the workplace based on race, color, disability, gender, sexual orientation (including transgender status), national origin, ancestry, religion, creed, and age. Where Title VII of the Civil Rights Act of 1964 applies to employers with 15 or more employees, CADA applies to Colorado employers of any size. CADA is also broader than Title VII because it prohibits discrimination based on age, disability and sexual orientation, which are not protected classes under Title VII (although age is protected under the Age Discrimination in Employment Act, and disability, under the Americans With Disabilities Act).

Prior to the enactment of the Job Protection and Civil Rights Enforcement Act of 2013, a successful CADA plaintiff could only be awarded the following equitable relief:

  • Reinstatement;
  • Back Pay;
  • Front Pay; and
  • Interest on Back Pay.

The recently passed CADA amendments will allow successful plaintiffs to recover the above remedies, plus the following enhanced remedies:

  • Compensatory Damages (e.g., future pecuniary loss, emotional distress, suffering, inconvenience, mental anguish, loss of enjoyment of life);
  • Punitive Damages; and
  • Attorneys' Fees.

To recover compensatory damages, a CADA plaintiff must show that he or she was the victim of intentional discrimination in the workplace. To recover punitive damages, a CADA plaintiff must show with "clear and convincing evidence" that the discriminatory practice was done with “malice or reckless indifference to the rights of the plaintiff.” However, a court will take into consideration the size and assets of a company, as well as the egregiousness of the intentional discrimination. Moreover, similar to Title VII, the CADA amendments will allow prevailing plaintiffs to recover their attorneys’ fees and costs. As for prevailing defendant-employers, they may only recover their attorneys’ fees if the action by the plaintiff is proven to be frivolous, groundless or vexatious - a difficult bar to reach.

Fortunately, the CADA amendments will provide caps on compensatory and punitive damage awards (also similar to Title VII, and incorporating the limits of Title VII for employers with 15 or more employees):

  • For employers who employ 1 to 4 employees, the total of both compensatory and punitive damages cannot exceed $10,000;
  • For employers who employ 5 to 14 employees, the total of compensatory and punitive damages cannot exceed $25,000;
  • For employers who employ 15 to 100 employees, the total of compensatory and punitive damages cannot exceed $50,000;
  • For employers who employ 101 to 200 employees, the total of compensatory and punitive damages cannot exceed $100,000;
  • For employers who employ 201 to 500 employees, the total of compensatory and punitive damages cannot exceed $200,000; and
  • For employers who employ 501 or more employees, the total of compensatory and punitive damages cannot exceed $300,000.

Beyond expanding the remedies for CADA claims, the amendments also eliminate the age limit on age discrimination claims in Colorado.  Previously, CADA only prohibited discrimination based on age if a plaintiff was older than 40, but less than 70 years of age.

What Are the Practical Impacts? 

Risks Ahead.jpgBecause the amendments allow individuals to recover compensatory and punitive damages and attorneys’ fees (for example, against a small business owner in Colorado that employs 1 employee), the number of CADA claims are going to increase. Unfortunately, the cost of defending one CADA lawsuit, even if frivolous, could be enough to put a small business owner out of business.

In addition, the CADA amendments mean more state court employment litigation, which is more treacherous for employers. Traditionally, federal courts will weed out threadbare claims more readily than state courts and also tend to be more employer-friendly.

Also, when only equitable relief was available, CADA claims by themselves went before judges. Now, CADA claims will go before juries in Colorado, since compensatory and/or punitive damages will likely be sought in most, if not all, future CADA complaints.

Finally, as there is new exposure to punitive damages with respect to CADA claims, businesses (particularly, small businesses) have no guaranteed way to protect against such a loss through insurance. The public policy of Colorado prohibits an insurance carrier from providing insurance coverage for punitive damages. See Universal Indemnity Ins. Co. v. Tenery, 39 P.2d 776, 779 (Colo. 1934); Lira v. Shelter Ins. Co., 913 P.2d 514 (Colo. 1996). As a result, a small business accused of a CADA violation faces a dire situation with defense costs alone, let alone the potential risk of an uninsurable award of punitive damages.

What Should Colorado Employers Do? 

As Colorado state law employment claims under CADA will be more lucrative for plaintiffs and plaintiff’s lawyers, and will very likely increase in number, employers of all sizes are wise to:

  1. Implement effective policies prohibiting discrimination, harassment and retaliation in the workplace; 
  2. Conduct training for all managers and supervisors (at a minimum) to promote awareness and teach them how to take prompt, appropriate action when potential discrimination, harassment and/or retaliation arises; 
  3. Audit employment practices to identify problem areas; and 
  4. Evaluate whether it makes financial sense to purchase Employment Practices Liability Insurance (EPLI) to provide protections and cover defense costs should a claim arise.

Effective written policies, EEO and harassment training, and periodic self-audits are evidence of good faith compliance efforts that could successfully eliminate any risk for punitive damages.  

Last but not least, the Job Protection and Civil Rights Enforcement Act of 2013 is not effective until January 1, 2015 -- so at least there is time to get ready.

The Aye's Have It - Colorado's Civil Union Act Signed Into Law & Employment Opportunity Act Passed in Both Senate and House

Posted by Jennifer Gokenbach on March 27, 2013

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While many Coloradoans are taking advantage of their last few ski days of the season, the Colorado legislature has been busy passing new, groundbreaking legislation with respect to civil unions and the use of individual credit histories in employment decisions. How will this new legislation affect employers? Read on.

Colorado Civil Union Act

On March 21, 2013, Governor John Hickenlooper signed the Colorado Civil Union Act (SB13-011) (PDF) into law, authorizing 2 unmarried adults, regardless of gender, to enter into a civil union.

Effective May 1, 2013, among other rights, benefits and protections, the Colorado Civil Union Act provides that parties to a civil union in Colorado are granted the following:

  • Dependent coverage under health insurance policies for plans issued, delivered, or renewed on or after January 1, 2014;
  • Dependent coverage under life insurance for plans issued, delivered, or renewed on or after January 1, 2014;
  • Prohibitions against discrimination based upon spousal status;
  • Survivor benefits under and inclusion in workers' compensation laws;
  • The right of a partner in a civil union to be treated as a family member or as a spouse under the "Colorado Employment Security Act" for purposes of unemployment benefits;
  • Eligibility for family leave benefits;
  • The ability to insure a party to a civil union under group benefit plans for state employees;
  • The ability to designate a party to a civil union as a beneficiary under the state public employees retirement SB13-01 system;
  • Survivor benefits under local government firefighter and police pensions;
  • Protections and coverage under domestic abuse and domestic violence laws; and
  • The ability to file a claim based on wrongful death, emotional distress, loss of consortium, dram shop, or other laws, whether common law or statutory, related to or dependent upon spousal status.

CBS 4 Denver reported on the signing of this historical legislation in Colorado, and also discussed that there are many supporters of same sex marriage who believe that the Civil Union Act was passed too soon in Colorado and will create complications involving 2 separate and unequal classes of citizens (i.e., same sex couples in a “civil union” and those in a “marriage”). The United States Supreme Court is currently hearing arguments on the constitutionality of the 1996 Defense of Marriage Act (DOMA), which is certain to have an impact on Colorado’s new law.

Employment Opportunity Act

On March 25, 2013, the House passed its Third Reading of the Employment Opportunity Act (SB13-018) (PDF), which sets forth the permissible use of credit information with regard to hiring and other employment decisions. I previously posted a summary of the Employment Opportunity Act, which affects all employers in Colorado with 4 or more employees.

Now that the Employment Opportunity Act has passed the Senate and the House, the bill will briefly go back to the Senate (where the bill originated) to approve the amendments by the House. If the Senate accepts the changes, which is anticipated, it goes to the Governor to be vetoed or signed into law. Will the Governor sign the Employment Opportunity Act into law? It is likely not a matter of if but when, and all signs point to the final stamp of approval soon since the Act’s effective date is July 1, 2013.

By the way, if anyone is interested to see how a bill becomes law in Colorado, the Colorado Legislative website has a nifty flow chart with pictures (PDF).

What Should Employers Do Now?

Small, medium and large sized businesses/employers must be aware of these new rights, benefits and protections that go into effect May 1, 2013 (Civil Union Act) and July 1, 2013 (Employment Opportunity Act). Steps should be taken to modify benefit policies and enrollment forms relating to individuals in civil unions for Colorado plans issued or renewed on or after January 1, 2014. In addition, employers are wise to dust off and review their employment policies to ensure all written policies are fully compliant with these and all other applicable new laws.

Last but not least, do not hesitate to engage competent employment counsel, before a claim arises, so that you are properly informed of and can stay on top of the ever-changing laws, rules and regulations affecting employment in Colorado.

Colorado Businesses Beware - ADA Public Accommodation "Drive-By" Lawsuits On The Rise

Posted by Jennifer Gokenbach on October 12, 2012

iStock_000020079234XSmall.jpgKnown as “Drive-By Litigation,” Colorado is getting hit by a rash of lawsuits alleging that businesses are violating Title III of the Americans With Disabilities Act (ADA). Since April of this year, 20 lawsuits (and counting) have been filed against Denver area businesses by the same Plaintiff who is represented by the same two attorneys from Florida, for alleged violations of Title III of the ADA, including things like lack of ramps, narrow doorways, missing signage, doorknobs that can’t be opened by a closed fist, and misplaced soap dispensers and coat racks.

Most of the businesses are in well-to-do areas of Denver, such as The Highlands, LoDo, LoHi, and SoBo, and include everything from popular restaurants, hair salons, day spas, tobacco shops, muffler shops, delis, and donut shops, to even a motel and a tile and linoleum shop. Channel 7 News recently ran a news story that is worth viewing called “Colorado Businesses Claim Identical ADA Lawsuits Filed By Florida Attorney ‘Extortion.’”

What Is "Drive-By Litigation"?

Although premised on the altruistic goal of fighting disability discrimination, these suits have become a profit-driven, litigation machine of high volume, boilerplate complaints, filed with the ultimate goal of squeezing business owners so that the plaintiffs and their attorneys can profit quickly from cash settlements in the tens of thousands of dollars.

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The problem with these cases is that the vast majority are not situations where a disabled individual truly felt discriminated against and sought out an attorney to help redress an injury due to a lack of accommodation. Instead, it is the lawyers who hire investigators to identify local businesses that are not in technical compliance with the ADA, and then recruit plaintiffs from disability advocacy groups to serve as the front person. The investigators take pictures and build the case while the plaintiffs merely “drive by” the establishment, without any honest intentions of ever servicing the establishment.

Once the boilerplate suit is filed, questionable litigation tactics are then employed, such as serving immediate discovery in violation of the rules, asking the courts to order the parties to a settlement conference to force a quick settlement, and refusing to accept agreements or assurances of ADA compliance without monetary payments, even though the ADA itself does not allow damages to be awarded to plaintiffs (the ADA allows only injunctive relief and attorneys’ fees).

Earlier this year, the New York Times reported that “[i]n the last year, 3,000 [accessibility] suits, including more than 300 in New York, were brought under the Americans With Disabilities Act, more than double the number five years ago.” Other states hit hard have been Ohio, Florida, California and North Carolina. This is an unfortunate and lucrative cottage industry in the legal profession, preying on small businesses who often times opt for settlement over litigation to avoid legal costs since they don’t have resources like Wal-Mart. But, in some cases, where business owners decide to fight back, courts have dismissed the suits, sanctioned the plaintiff’s attorneys for unscrupulous litigation tactics, and/or awarded attorneys’ fees to prevailing business owners.

What Can Businesses Do Before They Get Sued?

If you have not done an audit lately, or ever, it is a good idea to conduct an ADA accessibility audit. Self-audits can be done with good checklists, or by a professional. Also, it is important for business owners to review their insurance coverage to see if they have, or can obtain, insurance coverage for accessibility lawsuits.

What Can Businesses Do If They Get Sued?

You are not alone, so don’t go it alone. Engage competent counsel to protect your rights as a business owner. Legal arguments can be made to dismiss certain claims or to dismiss the entire case at the onset of litigation or after discovery, which can save thousands of dollars in legal fees.

U.S. Supreme Court Throws Curve Balls At Employers

Posted by Jennifer Gokenbach on March 04, 2011

iStock_000000879475XSmall.jpgOpening day for the Colorado Rockies at Coors Field is Friday, April 1, 2011.  It is a day of excitement, anticipation, feigned illnesses, and sell out crowds. Not only does baseball season start on a Friday this year (it has been Mondays since 1905), but it also falls on April Fools Day. Given these oddities, I can't help but wonder if there is the slightest chance that the U.S. Supreme Court may say "April Fools!" when it comes to the first two major employment law decisions of 2011. Rather than create bright line tests, these cases seem to create more confusion than clarity - and most certainly, feel like the Court is throwing employers some major curve balls.

Court Finds Third Party Title VII Retaliation Claims Are Viable

In Thomspon v. North American Stainless, L.P. (PDF), Eric Thompson and his fiance, Miriam Regalado, both worked for North American Stainless.  Ms. Regalado filed a charge of sex discrimination against the company with the Equal Employment Opportunity Commission.  Mr. Thompson was fired three weeks later. Mr. Thompson claimed he was fired because of his fiance's complaint.  North American Stainless said his termination was based on performance problems.  The district court granted summary judgment in favor of North American Stainless, finding that third party retaliation claims were not permitted by Title VII.  On appeal, the 6th Circuit Court of Appeals affirmed.  Certiorari was granted and oral argument took place on December 7, 2010.  On January 24, 2011, the U.S. Supreme Court, in a unanimous decision, held:

Title VII's antiretaliation provision must be construed to cover a broad range of employer conduct. Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006). It prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a discrimination charge.  We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired.

The Court went on to state:

We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.  As we explained in Burlington, 548 U.S. at 69, "the significance of any given act of retaliation will often depend upon the particular circumstances."  Given the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII's antiretaliation provision is simply not reducible to a comprehensive set of clear rules.

Not only do retaliation claims generally pose the greatest risk to employers because of their amorphous nature, but now, companies are facing a brand new type of retaliation - one that arises from an employee who has a mere relationship with another employee who engaged in protected activity.  Prior to this case, the anti-retaliaton provisions of Title VII were simply held not to apply to third parties.  Now, the U.S. Supreme Court says that third party retaliation claims are viable, but provides little guidance as to the class of individuals that fall under protection.  As a result, expect more litigation on this issue to define just how far the anti-retaliation provisions may stretch.

'Cat's Paw' Liability in Discrimination Cases Turns on Proximate Cause

There were high hopes that the Court's decision in Staub v. Proctor Hospital (PDF) would resolve the split in circuits regarding the 'cat's paw' theory of liability in employment discrimination cases.  I wrote about 'cat's paw' liability generally, the oral argument that took place on November 2, 2010, and the various tests that have been applied by the circuit courts for the American Bar Association Labor and Employment Flash.  Although Staub involves the Uniformed Services Employment and Reemployment Rights Act (USERRA), its language is "very similar to Title VII," in that employers are prohibited from engaging in certain actions if the employee's protected status is a "motivating factor in the employer's action."  As such, this case has ramifications far beyond military service discrimination.  

On March 1, 2011, in an 8-0 decision written by Justice Scalia, the Court seemingly rejects the prior tests applied by the various circuit courts and instead, adopts a new formula for 'cat's paw' liability based on the tort theory of proximate cause.  The Court held:

"if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA."

As Jon Hyman points out in his blog, this case hinges on a new test involving fact-based inquiries regarding "intent" and "proximate cause," which nearly guarantees that any case involving 'cat's paw' liability will be difficult, if not impossible, to be resolved on summary judgment and will go to trial - an expensive proposition for employers.  My sense is that, had this case involved any other form of discrimination other than related to military service, we may have seen an entirely different result.          

Tenth Circuit: State vs. Federal Right to Sue Notices

Posted by Jennifer Gokenbach on February 15, 2011

Colorado, like many other states, has both a state employment discrimination agency, the Colorado Civil Rights Division (CCRD), and the federal Equal Employment Opportunity Commission (EEOC).  The state and federal agencies have a worksharing agreement in place that authorizes shared responsibilities in reviewing and investigating charges of discrimination. Practically speaking, this means that an employee may file a charge with either the CCRD or EEOC in Colorado, and often times, depending on the workloads, a charge may be passed from one agency to the other for investigation.

However, even though both agencies are empowered to investigate charges, on April 26, 2010, in Rodriquez v. Wet Ink LLC, the Tenth Circuit held that the EEOC must independently terminate its own jurisdiction before an employee has a right to sue in federal court.  

Case Facts:  Patricia Rodriguez filed charges of discrimination with the CCRD and EEOC, alleging that her supervisor discriminated against her based on her national origin, ancestry and gender, and that she was fired in retaliation for complaining about the discrimination. The CCRD investigated and found no cause for the national origin and retaliation claims, but found merit with the gender discrimination claim and referred the claim to mediation. Following an unsuccessful mediation, Ms. Rodriguez requested a right to sue notice from both the CCRD and EEOC. The CCRD issued its right to sue notice on November 25, 2007. The EEOC then issued its right to sue notice on January 29, 2008. Thereafter, Ms. Rodriguez filed suit in federal district court on April 25, 2008.

Because Ms. Rodriguez filed suit on April 25, 2008 - 5 months after receiving her CCRD right to sue notice, her employer moved to dismiss the case as being time barred. The district court agreed and dismissed the lawsuit. On appeal, the Tenth Circuit Court of Appeals reversed and let her Title VII claims proceed, holding that the state agency right to sue notice did not trigger the federal filing period because: (1) the worksharing agreement does not authorize the CCRD to issue right to sue notices on behalf of the EEOC; and (2) the CCRD notice did not trigger Title VII's 90-day limitations period.  

Important Takeaway:  Employers should carefully scrutinize right to sue notices to ensure that the federal and/or state agencies have terminated their respective jurisdiction.  The deadline to file federal claims is triggered only when the EEOC expressly terminates its jurisdiction via an EEOC right to sue notice.  Likewise, an employee who receives a CCRD right to sue notice only has a right to file a lawsuit alleging state law claims (unless and until the EEOC issues its right to sue notice or its jurisdiction is otherwise terminated), and must do so within 90 days of receiving the notice.  

Word On the Street: Final ADAAA Regs Approved By EEOC

Posted by Jennifer Gokenbach on January 10, 2011

ADAAA Image.jpgHR.BLR.com reported today that the Equal Employment Opportunity Commission (EEOC) has privately approved its final draft regulations under the ADA Amendments Act (ADAAA).  So, where does that leave us?  First, the Office of Management and Budget (OMB), a federal agency that must clear rules and regulations before they are published, will have 90 days to review the final regulations.  After OMB approval, the regulations will go public and be published in the Federal Register.  For employers, this means that the era of much uncertaintly surrounding the new ADAAA may soon be over.  

The ADAAA became effective on January 1, 2009.  It contains the first significant changes to the Americans with Disabilities Act (ADA) since 1990.  Information on the key changes under the new Act is detailed in the EEOC's ADAAA Notice.  We have seen some key court decisions interpreting the new ADAAA (for example, Hoffman v. CareFirst of Fort Wayne, Inc., in which the U.S. District Court for the Northern District of Indiana found cancer in remission to be an ADAAA disability).  But, we've been awaiting the final regulations to help clarify many open questions as to the EEOC's enforcement of the new ADAAA and to provide interpretative guidance.

Still, the proposed regulations have not been free of controversy.  One of the most controversial issues is the EEOC's attempt to impose a list of 'per se' disabilities, that neither the ADAAA provides, nor was expressly authorized by Congress for the EEOC to create, including: 

  1. Deafness
  2. Blindness
  3. Intellectual disability (formerly known as mental retardation)
  4. Partially or completely missing limbs
  5. Mobility impairments requiring use of a wheelchair (a mitigating measure)
  6. Autism
  7. Cancer
  8. Cerebral palsy
  9. Diabetes
  10. Epilepsy
  11. HIV/AIDS
  12. Multiple sclerosis
  13. Muscular dystrophy
  14. Major depression
  15. Bipolar disorder
  16. Post-traumatic stress disorder
  17. Obsessive-compulsive disorder
  18. Schizophrenia

Does this non-exhaustive list of 'categorical' disabilities remain in the final regulations?  What about the other issues of controversy (e.g., elimination of 'condition, manner or duration' analysis)?  Check back on my blog for updates - I will keep you posted on new developments with the ADAAA. 

Paycheck Fairness Act Fails 58-41 In the Senate

Posted by Jennifer Gokenbach on November 17, 2010

On November 17, 2010, the Cloture Motion to proceed with the Paycheck Fairness Act in the Senate failed 58-41.  In other words, a petition for cloture (or, a request to proceed with limited debate on the legislation) was before the Senate regarding the Paycheck Fairness Act.  To proceed, a petition for cloture requires a 2/3 majority, or 60 senators voting in favor.  With a vote of 58-41, the motion failed.

The St. Louis Post was one of the first news agencies to report the failure of the vote this morning.  The results of the roll call vote have also been posted on the U.S. Senate website.

The Paycheck Fairness Act is a significant piece of employment legislation that, if passed, would allow for the unlimited recovery of compensatory and punitive damages under the Equal Pay Act, increase the likelihood of class action lawsuits by making workers automatically part of a class unless they opt out, and would amend the "any factor other than sex" affirmative defense for employers.  The Act has garnered support from civil rights groups and the Obama admininstration, and opposition by the business community. 

EEOC Predicts Over 100,000 Charges in FY2011 - Best Practices to Mitigate Risk with Discrimination & Other Claims

Posted by Jennifer Gokenbach on October 14, 2010

I heard a statistic today that the Equal Employment Opportunity Commission (EEOC) is expecting over 100,000 charges in FY2011 - the highest number ever in its history.  Dealing with an increasing number of discrimination, wage & hour, and other employment-related claims is, unfortunately, the state of affairs in the workplace for some time to come.   

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Chart published in the EEOC's Fiscal Year 2011 Congressional Budget Justification showing EEOC Private Sector Charges Pending Ending Inventory at Year End for Fiscal Years 2007 through 2013.

So, what is an employer to do?  One option is to stay the course, keep doing what you've been doing and hope you can, with some luck, stay out of the line of fire.  Another option is to be proactive and try to mitigate risk before a claim, lawsuit, class action, or government investigation ensues.   Based on the cases I've seen of late, here are my top 5 recommendations for companies to help mitigate exposure and risk: 

  1. Maintain Accurate Time Records - Wage & hour claims are on the rise.  Under federal and state law, it is always the employer's obligation to create and maintain accurate time records for all employees.  If an audit or claim arises, the Department of Labor doesn't look kindly on employers who fail to keep track of hours worked, overtime hours, and employee meal and rest periods.  Even worse, if there are no records or the records are inaccurate, the employees' recount of hours worked or missed meal periods will generally rule the day. 
  2. Update Employee Handbooks - There is no one-size-fits-all Employee Handbook.  Likewise, a Handbook that is over 2-3 years old or was pulled off the Internet is no good to an employer.  Laws have changed and new laws have cropped up.  Various laws apply only to employers with a certain number of employees.  If Handbooks contain policies incorporating laws or regulations that otherwise would not apply to an employer, the employer may unknowingly adopt those laws.  If Handbooks don't contain the required disclaimers, breach of contract claims come into play.  Not to mention that without the right policies in place, important legal defenses may be foreclosed that could save the company a lot of money (e.g., the Faragher/Ellerth defense in sexual harassment cases and the safe harbor defense in FLSA cases).    
  3. Have Written Job Descriptions & ADA-compliant Applications - Employee classification challenges are on the rise and so are ADA discrimination claims.  Without up-to-date job descriptions, dealing with an overtime claim based on a FLSA miclassification is an uphill battle; so is dealing with an employee that may be unable to perform all the essential functions of the job, particularly if it is not clear to either the employer or employee what those essential functions are.  In addition, not only is asking about an applicant's physical limitations a no-no in a job interview, it is also prohibited in an application.  It is best to leave all the reasonable accommodation issues for after hire.   
  4. Conduct Sexual Harassment Training - Sexual harassment is still a prevalent issue in the workplace.  All too often, employee complaints to supervisors fall on deaf ears.  Many times, the supervisor doesn't even know to recognize that it was a complaint of harassment in the first instance requiring employer action.  Training is a must.
  5. Treat Departing Employees With Dignity and Respect - Finally, brash and undignified employee exits only invite claims.  Giving an employee an unexpected pink slip and escorting them out of the office with a box of their stuff in front of all of their co-workers should be avoided.  When possible, make sure employees are aware of performance deficiencies or concerns so that they aren't taken off guard by a termination decision, document attendance, performance and other issues that arise, and consult with legal counsel if there is any question about possible claims.