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.
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:
- 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.
- 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).
- 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.
- 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.
- 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.