New Jersey Employment Discrimination Lawsuit

Transcription

1 EMPLOYMENT LAW UPDATE PREPARED AND PRESENTED BY THE: LABOR RELATIONS AND EMPLOYMENT LAW DEPARTMENT OF PECKAR & ABRAMSON, P.C. New York New Jersey Miami San Francisco Los Angeles Washington, D.C. Chicago London 2015 by Peckar & Abramson, P.C.

2 Important Notice: This presentation is intended to be used solely for informational purposes, and is not offered as legal advice.

3 Spotting the EPL Claim 1) The employer has no comprehensive employment practices, procedures and training. Absence of a current well-publicized policy and procedure manual handbook). Absence of required state and federal posters. Absence of effective complaint mechanisms. Absence of monitoring/enforcement. Absence of accountability/responsiveness.

4 Spotting the EPL Claim (cont d) 1) The employer has no comprehensive employment practices, procedures and training (con't) Absence of effective management training on risk management, investigations, documentation and confidentiality. Absence of guidelines and training on recruiting, hiring, promotions, transfers, compensation, performance evaluations, discipline, terminations, severance agreements, unemployment, references, etc. Absence of timely and accurate employee performance evaluations. Absence of a comprehensive document retention, litigation hold, and electronic document discovery policy.

5 Spotting the EPL Claim (cont d) 2) The employer s investigation and monitoring procedures are inadequate. The employer is not timely reporting claims or providing notice of potential claims. The employer is not timely implementing document retention and litigation hold procedures. The employer is not adequately documenting complaints and the investigative process. The employer is not conducting thorough and comprehensive witness interviews.

6 Spotting the EPL Claim (cont d) 2) The employer s investigation and monitoring procedures are inadequate. The employer is not probing all potential sources of information. The employer is not effectively using technology to investigate and monitor claims. The employer s investigators take a go it alone approach to investigations and other employee issues.

7 Spotting the EPL Claim (cont d) 3) The employer does not have an experienced or well-trained human resources/management team. Absence of a knowledgeable human resources representative (dedicated versus generalist). Absence of thorough candidate hiring and evaluation procedures. Absence of regular and sufficient training. Unwillingness to consider settlement or mediation.

8 Witness Interview Inform the witness that the company takes his/her allegations seriously and will conduct a full investigation (zero tolerance). Inform the witness of the company policy on anti-retaliation. Advise the witness that only those individuals who need to know will be informed of the investigation or its results. Use broad-based who, what, when, and where types of questions. Ask for substantiating factors and witnesses. Where necessary, obtain a written statement from the complainant.

9 Human Resources and Investigations The investigation is generally the Achilles heel in the defense of any discrimination lawsuit. As a result, the actions of human resources are generally the difference between: Problem resolution and litigation. Summary judgment and trial. Nuisance value and crippling settlements.

10 Interactions Where Harassment Can Occur Manager-manager Manager-subordinate Subordinate - manager Subordinate-subordinate Manager-vendor Vendor-manager Subordinate-vendor Vendor-subordinate Manager-resident/client Resident/client - manager Subordinate-resident/client Resident/client - subordinate Manager-family member Family member - manager Subordinate-family member Family member - subordinate

11 Investigative Methodology Persons to Investigate Plaintiff/complainant Accused parties Plaintiff/defense witnesses Counsel Mediators Judge Jurors Outside Consultants and Vendors Experts

12 IF IT'S NOT IN WRITING, IT DIDN'T HAPPEN

13 Claim Management Best Practices

14 Lessons Learned: Best Practices Have counsel well-versed in EPL/D&O policies review existing coverage or recommend sufficient coverage for your operations. Only utilize counsel familiar with EPL/D&O policies to handle EPL/D&O claims. Institute sufficient internal controls and training to mitigate risk (and potentially lower premiums). Ensure scopes of coverage are clearly defined as to who is covered, and what constitutes a claim.

15 Lessons Learned: Best Practices Institute a tiered claims management system to ensure confidentiality and that necessary information is disseminated on a need to know basis. Invest in employment law audits and training by qualified EPL/D&O counsel. Ensure documentation is compliant, and that your employees know how to document. IF IT S NOT IN WRITING, IT DIDN T HAPPEN

16 Why The EEOC IS a Predictor of Overall Litigation Trends Litigants who wish to file suit under Title VII, the ADA, the ADEA, and the EPA must file a Charge with the EEOC first. - Litigants must file Charge within 180 days of alleged discriminatory act, time extended to 300 days if home state has its own agency. - EEOC filing is not an exclusive remedy. - Litigants who receive a right to sue letter from the EEOC have 90 days to file a lawsuit in federal court. - Number of complainants exercising right to sue is increasing. Of the 50 States: - All have either separate agencies or divisions of government like the EEOC addressing discrimination in some form, including employment states require litigants to file employment discrimination charges with those commissions or divisions before filing suit in state court. - 4 states and the District of Columbia consider filing with a commission or division an election of remedies that precludes court action. -Statute of limitations for claims under the New Jersey Law Against Discrimination is generally two (2) years from the date of the violation

17 Mediation Checklist 1) Have you evaluated your mediator? Mediator s reputation, fees, settlement rate. Advocate for mediators you are comfortable with. 2) Have you decided who will attend on your behalf and prepared them for their roles? Ensure you have informed attendees who will present well and be good advocates for the organization (would you want them as the face of your organization?). 3) Do you know who will be present on the other side? Spouse or family member may encourage settlement, or may inhibit the process; know and agree beforehand who will attend. If you agree to let spouse, family or other third party attend with Plaintiff, those persons must agree prior to attending that they will be bound by mediation confidentiality and the settlement agreement.

18 Mediation Checklist (con't) 4) Have you completed pre-mediation discovery? Electronic and social media research. Employment policies, personnel files and other necessary documents received, reviewed and analyzed. Witnesses identified and interviewed. Reduce demand by dismissing red-herring or non-viable claims. Understand strengths and weaknesses for proper valuation. 5) Have you prepared your game plan to minimize surprises? Obtain initial demand with breakdown of damages and mitigation data. Work with defense counsel to think creatively about settlement options, particularly non-monetary options that will get the parties to resolution. 6) Session considerations Confidential mediation statements. Should you make an opening statement? Prepare draft agreement with necessary tax forms and bring to mediation.

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