Managing Workplace Liabilities And Employment Problems

Transcription

1 Managing Workplace Liabilities And Employment Problems State of the Game Golf Summit April 19, 2007 Gerald L. Maatman, Jr. Seyfarth Shaw LLP 131 S. Dearborn Street, Suite 2400 Chicago, IL Tel: (312) Fax: (312)

2 Gerald L. Maatman, Jr., Esq. Partner Seyfarth Shaw LLP A Club Attorney s Perspective 2

3 Bottom Line With Pro-Active Practices Employment Problems Can Be Minimized, Largely Controlled, And Sometimes Avoided 3

4 Topics And Issues Typical And Recurring Workplace Problems What Are Danger Signs? Employment Law Hotspots In 2007 Key Trends To Plan For In 2007 Components Of A Workplace Risk Management Program And Manager s Tool Kit 4

5 Typical And Recurring Workplace Problems 5

6 Key Exposures Termination Lawsuits (90% Of All Workplace Legal lclaims) Retaliation Issues (Responding To Internal Grievances And Complaints) Workplace Harassment (Treatment of Employees On The Job) Payroll Practices (Wage & Hour Issues) 6

7 What Are The Danger Signs? 7

8 Manifestations Of Employee Problems External Complaints To Agencies (Especially Those With The Magic Language ) Employee Web Blogs, Chat Room Postings, And Internet Sites Union Interest/EEOC Subpoenas Excessive Turnover 8

9 The Trickle Down Phenomenon Caused By The Media Success Breeds Success (And Copycats), And dclass Action Lawsuits Fuel Litigation i i Exposure To All Employers, Including Clubs Intense Media Attention To Class Action Filings And Settlements Impact All Employers, Including Clubs 9

10 The Sophisticated Workforce And New Cyber-Risks Self-Help Sites ( ( Challenging Management Discretion ( ( Cybersmearing ( Litigation i i Web Sites ( Join A Class Action Web Site ( i t t 10

11 Employment Law Hotspots In

12 The EEOC s Activities ( 12

13 EEOC Docket Section 706 & 707 Lawsuits ( Pattern Or Practice Cases) Special Issues (Sex Harassment, Retaliation, ADA, Etc.) Special Workers (New Immigrants/Low Wage Earners, Teenage Workers, Etc.) 2006/2007 Enforcement Program 13

14 EEOC Case Filing Philosophies Impact Of FY End-September Filings Very, Very, Very Aggressive Push The Envelope Cases And Strategies Co-Venture The Prosecution Of Lawsuits With Private Plaintiffs Lawyers 14

15 EEOC Lawsuits And FLSA Cases Can Be Filed Against Virtually Any Size Employer The Low Hanging Fruit Concept Wage & Hour Lawsuits Are The New Tort Of The Day 15

16 Wage & Hour Hotspots Pay For Preliminary/Postliminary Activities Rest And Meal Breaks Permissible Deductions Off-The-Clock Work 16

17 Key Issues, Trends, And Litigation Targets In 2007 And Beyond 17

18 Current Trends In Workplace Litigation More Cases Filed din The Post- September 11 World Increase In Bigger Cases / Settlements & Verdicts Rising Defense Costs / Litigation Stemming From The New Digital Workplace And E-Discovery Anecdotal Studies/Workplace Litigation Exposures Are The #1 Management Concern 18

19 Plaintiffs Targets And Sound Bytes Internal Complaints Fall On Deaf Ears (The Employer Doesn t tc Care... ) The Rules Are On The Books, But Often Are Not Followed (The Employer Selectively Enforces Its HR Policies To The Detriment Of A Protected Category Employee... ) The Rules Don t Apply To The Favored Few (The Employer Looks The Other Way When Managers Violate HR Policies... ) 19

20 Understanding The Dynamics & Costs Of Workplace Litigation 20

21 Why Do Workplace Cases Cost So Much? A Simple Termination Fired Employee With $30,000 Salary, Out Of Work For 6 Months And What Goes On The Blackboard 21

22 Costs In Single Plaintiff Cases Attorney s Demand Letter ( We Want $30,000 ) Lawsuit Back Pay ($15,000) Compensatory Damages & Punitive Damages ($300,000) Front Pay (And Multipliers) Defense Fees ($30,000 To $100,000) 000) Fees And Costs Of Plaintiff s Counsel ($30,000 To $100,000) Total - $370,000 To $510,000 22

23 Components Of A Workplace Risk Management Program 23

24 Prevention And Loss Control Rigorous Defense Of EEOC Charges Opportunistic Settlements On-Going Analysis Of Employment Data Establishment Of An Employment Practices Compliance Program 24

25 The Components Of An EPCP Get Employment House In Order State-Of-The-Art Equal Employment Opportunity, Anti-Discrimination, i i i And Anti-Harassment Policy And Complaint Procedures Effective Orientation ti Program For Educating All Employees As To Club Policies And Procedures Exacting Expectations Of Management Behavior Communicated To And Required Of All Supervisor Personnel 25

26 The Components Of An EPCP, Cont d Supplementary Policies And Procedures To Implement The Club s Compliance With Respect To Discrimination And Harassment Laws Relentless Commitment To Best Workplace Practices Designed To Eliminate Any Problems Of Discrimination or Harassment 26

27 Statement Of Club Policies Demonstrate Good Faith Efforts To Eliminate Problems Involving Discrimination And Harassment By Adopting An All Inclusive Policy Statement Mission Statement Modeled Upon EEOC s Policy Statement Issued On June 18, 1999 Zero Tolerance For Harassment 27

28 Educating Employees Must Show There Is No Question Among Employees As To Club Rules And Their Rights Comprehensive Orientation i For AllNew Employees Policy Statements And HR Managers Must Be Accessible And deffective Intranets, Employee Hotlines, HR Call Centers For 24 Hour Assistance 28

29 Expectations Of Management Behavior Training On EPL Topics What Management Needs To Know About Anti-Discrimination Laws Relative To Hiring, Evaluation, Terminations, And All Other Terms And Conditions Of Employment Detailed djob bdescriptions Zero Tolerance 29

30 Additional Personnel Policies And Procedures Open Door Policy And Internal Complaint Review Procedure Resolve Problems Before They Mushroom Into Lawsuits Reasonable Accommodations Pursuant To The Americans With Disabilities Act 30

31 Institution Of Best Workplace Practices And Management Tool Kit Creation Of Club Committee Charged With Institution i And Reviewing i Best Practices In The Workplace Monitoring i AClub s Zero Tolerance Policy Periodic Employee Surveys (To Ascertain The Attitudes, Challenges, And Problems Of Employees) Exit Interviews Standard d Protocols And Pre-Dismissal i Checklists 31

32 Wrap Up / Q & A 32

33 Then, like a fool, I said, Let s not bother running this by the lawyers. 33

34 Gerald L. Maatman, Jr. Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago, IL (312)