Avoiding Employment Litigation Catastrophes – The Top Ten

1. Avoiding Employment Litigation Catastrophes – The Top Ten

2. 10. Coordinate Your Defense • Unemployment compensation • Res judicata (administrative preclusion) • Incorrect factual statements by unprepared witnesses • Workers’ compensation • Avoid inconsistent positions taken with employment litigation • EEOC/DOL Investigations • Limit responses (i.e., only necessary information) • Avoid creating new issues not in Charge by broad responses • Systemic issues created by broad responses • Consider costs of injunctive relief before offering it

3. Don’t Give a “Handy” Reason for Termination or Discipline – Provide the Real “Real Reason” • Most often a problem in theft cases • Make factual recitation of reasons avoiding inflammatory words in separation papers • The issue is “pretext,” usually proved by “comparators” who were treated differently • Need not prove your reason was “true” or that there was “cause” - only that it was reasonably based • Relying on real “real reason” avoids shifting positions which may establish pretext

4. Establish EEO and Harassment Policies and Method of Reporting Harassment Allegations • Policy prohibiting all types of harassment (i.e., not just sexual harassment) • Mandatory single point for reporting complaint is preferred procedure • Supreme Court decisions establish non-use of reasonable reporting procedure is a defense in supervisory harassment cases • Reporting procedure can be defense to punitive damages

5. 7. Review Your Wage and Hour Policies • Still a very hot topic • Review exempt job classification – Have your employees reviewed the job description? Is it in keeping with what actual duties are? • Obey break rules, lunch breaks, etc. (be aware of and comply with state specific rules) • If the rule is no more than 40 hours to be worked – ensure supervisors stop people from working (i.e., all hours worked should be reported) • Don’t trust DOL investigator to assess issues properly

6. 6. Manage Your Family Medical Leave Act Calendars • Also still a hot litigation issue • Threshold of 50 employees in 75 mile radius • Employee must have worked 1250 hours in previous year to be eligible • Rolling calendar versus calendar year – you should define your policy in writing as rolling year • Train personnel on how leave is calculated • Notice to employee of FMLA countdown (DOL forms)

7. 5. Manage Your E-Data • Email destruction policies • Treating email as formal correspondence – avoid email as conversation • Know how your system works and how to stop automatic destruction • With new federal e-discovery rules in place, Plaintiff’s counsel will attempt to create e-side shows • E-race cases and testers – hot topic with EEOC

8. 4. Non-Compete • Only as broad as needed in scope • Geographical scope • Temporal scope • Allowable breadth determined by the job being examined • Blue penciling and invalidity (state law controls) • Choice of forum versus choice of law • Protection • Customer lists • Propriety manuals and methods of operation • Not protected • Industry knowledge

9. I-9 Compliance (Another Hot Topic) • New I-9 compliance books issued last week • Some changes in what documents you may use in determining eligibility

10. 2. Color Discrimination (Another EEOC Area of Increased Interest) • Color is not race • 1,241 charges in 2006 alleging color discrimination (400% increase in last ten years) • Anticipate expert testimony • Issues with comparators (who is a comparison employee?)

11. 1. Training • Harassment training • ADA training • Leadership training – professional environment • Problems created by “direct evidence” (racial slurs, jokes, etc.) • Train investigators – or outsource • Document training – it will be inquired into at deposition and trial and does make a difference