How to Survive the Perfect Storm 10-14-2009
- By Ann F. Kiernan, Esq.

"Historic trends and events are converging into a perfect storm that could place anti-discrimination at the center of corporate policy with an intensity unseen since passage of the Civil Rights Act in 1964", according to Dr. James Fadigan, one of the authors of the Title VII anti-discrimination provisions of the 1964 Civil Rights Act and a leading authority on equal employment opportunity.

What's causing that perfect storm? Consider these ten facts:

1. Last fall, we experienced a near-collapse of the world's economic system, and the recovery is just starting.
2. Unemployment is record-high. Millions of people have lost their jobs since the start of the year. Major employers have layed off workers, closed plants, and filed for bankruptcy.
3. Workplace discrimination claims soared to unprecedented levels during fiscal year 2008. According to the EEOC, 82,792 charges were filed in 2007 and 95,402 in 2008, a 15 percent increase in just one year. Claims of age discrimination went up 29%.
4. Employees have seen their 401(k) and other retirement account balances plummet. As a result, a number of older workers will have to delay retirement, thus reducing the normal employee turnover rate, which could result in even more layoffs than otherwise would be needed. It could also lead to more age discrimination claims.
5. Families of active duty military have new FMLA rights, as of January, 2009. Employees with a son, daughter, parent, or spouse called to active duty can take time from work to handle "qualifying exigencies" related to the call to duty, and can also take up to 6 months off to care for the service member, if he or she is injured in the line of active duty.
6. As of July 1, 2009, New Jersey has joined California in providing employees with paid Family Leave Insurance benefits. Washington State was supposed to begin FLI coverage in October, 2009, but deferred the start date because of the state's financial woes. More than a dozen other states are considering FLI or paid sick leave laws.
7. President Obama has already signed legislation making it easier for workers to sue for pay discrimination, and his administration has beefed up enforcement of existing labor and employment laws, hiring hundreds of new compliance officials.
8. In January, 2009 the US Supreme Court extended federal anti-retaliation protection to workers who participate in internal investigations.
9. As of the end of 2008, all federal contractors and subcontractors must have adopted codes of conduct and must train their employees on them.
10. Congress is considering laws to: expand federal discrimination protection to gay, lesbian, bisexual and transgender employees; mandate sick pay; overhaul union organizing; index the minimum wage to the inflation rate; extend the WARN notice period to 90 days; toughen OSHA protections; remove damage caps from federal discrimination cases; and more.

What this means to you:

If you think your managers aren't clear about the legal risks they can create for your company every time they evaluate, re-assign, respond to employee issues, or provide performance feedback you are probably right!

So how can your organization avoid a shipwreck in this perfect storm? Make sure the captain and crew (that is, your managers and supervisors) are well-trained to:

• Know the waters
• Spot employment law hazards
• Chart their business reasons for all decisions ,and
• Seek advice from navigation experts (upper management, HR, Legal)

In our Managing Within the Law I and II workshops your managers will learn to spot legal hazards and respond to them correctly, which will help to build a respectful workplace and prevent costly employee lawsuits. Don't wait until your company is sinking under a messy employee claim to get your managers trained!

Coming soon! The latest white paper from Fair Measures, "How to Survive the Perfect Storm: The ROI of Employment Law Training for Managers" will be available for download on October 27, 2009.

 

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.