In a recent case the Supreme Court put more pressure on employers in age discrimination lawsuits by placing the burden of proof on them. In the past employees have had to prove that age discrimination took place, which led to the dismissal of Meacham v. Knolls Atomic Power Laboratory. With this new ruling the courts have flipped the burden of proof onto employers, who now must prove that the age discrimination did not take place. What this essentially means is that managers must keep detailed documentation behind every firing to show the “disparate impact” was based on “reasonable factors other than age.” Previously, courts in similar cases ruled it was up to employees to prove there was bias.
With the workforce aging as baby-boomers near retirement, the issue of age discrimination is becoming increasingly prevalent. With this type of discrimination on the rise, employers need to address the situation before it becomes a problem. According to Aging Workforce News, “A Hewitt Associates survey of more than 140 mid-size and large employers has found that 55% have already evaluated the impact that potential retirements could have on their organization and 61% have developed or will develop special programs to retain targeted, near-retirement employees. Even though only 21% believe that phased retirement is critical to their company’s human resources strategy today, 61% believe so when looking ahead 5 years.”
To learn more about age discrimination, the impact on businesses, and what you can do about it visit the Department of Labor, AARP, or one of many events such as the Aging Workforce Summit.
In the United States workers compensation went into effect during the early 1900′s. During this time the legal system was experiencing significant growth which led to increased protection of employee rights. These employee rights laws started out very industry specific, with the manufacturing industry leading the way. As a result, states that supported high risk industries experienced the adoption of such laws earlier than those that relied on other industries such as agriculture. It is partly the industry specific nature of these laws that have made it a state law instead of federal law. By 1948 every state and US territory had adopted some form of workers compensation law and would continue to develop it as time went on.
State workers compensation laws have been developed with two things in mind. The first was to provide guaranteed coverage for the employee to ensure that they will have adequate means to live if they are injured on the job. The second purpose for the laws is to protect the employer from being suited and losing everything because of an injury. The idea is that the system provides a structured plan to support the injured employee without causing undue hardship to the employer.
To help reduce the cost for your organizations workers compensation coverage there are several action steps you can follow:
Action Steps: The best contacts and resources to help you get it done
Find your state specific workers compensation laws:
Every state has its own set of rules and regulations for workers compensation. It is important for you to look in all states that you do business in as coverage is differs state to state. I recommend taking a look at your states individual workers compensation laws to ensure you are aware of these different conditions. A great resource for this is WorkersCompensation.com, click on a states link to see the specific regulations.
Get a free quote:
Use one of the many online services to get a free quote on what your insurance cost would be. It can be helpful to use two or three different services while researching to get a good idea of the industry average. I recommend visiting Insurance Finder or the quote request page at WorkersCompensation.com. These will provide some numbers to work with while looking for the proper insurance provider for you and your organization.
Visit the US Department of Labor:
While most regulations in the workers compensation laws are state specific, there are certain conditions that apply on a national level. These include coverage to injured employees for medical bills and lost wages. The most common difference is the waiting period for payment and how much of the wages are replaced. I recommend checking out the Department of Labor for more information on these topics. As of next year the Department of Labor will be handing responsibility of reporting on these matters to WorkersCompensation.com, who has become the leading resource for national workers compensation coverage.
Become Educated:
One of the biggest reasons for lawsuits pertaining to workers compensation is a direct result of a lack of knowledge! Protect your organization by becoming educated on this important law. I recommend visiting HRSentry and signing up for the free online webinar on May 20th at 2pm. For anyone seriously interested in learning the ins and outs of workers compensation, Americans with Disabilities Act, or the Family Medical Leave Act, this is a must. It will be presented by a wonderful presenter and human resource professional, Brenda JM Sabin, CBP check it out.
Educate Employees
The final step to any successful workers compensation plan is making sure your employees understand it. I recommend including the specifics of your workers compensation plan in your employee handbook. This allows employees access to this information and keeps all levels of management on the same page. For more information on this topic visit my “Importance of Creating an Employee Handbook” lens. Another great resource for this and all Human Resource related needs is the HRSentry Solution.
In a letter to their members, SHRM voiced their opposition to a new bill being debated in the House titled the Paycheck Fairness Act. Acting as an update to the existing Equal Pay Act, the bill would create new mandates for employers as well as making it easier to suit for punitive damages. As a result of the nature of the bill, SHRM opposes the following aspects of the Paycheck Fairness Act:
* Promotes class action lawsuits against employers—The bill would require that employees “opt-out” of a gender discrimination class action, rather than the current law requirement that employees must give their written consent to join a class action. This will invariably increase the number of plaintiffs in class actions.
* Exposes employers to unlimited damages—The bill would lift the Equal Pay Act’s current limits on punitive and compensatory damages for which employers would be liable, in addition to current liability for back pay. Such damages would apply to even unintentional pay disparities. By exposing employers to potentially millions of dollars in damages, the bill would compel employers to settle wage discrimination claims, even in cases where no discrimination occurred.
* Restricts employer defenses—The bill would prohibit certain employer defenses for pay disparities. For example, the bill would eliminate an employer’s ability to justify paying different salaries to workers based in different locations with different costs of living.
* Encourages salary disclosures—The bill would effectively encourage employees to publicize their co-workers’ salaries by preventing employers from retaliating against employees who disclose or discuss the wages of other employees.
SHRM went on to urge the public(especially employers) to write their Representative calling for them to vote “No” on this bill. SHRM further explains their position by stating that “SHRM opposes all forms of unlawful
discrimination in the workplace, and believes any intentional misconduct against employees in any sector should be promptly addressed and resolved. Accordingly, SHRM believes the so-called Paycheck Fairness Act would be an unnecessary expansion of the Equal Pay Act. It would limit an employer’s ability to determine compensation for its workforce, and it could potentially punish well-intentioned employers”
For more information on this bill visit GovTrack or the SHRM website.
Retaliation claims can be extremely hard to defend against, and the penalties for those found guilty aren’t getting any easier. In a recent ruling on a case in Cambridge MA the jury awarded a woman $4.5 million after claiming retaliation for an earlier discrimination suit. After filing the original suit for discrimination, the woman claimed that her manager unfairly over-analyzed her work giving her poor reviews in hopes to get her to quit. Finally she was told she was being fired so she resigned and brought the company to court.
With the number of retaliation claims on the rise, now makind up 32% of all claims filed with the EEOC, companies need to understand how to defend themselves against such situations. The first step to take is making sure that all supervisors and managers are aware of the retaliation law and its consequences. Providing training in this area as well as discrimination(many retaliation claims originate with discrimination claims against that company) will help to reduce the risk, and show that you are actively working to stop this type of behavior. It also helps if HR has the confidence of the employees. As I have continually stressed throughout this blog, a good HR department will cause workers to talk to them instead of a lawyer. Workers who seek legal advice are much more likely to suit then if your HR department can remedy the situation in a fair yet cost effective way for all parties.
A list of strategies to prevent retaliation claims as seen on Findlaw.com
Establish a policy against retaliation
Communicate with the complaining employee
Keep confidential any complaints that you receive
Document, document, document…
Know the law – Even if the original complaint of discrimination or harassment turns out to be unfounded, an employee who can prove that something negative happened because of the complaint can still win a retaliation claim.
An interesting article located on HRTechNews titled “One deleted e-mail lands company in court” tells the story of how the new “e-discovery” rules are being enforced. Electronic discovery (also called e-discovery or ediscovery) refers to any process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case.
The case discussed in the HRTechNews article describes a lawsuit brought by an employee who claimed she was let go for taking FMLA leave. One of the key pieces of evidence against the employer was a deleted email that explained why the woman was fired. When the employee was fired, her manager sent an email explaining the termination to her department. After she suited the manager was told to save all relevant documents for the coming court proceedings. This email was deleted(the employee got a copy anyway). Although the manager said it was deleted by mistake, the judge ordered the company to be sanctioned, meaning that at trial the jury will be told the company deleted the email on purpose, looking like they were attempting to hide evidence.
In this case the company acted properly in asking the manager to save the deleted email. However by not having a backup plan, and trusting the manager entirely, they took the control out of the companies hands resulting in a damaging sanction. One thing that can be done to prevent this is to make sure that IT is archiving all email messages company wide for present and past employees. Another good tip is to make sure that when an employee is fired or leaves the company, all paperwork and communications discussing that personnel change are copied and put in the employees file. This ensures that in case of a delayed lawsuit, all the information pertaining to that employee is readily available.
