The Changing Face of Employment Law: An Update
For Members of the Association of Legal Administrators

While at the ALA Region 3 Conference this year, I attended a session on employment law. Michael Mitchell, managing partner for Fisher & Phillips LLP, presented this session.

First, a little background on recent litigation trends.

• Employment lawsuits are up 250% in 10 years
• Average verdict is over $250,000
• Most typical target of lawsuits are employers with 15-100 employees

Sexual Harassment

Sexual harassment lawsuits comprise 30% of charges filed. However, this is not as high as it was a few years ago. The trend is downward because employers are getting the message and giving appropriate training and education to their managers.

Superior to subordinate is the most common form of sexual harassment. It is more about power and not “sex” itself.

15-20 years ago when sexual harassment suits started they were very obscene (i.e., pawing, near rapes, etc.). Today, those cases are very rare. The most typical sexual harassment is someone looked at you funny or someone makes you feel uncomfortable. However, the litigation is just as difficult no matter what the circumstances.

Your company should have a sexual harassment policy and you should make everyone in the company sign an acknowledgement that they read the policy and place that acknowledgement in their personnel file.

When you have a sexual harassment complaint, DON’T IGNORE IT! Complaints to you are good. You must follow through and investigate the complaint. Lawsuits are less likely to happen if you take notice and follow through.

If you have a written policy and your employees sign a sexual harassment acknowledgement stating that they read the policy and you have never received a complaint from an employee and that employee files a lawsuit for sexual harassment, your company will most likely get the case thrown out.

Race Discrimination

Race discrimination charges are higher and the verdicts are more substantial since September 11, 2001. The EEOC and jurors are hypersensitive to Muslims and Arabs. Between September 11, 2001 and May 7, 2002, the EEOC received 488 charges of “backlash discrimination.”

Retaliation

Retaliation prohibits taking any adverse action against an individual who reports or complains about any form of discrimination or other illegal acts. The EEOC retaliation charges have risen from 14,000 in 1993 to 22,500 in 2003. The reason for this increase in charges is because even though an employee brings a legitimate charge and it is dismissed, they are still protected under the EEOC from future retaliation claims.

FMLA

The Family and Medical Leave Act (FMLA) requires covered employers to grant certain employees up to 12 weeks of unpaid leave in the event of pregnancy, child birth or serious health condition. In order to be eligible for FMLA leave, your Firm has to have 50 or more employees within a 75 mile radius, the employee must be employed for a total of at least 12 months and must have worked 1,250 hours in the past 12 months. The Firm is obligated to grant up to 12 weeks of UNPAID leave, continue employee’s medical insurance as if employee was at work and to return employee to former or equivalent position at end of leave. Your firm should word your FMLA policy so that employees must use their vacation/personal time – they should not be able to come back from FMLA leave and take vacation.

Conclusion

Your Firm should have clearly written handbook policies. These handbook policies should include topics such as electronic communications, proper at-will language, comprehensive work rules, FMLA policy and an arbitration policy. Some common problems with handbook policies are:

• Inadequate at-will language
• Progressive discipline policies (Your Firm should not have this in the handbook. You should be able to fire someone immediately for cause).
• Insufficient work rules
• Promises of long-term security
• Inadequate harassment policy
• Inadequate substance abuse policy
• Incomplete EEO policy
• Poorly worded vacation policy

And remember, always document, document, document!

Cheryl Rarick
December 20, 2004

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