Posts Tagged ‘employment discrimination’

The Lawsuits are Coming, Get Ready to Pay

Friday, April 22nd, 2011

  The Cleveland Plain Dealer reported that over 6,800 private-sector lawsuits were filed nationwide in 2010. The DOL (Department of Labor), handled about 32,000 wage and hour complaints in 2010, a jump of 33 percent in just two years.  The Equal Employment Opportunity Commission reports that pay and promotion cases are now the biggest category of employment discrimination filings but discrimination cases are also on the rise.  Broadly defined but complex new regulations on ADA (Americans with Disabilities) and GINA (Genetic Information Non Discrimination Act)  make it likely that even the best intentioned employer may inadvertently discriminate against an employee or applicant.

  Looking forward into the rest of 2011 and then on to  2012 employers should expect more new rules, with the DOL, ICE and IRS allocating more resources towards enforcement of those rules.  The DOL is planning to issue new rules on the Family Medical Leave Act and the Fair Labor Standards Act.  The National Labor Relations Board has proposed a new rule that, if adopted, would require almost all private-sector employer in the US to notify employees about their rights to unionize.

 The DOL has hired 250 new investigators and has launched the “We Can Help“ program that includes a website and bilingual public service ads designed find and correct the incorrect classification of exempt employees and other violations of wage and hour laws.  To “help” employees even more, on November 19, 2010, the U.S. Department of Labor announced a joint initiative with the American Bar Association to help employees find lawyers to enforce their rights under the Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FMLA). Since December 13, 2010, employees who bring FMLA or FLSA complaints that cannot be resolved by the Department of Labor have been given a toll-free telephone number to contact a newly created ABA-approved attorney referral system that will provide information about participating attorneys in their geographic area.  The U.S. Immigration and Customs Enforcement (ICE)  will continue to increase its investigations and raids on employers who hire illegal workers, over 1000 notices were issues in the first 4 months of 2011. Don’t forget the IRS, in 2011 the IRS will conduct over 6,000 payroll tax audits focusing on companies misclassifying workers as independent contractors, fringe benefits and executive/deferred compensation, as part of a new federal and state focus on the miscallification of workers as independent contractors. 

Complex regulations, increased enforcement and easy access to plaintiff’s attorney are creating the “perfect storm” for employment lawsuits.  Are your payroll and employment practices ready? If you don’t have EPL (Employment Practices Liability) coverage call your broker now.  Consider an independent audit of your HR practices. Use automation (software) to ensure consistent process and good documentation. Plus keep your attorney on speed dial, you probably will be calling  them more than ever.

Join the conversation:  Are you worried about employment lawsuits or audits in 2011?

Don’t forget “protection” when disciplining or terminating employees

Friday, April 1st, 2011

Remember the “protected” rule when disciplining or terminating employees. Never discipline or terminate an employee in a protected class or an employee engaged in a protected activity without consulting an attorney. Protected classes are race, color, religion, national origin, age (40 and over), disability, veteran status, genetic information sex, familial status, sexual orientation and gender identification (some jurisdictions). Protected activities include lodging a harassment complaint, filing a work comp claim, taking certain leaves including FMLA leave, asking for a disability accommodation or complaining or filing a charge of unlawful activities.

Does having “Adonis DNA” provide protection under GINA?

Saturday, March 12th, 2011

In the midst of the Charlie Sheen media frenzy, several important questions in the Sheen vs. CBS/Warner Bros. dispute are being overshadowed by the sensational personal videos and interviews.  Should an employee’s personal life affect his/her employment?  What if that employee is making vast quantities of money for himself/herself and the company? Does having “Adonis DNA” provide protection from non discrimination in the termination process under the new GINA (Genetic Non- Discrimination Act) regulation?

With Charlie Sheen’s controversial personal antics, CBS and Warner Bros. finally starting questioning fitness for duty. Some ask why it took this long for them to finally take note of Sheen’s personal actions.  Did it have anything to do with the fact that Charlie Sheen helped make “Two and a Half Men” one of the top syndicated shows on television?  Probably. Other high earners in the entertainment industry, professional sports and business have been given considerable leeway from normal standards of conduct.  But in the end, high earners are not exempt from negative and/or questionable personal public image, even if means the loss of high earnings for the employee and high revenue for the company he/she represents.

Warner Bros. indicated that they fired Sheen because his erratic personal life became a liability for the company and started to affect his ability to perform on the show. Notice that the employer was very careful to focus on the ability to perform the job (fitness for duty) as the reason for termination. While most employees will not have a contract and the employment relationship will be “employment at-will” it is still very important  that the employee is never fired for anything that could be construed as discriminatory. While “ having tiger blood” or being “a rock star from Mars” are not protected classes (at least not yet) employers must ensure that employees are never fired because of race, gender, sexual orientation, national origin. “Adonis DNA” certainly sounds like a genetic issue, but  isn’t covered under GINA (Genetic Information Non-discrimination Act). There may be upcoming legislation to make trolls a protected class after Jon Cryer’s revelation on the Conan O’Brien show.

Cupid’s Arrow May Find You At Work

Monday, February 14th, 2011

Long hours at work  and increased socialization as a workplace expectation may have lead to an increase in romance in the workplace reports several recent studies. The flip side is that while employee may be finding love at work they are also concerned about the impact to their careers. reports that 59 percent of 2,083 respondents to recent survey had dated a colleague. Slightly more than one-fourth dated a subordinate, and 18 percent dated their supervisor. A  Career Builder survey reports that more than one-third of 3,910 full-time U.S. employees have made a love connection in the workplace and nearly two-thirds are not keeping secret a once-taboo type of relationship.

The survey also found that thirty-eight percent thought a co-worker gained a professional advantage because of a romantic relationship with a supervisor or co-worker, and 31 percent were uncomfortable with a co-worker’s office romance.   The respondents  indicated the following behaviors as not acceptable for workplace relationships:

•Dating someone in the same department (29 percent).
•Dating someone who is working on a project with you (29 percent).
•Dating someone you work with who is from a different company (22 percent).
Eleven percent thought a workplace romance is never acceptable.

So can Cupid’s arrow kill your career and is it worth it? It depends on which survey you read. Sixty-five percent of workers in the survey said the economy was not a factor in pursuing a workplace liaison. However, 70 percent of 423 registered Monster users think that dating a co-worker openly could jeopardize job security or advancement, according to a survey in the U.S. for Spherion Staffing Services, a division of SFN Group Inc. Only one-third of those surveyed in 2008 were hesitant to start an office romance.

John Heins, senior vice president and chief HR officer at SFN Group acknowledged that many companies do not have clear policies or workers are not aware of them.  36 percent of the respondents to the Monster survey work at companies without such a policy; 43 percent don’t know if their company has a policy. “If office policies aren’t clearly communicated or don’t exist at all, people can’t measure the potential consequences of how an office romance will be perceived or handled by the company,” Heins said.

Employers should have a clearly stated and non discriminatory policy for office relationship.  The policy should eliminate any cause for possible harassment or discrimination lawsuits (employees and mangers cannot date if there is a reporting relationship for example).   Have an attorney review the policy and have all employees read and acknowledge it.

Employees should endeavor to keep all workplace interactions (even with your sweetie) at the highest level of professionalism.  Your goal is that know that no one knows that you are even dating by your behavior.  However in today’s world you should also limit office gossip by informing co-workers and manager prior to status updates on social media sites.

Join the conversation: What do you think about romance in the workplace?


SHRM Online Newsletter,  2/11/2010,   Every Day is Valentine’s Day for Some Workers,

www.Vault .com 2/10/2011

www. Career Builder. com,2/10/2011

www., 2/11/2011

Get Sued- The 5 Most Common Mistakes Employers Make

Saturday, September 18th, 2010

Do you want to be sued?  What a silly question, what employer wants to be sued or audited- yet too often employers become involved in employment litigation simply because they failed to follow the most basic HR practices.  In conversations with both plaintiff and defendant employment attorneys and discussions with KPA’s partner attorneys, I have found the following 5 mistakes seem to be the most common reasons for employment litigation.

1) Asking unlawful questions during the interview

2) Responding inappropriately to requests for leave (ADA, FMLA, Work Comp)

3)  Not maintaining up to date policies and handbooks and ensuring all employees are aware of and understand the policies.

4) Poor practices in disciplining employees- inconsistent disciplinary practices, inadequate documentation and incomplete follow up.

5)  Unsound termination decisions-employers have the right to terminate employees but not based on discriminatory criteria.

If you are concerned that your HR practices are not quite up to par in any of these areas join KPA on September 23, 2010 for a free webinar “Your Legal Questions Answered”. In this webinar you will have the opportunity to ask national recognized employment attorney, Jim Hendricks, your most pressing HR questions. Hear what HR legal challenges other dealers are facing. You will learn the answers to these questions and more…

  • Do salaried employees get overtime pay?
  • Can I fire someone when I have never given them a disciplinary warning?
  • Do all employees need a job description?
  • Should employees be able to see the contents of their personnel file?
  • What is reasonable suspicion for a substance abuse test?

You may submit questions in advance using the form on the registration page. You can also ask questions during the webinar. We will not disclose any confidential information, including your name or company information during the Q&A.

Register Today!

Imbibing Idiots and Job Interviews

Tuesday, August 10th, 2010

 Most managers and HR professional think they are good at objective interviewing- when in fact they are influenced by all sorts of subconscious bias.  A recent study (with the wonderful title of “The Imbibing Idiot”) highlights this by reporting that applicants who order an alcoholic beverage when taken to dinner or lunch during the interviewing process are perceived as less intelligent- even by those interviewers who ordered an alcoholic beverage themselves.  The study authors, Scott Rick of the University of Michigan and Maurice E. Schweitzer of the University of Pennsylvania, also reported the job candidates fail to anticipate that ordering an alcoholic beverage will reduce their perceived intelligence. 

What can we learn from this as interviewers? Recognize that we all bring some degree of bias to an interview.  Use scorecards, assessment testing, and third party reviews to make the selection process as objective as possible.  As applicants and employees we should consider how we want to be perceived before we order that glass of wine- even if the interviewer or boss just ordered one for themselves. Don’t forget your social media sites- no pictures of alcoholic beverages allowed for general viewing.

Join the conversation:  Should you order an alcoholic beverage during interview? What if the interviewer is ordering one? Wouldn’t the Imbibing Idiots be a great name for a band?

Yet another discrimation lawsuit and settlement in the transportation industry

Tuesday, July 6th, 2010

Because KPA offers HR compliance consulting and HR software we monitor all of the lawsuits and settlements brought by the EEOC.   Frankly it is rather depressing to me (as an HR professional and as a person)  that 45 years after the EEOC was established there are still so many claims and settlements for discrimination, harassment and retaliation.    My friends who are  employment attorneys could not be more pleased that there seems to be a never ending source of revenue from employers who can’t be bothered with good HR practices UNTIL the lawsuit lands on their desk.

The latest discrimination and retaliation claim settled by a company involved in the transportation industry involves McGriff Industries. McGriff Industries settled the suit for $100,000 along with required activities involving implementing effective anti-discrimination policies and procedures, and training its employees, supervisors and managers on the prohibitions against racial misconduct in the workplace. The company will also be required to develop a system for reporting, investigating and addressing complaints of workplace racial misconduct; hold all employees accountable for engaging in it; and hold supervisors and managers accountable for tolerating or failing to address such misconduct.  

  Let’s review the 4 things employees really must do to ensure they are not next in the list of companies the EEOC has settled with in 2010. 

1) When in doubt on the right thing to do - don’t do anything (don’t fire, don’t hire,) without consulting the experts (your attorney, a certified HR professional) and then listen to what they tell you.

2) Automate processes for hiring, performance management, training and termination with software so you have complete records, and forced compliance to best practices for essential HR process. With the multitude of HR software programs out there at every price point,  some even specialized by industry, there is no excuse not to automate process and force compliance. 

3) Establish policies and procedures for employees to report issues and concern- and respond to them (ethically, humanely and legally).

4) Train, train, train- never assume your managers and employees know what to do and more importantly what not to do to avoid harrassment, discrimination or retaliation.

 Join the conversation: Are you sure your company would survive an EEOC audit?

Employer Alert- New Rules on Background Checking

Monday, June 21st, 2010

Oregon employers need to review and update their policy on background checks  involving credits checks before July 1st, 2010.   A new law makes it an unlawful employment practice, except in very limited circumstances, for an Oregon employer to use credit history in making hiring decisions or any decision affecting current employees.  Employers in Oregon should also consider reviewing and updating their handbooks to ensure there is appropriate language indicating the employer does not discriminate toward applicants or employees on the basis of information obtained in a credit check.  Hawaii and Washington have recently enacted similar laws.

There are also bills pending in the following states: Connecticut, Illinois, Maryland, Michigan, Missouri, New Jersey, New York, Ohio, Oklahoma, South Carolina, Vermont, and Wisconsin. Legislation also is pending in the United States House of Representatives to amend the Fair Credit Reporting Act to prohibit use of consumer credit checks in employment decisions.  See my earlier blog at for discussion on best practices in background checking and how much a background check can actually reduce your risks.

The new Oregon law provides for credit reports as part of of a background investigation in extremely limited circumstances – where required by law (for example bank employees or law enforcement) or for “substantially job-related reasons”.  The reason must be defined and disclosed in writing to the job applicant. I would encourage any employer who does wish to conduct a credit check under the substantially job-related reason clause to consult with their attorney before proceeding.  As an HR professional, who also worked for a leading background checking company, my recommendation is that unless required by state or federal law credit reports will add little value in the hiring decision.

Join the conversation: Do you check credit reports before hiring and if so why?

What is the cost of not allowing women mechanics at your dealership? $55K based on latest EEOC settlement

Thursday, June 10th, 2010

Is there any reason why women should not work as motorcycle mechanics? The obvious answer of course not-and the Dudley Perkins Company probably wishes that had been their reasoning in the past after paying out $55,000 to settle a lawsuit accusing them of not allow a women to work as a mechanic.

The The Dudley Perkins Company, the country’s oldest Harley Davidson motorcycle dealership, will pay $55,000 and furnish other relief to settle a sex discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced on June 7, 2010.

The EEOC’s suit had charged that the San Francisco-based company refused to let a female employee, Bowen Dean, work as a mechanic, while hiring less qualified men. Further, the EEOC said, Dudley Perkins fired her after she filed an EEOC sex discrimination charge.  Through the consent decree settling the suit, the court ordered that Dudley Perkins revise its equal employment policy and complaint procedure; train its staff every year about sex discrimination and retaliation; post a notice stating the terms of the decree and how to complain about discrimination; include in its advertising a statement affirming its commitment not to discriminate based on sex; and report its hiring decisions to the EEOC for the decree’s two-year term. In addition, the company will pay Dean $55,000 as monetary damages.  The cost of the bad press is hard to calculate.

“Breaking into jobs in non-traditional fields continues to be a challenge for women, and despite the prohibitions on sex discrimination written into federal law in 1964, some sex segregation in employment continues,” said EEOC San Francisco Regional Attorney William R. Tamayo. “This settlement will help the motorcycle industry take a step forward.”

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at

The Platinum Rule for Workforce Management and Human Resources

Friday, April 9th, 2010

As I look the list of recent EEOC settlements for both small businesses and large international companies, law firms (they really should have known better) to manufacturing companies, I am struck by one simple fact.  ALL of these lawsuits and settlements could have been avoided if managers, supervisors and executives followed one simple rule, aka the platinum rule, first coined by Tony Alessandra and Scott Zimmerman

Every major religion has a tradition of the golden rule, “treat others as you would be treated”, and it’s a great starting point for moral and ethical decisions. But in the workplace (and frequently in life) not everyone wants to be treated just like you do.  Instead think about treating people how they want to be treated (the platinum rule), not how you want to be treated (the golden rule).   The platinum rule should also be applied when designing reward programs and development and training plans.   Dan  McCarthy uses the platinum rule as the T in his RESPECT overview and how leadership needs to show it.   Check out Dan’s thoughtful and practical advice on leadership at

 Join the conversation-golden or platinum rule best for workforce management?