Posts Tagged ‘litigation’

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!

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?

Should Every Employee Use A Timecard?

Monday, March 29th, 2010

If you don’t have all of your employees using timecards you might want to reconsider.  Many employers only use timecards for non-exempt employees- but it is a good idea to have all employees keep accurate records of their time.  Having everyone keep track of hours worked  provides for accurate  records of wage payments against time worked - which in today’s litigious society is alway a good idea- as long as the records reflect correct wage and hour practices on the employer’s part.  A couple of things to consider:

1)  As a rule of thumb don’t  make exempt employees use PTO for absences of less than a day.   Exempt employees can be expected to use available PTO for partial days absence but you cannot reduce their pay if they don’t have enough hours so what is the point really?

If the employee is taking more time off than expected treat as a disciplinary matter.

2) Automate your timekeeping process- there are any number of vendors and online programs that can make keeping accurate records easy for the employee and for the payroll department.

3) If you allow nonexempt employees to work from home, you still need to keep track of their comings and goings, just as you would if they were in the office. You need to be sure their time is being calculated correctly, that they’re not working unauthorized overtime, and that they’re not in fact on the clock (in the form of work-related e-mails, texts, or phone calls) when they should be off it.

4) Make sure that all employees are classifed correctly as exempt or non-exempt.  Salaried is not a classification related to overtime wage payment but rather a method for payment. Salaried employees can be non-exempt.  If you aren’t sure how to classify an employee check out the Department of Labor website or the KPA webinars -Essentials of Wage and Hour Law,  Advanced Wage and Hour Law or California Wage and Hour Law.

5) It is usually (there are some exceptions) illegal  to give non-exempt employees “comp time” instead of paying overtime.  However for the exempt employee who has been putting in 60 hour work weeks comp time can be a great moral booster- and having good records of all that hard work is just another reason to keep accurate time worked records.

Join the conversation: Do you require all employees to use a timecard of some type?

Does Background Screening Really Reduce Risk?

Tuesday, March 2nd, 2010

  If you haven’t already reviewed your screening and hiring policies on applicants with criminal records put it on your “to do list” for 2010.   Highly published and expensive lawsuits related to negligent hiring make it seem that background screening is necessary step in your hiring process- but is it?   With experience both as a HR Director and working for a leading background screening vendor, my answer is maybe- it can be an important step and will reduce risk but only if done in accordance with best practices and within the state and federal regulations.  

 The Employment Opportunity Commission (EEOC) and the federal courts will soon require evidence-based screening and hiring policies. Within the next 12 to 18 months, employers can expect to see the EEOC issue new guidelines that require empirical evidence for the “business necessity” defense in racial discrimination cases that arise from screening and hiring practices.  Employers will benefit from having clarity in what is permissible.  If you now use the common five-year, seven-year, 10-year or lifetime employment bars for people with criminal records you need to think about how you can validate this information and show business necessity for the specific employment bar.  Most screening vendors claim that criminal checks reduce workplace violence, theft and fraud, but  don’t have any meaningful empirical evidence- with the expected EEOC guidelines and recent lawsuits on discrimination based on background screening they should be working to produce this information over the next several months.   If you current vendor can’t help you will need to consider a new vendor.  Employers may also look to the work of social scientists such as Alfred Blumstein and Shawn Bushway.  Blumstein published a major study in 2009 that actuarially identifies the point at which an individual with a criminal record is at no greater risk of committing a crime than other individuals of the same age. 

 The bottom line is that employers should not use background screening as the only criteria for hiring or screening applicants.  Behavioral interviewing and assessment testing along with reference checking are also important tools.  If  you are using background screening having job-specific hiring policies and a case by case review of all background screening results is recommended- and don’t forget two time tested HR practices for mitigating risk:  proper supervision and effective performance management.

Join the conversation: Do you use background screening in your hiring process and do you believe it reduces the risk of a bad hire or a negligent hiring lawsuit? 


Tip of the Month: Simple Four Step Plan to Reduce Employment Litigation Risks

Monday, February 1st, 2010

Compliance-TipEmployment litigation and high dollar settlements are on the rise in dealerships.    With the past 60 days alone a dealerships Colorado paid over$ 1.5M , an Ohio dealership paid  over $80,000 and a dealership in Georgia will pay $140,000 to settle claims of race, age and gender discrimination.  Consider taking these four simple steps to ensure your dealership is not next in line to pay a high cost employment litigation settlement.

1) Understand the law and your responsibilities as an employer. KPA offers free webinars on employment law and best practices presented by leading attorneys and HR professionals .
2) Establish legally appropriate policies and training for all employees. Make sure you keep complete and accurate record.
3) Invest in HR Management software to automate and force compliance in the hiring, employee management and termination process.
4) Purchase EPLI (Employment Practices Litigation Insurance) coverage for your dealership.

Yet another employment discrimination settlement for an Auto Dealership- Are You Next?

Friday, January 29th, 2010

Within the past 60 days three dealerships have reached big dollar settlements with the EEOC for races, age or gender discrimination. Most recently a dealership in Georgia paid out $140,000. With 250 new investigators and a perceived easy target in dealerships I won’t be surprised to see more of these claims in the coming months.  Dealerships seems to be a favorite target for the EEOC these days, and too many make it too easy.

Beyond the four simple steps I offered in an earlier blog “ $1.5 Employment Litigation Recipe” you should also consider EPLI (Employment Practices Liablity Insurance) coverage for your dealership.     Prevention is key- training, a nontolerance attitude and enforcement of policies to ensure that discrimination doesn’t happen or is swiftly dealt with at your dealership will signifcantly reduce your risk  but having EPLI provides peace of mind in the event of claim occur.

A $1.5 million dollar employment litigation recipe

Friday, January 8th, 2010

Take 90 new Department of Labor Investigators, add aggressive enforcement of the law, stir in limited corporate oversight, and combine with intricate laws that can be difficult to understand.  Make sure there are no processes and systems that would force compliance of the law and HR best practices. Mixed together and you have a $1.5 million dollar settlement on your plate for age and gender discrimination as one Colorado auto dealership recently learned.

10 former employees of the dealership will split the $1.5 million dollar settlement.  The consent decree also requires the dealership to put discrimination training in place,  to post its anti-discrimination policy, to provide training about anti-discrimination laws to its employees and managers, and to make periodic reports to the EEOC.

“Sexual harassment and sex discrimination against women in traditionally male-dominated industries, such as the auto industry, are still unfortunate realities,” EEOC Acting Chairman Stuart Ishimaru said in a statement. “Likewise, older workers continue to experience age discrimination, despite their experience, productivity and qualifications.”

You can’t afford a recipe for disaster like this, and you should take a few simple steps to reduce your risk:

  1. Understand the law and your responsibilities as an employer.  There are numerous resources available including KPA’s free webinars presented by leading labor attorneys and HR professionals.
  2. Establish policies and training so all employees understand their rights and obligations.  Make sure you keep complete and accurate records.
  3. Consider using HR management software to automate and force compliance in the hiring, employee management and termination process. Yes it is an added expense in a tough economic climate for dealership – but the expense is a fraction of the cost of a discrimination or wage and hour violation lawsuit.

Join the conversation- how does your company prevent discrimination in the workplace?