Fresh off a presentation on retaliation claims and defense at The American Conference Institute Employment Discrimination Litigation Conference in New York City, Dinsmore employment attorney Mike Hawkins shared 12 key trends that employers would do well to heed in the years ahead.
The volume of employment discrimination litigation remains on the rise in 2014 as the changes to employment legislation and employment rights and responsibilities continue to be both extensive and significant. According to Hawkins, this year’s program of judges, in-house counsel, human resources professionals and plaintiffs’ attorneys from around the country, shared a common takeaway for employers: Be more proactive to avoid claims!
12 trends and defensive strategies
- Juries view employment actions from the employee’s point of view — not the employers’. Judges encourage employers to prepare defense strategies from that perspective.
- Monitor board policies and procedures affecting large groups of employees. Class action ligation is continuing to grow with almost 3500 more such actions filed in 2013 than 2012.
- Consider settling claims early. Once the costs rise for both parties, it becomes more costly and opportunities for resolution are reduced.
- Give greater consideration to binding arbitration agreements to avoid jury trials and class action claims.
- Objectively assess cases early. Consider factors such as enterprise risk, reputational issues and the opportunity for early resolution.
- A SWOT analysis can be invaluable when reviewing a claim or case. An analysis can you identify strengths and weaknesses of claims as well as opportunities and threats to the business before developing a litigation strategy.
- Having internal litigation hold processes in place helps to avoid problems surrounding document discovery issues.
- Eliminate human error. Consider implementing processes and systems for zero defects in human resources similar to what business do with manufacturing such as continuous improvement, six-sigma and statistical quality control.
- Local knowledge is power. Are you operating in multiple states or cities? Hawkins advises that an employer become fully aware of the unique laws in those jurisdictions especially in the area of employee terminations, drug testing, wage-hour statutes or regulations and background checks.
- Implement a social media policy and enforce it. Social media, Twitter and Facebook is a growing challenge for employers today. A well-planned, yet fair policy is a useful tool that allows you to manage social media activity. Documenting behaviors can also serve as a tactical defense tool.
- Expert witness and statistician use in employment cases as well as Office of Federal Contract Compliance Programs (OFCCP) audits are growing. Employers should utilize these resources as a proactive step when evaluating larger impact employment decisions such as reductions in force (RIF).
- Religious discrimination and accommodations remain on the rise. The volume of claims related to marijuana legalization, sexual orientation and transgender discrimination, same sex claims related to employee benefits, background checks and actions initiated by the NLRB, OFCCP and EEOC continue to grow as well.
Hawkins added that employers and their counsel today cannot afford to be anything less than vigilant, but they can also take immediate preventative actions t protect themselves, such as implementing more effective complaint mechanisms for employees as well as prompt investigation and remedial steps. Other proactive ideas include arbitration agreements, training supervisor on discrimination objective and early claim assessment and resolution processes.
You should consult legal counsel for more details on these trends and strategies. Thinking proactively now can often avoid damage control and potential liability later.