Category Archives: Training

Training Slashed Even As Employees File Lawsuits

One of the ironies of recession is that businesses tend to cut back their training of their employees at the same time that layoffs are spawning the filing of higher numbers of employee lawsuits. This is happening again during the present deepening economic crisis. Unfortunately, this is one of those situations of businesses “cutting off their noses to spite their faces.” (Do people still say that or am I showing my age?).

During 2008, studies show that average training expenditures in U.S. businesses decreased 11%. The studies don’t pinpoint which types of training, i.e. safety, skills or sexual harassment prevention, are being cut, but I can guess. Few companies understand the incredible effectiveness of providing employment law training to defeating expensive and time-consuming litigation. Therefore, if they ever offered training to their supervisors on avoiding discrimination or to their staffs on recognizing and preventing harassment or violence, they probably will slash that expense this year.

At the same time that the finance department is telling their bosses that the training budget has to go, employees are being terminated in record numbers. The national unemployment rate for January, which will be released tomorrow, will probably be around 7.5%, a 17-year high.*

And what do employees do after they are fired? They look for someone to blame, which in many cases will be the company that fired them. So they file unemployment claims, discrimination complaints, and lawsuits. During the fiscal year 2008, the Equal Employment Opportunity Commission already experienced a 15.2% annual increase in charges of discrimination and retaliation filed. Just wait until FY 2009.

I can already tell from my own law practice that even in the Texas Panhandle, which has been unusually sheltered from the current economic storm, employee complaints and lawsuits are increasing. Many of my clients are starting to face the investigative powers of the EEOC or the Texas Workforce Commission’s Civil Rights Division. Many of those charges will turn into lawsuits alleging discrimination and retaliation.

If you are regular reader of this blog, you know I always advocate written policies and employee training as your first line of defense against an employee lawsuit. If you start cutting your budget for those things, you may see short-term financial relief, but in the long run you are leaving your company very vulnerable to very costly employment lawsuits.

*Note from February 6, 2009: As it turned out today, the national unemployment figure was even higher: 7.6% for January 2009. That means that almost 600,000 jobs were lost in January. That is the worst showing for number of job losses since 1974. In all, 3.6 million Americans have lost their jobs since this recession started 13 months ago.

Understanding Changes in Disability Discrimination Law

2009 is going to be remembered as the year that the Americans with Disabilities Act (“ADA”) became the full employment act for employees’ lawyers. That’s because dramatic changes to the ADA went into effect on January 1, 2009. No longer can an employer assume that the ADA is an concern only if an applicant shows up in a wheelchair or with a seeing eye dog. The ADA now will significantly affect every workplace (except those small businesses with less than 15 employees) and employers need to be educated and ready to respond appropriately.

Briefly, the ADA protects mentally or physically impaired individuals who are qualified to perform a job from discrimination because of their disability. Sounds good, and it is. But for employers, the devil is in the details. The ADA Amendments Act (“ADAAA”) passed last year by the 110th Congress expanded the definition of disability in a way that I believe makes virtually every Baby Boomer a potential plaintiff in a disability discrimination lawsuit. Why? Because most of us born between 1946 and 1964 are starting to feel some of the aches and pains of middle age and that is about all that is required to claim a disability under the ADA. In addition to the 70 million Baby Boomers in the workforce, there are many younger workers who are also physically or mentally disabled.

You are disabled under the ADAAA if you have an impairment that substantially limits one or more major life activities.  “Major life activities” now include walking, seeing, hearing, and breathing, as you would expect, but also sleeping, bending, learning, reading, concentrating, thinking, communicating and working. The term also includes the operation of any major bodily function, such as respiratory and circulatory, as you would expect, but also, reproductive, digestive, and immune system.

If an employee is disabled or even regarded as disabled because of past problems (such as drug addiction that is now under control), you as an employer must provide reasonable accommodation of that employee’s disability if necessary to allow the employee to perform the essential functions of his/her job. Some employment lawyers believe that the “regarded as” component could mean that any employee who ever had a serious medical condition will always be regarded as disabled and protected by the ADA, even if the disease is now in remission.

You can expect to deal with the ADA when an infertile female employee wants to take time off as an accommodation so that she can receive fertility treatments. An employee who needs a 25-inch computer monitor because his poor vision makes it hard for him to read even with his eyeglasses may now need to be accommodated. An employee who is bi-polar may be able to request moving away from an annoying coworker if she says the coworker is a depression trigger. The fact that the employee could take mitigating measures to fix or control the problem, such as taking her medications to prevent depressive episodes, can no longer be considered to determine whether the employee is actually disabled.

What can you as an employer do to keep your company out of legal hot water with the ADA? Continue reading Understanding Changes in Disability Discrimination Law

What Every Supervisor Must Know

Most employee lawsuits are caused by the actions of a first-line supervisor. In other words, that woman that you just promoted from cashier to assistant manager is the one most likely to get your company sued by a disgruntled employee or former employee. Why? Because the first-line supervisor has the most day-to-day contact with your employees. And during that contact, the first-line supervisor may make racist comments, forget to accommodate the disabled, show favoritism to those of his/her own religion, or make an employee work “off the clock”.

Remember that your lowest-ranking supervisor still represents “the company” and can make your business liable for discrimination, retaliation, compensation errors and other legal violations.

So from a preventative viewpoint, the selection and training of a new supervisor involves much more than just taking your hardest-working employees and giving them a raise and the keys to the storeroom.  Here are some of the things to consider when promoting an employee to a supervisory role: Continue reading What Every Supervisor Must Know

Employees Required to Prevent ID Theft

A CVS pharmacy employee threw prescription forms in the dumpster behind the store in Houston. A Radio Shack worker in Corpus Christi dumped customer credit applications. EZPAWNS employees throughout Texas threw away customers’ bank statements. And the Levelland police found more than 4000 customer records in the garbage containers behind Select Physical Therapy. These were not isolated incidents, because according to the Federal Trade Commission, Texas ranks fourth in the nation in identity theft.

The Texas Attorney General, Greg Abbott, was not pleased by these incidents and has started prosecuting these businesses and others under Texas’ new Identity Theft Enforcement Act and other recently-enacted laws to protect people from identity theft. Businesses like yours can be fined between $500 and $50,000 for improperly disposing or disclosing sensitive customer information, such as

  • Credit and debit card numbers
  • Social Security numbers
  • Bank account information
  • Mother’s maiden name or other personal identifying information
  • Tax forms
  • Passwords
  • Dates of Birth
  • Account numbers

These types of information often appear on receipts, applications, bank statements, checks, personnel files, medical forms, and in discarded computers.

What should you do to protect your business from identity theft exposure? As I often say in this blog and in my training presentations to businesses throughout the Panhandle of Texas, as with most legal problems in your business, you have to take four steps to avoid litigation and prosecution for identity theft exposure: Continue reading Employees Required to Prevent ID Theft

Training your Employees

How about some sobering statistics for employers?

  • The average jury verdict for sexual harassment cases nationwide was found to be $1 million in a 2002 study titled “The Changing Nation of Employment Insurance”.
  • That same study found that the average jury verdict for wrongful termination cases (such as discrimination) is $1.8 million.
  • The average cost to settle any lawsuit is $300,000, according to that same study.

Granted, these numbers include verdicts from states, such as California, where the juries have apparently never met a plaintiff they don’t want to reward with a big verdict. But even in Texas Panhandle, the land of more conservative jurors, it is clear to me after almost 20 years of practicing employment law that employers are at risk in the courthouse.

Continue reading Training your Employees