“Managing Workplace Liabilities
And Employment Problems”
State of the Game Golf Summit State of the Game Golf Summit
April 19, 2007
Gerald L. Maatman, Jr. Seyfarth Shaw LLP
131 S. Dearborn Street, Suite 2400 Chicago, IL 60603
Gerald L Maatman Jr Esq
Gerald L. Maatman, Jr., Esq.
Partner Partner
Seyfarth Shaw LLP
Bottom Line – With Pro-Active Practices Employment Problems Can Be Minimized, Largely Controlled, And Sometimes Avoidedg y ,
Topics And Issues
• Typical And Recurring Workplace Problems • What Are Danger Signs?
• What Are Danger Signs?
• Employment Law Hotspots In 2007 • Key Trends To Plan For In 2007
• Components Of A Workplace Risk p p
Management Program And Manager’s Tool Kit
Typical And Recurring Workplace
Typical And Recurring Workplace
Key Exposures
• Termination Lawsuits (90% Of All Workplace
L l Cl i )
Legal Claims)
• Retaliation Issues (Responding To Internal Grievances And Complaints)
• Workplace Harassment (Treatment of Employees On The Job)
Manifestations Of Employee
Problems
Problems
• External Complaints To Agencies (Especially
h i h h “ i ”)
Those With The “Magic Language”)
• Employee Web Blogs, Chat Room Postings, And Internet Sites
• Union Interest/EEOC Subpoenasp • Excessive Turnover
The “Trickle Down Phenomenon”
Caused By The Media
Caused By The Media
• Success Breeds Success (And Copycats),
A d Cl A i i l i i i
And Class Action Lawsuits Fuel Litigation Exposure To All Employers, Including
Cl b Clubs
• Intense Media Attention To Class Action Filings And Settlements Impact All
The Sophisticated Workforce And New Cyber-Risksy • Self-Help Sites – (www.employeerights.com) – ((www.disgruntledemployee.comg p y )) • Challenging Management Discretion – (www.paywatch.org) – (www.aflcio.org/voiceatwork) • Cybersmearing – (www.mybossisafatbitch.com) Li i i W b Si
• Litigation Web Sites
– (www.sterlinglawsuit.com)
• “Join A Class Action” Web Site
( d l ti i t t )
The EEOC’s
Activities
(
www eeoc gov
)
EEOC Docket
• Section 706 & 707 LawsuitsSection 706 & 707 Lawsuits(“Pattern Or Practice” Cases)
• Special Issues (Sex Harassment, Retaliation ADA Etc )
Retaliation, ADA, Etc.) • Special Workers (New
Immigrants/Low Wage Earners,
T W k E )
Teenage Workers, Etc.)
EEOC Case Filing Philosophies
• Impact Of FY End-September Filings • Very, Very, Very Aggressive
• “Push The Envelope” Cases And Strategiesp g • Co-Venture The Prosecution Of Lawsuits
With Private Plaintiffs’ Lawyers With Private Plaintiffs Lawyers
EEOC Lawsuits And FLSA Cases Can
Be Filed Against Virtually Any
Be Filed Against Virtually Any
Size Employer
• The “Low Hanging Fruit” Concept
• Wage & Hour Lawsuits Are The New “Tort OfWage & Hour Lawsuits Are The New Tort Of The Day”
Wage & Hour Hotspots
• Pay For Preliminary/Postliminary Activities • Rest And Meal Breaks
• Rest And Meal Breaks • Permissible Deductions • “Off-The-Clock” Work
Key Issues, Trends, And Litigation
Targets In 2007
Targets In 2007
And Beyond
Current Trends In Workplace Litigation
M C Fil d I Th P t
• More Cases Filed In The Post-September 11 World
• Increase In Bigger Cases / • Increase In Bigger Cases /
Settlements & Verdicts
• Rising Defense Costs / Litigation • Rising Defense Costs / Litigation
Stemming From The New Digital
Workplace And E-Discoveryp y
• Anecdotal Studies/Workplace
Litigation Exposures Are The #1 g p
Plaintiffs’ Targets And Sound Bytes
• “Internal Complaints Fall On Deaf Ears” (The
E l D ’t C )
Employer Doesn’t Care . . . )
• “The Rules Are On The Books, But Often Are Not Followed” (The Employer Selectively Enforces Its Followed (The Employer Selectively Enforces Its HR Policies To The Detriment Of A Protected
Category Employee . . . )
Catego y p oyee . . . )
• “The Rules Don’t Apply To The Favored Few” (The Employer Looks The Other Way When
Understanding The Dynamics &
C
t Of W k l
Liti
ti
Why Do Workplace Cases Cost
So Much?
• A Simple Termination
So Much?
• Fired Employee With $30,000 Salary, Out Of Work For 6
Months Months
• And What “Goes On The Blackboard…”
Attorne ’s Demand Letter (“We Want
Costs In Single Plaintiff Cases
• Attorney’s Demand Letter (“We Want $30,000”)
• Lawsuit
–Back Pay ($15,000)
–Compensatory Damages & Punitive Damages ($300,000)
Damages ($300,000)
–Front Pay (And Multipliers) –Defense Fees ($30,000 To
$100 000) $100,000)
–Fees And Costs Of Plaintiff’s Counsel ($30,000 To $100,000) •Total - $370,000 To $510,000
Components Of A Workplace Risk
M
t P
Prevention And Loss Control
• Rigorous Defense Of EEOC Charges • Opportunistic Settlements
• On-Going Analysis Of Employment DataOn Going Analysis Of Employment Data
• Establishment Of An Employment Practices Compliance Program
The Components Of An EPCP
• Get Employment House In Order
• State-Of-The-Art Equal Employment Opportunity,
A i Di i i i A d A i H P li
Anti-Discrimination, And Anti-Harassment Policy And Complaint Procedures
Eff ti O i t ti P F Ed ti All
• Effective Orientation Program For Educating All Employees As To Club Policies And Procedures • Exacting Expectations Of Management Behavior • Exacting Expectations Of Management Behavior
Communicated To And Required Of All Supervisor Personnel
The Components Of An EPCP,
Cont’d
Cont d
• Supplementary Policies And Procedures To
l h Cl b’ C li i h
Implement The Club’s Compliance With
Respect To Discrimination And Harassment Laws
• Relentless Commitment To “Best Workplace Practices” Designed To Eliminate Any
Statement Of Club Policies
• Demonstrate Good Faith Efforts To Eliminate Problems Involving Discrimination And
Harassment By Adopting An All Inclusive Policy Statement
• Mission Statement
• Modeled Upon EEOC’s Policy Statement Issued On June 18, 1999
Educating Employees
• Must Show There Is No Question Among Employees As To Club Rules And Their Rights
C h i O i i F All N E l
• Comprehensive Orientation For All New Employees • Policy Statements And HR Managers Must Be
A ibl A d Eff ti
Accessible And Effective
• Intranets, Employee Hotlines, HR Call Centers For 24 Hour Assistance
Expectations Of Management Behavior
• Training On EPL Topics
• What Management Needs To Know About • What Management Needs To Know About
Anti-Discrimination Laws Relative To Hiring, Evaluation Terminations And All Other
Evaluation, Terminations, And All Other Terms And Conditions Of Employment D t il d J b D i ti
• Detailed Job Descriptions • “Zero Tolerance”
Additional Personnel Policies And
Procedures
Procedures
• Open Door Policy And Internal ComplaintOpen Door Policy And Internal Complaint Review Procedure
• Resolve Problems Before They Mushroom • Resolve Problems Before They Mushroom
Into Lawsuits
R bl A d ti P t T Th
• Reasonable Accommodations Pursuant To The Americans With Disabilities Act
Institution Of “Best Workplace
Practices“ And Management Tool Kit
Practices And Management Tool Kit
• Creation Of Club Committee Charged With
i i A d i i “ i ” h
Institution And Reviewing “Best Practices” In The Workplace
M it i A Cl b’ Z T l P li
• Monitoring A Club’s Zero Tolerance Policy
• Periodic Employee Surveys (To Ascertain The
Attit des Challenges And Problems Of Emplo ees) Attitudes, Challenges, And Problems Of Employees) • Exit Interviews
