Lies, Damn Lies and (EEOC) Statistics

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“98% of all statistics are made up”  ~Author Unknown

On February 4, 2015, the U.S. Equal Employment Opportunity Commission (“EEOC”) released its Fiscal Year 2014 Enforcement and Litigation Data”  report (“EEOC Report”).  The EEOC Report, chock full of statistics regarding employment discrimination charges brought against employers under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act and other Federal statutes, is a statistician’s dream.

As Mark Twain reportedly said, however, “facts are stubborn things, but statistics are pliable.”   Perhaps not surprisingly then, the EEOC Report can be interpreted to contain good and bad news for employers:

Good news:  The total number of discrimination charges filed against employers actually fell almost 5% in fiscal 2014 from the year prior.
Bad news:     There were still 88,778 EEOC discrimination charges filed against employers in 2014. (This does not count state and local charges).

Good news:  In 2014 the EEOC dismissed 65.6% of the discrimination charges during the investigation stage.
Bad news:     In 2014 the EEOC recovered over $318 million from employers through its enforcement, settlement and litigation efforts. 

Good news:   In 2014 age discrimination charges dropped almost 20% from their peak in 2008.
Bad news:     Retaliation claims reached an all time high, comprising nearly 43% of all discrimination charges.

Good news:  The EEOC files suit in less than 8 percent of the cases where it believes discrimination occurred and no settlement is reached.
Bad news:     The EEOC filed 133 “merits” lawsuits across the country, and claims a 90% success rate at resolving matters in district court.

Hopefully 2015 will only bring your company good news.  Decrease the possibility of bad news by adopting some human resources “best practices”  found here and here.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
 Twitter: @HRGeniusBar
 @wagelaws 

 

Two More HR Mistakes To Avoid

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Having just touched the tip of the HR iceberg in my recent post  “Avoid these 3 Common HR Mistakes,” let’s dive a little deeper. Below are two more common mistakes made by companies and their human resources professionals:

Mistake #4: Failing to preserve key evidence.  Every terminated employee poses the risk of future litigation. Consequently, take steps to preserve crucial evidence. To the extent possible, save all employee voice mails that involve statements of: (1) quitting; (2) insubordination; (3) threats of violence; (4) profanity; and (5) excuses for absences unrelated to any disability (if you terminated the employee for absenteeism). Similarly, print and save screen shots of employees’ texts and social media postings, particularly if the contents reveal employee misconduct. Finally, always keep a signed and dated copy of the termination letter, and save the employee’s personnel file for at least 3 years.

Mistake #5: Failing to keep quiet. When it comes to discussing employment terminations, the less said the better. Never talk with a lawyer representing an employee. Generally, anything you say is evidence that will be used against you. For the same reason, don’t talk to an employee’s family member about their situation – he/she is not the employee. Don’t talk with anyone from a government agency unless your lawyer is present. Don’t tell individuals who do not have a “need to know” why an employee was terminated; if you can’t later prove the reason(s) for the termination you may face a defamation claim. Finally, be careful what you write in emails. Do not: (1) refer to an employee’s protected characteristics (such as race, age, gender, sexual orientation, religion, disability, etc.); (2) refer to an employee’s threat of a lawsuit; or (3) call the employee derogatory names (including “troublemaker”). Emails can and will be discovered in the course of litigation, and can be highly damaging to your case.*

Navigate around these legal icebergs in order to avoid sinking your case.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
 @wagelaws

* Portions of this article first appeared in the Wisconsin Institute of CPAs’ October, 2014 magazine, The Bottom Line.

 

 

 

Employers: Don’t Get Run Over By A Fast Track Union Election

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On December 12, 2014, the National Labor Relations Board (“NLRB”) issued its much anticipated rule changes for union elections. The rules become effective on April 14, 2015.  The new rules set forth an “accelerated election” process that gives employers much less time to communicate to their views on union representation to their employees. The NLRB has published a chart comparing the current election rules with the new election rules.  Some of the highlights of the new fast track process include:

  1. Electronic filing and transmission of election petitions and other documents.
  2. Elections will generally  be held within 20 days of the filing of the petition.
  3. The NLRB will schedule pre-election hearings within eight days after a Notice of Hearing is filed.
  4. Pre-election hearings will generally be limited to whether it is appropriate to conduct an election, and not voter eligibility or inclusion issues.
  5. After a petition has been filed, employers will be required to post an initial “NLRB Notice of Election” containing generic information about the petition and the parties’ rights and obligations.
  6. Employers will also have to fill out and submit a “Statement of Position” within seven days of receipt of the election petition that includes a list of prospective voters, their job classifications, shifts and work locations.
  7. If the employer fails to raise a particular election issue in this “Statement of Position,” it may not present evidence on the issue at the representation hearing.
  8. Individual voter eligibility issues will generally not be heard until after the election.
  9. The list of all eligible bargaining unit employees (“Excelsior list”) must be electronically filed within two (2) business days after a Direction of Election has been issued, and must include employees’ home addresses, telephone numbers and e-mail addresses.
  10. Post-election hearings will be set 14 days after the filing of objections.

Bottom line: once an election petition is filed, employers will have no time to develop an effective response strategy.  Given that the new rules do not take effect for another couple months, employers should take the opportunity now to put proactive plans in place before an election petition is filed. A solid plan should include:

  • Identifying the management team responsible for responding to a union organizing attempt
  • Developing an employee communications program to discourage employees from signing union authorization cards
  • Conducting a union organizing vulnerability analysis
  • Auditing labor relations issues, relevant company policies and human resources practices and procedures
  • Training managers and supervisors to identify the signs of potential union organizing activity, and how to lawfully respond to them
  • Developing an employee communications program in the event of an NLRB scheduled election
  • Conducting supervisor training on how to effectively manage a union-free workforce

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
 @wagelaws

Avoid These 3 Common HR Mistakes

The numbers are simply staggering: In 2013, individuals filed over 93,000 employment discrimination charges with the Equal Employment Opportunity Commission (“EEOC”). The EEOC collected $372 Million in damages from employers during that time. Similarly, thousands of minimum wage and overtime claims were brought against companies under the Fair Labor Standards Act, and the Department of Labor collected $250 Million in back pay damages in 2013. Moreover, approximately 20% of the lawsuits filed in Federal Court in 2013 stemmed from an employment dispute. It feels like litigation roulette – you never know when your company’s time is up, but if you keep playing the game (i.e. running your business), eventually you will get sued.

Given this, companies should take steps to reduce the risk of becoming the next defendant, and put themselves in a solid defensive position. One way to do so is to avoid making one of these 3 common human resources (“HR”) mistakes:

Mistake #1: Failing to properly screen applicants. Remember the old principle “garbage in, garbage out”? Hire a loser and all you get is a loser employee you can’t get rid of fast enough. How about avoiding that hassle? Start with a laser-like focus on the employment application. Has the applicant never held a job longer than 3 months? If so, why do you think he would last any longer at your place? Has the applicant conveniently failed to answer the “reason for leaving” question after a former employer’s name? This silence should speak volumes. Worse yet, does it say something disturbing like “dispute with supervisor”? And how did the applicant answer the “conviction record” question? These answers and/or omissions all need to be addressed with the applicant. Trust but verify with reference checks; a recent survey of hiring managers revealed that 60% found false information on applicants’ job applications and/or resumes. Finally, never hire someone based solely on the recommendation of a friend or co-worker.

Mistake #2: Failing to terminate a poorly performing employee. Not all hires turn out well. Some employees are simply poor performers. But why are they still employed by your company? Are you running a business or a charity? Managers should give employees clear performance expectations. If an employee fails to meet them, he should receive progressive discipline. If the employee still does not improve his performance, the company should terminate his employment. Consider the alternative – lowered workforce morale and a less profitable company bottom line. Retaining a poor performing employee can also result in a good deed getting punished: if you terminate someone else for the same poor level of performance, and the terminated employee falls into a different “protected classification,” you will be sued for discrimination. Like bad wine, life is too short to work with bad employees. If you have the opportunity to terminate one, take it.

Mistake #3: Failing to recognize threat levels. You need to be able to recognize potential legal risks and plan accordingly. Does the employee you intend to terminate fall into one or more protected classifications (i.e. race, over 40, disabled, etc.)? Has the employee mentioned an “L word” – lawyer or lawsuit? Has the employee referenced the “EEOC” or “discrimination”? Has the employee cited chapter and verse of the requirements of a particular statute? Has the employee requested a copy of her personnel file? Is the employee trying to tape record conversations? If any of these have occurred, you are approaching litigation threat level “DEFCON 1.” To reduce the threat, make sure that you have all of the facts, have reviewed the employee’s prior disciplinary record, have looked at your disciplinary practice in comparable situations, have adequate documentation, and a legitimate business reason for the employment decision.*

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws

* Portions of this article first appeared in the Wisconsin Institute of CPA’s October, 2014 magazine, The Bottom Line.

 

 

 

 

Legally Lethal Employment Interview Questions

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Most employers are aware that there are numerous obvious questions that are simply “off limits” and should not be asked of an applicant during an employment interview.   For example: How old are you?  Do you have a disability? Are you pregnant?

But, there are many other questions that, on their face, many not appear to be discriminatory, but are still legally troublesome.  These loaded questions either (1) imply that a protected characteristic will be a factor in the hiring decision, or (2) will elicit information that will put you on notice that the individual falls into a protected classification.  Unfortunately, if you don’t hire the applicant, he/she will assume his/her answer to one of these questions was the primary reason for being rejected, and file a discrimination charge.

Here’s several legally risky questions one should avoid asking during an interview:

1.  “Do you have kids?” Similarly, “Are you planning on having kids?”  “What kind of childcare arrangements will you make?”  Problem: gender discrimination; pregnancy discrimination; “caregiver” discrimination.  Do you ask this of all applicants, or only female applicants?

2.  “Your last name is so unusual.  What nationality is it?” Problem: national origin and/or ethnicity discrimination.  Do you ask caucasian applicant Michael Smith this?  Nothing good can come from the knowledge you obtain from this question. Control your genealogical curiosity, and don’t ask.

3.  “Is your spouse ok with moving to _______ for the job?” Similarly, “Will your spouse be ok if you have to travel a lot for the job?” Problem: gender discrimination; sexual orientation discrimination; marital status discrimination. Do you ask this of all applicants, or only female applicants?  What if they refer to their “partner” of the same gender, or that they’re divorced? Now you have knowledge of something personal that is irrelevant to whether the applicant can do the job.  Given that some states prohibit sexual orientation and marital status discrimination, in addition to gender discrimination, you face a triple threat. 

4.  “What year did you graduate from high school / college?”  Problem:  age discrimination.  Do you ask this of all applicants, young and old?  Or just those who look older? One can easily  approximate the applicant’s age with the knowledge of a high school and/or college graduation date.  A savvy applicant will assume you asked it to figure out how old he is, and suspect age discrimination is at play.

5.  “Have you ever been arrested before?”  Problem: race discrimination; arrest/conviction record discrimination.  The EEOC has taken the position that asking about arrests and convictions may lead to a discriminatory “disparate impact” on minority candidates.  Generally, asking about a past arrest that did not result in a conviction is very risky.  Several states and cities also have prohibitions on what can be asked regarding an applicant’s arrest and/or conviction record.    Employers should be aware of any state and local laws before asking these questions.  

Answers to the above questions are generally not relevant to whether the applicant can perform the job’s essential functions.  Bottom line – if there is no business reason to ask them, and often only leads to bad things (i.e. a lawsuit), don’t ask them.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
             @wagelaws

 

 

 

 

 

If Your Employee Does This … You Might Be Getting Sued

“If you’ve ever had to remove a toothpick for wedding pictures, you might be a redneck.” 

-Jeff Foxworthy

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Remember Comedian Jeff Foxworthy’s “you might be a redneck” jokes?   They were tell-tale signs of human behavior that revealed a person was a classless and/or clueless hick. They were funny because you either knew someone who acted like the character in the joke, or could easily see someone behaving that way.

But, my human resources (“HR”) and management friends, did you know that there are also tell-tale signs of employee behavior that reveal that your company will likely be sued?

So without further ado (and with apologies to Mr. Foxworthy), put your hands together and give a warm HR welcome to this Edition of  “You Might Be a Redneck Getting Sued”:

1. If your employee submits a 4 page, single-spaced typed rebuttal to a verbal warning, you might be getting sued.

(And if your dog and your wallet are both on a chain, you might be a redneck)*

2.  If your employee urgently demands a copy of his personnel file and says he needs to take the afternoon off for “personal business,” you might be getting sued.

(And if you’ve ever financed a tattoo, you might be a redneck)

3.  If your employee attempts to tape record her performance review, you might be getting sued.

(And if you have the local taxidermist’s number on speed dial, you might be a redneck)

4.  If your employee recites the requirements of an employment law statute better than your HR Department can, you might be getting sued.

(And if you’ve been on TV more than 3 times describing the sound of a tornado, you might be a redneck)

5.  If your 70 year old employee (with 35 years of service) that you just terminated has a personnel file thinner than a potato chip, you might be getting sued.

(And if you think the French Riviera is foreign car, you might be a redneck)

6.  If your employee walks around with a bulging notebook documenting every conversation she has had with co-workers and supervisors, you might be getting sued.

(And if you’ve ever mowed your lawn and found a car, you might be a redneck)  

7.  If your employee goes on an epic Facebook rant that his supervisor is treating him “unfairly,”  you might be getting sued.

(And, finally, if your idea of a “7-course meal” is a bucket of KFC and a six-pack, you might be a redneck)

Ba dom bomp!  Thank you! Don’t forget to tip your waiters and waitresses. I will be here all week…

Of course, getting sued by an employee is no laughing matter. Watch for the above warnings signs.  If you observe any of them, make sure that you have a sound business reason (backed up by sufficient documentation) before taking any disciplinary action against the employee.  Otherwise, the joke will be on you.

*All jokes courtesy of Mr. Foxworthy

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
              @wagelaws 

 

 

 

EEOC Expands Reach of Pregnancy Discrimination Act

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On July 14, 2014 the Equal Employment Opportunity Commission (“EEOC”) issued its first “enforcement guidance” on the Pregnancy Discrimination Act (“PDA”) since 1983.  One of the more significant aspects of the Guidance is the EEOC’s view of an employer’s duty to accommodate pregnant workers under the Americans with Disabilities Act (ADA).

The EEOC now takes the position that employers must accommodate a pregnant employee’s work restrictions to the same extent it accommodates non-pregnant employees with similar restrictions.

This means, in the EEOC’s view, that employers who offer light duty work to individuals injured on the job must also offer light duty work to pregnant employees with work restrictions, regardless of the fact that the light duty policy only applies, by its terms, to those employees who have restrictions stemming from a work related injury.

The EEOC’s Enforcement Guidance is quite extensive.  The entire Guidance document can be found here:

http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm .

The EEOC also issued a “Questions & Answers” document, found here:

http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm .

As if that wasn’t enough summer reading, the EEOC also issued a “Fact Sheet” that summarizes the PDA’s requirements at:

http://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm .

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws