Lommen Abdo has a very strong litigation practice and we are proud of the excellent results we have obtained for our clients. We are mindful, however, of the cost of litigation and this is especially true with respect to employment litigation. Statistics continue to show that costly discrimination and retaliation claims are on the rise. The circumstances surrounding many of such claims suggests that the actions, or inactions, of managers and supervisors can have a huge impact on whether or not a company ends up in litigation. While many employers have adopted anti-discrimination and harassment policies in addition to posting mandatory posters, case law and guidance issued by the Equal Employment Opportunity Commission suggests employers are not doing enough to manage their potential liability.
Employment lawyers uniformly recommend employers take more time to educate supervisors and managers on their responsibilities under state and federal employment laws as the actions of these people are many times a company’s first line of defense if not handled properly…or can establish the basis for potential claims against the company. It is not sufficient that company’s owners and human resource personnel understand the various employment laws, but managers and supervisors also need to be educated on the requirements and risks as well. This is especially true if an employer wants to seek to avail itself of the affirmative defense created in the United States Supreme Court’s landmark decision in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) which requires an employer to bear the burden of showing: 1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and 2) the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer to avoid harm otherwise. Subsequent court decisions have required more than merely distributing and posting policies but also regular supervisory training and an effective complaint procedure. In other areas such as OSHA, safety training is required.
Stacey DeKalb, Chair of the Lommen Abdo Employment Law Practice, recommends employers take the following steps:
- Adopt clear and understandable policies and periodically remind employees of their rights and obligations under the various laws. Such policies and practices should be reviewed by experienced employment law counsel on at least an annual basis as the laws change. Such policies should be redistributed on a regular basis and more frequently if workplace issues arise.
- Train your company’s managers and supervisors on not only what the discrimination and harassment laws require of them but also on other areas of the law which are ripe for potential retaliation claims. Such other areas include wage and hour issues, breaks and overtime. When management and supervisory staff understand the reasons behind the various laws, and the potential consequences, they are more apt to comply with a company’s expectations.
- Adopt and promote an effective complaint process for complaints about unlawful practices and ensure that there Is no retaliation against employees who avail themselves of such process. Such a process should include several alternatives for employees to go to with concerns.
- Educate managers and supervisors on the laws protecting injured or ill employees (Americans with Disabilities Act, Family and Medical Leave Act, Minnesota Human Rights Act and workers’ compensation laws) and how to balance an injured/ill employee’s rights with the employer’s need to get the work done.
- Hold managers and supervisors accountable for compliance with established expectations. A supervisor who fails to manage in accordance with established rules and policies puts an employer at risk of expensive litigation and costly claims
- Employers should carefully document the distribution of all policies and attendance at training sessions and be able to access
Lommen Abdo conducts employment training programs for our clients. Some of the most popular sessions are those geared towards supervisory employees, who act on behalf of the employer, as well as have responsibility for responding to the actions of others. View a list of common topics. To schedule one of these seminars or to discuss tailoring a seminar to your particular needs, contact Stacey A. DeKalb at 612-336-9310 or firstname.lastname@example.org. Ms. DeKalb chairs the firm’s Employment and Labor Law Section.
The Employment and Labor Law Section litigates employment law claims, such as wrongful discharge, breach of contract, negligent hiring or supervision, defamation and ERISA actions. It also represents both businesses and individuals in areas such as harassment (training, investigation and claim resolution), discrimination, leave and absence issues, workplace health and safety issues, employee discipline, wage and hour issues, hiring issues, confidentiality and employment agreements, unemployment compensation and other employment matters. Lommen Abdo represents clients in state and federal courts as well as before the EEOC and state and local administrative agencies. In addition, the firm routinely represents clients in various alternatives to litigation, including mediations, arbitrations and other dispute resolution alternatives.