1 Avoiding Employment Litigation Catastrophes – The Top Ten

2 10. Coordinate Your Defense Unemployment compensation Unemployment compensation Res judicata (administrative preclusion) Res judicata (administrative preclusion) Incorrect factual statements by unprepared witnesses Incorrect factual statements by unprepared witnesses Workers’ compensation Workers’ compensation Avoid inconsistent positions taken with employment litigation Avoid inconsistent positions taken with employment litigation EEOC/DOL Investigations EEOC/DOL Investigations Limit responses (i.e., only necessary information) Limit responses (i.e., only necessary information) Avoid creating new issues not in Charge by broad responses Avoid creating new issues not in Charge by broad responses Systemic issues created by broad responses Systemic issues created by broad responses Consider costs of injunctive relief before offering it Consider costs of injunctive relief before offering it

3 9.Don’t Give a “Handy” Reason for Termination or Discipline – Provide the Real “Real Reason” Most often a problem in theft cases Most often a problem in theft cases Make factual recitation of reasons avoiding inflammatory words in separation papers Make factual recitation of reasons avoiding inflammatory words in separation papers The issue is “pretext,” usually proved by “comparators” who were treated differently The issue is “pretext,” usually proved by “comparators” who were treated differently Need not prove your reason was “true” or that there was “cause” - only that it was reasonably based Need not prove your reason was “true” or that there was “cause” - only that it was reasonably based Relying on real “real reason” avoids shifting positions which may establish pretext Relying on real “real reason” avoids shifting positions which may establish pretext

4 8.Establish EEO and Harassment Policies and Method of Reporting Harassment Allegations Policy prohibiting all types of harassment (i.e., not just sexual harassment) Policy prohibiting all types of harassment (i.e., not just sexual harassment) Mandatory single point for reporting complaint is preferred procedure Mandatory single point for reporting complaint is preferred procedure Supreme Court decisions establish non- use of reasonable reporting procedure is a defense in supervisory harassment cases Supreme Court decisions establish non- use of reasonable reporting procedure is a defense in supervisory harassment cases Reporting procedure can be defense to punitive damages Reporting procedure can be defense to punitive damages

5 7. Review Your Wage and Hour Policies Still a very hot topic Still a very hot topic Review exempt job classification – Have your employees reviewed the job description? Is it in keeping with what actual duties are? Review exempt job classification – Have your employees reviewed the job description? Is it in keeping with what actual duties are? Obey break rules, lunch breaks, etc. (be aware of and comply with state specific rules) Obey break rules, lunch breaks, etc. (be aware of and comply with state specific rules) If the rule is no more than 40 hours to be worked – ensure supervisors stop people from working (i.e., all hours worked should be reported) If the rule is no more than 40 hours to be worked – ensure supervisors stop people from working (i.e., all hours worked should be reported) Don’t trust DOL investigator to assess issues properly Don’t trust DOL investigator to assess issues properly

6 6. Manage Your Family Medical Leave Act Calendars Also still a hot litigation issue Also still a hot litigation issue Threshold of 50 employees in 75 mile radius Threshold of 50 employees in 75 mile radius Employee must have worked 1250 hours in previous year to be eligible Employee must have worked 1250 hours in previous year to be eligible Rolling calendar versus calendar year – you should define your policy in writing as rolling year Rolling calendar versus calendar year – you should define your policy in writing as rolling year Train personnel on how leave is calculated Train personnel on how leave is calculated Notice to employee of FMLA countdown (DOL forms) Notice to employee of FMLA countdown (DOL forms)

7 5. Manage Your E-Data destruction policies destruction policies Treating as formal correspondence – avoid as conversation Treating as formal correspondence – avoid as conversation Know how your system works and how to stop automatic destruction Know how your system works and how to stop automatic destruction With new federal e-discovery rules in place, Plaintiff’s counsel will attempt to create e-side shows With new federal e-discovery rules in place, Plaintiff’s counsel will attempt to create e-side shows E-race cases and testers – hot topic with EEOC E-race cases and testers – hot topic with EEOC

8 4. Non-Compete Only as broad as needed in scope Only as broad as needed in scope Geographical scope Geographical scope Temporal scope Temporal scope Allowable breadth determined by the job being examined Allowable breadth determined by the job being examined Blue penciling and invalidity (state law controls) Blue penciling and invalidity (state law controls) Choice of forum versus choice of law Choice of forum versus choice of law Protection Protection Customer lists Customer lists Propriety manuals and methods of operation Propriety manuals and methods of operation Not protected Not protected Industry knowledge Industry knowledge

9 3.I-9 Compliance (Another Hot Topic) New I-9 compliance books issued last week New I-9 compliance books issued last week Some changes in what documents you may use in determining eligibility Some changes in what documents you may use in determining eligibility

10 2. Color Discrimination (Another EEOC Area of Increased Interest) Color is not race Color is not race 1,241 charges in 2006 alleging color discrimination (400% increase in last ten years) 1,241 charges in 2006 alleging color discrimination (400% increase in last ten years) Anticipate expert testimony Anticipate expert testimony Issues with comparators (who is a comparison employee?) Issues with comparators (who is a comparison employee?)

11 1. Training Harassment training Harassment training ADA training ADA training Leadership training – professional environment Leadership training – professional environment Problems created by “direct evidence” (racial slurs, jokes, etc.) Problems created by “direct evidence” (racial slurs, jokes, etc.) Train investigators – or outsource Train investigators – or outsource Document training – it will be inquired into at deposition and trial and does make a difference Document training – it will be inquired into at deposition and trial and does make a difference