Retaliation Claims on the Rise

It’s always been easier for lawyers to prove retaliation in the workplace than harassment, discrimination, or even wrongful termination.

With so many people now out of work, it’s natural that retaliation claims against employers is now on the rise – 23% this year over last.

The classic example of retaliation comes from an employee who did the right thing – a whistleblower notification, a complaint against a supervisor or fellow employee – and that was terminated, transferred or had other repercussions from their employer.

A good article on this trend is from the Wall Street Journal.

Advertisements

Nevada Wage & Hour Lawsuits

We’ve been warning employers for several months that wage & hour compliance issues will result in numerous lawsuits this year – especially in Nevada.

It’s starting to happen.

Wells Fargo & AutoZone have been sued (class-action status is currently pending) for mis-classifying employees.

With Wells Fargo, business banking specialists were allegedly mis-classified as exempt (from overtime, meal and rest breaks) when they were required to be ‘on-call’ on certain evenings.

In AutoZone’s case, Assistant Managers were not compensated for working overtime (this is a case very reminiscent of the Long’s Drugstore case in 2004).

The federal government is taking Wage & Hour violations seriously: Labor Secretary Hilda Solis recently announced plans to add 250 field investigators, increasing staff by 33%. The DOL believes 7 out of 10 businesses are not in compliance with Wage & Hour laws.

Garry Mathiason of Littler recently wrote:

No employment-law trend is more certain, universal or important than the total wage-and-hour compliance initiative and stopping the epidemic of wage-and-hour class-action (lawsuits)…

More ominous and prescient are these words from Mathiason (and, I believe, completely true):

With thousands of plaintiffs’ attorneys examining every aspect of the payroll process, employers must expect maximum scrutiny…”Every employee who is terminated or demoted, or who experiences an unpleasant workplace event, is encouraged by Internet and television advertising to seek the advice of counsel. In almost every intake interview, the attorney’s questioning turns to wage-and-hour issues in an attempt to find additional claims. Inspired by the prospect of turning a small individual claim into a multimillion-dollar class-action, the organization’s wage-and-hour compliance goes under the microscope.”

Thanks to Las Vegas Sun.

Leading During Difficult Times, Part 3

In previous posts, we’ve discussed leading during difficult times. It’s about making hard decisions and communicating them effectively.

Some new studies are now showing issues that leaders and HR departments should immediately address.

Employees across the country reportedly spend an average of nearly three hours a day worrying about their job security, according to a telephone survey of approximately 1,000 U.S. workers commissioned by the firm Lynn Taylor Consulting.

Bosses might be exacerbating employees’ fear by one simple action—staying behind closed doors; 76 percent of employees responding to this survey said that when faced with this scenario unexpectedly, it triggers thoughts of being laid off.

Now, it’s about effectively managing those who stay after reductions in force. The concept that ‘we must do more with less’ needs to have a process in place to make sure it happens.

When You Lay Off The Wrong People

So your business needs to cut expenses, and downsizing your workforce is a necessary component in reduction.

But who do you lay off?

It’s a complicated task, and you need both an organizational development expert and likely an experienced employment attorney to guide you, because it’s not as simple as it seems.

For example, an older and more expensive employee may be your first choice for termination – but there are unforeseen problems. You can’t just lay off an employee for those reasons (which is why you need that OD consultant and attorney). Or, if you do, you could spend a lot more in legal fees and lawsuits than you could possibly save with the cutback.

The EEOC reports that age discrimination filings leaped 29% in the year ending September 2008. Over 25% of all EEOC claims are now age-related.

You’ve Laid Off Staff. Now What?

Perhaps the easiest part of reducing expenses is cutting back on staff. Because the next step – “What Do We Do Now?” is extremely difficult.

What Do We Do Now? You have fewer employees but need to have the same or better performance.

Hopefully, when reducing staff, you took the first important step which is to identify those employees who are capable of doing more and retaining them.

In identifying employees who can do more – look at attitude (desire) and aptitude (ability). Communication (as always) is key – those employees are going to be doing different things and more of them.

The employees who stay need to understand why they’re there and what their role is.

Employees who stay after a layoff are even more valuable now. There is some guilt (why did I stay and my friends have to depart?), a lot of trepidation, and no small amount of concern and fear.

It’s up to the employer to alleviate those concerns and allow the business to move forward.

Pitfalls of Reductions-In-Force

We’re presently working with a number of clients on reducing their workforce. There are a number of organizational development issues related to a RIF (such as who stays, who goes, what does the company look like after the reduction and how will all the tasks continue to be done).

But there are a number of compliance issues as well.

Baker Donelson has a good piece on some of those pitfalls.

A reduction-in-force is not simply “let’s eliminate ‘x’ number of positions”; it takes careful decision making; excellent organizational development consultation; and a good employment attorney.