On April 17, OneGroup hosted its second 101 Series webinar of 2024. OneGroup’s Human Resources Consulting team, Colleen Williams and Travis Simpson spoke about strategies, policies, and procedures employers can put in place to avoid costly employment claims.
Why is this topic important?
Employment and litigation claims can happen to anyone. Non-compliance with regulations can lead to costly employment claims, jeopardizing your business’s finances and reputation. Retaliation, disability and leave, wrongful termination, discrimination, harassment, and wage and hour violations are all examples of common employment claims that can lead to costly outcomes.
Lessening the risk of these employment claims can include improvement of human resources administration and operations as well as support for your company’s human resource personnel.
To safeguard against these potential claims, ensure your company has Employment Practices Liability Insurance (EPLI). This type of insurance can provide coverage in the event of a claim or litigation, offering a safety net for businesses.
The importance of data. The Equal Employment Opportunity Commission (EEOC) is the regulatory body that oversees most federal employment practices. According to EEOC data, in fiscal year 2023, the EEOC’s legal unit filed 143 merits lawsuits – lawsuits which involve an allegation of discrimination. The most frequently alleged discriminatory bases in these lawsuits were retaliation, sex, disability, and race.
While employment-generated lawsuits are increasing every year, it is possible to limit the most common charges through knowledge, understanding, human resources & management training, and proper documentation.
How do you avoid employment claims?
Performance management documentation. Documentation is a critical aspect of performance management. It’s essential to:
- Document all types of performance (good, satisfactory, poor, etc.)
- Document company violations
- Document verbal counseling
- Document all types of warnings (verbal, written, etc.)
- Document performance improvement plans
- Document termination decisions
While documentation can seem cumbersome, it doesn’t have to be. It can take the form of personal notes, emails, notes added to the employee file, etc. If you don’t document, it may make it more difficult to recall facts correctly, inadvertently provide an employee motivation to file a claim, or be unable to support the employer’s accounts of what happened.
Family Medical Leave Act. The Family Medical Leave Act (FMLA) is a federal law provides eligible employees at covered employers with up to 12 weeks of unpaid, job-protected leave, per year. Covered employers must comply with FMLA notice requirements, even if an employee is not eligible for FMLA.
Although this is a federal law, an increasing number of states are implementing their own protections, often more protective than federal family medical leave. For example, California’s Family Rights Act (CFRA) is like the FMLA but applies to employers with five or more employees instead of 50. Other state laws may alter the length of service requirements or even provide paid leave like the New York Paid Family Leave law.
To ensure your company’s compliance with FMLA and state leave laws, it’s essential to have structured policies and procedures in place. This includes having comprehensive FMLA and state leave policies in your employee handbook, which should cover:
- Eligibility
- Reasons for leave
- Amounts of leave
- Whether the leave is intermittent or continuous
- Benefits during the leave
- How paid time off is treated during the leave
Another key aspect of FMLA compliance is recognizing a request for FMLA leave. It’s important to note that a request does not have to explicitly mention FMLA. Training is crucial here, particularly for managers, to ensure they can recognize and appropriately handle FMLA requests.
Reasonable accommodation. Disability and leave situations can present unique challenges for employers. According to EEOC data, reasonable accommodation was the most common issue in disability discrimination cases.
A reasonable accommodation is a workplace modification that enables employees to perform the key functions of their job if they are pregnant or have a disability. The Americans with Disabilities Act (ADA) and the Pregnant Workers Fairness Act (PWFA), requires employers to engage in reasonable accommodation and the interactive process. The interactive process is a requirement of the ADA, where the employer and employee engage in a dialogue to determine and implement reasonable accommodations.
Like FMLA, having a policy in place is crucial. A reasonable accommodation policy should give employees a basic overview of their rights, how to submit a request, who to submit the request to, documentation requirements, and communication standards. Using forms for requests, medical inquiries, and approval or denial letters can help streamline the process. However, it is still important to remember to engage in the interactive process with the employee and maintain confidentiality.
A sample request form for reasonable accommodation can be found on the Job Accommodation Network, a public resource that provides a wealth of information and resources on ADA.
What about costly retaliation claims? How can those be avoided?
What is retaliation? Retaliation in the workplace is defined as any adverse employment action taken by an employer against an employee for engaging in protected activity. Protected activities can include filing a complaint, participating in an investigation, or opposing discriminatory practices.
Not all activities are considered protected. Understanding the difference between protected and non-protected activities is crucial in avoiding retaliation claims. For examples of protected vs. not protected activities, please reference the chart below.
| PROTECTED | NOT PROTECTED |
| Making a good faith complaint | Making an intentionally false complaint |
| Having a reasonable belief that unlawful discrimination occurred | Complaining about an action that a reasonable person would not believe constitutes unlawful discrimination |
| Cooperating with a discrimination investigation | Coercing a co-worker to assist or interfere with a discrimination investigation |
| Observing and reporting perceived discrimination against a co-worker | Stealing confidential employer documents that may support a discrimination claim |
| Refusing to cooperate with an employer’s request that the employee reasonably believes makes discrimination a condition of employment | Refusing to perform legitimate job duties during an ongoing discrimination investigation |
The importance of documentation. Documenting performance consistently and at the start of an employee’s career can protect employers from harmful retaliation claims. For example, if an employee is terminated for underperformance and files a complaint, thorough documentation of the employee’s underperformance throughout their time at the company can reduce the risk of a retaliation claim.
Additional thoughts regarding employment claims management
Knowledge & understanding. Consistency in policies and procedures is key in avoiding claims. It’s important to have policies and procedures in place and to ensure that managers and supervisors are well trained. By doing so, you can avoid costly employment claims and foster a supportive work environment.
HR & management training. Training is crucial for managers and supervisors. They are often the first point of contact for employees and are where a lot of claims originate, ensuring they understand the procedure and know who to escalate issues to is vital. Training is key to ensure that managers recognize and properly handle requests.
Communication. Clear and consistent communication with your employees on the policies and procedures in place, expectations in the workplace, additional resources available to the, etc. can play a pivotal role in effective employment claim management. Additionally, documentation of this communication will provide you with the confirmation of your diligence in the event of a claim.
Contact us and OneGroup’s next 101 Webinar.
If you have questions regarding this webinar or your Human Resources Solutions, please contact Colleen Williams or Travis Simpson via the information below, or submit a form here and mention this webinar to be connected to a OneGroup HR consultant.
Colleen Williams, Manager, HR Consulting
P: 315-413-4482
Travis Simpson, HR Consultant
P: 680-207-6425
OneGroup is looking forward to the next webinar in the series, Workers’ Compensation 101, on Wednesday, June 5, 2024 from 9:30 AM – 10:30 AM EST. OneGroup President, Chris Mason will lead you through the sometimes confusing world of workers’ compensation, and will provide you with valuable takeaways, including answers to common questions. Register for OneGroup’s next webinar here.
This content is for informational purposes only and not for the purpose of providing professional, financial, medical or legal advice. You should contact your licensed professional to obtain advice with respect to any particular issue or problem. Please refer to your policy contract for any specific information or questions on applicability of coverage.
Please note coverage can not be bound or a claim reported without written acknowledgment from a OneGroup Representative.