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2011 EEO Trends
 

2011 EEO Trends

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2010 continued a three-year trend of record breaking EEOC charges, with 2010 charges the highest in the Commission’s 45-year history. Our challenging economy, increasingly diverse workforce, new ...

2010 continued a three-year trend of record breaking EEOC charges, with 2010 charges the highest in the Commission’s 45-year history. Our challenging economy, increasingly diverse workforce, new EEO laws and recent court decisions are fueling this steady growth. Keeping up on the trends is critical to protecting your workplace, and sustaining a culture of respect and inclusion

What does this mean for employers? Enhanced anti-discrimination efforts are mission critical. Effective cultural change, behavioral change, and risk management require innovative and integrated anti-discrimination programs. Now, more than ever, reviewing and refining your organization’s EEO compliance programs is essential.

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  • ACC introducing
  • Introduction
  • Introduction
  • BACKGROUND NOTES/THOUGHTS: IN this presentation we won’t take a deep dive into the issues we are about to discuss. Rather, we will take a look at some of the most pressing concerns that will occupy your time in 2009.
  • Rate has jumped from 4.7%in Sept of 2007 to 8.1% in Feb. of 2009. A jump of more than Note: In Feb employers eliminated another 651,000 positions, the third straight month that losses surpassed 600,000 and the first time that has happened since records began in 1939 *Bloomberg News survey of economists: prediction of 9.4% rate that will remain elevated through 2011. (http://www.bloomberg.com/apps/news?pid=20601103&sid=aUzNMbJ3CIII&refer=news)
  • Note: Average damage award to a successful plaintiff rises in business downturns. 
  • It seems like common sense and those of us who have done employee training know that managers and employees aren’t born knowing the rules of the workplace. Often their interpersonal skills need a little work. And unless we’re clear about expectations, some of them have the ability to do some pretty outlandish things. And we also know that teaching managers and employees what is expected of them has a profound impact on how they conduct themselves at work. For the most part they want to do the right thing and they want to keep their jobs. And most mistakes are the product of lack of awareness not an intent to violate the law or someone’s rights. So helping your managers understand the basic rules of the workplace can also help you reduce the number of lawsuits your company must defend. Dr. Joni Johnston, Why Jurors Fire Back During Wrongful Termination Lawsuits, Nov. 24, 2003 (available at www.HR.com)
  • During the past fiscal year, EEOC claims rose at an unprecedented rate of 15%. 95,402 claims were filed, the most since the EEOC opened it’s doors in 1965. In an interview in March, David Grinberg of the EEOC said “It's possible we have yet to see the full impact of the recession on discrimination charge filings as the economy continues to spiral downward since fiscal year 2008.” He also predicted that claims could swell to more than 100,000 due to ongoing layoffs and scant hiring, among other factors. Source: http://www.msnbc.msn.com/id/29554931/ MSNBC.com article: Job discrimination claims rise to record levels (March 9, 2009) If claims swell to 100,000 that would be another 5% increase in claims.
  • While all claim categories increased during FY 2008, two stand out – age and retaliation. Retaliation claims, which continue to be the second most common charge alleged, increased by an astonishing 22.6%. And age claims by 28.7%. And from a risk management perspective, these are two claim types that you should keep your eye on in the coming year.
  • While all claim categories increased during FY 2008, two stand out – age and retaliation. Retaliation claims, which continue to be the second most common charge alleged, increased by an astonishing 22.6%. And age claims by 28.7%. And from a risk management perspective, these are two claim types that you should keep your eye on in the coming year.
  • SPEAKER BACKGROUND INFORMATION EXCERPT From LITTLER ASAP on Crawford Decision: The Supreme Court, ruling only on the issue of whether Crawford's conduct qualified as protected "opposition" under Title VII, unanimously reversed the Sixth Circuit. Writing for the Court, Justice David Souter explained that in the absence of a statutory definition, the word "oppose" should be given its ordinary meaning. The Court gleaned this ordinary meaning of "oppose" from a dictionary definition: "to resist or antagonize ... to contend against; to confront; resist; withstand." Most importantly, the Court stated that the ordinary meaning of "oppose" does not pertain only to conduct that is active and consistent, but goes further to include situations where an individual takes "no action at all to advance a position beyond disclosing it." Ultimately, the Court held that Crawford's conduct was opposition in this ordinary sense of the word, and, thus, a protected activity under Title VII. To find otherwise, according to the Court, would be to announce a "freakish rule protecting an employee who reports discrimination on her own initiative, but not one who reports the same discrimination in the same words when her boss asks her a question." The Court further explained that any time an "employee communicates to her employer a belief that the employer has engaged in ... a form of employment discrimination, that communication virtually always constitutes the employee's opposition to the activity."
  • Retaliation is one of the more challenging concepts to get your arms around. The rules are not entirely clear and the claim plays on human nature. But in the last year, the landscape shifted again and the U.S. Supreme Court expanded the field of potential retaliatory actions. We have now shifted from a world where a workplace nexus was important to one where the focus is on whether the employer’s conduct is likely to dissuade employees from coming forward. This expansion and the fact that there is no bright line rule (i.e., summary judgment just got harder) means that employers should expect to see this trend (increasing number of retaliation claims) to continue. BACKGROUND -- Littler ASAP Two lower appellate courts (the Fifth and Eighth Circuits) previously held that cognizable retaliatory action must involve some "ultimate" employment decision, such as a failure to hire or a termination. Other lower courts (the Third, Fourth and Sixth Circuits) had held that the challenged retaliatory action must result in an adverse effect on the terms, conditions or benefits of employment. The Supreme Court rejected these approaches, finding that Title VII's prohibitions against retaliation are broader. The Court explained that, as a practical matter, not all adverse actions are necessarily employment-related. The Court noted, as an example, that an employer might file false criminal claims against an employee in retaliation for her making a discrimination complaint. The Court ruled that the "scope of the [Title VII] anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm." Having reached this conclusion, the Court then addressed the question of "how harmful must the adverse actions be to fall within the scope" of Title VII's retaliation prohibition. On this issue, the Court's opinion provides some general guidelines, but no "bright line" standards. The Court ruled that only significant, rather than "trivial" harm, is sufficient. The Court also ruled that in judging whether the harm is significant, the courts should use an objective standard by examining whether a "reasonable employee" would view the retaliatory harm as significant. In making this determination, the Court noted that the context of the alleged retaliatory action must be considered. These general guidelines, by necessity, require courts to review adverse actions on a case-by-case basis, which means that a court's ruling in any given case will be more difficult to predict.
  • BACKGROUND Steele v. Schafer, 535 F.3d 689 (D.C. Cir. 2008)(reversed and remanded for consideration under proper standard)(noting that filing false report to the D.C. Office of Unemployment Compensation contesting plaintiff’s unemployment benefits is the type of conduct that can support a retaliation claim. BACKGROUND -- Littler ASAP Two lower appellate courts (the Fifth and Eighth Circuits) previously held that cognizable retaliatory action must involve some "ultimate" employment decision, such as a failure to hire or a termination. Other lower courts (the Third, Fourth and Sixth Circuits) had held that the challenged retaliatory action must result in an adverse effect on the terms, conditions or benefits of employment. The Supreme Court rejected these approaches, finding that Title VII's prohibitions against retaliation are broader. The Court explained that, as a practical matter, not all adverse actions are necessarily employment-related. The Court noted, as an example, that an employer might file false criminal claims against an employee in retaliation for her making a discrimination complaint. The Court ruled that the "scope of the [Title VII] anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm."Having reached this conclusion, the Court then addressed the question of "how harmful must the adverse actions be to fall within the scope" of Title VII's retaliation prohibition. On this issue, the Court's opinion provides some general guidelines, but no "bright line" standards. The Court ruled that only significant, rather than "trivial" harm, is sufficient. The Court also ruled that in judging whether the harm is significant, the courts should use an objective standard by examining whether a "reasonable employee" would view the retaliatory harm as significant. In making this determination, the Court noted that the context of the alleged retaliatory action must be considered. These general guidelines, by necessity, require courts to review adverse actions on a case-by-case basis, which means that a court's ruling in any given case will be more difficult to predict.
  • SPEAKER BACKGROUND INFORMATION EXCERPT From LITTLER ASAP on Crawford Decision: The Supreme Court, ruling only on the issue of whether Crawford's conduct qualified as protected "opposition" under Title VII, unanimously reversed the Sixth Circuit. Writing for the Court, Justice David Souter explained that in the absence of a statutory definition, the word "oppose" should be given its ordinary meaning. The Court gleaned this ordinary meaning of "oppose" from a dictionary definition: "to resist or antagonize ... to contend against; to confront; resist; withstand." Most importantly, the Court stated that the ordinary meaning of "oppose" does not pertain only to conduct that is active and consistent, but goes further to include situations where an individual takes "no action at all to advance a position beyond disclosing it." Ultimately, the Court held that Crawford's conduct was opposition in this ordinary sense of the word, and, thus, a protected activity under Title VII. To find otherwise, according to the Court, would be to announce a "freakish rule protecting an employee who reports discrimination on her own initiative, but not one who reports the same discrimination in the same words when her boss asks her a question." The Court further explained that any time an "employee communicates to her employer a belief that the employer has engaged in ... a form of employment discrimination, that communication virtually always constitutes the employee's opposition to the activity."
  • For years the EEOC has seen how racism and colorism play out in the workplace. It’s a surprise to most people that race-based charges (those involving claims of race discrimination, racial harassment, or retaliation arising from opposition to race discrimination) continue to be the most common charges filed with the EEOC . During the EEOC ’ s 2008 Fiscal Year 33,937 charges alleging race-based discrimination were filed. A race claim was present in 35.6% of all claims filed. Recently the EEOC announced a new initiative called E-Race that is designed to eradicate racism and colorism in the workplace. They have also indicated that fighting racism and colorism is going to be a primary objective of the agency . While some suggest that the EEOC ’ s efforts will be more about education and outreach versus enforcement no organization wants to be on the enforcement end of that fight. This is especially true when the EEOC ’ s enforcement efforts will focus on systemic and persistent racism in the workplace. These suits are not only expensive, but time consuming and potentially disastrous for an organization ’ s reputation. Even if you don ’ t find yourself battling the EEOC in a large action, you should expect to see the impact of the EEOC ’ s educational efforts, which could easily result in higher charge numbers against your organization.
  • Regardless of whether the discrimination was real or not, these workers believed that they had been treated unfairly. And in the world of EEO perceptions are very powerful.
  • The balance of power has shifted. Democrats are now in a position of power in Congress. President Obama is firmly committed to protecting and advancing civil rights. Obama agenda has already started unfolding.
  • The ADAAA will increase coverage by: Rejecting the strict interpretation of the ADA that defines disability to be an impairment that prevents or severely restricts an individual from doing activities that are of central importance to one’s daily life; Prohibiting the consideration of almost all measures that reduce or mitigate the impact of an impairment in the determination of whether an individual is disabled; Allowing persons who are discriminated against on the basis of a perceived disability to pursue a claim under the ADA regardless of whether the perceived impairment limits or is perceived to limit a major life activity.
  • Shanti
  • Long history… first introduced in 1974. But first version of the ENDA was introduced in 1994. Most experts expect that the law will pass after the next election. (COMMENT ON WHO WAS ELECTED) When it is passed, sexual orientation (and possibly gender identity) will be a protected category under Title VII. All private employers will need to update policies and practices. And for organizations where this is new, employers will need to educate employees and communicate expectations clearly. Failing to do this could result in significant potential liability.
  • Obama hasn’t been shy about his support of full civil rights, and his unwavering commitment to ensuring that US workers are paid properly for their time (check out the White House blog entry on this topic).
  • Even as we wait to discover the path and form that the ENDA will take, many of you are already impacted by laws that protect employees on the basis of sexual orientation and in some instances gender identity. Protects have been expanding over the past several years. Currently 20 states plus the District of Columbia prohibit discrimination on the basis of sexual orientation. And of these, 13 states and the D.C. prohibit discrimination on the basis of gender identity. There are also 80+ cities and counties that offer some level of protection from employment discrimination for one or both of these groups. Notable Cases: 2/09) Perez v. Burlington Coat Factory One of the 1 st of kind cases under CA FEHA Employee who transitioned on job claims to have endured extensive harassment
  • And if you think the your business is not impacted until ENDA passes, think again. Even under federal laws (Title VII) gay and transgender employees have rights. BACKGROUND NOTES Schroer v. Billington (D.D.C. 2008): Court held that the Library of Congress discriminated on basis of sex when it rescinding a job offer after plaintiff disclosed to his manager that he planned to transition from male to female. The manager later told Schroer “you are not a good fit, not what we want” and rescinded the job offer. To access the courts memo and opinion go to https://ecf.dcd.uscourts.gov/cgi-bin/Opinions.pl?2008
  • Ingrid
  • BACKGROUND NOTES: Not all speech is protected! Ng v. Jacobs Engineering Group: Employer can terminate employee pursuant to its anti-harassment policy for sending religious emails to unwilling employees. Employer is not required to accommodate an employee’s religious belief by allowing employee to impose that belief “personally and directly on fellow employees.” 2006 Cal. App. Unpubl. LEXIS 9142 (Cal. Ct. App. Oct. 2006) Peterson v. Hewlett-Packard Co: Employee terminated for violating harassment policy and insubordination when he disregarded the employer's instructions to remove anti-gay scriptural passages from his cubicle that he posted in response to employer's workplace diversity campaign. 358 F.3d 599 (9th Cir. 2004)
  • BACKGROUND NOTES: Not all speech is protected! Ng v. Jacobs Engineering Group: Employer can terminate employee pursuant to its anti-harassment policy for sending religious emails to unwilling employees. Employer is not required to accommodate an employee’s religious belief by allowing employee to impose that belief “personally and directly on fellow employees.” 2006 Cal. App. Unpubl. LEXIS 9142 (Cal. Ct. App. Oct. 2006) Peterson v. Hewlett-Packard Co: Employee terminated for violating harassment policy and insubordination when he disregarded the employer's instructions to remove anti-gay scriptural passages from his cubicle that he posted in response to employer's workplace diversity campaign. 358 F.3d 599 (9th Cir. 2004)
  • Shanti
  • After years in the industry we have learned that not all training programs are created equal and not all programs are able to adequately tackle the tough issues that employers face today. If you want your training to be truly effective you need to make sure that it not only takes on the right issues but tackles them in a sophisticated and appropriate manner. If your program does not, you should start looking for another training solution. At a minimum your training program should: [READ SLIDE]
  • Shanti
  • Reid
  • Ingrid
  • Reid
  • After years in the industry we have learned that not all training programs are created equal and not all programs are able to adequately tackle the tough issues that employers face today. If you want your training to be truly effective you need to make sure that it not only takes on the right issues but tackles them in a sophisticated and appropriate manner. If your program does not, you should start looking for another training solution. At a minimum your training program should: [READ SLIDE]
  • Ingrid Even if you don’t have enough litigation to see a $2.2. million savings, I’m certain that high, quality training can help your organization save money, and often it’s enough money to more than cover the costs of your training program. Litigation is expensive. There are a lot of hard costs that add up quickly. Littler Mendelson, the world’s largest labor and employment law firm estimates that the average single plaintiff lawsuit costs about $250k if it goes to trial – that doesn’t include damage awards by the way. And if you settle before trial, the hard costs often reach $150k+. If your training program is effective, your likely to see one of three results. And each of these results offers a clear and tangible return on your investment, and will more than likely cover the entire cost of your training program.
  • Reid
  • Reid

2011 EEO Trends 2011 EEO Trends Presentation Transcript

  • 2011 EEO Trends: Record Charges, New Laws & Getting Back to Compliance Basics February 24, 2011
  • Reid Bowman, Esq.
    • General Counsel of ELT.
    • Over 25 years of HR and labor employment law experience, primarily working with multi-state employers.
    • Designs strategic ethics, discrimination prevention, and employment law compliance programs.
  • Bruce Sarchet, Esq.
    • Provides advice to employers in dealing with their most difficult and problematic employees
    • Expert in workplace violence – providing counsel on the difficult legal and practical issues that arise
    • Committed to crafting practical, real world solutions to problems, recognizing and balancing business realities and necessities with the need to minimize exposure to litigation. 
  • Agenda
    • How Today’s Economy Continues to Shape Employment Law Risk
    • EEO Trends
    • - the latest Charge statistics
    • -Retaliation
    • -GINA and ADAAA impact
    • 3. The Future
        • -Wage & Hour
        • -Sexual Orientation & G.I.
        • -Whistleblowing
    • Proactive Solutions
      • How Today’s Economy Shapes Employment Law Risk
  • The Unemployment Rate Remains High
  • Risk Exposure in a Jobless Recovery
    • The economy will continue to shape your risk profile in 2011.
    • Every 1.5% increase in unemployment drives a ~ 21% increase in employment lawsuit filings.
    • Source : The Changing Nature of Employment Discrimination Litigation , 43 Stan. Law. Rev. 983 (1991).
  • Impact On Your Business
    • Every additional claim hits your budget hard .
      • Average defense costs for single plaintiff litigation can cost $250K+ through trial.
      • Source: Littler Mendelson
    • Median Jury Verdicts:
      • Discrimination: $200,000
      • Whistleblower: $200,550
      • Retaliation: $225,000
      • Median settlement amount: $90,000
    • Employment Practice Liability: Jury Awards Trends & Statistics, 2009 Ed.
  • A Question for You
    • In the past year, the number of EEO charges in my industry have:
      • Increased.
      • Decreased.
      • Not sure.
  • EEOC Charges Soared in 2010
      • www.eeoc.gov
    99,022 80,680
  • Most Claim Categories Grew In 2010
      • http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm
  • Most Claim Categories Grew In 2010
      • http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm
      • Retaliation
    • Ava filed a charge with the EEOC claiming that her hours were cut because of her age. Her long term partner, Kris, who also worked for the same employer, was dismissed 3 weeks later. Can Kris sue for retaliation?
      • Yes
      • No
    A Question for You
  • Retaliation – Your Greatest “Hidden EEO Risk”
    • What it is : Taking adverse action against an employee or job applicant because that individual (in good faith) engaged in protected activity such as:
      • Filing a complaint or lawsuit,
      • Making an internal complaint, or
      • Participating in an investigation, including an employer investigation .
    • The underlying claim of harassment or discrimination doesn’t need to be proved.
  • What’s Protected Has Expanded
    • January 2009: U.S. Supreme Court announced a new “opposition” standard:
      • Any time an "employee communicates to her employer a belief that the employer has engaged in ... a form of employment discrimination, that communication virtually always constitutes the employee's opposition to the activity.”
    • Opposition (aka protected activity) includes answering questions during a company investigation .
      • Crawford v. Metropolitan Gov’t of Nashville and Davidson County (U.S. Supreme Court 01/26/09 )
  • No Bright Line Test for Adverse Conduct
    • Retaliatory conduct is about more than terminations or demotions.
      • Would the adverse conduct or harm have the effect of discouraging a reasonable employee from making a discrimination complaint?
    • No bright line test – jury to decide.
    • Burlington Northern & Santa Fe Railway
    • Co. v. White (U.S. Sup. Ct. 2006)
  • And What’s Prohibited Is Broader…
    • Under Burlington, retaliation can reach beyond the workplace:
      • Filing false criminal claims.
      • Filing a false report with an unemployment compensation office ( Steel v. Schafer , 535 F.3d 689 (D.C. Cir. 2008)).
      • False references to damage job prospects?
  • And Continues to Expand…
    • January 24, 2011: U.S. Supreme Court announced a further expansion on retaliation protections:
      • Because the Court believed that an employee might be dissuaded from engaging in protected activity if her fiancé would be fired in retaliation for this protected activity, the terminated fiancé has a viable claim for unlawful retaliation.
    • Door now open to claims from a wide range of undefined employees who have never engaged in protected activity!
      • Thompson v. North American Stainless, LP 09-291 (1/24/11 )
      • Race
  • Race is Still the #1 Substantive Issue
    • Race still the top substantive issue - - present in 35.9% of all EEOC charges – and trails only retaliation as most commonly cited basis.
    • http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm .
    • Median race discrimination verdicts were $150,000 in federal court, but $257,239 in state court.
      • - Employment Practice Liability: Jury Awards Trends & Statistics, 2009 Ed.
  • Keep Your Eye On Race and National Origin Discrimination
    • 23% of diverse workers claim they’ve been discriminated against or treated unfairly because of their background.
      • 30% of these workers said it happens at least once a week .
    • Source: CareerBuilder.com Survey 2008
    • 61% of Latinos surveyed believe discrimination is a “major problem” that keeps them from succeeding in America – up from 54% in 2007.
    • Pew Hispanic Research study (October 2010)
    • (http://pewhispanic.org/reports/report.php?ReportID=128 )
      • Two Years of the Obama Administration:
      • A New Era For Civil Rights
  • GINA’s Anti-Discrimination Requirements
    • Passed into law in 2008; Regs effective as of 1/11/11.
    • Unlawful for an employer to discriminate against an individual on the basis of the genetic information in regard to hiring, discharge, compensation, terms, conditions, or privileges of employment
      • Even if an employer lawfully acquires genetic information, such information cannot be used in making employment decisions
    • Unlawful to limit, segregate, or classify employees because of genetic information
      • No disparate impact claims
    • EEOC interprets GINA to prohibit harassment on the basis of genetic information
    • GINA also has retaliation protections
    • EEOC received first GINA-based charges in 2010!
  • ADA Amendments Act (ADAAA)
    • Effective January 1, 2009
    • Broadens rules interpreting the term “disability”
      • Broadens major life activities
      • Eliminates reference to mitigating measures
    • Broadens meaning of “regarded as” disabled
    • 25,165 disability charges filed with EEOC in 2010, a 29% jump from 2008 (pre ADAAA.)
  • The Wage & Hour Agenda
    • Secretary of Labor, Hilda Solis:
    • “ Make no mistake the DOL is back in the enforcement business.”
    • Added 250 new investigators in FY ’10, increasing the total number of Investigators by 1/3
    • Expected to add 90 more in ‘11 with a $20M increase in enforcement budget.
    • Of 7,312 class/collective action lawsuits filed in federal or state court in 2009, 6,052 (or approx. 83% ) were wage and hour related complaints
    Wage & Hour Class/Collective Actions: The Flood Continues
  • Average Wage & Hour Settlements $8.6 Million $19 Million $29 Million $24 Million $24.4 Million
  • Wage & Hour Litigation Continues to Skyrocket
      • Leading to …
        • Increased wage and hour litigation.
        • Increase in pay discrimination claims.
      • Sexual Orientation & Gender Identity
    • My organization’s anti-discrimination / EEO policy:
    • Includes sexual orientation.
    • Includes sexual orientation and gender identity.
    • Does not include sexual orientation or gender identity.
    A Question for You
  • Employment Non-Discrimination Act
    • Most recently passed by House of Representatives in November 2007.
      • This version applied only to sexual orientation.
      • Gender identity was removed.
    • New Sexual orientation and gender identity bill (H.R. 3017) introduced in Congress in June 2009; hearings held 9/24/09.
    • Since then, stalled in Congress.
  • Will End of “Don’t Ask, Don’t Tell” help revive ENDA?
    • The Don’t Ask, Don’t Tell Repeal Act of 2010 was signed into law by President Obama on December 22, 2010.
    • “ President Obama also continues to support the E[NDA] and believes that our anti-discrimination employment laws should be expanded to include sexual orientation and gender identity.”
    • www.whitehouse.gov/issues/civil_rights
    • “ ..At its core, this issue is about who we are as Americans. It’s about whether this nation is going to live up to its founding promise of equality by treating all its citizens with dignity and respect.”
    • Obama, June 1, 2007
  • Sexual Orientation & Gender Identity Protections Are Expanding
  • Even Without ENDA You May Be Impacted
    • Any employee (including a gay employee) can sue for same-sex sexual harassment.
    • Cromer-Kendall v. District of Columbia 326 F. Supp. 2d 50 (D.D.C. 2004)
    • And, discrimination against a transgender employee can be a form of sex discrimination.
    • Schroer v. Billington (D.D.C. 2008)
  • Whistleblower Claims
    • Enormous expansion of statutes in US
    • Sarbanes-Oxley
    • False Claims Act
    • Dodd-Frank: expands remedies against all publicly traded companies and broad array of financial institutions.
  • New Whistleblower Protections – Dodd Frank Wall Street Reform
    • When is it effective?
      • July 21, 2010
      • April 2011: the regulations are due to be issued.
    • What is the purpose of this new law?
      • “ To promote the financial stability of the United States by improving accountability and transparency in the financial system.”
  • How Does This New Law Impact HR Professionals?
    • In two broad ways:
      • Corporate Whistleblowers:
        • Enhances the protections afforded to corporate whistleblowers.
        • Expands the companies subject to Sox’s [Sarbanes-Oxley] whistleblower provisions.
        • Relaxes the timing and manner in which retaliation claims can be made.
        • Stiffens the penalties for retaliation.
      • Compensation:
        • Companies are now required to address their overall compensation policies and practices for all employees if they create risks that are “reasonably likely to have a material effect on the company.”
  • New Whistleblower Protections – Dodd Frank Wall Street Reform
    • The act creates a new incentive program to encourage individuals to report Securities Exchange Act (SEC) violations.
    • The act allows aggrieved employees to bring a civil action in federal court.
    • The act requires that prevailing employees are entitled to reinstatement, double back pay plus interest, attorneys’ fees and litigation costs.
  • What Steps Should We Take to Address the New Whistleblower Provisions of This Act?
    • Review and update policies to encourage employees to INTERNALLY report their reasonable good faith concerns with any issues within the company.
    • Update policies to clearly articulate that you will not tolerate any reprisals or retaliation by anyone who reasonably and in good faith makes a complaint.
    • Train management about whistleblower protections and the handling of whistleblower complaints.
    • Develop and implement whistleblower reporting procedures for employees, and train employees how to use them.
  • Practical Solutions
    • Review and update policies and handbooks:
    • Are they compliant with new laws?
    • Are they contemporary?
    • Do they cover emerging issues:
      • New technologies.
      • New protected classes.
    • Consider a stand alone policy on retaliation
    Tune Up Your Policies & Practices
    • HR should check in with managers regularly
    • Especially newly promoted managers
      • “ How is it going?”
      • “ Anything strange happening?”
      • “ Any recent conversations with employees which you think could have gone better?”
    Work With Your Management Team
    • Some of the changes or potential changes may be controversial and lead to heated discussions.
    • Clearly communicate expectations around respect, inclusion, and expressing personal beliefs.
    Be Proactive About Improper Workplace Discussions
  • Get the Message Out To Your Employees
    • Policies and expectations must be communicated; training is essential in this environment .
    • - Policies often don’t get read
      • Failing to train dramatically increases your risk profile.
      • Training may be legally required or critical for legal defense.
  • California Mandatory Training – AB 1825
    • Requires employers who do business in California, and who have more than 50 employees, to provide 2 hours of high quality, “interactive” harassment training to all California supervisors.
    • Every 2 years.
    • 2011 is a “re-train” year!
    • Not just sexual harassment.
    • No cap on penalties.
    a
  • U.S. Supreme Court Mandatory Training Guidelines
    • Faragher and Ellerth (1998); Kolstad (1999)
      • Train all employees on harassment prevention periodically .
      • Train all managers on discrimination prevention, periodically .
      • Distributing policies is not training.
      • Evidence of training may provide:
        • Defense to liability.
        • Defense to punitive damages .
  • And More Federal Guidelines …
    • 1999 EEOC Guidelines directs specifically that employers train employees and managers on harassment prevention.
    • EEOC consent decrees and conciliation agreements routinely mandate periodic anti-discrimination training
  • “ [L]eaving managers in ignorance of the basic features of [employment] laws is an ‘extraordinary mistake’ for a company to make, and a jury can find that such an extraordinary mistake amounts to reckless indifference.” Mathis v. Phillips Chevrolet, Inc., 7th Cir. 10/15/01 The Impact of a “Mandatory Guideline”
  • Effective Training Should:
    • Include harassment, discrimination, and other vital topics (e.g. wage & hour/pay).
    • Address all forms of prohibited conduct.
    • Encourage Internal reporting/whistleblowing.
    • Include emerging topics like sexual orientation, GINA, and religious accommodation.
    • Teach employees that respect and inclusion are core values.
    • Fully explore retaliation.
    • Explore the grey areas, not just the blatant stuff.
    • Comply with CA’s stringent training mandate (even if you’re not in CA).
    Effective Training Should:
    • Preventing even one claim a year pays for your training.
      • Independent ROI study conducted by ELT / Littler client: Training tied to annual hard cost savings of $2.2 million.
    • Training decreases the settlement value of tough cases.
    • Training can help an organization avoid/reduce a punitive damage award.
    Training Pays Off
  • Presentation Slides
    • All attendees will receive a follow-up e-mail in the next 48 hours with information for accessing the presentation slides and continuing education credits.
    • If you do not receive this e-mail, contact [email_address] to receive a copy of the presentation slides .
  • A Question for You? If your   organization may be interested in purchasing ELT ’ s online training solutions, and you would like an ELT Sales Executive to follow up with you, type "YES" in the box below.
  • Interested in our solutions? [email_address] www.elt-inc.com │ 877.358.4621 Additional substantive questions? [email_address] [email_address] Do not receive a follow-up email with the presentation slides within 48 hours? [email_address] Questions? Resources?