We’re excited to have sponsored the NCACPA’s Members in Business and Industry Fall Conference in Asheville, September 9-11. CAI’s HR Manager, Lauren Hardwick, presented the ‘10 Most Common Claims Against Employers.'

1. HR Update: Top Ten Claims
Employees Make Against
Employers
NCACPA MIBI Fall Conference
September 2019
Lauren Hardwick, MBA, SPHR
Capital Associated Industries (CAI)

2. Today’s Agenda
• Raise awareness on potential risk areas
• Define those risk areas
• Provide you practical perspective and
advice that you can bring back to your
workplace
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3. Top Issues on Your Mind
• The Survey Says…
– Wage and Hour Compliance
– Family and Medical Leave Act Problems
– Accommodation and Discrimination Issues
(EEO)
– Immigration Investigations, E-Verify & I-9’s
– Termination Challenges
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4. Wage and Hour Compliance
• Overtime Pay
• Exemptions from Overtime
• Well-intended practices that simply don’t
meet these old rules
• Treatment of bonuses to non-exempt staff
• Independent Contractor Misclassification
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5. Common Practice vs. Actual Rule
• “Ee is OK with it”
• “Salary means no OT”
• “No OT on Bonuses”
• “Important job
=exempt from OT”
• “Withhold that debt”
• “I want my assistant
to be exempt”
• They want to be
indep. contractors
• No waiver allowed!
• NOT!
• YES if non-exempt!
• NO! Not enough!
Must pass the tests.
• NOT unless . . . .
• The USDOL may
(will) not agree
• D/not matter
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6. Family Medical Leave Act Problems
• Coverage and Notice Issues
• Medical Documentation
• Discipline for Excessive Leave
• ‘Serious Health Condition’ Issues
• Intermittent Leave
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7. Accommodation and
Discrimination Issues (EEO)
• Coverage Rules
• Disability Qualifications
• Reasonable Accommodations
• Undue Hardship
• Discrimination and Harassment
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8. Immigration Investigations, E-
Verify and I-9’s
• Increase in ICE Raids
• Form I-9 verifies identity and employment
authorization
• E-Verify is an internet-based system that
compares information from Form I-9 to
government records
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9. Form I-9 vs E-Verify
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• Form I-9
– Is mandatory
– Does not require SSN
– Does not require
photo on identity
documents
– Must be used to
reverify expired
employment
authorization
• E-Verify
– Is voluntary for most
– Requires SSN
– Require photo on
identity documents
– May not be used to
reverify expired
employment
authorization

10. Termination Challenges – Best
Predictor of Legal Claims
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• Awful workplaces/no claims
• “Good” workplaces/lots of claims
• A surprising study by Duke researchers
• Are you sitting down?

11. Predictors . . .
• NOT bad treatment during work
• NOT discrimination or lies in past months
• NOT a bad supervisor
• NOT a TV lawyer with a pot of gold
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12. Survey said . . .
Unfair treatment during the termination
process itself had twice the claim-causing
impact of any other factor
 Treated with respect, dignity, honesty at
termination: .4% filed claims
 Treated the opposite: 15% filed claims
 Biggest issue: dishonest reasons/no
reasons
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13. Role of the CFO in HR
• General reaction to HR reporting to CFO?
• Mutual stereotypes: people-hugger and
bean counter
• Similarities: both are overhead expense
financed by the core business to help it
function at peak (and keep what it earns)
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14. • Teach HR:
– How costs are calculated
– Importance of vendor reviews/alternatives
– Doing an RFP
– Procurement basics
– Where do we get the bang for our buck in
compensation and benefits?
– Importance of benchmarking to identify
outliers
– Understanding margin versus revenue
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15. • Learn from HR:
– Impact of intangible assets and practices
– Market leaders get the most from their people
– People work best where managers have good
soft skills
– A positive culture takes time to build and less
time to damage
– Destructive managers (even if high producers)
do more harm than good
– Key talent has options and we need to
continually “recruit” them
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16. Understanding the Developing HR
Risks
• There is no comprehensive checklist for
successful risk avoidance
• Compliance checklists are a good start, but
no substitute for a holistic approach
• Most liability comes from mishandling
pivotal challenges
• There are four main categories of
mishandled pivotal challenges
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17. Hiring
• The legal claims today are less about overt
discrimination and unlawful interview
questions
• Lazy hiring practices are fertile ground for
legal claims
• Little known fact: careful definition of
the open position and selection process
will improve candidate pool and defense of
any claim filed
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18. Management by Errors and
Omissions
• Low and intermediate level managers can
make or break your legal risks
• The failure to execute well on the essential
competencies of good management cause
most problems
• Little known fact: a manager’s ability to
identify and solve people problems is more
predictive of legal risk that their
knowledge of the law
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19. Effective Handling of Workplace
Events
• There is no “drama free” workplace
• The failure to respond well to the event is a
bigger problem than the event itself
• Little known fact: the appearance of
“retaliation” or foot dragging multiples a
claim and the potential jury award
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20. Firing
• Too fast, too slow, too much
communication, too little communication
• “Employment at-will” is not a law: it is
defense to a lawsuit
• Little known fact: preserving employee
dignity by telling them the truth is one of
the best risk reduction strategies
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21. What Next? Some Best Practices
for You
• Ask your Human Resources partner:
– How are we handling OT?
– Have we looked at employee classifications
recently?
– What are our obligations under FMLA?
– Are we making reasonable accommodations
for eligible employees?
– Are we fully I-9 compliant? Perhaps time for
an audit?
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22. Lauren Hardwick, MBA, SPHR
Capital Associated Industries (CAI)
Lauren.hardwick@capital.org
919-713-5242
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