09 11 08 LCAHRM LAT in Your Workplace [EDocFind.com]

8/8/2019 09 11 08 LCAHRM LAT in Your Workplace [EDocFind.com]

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Legal Awareness Training

in Your Workplace:Whats Required?

Harmon & Davies, P.C.

September 11, 2008


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EEOC CHARGES RISE 9% IN 2007

Discrimination Charges Highest in Five Years,Agency Obtains $345 Million for Victims

SNAPSHOT OF DISCRIMINATION CHARGES FILED

WITH THE EEOC NATIONWIDE

Basis of Charge Filing FY 2007 FY 2006 Percentage Increase/Historical Comparison

RACE 30,510 27,238 Up 12% to highest level since FY 1994

RETALIATION 26,663 22,555 Up 18% to record high level, double since FY 1992

SEX/GENDER 24,826 23,247 Up 7% to highest level since FY 2002

AGE 19,103 16,548 Up 15%, largest annual increase since FY 2002

DISABILITY 17,734 15,575 Up 14% to highest level since FY 1998

NATIONAL ORIGIN 9,369 8,327 Up 12%, above 9,000 for second time ever

RELIGION 2,880 2,541 Up 13% to record high level, double since FY 1992

TOTAL CHARGES 82,792 75,768 Up 9%, largest annual increase since FY 1993

NOTE: Individuals may allege multiple types of discrimination in a single case.

In 2007, retaliation was the second highest charge category(behind race) for the first time, surpassing sex-based charges.

Source www.eeoc.gov(March 5, 2008)


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Retaliation - Statistics

EEOC reportedthat Retaliation

charges rose 18%to record high in2007.

Second highest toRace.


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Retaliation

Laws prohibit retaliation against those whooppose any type of unlawful practice or

who file complaints of discrimination withan employer, with the EEOC, or otherappropriate agencies.

The legal protection applies even if the

associates complaint is without merit.


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RetaliationBurlington Northern v. White

(U.S. Supreme Court 2006)

Anti-retaliation provision does NOTconfine the actions

and harms it forbids to those that are related toemployment or occur at the workplace.

Covers employer actions that would have beenmaterially adverse to a reasonable employee orapplicant

must be harmful to the point that they could well dissuade areasonable worker from making or supporting a charge ofdiscrimination.


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Retaliation

CBOCS West Inc. v. Humphries

(U.S. Supreme Court 2008)

Humphries sued Cracker Barrel restaurants for racediscrimination and retaliation under Title VII and Section1981

Question: does Section 1981 support a retaliationclaim?

Court held that such claims are implicitly covered bySection 1981 by 7 to 2 vote (Justices Thomas andScalia dissenting)


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Harassment - 2007 Statistics

EEOC received12,510 charges ofsexual harassment

(4% increase from2006)

16% of those

charges were filedby males

Highest levels since

2002


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States that Mandate Discrimination

and Harassment Training California

Colorado

Connecticut

Florida

Illinois

Iowa Maine

Massachusetts

Michigan

Nevada

Rhode Island

Tennessee

Texas

Utah Vermont


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Examples of Damages Recoverable in LawsuitsInvolving Employment Discrimination

Title VII: Reinstatement, hiring or promotion withbackpay, front pay, fringe benefits, attorneys fees, costs,expert witness fees, compensatory and punitivedamages

ADA: Reasonable accommodations, reinstatement,hiring or promotions with back pay, front pay, restoredbenefits, attorneys fees and costs, expert witness fees,compensatory and punitive damages

ADEA: Backpay, front pay, fringe benefits, liquidateddamages for willful violations, attorneys fees

FLSA: Unpaid wages & overtime, civil and criminalpenalties, liquidated damages, retroactive pay


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An ounce of prevention is worth apound of cure.

Ben Franklin


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Training is an Affirmative Defense

Under Faragher/Ellerth (US SCt 1998), anemployer must prove:

It exercised reasonable care to prevent andpromptly correct any harassing behavior; and

The plaintiff unreasonably failed to takeadvantage of any preventive or correctiveopportunities provided by the employer.

Training is one step in preventing misconduct.

These principles apply under other laws, too.


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What is

Reasonable Care? Title VII is designed to encourage the

creation of anti-harassment policies and

effective grievance mechanisms.E

llerth. Requires a Policy and Complaint

Procedure.

Training your employees so they knowtheir rights and responsibilities showsreasonable care.


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Who to Train Training requirements differ by position

HR Department

Officers and Directors

Managers

Non-Exempt Employees


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What isE

ffective Training? Document attendance

Maintain documentation about theprogram

Frequency Turnover rates

Changes in the law


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What isE

ffective Training? Expert Presenters

Interactive

Customized vs. Standardized

Face-to-Face vs. Web-Based Web training should include

Q&A to test participants


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Plaintiffs attorneys attack

adequacy of training Cost: training on the cheap

Frequency: we did training 3 years ago

Attendance: half the employees were absent

Engagement: half the employees were sleeping

on-line programs may not require active involvement

Documentation: what was covered?

Reputable/Expert Provider

Optional vs. Mandatory


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Training Topics:

for HR Professionals Title VII ADA ADEA

COBRA Child Labor Dislocated Workers Discipline and Termination Documentation ERISA Equal Pay Act Fair Labor Standards Act FMLA Fair Credit Reporting Act HIPAA

Immigration Reform andControl Act

Independent Contractors Investigations Interviews and Hiring National Labor Relations Act OSHA USERRA Payroll (Internal Revenue

Code) Performance Reviews and

Management Personal Responsibility and

Work OpportunityReconciliation Act


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Training Topics:

for HR and Managers Litigation Process and

Personal Liability

Affirmative Action

Confidentiality and TradeSecrets

Computer, Internet, Email Useand Security

Diversity

Discrimination

Disability AccommodationProcess

Documentation

Ethics

FMLA

Harassment and SexualHarassment

Investigations Leave Rights (FMLA, ADA,

Military, etc.) Record Retention and

Destruction Retaliation OSHA

Union Avoidance USERRA Wage & Hour (overtime,

exemptions) Workplace Violence


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Training Topics:

forEmployees Confidentiality/Trade

Secrets

Computer, Internet, EmailUse and Security

Discrimination

Disability AccommodationProcess

FMLA Harassment and Sexual

Harassment

Drug Free Workplace/Substance Abuse

Lock-Out/Tag-Out

Reporting Process(Complaints, Claims,Grievances)

USERRA

Wage & Hour (timeclocks, overtime,

paycheck/paystub review) Workers Compensation

Reporting


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Training Topics:

forEmployees OSHA:

Asbestos, Basic First Aid, Bloodborne Pathogens,

CPR, Chemical Safety, Confined Spaces, DriverSafety, Electrical Safety, Emergency Response,Environmental Management, Fall Protection, FireSafety, Forklift Safety, Hand and Power Tool Safety,Hazard Communications, Hearing Conservation, Hotand Cold Stress, Indoor Air Quality, LaboratorySafety, Ladder/Climbing Safety, Machine Guards,Personal Protective Equipment, Traffic Control


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Resources EEOC

DOL

PENNSAFE Safety Committee Training

Bureau of Workers CompensationResources

Drug Free PA

PA Labor-Management Committees


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Resources HR Consultants

Vendors

Software and Web-Based training and E-Learning Centers

Colleges and Universities

Associations and Organizations

Training Institutes Attorneys


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Training in Multiple Languages No mandatory EEOC requirement to train

in foreign language English-Only rules permitted only if business

necessity

But, how effective is your training if you dont reachworkers due to language?

Web-based or CDs may be useful


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Training in Multiple Languages Posters available in multiple languages

(EEO, Minimum Wage, FMLA, etc.) Federal and State

OSHA website: Compliance Assistance forHispanic Employers and Workers

OSHA en Espaol


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Questions?(717) 291-2236

Rick Harmon: [email protected] Davies: [email protected]

Laura Gallagher: [email protected]

Thank you!

This presentation is not intended to be legal advice, but should be considered general information.

Particular questions should be directed to legal counsel. You are welcome to contact us for

additional information or questions regarding this presentation.

Documents

09 11 08 LCAHRM LAT in Your Workplace [EDocFind.com]