The Riskiest States for Employee Lawsuits

In 2014, U.S. companies had at least an 11.7% chance of having an employment charge filed against them, according to the new 2015 Hiscox Guide to Employee Lawsuits. The firm’s review of data from the Equal Employment Opportunity Commission and its state counterparts found that the risk also varied notably by state, as local laws creating additional obligations—and risks—for employers led to charge rates up to 66% above average.

STATES WITH THE HIGHEST EMPLOYEE LAWSUIT RISK

State laws that are driving some of this increased employee charge activity include heightened anti-discrimination/fair employment practices, the use of E-Verify in the private sector, pregnancy accommodation, prohibitions on credit checks, and restrictions on inquiring about or requiring background checks.

Key state laws driving increased employee charge activity

These cases can be especially damaging for small- and mid-sized enterprises, with 19% of employment charges among SMEs resulting and defense and settlement costs averaging $125,000 and taking about 275 days to resolve. The average self-insured retention for these charges was $35,000, Hiscox found, and without employment practices liability insurance, these companies would have been out of pocket an extra $90,000. What’s more, 81% resulted in no insurance payout, giving even nuisance charges the potential to be a serious financial hit. While the majority do not end up in court, when they do, the median judgment is about $200,000, not including defense costs, and 25% of cases result in a judgment of $500,000 or more.

During the hiring process, written procedures that outline and comply with federal and state laws can help minimize risk, as can maintaining a customized employee handbook that all staff acknowledge in writing they have reviewed. In addition to risk transfer, such as an employment liability insurance policy, Hiscox offered several tips to best mitigate the risk of employment charges, including:

Independent contractors

Be careful when designating independent contractors. There are variations among states and areas of law as to the test for an independent contractor. It is possible for a worker to be considered an independent contractor for some purposes and an employee for others.

Leaves of absence and accommodation for disabilities

A medical condition can trigger federal and state leave and disability laws, which vary, as well as workers compensation laws. Make it a policy to recognize events or discussions that create an obligation to discuss accommodations or a possible leave of absence.

Employee performance

Ensure that all supervisors and managers are aware of the procedure for addressing unacceptable employee performance. Communicate to the employee about what they are doing (or not doing) that is unacceptable, and make sure they understand what constitutes acceptable performance. Document all communications. Conduct factual, honest performance evaluations. Develop and maintain a procedure for corrective action plans.

Termination

To minimize litigation around termination, avoid surprises. Make sure that all guidelines have been followed for addressing unsatisfactory performance, particularly the corrective action plan. Prior to termination, assess the risk for litigation: is the employee a member of a protected class, involved in protected labor activities, or a potential whistleblower? Is the employee under an express or implied-in-face employment contract? Gather and review the documentation that supports the termination and interview relevant players.

Legal Lessons from Starbucks’ Race Together Campaign

Starbucks Coffee Race Together Campaign

One aspect of Starbucks Coffee’s recent “Race Together” campaign encouraged employees to engage customers in a discussion about race. This effort—which had employees write #racetogether on customers’ cups to encourage dialogue—was well intentioned. However, the speed at which it was scrapped shows just how difficult it is to incorporate political and social discussions into the workplace.

The term “hostile work environment” often gets thrown around without any thought to what that really means. The greatest misconception is that anything hostile or abusive that happens at the workplace is illegal. Albeit inappropriate, screaming at an employee or calling him stupid is simply not illegal.

The flipside of that coin is that conduct does not necessarily have to be abusive or threatening to create a hostile environment when the subject matter is a protected category under Title VII, which prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin. Forcing employees to engage in discussions with strangers about race without any control over how the customer will respond opens an opportunity for the work environment to become incredibly uncomfortable for employees.

Employers have a duty to protect their employees from harassment based upon protected categories by customers, not just other employees. So if a customer responds to an offer to start a conversation about race with a mean-spirited joke or simply a racial epithet, the employer will have to take action against that customer. If these types of responses become repetitive, the employer would likely have an obligation to stop the source of the conflict—in other words, cease the practice of having employees start discussions about race.

There are many other pitfalls in having workplace discussions around sensitive topics that fall into protected categories under Title VII. A discussion of this sort, in spite of the best intentions of the participants to be thoughtful and candid, can easily bring to the surface differences in thought among employees, which may result in ill will. Likewise, comments made during these conversations could be used as evidence that a particular manager is prejudiced against certain types of individuals. Individuals certainly have different perceptions of the meanings of different comments and actions, so a manager might feel that comments he makes do not show any sort of prejudice, while the people hearing the conversation can come to a completely different conclusion. Should the manager then take some disciplinary or other job-related action against an employee, the conversation may be used as the basis for a discrimination lawsuit. At that point, what the speaker intended is less relevant than how the comment is perceived by a judge or jury.

Most employers today certainly haven’t taken steps to instigate this sort of discussion in the workplace. But events do arise in the news that relate to these topics and become the fodder for water cooler conversation. Most employers do not want to become the “speech police,” monitoring every communication among employees that might not relate directly to the business. Yet, these conversations can, just as the discussion on race that Starbucks initiated, become problematic. Then, the key is to make sure that employees are aware of their opportunities to report behavior that causes them discomfort. Open door and non-harassment policies attempt to encourage employees to come forward well before any workplace conduct would become a truly actionable illegal hostile environment. Encouraging use of this process can assist employers in nipping problems in the bud.

Handling a complaint related to an uncomfortable discussion can have its own problems. Chances are that the employee being complained of did not understand that talking about what he saw on the news the night before should be grounds for his being called out. Many employees wrongly believe that the First Amendment protects the right to discuss these events at a private employer’s place of work. Thus, when having the conversation with the offending employee, the employer needs to be prepared to educate the employee on the differences of opinions and perceptions that different people have as well as the employer’s right to keep discussions out of the workplace.

While the conversation about the Starbucks “Race Together” campaign will likely die down, employers can continue to expect the occasional need to address misunderstandings and comments as long as the outside world is focused on these issues. In light of that, here are some steps employers can take to be prepared.

  • Train managers that they should not be engaging in conversations on non-work-related controversial topics with their employees.
  • Train employees and managers in the reporting procedures under open-door policies so they know how to raise a problem before it becomes a big issue.
  • Train employees that your nondiscrimination and harassment policy extends not just to their fellow employees, but also to customers and vendors.

Finally, and most importantly, be responsive when employees raise concerns. Not every complaint is a valid one and not every event that makes somebody uncomfortable is inappropriate. Sometimes an employee must be told that their complaint is not going to result in any changes. Failing to follow up with the complaining employee creates an atmosphere of distrust or leads to the belief that the employer does not mean what it says about preventing illegal harassment.