As a manager, do you look the other way when what makes sense to you violates governmental regulations that you consider stupid?
For example, if your hourly employees volunteer to stay late to finish a project, do you let them work off the clock even though you know the Fair Labor Standards Act mandates that hourly employees be paid overtime?
Be careful -- in 2010, the country saw an increase in employment litigation, with an 18 percent increase in FLSA and wage and hour litigation.
Do you lack a supervisory training program, yet employ individuals you consider rough around the edges? Have you promoted some of them into your supervisory ranks? According to the EEOC, the last decade showed a 6 percent to 10 percent increase in disability, age, sex and race discrimination complaints.
Do you supervise a mouthy employee who thinks he can tell you what to do? When he finally pushes you too far, do you fire him, only to find yourself defending a retaliation lawsuit? According to him, things were fine until he filed a worker's compensation claim and you've had it in for him ever since.
You think this lawsuit is only his nasty last hurrah until your attorney tells you that jury verdict research shows a 57 percent chance of an employee receiving a favorable jury verdict in retaliation cases.
According to legal researchers, the tight job market makes discontented employees less likely to move on to new jobs and more likely to stay until the employer makes a crucial, litigable mistake. The federal Equal Employment Opportunity Commission reports that 36 percent of all charges filed in recent years included a claim of retaliation, representing an increase of 70 percent over the past decade.
For a rundown of the risks you may face in 2011 and ways to avoid them, consider the following:
Wage and hour claims rank as the fastest-growing category of employment litigation. Misclassification (exempt vs. nonexempt and contractor vs. employee) and overtime claims lead the way. Multi-plaintiff wage and hour lawsuits pose the single greatest employment litigation threat to employers.
According to the Department of Labor, approximately 70 percent of all employers routinely violate wage and hour laws. Employers run a risk if they consider nonexempt hourly employees to be exempt from overtime rules because they title them "office manager" and pay them a salary. Between 2001 and 2008, the Wage and Hour Division recovered $1.4 billion in back wages from these employers.
Further, in 2011 the Department of Labor plans to change its compliance efforts, shifting the burden of compliance to the employer. Labor attorneys warn that employers can expect more aggressive DOL enforcement. According to the DOL's "Plan-Prevent-Protect" strategy, employers must understand that the burden is on them to obey the law and must "find and fix" violations and insure compliance before a DOL investigator arrives at the workplace.
Do you want to avoid a problem? Make sure you properly classify your employees as exempt or nonexempt and as contractors or employees. Review your record-keeping practices to ensure you keep information about the number of hours your hourly employees work each day and workweek.
What if one of your "rough around the edges" supervisors passes around a supposedly funny sexist joke at a staff meeting or tells an employee he gave a promotion to a younger employee because the younger employee might be around for 20 more years?
As courts and juries consider supervisors and managers to "be" the company, this supervisor hangs himself and your company -- because he doesn't know the law. Give your supervisors a briefing outlining the categories protected from discrimination -- age, race, sex, color, creed, marital status, sexual orientation, gender identity, disability, use of a trained guide dog or service animal, national origin, results of an HIV test, veteran's honorable discharge or military status -- and ask them to learn new jokes and avoid both blatant and subtle discrimination
Finally, employers who want to avoid retaliation claims in 2011 need to train managers and employees about retaliation and adopt a stand-alone retaliation policy that ensures management reviews any adverse employment action that might be taken against an employee who has participated in a "protected activity."
Employees who make a complaint or exercise their rights under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Occupational Health and Safety Act, the Fair Labor Standards Act, ERISA, the Family Medical Leave Act, the National Labor Relations Act or the Sarbanes-Oxley Act of 2002 and get fired can often prevail on a claim of retaliation even if they don't prove their underlying complaint.
As a manager, have you looked the other way? You may want to change.
-- Lynne Curry is a management trainer, consultant and president of Alaska's The Growth Company Inc. in Anchorage. E-mail her at firstname.lastname@example.org.