7 Ways Employers Can Protect Their Ass(ets)

As originally published by ALM’s “Law.Com,” found here.

From the Experts: 7 Ways Employers Can Protect Their Ass(ets)

Some things you need to know about labor law in 2012.
A list of seven action items for employers to help minimize exposure to labor and employment law litigation.

We’re in the first quarter of 2012, and the government and plaintiffs’ lawyers are continuing their assaults on businesses. Perhaps the biggest job growth this year will be in the employment of defense counsel. Here are seven areas where employers already are—or are likely to be—challenged in 2012 and recommendations for minimizing exposure to such attacks.


The Genetic Information Non-Discrimination Act generally prohibits employers from asking employees about genetic information. You may be tempted to skip this section because most of your managers don’t start Monday mornings by asking: “How was your weekend, and do you have any genetic information that you would like to share with me?”

Yet, under GINA’s regulations, our managers may be doing just that. More specifically, the regulations make clear that there are some very particular dangers regarding an employee’s genetic information. When you ask for medical information, if you do not tell the employee’s doctor not to disclose the genetic information to you, and if you then get genetic information, it is as bad as if you had actually asked for it.

The regulations include a “safe harbor” disclaimer that is recommended be included with all requests for medical information. If you include the disclaimer and you receive genetic information, you still cannot use it, but it will not be treated as though you had asked for it.

Action Item: Review your policies and practices to make sure that you include a GINA disclaimer whenever your HR manager asks for medical information to support a leave under the FMLA, an accommodation under the ADA, etc.

Also, make sure managers are trained in what to do and not do if an employee discloses that a family member has a medical condition. If an employee tells her supervisor that her mother has breast cancer and so did her grandmother, the supervisor may be tempted to encourage the employee to be screened.

But if the employee later is subject to an adverse employment action, the employee may claim it was because of the supervisor’s concern about her genetic likelihood of getting cancer. Sad but true, like the ADA, GINA can make kindness risky.

Tell the employee she is in your thoughts and prayers. Even offer to help. But stay away from medical recommendations.

2. ADA and Leaves of Absence

The EEOC loves consistency, except when it doesn’t. The subject of maximum leave provisions is one of those areas where it doesn’t.

To maximize consistency, many employers have policies that provide that employment will terminate automatically if an employee is absent a certain number of weeks, for example, 26 weeks. The EEOC has taken the position that these automatic termination provisions violate the ADA and has sued numerous employers—and includes on its website the multimillion dollar settlements it has extracted from employers.

Action Item: Revise your policies to make clear that an employee’s employment will not terminate automatically when the “flexible maximum leave” is reached. Rather, before the maximum is reached, the employer will reach out to the employee to determine whether there are any accommodations that would enable the employee to return to work or whether the employee needs additional leave, and whether such additional leave may be a reasonable accommodation. Develop a protocol to implement the policy.

3. FLSA—Remote Work

The FLSA was enacted in 1938 when people worked at work. We now work everywhere—all the time—and the question now becomes: how does the FLSA apply to work outside of the workplace?

Last year, the U.S. Department of Labor developed a smartphone application so that employees could keep track of their own time. The DOL also created hard copy “exhibits” for employees to track their time. In taking these steps, the DOL has stated that employees must be paid for any work they do, regardless of where they do it.

Some have suggested that the DOL is encouraging claims rather than adjudicating them. Whatever the intent, the effect will be to add wind to the tsunami of wage and hour claims. The number of collective actions has increased by more than 400 percent since the 1990s.

Action Item: Focus on off-duty work in terms of your wage and hour practices. Make it clear that non-exempt employees cannot do work remotely, absent prior permission from their supervisor. For example, if BlackBerries or other PDAs are given to non-exempt employees, tell them when they can use them, how to record their time, and pay them for such time.

4. Like Me Bias

We all know that there is not only conscious bias but also unconscious bias. Of course, the unconscious bias exists only at your competitors but never in your own organization!

The EEOC and private plaintiffs’ lawyers are attacking subjective hiring practices where hiring managers hire or promote someone who is like them—in other words, “like me” bias.

When white men look in a mirror, they don’t see a woman of color. Of course, the converse is equally true. So, if we hire and promote our mirror images, we may be engaging in unlawful bias, albeit often unconsciously. At a minimum, we may be excluding talent to our detriment.

Action Item: Have a diverse team make your key hiring decisions. It would be hard to argue that a diverse team hired its mirror image. Plus, diverse teams tend to come up with better decisions by including different perspectives.

Also, be careful of “cultural fit,” which may be seen as a proxy for bias against someone who differs from the group. Where cultural fit is an issue, focus on behaviors exhibited or expectations expressed that were problematic. If you cannot explain them, you have a problem. And if the explanation sounds stereotypical, you have a problem.

5. Social Media and Disparagement

Before the advent of social media, when employees were unhappy, they used to talk with their co-workers. Now, they may blog, tweet, or otherwise send a postcard to the world fulminating about their employer. The initial response may be to fire the employee. Be careful: the posting may be protected.

The National Labor Relations Board is beyond protective of employees who complain about the terms and conditions of their employment by way of social media. While the National Labor Relations Act protects only “concerted activity,” the NLRB has defined concerted activity so broadly that even narcissists who complain only about their individual treatment may be protected in some circumstances. And, remember, the NLRA applies to non-union employers too.

“Disparaging” postings may be protected by other laws, too. For example, allegations of unlawful bias or other unlawful activity may be protected by federal, state, and local non-discrimination and whistleblower laws. Plus, some states have off-duty conduct statutes that may provide further protection.

Action Item: Review your social media policy and minimize the risk that it will be deemed to prohibit protected activity. Prohibit supervisors from taking adverse action based on a social media posting without checking with HR/counsel first so you can assess whether the posting may be protected. And don’t forget the practical reality that terminating an angry blogger only gives him/her more time to post crazed vituperations about you!

6. Performance Management Guidelines

To ensure due process, many employers have progressive discipline policies. I am a believer in progressive discipline, but there are risks in spelling out in too much detail what you will do and how you will do it. If you don’t follow the policy and/or procedure, the employee will argue this is evidence of bias. Don’t let your best legal defense in these circumstances be the lame: “We never follow our policy and/or procedures anyway, so our failure here is not bias“ That’s hardly the sort of defense you want to assert if you want to be seen as a great place to work.

Assume that, over the next year and beyond, we will continue to expect more and have less time and tolerance for those who don’t meet our higher expectations. In the 70’s, Spiral Staircase sang, “I love you more today than yesterday, but not as much as tomorrow.” The update today could be, “I expect more from you than yesterday, but not as much as tomorrow.”

Action Item: Make sure you reserve the right to skip steps in any policy you may have. Consider listing possible steps without suggesting there is a progression from one to the next.

7. Retaliation

The U.S. Supreme Court has leaned toward employers in every area except one: retaliation. In retaliation cases, employees have won every case before the high court. In 2010, retaliation charges were the most common charge filed with the EEOC (for the first time). The same was true in 2011, and we can expect the same in 2012 again.

Sometimes retaliation claims happen because we wait too long to act. An employee knows he/she is in trouble. Before the manager approaches the employee, the employee consults with a lawyer. Then, the employee approaches his/her manager: “I know my performance is not what it should be. That’s because I am clinically depressed, ADA style, because you have been discriminating against me, Title VII style.” The retaliation claim has been set up if and when adverse action follows.

Action Item: Don’t put off the inevitable. When you have made a decision to take adverse action, do not delay. Delay creates a window of opportunity for a protected complaint. Develop a robust retaliation policy that tracks the broad holdings of the Supreme Court’s decisions—for example, prohibited retaliation is not limited to tangible employment actions, but also may apply to other material terms and conditions of employment. Emphasize in training that the fact that a complaint lacks legal merit is almost never a defense against retaliation claims.

And treat retaliation as seriously as discrimination and harassment, which we should treat very seriously. Remember, even if the regulators have taken certain legal rights to the extreme, discrimination, harassment, and retaliation are still wrong. Very, very wrong.

The enormous regulation and extreme litigation result in employers spending too much time and money on lawyers. While legal fees are unavoidable, they can be minimized with careful and proactive planning so that you can achieve your legitimate business goal with less risk.