HR Can Play Crucial Role In Minimizing Exposure to Lawsuits

With an emphasis on practical strategies to improve productivity and performance, and limit potential liabilities, Bulletin to Management™ concisely analyzes new developments in employment and human resources management.

LAS VEGAS—Employers face increasing litigation risks on many fronts, but “holistic” HR policies, consistent training, and good recordkeeping can minimize exposure, attorney Shanti Atkins said June 28 at the Society for Human Resource Management's annual conference.

Atkins, president and chief executive officer of ELT, a firm specializing in ethics and compliance training, said that retaliation cases are a particular concern. “Do you think your managers know that retaliation is the No. 1 discrimination charge?” she asked.

Manager Training Needed

Atkins said that managers need to be trained, among other things, in handling employee complaints and about the company's absolute prohibition against retaliation.

“I have seen many policies where retaliation is tacked on at the end,” she said. “But it needs to be central.”

The attorney also emphasized that while sexual harassment policies need to be in order, harassment for any reason needs to be covered in “holistic” policies.

“In my world, sex gets a lot of attention, … sometimes to the exclusion of everything else,” Atkins said. Harassment based on race, national origin, religion, and disability needs to get the same treatment, she said.

Atkins noted that for employers in California, 2011 is a “mandatory retrain year” in the area of harassment. But employers with employees in multiple states should not train just in California, she said.

Atkins reminded conference attendees that an employer trying to establish an affirmative defense to charges—by showing it had policies and procedures in place to prevent the illegal action—would look bad if it trained only in some of the states where it had employees.

“In my world, sex gets a lot of attention, … sometimes to the exclusion of everything else,” Atkins said. Harassment based on race, national origin, religion, and disability needs to get the same treatment, she said.

“If I'm a plaintiffs' lawyer, I might tell the jury, ‘This company cares about training in California but not in Massachusetts, so let's send this company a message,” she said.

“Consistency is the golden rule of HR,” Atkins said, reminding employers that even if their state does not specifically require training, “under federal law everyone is supposed to be doing periodic harassment training.”

Sexual Orientation, Gender Identity

Atkins said another major area of concern and one requiring some “delicacy” is the area of sexual orientation and gender identity. Because of the confusion and strong emotions often seen about these areas, she underscored, employers will need to train all employees, not just managers.

Atkins said many states have or are developing protections for these categories but that she is also certain the federal Employee Nondiscrimination Act—protecting employees from discrimination based on sexual orientation and gender identity—will become law in the foreseeable future.

“Mark my words, we will have ENDA,” she said.

Wage and Hour Concerns

Atkins, who calls herself “a reformed plaintiffs' attorney,” reminded employers that wage and hour is a fertile field for class actions, where penalties are high and many employers are vulnerable because they do not have the proper procedures in place.

Of the 4,152 employment class actions filed in federal or state court in 2010, she said, 91 percent were wage-and-hour-related.

“This is the class action du jour,” Atkins said, and is likely to continue to increase in frequency.

And the burden of proof in a wage and hour case is on the employer to defend with paperwork, she added.

The Department of Labor's “Plan, Prevent, and Protect Initiative” encourages employers to “find and fix” violations before the investigators arrive.

“Get your compliance hats on and employment shields up,” Atkins said. Policies should be “clear and irrefutable,” she said.

Most employees and managers do not know or understand the basic rules, so make sure they do through consistent training, she advised.

Atkins added, “Policies are not enough; they must be brought to life through effective training.”

By Cathleen O'Connor Schoultz