The new year is a time for reflection and resolution. In thinking of employment disputes that could have been avoided, should have been less expensive to resolve, or would have involved substantially less risk if only a fact or two had been different. I wish that employers aspiring to a peaceful and productive new year would:
1. Train All New And Existing Employees About Their EEO And Anti-Harassment Policy
Managers and employees should be trained about the behavior their employer prohibits under its EEO and Anti-Harassment Policy, as well as how to raise a claim through the employer's internal complaint procedures. While many employers already have trained managers and supervisors, which is essential, many have stopped there. Training rank and file employees about what conduct is prohibited and how to respond to prohibited conduct can significantly reduce legal claims in two ways: First, hostile environment claims can result from the conduct of co-employees as well as management. Providing employee training reduces the likelihood that inappropriate co-employee conduct will be engaged in or tolerated at a level that can create a hostile environment. Second, in the event that inappropriate conduct takes place, employees who are offended will be substantially more likely to use the employer's complaint procedure, thereby permitting the employer to remedy the situation and avoid a claim being filed with a government agency or in court.
To be sure,, there will always be some employees who are trained and still do not avail themselves of their employer's claims procedure before raising sexual or other harassment claims. But having conducted training will greatly increase the likelihood that such an employee's claim will be dismissed on summary judgment under the affirmative defense recognized by the Supreme Court in Farragher v. City of Boca Raton and Burlington Industries v. Ellerth. Where the alleged harassment does not culminate in an adverse employment decision, the employer may avoid liability by showing that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.
The importance of this defense was significantly increased by the Supreme Court's decision this past year in Pennsylvania State Police v. Suders, holding that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay. This means, for example that if an employee quits in response to a sexually hostile environment (a typical case) the Farragher/Ellerth defense is available, so long as there has been no demotion or other official employer-sanctioned adverse action. In other words, under these circumstances, the constructive discharge can not be used as an adverse employment decision to render the Farragher/Ellerth defense inapplicable and to avoid summary judgment.
The training should be documented and if it is to be conducted on a regular basis, can include a certification by the employee that he or she has not been subject to any policy violations since the last training.
2. Provide For Mandatory Arbitration Of Claims
With well publicized reports that approximately 97% of civil cases do not go to trial, an increasing number of employers are recognizing that court litigation is not the most efficient method for resolving employment disputes. While mandatory arbitration is not necessarily the right approach for every employer, for many employers eager to reduce their expenses and time spent on litigation, arbitration may be a welcome alternative. This is particularly true for employers who (1) settle cases they would otherwise fight because the cost of litigation is too high, and/or (2) know they are likely to settle many cases and wish to keep their legal fees to a minimum before settlement is reached.
When structuring an arbitration program, the following points should be kept in mind:
As highlighted by the points above, it is important to ensure that the document(s) requiring arbitration are carefully crafted to ensure that the obligation will be enforceable and consistent with the employer's legitimate business needs.
3. Enter Into Agreements With Employees To Protect Their Business
Many employers do not consider the important protections they may obtain through agreements with their employees. For example, if you employ managers, sales or technical employees who have the ability to take your customers and key employees to a competitor or who could start a new business to compete themselves, your company needs protection. Agreements should also address issues including use of confidential information and ownership of intellectual property created by your employees.
Covenants against competition, agreements not to solicit customers and agreements not to solicit employees all may be effective tools for protecting your business. If employees possess confidential information or business relationships they obtained while in your employ that would benefit a competitor, these agreements may be needed. Typically, consideration for such agreements can consist of the acceptance of new employment and in some states, such as New Jersey, the continuation of employment. Where additional consideration is necessary either for enforceability or to induce employees to sign, consider offering severance pay in the event of termination by the employer without cause. Other possible forms of consideration include bonus eligibility, additional benefits and stock options.
The following are examples of additional protections to consider:
4. Coach Supervisors To Avoid Retaliation Claims By Actively Managing Performance Issues
Perhaps the most serious consequence of not addressing employee performance deficiencies in a timely manner is the retaliation claims that may result. Here is one scenario: An employee's performance fails to meet expectations but is evaluated as satisfactory. The employee later raises a discrimination claim as a result of being given undesirable assignments from the supervisor. When the employee finally receives an unsatisfactory evaluation (or is demoted or fired) for performing in the same manner that had been evaluated as satisfactory before the charge was filed, the employee, who was not a victim of discrimination, now has a cognizable retaliation claim.
The Supreme Court has held in Clark County School District v. Breeden that employers are not required to suspend previously planned or contemplated employment actions upon receiving a discrimination complaint. Accordingly, supervisors should be coached to both (a) promptly address and document performance deficiencies; and (b) clearly communicate and document the disciplinary action that will follow (e.g., termination) if performance does not rise to an acceptable level by a stated time and remain at that level. By establishing that the deficiency is perceived before the claim is raised, the retaliation claim may be avoided. And if a discrimination claim does follow, the employer may have a reasonable chance of prevailing on summary judgment by showing that the allegedly retaliatory conduct was "in contemplation" before the claim was raised.
Jonathan D. Wetchler is an employment lawyer with over 20 years of experience exclusively in the area of employment counseling and litigation, Mr. Wetchler counsels clients concerning all aspects of employment law and has successfully handled virtually every type of employment litigation.