Lawsuit Frequency

Steven Cesare, Ph.D.

A conscientious business owner from Wisconsin called me the other day to talk about organizing pre-work for his January 2024 strategic planning meeting. Yes, “2024.” I told you he was conscientious. I wonder what other qualities you have in common with this business owner? 😉

Naturally, one of his anticipated key human resources initiatives is legal compliance. To that end, he and I spent considerable, devoted time crafting a well-rounded, and hopefully, successful administrative panoply capable of defeating inevitable lawsuits, if not warding them off completely. We can dream, can’t we?

Okay, back to the real world of human resources.

We reviewed, reoriented, and revised the key elements of his defensive human resources posture to ensure their purpose, placement, and value in achieving the goal of being litigation free in 2024. First, his Employment Practices Liability Insurance policy was assessed for efficacy. He has the basic EPLI package: $1,000,000 in coverage, 15% retention, $250,000 for cyber coverage, with the increasingly-important Wage and Hour Add-on. Next, he and his management team are in the process of assessing their administrative, accounting, and operational policies and procedures to verify they are succinct, applicable, and goal oriented. By extension to that point, he and I talked at length and in detail about the annual rewriting of his company’s Employee Handbook. A thorough review of new federal, state, and local laws will be conducted in Quarter 4, to determine potential content inclusion in the 2024 Employee Handbook.

Aside from legal content, we also hypothesized about reinforcing key procedural elements pertinent to compliance. Perennially at the top of this list is executive-level awareness (e.g., new laws, revised legal accountabilities, standing item on all executive-team meeting agendas). An immediate derivative from that premise is managerial training. Standard managerial training includes: attendance in a one-day EEO instructor-led workshop which typically emphasizes new legislation, serves as a refresher of legal fundamentals, and, without question, represents an affirmative defense holding managers accountable for proper administration of employment laws and practices. Other routine, annual legal training content includes: selection interviewing, performance appraisal, interpersonal skills, and basic supervisory skills (e.g., coaching, delegating, discipline). The final point we discussed was configuring the on-going communication plan to keep the managers current, engaged, and prepared throughout the next fiscal year.

As a capitalist, I interjected recent data from the EEOC, highlighting the most frequently-cited lawsuits, in the hope that such salience would clarify company focus, training content, and procedural goals. Oh, by the way, the number of EEOC charges exploded in FY 2022, jumping almost 20% compared to FY 2021, signifying the largest year-over-year percentage increase since FY 1997. In case you were wondering, employers paid more than $513 million in monetary relief for those lawsuits during the last fiscal year.

Retaliation. For the 14^th year in a row, retaliation was the most common charge alleged by employees. You read that correctly: 14 consecutive years, with no signs of slowing down. Make sure you have a strong Anti-Retaliation Policy, supplemented by pointed training.
Disability. Everyone is disabled. Get used to it; the victims have won. Accordingly, confirm your ADA Policy is current, with strong procedural training addressing the Four-step Interactive Process.
Race. Racism is serious. There is never a reason to discuss, joke, or intimate about an employee’s race. Don’t do it! An undeniably strong EEO Policy is critical, underscored by a company culture that eschews offensive comments, symbols, stereotypes, etc.
Sex. Sex discrimination includes gender, pregnancy, and sexual harassment. It means treating someone badly or denying them a benefit because they are male, female, intersex, transgender or because of their gender identity.
Religion. Religious insensitivity is real. Making fun of an employee’s religion, not being sensitive to requests for time off due to religious observances, or restricting reasonable religious attire must be attended forthrightly.

2024 will be here sooner than you think. So will the lawsuits.

Are you conscientious yet, or just conscious?

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