Employee lawsuits are distracting, costly and mostly avoidable. Jury Verdict Investigation The 2007 edition of “Employment Practices Liability, Jury Award Trends, and Statistics” highlights some employment statistics and trends you should know about:

Employee claims have increased 400% in the last 20 years to the current level of 6.5 claims per 1,000 employees per year

• The most common targets of federal discrimination lawsuits are private employers with 15-100 employees (41.5%); in second place are private companies with more than 500 employees (23.9%); and third are private companies with between 100 and 500 employees (18%)
• In any employment case filed in federal court, there is a 16% chance that the award will exceed $1 million and a 67% chance that it will exceed $100,000; attorney fees are not included
• The median compensatory award in all federal court employment cases was $493,534, reflecting a 45% increase since 2000; a compensatory award does not include punitive damages or attorneys’ fees
• In state courts, compensatory awards increased 39%, while wrongful termination claims increased 260%.
• If an employment lawsuit goes to trial, plaintiffs are more likely to win 67% of cases in state courts and 63% in federal courts.
• The cost of resolving a labor lawsuit has increased significantly in the last 5 years, from an average of $130,476 in 2001 to $310,845 in 2006

These general statistics are sobering and cause for concern for ALL organizations. Added to this are recent changes in federal and state laws that affect almost all organizations. In a contentious work environment that seems to increasingly favor employees, organizations that minimize risk SHOULD understand recent changes to the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) regulations. . Employers must take immediate steps to ensure they comply with the new laws to protect themselves from future liability.

What changes to the Americans with Disabilities Act (ADA) of 2009 should I understand?

The ADA requires employers with 15 or more employees to give qualified individuals with disabilities an equal opportunity to benefit from employment-related opportunities. Prohibits discrimination in recruiting, hiring, promotions, training, pay, social activities, and other employment privileges. In addition, it requires employers to make reasonable accommodation to the known physical or mental limitations of persons with qualified disabilities, unless it would result in an undue hardship to the employer.

The ADA amendments, effective January 1, 2009, reverse prior Supreme Court decisions and clarify that the ADA is intended to provide a broad scope of protection for employees. In general, it extends existing definitions to more employees. For many employers, existing policies and procedures may no longer be valid or useful in determining human resource practices.

Specific changes to the 2009 ADA:

• Organizations may not consider mitigating measures such as medications or other measures that treat a disease when determining whether a person has a disability.
• Expands the definition of disability by adding to what can affect a major life activityand now includes major bodily functionssuch as immune system functions, normal cell growth, digestive, intestinal, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
• Clarifies that an impediment that is episodic or in remission It is a disability if it substantially limits a major life activity when it is active.
• Clarifies that one of the definitions of disability – “is considered to have an impairment” – does not require that the impairment actually limits a major life activity.

What changes to the Family Medical Leave Act (FMLA) of 2009 should I understand?

The FMLA entitles eligible employees to up to 12 weeks of unpaid job-protected leave, per 12-month period for employers that employ 50 or more employees. Leave may be taken for birth or placement for adoption or foster care of a child; the serious health condition of the spouse, son, daughter or parent of the employee; or the serious health condition of the employee that renders the employee unable to perform the functions of the employee’s job.

The new regulations, effective January 16, 2009, have created new categories of permitsmilitary caregiver license and permit qualification requirement, and has reviewed and clarified existing regulations. Especially for organizations with active duty or reserve military personnel, or with active duty or reserve military families, these changes require modifications to procedures/leave forms, training/communications and policies, current practices of human resources related to employee leave.

Changes specific to the 2009 FMLA:

• provides military Caregiver License, which allows an employee who is the spouse, son, daughter, parent, or next of kin of a service member with a serious injury or illness to take a combined total of 26 work weeks of unpaid leave during a single 12-week period months.
• provides permit qualification requirement, which allows an eligible employee to take protected unpaid leave for a period of up to 12 work weeks for the employee’s spouse, child, or parent who is on active duty or called to active duty in support of a contingency operation. This leave includes short notice deployment, military events and related activities, childcare and school activities for those who are unable to care for themselves, making or updating financial and legal arrangements, spending time with military members covered on R&R leave short-term temporary during deployment, post-deployment activities, and other activities arising out of the active duty or call to active duty of a covered military member.
• Gives employers 5 days to provide a Eligibility Notice after the employee’s request for FMLA leave or knowledge that an employee’s leave may qualify FMLA.
• Changes the time requirements and procedures for medical certifications.
• Specifies that light duty does not count against the FMLA leave allowance.
• Clarifies that the employee is required to explain the reasons for requesting leave if the employee is unable to provide 30 days notice of the need for leave.
• Clarifies when an employer can require a fitness-to-work certification.
• Allows employers to delay or deny FMLA leave to an employee who unreasonably fails to comply with the employer’s notice and procedural requirements for requesting leave.
• Requires the employee to give notice of the need for qualified exigency leave as soon as possible, regardless of how far in advance such leave is anticipated.

What other changes do I need to understand?

• In addition to the ADA and FMLA changes, other laws and changes may require modifications to existing human resources policies, procedures, and practices.
• Effective January 1, 2009, to have independent contractor status, you must obtain an Independent Contractor Exemption Certificate from the Minnesota Department of Labor and Industry. Employers in some industries will be required to pay workers’ compensation, unemployment insurance, and other benefits to anyone who does not have a Certificate.
• Beginning February 2, 2009, all employers will be required to use a new I-9 form;
• Starting in November 2009, the Genetic Information Nondiscrimination Act of 2008 will protect Americans from being treated unfairly by employers and health insurers because of differences in their DNA that can affect their health.
• Effective January 1, 2008, employers must notify employees of their rights and available remedies under the Status of personal records.
• The Minnesota Supreme Court in 2008 clarified that the Minnesota wage statute requires employers to pay vacation pay to leaving employees only if there is a promise to pay. There is no longer an automatic right to an increase in vacation pay when employment ends.

Are your documented policies, procedures and practices aligned with all the 2009 changes?

What should employers do?

Given the many changes, employers must act quickly to align policies, procedures, and practices with these changes. At a minimum, all Minnesota employers must conduct a thorough review of their recruiting, selection, training, promotion, performance appraisal, and HRIS systems to ensure compliance. All employee and manager handbooks, forms, website information, and more must align with these changes.

What policy changes should we implement?

• Review and revise all policies to reflect changes in ADA, FMLA, and other laws.

What changes to the procedures/forms should we implement?

• Make sure your organization’s procedures and forms reflect recent changes
• Establish procedures for responding to requests for ADA accommodations
• Revised FMLA notice forms. Notification forms are available on the Department of Labor website: http://www.dol.gov/whd/index.htm
• Revise medical certification forms to remove license type request and allow additional information needed
• Review the employee handbook and policies regarding FMLA leave; establish specific procedures for employees to report leave

What practice changes should we implement?

• Train managers on how to determine when reasonable accommodations may be necessary
• Document all interactive discussions and decisions about ADA accommodations
• Train managers to handle situations that could be related to a disability, particularly when employees believe they are considered disabled.
• Prepare job descriptions for each position they provide essential job functions including minimum physical requirements to take each EJF, including fitness-for-work certifications
• Train managers on new military licenses and other regulatory changes
• Keep track of FMLA leave notification and use dates
• Make sure your managers have the proper training to recognize problem situations and follow existing procedures
• Aggressively investigate all reports of concern
• Document each step of the FMLA process AND all employee interactions that may fall under the ADA or FMLA laws

What else can we do?

For many organizations, the next step is to seek professional help. A consulting firm knowledgeable in employment law can help you identify how to reduce the overall costs of your program and dramatically improve results.