With the steady increase in workplace legal disputes, Employment Practices Liability (EPL) Insurance has become a business necessity. Without it, many employers face defense costs and settlement demands that could easily put them out of business, even if the employee’s allegations are completely baseless. Nevertheless, many small to mid-sized employers often decline this important protection because they treat their employees “like family” and would NEVER intentionally subject them to discrimination, harassment, retaliation, or the growing panoply of regulatory violations. Particularly with the passage of HB-1136 in Colorado last term, however, EPL Insurance provides essential protection from the very real risk that a workplace people problem will someday become a legal one.
EEO Legal Solutions is delighted to team up with business insurance expert Allan Morton of Morton Insurance and Risk Management for this in-depth look at the realities of employment litigation, the benefits of EPL insurance, and the key considerations when purchasing this protection—e.g., typical coverages and exclusions, choice of counsel, deductibles, reporting “claims,” just to name a few. We have applied for One (1) General credit through www.hrci.org.
On June 24, 2013, SCOTUS handed employers a major victory that will curb the rising tide of RETALIATION claims and allow employers to manage performance without fear of them. Just last year, the EEOC took in more retaliation charges than any other kind. Before this recent SCOTUS decision, retaliation claims were easy (perhaps too easy), often just boiling down to the amount of TIME between a “protected activity” and an “adverse employment action.” As Justice Kennedy observed, however, this lenient causation standard could prompt an employee to raise discrimination/harassment allegations in response to discipline or performance counseling as a perceived immunity from discharge; no doubt, discrimination and harassment allegations often stop employers in their performance management tracks. This webinar will discuss the implications of SCOTUS’ Nassar decision on everyday personnel and performance management decisions, focusing on performance rehabilitation practices that get results and reduce employers’ legal risks.
In workplace discrimination and harassment litigation, successful litigation outcomes often start with an effective in-house investigation. By contrast, weak, perfunctory, and overly scripted investigations can squander opportunities to accurately asses risk and to gather critical evidence supportive of common defense themes. When investigating discrimination, harassment, or retaliation allegations, investigators must not only understand WHAT to look for, but also HOW to structure fact-gathering and interviews in a manner that facilitates the flow of reliable information. Effective investigations require, therefore, (1) a fund of knowledge about what facts are legally relevant; and perhaps even more important (2) tools and tricks for establishing rapport, phrasing critical questions, ensuring mutual understanding, detecting inconsistency and mendacity, and preparing investigation reports.
EEO Legal Solutions’ founder Merrily Archer, Esq., M.S.W. will draw on lessons from both the social work and litigation fields to share effective practices for conducting workplace discrimination and harassment investigations. As Merrily will explain, techniques borrowed from counseling psychology can prove invaluable in workplace investigations, often yielding legally relevant and reliable information upon which successful litigation outcomes depend.
Please find the link to this webinar recording below:
The Accommodation Conundrum: Bending Over Backwards . . .
While Enforcing Workplace Standards
With the Americans with Disabilities Act (ADA) covering more workers than ever before, careful reasonable accommodation management can mean the difference between disabled operations and a fully functioning workplace. The EEOC and employee-side trial attorneys recently have taken expansive views of the reasonable accommodation obligation, insisting upon accommodations that (a) fundamentally alter or remove essential job functions; (b) significantly impair employer operations; and (c) pose veritable undue hardships. EEO Legal Solutions successfully defended EEOC v. Picture People at the trial level and on appeal to the 10th Circuit, where the EEOC argued that this retail employer must allow a deaf/mute person to substitute written notes and gestures for oral conversation used sales dialogs, as a reasonable accommodation. Read more here: http://www.bizjournals.com/denver/print-edition/2012/07/20/is-eeoc-too-aggressive.html. This litigation provides helpful insights into how the EEOC envisions the reasonable accommodation obligation and how employers can successfully fight back. We will offer effective strategies for managing the reasonable accommodation process, including practical guidance about how to establish core defenses like “fundamental alteration,” “undue hardship” and “elimination of essential function.”
EEO Legal Solutions will offer a FREE webinar on May 14, 2013 at 9:00 a.m. to explain HB-1136’s changes and to offer practical tips for preparing your workplaces for the real that risks this legislation brings.
On May 6, 2013, Colorado Governor Hickenlooper signed into law HB-1136, which ratchets up remedies available for employees alleging discrimination or harassment under Colorado law. Like HB-1136’s proponents, Governor Hickenlooper largely ignored the pleas of Colorado’s employers, namely, that they are STUCK between the increasing incidence and risk of discrimination allegations on the one side, and the ever-increasing cost of defense on the other. In short, HB-1136 benefits Colorado’s lawyers, not its employers.
HB-1136 takes effect on January 1, 2015, which gives Colorado’s employers over 18 months to build the preventive infrastructure that will help protect them from discrimination claims and enable them fully to take advantage of employer defenses. Employers, however, must get started right away to mitigate the impact of this legislation. EEO Legal Solutions will offer a FREE webinar on Tuesday, May 14, 2013 to address the specific changes HB-1136 brings and how Colorado’s employers can protect their bottomlines. Although this webinar is FREE, registration is required; please follow the link below.
For today’s in-house employment counsel and HR professionals, understanding how to detect “adverse impact” in the hiring and RIF selection process has become an ESSENTIAL SKILL. Since 2006, the EEOC has consistently reinforced its enforcement focus on neutral employment policies and practices that may adversely impact protected groups, such as hiring criteria, RFI decisions, and pre-employment tests. The EEOC’s Strategic Enforcement Plan for 2012-2016 also emphasizes these systemic, adverse impact cases, which often involve lengthy investigations and likely prosecution. For that reason, employers must audit their hiring and RIF decision-making criteria to determine whether they cause adverse impact based on race, gender, national origin, age, and even disability.
EEO Legal Solutions is delighted to team up with Biddle Consulting Group (BCGi) for this innovative, hands-on webinar. BCGi’s Patrick Nooren, PhD– a leading national authority on adverse impact testing, test validation, and compensation discrimination—will guide you through two demonstrations on how to use BCGi’s free online adverse impact calculator (www.adverseimpact.com) to detect adverse impact in hiring and the RIF selection process. Together, we’ll demystify complicated concepts like “systemic discrimination” and “adverse impact,” and show you how easy it is to ensure that your hiring and RIF selection processes remain legally compliant in the systemic era.
The HR Certification Institute has awarded one (1) General HRCI credit for this webinar.
Because of prior overwhelming interest in this program, we will offer it at two different times on Friday, April 12, 2013. Please register for one of the programs below:
12:00 p.m. (MDT) to 1:00 p.m. (MDT): https://attendee.gotowebinar.com/register/4416197597106846976
1:30 p.m. (MDT) to 2:30 p.m. (MDT):
In many cases, but certainly not always, EEOC mediation makes sense: it can enable employers to resolve risky personnel decisions early in the process, before attorneys’ fees mushroom. This lively webinar will offer participants an effective strategy for handling EEOC mediations, particularly without overreliance on outside employment counsel. With “coaching” and “lifelines,” HR professionals and in-house counsel can realize incredible cost savings by managing their own EEOC mediations. We will discuss certain benefits of participating in the EEOC’s mediation program, as well as common pitfalls and snags. Ultimately, participants will gain insight into the EEOC’s mediation process as a whole and a straightforward approach for making them work in their favor.
Here is the link to the February 20, 2013 recording of this webinar.
What makes an EEOC Position Statement “effective”–i.e., sufficiently convincing for an EEOC Investigator to quickly conclude that the employer treated the complaining employee fairly and then, to move on to the next EEOC charge in an ever-increasing pile? Ultimately, simply convincing the EEOC to leave you alone should be every employer’s goal.
At BIGLAW, however, EEOC Position Statements can too often resemble massive $15,000 briefs, rife with exhibits and extensive legal citations that add cost without value. In fact, to avoid expensive “solutions” to more minor EEOC problems, employers must understand the EEOC’s Priority Charge Handling Procedures (PCHP), its Strategic Enforcement Plan, and its drive to reduce its inventory of pending charges. Armed with this understanding, employers can realize incredible cost savings by handling the EEOC administrative process themselves, instead of farming every EEOC charge out to outside counsel. After all, referring every EEOC matter to outside counsel may be a “process,” it is certainly not a cost-effective STRATEGY.
This webinar will offer participants an effective “storytelling” model for drafting EEOC Position Statements, based upon the common themes that arise in employment discrimination litigation. This model will also teach HR practitioners how to marshal evidence around these common themes, the first step in preparing an extremely effective Position Statement without reliance on outside counsel.
With the EEOC’s increasing emphasis on large, class action systemic investigations and prosecutions, employers must sort out which EEOC charges pose real risk and which ones simply do not, to avoid expensive BIGLAW “solutions” to more minor workplace people problems. In fact, the EEOC has triaged all incoming charges since its 1995 adoption of Priority Charge Handling Procedures (PCHP), which the EEOC recently reinforced in its 2012-2016 Strategic Plan. Understanding PCHP (and by extension, the severity of the risk) will help employers strategically decide when to refer EEOC matters to outside employment counsel and when to realize the incredible cost savings of DIY position statement preparation and ADR participation.
An application is pending for 1 Strategic credit through the Human Resources Certification Institute, www.hrci.org.
EEO Legal Solutions’ Merrily Archer will present Aggressive EEOC Enforcement: Weathering the Storm for the Legal Professional Development Group of the Colorado HR Association. This fun, interactive seminar will explore recent cases in which federal courts have smacked down, and even sanctioned, the EEOC for aggressive enforcement tactics and legal interpretations. This seminar will also offer practical guidance about when, and how, to fight back.