How to Survive the Perfect Anti-Discrimination Storm

"Historic trends and events are converging into a perfect storm that could place anti-discrimination at the center of corporate policy with an intensity unseen since passage of the Civil Rights Act in 1964", according to Dr. James Fadigan, one of the authors of the Title VII anti-discrimination provisions of the 1964 Civil Rights Act and a leading authority on equal employment opportunity.

What's causing that perfect storm? Consider these ten facts:
1. Economy: Last fall, we experienced a near-collapse of the world's economic system, and the recovery is just starting.

2. Unemployment is record-high. Millions of people have lost their jobs since the start of the year. Major employee retention strategies have failed, plants are closed, and companies filed for bankruptcy.

3. Workplace harassment and discrimination claims soared to unprecedented levels during fiscal year 2008. According to the EEOC, 82,792 charges were filed in 2007 and 95,402 in 2008, a 15% increase in just one year. Claims of age discrimination went up 29%.

4. Net Worth: Employees have seen their 401(k) and other retirement ccount balances plummet. As a result, a number of older workers will have to delay retirement, thus reducing the normal employee turnover rate, which could result in even more layoffs than otherwise would be needed. It could also lead to more age discrimination claims.5. FMLA: Families of active duty military have new FMLA rights, as of January, 2009. Employees with a son, daughter, parent, or spouse called to active duty can take time from work to handle
"qualifying exigencies" related to the call to duty, and can also take up to 6 months off to care for the service member, if he or she is injured in the line of active duty.

6. Family Leave Insurance: As of July 1, 2009, New Jersey has joined California in providing employees with paid Family Leave Insurance benefits. Washington State was supposed to begin FLI coverage in October, 2009, but deferred the start date because of the state's financial woes. More than a dozen other states are considering FLI or paid sick leave laws.

7. Easier to Sue: President Obama has already signed legislation making it easier for workers to sue for pay discrimination, and his administration has beefed up enforcement of existing labor, employment, and interviewing laws, hiring hundreds of new corporate compliance officials.8. Anti-Retaliation Protection: In January, 2009 the US Supreme Court extended federal antiretaliation protection to workers who participate in internal investigations.9. Codes of Conduct: As of the end of 2008, all federal contractors and subcontractors must have adopted codes of conduct and must train their employees on them.

10. New Laws: Congress is considering laws to: expand federal discrimination protection to gay, lesbian, bisexual and transgender employees; mandate sick pay; overhaul union organizing; index the minimum wage to the inflation rate; extend the WARN notice period to 90 days; toughen OSHA protections; remove damage caps from federal discrimination cases; and more.

What this means to you?

If you think your mid-level managers and even new managers and supervisors aren't clear about the legal risks they can create for your company every time they evaluate, re-assign, respond to employee issues, or provide performance management feedback you are probably right.

So how can your organization design and avoid a shipwreck in this perfect storm?

Make sure the captain and crew (that is, even your new managers and new supervisors) are well-trained to:

• Know the waters
• Spot employment law hazards
• Chart their business reasons for all decisions ,and
• Seek advice from navigation experts (corporate leadership, upper management, HR, Legal)

In our Managing Within the Law workshops your managers will learn to spot legal hazards and respond to them correctly in order to help to build a respectful workplace and prevent costly employee lawsuits. Don't wait until your company is sinking under a messy corporate compliance employee claim to get your managers trained on the skills and knowledge that they need.
Learn more about our wide-range of workplace compliance solutions ..

Top 3 Reasons Managers Should Take Employment Law Training

Our clients often ask us – “Why should our managers take employment law training ?” This is a very legitimate question. All corporate compliance training has associated tangible and intangible costs. The answers come down to mitigating risk, speed of execution, and performance.

A lot of people in HR or management think that it is a waste of time to teach managers the basics of employment law, because HR or management will catch their mistakes before they happen. There are a few false premises to this argument.

1. First, managers often do things that are illegal before HR/management learns about them. For example, at one of our clients with more than 30,000 employees, a manager fired an employee on the spot without consulting with HR or management. That cost the company several million dollars. What is the risk for your company?

2. Second, even if HR catches the mistake, it can set back a process for months. Let's say a manager has a poorly performing employee. The manager calls HR and is told to document the situation. If the manager doesn't know the correct way to document, he or she could spend months documenting only to find out when it comes time to terminate that the documentation is faulty. The disciplinary process must begin again. Can you afford to wait?

3. Another common problem is the manager who thinks he or she is "encouraging" a bad employee by giving good performance reviews. There is no reason for HR to think there is a problem with the reviews—until the manager comes in complaining about the employee and wanting to terminate. Would this underperformance cause a problem for your organization?

Unfortunately, we also know of many cases where managers have discouraged employees from making claims of harassment, thinking they have resolved the problem, only to have it blow up later. For all these reasons, all managers should be trained in the basics of employment law.

Four Key Concepts Keep You Out of Court

Two cases in the past month remind us that discrimination and retaliation are easy for employees to prove when managers don't document correctly.

In one case, a long-term employee claimed he was discharged because he married a woman of another race. In the other case, a long-term employee sued because he was fired after his fiancée filed an EEOC claim against the company. In both cases, the U. S. Courts of Appeals held the employees had the right to sue for discrimination or retaliation. In other words, the companies lost (the first round, anyway).

But neither company would have lost if it had documentation proving the bad performance of the
employees. Now, maybe both of these companies were guilty. But if you take management actions that adversely impact employees, and can't prove your legitimate business reasons for them, you, too, could be sued and lose.

If your company is considering anything from rescinding offer letters to layoffs to hiring freezes, legal counsel needs to be involved. Managers must call the experts in-house and document their legitimate business reasons for their decisions. If employees are treated consistently and fairly, there is little chance of a suit, and if you are sued, you'll win.


Do you recognize the Four Key Concepts above?
1. Be consistent
2. Have legitimate business reasons
3. Document
4. Call the experts


About LSA Global
Since 1995, LSA has helped organizations create and maintain competitive advantages through people. Over 85% of our business comes from repeat clients and our customer satisfaction rating is 97.5%. Our clients tell us that we are different. Our clients tell us that we save them both time and money. Our clients tell us that they appreciate access to experts across many areas


Our Leadership and Management clients report that we decrease their costs by up to 50%, while helping increase speed-to-productivity by 60% and decrease unwanted attrition by up to 40%.

Our Sales clients confirm that they have grown sales by 40%, increased units sold by 42%, increased average pricing by 12%, and closed over 50% of their pipeline.

Our Project Management clients inform us that, by regularly completing projects that meet or exceed expectations, they have become an anomaly in the world where most projects disappoint or fail.

Our clients succeed in the marketplace through increased revenue, decreased costs, and higher productivity. They maintain that our rigorous assessment, implementation, and measurement capabilities bring them tangible results. As an organization, we are fiercely devoted to supporting their success.

For more information on Corporate Compliance Training visit our main website at www.lsaglobal.com