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 between 15 and 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 damages 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 court and 63% in federal court.
• The cost of resolving a labor claim 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 the recent changes in federal and state laws that affect almost all organizations. In a litigious work environment that seems to increasingly favor employees, risk-minimizing organizations MUST understand the recent changes in 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 do I need to understand?

The ADA requires employers with 15 or more employees to provide 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 qualifying disabilities, unless it would result in an undue hardship on the employer.

The ADA amendments, effective January 1, 2009, overturn previous Supreme Court decisions and clarify that the ADA is intended to provide a broad scope of protection for employees. In general, it expands 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 2009 ADA Changes:

• Organizations may not consider mitigating measures such as medications or other measures that treat an illness when determining whether a person has a disability.
• Expands the definition of disability by adding to what can affect a main life activity, and now includes major bodily functions, such 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 is a disability if it substantially limits a main life activity when it is active.
• Clarifies that one of the definitions of disability – “regarded as having an impairment” – does not require that the impairment actually limit a main life activity.

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

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

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

Specific changes 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 seriously injured or ill military service member to take a combined total of 26 workweeks of unpaid leave during a single 12-week period. months.
• provides qualification requirement permit, which allows an eligible employee to take protected unpaid leave for a period of up to 12 workweeks 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 unable to care for themselves, making or updating financial and legal arrangements, spending time with military members covered on rest and recuperation leave short-term temporary during deployment, post-deployment activities, and other activities arising from a covered military member’s active duty or call to active duty.
• Give 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 for FMLA.
• Changes the time and procedure requirements for medical certifications.
• Specifies that light work does not count against the FMLA leave allowance.
• It clarifies that the employee is obliged to explain the reasons for requesting the leave if the employee cannot give 30 days notice of the need for the leave.
• Clarifies when an employer may require a fitness-for-duty 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 to apply for leave.
• Requires the employee to give notice of the need for qualifying 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 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, an Independent Contractor Exemption Certificate must be obtained 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;
• Beginning 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.
• Beginning January 1, 2008, employers must notify employees of their rights and available remedies under the Personal Records Status.
• 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 of 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 comprehensive review of recruiting, selection, training, promotion, performance appraisal, and HRIS systems to ensure compliance. All employee and manager handbooks, forms, website information, and more must be aligned with these changes.

What policy changes should we implement?

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

What changes in 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 fill essential job functions including minimum physical requirements to perform each EJF, including fitness for work certifications
• Train managers on new military licenses and other regulatory changes
• Keep track of dates of notification and use of FMLA leave
• Make sure your managers have the proper training to recognize problem situations and follow existing procedures
• Vigorously investigate all notices of concern
• Document every 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 with knowledge of employment law can help you identify how to reduce the overall costs of your program and dramatically improve results.