Tuesday, March 6, 2012

I'm Liable for THAT?.....Employee Retaliation Claims

Last week I started talking about Employment Practices Liability insurance and why every business should look into it.  Now I'd like to take it a little further  to define what types of employment practices can get us into trouble as employers.

I think that most of us have heard of sexual harassment, workplace violence, discrimination based on race, religion, age, national origin, etc.  I wanted to give you some data on what types of charges are filed with the EEOC (Equal Employment Opportunity Commission).

Race                      36.2%                 Sex           31.5%                Retaliation          27.1%
National Origin       9.8%                 Religion        2.4%

At a recent seminar on employment law, a lengthy discussion was conducted in regard to retaliation claims.  Retaliation claims are filed when an adverse employment action is alleged to have happened in retaliation for the employee filing a complaint or an application for a program like workers compensation, disability, maternity leave, etc.  It is viewed by the employee that because they filed something (i.e. workers compensation), they were fired.  

These types of claims are on the rise and courts are opening the door wider with some current rulings.  It is becoming easier for employees to file these claims and harder for employers to defend against them.  An example of retaliation in a child care program could be a situation where an employee is injured on the job.  You hire a substitute to cover the shift and end up with a substitute with better qualifications than the original employee.  You lay off the other employee and later hire the substitute.  This would be grounds for a retaliation claim.  It can be perceived that you retaliated against the employee for filing for workers compensation by laying them off and hiring someone else.  

Having solid employment practices, policies and procedures is critically important to your business.  You have to make sure you have a concrete hiring process, employment policies, evaluation processes, firing/termination processes, etc.  We also have an attorney whom we can call with specific questions that arise on a regular basis.  Our third layer of protection is our EPL policy.  We try very hard to follow all the rules and regulations, do what is fair, treat everyone as we would want to be treated, etc. etc.  But it is impossible to protect yourself or your business all of the time from allegations (true or not).  Choosing the right insurance is a very important  business decision.

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