NORTH BAY – Local attorneys confirmed federal reports last week that employee-filed lawsuits have increased with the number of unemployed in recent months, and business owners should be especially cautious when complying with labor laws, especially when implementing work force reductions.
“Almost every moment of my working day is now devoted to issues related to layoffs and reorganizations,” said Wendy Wyse, employment and labor law specialist for San Rafael-based Keegin Harrison Schoppert Smith & Karner.
“This is an area where there is a lot of room for inadvertent error. No company should make reductions without some kind of legal evaluation. ... The employer needs to be sure that the standard used to select people is neutral and could stand up in court.”
Though local experts said wage-and-hour filings continue to have a strong presence in the new cases, the number of discrimination and disability-related lawsuits is also increasing for the first time in several years. According to the most recent report by the U.S. Equal Opportunity Commission, employees filed almost 13,000 more such cases in the 2008 fiscal year than in the previous, after six straight years of declines.
“I have seen discrimination cases drop pretty significantly in the past five or six years, and I think in part because the law is working and employers are better educated. But with the economy the way it is I have seen a huge resurgence in wrongful termination-filings and discrimination,” said Cynthia Smith, partner with Coombs & Dunlap of Napa.
“[It’s] not necessarily because more discrimination is happening, but more so people are unable to find another job and maybe are disgruntled because of a layoff,” she said.
Also recently, legislators broadened the language of several disability and discrimination-related policies in favor of employee protections, including changes to the Americans with Disabilities Act and to medical leave rules. Also, leaders signed the Lilly Ledbetter Fair Pay Act earlier this year, effectively extending the previous six-month statute of limitations. New ADA amendments went into affect Jan. 1 that extend the conditions under which someone can be considered disabled. The work impairments can run the gamut from migraines and chronic pain to clinical depression.
The North Bay counsels also said in times of increased stress and fear for one’s job, employees – particularly those with performance or discipline issues – might “invent” a disability so that it is more difficult to terminate them without it appearing discriminatory.
“One thing I am advising my clients is if you feel there is a performance-based reason to let an employee go, it should be done immediately so there’s not time for a new set of circumstances to rise up. I have seen it happen over and over,” Ms. Wyse said.
“Employers have a hard time, in particular, dealing with mental disabilities because they often lead to work behavior that is similar to inattentiveness or underperformance.”
Gaw Van Male Partner Teresa Cunningham said the best defense is rigorous documentation. She recommended that employee handbooks have language detailing job descriptions and the process and policies related to reasonable accommodation for disabilities.
“It really goes back to the basic fundamentals: Supervisors and managers on the front line need to deal with issues as they come up in the context of the event rather than on paper later and hope that it is appropriate,” she said.
Spaulding McCullough & Tansil Partner Jan Tansil said along with documentation, it is important employers fill their obligation to inquire about and seek out in-
formation in cases where an employee mentions or indicates they have a disability.
“If the employer knows nothing about it, they are not at risk. But if an employee says something to a supervisor or HR person – like I need to go to
the doctor, or I have diabetes and am having trouble maintaining my insulin, or fill in the blank with any chronic condition – the employer is required to engage the person and doctor in a discussion about what reasonable accommodation entails. The key phrase is ‘interactive process,’” she said.
