Matthies Law Firm, P.C.  

Serving as Employment Law Advisors for over 25 years

Employment Law Training is Vital to the Health of your Business!

Failure to train supervisors in basic employment law has been found to justify imposition of large punitive damage awards against the employer, according to the U.S. Circuit Court of Appeals for the Tenth Circuit. (For those who haven't read the details of this scary recent decision, follow the link to find out why it makes sense to do start doing this training ASAP).

The U.S. Department of Justice just released a study which shows that the median jury award in employment cases is INCREASING - and the median award is already over $250K!!

There is no doubt that, if your company hasn't been sued yet on some employment law claim, your day is coming!  In today's business climate, employees are much more likely to sue if they are terminated or if they believe that they are treated unfairly - so it makes good business sense to try to avoid costly HR mistakes by untrained supervisors.

In current tight labor markets, even if mistreated worker just walks off the job, your company loses, even if the employee doesn't sue - because most GenX employees don't want to work for companies which are perceived as biased or unfair.

Furthermore, when supervisors aren't sure about the correct approach to disciplining workers who are in protected classes, it is quite common for the supervisors to become so frightened of possible lawsuits that they end up doing nothing.  Worse yet, some supervisors end up only disciplining workers who are not in protected classes, which creates resentment which can result in a backlash (leaving the company with possible lawsuits by those who are the targets of the backlash, as well as by those who were victims of reverse discrimination).

Why hasn't your business done this training?  The most common excuses are:

Our supervisors are so busy that it is hard to find time to send them to seminars, especially when these seminars are held during core operating hours instead of after-hours or on weekends (or other times which are more convenient, such as during manager retreats or other outings).

Our business conditions are so competitive and our margins are cut so razor-thin that it is hard to justify paying high-priced seminar fees to send all of our supervisors to outside seminars.

Even if we found the money to send our supervisors to an outside seminar, we are afraid that we would not get a good enough "bang for our buck" (as the seminar won't be tailored to our people, so chances are that it will be too easy or too advanced for the level of our group).

We have been thinking of doing some in-house training ourselves, but HR really doesn't have the time to develop good seminar handouts - and, truth to tell, our managers have a tendency to listen better to outside experts  anyway (even though this frustrates the dickens out of HR).

Is there a way to give your supervisors the training which they need, at times which won't harm production, and at a cost which won't break your budget?

Of course! Our typical Employment Law Basics seminar takes just 4 hours, and is designed to give your supervisors and managers a sufficient overview of federal and local employment laws to recognize and avoid common employment law problems. In addition, each manager also will receive a comprehensive binder of materials to use as a ready reference guide in dealing with future workplace problems.

We can hold this seminar at almost any time which works the best for your supervisors. Some options include:

• Schedule 4 hours on Saturday morning
• Schedule a weekday session from 5pm to 9:30 (with a break for pizza at around 7pm), or schedule two evening sessions on different nights for 2 hours/session.
• Where supervisors are on several shifts, schedule training for the 2nd shift supervisors by having them come in 2 hours early - then train the 1st shift supervisors by holding them over 2 hours for their own separate training (so everyone is trained after just 2 sessions).
• With geographically-scattered locations, training can be scheduled during regional staff meetings - or done by videoconferencing.

What does this mean for your Company? In just four hours, your company can give your supervisors enough basic information about federal and local employment laws to avoid common mistakes which lead to lawsuits - plus train them to understand why/when it would be a good idea to talk to HR before getting your company into hot water. When supervisors learn to avoid common problems, and learn to take this single extra step of getting advice ahead of time when they aren't sure of the right answer, our experience has shown us that a high percentage of potential lawsuits can be averted - and those which cannot be avoided become much easier (and less expensive) to defend.

    Sample Pricing

Our firm also offers other training programs, including statute-specific and issue-specific training (such as sexual harassment prevention).  For larger organizations, we also are able to offer more intensive 1-2 day workshops for HR professionals, covering hot topics and emerging issues which may arise in your organization.   So, if your company has any supervisory training needs, we will be happy to assist you.

Overview of Typical Four-Hour Training Session

    Laws which apply to Application/Job Offers

• ADA restrictions on pre-offer medical inquiries
• ADA rules against exclusion of applicant due to own disability or that of family member
• Title VII restrictions on questions /limits which screen out minorities/women
• Title VII requirements on accommodations to religious beliefs
• NLRA protection of union members
• Protection under Bankruptcy Code for those who filed bankruptcy
• FRCA requirements if credit reports requested
• IRCA rules against special requirements on those who appear "foreign"
• Age discrimination against persons over 40
• Drug Testing rules
• Special Affirmative Action requirements for government contractors
• Export Administration rules
• Specific state rules which apply to applicants
• Limits on use of "contractors" and leased workers

    Laws which apply to Hiring/Job Assignment

• Equal Pay Act/Title VII rules against pay discrimination against women
• 1866 CRA/Title VII rules against pay discrimination against minorities
• Title VII/1866 CRA rules on discriminatory job assignments
• Age discrimination rules on placement/benefits
• ADA rules on accommodations and on benefit coverages
• IRCA rules on I-9 forms
• ERISA rules on providing SPDs on benefit plans
• FLSA rules on hiring of minors in certain jobs
• Specific state rules which apply to hiring and job assignment

    Laws which apply to Working Conditions

• OSHA rules on refusal to perform unsafe work; whistleblowing
• Polygraph restrictions
• Title VII and state law rules against harassment due to race, sex, disability, etc.
• ADA rules on accommodations
• NLRA rules on work stoppages/strikes
• Brynes Act rules on strikebreakers
• Drug test rules (random, post-accident, reasonable suspicion)
• Specific state rules which apply to working conditions

    Laws which apply to Leaves

• FMLA rules on various types of leave, including intermittent leave
• Military rules on leaves for training and service
• Leaves for jury duty or to be witness (Jury Systems Act and FLSA)
• Voting time rules
• Specific state rules which apply to leaves (such as WC leave)

    Laws which apply to Pay/Benefits

• FLSA rules on minimum wage, overtime, exempt status (effect of docking)
• Garnishment rules
• Equal Pay Act/Title VII/1866 CRA/ADA/FMLA rules on pay and benefits
• ERISA, HIPAA, Mental Health Parity Act
• Specific state rules which apply to pay and benefits

    Laws which protect Privacy

• ADA rules on medical confidentiality
• FRCA rules on use of credit reports
• State law claims for invasion of privacy
• State law claims for slander, emotional distress and other torts
• State laws which protect off-duty smoking
• Wire-tap rules on interception of private messages

    Laws which protect against Discharge and Layoffs

• WARN Act notices for major staff reductions
• NLRA rules on bargaining over subcontracting, plant closures
• Non-discrimination provisions of all federal employment laws
• Anti-retaliation provisions of all federal employment laws
• State Workers Compensation anti-retaliation and non-discrimination provisions
• ERISA non-discrimination provisions
• Whistleblower claims under state law
• Garnishment rules
• Other state rules which limit right to discharge

    Post-Employment Rights of Employees

• COBRA extension of health insurance benefits
• HIPAA right to insurance coverage by next employer
• Unemployment compensation rules
• Reference rules/limits
• State rules on defamation, intentional torts
• ERISA rights
• State rules on payment of wages and benefits (such as vacation)

Tenth Circuit Decision On Punitive Damages for Failure to do EEO Training

Excerpts from the Tenth Circuit decision in EEOC v. Wal-Mart Stores, Inc., No. 98-2015 (10th Cir. 1999), which applied the recent U.S. Supreme Court decision in Kolstad on punitive damage awards in employment litigation, and discussed the effect of the lack of training of two Wal-Mart managers (Wiggins and Dunn) on the ultimate awardability of punitive damages:

We therefore consider whether Wiggins and Dunn's conduct ran contrary to Wal-Mart's good-faith efforts to comply with the ADA. Kolstad provides us no definitive standard for determining what constitutes good-faith compliance with the antidiscrimination requirements of the ADA. It is clear, however, that in modifying the common law rules of vicarious liability to protect employers who make good faith efforts to comply with Title VII, the Court intended to encourage "employers to adopt antidiscrimination policies and to educate their personnel on [federal] prohibitions" against workplace discrimination. Kolstad, 119 S. Ct. at 2129.

Thus, the extent to which an employer has adopted antidiscrimination policies and educated its employees about the requirements of the ADA is important in deciding whether it is insulated from vicarious punitive liability. Wal-Mart certainly had a written policy against discrimination, but that alone is not enough. Our review of the record leaves us unconvinced that Wal-Mart made a good faith effort to educate its employees about the ADA's prohibitions.

Wiggins testified that it was after her deposition in this case, some three years after Amaro's suspension and termination, that she became aware of "any law requiring employers to make reasonable accommodations to enable qualified employees to do their job," and that she had received no training about disability discrimination. EEOC's App. at 82. Lonnie Quintana, the personnel manager, who was also responsible for training at the store where Amaro worked, testified that during her seven years as a Wal-Mart manager, she had received no training in employment discrimination nor in the requirements of the ADA. She had never discussed the Act with any of the employees under her supervision, and did not have a copy of the Wal-Mart ADA handbook. See EEOC's App. at 173-75.

Wal-Mart's assertion of a generalized policy of equality and respect for the individual does not demonstrate an implemented good faith policy of educating employees on the Act's accommodation and nondiscrimination requirements.  The evidence demonstrates a broad failure on the part of Wal-Mart to educate its employees, especially its supervisors, on the requirements of the ADA, and to prevent discrimination in the workplace. We therefore conclude that given the facts of this case, Wal-Mart enjoys no protection from vicarious punitive liability for the conduct of its managerial agents against Amaro.

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