Posted: April 28, 2017
Improperly or untrained employees, especially supervisors, are ticking litigation time bombs in today’s employment world where employers face frequently changing and legally treacherous minefields due to by state and federal legislation, regulations, and court decisions.
Employers are required to know and comply with complex legal mandates including, but not limited to: the Americans with Disabilities Act (ADA), Michigan Persons With Disabilities Act (PWDCRA), Family Medical Leave Act (FMLA), Title VII of the Civil Rights Act of 1964, Elliott-Larsen Civil Rights Act (ELCRA), Older Workers Benefit Protection Act (OWBPA), Fair Labor Standards Act (FLSA), AIDS Testing and Confidentiality Act; the Polygraph Protection; Whistleblower statutes, the Employee Retirement Income Security Act (ERISA), the Labor Management Relations Act, the Occupational Safety and Health Act (OSHA), the Federal Employers Liability Act (FELA), the Federal Safety Appliance Act (FSAA), workers compensation, and other tort law.
Ignorance of the law is no excuse. Employers must keep themselves and their employees up-to-date so they can comply with employment laws. Regular effective training is essential for employers to meet their legal duties to know and comply with the diverse laws, regulations and court rulings. Indeed, employers may be “subject to liability for their negligence in hiring, training, and supervising their employees.” Zsigo v Hurley Medical Center, 475 Mich 215, 227 (2006).
Employee training is much cheaper than defending against an employee’s or governmental agency’s complaint/lawsuit of discrimination, sexual harassment, retaliation, FLSA class action, worker injury, safety violation, defamation, or criminal misconduct. Unfortunately, even employers paying large premiums for insurance will discover that employment insurance policies do not cover some lawsuit elements, such as punitive damages.
Although there are no guarantees against employment charges or lawsuits, appropriate employee training can go a long way to reduce the risks of costly and time-consuming litigation. Likewise, an employer may lose an employment lawsuit even before it is filed because a supervisor, who was not properly trained, mishandled an employee’s complaint, or sends a careless email that defeats the employer’s ability to have the case dismissed, or sabotages a legitimate defense, or prevents a resolution of the case for a reasonable value. For example, a supervisor’s deposition testimony that he/she was not familiar with the employer’s nondiscrimination/retaliation, sexual harassment policies, or FMLA leave can handicap an employer’s defense. Similarly, a decision-maker who emails a careless comment about an employee which later may be perceived as evidence of discriminatory/retaliatory intent can devastate the employer’s defense.
Proper employee training helps prevent prohibited activities, and can supply employers with a strong affirmative defense to a sexual harassment claim. Proper sexual harassment training demonstrates "reasonable care" by the employer to prevent and correct sexual harassment in the workplace. See e.g., Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. V. Ellerth, 524 U.S. 742 (1998).
With employees being bombarded with ads by Plaintiffs’ lawyers touting employment lawsuits providing huge amounts of easy money and no lawyer fees unless there is a recovery, employers need to use proper training to defuse their ticking time bombs.
The Masud Labor Law Group regularly provides cost effective, tailored, and interactive training for employers and their employees in essential employment related law across multiple state and federal jurisdictions. Feel free to contact us for more information.