There have been many changes to employment and labor laws since President Obama moved into the Oval Office. For most busy executives, it’s difficult to keep track of them all.
That’s why Lynn C. Outwater, managing partner of Jackson Lewis LLP, says employers should meet often with an employment law specialist to make sure they don’t make any costly mistakes.
“Employers need to consult with employment counsel before taking adverse action, not after,” Outwater says. “Because once action is taken, it’s too late to fix it.”
Smart Business spoke with Outwater about how the new employment laws are affecting employers and what to expect in the future.
What has happened in employment law during the Obama administration?
The U.S. Equal Employment Opportunity Commission received 93,277 charges of discrimination in 2009, a decrease from 95,402 in 2008. Although discrimination claims in general have decreased, some types of claims, like retaliation claims, have increased. The number of charges is still very high, and the amount being paid out to victims of discrimination is still very high: $376 million in 2009.
Also, the new chair of the EEOC, Jacqueline Berrien, was recently sworn in with a commitment from the administration to improve enforcement. Berrien has been granted greater resources, including a proposed budget of more than $300 million to be used to hire additional staff, including investigators, mediators, attorneys and support staff.
The EEOC added 155 new employees in 2009, so enforcement efforts and results will significantly increase.
How do these changes affect employers?
This is noteworthy because it increases the emphasis on doing things correctly and appropriately so as to avoid any type of claim. Do what you can to avoid litigation, because you don’t want to create bad fact patterns that would trigger someone going to the EEOC or the state agency.
The greatest increase in overall employment litigation is the area of class action claims. In particular, wage and hour (FLSA) class actions continue to outpace class actions involving other employment claims.
Another reason to avoid claims is employers’ courtroom record. Employers lost 61 percent of employment practice liability trials in 2008 — an increase of 5 percent from 2007. Their record is even worse in age discrimination cases, in which employers lost 67 percent of the time. Employers can’t control enforcement or how much money is being spent on enforcement, but they can control what they themselves are doing.
