Making a Case for Sound Employment Practices

Transcription

1 Making a Case for Sound Employment Practices Jack Williams, Esq. Risk Management Senior Consultant jack.williams@cunamutual.com CUNA Mutual Group Proprietary Reproduction, Adaptation or Distribution Prohibited 2016 CUNA Mutual Group, All Rights Reserved.

2 Key loss and risk trends Importance of employment practices Actual case study discussions Your questions What s In Store For Today Jack Williams, Esq. Risk Management Senior Consultant jack.williams@cunamutual.com CUNA Mutual Group

3 Overdraft Fee Litigation So, what s on your radar? Legalized Marijuana Card Fraud Interest Rate RELEVANT risks STRATEGIC decisions Lending Club Employee Fraud Collection Letters Litigation Cybersecurity CFPB Social Media

4 Enforcement Activities 1 in 8 probability of having an employment charge filed against a U.S. company Nearly 20% end with a settlement payment 81% settlement payments less than deductible Source: The 2015 Hiscox Guide to Employee Lawsuits

5 Highest employee lawsuit risk 275 days CA 40% NV 47% $125,000 average defense & settlement costs DC 65% NM 66% AL 41% Source: The 2015 Hiscox Guide to Employee Lawsuits

6 $87,975 - median award of employment matters (2014) $100,000 (2013) / $68,195 (2012) / $ 271,000 (2011) $318,032 average award (2014) $272,032 (2013) / $463,022 (2012 / $471,509 (2011) $147,000 - Retaliation median award ( ) $564,873 - average award ( ) Jury Awards 51% probability of the plaintiff winning a case at trial Source: The 2015 Hiscox Guide to Employee Lawsuits Employment Practices Liability: Jury Award Trends and Statistics (2015 Edition)

7 EEOC Charges 2014 EEOC Charges 2015 EEOC Charges Source: EEOC Enforcement and Litigation Statistics ( )

8 36% frequency claim count 50% severity claim dollars 52% EPL payments related to claim defense Source: CUNA Mutual Group internal claims data

9 Only one way to win avoid a claim Easy to file Hard to get dismissed Plaintiff can recover attorneys fees Take a lot of your time

10 2. When I was told by XXXX XXXXXXXX Chief Executive Officer, that I was not selected for the position and I asked why, his reply was because of my medical condition and what if I have another episode? (Yet, it was acceptable to have my XXXXXXXX XX XXX XXXXXX ) 3. I believe that I have been discriminated against because of my disability in violation of the Americans with Disabilities Act (ADAAA) of 2008, and my age, 54, in violation of the Age Discrimination in Employment Act of 1967, as amended, in that, I have provided the respondent with the notice of the need for a reasonable accommodation. My request was denied. The respondent hired a significantly younger non-disabled individual XXXXXX XXXXXXXXX for the Loan Processor position.

11 But if you can t avoid a claim 1. Up-to-date policies and procedures 2. Regular training 3. Regular and consistent reviews, personal improvement plans (PIPs) & discipline 4. Proper documentation

12 Review a real-life fact pattern You may ask any questions or clarifications you may need Discuss What s the most likely claim(s)? What advice would you give? What risk mitigation tips would you offer? The Plan

13 Analyzing fact patterns 1. What does the credit union want to do? A. Don t assume ask 2. Can the credit union do it? A. Does credit union have a policy that addresses the issue? B. Any laws or regulations that govern the issue? 3. Should the credit union do it? A. How risky is the issue? B. How likely is there going to be a claim?

14 Is there a claim? Case Study #1 Jim regularly uses a belligerent & argumentative tone with co-workers. When his supervisor tells him to act more professionally, Jim tells him he would never back down if he felt he was defending himself and, in another instance, s a co-worker You re my b***h. He also tells his boss that there better be no more of this nonsense in his performance evaluation. After repeated warnings about inappropriate communications, Jim s a coworker, warning him to refrain from any sarcasm towards me as you do not have the mental ability to handle any sarcasm that is returned to you. After this last , Jim was terminated. Even after termination, Jim had to be escorted out by the police, shouting You haven t heard the last of me!

15 Case Study #1 During the time Jim was engaged in this behavior, Jim requested leave to care for his son who was suffering from serious mental health issues. Jim s supervisor responded to Jim: The Company paid for your insurance and thus expects you to be at work. Now anyone see a claim?

16 Family Medical Leave Act Allows eligible employees of covered employers to take unpaid, job protected leave for specified family and medical reasons Claims: Interference (to take leave) Retaliation (for taking leave) Risk Mitigation Tips Written policies and procedures Train employees and managers Think and act proactively Terminate carefully Consult Human Resources / Employment attorney

17 Case Study #2 While preparing for a staff meeting with the payroll provider, Sally is alerted to an issue on Facebook. A current employee, Jill, updated her status to read: Maybe someone should do the owners of ABC Inc. a favor and buy it from them. They can't even do the tax paperwork correctly!!! Now I OWE money...wtf!!! Many commented and liked the status update, including four co-workers: I F***ING OWE MONEY TOO It's all Ralph s fault Hahahaha. He's such a shady little man. He prolly pocketed it. I owe too. Such an a**hole

18 Case Study #2 Sally shows the owner, Ralph, these comments. Ralph, who is now irate, demands Sally immediately fire Jill and her 4 co-workers. However, before doing that, Sally reviews ABC s social media policy which reads: ABC supports the free exchange of information and supports camaraderie among its employees. However, when blogging, chat room discussions, social media posts (e.g. Facebook, Twitter), text messages, or other forms of electronic communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the Company, management and/or coworkers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. What should Sally do?

19 Social Media and NLRA Employers that discipline employees for social media activity that constitutes protected activity likely will be found to have violated the National Labor Relations Act (NLRA). Claims: Wrongful Termination Retaliation NLRA applies to union and non-union employers NLRB is currently a very employee-friendly forum National Labor Relations Act Section 7: Employees shall have the right to engage in other concerted activities for the purpose of...mutual aid or protection. Section 8: Employers cannot interfere with the exercise of this right.

20 Social Media Policy Avoid undefined, broad terms Provide specific examples of the kind of behavior the policy aims to prevent Make it clear that the policy is not intended to target NLRA rights ( Nothing in this policy is intended to limit or interfere with ) Avoid policies that appear to workers to prohibit protected activities, such as talking about pay, benefits and working conditions Consult an employment attorney Social Media and NLRA Risk Mitigation Tips Review Social Media Policy Train employees and managers Terminate carefully

21 Case Study #3 Eve Palmer works as teller for Badger State FCU, a job she has had since She is well liked and good at her job. Recently Ms. Palmer became pregnant. As soon as she found out, Ms. Palmer informed her co-workers and manager. Her manager was supportive of Ms. Palmer, but worried she may have to stop working as the pregnancy progressed. As Ms. Palmer s pregnancy advanced, unfortunate complication arose. As a result, her doctor recommended she sit rather than stand, drink two cups of water and eat a light snack every hour, and take periodic rests if she felt light headed. She requested these recommendations from her manager.

22 Case Study #3 However, Ms. Palmer s job required her to stand at the teller line, provide backup at the drive-up windows during busy times, lift and carry up to 20 pounds, and provide general office maintenance as required. Badger State has a policy of allowing light duty work but limited it to two situations: when the worker suffered an on-the-job injury or when the worker qualified for a reasonable accommodation under the Americans With Disabilities Act.

23 Safest course: Accommodate pregnancy whenever possible Let pregnant employees qualify for light duty if the employer offers light duty to other employees. Failure to accommodate could give rise to an inference of intentional discrimination. EEOC continues to advocate strong, pro-accommodation stance. Pregnancy discrimination & accommodation obligations Pregnancy accommodations: Sitting, instead of standing, during the workday Carrying a water bottle Taking more frequent breaks to use the restroom, to have a snack, or to rest Receiving assistance with heavy lifting Working a modified or part time schedule Taking leave

24 Session Wrap Well managed credit union + Communication with Employees Helps avoid the claim & Puts credit union in best position to defend a claim Thank you for the opportunity to partner on managing risk.

25 Looking for assistance? Check out Access Protection Resource Center for RISK Alerts, white papers/checklists, webinars, and online risk Complete Ask a Risk Manager Contact a CUNA Mutual Group Risk Management Consultant at

26 This presentation was created by the CUNA Mutual Group based on our experience in the credit union and insurance market. It is intended to be used only as a guide, not as legal advice. Any examples provided have been simplified to give you an overview of the importance of selecting appropriate coverage limits, insuring-to-value and implementing loss prevention techniques. No coverage is provided by this presentation/ publication, nor does it replace any provisions of any insurance policy or bond. CUNA Mutual Group is the marketing name for CUNA Mutual Holding Company, a mutual insurance holding company, its subsidiaries and affiliates. Insurance products offered to financial institutions and their affiliates are underwritten by CUMIS Insurance Society, Inc. or CUMIS Specialty Insurance Company, members of the CUNA Mutual Group. Some coverages may not be available in all states. If a coverage is not available from one of our member companies, CUNA Mutual Insurance Agency, Inc., our insurance producer affiliate, may assist us in placing coverage with other insurance carriers in order to serve our customers needs. For example, the Workers Compensation Policy is underwritten by non-affiliated admitted carriers. CUMIS Specialty Insurance Company, our excess and surplus lines carrier, underwrites coverages that are not available in the admitted market. Data breach services are offered by Kroll, a member of the Altegrity family of businesses. Cyber liability may be underwritten by Beazley Insurance Group. This summary is not a contract and no coverage is provided by this publication, nor does it replace any provisions of any insurance policy or bond. Please read the actual policy for specific coverage, terms, conditions, and exclusions. CUNA Mutual Group 2016 All Rights Reserved.