Foley & Lardner Labor and Employment Law Weekly Update (Week of September 26, 2011)

Foley & Lardner Labor and Employment Law Weekly Update (Week of September 26, 2011)

Ways You Can Help Make Your Training Programs More Legally Effective
By Kevin E. Hyde

Just like other initiatives, corporate training programs have taken their fair share of budget cuts. Josh Bersin details this trend in the current online edition of HR Management magazine (http://tinyurl.com/6em379a). He notes that corporate training and development budgets were cut by 12 to 18 percent in the second half of 2008 alone. And, that trend continues.

In the legal realm, training on company policies relating to harassment, discrimination, and retaliation remains vitally important. Courts continue to recognize the value of (and in some states the statutory requirement for) training as a way to (1) establish and promote the company's policy prohibiting discrimination, harassment, or retaliation; (2) establish that employees who violate the policy did not do so out of ignorance that the policy exists; and (3) as a good faith affirmative defense to any discrimination, harassment or retaliation that may occur. But how do you stretch a limited training budget to accomplish these legal goals?

Consider the following steps for effective training:

  1. If on a topic relating to the law, be sure to clearly spell out what the state or federal law prohibits or requires. For instance, specify clearly what types of discrimination are prohibited (e.g., sex, race, age). Be clear on who is covered by the law. Train people on definitions contained in the law so they know exactly what the law covers or prohibits.
  2. Identify what remedies are available. Some employers fear doing this because "it might give the employees ideas." Better yet, and more likely, talking about the available remedies will impress upon the audience the seriousness of the topic. A practical way may be to say, for instance, "How many widgets do we have to sell to make $300,000 in profit (the Title VII limit for compensatory and punitive damages) that can be used to pay a judgment against us if harassment or discrimination occurs?"
  3. Talk about practical steps to prevent harassment, discrimination, or retaliation. Give clear examples of situations that may arise where such conduct could occur. Specify clearly when a person can complain. Always emphasize that the company (a) prohibits harassment, discrimination, or retaliation and (b) will look for every way to make it stop if occurs.
  4. Make the training lively by discussing real cases, "role playing" practical examples of situations where questionable conduct occurs and how a person should respond. If you can't think of any real-life examples, do a quick Internet search and you will find plenty of stupid behavior at work for which the company paid a price in defending a subsequent legal action. Remember the adage, "Really...you can't make this stuff up."
  5. Be clear that the company has an obligation to investigate reports of discrimination or harassment; that it will conduct this investigation; and that confidentiality is not absolute. The company will do everything possible to preserve confidentiality but in fairness to a thorough investigation witnesses other than the victim will be questioned or involved in the investigation. Your job is to get a thorough and accurate understanding of the facts from all sides. Be sure your training does not promise such absolute confidentiality that a thorough investigation becomes impossible.

There is no magic bullet in training. But the steps above can help you make your training more "legally" effective and may help reduce the number of incidents giving rise to complaints. If a complaint does occur, training is an effective tool to demonstrate the company's prohibition of harassment, discrimination, or retaliation.

Company Policy May Require Employees to Report Injuries More Quickly than Allowed Under State Law
By Christi R. Adams

A federal appellate court agreed that a Tennessee employer may require workers to report their injuries more quickly than the 30-day time limit allowed under Tennessee's workers' compensation laws. (Geronimo v. Caterpillar Inc., 6th Cir. No. 09-6401, 9/7/11) (http://tinyurl.com/3bpdosv). The court rejected the employee's claims of retaliation and wrongful discharge for terminating an employee for failing to report that she had symptoms of gradual-onset carpal tunnel syndrome. The case is encouraging for employers, because the court allowed the employer to enforce its time limitations, although the employee's condition was based on a health condition that involved a gradual-onset of symptoms.

The employee had worked for the company for more than seven years when she transferred positions within the company. On the first day of her new position, she began to feel pain in her hands. Over the following two weeks, the employee's pain remained relatively mild and occurred only when she was gripping machine parts. However, her pain later grew more intense and her periods of pain began to last longer. Approximately a month after transferring to her new position, the employee visited the employer's on-staff nurse and complained that she was experiencing pain and that it kept her awake at night. The employee advised the nurse that she had not reported the pain earlier because she thought the condition would improve and she did not want to jeopardize her job.

The employer terminated the employee the next day because she had failed to communicate her injury in a timely manner. The employee admitted she had attended mandatory meetings and trainings in which she was informed of the company's rules requiring her to report her injuries immediately, or as soon as she was are of it and suspected that it was work-related.

The court explained that the state's workers' compensation law provided the employee had a 30-day window in which to file a workers' compensation claim with the state from the date of the injury, or from the date the employee knew or should have known that her injury was caused by her work. However, the court also explained that the state statute did not forbid an employer from imposing its own, more stringent notice requirements for workplace injuries. The court reasoned that the employee's interpretation of the statute would allow employees to aggravate their injuries by continuing to work, thereby possibly endangering their colleagues and preventing their employers from providing potential remedies at the earliest possible date.

The court's decision was based on an interpretation of one state's law and may not apply to all jurisdictions; however, it reminds us all of the importance of not only having a written policy requiring employees to report workplace accidents in a timely manner, but also reminds us that such policies should be enforced in a uniform manner.

Labor and Employment Trivia

Last week's question: What labor strike of the early 1900s was known as the "Bread and Roses Strike" and why was it called that?

Answer: The term refers to a strike of textile industry workers, which occurred in the factory town of Lawrence, Massachusetts during January - March 1912. The strike was triggered when mill owners lowered wages immediately after a new law shortening the workweek went into effect. The impact of the wage cut and lower hours inflamed the workers. The strike defied the assumptions of conservative trade unions that immigrant, largely female, and ethnically divided workers could not be organized. The strike eventually spread to almost every textile mill in Lawrence. The name "bread and roses" is thought to have been derived from The Cry for Justice: An Anthology of the Literature of Social Protest by Upton Sinclair. Women in the strike carried a banner "We want bread and roses too." Roses signified the respect due to them as women, rather than just as cheap labor.

This week's question: What is the "Control Test" and where is it used?

Please continue to send suggestions for trivia questions to mneuberger@foley.com.