It’s time for Manpower’s one-of-a-kind Quarterly Employment Litigation Index.

Each quarter, we reach out to our loyal Blawg visitors to see what they’re experiencing in the world of employment litigation. We asked the 1,987 attendees at our webinar last week the following question:

Are you seeing an increase in employment law claims?

Here are the official results:

• Yes, substantial increase: 6.1%
• Yes, modest increase: 24.7%
• No change: 66.5%
• No, modest decrease: 1.5%
• No, substantial decrease: 1.2%

What the numbers mean . . .

Once again, far more employers are seeing an increase — as opposed to a decrease — in employment law claims. However, the pace of the increase appears to be slowing somewhat.

Last quarter, a whopping 0% reported any sort of decrease. That number is still low this quarter — 2.7% — but it’s still undeniably higher than 0%.

Those reporting an increase (30.8%) dropped by 6.7% compared to last quarter while the biggest group — “no change” — grew 2.7% so that it now represents roughly two-thirds of employers.

As always, thanks for your input and participation. Stay tuned for more on the latest trends in the wonderful world of workplace law.

An Iowa judge has ordered the Equal Employment Opportunity Commission (EEOC) to pay more than $4 million in fees and costs incurred by a defendant in a sexual harassment lawsuit that was dismissed by the court.

In 2007, the EEOC filed a lawsuit alleging that CRST Van Expedited had subjected more than 200 female drivers to sexual harassment and had failed to take steps to remedy the alleged harassment.

Last year, Chief Judge Linda Reade of the Northern District of Iowa dismissed all of the EEOC’s claims. “The EEOC has presented the court with anecdotal evidence to show that some members of CRST’s management occasionally violated CRST’s anti-sexual harassment policy by failing to respond appropriately to sexual harassment in the workplace,” Judge Reade wrote. “However, the EEOC has not compiled the failings of CRST’s managers in any meaningful way to show that CRST has a pattern or practice of tolerating sexual harassment in its workplace.”

The EEOC’s argument, said Reade, “boils down to little more than bald assertions.” According to the judge, the EEOC’s litigation approach “was untenable: CRST faced a continuously moving target of allegedly aggrieved persons, the risk of never-ending discovery and indefinite continuance of trial.”

The law firms that represented the defendants reported that they billed more than 20,000 hours on the case and originally sought more than $7 million in fees and expenses.

“The EEOC believes the court’s decisions in the case were wrongfully decided and the agency will be appealing,” said EEOC Deputy General Counsel James Lee.

Click here for more.

Previously here on the Blawg, we discussed a massive class action age discrimination lawsuit filed by TV writers against various talent agencies, networks and production studios. In the latest news, lawyers for both sides announced a $70 million settlement with all but one of the defendants.

History

The lawsuits were filed in 2000 against several media giants including ABC, CBS, NBC, Fox, Columbia, DreamWorks, Universal and Warner Brothers, as well as several talent agencies including International Creative Management (ICM), Creative Artists Agency (CAA) and William Morris. The writers alleged that the agencies refused to represent older writers and aided and abetted the networks’ and studios’ systematic failures to hire them.

ICM settled in 2008 for approximately $4.5 million plus an agreement to implement institutional changes to promote hiring of older writers. The lawsuit continued against the rest of the defendants.

Latest Settlement

The settlement calls for payment of $67.5 million to 165 TV writers. Another $2.5 million will be used to establish a fund to supplement the writers’ pensions and to provide grants and loans to help further their writing careers.

“The importance of the settlement cannot be overestimated, given the fact that television shows — even in this era of multiple entertainment platforms — remain crucial in shaping our culture,” said AARP Foundation attorneys. The AARP Foundation indicated that it would continue pursuing the case against the lone holdout from the settlement — talent agency CAA.

The settlement must be approved by a California state court before it becomes final.

The Lessons

As discussed previously here on the Blawg, age discrimination cases typically rank #1 in terms of verdict size. Those numbers will most likely continue to grow as the so-called “graying” of the U.S. workforce continues.

Court dockets are packed with cases in which older workers allege that they feel left behind by companies trying to update their image and move faster to stay in step with the new economy. The focal point of many of those cases is the use of subjective “ageist” terms such as “slow” or ”outdated” when referring to older employees. Those cases usually don’t work out too well for employers.

Obviously, employers should avoid any hint of bias against older workers as well as any facially neutral policies or procedures that could have a disparate impact. Older employees can be a valuable resource and often have tremendous skills and experience. Help your managers see the value of inclusiveness and diversity and the dangers of making potentially discriminatory remarks and decisions.

Each week, we post a thought-provoking question for your consideration. Here’s last week’s question, along with your responses:

What’s the best way to control skyrocketing employment litigation costs?

a.  Require all employees to sign mandatory arbitration agreements (35%)
b.  Take a “no settlement” approach to litigation (15%)
c.  Require law firms to adhere to billing guidelines and litigation budgets (24%)
d.  Move your business to Antarctica so that you’ll have no employees and thus no lawsuits (26%)

We believe that the best answer to this question is “c.” Here’s why . . .

Many of us in the Manpower Legal Department used to work in big law firms. As a result, we’ve developed a pretty good feel for what’s fair — and unfair — for law firms to charge. We developed the law firm guidelines and the budget, report card and RFP tools available here on the Blawg to help keep legal fees in check. We’ve found that using those tools in combination saves $$$ far beyond anything else we’ve tried.

The top vote-getter was mandatory arbitration with 35% of the votes. In our experience, arbitration can be a mixed bag. The prospect of going to court and facing a judge and jury can have more of a deterrent effect on potential plaintiffs than the prospect of facing a lone arbitrator in some dingy hotel conference room. In addition, arbitrators are famous for “split the baby”-type awards rather than taking a hard stance in favor of either party (even if the facts strongly favor the company). Last, some cases wind all the way through the arbitration process (with discovery and briefing costs just like court litigation) only to wind up in court anyway when the losing party appeals the arbitration award.

The “no settlement” approach generally only works for operations located in a small town or region where word of the settlement might result in “copycat” filings. In our experience, adopting a no-settlement policy leads to increased litigation costs and is particularly unwise in any case in which the company has significant exposure due to wrongdoing.

Last, as a long-time resident of the rather chilly state of Wisconsin, I can sincerely appreciate the 26% of you who would rather move to Antarctica than face litigation. Thankfully, there are better options.

Thanks for your participation! Our next Question of the Week will be coming your way soon.

Way back in 2007, Dan Rather filed a lawsuit against his former employer, CBS, seeking $70 million for wrongful termination. Yesterday, New York’s top court dismissed the case.

The Facts

Rather alleged that he was wronged in the aftermath of the scandal surrounding CBS’ investigation of President Bush’s Vietnam-era National Guard service. Among other things, Rather claimed that CBS unfairly made him a “scapegoat” to curry favor with the White House and: (1) breached his employment agreement by not giving him the airtime to which he was entitled; (2) committed fraud by conducting a biased investigation into Rather’s role in the scandal; and (3) tortiously damaged his reputation.

The Dismissal

Rather didn’t fare too well in court on his claims. The case was previously dismissed in September by a Manhattan appeals court. That court unanimously ruled that CBS had no duty to use Rather’s services as long as it paid him his $6 million annual salary owed under the contract (which it did). The court also found that Rather failed to prove that he missed out on any business opportunities when CBS refused to release him to seek other employment.

Rather appealed. Yesterday, the New York State Court of Appeals affirmed the lower court’s decision, which should end the matter.

CBS spokesperson Shannon Jacobs said that the network is pleased with the ruling. Rather had a rather different reaction, calling the decision a “grave miscarriage of justice.’

The Blawg Jury

Back when the case was first filed, we asked you, our loyal Blawg visitors, to play jury and to predict the outcome of Rather’s suit.

I’m pleased to report that a whopping 66% of you predicted that Rather’s suit would fail. Congratulations on your judgment and discernment.

Of the 34% that said “yes,” two people took us up on our offer to send in personal checks in the amount of $10 made out to the “Save Dan Rather From Abject Poverty Foundation,” just in case he didn’t prevail. Strangely, those checks never arrived. Now that the case is officially over, I hereby beseech those two individuals to forward their checks to me and I’ll make sure they get into Mr. Rather’s hands as soon as possible.

As always, thanks for your participation. For more on this from Reuters, click here.

Over the next few weeks, we’ll be counting down the top 10 most “noteworthy” verdicts/settlements from the past year, according to the fine folks at Jury Verdict Research.

Here’s #9 . . .

$4 Million for Blood Test Retaliation

In Schumann v. Dianon Systems Inc., a pathologist sued his employer, a health care laboratory, for wrongful termination and retaliation.

Schumann was employed from January 1993 through April 2005 at a Dianon Systems lab in Connecticut. In February 2005, the lab started using a new blood test to detect kidney disorders. Schumann complained to a VP of the company that the test wasn’t supported by the latest scientific research and could result in false positives that might endanger patient health. He contended that his continued opposition to the test resulted in him being fired on April 4, 2005.

The company denied the plaintiff’s claims. It asserted that its laboratory methods were appropriate and that the pathologist was terminated for legitimate reasons unrelated to his opposition to the test.

The court sided with the plaintiff, awarding him $4 million in compensatory damages.

Lesson for Employers

Four of the top ten big-$$$ cases this past year were for retaliation. As discussed here yesterday, be very careful that any adverse employment action you take as an employer is based purely on concrete, job-related reasons 100% unrelated to employee actions protected by law. If an employee complains — especially about company actions that could potentially endanger others — be extremely, really, very careful before taking action against him or her.

Over the next few weeks, we’ll be counting down the top 10 most “noteworthy” verdicts/settlements from the past year, according to the fine folks at Jury Verdict Research.

Coming in at #10 . . .

$3.6 Million for Alleged Post-testimony Retaliation

In Bender v. City of Los Angeles, a male police officer claimed that the city retaliated against him after he testified in a sex harassment case on behalf of a female police officer.

The parties’ positions couldn’t have been farther apart . . .

The plaintiff alleged that after he testified, the city (1) dropped him from his unit, (2) demoted him to a lower rank, (3) slashed his salary and then (4) transferred him to a desk assignment that required a four-hour commute time. The defendant denied the plaintiff’s allegations and asserted that the plaintiff was disciplined for (1) storing explosives in an inappropriate manner, (2) being insubordinate and (3) not working well with other officers.

The court sided with the plaintiff, awarding him $3.6 million in compensatory damages.

Lesson for Employers

As we’ll see over the course of our countdown, retaliation cases can be costly (and difficult to disprove) for employers. In fact, the median award for retaliation cases over the past seven years is $225,000.

Be very careful before disciplining an employee who recently engaged in protected activity, including complaining of discrimination, filing a worker’s compensation claim, taking medical leave, participating in an investigation and/or testifying at a hearing. If you don’t have concrete, job-related facts that are 100% unrelated to any of the items in the foregoing list, don’t take action.

Source: Jury Award Trends and Statistics (2009 Edition)

According to the latest study from Jury Verdict Research, employment verdicts continue to be on the rise. 

The median award for all types of employment claims rose a whopping 60% in the past year, from $204,000 to $326,640. Discrimination verdicts rose 16%, from $208,000 to $241,119.

Some other fascinating facts . . .

What are an employer’s chances of winning at trial?

Employers won only 39% of discrimination lawsuits in the past year, tied for the worst win rate in the past decade.  The lowest win rate (33%) was in age discrimination cases and the highest (52%) was in disability discrimination cases.

What are the most common discrimination claims?

Sex was #1 (35%), followed by race (26%), disability (16%), age (13%) and “other” (includes pregnancy, religion, national origin and sexual orientation) (10%).

What forms of discrimination generate the biggest verdicts?

Age discrimination was #1, followed by disability, sex and race.

What employers took the biggest hit?

Manufacturing/industrial had the biggest verdicts, followed by government, service/retail and then transportation.

Are employers better off in federal or state court?

Employers are better off in federal court, where they won 43% of the cases, versus only 37% in state court.  In addition, the median federal award was 39% lower than the median state award ($164,925 versus $270,000).

What about settlements?

The median settlement amount was the highest in the past decade at $90,000 — a 20% jump over the previous year.

Where can I get more?

For the full report – required reading for all HR professionals, business owners and employment lawyers – click here.

According to the National Law Journal, the EEOC will soon release statistics showing that age claims declined in the past year — defying all conventional wisdom.

The EEOC says that age claims were down 7% last year. That’s pretty shocking, especially considering all the RIF activity nationwide and the EEOC’s announced intention to more aggressively enforce the law. The 7% drop is a stark contrast to the 30% increase the prior year.

“The facts are turning out different than people thought in terms of age discrimination charge numbers,” said EEOC Assistant Counsel Carol Misaskoff. “What is sort of anecdotally appearing to people is not what we’re seeing in the numbers.”

Record EEOC claims. Rising litigation. Soaring damage awards. It’s a simple formula: economy down = lawsuits up. Or so the experts say.

Each quarter, we check to see what our loyal Blawg visitors are experiencing. At our most recent webinar, we asked our 1,531 attendees:

Are you seeing an increase in employment law claims?

Here are the official results:

• Yes, substantial increase: 6%
• Yes, modest increase: 27%
• No change: 65%
• No, modest decrease: 0%
• No, substantial decrease: 0%

A whopping 0% reported a decrease, with 100% reporting either an increase or no change. 33% reported an increase (down 8% from last quarter’s 36% but up 6% over the previous quarter’s 31%).

The majority are still in the “no change” category (65% this quarter versus 60% last quarter).

Click here, here and here for more on this topic. As always, thanks for your participation!