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

Each quarter, we conduct a survey to see what’s really going on in the world of employment litigation. We asked the 2,167 attendees at our most recent webinar the following question:

Are you seeing an increase in employment law claims?

Here are the official results (with last quarter’s numbers in parentheses):

• Yes, substantial increase: 6% (6%)
• Yes, modest increase: 29% (31%)
• No change: 61% (60%)
• No, modest decrease: 3% (2%)
• No, substantial decrease: 1% (1%)

What the Numbers Mean

Once again, far more employers are seeing an increase — as opposed to a decrease — in claims. The good news: that trend may be slowing a bit. The percentage of respondents reporting an increase shrank slightly from 37% last quarter to 35% this quarter.

The not-so-good news: only 4% of our respondents reported a decrease. While that’s a bit better than last quarter’s 3%, it still means that eight times more of our respondents (35% versus 4%) are seeing an increase versus a decrease.

What Should Employers Do?

Given the ongoing increase in litigation, it’s critically important to (1) know the law and (2) take action on key risk areas immediately. We discussed a variety of ways to achieve those goals in our latest webinar. Click here to view the replay if you didn’t get a chance to join us.

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

On Monday, a New York jury found Novartis Pharmaceuticals Corporation liable for discriminating against female employees and awarded more than $3.3 million in compensatory damages. Yesterday, after further deliberations, the jury imposed an additional $250 million in punitive damages.

The damages will be apportioned among a class of as many as 5,600 women who alleged discrimination between 2002 and 2007. Individual awards will be capped at a total of $300,000.

In addition to pay discrimination, the plaintiffs alleged that male supervisors mistreated female employees, urged female sales reps to seduce doctors and discriminated against pregnant employees.

Plaintiffs’ counsel David Sanford had asked the jury of five women and four men to award punitive damages of between 2-3% of Novartis’ $9.5 billion in revenue for 2009, telling them that the company “tolerated a culture of sexism, a boys’ club atmosphere.” The jury obliged, awarding the plaintiffs close to 3%.

“The women of Novartis have had their day in court,” Sanford said. “We are absolutely delighted the jury has done the right thing.”

Novartis President Andy Wyss said the company was “disappointed in the jury’s verdict,” insisting that “for more than 10 years the company has developed and implemented policies setting high standards with regards to diversity and inclusion for the development of our employees.”

Novartis could end up paying even more, as well as being required to implement sweeping policy and process changes to deter future discrimination. The judge still has to decide whether to award as much as $37 million in backpay and/or whether to impose injunctive relief.

Various experts are already predicting that this case and the recent certification of the largest class action employment lawsuit in history are likely to spur even more big-ticket employment lawsuits.

Stay tuned.

First, there was the certification of the largest class-action employment lawsuit in U.S. history. Then, a college agreed to pay $1 million to settle a sex harassment lawsuit. Then another employer agreed to pay $263,360 to settle age discrimination claims. Even a union got into the act, settling a retaliation suit for relatively big dollars.

Here are some of the details . . .

Wal-Mart Makes History

On Monday, a federal court in San Francisco certified the largest class-action employment lawsuit in U.S. history. That means that a case that could involve several hundred thousand plaintiffs demanding billions of dollars in damages may now proceed to trial.

The suit was first filed in 2001 by a greeter named Betty Dukes who worked in Wal-Mart’s Pittsburg, California store. Dukes and others claim that female employees are paid less and given fewer opportunities than their male counterparts. They also contend that women make up more than 70% of Wal-Mart’s hourly workforce but less than a third of store management, saying that the company’s “strong, centralized structure fosters or facilitates gender stereotyping and discrimination.” The plaintiffs seek back pay and punitive damages.

Wal-Mart has objected to the size of the suit, calling it “historic” in scope and arguing that it would be too difficult to litigate. Judge Susan Graber of the appeals court disagreed, ruling that although “the size of this class action is large, mere size does not render a case unmanageable.”

Wal-Mart has indicated that it may appeal the court’s sharply divided 6-5 decision to the Supreme Court, saying “We do not believe the claims alleged by the six individuals who brought this suit are representative of the experiences of our female associates.”

College Pays $1 Million

Lafayette College in Easton, Pennsylvania agreed to pay $1 million and furnish significant remedial relief to settle a sex harassment lawsuit filed by the EEOC.

The EEOC alleged that Lafayette’s supervisor of loss prevention engaged in repeated harassment of five female public safety employees, including groping, forcible kissing, lewd comments, explicit gestures and pornographic e-mails. One employee was forced to quit due to the harassment, according to the EEOC.

“No one should have to endure the abuse these women faced at work,” said EEOC Chair Jacqueline Berrien. “This significant settlement shows that the EEOC will insist on meaningful relief for workers who are victims of harassment.”

Each of the five plaintiffs will receive $200,000 under the terms of the settlement.

Fire Department Pays $263,360

The Selden Fire District in Long Island, New York agreed to pay a total of $263,360 to 23 firefighters to settle a class-action age discrimination suit brought by the EEOC.

The EEOC alleged that the district refused to let volunteer firefighters over age 55 accrue credit toward a length-of-service award due to their age. As a result, the EEOC contended, older firefighters lost pension amounts after they turned 55 in violation of the Age Discrimination in Employment Act.

“Older workers, like these firefighters, should not be deprived of valuable pension benefits simply because of their age,” EEOC Chair Berrien said. “This settlement ensures that these highly valued public servants will finally receive fair compensation.”

Union Settles Retaliation Suit

The Maryland Classified Employees Association (MCEA) agreed to pay $80,000 to settle an EEOC retaliation suit. The EEOC charged that MCEA (1) fired an employee for her “perceived involvement” in a prior EEOC investigation of MCEA’s alleged unlawful employment practices and (2) unlawfully denied a promotion to another employee who filed a discrimination charge against the union. The MCEA also agreed to various anti-retaliation remedial efforts in a two-year consent decree.

“Title VII depends for its enforcement upon the cooperation of employees who are willing to oppose or report employment discrimination,” said EEOC Acting Regional Attorney Debra Lawrence.

Stay tuned.

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)