Employment laws can be exceedingly difficult to administer — especially when they change approximately every 3.8 seconds as they have this year.

To help us ensure that we’re giving you the information you need, each quarter we ask you to identify the employment law area that is giving you the most trouble. This quarter, we asked an audience of 1,551 HR professionals and business owners the following question . . .

What employment law issue gives you the most headaches?

“Medical Issues” topped the list once again, with a whopping 36%. That’s not too surprising, given the new HITECH Act and all the changes to the ADA and FMLA in the past year. Number two with 11% was “Terminations.”

Here are the top ten vote-getters:

1.   Medical issues (ADA, FMLA, HIPAA, HITECH, WC, etc.): 36%
2.   Terminations: 11%
3.   (Tie) Investigations and Wage and Hour: 9%
5.   RIFs: 7%
6.   Litigation (claims, charges, depositions, lawsuits, etc.): 6%
7.   (Tie) Union issues and Immigration (I-9s, visas, etc.): 4%
9.   COBRA: 3%
10. Non-competes: 1%

We’ll use these results to guide the content we create. As always, thanks for expressing yourselves!

In case you haven’t noticed, the holiday season is upon us. Every year, we get questions about what employers should (and shouldn’t) do when it comes to holiday parties to avoid winding up in court (or in jail).

Let’s start with some interesting statistics:

• only 62% of companies are having a party this year — the highest degree of humbuggery on record (compared to 77% last year and 90% in 2007);
• of those having parties, 64% will be employee-only events and 29% will be scaled back from last year’s festivities;
• fewer employers are planning parties during work hours (43% versus 57% last year) and/or on company premises (29% versus 35% last year); and
• most parties will be potluck-ish, with only 36% (versus 57% last year) saying they’ll use a caterer.

So, what are the latest and greatest tips for avoiding legal liability without being too much of a Scrooge? Ask and you will receive . . .

1. Have a party. Employees need one this year more than ever.
2. Set expectations. Tell employees in advance what will and won’t be allowed.  Remind managers to act like managers and to be on the lookout for potential misconduct.
3. Don’t serve alcohol. If you do: (a) use tickets or some other system to limit the number of drinks; (b) use professional bartenders — not managers — to serve drinks, check IDs and monitor consumption; (c) offer lots of non-alcoholic beverages; and (d) provide taxis, hotel rooms and/or designated drivers for employees who over-indulge.
4. Consider inviting spouses. Doing so can help discourage bad behavior and has the side benefit of boosting good feelings about the company at home (unless the party’s a total dud).
5. Watch The Office. Rent Season 2, watch the episode entitled “Christmas Party” and do the exact opposite of everything you see.

Enjoy!

(Sources: Challenger, Gray & Christmas; Towers, Perrin; Fisher & Phillips, LLC)

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!

On the heels of reports that women may soon outnumber men in the workplace, it seems that just about every media outlet has run a story on the changing landscape of the American workplace. Business Week, The New York Times and now TIME magazine have all devoted considerable space to this issue.

So, what are the latest facts? Here are the highlights:

• When Will Women Be #1? Women now constitute 49.83% of the U.S. workforce. Experts predict that women will top the 50% mark by the end of 2009.
• Who Brings Home the Bread? 40% of women say they’re the #1 breadwinner in the household. In 1970, the wife was the sole breadwinner in less than a million households. That number has now more than tripled to 3.3 million.
• Equal Pay? In 1972, women made 58¢ for every $1 earned by men. Now, it’s 77¢.
• Equal Education? The percentage of college students who are female has grown from 43% in 1972 to 57% today.
• Equal Jobs? Since 1970, the percentage of female doctors has grown from 8% to 28% and the percentage of female lawyers has grown from 3% to 32%.
• Do Women Have to Act Like Men To Succeed? No, say 71% of women and 74% of men.
• Is the Glass Ceiling Gone? 60% of men say there are no longer any barriers to women succeeding in the workplace. Only 50% of women agree.
• More Working Moms. In 1975, only 47% of women with children worked. That number is now 71%.
• Resentment? 69% of women believe that men resent women who have more power than them. Only 49% of men agree.
• Are Men Getting More Tolerant? 71% of today’s men say they’re more OK with the concept of working women than their fathers were.
• Are Women Getting Less Dependent? 70% of today’s women say they’re less financially dependent on their husbands than their mothers were.
• Are Employers Doing Enough? 84% say that companies aren’t doing enough to address the needs of working families. The #1 identified area of improvement? Allowing more flexible work schedules.

What does all this add up to? Here’s what the authors of the TIME report concluded: “It’s no longer a man’s world. Nor is it a woman’s nation. It’s a cooperative, with bylaws under constant negotiation and expectations that profits be equally shared.”

Click here to see the TIME report. Click here for my previous ramblings on the “Mancession” and other related topics.

Sources: Business Week, The New York Times, TIME, Bureau of Labor Statistics, U.S. Census Bureau, American Bar Association, American Medical Association.

Fulbright just released its always-fascinating annual Litigation Trends Survey. Here are some of the highlights:

• More Litigation. For the third year in a row, U.S. companies anticipate an increase in litigation in the coming year.
• Employment Disputes #1. Employment litigation was identified as the top area of increased legal costs and tied for first (with contract disputes) as the most frequent lawsuit type.
• Litigation Costs Up. Companies spending $1 million or more on litigation increased by 18%.
• More Trials. More than half of large companies had at least one case go to trial in the past year.
• Big-$$$ Lawsuits. The number of companies facing lawsuits with more than $20 million at stake is up by 12%.
• Litigation Beats Arbitration. U.S. companies strongly favor litigation over arbitration (55% to 32%, with 13% indicating no preference).
• Average Cost to Litigate. The average costs to litigate a single-plaintiff case is edging closer to $100,000, with 58% of companies reporting an average cost of less than $100,000 and 42% reporting an average above $100,000.
• More In-house. Companies continue to shift toward having more in-house lawyers managing litigation.
• End of the Billable Hour? Companies also continue to increase their use of alternative fee arrangements to control costs.
• What’s Up? Age, race, sex and religious discrimination cases are on the rise. Wage and hour and disability cases are stable. ERISA suits are down.
• Biggest Exposure. Age cases are #1 (35%), followed by race (31%), harassment (30%), sex (28%) and wage and hour (28%).
• Class Actions Down. Class actions remain down from their peak two years ago, with 36% reporting a new class action (versus more than half in 2007).
• More Corruption? The number of companies reporting corruption investigations nearly doubled versus last year.
• Anti-social? Approximately 40% of companies block employees from social networking sites. Those most frequently blocked include Facebook (42%), MySpace (42%), YouTube (37%), Twitter (34%) and LinkedIn (30%).

Click here to download the full report.

A recent survey by the Pew Research Center sought to answer that question. Here’s what it asked . . .

Just your impression, In the United States today, is there a lot of discrimination against __________ or not?

The top vote-getters? Gays and lesbians, followed by Muslims and then Hispanics.

Here are the full results (% of “yes” votes):

• Gays and lesbians: 64%
• Muslims: 58%
• Hispanics: 52%
• Blacks: 49%
• Women: 37%
• Jews: 35%
• Evangelical Christians: 27%
• Atheists: 26%
• Mormons: 24%

(Special thanks to Jon Hyman of Kohrman, Jackson & Krantz for bringing this to my attention)

Yesterday, we talked here about what social networking sites our visitors use most. Today, we’ll talk about how they’re being used.

Social Media Intelligence?

More and more employers are using social media to gather “intelligence” on employees and potential candidates.

We previously reported here about an employee whose bereavement leave was proven by his manager to be a lie based on a Facebook photo showing him in a fairy costume and holding a beer at a Halloween party (instead of a funeral).

CNN reports on a couple of similar recent cases:

• An employee expressed on her Facebook page how boring her job was. Shortly thereafter, she was fired and given this note: “Following your comments made on Facebook about your job and the company we feel it is better that, as you are not happy and do not enjoy your work we end your employment.”
• A Philadelphia Eagles stadium employee was upset that the team had traded one of his favorite employees, Brian Dawkins. He posted: “[expletive deleted] devastated about Dawkins signing with Denver . . . [expletive deleted] Eagles R [derogatory term deleted]!!!” Two days later, the employee was fired.

If you want to know what your employees really think about you and your company, you might want to check out Twitter. Here are just a few recent real-life “tweets” posted by employees:

• “hate my job!! i want to tell my bosses how dumb they are and how meaningless this job is, then quit, and be happy!”
• “with my boss on twitter, maaaybe I should take down that sexy picture of her . . . but her reaction will be priceless!”
• “so my job was to test all the food at the new restaurant, can I just say, ughew. I’m going to taco bell . . .”
• “smoking weed at work is so [expletive deleted] great ”
• “I’m really bummed that I’m working today, i asked off so i could study but my boss is a [expletive deleted] who can’t read.”
• “Coworker smuggled out a chair for me. Currently being paid to SIT around . . . I don’t hate my job today!”

Click here for more hard-to-believe-they’re-real employee tweets.

Social Networking and Candidate Screening

According to a recent survey, 45% of employers use social media to screen potential job candidates, up from 22% just last year.

Not too surprisingly, the industries most likely to use social media for this purpose are IT (63%) and professional and business services (53%). What do employers use most for this purpose?

• 29% search Facebook
• 26% search LinkedIn
• 21% search MySpace
• 11% search blogs
• 7% search Twitter

What caused employers NOT to hire someone? When the candidate posted:

• inappropriate photos/information (53%)
• refererences to drug/alcohol abuse (44%)
• negative comments about previous employers/clients/co-workers (35%)
• poor communication skills (29%)
• discriminatory comments (26%)
• misrepresentations about job experience (24%)
• confidential information belonging to a previous employer (20%)

On the flip side, what causes employers to want to hire someone? Online information that:

• provides a good feel for the candidate’s personality and fit (50%)
• supports the candidate’s professional qualifications (39%)
• showcases a candidate’s creativity (38%)
• demonstrates solid communication skills (35%)
• shows that the candidate is well-rounded (33%)
• provides positive references about the candidate (19%)
• awards and accolades (15%)

The Bottom Line

Your employees are using social networking tools. If you don’t, too, you might be missing a hugely valuable source of information.

So, get connected. But be careful about anything (1) you personally post and/or (2) use to make employment decisions. For the former, use our time-honored “mom” test (don’t say anything you wouldn’t want your mother to read). For the later, the test is simple: job-related, job-related, job-related. If it ain’t, don’t use it.