The claim of the staff is distracting, expensive and in most cases can be avoided. Jury Verdict Research The 2007 issue of Employment Responsibility, Jury Awarding and Statistics Trends highlights some employment statistics and trends you should know:
Over the past 20 years, employee litigation has increased by 400% to the current level of 6.5 applications per 1000 employees per year
- The most common targets for federal discrimination claims are private employers, ranging from 15 to 100 employees (41.5%); the second - private companies with an excess of 500 employees (23.9%); and the third - private companies, which employs from 100 to 500 employees (18%)
- In any hiring application filed to a federal court, the probability of 16% will exceed $ 1 million. US and a 67% chance that the remuneration will exceed $ 100,000; attorney fees not included
- The average compensation of all federal court cases was $ 493,534, reflecting a 45% increase since 2000; compensation does not include penalties or attorney fees
- In state courts, compensation charges increase by 39%, while unlawful requirements for termination of business increase by 260%
- If the labor law goes to court, plaintiffs are more likely to win 67% of cases in state court and 63% in federal court
- Over the past 5 years, the cost of settling a labor claim has increased significantly - from $ 130,476 in 2001 to $ 310,845 in 2006
These general statistics are sobering and cause concern to ALL organizations. This is aggravated by recent changes in federal and state laws that affect almost all organizations. In the harsh employment conditions that seem to benefit employees more, risk minimizing organizations MUST understand recent changes to the provisions of the Americans Act with Disabilities Act (ADA) and family and medical leave provisions (FMLA). Employers should take immediate steps to ensure that they comply with new laws in order to protect themselves from future liability.
What are the changes for Americans with Disabilities (ADA) 2009 I need to understand?
The ADA requires that employers with 15 or more employees provide qualified persons with disabilities an equal opportunity to take advantage of employment opportunities. It prohibits discrimination in recruitment, hiring, promotion, training, pay, social activities, and other benefits of employment. It also requires employers acceptable housing to the known physical or mental limitations of persons with disabilities, unless this leads to undue difficulties for the employer.
The amendments to the ADA, which entered into force on January 1, 2009, overturn the decisions of the Supreme Court and make it clear that the ADA is designed to provide wide coverage of staff. In general, it provides existing definitions for a larger number of employees. For many employers, existing policies and procedures may be more invalid or helpful in defining personnel management practices.
Specific ADA changes for 2009:
- Organizations cannot consider mitigating measures, such as medicines or other measures that cure a disease when determining whether a person has a disability.
- Expands the definition of disability by adding to what may affect basic livelihoods and now includes basic physical functions such as immune function, normal cell growth, digestive, intestinal, bladder, neurological, cerebral, respiratory, blood circulation, endocrine and reproductive functions.
- Clarifies that a violation that episodic or in remission is a disability if it severely limits basic livelihoods when active.
- Clarifies that one of the definitions of disability - “considered to be deficient” - does not require damage to the actual limitation basic livelihoods ,
FMLA provides leave entitlement for eligible employees up to 12 weeks of unpaid work leave, for a 12-month period for employers who employ 50 or more employees. Leave may be taken for birth or a place for adoption or raising a child; the serious health of a spouse, son, daughter, or parent; or serious health condition of the employee, which makes the employee incapable of performing the functions of the employee.
The new rules, which entered into force on January 16, 2009, created new categories, departure of military personnel and qualifying leave , and revised and clarified the existing rules. These changes require modifications for organizations with military personnel operating in permanent or reserve military service, or military personnel with compulsory military or reserve military service, changes in procedures / forms of care, training / communications and policies, current personnel practices related to employee leave .
Specific changes to the 2009 FMLA:
- Provides departure of military personnel which allows an employee who is a spouse, son, daughter, parent or next of kin of a member of the service with a serious injury or illness, to receive a total of 26 working days without vacation pay for one 12-month period.
- Provided by qualifying leave which allows eligible employees to receive protected, unpaid leave of up to 12 working days for the spouse (s) of a child, child or parent who is in active service or called up for active service in support of a contingency operation. This leave includes a brief deployment notice, military activities and related activities, childcare and school activities for those unable to self-care, drawing up or updating financial and legal measures, spending time with an enrolled military member of a short-term, temporary rest and post-deployment leave during deployment, post-deployment activities and other activities that arise from the actual duty of a protected military member or calling for active service.
- Provides employers 5 days to submit Acceptance Notice An employee’s next request for FMLA leave or the knowledge that an employee’s leave may be qualified by the FMLA.
- Changes temporary requirements and procedures for medical certificates.
- Indicates that light work does not take into account the release of the FMLA release.
- Clarifies that the employee is obliged to explain the reasons for the request for care if the employee cannot give a 30-day advance notice of the need for leave.
- Clarifies when an employer may require fitness attestation for duty.
- Allows employers to delay or deny an FMLA leave to an employee who unreasonably fails to comply with the employer's requirements and procedural requirements for requesting leave.
- It requires that the worker notify him of the need for elimination of emergency leave as soon as possible, regardless of how far in advance such leave can be foreseen.
- In addition to changes to the ADA and FMLA, other laws and changes may require changes to existing policies, procedures, and personnel management practices.
- Starting January 1, 2009, in order to become an independent contractor, you must obtain a certificate of release from an independent contractor from the Department of Labor and Industry of Minnesota. Employers in some industries will have to pay workers. compensation, unemployment insurance and other benefits for all without a certificate.
- From February 2, 2009, all employers will have to use the new Form I-9;
- Acting in November 2009, the 2008 Law on the Prohibition of Genetic Information will protect Americans from unfair treatment by employers and health insurers due to differences in their DNA that may affect their health.
- From January 1, 2008, employers are required to inform employees about their rights and remedies available Staff Records ,
- The Minnesota Supreme Court in 2008 clarified that the Minnesota wage statute requires employers to pay leave leave for employees only if there is a promise to pay. No more automatic entitlement to accrued vacation pay when occupation is terminated.
What should employers do?
Given the many changes, employers must act quickly to align policies, procedures and practices with these changes. At a minimum, all Minnesota employers should conduct a thorough review of recruitment, selection, training, promotion, performance evaluation, and HRIS systems to ensure compliance. All data on employees and managers, forms, information on the site, etc. should be consistent with these changes.
What policy changes need to be implemented?
- Review and revise all policies to reflect changes in ADA, FMLA, and other laws.
- Make sure your organization’s procedures and forms reflect recent changes.
- Establish procedures for responding to requests for placement in ADA
- Review the FMLA notification forms. Notification forms are available on the Department of Labor website: http://www.dol.gov/whd/index.htm
- Review medical certification forms to remove a request for a type of leave and provide additional information.
- Revise employee guidelines and policies regarding FMLA leave; set out specific procedures that allow employees to report exit
- Train managers how to determine when sensible housing may be necessary
- Document all interactive discussions and ADA placement solutions.
- Travel managers to deal with situations that may be associated with a disability, in particular when employees feel they are considered disabled
- Prepare job descriptions for each position that provide main job functions including minimum physical requirements for each EJF, including certificates of fitness for work
- Train Manager for New Military Waste and Other Rules Changes
- Keep track of notification dates and the possibility of a FMLA vacation
- Make sure your managers have the right training to identify problem situations and follow existing procedures.
- Actively investigate all messages of concern
- Document each step of the FMLA process and all employee interactions that may be subject to ADA or FMLA laws.
For many organizations, the next step is to seek professional help. A consulting firm with knowledge of labor law can help determine how to reduce overall program costs and significantly increase costs.
