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Training Is Key in EPL Cases Avoiding Employment Practices Liability Cases Aug. 7, 2000 (SmartPros) Relatively unknown as little as 10 years ago, the issue of employment practices liability (EPL) has zoomed to the top of the chart as one of the felt concerns of many businesses. This is due, at least in part, to the increasing number of EPL cases being filed, and the media coverage devoted to the high profile cases. The Clarence Thomas-Anita Hill case at the beginning of the last decade, followed by the publicity that dogged no less a person than the President of the United States, has catapulted the subject into the center of public attention.
The early 1990s witnessed the introduction of subtle, yet important, changes to employment laws that greatly increased the liability and exposure of employers to potential lawsuits. In 1991, for example, employees were given the opportunity to have juries decide their suit, as well as the right to collect punitive damages, options that had not been available previously. The passage of the Americans With Disabilities Act (ADA) in 1990 created new protected classes of employees based on personal characteristics. The Family and Medical Leave Act (FMLA) delineated more rights based on specific life situations.
The combination of the right to have juries decide the issues, combined with potentially unlimited monetary damages, created huge liabilities for American businesses. In addition, the legislation was vague in many areas, and invited the courts to provide more definition. Looking back at the litigation surrounding the ADA, for instance, reveals that almost 80 percent of the cases litigated under the act have revolved around termination issues, not hiring issues. Thus the legislation became the foundation for wrongful termination suits, rather than providing access to increased chances of employment as its authors intended.
Another factor that has figured largely in the picture has been the "reengineering" of the workplace. The "down-sizing" and "right-sizing" so characteristic of the 1990s disrupted the fabric of American business. Many long-term employees found themselves out of work since job security was no longer based on length of service. With this experience came a decided souring of employees' attitudes toward employers. Employee loyalty plummeted and the reluctance to sue the employer greatly diminished. This factor only increased the chances that an employer would become the target of an employee lawsuit.
The American Bar Association reports that more than 30,000 new lawyers enter the profession each year. Many of them emerge from law school with sizable debts that must be repaid. The field of employment law attracts them as a growing and lucrative arena in which to establish a practice. The business community should not be surprised to see an increase in the filing of EPL lawsuits, including many that are marginal and frivolous.
With all of these factors coming together at the same time, an increase in EPL litigation is to be expected, and is, in fact, happening. What can an organization do to protect itself from the increasing liability? The following is a list of things that should be considered to reduce potential risk:
The EPL issue will be with us for a long time. If you take action now, and implement effective policies and training, you can greatly reduce the chances that you will be named in an EPL lawsuit. If you are sued, you will have a much better chance of winning the suit if you have been proactively involved in establishing safeguards in your workplace. Now is the time for action.
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