HR & the law is high on the SHRM docket

A host of lawyers and experts will address reasons behind the recent upsurge in employment lawsuits.

By Mark Schoeff Jr.

n angry worker whose job has been outsourced to India lashes out by suing her company. A group of employees takes legal action to win overtime pay. A worker encourages his female colleague to enter a "best breasts in Salt Lake" contest that they hear on the radio while working in the office. She files suit against their employer.

The increasing litigiousness of American society can be felt acutely in the workplace, with employment suits increasing by more than 2,000 percent over the past two decades.

"One of the things that companies expect from their HR staffs is (to) keep them out court," says Jathan Janove, a partner at Janove Baar Associates in Salt Lake City who is scheduled to give one of 45 presentations on human resources and the law during the SHRM conference in San Diego. "You now have a major emphasis on claims prevention."

Allison West, a principal at Employment Practices Specialists in Pacifica, California, and senior specialist in human resources, says, "The law has crept into every aspect of being an employer. So many HR professionals ... are afraid to make a decision without a clear understanding of what the law is. There are a lot of different ways of being sued."

Lawyers and experts scheduled to speak at the conference cite a number of reasons for the growth in employment lawsuits. Collective action is becoming easier to take. The Sarbanes-Oxley financial disclosure law fosters whistle-blowing. Workers are less reticent to talk about sex in the workplace because the subject pervades the media. Fierce competition in the global economy has forced layoffs and changes in performance expectations that are roiling employees. And a civil rights law passed in 1991 allows both compensatory and punitive damages as well as jury trials for cases of alleged workplace discrimination. Once juries were involved, the potential for multimillion- dollar verdicts escalated.

"Your winning lottery ticket tends to be your lawsuit against your employer," says Douglas Towns, a partner at Jones Day in Atlanta who defends corporations.

Company executives rely on human resources to gauge the bottom-line impact of legal problems. Good HR people play out the consequences, says Hunter Lott, a partner at HCap International in Lawrence, Kansas. They outline whether a potential legal situation could cost $300,000 or $3 million. "The awareness of what's at stake will help managers at all levels make better decisions."

But tough decisions to strengthen a company's competitiveness also can lead to the courtroom. As the service and knowledge sectors of the American economy grow, a premium is placed on the ability of employees to work across borders and across cubicles. When a manager is confronted with someone who can't perform in a group, legal dangers lurk.

Despite the legal minefields that companies traverse each day, basing policies and procedures on the law makes workplaces more inviting. "The issue is not to run from the law or be afraid," Lott says. "A lot of this stuff is just the right thing to do. Some common sense will go a long way."

SESSIONS: At 10:45 a.m. today, Home Depot's Cindy Milburn is set to talk about staffing up rapidly; the program is repeated Wednesday at 10 a.m. ... Also at 10:45, PwC's Jim Hatch will explain how to make a case for a bigger budget for annual bonuses, and how to quantify the often ignored "soft costs" of turnover—which he says are often $50,000 to $80,000 per employee. .. At 2:15 p.m., Wells Fargo's Jean Bourne is explaining how to implement a recognition program. ... If you've already mastered recognition, hear Kennette Reed of Kennette Read & Associates discuss the retention and recruitment of older employees at 2:15 p.m. ... TalentKeepers' Richard Finnegan says people join companies because of the pay, location and the nature of the job. That's not why they leave them, but he'll tell you why at 4 p.m. today. He'll also discuss what his 40,000-employee survey found was the No. 1 thing workers want in a boss. Joan Olivieri, who works for the state of Ohio, went to Finnegan's talk yesterday and said it has given her ammunition to sell her agency director on the notion that people are quitting because they don't trust their managers, who sometimes "aren't trained well, and aren't listening."

AFTER HOURS: If the Village People felt too retro, Hall & Oates will at least get us as current as the mid-1980s. If you're double-booked for tonight, never fear: Daryl and John are playing Wednesday night at the Del Mar Fairgrounds.