Are You Ready For The Perfect Storm?
In the autumn of 1993, two massive low-pressure centers collided over the Grand Banks in the Atlantic Ocean. The result of that collision was a hurricane-force explosion that ripped through New England and caused many ships to founder.
Today, fourteen years later, a perfect storm is brewing in Congress and the states. After many years of employer-friendly legislation, the new Democratic Congress is considering three major legislative packages that would wipe out employer protections in key areas. Health care initiatives in the states also promise to expand employees’ rights to paid time off for medical and family leave.
The three bills before Congress are these: (1) legislation dramatically expanding disability rights under the Americans With Disabilities Act [S 1881]; (2) arbitration reform legislation that would wipe out arbitration of employment disputes; and (3) legislation, like that in the states, which would mandate paid family and medical leave for many employers.
The U.S. House of Representatives is already conducting hearings on the ADA restoration bill, which has strong bi-partisan support in both houses of Congress. The House bill, at last count, had 117 co-sponsors. Whether or not any bill comes to the President for signature before the current incumbent leaves office, it is virtually certain that both the ADA restoration bill and the bill outlawing arbitration of employment disputes will be signed by the next President, Democrat or Republican, early in 2009. Even President Bush would be hard pressed to veto either bill – and he would face an override vote he could not likely win.
What does this mean? The ADA restoration act will make it much easier for an employee to establish a disability and thus a right to accommodation. It wipes away Supreme Court decisions that have almost eviscerated the current law – and even expands on the original intent.
It can be predicted without fear of contradiction that employers of 15 or more employees will face great challenges. Fifteen is the floor that triggers federal ADA coverage. However, as virtually every state legislature will follow the federal law, employers with as few as 3 employees will soon be exposed.
Use of mandatory arbitration as a means of limiting large judgments has been growing dramatically in the employment arena in the last decade. Despite judges’ protestations to the contrary in cases expanding its use, arbitration strongly favors the employer. The new bill will eliminate that protection entirely.
Finally, the expansion of family and medical leave rights, with the attending exposure of employers who do not follow the strict guidelines, presents its own dangers. These laws, both federal and state, are enacted as fair labor standards act legislation, meaning that employers subject to them face strict liability for failure to comply.
And while the current federal law covers employers of 50 or more full time employees, the pressure is on to drop that number to 25 or less. And, many states will no doubt look at lower limits.
Already, verdicts in family obligation discrimination cases are soaring. The average verdict is $100,000, without adding in attorney fees and costs. The largest verdict, so far, is $25 million. Few ADA cases have come to trial in the last decade because of the constraints on plaintiffs, but those that have also resulted in seven-figure verdicts. Without question, the number of cases will come from a trickle to a full tide, and verdicts will rise accordingly.
Our experience has shown that professional practices are at far greater risk than their numbers suggest. This is because dental, medical and chiropractic offices are predominantly staffed by women, both of child bearing age and older. Given that society demands these women have primary responsibility for child care [and, today, elder care] and hold a job, they are the ones who most need time off.
In short, professional practices are directly in the path of these two storms – and those who do not take action now might very well founder on a single case.
What can you do? Our recommendations: First, review your employment human resources policies and procedures to make sure that you are not unnecessarily exposing the practice to a claim. If your policies are old, or punitive in nature, have them revised and updated immediately. Second, seek out and find a resource you can call upon in the event of any issue arising – and use that resource well before a possible conflict occurs. Third, consider training in team leadership and practice management.
We have found that employers who provide written employment handbooks that give employees a structured vehicle for attention to grievances and concerns fare much better than those that do not. And, following effective practice management strategies reinforces that confidence by employees that they are being treated fairly.
Do this, we urge you, and however high the waves become outside, your practice will flourish while the others go down.
Mike Moore is ranked among the best in employment law and named one of the top 10 lawyers in Ohio. As Director of McKenzie’s HRSolutions, Mike is the creator of The Employment Policy and Handbook geared to provide dentists who are unsophisticated in the legal arena with a step-by-step policy manual.
Interested in having Mike speak to your dental society or study club? Click Here.
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