Our Approach, The New Legal Landscape, and Questions You Should Be Asking

Our Approach

Sharing the View from the Bench

After fifteen years of adjudicating and mediating employment law disputes, Mary knows the factors that lead to legal claims against employers. We also understand what managers and supervisors need to know about the law in order to effectively manage risk and make legally defensible decisions. We teach your leadership and management teams what they need to know about employment law claims and defenses, the crucial role of manager credibility, how judges and juries view the evidence, and how employer actions can create or mitigate risk. Because compliance is not just about knowing the law but changing behavior, we engage participants with case studies, situation analysis, group exercises, and rich discussions that illuminate the law in practice.

Providing a Strategic Perspective on Compliance

Because our mission is to align compliance with strategy, our clients’ business and human capital management strategies are always our point of departure. We integrate compliance training and consulting with evidence-based management practices that mitigate risk and help you achieve your organizational goals. We also provide leaders and managers with the big picture on how workforce trends have driven changes in the legal compliance landscape. Within this context, our goal is to provide practical information and tools to help make compliance easier for managers, strengthen employee and team performance, and improve business outcomes.

happy guy at work vectorsBuilding a Winning Work Culture

We take an integrated approach to legal compliance, incorporating best practices for enhancing trust, open communication, engagement, and motivation into our programs. Why? Because the same attributes of a great work culture characterize ethical, compliant organizations. Business leaders know this: 94% state that the most important objective of compliance training is to create a culture of ethics and respect. (See my thoughts on this here)

Because retaliation claims constitute 42% of all EEOC charges, we provide training in how to encourage productive conflict and dissent in the workplace, which is at the core of organizational success and risk management. We also emphasize the special role leadership plays in establishing and enforcing firm culture. What does a great work culture look like? We believe it has the following characteristics:

  1. Integrity and Inclusiveness. Employees believe that the same ethical and performance standards apply to all employees regardless of level, position, connections, and protected class. This belief is based on the demonstrated consistency and integrity of leaders’ actions.
  2. Collaborative. People trust each other and know that diverse perspectives are welcome, because leaders recognize the best ideas come from free exchange and sharing of ideas between individuals and teams.
  3. Results and performance oriented. Highly engaged, strong performers are rewarded and developed accordingly. Unengaged low performers are addressed fairly, firmly, and consistently, so that A player morale doesn’t suffer.
  4. Employee engagement. Employees feel ownership of their work and have line-of-sight to the strategic goals of the organization.
  5. Respect and Civility. People treat each other with dignity and respect and enforce this code with peers.
  6. Agility and Openness to Change. The organization regularly assesses and adapts quickly to changes in the external environment, including changes in the law.
  7. Worklife Fit and Flexible Culture. People at all levels of the organization make worklife fit a priority, plan for and discuss it openly with their teams, and recognize it as essential to business success.

The New Legal Landscape:
Questions You Should Be Asking

In 2009 the Americans with Disabilities Act (ADA) was expanded in scope to cover an additional 12 to 36 American workers. Are your managers trained to know what is covered and to engage in the interactive process?

In 2008, Congress passed the ADA Amendments Act, broadening the definition of “disability” and requiring employers to largely bypass the question of whether employees are disabled and to focus instead on finding reasonable accommodations. The ADA now covers many temporary conditions and mental and physical impairments that were not previously covered. Frontline managers can create the greatest risk.

Are your drug and alcohol use policies and practices compliant with marijuana laws and the ADA?

Recent changes in state law and the ADA have complicated this legal picture significantly, and the law continues to evolve as courts issue interpretative decisions.

8362736_sFamily Medical Leave Act (FMLA) claims have doubled in the last two years. Congress has expanded, and the EEOC has issued new regulations broadening, the scope of FMLA. Are you current on these changes?

Adults acting in the role of parents, same sex spouses, military families, and others are affected. Retaliation litigation is increasing and the jury verdicts are often enormous. In September 2014, a Wyoming jury awarded $1,481,000, plus attorney fees and interest, to a long-term mechanic who had taken intermittent FMLA leave for back and neck medical treatment, finding his termination retaliatory. A production supervisor in a factory was awarded $413,000 plus attorney fees, after she was terminated within two days of requesting FMLA leave to assist with her husband’s impending surgery. FMLA cases can be filed directly in court without an initial EEOC filing, and the damages awards are doubled by statute unless the employer can demonstrate good faith.

Flexible work arrangements are often mandated as reasonable accommodations under the ADA. Do you have a flexible work program in place that is strategic and compliant?

Has your leadership team decided on its strategic approach to workplace flexibility? Does it account for legal mandates? Are your managers using strong teams, cross-training, and contingent workers to handle strategic and legally mandated flexible work arrangements? Does your teleworking policy define eligible positions clearly? Do your managers need training in handling virtual workers on a part- or full-time basis?

dad and babyFathers are suing to enforce their FMLA rights with more frequency; the EEOC now requires parental leave parity. Are your work culture, policies, and practices up-to-date?

A jury recently awarded an adoptive father $666,610 in damages plus $375,000 in attorney fees for FMLA retaliation after he was fired for taking intermittent leave to visit Russia in the adoption process. A young associate in a law firm recently sued for FMLA retaliation after being fired for using four weeks of leave to care for his wife suffering from mental illness following the birth of their child; the case is going to trial. 2014 EEOC Guidance on FMLA requires the same parental leave for men and women after the initial period of recuperation from childbirth.

Pregnancy discrimination law is evolving and a top EEOC priority. Are your managers current?

The EEOC has prioritized pregnancy discrimination enforcement and issued new pregnancy discrimination regulations. The U.S. Supreme Court has announced a new standard for Pregnancy Discrimination Act claims. Gender stereotype claims are increasing.

Are your policies keeping up with technological advances in the workplace?

Are you protecting company data and property used by remote workers with the necessary written agreements and policies?
Are you at risk of violating employees’ right to privacy to their email accounts on home or personal devices used for work purposes? Be sure your telework policies and procedures aren’t creating unnecessary risk.

For a free one-hour consultation with Mary, call (303) 229-3597 or email her at mary@worksmartpartners.com

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