There is a growing trend in employment litigation to use an employment practices expert to provide an opinion on whether the employer's actions in a particular situation were appropriate. Increasingly, parties in litigation recognize the utility of a practitioner who can navigate a jury through a maze of facts and speak to how a work-related situation was handled. Courts continue to recognize the validity and admissibility of testimony on employment practices. In Maharaj v. California Bank & Trust, the Court reviewed numerous decisions permitting testimony by human resources experts and found that expert testimony on whether the employer acted consistently with the standard of care may assist the jury in deciding the employer's liability for discrimination.1
The employment practices expert reviews depositions and other materials produced in the discovery phase of a lawsuit to give an opinion on the employer's decisions and actions flowing from those decisions. The expert reviews those decisions and actions in relation to "generally accepted human resource standards." If an employer is to defend actions in employment matters, it must consider how its actions measure up against these standards.
There are several employment actions that lend themselves to review by an employment practices expert. As those who work in the area of human resources and employment law know, the legal rules and how those legal rules translate into workplace practices can be complex and sometimes counter-intuitive.
Key areas in which experts may weigh in are:
Employer's Response to Complaint/Investigation/Corrective Action
There are clearly accepted practices for responding to a complaint by an employee that involves alleged harassment or discrimination. Whether the employer responded and how it responded are decision points that create opportunities for experts to examine employer practices:
- Did the employer recognize the complaint as a complaint? The employer that elevates the form over the substance of the communication of a complaint creates fertile ground for an expert on employment practices.
- Did the employer promptly respond to the complaint and was its response appropriate? Generally accepted human resource practices call for the investigation of complaints that implicate non-harassment policies and this concept has been extended to other policies related to legal compliance such as nondiscriminatory promotion.
- Did the employer implement corrective action that was appropriate to stop the harassment or other conduct? Documentation of corrective action and follow up with the complainant help the employer when its actions are under examination by an expert.
Most HR practitioners are well aware of the explosion of retaliation claims, whether raised internally or externally to enforcement agencies. Just like the number of claims, abundant opportunities to question employer practices present themselves.
- Has the employer taken precautions to prevent retaliation against an employee who makes a complaint of discrimination, harassment or some other complaint that constitutes a protected action? Employers that do not provide reminders that retaliation is prohibited and follow up with complainants to insure they are not retaliated against may create an environment in which retaliation can occur and about which an expert can provide an opinion that generally accepted human resources standards have not been met.
- Has an employee made a claim of retaliation for a protected action and if so, did the employer investigate the complaint? Many employer policies now expressly require investigation of retaliation complaints, but employers sometimes fail to follow through by actually conducting an investigation. Failing to investigate retaliation complaints without a clear and legitimate reason may also draw the attention of an employment practices expert.
Hiring and Supervision
Under state law, someone injured at the hands of an employee may seek recovery against the employer if the employer can be argued to have known or should have known that the employee posed a risk to others. Negligent hiring and retention claims can be dangerous for employers because of the opportunity for recovery of significant damages and the sometimes emotional nature of the facts. Background checks of candidates for positions are often a component of generally accepted human resource practices, and the nature of the position may indicate the need to tailor the background evaluation. Further, if misconduct is displayed in the course of employment, generally accepted standards may call for a response that stops the misconduct and addresses the risk to other employees posed by the misconduct.
- Did the employer have a process consistent with accepted standards and with other employers in its industry to conduct pre-employment background checks?
- Did the employer appropriately seek references and criminal history to gauge whether candidates were suitable for the position in question?
- Did the employer respond to concerns during employment that the employee may pose a risk to other employees, customers, or the public?
Handling Leaves of Absence
Employers should know the traps that trip them up when an employee is out of work for reasons that may be covered under the Family and Medical Leave Act, the Americans With Disabilities Act, and similar state laws. Increasingly, employees are presenting employers with complex situations that require more than superficial analysis and employment practices experts are thus often asked to weigh in. For example, the presence of factors such as mental illness and the need for intermittent leave can require careful consideration of whether notice was provided, impact on the employee's job duties, and other questions.
- Does the employer have clear policies about what can be covered under the FMLA and what the employee must do to give notice of the need for leave?
- Did the employer provide notice of eligibility and respective rights and responsibilities and provide a response indicating whether the leave is covered in a timely manner?
- Did the employer consider whether the condition is covered under the ADA and whether leave may be a reasonable accommodation?
While employers cannot be clairvoyant, there are established human resources practices that employers are expected to know and follow in handling their workforces. The applicability of these practices may vary based on size and sophistication of the employer. Nevertheless, virtually all employers are expected to be aware of and utilize standard human resource practices. Those who fail to do so risk the scrutiny of an employment practices expert if the employer's actions are later challenged in litigation.