Today I attended Littler Mendelson’s 2014 Ohio Employer Conference. Littler is one of the preeminent employer-side labor and employment firms in the country. I sat through several sessions on hot topics on employment law and learned far more than I can do justice to here. But one idea really jumped out at me: “Litigation Armoring,” a term coined (and trademarked) by Littler. The idea is that employers should be proactive in approaching legal compliance issues – don’t wait until a claim is filed to react. Do some prep work on the front end to avoid claims altogether, or to at least have some solid defenses if you do get sued. This idea of being proactive is central to my own personal philosophy with respect to employee relations and other workplace issues, so it’s no surprise I was captivated by this term.
The context in which Littler raised this idea was avoiding class actions under the FLSA. If you know anything about employment law, you know that the FLSA is one of the most – if not the most – troubling statutes to comply with. Mistakes are easily made and often inadvertently. Liability risks are huge – we often see “bet the company” cases in this area, whereas that is hardly ever the case in the EEOC (discrimination/harassment) context.
Today it is generally accepted conventional wisdom that companies need to have harassment/discrimination prevention plans (if this is a new term to you or you don’t have one in place, call me; I can help). Such plans typically include a comprehensive policy (including a strong anti-retaliation provision), a well publicized complaint procedure, a ready response to such complaints (e.g. investigations), and training on these topics. The Littler lawyers suggested this same approach apply to the wage and hour context as a way to engage in Litigation Armoring. What would such a proactive plan look like? Some of the elements carry over from the harassment context, such as a policy, training, and a complaint procedure. Others require additional steps, such as auditing pay practices and exempt/non-exempt classifications (something you are hopefully doing). Taking this a step further, Litigation Armoring in this context includes generating documents (i.e., evidence) that supports your practices and classifications.
It’s heady stuff and and certainly be daunting. But don’t be daunted. It’s important work. Really important.