IN THIS ISSUE:

1. Feature Story: Do More Layoffs Result In More Discrimination Lawsuits?

2. Cathie's Corner: Good Customer Service Depends On The Customer, Too

3. Prospective Salary Changes Are Okay, But Too Many Can Alter Exempt Status

4. Free Report: Pay Discrimination Audits: Ensuring Your Organization Is Protected Against Ledbetter Complaints 

5. HR Soapbox: See You In A Week!

AHI's We Couldn't Make This Up 

When it comes to dress codes, it's not uncommon to ban a top because it's too revealing or a pair of jeans because they're ripped. But the color of the clothing doesn't matter, or does it? In the Chinese city of Zhengzhou, it matters. In a move "designed to improve the image of...public servants," a new dress code prohibits employees from wearing clothing that is too bright in color or "unnatural hairstyles." The regulations state: "Don't just dress any which way." They also encourage workers to make sure their muted-color clothing matches.

1. FEATURE STORY:
DO MORE LAYOFFS RESULT IN MORE DISCRIMINATION LAWSUITS? 

Employers are always at risk of being sued for discrimination. As layoff numbers swell, that risk isn't likely to go down any time soon. While employees who are still working may be less inclined to want to "rock the boat" and be seen as a troublemaker, those who have already received their pink slip may feel they have nothing to lose. And if they have been unemployed for an extended period of time, they may feel they have everything to gain.

The Equal Employment Opportunity Commission (EEOC) recently reported receiving a record high 95,402 discrimination charges in fiscal year 2008, which ended September 30. This is a 15% increase from fiscal year 2007. Charges based on age and retaliation saw the largest increases — 29% and 23%, respectively. "The EEOC has not seen an increase of this magnitude in charges filed for many years," said EEOC acting chairman Stuart J. Ishimaru. The EEOC speculated that the surge in filings may be due to multiple factors, including economic conditions, increased diversity and demographic shifts in the labor force, employees' greater awareness of the law, the agency's focus on systemic litigation, and changes to its intake practices.

Besides EEOC charges, class action lawsuits are also on the rise. Seyfarth Shaw's fifth Annual Workplace Class Action Litigation Report found that the financial meltdown during 2008 fueled more class action litigation, especially age discrimination and Worker Adjustment and Retraining Notification Act (WARN) claims.

There's no doubt that companies have a legitimate need to cut staff. The question becomes whether the companies have a legitimate basis for deciding to whom pink slips will go.

Employees can claim either disparate treatment or disparate impact discrimination. Disparate treatment claims require a showing of intentional discrimination. For example, four female managers at Dell filed a class action lawsuit last fall. They claimed that the company targeted women and older workers in layoffs that occurred in 2007 and 2008. Dell is accused of lowering the favorable performance ratings of the female managers in order to justify their termination.

Disparate impact claims, on the other hand, rely on statistical evidence that a facially neutral policy or practice had a disproportionate impact on a group of employees; an intent to discriminate need not be established.

In its last term, the U.S. Supreme Court held in Meacham v. Knolls Atomic Power Laboratory (No. 06-1505, 2008) that an employer must show evidence of a reasonable factor other than age in order to defend against a disparate impact claim, and it must also prove that the factor is reasonable. The Court acknowledged that this would make it "harder and costlier" for employers to defend against such claims, thus making it all the more important that your company has all of its ducks in a row throughout the layoff process.

2. CATHIE'S CORNER:
 GOOD CUSTOMER SERVICE DEPENDS ON THE CUSTOMER, TOO 

In HR, our employees are our "customers." While we try to provide the best customer service possible, did you ever stop to think that in some ways, the customer can determine the kind of service they get for themselves?...Continue the story.

3. PROSPECTIVE SALARY CHANGES ARE OKAY, BUT TOO MANY CAN ALTER EXEMPT STATUS

The Fair Labor Standards Act (FLSA) allows employers to prospectively reduce employees' salaries to accommodate business needs without affecting exempt status. The key is that you cannot make changes with such frequency that the salary is the functional equivalent of an hourly wage. Once or twice in a year is okay; more than that could be problematic, as Wal-Mart recently found out....Continue the story.

4. FREE REPORT: PAY DISCRIMINATION AUDITS: ENSURING YOUR ORGANIZATION IS PROTECTED AGAINST LEDBETTER COMPLAINTS
 

Check out the new Free Report, "Pay Discrimination Audits: Ensuring Your Organization Is Protected Against Ledbetter Complaints," which guides you in conducting a voluntary pay audit. Learn when it's okay to pay different wages to similarly situated employees, and how to adapt OFCCP non-discrimination pay guidelines to the private sector.

5. HR SOAPBOX: SEE YOU IN A WEEK!

By the time you read this, I hope to have my toes buried in the Caribbean sand and to not be thinking about work. I'm not trying to rub it in the faces of those of you who, like me, are ecstatic that spring has finally sprung. But I thought it would be a good time to talk about preparing for vacations or another type of extended absence to ensure that some of your job responsibilities don't fall through the cracks....Continue the story.