How to Remain Compliant as Unemployment Rises Inevitably Result in an Increase in EEO Lawsuits

Unemployment has reached historic levels in the United States as a result of the COVID-19 pandemic, and many organizations are bracing for a wave of EEO lawsuits as a result. This article from our D&I partner, Teleskope, outlines the software and cultural measures that ensure that any tough decisions are fair decisions.

More people in the US are unemployed right now than there have been since the country started keeping track. Many companies have been faced with tough decisions to safeguard the future of the organization: furloughing, temporarily laying off, or even fully letting go of part of their workforce.

Employees are the most valuable asset any organization has, so the decision to let someone go should never be taken lightly. In times of crisis such as these, companies need to pay more attention than ever to one of the most important aspects of terminating employment: compliance.

Every time unemployment rises, the number of Equal Employment Opportunity (EEO) lawsuits filed in the United States also goes up. It makes sense, as an increased number of terminations will lead to an increased number of employees who may be disgruntled and feel they were terminated wrongfully. These employees might end up seeking legal action to address their concerns—and if an organization has not been vigilant about “dotting their is and crossing their ts” during the termination process, it could find itself on the hook for a massive payout.

Fortunately, there are a number of options out there for organizations that may be scrambling to figure out the best process whenever these difficult choices have to be made.

You might also like: ‘Strategies for Reducing Your Risk of Noncompliance’

Employee Resource Groups and a Culture of Fairness

The companies best positioned to weather any oncoming storm of EEO lawsuits will be those with proven track records in employee care and healthy company culture. While few employees will welcome layoffs, they are more likely to understand why decisions have been made if all their past dealings with an organization have been fair and equitable. One of the best ways to build the required kind of positive company culture is through the use and effective management of Employee Resource Groups (ERGs).

Organizations without ERGs in place will find that they take time to nurture and to have a positive effect on culture. In this sense, they won’t be an instant remedy for immediate challenges, but they are certainly beneficial to have in place going forward. ERGs can help your employees feel at home with your company by connecting them with resources and other employees with whom they share similar identities. This connection doesn’t need to stop during furlough or layoff (whether temporary or permanent) procedures.

Regardless of existing practice, businesses should consider creating ERGs specifically for furloughed workers. This ERG could help to connect furloughed employees, giving them a sense of community and a space to air challenges encountered while furloughed. The ERG would also be a place to share information about the furlough processes, your re-boarding plans, and unemployment-related advice.

Related reading: ‘Your Top and Bottom Lines Don’t Magically Disappear During a Crisis—Neither Should Your Diversity & Inclusion Programs’

A Data-Led Approach to Separation

No matter how strong your company culture, you’re still likely to encounter employees who feel they have been wronged, who will want to push back on their termination. The decisions you make need to be made with confidence in their fairness, so that if and when an EEO lawsuit occurs you are able to prove that you are not guilty of any wrongdoing.

A robust workforce analytics solution is needed to establish this evidence. With Affirmity’s Performance and Talent Decision Analysis services that review your workforce data, as well as termination processes and practices, you get clear insights that allow you to proactively identify, and correct, areas of weakness before it leads to an EEO lawsuit.

Organizations that proactively analyze workforce data to obtain in-depth data insights that help identify adverse events will be at a distinct advantage. These analyses help businesses make decisions about separation (and other resourcing decisions) that avoid disproportionately targeting certain groups. Affirmity also offers comprehensive workforce training programs, so that you can educate your HR and leadership teams on the best ways to mix compliance with caring when it comes to making difficult decisions about your employees.

More from the blog: ‘Avoiding Bias and Discrimination in Downsizing Decisions

Preparing for the Crisis-Within-A-Crisis

Managing a company is always complicated, but managing a company during a pandemic can feel especially challenging. Letting employees—your people—go is already stressful enough without having to worry about the potential legal ramifications you may face. Make sure you’re prepared for the crisis-within-a-crisis that COVID-19 could cause.

ERGs are an important piece of groundwork required for a fairer company culture, though they are becoming no less complex to administrate. Read more about our ERG platform here, or contact us today.

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