Symptomatic Redress vs. Systemic Change: Are we chasing the devil or the prize?

The Challenge
We have more laws on the books than ever and thus the inference is we’ve expanded workers’ rights. But, is this enough? Maybe it’s time for a multi-disciplinary approach, to change the paradigm, as we seek to have these laws enforced. To many, we are treating the symptoms rather than curing the disease. It’s been my experience that both management and employees are concerned about the same things: 1) the employee’s ability to do a job, 2) access to resources needed to do the job, and 3) adequate, equitable measurements and reward for doing a good job. Yet, the manner by which these translate into the workplace is very different, and in response to these differences, litigation has become the mechanism for resolution.
The top reasons for employment lawsuits have more to do with a lack of communication and lack of training than with the law. Some of these include: unfair or unsubstantiated discipline, suspicious timing, and slow or whitewashed internal investigations.
Yet, a lack of accommodations, violation of leave, wage and hour laws are heavily in the midst! There is more confusion than ever around accommodations, compensation and leave issues, which are at the very core of an employer-employee relationship. Integrated workspaces, changing demographics, global competition, baby boomers and millennials present some of the greatest challenges in today’s workplace. And, a growing number of employees seek leave under the FMLA for purposes of taking care of veteran and elderly family members. Additionally, at some point in their life, over 75% of working women in the US will become pregnant. I can recall about 25 years ago, a select few began to seek employee feedback, offered flex time, lactation rooms, child care subsidies and onsite centers. This was the advent of the “work-life balance” movement. Consequently, most of these companies recognized tangible and intangible benefits from their customer base with a higher level of employee loyalty, engagement and profitability.

A Movement is Needed
Today, such a movement is needed. I could provide you with a laundry list of answers to five of the most commonly asked questions including such questions as do you have to share an employee’s personnel file with them? Or, can you change an employee’s shift? But, I prefer to use this space to discuss a larger more global issue, and that is working towards a balanced employee-employer approach that fosters a collaborative versus an enterprise risk management model. Recruiting, turnover and lawsuits are costing both the employer and the employee more than ever. This year alone, major administrative and Supreme Court decisions addressed LGBT rights, same-sex benefits, pregnancy accommodations, dress/appearance and religious policies, wage and hour standards, and compliance with the Affordable Health Care Act. Yet, FMLA and retaliation lawsuits are at an all time high. And not surprisingly, the EEOC reports retaliation as the most common issue alleged and the most common discrimination finding. Studies now show that threat and punishment are the least effective forms of social change and do not result in long-lasting improvement.

An Optimal Solution
The measurement of human capital and outcomes is critical to the bottom line. Some companies are getting it, and some are not. Lowering the bottom line and reporting a human capital line item to investors and shareholders are necessary and encompass a critical metric that correlates with lawsuits, employee engagement and overall profitability. So, what does mean, and what does this have to do with us as lawyers? There is an increasing blur between where HR ends and employment lawyers begin. This presents both overlap and opportunity. In a nutshell, a multi-disciplinary approach that effectively integrates employment law with best practices for human resources into a business model will more fully address the challenges of today.
Tying human resources and employment law into the overall corporate strategic plan, and having an employee rights advocate along with litigation support are needed. This used to be the role of HR, but that is no longer the case. To stimulate and effectuate real change in the workplace, one can no longer afford to focus solely on the employer’s rights, but there has to be a balance of employer rights and employee rights. Applying the law in an agile way and not a perfunctory manner by those who are entrusted to carry out the practices – management, owners and employees, when properly executed will lead not to just improved profitability, but sustainable profitability, increased productivity, retention and a reduction of lawsuits. Systemic change can only come through revolutionary ideas, for which we can play a role in developing. In the rare instances where I happen to be fortunate enough to assist clients with retaining their jobs, or developing an exit strategy, it is clear to me, they almost always prefer to have the option of keeping their job long-term or transferring from a bad environment/manager. But, by the time they get to a lawyer, this is seldom a viable option. Many employees not only need legal representation, but direction and knowledge of their rights and responsibilities. Generally speaking, this doesn’t exist outside of the legal realm. And when I have had the opportunity to speak with management (in a non-adversarial environment), almost always, they would have preferred to have avoided litigation, but see it as a necessary evil with their option of settling as a means to reduce litigation costs. The opportunity exists for us to help shape and implement new workplace strategies that would educate and inform employees and potentially eliminate litigation costs by changing the work environment.

The Call to Action
This requires the changing of mindsets, office politics and corporate cultures. So, at the end of the lawsuit, are lawyers just preparing for the next one, or can they influence their corporate clients to re-evaluate workplace strategies that go much deeper than annual anti-discrimination training? Can plaintiffs’ lawyers work more closely with employees and communities or offer companies an advocacy role for its employees in advance of litigation rather than representing them only in litigation? Is this too revolutionary? The legal landscape is changing, and so exploring innovative ways to add value while leading to systemic change in the workplace will be crucial in the not so distant future. This drives sustainable profitability for companies, job retention and satisfaction for employees, job security and true fulfillment in what employment lawyers do, make a sustainable difference while advancing workplace rights.
Employment outcomes impact so much more than having a job, but one’s employment often dictates access to resources, including health care and housing. For more information on ways individuals and employees can learn more about their rights, go to www.workplacefairness.org. Maybe it’s time we re-evaluate the strategy, stop chasing the devil and start chasing the prize.

The author: Bartina L. Edwards is based in Charlotte, NC, where she practices employment law and business law in The Law Office of Bartina Edwards. She has a corporate background  and represents the plaintiff in employment actions. She also serves as an Adjunct Professor at the N.C. Central University School of Law where she teaches employment law. (www.blelaw.com).