A recent study released by UCLA-RAND Center for Law and Public Policy detailed the “average” defense costs and jury awards in California employment law discrimination cases.

The study shows:

• The median legal costs to a defendant/employer through trial are $150,000. Even if the case goes to summary judgment — meaning a judge dismisses the charges before going to trial — the employer’s legal costs are about $75,000.
• And all that cash doesn’t include awards to employees who successfully waged lawsuits. The data for 360 cases in which 207 plaintiffs won show the median award in the low six figures.
• Of the 207 cases in the study where the plaintiff prevailed, the verdicts ranged from mid-five figures to low seven figures. The median verdict was in the low six figures.
• Verdicts for race and national origin discrimination tended to be at the higher end; discrimination for medical conditions and sexual orientation tended to be on the higher end.

To get a better understanding of what meets the standard for appropriate documentation, answer True or False to the following:

(Answers are at the bottom.)

1. If you’re writing up documentation about an employee’s major violation of behavior or performance standards, you should try to stick with the major problem, and don’t include other minor violations.

2. For performance appraisals, the following statement is acceptable: “Your work is consistently below the quality of others in the group.”

3. Promises of promotions, raises or other employee rewards are binding only if they’re in writing.

Answers

1. True. Courts are suspicious of documentation that starts to look like a grab-bag of offenses. If you’re writing someone up for a string of unexcused absences, it’s dangerous to let the write-up wander into something like, “And you were five minutes late twice.”

2. False. The problem: Making a comparison with others doesn’t address the important question: Was the employee’s performance below acceptable quality standards? Better to give examples of deficiencies, such as, “You missed three important deadlines.”

3. False. Many court cases have illustrated that spoken promises can be as binding as written ones. Of course, spoken promises are tougher to prove, but no one wants to be put in a position in court where a lawyer asks: “Did you say you’d promote Miss Smith?”

For starters, the median award for all employment-related claims in 2009 skyrocketed by 60% over 2008.The median amount last year was $326,640.

That scary stat comes from the latest survey by Jury Verdict Research. Here’s more from the survey:

• The claim where your company will most likely pay the most: retaliation. Judges and juries are especially tough when they perceive than a supervisor got tough with an employee who filed a complaint about discrimination or other unfair treatment.
• The claim your business will pay the most for if it goes to a jury: age or disability discrimination.
• The claim your company is most likely to get hit with: sex or race discrimination. They remain the most common.

The new year is a great time to review your policies with all supervisors to ensure everyone understands what’s OK and what’s not in terms of managing people.

With the remaining days of 2009 dwindling down, something called the Business Software Alliance has come up with a way to make the New Year a happy one for a lot of employees. The BSA has announced that, for a limited end-of-year period, it will pay $32,000 to employees who rat out their bosses for using pirated software.

The BSA is an alliance of about 80 software makers, including Microsoft, Apple and Adobe, that keeps a watchful eye on companies that use pirated software. And when investigatory approaches don’t work, BSA turns to straight bribery, er, uh, rewards.

Now, the bad news is that if you were thinking about turning in Mr./Ms. Meanie who occupies the corner office, BSA’s latest program is limited to employees in the London area. The program has been offered in the United States — and was “successful,” according to BSA — but now the organization is setting its sights strictly on overseas targets.

The alliance says it’s fully justified in placing the bounty because about 41% of all business software is in the pirated category.

Good thing you’re in the other 59%, right? Right?

The practice of “friending” on social-networking sites can be a legally dangerous one when it involves a supervisor and a subordinate. Plus, a lot of subordinates think it’s creepy.

The seemingly innocent practice of  sending friend requests to staff via Facebook, Twitter and other sites can trigger a slew of legal claims, including harassment, discrimination or wrongful termination, as well as touch off complaints of favoritism if the boss friends only a select person or persons.

That’s the warning from attorney Michael Schmidt on law.com.

Here’s the source of the problem: Social-networking sites typically are packed with personal information. So, what happens if a friending boss learns TMI — too much info — about a subordinate? That opens the door for an employee complaint that the boss made work decisions, such as promotions, based on the personal information.

The example given by Schmidt:

• Suppose an employee is a member of a gay-rights group.
• Then suppose the friending boss fires the employee because of performance issues.
• The employee then could argue that the boss used the personal information as a basis for the termination.

That’s just one example of many: religious affiliation, age,  political affiliation, health problems. All could serve as a basis for a lawsuit should the supervisor take an adverse action against the employee.

If that’s not enough, consider that in a survey by staffing firm Office Team, 47% of respondents said they don’t want to be friended by their bosses.

The message to supervisors: Don’t do it.

Question:
We’re trying to prioritize our training on preventing sexual harassment. Can you give us an idea of where the biggest problem spot is for most companies?

Answer:

Of the roughly 5,000 sex-harassment complaints filed with EEOC last year, the majority of them were based on supervisors’ not responding to initial complaints. That comes from HR consultant Hunter Lott, who’s done harassment-prevention training for firms such as Anheuser-Busch and FedEx-Kinko’s.

Most firms get into trouble because supervisors don’t take complaints seriously, so employees feel forced to go outside the company to get someone to listen to them.

A new book, “Think Again: Why Good Leaders Make Bad Decisions and How to Keep it From Happening to You,” attempts to explain the whole thing — and the financial collapse — by using neuroscience and psychological analysis.

To try to boil a few hundred pages of a book into a few hundred words is perhaps another bad decision, but here goes:

• People tend to think if something worked once, it’s guaranteed to work again. This is the reverse of “Experience is the best teacher” — especially when the experience is misapplied. We saw it happen on Wall Street when experienced money managers thought they could ride to the rescue simply because they’d done it before. What they, and everyday supervisors, fail to recognize is that rules and circumstances change, so a solution that worked 10 years ago might be useless today.
• Self-interest can be a poor guide. Let’s go back to Wall Street and Alan Greenspan’s observation that he failed to realize that big banks wouldn’t operate in their best self-interests. Actually, companies don’t control self-interest; people do. And people tend to see only what’s best for themselves in the short term. Likewise, many good supervisors — maybe because of business pressures — can’t see past the next 30 days. So they take the quick fix for themselves and hope for the best — and often get the worst.
• Data gets filtered based on prejudgments. Here’s the way this works: Let’s say a  supervisor is convinced someone’s a star employee and gets four reports on that employee — three bad ones and one good one. The supervisor will tend to focus on the good report because of the prejudgment that the person is a good employee.
• Buy-in can be bad. You know the old technique of giving people responsibility for their own ideas by making them responsible for the sucess of the idea? What happens is that they become so married to the idea that they’ll ride it — and everyone else — into the ground in a vain attempt to prove the idea is brilliant.
• Everyone has a bias. And everyone needs someone else to point out when that bias is a road to ruin. “Yes men” need not apply for the job. The someone who points out the destructive bias has to be strong, honest and smart.  We hope the folks on Wall Street are reading this book.

The scenario
“Sandy, you gotta help me,” said supervisor Tom Bartley. “I really screwed up.”

“What’s the deal?” asked HR manager Sandy Gomez, motioning for Tom to take a seat. “Problems in the department?”

“Yeah, you could say that. It all boils down to this: I promoted the wrong person, and I can’t think of a good way to fix the situation.”

Things didn’t go as planned
“I remember when you were agonizing over who to choose – Rebecca or Trish,” Sandy recalled. “I guess Rebecca hasn’t worked out as well as you’d hoped.”

“Boy, that’s an understatement,” said Tom. “She just can’t seem to get the hang of her new responsibilities. And the more she screws up, the more defensive she gets. And then everybody in the department starts getting an attitude. It’s a mess.”

“What’s Trish’s reaction been?” Sandy asked.

“She hasn’t said a word,” Tom answered, “but I’ve caught some of her facial expressions when things have gone wrong.

“She knows we can’t continue to operate like this. And the other employees know it, too.

“I’m going to have a revolt on my hands if I don’t do something soon,” Tom concluded. “The question is, just how am I going to finesse this? I’d hate to lose Rebecca, but she’s making everybody’s life miserable.”

If you were Sandy, what would you advise Tom to do next?

Ron Wolfgang, HR manager, South Bend, IN
What Ron would do: I’d have Tom set up a 30-day performance plan for Rebecca. It’ll need to be clear and concise, so Rebecca understands what she needs to improve on. She also needs to understand that if she doesn’t make improvements by the end of 30 days, there will be some changes.
Reason: I hate to not give employees an opportunity to improve their productivity. So giving Rebecca a month to turn around her efforts is the best remedy. But after that, we can’t afford to have her continue performing poorly.

John Steepy, HR manager, Rochester, NY
What John would do: I’d make sure that Tom has documented all of Rebecca’s shortcomings. If so, either demotion (if she agrees) or termination would be my recommendation.
Reason: As long as there’s documentation, a demotion or termination is the natural response to an employee not pulling his or her weight. Morale and productivity can’t be sacrificed.

Jean Yarger, HR manager, Grafton, WI
What Jean would do: First, I’d have Tom ask Rebecca how she thinks she’s performing. If she admits to her poor job performance, I’d suggest either handing Rebecca her old job back or lightening her duties in favor of more work for Trish. If Rebecca doesn’t realize she’s performing poorly, I’d advise Tom to set specific performance goals for her.
Reason: It’s always wise to see how an employee rates his or her own production before taking drastic measures. It’s a safeguard against a possible lawsuit. After that, you look for a solution that’s in the best interests of the company.

Her story:

When we recruit people, we sell them on the idea that our company believes in continual learning and improvement – meaning we support training as a way to reach career goals.

The problem with that: Our supervisors and HR were always
challenged to come up with new and different training employees could attend offsite and onsite.

Plus, of course, the training had to be relevant to the goals of the employee and the company. Keeping on top of that was almost a full-time job in itself, and we couldn’t
afford a training coordinator to do it.

Our solution: Make employees their own training coordinators – but it took some work.

Two stipulations
The cornerstone of the solution was to have employees find and choose their own training. No one really knew for certain whether employees would like the idea – many were skeptical or didn’t want the responsibility – or whether it would work.

• So we tried it for about a year on an experimental basis with a few employees. We told them they could choose their own training, but approval would be based on two major stipulations:
• The employee had to show the connection between the proposed training and their jobs and careers.

Cost would be a factor in approval. The more expensive the training, the greater the benefit the employee
would have to show – to the company and the job.

We rolled out the program and held our breath, waiting to see what would happen.

Early results
One of our first successes was a customer service employee – let’s call her “Jane” – who told her boss she was interested in the quality-control end of our business, and asked for training in that area.

Jane picked out her training, got the OK, and ended up moving into quality control and being a top performer.
We used that success story as a template to show others how the program might work for them. And an interesting thing happened.

Not all employees embraced the idea – some still wanted the
supervisor to pick the training. But we found that the ones who did take control of their training often also happened to be our most motivated, top performers.

In other words, the top people used the program to get better or to help themselves advance with the company. That assured us the program was working.

(Norma Anthony, Medford, NJ)

Her story:

Squeezing in affordable management training was always a challenge for us.

Our operation runs pretty lean, so it’s hard for supervisors to head off to some remote site for several days for management training. And then, of course, there’s the cost involved.

We did try to do some onsite training, but you usually have to have a large group for that to be cost-effective — not practical in our small outfit — and you have to schedule a block of time that may not always convenient for everyone.

We had to figure out a way to address our management-education problem.

As a start toward that goal, I decided to call some education experts – the business department at our local community college.

Late-day classes
I explained our goals to the department head, and we worked out a solution. He’d send us a list of management courses that ran only from 3 to 5 p.m.

That way, our supervisors could attend at the end of the day for an hour or two without breaking up a whole day or going to some far-away site. The school even helped us work on getting a state training grant to help pay for some of the classes.

So we ended up with management training that’s effective, convenient and affordable.

(Lynette Kautz, HR director, Denison, TX)