Ask Jack: What One Litigation Risk Will Carry Over From 2022 To 2023?

By Jack McCalmon, The McCalmon Group, Inc.

What litigation trends can employers expect to carryover from 2022 into 2023?

 

Data in RiskTrends™ (McCalmon's database of verdict and settlement losses), as well as statistics from the Equal Employment Opportunity Commission, confirm retaliation claims were either a centerpiece or an important ancillary piece of many employment practice claims in 2022.

The latest EEOC statistics show that more than 50 percent of equal employment charges were retaliation claims in fiscal year 2021.

Retaliation claims will continue to drive employment practice litigation into 2023.

Regarding retaliation, it is not all bad news for employers heading into 2023, however. Via RiskTrends™, we have seen an uptick of summary judgments granted in favor of employers even when retaliation is pled.

In those cases, the undisputed material facts (the standard for a grant of summary judgment) show performance was poor or a violation of an employer's policy occurred. In those cases, the judges felt the law justified ruling for the defense even though other disputed facts existed.

The takeaway is that to limit retaliation exposure, make sure an employee's employment file effectively describes the employee's contribution (or lack of contribution) to your organization's mission.

Jack McCalmon, Leslie Zieren, and Emily Brodzinski are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon, Leslie Zieren, or Emily Brodzinski to consider for this column, please submit it to ask@mccalmon.com. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.

 

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