6 Best Practices to Minimize Liability for Caregiver Claims from the Sandwich Generation

What is the sandwich generation? You’ve probably heard of Baby Boomers, Generation X, and Generation Y, so where does this whole new group fit in? Well, the answer isn’t as simple as a generation defined by birthdates; the “sandwich generation” refers to the group of people (generally between the ages of 30 and 60) who are caring for their aging parents while supporting their own children at the same time. According to the National Alliance for Caregiving, there are more than 24 million Americans who represent the sandwich generation today – a number that will increase due to the growing population of Americans 65 or older, which is expected to double by 2030.

In an ERI webinar titled “California: Aging Parents and Sick Kids: How to Minimize Liability for Bias and Retaliation Claims Made by ‘Sandwich Generation’ Employees,” Jamie Rudman outlined some statistics about the sandwich generation, explained why this group of caregivers sometimes files claims, and explained what you can do to minimize your risk of such claims.

According to the Pew Research Center, 1 of every 8 Americans aged 40 to 60 is both raising a child and caring for a parent, and an additional 7 to 10 million adults are caring for their aging parents from long distance. Additionally, according to the 2000 U.S. Census, nearly 1/3 of families had at least one family member with a disability, and about 1 in 10 families with children under 18 years of age includes a child with a disability. This represents millions of Americans with caregiving responsibilities, such as caring for aging parents, minor children, a disabled spouse, partner or child, or a family member with serious health condition.

Sandwich Generation and Caregiving: Are Caregivers a Protected Class?

The statistics aside, you may be wondering where the claims issues come into play. Are caregivers a protected class? The short answer is no, but, that said, they may have valid claims under state and federal laws, including Title VII, California Fair Employment and Housing Act (FEHA), the Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), and the Americans with Disabilities Act (ADA). This list isn’t comprehensive – other regulations have provisions that may trigger protections as well – but these are some of the examples where there have been claims.

In the webinar, Rudman advised: “being a caregiver per se is not a protected class, but the things that you do as a caregiver may bring an employee within a protected class.”

While caregivers are not a protected class, the EEOC and state and federal courts are increasingly recognizing claims for discrimination related to or based on an individual’s family responsibilities. As such, family responsibility discrimination claims are on the rise. According to Center for WorkLife Law, the number of employees claiming they were treated unequally because of their caregiver status increased by approximately 400 percent from 1996 to 2005.

Sandwich Generation Caregiving Claims: 6 Best Practices to Minimize Liability

With these situations on the rise, what can you do to minimize your liability? Here are six best practices to follow:

1. Check policies and forms. Ensure you have an equal employment opportunity policy with a goal to hire the best candidates for each job solely on the basis of qualifications. Also check your anti-discrimination policy, anti-harassment policy, and FMLA/CFRA certification forms to ensure they comply with the law.
2. Be careful of bias in recruiting and hiring process. Rudman noted: “The best way to avoid problems in recruiting is to be aware of all the areas where hidden bias can crop up.” Do this by applying application procedures equally to all applicants. Ask only what’s relevant to the job. Ask similar questions of all applicants. Also, write down your questions and be sure if you are taking notes that they are factual, include no opinions or personal biases, and include job-related information only. If you do keep notes, keep them on file for at least a year.
3. Train your supervisors and managers. Be sure your team is educated regarding various leave rights and anti-discrimination training. They do not need to be experts in every detail, but they do need to recognize potential issues and know when to talk to HR.
4. Be consistent. This is especially important when applying company policies, when taking corrective action, and when applying criteria for promotions, raises, transfers, etc. Be sure to recognize each person as an individual and do not make assumptions. Treat everyone with respect and courtesy. Last but not least, be aware of and try to correct your biases.
5. Remember to document. Your documentation must be able to articulate reasons for employment decisions, such as termination, discipline or promotions. It is even better when those reasons have been recorded in notes, emails, memos, etc., since claims may be brought well after decision was made and after memories have faded.
6. Take employee complaints seriously. Never ignore a complaint; conduct an investigation if necessary. Employer investigations do not need to find the “right” answer, but they do need to be conducted in good faith.

The above information is excerpted in part from an ERI webinar titled “California: Aging Parents and Sick Kids: How to Minimize Liability for Bias and Retaliation Claims Made by ‘Sandwich Generation’ Employees,” with expert Jamie Rudman. To register for a future webinar, visit the ERI webinar page.

Jamie Rudman is an associate in the law firm of Simpson, Garrity, Innes & Jacuzzi (www.sgilaw.com). Ms. Rudman has extensive experience representing management in labor and employment matters and has defended employers, managers and supervisors in state and federal lawsuits filed by current and former employees for wrongful termination, sexual harassment, discrimination, wage disputes and breach of contract.