1. Keep track of government enforcement efforts.

The two main enforcement arms of the federal government relevant to private employers are the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL). On the state level, virtually every state has similar agencies. Knowing how these agencies enforce the law under their mandates is crucial for corporate-compliance efforts.

The EEOC and DOL have extensive Web sites (www.eeoc.gov and www.dol.gov) that detail their activities. HR professionals, risk managers, corporate counsel and business executives in charge of compliance efforts should bookmark these sites and visit them frequently. They contain a treasure trove of information for employers.

2. Audit your personnel policies for compliance with new EEOC-related regulations.

Especially on a state and local basis, laws creating protections for employees typically have a Jan. 1 effective date. It's always best to check the legislative enactments for every jurisdiction in which the company employs workers.

Relevant EEOC policies and practices should be updated for these new obligations.

3. Account for leave-of-absence entitlements created by new laws at the state and local level.

Likewise, state and local governments have become aggressive in expanding the rights for mandatory leave-of-absence entitlements for workers. The coverage trip wires tend to vary by jurisdiction, such as companies with 50 or more full-time employees vs. one employee.

Like EEOC laws, many leave-of-absence entitlements kick in at different dates during the calendar year.

Since violations of leave entitlements typically involve "gotcha" situations if leave is denied, compliance strategies require a comprehensive approach to integrate any new leave entitlements into the company's existing portfolio of benefits.

4. Check your reasonable-accommodation procedures.

An area of key focus for the EEOC is protecting the rights of sick, injured and disabled employees who need reasonable accommodations. Recent amendments to the Americans with Disabilities Act (ADA) (see article on page 28) also make litigation over personnel decisions on reasonable accommodations tougher to defend.

Having a state-of-the-art standard operating procedure to approach requests for reasonable accommodations is a necessary risk-management tool. If your corporate policies and procedures have not been updated in the last few years, this should be an area of focus in 2012.

5. Audit your payroll policies and procedures for compliance with new laws and case-law developments.

Wage-and-hour litigation continues to be the No. 1 source of employment-related lawsuits. Case-law precedents are evolving at a rapid pace as the federal Fair Labor Standards Act of 1938 (FLSA) is interpreted to situations arising in the new digital workplace of modern corporate America.

The volume of such litigation has increased every year over the past decade. Further, employers operating in "higher risk" jurisdictions with an active class-action bar and generous state-law systems—such as California, Illinois, Massachusetts, New Jersey, New York, Pennsylvania and Wisconsin—are particularly vulnerable.

A payroll policies-and-practice audit makes good sense, especially if it is conducted under the auspices of the attorney/client privilege, since this may provide the company with a "good faith" defense under FLSA.

6. If you utilize workplace arbitration agreements, test the agreement terms under new case law.

The Supreme Court's ruling in April of 2011 in AT&T Mobility LLC v. Concepcion (which, going forward, will make it much harder for consumers to file class-action lawsuits) raises the issue of whether that decision tips the scales in favor of employers implementing an arbitration policy covering workplace claims by employees.

Each employer must weigh the advantages and disadvantages differently in light of its workforce, culture, policies and strategic goals. The Concepcion decision, however, particularly for large employers facing significant employment litigation challenges, may well tip the balance in favor of implementing a nationwide arbitration program that minimizes the threat of class or collective actions. If you have not already engaged in a balancing of those factors for your company, this is a key item for your compliance checklist.

7. Account for the impact of social media in your workplace.

Employers operate in an environment where social media can affect customers, shareholders and employees. In anticipation of the issues posed by employees' use of social media, it makes good sense to implement personnel policies that arm the company with discretion to protect its rights and discipline employees if necessary for social-media abuse.

Policies on blogging and use of social media by employees are a great place to start (see article on page 33).

8. Treat EEOC charges with respect—and with a thorough defense.

The EEOC's recent fiscal year 2011 report details its activities from Oct. 1, 2010 to Sept. 30, 2011. This should be required reading for corporate counsel, risk managers and HR professionals who deal with employment-related litigation issues.

The report details an inevitable byproduct of our nation's economic woes. In fiscal year 2011, the EEOC received a record-high 99,947 discrimination charges against private-sector employers.

This statistic confirms what employers are experiencing—terminations and adverse-employment decisions are increasingly high-risk situations. Workers who lose their jobs often file discrimination charges not only on account of believing themselves to be discrimination victims, but also out of fear and self-preservation that compel them to "sue now" if their prospects for re-employment are dim in today's economy.

It also comes as no surprise, then, that the EEOC recovered a record $364 million for discrimination victims through administrative enforcement.

Title VII claims still dominate these filings, representing 75 percent of the charge filings in fiscal year 2011. ADA claims and retaliation, however, are also strongly represented, accounting for a significant number of the overall settlements in the past year.

Finally, the EEOC's systemic-discrimination program continues to expand. The commission is aggressively investigating employers who are party to discrimination charges on the theory that "where there is smoke, there is apt to be fire," in that discrimination rarely impacts one protected category worker but most often groups of employees.

In this enforcement environment, an employer is well-served to treat an EEOC charge as a serious litigation event. A thorough investigation, careful pleadings and aggressive defense handling will pay dividends in these circumstances.

9. Redouble your efforts to prevent retaliation in the workplace.

Retaliation is on the rise statistically, according to the EEOC's latest fiscal-year report. Retaliation often involves a situation where a defensible discrimination charge is turned into an indefensible retaliation charge, because company managers acted improperly after the company's receipt of the initial discrimination charge.

The risk of retaliation can be managed and its incidence minimized by a standard operational procedure designed to communicate the company's policy against retaliation and its commitment to disciplining—and terminating when appropriate—any employee who compromises the company's policy.

If your business' approach to prevent retaliation could stand updating, this is certainly a focus area worthy of your checklist.

10. Deliver on the notion of workplace due process.

One indication of the robust administration of HR policies and procedures is a high ratio of internal complaints as compared to a low number of external complaints to the EEOC or similar governmental agencies. The notion of "workplace due process" is at the heart of this balance.

In other words, do employees believe that the company's HR system investigates their complaints and grievances—and remediates the situation where appropriate—so that they receive "due process"?

If employees feel that their voices are not heard or respected, it should come as no surprise that they are more likely to contact outside agencies or plaintiffs' lawyers to champion their complaints.

Injecting and instilling the notion of workplace due process into the administration of your company's HR policies and practices can be one of the most important EPLI risk-management devices to implement in 2012.