Answers to the Scariest Employment Law Questions


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  • Mark: Thanks, Dan. Hello everyone and thank you for joining us today!Welcome to our special Halloween-themed Answers to the World’s Scariest Employment Law ?s where for the next 58-and-a-half minutes we will attempt to reduce your terror level by answering as many spooky employment law ?s as humanly possible. We’re going to go at warp speed but if you miss anything the full PPT with all my notes will be available for your reading pleasure on my blawg.
  • OK, here’s where things officially get spooky. Because I’m a lawyer we’ll begin with some frightening legalese [read].In other words, you can’t sue me, Dan, ManpowerGroup or anyone else based on anything you hear here today. So there.
  • As an extra added bonus, Dan will somehow be magically tweeting along as me during today’s webinar using the handle @manpowerblawg – that’s b-l-a-w-g – using the hashtag mpwebinar. Thank you, Dan, and please don’t say anything that’ll get me fired.
  • Today’s webinar is brought to you by … YOU. Thanks to all of you who submitted ?s and topics in advance for our consideration. Nice mix of big picture strategic stuff and nuts and bolts real-life stuff. We’ll do our best to cover both.In other words, if don’t like what we cover here today you have no one to blame but yourselves.
  • Here’s what we’ll cover today. First, we’ll look at some of our pre-webinar survey results to see what YOU want us to talk about. Then we’ll dive right in and de-spook-ify ?s in the topic areas you selected. To help keep you stay awake we’ll mix in a variety of twicky Tweet- and Text-o-ramas for valuable prizes. We’ll then unmask some EL Great Pumpkin myths and then conclude today’s proceedings with our handy how to get sued BIG now tips. But that’s not all. Immediately after the webinar tune into my blawg at for our Least Zombie-ish Webinar Attendee Contest and other great free stuff.
  • We’ll also post on my Blawg our 187% free EL Tool Box. Includes a glossary to help decode the alphabet soup of employment laws; cheat sheets on every major employment law; an investigation checklist; termination tools; an overview of wage and hour basics; tools for reducing legal fees and much much more.
  • Pre-webinar survey. A truly terrifying 65% of you picked Really very extremely scarier as your #1 choice. 86 to 1. Wow. That IS scary.
  • Here’s our 1/4ly Lit Index, where we ask you: Are you seeing an increase in emp’t law claims? 34% of you report an increase vs only 2% of you reporting a decrease. In other words, the number of you seeing an increase is SEVENTEEN times greater than the number who are seeing a decrease. Last Q was ONLY 12X. So that’s scary too.
  • We also asked you to rank the world’s scariest employment laws. Here’s your official top 10. We’re going to tackle the top 5 for you here today. That’s one of the filters we used to funnel your ?s scientifically.
  • We also asked you to answer this question in 10 words or less: What spooksyou most about the world of work heading into 2013?Here’s basically what you said …
  • We also asked you to answer this question in 10 words or less: What concerns you most about the world of work?Got several hundred answers, some of ‘em several hundred words long. Lots of themes came thru loud and clear: [SM, and lots of other things we’re going to be covering here today. Full summary on the Blawg. Add.]
  • Our goal is simple: to de-spook-ify employment law one law at a time. For those of you who follow my blog, been doing it all month long leading up to this auspicious occasion by breaking down each and every law in a single post each and every day. We want you to be fear free.
  • Focus on the BIG picture as we go throughout so not lose our way …
  • Here’s our first Tweetorama. The very first person to tweet the correct answer to this question using our official Blawg handle you see there on the screen will win a valuable prize.Here’s a question I’ve been asking on all my webinars, at live presentations and on my Blawg for the past year. If you had to boil all of empt law down to ONE word, what would it be?Let’s see if our message is starting to get thru. Again: [read ?] Tweet your answer for all the world to see using the handle @manpowerblawg.We’ll announce winners of all our contests later on the Blawg.
  • While we’re waiting for folks to weigh in with the BIG answer, thought I’d continue with my personal favorite question. [Read]
  • Ask and you will receive. Here’s something decidedly dumb: 2012’s most creative excuses for missing work compiled by our good friends at CareerBuilder. Hopefully you haven’t heard these from any of your employees or tried them yourselves … [read].There you have it, something dumb to start things off.
  • Well, here’s the answer to our Tweet-o-rama. Dan, can you say it with me: LOVE!If you really think about it, the law is there basically because we don’t do this very well. If we treated each other with love – how we’d like to be treated, with kindness and dignity and respect – we wouldn’t have to have bazillions of laws and regulations to keep track of and lawyers would all be unemployed. It’d be a beautiful thing.So, want fewer regulations? LOVE your employees. Fewer disputes? LOVE your employees. Fewer lawyers? LOVE your employees. More productivity and engagement and downright happy employees who don’t sue you in massive class actions that take all your time and effort and money? LOVE your employees.It’s that simple.
  • Thought it made sense to start right here, given that the ADA and FMLA were #1 and #2 respectively in your top ten scary laws.
  • ***POLL***
  • 2 lessons here: (1) pregnancy is not a disability bc it’s a short-term condition but (2) lots and lots and loooots of other things ARE including each of the ones on your screen. That doesn’t mean pregnancy discn is legal – it’s just not a disability under the ADA. More on pregnancy in a moment.Never ever assume that something’s not a disability just bc you haven’t heard of something or it seems counter-intuitive. To illustrate that point, one court just refused to dismiss claims brought by a bridge worker who couldn’t work on bridges due to fear of heights and another court refused to dismiss claims by a utility pole worker who couldn’t climb utility poles. Never ever assume.More on Internet Use Disorder in a moment.
  • ADA generated a ton of ?s. Let’s look at some quick facts first to help set the stage.Only 32% of disabled working-age Americans are employed (less than pre-ADA, sadly) and only 27.6% are actually working, according to BLS. Americans with disabilities are 2X – two times -- as likely to end up in povertyAccg to a recent study, disability diversity = money:“There’s a large body of research showing that diversity spurs innovation and high performance.” One story: (Walgreens) 20% increase in productivity after focused efforts to increase diversity among the disabled population.And last on your screen there, there are at least 27 million reasons to follow the law. In the last year alone the EEOC recovered $27M for ADA claimants. Be careful out there.
  • Thought it might be helpful to start with a how NOT to do the ADA checklist. Took all the recent ADA cases and boiled em down into a handy 5-step process for losing any ADA case [read]. [Add commentary re 1.2M turkeys]
  • Chose this one first because it’s the only one that actually screamed. I think that’s pronounced AIYEEEEE! Dan?To make things, took the liberty of highlighting key words in each ? to make sure you get the main gist. We’ll publish afterward in a handy doc organized alphabetically by topic using the highlighted terms as a guide.
  • EEOC has announced that it’s going after no-fault attendance policies in a big way. Why? If administer it consistently as ? Asked could mean that you’re flat-out failing to accommodate Ees whose absences are because of disabilities. Backed up its words in a humongous nationwide class action vs. Verizon that was settled for $20M.
  • No bright line. Really have to work with Ees. More about that in a moment.
  • Maybe (sorry again). Internet Use Disorder (or IUD) has been officially accepted for inclusion in the DSM – the Diagnostic and Statistical Manual of Mental Disorders, the official bible used by doctors, courts and the govt. Official psychiatrist diagnosis manual. According to the American Psychiatric Assn, which compiles the DSM, a person with IUD -- just like a drug addict -- is preoccupied with a substance. Only instead of drugs, it's the Internet. A person with IUD is QUOTE “overly occupied with gaming or checking messages or social media, suffers withdrawal when the Internet goes offline, feels the need to spend more time online to get the same ‘high,’ and neglects their work or family to stay on a computer or smartphone.” Sounds like about 80% of the people I know. Worse yet, studies show that people with IUD have changes in the brainmirroring heroin addicts with effects on brain cells that control attention and processing emotions. If that sounds like you, please please get help.
  • A couple of recent cases have found that telecommuting MAY be a RA, but it depends on unique facts related to the EE and workplace in question. Q for jury. You don’t want to go to a jury. Interact with your employees and come up with a BALANCE which is a key word when it comes to the ADA. [22:00]
  • Another great ? …
  • Split in jurisdictions when it comes to job reassignment as a RA so, as always, check with your fave empt lawyer.
  • Which brings us to our first Text-o-rama. Let’s go with the THIRD person to text the correct answer to the # you see there on your screen 414.751.0126 that’s 414.751.0126 will when a prize.An employee comes into your office at 4:59 on a Friday and informs you that he suffers from multiple medical conditions, including “work-induced narcolepsy,” “spontaneous combustion syndrome” and “episodic cubicle-confinement hyper-grumpiness.” He demands several accommodations, including: (1) a portable I.V. hooked up to an espresso machine, (2) a fire extinguisher mounted to his head; (3) three-and-a-half weeks off each month and (4) your office. If you have time to make only ONE call, to whom should it be? One call, that’s all, to whom should it be? Operators are standing by.
  • 5 main things to keep in mind here. 1. Don’t rely on subjective perceptions or jump to conclusions. 2. Test on “reasonable suspicion” or after a workplace accident. 3. Avoid bans on prescribed meds without individual assessment. 4. Keep everything related to drug testing confidential just like you would for medical records. And 5. Have positive tests for prescription meds reviewed by medical review officer to help you make the right decision.Just bc someone wears Dave Matthews Band T-shirts and has dreadlocks doesn’t necessarily mean that s/he is on drugs. Lots of cases out there where Ers have had to pay big dollars for not following these simple rules, including one auto parts mfr who paid close to half a million. [26:00]
  • So, that’s drug testing. So what about drugs @ work generally?1. No ADA protection for those “currently engaging” in use of illegal drugs. 2. Safe harbor for recovering addicts who aren’t currently engaging. What’s currently? No bright line in terms of days. Flexible. Interaction. We’ll tell you all about how to make sure you’re interacting appropriately in a moment. 3. Prescribed meds may be covered unless “direct threat” to safety. More on direct threat in a moment. 4. Generally OK to prohibit being under the influence of any substance other than legally prescribed meds.What about medical marijuana? State-specific. Talk to your fave emp’t lawyer, which is always a good idea when it comes to drugs @ work. But these are some general guidelines to keep in mind.
  • High standard as you can see at the bottom of the slide there. Has to be “a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated by reasonable accommodation.” [Read.]Tough but not impossible. A fed court case earlier this year found in favor of Er on the basis that a worker’s heart condition posed a direct threat where an independent medical examiner concluded that allowing the employee to work near moving machinery could pose a direct threat to safety. [29:00]
  • Again, what’s the word, Dan? That’s right: LOVE! Treat those with disabilities the way you’d like to be treated.The law requires what we call a graceful interactive DANCE depicted on your screen there. Discuss discuss discuss discuss and then discuss some more. A good faith open dialogue that balances biz needs AND EE needs. Don’t make it a legal gotcha conversation. Actually engage and interact. Both sides can win. And here’s a great way to make that happen, which just happens to be our first Textorama answer …
  • [Add]
  • Not alone. Beats pay in importance according to recent surveys.
  • The Office of Disability Employment Policy has put together a very handy Workplace Flexibility Kit. 172 resources including case studies, FAQs, tip sheets, reports, articles, websites, etc. all designed to enhance workplace flexibility such as time, place and tasks. Great thing to check out.
  • ***POLL***Now it’s time for a poll as we transition from #1 scariest law ADA to #2 FMLA. Real life case. How would you rule? Your employee tells you she’s going on FMLA. You discover, however, that she actually took her mom on a vacation to Vegas. You also find out that the two of them hit the casinos, played the slots, shopped on the Strip and ate at some nice restaurants. Your employee claims that she is her mother’s primary caregiver, that she has terminal cancer and that she was there to look after her and give her medication. She admits, though, that her mom had no medical reason to visit Vegas and wasn’t there to seek medical treatment and was never hospitalized or treated there.You fire her for unauthorized absences. She sues. Who wins? YOU be the judge …
  • Believe it or not, the EMPLOYEE won. Never ever assume just because something seems ridiculous that it’s not covered by the law. An eligible EE can take FMLA to care for a parent with a serious health condition such as cancer. But is it “caring” to take your mom to Vegas?The court focused on what the word “care” means under the FMLA. The statute itself is silent but the supporting regs say that caring for a family member doesn’t depend on a particular location or on participation in medical treatment itself. The court concluded that unquestionably what the EE did for her mom at home constituted “care” so why not when she’s doing some of the same things in Vegas? Note: At least one fed ct disagrees, saying that the family member must at least seek care in the locale in question. But the lesson again? Never assume. [34:00]
  • This is a ? we’ve covered before. Here’s our handy-dandy one-page chart. Won’t cover here today. You can print out the chart and frame it in your cube and then search the Blawg using the word “intermittent” and you’ll get everything you could ever need to know and then some. [34:00]
  • If that’s not enough, here’s another handy resource you might want to check out. The DOL issued a new EE Guide to the FMLA, a “plain language booklet designed to answer common FMLA questions and clarify who can take FMLA leave and what protections the FMLA provides.” Your employees are reading it — so should you. Specific questions/answers include: Who can take leave? When can they take it? How do they take it? What rights do employees have? What obligations do employers have? How does the medical certification process really work? How does the return to work process really work? Etc. It also contains a handy flow chart to determine FMLA eligibility, defines key terms and maps out the leave process. Good stuff to help you do the right thing.
  • So that’s how TO manage FMLA. A recent case gives a great illustration of how NOT to manage FMLA …Let’s say an employee requests FMLA for a hysterectomy. The employee’s supervisor responds by giving her a copy of a book entitled No More Hysterectomies. The employee then gets a disciplinary warning for behavior that others who didn’t request FMLA were never disciplined for. The company then RIFs the employee and explains that she’s getting RIFd not for objective RIF-like reasons but instead because of her arguably discriminatory disciplinary record. To top things off the employer informs the employee that her RIF was really a QUOTE “blessing in disguise” for her. Please please don’t do anything like that. [37:00]
  • The #3 scariest law according to YOU is the FLSA. Also the #1 source of humongous class actions so please stay awake during this portion.
  • Lots of wage and hour weirdness being reported out there. We’re here to un-weird it for you.
  • Not exactly sure if this qualifies as a “thingy,” but it is on one page. Gaze at the words there on your screen and try to determine for yourself which of these big 10 Ers generally are required to pay under the FLSA.Done? OK here’s the answer …
  • Everything in white. [Read.]Pretty simple. Again, all the FLSA is doing here is trying to get employers to pay for what they should pay for without the govt or plaintiffs’ attys having to tell you that. Again. Love. Your. Employees. Pay em the way you’d like to be paid.
  • LOOOOTS of ?s about the NLRB …
  • Only slightly kidding.
  • But I’ll try anyway. Here are the latest NLRB No-nos. Big concern is that NLRB’s broad rule-making and case-deciding authority can bypass Congress to put pieces of things like the EFCA in place. Real concern there and it’s already coming to fruition with some fairly union-friendly rulings. No confidentiality in investigations? More on that in a moment. No employment at will? The NLRB says handbooks that state that an EE’s EAW cannot be amended or modified is an ULP.But it’s not all Nos. One thing the NLRB did say yes to was unions putting giant inflatable protestrats on Ers sites. So that’s OK. [40:00]
  • Avoid overly broad. NLRB model. SM Starter Kit.
  • Blanket prohibitions saying thou shalt not ever under any circumstances now or forever more talk about this investigation are now on both NLRB and EEOC hit list. NLRB: “concerted activities.” EEOC: “complaint chilling.”If not, you could face NLRB or EEOC scrutiny.
  • Speaking of the EEOC, there appears to be a whole lot of EEOCophobia spreading out there.
  • Crim: More on that in a moment. New online charge tool: [Add]BIG subpoenas: Fed ct ruled that EEOC can subpoena QUOTE “virtually any material that MIGHT cast light on the allegations against the Er.”Transgender: EEOC now unequivocally contends that discrimination vs transgender individuals is gender discn under Title VII. 752,000 rsns for EEOC to be nice to Ers: Ct awarded $752K in attorneys’ fees and costs awarded to an employer after the EEOC withdrew a suit it decided not to pursue. Ct said QUOTE: “This is one of those cases where the cplt turned out to be without foundation from the beginning.”
  • SEP.Systemic.
  • Very, acc’g to EEOC C’r Chai Feldblum. Pregnancy disc is a big target for the EEOC bc Ers keep doing dumb – and illegal -- things. Major lawsuits against companies that you would think would know better, like Motherhood Maternity and Kids R Us.
  • Interesting stat: Accg to recent survey, 69% of Ers now use bground checks for every posn.EEOC started to get interested in this area when it confronted a case in which an employee claimed he was unjustly fired when his Er learned of a 40-year-old murder conviction. Here’s what the new guidance says are best practices. [Read]
  • And that’s a big “BUT.”
  • Again, guidance, not law. [49:00]
  • ***POLL***
  • ***POLL***If your answer is “other” please tweet or text us what “other” you use. Really curious. To tweet, again it’s @manpowerblawg and the text # is 414.751.0126
  • Hopefully you’re not like one prominent public figure who shall remain nameless who chastised peeps for using “Spacebook” and “Tweeter.”
  • 98% of HR pros now say SM is impt for recruiting, retaining and managing Ees. (Achievers Social HR Survey)75% Ees access SM while on job; 60% multiple times/day (SilkRoad)< 10% Ees get SM training (SilkRoad)Not wasting time: #1 reason for using SM was to interact with co-ws. Fun #2 and customers #3.0 basically the # of Ers demanding EE passwords, despite all the hubbubFrowny face: Turns out that all this SM use could be depressing us. 1 study found that peeps are getting depressed over the # of FB friends they have. If they have too few, they compare themselves to those with 1000s and feel bad. If they have too many they feel like they can’t keep up. Especially true for the male of the species for some rsn. The magic #? Apparently 354. Another study concluded that there’s a scientific correlation bw how happy you look in your SM profile pics and social success. The bottom line? SMILE.!!!!: Want to find out what your Ees are REALLY thinking and doing? Check out It compiles SM updates from Ees into several interesting categories: “Who wants to get fired?” “Who’s hung over?” and “Who’s taking drugs?” and then displays ‘em for all the world to see.Here’s a sampling of some of what Ees are saying out there: I hate my boss with 4 exclamation points. Another: Hungover, still a lot of zombie makeup that won't come off, should probably go back to bed, or find some people to eat.Might want to remind your Ees and yourself to update your privacy settings.
  • We’ve pulled together all the world’s greatest tips into our official Social Media Starter Kit, which is available for free right now on the Blawg. Here’s what you get: Summary of the law, NLRB-approved model policy, the Blawg’s official model policy, Other Fortune 500 policies,SM 101 articles and much much more. And. All. For. Free.
  • As we start to approach the end of our time together here, let’s address some EL Great Pumpkins. Here’s a great ? …
  • Let’s start with the first one. The NLRA doesn’t apply to me, I’m a non-union Er.
  • Smashed. The NLRA covers the vast majority of private Ers whether you have a union or not. How about the next one?
  • Anyone can tell you how NOT to get sued. To sum up, here on one page is HOW TO GET SUED BIG NOW.
  • Immediately following this webinar. Contest on the blawg – that’s Simple quiz to determine who stayed the most un-dead throughout today’s presentation.
  • Next webinar. You may have heard that there’s an election coming up. Could result in some verrrrrrrry interesting changes in the emp’t law landscape. We’ll kick off the new year with a handy guide to everything you need to stay out of court and/or jail. You won’t want to miss it.
  • THANK YOU THANK YOU THANK YOU so much for your time, attention and participation – we really really really appreciate it!And now, back over to Dan.
  • THANK YOU THANK YOU THANK YOU so much for your time, attention and participation – we really really really appreciate it!And now, back over to Dan.
  • Answers to the Scariest Employment Law Questions

    1. 1. with Mark Toth Chief Legal Officer North AmericaHalloween 2012
    2. 2. General Information • Share the webinar • Votes (polling questions) • Rate (before you leave) • Attachments (download)Halloween 2012
    3. 3. Audio Problems? The audio for this event is streaming to your computer. If you can‟t hear through your computer speakers: US Dial-in Number: 1 877 465 4510 Passcode: 370 615 75#Halloween 2012
    4. 4. Earning HRCI Credit To receive 1 HRCI for this webinar, participants must attend the webinar in its entirety (one person per computer).Halloween 2012
    5. 5. with Mark Toth Chief Legal Officer North AmericaHalloween 2012
    6. 6. Official Disclaimer The presentation you are about to witness should not be relied upon or construed as legal advice. Failure to stay awake for the entirety of this presentation could result in long-lasting side-effects, including litigation headaches, recurring nightmares and/or severe gastrointestinal discomfort from having to spend too much time with lawyers. Please consult with your own HR and Legal departments before making any major policy and/or procedure changes. You have been warned.ManpowerGroup | October 31, 2012 6
    7. 7. Tweet along: #mpwebinar Follow Mark on Twitter: @manpowerblawg Visit Mark‟s Blawg: Find us on Facebook: | October 31, 2012 7
    8. 8. Today‟s webinar is brought to you byManpowerGroup | October 31, 2012 8
    9. 9. Reduce your terror level What How to Least Keeps Scary Twick EL Get Sued Zombie- YOU ???s or Great BIG ish Up at Answered Tweet? Pumpkins Now Contest Night?ManpowerGroup | October 31, 2012 9
    10. 10. Keep the monsters awayManpowerGroup | October 31, 2012 10
    11. 11. What Keeps YOU Awake at Night?ManpowerGroup | October 31, 2012 11
    12. 12. Question Is complying with employment laws getting scarier or easier?Really very extremely easier 0% Somewhat easier 1% No change 13% Somewhat scarier 21%Really very extremely scarier 65%Source: ManpowerGroup Employment Blawg ManpowerGroup | October 31, 2012 12
    13. 13. Question Are you seeing an increase in employment law claims? Yes, substantial increase 2% Yes, moderate increase 32% No change 64% No, moderate decrease 1% No, substantial decrease 1%Source: ManpowerGroup Employment Blawg ManpowerGroup | October 31, 2012 13
    14. 14. TOP 10 SCARIEST EMPLOYMENT LAWS 1. ADA (32.0%) 2. FMLA (20.9%) 3. FLSA (19.3%) 4. NLRA (14.6%) 5. Title VII (12.7%) 6. HIPAA (6.0%) 7. OSHA (5.4%) 8. USERRA (2.8%) 9. ADEA (2.5%) 10. COBRA (1.6%)Source: ManpowerGroup Employment Blawg ManpowerGroup | October 31, 2012 14
    15. 15. What spooks you most about the world of work heading into 2013?ManpowerGroup | October 31, 2012 15
    16. 16. ManpowerGroup | October 31, 2012 16
    17. 17. de-spook-ifyManpowerGroup | October 31, 2012 17
    18. 18. The AnswerManpowerGroup | October 31, 2012 18
    19. 19. @manpowerblawg If you had to boil all of employment law down to one word, what would it be?ManpowerGroup | October 31, 2012 19
    20. 20. Scary Times are tough, man. Q I could use a little levity. Please share something dumb from the wonderful world of work that will help me feel smart by comparison.ManpowerGroup | October 31, 2012 20
    21. 21. 2012‟s MOST CREATIVE EXCUSES FOR MISSING WORK “I forgot you hired me.” “My toe was stuck in a faucet.” “I was upset after watching The Hunger Games.” “My dog had a nervous breakdown." “I was bitten by a bird.” “My sobriety tool kept my car from starting.” “My hair turned orange.” “I was sick from reading too much.” “I was suffering from a broken heart.” Sources: CareerBuilderManpowerGroup | October 31, 2012 21
    22. 22. ManpowerGroup | October 31, 2012 22
    23. 23. MedicalManpowerGroup | October 31, 2012 23
    24. 24. What do YOU think? Which of the following has NOT been recognized as a disability under the ADA? A. Internet Use Disorder B. Obesity C. Pregnancy D. Shy Bladder SyndromeManpowerGroup | October 31, 2012 24
    25. 25. What do YOU think? Which of the following has NOT been recognized as a disability under the ADA? A. Internet Use Disorder B. Obesity C. Pregnancy D. Shy Bladder SyndromeManpowerGroup | October 31, 2012 25
    26. 26. ADA FACTS 32% 2X D=$ 27MSources: BLS, October 31, 2012 ManpowerGroup | US Government, Kessler Foundation, Ernst & Young 26
    27. 27. ADA How NOT To Don‟t Don‟tMake snap Don‟t consider request Memorializejudgments interact additional additional discrimination leave medical info in writingManpowerGroup | October 31, 2012 27
    28. 28. Scary Aiyeeeeeeeeeeeeeeeeeeeee! Nothing freaks me out more Q than when the ADA meets the FMLA meets GINA meets WC. Can you give us a roadmap?ManpowerGroup | October 31, 2012 28
    29. 29. Freak no more. Open the Tool Box. Un-scary AManpowerGroup | October 31, 2012 29
    30. 30. Scary We‟ve had a no-fault attendance policy for decades. Q I heard that some companies are moving away from them. Do I really have to change it if we administer it consistently?ManpowerGroup | October 31, 2012 30
    31. 31. Un-scary Yes (for 20 million reasons). AManpowerGroup | October 31, 2012 31
    32. 32. Scary I tell people that unreasonably extended leave is, well, Q unreasonable, and thus not a “reasonable” accommodation. Am I right? Please say “yes."ManpowerGroup | October 31, 2012 32
    33. 33. Un-scary No (sorry). A Courts have ruled that extended leave (e.g., 6 months) can be a reasonable accommodation. However, courts have also consistently ruled that indefinite leave is not reasonable.ManpowerGroup | October 31, 2012 33
    34. 34. Scary An employee claims he‟s Q addicted to the Internet and that we have to accommodate him by letting him surf intermittently (seriously). Is he right? Please say “no.”ManpowerGroup | October 31, 2012 34
    35. 35. Un-scary Maybe (sorry again). A Internet Use Disorder has been officially accepted for inclusion in the DSM.ManpowerGroup | October 31, 2012 35
    36. 36. Scary An employee wants to telecommute as an Q accommodation. I can automatically deny that request if the employee is non-exempt -- right?ManpowerGroup | October 31, 2012 36
    37. 37. Un-scary No. A It depends on the particular circumstances, like virtually all accommodations.ManpowerGroup | October 31, 2012 37
    38. 38. Scary Is job reassignment required as an accommodation under Q the ADA?ManpowerGroup | October 31, 2012 38
    39. 39. Un-scary Probably yes, according to the EEOC and some federal A courts – even in preference over more qualified non-disabled candidates.ManpowerGroup | October 31, 2012 39
    40. 40. Scary I‟m confused, which makes Q me scared. Can you clarify what‟s OK when it comes to pre- and post-offer medical inquiries?ManpowerGroup | October 31, 2012 40
    41. 41. Un-scary Pre-offer: No medical exams and no inquiries about A disability, perceived disability, WC history, absence related to illness or drug/alcohol use. Post-offer: Medical exams acceptable only if required of similarly situated employees.ManpowerGroup | October 31, 2012 41
    42. 42. 414.751.0126 If you could make only one call, to whom would it be?ManpowerGroup | October 31, 2012 42
    43. 43. Scary Drugs @ work are my biggest nightmare. Most of our employees Q seem to be goofed up on skunkweed half the time. When can I drug test? What if they‟re addicts/alcoholics? What about prescriptions? Do I have to let „em crank “the Dead” all day as an accommodation?ManpowerGroup | October 31, 2012 43
    44. 44. Drug Testing Made Un-scary Objective, Avoid Medical not Reasonable Confidential Review prescription subjective suspicion Officer bansManpowerGroup | October 31, 2012 44
    45. 45. Drugs @ Work Made Un-scary “Currently engaging”? No Recovering? Safe Harbor unless “currently engaging” Prescribed meds? Probably unless direct threat UI? No (other than legally prescribed meds)ManpowerGroup | October 31, 2012 45
    46. 46. Scary What if a disability causes safety issues and work stoppages? Q We have a machine operator with diabetes who faints from low blood sugar. It causes interruptions as co-workers come to his aid and we fear he‟ll fall into a machine and injure himself or others.ManpowerGroup | October 31, 2012 46
    47. 47. “Direct Threat” Made Un-scary Imminence Likelihood Severity Duration “Significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated by reasonable accommodation.”ManpowerGroup | October 31, 2012 47
    48. 48. Discuss Discuss Discuss DiscussManpowerGroup | October 31, 2012 48
    49. 49. 800.526.7234 jan.wvu.eduManpowerGroup | October 31, 2012 49
    50. 50. Scary I‟m 2894% convinced that flexibility is the key to the modern workplace, Q including engagement, productivity and working with those who have workplace challenges such as disabilities. That said, I‟m not 2894% sure of all the ins and outs of flexible approaches. Got any good resources you can recommend?ManpowerGroup | October 31, 2012 50
    51. 51. Un-scary Yes. Hot off the presses: A Workplace Flexibility ToolkitManpowerGroup | October 31, 2012 51
    52. 52. YOU be the judge Who wins? A. Employer B. Employee C. NeitherManpowerGroup | October 31, 2012 52
    53. 53. YOU be the judge Who wins? A. Employer B. Employee C. NeitherManpowerGroup | October 31, 2012 53
    54. 54. Scary A salesperson is out on FMLA. Q Is it OK to use company e-mail to communicate with him? Is it OK if he makes phone calls to clients while on leave?ManpowerGroup | October 31, 2012 54
    55. 55. Un-scary No. The basics: • instruct employees not to work A • no contact except for leave-related info • work is compensable and can‟t be counted toward FMLAManpowerGroup | October 31, 2012 55
    56. 56. Scary An employee is demanding Q intermittent FMLA for migraines basically whenever she feels like it. Talk about scary – how on earth am I supposed to manage THAT?ManpowerGroup | October 31, 2012 56
    57. 57. Un-scary Very carefully. AManpowerGroup | October 31, 2012 57
    58. 58. Intermittent Leave Made Un-scary Incomplete Notice Certification 7 days to cure Contact Clarify/authenticate Provider HR, not supervisor Recert or Recert from original provider OR 2nd Option Employer-paid 2nd opinion 3rd If conflict Option Final & bindingManpowerGroup | October 31, 2012 58
    59. 59. The FMLA in Plain EnglishManpowerGroup | October 31, 2012 59
    60. 60. How NOT to manage FMLAManpowerGroup | October 31, 2012 60
    61. 61. FLSAManpowerGroup | October 31, 2012 61
    62. 62. The FMLA in Plain English Scary Wave your wand and Q whisk wage weirdness away wouldya? In other words, could you please summarize all the latest FLSA decisions in one of your patented one-page thingys?ManpowerGroup | October 31, 2012 62
    63. 63. The FMLA in Plain English1. On-call time 6. Travel during work hours2. Commute time 7. Changing in/out uniform3. Wait time 8. Donning/doffing safety gear4. Meals < 30 9. Walking from changing area5. Travel non-work hours 10. Rest > 30ManpowerGroup | October 31, 2012 63
    64. 64. The FMLA in Plain English1. On-call time 6. Travel during work hours2. Commute time 7. Changing in/out uniform3. Wait time 8. Donning/doffing safety gear4. Meals < 30 9. Walking from changing area5. Travel non-work hours 10. Rest > 30ManpowerGroup | October 31, 2012 64
    65. 65. NLRBManpowerGroup | October 31, 2012 65
    66. 66. Scary The NLRB makes me break out in hives. Can you please Q make sense of its most recent rulings for us?ManpowerGroup | October 31, 2012 66
    67. 67. Un-scary No. AManpowerGroup | October 31, 2012 67
    68. 68. NO Congress? NO NO discipline? confidentiality? NO anti- NO disparagement? employment at will?ManpowerGroup | October 31, 2012 68
    69. 69. Scary Should I just trash my Q employee handbook? Guide us thru the darkness. What should we do to avoid getting on the NLRB‟s hit list?ManpowerGroup | October 31, 2012 69
    70. 70. The NLRB Made Un-scary “Protected concerted activity” Union or non-union >1 Wages or work conditions Same in cyberspaceManpowerGroup | October 31, 2012 70
    71. 71. Scary The NLRB‟s attack on Q investigation confidentiality is a nightmare (not to mention unworkable). What exactly are employers supposed to do now?ManpowerGroup | October 31, 2012 71
    72. 72. Confidentiality Made Un-scary Witness Protection Evidence Destruction/Fabrication Cover-up Duration of Investigation Company Time/PropertyManpowerGroup | October 31, 2012 72
    73. 73. EEOCManpowerGroup | October 31, 2012 73
    74. 74. Scary The EEOC freaks me out. Q More and more regulation. More and more enforcement. More and more lawsuits. More and more class actions. More and more and more $. Almost hate to ask, but what is the EEOC cooking up next for employers?ManpowerGroup | October 31, 2012 74
    75. 75. Criminal Background Guidance 752,000 Online Reasons to Charge be Nice Tool EEOC NEW Transgender BIG Protection SubpoenasManpowerGroup | October 31, 2012 75
    76. 76. Recruiting/ Hiring Vulnerable Pregnancy Workers EEOC NEXT Harassment ADA Access to Legal LGBT SystemManpowerGroup | October 31, 2012 76
    77. 77. Scary How serious is the Q EEOC about its new agenda? Is it mostly political posturing?ManpowerGroup | October 31, 2012 77
    78. 78. Un-scary Very. AManpowerGroup | October 31, 2012 78
    79. 79. Scary What test are we Q supposed to apply to avoid conviction discrimination (in 100 words or less, please)?ManpowerGroup | October 31, 2012 79
    80. 80. Conviction Records Made Un-scary “Individualized “Targeted assessment” Notify if screened out: screen” • Circumstances individuals • Nature of offense surrounding offense under scrutiny • Time elapsed • Post-conviction work record • Nature of job • References & other info from applicantManpowerGroup | October 31, 2012 80
    81. 81. Scary Are “individualized assessments” Q always required?ManpowerGroup | October 31, 2012 81
    82. 82. Un-scary EEOC: “Not necessarily required in all circumstances.” A BUT … “The use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information onManpowerGroup | October 31, 2012 individual applicants.” 82
    83. 83. Scary Is it now unlawful to ask Q about convictions on job applications?ManpowerGroup | October 31, 2012 83
    84. 84. Un-scary No, but not a “best practice” according to the EEOC). AManpowerGroup | October 31, 2012 84
    85. 85. Scary Arrrrrrrrrgh! Do I have to Q train all my managers on this?ManpowerGroup | October 31, 2012 85
    86. 86. Un-scary Not unlawful not to, but a “best practice” A (according to the EEOC).ManpowerGroup | October 31, 2012 86
    87. 87. Scary How seriously do we have take Q this new guidance?ManpowerGroup | October 31, 2012 87
    88. 88. Un-scary Not law. Just “guidance.” But take it seriously (especially A in states that have restrictive conviction record laws) unless you want a class action.ManpowerGroup | October 31, 2012 88
    89. 89. Social Media SpookinessManpowerGroup | October 31, 2012 89
    90. 90. Quarterly SM Index Do you currently use social media @ work? A. Yes B. No C. What‟s social media?ManpowerGroup | October 31, 2012 90
    91. 91. Quarterly SM Index What SM tool do you use most @ work? A. Facebook B. Google+ C. LinkedIn D. Twitter E. OtherManpowerGroup | October 31, 2012 91
    92. 92. Scary Social media scares me silly. Don‟t want to be a neanderthal Q and ban it completely but I also don‟t want to expose my company to unnecessary liability. What‟s the latest and what are real HR people doing?ManpowerGroup | October 31, 2012 92
    93. 93. 98% !!!! 75% SM :( <10% 0 #1Sources: SilkRoad, Achievers Social HR Survey ManpowerGroup | October 31, 2012 93
    94. 94. Social Media Starter KitManpowerGroup | October 31, 2012 94
    95. 95. Employment Law Great PumpkinsManpowerGroup | October 31, 2012 95
    96. 96. Scary Like the Great Pumpkin of Q Charlie Brown fame, what are some great (or not-so-great) employment law myths that you can smash for us?ManpowerGroup | October 31, 2012 96
    97. 97. NLRA Salaried = CT but not doesn‟t Exempt OT is OK apply to me Probation ADA = means new job somethingManpowerGroup | October 31, 2012 97
    98. 98. NLRASMASHED doesn‟t Salaried = Exempt CT but not OT is OK apply to me Probation ADA = means new job somethingManpowerGroup | October 31, 2012 98
    99. 99. NLRASMASHED doesn‟t SMASHED Salaried = Exempt CT but not OT is OK apply to me Probation ADA = means new job somethingManpowerGroup | October 31, 2012 99
    100. 100. NLRASMASHED doesn‟t SMASHED Salaried = Exempt SMASHED CT but not OT is OK apply to me Probation ADA = means new job somethingManpowerGroup | October 31, 2012 100
    101. 101. NLRASMASHED doesn‟t SMASHED Salaried = Exempt SMASHED CT but not OT is OK apply to me Probation SMASHED ADA = means new job somethingManpowerGroup | October 31, 2012 101
    102. 102. NLRASMASHED doesn‟t SMASHED Salaried = Exempt SMASHED CT but not OT is OK apply to me Probation SMASHED SMASHED ADA = means new job somethingManpowerGroup | October 31, 2012 102
    103. 103. How To Get Sued BIG NowManpowerGroup | October 31, 2012 103
    104. 104. Get Sued BIG Now Don„t open the Tool Box Don‟t do the ADA Interaction Dance Manage FMLA intermittent leave badly Punish protected concerted activity Don‟t follow the Wage & Hour Big 10 Believe in the EL Great Pumpkins Ignore the EEOC‟s New Targets Don‟t love your employeesManpowerGroup | October 31, 2012 104
    105. 105. On the Blawg … MOST UN-ZOMBIE-LIKE AUDIENCE MEMBER CONTESTManpowerGroup | October 31, 2012 105
    106. 106. Coming soon … What‟s NEW & What‟s NEXT For Employment Law in 2013ManpowerGroup | October 31, 2012 106
    107. 107. INSERT NEW ICON THANK YOU! ManpowerGroup | October 31, 2012 107
    108. 108. Did you watch this webinar as a recording? Please request your certificate atINSERT NEW ICON ManpowerGroup | October 31, 2012 108
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