2. 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.
2
3. Follow me on Twitter:
@manpowerblawg
Visit my Blawg:
marktoth.com
Sign up for my free alerts:
at your seats
3
4. Reduce your terror level
What
Keeps YOU
Up at
Night?
4
Smartest
HR Person
in the
Universe
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Stuff
29. 1. On-call time
6. Travel during work hours
2. Commute time
7. Changing in/out uniform
3. Wait time
8. Donning/doffing safety gear
4. Meals < 30
9. Walking from changing area
5. Travel non-work hours
10. Rest > 30
29
30. 1. On-call time
6. Travel during work hours
2. Commute time
7. Changing in/out uniform
3. Wait time
8. Donning/doffing safety gear
4. Meals < 30
9. Walking from changing area
5. Travel non-work hours
10. Rest > 30
30
31. Wage & Hour Checklist
Tool Box
Know the Law
Time System
Simple, accurate and enforced
Train
Managers and employees
Complaint System
Investigate promptly and thoroughly
Audit
Classifications, records and OT calculations
Address
Issues immediately, focusing on high risk first (systemic, CA)
Consult
Your favorite employment law attorney
31
39. True or False?
None of the laws that apply
in the real world apply in the
social media universe and
therefore I can completely
lose my mind and absolutely
anything goes.
39
42. How do those about to enter the
workforce rank the following in order
of importance?
A. Social Activities, Romance, Music, Internet
B. Internet, Social Activities, Romance, Music
C. Music, Social Activities, Internet, Romance
D. Romance, Internet, Music, Social Activities
42
43. How do those about to enter the
workforce rank the following in order
of importance?
A. Social Activities, Romance, Music, Internet
B. Internet, Social Activities, Romance, Music
C. Music, Social Activities, Internet, Romance
D. Romance, Internet, Music, Social Activities
Source: Cisco
43
44. What percentage of men have viewed
porn at work?
A. 0
B. 2
C. 17
D. 25
E. 118
44
45. What percentage of men have viewed
porn at work?
A. 0
B. 2
C. 17
D. 25
E. 118
Source: Harris Interactive
45
46. 1 out of every ___ employees has
forwarded a sex-related email at work?
A. 50
B. 10
C. 7
D. 3
E. 2
F. 1
46
47. 1 out of every ___ employees has
forwarded a sex-related email at work?
A. 50
B. 10
C. 7
D. 3
E. 2
F. 1
Source: Harris Interactive
47
48. Which of the following is NOT an actual
employee tweet?
A. “Hate my job!! I want to tell my bosses how dumb they
are and how meaningless this job is, then quit, and be
happy!”
B. “So my job was to test all the food at the new restaurant,
can I just say, ughew. I’m going to taco bell.”
C. “Smoking weed at work is so [expletive] great”
D. “I’m really bummed that I’m working today, I asked off so
I could study but my boss is a [expletive] who can’t read.”
E. “I am working really hard right now and feel very
fortunate to have a job.”
48
49. Which of the following is NOT an actual
employee tweet?
A. “Hate my job!! I want to tell my bosses how dumb they
are and how meaningless this job is, then quit, and be
happy!”
B. “So my job was to test all the food at the new restaurant,
can I just say, ughew. I’m going to taco bell.”
C. “Smoking weed at work is so [expletive] great”
D. “I’m really bummed that I’m working today, I asked off so
I could study but my boss is a [expletive] who can’t read.”
E. “I am working really hard right now and feel very
fortunate to have a job.”
49
50. YOU be the judge
Who wins?
A. Employer
B. Employee
C. Neither
50
51. YOU be the judge
Who wins?
A. Employer
B. Employee
C. Neither
51
52. SM Searches
Be
Consistent
Designate
Searchers
Limit
Scope
All candidates or certain categories/departments
Same phase of interview process
One employee, small group or 3rd party
Not hiring manager
Restrict to certain approved sites
No posing, lying, fraud or demanding passwords
No age, race, religion or other protected info
Job-related, job-related, job-related
52
53. SM Searches
Disclose
Notify candidates that may use SM
Disclose on applications and other docs
Document
Consistent process
Note legit biz job-related reasons
Follow doc retention policies
53
56. Which of the following increases your
chances of getting sued under GINA?
A. Asking about family medical history
B. Terminating an employee after a positive genetic test
C. Commingling medical and other info
D. Not adopting the EEOC’s safe harbor language
E. Discriminating against employees named Gina
F. All of the above except “E”
56
57. Which of the following increases your
chances of getting sued under GINA?
A. Asking about family medical history
B. Terminating an employee after a positive genetic test
C. Commingling medical and other info
D. Not adopting the EEOC’s safe harbor language
E. Discriminating against employees named Gina
F. All of the above except “E”
57
58. What’s the #1 most headache-inducing
law for employers right now?
58
60. 2014’s MOST CREATIVE EXCUSES
“My dog had a nervous breakdown.”
“My toe was stuck in a faucet.”
“I was upset after watching The Hunger Games.”
“I was bitten by a bird.."
“I was sick from reading too much.”
“My sobriety tool kept my car from starting.”
“My hair turned orange.”
“I forgot you hired me.”
“I was suffering from a broken heart.”
Source: CareerBuilder
60
62. Which of the following has NOT
been recognized as a disability
under the ADA?
A. Fear of Getting Fired
B. Internet Use Disorder
C. Obesity
D. Pregnancy
E. Shy Bladder Syndrome
62
63. Which of the following has NOT
been recognized as a disability
under the ADA?
A. Fear of Getting Fired
B. Internet Use Disorder
C. Obesity
D. Pregnancy
E. Shy Bladder Syndrome
63
64. An employee has been out on medical
leave for 11 months. Your neutral
policy is to terminate all employees
who have been on leave for 12
consecutive months. If he doesn’t
return in a month, can you terminate?
64
68. Bob is normally a responsible, quiet employee.
One day, however, he shows up two hours late
and acts “obscenely happy, wearing make-up,
avoiding eye contact, continuously rubbing his legs
and touching everyone.” He also does a “crazy
monkey arm dance” and begins “twirling and talking
gibberish, flying around in the office in a hyper state.”
Then he leaves. What do you do?
A.
B.
C.
D.
Fire him for inappropriate workplace behavior
Do a crazy monkey arm dance in his honor until he returns
Drug test him
Give him a chance to explain his behavior
68
69. Bob is normally a responsible, quiet employee.
One day, however, he shows up two hours late
and acts “obscenely happy, wearing make-up,
avoiding eye contact, continuously rubbing his legs
and touching everyone.” He also does a “crazy
monkey arm dance” and begins “twirling and talking
gibberish, flying around in the office in a hyper state.”
Then he leaves. What do you do?
A.
B.
C.
D.
Fire him for inappropriate workplace behavior
Do a crazy monkey arm dance in his honor until he returns
Drug test him
Give him a chance to explain his behavior
69
70. 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 IV 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?
70
77. Investigation Checklist
Step One: Prepare
Plan the investigation strategy
Review relevant policies and handbook provisions
Evaluate pros and cons of investigation
Pick a competent and impartial investigator
Analyze potential risk factors
Review allegations and prep list of witnesses and questions
Establish a confidential investigation file
77
78. Investigation Checklist
Step Two: Investigate
Interview the complaining employee first
Now – don’t procrastinate
View the site of the alleged incident
Each relevant witness identified by the complaining party should be interviewed
Supervisors should be involved to provide context
Take the time to gather all potentially relevant evidence
Interview the accused
Gather potentially mitigating evidence and talk to witnesses named by accused
Analyze all the evidence objectively
Talk to an attorney about any potential legal issues
End the investigation with a written report and appropriate communication
78
79. 11. Not telling real reasons
6. Emotion over facts
10. Poorly planned
termination meeting
5. Not getting a release
9. Ignoring policies
and contracts
8. Bad post-termination
communication
7. Ignoring past practice
4. Inadequate documentation
3. Non-job-related factors
2. Not treating with dignity
and respect
1. NOT firing someone
who should be fired
79
81. Termination Test
Notice
Rule
Investigation
Proof
Consistency
Penalty
Reasonable notice of consequences?
Related to (a) efficient and safe operations and
(b) performance company should reasonably expect?
Full, fair and timely?
Sufficient evidence that guilty as charged?
Rule consistently applied to all?
Punishment fit the crime, considering
(a) seriousness of offense and (b) service record?
81
82. Termination Meeting
Who?
Manager, HR, no 3rd parties (except union rep).
Security? Outplacement?
What?
Manager: decision. HR: all else. Final pay + notice
(some states).
Where?
In person. Not manager’s office. No projectiles.
When?
Mid-week #1, Friday #2, Monday worst. End of day #1,
morning #2. Avoid holidays.
How?
Compassionate.
82
83. Latest Severance Stats
75% have written policy
Most give lump sum
66% require waiver
68% provide outplacement
2.3 – 3.4 weeks for each year of service
Source: Right Management
83
87. Open 24 / 7 / 365.25
World’s Most
Fabulous
Employment Law
LIBRARY
88. Prison-free Plan
KNOW THE LAW
FOCUS ON KEY PRIORITIES
Known violations
Systemic issues
Wage & hour
EEOC priorities
INVESTIGATE & DOCUMENT ALL CLAIMS
BEWARE RETALIATION
LOVE YOUR EMPLOYEES
88
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, Ellen, ManpowerGroup or anyone else based on anything you hear here today. So there.
As an extra added bonus, ManpowerGroup’s own Mara Zimmerman 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, Mara, and please don’t say anything that’ll get me fired.
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 marktoth.com 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.
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.
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 …
Hundreds of responses. That’s the main theme right there on your screen. Here’s one quote and it was in all caps just so I wouldn’t miss the point: EVERYTHING ASSOCIATED WITH COMPLIANCE AND REGULATIONS AND MORE REGULATIONS AND MORE REGULATIONS. So, in addition to EVERYTHING spooking you right now, that word MORE kept popping up as a key theme, too, as in MORE complexity, MORE technology, MORE instability, MORE talent challenges, MORE competitive pressure, MORE demands, MORE fear, MORE stress, which all leads to MORE disputes and MORE and MORE and MORE litigation.
Our goal is simple: to de-spook-ify employment law one law at a time. For those of you who follow my blog, starting tomorrow we’ll be breaking down each and every major employment law in a single post each and every day until we’re done and you know absolutely everything. We want you to be fear free.
Before today’s webinar, we reached out and asked you a series of ?s to take your temperature on a few topics. Thanks to the more than 1200 of you who responded. Here’s what you said …
As always, we’ll start with the BIG picture and focus on that as weproceed so we don’t get lost in all the all the legal mumbo jumbo …
***POLL*** While you’re mulling that over, here’s a little poll to see how atuned you are with your employees. [Read]
The correct answer? 76% -- more than 3 out of 4 -- would fire their boss right now. If you’re a boss, keep that in mind as we proceed to our next question. For those of you who voted, you may need to click on the little “close” box to clear the poll from your screen. [9:30]
According to a new survey by ManpowerGroup’s own Right Management, Right Management, an unprecedented 86% of U.S. employees say they intend to look for a new job in 2013. Wow. The main driver, according to the researchers: Booming stress: “The constant drumbeat of downsizing coupled with the expectation to do more with less has put an added amount of stress on workers.” A study that came out last week concluded that the #1 reason people consider bolting is a lack of stability.
We’re ALL strrrrrrrrresssssed. Here’s a graphic representation of some of the latest depressing statistics. 1 in 25 bosses is a certified psychopath (4 times higher than average). We’re working 32% (8 hours a week) harder than our parents. 62% report a workload increase in the past 6 months. 33% are officially chronically overworked, medically speaking. And 80% of jobs are now officially sedentary, which makes them dangers to our health, specifically our hearts. The end result of all this stress? A whopping $300 billion is lost each and every year due to stress-related absenteeism, burnout,decreased productivity, workers’ comp claims, turnover, insurance and other costs.
The absolute key to employee gruntlement in one word: LOVE. If you really think about it, the law is there basically because we don’t do this whole LOVE thing very well. If we treated each other how we’d like to be treated -- with kindness and dignity and respect – we wouldn’t have to have all of those annoying 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.
That’s the big picture. Now it’s time for our next topic: How to get sued BIG now. That’s simple, too. Don’t LOVE your employees. [13:00]
So, to sum up this section, if you reallllly want plaintiffs’ lawyers to love you and sue you a lot, here are five easy steps you can take right now. First, ignore the law. Don’t wake up from the nap you’re taking right now and don’t update your policies or procedures based on what you hear. Second, plaintiffs’ lawyers LOVE it when you ignore your own policies, which, unfortunately, employers do all the time. Please don’t do that. Third, don’t investigate promptly and thoroughly, and document poorly. They LOOOOOVE that. Fourth, make sure you discipline your employees inconsistently. And last and most importantly, if you REALLY want to get sued big, lie. Cover things up. And especially at high levels of the organization. Do all those things and you’ll have no trouble spending lots of time in court. [21:00]
1 person. OK let’s see how well you apply all that stuff we just covered. Time to play Deal or No …? If win, get a fabulous Deal or No Deal board game.You’re the new HR person 3 women allege they were harassed by their employer.The women allege they were subjected to severe harassment, including one manager exposing himself and forcing a woman to grope him and then requiring the women to participate in a smooching club to get sales leads.Turns out you don’t have an anti-harassment policy.You also don’t have any anti-harassment training.You also don’t have any reporting procedures.After the complaints, manager fires 2 of em.Depositions. Managers testify they don’t think sex harassment procedures are necessary.You get deposed and are unable to give the legal defn of harassment.Ps atty comes to you after depos and offers to settle the cases for $1.2M – take it or leave it. No negotiating. What do you do? Deal or no?$1.5 jury verdict. If settle, save $300K on verdict alone + $150K attys’ fees + bad PR.
Who said the following? Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough. (Hint: Honest ___) 99% of cases settle. Earlier you settle, less you pay in fees. Abe was on to something.
So, how much will you have to pay? Here’s our latest and greatest breakdown of real-life cases right now and how much you’ll have to pay. Can be very helpful when it comes to settlement discussions.Starting at the left. If your case has just 1 plaintiff and really no horrible facts, which is about a third of all cases, expect to pay between 0 and fifty thousand dollars. If you have 1 plaintiff but horrible facts – 28% of cases – expect to pay between 51 and 100 thousand. If you have a pattern or systemic case with more than 1 plaintiff and/or really horrible facts – 39% of the cases out there – expect to pay between 100 thousand and 1 million. And if you have a big pattern with lots of plaintiffs and/or realllllllllly horrible facts, expect to pay more than a million. Thankfully that’s only about 1% of all the cases out there. [15:30]
So that’s it for medical leave law. And now: How to avoid getting sucked into the wage & hour abyss …
Allegations included that the Plaintiff was required to be on call QUOTE “from the earliest waking hour, for being responsive to the slightest need throughout the day, and for addressing spontaneous, random matters in the middle of the night” as well as QUOTE “maintaining the availability of defendant's personal supplies, ensuring the availability of chosen outfits, ensuring the promptness of a towel following a shower and serving as a personal alarm clock to keep defendant on schedule.” So, who was that alleged offender?And please don’t treat your employees like that.
Here’s an awesome little tool that every HR, business and legal person should memorize. Virtually everything you need on one screen. Gaze at the words you see there and try to determine for yourself which of these big 10 employers generally are required to pay under the FLSA. Done? OK here’s the answer …
Here’s an awesome little tool that every HR, business and legal person should memorize. Virtually everything you need on one screen. Gaze at the words you see there and try to determine for yourself which of these big 10 employers generally are required to pay under the FLSA. Done? OK here’s the answer …
Tool Box: know the lawTime System: simple, accurate & enforcedTrain: managers and employeesComplaint System: investigate promptly & thoroughlyAudit: classifications, records & OT calculationsAddress: issues immediately, focusing on high risks first (systemic, CA)Consult: your favorite employment law attorney
That brings us to our next topic, What’s new at the NLRB? Lots of intriguing developments …
***POLL*** First a question, [read]
Some employers still don’t realize that the NLRB and the NLRA it enforces apply to both unionized and NON-unionized companies. If you don’t have a union that doesn’t mean you can ignore this section.
I’ll take this one. Here’s a handy one-page guide to every recent NLRB decision. Basically, anything that infringes on the blue box you see there, the NLRB will have a problem with. Protected concerted activity is the key concept. Again, applies in union AND non-union settings. Any time you have more than one employee discussing virtually anything related to wages or work conditions you need to be careful. And as many employers are discovering, the rule really isn’t any different in cyberspace. Whether it’s in the cafeteria or on Facebook be very careful about punishing employees for anything that could be protected concerted activity. For more, check out our handy SM Starter Kit in the EL Tool Box. Lots more there on this topic.
As our survey results showed, people continue to be confused about social media and the law …
***POLL*** Here’s another question [read] [51:00]
***POLL***If you’re under the age of 22, the Internet apparently beats listening to music, getting together w/friends and even dating. Wow. As the parent of college-age twins, I’m officially concerned for the future of our world.
***POLL*** Here’s another question [read] [51:00]
***POLL*** Here’s another question [read] [51:00]
***POLL*** Here’s another question [read] [51:00]
***POLL*** Here’s another question [read] [51:00]
Here’s another real-life case. As I read it, weigh in. Let’s say you’re a male supervisor. You have a male employee that’s giving you grief but you don’t have the goods to fire him. So what do you do in today’s modern world? You create a fake Facebook profile as a woman named Layla Shine replete with a womanly photograph and everything. You then send the male employee a friend request. He accepts it. You then dig around on the employee’s site, print out some of his rather inappropriate comments and use ‘em to support a termination for “poor judgment.” The employee sues. Who wins?
The ruling went in favor of the employee because the manager violated the federal Stored Communications Act or SCA. In short, if you use fraudulent means to obtain social media access you may run afoul of the SCA. Judges and juries don’t like it when employers use shady tactics. When in doubt, don’t be sneaky.
Be ConsistentTreat applicants equallyApply searches to ALL applicants or at least specified categories or departmentsUse at the same phase of the interview process to ensure consistencyDesignate Searchers who actually know what they’re doingChoose one employee, or a very small group or a neutral 3rd party that’s trained in how to do thisPlease don’t use the hiring manager – they might discover all sorts of things you wish they hadn’tLimit the Scope of the searchRestrict searches to certain approved sites – no porn site visits, pleaseNo posing as someone you’re not, creating fake Facebook accts, lying or fraud: Courts and govt very hard on Ers who do thatOf course, don’t search or consider any protected informationAnd, as always, the focus should be job-related, job-related, job-related. If it’s not, don’t do it.
Disclose – tell applicants if you’re going to use SM to screen on applications, etc.And document document document -- the consistent process, the legit biz job-related reasons for not hiring and then retain those docs consistent with your retention policies and never ever destroy evidence.
There’s lots of stuff in the Tool Box to help make you yikes-free. Handy one-page cheat sheets + tips on each major law and how they all interact with each other which isn’t always easy to figure out. We get lots of questions in this area so hopefully you’ll find lots of practical answers there.
That brings us to ADA, FMLA, HIPAA, OSHA … Yikes!Loooooots of medical issues out there …
While we await those responses, here’s an interesting list. One of the areas in which you said you struggle most is leave abuse. To help you avoid getting taken advantage of, here are the Top 10 Most Creative Excuses for Missing Work from the past year. Hopefully you haven’t heard these from any of your employees or tried them yourselves … [read]. Number one: My dog had a nervous breakdown. That’s not covered by the ADA. At least not so far.
That looks like this. It’s a QUOTE “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 and 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 do the certification and return-to-work processes really work? It also contains a handy flow chart to determine FMLA eligibility and maps out the entire leave process. Good stuff to help you do the right thing. [37:30]
***POLL***Here’s another ? for you …
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.
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 not long ago that was settled for $20M. Hates inflexible/no-fault/rigid/automatic term leave policies and terms based on indefinite leave. Always always always go thru the interactive process and reasonably accommodate those with disabilities unless it truly imposes undue hardship. Talk to your fave emp’t lawyer before terming someone on this basis. The EEOC has held public hearings on this and spoken a lot about how it hates hates hates employers who do this.
Here’s a handy checklist on how NOT to do the ADA, based on all the latest cases. First, have an inflexible one-size-fits-all leave policy that doesn’t allow for individual variations and accommodations. The EEOC already has a $20M settlement in such a case. Next, make snap judgments that something you’ve never heard of isn’t a disability. Third, don’t interact with the employee in a meaningful way. Next, don’t accommodate the employee even if it’s fairly reasonable. And last, do like far too many employers have done and memorialize your discriminatory acts in writing for future judges and juries to see.
And here’s how TO do the ADA. Again, it’s all about LOVE. Treat those with disabilities the way you’d like to be treated. The law requires a graceful interactive DANCE depicted on your screen there. Discuss discuss discuss discuss and then discuss some more. It should be a good faith open dialogue that balances biz needs AND EE needs. Actually engage and interact. Both sides can win.
***POLL*** Time for another YOU be the judge. Listen to the facts and issue your ruling. A leasing manager worked for her employer a total of 4 days. During those 4 days, the employee alleged that 2 of her male co-workers sniffed her 12 times each. 24 sniffs total for those of you keeping score. The alleged sniffing occurred both while she was sitting at her desk and while she was on her way to the bathroom. She asked the sniffers to stop but they refused. One of the co-workers allegedly hovered over and engaged in a QUOTE sexual staredown with her for several minutes. At a staff meeting, the employee complained to her supervisor about the harassment. One employee claimed he had a medical condition that required frequent sniffing; the other made a sexual joke. The employee was fired later that day. At first, she was given no reason but later the company claimed she was fired for, among other things, “swatting a fly harder than necessary.” The employee sued the company claiming sexual harassment and retaliation. Who wins?
Believe it or not, the EMPLOYER won summary judgment at the trial court stage, ruling that no reasonable juror in the woman’s shoes would have viewed herself as an harassment victim. Not too surprisingly, the court of appeals reversed and found that a jury could reasonably conclude that both harassment and retaliation occurred. So, at least for now, the employee won.
Got several billion ?s in this area. Here’s everything you need to know, courtesy of our updated Investigation Checklist.2 steps. Prepare and Investigate. This checklist was put together based on thousands of collective hours of litigationexperience. Follow these and you may never see the inside of a courtroom ever again.P stands for plan the investigation strategy. Waaay too many employers skip this step and plunge in without preparation. Don’t. R is for review all relevant policies at the outset. E: Evaluate the pros and cons of investigation. Investigate ALL claims of discrimination but not everything else warrants an investigation. P: Pick a competent and impartial investigator. If you don’t, the entire investigation could be attacked as a sham. Next, analyze potential risk factors such as protected classes, medical leave issues, potential retaliation, etc. R: Review the allegations and prepare a witness and question list so you don’t forget anything. And then the last step of PREPARE is to Establish a confidential investigation file away from prying eyes.If you skip any of these steps, your investigation could be in peril. [Let’s stop and let people absorb this for a moment. Here’s a question: Who makes the ideal investigator in your mind?]
Now that you’re PREPAREd, it’s time to INVESTIGATE. I: Interview the complaining employee first to get the whole waterfront of allegations and know what you’re dealing with. Keep asking: “Anything else?” to close things off.N: Now. Don’t procrastinate. Act while memories, docs and evidence are still fresh.V: View the site of the alleged incident. Columbo always did it, so should you. Might miss the key to the puzzle.E: Each witness ID’d by the complainant should be interviewed next and then interview S Supervisors to provide needed context and background.And then T take the time to gather all relevant evidence.Next step: I interview the accused. Give him or her a chance to tell their side of the story. Don’t rush to judgment and assume they’re guilty.G: Gather all potentially mitigating evidence and interview any Ws ID’d by the accused.And then A analyze ALL the evidence objectively. Really think it thru. Imagine the govt or a judge ?g your every step and conclusion.T talk to your favorite emp’t law attorney – Joel Spitz for example – about potentially thorny legal issues.And then E end the investigation with a written report and appropriate communication.Here’s a question for you Kathleen as someone who’s actually spent a time in both HR and Legal. What 1 thing do you wish managers or HR folks would start or stop doing when it comes to investigations?A recent case out of my home state of KY shows the importance of resisting the temptation to skip any steps just because you think you’ve got a reeeally solid case. A sexual harasser was caught dead-to-rights. The HR person was so sure that he could fire the person to show how strong the company is against harassment that he wrote up the termination notice prior to meeting with the plaintiff to get her side of the story. Court ruled against the employer. Don’t skip steps.
Please not that most webinars out there give you mere top 10 lists. Ours go to 11. Here’s our updated official Top 11 Termination Troubles certain to land you in legal hot water.#11: Not telling someone the real reasons you’re firing them. Don’t sugarcoat. Be honest. #10: A poorly planned termination meeting. We’ll fix that for you in a moment. #9: Ignoring policies and employment contracts. Never good. #8: Bad post-term communication. Saying either too much or too little can hurt you. #7: Ignore past practice at your peril. #6. Reacting out of emotion instead of facts can lead to terrible decisions. Just the facts, man. #5: Not getting a release especially if you give an employee $ to go away is never a good idea. They just might use it to sue you. #4: Inadequate documentation. Document, document, document unless you say dumb things. #3: Considering non-job-related factors. Again, if it ain’t job-related, it ain’t job-related. #2: Not treating employees with dignity and respect when you terminate them. More on that later. #1: Not firing someone who should be fired. Too many employers drag their feet when it comes to terminations which can end up hurting morale and costing more in the long run.
Before you terminate anyone, here’s a handy checklist to make sure you review each and every key piece of information. Organizations miss one or more of these all the time. [Joel/Kathleen: Lots of questions of this variety – What ONE thing do you see employers most often mess up in this area?]
To help guide your termination decisions, here’s a handy one-page time-honored test that can save you lots of grief and money. I personally used this in several cases and won hands-down each time. If you can’t give a definitive “yes” to each of these ?s, don’t terminate.
Another big area of ?s is: How exactly do we handle the termination meeting to reduce risk? Here on 1 slide are the world’s greatest best practices in this area, based on lots of conversations with the world’s greatest employment lawyers and HR folks.[Read]
Bottom # depends on level. Execs at top end, non-professionals at low end.
First, here’s a handy checklist of how TO go to jail. [Read] It’s that simple. Last one is very important. For example, if you didn’t visit the Blawg this week you probably would have no idea that tomorrow is Working Naked Day. Don’t want to miss valuable information like that.
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.
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.
On the Blawg you can also find the World’s Most Fabulous Employment Library, which is open 24 hours a day 7 days a week 365 and a quarter days a year (which covers all leap years just in case you’re wondering). In it you can find a wealth of information on literally every employment law topic in the history of the universe. And. All. For. Free.
Here’s how to stay prison-free. First, and this is why you’re all here, KNOW THE LAW. Update your policies and procedures – plaintiff’s attorneys love it when you don’t. Next: Focus on key priorities we identified here today. Address any known violations of the law first and then any system-wide issues. Next address any wage and hour issues, particularly misclassifications. And then make sure you’re solid on all the EEOC strategic priorities we discussed. Always always always investigate and document all claims promptly and thoroughly. And beware retaliation. It’s now the #1 discrimination claim and often the easiest to prove.And last – above all else LOVE your employees. Treat ‘em the way you’d like to be treated. With dignity and respect. If you don’t, they just might sue you.
THANK YOU THANK YOU THANK YOU so much for your time, attention and participation – we really very extremely incredibly much appreciate it!And now, back over to Ellen.
