• Share
  • Email
  • Embed
  • Like
  • Save
  • Private Content
Everything You Ever Wanted To Know About Employment Law
 

Everything You Ever Wanted To Know About Employment Law

on

  • 840 views

 

Statistics

Views

Total Views
840
Views on SlideShare
781
Embed Views
59

Actions

Likes
1
Downloads
17
Comments
0

3 Embeds 59

http://manpowergroupblogs.us 55
http://cloud.feedly.com 3
http://www.newsblur.com 1

Accessibility

Categories

Upload Details

Uploaded via as Microsoft PowerPoint

Usage Rights

© All Rights Reserved

Report content

Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
  • Full Name Full Name Comment goes here.
    Are you sure you want to
    Your message goes here
    Processing…
Post Comment
Edit your comment
  • This will not be your typical lawyer blah blah blah presentation. This is a no-holds-barred, fight to the finish white knuckle death cage competition-o-rama. The first thing we’re going to divide this room into 2 teams who will compete for valuable prizes. Name ‘em.
  • And now here’s our official disclaimer. The presentation you are about to witness is intended as general commentary only and should not be relied upon or construed as legal advice. The views expressed are solely those of the presenterand not of ManpowerGroup. 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 please please consult with your own HR and Legal departments before making any major policy and/or procedure changes. In other words, you can’t sue me, [introducer], ManpowerGroup or anyone else based on anything you hear or see here today. You have been warned.
  • To further enhance your chances of staying out of jail, we’re giving you numerous ways of absorbing today’s message thru a variety of SM. You can tweet along with today’s festivities using the hashtag mpwebinar. You can follow me on Twitter @manpowerblawg – b-l-a-w-g where during today’s webinar ManpowerGroup’s own Sid Mehta will be magically tweeting along as me while I talk to you. You can also visit my blawg at marktoth.com and you can find us on Facebook at the address you see there on the screen.
  • 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.
  • 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]
  • ***POLL*** [Read] I’m sure for ManpowerGroup and my department specifically the number is more like negative 396% but what about everyone else?
  • 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 bottom line? Your employees are really very extremely incredibly disgruntled. Which leads us to our primary goal today …
  • To get your employees GRUNTLED.
  • 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.
  • Does the Supreme Court love business? You be the judge. First, the Court raised the standard for proving Title VII retaliation claims to “but for” causation instead of the lower “mixed motive” standard. “But for” causation requires proving that the employer would not have taken an adverse employment action “but for” an improper motive. “Mixed motive” causation requires only proof that the improper motive was one of multiple reasons for the employment action. The Court also narrowed the definition of “supervisor” that triggers vicarious employer liability for harassment to those with the power  to take “adverse employment actions” such as hiring, firing, demoting and reassigning, rather than those who merely direct or oversee other employees. The court also upheld class action waivers (albeit in a non-employment context); struck down attempts by trial lawyers to avoid the effects of the Class Action Fairness Act, a 2005 statute designed to steer class actions into federal rather than state courts; and even ruled that trial lawyers can’t troll DMV records to recruit plaintiffs for lawsuits. [Here’s a question for Kathleen: In your expert judgment, which of these do you predict will have the most impact?]
  • You can find details on each of these on the Blawg. Just search for 2013 Halftime Report. Quickly, there are new FMLA forms, rules, posters and FAQs to cover all the new military leave related pieces. Hopefully you’re all aware that the Department of Health and Human Services issued a 563-page final rule regulating protected health information. In short, the message is pretty simple: protect … health … information. You have exactly 25 days to make the appropriate updates. Deadline is September 23. More details on the Blawg. The EEOC recently issued new guidance on accommodating cancer, diabetes, epilepsy and intellectual disabilities. There’s also a new I-9 form and lots of new enforcement efforts to go with it and last on the screen there, the Genetic Information Nondiscrimination Act is now officially real. The EEOC recently settled its very fist GINA suit. [Joel: Here’s a question. Keep hearing that new OFCCP disability rules are coming. Are they? When? What employers are covered? What do they require?]
  • What else ELSE is new? Here’s a question: Do employers have to grant same-sex spouses FMLA leave in the defenses of the SCt’s dumpage of the Defense of Marriage Act?[Joel/Kathleen: care to weigh in?] It depends (there’s that phrase again) on whether the state recognizes same-sex marriage. DOL updated its FMLA fact sheet to capture that position. Some other wrinkles … Whistleblowers can now blow the whistle electronically for any of the 22 whistle-blower statutes overseen by OSHA. A federal court ruled that the NLRB has wide discretion in allowing unions to organize small micro-units unless the employer can prove that it is “arbitrary, unreasonable or an abuse of discretion.” And just last week the OFCCP released its brand new Federal Contractor Compliance Manual, the “procedural framework for executing quality and timely compliance evaluations and compliance investigations.” One other interesting bit: If you feel like you’re getting sued a lot more often for non-compete issues, you’re not alone. The # of lawsuits filed over nc issues has risen more than 60% in the last decade and is at an all-time high.
  • 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]
  • ***POLL*** [Based on the latest data, read]
  • The answer? False.
  • Less than half now, according to the latest edition of Jury Verdict Research.
  • What are your odds for different types of suits? Employers fare best in age suits, followed by disability. Race suits are a 50-50 toss-up. Sex discrimination suits are where Ers have the lowest chances of success, at only 36%. Interesting.
  • ***POLL*** [Based on the latest data, read]
  • ***POLL*** [Based on the latest data, read]
  • This. These are what the EEOC itself says are its enforcement priorities, based on its latest Strategic Enforcement Plan. Now more than ever the EEOC will looking at systemic issues in each of these categories: Hiring practices (including screening and testing), Vulnerable Workers, disabled employees covered by the ADA, LGBT employees, those who lack access to the legal system, harassment victims and pregnant employees. Want the EEOC to come after you? Mistreat employees in one or more of these categories and they just might.Somewhat ironically, just this week the EEOC lost a case in that first category there. The EEOC alleged an employer’s use of credit reports in the hiring process was racially discriminatory. The EEOC used a pretty interesting method to try to prove its case. It used an expert who utilized “race raters” to determine the plaintiffs’ races. The expert used a panel of five people to determine if photos of individuals looked QUOTE African-American, Asian, Hispanic, White or Other. If 4 out of the 5 agreed, for example, that someone’s photo looked White, then voila, that person is white. Here’s what the court said: QUOTE “It is clear that the EEOC itself frowns on the very practice it seeks to rely on in this case and offers no evidence that visual means is a method accepted by the scientific community as a means of determining race.” Pretty interesting. [26:00]
  • 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, 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]
  • ***POLL*** [Based on the latest data, read]
  • ***POLL*** [Based on the latest data, read]
  • 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 …
  • Generally speaking, everything in white. [Read.]Pretty simple. All the FLSA is doing here is trying to get employers to pay for what they should pay for without the government or plaintiffs’ attorneys or a judge having to tell you that. Again: LOVE your employees. Pay ‘em fairly.
  • 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.
  • ***POLL***Here’s our next question [read]
  • Rather surprising but true …
  • In fact, private sector union membership is now at its lowest percentage in 76 years. There was a drop from 11.8 when President Obama took office to 11.2% now. More than the dip in President Bush’s two terms combined. Strange.
  • 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 are the very latest social media happenings. According to the latest studies, 75% of employees now access SM like Facebook and Twitter while on the job, with 60% accessing it multiple times a day. Unfortunately, less than 10% of those employees get training on the proper use of SM in the workplace. That’s a pretty big gap.According to a recent Columbia Business School study, all this SM use – specifically of Facebook – is making us fat. So want to lose weight in 2013? Drop Facebook. More on Facebook: A new app called FaceWash promises to scrub clean your and your Ees’ Facebook pages by removing words considered offensive – sex, drug and other references. Can even input your own cringeworthy words. Based on what I’ve seen if peeps start actually using this tool, could reduce the volume of info on Fbook by as much as 98%. Which could be a good thing. Want to find out what your Ees are REALLY thinking and doing? Check out weknowwhatyouredoing.com. 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. Some examples: QUOTE I hate my boss followed by 4 exclamation points. Another: QUOTE Wake and bake followed by 12 exclamation points. Might want to remind your Ees and yourself to update your privacy settings.And last: Looking for good interview questions? Glassdoor.com has compiled its annual list of strangest interview questions. Actual real-life questions that have been asked include: “How many cows are there in Canada?” “If you could be any kitchen utensil, what would it be?” and my personal favorite: “A penguin walks thru that door right now wearing a sombrero. What does he say and why is he here?” So check that out.
  • 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.
  • 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 …
  • 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.
  • 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]
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • And last but not least, we’ll close today’s festivities with our new and improved 2013 Employment Law Sing-a-long. Research shows that you’re far more likely to remember something if you actually sing it. That’s why you remember the lyrics to bad 70s songs but not the rules of the FMLA. Please sing along with gusto -- the words will appear on your screen.
  • As always, thanks so much for your time and input. We really appreciate it!
  • As always, thanks so much for your time and input. We really appreciate it!

Everything You Ever Wanted To Know About Employment Law Everything You Ever Wanted To Know About Employment Law Presentation Transcript

  • September 18, 2013 Everything You Ever Wanted to Know About (But Didn’t Want to Pay a Lawyer to Ask) Mark Toth Chief Legal Officer – North America
  • SMARTEST HR PERSON IN THE UNIVERSE CONTEST WHAT‟S NEW? STAY OUT OF JAIL TO DO LIST SING-A- LONG SONG 187% FREE TOOL BOX Stay Out Of Jail
  • Official Disclaimer The presentation you are about to witness is intended as general commentary only and should not be relied upon or construed as legal advice. The views expressed are solely those of the presenter and not of ManpowerGroup. 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.
  • Sign up for my free alerts: at your seats Follow me on Twitter: @manpowerblawg Visit my Blawg: marktoth.com
  • 187% Free Stuff
  • World’s Most Fabulous Employment Law LIBRARY Open 24 / 7 / 365.25
  • Smartest HR Person in the Universe CONTEST
  • The BIG picture
  • ManpowerGroup | September 18, 2013 9 What percentage of employees would fire their bosses right now? A. 36% B. 56% C. 76% D. 96%
  • ManpowerGroup | September 18, 2013 10 What percentage of employees would fire their bosses right now? A. 36% B. 56% C. 76% D. 96% Source: Monster.com
  • ManpowerGroup | September 18, 2013 11 What percentage of your employees are thinking about leaving your company right now? A. 26% B. 46% C. 66% D. 86%
  • ManpowerGroup | September 18, 2013 12 What percentage of your employees are thinking about leaving your company right now? A. 26% B. 46% C. 66% D. 86% Source: Right Management
  • ManpowerGroup | September 18, 2013 13 $300B 1/25 bosses = psycho 32% workweek increase 62% workload increase 33% chronically overworked 80% sedentary Sources: Dr. Paul Babiak, Pennington Biomedical Research Center, Kronos, Families & Work Institute, Harris Interactive
  • ManpowerGroup | September 18, 2013 14 The Bottom Line: Employees are really very extremely incredibly disgruntled.
  • ManpowerGroup | September 18, 2013 15 The Goal: Get your employees gruntled.
  • ManpowerGroup | September 18, 2013 16 If you had to boil all of employment law down to one word, what would it be?
  • ManpowerGroup | September 18, 2013 17
  • What‟s NEW?
  • The Supremes Rule Retaliation Standard Toughened Supervisor Definition Narrowed Class Action Waivers Upheld Class Action Fairness Reinforced DMV Plaintiff Recruitment Curtailed
  • What Else is New? New FMLA New HIPAA Rule New EEOC ADA FAQs New I-9s GINA Is Real
  • What Else Else is New? DOMA, FMLA & Same-sex Spouses Online Whistleblower Complaints Micro-units OK Federal Contract Compliance Manual Non-compete Suit Explosion
  • How to GET SUED big now
  • ManpowerGroup | September 18, 2013 23 True or False? Employers win more employment lawsuits than they lose. A. True B. False
  • ManpowerGroup | September 18, 2013 24 True or False? Employers win more employment lawsuits than they lose. A. True B. False Source: Jury Verdict Research
  • ManpowerGroup | September 18, 2013 25 49% Source: Jury Verdict Research
  • ManpowerGroup | September 18, 2013 26 What Are Your Odds? SEX 36% ALL 49% DISABILITY 56% AGE 60% RACE 50% Source: Jury Verdict Research
  • ManpowerGroup | September 18, 2013 27 What‟s the #1 most common discrimination claim? A. Age B. Disability C. Race D. Retaliation E. Sex
  • ManpowerGroup | September 18, 2013 28 What‟s the #1 most common discrimination claim? A. Age B. Disability C. Race D. Retaliation E. Sex
  • Hiring Vulnerable Workers ADA LGBT Access to Legal System Pregnancy Harassment EEOC
  • DEAL or no?
  • WHO said it?
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 32 How Much Will YOU Pay? $1M+ Big pattern +/or reallllllly horrible facts 1% $100K-$1M Pattern +/or really horrible facts 39% $51-$100K 1 plaintiff + horrible facts 28%32% Sources: EEOC, Jury Verdict Research $1M+ Big pattern +/or reeeeeeeally horrible facts $100K-$1M Pattern +/or really horrible facts $51-$100K 1 plaintiff + horrible facts $0-$50K 1 plaintiff + no horrible facts
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 33 Ignore the law Ignore your policies Investigate + document poorly Discipline inconsistently Lie Get Plaintiffs‟ Lawyers to LOVE You
  • ManpowerGroup | September 18, 2013 34 Which of the following is most likely to result in a humongous class action? A. I-9 violations B. OSHA violations C. FMLA violations D. Wage and hour violations E. Doing business in California
  • ManpowerGroup | September 18, 2013 35 Which of the following is most likely to result in a humongous class action? A. I-9 violations B. OSHA violations C. FMLA violations D. Wage and hour violations E. Doing business in California
  • ManpowerGroup | September 18, 2013 36 Avoid the WAGE & HOUR abyss
  • ManpowerGroup | September 18, 2013 37 What celebrity was recently sued for a plethora of wage and hour violations?
  • ManpowerGroup | September 18, 2013 38 LADY GAGA
  • ManpowerGroup | September 18, 2013 39 OT Classifications Pre-shift “Work” Independent contractor classifications Work @ home California, California, California FLSA Hot Spots
  • 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
  • The FMLA in Plain English 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 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
  • Wage and Hour Solutions Know the Law Train managers and employees on time-keeping Complaint system: investigate promptly & thoroughly Audit classifications and records Address any discrepancies immediately
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 43 NLRB Nervousness
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 44 True or False? The NLRB only has jurisdiction over unionized companies. A. True B. False
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 45 True or False? The NLRB only has jurisdiction over unionized companies. A. True B. False
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 46 True or False? Union membership declined more in President Obama‟s first term than in President Bush‟s two terms combined. A. True B. False
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 47 True or False? Union membership declined more in President Obama‟s first term than in President Bush‟s two terms combined. A. True B. False Source: Bureau of Labor Statistics
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 48 11.2% Source: Bureau of Labor Statistics
  • Every Social Media Case On 1 Slide “Protected concerted activity” Union or non-union > 1 Wages / work conditions Same in cyberspace
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 50 Get SOCIAL MEDIA now
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 51 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.
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 52 True or False? Absolutely False.
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 53 Same Old Test job- related job- related job- related
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 54 Latest Stats: Employees 62% “couldn’t live without the Internet” 53% would rather lose nose than Facebook 48% would swap pay for SM access 29% access X-rated sites 28% have posted work-related photos 22% have posted/tweeted about a co-worker 21% would turn down a job if unsocial Sources: Cisco, Pew Research Center, McCann WorldGroup Nielsen, DLA Piper
  • 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
  • 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
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 57 What percentage of men have viewed porn at work? A. 0 B. 2 C. 17 D. 25 E. 118
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 58 What percentage of men have viewed porn at work? A. 0 B. 2 C. 17 D. 25 E. 118 Source: Harris Interactive
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 59 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
  • Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 60 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
  • Latest Stats: Employers 73% do no SM training 68% monitor internet activity 58% say SM benefits outweigh risks 56% block access to some sites 45% use SM to screen 31% have disciplined for postings about employer 25% have disciplined for excessive SM use 19% ban SM Sources: SHRM, Clearswift, DLA Piper, Cisco
  • 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.”
  • 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.”
  • YOU be the judge Who wins? A. Employer B. Employee C. Neither
  • Who wins? A. Employer B. Employee C. Neither YOU be the judge
  • Social Media Starter Kit
  • ADA, FMLA, HIPAA, OSHA … YIKES!
  • Yikes No More
  • ManpowerGroup | September 18, 2013 69 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”
  • ManpowerGroup | September 18, 2013 70 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”
  • What‟s the #1 most headache-inducing law for employers right now?
  • FMLA
  • ManpowerGroup | September 18, 2013 73 “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.” 2012‟s MOSTCREATIVEEXCUSESFORMISSINGWORK Source: CareerBuilder
  • ManpowerGroup | September 18, 2013 74 FMLA in Plain English
  • ManpowerGroup | September 18, 2013 75 ADA How NOT To Have an inflexible leave policy Make snap judgments Don‟t interact Don‟t accommodate Put dumb stuff in writing
  • ManpowerGroup | September 18, 2013 76 Discuss Discuss Discuss Discuss
  • ManpowerGroup | September 18, 2013 77 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. Fire him for inappropriate workplace behavior B. Do a crazy monkey arm dance in his honor until he returns C. Drug test him D. Give him a chance to explain his behavior
  • ManpowerGroup | September 18, 2013 78 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. Fire him for inappropriate workplace behavior B. Do a crazy monkey arm dance in his honor until he returns C. Drug test him D. Give him a chance to explain his behavior
  • ManpowerGroup | September 18, 2013 79 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?
  • ManpowerGroup | September 18, 2013 80 JOB ACCOMMODATION NETWORK jan.wvu.edu 800-526-7234
  • LIGHTNING Round
  • Many employment disputes can be traced back to a lack of leadership. According to research, what‟s the #1 most important leadership trait? A. Charisma B. Humility C. Kindness D. Proactivity E. Results-orientation F. Height G. Coordinating accessories H. Smooth dance moves
  • Many employment disputes can be traced back to a lack of leadership. According to research, what‟s the #1 most important leadership trait? A. Charisma B. Humility C. Kindness D. Proactivity E. Results-orientation F. Height G. Coordinating accessories H. Smooth dance moves
  • After a batch of frivolous complaints against execs that resulted in several of them hating your guts because you conducted the investigations, you institute a policy calling for brief “reviews” rather than full-scale investigations whenever a complaint comes in against an exec. What‟s most likely to happen next? A. Nothing: research shows that 97% of all complaints are bogus B. You get a big raise and promotion for sparing execs the hassle and embarrassment of getting investigated C. You get fired after the company pays a big settlement based in part on your failure to conduct an appropriate investigation
  • After a batch of frivolous complaints against execs that resulted in several of them hating your guts because you conducted the investigations, you institute a policy calling for brief “reviews” rather than full-scale investigations whenever a complaint comes in against an exec. What‟s most likely to happen next? A. Nothing: research shows that 97% of all complaints are bogus B. You get a big raise and promotion for sparing execs the hassle and embarrassment of getting investigated C. You get fired after the company pays a big settlement based in part on your failure to conduct an appropriate investigation
  • Stay out of JAIL
  • 187% Free Stuff
  • Open 24 / 7 / 365.25 World’s Most Fabulous Employment Law LIBRARY
  • Go To Prison Soon Plan Don„t open the Tool Box Don‟t visit the EL Library Don‟t sign up for Mark‟s alerts Don‟t follow Mark on Twitter Don‟t visit the Blawg every 0.3 seconds
  • Prison-free Plan KNOW THE LAW INVESTIGATE & DOCUMENT ALL CLAIMS BEWARE RETALIATION LOVE YOUR EMPLOYEES FOCUS ON KEY PRIORITIES Known violations Systemic issues Wage & hour EEOC priorities
  • ManpowerGroup | Halloween 2012 Employment Law SING-A-LONG
  • ManpowerGroup | Halloween 2012 Employment law can be easy If you listen you surely won‟t fail We wrote you this song So please sing along If you don‟t, you could end up in jail
  • ManpowerGroup | Halloween 2012 Don‟t put things off til tomorrow Yes investigate right away Don‟ procrastinate And don‟t retaliate Or the more you will have to pay
  • ManpowerGroup | Halloween 2012 Remember this song And you‟ll never go wrong Yes we wish you the best on your journeys You‟ll stay out of court And you won‟t have to pay no attorneys
  • ManpowerGroup | Halloween 2012 Technology may give you headaches And the feds they may knock on your door But if you prepare Be consistent and fair They won‟t ever bug you no more
  • ManpowerGroup | Halloween 2012 If your brain‟s too full to remember All the stuff we just covered above There‟s one little word That sums up what you heard Love love love love love love LOVE!
  • ManpowerGroup | Halloween 2012 So, remember this song And you‟ll never go wrong Yes we wish you the best on your journeys You‟ll stay out of court And you won‟t have to pay no attorneys
  • September 18, 2013
  • September 18, 2013