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Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
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Nebraska SHRM Conference

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  • 1. Everything You Ever Wanted to Know About (But Didn’t Want to Pay a Lawyer to Ask) Mark Toth Chief Legal Officer – North AmericaSeptember 13, 2012
  • 2. Today’s AGENDA Smartest HR Person in the Universe Competition All the Latest Developments How to Get Sued Big Now Employment Law Sing-a-long Employment Law Tool BoxManpowerGroup | September 13, 2012 2
  • 3. marktoth.com @manpowerblawgManpowerGroup | September 13, 2012 3
  • 4. 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 remainder of this presentation could result in potentially long-lasting side-effects, including severe disengagement, plummeting productivity, increased litigation and/or severe gastrointestinal discomfort from having to do all the work in your company because everyone else leaves. Please consult with your own HR and/or Legal departments before making any major policy and/or procedure changes. You have been warned.ManpowerGroup | September 13, 2012 5
  • 5. SMARTEST HR PERSON IN THE UNIVERSE COMPETITIONManpowerGroup | September 13, 2012 6
  • 6. LAWSUITS LAWSUITS LAWSUITSManpowerGroup | September 13, 2012 77
  • 7. According to a recent study, what‟s the #1 legal headache for U.S. businesses? A. Environmental regulation B. Patent protection C. International contract laws D. Employment law disputes E. LawyersManpowerGroup | September 13, 2012 8
  • 8. According to a recent study, what‟s the #1 legal headache for U.S. businesses? A. Environmental regulation B. Patent protection C. International contract laws D. Employment law disputes E. LawyersSource: Fulbright & JaworskiManpowerGroup | September 13, 2012 9
  • 9. According to the latest data, what are an employer‟s odds of winning at trial? A. It is unlawful for employers to win B. 22% C. 48% D. 68% E. 88%ManpowerGroup | September 13, 2012 10
  • 10. According to the latest data, what are an employer‟s odds of winning at trial? A. It is unlawful for employers to win B. 22% C. 48% D. 68% E. 88%Source: Jury Verdict ResearchManpowerGroup | September 13, 2012 11
  • 11. What hit record highs last year? A. EEOC complaints B. EEOC recoveries C. EEOC class actions D. EEOC love notes from employers E. All of the above except “D”ManpowerGroup | September 13, 2012 12
  • 12. What hit record highs last year? A. EEOC complaints B. EEOC recoveries C. EEOC class actions D. EEOC love notes from employers E. All of the above except “D” Source: EEOCManpowerGroup | September 13, 2012 13
  • 13. What‟s the #1 most common discrimination claim?A. AgeB. National OriginC. RaceD. RetaliationE. SexManpowerGroup | September 13, 2012 14
  • 14. Retaliation is #1 1. Retaliation (36,258) 2. Race (35,890) 3. Sex (29,029) 4. Disability (25,165) 5. Age (23,264) Source: EEOCManpowerGroup | September 13, 2012 15
  • 15. Which of the following is most likely to result in a humongous class action?A. I-9 violationsB. OSHA violationsC. FMLA violationsD. Wage and hour violationsE. Doing business in CaliforniaManpowerGroup | September 13, 2012 16
  • 16. Which of the following is most likely to result in a humongous class action?A. I-9 violationsB. OSHA violationsC. FMLA violationsD. Wage and hour violationsE. Doing business in CaliforniaManpowerGroup | September 13, 2012 17
  • 17. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)lawsuitslawsuits DEALlawsuits Or No?© 2011 ManpowerGroup 18
  • 18. How Much Will YOU Pay? $100K - $1M+: $0 - 50K: $51-100K: Big pattern 1 plaintiff + 1 plaintiff + $1M: +/or no horrible horrible Pattern +/or reeaaallllllllly facts facts horrible horrible (32%) (28%) facts facts (39%) (1%)ManpowerGroup | September 13, 2012 19 Sources: EEOC, Jury Verdict Research
  • 19. TECHNOLOGYTECHNOLOGYTECHNOLOGYManpowerGroup | September 13, 2012 2020
  • 20. 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.ManpowerGroup | September 13, 2012 21
  • 21. Same old laws … Non-discrimination Adverse impact FCRA GINA NLRA Negligent Hiring Off-duty Conduct Arrest & Conviction RecordManpowerGroup | September 13, 2012 22
  • 22. Same old test … job- job- related related job- relatedManpowerGroup | September 13, 2012 23
  • 23. Latest Stats: Employees62% “couldn’t live without the Internet”53% would rather lose nose than Facebook48% would swap pay for SM access29% access X-rated sites28% have posted work-related photos22% have posted/tweeted about a co-worker21% would turn down a job if unsocialSources: Cisco, Pew Research Center, McCann WorldGroup, Nielsen, DLA PiperManpowerGroup | September 13, 2012 24
  • 24. Question: How do those about to enter the workforce rank the following in order of importance?A. Social Activities, Romance, Music, InternetB. Internet, Social Activities, Romance, MusicC. Music, Social Activities, Internet, RomanceD. Romance, Internet, Music, Social ActivitiesManpowerGroup | September 13, 2012 25
  • 25. Question: How do those about to enter the workforce rank the following in order of importance?A. Social Activities, Romance, Music, InternetB. Internet, Social Activities, Romance, MusicC. Music, Social Activities, Internet, RomanceD. Romance, Internet, Music, Social ActivitiesSource: CiscoManpowerGroup | September 13, 2012 26
  • 26. Latest Stats: Employers73% do no SM training68% monitor internet activity58% say SM benefits outweigh risks56% block access to some sites45% use SM to screen31% have disciplined for postings about employer25% have disciplined for excessive SM use19% ban SMSources: SHRM, Clearswift, DLA Piper, CiscoManpowerGroup | September 13, 2012 27
  • 27. 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.”ManpowerGroup | September 13, 2012 28
  • 28. 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.”ManpowerGroup | September 13, 2012 29
  • 29. Search Checklist Be Consistent • All candidates or certain categories/departments • Same phase of interview process Designate Searchers • One employee, small group or 3rd party • Not hiring manager Limit Scope • Job-related, job-related, job-related • Restrict to certain approved sites • No age, race, religion, disabilities, genetics or other protected infoManpowerGroup | September 13, 2012 30
  • 30. Search Checklist Disclose • Notify candidates that may use SM • Include on applications and other documents Document • Consistent process • Note legitimate job-related reasons for not hiring • Follow document retention policiesManpowerGroup | September 13, 2012 31
  • 31. building theperfect social media ManpowerGroup | September 13, 2012 policy 32
  • 32. 10 Essential Elements Tie to Vision + Handbook + Code Set Clear + Reasonable Expectations Define SM Brooooooooadly Protect Trade Secrets/Confidentiality Clarify Who Owns WhatManpowerGroup | September 13, 2012 33
  • 33. 10 Essential Elements No Disparagement/Harassment Respect Copyrights NLRA Disclaimer Duty To Report Violations “Up to and including discharge”ManpowerGroup | September 13, 2012 34
  • 34. SM Policy Starter Kit Latest Legal Developments Official NLRB Policy Official Blawg Sample Policy Other Fortune 500 Policies SM 101 ArticlesManpowerGroup | September 13, 2012 35
  • 35. MEDICAL MEDICAL MEDICALManpowerGroup | September 13, 2012 3636
  • 36. What‟s true about the ADAAA? A. It’s easier to establish a covered “disability” B. Mitigating measures can’t be considered C. Episodic or remission conditions are covered D. Individualized assessments are required E. Rigid leave policies will get you in trouble H. All of the aboveManpowerGroup | September 13, 2012 37
  • 37. What‟s true about the ADAAA? A. It’s easier to establish a covered “disability” B. Mitigating measures can’t be considered C. Episodic or remission conditions are covered D. Individualized assessments are required E. Rigid leave policies will get you in trouble H. All of the aboveManpowerGroup | September 13, 2012 38
  • 38. 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 behaviorManpowerGroup | September 13, 2012 39
  • 39. 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 behaviorManpowerGroup | September 13, 2012 40
  • 40. 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?ManpowerGroup | September 13, 2012 41
  • 41. JOB ACCOMMODATION NETWORK jan.wvu.edu 800-526-7234ManpowerGroup | September 13, 2012 42
  • 42. WAGE & HOURWAGE & HOURWAGE & HOURManpowerGroup | September 13, 2012 4343
  • 43. What celebrity was recently sued for a plethora of wage and hour violations?ManpowerGroup | September 13, 2012 44
  • 44. LADY GAGAManpowerGroup | September 13, 2012 45
  • 45. Whats Next? Hot Spots IC Classifications OT Classifications (especially Administrative) Work @ Home Pre-shift “Work” (Donning/Doffing, Logon/Logoff)ManpowerGroup | September 13, 2012 46
  • 46. Whats Next? Hot States California Illinois Massachusetts Minnesota New Jersey New York Pennsylvania WashingtonManpowerGroup | September 13, 2012 Source: Seyfarth Shaw 47
  • 47. UNIONS UNIONS UNIONSManpowerGroup | September 13, 2012 4848
  • 48. True or False: The NLRB only has jurisdiction over unionized companies. A. True B. FalseManpowerGroup | September 13, 2012 49
  • 49. True or False: The NLRB only has jurisdiction over unionized companies. A. True B. FalseManpowerGroup | September 13, 2012 50
  • 50. Facebook Firings Don‟t discipline for Be especially wary of comments about wages group comments or work conditions OK (maybe) to discipline Review policy to make for comments unrelated sure not overbroad to work conditions or out-of-dateManpowerGroup | September 13, 2012 51
  • 51. PICTURE
  • 52. Employment Law Talk ShowWe are • 80% of jobs are sedentaryStressssssed • 62% say workload increased last 6 months • 40% are sleep-deprived • 33% are chronically overworked • 32% increase in workweek in past 25 yearsSources: Pennington Biomedical Research Center, Kronos, National Sleep Foundation, • 1 in 25 bosses is a certifiedFamilies & Work Institute, Harris Interactive, Dr. Paul Babiak psychopathManpowerGroup | September 13, 2012 53
  • 53. Employment Law Talk ShowMore Stress = The Bottom Line:More Suits $200-$300B is lost each year due to stress-related absenteeism, burnout, decreased productivity, WC claims, turnover and insurance costs.ManpowerGroup | September 13, 2012 Source: American Institute of Stress 54
  • 54. Employment Law Talk ShowManpowerGroup | September 13, 2012 Source: ManpowerGroup 55
  • 55. If you had to boil all of HR and employment law down into ONE simple word, what would it be?ManpowerGroup | September 13, 2012 56
  • 56. EMPLOYMENT LAWSING-ALONG
  • 57. Employment Law Talk Show 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 jailManpowerGroup | September 13, 2012 59
  • 58. Employment Law Talk Show Don‟t put things off „til tomorrow Yes investigate right away Don‟t procrastinate And don‟t retaliate Or the more you will have to payManpowerGroup | September 13, 2012 60
  • 59. Employment Law Talk Show 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 attorneysManpowerGroup | September 13, 2012 61
  • 60. Employment Law Talk Show Technology may give you headaches The feds they may knock on your door But if you prepare Be consistent and fair They won‟t ever bug you no moreManpowerGroup | September 13, 2012 62
  • 61. Employment Law Talk Show 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 attorneysManpowerGroup | September 13, 2012 63
  • 62. Employment Law Talk Show If your brain‟s too full to remember All the stuff we just covered above There‟s one simple word That sums up what you heard Love, Love, Love, Love, Love, Love, LOOOOOOOOOOOOOOOOOOOVE!ManpowerGroup | September 13, 2012 64
  • 63. Employment Law Talk Show 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 attorneysManpowerGroup | September 13, 2012 65
  • 64. marktoth.com @manpowerblawgManpowerGroup | September 13, 2012 66
  • 65. September 13, 2012

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