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  • 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.
  • Well, here’s our official new year’s resolution: to help you stay out of jail in 2013.Here’s what we’ll cover today to help achieve that goal. First, we’ll look at some of our pre-webinar survey results to see what YOU are really thinking and feeling. Then we’ll dive right into everything that’s new and next in the wonderful world of work. We’ll then wrap things up with our Stay out of Jail Action Plan. And then immediately after the webinar we’ll have our least likely to be imprisoned contest where the first person to answer our quiz questions correctly will get a valuable prize. To help keep you awake throughout today’s webinar, we’ll mix in a variety of poll questions, tweet-o-ramas and text-o-ramas for valuable prizes as well. And, if you’re nice, we might even sing you a song. So stay tuned for that.
  • 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.
  • That brings us to our first Tweetorama. The first person to tweet the correct answer to this question using our official Blawg handle you see there on the screen will win a valuable prize.It’s a question we’ve asked before but we want to see if our message is sinking in. If you had to boil all of empt law down to ONE word, what would it be? Again: [read ?] Tweet your answer for all the world to see using the handle @manpowerblawg. That’s @manpowerblawg. B-l-a-w-g. Good luck.
  • 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]
  • ***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]
  • ***POLL*** [Based on the latest data, read]
  • 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]
  • 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.
  • Here’s some rather big news. Last week, a federal court ruled that the President’s recess appointments of NLRB members were unconstitutional. That throws the NLRB and all of its rather controversial rulings and rule-making from last year into complete turmoil. Of course, the Administration will appeal but a pretty major blow. Will undoubtedly result in lots of political posturing and legal wrangling on both sides for months to come.
  • ***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.
  • Even before last week’s big news, some of the NLRB’s greatest hits were on hold. Its quickie election rules – a key part of the Employee Free Choice Act – were already on hold thanks to a federal court. Same was true of the NLRB’s mandatory union rights posting requirement. And, now, everything including apparently the NLRB itself, are on hold for the time being.
  • As our survey results showed, people continue to be confused about social media and the law …
  • 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 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 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 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.
  • ***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.
  • 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.
  • ***POLL*** Here’s another question [read] [51:00]
  • ***POLL*** Here’s another question [read] [51:00]
  • 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.
  • Here’s the latest on your #1 reported problem area, the FMLA. On Jan 25 DOL issued new guidelines for employees who care for adult children. In short, the FMLA covers care of adult children incapable of self care because of a mental or physical disability regardless of when that disability arose. The guidelines remind employers that under the ADAAA, the term disability QUOTE shall be construed in favor of broad coverage. Second, one recent case showed that Ers can actually win FMLA fraud cases every once in awhile. In that case, an employee requested intermittent leave for back pain which left her QUOTE completely incapacitated. A few weeks into the leave, however, lots of photos of the EE smokin and drinkin and generally whoopin it up at a Polish beer festival appeared all over Facebook. Her employer investigated and then fired her. She took ‘em to court but lost, with the court saying that the employer had a QUOTE honest belief that her behavior in the photos was inconsistent with her claims of total disability.” So if you honestly belief someone is faking FMLA you don’t have to put up with it. The third new thing in the FMLA world is a handy new guide …
  • Here’s the latest on your #1 reported problem area, the FMLA. On Jan 25 DOL issued new guidelines for employees who care for adult children. In short, the FMLA covers care of adult children incapable of self care because of a mental or physical disability regardless of when that disability arose. The guidelines remind employers that under the ADAAA, the term disability QUOTE shall be construed in favor of broad coverage. Second, one recent case showed that Ers can actually win FMLA fraud cases every once in awhile. In that case, an employee requested intermittent leave for back pain which left her QUOTE completely incapacitated. A few weeks into the leave, however, lots of photos of the EE smokin and drinkin and generally whoopin it up at a Polish beer festival appeared all over Facebook. Her employer investigated and then fired her. She took ‘em to court but lost, with the court saying that the employer had a QUOTE honest belief that her behavior in the photos was inconsistent with her claims of total disability.” So if you honestly belief someone is faking FMLA you don’t have to put up with it. The third new thing in the FMLA world is a handy new guide …
  • 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.
  • Here’s the latest on your #1 reported problem area, the FMLA. On Jan 25 DOL issued new guidelines for employees who care for adult children. In short, the FMLA covers care of adult children incapable of self care because of a mental or physical disability regardless of when that disability arose. The guidelines remind employers that under the ADAAA, the term disability QUOTE shall be construed in favor of broad coverage. Second, one recent case showed that Ers can actually win FMLA fraud cases every once in awhile. In that case, an employee requested intermittent leave for back pain which left her QUOTE completely incapacitated. A few weeks into the leave, however, lots of photos of the EE smokin and drinkin and generally whoopin it up at a Polish beer festival appeared all over Facebook. Her employer investigated and then fired her. She took ‘em to court but lost, with the court saying that the employer had a QUOTE honest belief that her behavior in the photos was inconsistent with her claims of total disability.” So if you honestly belief someone is faking FMLA you don’t have to put up with it. The third new thing in the FMLA world is a handy new guide …
  • 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]
  • And now here’s what’s new with the ADA in 60 seconds or less. The DOL recently launched a new Workforce Recruitment Program, described as a database of nearly 3,000 ready-for-hire candidates with disabilities. As a complement to that effort, Cornell University has created a free online employer tutorial designed to foster an ADA-inclusive workplace. Also, the EEOC released a new Q&A fact sheet on domestic violence, with several examples where the ADA might apply. There’s lots more on all 3 of those on the Blawg if you’re interested. And last, a recent case made the news in which a teacher of small children filed an ADA claim alleging that she suffered from pedophobia – fear of small children. The point? Never ever assume that a condition isn’t a disability under the ADA which – again – is broadly construed in favor of coverage. [39:00]
  • 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.
  • Here’s what’s new in OSHA. All Ers maintaining OSHA 300 logs for workplace injuries and illnesses must post their 2012 summary … tomorrow. We’ll understand if some of you hang up now. The form is available on the OSHA web site. OSHA has also issued its Site Specific Targeting Plan: those w/above-average injury histories will be on the inspection list. OSHA has also indicated it intends to move forward on additional infectious disease regulations in health care and other high-risk industries. It also will likely move forward by the end of 2013 on one of its biggest priorities: a requirement for employers to establish an Injury and Illness Prevention Program or I2P2. Also on the table are stricter reporting obligations including reporting in-patient hospitalizations w/i 8 hrs (now: only if 3 or more Ees) + amputations w/i 24 hrs.
  • And here’s HIPAA in a minute. Earlier this month, the Dept of Health and Human Services issued its final omnibus rule regulating privacy for health information. It’s almost as long as War and Peace at 500 pages and affects HIPAA, the HITECH Act and GINA. What’s it say? Not all that much, surprisingly. Mostly aimed at health care providers. For other Ers, same basic compliance framework.Some good news for Ers: the rule recognizes that not every HIPAA violation is a security breach requiring breach notification which can be costly and time-consuming. 4 factors: (1) nature and extent of the information released, (2) who exactly used or received it, (3) whether it was actually seen by anyone and (4) the extent to which the risk was mitigated. Pretty good test actually. [43:00]
  • Here’s the latest on your #1 reported problem area, the FMLA. On Jan 25 DOL issued new guidelines for employees who care for adult children. In short, the FMLA covers care of adult children incapable of self care because of a mental or physical disability regardless of when that disability arose. The guidelines remind employers that under the ADAAA, the term disability QUOTE shall be construed in favor of broad coverage. Second, one recent case showed that Ers can actually win FMLA fraud cases every once in awhile. In that case, an employee requested intermittent leave for back pain which left her QUOTE completely incapacitated. A few weeks into the leave, however, lots of photos of the EE smokin and drinkin and generally whoopin it up at a Polish beer festival appeared all over Facebook. Her employer investigated and then fired her. She took ‘em to court but lost, with the court saying that the employer had a QUOTE honest belief that her behavior in the photos was inconsistent with her claims of total disability.” So if you honestly belief someone is faking FMLA you don’t have to put up with it. The third new thing in the FMLA world is a handy new guide …
  • Here’s the latest on your #1 reported problem area, the FMLA. On Jan 25 DOL issued new guidelines for employees who care for adult children. In short, the FMLA covers care of adult children incapable of self care because of a mental or physical disability regardless of when that disability arose. The guidelines remind employers that under the ADAAA, the term disability QUOTE shall be construed in favor of broad coverage. Second, one recent case showed that Ers can actually win FMLA fraud cases every once in awhile. In that case, an employee requested intermittent leave for back pain which left her QUOTE completely incapacitated. A few weeks into the leave, however, lots of photos of the EE smokin and drinkin and generally whoopin it up at a Polish beer festival appeared all over Facebook. Her employer investigated and then fired her. She took ‘em to court but lost, with the court saying that the employer had a QUOTE honest belief that her behavior in the photos was inconsistent with her claims of total disability.” So if you honestly belief someone is faking FMLA you don’t have to put up with it. The third new thing in the FMLA world is a handy new guide …
  • Here’s the latest on your #1 reported problem area, the FMLA. On Jan 25 DOL issued new guidelines for employees who care for adult children. In short, the FMLA covers care of adult children incapable of self care because of a mental or physical disability regardless of when that disability arose. The guidelines remind employers that under the ADAAA, the term disability QUOTE shall be construed in favor of broad coverage. Second, one recent case showed that Ers can actually win FMLA fraud cases every once in awhile. In that case, an employee requested intermittent leave for back pain which left her QUOTE completely incapacitated. A few weeks into the leave, however, lots of photos of the EE smokin and drinkin and generally whoopin it up at a Polish beer festival appeared all over Facebook. Her employer investigated and then fired her. She took ‘em to court but lost, with the court saying that the employer had a QUOTE honest belief that her behavior in the photos was inconsistent with her claims of total disability.” So if you honestly belief someone is faking FMLA you don’t have to put up with it. The third new thing in the FMLA world is a handy new guide …
  • Here’s the latest on your #1 reported problem area, the FMLA. On Jan 25 DOL issued new guidelines for employees who care for adult children. In short, the FMLA covers care of adult children incapable of self care because of a mental or physical disability regardless of when that disability arose. The guidelines remind employers that under the ADAAA, the term disability QUOTE shall be construed in favor of broad coverage. Second, one recent case showed that Ers can actually win FMLA fraud cases every once in awhile. In that case, an employee requested intermittent leave for back pain which left her QUOTE completely incapacitated. A few weeks into the leave, however, lots of photos of the EE smokin and drinkin and generally whoopin it up at a Polish beer festival appeared all over Facebook. Her employer investigated and then fired her. She took ‘em to court but lost, with the court saying that the employer had a QUOTE honest belief that her behavior in the photos was inconsistent with her claims of total disability.” So if you honestly belief someone is faking FMLA you don’t have to put up with it. The third new thing in the FMLA world is a handy new guide …
  • So that’s it for medical leave law. And now: How to avoid getting sucked into the wage & hour abyss …
  • What’s new? Now is not the time to misclassify employees. The DOL is targeting all misclassifications including independent contractors under its Misclassification Initiative. You can see the big #s there: 11,400 actions and an 80% increase in monetary recoveries. The DOL is also proposing a nationwide employee survey to see just how much they really know about wage and hour laws. The DOL also recently added independent contractor violations to its “misclassification amnesty” program. Few employers are taking advantage of it since not all branches of gov’t are participating. In late December, the DOL announced its intent to narrow the exemption for domestic service to increase the number of those who are eligible for overtime. And last, the DOL plans to use the “Do You Know the Law” survey to justify its proposed “right to know” rule. That rule would require employers to notify employees of their rights under the FLSA, to do classification analyses of current employees and to provide employees with a copy of the analysis. That particular proposed rule has been postponed several times but is expected to start gathering steam later this year perhaps. [45:00]
  • What’s new? Now is not the time to misclassify employees. The DOL is targeting all misclassifications including independent contractors under its Misclassification Initiative. You can see the big #s there: 11,400 actions and an 80% increase in monetary recoveries. The DOL is also proposing a nationwide employee survey to see just how much they really know about wage and hour laws. The DOL also recently added independent contractor violations to its “misclassification amnesty” program. Few employers are taking advantage of it since not all branches of gov’t are participating. In late December, the DOL announced its intent to narrow the exemption for domestic service to increase the number of those who are eligible for overtime. And last, the DOL plans to use the “Do You Know the Law” survey to justify its proposed “right to know” rule. That rule would require employers to notify employees of their rights under the FLSA, to do classification analyses of current employees and to provide employees with a copy of the analysis. That particular proposed rule has been postponed several times but is expected to start gathering steam later this year perhaps. [45:00]
  • What’s new? Now is not the time to misclassify employees. The DOL is targeting all misclassifications including independent contractors under its Misclassification Initiative. You can see the big #s there: 11,400 actions and an 80% increase in monetary recoveries. The DOL is also proposing a nationwide employee survey to see just how much they really know about wage and hour laws. The DOL also recently added independent contractor violations to its “misclassification amnesty” program. Few employers are taking advantage of it since not all branches of gov’t are participating. In late December, the DOL announced its intent to narrow the exemption for domestic service to increase the number of those who are eligible for overtime. And last, the DOL plans to use the “Do You Know the Law” survey to justify its proposed “right to know” rule. That rule would require employers to notify employees of their rights under the FLSA, to do classification analyses of current employees and to provide employees with a copy of the analysis. That particular proposed rule has been postponed several times but is expected to start gathering steam later this year perhaps. [45:00]
  • 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.
  • 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!

Transcript

  • 1. Everything You Ever Wanted to Know About (But Didn’t Want to Pay a Lawyer to Ask) Mark Toth Chief Legal Officer – North AmericaFebruary 25, 2013
  • 2. Stay Out Of Jail in 2013SMARTEST HR STAY OUT 187% SING-A- PERSON WHAT‟S OF JAIL FREE LONG IN THE NEW? TO DO TOOL SONGUNIVERSE LIST BOX CONTEST
  • 3. Official DisclaimerThe presentation you are about to witness is intendedas 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 thispresentation could result in long-lasting side-effects, including litigation headaches, recurring nightmaresand/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.
  • 4. Sign up for my free alerts: at your tables Follow me on Twitter: @manpowerblawg Visit my Blawg: marktoth.com
  • 5. 187% Free Stuff
  • 6. Open 24 / 7 / 365.25 World’s Most Fabulous Employment Law LIBRARY
  • 7. Smartest HR Person in the Universe CONTEST
  • 8. The BIG picture
  • 9. What percentage of employees would fire their bosses right now? A. 36% B. 56% C. 76% D. 96%ManpowerGroup | February 25, 2013 9
  • 10. What percentage of employees would fire their bosses right now? A. 36% B. 56% C. 76% D. 96% Source: Monster.comManpowerGroup | February 25, 2013 10
  • 11. What percentage of your employees are thinking about leaving your company right now? A. 26% B. 46% C. 66% D. 86%ManpowerGroup | February 25, 2013 11
  • 12. What percentage of your employees are thinking about leaving your company right now? A. 26% B. 46% C. 66% D. 86% Source: Right ManagementManpowerGroup | February 25, 2013 12
  • 13. 1/25 bosses = psycho 80% 32% sedentary workweek increase $300B 33% 62% chronically workload overworked increase Sources: Dr. Paul Babiak, Pennington Biomedical Research Center, Kronos, Families & Work Institute, Harris InteractiveManpowerGroup | February 25, 2013 13
  • 14. The Bottom Line: Employees are really very extremely incredibly disgruntled.ManpowerGroup | February 25, 2013 14
  • 15. The Goal: Get your employees gruntled.ManpowerGroup | February 25, 2013 15
  • 16. If you had to boil all of employment law down to one word, what would it be?ManpowerGroup | February 25, 2013 16
  • 17. ManpowerGroup | February 25, 2013 17
  • 18. How to GET SUED big now
  • 19. True or False? Employers win more employment lawsuits than they lose. A. True B. FalseManpowerGroup | February 25, 2013 19
  • 20. True or False? Employers win more employment lawsuits than they lose. A. True B. False Source: Jury Verdict ResearchManpowerGroup | February 25, 2013 20
  • 21. 49% Source: Jury Verdict ResearchManpowerGroup | February 25, 2013 21
  • 22. What Are Your Odds? ALL AGE DISABILITY RACE SEX 49% 60% 56% 50% 36% Source: Jury Verdict ResearchManpowerGroup | February 25, 2013 22
  • 23. What‟s the #1 most common discrimination claim? A. Age B. Disability C. Race D. Retaliation E. SexManpowerGroup | February 25, 2013 23
  • 24. What‟s the #1 most common discrimination claim? A. Age B. Disability C. Race D. Retaliation E. SexManpowerGroup | February 25, 2013 24
  • 25. Hiring Vulnerable Pregnancy Workers EEOCHarassment ADA Access to Legal LGBT System
  • 26. DEALor no?
  • 27. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) How Much Will YOU Pay? 1% 32% 28% 39%$100K-$1M $1M+$1M+ $0-$50K $51-$100K Pattern +/or Big pattern +/or $100K-$1M Big pattern 1 plaintiff + 1 plaintiff + Pattern really horrible reeeeeeeally $51-$100K +/or +/or reallllllly no horrible facts horrible facts really horrible facts horrible facts 1 plaintiff + facts horrible facts horrible facts Sources: EEOC, Jury Verdict Research© 2011 ManpowerGroup 27
  • 28. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)Get Plaintiffs‟ Lawyers to LOVE You Lie Discipline inconsistently Investigate + document Ignore your poorly policies Ignore the law© 2011 ManpowerGroup 28
  • 29. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) Is the NLRB Dead?© 2011 ManpowerGroup 29
  • 30. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) True or False? The NLRB only has jurisdiction over unionized companies. A. True B. False© 2011 ManpowerGroup 30
  • 31. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) True or False? The NLRB only has jurisdiction over unionized companies. A. True B. False© 2011 ManpowerGroup 31
  • 32. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) BREAKING NEWS BREAKING NEWS NLRB Appointments NLRB APPOINTMENTS Unconstitutional UNCONSTITUTIONAL© 2011 ManpowerGroup 32
  • 33. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) 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© 2011 ManpowerGroup 33
  • 34. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) 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© 2011 ManpowerGroup 34
  • 35. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) 11.2% Source: Bureau of Labor Statistics© 2011 ManpowerGroup 35
  • 36. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) On Hold “Quickie” Union rights election Everything? posting rules© 2011 ManpowerGroup 36
  • 37. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) Get SOCIAL MEDIA now© 2011 ManpowerGroup 37
  • 38. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) 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.© 2011 ManpowerGroup 38
  • 39. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) True or False? Absolutely False.© 2011 ManpowerGroup 39
  • 40. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) Same Old Test job- job- related related job- related© 2011 ManpowerGroup 40
  • 41. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) 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© 2011 ManpowerGroup Nielsen, DLA Piper 41
  • 42. How do those about to enter theworkforce rank the following in orderof importance?A. Social Activities, Romance, Music, InternetB. Internet, Social Activities, Romance, MusicC. Music, Social Activities, Internet, RomanceD. Romance, Internet, Music, Social Activities
  • 43. How do those about to enter theworkforce rank the following in orderof importance?A. Social Activities, Romance, Music, InternetB. Internet, Social Activities, Romance, MusicC. Music, Social Activities, Internet, RomanceD. Romance, Internet, Music, Social ActivitiesSource: Cisco
  • 44. 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
  • 45. Which of the following is NOT an actualemployee 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.”
  • 46. Which of the following is NOT an actualemployee 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.”
  • 47. Social Media Starter Kit
  • 48. ADA, FMLA, HIPAA, OSHA … YIKES!
  • 49. Yikes No More
  • 50. What‟s the #1 most headache-inducing law for employers right now?
  • 51. FMLA
  • 52. MOST CREATIVE EXCUSES FOR MISSING WORK “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.” 2012‟s “I was suffering from a broken heart.” Source: CareerBuilderManpowerGroup | February 25, 2013 52
  • 53. New FMLA Guidelines for Adult Children Care Facebook Festival Frolic = FMLA Fraud Firing New DOL FMLA guideManpowerGroup | February 25, 2013 53
  • 54. FMLA in Plain EnglishManpowerGroup | February 25, 2013 54
  • 55. New ADA Workforce Recruitment Program ADA-inclusive Workplace Tutorial Domestic Violence Q&A Teachers with pedophobia?ManpowerGroup | February 25, 2013 55
  • 56. ADA How NOT To Have an Put dumb Make snap Don‟t Don‟t inflexible stuff in judgments interact accommodateleave policy writingManpowerGroup | February 25, 2013 56
  • 57. Discuss Discuss Discuss DiscussManpowerGroup | February 25, 2013 57
  • 58. New OSHA February 1: OSHA 300A Coming soon: 1,260 Inspections Additional infectious disease regs? Injury & Illness Prevention Program (I2P2) Stricter reporting obligationsManpowerGroup | February 25, 2013 58
  • 59. New HIPAA New final omnibus rule September 23: New privacy notices Amend business associate agreements Not all violations = security breachesManpowerGroup | February 25, 2013 59
  • 60. 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 talkinggibberish, 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 | February 25, 2013 60
  • 61. 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 talkinggibberish, 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 | February 25, 2013 61
  • 62. An employee comes into your office at 4:59 on a Friday and informs you that he suffers from multiplemedical 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 | February 25, 2013 62
  • 63. JOB ACCOMMODATION NETWORK jan.wvu.edu 800-526-7234ManpowerGroup | February 25, 2013 63
  • 64. Avoid the WAGE & HOUR abyssManpowerGroup | February 25, 2013 64
  • 65. What celebrity was recently sued for a plethora of wage and hour violations?ManpowerGroup | February 25, 2013 65
  • 66. LADY GAGAManpowerGroup | February 25, 2013 66
  • 67. FLSA Hot Spots OT Classifications Pre-shift “Work” Independent contractor classifications Work @ home California, California, CaliforniaManpowerGroup | February 25, 2013 67
  • 68. Stay out of JAIL
  • 69. Prison in 2013 PlanDon„t open the Tool BoxDon‟t visit the EL LibraryDon‟t sign up for Mark‟s alertsDon‟t follow Mark on TwitterDon‟t visit the Blawg every 0.3 seconds
  • 70. Prison-free in 2013 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
  • 71. Employment Law SING-A-LONGManpowerGroup | Halloween 2012
  • 72. 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 | Halloween 2012
  • 73. Don‟t put things off til tomorrow Yes investigate right away Don‟ procrastinate And don‟t retaliate Or the more you will have to payManpowerGroup | Halloween 2012
  • 74. Remember this song And you‟ll never go wrongYes we wish you the best on your journeys You‟ll stay out of court And you won‟t have to pay no attorneysManpowerGroup | Halloween 2012
  • 75. Technology may give you headachesAnd the feds they may knock on your door But if you prepare Be consistent and fair They won‟t ever bug you no moreManpowerGroup | Halloween 2012
  • 76. 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
  • 77. So, remember this song And you‟ll never go wrongYes we wish you the best on your journeys You‟ll stay out of court And you won‟t have to pay no attorneysManpowerGroup | Halloween 2012
  • 78. February 25, 2013
  • 79. February 25, 2013