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The Employment Law Quiz Show
 

The Employment Law Quiz Show

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  • Hello everyone! Welcome to the Employment Law Quiz Show where today our participants will not only learn everything that’s new in the wonderful world of workplace law but will also compete for valuable prizes. Here’s our agenda …
  • Research shows that up to 85% of you are basically ignoring what I’m saying right now. To help ensure that you don’t doze off, we’re going to use a variety of ways to help keep you awake for the next 58 minutes. We’ll have lots of deep, thought-provoking ?s to hopefully get you thinking. We’ll have some shout-outs where you simply yell out the best answer wherever you are. We’ll also have several questions designed to find out what you’re thinking, feeling and perceiving thru a variety of interactive polls. Text-o-ramas: We’ll have several ?s sprinkled throughout today where the first person to text us the correct answer will win a prize. We’ll also give you our latest Stay out of Jail To Do List where we boil down everything you really need to know to a single page. But the competition doesn’t end there. Following the webinar, we’ll post a quiz on my Blawg – marktoth.com – where the winner will officially be crowned the Smartest Person in our Audience. But that’s not all… If you’d like to go into even greater depth on anything we cover today, we’ll also post on my Blawg the complete PPT from this presentation as well as our FREE Employment Law Tool Box containing approximately $687.4 billion dollars’ worth of tools and tips. The Tool Box will include everything from a sample social media policy to an investigation checklist to an employment law glossary to cheat sheets on every major employment law and lots of other useful stuff.
  • Bc I’m a lawyer, I have to start w/some legalese. Here’s our official disclaimer … The presentation you are about to witness should not be relied upon or construed as legal advice. For specific information on recent legal developments, particular factual situations or the effect of a particular law, the opinion of qualified legal counsel should be sought. Failure to stay awake for the remainder of this presentation could result in potentially long-lasting side-effects, including litigation headaches, recurring nightmares, intense nausea, emotional distress and/or severe gastrointestinal discomfort. Please consult with your own Legal and/or HR departments before making any major changes. You have been warned. In other words, you can’t sue me, MPG or anyone else based on anything you hear today.
  • Without further ado, it’s time for THE EMPLOYMENT LAW QUIZ SHOW.
  • Employment law lessons are truly everywhere. So, here’s our first question. What employment law issue dominated the headlines this week practically more than any other story on the planet? Just shout out the answer wherever you are … The answer, of course, is …
  • There will be FOOTBALL this year. The big story this week was that the NFL players and owners finally settled their labor disputes and decided to have a football season after all. What lessons can we draw from the whole lockout mess? Here’s all you really need to know . . .
  • Here are the key lessons … Owners will make lots and lots (and lots) of money. Most players will make lots and lots (and lots) of money. Who won’t? New employees (aka rookies). They had no union vote, so they’ll take a big hit in the wallet. Another lesson: Sometimes lawyers should be left behind. The owners and players locked the lawyers out of key parts of the negotiation when talks began to stall. And – guess what – they actually got something done. Never panic during negotiations. 99.9999% of all disputes settle. (That’s only a slight exaggeration: it’s actually only 99.9998%). Never panic – don’t get greedy, try to put yourself in the other sides’ shoes and keep working toward a win-win solution. And, most importantly as you can see from the last point there: The one and only potential roadblock to the Green Bay Packers repeating as Super Bowl Champions has now been removed. So lots of valuable lessons just this week.
  • Now it’s time for lawsuits lawsuits lawsuits. Let’s look at who’s suing whom for what and how much. Great reality check to see how afraid you should be and why.
  • POLL: Let’s see what our audience thinks about this one … updated with the very latest Jury Verdict Research. What are an employer’s odds of winning at trial? Is the correct answer: It is unlawful for employers to win 22% 42% 62% 82% Let’s see what you think. If you’re in a room with more than one person, debate among yourselves and then submit the most popular answer. Reminder: Please close the slide in the upper right after voting by clicking on the little “X.” Employer’s odds of winning at trial. It’s unlawful, 22%, 42%, 62% or 82%? Which is correct?
  • Survey says: [Audience answer] That’s why the dice are there on your screen. You’re truly taking a big gamble if you ever go to trial, as we’ll see in a few moments.
  • This next ? Is another shout-out. Just shout out whatever you think is the correct answer… What hit record highs last year? A. EEOC complaints B. EEOC recoveries C. EEOC class actions D. EEOC mediations E. EEOC love notes from employers F. All of the above except “E”
  • All of the above. More reasons to stay awake today. More and more and more litigation all over the nation. In fact, last year had the most complaints in EEOC’s 45-yr history. Nearly 100,000 as you can see there on your screen.
  • POLL: Here’s our next question for your input. Want to see what you think. What’s the absolute #1 most common discrimination claim filed with the EEOC today? Age, national origin, race, retaliation or sex? Lock in your votes now. Again, what’s the #1 most common discrimination claim? Age, national origin, race, retaliation or sex? Let’s see what you think . . . [Review results]
  • RETALIATION is the new #1 discrimination claim for the first time ever. Overtook race, which had been #1 for years. Check out the Employment Law Tool Box after the webinar for resources on how courts define retaliation and what you can do to avoid adding to the 36,258 number you see there. So retaliation is big and getting bigger.
  • Here’s our next shout-out. Which of the following is most likely to result in a humongous class action against YOUR company? Is it: I-9 violations OSHA violations FMLA violations Wage & hour violations Doing business in California What do you think?
  • Here’s the correct answer: Both D and E. Plaintiffs’ attorneys LOVE wage & hour cases. We’ll talk in a bit about what you can do to avoid being the next target. As for E, plaintiffs’ love love love wage and hour cases even more in CA. In fact, it’s its own industry out there. if you’re currently doing business in CA my advice is: move out.
  • Here’s our first Text-o-rama. Winner will get a $25 gift certificate good for any of the fine merchants on giftcertificates.com. The person who texts us at the number there on your screen (414/899-0126 … that’s 414/899-0126) with the number that’s closest to the correct answer without going over will win. Just text your first name and your answer. Your first name and your answer. Here’s the question: According to the very latest data, what’s the average employment discrimination jury verdict? What’s the average employment discrimination jury verdict? Again, closest without going over will win. Texting lines for this question will be open for 3 minutes. In the event of a tie, first person to send in a particular # will win. What’s the average employment discrimination jury verdict?
  • OK, now we’re moving on to our next category: THE SUPREMES.
  • What has the U.S. Supreme Court been up to? Which of these is NOT – NOT -- a recent ruling by the Supremes? Shout out the right answer. A. Company-wide class actions are dead without evidence of a company-wide policy/practice that actually damaged class B. Employers are liable for the discriminatory motives of managers who weren’t even involved in an employment decision C. 3 rd parties and verbal internal complaints are protected from retaliation Federal Arbitration Act preempts laws that limit class action waivers by employees None of the above What do you think, shout it out. Which is NOT a ruling by the Supremes?
  • Correct answer is “E.” ALL of these are recent Supreme Court rulings affecting YOUR workplace. If you want more info on any of ‘em, just visit the Blawg and either click on the Supreme Court category in our Library or search for any term that you’d like to know more about.
  • OK, now it’s time to reveal the answer to our first Text-o-rama. What’s the average employment discrimination jury verdict? The answer …
  • 317 thousand and 32 dollars. That’s the AVERAGE verdict. Up a whopping 46% from last year’s $216,575. Couple that with the 42% chance of winning you have, you now you have even more reasons to stay awake for the remainder of this presentation. [And the winner of our first TOR and a $25 gift certificate is ________. Congratulations!]
  • POLL: OK, so now it’s time for the ManpowerGroup Quarterly Litigation Index – like to see what YOU’RE seeing. Here’s the question we ask each quarter: Are YOU seeing an increase in employment law claims? Your choices are Yes, substantial increase, Yes, modest increase, No change, No, modest decrease and No, substantial decrease. OK, so key in your answers. Substantial increase, modest increase, no change, modest decrease or substantial decrease. And if you fall in that last category, you should hang up right now, fly to Milwaukee and come lead the rest of this webinar. And here are our results. __ see an increase, while only __ see decrease. So ___ times more of you are seeing an increase versus a decrease. Yikes. Let’s compare that to last quarter’s results . . . Last Q: Yes, substantial increase: 9% Yes, modest increase: 30% No change: 58% No, modest decrease: 2% No, substantial decrease: 1%
  • It’s easy to rattle off all that scary stuff but what does it all mean ? We’ll try to make sense of it all right now. Here’s our next category: How to Get Sued & Lose BIG.
  • We continually review virtually every lawsuit filed on the planet to come up w/this handy 1-page list which we update regularly. If you want to get sued, here’s what you should do today . . . DON’T address wage & hour issues. More on that in a minute. Second, believe that discrimination & sex harassment are dead. Still waaaaaay too many disturbing cases featuring things that should have been stamped out long ago: nooses hanging in the workplace, racial epithets and other horrible horrible things. Plus loads of big sex harassment cases this year. A $1M case, $2M case, $8M, $10.6M, all the way up to $95M harassment case. Key themes? Some employers just don’t take harassment seriously enough, don’t address complaints and don’t act to prevent retaliation. Even judges are getting in on the act. A federal jury awarded 3 female employees of a judge $3.2M for alleged kissing, touching and explicit photos. Please take discrimination and harassment seriously. Another thing to do if you want to pay big dollars? Don’t investigate thoroughly and promptly. Plaintiffs’ attorneys love it when you don’t – especially when the allegations involve an executive or an alleged pattern and practice of discrimination. Everything you could ever want to know about how to conduct a bullet-proof investigation will be included for your reading pleasure in the Employment Law Tool Box. Don’t accommodate disabilities. The EEOC has made it clear that it will come after employers who have inflexible one-size-fits all medical leaves that don’t allow for individual reasonable accommodation analyses. In fact, there was a $20M settlement just a few weeks ago in this area. More on that in a moment. Surprising number of pregnancy discrimination cases. Way too many managers treat Ees differently the moment they find out they’re pregnant with everything from not hiring them to reducing workload, etc. If you want to get sued, keep doing that. As for so-called “reverse” discn., there are more than 10 Million Reasons to Remember Ricci : For those of you who have forgotten, the Ricci case was last year’s Supreme Court “reverse” discrimination case involving white firefighters who were treated differently from minority firefighters. Not surprisingly, it’s been followed by several big dollar suits this year, including one case for $5.8M and another for $2.6M. There’s really no such thing as reverse discrimination. Discrimination is discrimination is discrimination. Treating candidates or employees differently based on the color of their skin for those subject to Title VII is unlawful. Perfectly fine to recruit from a wide variety of diverse sources but in the end must choose best candidate without regard to any protected class characteristics. Also, as one employer learned this year, don’t just throw non-minority employees into a layoff pool just to make your statistics look better. Discrimination is discrimination. We’ve already talked about retaliation. If want to join the ranks of those facing the most popular discrimination claim, go ahead and fire someone who recently complained. Last, even the EEOC is getting sued big. Courts ordered EEOC to pay fees and costs for pursuing “unreasonable” litigation, including one case for $4.5M. So, basically, everyone’s suing everyone for everything. If you’d like to spend lots of time in court, use this list as a handy “how to” guide.
  • OK let’s see how well you apply all that stuff we just covered. Time to play Deal or Not. The winner will get a fabulous Deal or No Deal board game plus a $30 gift certificate delivered to your doorstep. Here’s the ?: Deal or Not? The 7 th person to text their name plus the correct answer will be our winner. You must wait until I finish the description and ask the ? or you will be disqualified. Again, the # is 414/899-0126 and is there on your screen. The following facts are based on real-life events. The names have been changed to protect the innocent (and guilty). Deal or not? You’re the new head of HR for a medium-sized company. 3 women allege they were sexually harassed. They contend they were subjected to a variety of inappropriate actions, including a manager exposing himself, inappropriately touching them and forcing them to participate in a – quote – “smooching club” to get sales leads. It turns out that you don’t have an anti-harassment policy. You also don’t have any anti-harassment training. You also don’t have any anti-harassment reporting procedures. Then you discover that the alleged harassing manager has fired 2 of the women who brought the complaints. You then have depositions in the case. The managers testify that they don’t think sexual harassment procedures are necessary. YOU also get deposed and under pressure freeze up and aren’t able to give the legal definition of harassment under the law. The plaintiffs’ attorney comes to you after the depositions and offers to settle the cases for one million dollars -- take it or leave it. No negotiating. So, here’s the question and you may now text your first name and the answer: Deal or not? Do you agree to settle for a million dollars or not? Deal or not. We’ll let some folks weigh in and then we’ll come back to this in a moment.
  • Ever wondered how much a case is actually worth? Here’s a handy settlement guide based on hundreds of EEOC lawsuits over the years to help guide your decisions. If you have a case with only 1 complainant and no facts that make you want to vomit, probably pay in the range of $0-50,000. If you have 1 complainant and some semi-horrible facts, you’ll probably pay in the $51-100,000 range. You get into six figures if you have a pattern and practice case and up in the high six figures if you have some horrible facts. If you want to pay seven figures, have a pattern and practice and reaaaallllllly horrible facts. For the record, horrible facts include any of the following: having no policy, no training, ignoring complaints, egregious examples of discn or harassment such as nooses or physical assault, etc., etc. So, use this as a guide for settlements.
  • OK. Here’s the answer to the Deal or Not question. The plaintiffs’ attorney offered a take it or leave it settlement of one million dollars. Deal or Not? The correct answer? DEAL. The facts I recited were based on an actual real-life case in which the company lost a $1.5 million dollar jury verdict. But that’s not all, they also had to pay lots and lots of attorneys’ fees not to mention endure lots and lots of bad PR. So, if you said DEAL, you just saved your company more than $600,000 . Congratulations. [And our winner of the Deal or No Deal game plus a $35 gift certificate is . . .]
  • OK, now we’re moving on to a topic where the law literally changes every 0.2 nanoseconds: TECHNOLOGY, TECHNOLOGY, TECHNOLOGY.
  • And here’s our next Text-o-rama. According to a recent survey, the majority of those between 16 and 22 years old would rather lose their _____ than their Facebook. Let’s go with the 3 rd person to text the correct answer to the TOR # there on your screen will get a $25 iTunes gift certificate. Again, the majority of those about to enter the workforce would rather lose their ______ than their Facebook.
  • While we wait for your answers to roll in, here are the latest techno stats from around the wonderful world of work. Update ‘em constantly. 90% of your employees are surfing the ‘Net right now at work. 80% of employers use social media to screen candidates. More on that in a moment. 77% of your employees now use Facebook @ work. 70% of us text while driving (which is not very bright because it makes us 23 times more likely to crash) 47% of your employees spend more than 30 minutes on-line @ work This just came out last week: 45% of companies still have no SM policy (again, if you want a free one, visit the Blawg and get it from the Tool Box) If you think your security settings are foolproof, you’re fooling yourself: 1 in four of your employees changes ‘em so they can do more SN’g A shrinking minority -- 1 in four of you -- ban SM for non-business use More than 20% of employees say they would turn the world’s otherwise perfect job down if they weren’t allowed to use SM on the job
  • So, how serious are your employees about SN? Here’s the answer to our last TOR. The majority of those about to enter the workforce would rather lose their sense of smell – or NOSE – than their Facebook. Yikes – that’s pretty serious. [And the winner of a $25 iTunes gift card is _________. Congratulations!]
  • The YouTube Workplace. More and more and more plaintiffs are going to the EEOC or OSHA or NLRB or court with lots and lots of video and photos of you doing bad stuff taken from smart phones that you issued to them. In fact, it’s estimated that more than half of today’s plaintiffs have recorded evidence of some form. All this video and picture taking is also resulting in some terrible terrible PR. One of my personal favorites was the Burger King employee who video’d himself bathing in the restaurant kitchen sink along with lots of equipment used to make the customers’ food that evening. Was all over YouTube. Not very appetizing. What should you do about all this?
  • Some key areas to consider . . . Trade secrets, confidential info are particularly susceptible to being stolen via smart phone. Also can be used as a creative new harassment tool with all kinds of things popping up on YouTube and elsewhere that just shouldn’t be. What should you do to address those areas? Implement a policy and – just as importantly – enforce it consistently.
  • Valuable lessons you and your employees can learn from Anthony Weiner, Brett Favre and just about every other celebrity who has ever tweeted, texted and/or opened their mouths electronically. These lessons have been demonstrated over and over in Twitter’s barely-just-started 5-year history. Mr. Weiner and Mr. Favre have both been waaay overexposed already, so let’s talk a bit about a somewhat lesser known celebrity, Gilbert Gotfried. He was fired by his employer, AFLAC, from his duck-voice job – I’m sure you’ve all seen and heard the commercials. Why was he fired? For posting a not-all-that compassionate “joke” about the Tsunami that devastated Japan. Speaking of Mr. Gotfried, here’s an interesting observation from another not-all-that-appropriate comedian named Louis C.K. who cautions the use of Twitter: Quote: “ I mean, Gilbert Gotfried, he’s been saying a whole lot worse for years than he said on Twitter, and then when he said something on Twitter, he lost his job. He lost his livelihood! Twitter is like making a press statement. It’s very sober, and it’s not funny, and the [expletive deleted] just comes out very dry, and people get upset.” END QUOTE. Actually a pretty astute observation. Think before you tweet, click and/or hit send. Just might save your career. Train your managers to do the same. AND if you do tweet, text or e-mail something you shouldn’t, please please please don’t take the lie or deny route. Lots of employees – and employers -- have learned that very lesson in graphic fashion. A certain coach at a certain Big 10 university not named the University of WI lost a multi-million-dollar job when he decided to lie and deny for short-term gain but suffered instead long-term consequences. Please don’t let that happen to you. Almost all workplace sins are forgiveable but lying usually is not. (HALFWAY)
  • We’ve gotten LOTS of ?s on what to do about SM in the hiring process. Here are some answers. Again, Be Consistent Treat applicants equally Apply searches to ALL applicants or at least specified categories or departments Use at the same phase of the interview process to ensure consistency Designate Searchers who actually know what they’re doing Choose one employee, or a very small group or a neutral 3 rd party that’s trained in how to do this Please don’t use the hiring manager – they might discover all sorts of things you wish they hadn’t Limit the Scope of the search As always, the focus should be job-related, job-related, job-related. If it’s not, don’t do it. Of course, don’t search or consider any protected information And restrict searches to certain approved sites
  • Disclose – tell applicants if you’re going to use SM to screen on applications, etc. And document document document -- the consistent process, the legit biz reasons for not hiring and then retain those docs consistent with your retention policies Do that and you should be fine.
  • POLL: Time for our quarterly social media poll. Again, want to see what YOU are doing. Here’s the question: Do you currently use a social networking tool? Your choices are: Yes, No, or What’s social networking? Again, do you currently use a social networking tool? Yes, No, or What’s social networking. Let’s look at the responses . . . A bit lower than your Ees. According to Social Media Today, 82% of those 18-29 use at least one form of SN. Interesting, went [UP/DOWN] compared to last quarter’s 68 31 and 1. Might want to get a bit more connected to keep up with your employees.
  • POLL: That leads to our next question … What are you on? What social networking tool do you use most? Here are the current top 5 in alphabetical order, at least according to most recent surveys: Facebook, Foursquare, LinkedIn, Tumblr or Twitter. Which do YOU use most: Facebook, Foursquare, LinkedIn, Tumblr or Twitter? If you read Blawg the past few weeks, may have to soon add Google+ to this list. Could take over the world soon. The results? Facebook continues to be king, followed by LinkedIn. Really the only 2 legit #1 tools. All others are also-rans, altho Twitter is growing. Last quarter, it was Facebook 64, LinkedIn 34, Twitter 2, Tumblr .001 and Foursquare .0007.
  • Medical Medical Medical Far and away the #1 area of empt law headaches accg to our latest Quarterly Emp Law Thermometer. So, what’s new?
  • Here’s our next shout-out . . .
  • Would also have accepted rigid, no-fault, dumb. Last month, EEOC held hearings on rigid leave policies. 3 weeks ago, $20M settlement. Record EEOC disability disc settlement. Followed on heels of $3.2M award and similar suits in recent years. Bottom line: Any policy that imposes a maximum leave amount or other rigid rule w/o exceptions based on the interactive process and reasonable accommodation analysis under the ADA could lead to big $$$.
  • There on the screen are the very latest stressssss stats. 80% of medical expenses are now stress-related. 40% of us are sleep-deprived. 33% are chronically overworked. Workweeks are up almost a third and 25% of us regularly fall asleep on the job. Also, look at that last factoid there. Brand-new study found that the higher up you are in an organization, the more stressed out you’re likely to be. Based on a scientific study of alpha male baboons. For the record, we’re not equating bosses with baboons. Found that Type A take over the world types tend to have more cardiac, stress and other conditions because of all the politicking they’ve had to do to get to – and stay on – top. So, if you’re stressing out because you’re not at the top, don’t. All you’ll find there is more stress. [Apparently very little of this applies to all you fed Ees out there. Apparently feel much more secure than the rest of us. According to a new USA TODAY analysis, federal workers are more likely to die of natural causes than to lose their jobs. So literally employed for life if you want it. The fed govt only fired 0.55% of its workers last year. In fact, the 1,800-employee FCC and 1,200-employee FTC didn’t lay off or fire a single EE last year.]
  • The Bottom Line: $200-$300B lost each year due to stress-related absenteeism, burnout, decreased productivity, WC claims, turnover and insurance costs. The Lesson: Be nice to your employees (and your bosses).
  • Shout-out: What’s true about the relatively new ADAAA regulations? A. It’s easier to establish a covered “disability” B. Mitigating measures – like medication -- can’t be considered C. Episodic or remission conditions are covered D. Individualized assessments are required E. All of the above
  • The answer, as you probably guessed: All of the above. Easier than ever to prove disabilities. One illustrative case: Bridge worker came to Er and told ‘em that couldn’t work on high bridges bc suffered from acrophobia – fear of heights. Asked for reasonable accommodations. Er basically said how are we supposed to rsbly accommodate that? Refused. Ct refused to dismiss his claim. In short, disability is defined really very extremely very broadly. Also note that in some instances employers who offer public accommodations must allow not only seeing eye dogs but also – in ltd circumstances – miniature horses. Strange but true.
  • Our next TOR. 1 st person to text their first name and correct answer wins. A question we’ve asked to several thousand in our live presentations and almost no one ever gets it right. Let’s see if you do. An employee comes into your office at 4:59 on a Friday afternoon and informs you that he suffers from multiple 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?
  • While we’re reviewing the TOR results, here’s another shout-out . . . What work tool used every day by the vast majority of your employees was recently deemed unsafe and placed in the same “carcinogenic hazard” category as lead, engine exhaust and chloroform?
  • The answer? The maybe-not-so-smart-after-all phone. Might want to think about updating your policies and waivers to make sure you’re communicating and covered.
  • OK, here’s the answer to our last TOR: Your first call should NOT be to an outside lawyer or to the employee’s spouse or mother as some have suggested. The correct answer is the Job Accommodation Network or JAN. The phone # is there on your screen: 800-526-7234 or jan.wvu.edu. That’ll be in the PPT if you want to find it later. They are truly experts on tough accommodation issues and can help you reach the right result so everyone wins. Plus the EEOC loves it when you call ‘em. And it’s FREE.
  • Our next Shout-out. What did the Department of Labor just release that makes Steve Jobs happy but is freaking employers out?
  • The new DOL Timesheet app. There truly is an app for everything. Allows Ees to tracks hours worked, determine wages owed and even has a handy way to contact the DOL to report potential violations. More important than ever that you follow the law.
  • To help you do just that, here’s a handy ? based on our review of the very latest cases. Which of these items – what we call the Wage & Hour Big 10 -- should Ers pay? If get this, will reduce your chances of w&h class actions by a humongous percentage. What should you pay, generally speaking? 1. On-call time? 2. Commute time? 3. Wait time? 4. Bona fide meal periods of 30 minutes or more? 5. Travel outside work hours? 6. Travel during the course of the work day? 7. Changing into and out of uniform if required at work? 8. Donning and doffing safety gear? 9. Walking between changing and production areas? 10. Rest periods of 30 minutes or less? Which of the Big 10 should you pay? Discuss it there among yourselves or in your own head and shout it out.
  • Generally speaking, these are the answers most courts give. The top half: unpaid, bottom half: paid. Of course, given the wide variety among state laws, pls contact your favorite emp’t atty to confirm your state’s approach.
  • On to unions, unions, unions …
  • What’s the NLRB – the National Labor Relations Board -- been up to lately? Is the correct answer . . . A. Suing employers who fire employees for posting negative comments on Facebook B. Suing Boeing for opening factory in right-to-work state C. Approving giant inflatable protest rats D. Posting ads on Google encouraging unionization E. Proposing new union election rules F. All of the above and much much more
  • All of the above. ALL employers – even those that aren’t unionized – are subject to the NLRA. So need to be aware of what the NLRB’s doing. These are all things to be aware of in your workplace.
  • Now it’s time to wrap things up with a look at the BIG PICTURE.
  • July 30, 2008
  • According to our research, employers expect fewer than 5% of their workforce to leave … BUT
  • Also according to our research, a whopping 84% of employees say they’re thinking about leaving your company right now. Up from last year’s 60% -- and even that number shocked Ers. And to make it worse, Harvard Business Review research suggests that a company’s stars are the first to be exit. But don’t worry. We’re going to tell you how to fix all that right now. In one word . . .
  • One final TOR. First one to text answer to this final TOR wins our grand prize: $100 GC. If you had to boil all of HR and employment law down into one simple word, what would it be. Just take a few moments to let that soak in. One word and one word only. OK, here it is . . .
  • Want your employees to stop suing you? LOVE them. Want ‘em to stick around, work hard and make your company a better place to be? LOVE ‘em. Want to avoid a union? LOVE ‘em. Times are really, really, really, very, really tough out there. Treat everyone around you the way you’d like to be treated – with dignity and respect . . . and LOVE. It’s that simple.
  • Want more? Please visit the ManpowerGroup Employment Blawg at marktoth.com, where you can find this PPT, the EL Tool Box, sign up for our FREE EL Alerts AND take part in our post-webinar quiz to determine the official Smartest Person in our Audience.
  • One final statistic: research shows that hearing something is only a very small part of education. In order to really have something stick in your brain and maybe show up in your actions is to actually DO it. To help make that happen, we’ll conclude today’s festivities with our official Stay Out of Jail Pledge. Please rise (if you’re able) and repeat after me: I state your name Do hereby solemnly swear, vow and pledge That I will stay up-to-date on the law Update my policies, practices & training Proactively address any potentially systemic discrimination Promptly investigate ALL complaints Never ever ever retaliate And always always always Love love love love love love love my employees
  • Mark your calendars for my next webinar on October 26, entitled Answers to the World’s Scariest Employment Law Questions. Seemed like an appropriate title given that it’s a few days before Halloween. We’ll answer your toughest, gnarliest, most headache-inducing EL issues. The process is simple. When you’re asked for feedback on this webinar, after you’re done saying nice things about me feel free to include any ?s you’d like us to consider answering. We’ll answer as many as humanly possible on October 26.
  • Thank you so much for joining us. We REALLY appreciate it!
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • Have one rep from each team come up on stage. MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • Have one rep from each team come up on stage. MM SHRM Presentation September 2010
  • Have one rep from each team come up on stage. MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010
  • Have one rep from each team come up on stage. MM SHRM Presentation September 2010
  • OK, now here are the GFs. Fit neatly on one slide unlike all the things you can’t do. The key is . . .
  • Have one rep from each team come up on stage. MM SHRM Presentation September 2010
  • Have one rep from each team come up on stage. MM SHRM Presentation September 2010
  • Have one rep from each team come up on stage. MM SHRM Presentation September 2010
  • Every time see one of these little Blawg logos that means that you can find add’l free resources there.
  • MM SHRM Presentation September 2010
  • Here’s what courts have found. As you can see, second list a whole lot shorter than first. Courts have interpreted retaliation under the law very broadly.
  • Here’s what courts have found. As you can see, second list a whole lot shorter than first. Courts have interpreted retaliation under the law very broadly.
  • MM SHRM Presentation September 2010
  • MM SHRM Presentation September 2010

The Employment Law Quiz Show The Employment Law Quiz Show Presentation Transcript

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  • Today’s Format
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  • THE EMPLOYMENT LAW QUIZ SHOW
      • Employment Law
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      • lawsuits lawsuits lawsuits
    TEXT-O-RAMA (414) 899-0126
      • Employment Law
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      • lawsuits lawsuits lawsuits
    TEXT-O-RAMA (414) 899-0126
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      • Employment Law
      • QUIZ SHOW
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      • lawsuits lawsuits lawsuits
    TEXT-O-RAMA (414) 899-0126
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      • lawsuits lawsuits lawsuits
    TEXT-O-RAMA (414) 899-0126
      • Employment Law
      • QUIZ SHOW
      • TEST-
  • (Sources: Consumer Reports, Harris Interactive, ComputerWorld.com, Society of Corporate Compliance & Ethics, Microsoft; Virginia Tech Driving Institute, McCann WorldGroup; Social Media Today; harmon.ie; Proskauer International Labor & Employment Group)
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      • Employment Law
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  • (Sources: WorkForce Software, Harris Interactive, Workplace Power Outage Survey, Sage Software Survey, Urban Mobility Report, Business Week, Families and Work Institute, Centers for Disease Control and Prevention, The New York Times; The Journal of Science)
  • (Source: National Safety Council)
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  • TEXT-O-RAMA (414) 899-0126
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      • Employment Law
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      • Employment Law
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      • Employment Law
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  • 80% of employers expect fewer than 5% of their employees to leave voluntarily (Source: ManpowerGroup)
  • (Source: ManpowerGroup) Toledo HR Association 84% of employees intend to pursue new job opportunities as the economy improves
  • TEXT-O-RAMA (414) 899-0126
  • LOVE
  • STAY OUT OF JAIL TO DO LIST
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  • marktoth.com
  • STAY OUT OF JAIL PLEDGE
  • Join me on October 26 for: ANSWERS TO THE WORLD’S SCARIEST EMPLOYMENT LAW QUESTIONS
  • THANK YOU
      • Employment Law TOOL BOX
  • Alphabet Soup Glossary AAA = American Arbitration Association ADA = Americans with Disabilities Act ADEA = Age Discrimination in Employment Act ADR = Alternative Dispute Resolution BFOQ = Bona Fide Occupational Qualification CBA = Collective Bargaining Agreement CDHP = Consumer Driven Health Plan COBRA = Consolidated Omnibus Budget Reconciliation Act DHS = Department of Homeland Security DOL = Department of Labor DOT = Department of Transportation EAP = Employee Assistance Program EBSA = Employee Benefits Security Administration EEOC = Equal Employment Opportunity Commission EPA = Equal Pay Act EPPA = Employee Polygraph Protection Act ERISA = Employee Retirement Income Security Act ESOP = Employee Stock Ownership Plan FACTA = Fair & Accurate Credit Transactions Act FCRA = Fair Credit Reporting Act FLSA = Fair Labor Standards Act FMLA = Family and Medical Leave Act FSA = Flexible Spending Account FTC = Federal Trade Commission HHS = Department of Health & Human Services HIPAA = Health Insurance Portability & Accountability Act I-9 = Employment Eligibility & Verification Form ICE = Immigration & Customs Enforcement IRCA = Immigration Reform and Control Act JAN = Job Accommodation Network NLRA = National Labor Relations Act NLRB = National Labor Relations Board OFCCP = Office of Federal Contract Compliance Programs OSHA = Occupational Safety & Health Administration OWBPA = Older Workers Benefit Protection Act PDA = Pregnancy Discrimination Act SOX = Sarbanes-Oxley Act SSA = Social Security Administration ULP = Unfair Labor Practice USCIS = U.S. Citizenship & Immigration Services USERRA = Uniformed Services Employment & Reemployment Rights Act WARN = Worker Adjustment & Restraining Notification Act
      • Employment Law TOOL BOX
    • What Employers Are Covered?
    • Those with 15 or more employees
    • Effective Date?
    • 60 days after the publication of the regulations on March 25, 2011.
    • Easier to Establish a Covered “Disability”
    • The ADAAA overturned several Supreme Court decisions that Congress believed interpreted the ADA disability definition too narrowly. The ADAAA expressly states that the definition of “disability” and “regarded as” should be interpreted in favor of broad coverage.
    • Same “Disability” Definition but Broader Interpretation
    • The basic definition of a covered disability remains the same – a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. However, the EEOC stresses that the ADAAA and new regulations are designed to ensure broad interpretation of each of those key terms.
    • Rules of Construction
    • According to the EEOC, the regulations “implement Congress’ intent to set forth predictable, consistent and workable standards by adopting ‘rules of construction’ to use when determining if an individual is substantially limited in performing a major life activity.” Those rules include:
    • “ Substantially limits” construed broadly . “Substantially limits” requires a lower degree of functional limitation than the standard previously required by courts. A condition need not prevent or significantly restrict a major life activity to be considered “substantially limiting.”
    • Individualized assessment. The determination of whether a condition substantially limits a major life activity requires an individualized assessment, as was true prior to the ADAAA.
    • Don’t consider mitigating measures. With the exception of “ordinary eyeglasses or contact lenses, “without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.”
    • Do consider episodic or remission conditions. Such conditions are covered disabilities if they substantially limit a major life activity.
    • No extensive analysis required. The EEOC says that, “in keeping with Congress’ direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.”
    • Reasonable Accommodation
    • The regulations clarify that an individual must be covered under the ADA’s first prong (“actual disability”) or second prong (“record of disability”) to qualify for reasonable accommodation.
    • Conditions That “Virtually Always Constitute a Disability”
    • The regulations provide examples of conditions that “should easily be concluded to be disabilities,” including bipolar disorder, cancer, diabetes, epilepsy and HIV infection.
    • What Employers Are Covered?
    • Those with 15 or more employees
    • What Employees Are Eligible?
    • Persons:
      • with a physical or mental impairment that substantially limits one or more major life activities
      • with a record of such an impairment
    • regarded as having such an impairment
    • What’s Prohibited?
      • Discrimination against individuals with (or perceived to have) disabilities
    • Discrimination based on a person’s relationship to a disabled individual
    • Retaliation or harassment for exercising ADA rights
    • What Are “Major Life Activities”?
    • Breathing, seeing, hearing, sitting, standing, walking, learning, caring for oneself, performing manual tasks and working, among other things.
    • What’s Required?
      • Employers must provide a reasonable accommodation to a disabled individual upon request
    • What’s a “reasonable accommodation?”
        • A modification that allows the person to perform the job’s essential functions
    • An accommodation that would cause “undue hardship” for the employer need not be provided
    • ©2008 Manpower Inc. All rights reserved.
    • What About Drug and Alcohol Users?
    • The ADA protects:
        • Rehabilitated drug users
    • Drug users currently in rehabilitation
    • Alcoholics
    • The employer may still hold the above to the same performance standards as other employees.
    • The ADA does not protect current users of illegal drugs.
    • What are the Potential Penalties?
        • Back pay
    • Compensatory damages
    • Punitive damages
    • Attorneys’ fees
    • Top ADA Tips
      • Ensure that all facilities are accessible by disabled individuals
    • Job descriptions should clearly identify essential functions, including physical requirements
    • Pre-offer: No medical exams and no inquiries regarding disability, perceived disability, workers’ comp history, absence related to illness or prior drug/alcohol use
    • Post-offer: medical exams are acceptable only if required of similarly situated employees
    • Focus on results rather than means of accomplishing them
    • Engage in an interactive process to determine the needs of an employee who requests an accommodation
    • Contact the Job Accommodation Network (JAN) for accommodation assistance
    • What Employers are Covered?
    • Those with 20 or more employees
    • What’s Prohibited?
    • Discrimination against individuals age 40 and over in all aspects of employment for reasons based on age, unless based on a valid BFOQ
    • Hostile work environment base on age
    • Retaliation or harassment for exercising ADEA rights
    • What Employees are Covered?
    • Persons age 40 and older
    • What is a “BFOQ”?
    • A BFOQ is a bona fide occupational qualification. In general, an employer cannot demonstrate that age is a BFOQ unless it can establish that all or almost all members over the age it selects cannot safely perform the essential functions of the job.
      • Note: A BFOQ is ordinarily difficult to prove unless the employee is working in a position that directly affects public safety
    • What’s not Prohibited?
    • An employer may still take adverse action against an employee who is protected by the ADEA for a non-discriminatory reason unrelated to age
    • How to Obtain a Waiver of ADEA Rights?
    • Obtain a written release executed by the employee that specifically refers to the ADEA
      • Provide 21 days for the employee to consider the waiver and advise the employee to consult an attorney
    • Provide 7 days for employee to revoke the waiver after signing
    • Note: In RIF situations, provide 45 days for the employee to consider the waiver and an attachment to the waiver that contains the following:
      • The selection criteria for the RIF and any applicable time limits
      • A list of job titles and ages of each person subject to the RIF and those employees who fall into the same organizational unit but were not subject to the RIF
    • What are the Potential Penalties?
      • Back pay
    • Reinstatement or front pay
    • Retroactive seniority
    • Compensatory damages
    • Punitive damages
    • Attorneys’ fees
    • Top ADEA Tips
      • Do not ask for an applicant’s age at any point during the application process
    • Prohibit all age-related comments from the workplace pursuant to an effective anti-harassment policy
    • Base any adverse employment actions on factors other than age (or other protected characteristics)
    • Apply performance standards, policies and procedures, and access to benefits uniformly without regard to age
    • Document poor performance and disciplinary measures taken against employees
    • What Health Plans are Covered?
    • Those for employers that employ 20 or more employees
    • What’s Does COBRA Provide to Employees?
      • Continued health care coverage to employees, former employees and/or qualified beneficiaries after the loss of previous coverage as a result of certain “qualifying events”
    • Coverage continues at the same level provided before the qualifying event
    • What Are Examples of “Qualifying Events”?
      • Termination
    • Reduction of hours
    • Participant becomes disabled
    • Death or divorce
    • Dependent child loses dependent status
    • How Long Does Coverage Generally Continue?
      • 18 months in cases involving termination and/or a reduction in hours
    • 29 months in certain cases involving disability
    • 36 months in cases involving the death of a covered employee or divorce
    • What Notice Requirements Are There?
      • General notice describing COBRA rights must be provided to participants within 90 days after participation in a health care plan begins
    • Employers generally must provide plan administrators with notice within 30 days of the occurrence of a qualifying event
    • Plan administrator must provide participants with an election notice of COBRA rights within 14 days of a qualifying event (44 days if the plan administrator is also the employer)
    • How Long Does a Participant Have to Elect Coverage?
    • 60 days from the date of the qualifying event or the date the election notice is provided, whichever is later
    • Can the Plan Require the Participant to Cover the Cost of Premiums?
    • Yes, including any portion of the premium generally by the employer on behalf of active employees
    • When Can Coverage Be Cut Off?
      • A participant fails to pay required premiums
    • The employer discontinues the plan
    • Under certain circumstances, where the participant obtains subsequent coverage
    • What are the Potential Penalties for failing to comply?
      • Monetary penalties
    • Top COBRA Tips
      • Ensure that all notices go out to employees and participants within the time required
    • Notify all participants about any changes in health benefits
    • What Employers Are Covered?
    • Those with 2 or more employees
    • What’s Prohibited?
    • The Equal Pay Act (EPA) prohibits discrimination between men and women who work in substantially equal positions with respect to pay unless based on factors other than gender
    • What Is a “Substantially Equal Position”?
    • A position that requires equal skill, effort and responsibility and is performed under similar working conditions
    • When Can an Employer Pay Employees Differently?
      • Pursuant to a seniority-based or merit-based pay system
    • Pursuant to a system that pays wages based on quantity or quality produced
    • Pursuant to other factors not based on gender, including differences in the amount paid by shift, differences in employee qualifications, etc.
    • What are Some Examples of Potentially Discriminatory Reasons for Pay Differentials?
      • Overhead costs to employer
    • Industry practice
    • Applicant’s prior salary
    • What’s Included in an Employee’s “Pay”?
    • Wages, employment benefits and work-related expenses
    • What Are the Potential Penalties?
      • Back pay
    • Reinstatement or promotion
    • Front pay
    • Monetary penalties
    • Injunctive relief
    • Imprisonment
    • Attorneys’ fees
    • Top EPA Tips
      • Don’t rely solely on different job titles to justify differences in pay
    • Maintain current and accurate job descriptions
    • Apply wage payment structures uniformly by gender
    • An employer cannot cure an existing wage differential by reducing the pay of any employee
    • What Employers Are Covered?
    • Those that offer “employee benefit plans” to their employees
    • What’s an “Employee Benefit Plan”?
      • Employee Welfare Benefit Plan : a plan or fund through which an employer or employee organization provides participants with health care coverage
    • Employee Pension Benefit Plan : a plan or fund through which an employer or employee organization provides participants with retirement or deferred income
    • What’s Required?
    • Certain minimum standards for both types of plans regarding employee and beneficiary participation, funding, administration, benefit accrual, disclosure, survivor benefits and plan termination
    • Who’s Eligible to Participate in Pension Plans?
    • In general, employers must allow every employee who is at least 21 years old and has worked for them for at least 1,000 hours over the last 12 months to participate
    • What Kinds of Pension Plans Are There?
      • Defined benefit plans : promises a specific monthly benefit upon retirement (or retirement age)
    • Defined contribution : the employer and/or employee contributes to the plan during employment and the employee receives the balance upon retirement (or retirement age)
    • What Are the Employer’s Notification Requirements?
      • Provide a Summary Plan Description (SPD) to each plan participant
    • Provide a summary of the plan’s annual financial information to each participant
    • Provide an annual accounting of the benefits earned by each participant
    • Provide a copy of the plan upon a participant’s request
    • What Are the Potential Penalties?
      • Outstanding plan benefits
    • Civil and criminal fines
    • Imprisonment
    • Attorneys’ fees
    • Top ERISA Tips
      • Employers are not required to maintain employee benefit plans; however, if they do, such plans must comply with ERISA
    • When faced with an employee’s question regarding benefits, always defer to the plan administrator
    • Maintain confidentiality of all employee medical information
    • Do not discriminate with regard to benefit plans based upon an employee’s membership in a protected class
    • Reserve, in writing, the option to amend any plan
    • Employers may be required to maintain medical coverage of an individual after separation from employment pursuant to COBRA
    • What Employers Are Covered?
    • All employers who order consumer reports from a consumer reporting agency
    • What Does the FCRA Provide?
    • The Fair Credit Reporting Act (FCRA) imposes strict rules on an employer’s ordering and use of consumer reports for employment purposes
    • What’s a “Consumer Report”?
    • A report of information relating to an individual’s credit, general reputation, criminal history or personal characteristics
    • What Steps Must Be Taken Before Obtaining a Consumer Report?
      • Notify the employee or applicant in writing about your intent to obtain a report
    • Obtain the employee’s or applicant’s written permission prior to requesting the report
    • What Steps Must Be Taken Before an Adverse Action Based on a Consumer Report?
      • Provide the individual with a copy of the report
    • Provide the individual with a copy of the Summary of FCRA Rights available at www.ftc.gov
    • What Steps Must Be Taken After an Adverse Action?
    • Provide written, oral or electronic notice of the adverse action to the individual. The notice must include:
      • the name, address and phone number of the consumer reporting agency that provided the report
    • a statement that the consumer reporting agency did not make the decision to take the adverse action and will not be able to provide the individual with the specific reasons for the decision
    • a statement that the individual has the right to dispute the accuracy or completeness of the information provided
    • a statement that the individual can get an additional free consumer report from the consumer reporting agency used by the employer upon a request made within 60 days
    • What Are the Potential Penalties?
      • Actual damages
    • Punitive damages
    • Attorneys’ fees
    • Top FCRA Tips
      • Ensure that you take the steps outlined above before obtaining a report or taking adverse action
    • The request for permission should not be included in the employment application
    • What Employers Are Covered?
    • Those with 2 or more employees
    • What Does the FLSA Provide?
    • Requires employers to pay employees at a rate no less than the minimum wage
    • Requires employers to pay employees an amount equal to 1.5 times their regular rate of pay for all hours worked over 40 in a given week, unless an exemption applies
    • Restricts employers from employing minors in certain jobs and for longer than certain periods of time
    • What Is the “Regular Rate”?
    • The total amount of money earned by an employee in a particular workweek divided by the number of hours worked
    • When Is an Employee Exempt?
      • Executive : must be primarily engaged in management, direct the work of 2 or more full-time employees and be authorized to affect the terms and conditions of other employees through hiring, firing, etc.
    • Administrative: must be engaged in office or non-manual work related to general business operations and must use independent judgment and discretion with regard to significant matters
    • Professional : must perform functions that require advanced knowledge in a field of science or learning
    • Computer : must perform functions that require the application of systems analysis techniques, the design or development of computer systems or programs, or the creation or modification of programs relating to operating systems
    • Outside Sales : must make sales and regularly work away from the employer’s business
    • Note: Employees must be paid the minimum amount specified in the statute and (except for the computer exemption) be paid on a salary basis for an exemption to apply
    • What Records Must Be Kept?
      • Must maintain records of wages paid to non-exempt employees
    • Must maintain records of hours worked by non-exempt employees
    • Must keep records for 3 years
    • What are the Potential Penalties?
      • Back pay
    • Overtime pay
    • Monetary fines
    • Punitive damages
    • Injunctive relief
    • Criminal penalties
    • Attorneys’ fees
    • Top FLSA Tips
      • Job titles, job descriptions and the fact that an employee is paid on a salary basis aren’t conclusive evidence that an employee is exempt – the above tests must be met
    • Be aware that state laws may impose greater obligations
    • Non-exempt employees cannot agree to receive less than time-and-a-half their wage rate for overtime work
    • Keep accurate records for all employees
    • FLSA compliance is key – class actions and substantial punitive damage awards have grown exponentially over the past few years
    • What Employers Are Covered?
    • Those with 50 or more employees
    • What Employees Are Eligible?
    • Employees who have worked for at least 12 months and at least 1250 hours during the previous 12 months
    • What’s Provided to Employees?
      • Up to 12 weeks of unpaid leave in a 12-month period for the serious health condition of the employee or a family member, for the birth or adoption of a child, or because a child, parent or spouse of the employee has been called to active duty in the military
    • Up to 26 weeks of unpaid leave during a 12-month period to care for a spouse, child or parent who is an injured member of the military
    • What’s a “Serious Health Condition”?
      • Pregnancy or prenatal care
    • Chronic, long term or permanent medical conditions
    • Any condition that causes at least 3 consecutive days of absence combined with 2 or more treatments by a health care provider
    • Any condition that causes a period of incapacity of any length combined with inpatient care
    • What Are an Employer’s Responsibilities?
      • Inform employees of FMLA rights
    • Grant intermittent leave where requested
    • Restore an employee returning from leave to the same or a substantially equivalent position held before the leave
    • Don’t retaliate against employee for taking leave
    • Can an Employee Substitute Paid Leave?
    • Yes. An employer can require or an employee can voluntarily elect to use paid leave benefits during FMLA leave.
    • What Are the Potential Penalties?
      • Back pay
    • Reinstatement
    • Benefits
    • Attorneys’ fees
    • Top FMLA Tips
      • Post the required FMLA poster
    • Notify employees of FMLA rights in employee handbook
    • Provide written documentation addressing leave obligations and consequences for failing to satisfy those obligations
    • Provide employees with the medical certification required for leave and, if necessary, the certification required to return to work following leave
    • FMLA leave can’t count towards no-fault attendance policies
    • An FMLA “serious health condition” is not the same as a “disability” under the Americans with Disabilities Act (ADA) – check out the ADA Cheat Sheet for more
    • What Employers Are Covered?
    • Those with 15 or more employees
    • What Are GINA’s Basics?
      • Prohibits discrimination based on genetic information
    • Prohibits employers from collecting genetic information, with limited exceptions
    • Prohibits health insurers and plans from requiring genetic testing and from discriminating based on genetic information
    • Imposes strict confidentiality rules
    • Does GINA Prohibit Retaliation?
    • Yes
    • What About Disparate Impact?
    • Specifically exempted from GINA
    • When Does It Go Into Effect?
    • Fall 2009
    • What Are the Potential Penalties?
    • Same as Title VII
    • What Employers are Covered?
    • Those with 15 or more employees are covered by the primary anti-harassment law (Title VII)
    • What Types of Harassment Are Prohibited?
    • Harassment is a form of discrimination prohibited by Title VII and other laws. Generally, the law prohibits two types of harassment: quid pro quo and hostile work environment.
    • What is “Quid Pro Quo” Harassment?
    • Quid pro quo (QPQ) harassment occurs when employment terms, conditions or benefits are conditioned on the victim’s submission to unwelcome sexual advances made by his or her supervisor
    • Important notes:
      • A victim who eventually succumbs to the advances still may have a claim
    • The perpetrator of the harassment must be a person with managerial authority
    • The employer is strictly liable for any proven harassment
    • What Is a “Hostile Work Environment”?
    • A workplace that is sufficiently permeated with severe and pervasive insult, intimidation and/or ridicule based on a person’s race, national origin, disability, religion, age or sex such that a reasonable person would find it hostile or abusive
    • Important notes:
      • The environment can be caused by vulgar comments, stories or jokes, offensive documents or postings, leering, or inappropriate physical conduct
    • The environment can be created or contributed to by managerial staff, co-workers and/or customers
    • How can an Employer Avoid Liability for a Hostile Work Environment?
    • If the offensive conduct was by a supervisor:
      • The employer must prove that it exercised reasonable care to prevent and then promptly correct the harassing behavior
    • The victim must have unreasonably failed to take advantage of the corrective measures provided by the employer
    • If the offensive conduct was by a co-worker:
    • The employee must prove that the employer knew or had reason to know about the behavior but failed to take proper corrective action
    • What are the Potential Penalties?
      • Back and front pay
    • Compensatory damages
    • Reinstatement
    • Punitive damages
    • Attorneys’ fees
    • Top Anti-harassment Tips
      • Implement and consistently enforce an anti-harassment policy
    • Provide anti-harassment training for all managerial employees
    • Provide multiple avenues by which victims of harassment can complain and ensure that employees are aware of the complaint procedure
    • Promptly and thoroughly investigate all claims of harassment in a manner that is fair to both the alleged victim(s) and the alleged perpetrator(s)
    • If harassment is proven, take steps to prevent further harassment, including disciplinary action against the perpetrator(s)
    • Refrain from taking any adverse action against the person complaining about harassment
    • What Does HIPAA Do?
    • The Health Insurance Portability and Accountability Act (HIPAA) protects the privacy of medical records and personal health information.
    • What Information is Protected?
    • Information created or received by a health care provider, health plan, employer, etc., that relates to the past, present or future physical or mental health of an individual, the provision of health care to an individual or the payment for provision of health care to an individual.
    • When Does HIPAA Impact Employers?
    • When they need to obtain and use protected information
    • If they administer their own health care plan or review benefits decisions
    • Note: Additional restrictions/obligations apply to health care plans and other health care-related entitles under HIPAA.
    • What Are Some Circumstances Where an Employer May Need to Obtain Protected Information?
      • When obtaining medical information for FMLA purposes:
        • To determine whether an employee has a serious medical condition
        • To determine whether an employee is able to return to work
    • When trying to determine the parameters of a reasonable accommodation under the ADA
    • When trying to determine an appropriate modified work schedule for an employee returning to work after suffering a work-related injury
    • How May an Employer Obtain Protected Information?
    • The employer must obtain a valid authorization that includes the following:
    • A description of the information
    • The identity of the person/entity authorized to make the disclosure
    • The identity of the person/entity to which the disclosure may be made
    • A description of each purpose of the requested information
    • The signature of the individual whose information is sought
    • Certain statements notifying the individual of his or her rights, including that he/she is entitled to revoke the authorization and receive a copy of the requested information
    • An expiration date
    • What Are the Potential Penalties?
    • civil and criminal fees
    • Imprisonment
    • Top HIPAA Tips
    • Keep all health information confidential and separate from other employee files
    • Limit use of any protected information to those specifically provided in the authorization signed by the employee
    • Request and use only the minimum amount of medical I information necessary for your purpose
    • Who’s Covered?
    • All employers and all employees
    • What does it Prohibit?
    • Employment of individuals who are present in the U.S. without authorization to work
    • Discrimination on the basis of national origin or citizenship by employers with 4 or more employees
    • Selective use of I-9 IRS forms to prescreen employment applicants
    • Documentation Requirements:
      • Applicants must provide documentation sufficient to verify identity and eligibility to work in the U.S.
        • This documentation must be drawn from Lists A-C located on the INS web site (www.uscis.gov)
      • Applicants and employers must complete their respective sections of I-9 IRS forms
    • Specific Employer Requirements relating to Documentation?
      • Complete Sections 2 and 3 of applicants’ I-9 IRS forms
    • Examine the qualified documentation provided by a new employee within 3 days of the beginning of person’s employment
    • Must review documents provided by applicants to determine authenticity
    • What are an Employer’s Recordkeeping Responsibilities?
      • Keep I-9 form for 3 years following date of hire or one year following termination
    • Keep a physical copy of the I-9 Form (not in electronic format)
    • Must make form available to INS within 3 days of any request
    • What are the Potential Penalties?
        • Monetary fines
    • Back pay
    • Attorney’s fees
      • Criminal penalties, including imprisonment
    • Top IRCA Tips
        • Be vigilant and look for potential document fraud
    • Do not ask for specific documents – The employee may provide any of the types of documentation noted on the INS website
    • Follow all recordkeeping requirements
    • Do not use I-9 documentation for any purpose other than verification
    • Keep any photocopies made of I-9 documentation with the I-9 Form itself
    • INDEPENDENT CONTRACTOR CHECKLIST
    • This list is a guide to help you determine whether an individual is an independent contractor. Generally, the more “yes” answers you have to the questions below, the more likely it is that the individual is an independent contractor. Please consult with your legal counsel before making any final decisions.
      • . Is the individual being hired to do work for a discrete project that is limited in time (as opposed to work that is ongoing and integral to the company’s normal business functions)? ___Yes ___No
    • . Does the work involve special skill and training not currently possessed by company employees? ___Yes ___No
    • . Does the work involve skills and training which the individual already possesses (as opposed to skills for which the individual will need to receive training from the company? ___Yes ___No
    • . Does the individual pay for his or her own business expenses? ___Yes ___No
    • . Does the individual pay for his or her own travel expenses? ___Yes ___No
      • . Is the individual responsible for his or her own federal and state tax obligations ( i.e. , the company is not paying payroll taxes for the individual)? ___Yes ___No
      • . Is the individual being paid a set price per project or on a straight commission basis (as opposed to on a set schedule in the form of a salary, regular wage, or piece-rate)? ___Yes ___No
      • . Does the individual provide the company with invoices for fees (as opposed to timesheets)? ___Yes ___No
      • . Does the individual offer his or her services to entities other than the company or to the general public at the same time he or she is performing services for the company? ___Yes ___No
      • 0. Is the individual free to accept projects from other entities at the same time he or she is performing services for the company? ___Yes ___No
      • 1. Does the individual have a distinct occupation? ___Yes ___No
      • 2. Is the individual self-employed? ___Yes ___No
      • 3. Will the individual be performing services for the company as part of his or her own independently-established business? ___Yes ___No
      • 4. Will the manner and means for achieving the specified result be left to the individual’s discretion? ___Yes ___No
      • 5. Will the individual’s hours, places, and order and sequencing of the work be left to the individual’s discretion? ___Yes ___No
      • 6. Is the individual free of extensive supervision, especially in regards to the means and manner of performance? ___Yes ___No
      • 7. Is the work going to be performed at a location separate from the company premises? ___Yes ___No
      • 8. Does the individual have a significant investment in the facilities or equipment which will be used in performing the work? That is, is the individual responsible for providing the necessary tools, equipment, and material for the performance of the work? ___Yes ___No
      • 9. Is the individual permitted to select, direct, and pay anyone who will assist in achieving the desired results? ___Yes ___No
      • 0. Is dismissal of the individual premised on some type of failure to comply with an agreement, such as a failure to perform work (as opposed to the individual being subject to “dismissal at any time for any reason”)? ___Yes ___No
      • 1. Is there an understood consequence to the individual for quitting prior to the completion of the project? ___Yes ___No
      • 2. Is the individual free to reject additional projects from the company? ___Yes ___No
    • What does it Do?
    • Regulates the relationship between labor and management and provides employees with the following rights:
      • To form and join unions
    • Assist unions
    • Engage in collective bargaining
    • Who’s Covered?
    • The majority of private employers
    • What does it Prohibit an Employer from Doing?
      • Interfering with an employee’s exercise of NLRA rights, including making threats of adverse action or bribing with benefits
    • Discriminating against an employee because he or she exercised rights
    • What Rights does it provide to an Employer?
      • Can prohibit solicitation during working time
    • Can prohibit leafleting at the workplace
    • Can prohibit non-employees from coming onto workplace property during the workday
    • Note: Any such policies must be uniformly enforced without regard to whether or not they are union-related
    • What is a “Collective Bargaining Agreement”?
    • An agreement between an employer and a union regarding the terms and conditions of the employees’ work and employment benefits.
    • What are some of the Mandatory Subjects of a CBA?
      • Hours
    • Rate of pay
    • Health insurance and retirement benefits
    • Seniority
    • Assignments
    • Time off
    • Rules of promotion
    • Discipline
    • How is a CBA Enforced?
    • Through a grievance and arbitration process in which the union and employer first try to resolve any complaint in collective negotiations. If those negotiations fail, the complaint will go in front of a neutral arbitrator.
    • What are the Potential Penalties?
      • Reinstatement
    • Back Wages
    • Monetary fines
    • Injunctive relief
    • Attorneys’ fees
    • Top NLRA Tips
      • Must bargain in good faith
    • Once a CBA is executed, the employer cannot unilaterally change terms and conditions of employment
    • If dealing with unionized employees, employer can bargain only with the union
    • Employment of employees pursuant to a CBA limits the employment-at-will doctrine; in general, employers can terminate unionized employees only for just cause
    • Who’s Covered?
    • The majority of private employers
    • What’s the purpose of the Act? To ensure that every employee works in a safe and healthy environment
    • What are it’s Requirements on Employers?
      • Provide a workplace that is free from recognized hazards that are likely to cause death or serious physical harm to employees
    • Comply with the safety and health regulations promulgated by OSHA
    • Keep a log and summary of all workplace injuries and illnesses
    • Keep records of safety training sessions
    • Retain records for period of time specified by statute
    • What types of Hazards does OSHA Regulate?
      • Exposure to hazardous chemicals
    • Noise levels
    • Protective gear
    • Safety training
    • Etc.
    • Does an Employer have specific Obligations with regard to Serious Accidents?
    • Yes. Employers must notify OSHA within 8 hours of learning of any workplace accident resulting in the death of at least one employee or the hospitalization of three or more employees
    • What are the Potential Penalties?
      • Monetary fines
    • Criminal penalties, including imprisonment
    • Top OSHA Tips
      • Keep track of the safety regulations promulgated by the States
    • Post the “Job Safety and Health Protection” poster, available from OSHA
    • OSHA inspectors have the authority to show up and inspect certain workplaces without notice
    • Inspections will frequently occur after serious accidents
    • Have a plan in place regarding how to deal with OSHA inspections
    • It is illegal to retaliate against employees that have complained to OSHA about unsafe or unhealthy conditions
    • Employers with 10 or fewer employees do not have to comply with certain obligations otherwise imposed by the Act
    • For additional questions, go to www.osha.gov
    • What Employers Are Covered?
    • Those with 15 or more employees.
    • What Employees Are Covered?
    • Applicants and employees who are pregnant, give birth, or have related medical conditions.
    • What’s Prohibited?
    • Discrimination against women in any aspect of employment because of pregnancy, childbirth or related medical conditions.
    • What’s Required?
    • That women who are pregnant or affected by related conditions be treated in the same manner as other applicants or employees with similar abilities or limitations.
    • What’s the Effect on Insurance Plans?
      • Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions.
    • Health insurance for expenses arising from abortion is not required, except where the life of the mother is endangered.
    • Pregnancy-related expenses must be reimbursed in the same manner as those incurred for other medical conditions.
    • Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.
    • What’s the Effect on Fringe Benefits?
      • Pregnancy-related benefits cannot be limited to married employees.
      • If an employer provides benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions.
    • Does the PDA Provide Leave?
    • No. However, employers should be aware that:
      • The FMLA allows unpaid leave for childbirth, adoptions and foster care placements and for an employee’s serious health condition, which can include complications or conditions relating to pregnancy and childbirth.
    • The ADA may provide for leave for pregnant employees or employees with a pregnancy-related condition in limited circumstances.
    • Top Tips for the PDA
      • The PDA is an amendment to Title VII of the Civil Rights Act of 1964.
    • Pregnant employees cannot be forced to take leave, or remain on leave, while pregnant as long as they are able to perform their jobs.
    • Employers cannot have a rule that prohibits an employee from returning to work for a predetermined period after childbirth.
    • Employers must hold open a job for a pregnant employee for the same length of time it would hold open a job for employees on sick or disability leave.
    • The PDA does not prohibit employment practices that favor pregnant women. Employers should consider their obligations under the PDA as a floor, not a ceiling.
    • Generally, pregnancy is not covered under the ADA, but where an employee experiences substantial complications that limit a major life activity, she may be considered disabled under the ADA and entitled to an accommodation.
    • What Does Section 409A Cover?
    • section 409A of the Internal Revenue Code regulates any employment plan that provides for the “deferral of compensation”
    • When Does a Plan Provide for “Deferral of Compensation?
    • When a participant has a legally binding right to compensation that is or may be payable in a later tax year.
    • What Kind of Deferrals Are There?
    • Elective: made at the election of the participant through salary reduction
    • Non-elective: contributions made by the employer without any salary reduction
    • What Are the Requirements for a 409A-compliant Plan?
    • Must be in writing
    • Must provide that deferred compensation may not be distributed to a participant earlier then:
      • Separation from employment
      • Disability
      • Death
      • ‘ a time specified under the plan at the date of the deferral
      • A change in the ownership or effective control of the business OR
      • The occurrence of an unforeseeable emergency
    • In the case of any “specified employee” (generally the top 50 paid officers), distributions on account of service may not be made earlier than 6 months post-separation
    • In general, compensation for services performed in a taxable year may be deferred at a participant’s election only if the election to defer is made no later than the close of the preceding taxable year
      • If a participant can make a subsequent election to delay payment:
      • The election may not take effect until at least 12 months after the date of election
      • If the election relates to a payment that is not made due to disability, death or unforeseen emergency, the payment must be deferred for a period of time not less than 5 years from the date the payment would have otherwise been made
      • Any election related to a payment as of a specified time or pursuant to a fixed schedule may not be made less than 12 months prior to the date of the first scheduled payment
    • Top Section 409A tips
      • Section 409A applies to any agreement that provides for the deferral of compensation, even if it is between the employer and only one participant.
    • Acceleration of the time or schedule of any payment under the plan is not permitted unless specifically authorized by federal regulations
    • Noncompliance has no direct adverse effect on employers; however, participants may be subject to tax penalties
  • Who’s Subject to § 1981? In addition to state and federal actors, all employers, regardless of how many employees they have, are subject to § 1981. Who’s Protected by § 1981? All races (including whites), ethnic groups, ancestries, and alienages. What Does § 1981 Provide? All persons shall have the same right to make and enforce contracts, to sue, to be parties, to give evidence, and to the full and equal benefit of all laws and proceedings as is enjoyed by white citizens. What Does “Make and Enforce Contracts” Mean? Congress has provided that “the term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” This language has been interpreted by courts to make §1981 and Title VII coextensive, and most courts have held that §1981 also covers claims of retaliation. Are There Exhaustion Requirements? No. There are no administrative procedures to exhaust under §1981, meaning an action can be brought directly in federal or state court. What Remedies Are Available? All the remedies that are available under Title VII are also available under §1981 (including reinstatement, back pay, injunctive relief, attorneys’ fees, etc.). However, unlike Title VII, compensatory and punitive damages under §1981 are not subject to a statutory cap.
    • Top Tips for § 1981:
      • Section 1981 covers intentional discrimination only, not claims of disparate impact.
      • Include anti-discrimination/harassment policies in your employee handbook
    • Apply employment policies consistently to all employees and applicants
    • Document all disciplinary action taken against employees
      • Do not provide inflated ratings in performance reviews
    • Do not provide an employee with contradictory reasons for an adverse employment action
    • Some Differences - Title VII v. § 1981:
      • Title VII : compensatory and punitive damages are capped v. §1981 : damages are not capped.
    • Title VII : administrative exhaustion requirements v. §1981 : no exhaustion requirements.
    • Title VII : applies to employers with 15 employees or more v. §1981 : applies to all employers.
    • Title VII : protects against discrimination based on race, sex, national origin, color or religion v. §1981 : applies to race only (interpreted to include all races, ethnic groups, ancestries, and alienages).
    • What Employers are Covered?
    • Those with 15 or more employees
    • What’s Prohibited?
      • Termination or failure to hire an individual on account of their race, sex, national origin, color or religion
    • Discrimination against an employee with respect to any term or condition of employment
    • Retaliation against an individual who engages in protected activity
    • Harassment
    • Adverse impacts against a protected class
    • What is an “Adverse Impact”?
    • A policy or action that is facially neutral but nevertheless adversely affects a protected class
    • What about a BFOQ?
    • If an employer can demonstrate that all or substantially all of a protected class cannot perform a specific function, it may discriminate on that basis
    • What are some examples of “Terms or Conditions” of Employment?
      • Promotions
    • Wages
    • Employment Benefits
    • May an Employer take Adverse Action against Protected Individuals?
    • Yes, so long as it bases its decision on a legitimate nondiscriminatory reason
    • What type of Harassment is Prohibited?
      • Quid pro quo – Certain benefits of employment are conditioned on sexual demands by the victim’s supervisor
    • Hostile work environment – Workplace is permeated with severe and pervasive insult, intimidation and ridicule
    • Examples of “Protected Activity”:
      • Filing of a charge of discrimination with the EEOC or a State-equivalent
    • Complaining to employer about purported discrimination
    • Acting as a witness in connection with a discrimination investigation
    • What are the Potential Penalties?
          • Back and/or Front pay
    • Compensatory damages
    • Reinstatement
    • Punitive damages
    • Attorneys’ fees
    • Top Title VII Tips
      • Include anti-discrimination/harassment policies in your employee handbook
    • Apply employment policies consistently to all employees and applicants
    • Provide regular harassment training
    • Document all disciplinary action taken against employees
    • Do not provide inflated ratings in performance reviews
    • Take all complaints of discrimination and harassment seriously
    • Take prompt remedial action if discrimination or harassment is proven
    • Recognize that some State anti-discrimination laws provide greater protection
    • Do not provide an employee with contradictory reasons for an adverse employment action
    • Who’s Covered?
    • Employees who serve or have served in, or applied to, the uniformed services.
    • What’s Provided?
      • Reemployment Rights
    • Benefits Rights
    • Retention Rights
    • What’s Prohibited?
      • Discrimination based on service, past or present, in the uniformed services.
    • Retaliation based on the exercise of rights under USERRA.
    • What are an Employee’s Reemployment Rights?
    • An employee who is absent due to service in the uniformed services is entitled to reemployment into the same or a comparable position, as though he or she had been continuously employed.
    • What are an Employee’s Benefits Rights?
    • An employee who is absent due to service in the uniformed services is entitled to:
      • The same rights and benefits as the employee had as of the date of the commencement of service, plus additional seniority-based rights and benefits as though he or she had been continuously employed.
    • Be treated as though he or she is on a leave of absence, and is entitled to the same rights and benefits as other employees on leaves of absence. An employee may, but cannot be required to, use accrued vacation or paid leave during a period of absence due to service.
    • Elect to continue health insurance coverage for up to 24 months, at no more than 102% of the cost of the full premium under the plan.
    • The same pension benefits as though he or she had been continuously employed.
    • What are an Employee’s Retention Rights?
    • An employee who is absent due to service in the uniformed services cannot be terminated except for cause within:
      • 1 year of reemployment if employee’s period of military service prior to the reemployment lasted more than 180 days; or,
    • 180 days of reemployment if employee’s period of service prior to the reemployment lasted more than 30 days but less than 181 days
    • What are an Employee’s Obligations?
      • To provide advance notice of the service obligation, unless such notice is impossible or unreasonable
    • To submit an application for reemployment in a timely manner after the conclusion of service
    • An employee is entitled to reemployment rights if he or she has 5 years or less of cumulative service in the uniformed services
    • Are Employers Required to Provide Notice?
    • Employers are required to provide notice of the rights and benefits provided under USERRA.
    • What are the Potential Penalties?
      • Reinstatement
    • Back pay
    • Liquidated damages
    • Attorney’s fees
    • What Employers are Covered?
    •  
    • Employers with 100 or more full-time employees
    •  
    • What does it Require?
    • Employers must provide 60 days advance notice of mass layoffs or plant closings
    •  
    • What is a “Plant Closing”?
    •  
    • The shut down of an employment location with the loss of:
    • 50 or more employees in 30 days or
    • 50 or more employees in two or more events over the course of 90 days
    •  
    • What is a “Mass Layoff”?
    •  
    • A workforce reduction that results in either of the following:
    • A reduction of an employer’s total workforce by at least 33% and at least 50 employees
    • A loss of 500 or more employees
    •  
    • What is “Employment Loss”?
    •  
    • Termination, other than for cause or a voluntary resignation
    • Layoffs exceeding 6 months
    • A reduction in hours by more than 50% over a 6 month period
    •  
    • What are the Notice Requirements?
    •  
    • An employer must provide written notice to affected employees and/or union representatives that is received by those individuals at least 60 days before the event. Notice must also be provided to local government and the appropriate State dislocated worker unit.
    •  
    • Exceptions:
    •  
    • In the following circumstance, an employer may avoid the 60-day notice requirement and provide notice as soon as practicable:
    • Natural disasters
    • Unforeseeable business circumstances
    • Faltering company
    •  
    • What are the Potential Penalties?
    •  
    • Back pay
    • Monetary penalties
    •  
    • Top WARN Tips
    •  
    • Provide notice of mass layoffs and plant closings as soon as possible
    • Employer must provide additional notice if the scheduled event is delayed
    • Pre-sale of business: Seller must provide required notice
    • Post-sale: Buyer must provide notice
    • A sale does not require notice unless it triggers a plant closing or mass layoff
    • Some states have similar laws that impose different obligations on employers
      • Employment Law TOOL BOX
  • General Purpose ADA: Prohibits discrimination against disabled individuals FMLA: Provides leave to employees Who Is Eligible? ADA: Individuals with a qualifying disability FMLA: Employees who have worked for at least 12 months and at least 1250 hours during the previous 12 months at a location within a 75-mile radius of where at least 50 employees work What Conditions are Covered? ADA: “Disability” that substantially limits one or more major life activities (or a history or perception of having such a disability) FMLA: “Serious health condition” of employee or certain family members of employee. Birth, adoption and foster care placement of employee’s child. Certain types of military-related leave. What Leave is Required? ADA: Leave for employee may be required if it would constitute a reasonable accommodation that doesn’t impose undue hardship on the employer. Leave typically must be for a defined period and is unpaid unless employer pays for other similar leaves. FMLA: Up to 12 weeks/year for serious health condition-related leave. Up to 26 weeks/year for certain military-related leave. Leave may be intermittent and is unpaid but the employer can require or the employee can choose to use accrued paid benefits. What About Benefits? ADA: No specifics under the law, other than the prohibition of discrimination based on disability. FMLA: Benefits typically don’t accrue during leave, but seniority, service and vesting continue. May require use of certain paid leaves depending on type of FMLA leave. What About Reinstatement? ADA: If leave is required as a reasonable accommodation, the employer generally must keep the employee’s position open during the leave. FMLA: Generally, employees must be reinstated to the same or a substantially equivalent position. What About Light Duty? ADA: Employers are not required to remove essential job functions as an accommodation, but if an employer reserves light duty jobs for workers’ compensation purposes, it may have to offer such jobs to disabled individuals. FMLA: An employer can’t require FMLA-qualifying employees to work light duty. Potential Penalties ADA: Back pay, compensatory damages, punitive damages and attorneys’ fees FMLA: Back pay, reinstatement, benefits and attorneys’ fees.
      • Employment Law TOOL BOX
  • EMPLOYMENT LAW RED FLAGS Discrimination: * = only in some states
  • EMPLOYMENT LAW RED FLAGS * = only in some states
  • EMPLOYMENT LAW RED FLAGS
      • Employment Law TOOL BOX
  • EMPLOYMENT LAW GREEN FLAGS KEY: legitimate job-related business reasons
      • Employment Law TOOL BOX
  • STEP 1: PREPARE
    • P lan the investigation strategy
    • R eview relevant policies and handbook provisions
    • E valuate pros and cons of investigation
    • P ick a competent and impartial investigator
    • A nalyze potential risk factors
    • R eview allegations and prep list of witnesses and ?s
    • E stablish a confidential investigation file
  • STEP 2: INVESTIGATE
    • I nterview the complaining employee first
    • N ow – don’t procrastinate
    • V iew the site of the alleged incident
    • E ach relevant witness identified by the complaining party should be interviewed
    • S upervisors should be involved to provide context
    • T ake the time to gather all potentially relevant evidence
    • I nterview the accused
    • G ather any potentially mitigating evidence and talk to witnesses identified by the accused
    • A nalyze all the evidence objectively
    • T alk to an attorney about any potential legal issues
    • E nd the investigation with a written report and appropriate communication
      • Employment Law TOOL BOX
  • TERMINATION TEST: 6 QUESTIONS
      • Employment Law TOOL BOX
  •  
  • When is an Employee Exempt? Employees must be paid the minimum specified by statute and (except for the computer exemption) be salaried
  •  
      • Employment Law TOOL BOX
  •  
  •  
  •  
      • Employment Law TOOL BOX
    • Social media (including personal and professional websites, blogs, chat rooms and bulletin boards; social networks, such as Facebook, LinkedIn, Twitter and MySpace; video-sharing sites such as YouTube; and email)  are a common means of communication and self-expression. Because online postings can conflict with the interests of ___________ (“Company”) and its customers, the Company has adopted the following policy. Breach of this policy may result in counseling and disciplinary action, including termination of employment.
    • Confidentiality and Privacy
    • Do not disclose the Company’s confidential or proprietary information, or personal identifying information of anyone at the Company, in online postings or publications. Sharing these types of information, even unintentionally, could result in harm to the Company and legal action against you or the Company.
    • Your Identity Online
    • You are personally liable for all communications and information you publish online. The Company may be liable for online activity that uses company assets, a company email address or any email address that can be traced back to the Company’s domain, which generally is any internet address affiliated with the Company. Using your name and a Company email address may imply that you are acting on the Company’s behalf. Because social media and networking activities are public, your Company email address and Company assets should be used only to perform job-related activities, which may include professional networking but do not include personal social networking.
    • Outside the workplace, you have a right to participate in social media and networks using your personal email address. However, information and communications that you publish on personal online sites should never be attributed to the Company or appear to be endorsed by, or to have originated from, the Company.
    • If you choose to disclose your affiliation with the Company in an online communication, then you must treat all communications associated with the disclosure as professional communications governed by this and other Company policies.
    • Limitations on Online Publications
    • Never identify a customer or coworker in an online posting without his or her prior written permission.
    • Obey the law and ethics rules. Do not post any information or engage in any online activity that violates applicable local, state or federal laws, or professional rules of conduct.
    • Identify all copyrighted or borrowed material with citations and links. When publishing direct or paraphrased quotes, thoughts, ideas, photos or videos, give credit to the original publisher or author.
    • Direct all requests for references for current or former Company employees to the Human Resources Department. Comments you post about current and former employees can have legal consequences, even if you make the comments personally and not on the Company’s behalf.
    • Creating and Managing Content
    • The ___________ Department must approve any website, blog, chat room, video-sharing site, bulletin board or other social media that promotes the Company. No employee may incorporate the Company’s logo or other intellectual property in a website, blog, chat room, video-sharing site, bulletin board or other social media without the Company’s written permission.
    • If you maintain a website, blog, chat room, video-sharing site, bulletin board or other social media that promotes the Company, you are responsible for reviewing responses to online posts and resolving any concerns about the propriety of the responses before they are posted.
    • If a blogger or any other online participant posts an inaccurate, accusatory or negative comment about the Company or any of its employees, do not respond to the post without the approval of the __________ Department.
    • Refrain from publishing comments about controversial or potentially inflammatory subjects, including politics, sex, religion or any other non-business related subjects in any posts or other online communications involving the Company.
    • Avoid hostile or harassing communications in any posts or other online communications involving the Company. Harassment is any offensive conduct based on a person’s race, sex, gender, gender identity, national origin, color, disability, age, sexual orientation, veteran status, marital status, religion or any other status protected by law.