The Great Employment Law Quiz Show

Answers to YOUR Employment Law Questions Today’s Format
Shout-outs
Polls
Text-o-rama
Lightning Round
Official “Smartest Person in Our Audience” Quiz
Valuable prizes galore

Today’s Agenda
Official “Smartest Person In the Audience” Quiz Show
$584 billion in tools & tips
What’s new? What’s next?
Hiring to firing
Official Employment Law Pledge
Stay Out of Jail “To Do” List
Employment Law Sing-a-Long
Everything About Employment Law

Official Disclaimer
The material presented herein should not be relied upon or construed as legal advice. For specific information on recent developments, particular factual situations or the effect of a particular law, the opinion of qualified legal counsel should be sought.
Please consult with your own Legal and HR Departments before making any changes.
Answers to YOUR Employment Law Questions

Everything About Employment Law Smartest Person in the Audience QUIZ SHOW

Everything About Employment Law Why You Should STAY AWAKE During This Webinar

According to a recent study, what is the #1 legal headache for U.S. businesses?
a. Environmental regulation
b. Patent protection
c. International contract laws
d. Employment law disputes
e. Lawyers

According to a recent study, what is the #1 legal headache for U.S. businesses?
a. Environmental regulation
b. Patent protection
c. International contract laws
d. Employment law disputes
e. Lawyers
Source: Fulbright & Jaworski

On average, how many employment lawsuits are filed every day?
a. 55
b. 197
c. 362
d. 500
e. Too high to count

On average, how many employment lawsuits are filed every day?
a. 55
b. 197
c. 362
d. 500
e. Too high to count
Source: Council on Education in Management

What % of employment lawsuits are won by the employer?
a. It is unlawful for employers to win
b. 18%
c. 38%
d. 52%
e. 67%

What % of employment lawsuits are won by the employer?
a. It is unlawful for employers to win
b. 18%
c. 38%
d. 52%
e. 67%
Source: Jury Verdict Research

1 out of ___ employment law jury verdicts is a million-dollar case.
a. 1 million
b. 1,000
c. 100
d. 10
e. 5

1 out of ___ employment law jury verdicts is a million-dollar case.
a. 1 million
b. 1,000
c. 100
d. 10
e. 5
Source: Critical Measures

How to Lose Money Fast
Class actions
Wage & hour
Exec misconduct
“ Systemic” discrimination
OSHA violations
Hot spots: CA, FL, IL, MS, NJ, NY, PA and TX
Retaliation
Sources: Seyfarth Shaw; Washington Post; Business Week

Employers in Court
More Litigation
Up for 3 rd straight year
Last quarter: 31% increase vs. 3% decrease
Litigation Costs Up: Companies spending $1+ million increased by 18%.
Median Verdict: $326,640 (up 60%).
Sources: Jury Verdict Research, Fulbright & Jaworski, Seyfarth Shaw

Employers in Court
Most Common
Sex (35%)
Race (26%)
Disability (16%)
Age (13%)
Biggest Verdicts: Age, disability, sex, race
Average Cost: Edging closer to $100,000 to litigate
Sources: Jury Verdict Research, Fulbright & Jaworski, Seyfarth Shaw

Everything About Employment Law Big Hairy SUITS

Which of the following happened in recent months?
a. Record EEOC $$$ recoveries
b. Record # of retaliation, religion, disability & national origin claims
c. Largest gender discrimination verdict ever
d. Largest class action employment lawsuit ever
e. All of the above (and much much more)

Anatomy of a Billion-dollar Lawsuit
TIMELINE
10 years on Working Mothers best employers list
2003: 1 st charge – pattern and practice of discrimination
2004: Lawsuit filed
2007: Class certified – all female salespersons since 2002
2009: Summary judgment denied
2010: Trial

EVIDENCE
Experts: performance and comp systems were “subjective” and vulnerable to bias
Stats: women got lower performance scores and made $75/month less
Affidavits:
“ First comes love, then comes marriage, then comes flex time and a baby carriage”
“ Get an abortion”
“ Oops – too late”

BEST JUDICIAL QUOTE OF THE DECADE
The court must be “wary of a claim that the true color of a forest is better revealed by reptiles hidden in the leaves than by the foliage of countless free-standing trees.”
Nevertheless, the “plaintiffs have produced enough foliage to raise questions about the forest’s color.”

TRIAL TESTIMONY
Plaintiffs
Unfair pay practices
Promotion and salary increase denials after pregnancy leave
“ Baby carriage” poem recital
Rape by doctor at company-sponsored social event
Defendants
Above were isolated “anecdotal” incidents
Testimony from female employees with positive experiences

VERDICT
$3.4 million in compensatory damages
$250 million in punitive damages
5,600 class members may now seek individual compensatory damages ($1+ billion?)
Equitable relief

LESSONS
Don’t rest on your laurels
Get PROACTIVE – train managers, fire bad ones and address adverse impact NOW
Get REACTIVE – investigate and address ALL claims
Beware “pattern and practice” claims
Beware newsworthy allegations
Consider early settlement
Ledbetter = $$$

Which of the following were actual rulings by the Supremes in the past year?
a. An employer can monitor employee “’sexting” if it has a “legitimate work-related purpose”
b. “Reverse discrimination” is bad: test results can only be thrown out if there is a “strong basis” of evidence
c. Title VII’s anti-retaliation protection includes employees who answer questions during an internal investigation
d. Age must be “THE” versus only “a” factor to win ADEA suit

Which of the following were actual rulings by the Supremes in the past year?
a. An employer can monitor employee “’sexting” if it has a “legitimate work-related purpose”
b. “Reverse discrimination” is bad: test results can only be thrown out if there is a “strong basis” in evidence
c. Title VII’s anti-retaliation protection includes employees who answer questions during an internal investigation
d. Age must be “THE” versus only “a” factor to win ADEA suit

More Big Verdicts
$4.0 million to pathologist for alleged retaliation after opposing new blood test that could give false results
$4.1 million to male cop who claimed retaliation after testifying in harassment case of department’s first female cop
$4.7 million to black salesperson who alleged retaliation after he claimed race discrimination and harassment
$5 million to white police officer who alleged retaliation after complaining of discrimination against black police officers
$6.2 million for allegedly inflexible WC leave exhaustion policy resulting in termination instead of accommodation

More Big Verdicts
$10.7 million for alleged repeated firing of older employees and replacing them with younger employees
$19 million to thousands of female employees of national restaurant chain in “glass ceiling” case
$35 million to 88,000 employees allegedly forced to skip breaks and meal periods
$68 million to whistle-blower who alleged pharma kickbacks, illegal marketing techniques and meetings in exotic locales
$70 million to TV writers for age discrimination
$4 billion to exec for breach of contract

How to Get Sued by the EEOC
Don’t address harassment/discrimination aggressively
Don’t adequately investigate complaints against execs
Don’t follow your own policies
Don’t accommodate
Retaliate
Act in bad faith

Everything About Employment Law What’s NEW?

What three words starting with the letter “e” best describe the government’s current approach to employment law? Everything About Employment Law

Enforcement, Enforcement, Enforcement
Chao (“compliance assistance”) versus Solis (“new sheriff in town”)
200 new Wage & Hour Compliance Officers
$25 million and 100 DOL enforcers to target independent contractor misclassifications
50 new lawyers to enforce Title VII, ADA and IRCA
ICE targeting 1,000 employers
More and more OFCCP and OSHA audits

What was the very first law signed by the President and why is it freaking lots of employment lawyers out? Everything About Employment Law

LILLY LEDBETTER FAIR PAY RESTORATION ACT Everything About Employment Law

The Ledbetter Act:
a. Gives an extra $250 per month to all employees named Lilly Ledbetter
b. Requires California employers to add a "0" to the end of every paycheck
c. Substantially extends the time period within which to file unfair pay (and potentially other) claims
d. Requires employers to conduct wage and hour audits prior to December 31

Ledbetter Basics
Overturns Supreme Court case requiring pay claims be filed within 180 days of initial decision
Restarts time limit every paycheck
The freak out:
Expanding to “other discriminatory practices” ( e.g. , demotion, promotion)?
Expanding to nonemployees ( e.g., spouse)?

What is the HITECH Act?
a. Stands for Halt Illegal Technology and Electronic Crimes Hastily
b. Imposes new requirements related to personal health information
c. Prohibits Facebook, Twitter and anything else fun in the workplace
d. Expands Title VII to include “geekishness” as protected class
e. Gives public employees a recognized “right of privacy” in electronic communications

HITECH ACT
New personal health information (PHI) requirements
Breach notices to plan participants, HHS and possibly even the media
Enforcement started February 22
What should employers do?
Revise HIPAA policies and procedures
Implement a breach response plan
Discuss the plan with business associates and negotiate modifications to existing business associate agreements
Train employees

In addition to all the health care changes, what else does PPACA require?
a. All U.S. citizens to move to Canada
b. Extension of the COBRA subsidy to 12-31-10
c. Breaks for nursing mothers
d. All of the above
e. None of the above

Which of the following is NOT real?
a. New machine called Pepper Mouth that emits a foul odor when employees use foul language
b. New TV show called The Naked Office in which employees are encouraged to get naked to help resolve workplace disputes
c. Online service that provides fake references for a small fee
d. A banker who claimed she was discriminated against because she was “too hot” for the workplace
e. A Hooters employee who claimed she was discriminated against because she was too big to fit into the uniform (which consists solely of the following sizes: S, XS, XXS)
f. Green cards will actually be green again
g. All of the above are very real

What Else Is New?
HIRE Act: payroll tax “holiday”
Mental Health Parity Act
New EEOC opinions on credit checks and education
New from the DOL:
Searchable enforcement tool
H-1B and union elections advisors
Wage, safety and EEO compliance coming soon?

Update handbook, policies,
forms, posters and training
NOW!

Everything About Employment Law What’s NEXT?

What Presidential appointment is freaking out lots of employment lawyers because of what it could mean for the future? Everything About Employment Law

BECKER TO NLRB Everything About Employment Law

Who Needs Congress?
“ The NLRB has the ability to unduly increase union power and leverage without intervention by Congress.” (U.S. Chamber of Commerce)
Bush-era decisions at risk
E-mail organizing rules
“ Salts”
“ Supervisor” definition
Extraordinary remedies
EFCA?

POLL: Women now make up the majority of the workforce and the vast majority of college attendees. The U.S. will soon be more than 50% nonwhite. An African-American has ascended to the presidency. So, when will Title VII be repealed?
a. By the end of the year
b. By the end of the decade
c. By 2030
d. By 2050
e. Never

After the Mancession: Women @ Work
50.3% of workforce
57% of college students
40% of #1 breadwinners
77 ¢ for every $1 (up from 58¢ in 1972)
Only 3% of CEOs and 13% of executive officers
Barriers to female success gone?
Men: 60% “yes”
Women: 50% “yes”
Sources: Bureau of Labor Statistics, Catalyst, TIME Magazine

Potential Legislation
Employment Non-discrimination Act (ENDA): bars discrimination based on sexual orientation or gender identity
Protecting Older Workers Against Discrimination Act: reverses Gross – age a (versus the ) factor
Healthy Families Act: employers with 15 or more employees must provide seven days paid sick leave a year
Arbitration Fairness Act: bars arbitration of employment disputes (except in collective bargaining agreements)
Paycheck Fairness Act: shifts burden to employers to prove that pay differences are not gender-based
Everything About Employment Law?

Fair Pay Act: prohibits employers from discriminating based on sex, race or national origin if jobs are “equivalent”
Security and Financial Empowerment (SAFE) Act: bans discrimination against victims of domestic violence, sexual assault and stalking
Family-friendly Workplace Act: provides employees with compensatory time off
Working Families Flexibility Act: permits employees to make an annual request to modify work schedule and location
Breastfeeding Promotion Act: amends the Pregnancy Discrimination Act to include lactation

Equal Employment Act for All: prohibits employers from using consumer reports to make employment decisions
Forewarn Act: expands WARN to include more employers and requires 90 days’ notice
Alert Laid Off Employees in a Reasonable Time (ALERT) Act: expands definition of “mass layoff” under WARN
Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act: permits employers to pay union employees more than collective bargaining agreement provides

More FMLA Amendments
Include employers with 25 or more employees
Create leave for:
part-time employees
child’s or grandchild’s school activities
child’s or elderly relative’s medical appointments
care for same-sex spouse, domestic partner, parent-in-law, adult child, sibling or grandparent
issues related to domestic violence and sexual assault

Everything About Employment Law Technology BYTES

What percentage of men have viewed Internet porn at work?
a. .07%
b. 2.9%
c. 14%
d. 25%
e. 33%
f. 118%

What percentage of men have viewed Internet porn at work?
a. .07%
b. 2.9%
c. 14%
d. 25%
e. 33%
f. 118%
Source: Harris Interactive

1 out of every ___ employees have forwarded a sex-related email at work.
a. 50
b. 10
c. 7
d. 3
e. 2
f. 1

1 out of every ___ employees have forwarded a sex-related email at work.
a. 50
b. 10
c. 7
d. 3
e. 2
f. 1
Source: Harris Interactive

Can my company monitor employee email and Internet usage and take employment action based on that monitoring?
a. Yes
b. Yes, if the employee signed a consent form consistent with either the model contract and/or safe harbor provisions of NRPA (National Right to Privacy Act)
c. It depends on whether the company has a policy deflating any expectation of privacy and whether it’s consistently enforced
d. No

Tech @ Work Everything About Employment Law
Social networking more than doubled in the past year
90% of employees surf the ‘Net
47% spend more than 30 minutes on-line
45% use social media to screen candidates
40% block access to social networking sites
25% have disciplined employees for social media abuse
Sources: Consumer Reports, Vault.com, Manpower Employment Blawg, Wall Street Journal, Challenger, Gray & Christmas, Harris Interactive, Fulbright & Jaworski, Society of Corporate Compliance & Ethics

Tech @ Court
Think hard before you hit “delete”
Think hard before you hit “send”
Beware the Stored Communications Act (SCA): Don’t steal employee social networking passwords
Don’t intercept employee communications while they’re being made
Disclose if blogger is hawking your products or services

Get Social
Sad stats
90% of policies out-of-date
40% of HR not “social”
Talk to a teenager
Adopt and enforce reasonable policy
Train employees
“ Mom Test”: permanent record
Harassment is harassment
“ Intelligence”: job-related, job-related, job-related
Sample social media policy
Sources: Challenger, Gray & Christmas, Harris Interactive, Fulbright & Jaworski

Doing Good While Doing Well July 23, 2010 The Official You Made It Halfway Thru the Presentation PLEDGE

Everything About Employment Law Wage & HOUR

How do you determine if an independent contractor is really an independent contractor?
a. It depends on a confusing, ambiguous multi-factor test dependent on behavioral and financial control and the parties’ overall relationship that differs in worker’s compensation, tax and other contexts
b. It is the employer’s option to choose either status, depending on which is more advantageous from a tax perspective
c. It is the employee’s option to choose
d. Under the newly passed Contractor Clarification Law, a person can be an independent contractor only if he or she (1) is separately incorporated, (2) provides services to other companies and (3) works in a recognized “profession” as defined under the law

How do you determine if an independent contractor is really an independent contractor?
a. It depends on a confusing, ambiguous multi-factor test dependent on behavioral and financial control and the parties’ overall relationship that differs in workers’ compensation, tax and other contexts
b. It is the employer’s option to choose either status, depending on which is more advantageous from a tax perspective
c. It is the employee’s option to choose
d. Under the newly passed Contractor Clarification Law, a person can be an independent contractor only if he or she (1) is separately incorporated, (2) provides services to other companies and (3) works in a recognized “profession” as defined under the law

Independent Contractor
KEY: CONTROL – behavioral and financial
DOL’s control factors:
Permanency of relationship
Contractor’s investment in equipment, etc.
Contractor’s opportunity for profit or loss
Contractor’s independent judgment and initiative
Whether services are integral to employer’s business

When is an unpaid intern really an intern?
a. Training given to the intern is similar to academic institution
b. Training is for the benefit of the interns, not the employer
c. Interns don’t displace regular employees
d. Interns aren’t entitled to a job at the end of the training
e. Both employer and interns understand that they aren’t entitled to compensation
f. If all of the above are true
g. If any of the above are true

Pay or not pay?
a. On-call time
b. Commute time
c. Wait time
d. Changing into and out of uniform if required at work
e. Donning and doffing safety gear
f. Walking between changing and production areas
g. Rest periods of 30 minutes or less
h. Bona fide meal periods of 30 minutes or more
i. Travel during the course of the work day
j. Travel outside work hours

Pay or not pay?
a. On-call time
b. Commute time
c. Wait time
d. Changing in and out of uniform if required at work
e. Donning and doffing safety gear
f. Walking between changing and production areas
g. Rest periods of 30 minutes or less
h. Bona fide meal periods of 30 minutes or more
i. Travel during the course of the workday
j. Travel outside work hours

A training session is voluntary, outside of normal work hours, not directly job-related and employees perform no productive work. Is that time compensable?
a. Yes
b. No

Exempt or Non-exempt?
Follow the tests, not assumptions
Job titles, descriptions and salary aren’t conclusive
If make sweeping changes, be very careful – back pay claims, increased OT costs, morale
Beware state law

What Does the FLSA Require?
Minimum wage
Overtime unless exempt
1.5 times regular rate for 40+ hours
Restriction of minors’ jobs/hours
What Is the “Regular Rate”?
The total amount earned in a
particular workweek divided by the
number of hours worked
What Records Must Be Kept?
Wages paid and hours worked by non-exempt employees
Keep for 3 years
What Are the Potential Penalties?
Class action
Back pay
Overtime pay
Monetary fines
Punitive damages
Injunctive relief
Criminal penalties
Attorneys’ fees

When Is an Employee Exempt?
Employees must be paid the minimum specified by statute and (except for the computer exemption) be salaried
Executive
Primarily engaged in management
Direct 2 or more FTEs
Authorized to affect terms and
conditions of other employees
through hiring, firing, etc.
Administrative
Office or non-manual work related
to general business operations
Independent judgment and
discretion in significant matters
Professional
Functions that require advanced
knowledge in a field of science
or learning
Computer
Functions that require application
of systems analysis techniques,
design or development of
computer systems or programs,
or the creation or modification of
programs relating to operating
systems
Outside Sales
Make sales and regularly work
away from the employer’s
business

Doing Good While Doing Well July 23, 2010 Fun with UNIONS

Union Membership
Lost 834,000 private sector jobs last year
7.2% (down from 7.6%) of private sector jobs
First time: majority of union members are in public sector
Evidence for EFCA?
Increased organizing?
(Source: Bureau of Labor Statistics)

What does the word “spit” have to do with union organizing? Everything About Employment Law

What does the word “spit” have to do with union organizing? Don’t do it. NO . . . S pying P romises I nterrogation T hreats Everything About Employment Law

In seeking to represent a unit of 100 employees, what is the least number of votes a union could receive and still win an NLRB election?
a. 1
b. 30
c. 50
d. 51
e. 67

Doing Good While Doing Well July 23, 2010 Medical ISSUES

Which of the following increase your chances of getting sued under GINA?
a. Including questions about family medical history on your application
b. Terminating an employee after a positive test
c. Commingling medical and other information
d. Asking too many ?s about medical issues
e. Discriminating against employees named Gina
f. All of the above except “e”

GINA (Genetic Information Nondiscrimination Act)
Generally prohibits:
Employers from (1) collecting genetic info and (2) discriminating based on genetic info
Health insurers/plans from (1) requiring genetic testing and (2) discriminating based on genetic info
Retaliation

An employee comes into your office at 4:58 on a Friday afternoon and informs you that he suffers from multiple medical conditions, including “work-induced narcolepsy,” “spontaneous combustion syndrome” and “episodic cubicle-confinement hyper-grumpiness.” He demands several accommodations, including: (1) a portable I.V. hooked up to an espresso machine, (2) a fire extinguisher mounted to his head; (3) three-and-a-half weeks off each month and (4) your office. If you have time to make only one call, to whom should it be? Everything About Employment Law

An employee comes into your office at 4:58 on a Friday afternoon and informs you that he suffers from multiple medical conditions, including “work-induced narcolepsy,” “spontaneous combustion syndrome” and “episodic cubicle-confinement hyper-grumpiness.” He demands several accommodations, including: (1) a portable I.V. hooked up to an espresso machine, (2) a fire extinguisher mounted to his head; (3) three-and-a-half weeks off each month and (4) your office. If you have time to make only one call, to whom should it be?
The Job Accommodation Network (JAN)
800-526-7234
jan.wvu.edu

Everything About Employment Law Don’t Wait, INVESTIGATE

Bob is normally a responsible, quiet employee. One day, however, he shows up two hours late and acts “obscenely happy, wearing make-up, avoiding eye contact, continuously rubbing his legs and touching everyone.” He also does a “crazy monkey arm dance” and begins “twirling and talking gibberish, flying around in the office in a hyper state.” Then he leaves. What do you do?
a. Fire him for inappropriate workplace behavior
b. Do a crazy monkey arm dance in his honor until he returns
c. Drug test him
d. Give him a chance to explain his behavior

Following a batch of frivolous complaints against execs that resulted in several of them hating your guts because you conducted the investigations, you institute a policy calling for brief “reviews” rather than full-scale investigations whenever a complaint comes in against an exec. What’s most likely to happen next?
a. Nothing: recent research shows that 94% of all complaints are frivolous
b. You get a big raise and a promotion for sparing execs the hassle and embarrassment of getting investigated
c. You get fired after the company pays a big settlement based in part on your failure to conduct an appropriate investigation

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

STEP 2: INVESTIGATE
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

Everything About Employment Law How to FIRE without getting fired

Who files more lawsuits: rejected applicants or terminated employees?
a. Rejected applicants
b. Terminated employees

Who files more lawsuits: rejected applicants or terminated employees?
a. Rejected applicants (3% of lawsuits)
b. Terminated employees (80% of lawsuits)

TERMINATION TEST: 6 QUESTIONS
1. Notice : Did the company give reasonable notice of the consequences of the conduct?
2. Rule : Is the rule reasonably related to (a) orderly, efficient and safe operations and (b) performance the company should reasonably expect?
3. Investigation : Did the company conduct a full, fair and timely investigation into the facts?
4. Proof : Is there sufficient evidence that the employee is guilty as charged?
5. Consistency : Has the company applied the rule consistently to all employees?
6. Penalty : Does the punishment fit the crime, considering (a) the seriousness of the offense and (b) the employee’s service record?

Everything About Employment Law Lightning ROUND

You can fire only one employee from TV’s The Office. Whom should you fire first to reduce legal risk?
a. Jim, office prankster who’s married to a co-worker
b. Toby, hapless HR “professional” who never enforces a single policy
c. Dwight, bobble-headed salesperson who brings weapons and dead animals to work
d. Michael, manager who disdains everything about HR
e. Andy, violence-prone moron who’s dating/stalking a co-worker

What lessons can employers learn from the David Letterman, Bob Barker, Bill O’Reilly, Conan O’Brien and Jay Leno legal sagas?
a. Don’t sleep with your employees
b. If you do, come clean
c. Even if allegations are against a superstar employee, investigate
d. Carefully craft a communication plan
e. Employment agreements can come back to haunt you
f. All of the above

Many employment disputes can be traced back to a lack of leadership. According to research, what is the single most important leadership trait?
a. Charisma
b. Humility
c. Kindness
d. Proactivity
e. Results-driven
f. Height
g. Coordinating accessories
h. Smooth dance moves

What does “employment at will” really mean? Everything About Employment Law

What does “employment at will” really mean?
Employers may fire an employee at any time for any reason or no reason at all with or without notice, with the following 637 exceptions . . .

EMPLOYMENT LAW RED FLAGS
Discrimination
Race / color
National origin / citizenship
Gender
Religion
Age (40+)
Disability
Pregnancy / abortion / in vitro
Military service
Union activity
Disparate Impact
Association
Genetic information
Marital Status*
Parental status*
Sexual orientation*
Arrest / conviction record*
Lawful off-duty conduct*
Trans-gender identification*
Physical appearance*
State of residence*
Political affiliation*
Lactation*
* = only in some states

Breach of Contract
Express (e.g., contract)
Implied (e.g., handbook)
Leave Protection
Medical
Military
Jury duty
Witness duty*
Voting, school functions, bone marrow / organ donation*
* = only in some states
Tort Claims
Constructive discharge*
Defamation*
Emotional distress*
Assault and battery*
False imprisonment*
Blacklisting*
Malicious prosecution*
Fraud / misrepresentation*
Invasion of privacy*
Negligent hiring / retention*
Good faith and fair dealing*
Violation of public policy*

Other Risk Areas
Non-competes
Privacy breaches
Plant closing / layoff
Polygraphs
Unions
Benefits
Retaliation
Complaints about discrimination, safety, working conditions, wages, etc.
Participating in an investigation, proceeding or hearing
Retaliation (cont’d)
Union organizing or other “protected concerted” activity
Workers’ comp claims
ERISA rights
Wage garnishment, bad credit or bankruptcy
Demanding personnel file
“ Whistle-blowing,” refusing polygraph or exercising other legal rights

EMPLOYMENT LAW GREEN FLAGS
KEY : legitimate job-related business reasons
Poor Performance : failure to meet clearly articulated expectations despite opportunities to improve
Gross or Repeated Misconduct : major or repeated violations of work rules
Breach of Contract : failure to perform a material term or condition

Doing Good While Doing Well July 23, 2010 LOVE Your Employees

STRESSSSSSSSSSSSSSSSSSSSSSSSSSS
Average workweek: up 32% over past 25 years
Time spent in traffic: up 157%
40% are sleep-deprived
33% of employees are “chronically overworked”
80% of medical expenses are now stress -related
(Sources: Harris Interactive, Sage Software Survey, Urban Mobility Report, Business Week, Families and Work Institute, Centers for Disease Control and Prevention)

STRESSSSSSSSSSSSSSSSSSSSSSSSSSS
465 million vacation days were squandered in 2009
83% check e-mail at least daily while on vacation
1 in 6 employees has exhibited “desk rage”
The average employee is interrupted 7 times an hour and switches tasks every 3 minutes
(Sources: Expedia.com, AOL, Caravan Opinion Research, TIME Magazine)

More Stress = More Lawsuits
The Bottom Line: U.S. companies lose between $200-$300 billion a year due to absenteeism, tardiness, burnout, decreased productivity, worker's compensation claims, increased employee turnover and medical insurance costs resulting from employee work-related stress.
The Lesson: LOVE YOUR EMPLOYEES.
(Source: National Safety Council)

Everything About Employment Law The Official Stay Out of Jail TO DO LIST

STAY OUT OF JAIL “TO DO” LIST
Stay on top of the law – it changes every 0.3 seconds
Get PROACTIVE -- audit and take action, especially:
Wage & hour
Independent contractors
I-9s
OSHA
ADA
Privacy
Get REACTIVE -- investigate and document
Adopt and enforce a reasonable social media policy
Never ever retaliate
Manage lawyers and litigation aggressively (but fairly)
LOVE YOUR EMPLOYEES

Everything About Employment Law Want MORE?

Doing Good While Doing Well July 23, 2010 manpowerblogs.com

Everything About Employment Law Employment Law SING ALONG

Employment law can be easy If you listen you surely won’t fail We wrote you this song So please sing along If you don’t You could end up in jail Everything About Employment Law

Don’t put things off ‘til tomorrow Yes investigate right away Don’t procrastinate ‘Cause the more that you wait The more you may have to pay Everything About Employment Law

Remember this song And you’ll never go wrong Yes we wish you the best On your journeys You’ll stay out of court And you won’t have to pay no attorneys Everything About Employment Law

Be honest, consistent and fair now Be ethical, trustworthy and true Let your conscience be king Yeah don’t do anything Your mom wouldn’t want you to do Everything About Employment Law

Communication’s important And documentation is key Get all the facts Or you might get the axe And subpoenas you’ll have to flee Everything About Employment Law

Everything About Employment Law THANK YOU!

The Great Employment Law Quiz Show

by Mark Toth on Jul 23, 2010

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The Great Employment Law Quiz Show — Presentation Transcript

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