One of the big themes in this year’s conference is retention. It’s a whole lot easier to retain clients, candidates and your employees … if you’re not in jail. In the next 14-and-three-quarters minutes, we’re going to address the Top Ten Legal Nightmares facing this industry and what we can ALL do to sleep better at night. What you’re about to see is the results of lots of in-depth interviews with some of the industry’s top lawyers, all of whom – myself included – are suffering from acute insomnia. Please help us.
Before we get to our official top ten list, here’s a little context to help get your hair standing on end. There’s a whole lot of scary out there.
Be Very Afraid. 3 words sum up what’s going on. Enforcement, enforcement, enforcement. The gov’t hired 200 new Wage & Hour Compliance Officers, 100 new DOL enforcers, 50 new lawyers to enforce employment statutes and lots of other staff to conduct employer audits and investigations. Over the past 5 years, the DOL has conducted 68,644 enforcement actions, finding violations in 50,364 of them or roughly 73%, resulting in a total of $681,151,513 in back wages. New laws and regs every 0.3 secs is actually incorrect. Actually, every 0.2 is probably more accurate. Govt is in the midst of multi-million campaigns targeting independent contractor misclassifications and I-9 fraud in a big way. The NLRB rules. Literally. It’s doing everything it can to make it easier to organize unions and much much more. Bottom line: Now is not the time to mess with the gov’t.
More good news . . . Lawsuits up nationwide for the 817 th straight year. #1 legal headache is empt law disputes which means our industry is probably hit harder than just about any other. Clients are making more and indem demands. Can just imagine our client’s procurement folks in room looking thru Ks and saying: Did our staffing company REALLY sign that? Let’s send ‘em a threatening letter and see if they’ll pay. If you’re an employer and you go to trial, odds are against you. Ers win only 48% of discn cases.
What are the biggest-ticket lawsuits in our industry right now? Wage and hour violations can result in humongous verdicts. Misclassification, interview time, independent contractors who aren’t really Iks, overtime and failure to pay for training , orientation , donning and doffing, etc. Easy to prove. Hard to disprove. Systemic Discn – Ps’ attys love class actions where they can prove that a company engaged in a pattern and practice or systemic violations or discn. Easy to file – just find 1 P -- but realllllllllly expensive to defend. Retaliation claims are now the absolute #1 disc claim in the world right now. Never ever fire someone just bc they complained. Exec misconduct. Judges and juries HATE it when an exec doesn sthing unlawful. Lots of execs in this room. Pls behave yourselves.
Without further ado, here are the top ten legal nightmares …
NEGOTIATIONPHOBIA. This entire industry suffers from low self esteem. When I first joined the industry 11 years ago, couldn’t believe what it signs. Still cant’ believe it. Anyone ever heard a client say: Every one of your competitors has agreed to sign – you’re the only one who won’t? And we hate you for it? Tell story. Huge client. Final stages. Potty break. Apparently thought hit mute. But didn’t. The moment we agreed to break, we heard ‘em say, dangit, this is exactly why Adecco refused to sign. I really think we’re being unreasonable. Let’s give in. I then said: Umm, we heard that. Negns went much better after that. Negotiate. Clients will actually respect you if you do.
THINK BEFORE YOU CLICK. Anyone here on Facebook? Twitter? Pinterest? SM is taking over the workplace. If you want to retain anybody, better get SMish right now. A few years ago, I was a bit unique being an exec with a blog. Now, practically everyone’s got one. Heck, even Jeff Joerres and Jonas Prising tweet on twitter. Embrace but be smart. Please think – and train everyone else in your company to think -- before you click, send, post or tweet or anything else your kids taught you to do online.
Anyone here have operations in CA? Here’s my legal advice: LEAVE. I used to practice law in CA. I got out. Biggest suits in America are from there. Be very very very careful, especially in wage and hour.
Speaking of wage and hour, it isn’t all that hard. The law hasn’t changed much in 500 years. Exemptions. OT. IK. Training. Interviews. Donning. Doffing. Pretty simple stuff. We give our industry a humongous black eye when we don’t do even the basic things right and the press comes after us. Please pay people right. If you don’t, expect a class action coming your way soon.
THIS MEETING scares me. Please don’t do anything antitrust-y while you’re here. Don’t agree on terms and conditions or territories or anything else that could get you fired. There are much more entertaining ways to spend your time in Vegas.
Need to stand together as an industry on key legislative and lobbying efforts, especially at the state level where things are really happening. United we stand. Divided we fall.
Please repeat after me: We … are not … insurance companies. Thank you. Our industry has to lead the known universe in signing absolutely ridiculous one-side indemnification agreements that make no sense – especially for an industry with our profit margins. A good indem agmt can be the difference between solvency and bankruptcy. Please be careful out there.
Ethics Shmethics. On a recent webinar, I asked 3,423 business professionals this question: Are we getting more or less ethical? Nearly 5 times as many said LESS vs. more. It appears we’re getting slimier rather than saintlier. Yikes. This group can make a HUGE difference in this regard. Here’s a great test that basically sums up every code of conduct in the world: Don’t do it if your mom wouldn’t approve. Be ethical.
Want to make the industry look bad? Don’t know the law. Want to get sued and spend lots and lots and lots more time and money with lawyers? Don’t know the law. Ignorance of the law truly is no excuse. Listen to your lawyers.
And the absolute #1 legal nightmare. Treating people badly. That’s the basic common thread in virtually lawsuits. Want fewer lawsuits? LOVE your employees. Want fewer unions? LOVE your employees. Want less government regulation and investigation? LOVE your employees. Want more engagement, productivity, retention and profit? LOVE your employees. Times are tough. Treat everyone around you the way you’d like to be treated – with dignity and respect … and LOVE .
And now to drive all these points home, please rise Scientific studies show that you’re 83% more likely to remember something if you sing it. So we’re going to do a little sing-along, But you have to do it enthusiastically. This is very serious scientific stuff. The govt is watching. Anyone caught not singing will be immediately carted off to prison.
Mark Toth Chief Legal Officer ManpowerGroup North AmericaThursday, March 15, 2012