1. with
Mark Toth
Chief Legal Officer
North America
January 31, 2013
2. General Information
• Share the webinar
• Votes (polling questions)
• Rate (before you leave)
• Attachments (download)
January 31, 2013
3. Audio Problems?
The audio for this event is streaming
to your computer. If you can‟t hear
through your computer speakers:
US Dial-in Number: 1 877 465 4510
Passcode: 370 615 75#
January 31, 2013
4. Earning HRCI Credit
To receive 1 HRCI for this
webinar, participants must
attend the webinar in its entirety
(one person per computer).
January 31, 2013
5. with
Mark Toth
Chief Legal Officer
North America
January 31, 2013
6. Stay Out Of Jail in 2013
LEAST
WHAT ARE JAIL-FREE LIKELY
WHAT‟S WHAT‟S
YOU ACTION TO BE
NEW? NEXT? IMPRISONED
THINKING? PLAN
CONTEST
7. Official Disclaimer
The presentation you are about to witness is intended
as general commentary only and should not be relied
upon or construed as legal advice. The views
expressed are solely those of the presenter
and not of ManpowerGroup.
Failure to stay awake for the entirety of this
presentation could result in long-lasting side-
effects, including litigation headaches, recurring
nightmares and/or severe gastrointestinal discomfort
from having to spend too much time with lawyers.
Please consult with your own HR and Legal
departments before making any major policy and/or
procedure changes.
You have been warned.
8. Tweet along:
#mpwebinar
Follow Mark on Twitter:
@manpowerblawg
Visit Mark‟s Blawg:
marktoth.com
Find us on Facebook:
facebook.com/manpowerUS
12. Question Is complying with employment laws
getting easier or more difficult?
Really very extremely easier 0%
Somewhat easier 3%
No change 11%
Somewhat scarier 22%
Really very extremely scarier 64%
Source: ManpowerGroup Employment Blawg
13. Question Are you seeing an increase in
employment law claims?
Yes, substantial increase 3%
Yes, moderate increase 30%
No change 65%
No, moderate decrease 1%
No, substantial decrease 1%
Source: ManpowerGroup Employment Blawg
14. Employment Law Thermometer
FMLA 21.0%
ADA 13.2%
Firing 12.3%
Wage & Hour 11.5%
Hiring 7.8% Discrimination 7.5%
Investigations 6.6%
Social Media 6.2%
Unions 4.0%
Harassment 3.7%
Source: ManpowerGroup Employment Blawg
15. What ONE thing
concerns you most
about the world of work
in 2013?
20. What do YOU think?
What percentage of employees
would fire their bosses right now?
A. 36%
B. 56%
C. 76%
D. 96%
21. What do YOU think?
What percentage of employees
would fire their bosses right now?
A. 36%
B. 56%
C. 76%
D. 96%
Source: Monster.com
22. What do YOU think?
What percentage of your employees
are thinking about leaving your
company right now?
A. 26%
B. 46%
C. 66%
D. 86%
23. What do YOU think?
What percentage of your employees
are thinking about leaving your
company right now?
A. 26%
B. 46%
C. 66%
D. 86%
Source: Right Management
24. 1/25 bosses
= psycho
80% 32%
sedentary workweek
increase
$300B
33% 62%
chronically workload
overworked increase
Sources: Dr. Paul Babiak, Pennington Biomedical Research Center,
Kronos, Families & Work Institute, Harris Interactive
49. True or False?
Union membership declined more in
President Obama‟s first term than in
President Bush‟s two terms combined.
A. True
B. False
50. True or False?
Union membership declined more in
President Obama‟s first term than in
President Bush‟s two terms combined.
A. True
B. False
Source: Bureau of Labor Statistics
59. MOST CREATIVE EXCUSES FOR MISSING WORK
“My dog had a nervous breakdown.”
“My toe was stuck in a faucet.”
“I was upset after watching The Hunger Games.”
“I was bitten by a bird.."
“I was sick from reading too much.”
“My sobriety tool kept my car from starting.”
“My hair turned orange.”
“I forgot you hired me.”
2012‟s
“I was suffering from a broken heart.”
Source: CareerBuilder
61. Zombie Nation
40.6M workplace zombies
$63.2B lost productivity
7.8 days lost
60% nightly sleep problems
9.6% asleep right now?
Sources: Harvard Medical School, National Sleep Federation,
Centers for Disease Control & Prevention,
"Insomnia and the Performance of U.S. Workers”
62. Tip of the Day
Get some
ZZZZZZZZZs.
(Just not now, please.)
63. FMLA in a Minute
Guidelines for Adult Children Care
Facebook Festival Frolic = FMLA Fraud Firing
New DOL FMLA guide
68. OSHA in a Minute
Tomorrow: OSHA 300A
Coming soon: 1,260 Inspections
Additional infectious disease regs?
Injury & Illness Prevention Program (I2P2)
Stricter reporting obligations
69. HIPAA in a Minute
New final omnibus rule
September 23: New privacy notices
Amend business associate agreements
Not all violations = security breaches
71. New FLSA Stuff
Misclassification Initiative: 11,400 + 80%
WHD: “Do you know the law?” survey
Independent contractor amnesty
Exemption for domestic service
“Right to Know” Rule?
73. New SM Stuff
75% use SM but <10% trained
Facebook makes you fat
FaceWash
weknowwhatyouredoing.com
Glassdoor.com: crazy interview ?s
Sources: SilkRoad, Keith Wilcox,
Columbia Business School, Glassdoor.com
74. Quarterly SM Index
Do you currently use social media
@ work?
A. Yes
B. No
C. What‟s social media?
75. Quarterly SM Index
What SM tool do you use most
@ work?
A. Facebook
B. Google+
C. LinkedIn
D. Twitter
E. Other
76. What do YOU think?
How do those about to enter the
workforce rank the following in order
of importance?
A. Social Activities, Romance, Music, Internet
B. Internet, Social Activities, Romance, Music
C. Music, Social Activities, Internet, Romance
D. Romance, Internet, Music, Social Activities
77. What do YOU think?
How do those about to enter the
workforce rank the following in order
of importance?
A. Social Activities, Romance, Music, Internet
B. Internet, Social Activities, Romance, Music
C. Music, Social Activities, Internet, Romance
D. Romance, Internet, Music, Social Activities
Source: Cisco
81. Prison in 2013 Plan
Don„t open the Tool Box
Don‟t visit the EL Library
Don‟t sign up for Mark‟s alerts
Don‟t follow Mark on Twitter
Don‟t visit the Blawg every 0.3 seconds
82. Prison-free in 2013 Plan
KNOW THE LAW
FOCUS ON KEY PRIORITIES
Known violations
Systemic issues
Wage & hour
EEOC priorities
INVESTIGATE & DOCUMENT ALL CLAIMS
BEWARE RETALIATION
LOVE YOUR EMPLOYEES
83. On the Blawg …
LEAST LIKELY TO
BE INCARCERATED
CONTEST
84. Employment Law SING-A-LONG
ManpowerGroup | Halloween 2012
85. 2013 won‟t 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
ManpowerGroup | Halloween 2012
86. The law, it‟s always a-changing
With new acronyms every day
But if you visit my Blawg
You won‟t be in the fog
And big verdicts you won‟t have to pay
ManpowerGroup | Halloween 2012
87. So, 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
ManpowerGroup | Halloween 2012
88. Don‟t put things off til tomorrow
Yes investigate right away
Don‟t procrastinate
Cuz the more that you wait
The more you will have to pay
ManpowerGroup | Halloween 2012
89. If your brain‟s too full to remember
All the stuff we just covered above
There‟s one little word
That sums up what you heard
Love love love love love love LOVE!
ManpowerGroup | Halloween 2012
90. So, 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
ManpowerGroup | Halloween 2012
92. Did you watch this webinar as a recording?
Please request your certificate at
INSERT NEW ICON
www.manpowergroup.us/requesthrci
Editor's Notes
Ellen
Ellen
Ellen
Ellen
Mark: Thanks, Ellen. Hello everyone and thank you for joining us!For the next __ minutes and __ seconds we’ll tell you everything you could possibly ever want to know about What’s New and What’s Next in Emp’t Law for 2013. As always, we really want you to get your money’s worth so we’re going to go fairly fast to make sure we cover everything. But don’t despair. If you miss anything the full PPT with all my notes plus a recording of the webinar plus a SlideShare version and much much more will be available for your reading pleasure on my blawg.
Well, here’s our official new year’s resolution: to help you stay out of jail in 2013.Here’s what we’ll cover today to help achieve that goal. First, we’ll look at some of our pre-webinar survey results to see what YOU are really thinking and feeling. Then we’ll dive right into everything that’s new and next in the wonderful world of work. We’ll then wrap things up with our Stay out of Jail Action Plan. And then immediately after the webinar we’ll have our least likely to be imprisoned contest where the first person to answer our quiz questions correctly will get a valuable prize. To help keep you awake throughout today’s webinar, we’ll mix in a variety of poll questions, tweet-o-ramas and text-o-ramas for valuable prizes as well. And, if you’re nice, we might even sing you a song. So stay tuned for that.
And now here’s our official disclaimer.[Read fast] In other words, you can’t sue me, [introducer], ManpowerGroup or anyone else based on anything you hear or see here today.
To further enhance your chances of staying out of jail, we’re giving you numerous ways of absorbing today’s message thru a variety of SM. You can tweet along with today’s festivities using the hashtagmpwebinar. You can follow me on Twitter @manpowerblawg – b-l-a-w-g. You can visit my blawg at marktoth.com and you can find us on Facebook at the address you see there on the screen.
We’ll also post on my Blawg our 187% free EL Tool Box. Includes a glossary to help decode the alphabet soup of employment laws; cheat sheets on every major employment law; an investigation checklist; termination tools; an overview of wage and hour basics; tools for reducing legal fees and much much more.
On the Blawg you can also find the World’s Most Fabulous Employment Library, which is open 24 hours a day 7 days a week 365 and a quarter days a year (which covers all leap years just in case you’re wondering). In it you can find a wealth of information on literally every employment law topic in the history of the universe. And. All. For. Free.
Before today’s webinar, we reached out and asked you a series of ?s to take your temperature on a few topics. Thanks to the more than 1200 of you who responded. Here’s what you said …
The first question we asked was: Is complying with emp’t laws getting easier or more difficult? Here’s how you responded. By far the #1 answer was “really very extremely scarier,” with nearly two-thirds of the votes. If you add that to the second vote-getter “somewhat scarier,” the sad reality is that 86% of you think compliance is getting harder while only 3% think it’s getting easier. Yikes.
Here’s our next question, ourquarterly EL litigation index. We asked as we do each quarter: Are you seeing an increase in emp’t law claims? 33% of you report an increase vs only 2% of you reporting a decrease. In other words, the number of you seeing an increase is 16-and-a-half times greater than those seeing a decrease. That’s another … yikes.
We also asked you to identify the specific area of emp’t law that currently gives you the most headaches. For the first time ever finishing #1 was FMLA with 21.0% of the votes. Next was ADA with 13.2%. In other words, the top two headache-inducers are medical issues. We’ll talk about those a lot today. Next was firings with 12.3% and then wage & hour with 11.5%. And you can see the rest of your top ten there on the screen. We used this thermometer to guide the content for today’s webinar to make sure you’re getting what you really need. [5:00]
Our final question was the one that I find the most interesting. We asked: What ONE thing concerns you most about the world of work in 2013. We got a HUGE variety of answers. Here’s basically what you said …
Everything. That’s a direct quote from several of our respondents.A few other direct quotes: The “many ways we can be held liable by all the agencies with 3 initials or more in their names.” Another one: “Increasing compliance complexity with decreasing resources.” There were lots of concerns about employee morale. A couple of quotes: “Lack of respect and trust” pervading the workplace. Historically “high levels of stress among employees.” Lots of comments about skyrocketing litigation as well, including this statement: “The law is always for employees – even when they are blatantly wrong.” And there were lots of comments saying “social media, social media, social media.” Here’s a summary of what you said on one slide ….
As you can see, the diversity of responses was pretty striking. We’ll publish a more comprehensive summary of the full results on the Blawg. We scientifically used the frequency of your responses to determine today’s content. So, everything you’re going to see from here on out is in response to the priorities you articulated.One thing we WON’T be talking about today is the Affordable Care Act. If we did, we’d have no time for anything else and we’d all be here til sundown and beyond. There are a lot of great resources out there already on the ACA and entire webinars devoted solely to that subject. I’ll publish a resource list on my Blawg for those who want more info on that topic.
As always, we’ll start with the BIG picture and focus on that as weproceed so we don’t get lost in all the all the legal mumbo jumbo …
That brings us to our first Tweetorama. The first person to tweet the correct answer to this question using our official Blawg handle you see there on the screen will win a valuable prize.It’s a question we’ve asked before but we want to see if our message is sinking in. If you had to boil all of empt law down to ONE word, what would it be? Again: [read ?] Tweet your answer for all the world to see using the handle @manpowerblawg. That’s @manpowerblawg. B-l-a-w-g. Good luck.
***POLL*** While you’re mulling that over, here’s a little poll to see how atuned you are with your employees. [Read]
The correct answer? 76% -- more than 3 out of 4 -- would fire their boss right now. If you’re a boss, keep that in mind as we proceed to our next question. For those of you who voted, you may need to click on the little “close” box to clear the poll from your screen. [9:30]
***POLL*** [Read] I’m sure for ManpowerGroup and my department specifically the number is more like negative 396% but what about everyone else?
According to a new survey by ManpowerGroup’s own Right Management, Right Management, an unprecedented 86% of U.S. employees say they intend to look for a new job in 2013. Wow. The main driver, according to the researchers: Booming stress: “The constant drumbeat of downsizing coupled with the expectation to do more with less has put an added amount of stress on workers.” A study that came out last week concluded that the #1 reason people consider bolting is a lack of stability.
We’re ALL strrrrrrrrresssssed. Here’s a graphic representation of some of the latest depressing statistics. 1 in 25 bosses is a certified psychopath (4 times higher than average). We’re working 32% (8 hours a week) harder than our parents. 62% report a workload increase in the past 6 months. 33% are officially chronically overworked, medically speaking. And 80% of jobs are now officially sedentary, which makes them dangers to our health, specifically our hearts. The end result of all this stress? A whopping $300 billion is lost each and every year due to stress-related absenteeism, burnout,decreased productivity, workers’ comp claims, turnover, insurance and other costs.
The bottom line? Your employees are really very extremely incredibly disgruntled. Which leads us to our primary goal today …
To get your employees GRUNTLED.
That’s a segue to the answer to our first Tweet-o-rama. The absolutely key to employee gruntlement in one word: LOVE. This has been the central message of our last bazillion or so webinars so hopefully the message is starting to get thru. If you really think about it, the law is there basically because we don’t do this whole LOVE thing very well. If we treated each other how we’d like to be treated -- with kindness and dignity and respect – we wouldn’t have to have all of those annoying laws and regulations to keep track of and lawyers would all be unemployed. It’d be a beautiful thing. So, want fewer regulations? LOVE your employees. Fewer disputes? LOVE your employees. Fewer lawyers? LOVE your employees. More productivity and engagement and downright happy employees who don’t sue you in massive class actions that take all your time and effort and money? LOVE your employees. It’s that simple.
That’s the big picture. Now it’s time for our next topic: How to get sued BIG now. That’s simple, too. Don’t LOVE your employees. [13:00]
***POLL*** [Based on the latest data, read]
The answer? False.
Less than half now, according to the latest edition of Jury Verdict Research.
What are your odds for different types of suits? Employers fare best in age suits, followed by disability. Race suits are a 50-50 toss-up. Sex discrimination suits are where Ers have the lowest chances of success, at only 36%. Interesting.
So, how much will you have to pay? Here’s our latest and greatest breakdown of real-life cases right now and how much you’ll have to pay. Can be very helpful when it comes to settlement discussions.Starting at the left. If your case has just 1 plaintiff and really no horrible facts, which is about a third of all cases, expect to pay between 0 and fifty thousand dollars. If you have 1 plaintiff but horrible facts – 28% of cases – expect to pay between 51 and 100 thousand. If you have a pattern or systemic case with more than 1 plaintiff and/or really horrible facts – 39% of the cases out there – expect to pay between 100 thousand and 1 million. And if you have a big pattern with lots of plaintiffs and/or realllllllllly horrible facts, expect to pay more than a million. Thankfully that’s only about 1% of all the cases out there. [15:30]
***POLL*** [True or false: Class action monetary recoveries decreased last year.]
Surprising but true, as our next slide shows …
The number on the left represents the top 10 wage and hour settlements in 2010 before the Supreme Court’s landmark Dukes v WalMart case. For those who have forgotten what the Dukes case was all about, could have been the largest employment discrimination case in world history. But the Court ruled that the gender-discrimination suit could not proceed as one massive class action because the plaintiffs didn’t have enough in common to join all of their claims into a single case. Employers all over the country rejoiced but wondered if it would have much of an effect.It has. The case was cited in 541 court decisions just in the past year. And, as the number on the right shows, the top 10 settlements from 2012 were far below those in the year preceding Dukes: a mere 14.2 percent to be exact.
But that doesn’t mean you should relax. Here are some eye-popping statistics. Wage and hour suit filings were up a rather significant 893 last year, to 7672. In fact, if you want to get sued big and lose lots of time and money, wage and hour violations are the #1 way to do that. But big #s weren’t limited to wage and hour. The # of charges filed with the EEOC was 99,412, the second highest in history. Retaliation was the #1 most common claim again at 38% of all charges. Race was #2 and Sex was #3. Another interesting fact: the # of lawsuits filed by the EEOC was actually down but that’s a bit misleading as the next arrow indicates. The EEOC is pursuing more big-ticket systemic issues rather than smaller single-plaintiff actions. So fewer total suits but more high-impact ones. That’s evidenced by the last number. The EEOC’s monetary recoveries were up 4 times over the prior year at a whopping $365.4M. [18:30]
So, what big court rulings are anticipated this year? The Supremes are looking at several big employment issues. First, they’re considering the burden of proof for retaliation cases. Currently a split among courts. The question: Is it enough that retaliation was one of several motives or does the EE have to prove that it was THE motive? Pretty big deal. Watch for that soon. The 2nd issue the Supremes are analyzing: What exactly is a supervisor? If they expand the definition, could lead to lots more employment decisions being the basis of lawsuits. So watch for that, too. Third, they’re looking at the scope of affirmative action at the university level due to discrimination suits filed by non-minority applicants. Could have a big symbolic effect on discrimination law depending on which way they rule. As for the last 2 on the screen, recent statutes have made it easier for employees to get whistle-blower recoveries and easier for employers to protect their trade secrets. So might be seeing increased litigation in those areas.
So, to sum up this section, if you reallllly want plaintiffs’ lawyers to love you and sue you a lot, here are five easy steps you can take right now. First, ignore the law. Don’t wake up from the nap you’re taking right now and don’t update your policies or procedures based on what you hear. Second, plaintiffs’ lawyers LOVE it when you ignore your own policies, which, unfortunately, employers do all the time. Please don’t do that. Third, don’t investigate promptly and thoroughly, and document poorly. They LOOOOOVE that. Fourth, make sure you discipline your employees inconsistently. And last and most importantly, if you REALLY want to get sued big, lie. Cover things up. And especially at high levels of the organization. Do all those things and you’ll have no trouble spending lots of time in court. [21:00]
So, that’s what to expect in lawsuit land in 2013. Next we’ll look at the exciting new laws that could be coming your way.
All of what you see on the screen has been discussed for quite some time. Given the partisan deadlock in DC could all end up going nowhere but it’s best to be thinking ahead. A quick word about each. ENDA would add sexual orientation and gender identity as federally protected classes. Most experts believe a compromise bill will be successful at some point so that could very well become a reality in the near future. The PFA would amend the FLSA to prohibit pay discrimination on the basis of sex, race or national origin. Employers would be required to provide equal pay for jobs that require comparable skill, responsibility and working conditions. Experts are less convinced this act will make it. The Healthy Families Act is in a similar boat. That act would require employers to provide up to 56 hours of paid sick leave each year. The Comprehensive Immigration Reform Act made lots of news this week. On Monday, a bipartisan group of Senators called the Gang of 8 unveiled their framework for comprehensive reform. On Tuesday, the President urged that QUOTE “the time is now” and more or less gave Congress an ultimatum. Among other things, the Senate proposal would provide a path to citizenship for unauthorized individuals currently living in the country. Also includes a new mandatory verification system, new documents to prove work authorization and improved processes for obtaining work visas. Getting something thru the House will me tough but Speaker Boehner hasn’t completely ruled out some kind of reform. Last but not least is the Employee Free Choice Act which terrified lots of employers early in the President’s first term. It’s unlikely that the Act itself will pass in its entirety but the NLRB is attempting to put bits and pieces in place as we’ll discuss in a moment.
Want to stay out of court? One of the very best ways is to do what the EEOC says, which is …
This. These are what the EEOC itself says are its enforcement priorities, based on its latest Strategic Enforcement Plan. Now more than ever the EEOC will looking at systemic issues in each of these categories: Hiring practices (including screening and testing), Vulnerable Workers, disabled employees covered by the ADA, LGBT employees, those who lack access to the legal system, harassment victims and pregnant employees. Want the EEOC to come after you? Mistreat employees in one or more of these categories and they just might.Somewhat ironically, just this week the EEOC lost a case in that first category there. The EEOC alleged an employer’s use of credit reports in the hiring process was racially discriminatory. The EEOC used a pretty interesting method to try to prove its case. It used an expert who utilized “race raters” to determine the plaintiffs’ races. The expert used a panel of five people to determine if photos of individuals looked QUOTE African-American, Asian, Hispanic, White or Other. If 4 out of the 5 agreed, for example, that someone’s photo looked White, then voila, that person is white. Here’s what the court said: QUOTE “It is clear that the EEOC itself frowns on the very practice it seeks to rely on in this case and offers no evidence that visual means is a method accepted by the scientific community as a means of determining race.” Pretty interesting. [26:00]
One other significant recent development: Department of Labor Secretary Hilda Solis left her post on January 23rd. If you recall, she made a rather famous there’s a QUOTE “new sheriff in town” comment when she first came into office. And she made good on it, too. There’s been far more enforcement of the law under her watch. That’s likely to continue so don’t relax just because she’s left town.
That brings us to our next topic, What’s new at the NLRB? Lots of intriguing developments …
***POLL*** First a question, [read]
Some employers still don’t realize that the NLRB and the NLRA it enforces apply to both unionized and NON-unionized companies. If you don’t have a union that doesn’t mean you can ignore this section.
Here’s some rather big news. Last week, a federal court ruled that the President’s recess appointments of NLRB members were unconstitutional. That throws the NLRB and all of its rather controversial rulings and rule-making from last year into complete turmoil. Of course, the Administration will appeal but a pretty major blow. Will undoubtedly result in lots of political posturing and legal wrangling on both sides for months to come.
***POLL***Here’s our next question [read]
Rather surprising but true …
In fact, private sector union membership is now at its lowest percentage in 76 years. There was a drop from 11.8 when President Obama took office to 11.2% now. More than the dip in President Bush’s two terms combined. Strange.
****POLL***Another question for you. Did NLRB unfair labor practice charges and monetary awards go up or down in 2012? [30:00]
Despite all the hand-wringing by employers and all the publicity, ULP charges actually went down 3% and monetary recoveries declined from $60.5M to $44.3M last year. Will probably be even less this year given the NLRB’s now-uncertain future.
While you’re waiting for the NLRB to sort itself out, here’s a handy one-page guide to every recent NLRB decision. Basically, anything that infringes on the blue box you see there, the NLRB will have a problem with. Protected concerted activity is the key concept. Again, applies in union AND non-union settings. Any time you have more than one employee discussing virtually anything related to wages or work conditions you need to be careful. And as many employers are discovering, the rule really isn’t any different in cyberspace. Whether it’s in the cafeteria or on Facebook be very careful about punishing employees for anything that could be protected concerted activity. For more, check out our handy SM Starter Kit in the EL Tool Box. Lots more there on this topic.
Even before last week’s big news, some of the NLRB’s greatest hits were on hold. Its quickie election rules – a key part of the Employee Free Choice Act – were already on hold thanks to a federal court. Same was true of the NLRB’s mandatory union rights posting requirement. And, now, everything including apparently the NLRB itself, are on hold for the time being.
That brings us to ADA, FMLA, HIPAA, OSHA … Yikes!Loooooots of medical issues out there …
There’s lots of stuff in the Tool Box to help make you yikes-free. Handy one-page cheat sheets + tips on each major law and how they all interact with each other which isn’t always easy to figure out. We get lots of questions in this area so hopefully you’ll find lots of practical answers there.
Lots of medical issues in the news. Here’s one that hit the headlines just last week that’s the subject of today’s Text-o-rama. The THIRD person to text the correct answer to the # you see there on your screen 414.751.0126 that’s 414.751.0126 will win a prize. [Read]
While we await those responses, here’s an interesting list. One of the areas in which you said you struggle most is leave abuse. To help you avoid getting taken advantage of, here are the Top 10 Most Creative Excuses for Missing Work from the past year. Hopefully you haven’t heard these from any of your employees or tried them yourselves … [read]. Number one: My dog had a nervous breakdown. That’s not covered by the ADA. At least not so far.
OK, here’s the answer to our Textorama. According to the fine folks at Harvard Medical School, there’s an absolutely overwhelming new health epidemic sweeping the workplace: Insomnia. 3/10 of us – more than _____ of you on this call – are officially workplace zombies.
Some more zombie stats. 40.6M of us are officially sleep-deprived. That results in 63.2 billion in lost productivity each year or 7.8 days lost for each and every one of us zombies. A whopping 60% of us report nightly sleep issues and 9.6% of us fall asleep at random inappropriate junctures throughout the day like – hopefully not – right now. Great quote from one of the researchers: "If we treated machinery like we treat the human body, there would be breakdowns all the time," said James Maas, a former Cornell University psychologist and author of "Sleep for Success.“
So here’s our official Tip of the Day: Get some Zs. Just not now, please.
Here’s the latest on your #1 reported problem area, the FMLA. On Jan 25 DOL issued new guidelines for employees who care for adult children. In short, the FMLA covers care of adult children incapable of self care because of a mental or physical disability regardless of when that disability arose. The guidelines remind employers that under the ADAAA, the term disability QUOTE shall be construed in favor of broad coverage. Second, one recent case showed that Ers can actually win FMLA fraud cases every once in awhile. In that case, an employee requested intermittent leave for back pain which left her QUOTE completely incapacitated. A few weeks into the leave, however, lots of photos of the EE smokin and drinkin and generally whoopin it up at a Polish beer festival appeared all over Facebook. Her employer investigated and then fired her. She took ‘em to court but lost, with the court saying that the employer had a QUOTE honest belief that her behavior in the photos was inconsistent with her claims of total disability.” So if you honestly belief someone is faking FMLA you don’t have to put up with it. The third new thing in the FMLA world is a handy new guide …
That looks like this. It’s a QUOTE “plain language booklet designed to answer common FMLA questions and clarify who can take FMLA leave and what protections the FMLA provides.” Your employees are reading it — so should you. Specific questions and answers include: Who can take leave? When can they take it? How do they take it? What rights do employees have? What obligations do employers have? How do the certification and return-to-work processes really work? It also contains a handy flow chart to determine FMLA eligibility and maps out the entire leave process. Good stuff to help you do the right thing. [37:30]
And now here’s what’s new with the ADA in 60 seconds or less. The DOL recently launched a new Workforce Recruitment Program, described as a database of nearly 3,000 ready-for-hire candidates with disabilities. As a complement to that effort, Cornell University has created a free online employer tutorial designed to foster an ADA-inclusive workplace. Also, the EEOC released a new Q&A fact sheet on domestic violence, with several examples where the ADA might apply. There’s lots more on all 3 of those on the Blawg if you’re interested. And last, a recent case made the news in which a teacher of small children filed an ADA claim alleging that she suffered from pedophobia – fear of small children. The point? Never ever assume that a condition isn’t a disability under the ADA which – again – is broadly construed in favor of coverage. [39:00]
Here’s a handy checklist on how NOT to do the ADA, based on all the latest cases. First, have an inflexible one-size-fits-all leave policy that doesn’t allow for individual variations and accommodations. The EEOC already has a $20M settlement in such a case. Next, make snap judgments that something you’ve never heard of isn’t a disability. Third, don’t interact with the employee in a meaningful way. Next, don’t accommodate the employee even if it’s fairly reasonable. And last, do like far too many employers have done and memorialize your discriminatory acts in writing for future judges and juries to see.
And here’s how TO do the ADA. Again, it’s all about LOVE. Treat those with disabilities the way you’d like to be treated. The law requires a graceful interactive DANCE depicted on your screen there. Discuss discussdiscussdiscuss and then discuss some more. It should be a good faith open dialogue that balances biz needs AND EE needs. Actually engage and interact. Both sides can win.
Here’s what’s new in OSHA. AllErs maintaining OSHA 300 logs for workplace injuries and illnesses must post their 2012 summary … tomorrow. We’ll understand if some of you hang up now. The form is available on the OSHA web site. OSHA has also issued its Site Specific Targeting Plan: those w/above-average injury histories will be on the inspection list. OSHA has also indicated it intends to move forward on additional infectioous disease regulations in health care and other high-risk industries. It also will likely move forward by the end of 2013 on one of its biggest priorities: a requirement for employers to establish an Injury and Illness Prevention Program or I2P2. Also on the table are stricter reporting obligations including reporting in-patient hospitalizations w/i 8 hrs (now: only if 3 or more Ees) + amputations w/i 24 hrs.
And here’s HIPAA in a minute. Earlier this month, the Dept of Health and Human Services issued its final omnibus rule regulating privacy for health information. It’s almost as long as War and Peace at 500 pages and affects HIPAA, the HITECH Act and GINA. What’s it say? Not all that much, surprsingly. Mostly aimed at health care providers. For other Ers, same basic compliance framework.Some good news for Ers: the rule recognizes that not every HIPAA violation is a security breach requiring breach notification which can be costly and time-consuming. 4 factors: (1) nature and extent of the information released, (2) who exactly used or received it, (3) whether it was actually seen by anyone and (4) the extent to which the risk was mitigated. Pretty good test actually. [43:00]
So that’s it for medical leave law. And now: How to avoid getting sucked into the wage & hour abyss …
What’s new? Now is not the time to misclassify employees. The DOL is targeting all misclassifications including independent contractors under its Misclassification Initiative. You can see the big #s there: 11,400 actions and an 80% increase in monetary recoveries. The DOL is also proposing a nationwide employee survey to see just how much they really know about wage and hour laws. The DOL also recently added independent contractor violations to its “misclassification amnesty” program. Few employers are taking advantage of it since not all branches of gov’t are participating. In late December, the DOL announced its intent to narrow the exemption for domestic service to increase the number of those who are eligible for overtime. And last, the DOL plans to use the “Do You Know the Law” survey to justify its proposed “right to know” rule. That rule would require employers to notify employees of their rights under the FLSA, to do classification analyses of current employees and to provide employees with a copy of the analysis. That particular proposed rule has been postponed several times but is expected to start gathering steam later this year perhaps. [45:00]
As our survey results showed, people continue to be confused about social media and the law …
Here are the very latest social media happenings. According to the latest studies, 75% of employees now access SM like Facebook and Twitter while on the job, with 60% accessing it multiple times a day. Unfortunately, less than 10% of those employees get training on the proper use of SM in the workplace. That’s a pretty big gap.According to a recent Columbia Business School study, all this SM use – specifically of Facebook – is making us fat. So want to lose weight in 2013? Drop Facebook. More on Facebook: A new app called FaceWash promises to scrub clean your and your Ees’ Facebook pages by removing words considered offensive – sex, drug and other references. Can even input your own cringeworthy words. Based on what I’ve seen if peeps start actually using this tool, could reduce the volume of info on Fbook by as much as 98%. Which could be a good thing. Want to find out what your Ees are REALLY thinking and doing? Check out weknowwhatyouredoing.com. It compiles SM updates from Ees into several interesting categories: “Who wants to get fired?” “Who’s hung over?” and “Who’s taking drugs?” and then displays ‘em for all the world to see. Some examples: QUOTE I hate my boss followed by 4 exclamation points. Another: QUOTE Wake and bake followed by 12 exclamation points. Might want to remind your Ees and yourself to update your privacy settings.And last: Looking for good interview questions? Glassdoor.com has compiled its annual list of strangest interview questions. Actual real-life questions that have been asked include: “How many cows are there in Canada?” “If you could be any kitchen utensil, what would it be?” and my personal favorite: “A penguin walks thru that door right now wearing a sombrero. What does he say and why is he here?” So check that out.
***POLL*** Now it’s time for our quarterly SM Index. [Read] Last Q 59% yes. [50:00]
***POLL*** [Read]If your answer is “other” please tweet or text us what “other” you use. To tweet, again it’s @manpowerblawg and the text # is 414.751.0126. Last Q: LI: 57. FB: 26: G: 8.
***POLL*** Here’s another question [read] [51:00]
***POLL***If you’re under the age of 22, the Internet apparently beats listening to music, getting together w/friends and even dating. Wow. As the parent of college-age twins, I’m officially concerned for the future of our world.
Now it’s time for the lightning round. What else is new out there for 2013?
Hopefully you’re all aware of the first item. New Fair Credit Reporting Act forms required Jan 1 – or about 30 days ago. Nothing major but great chance to refresh to make sure know law. Next: OFCCP has 2 big things on the agenda that are expected to start heating up by April 2013. Proposed rules that would broaden federal contractor obligations for employing veterans as imposing a 7% hiring goal for individuals with disabilities. The OFCCP is currently deciding whether to incorporate various employer concerns that have been expressed. OFCCP also has in process the implementation of a new compensation data collection tool. That effort still seems pretty far from being finalized. Next: Veganism might be a religion requiring accommodation, according to at least one court. In that case, a vegan employee was fired after refusing a flu shot on the basis that chicken eggs were used in the preparation of the vaccine. The message: Be careful assuming something’s not religion just cuz unusual. Last: lots of press about an Iowa court that recently refused to punish an employer that fired a female employee after 10+ years because she was QUOTE simply irresistible and a male manager’s wife was afraid she was basically too hot for her husband to ignore @ work. In short, the court agreed with the wife and dismissed the employee’s suit. I don’t recommend that you try that in your workplace, however.
Now it’s time to start wrapping things up with our official 2013 Stay out of jail ACTION PLAN.
First, here’s a handy checklist of how TO go to jail. [Read] It’s that simple. Last one is very important. For example, if you didn’t visit the Blawg this week you probably would have no idea that tomorrow is Working Naked Day. Don’t want to miss valuable information like that.
Here’s how to stay prison-free. First, and this is why you’re all here, KNOW THE LAW. Update your policies and procedures – plaintiff’s attorneys love it when you don’t. Next: Focus on key priorities we identified here today. Address any known violations of the law first and then any system-wide issues. Next address any wage and hour issues, particularly misclassifications. And then make sure you’re solid on all the EEOC strategic priorities we discussed. Always always always investigate and document all claims promptly and thoroughly. And beware retaliation. It’s now the #1 discrimination claim and often the easiest to prove.And last – above all else LOVE your employees. Treat ‘em the way you’d like to be treated. With dignity and respect. If you don’t, they just might sue you.
Immediately following this webinar we’ll have our Least Likely to be Incarcerated Contest on the blawg – that’s marktoth.com. Answer the questions correctly and you just might win a valuable prize.
And last but not least, we’ll close today’s festivities with our new and improved 2013 Employment Law Sing-a-long. Research shows that you’re far more likely to remember something if you actually sing it. That’s why you remember the lyrics to bad 70s songs but not the rules of the FMLA. Please sing along with gusto -- the words will appear on your screen.
THANK YOU THANK YOU THANK YOU so much for your time, attention and participation – we really reallyreally appreciate it!And now, back over to Dan.
THANK YOU THANK YOU THANK YOU so much for your time, attention and participation – we really really really appreciate it!And now, back over to _____.
