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Employment Law Made Unscary

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Employment Law Made Unscary

  1. 1. EMPLOYMENT LAW MADE UNSCARY with Mark Toth Chief Legal Officer North America
  2. 2. Official Disclaimer The presentation you are about to witness should not be relied upon or construed as legal advice. 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. 2
  3. 3. Follow me on Twitter: @manpowerblawg Visit my Blawg: marktoth.com Sign up for my free alerts: at your seats 3
  4. 4. Reduce your terror level What Keeps YOU Up at Night? 4 Smartest HR Person in the Universe Contest Law Made Unscary Stay Out of Jail To-do List FREE Stuff
  5. 5. Keep the monsters away 5
  6. 6. Open 24 / 7 / 365.25 World’s Most Fabulous Employment Law LIBRARY 6
  7. 7. What Keeps 7 YOU Awake at Night?
  8. 8. TOP 10 SCARIEST EMPLOYMENT LAW ISSUES 8 1. MEDICAL (22%) 2. TERMINATIONS (17%) 3. WAGE & HOUR (14%) 4. LITIGATION (12%) 5. HARASSMENT (10%) 6. INVESTIGATIONS (8%) 7. HIRING (7%) 8. UNIONS (4%) 9. IMMIGRATION (3%) 10. TECHNOLOGY (2%) Source: ManpowerGroup Employment Blawg
  9. 9. What spooks you most about the world of work In 2014? 9
  10. 10. 10
  11. 11. de-spook-ify 11
  12. 12. Smartest HR Person in the Universe CONTEST
  13. 13. The BIG picture
  14. 14. What percentage of employees would fire their bosses right now? A. 36% B. 56% C. 76% D. 96% 14
  15. 15. What percentage of employees would fire their bosses right now? A. 36% B. 56% C. 76% D. 96% Source: Monster.com 15
  16. 16. What percentage of your employees are thinking about leaving your company right now? A. 26% B. 46% C. 66% D. 86% 16
  17. 17. What percentage of your employees are thinking about leaving your company right now? A. 26% B. 46% C. 66% D. 86% Source: Right Management 17
  18. 18. 1/25 bosses = psycho 32% workweek increase 80% sedentary $300B 33% chronically overworked 62% workload increase Sources: Dr. Paul Babiak, Pennington Biomedical Research Center, Kronos, Families & Work Institute, Harris Interactive 18
  19. 19. If you had to boil all of employment law down to one word, what would it be? 19
  20. 20. 20
  21. 21. Fun with LAWSUITS 21
  22. 22. Get Plaintiffs’ Lawyers to LOVE You Lie Discipline inconsistently Ignore your policies Investigate + document poorly Ignore the law 22
  23. 23. DEAL or no? 23
  24. 24. WHO said it? 24
  25. 25. How Much Will YOU Pay? 32% 28% 39% $0-$50K 1 plaintiff + no horrible facts $51-$100K $100K-$1M Pattern +/or really horrible facts 1 plaintiff + horrible facts Sources: EEOC, Jury Verdict Research 1% $1M+ $1M+ Big pattern +/or Big pattern reeeeeeeally +/or reallllllly horrible facts horrible facts 25
  26. 26. Avoid the WAGE & HOUR abyss 26
  27. 27. What celebrity recently learned the hard way that even divas have to follow wage and hour laws? 27
  28. 28. LADY GAGA 28
  29. 29. 1. On-call time 6. Travel during work hours 2. Commute time 7. Changing in/out uniform 3. Wait time 8. Donning/doffing safety gear 4. Meals < 30 9. Walking from changing area 5. Travel non-work hours 10. Rest > 30 29
  30. 30. 1. On-call time 6. Travel during work hours 2. Commute time 7. Changing in/out uniform 3. Wait time 8. Donning/doffing safety gear 4. Meals < 30 9. Walking from changing area 5. Travel non-work hours 10. Rest > 30 30
  31. 31. Wage & Hour Checklist Tool Box Know the Law Time System Simple, accurate and enforced Train Managers and employees Complaint System Investigate promptly and thoroughly Audit Classifications, records and OT calculations Address Issues immediately, focusing on high risk first (systemic, CA) Consult Your favorite employment law attorney 31
  32. 32. NLRB Nervousness 32
  33. 33. True or False? The NLRB only has jurisdiction over unionized companies. A. True B. False 33
  34. 34. True or False? The NLRB only has jurisdiction over unionized companies. A. True B. False 34
  35. 35. What recent NLRB development has employers freaking out? 35
  36. 36. “Ambush” Election Rules 36
  37. 37. Every Social Media Case On 1 Slide “Protected concerted activity” Union or non-union >1 Wages / work conditions Same in cyberspace 37
  38. 38. Get SOCIAL MEDIA now 38
  39. 39. True or False? None of the laws that apply in the real world apply in the social media universe and therefore I can completely lose my mind and absolutely anything goes. 39
  40. 40. True or False? Absolutely False. 40
  41. 41. Same Old Test jobrelated jobrelated jobrelated 41
  42. 42. 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 42
  43. 43. 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 43
  44. 44. What percentage of men have viewed porn at work? A. 0 B. 2 C. 17 D. 25 E. 118 44
  45. 45. What percentage of men have viewed porn at work? A. 0 B. 2 C. 17 D. 25 E. 118 Source: Harris Interactive 45
  46. 46. 1 out of every ___ employees has forwarded a sex-related email at work? A. 50 B. 10 C. 7 D. 3 E. 2 F. 1 46
  47. 47. 1 out of every ___ employees has forwarded a sex-related email at work? A. 50 B. 10 C. 7 D. 3 E. 2 F. 1 Source: Harris Interactive 47
  48. 48. Which of the following is NOT an actual employee tweet? A. “Hate my job!! I want to tell my bosses how dumb they are and how meaningless this job is, then quit, and be happy!” B. “So my job was to test all the food at the new restaurant, can I just say, ughew. I’m going to taco bell.” C. “Smoking weed at work is so [expletive] great” D. “I’m really bummed that I’m working today, I asked off so I could study but my boss is a [expletive] who can’t read.” E. “I am working really hard right now and feel very fortunate to have a job.” 48
  49. 49. Which of the following is NOT an actual employee tweet? A. “Hate my job!! I want to tell my bosses how dumb they are and how meaningless this job is, then quit, and be happy!” B. “So my job was to test all the food at the new restaurant, can I just say, ughew. I’m going to taco bell.” C. “Smoking weed at work is so [expletive] great” D. “I’m really bummed that I’m working today, I asked off so I could study but my boss is a [expletive] who can’t read.” E. “I am working really hard right now and feel very fortunate to have a job.” 49
  50. 50. YOU be the judge Who wins? A. Employer B. Employee C. Neither 50
  51. 51. YOU be the judge Who wins? A. Employer B. Employee C. Neither 51
  52. 52. SM Searches Be Consistent Designate Searchers Limit Scope All candidates or certain categories/departments Same phase of interview process One employee, small group or 3rd party Not hiring manager Restrict to certain approved sites No posing, lying, fraud or demanding passwords No age, race, religion or other protected info Job-related, job-related, job-related 52
  53. 53. SM Searches Disclose Notify candidates that may use SM Disclose on applications and other docs Document Consistent process Note legit biz job-related reasons Follow doc retention policies 53
  54. 54. Social Media Starter Kit 54
  55. 55. ADA, FMLA, HIPAA, OSHA … YIKES! 55
  56. 56. Which of the following increases your chances of getting sued under GINA? A. Asking about family medical history B. Terminating an employee after a positive genetic test C. Commingling medical and other info D. Not adopting the EEOC’s safe harbor language E. Discriminating against employees named Gina F. All of the above except “E” 56
  57. 57. Which of the following increases your chances of getting sued under GINA? A. Asking about family medical history B. Terminating an employee after a positive genetic test C. Commingling medical and other info D. Not adopting the EEOC’s safe harbor language E. Discriminating against employees named Gina F. All of the above except “E” 57
  58. 58. What’s the #1 most headache-inducing law for employers right now? 58
  59. 59. FMLA 59
  60. 60. 2014’s MOST CREATIVE EXCUSES “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.” “I was suffering from a broken heart.” Source: CareerBuilder 60
  61. 61. FMLA in Plain English 61
  62. 62. Which of the following has NOT been recognized as a disability under the ADA? A. Fear of Getting Fired B. Internet Use Disorder C. Obesity D. Pregnancy E. Shy Bladder Syndrome 62
  63. 63. Which of the following has NOT been recognized as a disability under the ADA? A. Fear of Getting Fired B. Internet Use Disorder C. Obesity D. Pregnancy E. Shy Bladder Syndrome 63
  64. 64. An employee has been out on medical leave for 11 months. Your neutral policy is to terminate all employees who have been on leave for 12 consecutive months. If he doesn’t return in a month, can you terminate? 64
  65. 65. No (for 20 million reasons) 65
  66. 66. ADA How NOT To Have an inflexible leave policy Make snap judgments Don’t interact Don’t accommodate Put dumb stuff in writing 66
  67. 67. Discuss Discuss Discuss Discuss 67
  68. 68. 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. B. C. D. Fire him for inappropriate workplace behavior Do a crazy monkey arm dance in his honor until he returns Drug test him Give him a chance to explain his behavior 68
  69. 69. 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. B. C. D. Fire him for inappropriate workplace behavior Do a crazy monkey arm dance in his honor until he returns Drug test him Give him a chance to explain his behavior 69
  70. 70. An employee comes into your office at 4:59 on a Friday 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 IV hooked up to an espresso machine, (2) a fire extinguisher mounted to his head; (3) three-and-a-half weeks off each month and (4) your office. If you have time to make only one call, to whom should it be? 70
  71. 71. JOB ACCOMMODATION NETWORK jan.wvu.edu 800-526-7234 71
  72. 72. What is the #1 most common claim filed with the EEOC right now?
  73. 73. RETALIATION is #1
  74. 74. TERMINATION TROUBLES 74
  75. 75. Who wins? A. Employee B. Employer
  76. 76. Who wins? A. Employee B. Employer
  77. 77. Investigation Checklist Step One: Prepare Plan the investigation strategy Review relevant policies and handbook provisions Evaluate pros and cons of investigation Pick a competent and impartial investigator Analyze potential risk factors Review allegations and prep list of witnesses and questions Establish a confidential investigation file 77
  78. 78. Investigation Checklist Step Two: Investigate Interview the complaining employee first Now – don’t procrastinate View the site of the alleged incident Each relevant witness identified by the complaining party should be interviewed Supervisors should be involved to provide context Take the time to gather all potentially relevant evidence Interview the accused Gather potentially mitigating evidence and talk to witnesses named by accused Analyze all the evidence objectively Talk to an attorney about any potential legal issues End the investigation with a written report and appropriate communication 78
  79. 79. 11. Not telling real reasons 6. Emotion over facts 10. Poorly planned termination meeting 5. Not getting a release 9. Ignoring policies and contracts 8. Bad post-termination communication 7. Ignoring past practice 4. Inadequate documentation 3. Non-job-related factors 2. Not treating with dignity and respect 1. NOT firing someone who should be fired 79
  80. 80. Termination Review Employee Handbook Employment Agreement Collective Bargaining Agreement Personnel File Performance Appraisals Discipline Notices Manager Notes ALL other relevant docs 80
  81. 81. Termination Test Notice Rule Investigation Proof Consistency Penalty Reasonable notice of consequences? Related to (a) efficient and safe operations and (b) performance company should reasonably expect? Full, fair and timely? Sufficient evidence that guilty as charged? Rule consistently applied to all? Punishment fit the crime, considering (a) seriousness of offense and (b) service record? 81
  82. 82. Termination Meeting Who? Manager, HR, no 3rd parties (except union rep). Security? Outplacement? What? Manager: decision. HR: all else. Final pay + notice (some states). Where? In person. Not manager’s office. No projectiles. When? Mid-week #1, Friday #2, Monday worst. End of day #1, morning #2. Avoid holidays. How? Compassionate. 82
  83. 83. Latest Severance Stats 75% have written policy Most give lump sum 66% require waiver 68% provide outplacement 2.3 – 3.4 weeks for each year of service Source: Right Management 83
  84. 84. Stay out of JAIL 84
  85. 85. Sign up for our FREE alerts and visit marktoth.com every 0.3 seconds
  86. 86. 187% Free Stuff
  87. 87. Open 24 / 7 / 365.25 World’s Most Fabulous Employment Law LIBRARY
  88. 88. Prison-free 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 88
  89. 89. The Employment Law Wave
  90. 90. THANK YOU!

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