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Everything You Ever Wanted To Know About Employment Law
1. September 18, 2013
Everything You Ever Wanted to Know About
(But Didnât Want to Pay a Lawyer to Ask)
Mark Toth
Chief Legal Officer â North America
3. 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.
4. Sign up for my free alerts:
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Follow me on Twitter:
@manpowerblawg
Visit my Blawg:
marktoth.com
9. ManpowerGroup | September 18, 2013 9
What percentage of employees
would fire their bosses right now?
A. 36%
B. 56%
C. 76%
D. 96%
10. ManpowerGroup | September 18, 2013 10
What percentage of employees
would fire their bosses right now?
A. 36%
B. 56%
C. 76%
D. 96%
Source: Monster.com
11. ManpowerGroup | September 18, 2013 11
What percentage of your employees
are thinking about leaving your
company right now?
A. 26%
B. 46%
C. 66%
D. 86%
12. ManpowerGroup | September 18, 2013 12
What percentage of your employees
are thinking about leaving your
company right now?
A. 26%
B. 46%
C. 66%
D. 86%
Source: Right Management
13. ManpowerGroup | September 18, 2013 13
$300B
1/25 bosses
= psycho
32%
workweek
increase
62%
workload
increase
33%
chronically
overworked
80%
sedentary
Sources: Dr. Paul Babiak, Pennington Biomedical Research Center,
Kronos, Families & Work Institute, Harris Interactive
14. ManpowerGroup | September 18, 2013 14
The Bottom Line:
Employees are really very
extremely incredibly
disgruntled.
23. ManpowerGroup | September 18, 2013 23
True or False?
Employers win more employment
lawsuits than they lose.
A. True
B. False
24. ManpowerGroup | September 18, 2013 24
True or False?
Employers win more employment
lawsuits than they lose.
A. True
B. False
Source: Jury Verdict Research
34. ManpowerGroup | September 18, 2013 34
Which of the following is most likely to
result in a humongous class action?
A. I-9 violations
B. OSHA violations
C. FMLA violations
D. Wage and hour violations
E. Doing business in California
35. ManpowerGroup | September 18, 2013 35
Which of the following is most likely to
result in a humongous class action?
A. I-9 violations
B. OSHA violations
C. FMLA violations
D. Wage and hour violations
E. Doing business in California
39. ManpowerGroup | September 18, 2013 39
OT Classifications
Pre-shift âWorkâ
Independent contractor classifications
Work @ home
California, California, California
FLSA Hot Spots
40. 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
41. The FMLA in Plain English
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
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
42. Wage and Hour Solutions
Know the Law
Train managers and employees on time-keeping
Complaint system: investigate promptly & thoroughly
Audit classifications and records
Address any discrepancies immediately
55. 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
56. 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
61. Latest Stats: Employers
73% do no SM training
68% monitor internet activity
58% say SM benefits outweigh risks
56% block access to some sites
45% use SM to screen
31% have disciplined for postings about employer
25% have disciplined for excessive SM use
19% ban SM
Sources: SHRM, Clearswift, DLA Piper, Cisco
62. Which of the following is NOT an actual
employee tweet?
A. âHate my job!! I want to tell my bosses how dumb they
are and how meaningless this job is, then quit, and be
happy!â
B. âSo my job was to test all the food at the new restaurant,
can I just say, ughew. Iâm going to taco bell.â
C. âSmoking weed at work is so [expletive] greatâ
D. âIâm really bummed that Iâm working today, I asked off so
I could study but my boss is a [expletive] who canât read.â
E. âI am working really hard right now and feel very
fortunate to have a job.â
63. Which of the following is NOT an actual
employee tweet?
A. âHate my job!! I want to tell my bosses how dumb they
are and how meaningless this job is, then quit, and be
happy!â
B. âSo my job was to test all the food at the new restaurant,
can I just say, ughew. Iâm going to taco bell.â
C. âSmoking weed at work is so [expletive] greatâ
D. âIâm really bummed that Iâm working today, I asked off so
I could study but my boss is a [expletive] who canât read.â
E. âI am working really hard right now and feel very
fortunate to have a job.â
64. YOU be the judge
Who wins?
A. Employer
B. Employee
C. Neither
69. ManpowerGroup | September 18, 2013 69
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 EEOCâs safe harbor language
E. Discriminating against employees named Gina
F. All of the above except âEâ
70. ManpowerGroup | September 18, 2013 70
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 EEOCâs safe harbor language
E. Discriminating against employees named Gina
F. All of the above except âEâ
71. Whatâs the #1 most headache-inducing
law for employers right now?
73. ManpowerGroup | September 18, 2013 73
âMy dog had a nervous breakdown.â
âMy toe was stuck in a faucet.â
âI was upset after watching The Hunger Games.â
âI was bitten by a bird.."
âI was sick from reading too much.â
âMy sobriety tool kept my car from starting.â
âMy hair turned orange.â
âI forgot you hired me.â
âI was suffering from a broken heart.â
2012âs
MOSTCREATIVEEXCUSESFORMISSINGWORK
Source: CareerBuilder
75. ManpowerGroup | September 18, 2013 75
ADA How NOT To
Have an
inflexible
leave policy
Make snap
judgments
Donât
interact
Donât
accommodate
Put dumb
stuff in
writing
77. ManpowerGroup | September 18, 2013 77
Bob is normally a responsible, quiet employee.
One day, however, he shows up two hours late
and acts âobscenely happy, wearing make-up,
avoiding eye contact, continuously rubbing his legs
and touching everyone.â He also does a âcrazy
monkey arm danceâ and begins âtwirling and talking
gibberish, flying around in the office in a hyper state.â
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
78. ManpowerGroup | September 18, 2013 78
Bob is normally a responsible, quiet employee.
One day, however, he shows up two hours late
and acts âobscenely happy, wearing make-up,
avoiding eye contact, continuously rubbing his legs
and touching everyone.â He also does a âcrazy
monkey arm danceâ and begins âtwirling and talking
gibberish, flying around in the office in a hyper state.â
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
79. ManpowerGroup | September 18, 2013 79
An employee comes into your office at 4:59 on a Friday
and informs you that he suffers from multiple
medical conditions, including âwork-induced narcolepsy,â
âspontaneous combustion syndromeâ and
âepisodic cubicle-confinement hyper-grumpiness.â
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?
82. Many employment disputes can be
traced back to a lack of leadership.
According to research, whatâs the #1
most important leadership trait?
A. Charisma
B. Humility
C. Kindness
D. Proactivity
E. Results-orientation
F. Height
G. Coordinating accessories
H. Smooth dance moves
83. Many employment disputes can be
traced back to a lack of leadership.
According to research, whatâs the #1
most important leadership trait?
A. Charisma
B. Humility
C. Kindness
D. Proactivity
E. Results-orientation
F. Height
G. Coordinating accessories
H. Smooth dance moves
84. After 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 âreviewsâ rather
than full-scale investigations whenever a complaint
comes in against an exec. Whatâs most likely to
happen next?
A. Nothing: research shows that 97% of all complaints are bogus
B. You get a big raise and 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
85. After 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 âreviewsâ rather
than full-scale investigations whenever a complaint
comes in against an exec. Whatâs most likely to
happen next?
A. Nothing: research shows that 97% of all complaints are bogus
B. You get a big raise and 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
88. Open 24 / 7 / 365.25
Worldâs Most
Fabulous
Employment Law
LIBRARY
89. Go To Prison Soon Plan
Donât open the Tool Box
Donât visit the EL Library
Donât sign up for Markâs alerts
Donât follow Mark on Twitter
Donât visit the Blawg every 0.3 seconds
90. Prison-free Plan
KNOW THE LAW
INVESTIGATE & DOCUMENT ALL CLAIMS
BEWARE RETALIATION
LOVE YOUR EMPLOYEES
FOCUS ON KEY PRIORITIES
Known violations
Systemic issues
Wage & hour
EEOC priorities
92. ManpowerGroup | Halloween 2012
Employment law can be easy
If you listen you surely wonât fail
We wrote you this song
So please sing along
If you donât, you could end up in jail
93. ManpowerGroup | Halloween 2012
Donât put things off til tomorrow
Yes investigate right away
Donâ procrastinate
And donât retaliate
Or the more you will have to pay
94. ManpowerGroup | Halloween 2012
Remember this song
And youâll never go wrong
Yes we wish you the best on your journeys
Youâll stay out of court
And you wonât have to pay no attorneys
95. ManpowerGroup | Halloween 2012
Technology may give you headaches
And the feds they may knock on your door
But if you prepare
Be consistent and fair
They wonât ever bug you no more
96. ManpowerGroup | Halloween 2012
If your brainâs too full to remember
All the stuff we just covered above
Thereâs one little word
That sums up what you heard
Love love love love love love LOVE!
97. ManpowerGroup | Halloween 2012
So, remember this song
And youâll never go wrong
Yes we wish you the best on your journeys
Youâll stay out of court
And you wonât have to pay no attorneys
This will not be your typical lawyer blah blah blah presentation. This is a no-holds-barred, fight to the finish white knuckle death cage competition-o-rama. The first thing weâre going to divide this room into 2 teams who will compete for valuable prizes. Name âem.
And now hereâs our 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 presenterand 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 please please consult with your own HR and Legal departments before making any major policy and/or procedure changes. In other words, you canât sue me, [introducer], ManpowerGroup or anyone else based on anything you hear or see here today. You have been warned.
To further enhance your chances of staying out of jail, weâre giving you numerous ways of absorbing todayâs message thru a variety of SM. You can tweet along with todayâs festivities using the hashtag mpwebinar. You can follow me on Twitter @manpowerblawg â b-l-a-w-g where during todayâs webinar ManpowerGroupâs own Sid Mehta will be magically tweeting along as me while I talk to you. You can also visit my blawg at marktoth.com and you can find us on Facebook at the address you see there on the screen.
Weâll 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 Worldâs 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 youâre 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 todayâs 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. Hereâs what you said âŠ
As always, weâll start with the BIG picture and focus on that as weproceed so we donât get lost in all the all the legal mumbo jumbo âŠ
***POLL*** While youâre mulling that over, hereâs 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 youâre 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 âcloseâ box to clear the poll from your screen. [9:30]
***POLL*** [Read] Iâm 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 ManpowerGroupâs own Right Management, Right Management, an unprecedented 86%Â 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: âThe constant drumbeat of downsizing coupled with the expectation to do more with less has put an added amount of stress on workers.â A study that came out last week concluded that the #1 reason people consider bolting is a lack of stability.
Weâre ALL strrrrrrrrresssssed. Hereâs a graphic representation of some of the latest depressing statistics. 1 in 25 bosses is a certified psychopath (4 times higher than average). Weâre 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, workersâ 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 âŠ
To get your employees GRUNTLED.
The absolute key to employee gruntlement in one word: LOVE. If you really think about it, the law is there basically because we donât do this whole LOVE thing very well. If we treated each other how weâd like to be treated -- with kindness and dignity and respect â we wouldnât have to have all of those annoying laws and regulations to keep track of and lawyers would all be unemployed. Itâd 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 donât sue you in massive class actions that take all your time and effort and money? LOVE your employees. Itâs that simple.
Does the Supreme Court love business? You be the judge. First, the Court raised the standard for proving Title VII retaliation claims to âbut forâ causation instead of the lower âmixed motiveâ standard. âBut forâ causation requires proving that the employer would not have taken an adverse employment action âbut forâ an improper motive. âMixed motiveâ causation requires only proof that the improper motive was one of multiple reasons for the employment action. The Court also narrowed the definition of âsupervisorâ that triggers vicarious employer liability for harassment to those with the power  to take âadverse employment actionsâ such as hiring, firing, demoting and reassigning, rather than those who merely direct or oversee other employees. The court also upheld class action waivers (albeit in a non-employment context); struck down attempts by trial lawyers to avoid the effects of the Class Action Fairness Act, a 2005 statute designed to steer class actions into federal rather than state courts; and even ruled that trial lawyers canât troll DMV records to recruit plaintiffs for lawsuits. [Hereâs a question for Kathleen: In your expert judgment, which of these do you predict will have the most impact?]
You can find details on each of these on the Blawg. Just search for 2013 Halftime Report. Quickly, there are new FMLA forms, rules, posters and FAQs to cover all the new military leave related pieces. Hopefully youâre all aware that the Department of Health and Human Services issued a 563-page final rule regulating protected health information. In short, the message is pretty simple: protect ⊠health ⊠information. You have exactly 25 days to make the appropriate updates. Deadline is September 23. More details on the Blawg. The EEOC recently issued new guidance on accommodating cancer, diabetes, epilepsy and intellectual disabilities. Thereâs also a new I-9 form and lots of new enforcement efforts to go with it and last on the screen there, the Genetic Information Nondiscrimination Act is now officially real. The EEOC recently settled its very fist GINA suit. [Joel: Hereâs a question. Keep hearing that new OFCCP disability rules are coming. Are they? When? What employers are covered? What do they require?]
What else ELSE is new? Hereâs a question: Do employers have to grant same-sex spouses FMLA leave in the defenses of the SCtâs dumpage of the Defense of Marriage Act?[Joel/Kathleen: care to weigh in?] It depends (thereâs that phrase again) on whether the state recognizes same-sex marriage. DOL updated its FMLA fact sheet to capture that position. Some other wrinkles ⊠Whistleblowers can now blow the whistle electronically for any of the 22 whistle-blower statutes overseen by OSHA. A federal court ruled that the NLRB has wide discretion in allowing unions to organize small micro-units unless the employer can prove that it is âarbitrary, unreasonable or an abuse of discretion.â And just last week the OFCCP released its brand new Federal Contractor Compliance Manual, the âprocedural framework for executing quality and timely compliance evaluations and compliance investigations.â One other interesting bit: If you feel like youâre getting sued a lot more often for non-compete issues, youâre not alone. The # of lawsuits filed over nc issues has risen more than 60% in the last decade and is at an all-time high.
Thatâs the big picture. Now itâs time for our next topic: How to get sued BIG now. Thatâs simple, too. Donât 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.
***POLL*** [Based on the latest data, read]
***POLL*** [Based on the latest data, read]
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 employerâs 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 ârace ratersâ to determine the plaintiffsâ 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 someoneâs photo looked White, then voila, that person is white. Hereâs what the court said: QUOTE âIt 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.â Pretty interesting. [26:00]
1 person. OK letâs see how well you apply all that stuff we just covered. Time to play Deal or No âŠ? If win, get a fabulous Deal or No Deal board game.Youâre the new HR person 3 women allege they were harassed by their employer.The women allege they were subjected to severe harassment, including one manager exposing himself and forcing a woman to grope him and then requiring the women to participate in a smooching club to get sales leads.Turns out you donât have an anti-harassment policy.You also donât have any anti-harassment training.You also donât have any reporting procedures.After the complaints, manager fires 2 of em.Depositions. Managers testify they donât think sex harassment procedures are necessary.You get deposed and are unable to give the legal defn of harassment.Ps atty comes to you after depos and offers to settle the cases for $1.2M â take it or leave it. No negotiating. What do you do? Deal or no?$1.5 jury verdict. If settle, save $300K on verdict alone + $150K attysâ fees + bad PR.
Who said the following? Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser â in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough. (Hint: Honest ___) 99% of cases settle. Earlier you settle, less you pay in fees. Abe was on to something.
So, how much will you have to pay? Hereâs our latest and greatest breakdown of real-life cases right now and how much youâll 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 â 28% of cases â 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 â 39% of the cases out there â 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 thatâs only about 1% of all the cases out there. [15:30]
So, to sum up this section, if you reallllly want plaintiffsâ lawyers to love you and sue you a lot, here are five easy steps you can take right now. First, ignore the law. Donât wake up from the nap youâre taking right now and donât update your policies or procedures based on what you hear. Second, plaintiffsâ lawyers LOVE it when you ignore your own policies, which, unfortunately, employers do all the time. Please donât do that. Third, donât 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 youâll have no trouble spending lots of time in court. [21:00]
***POLL*** [Based on the latest data, read]
***POLL*** [Based on the latest data, read]
So thatâs it for medical leave law. And now: How to avoid getting sucked into the wage & hour abyss âŠ
Allegations included that the Plaintiff was required to be on call QUOTE âfrom the earliest waking hour, for being responsive to the slightest need throughout the day, and for addressing spontaneous, random matters in the middle of the nightâ as well as QUOTE âmaintaining the availability of defendant's personal supplies, ensuring the availability of chosen outfits, ensuring the promptness of a towel following a shower and serving as a personal alarm clock to keep defendant on schedule.â So, who was that alleged offender?And please donât treat your employees like that.
Hereâs an awesome little tool that every HR, business and legal person should memorize. Virtually everything you need on one screen. Gaze at the words you see there and try to determine for yourself which of these big 10 employers generally are required to pay under the FLSA. Done? OK hereâs the answer âŠ
Generally speaking, everything in white. [Read.]Pretty simple. All the FLSA is doing here is trying to get employers to pay for what they should pay for without the government or plaintiffsâ attorneys or a judge having to tell you that. Again: LOVE your employees. Pay âem fairly.
That brings us to our next topic, Whatâs new at the NLRB? Lots of intriguing developments âŠ
***POLL*** First a question, [read]
Some employers still donât realize that the NLRB and the NLRA it enforces apply to both unionized and NON-unionized companies. If you donât have a union that doesnât mean you can ignore this section.
***POLL***Hereâs our next question [read]
Rather surprising but true âŠ
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 Bushâs two terms combined. Strange.
Iâll take this one. Hereâs 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 isnât any different in cyberspace. Whether itâs 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.
As our survey results showed, people continue to be confused about social media and the law âŠ
***POLL*** Hereâs another question [read] [51:00]
***POLL***If youâre 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, Iâm officially concerned for the future of our world.
***POLL*** Hereâs another question [read] [51:00]
***POLL*** Hereâs another question [read] [51:00]
***POLL*** Hereâs another question [read] [51:00]
***POLL*** Hereâs another question [read] [51:00]
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. Thatâs a pretty big gap.According to a recent Columbia Business School study, all this SM use â specifically of Facebook â 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 Eesâ Facebook pages by removing words considered offensive â sex, drug and other references. Can even input your own cringeworthy words. Based on what Iâve 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: âWho wants to get fired?â âWhoâs hung over?â and âWhoâs taking drugs?â and then displays âem 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: âHow many cows are there in Canada?â âIf you could be any kitchen utensil, what would it be?â and my personal favorite: âA penguin walks thru that door right now wearing a sombrero. What does he say and why is he here?â So check that out.
Hereâs another real-life case. As I read it, weigh in. Letâs say youâre a male supervisor. You have a male employee thatâs giving you grief but you donât have the goods to fire him. So what do you do in todayâs modern world? You create a fake Facebook profile as a woman named Layla Shine replete with a womanly photograph and everything. You then send the male employee a friend request. He accepts it. You then dig around on the employeeâs site, print out some of his rather inappropriate comments and use âem to support a termination for âpoor judgment.â The employee sues. Who wins?
The ruling went in favor of the employee because the manager violated the federal Stored Communications Act or SCA. In short, if you use fraudulent means to obtain social media access you may run afoul of the SCA. Judges and juries donât like it when employers use shady tactics. When in doubt, donât be sneaky.
Thereâs 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 isnât always easy to figure out. We get lots of questions in this area so hopefully youâll find lots of practical answers there.
That brings us to ADA, FMLA, HIPAA, OSHA ⊠Yikes!Loooooots of medical issues out there âŠ
Thereâs 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 isnât always easy to figure out. We get lots of questions in this area so hopefully youâll find lots of practical answers there.
While we await those responses, hereâs 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 havenât heard these from any of your employees or tried them yourselves ⊠[read]. Number one: My dog had a nervous breakdown. Thatâs not covered by the ADA. At least not so far.
That looks like this. Itâs a QUOTE âplain language booklet designed to answer common FMLA questions and clarify who can take FMLA leave and what protections the FMLA provides.â Your employees are reading it â 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]
Hereâs 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 doesnât allow for individual variations and accommodations. The EEOC already has a $20M settlement in such a case. Next, make snap judgments that something youâve never heard of isnât a disability. Third, donât interact with the employee in a meaningful way. Next, donât accommodate the employee even if itâs 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 hereâs how TO do the ADA. Again, itâs all about LOVE. Treat those with disabilities the way youâd like to be treated. The law requires a graceful interactive DANCE depicted on your screen there. Discuss discuss discuss discuss 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.
First, hereâs a handy checklist of how TO go to jail. [Read] Itâs that simple. Last one is very important. For example, if you didnât visit the Blawg this week you probably would have no idea that tomorrow is Working Naked Day. Donât want to miss valuable information like that.
Weâll 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 Worldâs 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 youâre 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.
First, hereâs a handy checklist of how TO go to jail. [Read] Itâs that simple. Last one is very important. For example, if you didnât visit the Blawg this week you probably would have no idea that tomorrow is Working Naked Day. Donât want to miss valuable information like that.
Hereâs how to stay prison-free. First, and this is why youâre all here, KNOW THE LAW. Update your policies and procedures â plaintiffâs attorneys love it when you donât. 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 youâre solid on all the EEOC strategic priorities we discussed. Always always always investigate and document all claims promptly and thoroughly. And beware retaliation. Itâs now the #1 discrimination claim and often the easiest to prove.And last â above all else LOVE your employees. Treat âem the way youâd like to be treated. With dignity and respect. If you donât, they just might sue you.
And last but not least, weâll close todayâs festivities with our new and improved 2013 Employment Law Sing-a-long. Research shows that youâre far more likely to remember something if you actually sing it. Thatâs 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.
As always, thanks so much for your time and input. We really appreciate it!
As always, thanks so much for your time and input. We really appreciate it!