What's New and What's Next in Employment Law for 2014


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  • [Ellen]
  • [Ellen]
  • [Ellen]
  • [Ellen]
  • Mark: Thanks, Ellen. Hello everyone and thank for joining us for What’s New & What’s Next in Employment Law in 2014! How many registrations do we have here today? [Answer.] Wow. Here’s our agenda . . .
  • At the top there you see our official new year’s resolution: to help us ALL stay out of jail in 2014. Here’s what we’ll cover today to help achieve our prison-free goal. First, we’ll look at some of our pre-webinar survey results to see what YOU are really thinking and feeling out there. Then we’ll dive right into absolutely everything that’s new and next in the wonderful world of work. We’ll go topic-by-topic to keep everything organized. 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.We’re going to go fast – there’s a lot to cover. But don’t worry. This webinar will be recorded for posterity if you need to go back and review anything. Also, we’ll post it later today on my Blawg in a handy slideshare version suitable for printing and/or framing.
  • And now here’s 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 presenter and not of ManpowerGroup. Failure to stay awake for the entirety of this presentation could result in long-lasting side-effects, including HR headaches, litigation 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 can’t sue me, ____, ManpowerGroup or anyone else based on anything you hear or see here today. You have been warned.
  • To further enhance your chances of staying awake here today, 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 hashtag mpwebinar. 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 Employment Law 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.
  • So, here’s our first category: What are YOU thinking?
  • After several hundred votes, here is our official Employment Law Thermometer depicting your official top ten headache-inducing emp’t law concerns right now. We designed the webinar around your votes -- as always, thanks for your participation! We’ll hit each and everyone of these here today. One thing that didn’t make our top 10 and might surprise a few people is the ACA. With that in mind, I’m happy to announce that today’s broadcast will be 100% ACA-free. If you DO want ACA info, we have an extra-special webinar devoted solely to that topic coming up on Mar 11 hosted by ManpowerGroup’s own ACA Guru Bobbie Honesty. So tune in for that.
  • Here’s the results of our quarterly poll in which we ask: Is complying with employment laws getting easier or harder? Sadly, a grand totoal of 0% of you said really very extremely easier and only 2% said somewhat easier. By far the biggest # of you said somewhat harder – 58%. If you add it all up, 37 times more of you said it is getting harder out there rather than easier. Which leads us to our next pre-webinar poll …
  • Are you seeing an increase or decrease in employment law claims? Similar results. 30% of you report an increase versus only 5% who report a decrease – so 6 times as many of you are seeing an increase versus a decrease.
  • 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 2014. We got a HUGE variety of answers. Here’s basically what you said …
  • Everything. A blizzard of comments on virtually every emp’t law topic under the sun. Here are some direct quotes about what concerns you: the “changes I’m not aware of.” We’ll fix that today. “The continued encroachment of employment laws & regulations, the interlapping impact of both and resultant complexity.” Well said. Captured what a lot of you seem to be feeling. Another: “Keeping current and compliant on all the constant changes.” Another: “People have been doing more with less for so long, they’re going to burn out.” That was certainly a consistent theme. Another: “Will we keep moving toward every employee being in a protected class?” Good question. “Gov’t agency investigations and mindset towards the company.” And there were lots and lots and lots of comments, concerns and confusion about “social media, social media, social media.” Again, we’re using your comments and suggestions to guide today’s content.
  • 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 …
  • Those of you who have participated in my previous webinars have a built-in advantage on this question. But I’m OK with that. Here’s our first Tweet-o-rama. The very first person to tweet the correct answer to this question using our official Blawg handle you see there on the screen will win a $50 gift certificate good for any of the fine merchants on giftcertficates.com.It’s a theme we repeat in basically all of my webinars but we want to see if our message is sinking in. If you had to boil all of employment law down to ONE word, what would it be? Again, If you had to boil all of employment law down to ONE word, what would it be? Tweet your answer for all the world to see using the handle @manpowerblawg. That’s @manpowerblawg. B-l-a-w-g.
  • Unfortunately, there are a whole lot of frowny faces out there right now. According to the latest engagement studies, about 7 in 10 of all employees are un-engaged. If you think about a football team, that’s like having 8 of your 11 players wandering around aimlessly or maybe even blocking and tackling for the other team. Not good. The latest studies also show that 7 / 10 employees were too busy to use all their vacation last year which might partially explain why 7 out of 10 are un-engaged and also why 87% of your employees are thinking about leaving your company right now.A couple of rather disturbing phenomena popped up recently. According to experts, there’s been a rise in workplace mobbing, where a group of employees gang up on another employee and psychologically – and sometimes physically – torture them. Sort of like the Miami Dolphins locker room for those of you who are sports fans out there. Even worse is the concept of Karoshi which has swept across Japan in recent years. The official definition of karoshi is QUOTE “death from overwork” and that’s exactly what it is. It’s gotten so bad that there are even support groups for spouses of Karoshi victims popping up all over the place. Yikes.Some employees have taken some rather creative approaches to workplace stress by, for example, not showing up to work at all like the highest-paid employee of the Environmental Protection Agency who apparently frequently told his bosses that he wouldn’t be able to come to work because he also worked for the CIA. He once allegedly disappeared for 18 months straight and told his supervisors that he was needed immediately in places like Pakistan on top-secret missions. After a couple of years of the employee’s covert operations, the government finally figured out that the employee was actually spending most of his time at his home in northern Virginia, reading and relaxing, visiting his vacation home in Cape Bode or traveling around the world spending hundred of thousands of dollars staying luxury hotels. Please don’t do that. Last, it was only a matter of time but someone has created an app that allows you to quit your job via text, offering several helpful model messages that help you sever your ties with your employer.Wow.
  • 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 employment law, HR, employee engagement and everything else in the universe is this one little 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.By the way, this message appears to be catching on. Harvard Business Review had a nice article on the positive impact of LOVE on the workplace and noted that Whole Foods has a set of leadership principles that start with LOVE and PepsiCo lists “caring” as its first guiding principle on its web site. And Zappos says this as part of its values: QUOTE “We watch out for each other, care for each other and go above and beyond for each other.” Interesting.
  • And here’s more from Harvard – my absolute favorite numbers on the planet. In a study of what makes high-performing teams tick, researchers found that positive feedback outnumbered negative feedback by a whopping 5:1. It was basically the complete opposite on low-performing teams, where positive feedback was a paltry 0.3 times as frequent as negative feedback. In other words, high-performing teams get 15 times more encouragementthan low-performing ones.Encouraging your co-workers also has the side benefit of boosting your own mood and productivity. In fact it was the #1 thing you can do to relieve workplace stress and increase happiness according to the fine folks at Harvard.Want high-performing employees? Encourage ‘em – LOVE them. Want to lower your own stress and boost your productivity? Encourage your co-workers – LOVE them.
  • 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
  • ***POLL*** Let’s start with this question to see what YOU think. Based on the latest data: True or False -- employers win more lawsuits than they lose. True or False?
  • The answer: FALSE.
  • Less than half now, according to the latest edition of Jury Verdict Research.
  • So, how much will you have to pay in one of these lovely lawsuits? 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.
  • Here are some of the latest lawsuit facts & figures. Wage and hour suit filings continue to go up – they were up 3% over last year’s record #. 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. We’ll talk a lot more about that later. But big #s weren’t limited to wage and hour. The EEOC completed 25% more systemic investigations compared to the previous year’s already big #. 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 next number. The EEOC’s monetary recoveries set a new record last year. That’s not all the Wage & Hour Division recovered nearly $250M in back wages for 269,250 workers last year alone, topping the $1B recovery mark over the past 5 years. And, last, discrimination class action monetary recoveries were up BIG as well as you can see there on your screen.
  • Want to get a big class action fast? Here are the top 5 things you can do right now. Ignore known violations. Doing so increases penalties and could quite possibly land you in jail. Failing to address systemic company-wide issues can lead to big claims and big dollars. Again, wage and hour violations are a big class action trigger as is lying or engaging in fraud – plaintiffs’ attorneys LOVE it when you do that. And, last, if you’re doing business in CA my advice is simple: get out.
  • As you can see on our screen there, it’s time for our Text-o-rama. The first person to text us at the number on the screen: 414/751-0126, that’s 414/751-0126 -- with the correct answerwill win a $50 gift certificate. Just type in your first name so we can identify you + your answer. Here’s the question: What celebrates its 50th birthday in 2014? Again the text number is 414.751.0126. Operators are standing by.
  • Want to stay out of court? One of the very best ways is to do what the EEOC says, which is …
  • This. These are the areas the EEOC itself identifies as its 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 (including increased focus on National Origin disc, as highlighted in a public meeting held in Nov last year), 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.A few examples of recent activity. On the hiring front – right at the top there, please don’t do what one large burger chain did and put a billboard outside your restaurant that says: QUOTE “Now hiring. Must be Mexican.” The EEOC doesn’t like that.Pregnancy is another big area. One case lots of emp’t lawyers are watching involves a weight-loss co that allegedly refused to hire applicants who were over their target weight. Guess what: a side-effect of pregnancy is gaining weight which means pregEes typically over their target weight. Pls don’t enforce blanket policies like that that could disc vspreg or other Ees. The EEOC doesn’t like that either.Another area worth mentioning is the LGBT area which is particularly hot. EEOC recently started taking a different approach to transgender issues by alleging that discrimination against an individual on that basis constitutes discrimination based on sex in violation of Title VII. Already being enforced and has resulted in at least one fairly large conciliation agreement. Those rights could increase substantially if …
  • the Employment Non-discrimination Act (ENDA) becomes law. ENDA would prohibit sexual orientation and gender identity discrimination. It passed the Senate 64-32 on Nov 7, 2013 but its future seems uncertain due to Republican control of the House. John Boehner has gone on record as saying QUOTE “there is no basis or need” for ENDA and has stated his belief that it will lead to frivolous suits and unnecessary costs for small businesses.Whatever happens to ENDA, please don’t forget that 21 states already have protections in place for LGBT employees.
  • The EEOC recovered a record 372.1 million dollars this year. Here are some of the biggest cases to help us all know what NOT to do.First case, wide variety of alleged racial harassment, failure to promote and job assignment discrimination against African-American employees. Settlement reached during conciliation before a trial based on 78 separate charges that were filed, triggering a systemic investigation by the EEOC. Don’t do that.Just as we predicted last year, inflexible leave policies are a great way to get the EEOC to come after you. In the second case there, hundreds of employees were denied reasonable accommodation and fired based on a policy which required employees be automatically terminated if they needed more than 12 weeks of leave. The co also refused to make exceptions to a policy which wouldn’t allow employees to return to work without restrictions and failed to analyze whether there might be reasonable accommodations that would allow a return-to-work. More on that in a bit.Next, $2.5M to 89 women – many of them teens – for egregious sexual harassment, discrimination and retaliation at fast food establishments, including obscene jokes, propositions, touching, exposure, strip searches, stalking and rape – and most of it was done by managers. On top of that, retaliation after complained by cutting shifts, creating frivolous discipline against the complainants and other things. Please please don’t do that.Again, failing to accommodate can be hazardous to your company’s financial health, as the major retail establishment that paid $2.3M to 76 employees for ADA violations discovered.And last, please don’t tell your Ees that they have to disclose unnecessary confidential medical info or you’ll fire ‘em. Sort of Dwight Schrute-esque for those of you out there who used to be fans of The Office.
  • A former EEOC trial attorney did a study comparing what the EEOC says to employers with what actually happens in EEOC cases. 73% of employers reported that the EEOC told them to settle their case or the EEOC would likely issue a cause finding. The reality? The EEOC only finds cause in 3.7% of its cases. Pretty rare. 70% of employers reported they were told to settle or the EEOC would likely file suit. The reality, the EEOC only files a lawsuit in 0.2% of its cases. If you’re ever in a mediation, pull out this data – it just might help level the playing field and get to the right result for all parties.
  • As discussed in previous webinars, the EEOC recently issued guidance on criminal background checks. Lots of employers have questions about what the EEOC is reallly doing in this area.Again, this is not law – merely guidance. The EEOC recommends 2 stepsa QUOTE targeted screen of criminal records. Once that’s done, the guidance encourages employers to do a QUOTE individualized assessment for those who were screened out by step 1. In June last year, the EEOC filed lawsuits alleging disparate impact where employers didn’t follow the 2-step procedure, specifically the “individualized assessment” piece. In July, 9 state attorney generals sent letters to the EEOC demanding the guidance be rescinded. In August, the EEOC responded, calling the Ags arguments a “misunderstanding” and that the individualized assessment is recommended but not required.Then in October the EEOC lost a case in quite spectacular fashion, with the court awarding 750 thousand in costs and fees against the EEOC due to unfounded allegations alleging criminal background check violations. And that loss was on the heels of another loss a few months earlier where the EEOC had another criminal background case tossed out due to a faulty expert report. The EEOC isn’t giving up, however. In November, it posted a discussion letter with instructions for inmates under the guidance. Stay tuned for more.
  • Here’s the answer to our first text-o-rama. The Civil Rights Act of 1964 is celebrating its 50th birthday this year. The heart of the Act, of course, is Title VII, which forbids employment discrimination. As one constitutional law professor put it: QUOTE “We should never underestimate the importance of the Civil Rights Act. Without that, we wouldn’t have a black middle class as successful as it is. We wouldn’t have a black president. We wouldn’t have as many blacks going to law school or medical school.”Sooo … is the Civil Rights Act still needed, some ask. Here’s one rather sobering statistic …
  • Nearly 9 in 10 blacks say discrimination still exists today. Some facts: In 1964, the percentage of blacks with a college degree was 4%. Today, it’s more than 21%. But there’s much further to go. The rate for whites is more than 60% higher at 34%.Recent lawsuits show that discn is far from over. Cases alleging nooses and racial epithets and other things you would think would’ve died in the 50s are still happening today. Ers who don’t fight racism are facing big verdicts. Just this month alone, it took a MI jury only 2 hours of deliberation to award $5.2M awarded to 2 black Michigan state troopers who alleged discriminatory promotions. Not long before that a black LA firefigther was awarded $1.1M after a jury found he suffered discn and harassment based on his race. Discn doesn’t appear to be anywhere near dead, unfortunately.
  • OK, let’s move on to the biggest BIG lawsuit producer: wage and hour. Truly is a whirlwind out there.
  • Here’s the very latest. Big numbers: wage and hour suits now constitute more than a third of all class action, with an average settlement of five million dollars. Yikes. And those numbers could go up. Way up. The IRS and 15 states have signed on to the far-reaching Misclassification Initiative that we’ve discussed previously, agreeing to share info, leads and referrals to help each other catch Ers who violate WH laws. Next in recent news, the DOL has now officially sent its Worker Classification Survey to the Office of Mgmt & Budget for approval. The survey will ask Ers lots of ?s about emp’t law compliance and is intended to support a “right to know” rule that would require Ers to provide Ees with greater info on their emp’t status. In a similar vein, late last year a bill called the Payroll Fraud Protection Act was introduced in the Senate, would increase scrutiny and penalties for IC misclassification.And late last year, a plant manager and office manager in TX were convicted on felony counts of QUOTE repeat and willful violations of the FLSA. The company had a history of FLSA violations and allegedly furnished falsified records to DOL investigators and willfully withheld information that showed employees worked up to 96 hours per workweek with no overtime compensation. The EEOC commented QUOTE As demonstrated by the prosecution and sentencing of the defendants, we are committed to working with federal agencies, such as the Justice Department, to pursue the full force of the law against employers who engage in criminal activities.” You have been warned.
  • Tool Box: know the lawTime System: simple, accurate & enforcedTrain: managers and employeesComplaint System: investigate promptly & thoroughlyAudit: classifications, records & OT calculationsAddress: issues immediately, focusing on high risks first (systemic, CA)Consult: your favorite employment law attorney
  • Next we’ll dive into another of your most-headache-inducing emp’t law areas: MEDICAL MAYHEM. Lots of confusion and consternation out there. We hope to clear at least some of it up.
  • As we’ve discussed previously, the ADAAA broadened the definition of disability. More on that on the Blawg if you want the details. The EEOC and courts have made it clear that employers are expected to engage in individualized person-by-person assessments on accommodation issues rather than imposing rigid one-size-fits-all guidelines. More on that in a moment.A few months ago, the DOLissued new guidance on a number of conditions, including cancer, diabetes, epilepsy and intellectual disabilities, including FAQs, accommodation suggestions and other tools. At least one fed ct has ruled that obesity could be a disab under the ADAAA expanded definitionb, if it substantially limits the EE in the perf of a major life activity.As we discussed, ADA issues are a big focus of the EEOC. In fact, they’re now more than a third of all merit suits. Be careful out there.
  • ***POLL*** Now it’s time for YOU be the judge. I’ll read you some facts from a real-life recent case and you decide who wins. An employee informs her employer that she suffers from bladder disease. As an accommodation, she requests that she be allowed to use the restroom as often as every 20 minutes. Eventually, the employee went on a 2-week medical leave. When she returned she found that her desk had been moved farther away from the bathroom and her duties reassigned. Three days later, she was terminated. The employee claimed that the termination was because of her disability, alleging that her boss would send her co-workers into the bathroom after her, purposefully call her on her desk phone when she was using the facilities, and would QUOTE “shake his head disapprovingly” when she came back to her desk. The boss denied those allegations and contended that it had decided to terminate the employee prior to her going out on leave but that she went out before they could implement it.So … who wins?
  • The employee. Never ever assume that just because someone’s accommodation seems over the top to you that it’s not legit. The court ruled in favor of the employee, finding that she had an ADA-covered disability. It rejected the company’s “we were going to fire her before she went out on leave” argument, stating QUOTE “in this age of connectivity, this lack of contemporaneous documentation is unusual for such a serious matter.” Because of the lack of documentation, it found that the reasons offered for the termination were a pretext for disability discrimination. Don’t let that happen to you.
  • Here on one slide is 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. There have already been several million-dollar settlements in such cases. 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, please document as we learned in the case we just discussed but please don’t memorialize potentially discriminatory remarks in writing for future judges and juries to see. ADA How NOT to.
  • And here’s how TO do the ADA. 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 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.
  • Here’s our next tweet-o-rama. Tweet for all the world to see using our @manpowerblawg Twitter handle. What is the only industrialized nation on the planet that doesn’t guarantee working moms paid time off after childbirth? The answer in a minute …
  • Like the ADA, the EEOC and courts read the FMLA serious health condition very broadly. Never assume something isn’t covered just because you’ve never heard of it. Over the past year, we’ve gotten lots and lots and lots of ?s about intermittent leave. There’s no need to fear it. Just visit the Blawg in the next week and we’ll publish our handy dandy guide that makes the rules on intermittent leave easy to understand. Also, the DOL has published some new FMLA tools that we’ll discuss in a sec. One big trend in the FMLA universe is retaliation for FMLA leave. Please never ever retaliate for someone taking leave unless you want the EEOC to be a regular visitor to your company. And last on your screen there – momentum may be gathering for paid FMLA as we’ll see in a moment.
  • One of the best things you can do if you have FMLA questions is go to the DOL’s web site and download this handy little giude. It’s intended for employees but it has lots of colorful flowcharts that explain leave definitions and procedures in a way that even a lawyer can understand. Your employees are reading it. So should you.
  • Answer to our Tweet-o-Rama: a little country known as the United States of America.
  • The FAMILY Act was introduced last month in the House. Interesting. It would cover employees of all employers regardless of size and would provide up to 12 weeks paid leave for what you see there on your screen capped at 66% and $1,000 a month.Interesting funding mechanism: a point zero 2 payroll tax shared by the employee and employer, or about $1.50/week for the average EE.The U.S. is the only industrialized nation on the planet that doesn’t guarantee working moms paid time off after childbirth. Acc’g to our research the only other countries joining the US in this not-all-that-awesome category are Lesotho, Swaziland and Papua New Guinea. Wow. Accg to data provided by National Partnership for Women and Families, a majority of small employers favor family and medical leave insurance. Stay tuned. This could actually generate some traction.
  • GINA is now officially real and should be on the radar of every employer. In place since 2009, GINA prohibits Ers from requesting genetic information or making emp’t decisions based on genetic info and prohibits retaliation against those who complain of GINA discn. The EEOC filed its first GINA suits last year and in fact employers now have 370,000 reasons to pay atttention to GINA. That’s how much a nursing home paid because it allegedly requested family medical history as part of its post-offer pre-emp’t medical examinations of applicants. As the EEOC stated: QUOTE “Employers should take heed of this settlement because there are real consequences to asking applicants or employees for their family medical history.”
  • Another anniversary: 25 years of the Drug-free Workplace Act. First, the good news. Fewer of your workers are on illegal drugs. Illegal workplace drug use such as marijuana and cocaine has decreased dramatically in the past 2 decades. 3.5% of samples came back positive last year versus a whopping 13.6% 2 decades ago.Now, the bad news, prescription and designer drug abuse as Vicodin and OxyContin rose 172% and 71% respectively.False positive? Many of the new designer drugs not tested and more sophisticated blocking. So the stats may be misleading.So, probably just as many if not more of your Ees on drugs.Want help? Visit the DOL’s site where you can find its drug-free workplace policy builder. Actually quite helpful.
  • Now on to OSHA.Good news first: workplace injuries and illnesses continue to decline, now down to 3.4 instances per 100 FTEs. Interestingly, continue to be much higher among public sector Ees: 5.6/100.All Ersreqd to keep Form 300 – the illness and injury log – must post Form 300A – an annual summary of workplace injuries and illnesses – in a common area by Feb 1. OSHA recently published its regulatory agenda for 2014. Among other stuff, plans to issue proposed rule reqgErs to implement an illness and injury prevention program – or I2P2 – by Sept. OSHA describes I2P2 as involving “planning, implementing, evaulating and improving processes and activities that promote worker safety and health.” Builds on OSHA’s voluntary safety and health program mgmt guidelines pub’d in 1989. New online wblower tool makes it even easier for Ees to lodge complaints. OSHA is initial stop for all WB complaints, including securities and other allegs. Only 2% meritorious, accg to OSHA’s stats. Can lead to big recoveries, though due to huge “bounties” Ees can recover for successful claims. $14M awarded anonymous SEC Wber in Oct and $104M awarded convicted felon. OSHA will hold public hearings in Mar on its recently proposed rule that set exposure limits on workplace silica. In April will initiate small-business review on combustible dust standard for general industry. Also in April will issue proposed rule regulating occupational exposure to beryllium.
  • Want more including how to manage the interrelationships among the ADA, FMLA, GINA and workers’ comp? Check out the Tool Box.
  • Time for our next topic. Lots in the news lately about gender discrimination. We’re here to tell you how you can get women. Now.
  • Here are the latest facts. Even though study after study shows that women are actually better educated and test better and some would say smarter than men – still not advancing much in the workplace. Less than 5% of Fortune 500 CEOs are women even though studies show that companies with more women in leadership generate far better returns. In addition, a survey that’s been conducted for 60 years shows that Americans still prefer a male boss. While the gap is narrowing a bit, 35% prefer a male boss versus only 23% who prefer a female boss. 41% don’t care. Can’t understand why that last number isn’t 100%.The EEOC issued a report that offers some interesting insights about obstacles still facing women in the federal sector. Might want to check that out.
  • Happy to say that ManpowerGroup has some hot-off-the-press research released just last week at the World Economic Forum on WHY we need more women leaders and HOW to get and keep ‘em. Lots of great insights. The overall message is simple: when women do better, companies and countries do better. The study and tools are available on ManpowerGroup’s web site and will be posted on Blawg later this week. Check ‘em out.
  • Next, please don’t make your employees scream at ashtrays – or how to avoid religious discrimination claims.
  • From Duck Dynasty to judges who force subordinates to pray to some of the rather interesting allegations you see there on your screen, lots of activity in the religious discrimination arena.Huge increase in filings over the years to where now one of the more frequent claims.If you’re a manager and your religion requires practices like screaming at ash trays, having 8-hour staredowns without moving, engaging in purification rituals, a religious “audit” and frequently talking to walls and then firing them when they refuse to comply, you might want to think twice. A Miami chiropractic office that allegedly did all that paid $170K.Several dress code cases in recent weeks. Frequent fact pattern: clash between dress code and religious accommodation. Several wins for EEOC but one high-profile loss in which an applicant allegedly wasn’t hired because she wore religious headwear in violation of a clothing retailer’s “you have to be hot” policy. EEOC challegning ruling as we speak.How balance religious accommodation vs religious harassment? Easy. Here’s a handy ten commandments of religdiscr shared w/us by the fine folks at Snell & Wilmer.
  • Thou shalt not assume a religion unknown to you is not a religion. Thou shalt not discriminate on the basis of religion. Thou shalt not harass employees based on religion. Thou shalt reasonably accommodate an employee’s religious beliefs. Thou shalt be careful enforcing dress codes. Thou shalt be careful enforcing grooming standards. Thou shalt allow employees to participate in religious observances. Thou shalt provide a time an place for employees to pray, if requested. Thou shalt treat religious displays in the workplace equally among religions. Thou may have an exception if thou are a religious organization.
  • Here’s a rather sad fact. You may not have known this but each and every one of us is getting older each and every day.
  • As the workforce ages, age discrimination cases go up. In fact, a third of all U.S. employees will be 65 or older by the year 2025.The good news? Older employees can be some of the most engaged. In fact, a study found that the most engaged employees on the planet are female administrative assistants over the age of 60 who have been in their jobs for ten or more years.Despite the fact that older workers can be a competitive advantage, employers continue to commit rather dumb violations of the ADEA. 2 of the bigger recentADEA suits were against restaurants. Seems to be a theme with public-facing positions where Er wants younger hipperish folks. $5.7 million was awarded to 2 older servers who were replaced by newer models. Another restaurant paid $575,000 for an alleged pattern and practice of discrimination against older folks and for failing to keep adequate records. And over and over and over managers continue to make ageist comments that fuel ADEA suits. Please stop unless you want to appear on this screen next.
  • In the comments we received back from our survey, two words screamed out from practically every page: SOCIAL MEDIA.
  • What’s really going on in cyberspace? Here’s the latest. Much more on the Blawg.Studies by Florida State, Clemson, Accenture and others have debunked Fboook as a recruiting tool. One researcher found QUOTE “Recruiter ratings of Facebook profiles correlate essentially zero with job performance.” Another found potential discrnvs blacks and Hispanics.And that’s not all the bad news for Facebook. Studies show that teens are dropping Facebook like a hot potato and are instead flocking to things like Snapchat, Instagram, WhatsApp and others. If want to connect with hipper employees and/or your children, check ‘em out.Court recently ruled that complaining only on Fbook or other SM of sex harassment is not enough to constitute a complaint. Have to actually complain.Former PR exec tweeted: “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!” Then got on a plane to go on vacation. By the time she landed, she had ignited a huge firestorm in the Twitterverse including several hashtags devoted to her, a parody account, a fake movie poster and even a NY Times article. SM justice can be swift. Fired the next day before she could even tweet an apology.Oship of SM accounts continues to be a hot topic, especially after a chef with a prominent presence on behalf of his restaurant on twitter continued to tweet not-so-great things on after he was fired. To all the world the restaurant’s Twitter account said “We don’t care that he has a 71/2 month old baby daughter” “Yeah a week before Christmas” “Unfortunately he wanted to have a weekend off this month and Christmas Day this year for family commitments so we thought we’d sack him.” Yikes.
  • ***POLL***
  • Be ConsistentTreat applicants equallyApply searches to ALL applicants or at least specified categories or departmentsUse at the same phase of the interview process to ensure consistencyDesignate Searchers who actually know what they’re doingChoose one employee, or a very small group or a neutral 3rd party that’s trained in how to do thisPlease don’t use the hiring manager – they might discover all sorts of things you wish they hadn’tLimit the Scope of the searchRestrict searches to certain approved sites – no porn site visits, pleaseNo posing as someone you’re not, creating fake Facebook accts, lying or fraud: Courts and govt very hard on Ers who do thatOf course, don’t search or consider any protected informationAnd, as always, the focus should be job-related, job-related, job-related. If it’s not, don’t do it.
  • Disclose – tell applicants if you’re going to use SM to screen on applications, etc.And document document document -- the consistent process, the legit biz job-related reasons for not hiring and then retain those docs consistent with your retention policies and never ever destroy evidence.
  • We’ve pulled together all the world’s greatest tips into our official Social Media Starter Kit, which is available for free right now on the Blawg. Here’s what you get: Summary of the law, NLRB-approved model policy, the Blawg’s official model policy, Other Fortune 500 policies,SM 101 articles and much much more. And. All. For. Free.
  • Reconstituted and fully functioning NLRB is starting to flex its muscles. Clashes between Wal-Mart and NLRB over alleged strike threats, surveillance and discipline in the news past few days show that NLRB is going after non-unionized employers in a systemic manner rather than just unionized Ers one case at a time as typical in past. Again, NLRA applies to ALL employers, not just unionized.NLRB’s attempt over past few years to require all Ers to post notice of rights under NLRA has died after fed ct invalidated the rule and NLRB declined to take it to SCt.Ambush elections could be coming your way, thanks to the renergized board and its rulemaking authority. No need for Cong to pass EFCA. Reduced time bw petition and election which gives Ers much less time to conduct a campaign, fewer, narrower and faster election hearings and broad discretion for hearing officers to reject post-election arguments. Other potential areas expected to be explored include at-will emp’t statements, social media, off-duty access by unions.Last, some good news. In the D.R. Horton case decided in Dec, fed court ruled that arbitration agmts including class-action waivers are enforceable under the Federal Arbitration Act, overturning a decision to the contrary by the Board.
  • ***POLL*** Time for another YOU be the judge. Listen to the facts and issue your ruling. A leasing manager worked for her employer a total of 4 days. During those 4 days, the employee alleged that 2 of her male co-workers sniffed her 12 times each. 24 sniffs total for those of you keeping score. The alleged sniffing occurred both while she was sitting at her desk and while she was on her way to the bathroom. She asked the sniffers to stop but they refused. One of the co-workers allegedly hovered over and engaged in a QUOTE sexual staredown with her for several minutes. At a staff meeting, the employee complained to her supervisor about the harassment. One employee claimed he had a medical condition that required frequent sniffing; the other made a sexual joke. The employee was fired later that day. At first, she was given no reason but later the company claimed she was fired for, among other things, “swatting a fly harder than necessary.” The employee sued the company claiming sexual harassment and retaliation. Who wins?
  • Believe it or not, the EMPLOYER won summary judgment at the trial court stage, ruling that no reasonable juror in the woman’s shoes would have viewed herself as an harassment victim. Not too surprisingly, the court of appeals reversed and found that a jury could reasonably conclude that both harassment and retaliation occurred. So, at least for now, the employee won.
  • Top termination thus far in 2014: a Wendy’s employee was fired for misplacing her marijuana joint ... in a customer’s cheeseburger. Please don’t do that.
  • Please not that most webinars out there give you mere top 10 lists. Ours go to 11. Here’s our updated official Top 11 Termination Troubles certain to land you in legal hot water.#11: Not telling someone the real reasons you’re firing them. Don’t sugarcoat. Be honest. #10: A poorly planned termination meeting. We’ll fix that for you in a moment. #9: Ignoring policies and employment contracts. Never good. #8: Bad post-term communication. Saying either too much or too little can hurt you. #7: Ignore past practice at your peril. #6. Reacting out of emotion instead of facts can lead to terrible decisions. Just the facts, man. #5: Not getting a release especially if you give an employee $ to go away is never a good idea. They just might use it to sue you. #4: Inadequate documentation. Document, document, document unless you say dumb things. #3: Considering non-job-related factors. Again, if it ain’t job-related, it ain’t job-related. #2: Not treating employees with dignity and respect when you terminate them. More on that later. #1: Not firing someone who should be fired. Too many employers drag their feet when it comes to terminations which can end up hurting morale and costing more in the long run.
  • To help guide your termination decisions, here’s a handy one-page time-honored test that can save you lots of grief and money. I personally used this in several cases and won hands-down each time. If you can’t give a definitive “yes” to each of these ?s, don’t terminate.
  • Bottom # depends on level. Execs at top end, non-professionals at low end.
  • H-1Bs: last year the cap was reached in the first week so get your apps ready. 124,000 filings for 85,000 new H-1Bs = 69% chance of winning. Expect even more filings this year.ICE is cracking down on immigration abuses. Now is not the time to have sketchy I-9s or visas. ICE particularly interested in companies w/pattern of abuse as evidenced on screen there. Read. $34M after a 2-year whistleblower inv’n into a co that allegedly misused B-1 business visitor visas which is usually used for foreign workers traveling in the US to attend meetings or training sessions. Please don’t use B-1s or other visas to mask foreign workers who are here actually working. Govt doesn’t like that and will hit you. Hard.
  • Fed Kors are required to use the self-id form posted Monday this week to request applicants and Ees to voluntarily self-identify as disabled.Phased: FedKors w/written AAPs already in place on Mar 24 don’t have to begin using the form til beginning of next AAP compliance cycle.Lawsuits by Associated Builders & Contractors, joined by others, are seeking to block the rule. QUOTE: “imposes unprecedented, wasteful and burdensome data collection and utilization analysis requirements on gov’t construction contractors, without stauttory authority and in an arbitrary and capricious manner.” Among other things, challenge the 7% goal as not based on any reliable statistical basis. Also argue that the goal will become an illegal quota once the OFCCP starts enforcing it. Rulings expected before Mar 24 effective date. Stay tuned.A few weeks ago, the OFCCP released its semiannual regulatory agenda. Includes plans for proposed rules in each category you see there on screen.
  • Introd’ in Senate in late Dec by Elizabeth Warren. If law passes can no longer run credit check on applicants for CFO.1/10 say they’ve been denied job based on bad credit. Source: Demos.EEOC alleges adv impact on protd classes.10 states already
  • 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.
  • 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.
  • 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.
  • THANK YOU THANK YOU THANK YOU so much for your time, attention and participation – we really very extremely incredibly much appreciate it!And now, back over to Ellen.
  • What's New and What's Next in Employment Law for 2014

    1. 1. What’s New & What’s Next with in Employment Law in 2014 Mark Toth Chief Legal Officer North America with Mark Toth Chief Legal Officer North America January 30, 2014
    2. 2. General Information • • • • Share the webinar Votes (polling questions) Rate (before you leave) Attachments (download)
    3. 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: 370615 75#
    4. 4. Earning HRCI Credit To receive 1 HRCI for this webinar, participants must attend the webinar in its entirety (one person per computer).
    5. 5. What’s New & What’s Next with in Employment Law in 2014 Mark Toth Chief Legal Officer North America with Mark Toth Chief Legal Officer North America January 30, 2014
    6. 6. Stay Out of Jail in 2014 What are YOU thinking? What’s NEW? What’s NEXT? Jail-free ACTION PLAN Least likely to be Incarcerated CONTEST 6
    7. 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 HR headaches, litigation 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. 8. Tweet along: #mpwebinar Follow Mark on Twitter: @manpowerblawg Visit Mark’s Blawg: marktoth.com Find us on Facebook: facebook.com/manpowerUS
    9. 9. 187% Free Stuff
    10. 10. Open 24 / 7 / 365.25 World’s Most Fabulous Employment Law LIBRARY
    11. 11. What Are YOU Thinking?
    12. 12. FMLA 19% 1 2 Firing 11% 3 4 Investigations 8% Harassment 6% 7 8 Hiring 4% Wage & Hour 9% 5 6 Discrimination 5% ADA 13% Social Media 5% 9 10 Immigration 4% Which area of employment law currently gives you the most headaches? ManpowerGroup Pre-Webinar Survey, January 2014 12
    13. 13. Question Is complying with employment laws getting easier or more difficult? Really very extremely easier Somewhat easier No change 0% 2% 24% 58% Somewhat harder Really very extremely harder 16% ManpowerGroup Pre-Webinar Survey, January 2014 13
    14. 14. Question Are you seeing an increase or decrease in employment law claims? Yes, substantial increase 4% Yes, moderate increase 26% No change 66% No, moderate decrease 3% No, substantial decrease 2% ManpowerGroup Pre-Webinar Survey, January 2014 14
    15. 15. What one thing concerns you most about the world of work in 2014?
    16. 16. Everything
    17. 17. The BIG Picture
    18. 18. @manpowerblawg If you had to boil all of employment law down to one word, what would it be?
    19. 19. 70% Un-engaged QuitYourJob App 70% Dump Vacation :( Work for the CIA? Karoshi 87% Want Out Workplace “Mobbing” Sources: Right Management, Staffbay, Gallup, Expedia, Kroll, PE.com 19
    20. 20. The Bottom Line: Employees are really very extremely incredibly disgruntled. 20
    21. 21. The Goal: Get your employees gruntled. 21
    22. 22. 5:1 VS. 0.3:1 Source: Harvard Business Review
    23. 23. How to Get Sued BIG Now
    24. 24. Employers win more lawsuits than they lose.
    25. 25. False
    26. 26. 49% Source: Jury Verdict Research
    27. 27. 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 1% $1M+ $1M+ Big pattern +/or Big pattern reeeeeeeally +/or reallllllly horrible facts horrible facts Sources: EEOC, Jury Verdict Research 28
    28. 28. Lawsuit Facts & Figures Wage & Hour Suits (+3%) Systemic Investigations (+25%) EEOC Recoveries (new record) WHD Recoveries ($1B+) Discrimination Class $ (+381%) Sources: EEOC, Seyfarth Shaw, Littler, Wall Street Journal 29
    29. 29. Get a BIG Class Action Fast Ignore known violations Don’t address systemic issues Violate wage & hour laws Lie or engage in fraud Do business in California 30
    30. 30. 414.751.0126 Your first name + answer “What celebrates its 50th birthday in 2014?”
    31. 31. What’s Up with the EEOC?
    32. 32. Hiring Vulnerable Workers Pregnancy EEOC ADA Harassment Access to Legal System LGBT Source: EEOC 33
    33. 33. Is the ENDA Near? Employment Non-discrimination Act Sexual orientation & gender identity LGBT: 4% of workforce, 21% face discrimination T: 26% fired, 97% face discrimination Passed Senate 64-32 but .0001% chance in House Sources: Williams Institute, National Center for Transgender Equality 34
    34. 34. 372 Million Reasons to Fear the EEOC $21.3M to 200+ employees for racial harassment + discriminatory promotions & assignments $4.9M to 427 employees for inflexible “maximum leave” and “no-restrictions” policies $2.5M to 89 women for egregious harassment, discrimination & retaliation $2.3M to 76 employees for systemic denial of reasonable accommodations $2.0M to 6,000 employees required to disclose medical info or face discipline Sources: EEOC, Seyfarth Shaw, Littler 35
    35. 35. EEOC Myth vs. Reality EEOC Mediators: EEOC Stats: • 73%: settle or cause • 70%: settle or suit • 3.7% cause rate • 0.2% suit rate Sources: EEOC, Merrily Archer, BNA 36
    36. 36. Criminal Background Checks June 2013: EEOC filed suits alleging disparate impact because no “individualized assessment” July 2013: 9 state AGs sent letters to EEOC demanding guidance be rescinded August 2013: EEOC responded to AGs, calling it a “misunderstanding” October 2013: EEOC ordered to pay $750K in costs due to “unfounded allegations” November 2013: EEOC posted “discussion letter” with instructions for inmates under the guidance 37
    37. 37. The Civil Rights Act of 1964
    38. 38. 9 / 10 Source: Pew Research Center 39
    39. 39. Wage & Hour WHIRLWIND
    40. 40. Wage & Hour in a Minute 39% of class actions; average settlement $5M Misclassification Initiative Worker Classification Survey Payroll Fraud Protection Jail for “repeat and willful” violations Sources: NERA Economic Consulting,Workplace Insights 41
    41. 41. 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 42
    42. 42. Cheat Sheets
    43. 43. Medical MAYHEM
    44. 44. ADA in a Minute Broad “disability” definition Individualized analysis versus rigid guidelines New Guidance on cancer, diabetes, epilepsy and intellectual disabilities Obesity could be a disability EEOC target: 38% of merit suits Source: EEOC 45
    45. 45. Who wins? A. Employee B. Employer
    46. 46. Who wins? A. Employee B. Employer
    47. 47. ADA How NOT To Have an inflexible leave policy Make snap judgments Don’t interact Don’t accommodate Put dumb stuff in writing
    48. 48. Discuss Discuss Discuss Discuss 49
    49. 49. @manpowerblawg Which is the only industrialized nation that doesn’t guarantee working moms paid time off after childbirth?
    50. 50. FMLA in a Minute Broad Serious Health Condition Definition Don’t Fear Intermittent Leave DOL FMLA Tools Never ever Retaliate FAMILY Act Coming? 51
    51. 51. FMLA Made Simple
    52. 52. The United States of America
    53. 53. The FAMILY Act in a Minute All employers covered regardless of size Up to 12 weeks paid leave for birth/adoption, serious illness of employee or family member 0.2% payroll tax shared by employee & employer Capped at 66% & $1,000 / month Lesotho, Swaziland and Papua New Guinea? Source: International Labour Organization 54
    54. 54. GINA in a Minute Bans: Requesting or Using Genetic Info Reach: applicants, employees & family members In Court: EEOC filed first suits last year First Settlement: 370,000 Reasons to Know GINA 55
    55. 55. Drugs in a Minute Illegal / old-school drug use Prescription / designer drug use 3.5% Positive Now vs. 13.6% Positive 1988 False Positive? DOL’s Drug-free Workplace Policy Builder Source: Quest 56
    56. 56. OSHA in a Minute Work injuries & illnesses: 3.4 / 100 300A Forms due February 1 I2P2 by September? New online whistleblower system Silica, dust & beryllium coming soon 57
    57. 57. ADA vs. FMLA vs. GINA vs. WC
    58. 58. Get WOMEN
    59. 59. Women @ Work Facts Women are better educated & test better < 5% of Fortune 500 have female CEOs More female officers = 34% better returns Most still prefer male boss EEOC Report: Obstacles Facing Women Sources: Pew Research Center, CNN Money, Businessweek, Gallup, ManpowerGroup 60
    60. 60. Get and keep women
    61. 61. Don’t Make Employees SCREAM at Ashtrays
    62. 62. Religious Discrimination on the Rise 100%+ increase in past 20 years Please don’t require ashtray screaming, 8-hour stare-downs & talking to walls Dress codes vs. religious garb Harassment vs. accommodation Source: EEOC 63
    63. 63. 10 Commandments of Religious Discrimination 1. Thou shalt not assume a religion unknown to you is not a religion. 2. Thou shalt not discriminate on the basis of religion. 3. Thou shalt not harass employees based on religion. 4. Thou shalt reasonably accommodate an employee’s religious beliefs. 5. Thou shalt be careful enforcing dress codes. 6. Thou shalt be careful enforcing grooming standards. 7. Thou shalt allow employees to participate in religious observances. 8. Thou shalt provide a time and place for employees to pray, if requested. 9. Thou shalt treat religious displays in the workplace equally among religions. 10. Thou may have an exception if thou are a religious organization. (Source: Snell & Wilmer LLP) 64
    64. 64. We’re Getting OLDER
    65. 65. ADEA in a Minute 33% of the workforce will be 65+ by 2025 Most engaged? 92% of 60+ female admins $5.7M to 4 servers replaced by 20-year-olds $575K for pattern of age discrimination + failure to keep records Ageist comments can = age discrimination Sources: BLS, Keas, Jury Verdict Research 66
    66. 66. Social Media MANIA
    67. 67. SM in a Minute Facebook: bad predictor, discriminator, dying? What’s hot? Snapchat? Instagram? WhatsApp? Cyberspace complaint ain’t a complaint Even PR professionals fail at SM Hot debate: Who owns SM accounts? Sources: Florida State, Clemson, Accenture,Global Web Index 68
    68. 68. Which do YOU use most to find info on candidates or employees? A. Search engines (Google, etc.) B. Facebook C. Twitter D. Ratings sites (Yelp, Glassdoor, etc.) E. Nothing
    69. 69. 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 70
    70. 70. 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 71
    71. 71. SM Starter Kit
    72. 72. @manpowerblawg What is the #1 most common claim filed with the EEOC right now?
    73. 73. What’s New with the NLRB?
    74. 74. The NLRB in a Minute NLRB 2.0? Targeting non-union employers Union rights posting dead “Ambush” election and other rules coming? Supremes: (1) class action waivers OK and (2) parties can agree donning / doffing unpaid 75
    75. 75. RETALIATION is #1
    76. 76. Never Ever RETALIATE
    77. 77. Who wins? A. Employee B. Employer
    78. 78. Who wins? A. Employee B. Employer
    79. 79. TERMINATION Troubles
    80. 80. 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 81
    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? 82
    82. 82. 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
    83. 83. LIGHTNING Round
    84. 84. Immigration in 30 Seconds H-1Bs: stampede starts April 1 ICE brings the chill: Worksite Enforcement Strategy 23 indictments for undocumented workers $34M for alleged systemic visa abuse 85
    85. 85. OFCCP in 30 Seconds Veteran & disability rules effective March 24 Self-identification form posted January 27 7% utilization goal for disabled individuals Will lawsuits trump rules? Data collection, sex discrimination and construction rules next? 86
    86. 86. No More Credit Checks? Equal Employment for All Act Bars discrimination based on credit history Employers can’t request, even with consent Exemptions: national security or required by law EEOC considering guidance 87
    87. 87. Stay out of jail ACTION PLAN
    88. 88. Prison-free in 2014 Plan KNOW THE LAW FOCUS ON KEY PRIORITIES Known violations Systemic issues Wage & hour (especially CA) EEOC priorities INVESTIGATE & DOCUMENT ALL CLAIMS USE THE TERMINATION TEST LOVE YOUR EMPLOYEES
    89. 89. Visit marktoth.com every 0.3 seconds
    90. 90. 187% Free Stuff
    91. 91. Open 24 / 7 / 365.25 World’s Most Fabulous Employment Law LIBRARY
    92. 92. Least Likely to Be Incarcerated in 2014 CONTEST
    93. 93. COMING SOON: Everything You Ever Wanted to Know About Negotiation (In 60 Minutes or Less)
    94. 94. The Employment Law SING-A-LONG
    95. 95. 2014 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
    96. 96. 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
    97. 97. 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
    98. 98. The ENDA it soon could be coming The ICE Man may knock on your door But if you prepare Be consistent and fair They won’t ever bug you no more ManpowerGroup | Halloween 2012
    99. 99. 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
    100. 100. 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
    101. 101. THANK YOU!
    102. 102. Did you watch this webinar as a recording? Please request your certificate at www.manpowergroup.us/requesthrci Photo credits: Shutterstock