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


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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: Find us on Facebook:
  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, 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 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 Photo credits: Shutterstock