Everything You Ever Wanted to Know About          (But Didn’t Want to Pay a Lawyer to Ask)                     Mark Toth  ...
Today’s                                        AGENDA          Smartest HR Person in the Universe Competition             ...
marktoth.com                            @manpowerblawgManpowerGroup | September 13, 2012           3
Official Disclaimer                     The presentation you are about to witness should not                     be relied...
SMARTEST HR PERSON IN THE UNIVERSE              COMPETITIONManpowerGroup | September 13, 2012                 6
LAWSUITS                 LAWSUITS                 LAWSUITSManpowerGroup | September 13, 2012   77
According to a recent study, what‟s the   #1 legal headache for U.S. businesses?    A. Environmental regulation    B. Pate...
According to a recent study, what‟s the   #1 legal headache for U.S. businesses?    A. Environmental regulation    B. Pate...
According to the latest data, what are an   employer‟s odds of winning at trial?    A. It is unlawful for employers to win...
According to the latest data, what are an   employer‟s odds of winning at trial?    A. It is unlawful for employers to win...
What hit record highs last                                     year?        A. EEOC complaints        B. EEOC recoveries  ...
What hit record highs last                                     year?        A. EEOC complaints        B. EEOC recoveries  ...
What‟s the #1 most  common discrimination  claim?A. AgeB. National OriginC. RaceD. RetaliationE. SexManpowerGroup | Septem...
Retaliation is #1                      1. Retaliation (36,258)                      2. Race (35,890)                      ...
Which of the following is most likely to result in a humongous class action?A. I-9 violationsB. OSHA violationsC. FMLA vio...
Which of the following is most likely to result in a humongous class action?A. I-9 violationsB. OSHA violationsC. FMLA vio...
Everything You Ever Wanted to Know About Employment Law                                              (But Didn’t Want to P...
How Much Will YOU Pay?                                                                $100K -           $1M+:      $0 - 50...
TECHNOLOGYTECHNOLOGYTECHNOLOGYManpowerGroup | September 13, 2012   2020
True or False?                                      None of the laws                                      that apply in th...
Same old laws …       Non-discrimination       Adverse impact       FCRA       GINA       NLRA       Negligent Hiring     ...
Same old test …                                  job-      job-                                related   related          ...
Latest Stats: Employees62% “couldn’t live without the Internet”53% would rather lose nose than Facebook48% would swap pay ...
Question: How do those about to enter the workforce rank the following in order of importance?A. Social Activities, Romanc...
Question: How do those about to enter the workforce rank the following in order of importance?A. Social Activities, Romanc...
Latest Stats: Employers73% do no SM training68% monitor internet activity58% say SM benefits outweigh risks56% block acces...
Which of the following is NOT an actual employee tweet?    A. “Hate my job!! I want to tell my bosses how dumb they are an...
Which of the following is NOT an actual employee tweet?    A. “Hate my job!! I want to tell my bosses how dumb they are an...
Search Checklist         Be Consistent           • All candidates or certain categories/departments           • Same phase...
Search Checklist        Disclose         • Notify candidates that may use SM         • Include on applications and other d...
building theperfect                                      social media ManpowerGroup | September 13, 2012          policy  ...
10 Essential Elements            Tie to Vision + Handbook + Code            Set Clear + Reasonable Expectations           ...
10 Essential Elements            No Disparagement/Harassment            Respect Copyrights            NLRA Disclaimer     ...
SM Policy Starter Kit         Latest Legal Developments         Official NLRB Policy         Official Blawg Sample Policy ...
MEDICAL                       MEDICAL                       MEDICALManpowerGroup | September 13, 2012   3636
What‟s true about the ADAAA?  A. It’s easier to establish a covered “disability”  B. Mitigating measures can’t be consider...
What‟s true about the ADAAA?  A. It’s easier to establish a covered “disability”  B. Mitigating measures can’t be consider...
Bob is normally a responsible, quiet employee. One day,   however, he shows up two hours late and acts   “obscenely happy,...
Bob is normally a responsible, quiet employee. One day,   however, he shows up two hours late and acts   “obscenely happy,...
An employee comes into your office at 4:59      on a Friday and informs you that he suffers      from multiple medical con...
JOB              ACCOMMODATION                 NETWORK                                     jan.wvu.edu                    ...
WAGE & HOURWAGE & HOURWAGE & HOURManpowerGroup | September 13, 2012   4343
What celebrity was                 recently sued for a                plethora of wage and                   hour violatio...
LADY                                     GAGAManpowerGroup | September 13, 2012          45
Whats Next? Hot Spots        IC Classifications        OT Classifications (especially Administrative)        Work @ Home  ...
Whats Next? Hot States        California        Illinois        Massachusetts        Minnesota        New Jersey        Ne...
UNIONS                            UNIONS                            UNIONSManpowerGroup | September 13, 2012   4848
True or False: The NLRB only has        jurisdiction over unionized companies.        A. True        B. FalseManpowerGroup...
True or False: The NLRB only has        jurisdiction over unionized companies.        A. True        B. FalseManpowerGroup...
Facebook Firings          Don‟t discipline for                                     Be especially wary of        comments a...
PICTURE
Employment Law Talk ShowWe are                               • 80% of jobs are sedentaryStressssssed                      ...
Employment Law Talk ShowMore Stress =                        The Bottom Line:More Suits                           $200-$30...
Employment Law Talk ShowManpowerGroup | September 13, 2012   Source: ManpowerGroup                55
If you had to boil all of      HR and employment law      down into ONE simple      word, what would it be?ManpowerGroup |...
EMPLOYMENT LAWSING-ALONG
Employment Law Talk Show                                           Employment law can be easy                             ...
Employment Law Talk Show                                     Don‟t put things off „til tomorrow                           ...
Employment Law Talk Show                                             Remember this song                                   ...
Employment Law Talk Show                                      Technology may give you headaches                           ...
Employment Law Talk Show                                             Remember this song                                   ...
Employment Law Talk Show                                     If your brain‟s too full to remember                         ...
Employment Law Talk Show                                             Remember this song                                   ...
marktoth.com                            @manpowerblawgManpowerGroup | September 13, 2012           66
September 13, 2012
Nebraska SHRM Conference
Nebraska SHRM Conference
Nebraska SHRM Conference
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Nebraska SHRM Conference

  1. 1. Everything You Ever Wanted to Know About (But Didn’t Want to Pay a Lawyer to Ask) Mark Toth Chief Legal Officer – North AmericaSeptember 13, 2012
  2. 2. Today’s AGENDA Smartest HR Person in the Universe Competition All the Latest Developments How to Get Sued Big Now Employment Law Sing-a-long Employment Law Tool BoxManpowerGroup | September 13, 2012 2
  3. 3. marktoth.com @manpowerblawgManpowerGroup | September 13, 2012 3
  4. 4. Official Disclaimer The presentation you are about to witness should not be relied upon or construed as legal advice. Failure to stay awake for the remainder of this presentation could result in potentially long-lasting side-effects, including severe disengagement, plummeting productivity, increased litigation and/or severe gastrointestinal discomfort from having to do all the work in your company because everyone else leaves. Please consult with your own HR and/or Legal departments before making any major policy and/or procedure changes. You have been warned.ManpowerGroup | September 13, 2012 5
  5. 5. SMARTEST HR PERSON IN THE UNIVERSE COMPETITIONManpowerGroup | September 13, 2012 6
  6. 6. LAWSUITS LAWSUITS LAWSUITSManpowerGroup | September 13, 2012 77
  7. 7. According to a recent study, what‟s the #1 legal headache for U.S. businesses? A. Environmental regulation B. Patent protection C. International contract laws D. Employment law disputes E. LawyersManpowerGroup | September 13, 2012 8
  8. 8. According to a recent study, what‟s the #1 legal headache for U.S. businesses? A. Environmental regulation B. Patent protection C. International contract laws D. Employment law disputes E. LawyersSource: Fulbright & JaworskiManpowerGroup | September 13, 2012 9
  9. 9. According to the latest data, what are an employer‟s odds of winning at trial? A. It is unlawful for employers to win B. 22% C. 48% D. 68% E. 88%ManpowerGroup | September 13, 2012 10
  10. 10. According to the latest data, what are an employer‟s odds of winning at trial? A. It is unlawful for employers to win B. 22% C. 48% D. 68% E. 88%Source: Jury Verdict ResearchManpowerGroup | September 13, 2012 11
  11. 11. What hit record highs last year? A. EEOC complaints B. EEOC recoveries C. EEOC class actions D. EEOC love notes from employers E. All of the above except “D”ManpowerGroup | September 13, 2012 12
  12. 12. What hit record highs last year? A. EEOC complaints B. EEOC recoveries C. EEOC class actions D. EEOC love notes from employers E. All of the above except “D” Source: EEOCManpowerGroup | September 13, 2012 13
  13. 13. What‟s the #1 most common discrimination claim?A. AgeB. National OriginC. RaceD. RetaliationE. SexManpowerGroup | September 13, 2012 14
  14. 14. Retaliation is #1 1. Retaliation (36,258) 2. Race (35,890) 3. Sex (29,029) 4. Disability (25,165) 5. Age (23,264) Source: EEOCManpowerGroup | September 13, 2012 15
  15. 15. Which of the following is most likely to result in a humongous class action?A. I-9 violationsB. OSHA violationsC. FMLA violationsD. Wage and hour violationsE. Doing business in CaliforniaManpowerGroup | September 13, 2012 16
  16. 16. Which of the following is most likely to result in a humongous class action?A. I-9 violationsB. OSHA violationsC. FMLA violationsD. Wage and hour violationsE. Doing business in CaliforniaManpowerGroup | September 13, 2012 17
  17. 17. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)lawsuitslawsuits DEALlawsuits Or No?© 2011 ManpowerGroup 18
  18. 18. How Much Will YOU Pay? $100K - $1M+: $0 - 50K: $51-100K: Big pattern 1 plaintiff + 1 plaintiff + $1M: +/or no horrible horrible Pattern +/or reeaaallllllllly facts facts horrible horrible (32%) (28%) facts facts (39%) (1%)ManpowerGroup | September 13, 2012 19 Sources: EEOC, Jury Verdict Research
  19. 19. TECHNOLOGYTECHNOLOGYTECHNOLOGYManpowerGroup | September 13, 2012 2020
  20. 20. True or False? None of the laws that apply in the real world apply in the social media universe and therefore I can completely lose my mind and absolutely anything goes.ManpowerGroup | September 13, 2012 21
  21. 21. Same old laws … Non-discrimination Adverse impact FCRA GINA NLRA Negligent Hiring Off-duty Conduct Arrest & Conviction RecordManpowerGroup | September 13, 2012 22
  22. 22. Same old test … job- job- related related job- relatedManpowerGroup | September 13, 2012 23
  23. 23. Latest Stats: Employees62% “couldn’t live without the Internet”53% would rather lose nose than Facebook48% would swap pay for SM access29% access X-rated sites28% have posted work-related photos22% have posted/tweeted about a co-worker21% would turn down a job if unsocialSources: Cisco, Pew Research Center, McCann WorldGroup, Nielsen, DLA PiperManpowerGroup | September 13, 2012 24
  24. 24. Question: How do those about to enter the workforce rank the following in order of importance?A. Social Activities, Romance, Music, InternetB. Internet, Social Activities, Romance, MusicC. Music, Social Activities, Internet, RomanceD. Romance, Internet, Music, Social ActivitiesManpowerGroup | September 13, 2012 25
  25. 25. Question: How do those about to enter the workforce rank the following in order of importance?A. Social Activities, Romance, Music, InternetB. Internet, Social Activities, Romance, MusicC. Music, Social Activities, Internet, RomanceD. Romance, Internet, Music, Social ActivitiesSource: CiscoManpowerGroup | September 13, 2012 26
  26. 26. Latest Stats: Employers73% do no SM training68% monitor internet activity58% say SM benefits outweigh risks56% block access to some sites45% use SM to screen31% have disciplined for postings about employer25% have disciplined for excessive SM use19% ban SMSources: SHRM, Clearswift, DLA Piper, CiscoManpowerGroup | September 13, 2012 27
  27. 27. Which of the following is NOT an actual employee tweet? A. “Hate my job!! I want to tell my bosses how dumb they are and how meaningless this job is, then quit, and be happy!” B. “So my job was to test all the food at the new restaurant, can I just say, ughew. I’m going to taco bell.” C. “Smoking weed at work is so [expletive] great” D. “I’m really bummed that I’m working today, I asked off so I could study but my boss is a [expletive] who can’t read.” E. “I am working really hard right now and feel very fortunate to have a job.”ManpowerGroup | September 13, 2012 28
  28. 28. Which of the following is NOT an actual employee tweet? A. “Hate my job!! I want to tell my bosses how dumb they are and how meaningless this job is, then quit, and be happy!” B. “So my job was to test all the food at the new restaurant, can I just say, ughew. I’m going to taco bell.” C. “Smoking weed at work is so [expletive] great” D. “I’m really bummed that I’m working today, I asked off so I could study but my boss is a [expletive] who can’t read.” E. “I am working really hard right now and feel very fortunate to have a job.”ManpowerGroup | September 13, 2012 29
  29. 29. Search Checklist Be Consistent • All candidates or certain categories/departments • Same phase of interview process Designate Searchers • One employee, small group or 3rd party • Not hiring manager Limit Scope • Job-related, job-related, job-related • Restrict to certain approved sites • No age, race, religion, disabilities, genetics or other protected infoManpowerGroup | September 13, 2012 30
  30. 30. Search Checklist Disclose • Notify candidates that may use SM • Include on applications and other documents Document • Consistent process • Note legitimate job-related reasons for not hiring • Follow document retention policiesManpowerGroup | September 13, 2012 31
  31. 31. building theperfect social media ManpowerGroup | September 13, 2012 policy 32
  32. 32. 10 Essential Elements Tie to Vision + Handbook + Code Set Clear + Reasonable Expectations Define SM Brooooooooadly Protect Trade Secrets/Confidentiality Clarify Who Owns WhatManpowerGroup | September 13, 2012 33
  33. 33. 10 Essential Elements No Disparagement/Harassment Respect Copyrights NLRA Disclaimer Duty To Report Violations “Up to and including discharge”ManpowerGroup | September 13, 2012 34
  34. 34. SM Policy Starter Kit Latest Legal Developments Official NLRB Policy Official Blawg Sample Policy Other Fortune 500 Policies SM 101 ArticlesManpowerGroup | September 13, 2012 35
  35. 35. MEDICAL MEDICAL MEDICALManpowerGroup | September 13, 2012 3636
  36. 36. What‟s true about the ADAAA? A. It’s easier to establish a covered “disability” B. Mitigating measures can’t be considered C. Episodic or remission conditions are covered D. Individualized assessments are required E. Rigid leave policies will get you in trouble H. All of the aboveManpowerGroup | September 13, 2012 37
  37. 37. What‟s true about the ADAAA? A. It’s easier to establish a covered “disability” B. Mitigating measures can’t be considered C. Episodic or remission conditions are covered D. Individualized assessments are required E. Rigid leave policies will get you in trouble H. All of the aboveManpowerGroup | September 13, 2012 38
  38. 38. Bob is normally a responsible, quiet employee. One day, however, he shows up two hours late and acts “obscenely happy, wearing make-up, avoiding eye contact, continuously rubbing his legs and touching everyone.” He also does a “crazy monkey arm dance” and begins “twirling and talking gibberish, flying around in the office in a hyper state.” Then he leaves. What do you do? A. 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 behaviorManpowerGroup | September 13, 2012 39
  39. 39. Bob is normally a responsible, quiet employee. One day, however, he shows up two hours late and acts “obscenely happy, wearing make-up, avoiding eye contact, continuously rubbing his legs and touching everyone.” He also does a “crazy monkey arm dance” and begins “twirling and talking gibberish, flying around in the office in a hyper state.” Then he leaves. What do you do? A. 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 behaviorManpowerGroup | September 13, 2012 40
  40. 40. An employee comes into your office at 4:59 on a Friday and informs you that he suffers from multiple medical conditions, including “work-induced narcolepsy,” “spontaneous combustion syndrome” and “episodic cubicle-confinement hyper-grumpiness.” He demands several accommodations, including: (1) a portable I.V. 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?ManpowerGroup | September 13, 2012 41
  41. 41. JOB ACCOMMODATION NETWORK jan.wvu.edu 800-526-7234ManpowerGroup | September 13, 2012 42
  42. 42. WAGE & HOURWAGE & HOURWAGE & HOURManpowerGroup | September 13, 2012 4343
  43. 43. What celebrity was recently sued for a plethora of wage and hour violations?ManpowerGroup | September 13, 2012 44
  44. 44. LADY GAGAManpowerGroup | September 13, 2012 45
  45. 45. Whats Next? Hot Spots IC Classifications OT Classifications (especially Administrative) Work @ Home Pre-shift “Work” (Donning/Doffing, Logon/Logoff)ManpowerGroup | September 13, 2012 46
  46. 46. Whats Next? Hot States California Illinois Massachusetts Minnesota New Jersey New York Pennsylvania WashingtonManpowerGroup | September 13, 2012 Source: Seyfarth Shaw 47
  47. 47. UNIONS UNIONS UNIONSManpowerGroup | September 13, 2012 4848
  48. 48. True or False: The NLRB only has jurisdiction over unionized companies. A. True B. FalseManpowerGroup | September 13, 2012 49
  49. 49. True or False: The NLRB only has jurisdiction over unionized companies. A. True B. FalseManpowerGroup | September 13, 2012 50
  50. 50. Facebook Firings Don‟t discipline for Be especially wary of comments about wages group comments or work conditions OK (maybe) to discipline Review policy to make for comments unrelated sure not overbroad to work conditions or out-of-dateManpowerGroup | September 13, 2012 51
  51. 51. PICTURE
  52. 52. Employment Law Talk ShowWe are • 80% of jobs are sedentaryStressssssed • 62% say workload increased last 6 months • 40% are sleep-deprived • 33% are chronically overworked • 32% increase in workweek in past 25 yearsSources: Pennington Biomedical Research Center, Kronos, National Sleep Foundation, • 1 in 25 bosses is a certifiedFamilies & Work Institute, Harris Interactive, Dr. Paul Babiak psychopathManpowerGroup | September 13, 2012 53
  53. 53. Employment Law Talk ShowMore Stress = The Bottom Line:More Suits $200-$300B is lost each year due to stress-related absenteeism, burnout, decreased productivity, WC claims, turnover and insurance costs.ManpowerGroup | September 13, 2012 Source: American Institute of Stress 54
  54. 54. Employment Law Talk ShowManpowerGroup | September 13, 2012 Source: ManpowerGroup 55
  55. 55. If you had to boil all of HR and employment law down into ONE simple word, what would it be?ManpowerGroup | September 13, 2012 56
  56. 56. EMPLOYMENT LAWSING-ALONG
  57. 57. Employment Law Talk Show Employment law can 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 jailManpowerGroup | September 13, 2012 59
  58. 58. Employment Law Talk Show Don‟t put things off „til tomorrow Yes investigate right away Don‟t procrastinate And don‟t retaliate Or the more you will have to payManpowerGroup | September 13, 2012 60
  59. 59. Employment Law Talk Show 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 attorneysManpowerGroup | September 13, 2012 61
  60. 60. Employment Law Talk Show Technology may give you headaches The feds they may knock on your door But if you prepare Be consistent and fair They won‟t ever bug you no moreManpowerGroup | September 13, 2012 62
  61. 61. Employment Law Talk Show 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 attorneysManpowerGroup | September 13, 2012 63
  62. 62. Employment Law Talk Show If your brain‟s too full to remember All the stuff we just covered above There‟s one simple word That sums up what you heard Love, Love, Love, Love, Love, Love, LOOOOOOOOOOOOOOOOOOOVE!ManpowerGroup | September 13, 2012 64
  63. 63. Employment Law Talk Show 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 attorneysManpowerGroup | September 13, 2012 65
  64. 64. marktoth.com @manpowerblawgManpowerGroup | September 13, 2012 66
  65. 65. September 13, 2012

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