Employment Law Talk Show
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This webinar covered various employment law topics including wage and hour issues, unions, investigations, terminations, and ADA compliance. It provided updates on recent legal developments, answered audience questions, and offered practical advice and checklists for compliance. The presentation emphasized the importance of knowing employment laws, properly investigating complaints, consistently applying policies, and treating employees with dignity to avoid costly litigation. It also provided additional free resources for participants to stay informed on legal issues.
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Employment Law Talk Show
- 1. with Mark Toth Chief Legal Officer North America
- 2. General Information • Share the webinar • Votes (polling questions) • Rate (before you leave) • Attachments (download)
- 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. Earning HRCI Credit To receive 1 HRCI for this webinar, participants must attend the webinar in its entirety (one person per computer).
- 5. with Mark Toth Chief Legal Officer North America
- 6. Today’s Webinar Designer: YOU What YOU Want Us To Talk About What YOU Really Need to Know YOUR Questions YOUR 187% Free Resources YOUR Chance to Win Valuable Prizes
- 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. Tweet along: #mpwebinar Follow Mark on Twitter: @manpowerblawg Visit Mark’s Blawg: marktoth.com Find us on Facebook: facebook.com/manpowerUS
- 9. What YOUWant Us To Talk About
- 10. Wage & Hour Latest Developments Unions Investigations Terminations Litigation Prevention/Management SM @ Work Hiring Medical Leave Outside Counsel Management Source: ManpowerGroup Employment Blawg 1 2 3 4 5 6 7 8 9 10
- 11. Is complying with employment laws getting easier or harder? Question Really very extremely easier Somewhat easier No change Somewhat harder Really very extremely harder 0.1% 3.1% 22.1% 61.4% 13.3%
- 12. Are you seeing an increase in employment law claims? Question Yes, substantial increase Yes, moderate increase No change No, moderate decrease No, substantial decrease 3.3% 28.7% 65.9% 2.1% 0.0%
- 13. @manpowerblawg If you had to boil all of employment law down to one word, what would it be?
- 14. What YOU Really Need to Know
- 15. Q Tell us all we reeeally need to know about the latest world of work legal developments in 10 minutes or less (please).
- 16. The Supremes Rule Retaliation Standard Toughened Supervisor Definition Narrowed Class Action Waivers Upheld Class Action Fairness Reinforced DMV Plaintiff Recruitment Curtailed
- 17. What Else is New? New FMLA New HIPAA Rule New EEOC ADA FAQs New I-9s GINA Is Real
- 18. What Else Else is New? DOMA, FMLA & Same-sex Spouses Online Whistleblower Complaints Micro-units OK Federal Contract Compliance Manual Non-compete Suit Explosion
- 19. 414.751.0126 Your first name + answer
- 22. YOUR Questions: Wage & Hour
- 23. What ONE THING should I do right after this webinar to avoid my company becoming the next wage and hour class action victim? Q
- 24. 1. On-call time 6. Travel during work hours 2. Commute time 7. Changing in/out uniform 3. Wait time 8. Donning/doffing safety gear 4. Meals < 30 9. Walking from changing area 5. Travel non-work hours 10. Rest > 30
- 25. The FMLA in Plain English 1. On-call time 6. Travel during work hours 2. Commute time 7. Changing in/out uniform 3. Wait time 8. Donning/doffing safety gear 4. Meals < 30 9. Walking from changing area 5. Travel non-work hours 10. Rest > 30 1. On-call time 6. Travel during work hours 2. Commute time 7. Changing in/out uniform 3. Wait time 8. Donning/doffing safety gear 4. Meals < 30 9. Walking from changing area 5. Travel non-work hours 10. Rest > 30
- 26. Exemption Basics Executive • Primarily engaged in management • Direct 2 or more FTEs • Authorized to affect terms and conditions of others through hiring, firing, etc. Administrative • Office or non-manual work related to general business operations • Independent judgment and discretion in significant matters Professional • Functions that require advanced knowledge in a field of science or learning Computer • Functions that require application of systems analysis techniques, design or development of computer systems or programs, or the creation or modification of programs relating to operating systems Outside Sales • Make sales and regularly work away from the employer’s business
- 27. Wage and Hour Solutions Know the Law Train managers and employees on time-keeping Complaint system: investigate promptly & thoroughly Audit classifications and records Address any discrepancies immediately
- 29. True or False? The NLRB only has jurisdiction over unionized companies. A. True B. False
- 30. The NLRB only has jurisdiction over unionized companies. A. True B. False True or False?
- 31. Can you explain all the NLRB appointment shenanigans? Who’s on the Board now, who’s not and why should employers care? Also, is it true that all of the Board’s decisions of the past few years are invalid due to unconstitutional appointments? Q
- 32. It seems like the government keeps changing its position on what employers can and can’t do when it comes to social media. Can you sort it all out in one handy slide (please)? Q
- 33. Every Social Media Case On 1 Slide “Protected concerted activity” Union or non-union > 1 Wages / work conditions Same in cyberspace
- 34. So what are employers reeeally using social media for? Q
- 35. To Find Bad Stuff 50%: Inappropriate photos/info 48%: Drug /alcohol use 33%: Bad-mouthing prior employer 30%: Bad communication skills 28%: Discriminatory comments
- 36. ManpowerGroup | Halloween 2012 YOUR Questions: Investigations
- 37. ManpowerGroup | Halloween 2012 I’m thoroughly confused about the new rules on investigation confidentiality. What’s the deal? Q
- 38. ManpowerGroup | Halloween 2012 Investigation Confidentiality Witness Protection Evidence Destruction/Fabrication Cover-up Duration of Investigation Company Time/Property
- 39. ManpowerGroup | Halloween 2012 OK, I admit it. I’m an HR person who doesn’t really know all the steps in a good investigation. Please don’t tell my boss. Where can I find a handy guide to investigations that can help keep me from getting fired? Q
- 40. ManpowerGroup | Halloween 2012 Investigation Checklist Step One: Prepare Plan the investigation strategy Review relevant policies and handbook provisions Evaluate pros and cons of investigation Pick a competent and impartial investigator Analyze potential risk factors Review allegations and prep list of witnesses and questions Establish a confidential investigation file
- 41. ManpowerGroup | Halloween 2012 Step Two: Investigate Interview the complaining employee first Now – don’t procrastinate View the site of the alleged incident Each relevant witness identified by the complaining party should be interviewed Supervisors should be involved to provide context Take the time to gather all potentially relevant evidence Interview the accused Gather potentially mitigating evidence and talk to witnesses named by accused Analyze all the evidence objectively Talk to an attorney about any potential legal issues End the investigation with a written report and appropriate communication Investigation Checklist
- 42. YOU be the judge Who wins? A. Employer B. Employee C. Neither
- 43. Who wins? A. Employer B. Employee C. Neither YOU be the judge
- 45. 11. Not telling real reasons 10. Poorly planned termination meeting 9. Ignoring policies and contracts 8. Bad post-termination communication 7. Ignoring past practice 6. Emotion over facts 5. Not getting a release 4. Inadequate documentation 3. Non-job-related factors 2. Not treating with dignity and respect 1. NOT firing someone who should be fired
- 46. Termination Review Employee Handbook Employment Agreement Collective Bargaining Agreement Personnel File Performance Appraisals Discipline Notices Manager Notes ALL other relevant docs
- 47. Termination Test Reasonable notice of consequences?Notice Related to (a) efficient and safe operations and (b) performance company should reasonably expect?Rule Full, fair and timely?Investigation Sufficient evidence that guilty as charged?Proof Rule consistently applied to all?Consistency Punishment fit the crime, considering (a) seriousness of offense and (b) service record?Penalty
- 48. Termination Meeting Manager, HR, no 3rd parties (except union rep). Security? Outplacement? Manager: decision. HR: all else. Final pay + notice (some states). In person. Not manager’s office. No projectiles. Mid-week #1, Friday #2, Monday worst. End of day #1, morning #2. Avoid holidays. Compassionate. Who? What? Where? When? How?
- 49. LIGHTNING Round
- 50. How Much Will YOU Pay? $1M+ Big pattern +/or reallllllly horrible facts 1% $100K-$1M Pattern +/or really horrible facts 39% $51-$100K 1 plaintiff + horrible facts 28%32% Sources: EEOC, Jury Verdict Research $1M+ Big pattern +/or reeeeeeeally horrible facts $100K-$1M Pattern +/or really horrible facts $51-$100K 1 plaintiff + horrible facts $0-$50K 1 plaintiff + no horrible facts
- 51. ManpowerGroup | Halloween 2012 ADA How NOT To Have an inflexible leave policy Make snap judgments Don’t interact Don’t accommodate Put dumb stuff in writing
- 52. ManpowerGroup | Halloween 2012 Discuss Discuss Discuss Discuss
- 53. ManpowerGroup | Halloween 2012 Making Intermittent Leave Simple Notice, 7 days to cureIncomplete Certification Clarify/authenticate HR, not supervisor Contact Provider Recert from original provider OR employer-paid 2nd opinion Recert or 2nd Option If conflict, final & binding 3rd Option
- 54. ManpowerGroup | Halloween 2012 EEOC Hiring Pregnancy Harassment Vulnerable Workers Access to Legal System ADA LGBT
- 55. Stay out of Jail ACTION PLAN
- 56. Prison-free Plan KNOW THE LAW USE THE INVESTIGATION CHECKLIST FOLLOW THE TERMINATION TIPS LOVE YOUR EMPLOYEES FOCUS ON KEY PRIORITIES Known violations Systemic issues Wage & hour EEOC priorities
- 57. 187% Free Stuff
- 58. Open 24 / 7 / 365.25 World’s Most Fabulous Employment Law LIBRARY
- 59. On the Blawg LEAST LIKELY TO BE INCARCERATED CONTEST
- 61. 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 jail
- 62. 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
- 63. 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
- 64. Don’t put things off til tomorrow Yes investigate right away Don’t procrastinate Cuz the more that you wait The more you will have to pay
- 65. 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!
- 66. 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
- 67. INSERT NEW ICONTHANK YOU!
- 68. INSERT NEW ICON Did you watch this webinar as a recording? Please request your certificate at www.manpowergroup.us/requesthrci Photo credits: Shutterstock
Editor's Notes
- [Ellen]
- [Ellen]
- [Ellen]
- [Ellen]
- Mark: Thanks, Ellen. Hello everyone and thank for joining us for the Employment Law Talk Show. Today’s presentation is brought to you, of course, by ManpowerGroup: making innovative workforce solutions humanly possible. Ellen: How many registrations do we have here today? [Answer.] Wow. Here’s our agenda . . .
- We’re going to do something a bit different with this webinar. Rather than listen to me blah blah blah the entire time, you’ll get a chance to hear what other far-more-interesting experts have to say about the world’s hottest employment law topics. I’ll MC, provide color commentary, conduct contests for valuable prizes and keep things moving at a rapid-fire pace to make sure you stay awake.As always, it’s all about YOU. Today’s webinar truly was designed by YOU. If you don’t like it you have no one but YOU to blame. We’ll start with the results of our pre-webinar survey in which we attempted to determine what YOU really want us to talk about?The #1 thing you wanted to hear about is next on the screen there: What YOU really need to know. In other words, everything that’s happened in the wonderful world of workplace law so far this year.Next is YOUR questions. You submitted roughly 28 bazillion ?s before the webinar and will continue to do so during today’s show. Just send ‘em in. Ellen: Could you please tell our lovely audience how they can do that?To make sure you stay tuned for the entirety of today’s webinar, toward the end we’ll tell you where YOU can get our 187% free resources on every employment law topic under the sun.But that’s not all. Throughout and even after the webinar we’ll give you several chances to win valuable prizes.AND – if you’re good – we might even sing you a song. Based on feedback we got following his last appearance with us, we promise to keep the mic as far from Joel as humanly possible.As always, we’re going to move FAST. This will be a high-impact and quite possibly perspiration-producing presentation. Everything will be available later in a recorded as well as SlideShare version if you need to go back and review. Let’s go!
- 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, Ellen, Joel, Kathleen, 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.
- Simple. Practical. Why we use MW. JW. KO. We asked visitors to our Blawg: What do you reeeeally want us to talk about? Here are the results, starting at the top.After nearly a thousand votes, here is your official top ten:Latest DevelopmentsWage & HourUnionsInvestigationsTerminations and then the also-rans you see there on your screen.We designed the webinar around your votes. As always, thanks for your participation!
- Here’s our semi-annual poll in which we ask: Is complying with employment laws getting easier or harder? Sadly, only 0.1% of you said really very extremely easier and only 3.1% said somewhat easier. By far the biggest # of you said somewhat harder – 61.4%. In other words, 24 times more of you said it is getting harder out there rather than easier. That’s probably why you’re here. Which leads us to our next pre-webinar poll …
- We asked: Are you seeing an increase in emp’t law claims? Similar results. A whopping 0.0% said they’re seeing a substantial decrease. In fact, 15 times more of you said they’re seeing an increase vs a decrease. The good news is that there is some stability with nearly 2/3 of you saying there’s no change.
- 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 Tweet-o-rama. The 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 at giftcertificates.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.
- Does the Supreme Court love business? You be the judge. First, the Court raised the standard for proving Title VII retaliation claims to “but for” causation instead of the lower “mixed motive” standard. “But for” causation requires proving that the employer would not have taken an adverse employment action “but for” an improper motive. “Mixed motive” causation requires only proof that the improper motive was one of multiple reasons for the employment action. The Court also narrowed the definition of “supervisor” that triggers vicarious employer liability for harassment to those with the power to take “adverse employment actions” such as hiring, firing, demoting and reassigning, rather than those who merely direct or oversee other employees. The court also upheld class action waivers (albeit in a non-employment context); struck down attempts by trial lawyers to avoid the effects of the Class Action Fairness Act, a 2005 statute designed to steer class actions into federal rather than state courts; and even ruled that trial lawyers can’t troll DMV records to recruit plaintiffs for lawsuits. [Here’s a question for Kathleen: In your expert judgment, which of these do you predict will have the most impact?]
- You can find details on each of these on the Blawg. Just search for 2013 Halftime Report. Quickly, there are new FMLA forms, rules, posters and FAQs to cover all the new military leave related pieces. Hopefully you’re all aware that the Department of Health and Human Services issued a 563-page final rule regulating protected health information. In short, the message is pretty simple: protect … health … information. You have exactly 25 days to make the appropriate updates. Deadline is September 23. More details on the Blawg. The EEOC recently issued new guidance on accommodating cancer, diabetes, epilepsy and intellectual disabilities. There’s also a new I-9 form and lots of new enforcement efforts to go with it and last on the screen there, the Genetic Information Nondiscrimination Act is now officially real. The EEOC recently settled its very fist GINA suit. [Joel: Here’s a question. Keep hearing that new OFCCP disability rules are coming. Are they? When? What employers are covered? What do they require?]
- What else ELSE is new? Here’s a question: Do employers have to grant same-sex spouses FMLA leave in the defenses of the SCt’s dumpage of the Defense of Marriage Act?[Joel/Kathleen: care to weigh in?] It depends (there’s that phrase again) on whether the state recognizes same-sex marriage. DOL updated its FMLA fact sheet to capture that position. Some other wrinkles … Whistleblowers can now blow the whistle electronically for any of the 22 whistle-blower statutes overseen by OSHA. A federal court ruled that the NLRB has wide discretion in allowing unions to organize small micro-units unless the employer can prove that it is “arbitrary, unreasonable or an abuse of discretion.” And just last week the OFCCP released its brand new Federal Contractor Compliance Manual, the “procedural framework for executing quality and timely compliance evaluations and compliance investigations.” One other interesting bit: If you feel like you’re getting sued a lot more often for non-compete issues, you’re not alone. The # of lawsuits filed over nc issues has risen more than 60% in the last decade and is at an all-time high.
- 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 be our next winner of a $50 gift certificate good for any of the fine merchants @ giftcertificates.com. Just type in your first name so we can identify you + your answer. Here’s the question: True or False: TV celebrity chef Paula Deen recently lost a race discrimination lawsuit. [Repeat.]
- While we’re waiting for answers to come in, here’s the answer to our Tweet-o-rama. The absolutely key to HR, employment law, 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.Winner?
- And here’s the answer to our text-o-rama. FALSE. Probably surprising to some given all the media attention. While there was a lot of publicity about Paula Deen’s recent lawsuit in which she admitted under oath that she used racial slurs, she actually WON her suit. The reason? The suit was brought by a Caucasian individual who wasn’t the actual target of the slurs but who neverthless claimed she was the victim of a hostile work environment. The court found she had no standing to sue. But while she may have won Ms. Deen reeeeeeally lost. Her sponsorships have split and her career has crumbled. Please pleaseplease never ever use a racial slur even in jest. Could end your career quickly.
- And now it’s on to YOUR questions. Before we plunge in to YOUR wage and hour questions I’d like to answer my favorite question that we’ve received thus far. Here it is: Why do lawyers answer every question with “it depends”? I’ll take that one: It depends. Thanks for asking. Honorable mention ?s we received (and these are actual ?s that people have actually taken the time to type in): Why do we drive on the right side of the road in the US while in the UK they drive on the left? Joel? Here’s another: When do we get to relax? Answer: After we die. Another: What recommendations do you have for those of us in CA? Answer: Leave. And last: “Why are manhole covers round?” That questioner even provided the answer: Because the holes are round. You can’t say you didn’t learn something valuable here today.
- [This is probably the most significant question y’all will answer all day so I’ll ask you both. Kathleen: What ONE thing would you recommend? Joel?]
- Here’s an awesome little tool that every HR, business and legal person should memorize. Virtually everything you need on one screen. Gaze at the words you see there and try to determine for yourself which of these big 10 employers generally are required to pay under the FLSA. Done? OK here’s the answer …
- Generally speaking, everything in white. [Read.]Pretty simple. All the FLSA is doing here is trying to get employers to pay for what they should pay for without the government or plaintiffs’ attorneys or a judge having to tell you that. Again: LOVE your employees. Pay ‘em fairly.
- Here on one screen [Joel or Kathleen: Here’s an intriguing question from one of our attendees –When is an exempt employee entitled to OT pay?]
- Here’s another wage and hour question: Is it legal to set a salary ceiling for Ees and lay off those who reach it and then rehire new people?
- And now it’s on to the next category of YOUR questions: Unions.
- ***POLL*** Here’s a question for YOU. We asked this a couple of webinars ago and far too many peeps got it wrong. Let’s try it again. [read]
- Some employers still don’t realize that the NLRB and the National Labor Relations Act it enforces apply to both unionized and NON-unionized companies. If you don’t have a union that doesn’t mean you can just doze off til the next section.
- [Joel: Here’s one for you …] Think we’ll see expedited elections get resurrected? [Mark: If not raise -- A fed ct ruled 2 weeks ago that the NLRB’s top lawyer was improperly appointed. So could add even more wrinkles to an already wrinkly situation.]
- I’ll take this one. Here’s a handy one-page guide to every recent NLRB decision. Basically, anything that infringes on the blue box you see there, the NLRB will have a problem with. Protected concerted activity is the key concept. Again, applies in union AND non-union settings. Any time you have more than one employee discussing virtually anything related to wages or work conditions you need to be careful. And as many employers are discovering, the rule really isn’t any different in cyberspace. Whether it’s in the cafeteria or on Facebook be very careful about punishing employees for anything that could be protected concerted activity. For more, check out our handy SM Starter Kit in the EL Tool Box. Lots more there on this topic.
- More and more employers are using SM to screen candidates. More use it to find bad rather than good stuff. Up 10% in just the past year. In other words, people would be much better off if they never ever posted a single thing online. Here are the top 5 things that kept peeps from getting hired. [Read.] Reeeeally glad Facebook didn’t exist when I was a pup.
- Blanket prohibitions saying thou shalt not ever under any circumstances now or forever more talk about this investigation are now on both NLRB and EEOC hit list. NLRB: “concerted activities.” EEOC: “complaint chilling.” Here are some general guidelines. If you can show a legit interest in protection witnesses or avoiding evidence disappearing or a cover-up and you only require confidentiality for the duration of the investigation and on company time and property, you’re more likely to withstand NLRB or EEOC scrutiny. If not, you might not. Of course, that last one could swallow everything else up if employees start blabbing the moment they get off work. But that’s the latest guidance. [Joel/Kathleen: Lots of ?s on this. What are employers reeeeally doing in this area?]
- [Read] Ask and you shall receive.
- Got several billion ?s in this area. Here’s everything you need to know, courtesy of our updated Investigation Checklist.2 steps. Prepare and Investigate. This checklist was put together based on thousands of collective hours of litigationexperience. Follow these and you may never see the inside of a courtroom ever again.P stands for plan the investigation strategy. Waaay too many employers skip this step and plunge in without preparation. Don’t. R is for review all relevant policies at the outset. E: Evaluate the pros and cons of investigation. Investigate ALL claims of discrimination but not everything else warrants an investigation. P: Pick a competent and impartial investigator. If you don’t, the entire investigation could be attacked as a sham. Next, analyze potential risk factors such as protected classes, medical leave issues, potential retaliation, etc. R: Review the allegations and prepare a witness and question list so you don’t forget anything. And then the last step of PREPARE is to Establish a confidential investigation file away from prying eyes.If you skip any of these steps, your investigation could be in peril. [Let’s stop and let people absorb this for a moment. Here’s a question: Who makes the ideal investigator in your mind?]
- Now that you’re PREPAREd, it’s time to INVESTIGATE. I: Interview the complaining employee first to get the whole waterfront of allegations and know what you’re dealing with. Keep asking: “Anything else?” to close things off.N: Now. Don’t procrastinate. Act while memories, docs and evidence are still fresh.V: View the site of the alleged incident. Columbo always did it, so should you. Might miss the key to the puzzle.E: Each witness ID’d by the complainant should be interviewed next and then interview S Supervisors to provide needed context and background.And then T take the time to gather all relevant evidence.Next step: I interview the accused. Give him or her a chance to tell their side of the story. Don’t rush to judgment and assume they’re guilty.G: Gather all potentially mitigating evidence and interview any Ws ID’d by the accused.And then A analyze ALL the evidence objectively. Really think it thru. Imagine the govt or a judge ?g your every step and conclusion.T talk to your favorite emp’t law attorney – Joel Spitz for example – about potentially thorny legal issues.And then E end the investigation with a written report and appropriate communication.Here’s a question for you Kathleen as someone who’s actually spent a time in both HR and Legal. What 1 thing do you wish managers or HR folks would start or stop doing when it comes to investigations?A recent case out of my home state of KY shows the importance of resisting the temptation to skip any steps just because you think you’ve got a reeeally solid case. A sexual harasser was caught dead-to-rights. The HR person was so sure that he could fire the person to show how strong the company is against harassment that he wrote up the termination notice prior to meeting with the plaintiff to get her side of the story. Court ruled against the employer. Don’t skip steps.
- ***POLL*** Here’s another real-life case. As I read it, weigh in. Let’s say you’re a male supervisor. You have a male employee that’s giving you grief but you don’t have the goods to fire him. So what do you do in today’s modern world? You create a fake Facebook profile as a woman named Layla Shine replete with a womanly photograph and everything. You then send the male employee a friend request. He accepts it. You then dig around on the employee’s site, print out some of his rather inappropriate comments and use ‘em to support a termination for “poor judgment.” The employee sues. Who wins?
- The ruling went in favor of the employee because the manager violated the federal Stored Communications Act or SCA. In short, if you use fraudulent means to obtain social media access you may run afoul of the SCA. Judges and juries don’t like it when employers use shady tactics. When in doubt, don’t be sneaky.
- 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.[Joel/Kathleen: One theme of questions is how these tools apply in real life. So, Joel/Kathleen, any real-life examples of the termination troubles in the past year on this list you’d like to share?]
- Before you terminate anyone, here’s a handy checklist to make sure you review each and every key piece of information. Organizations miss one or more of these all the time. [Joel/Kathleen: Lots of questions of this variety – What ONE thing do you see employers most often mess up in this area?]
- 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.Kathleen: How about real-life examples where a client failed to follow one of these and the result wasn’t pretty? Joel?OK, let’s apply this to a real-life case. Let’s say you’re a manager at a bank. A 68-year-old employee has worked for you for 11 years. She has no disciplinary history and just a few months ago she got an “exceeds expectations” performance review. One day, however, the employee tells a bank customer who’s a friend of hers that when she sees her ex-boyfriend she QUOTE “would wear her nightgown and it won’t be my flannel one.” You have a published policy that provides that most first-time issues should be addressed by a warning and/or training but includes a statement that when QUOTE “the employee has done something so egregious that immediate dismissal is appropriate.” You conduct a full and quick investigation and conclude that the employee actually made the comment. [OK, experts, apply the test. Should she be fired?] Was there notice of consequences? What about the second test? Yep. Third? Yep. Fourth? Yep. Fifth? Hmm. Sixth? Bigger hmmmmmm. So what happened in real life? The employer didn’t apply a test like this, made an example of the employee and fired her. She sued for age discrimination and won primarily because of a failure to meet the last step. The court found that the penalty for the employee’s rather innocuous non-flannel nightgown comment in light of her spotless 11-year-career and recent exceeds expectation rating was more deserving of a warning rather than firing.
- Another big area of ?s is: How exactly do we handle the termination meeting to reduce risk? Here on 1 slide are the world’s greatest best practices in this area, based on lots of conversations with the world’s greatest employment lawyers and HR folks.[Read]
- Question: I’m facing a lawsuit but have no idea how much to settle for? Help!So, how much will you have to pay? 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.One recent note about settlements: one employer recently opted to pay a 150 thousand dollar settlement entirely in quarters. That’s 600 thousand quarters. 4 tons. 11 football fields long. Wouldn’t advise doing that.
- Lots of ?s on ADA pitfalls. 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. The EEOC already has a $20M settlement in such a case. 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, do like far too many employers have done and memorialize your discriminatory acts in writing for future judges and juries to see. [Again, Joel and Kathleen, it’s all about what? That’s right: LOVE!]
- 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.
- Several peeps asked this question: How do you reduce intermittent FMLA leave abuse? Here’s our handy-dandy one-page chart we’ve discussed on previous webinars.. You can print out the chart and frame it in your cube and then in the next few days we’ll tell you what it all means.
- Here’s an answer to the question: What is the EEOC really targeting? These are what the EEOC itself says are its enforcement priorities, based on its latest Strategic Enforcement Plan. Now more than ever the EEOC will looking at systemic issues in each of these categories: Hiring practices (including screening and testing), Vulnerable Workers, disabled employees covered by the ADA, LGBT employees, those who lack access to the legal system, harassment victims and pregnant employees. Want the EEOC to come after you? Mistreat employees in one or more of these categories.
- Now it’s time to start wrapping things up with our official 2013 Stay out of jail ACTION PLAN.
- 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. Use the investigation checklist we gave you and the termination tips. And – 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.
- 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.
- Immediately following this webinar we’ll have our Least Likely to be Incarcerated Contest on the blawg – that’s marktoth.com. Answer the questions correctly and you just might win a valuable prize.
- And last but not least, we’ll close today’s festivities with our new and improved Employment Law Sing-a-long. Research shows that you’re far more likely to remember something if you actually sing it. That’s why you remember the lyrics to bad 70s songs but not the rules of the FMLA. Please sing along with gusto -- the words will appear on your screen. And to make this even more interesting, the person who sends us video and/or photographic proof of the most enthusiastic singing along will win a prize. Just email your submissions to blawg@manpower.com. That’s b-l-a-w-g@manpower.com. Of course, feel free to tweet ‘em for all the world to see as well.
- 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.