Toledo - All New Employment Law Quiz Show

©2010 Manpower Inc.
The All New Employment Law
QUIZ SHOW
Mark Toth
Chief Legal Officer NA
November 16, 2010

©2010 Manpower Inc.©2010 Manpower Inc.
2Toledo HR Association
Today’s Agenda
• “Smartest Person In the Audience” Quiz Show
• $584 billion in tools & tips
• What’s new? What’s next?
• Stay Out of Jail “To Do” List
• Employment Law Sing-along Song

3
Official Disclaimer
The material presented herein should not be relied
upon or construed as legal advice. For specific
information on recent developments, particular
factual situations or the effect of a particular law, the
opinion of qualified legal counsel should be sought.
Please consult with your own Legal and HR
Departments before making any changes.

4Everything About Employment Law
Smartest Person
in the Audience
QUIZ
SHOW

5Doing Good While Doing Well
January 30, 2015
Deep Philosophical
QUESTIONS

1 point
(If at least semi-humorous)
Know any good
lawyer jokes?

Top 3 Lawyer Jokes Of All Time
What do you call 99 skydiving lawyers?

Skeet.

Skeet.
How many lawyers does it take to shingle a
roof?

Skeet.
roof?
Depends how thin you slice ‘em.

Skeet.
roof?
Why does California have the most lawyers
and New Jersey the most toxic waste
dumps?

Skeet.
roof?
Why does California have the most lawyers
and New Jersey the most toxic waste
dumps?
New Jersey got first pick.

lawsuits
lawsuits
lawsuits

According to a recent study, what is the #1
legal headache for U.S. businesses?
A. Environmental regulation
B. Patent protection
C. International contract laws
D. Employment law disputes
E. Lawyers

15
According to a recent study, what is the #1
legal headache for U.S. businesses?
A. Environmental regulation
B. Patent protection
C. International contract laws
D. Employment law disputes
E. Lawyers
Source: Fulbright & Jaworski

On average, how many employment
lawsuits are filed every day?
A. 55
B. 197
C. 362
D. 500
E. Too high to count

17
On average, how many employment
lawsuits are filed every day?
A. 55
B. 197
C. 362
D. 500
Source: Council on Education in Management

1 out of ___ employment law jury verdicts is
a million-dollar case.
A. 1 million
B. 1,000
C. 100
D. 10
E. 5

1 out of ___ employment law jury verdicts is
a million-dollar case.
A. 1 million
B. 1,000
C. 100
D. 10
E. 5
Source: Critical Measures
19

What’s the average employment
discrimination jury verdict?
A. $88,451
B. $102,925
C. $183,848
D. $317,032

What’s the average employment
discrimination jury verdict?
A. $88,451
B. $102,925
C. $183,848
D. $317,032
Source: Jury Verdict Research

What is the #1 most common
discrimination claim?
A. Age
B. Disability
C. Race
D. Sex

What is the #1 most common
discrimination claim?
A. Age
B. Disability
C. Race
D. Sex
Sources: Jury Verdict Research, EEOC

What are an employer’s
odds of winning at trial?
A. It is unlawful for employers to win
B. 22%
C. 42%
D. 62%
E. 82%

What are an employer’s
odds of winning at trial?
A. It is unlawful for employers to win
B. 22%
C. 42%
D. 62%
E. 82%
Source: Jury Verdict Research

What’s the best way to keep your
employment litigation costs from
bankrupting your organization?
A. Require all employees to sign
mandatory arbitration agreements
B. Take a “no settlement” approach to litigation
C. Require law firms to adhere to
billing guidelines, budgets and fixed fees
D. Move your business to Antarctica
so that you’ll have no employees
and thus no lawsuits

What’s
NEW?

What three words starting
with the letter “e” best
describe the government’s
current approach to
employment law?

30
Enforcement, Enforcement, Enforcement
• Chao (“compliance assistance”) versus
Solis (“new sheriff in town”)
• 200 new Wage & Hour Compliance Officers
• $25 million and 100 DOL enforcers to target
independent contractor misclassifications
• 50 new lawyers to enforce Title VII, ADA and IRCA
• ICE targeting 1,000 employers
• More and more OFCCP and OSHA audits
Toledo HR Association 30

A. I-9 violations
B. OSHA violations
C. FMLA violations
D. Wage and hour violations
E. Doing business in California
Which of the following is most likely to
result in a humongous class action?

Which of the following is most likely to
result in a humongous class action?
A. I-9 violations
B. OSHA violations
C. FMLA violations
D. Wage and hour violations
E. Doing business in California

Class Action Facts
• EEOC aggressively pursuing “systemic relief”
• 3,500+ class actions last year
• 500+% increase versus 2000
• 300+% increase in CA
• Nearly 90% are wage and hour
Sources: EEOC, Littler Mendelson, Department of Labor, Manpower Employment Blawg

How to Get Sued by the EEOC
• Don’t address potentially systemic discrimination
• Don’t adequately investigate complaints
• Don’t train managers
• Don’t follow your own policies
• Don’t fire “bad actor” execs
• Retaliate
• Act in bad faith

Is “looksism” illegal?
A. Yes
B. No
C. Maybe
35

Is “looksism” illegal?
A. Yes
B. No
C. Maybe
36

Looksism: Recent Cases
• Too hot for banking?
• Too ugly for Abercrombie & Fitch?
• S, XS or XXS??
37

Looksism: Recent Stats
• Looks: #3 most important success factor
• 68% say looks affects performance perception
• 2/3 would hesitate to hire an overweight candidate
• 84% would hesitate to hire candidate who looks
“significantly older” than co-workers
• 46% favor anti-looksism law
KEY: JOB-RELATED, JOB-RELATED, JOB-RELATED
Source: Business Week
38

A. Yes
B. No
C. Maybe
Is obesity discrimination illegal?
A. Yes
B. No
C. Maybe

The Facts on Obesity
• Weight discrimination is more common than
discrimination based on disability, religion, national origin
and sexual orientation (and only slightly less common
than race, gender and age discrimination)
• Women are twice as likely as men to face weight
discrimination
• Obesity costs U.S. employers $73 billion each year in
medical costs, lost productivity and absenteeism
Sources: Duke University, Yale University

The Law on Obesity
• No federal law includes obesity as protected class
• Michigan and a few municipalities (e.g., San Francisco
and Washington, D.C.) prohibit obesity discrimination
• Workplace weight standards could constitute disparate
treatment discrimination if they adversely impact women
• EEOC: new suit alleges obesity is covered under ADA

43Toledo HR Association 43
A. The EEOC issued regulations implementing the Genetic Information
Nondiscrimination Act (GINA)
B. The DOL issued a rule that will require employers to publish 401(k)
fees and expenses
C. The IRS delayed the PPACA requirement that employers provide the
aggregate cost of “applicable employer-sponsored coverage” on W-2
Forms starting Jan. 1, 2011
D. OSHA fines will likely increase due to new enhanced penalty
procedures
E. It’s now easier for unions to obtain injunctions during union elections
F. The government issued a new toolkit to help employees with
disabilities return to work
G. All of the above
What Else is New?

A. The EEOC issued regulations implementing the Genetic Information
Nondiscrimination Act (GINA)
B. The DOL issued a rule that will require employers to publish 401(k)
fees and expenses
C. The IRS delayed the PPACA requirement that employers provide the
aggregate cost of “applicable employer-sponsored coverage” on W-2
Forms starting Jan. 1, 2011
D. OSHA fines will likely increase due to new enhanced penalty
procedures
E. It’s now easier for unions to obtain injunctions during union elections
F. The government issued a new toolkit to help employees with
disabilities return to work
G. All of the above
What Else is New?

A. New machine called Pepper Mouth that emits
a foul odor when employees use foul language
B. New TV show called The Naked Office in
which employees are encouraged to get
naked to help resolve workplace disputes
C. Online service that provides fake
references for a small fee
D. Green cards will actually be green again
E. All of the above are very real
Which of the following is NOT real?

technology
technology
technology

What percentage of men have viewed
Internet porn at work?
a. .07%
b. 2.9%
c. 14%
d. 25%
e. 33%
f. 118%

What percentage of men have viewed
Internet porn at work?
a. .07%
b. 2.9%
c. 14%
d. 25%
e. 33%
f. 118%
Source: Harris Interactive

1 out of every ___ employees has forwarded
a sex-related e-mail at work.
A. 50
B. 10
C. 7
D. 3
E. 2
F. 1

1 out of every ___ employees has forwarded
a sex-related e-mail at work.
A. 50
B. 10
C. 7
D. 3
E. 2
F. 1
Source: Harris Interactive
51

Can my company monitor employee email
and Internet usage and take employment
action based on that monitoring?
A. Yes
B. Yes, if the employee signed a consent form consistent
with either the model contract and/or safe harbor
provisions of NRPA (National Right to Privacy Act)
C. It depends on whether the company has a policy
deflating any expectation of privacy and whether it’s
consistently enforced
D. No

Can my company monitor employee email
and Internet usage and take employment
action based on that monitoring?
A. Yes
B. Yes, if the employee signed a consent form consistent
with either the model contract and/or safe harbor
provisions of NRPA (National Right to Privacy Act)
C. It depends on whether the company has a policy
deflating any expectation of privacy and whether
it’s consistently enforced
D. No
53

Tech @ Work
• 90% of policies are out-of-date
• 90% of employees surf the ‘Net
• 80% use social media to screen candidates
• 70% have rejected applicants based on online info
• 70% text while driving (23 times more likely to crash)
• 50% ignore social media bans
• 47% spend more than 30 minutes on-line
• 40% block access to social networking sites
• 25% change security settings to enhance socializing
• 21% would turn down a job if unsocial
• 84,000+ companies on Glassdoor.com (even the CIA)
Sources: Consumer Reports, Vault.com, Wall Street Journal, Challenger, Gray & Christmas, Harris Interactive, Fulbright & Jaworski,
Society of Corporate Compliance & Ethics, Cisco, Clearswift, Jobvite, Microsoft, Virginia Tech Driving Institute, Glassdoor.com

55
Tech @ Court
• Think hard before you hit “delete”
• Think hard before you hit “send”
• Beware the Stored Communications Act (SCA):
Don’t steal employee social networking passwords
• Don’t intercept communications while being made
• Disclose if blogger is hawking your products or services
• “Sexting” is harassment
• Beware CrackBerry OT

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 deleted] great”
D. “I’m really bummed that I’m working today, i asked off so i
could study but my boss is a [expletive deleted] who can’t
read.”
E. “Coworker smuggled out a chair for me. Currently being
paid to SIT around . . . I don’t hate my job today!”
F. “I am working really hard right now and feel very fortunate
to have a job.”

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 deleted] great”
D. “I’m really bummed that I’m working today, i asked off so i
could study but my boss is a [expletive deleted] who can’t
read.”
E. “Coworker smuggled out a chair for me. Currently being
paid to SIT around . . . I don’t hate my job today!”
F. “I am working really hard right now and feel very
fortunate to have a job.”
Source: CNN, TwiTip.com

What Should Employers Do?
• Implement a reasonable policy
• Consistently enforce it
• Train employees
• Monitor OT
• Hold everything during litigation
• Disclose if a blogger is selling
• Don’t steal social networking passwords
• Don’t intercept communications while being made
• Focus: job-related, job-related, job-related
• Visit the Blawg

What’s
NEXT?

Will PPACA go away?
A. Yes
B. No
C. Maybe

• Republicans probably won’t repeal but could block funding
• Suit filed by sixteen state AGs, four governors, the National
Federation of Independent Business and others
• Florida federal court refused to dismiss claims that the law is
unconstitutional on the grounds that (1) the individual
mandate exceeds Congress’ authority and (2) its expansion of
Medicaid constitutes unconstitutional coercion.
Will PPACA Be Sent Packing?

A. Congress
B. EEOC
C. ICE
D. NLRB
E. OSHA
Which of the following should frighten
employers the most right now?

NLRB Members
• Democratic majority for the first time since 2001
• Democrats
– Chair: Wilma Liebman (called NLRB an “ossified” statute that
needs change)
– Craig Becker (recess appointment, former SEIU and AFL-CIO
lawyer and strong EFCA proponent)
– Mark Pearce (recess appointment, former union attorney)
• Republicans
– Brian Hayes (R)
• One vacancy

Who Needs Congress?
• “Back Door” EFCA?
– Card check?
– Fast-track elections?
– Union access to company property?
– Prohibiting “captive audience” meetings?
– Binding fast-track arbitration?
• Other Bush-era decisions at risk
– E-mail organizing rules
– “Salts”
– “Supervisor” definition
– Representation of non-union employees in disciplinary interview
– Extraordinary remedies

What’s up with the
Paycheck Fairness Act?
A. It became effective July 1
B. It goes into effect January 1
C. It’s awaiting the President’s
signature
D. It’s officially up for consideration
E. It’s officially dead
67

What’s up with the
Paycheck Fairness Act?
A. It became effective July 1
B. It goes into effect January 1
C. It’s awaiting the President’s
signature
D. It’s officially up for consideration
E. It’s officially dead
68

What’s Next On the
EEOC Hit List?
• Grooming/dress?
• Criminal background?
• Credit history?
• Bullying?
• Baldness?

Medical
ISSUES

Which of the following increase your
chances of getting sued under GINA?
A. Including questions about family medical history
on your application
B. Terminating an employee after a positive test
C. Commingling medical and other information
D. Asking too many ?s about medical issues
E. Discriminating against employees named Gina
F. All of the above except “E”
71

Which of the following increase your
chances of getting sued under GINA?
A. Including questions about family medical history
on your application
B. Terminating an employee after a positive test
C. Commingling medical and other information
D. Asking too many ?s about medical issues
E. Discriminating against employees named Gina
F. All of the above except “E”
72

73
GINA (Genetic Information Nondiscrimination Act)
Generally prohibits:
• Employers from (1) collecting genetic info and
(2) discriminating based on genetic info
• Health insurers/plans from (1) requiring genetic
testing and (2) discriminating based on genetic
info
• Retaliation

An employee comes into your office at 4:58 on a Friday
afternoon 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?
74

An employee comes into your office at 4:58 on a Friday
afternoon 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?
JOB ACCOMMODATION NETWORK (JAN)
800-526-7234
jan.wvu.edu
75

Wage &
HOUR

77
How do you determine if an independent
contractor is really an independent contractor?
A. It depends on a confusing, ambiguous multi-factor test
dependent on behavioral and financial control and the parties’
overall relationship that differs in worker’s compensation, tax
and other contexts
B. It is the employer’s option to choose either status, depending
on which is more advantageous from a tax perspective
C. It is the employee’s option to choose
D. Under the newly passed Contractor Clarification Law, a person
can be an independent contractor only if he or she (1) is
separately incorporated, (2) provides services to other
companies and (3) works in a recognized “profession” as
defined under the law

78
How do you determine if an independent
contractor is really an independent contractor?
A. It depends on a confusing, ambiguous multi-factor test
dependent on behavioral and financial control and the
parties’ overall relationship that differs in workers’
compensation, tax and other contexts
B. It is the employer’s option to choose either status, depending
on which is more advantageous from a tax perspective
C. It is the employee’s option to choose
D. Under the newly passed Contractor Clarification Law, a person
can be an independent contractor only if he or she (1) is
separately incorporated, (2) provides services to other
companies and (3) works in a recognized “profession” as
defined under the law

79
Independent Contractor
• KEY: CONTROL – behavioral and financial
• DOL’s control factors:
– Permanency of relationship
– Contractor’s investment in equipment, etc.
– Contractor’s opportunity for profit or loss
– Contractor’s independent judgment and initiative
– Whether services are integral to employer’s business

80
Exempt or Non-exempt?
• Follow the tests, not assumptions
• Job titles, descriptions and salary aren’t conclusive
• If make sweeping changes, be very careful –
back pay claims, increased OT costs, morale
• Beware state law

What Does the FLSA Require?
• Minimum wage
• Overtime unless exempt
• 1.5 times regular rate for 40+
hours
• Restriction of minors’ jobs/hours
What Is the “Regular Rate”?
The total amount earned in a
particular workweek divided by the
number of hours worked
What Records Must Be Kept?
• Wages paid and hours worked by
non-exempt employees
• Keep for 3 years
What Are the Potential Penalties?
• Class action
• Back pay
• Overtime pay
• Monetary fines
• Punitive damages
• Injunctive relief
• Criminal penalties
• Attorneys’ fees

When Is an Employee Exempt?
Employees must be paid the minimum
specified by statute and (except for the
computer exemption) be salaried
• Executive
- Primarily engaged in management
- Direct 2 or more FTEs
- Authorized to affect terms and
conditions of other employees
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

employees
employees
employees

Your employees are thinking about leaving
your company right now.
A. True
B. False

80%
of employers expect fewer than
5%
of their employees to leave
voluntarily in 2010
Source: Manpower

Source: Right Management
60%
of current employees intend
to pursue new job
opportunities when the
economy improves

Many employment disputes can be traced back to
a lack of leadership. According to research, what
is the single most important leadership trait?
A. Charisma
B. Humility
C. Kindness
D. Proactivity
E. Results-driven
F. Height
G. Coordinating accessories
H. Smooth dance moves
88

Many employment disputes can be traced back to
a lack of leadership. According to research, what
is the single most important leadership trait?
A. Charisma
B. Humility
C. Kindness
D. Proactivity
E. Results-driven
F. Height
G. Coordinating accessories
H. Smooth dance moves
89

If you had to boil all of
employment law,
HR and management best
practices down into
one simple word,
what would it be?

LOVE

92
STRESSSSSSSSSSSSSSSSSSSSSSSSSSS
• Average workweek: up 32% over past 25 years
• Time spent in traffic: up 157%
• 40% are sleep-deprived
• 33% of employees are “chronically overworked”
• 80% of medical expenses are now stress-related
(Sources: Harris Interactive, Sage Software Survey, Urban Mobility Report, Business Week,
Families and Work Institute, Centers for Disease Control and Prevention)
Toledo HR Association

93
STRESSSSSSSSSSSSSSSSSSSSSSSSSSS
• 465 million vacation days were squandered in 2009
• 83% check e-mail at least daily while on vacation
• 1 in 6 employees has exhibited “desk rage”
• The average employee is interrupted 7 times an
hour and switches tasks every 3 minutes
(Sources: Expedia.com, AOL, Caravan Opinion Research, TIME Magazine)

94
More Stress = More Lawsuits
• The Bottom Line: U.S. companies lose between
$200-$300 billion a year due to absenteeism, tardiness,
burnout, decreased productivity, worker's compensation
claims, increased employee turnover and medical
insurance costs resulting from employee work-related
stress.
• The Lesson: LOVE YOUR EMPLOYEES.
(Source: National Safety Council)

The Official
Stay Out of Jail
TO DO
LIST

96
STAY OUT OF JAIL “TO DO” LIST
 Stay on top of the law – it changes every 0.3 seconds
 Get PROACTIVE -- audit and take action, especially:
– Wage & hour
– Independent contractors
– I-9s
– OSHA
– Technology
 Get REACTIVE -- investigate and document
 Adopt and enforce a reasonable social media policy
 Never ever retaliate
 Manage lawyers and litigation aggressively (but fairly)
 LOVE YOUR EMPLOYEES

manpowerblogs.com

FREE TOOLS
• BLAWG
– Cheat Sheets
– Checklists
– Employment Law News
– Employment Law Library
– Weekly Office Analysis
– Question of the Week
• ALERT
• TWITTER @manpowerblawg

Employment Law
SING-
ALONG

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
100

Don’t put things off ‘til tomorrow
Yes investigate right away
Don’t procrastinate
‘Cause the more that you wait
The more you may have to pay
101

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
102

Be honest, consistent and fair now
Be ethical, trustworthy and true
Let your conscience be king
Yeah don’t do anything
Your mom wouldn’t want you to do
103

Remember this song
On your journeys
attorneys
104

Communication’s important
And documentation is key
Get all the facts
Or you might get the axe
And subpoenas you’ll have to flee
105

Remember this song
On your journeys
attorneys
106

THANK
YOU!

Toledo - All New Employment Law Quiz Show

Recommandé

Recommandé

Contenu connexe

Tendances

Tendances (18)

En vedette

En vedette (12)

Similaire à Toledo - All New Employment Law Quiz Show

Similaire à Toledo - All New Employment Law Quiz Show (20)

Plus de Mark Toth

Plus de Mark Toth (20)

Dernier

Dernier (20)

Toledo - All New Employment Law Quiz Show

Notes de l'éditeur