Answers to the World's Scariest Employment Law Questions
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Answers to the World's Scariest Employment Law Questions
- 1. with Mark Toth Chief Legal Officer North America Halloween 2013
- 2. General Information • Share the webinar • Votes (polling questions) • Rate (before you leave) • Attachments (download) Halloween 2013
- 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: 370 615 75# Halloween 2013
- 4. Earning HRCI Credit To receive 1 HRCI for this webinar, participants must attend the webinar in its entirety (one person per computer). Halloween 2013
- 5. with Mark Toth Chief Legal Officer North America Halloween 2013
- 6. 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 entirety of this presentation could result in long-lasting side-effects, including litigation headaches, recurring 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. 6
- 7. Tweet along: #mpwebinar Follow Mark on Twitter: @manpowerblawg Visit Mark‟s Blawg: marktoth.com Find us on Facebook: facebook.com/manpowerUS 7
- 8. Today‟s webinar is brought to you by 8
- 9. Reduce your terror level What Keeps YOU Up at Night? 9 Scary ???s Answered Twick or Tweet? How to Get Sued BIG Now Least Zombie-ish Contest
- 10. Keep the monsters away 10
- 11. What Keeps 11 YOU Awake at Night?
- 12. TOP 10 SCARIEST EMPLOYMENT LAW ISSUES 12 1. MEDICAL (22%) 2. TERMINATIONS (17%) 3. WAGE & HOUR (14%) 4. LITIGATION (12%) 5. HARASSMENT (10%) 6. INVESTIGATIONS (8%) 7. HIRING (7%) 8. UNIONS (4%) 9. IMMIGRATION (3%) 10. TECHNOLOGY (2%) Source: ManpowerGroup Employment Blawg
- 13. Question Is compliance with employment laws getting scarier or easier? Really very extremely easier 0% Somewhat easier 0% No change 14% Somewhat scarier Really very extremely scarier 13 Source: ManpowerGroup Employment Blawg 70% 16%
- 14. Question Are you seeing an increase in employment law claims? Yes, substantial increase 2% Yes, moderate increase 34% No change 62% No, moderate decrease No, substantial decrease 14 1% 0% Source: ManpowerGroup Employment Blawg
- 15. Question Stress-O-Meter: On a scale of 1-10, how stressed out are you right now? (845 respondents) 1 Your Stress Level 2 3 4 5 12 37 81 77 145 Perfectly at peace 15 Source: ManpowerGroup Employment Blawg 6 7 8 149 163 9 10 117 36 27 Absolutely terrified
- 16. What spooksyou most about the world of work heading into 2014? 16
- 17. 17
- 18. de-spook-ify 18
- 19. The 19 Answer
- 20. Scary Q 20 ARRRRGGGGHHHHHHHHHHHHH!!!!!! Everything is getting sooooooo complicated. There‟s more regulation, more enforcement, more penalties, more lawsuits, more work, more pressure, more MORE. The only thing we have less of is resources. Please please please help simplify things!
- 21. @manpowerblawg If you had to boil all of employment law down to one word, what would it be? 21
- 22. Scary Q 22 HR is getting just too dang hard. I think I need a new job. You guys are the job-seeking experts, right? What‟s the latest resume advice to help me really stand out from the crowd?
- 23. TOP 10 SCARIEST RESUMES 23 Experience: included time spent in jail for assaulting former boss Objective: “To work for someone who isn‟t an alcoholic with 3 DUIs like my current employer” Development: pictures of the candidate from baby photos to adulthood Title at Previous Employer: “Mr.” Management: online video-gaming experience leading warrior clans Languages: resume written entirely in Klingon “Skills”: creatively spelled “skelze” Paperless: music video featuring smooth dance moves instead of resume Source: CareerBuilder Anonymous: forgot to include name One sentence: “Hire me, I‟m awesome.”
- 24. 24
- 25. Scary Q 25 I‟m freaking out. Right now. Seriously. I‟m stresssssed to the MAX. My employees are, too. In previous webinars, you‟ve shared helpful stress-reduction tips since excess stress leads to claims and lawsuits. What‟s the latest on what I can do right now to help me and my peeps de-freak?
- 26. Poll Q Let‟s say you‟re taking a break at work. Which of the following is scientifically proven to boost your mood and productivity? A. Surfing the web B. Drinking coffee C. Taking a walk D. Praising a co-worker E. Listening to music 26
- 27. Poll A Let‟s say you‟re taking a break at work. Which of the following is scientifically proven to boost your mood and productivity? A. Surfing the web B. Drinking coffee C. Taking a walk D. Praising a co-worker E. Listening to music 27 Source: Harvard Business Review
- 28. 5.6:1 vs. 0.36:1 28 Source: Harvard Business Review
- 29. Medical 29
- 30. Poll Q Which of the following has NOT been recognized as a disability under the ADA? A. Fear of Getting Fired B. Internet Use Disorder C. Obesity D. Pregnancy E. Shy Bladder Syndrome 30
- 31. Poll A Which of the following has NOT been recognized as a disability under the ADA? A. Fear of Getting Fired B. Internet Use Disorder C. Obesity D. Pregnancy E. Shy Bladder Syndrome 31
- 32. Scary Q 32 My absolute #1 most terrifying nightmare is figuring out what to do when an employee has a medical issue that might be covered by the ADA, FMLA and WC. Could you please explain how they all fit together (or not) in 3 minutes or less?
- 33. Sleep better: open the Tool Box 33
- 34. ADA / FMLA / WC:What‟s the Purpose? ADA: prohibits discrimination against disabled individuals. FMLA: provides leave to employees. WC: provides compensation for work-related injuries. 34
- 35. ADA / FMLA / WC:Who‟s Eligible? ADA: employees with a qualifying disability. FMLA: employees who have worked 12 months + 1250 hours the previous 12 months within a 75-mile radius of at least 50 other employees. WC: employees who incur an illness/injury in the course and scope of employment. 35
- 36. ADA / FMLA / WC:What‟s Covered? ADA: “disability” that substantially limits one or more major life activities (or a history or perception of having such a disability). FMLA: “serious health condition” of employee or certain family + birth, adoption and foster care placement + certain types of military-related leave. WC: illness/injury in the course/scope of employment. 36
- 37. ADA / FMLA / WC:What Leave? ADA: reasonable accommodation but no undue hardship, typically for a defined period and unpaid unless similar leaves are paid. FMLA: unpaid up to 12 weeks/year for serious health conditions and up to 26 weeks/year for certain militaryrelated leave + may be intermittent. WC: depends on length of incapacity; some states prohibit terminating employees on WC leave. 37
- 38. ADA / FMLA / WC: What About Reinstatement? ADA: generally must keep position open during leave. FMLA:generally reinstate to same or substantially equivalent position. WC: generally no reinstatement rights but most states bar termination during leave + retaliation. 38
- 39. ADA / FMLA /WC: What About Light Duty? ADA: not required to remove essential functions as accommodation, but if offer LD jobs for WC may have to offer to disabled employees. FMLA: can‟t require LD. WC: typically can require LD if approved by physician. 39
- 40. ADA / FMLA / WC: What About Penalties? ADA: back pay, compensatory damages, punitive damages + attorney fees. FMLA:back pay, reinstatement, benefits + attorneys‟ fees. WC: back pay, compensatory damages + punitive damages. 40
- 41. Scary Q 41 An employee has been out on medical leave for 11 months. Our neutral (and, I believe, fair) policy is to terminate all employees who have been on leave for 12 consecutive months. If he doesn‟t return in a month, can we terminate him?
- 42. No (for 20 million reasons). Un-scary A 42
- 43. Scary Q 43 My scariest scenario is employees who abuse leave but I don‟t want to make things scarier by doing something illegal and getting sued. What‟s the deal when an employee asks for an extended leave? Can I deny it as an unreasonable accommodation?
- 44. Un-scary A Courts have ruled that extended leave (e.g., 6 months) can be a reasonable accommodation. However, courts have also semi-consistently ruled that indefinite leave is not reasonable. 44
- 45. Scary Q 45 After a lengthy battle over potential accommodations, an employee is demanding telecommuting as an accommodation. It seems unreasonable and rife with potential problems, especially since the employee is non-exempt. Can I get sued if I deny it?
- 46. Yes. Un-scary A 46 Whether you‟ll win depends on the particular circumstances, like virtually all accommodations.
- 47. 414.751.0126 If you could make only one call, to whom would it be? 47
- 48. ADA How NOTTo Make snap judgments 48 Don‟t interact Don‟t consider additional leave Don‟t request additional medical info Memorialize discrimination in writing
- 51. Scary Q 51 ManpowerGroup | Halloween 2012 I heard the EEOC has started enforcing GINA. That frightens me since I‟ve basically ignored it since it was passed. What are the main things I need to know about GINA to stay out of trouble?
- 52. Poll Q Which of the following increases your chances of getting sued under GINA? A. Asking about family medical history B. Commingling medical and other info C. Terminating an employee after a positive genetic test D. Discriminating against employees named Gina E. All of the above except “D” 52 ManpowerGroup | Halloween 2012
- 53. Poll A Which of the following increases your chances of getting sued under GINA? A. Asking about family medical history B. Commingling medical and other info C. Terminating an employee after a positive genetic test D. Discriminating against employees named Gina E. All of the above except “D” 53 ManpowerGroup | Halloween 2012
- 54. Scary Q 54 ManpowerGroup | Halloween 2012 The FMLA makes me screamway more than any other law. There are soooo many rules and soooo much paperwork. I want to do the right thing but I usually have no clue what that is. What resources can you recommend to simplify it?
- 55. Defeat FMLA-o-phobia 55 ManpowerGroup | Halloween 2012
- 56. Scary Q 56 ManpowerGroup | Halloween 2012 It seems like every time I ask this one employee to do something she says, “Oooh, not today sweetie, I have a migraine.” Her doctor says her condition does indeed cause periodic migraines but hasn‟t specified the exact frequency or duration and it‟s driving me crazy. Do I have to let her take intermittent FMLA leave? Please say “no.”
- 57. Maybe (sorry). Un-scary A 57 ManpowerGroup | Halloween 2012
- 58. Intermittent LeaveMade Un-scary Incomplete Certification Contact Provider Recert or 2nd Opinion 3rd Opinion 58 ManpowerGroup | Halloween 2012 Notice 7 days to cure Clarify/authenticate HR, not supervisor Recert from original provider OR Employer-paid 2nd opinion If conflict Final & binding
- 59. Scary Q 59 ManpowerGroup | Halloween 2012 It seems like everybody in my workplace (except me) is on drugs. What are the rules? When is it OK to drug test? Are there special rules for prescription drugs? What if someone is a certified alcoholic or addict? Help!!!
- 60. Drug Testing Made Un-scary Objective, not subjective Reasonable suspicion 60 ManpowerGroup | Halloween 2012 Avoid prescription bans Confidential Medical Review Officer
- 61. Drugs @ WorkMade Un-scary “Currently engaging”? No Recovering? Safe Harbor (unless “currently engaging”) Prescribed meds? Probably (unless direct threat) UI?No (other than legally prescribed meds) 61 ManpowerGroup | Halloween 2012
- 62. Poll Q 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. B. Do a crazy monkey-arm dance in his honor until he returns C. Drug test him D. 62 ManpowerGroup | Halloween 2012 Fire him for inappropriate workplace behavior Give him a chance to explain his behavior
- 63. Poll A 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. B. Do a crazy monkey-arm dance in his honor until he returns C. Drug test him D. 63 ManpowerGroup | Halloween 2012 Fire him for inappropriate workplace behavior Give him a chance to explain his behavior
- 64. Termination 64
- 65. Scary Q 65 Let‟s face it. The worst part of any job is when you have to fire someone (even if they deserve it). Where can I find a set of straightforward (i.e., legalese-free) tools to help ensure that my organization‟s terminations are as fair, consistent, supportable and humane as possible?
- 66. Tons of Termination Tools & Tips 66
- 67. FLSA 67
- 68. Scary Q 68 Based on everything I hear, wage and hour class actions are the most terrifying lawsuits on the planet. Could you please identify the 5 biggest FLSA violations people are suing over and while you‟re at it the 5 things we can do right now to avoid getting sued for them?
- 69. FLSA Hot Spots OT Classifications Pre-shift “Work” Independent contractor classifications Work @ home California, California, California 69
- 70. FLSA Solutions Know the Law Trainmanagers &employees on time-keeping Complaint system: investigate promptly Auditclassifications and records Address any discrepancies immediately 70
- 71. Scary Q 71 I‟m living a nightmare. We just discovered that we have several positions that are wrongly classified as exempt. What should we do? Seems like we‟re danged if we change „em and danged if we don‟t – legally speaking. Help!
- 72. • Use the Tool Box Un-scary A • Study the Exemption Cheat Sheets • Analyze without assumptions • Reclassify immediately, if appropriate • Determine potential back pay • Notify employees (carefully) • Beware willful violation penalties 72
- 73. Litigation 73
- 74. Poll Q Who wins more employment lawsuits – employers or employees? A. Employers B. Employees C. Neither 74
- 75. Poll A Who wins more employment lawsuits – employers or employees? A. Employers B. Employees C. Neither 75
- 76. 50 - 50 76 Source: Jury Verdict Research
- 77. Scary Q 77 I feel that we‟re conditioned to be overly scared of litigating a case through to the end, even when we‟re in the right. Management is just too chicken to ever fight anything (in my humble opinion). What do the latest facts and figures say about litigating versus settling?
- 78. Which number is scarier? $205,000 78 $80,285
- 80. Scary Q 80 Plaintiffs‟ lawyers SCARE me. What sorts of things do they look for in cases that make them more likely to come after an employer?
- 81. What Plaintiffs‟ Lawyers Want You to Do Lie Discipline inconsistently Ignore your policies Ignore the law 81 Investigate + document poorly
- 84. Scary Q 84 We use social media all the time in HR to screen candidates and gather dirt for investigations. Nobody in the entire department knows the rules – we‟ve never had a lick of training. What exactly are the rules?
- 86. SM Searches Be Consistent Designate Searchers Limit Scope 86 • 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
- 87. SM Searches Disclose Document 87 • Notify candidates that may use SM • Disclose on applications and other docs • Consistent process • Note legit biz job-related reasons • Follow doc retention policies
- 88. Scary Q 88 What social media do employers use most to find info on candidates and/or employees?
- 89. Poll Q What social media do YOU use most to find info on candidates and/or employees? A. Search Engines (Google, Bing, etc.) B. Facebook C. Twitter D. Ratings Sites (Glassdoor, Yelp, etc.) E. Nothing 89
- 91. Scary Q 91 I‟m a bottom-line kind of person. What things are most likely to result in big verdicts against my company right now?
- 92. How To Get Sued BIG Now 92
- 93. Get Sued BIG Now Don‟t Address Known Violations Don‟t Address Systemic Issues Don‟t Address Exec Misconduct Don‟t Manage Medical Leave With Good Intent Don‟t Settle When You Should Settle Don‟t Use Technology Wisely Don‟t Open the Tool Box Don‟t LOVE your employees 93
- 94. How NOTTo Get Sued Big Now 94
- 97. Open 24 / 7 / 365.25 World’s Most Fabulous Employment Law LIBRARY 97
- 98. On the Blawg… MOST UN-ZOMBIE-LIKE AUDIENCE MEMBER CONTEST 98
- 99. Coming soon… What‟s NEW & What‟s NEXT For Employment Law in 2014 99
- 100. THANK YOU! INSERT NEW ICON 100
- 101. Did you watch this webinar as a recording? Please request your certificate at www.manpowergroup.us/requesthrci Photo credits: Shutterstock 101
Notes de l'éditeur
- Ellen
- Ellen
- Ellen
- Ellen
- Mark: Thanks, Ellen. Hello everyone and thank you for joining us today!Welcome to our special Halloween-themed Answers to the World’s Scariest Employment Law ?s where for the next 58-and-a-half minutes we will attempt to reduce your terror level by answering as many spooky employment law ?s as humanly possible.We’re going to go at warp speed but if you miss anything the full PPT with all my notes and answers to some of the ?s we couldn’t get to here today will be available for your reading pleasure on my blawg at marktoth.com.
- OK, here’s where things officially get spooky. Because I’m a lawyer we’ll begin with some frightening legalese [read].In other words, you can’t sue me, Ellen, ManpowerGroup or anyone else based on anything you hear here today. So there.
- As an extra added bonus, ManpowerGroup’s own Mara Zimmerman will somehow be magically tweeting along as me during today’s webinar using the handle @manpowerblawg – that’s b-l-a-w-g – using the hashtag mpwebinar. Thank you, Mara, and please don’t say anything that’ll get me fired.
- Today’s webinar is brought to you by … YOU. Thanks to the hundreds of you out there in Webinarland who submitted ?s and topics in advance for our consideration. Nice mix of big picture strategic stuff and nuts and bolts real-life stuff. We’ll do our best to cover both. Due to the sheer volume of ?s we won’t be able to address ‘em all. We chose the ones that we thought would be most helpful to our audience and did some creative combining and editing to make this as impactful as humanly possible. If we don’t address your particular ?, my apologies. But, again, tune in to my Blawg in the future for answers to some of the ?s we couldn’t get to here today.
- Here’s what we’ll cover today. First, we’ll look at some of our pre-webinar survey results to see what YOU want us to talk about. Then we’ll dive right in and de-spook-ify ?s in the topic areas you selected. To help keep you stay awake we’ll mix in a variety of twicky Tweet- and Text-o-ramas for valuable prizes. We’ll then unmask some EL Great Pumpkin myths and then conclude today’s proceedings with our handy how to get sued BIG now tips. But that’s not all. Immediately after the webinar tune into my blawg at marktoth.com for our Least Zombie-ish Webinar Attendee Contest and other great free stuff.
- We’ll also post on my Blawg our 187% free EL Tool Box. Includes a glossary to help decode the alphabet soup of employment laws; cheat sheets on every major employment law; an investigation checklist; termination tools; an overview of wage and hour basics; tools for reducing legal fees and much much more.
- We also asked you to rank the world’s scariest employment laws. Here’s your official top 10. We’re going to tackle the top 5 for you here today. That’s one of the filters we used to funnel your ?s scientifically.
- Pre-webinar survey. 86% of you responded with either somewhat or really very extremely scarier. A grand total of 0% of you said either somewhat easier or really very extremely easier. Wow. That IS scary.
- Here’s our 1/4ly Lit Index, where we ask you: Are you seeing an increase in emp’t law claims? 36% of you report an increase vs only 1% of you reporting a decrease. In other words, the number of you seeing an increase is 36 times greater than the number who are seeing a decrease. New record. So that’s scary too.
- And here’s our latest stress-o-meter, which shows that most of you out there are pretty much freaking out of your gourds, scientifically speaking. On a scale of 1-10, with 1 being perfectly at peace and 10 being absolutely terrified, the # of those on the terrified side of the scale outweighed those on the peaceful side by a nearly 3:1 margin.
- We also asked you to answer this question in 10 words or less: What spooksyou most about the world of work heading into 2013?Here’s basically what you said …
- Hundreds of responses. That’s the main theme right there on your screen. Here’s one quote and it was in all caps just so I wouldn’t miss the point: EVERYTHING ASSOCIATED WITH COMPLIANCE AND REGULATIONS AND MORE REGULATIONS AND MORE REGULATIONS. So, in addition to EVERYTHING spooking you right now, that word MORE kept popping up as a key theme, too, as in MORE complexity, MORE technology, MORE instability, MORE talent challenges, MORE competitive pressure, MORE demands, MORE fear, MORE stress, which all leads to MORE disputes and MORE and MORE and MORE litigation.
- Our goal is simple: to de-spook-ify employment law one law at a time. For those of you who follow my blog, starting tomorrow we’ll be breaking down each and every major employment law in a single post each and every day until we’re done and you know absolutely everything. We want you to be fear free.
- Let’s start with the big picture with the BIG Answer to every question in the history of the universe …
- Here’s a question that seems to echo much of what y’all are saying out there …
- Well, since I have a very small brain, simplifying things is something I love to do. To that end, here’s our first Tweetorama. The very first person to tweet the correct answer to this question using our official Blawg handle you see there on the screen will win a valuable prize.This is a question I’ve been asking on all my webinars, at live presentations and on my Blawg for the past year. If you had to boil all of empt law down to ONE word, what would it be? Basically, it’s a one-word answer to every single one of your ?s.Let’s see if our message is starting to get thru to the universe. Again: [read ?] Tweet your answer for all the world to see using the handle @manpowerblawg.We’ll announce winners of all our contests later on the Blawg.
- While we’re waiting for folks to weigh in with the BIG answer, thought I’d continue with a request for some career advice. [READ] First of all, no one should EVER even think about leaving HR. Truly the greatest profession in the history of the universe. Even better than lawyers.
- That said, here is the universe’s latest and greatest advice on what NOT to put on your resume. These are all actual real-life resumes. First, if your experience includes time spent in jail for assaulting your former boss, you might not want to emphasize that. Second, hopefully you have a better career objective than the one you see there: QUOTE “To work for someone who isn’t an alcoholic with 3 DUIs like my current employer.” Wow. Next, you might want to refrain from including a photo collage depicting your development from baby pictures all the way thru adulthood. Wow again. When asked on an application to provide his title at his previous employer, one candidate responded: “Mr.” Another candidate listed online video-gaming experience leading warrior clans as proof or his ability to manage others. Another candidate thought it would be a good idea to put his entire resume in the Klingon language from Star Trek, apparently to demonstrate his language proficiency. Please don’t do that. And please use spell check unlike the candidate who tried to demonstrate his good communication skills by spelling it S-K-E-L-Z-E. (It’s got 2 Zs – right Ellen?) If you reeeeally want to stand out, do what one candidate did and consider going paperless and submitting a music video instead featuring lots of smooooth dance moves. And while humility is an admirable trait, neglecting to include your name anywhere on your resume is not a great way to land a job. And sort of the inverse of that is what the last person on our list here did, submitting a one-sentence resume that read: “Hire me, I’m awesome.” That’s awesome.
- Well, here’s the answer to our Tweet-o-rama. LOVE!As we say each webinar, if you really think about it, the law is there basically because we don’t do this very well. If we treated each other with love – how we’d like to be treated, with kindness and dignity and respect – we wouldn’t have to have bazillions of 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.
- Related question [read]. Getting pretty existential here. Well, like any good lawyer I’ll answer a question with a question …
- ***POLL. Here’s our first audience-participation poll question. [READ]
- According to the fine folks at Harvard, the answer is D: praising a co-worker. In fact, the study found that D was the only thing on this list that actually boosts mood and productivity. Kind of surprising.
- Here are my absolute favorite numbers in this whole presentation. In a study of what makes high-performing teams tick, researchers found that positive feedback outnumbered negative feedback by a whopping 5.6:1. It was basically the complete opposite on low-performing teams, where positive feedback was a paltry .36 as frequent as negative feedback. In other words, high-performing teams get 15 times more encouragementthan low-performing ones. Want high-performing employees? Encourage ‘em – LOVE them.
- Start right here with your absolute #1 scary area of the law: medical mayhem.
- ***POLL***Here’s another ? for you …
- 2 lessons here: (1) pregnancy is not a disability bc it’s a short-term condition but (2) lots and lots and loooots of other things ARE including each of the ones on your screen. That doesn’t mean pregnancy discn is legal – it’s just not a disability under the ADA. More on pregnancy in a moment.Never ever assume that something’s not a disability just bc you haven’t heard of something or it seems counter-intuitive. To illustrate that point, one court just refused to dismiss claims brought by a bridge worker who couldn’t work on bridges due to fear of heights and another court refused to dismiss claims by a utility pole worker who couldn’t climb utility poles. Never ever assume.
- We got many different versions of this question – by far the most frequent of all the ?s we received. Lots of misunderstandings of what covers whom and why.
- More on this topic in the Tool Box.
- EEOC has announced that it’s going after no-fault attendance policies in a big way. Why? If administer it consistently as ? asked could mean that you’re flat-out failing to accommodate Ees whose absences are because of disabilities. Backed up its words in a humongous nationwide class action not long ago that was settled for $20M. Hates inflexible/no-fault/rigid/automatic term leave policies and terms based on indefinite leave. Always always always go thru the interactive process and reasonably accommodate those with disabilities unless it truly imposes undue hardship. Talk to your fave emp’t lawyer before terming someone on this basis. The EEOC has held public hearings on this and spoken a lot about how it hates hates hates employers who do this.
- Related question …
- No bright line. Really have to work with Ees. More about that in a moment.
- A couple of recent cases have found that telecommuting MAY be a RA, but it depends on unique facts related to the EE and workplace in question. Q for jury. You don’t want to go to a jury. Interact with your employees and come up with a BALANCE which is a key word when it comes to the ADA.
- Which brings us to our first Text-o-rama. First person to text the correct answer to the # you see there on your screen 414.751.0126 that’s 414.751.0126 will when a prize.This is an amalgamation and only slightly exaggerated combination of ?s we received. 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? One call, that’s all, to whom should it be? Text your answers to the # on your screen.
- While we wait for peeps to text us on that, we’ll wrap up our ADA discussion with a handy how NOT to do the ADA checklist. Took all the recent ADA cases and boiled em down into a handy 5-step process for losing any ADA case.
- Again, what’s the word, Ellen? That’s right: LOVE! Treat those with disabilities the way you’d like to be treated. The law requires what we call a graceful interactive DANCE depicted on your screen there. Discuss discuss discuss discuss and then discuss some more. A good faith open dialogue that balances biz needs AND EE needs. Don’t make it a legal gotcha conversation. Actually engage and interact. Both sides can win.
- [Add]
- OK, let’s move on from the ADA with a question about the Genetic Information Nondiscrimination Act …
- ***POLL***Here’s another ? for you …
- ***POLL***Here’s another ? for you …
- Again, please check out the Tool Box – lots in there on the FMLA. If that’s not enough, here’s another handy resource you might want to check out. Not long ago, the DOL issued a rather helpful EE Guide to the FMLA, described as a QUOTE “plain language booklet designed to answer common FMLA questions and clarify who can take FMLA leave and what protections the FMLA provides.” Your employees are reading it — so should you. Specific questions/answers include: Who can take leave? When can they take it? How do they take it? What rights do employees have? What obligations do employers have? How does the medical certification process really work? How does the return to work process really work? Etc. It also contains a handy flow chart to determine FMLA eligibility, defines key terms and maps out the leave process. Good stuff to help you do the right thing.
- Another FMLA question …
- EEOC has announced that it’s going after no-fault attendance policies in a big way. Why? If administer it consistently as ? Asked could mean that you’re flat-out failing to accommodate Ees whose absences are because of disabilities. Backed up its words in a humongous nationwide class action vs. Verizon that was settled for $20M.
- Intermittent leave was the second most popular type of ? we received. Here's a description of each step. The key is to carefully manage the certification process to ensure you have the info you need to make the right decision.Incomplete CertificationThe first step to prevent potential FMLA abuse is to make sure the employee’s physician completely fills out the FMLA certification form. A complete form should provide details on the severity and duration of the illness, the effects on the employee’s job and when intermittent leave will be needed.If you believe the form is incomplete, you must notify the employee. The notice must state what additional information is needed. Generally, the employer must give the employee 7 calendar days to cure the deficiencies unless it’s truly not reasonable under the circumstances. If the deficiencies are not cured within that time period, the employer may deny the FMLA request.Contact the ProviderIf you still have questions regarding the form, you may contact the employee’s health care provider to clarify the certification. This should be done by HR -- never the employee's supervisor -- and all HIPAA rules should be carefully followed.RecertificationIf you have good reason to suspect FMLA abuse (e.g., a pattern of Friday/Monday absences, coming in late the same day every week, etc.), you may ask the employee to recertify his/her condition. Generally, an employer may ask an employee for recertification if more than 30 days have passed, with some limited exceptions. Note, though, that if an employer requests recertification, it can't require a second or third opinion.Alternatively, the employer may require the employee to obtain a second opinion at the employer’s expense. If a second opinion is requested, the employee is provisionally entitled to FMLA leave during the time required to get the second opinion. If the second opinion doesn't establish the need for FMLA leave, the leave shouldn't be designated as FMLA leave and may be treated as paid or unpaid leave under the employer’s other policies.Third OpinionIf the second and first opinions conflict, the employer may require the employee to obtain certification from a third health care provider, at the employer’s expense. The third opinion is final and binding.The Bottom LineI hope this helps dispel some of the confusion out there. Again, this is a tricky area and I highly recommend that you discuss the above steps (especially exceptions to the 30-day recertification rule noted above) with your favorite employment lawyer before taking action.
- And now, let’s talk about drugs.
- 5 main things to keep in mind here. 1. Don’t rely on subjective perceptions or jump to conclusions. 2. Test on “reasonable suspicion” or after a workplace accident. 3. Avoid bans on prescribed meds without individual assessment. 4. Keep everything related to drug testing confidential just like you would for medical records. And 5. Have positive tests for prescription meds reviewed by medical review officer to help you make the right decision.Just bc someone wears a Grateful Dead T-shirt and has lots of tats doesn’t necessarily mean that s/he is on drugs. Lots of cases out there where Ers have had to pay big dollars for not following these simple rules, including one Er who paid close to half a million.
- So, that’s drug testing. So what about drugs @ work generally?1. No ADA protection for those “currently engaging” in use of illegal drugs. 2. Safe harbor for recovering addicts who aren’t currently engaging. What’s currently? No bright line in terms of days. Flexible. Interaction. We’ll tell you all about how to make sure you’re interacting appropriately in a moment. 3. Prescribed meds may be covered unless “direct threat” to safety. More on direct threat in a moment. 4. Generally OK to prohibit being under the influence of any substance other than legally prescribed meds.What about medical marijuana? State-specific. Talk to your fave emp’t lawyer, which is always a good idea when it comes to drugs @ work. But these are some general guidelines to keep in mind.
- ***POLL*** OK, let’s wrap up our rather lengthy set of medical ?s with a real-life situation. What would you do?
- Our next most terrifying area according to you is terminations. Here’s a ? …
- Our next most scariest law according to YOU is the FLSA. Also the #1 source of humongous class actions so please stay awake during this portion.
- The law changes all the time on this. Haven’t worked OT so no back pay. Interestingly, feel lost some professionalism ass’d w/job. Explain just technical change.
- Our next most scariest area according to YOU is Litigation or exactly how to navigate the lawsuit labyrinth …
- ***POLL*** Let’s start with a ?. What do YOU think?
- Trick question.
- Going to court is now a 50-50 proposition, according to the latest edition of Jury Verdict Research. Truly rolling the dice.
- Here’s our final Tweetorama. Tweet to the handle you see there on the screen. Who said the following? Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough. 99% of cases settle. Earlier you settle, less you pay in fees. Abe was on to something.
- if you reallllly want plaintiffs’ lawyers to love you and sue you a lot, here are five easy steps you can take right now. First, ignore the law. Don’t wake up from the nap you’re taking right now and don’t update your policies or procedures based on what you hear. Second, plaintiffs’ lawyers LOVE it when you ignore your own policies, which, unfortunately, employers do all the time. Please don’t do that. Third, don’t investigate promptly and thoroughly, and document poorly. They LOOOOOVE that. Fourth, make sure you discipline your employees inconsistently. And last and most importantly, if you REALLY want to get sued big, lie. Cover things up. And especially at high levels of the organization. Do all those things and you’ll have no trouble spending lots of time in court. [21:00]
- And here’s the answer to our final Tweetorama. 99% of cases settle. Earlier you settle, less you pay in fees. Abe was on to something.
- Hopefully you’re not like one prominent public figure who shall remain nameless who chastised peeps for using “Spacebook” and “Tweeter.”
- Again, Be ConsistentTreat applicants equallyApply searches to ALL applicants or at least specified categories or departmentsUse at the same phase of the interview process to ensure consistencyDesignate Searchers who actually know what they’re doingChoose one employee, or a very small group or a neutral 3rd party that’s trained in how to do thisPlease don’t use the hiring manager – they might discover all sorts of things you wish they hadn’tLimit the Scope of the searchRestrict searches to certain approved sites – no porn site visits, pleaseNo posing as someone you’re not, creating fake Facebook accts, lying or fraud: Courts and govt very hard on Ers who do thatOf course, don’t search or consider any protected informationAnd, as always, the focus should be job-related, job-related, job-related. If it’s not, don’t do it.
- Disclose – tell applicants if you’re going to use SM to screen on applications, etc.And document document document -- the consistent process, the legit biz job-related reasons for not hiring and then retain those docs consistent with your retention policies and never ever destroy evidence.
- Great question. You tell us …
- ***POLL***
- We’ve pulled together all the world’s greatest tips into our official Social Media Starter Kit, which is available for free right now on the Blawg. Here’s what you get: Summary of the law, NLRB-approved model policy, the Blawg’s official model policy, Other Fortune 500 policies,SM 101 articles and much much more. And. All. For. Free.
- Last question of the day …
- Anyone can tell you how NOT to get sued. To sum up, here on one page is HOW TO GET SUED BIG NOW.
- Just in case you were also wondering how NOT to get sued, here’s what we suggest …
- #1: visit my Blawg at least every 35 seconds. Lots of great stuff, including …
- Immediately following the conclusion of today’s webinar, we’ll 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; our patented social media starter kit 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.
- Also immediately following this webinar we’ll be having a contest on the blawg – again, that’s marktoth.com. Simple quiz to determine who stayed the most un-dead throughout today’s presentation.
- Next webinar. We’ll kick off the new year with a handy guide to everything you need to stay out of court and/or jail. You won’t want to miss it.
- THANK YOU THANK YOU THANK YOU so much for your time, attention and participation – we really really really appreciate it!And now, back over to Ellen.