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Everything You Ever Wanted To Know About Employment Law

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Everything You Ever Wanted To Know About Employment Law

  1. 1. September 18, 2013 Everything You Ever Wanted to Know About (But Didn’t Want to Pay a Lawyer to Ask) Mark Toth Chief Legal Officer – North America
  2. 2. SMARTEST HR PERSON IN THE UNIVERSE CONTEST WHAT‟S NEW? STAY OUT OF JAIL TO DO LIST SING-A- LONG SONG 187% FREE TOOL BOX Stay Out Of Jail
  3. 3. 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 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.
  4. 4. Sign up for my free alerts: at your seats Follow me on Twitter: @manpowerblawg Visit my Blawg: marktoth.com
  5. 5. 187% Free Stuff
  6. 6. World’s Most Fabulous Employment Law LIBRARY Open 24 / 7 / 365.25
  7. 7. Smartest HR Person in the Universe CONTEST
  8. 8. The BIG picture
  9. 9. ManpowerGroup | September 18, 2013 9 What percentage of employees would fire their bosses right now? A. 36% B. 56% C. 76% D. 96%
  10. 10. ManpowerGroup | September 18, 2013 10 What percentage of employees would fire their bosses right now? A. 36% B. 56% C. 76% D. 96% Source: Monster.com
  11. 11. ManpowerGroup | September 18, 2013 11 What percentage of your employees are thinking about leaving your company right now? A. 26% B. 46% C. 66% D. 86%
  12. 12. ManpowerGroup | September 18, 2013 12 What percentage of your employees are thinking about leaving your company right now? A. 26% B. 46% C. 66% D. 86% Source: Right Management
  13. 13. ManpowerGroup | September 18, 2013 13 $300B 1/25 bosses = psycho 32% workweek increase 62% workload increase 33% chronically overworked 80% sedentary Sources: Dr. Paul Babiak, Pennington Biomedical Research Center, Kronos, Families & Work Institute, Harris Interactive
  14. 14. ManpowerGroup | September 18, 2013 14 The Bottom Line: Employees are really very extremely incredibly disgruntled.
  15. 15. ManpowerGroup | September 18, 2013 15 The Goal: Get your employees gruntled.
  16. 16. ManpowerGroup | September 18, 2013 16 If you had to boil all of employment law down to one word, what would it be?
  17. 17. ManpowerGroup | September 18, 2013 17
  18. 18. What‟s NEW?
  19. 19. The Supremes Rule Retaliation Standard Toughened Supervisor Definition Narrowed Class Action Waivers Upheld Class Action Fairness Reinforced DMV Plaintiff Recruitment Curtailed
  20. 20. What Else is New? New FMLA New HIPAA Rule New EEOC ADA FAQs New I-9s GINA Is Real
  21. 21. What Else Else is New? DOMA, FMLA & Same-sex Spouses Online Whistleblower Complaints Micro-units OK Federal Contract Compliance Manual Non-compete Suit Explosion
  22. 22. How to GET SUED big now
  23. 23. ManpowerGroup | September 18, 2013 23 True or False? Employers win more employment lawsuits than they lose. A. True B. False
  24. 24. ManpowerGroup | September 18, 2013 24 True or False? Employers win more employment lawsuits than they lose. A. True B. False Source: Jury Verdict Research
  25. 25. ManpowerGroup | September 18, 2013 25 49% Source: Jury Verdict Research
  26. 26. ManpowerGroup | September 18, 2013 26 What Are Your Odds? SEX 36% ALL 49% DISABILITY 56% AGE 60% RACE 50% Source: Jury Verdict Research
  27. 27. ManpowerGroup | September 18, 2013 27 What‟s the #1 most common discrimination claim? A. Age B. Disability C. Race D. Retaliation E. Sex
  28. 28. ManpowerGroup | September 18, 2013 28 What‟s the #1 most common discrimination claim? A. Age B. Disability C. Race D. Retaliation E. Sex
  29. 29. Hiring Vulnerable Workers ADA LGBT Access to Legal System Pregnancy Harassment EEOC
  30. 30. DEAL or no?
  31. 31. WHO said it?
  32. 32. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 32 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
  33. 33. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 33 Ignore the law Ignore your policies Investigate + document poorly Discipline inconsistently Lie Get Plaintiffs‟ Lawyers to LOVE You
  34. 34. ManpowerGroup | September 18, 2013 34 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
  35. 35. ManpowerGroup | September 18, 2013 35 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
  36. 36. ManpowerGroup | September 18, 2013 36 Avoid the WAGE & HOUR abyss
  37. 37. ManpowerGroup | September 18, 2013 37 What celebrity was recently sued for a plethora of wage and hour violations?
  38. 38. ManpowerGroup | September 18, 2013 38 LADY GAGA
  39. 39. ManpowerGroup | September 18, 2013 39 OT Classifications Pre-shift “Work” Independent contractor classifications Work @ home California, California, California FLSA Hot Spots
  40. 40. 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
  41. 41. 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
  42. 42. 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
  43. 43. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 43 NLRB Nervousness
  44. 44. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 44 True or False? The NLRB only has jurisdiction over unionized companies. A. True B. False
  45. 45. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 45 True or False? The NLRB only has jurisdiction over unionized companies. A. True B. False
  46. 46. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 46 True or False? Union membership declined more in President Obama‟s first term than in President Bush‟s two terms combined. A. True B. False
  47. 47. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 47 True or False? Union membership declined more in President Obama‟s first term than in President Bush‟s two terms combined. A. True B. False Source: Bureau of Labor Statistics
  48. 48. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 48 11.2% Source: Bureau of Labor Statistics
  49. 49. Every Social Media Case On 1 Slide “Protected concerted activity” Union or non-union > 1 Wages / work conditions Same in cyberspace
  50. 50. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 50 Get SOCIAL MEDIA now
  51. 51. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 51 True or False? None of the laws that apply in the real world apply in the social media universe and therefore I can completely lose my mind and absolutely anything goes.
  52. 52. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 52 True or False? Absolutely False.
  53. 53. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 53 Same Old Test job- related job- related job- related
  54. 54. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 54 Latest Stats: Employees 62% “couldn’t live without the Internet” 53% would rather lose nose than Facebook 48% would swap pay for SM access 29% access X-rated sites 28% have posted work-related photos 22% have posted/tweeted about a co-worker 21% would turn down a job if unsocial Sources: Cisco, Pew Research Center, McCann WorldGroup Nielsen, DLA Piper
  55. 55. How do those about to enter the workforce rank the following in order of importance? A. Social Activities, Romance, Music, Internet B. Internet, Social Activities, Romance, Music C. Music, Social Activities, Internet, Romance D. Romance, Internet, Music, Social Activities
  56. 56. How do those about to enter the workforce rank the following in order of importance? A. Social Activities, Romance, Music, Internet B. Internet, Social Activities, Romance, Music C. Music, Social Activities, Internet, Romance D. Romance, Internet, Music, Social Activities Source: Cisco
  57. 57. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 57 What percentage of men have viewed porn at work? A. 0 B. 2 C. 17 D. 25 E. 118
  58. 58. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 58 What percentage of men have viewed porn at work? A. 0 B. 2 C. 17 D. 25 E. 118 Source: Harris Interactive
  59. 59. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 59 1 out of every ___ employees has forwarded a sex-related email at work? A. 50 B. 10 C. 7 D. 3 E. 2 F. 1
  60. 60. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) © 2011 ManpowerGroup 60 1 out of every ___ employees has forwarded a sex-related email at work? A. 50 B. 10 C. 7 D. 3 E. 2 F. 1 Source: Harris Interactive
  61. 61. Latest Stats: Employers 73% do no SM training 68% monitor internet activity 58% say SM benefits outweigh risks 56% block access to some sites 45% use SM to screen 31% have disciplined for postings about employer 25% have disciplined for excessive SM use 19% ban SM Sources: SHRM, Clearswift, DLA Piper, Cisco
  62. 62. Which of the following is NOT an actual employee tweet? A. “Hate my job!! I want to tell my bosses how dumb they are and how meaningless this job is, then quit, and be happy!” B. “So my job was to test all the food at the new restaurant, can I just say, ughew. I’m going to taco bell.” C. “Smoking weed at work is so [expletive] great” D. “I’m really bummed that I’m working today, I asked off so I could study but my boss is a [expletive] who can’t read.” E. “I am working really hard right now and feel very fortunate to have a job.”
  63. 63. Which of the following is NOT an actual employee tweet? A. “Hate my job!! I want to tell my bosses how dumb they are and how meaningless this job is, then quit, and be happy!” B. “So my job was to test all the food at the new restaurant, can I just say, ughew. I’m going to taco bell.” C. “Smoking weed at work is so [expletive] great” D. “I’m really bummed that I’m working today, I asked off so I could study but my boss is a [expletive] who can’t read.” E. “I am working really hard right now and feel very fortunate to have a job.”
  64. 64. YOU be the judge Who wins? A. Employer B. Employee C. Neither
  65. 65. Who wins? A. Employer B. Employee C. Neither YOU be the judge
  66. 66. Social Media Starter Kit
  67. 67. ADA, FMLA, HIPAA, OSHA … YIKES!
  68. 68. Yikes No More
  69. 69. ManpowerGroup | September 18, 2013 69 Which of the following increases your chances of getting sued under GINA? A. Asking about family medical history B. Terminating an employee after a positive genetic test C. Commingling medical and other info D. Not adopting the EEOC’s safe harbor language E. Discriminating against employees named Gina F. All of the above except “E”
  70. 70. ManpowerGroup | September 18, 2013 70 Which of the following increases your chances of getting sued under GINA? A. Asking about family medical history B. Terminating an employee after a positive genetic test C. Commingling medical and other info D. Not adopting the EEOC’s safe harbor language E. Discriminating against employees named Gina F. All of the above except “E”
  71. 71. What‟s the #1 most headache-inducing law for employers right now?
  72. 72. FMLA
  73. 73. ManpowerGroup | September 18, 2013 73 “My dog had a nervous breakdown.” “My toe was stuck in a faucet.” “I was upset after watching The Hunger Games.” “I was bitten by a bird.." “I was sick from reading too much.” “My sobriety tool kept my car from starting.” “My hair turned orange.” “I forgot you hired me.” “I was suffering from a broken heart.” 2012‟s MOSTCREATIVEEXCUSESFORMISSINGWORK Source: CareerBuilder
  74. 74. ManpowerGroup | September 18, 2013 74 FMLA in Plain English
  75. 75. ManpowerGroup | September 18, 2013 75 ADA How NOT To Have an inflexible leave policy Make snap judgments Don‟t interact Don‟t accommodate Put dumb stuff in writing
  76. 76. ManpowerGroup | September 18, 2013 76 Discuss Discuss Discuss Discuss
  77. 77. ManpowerGroup | September 18, 2013 77 Bob is normally a responsible, quiet employee. One day, however, he shows up two hours late and acts “obscenely happy, wearing make-up, avoiding eye contact, continuously rubbing his legs and touching everyone.” He also does a “crazy monkey arm dance” and begins “twirling and talking gibberish, flying around in the office in a hyper state.” Then he leaves. What do you do? A. Fire him for inappropriate workplace behavior B. Do a crazy monkey arm dance in his honor until he returns C. Drug test him D. Give him a chance to explain his behavior
  78. 78. ManpowerGroup | September 18, 2013 78 Bob is normally a responsible, quiet employee. One day, however, he shows up two hours late and acts “obscenely happy, wearing make-up, avoiding eye contact, continuously rubbing his legs and touching everyone.” He also does a “crazy monkey arm dance” and begins “twirling and talking gibberish, flying around in the office in a hyper state.” Then he leaves. What do you do? A. Fire him for inappropriate workplace behavior B. Do a crazy monkey arm dance in his honor until he returns C. Drug test him D. Give him a chance to explain his behavior
  79. 79. ManpowerGroup | September 18, 2013 79 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 IV 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?
  80. 80. ManpowerGroup | September 18, 2013 80 JOB ACCOMMODATION NETWORK jan.wvu.edu 800-526-7234
  81. 81. LIGHTNING Round
  82. 82. Many employment disputes can be traced back to a lack of leadership. According to research, what‟s the #1 most important leadership trait? A. Charisma B. Humility C. Kindness D. Proactivity E. Results-orientation F. Height G. Coordinating accessories H. Smooth dance moves
  83. 83. Many employment disputes can be traced back to a lack of leadership. According to research, what‟s the #1 most important leadership trait? A. Charisma B. Humility C. Kindness D. Proactivity E. Results-orientation F. Height G. Coordinating accessories H. Smooth dance moves
  84. 84. After a batch of frivolous complaints against execs that resulted in several of them hating your guts because you conducted the investigations, you institute a policy calling for brief “reviews” rather than full-scale investigations whenever a complaint comes in against an exec. What‟s most likely to happen next? A. Nothing: research shows that 97% of all complaints are bogus B. You get a big raise and promotion for sparing execs the hassle and embarrassment of getting investigated C. You get fired after the company pays a big settlement based in part on your failure to conduct an appropriate investigation
  85. 85. After a batch of frivolous complaints against execs that resulted in several of them hating your guts because you conducted the investigations, you institute a policy calling for brief “reviews” rather than full-scale investigations whenever a complaint comes in against an exec. What‟s most likely to happen next? A. Nothing: research shows that 97% of all complaints are bogus B. You get a big raise and promotion for sparing execs the hassle and embarrassment of getting investigated C. You get fired after the company pays a big settlement based in part on your failure to conduct an appropriate investigation
  86. 86. Stay out of JAIL
  87. 87. 187% Free Stuff
  88. 88. Open 24 / 7 / 365.25 World’s Most Fabulous Employment Law LIBRARY
  89. 89. Go To Prison Soon Plan Don„t open the Tool Box Don‟t visit the EL Library Don‟t sign up for Mark‟s alerts Don‟t follow Mark on Twitter Don‟t visit the Blawg every 0.3 seconds
  90. 90. Prison-free Plan KNOW THE LAW INVESTIGATE & DOCUMENT ALL CLAIMS BEWARE RETALIATION LOVE YOUR EMPLOYEES FOCUS ON KEY PRIORITIES Known violations Systemic issues Wage & hour EEOC priorities
  91. 91. ManpowerGroup | Halloween 2012 Employment Law SING-A-LONG
  92. 92. ManpowerGroup | Halloween 2012 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
  93. 93. ManpowerGroup | Halloween 2012 Don‟t put things off til tomorrow Yes investigate right away Don‟ procrastinate And don‟t retaliate Or the more you will have to pay
  94. 94. ManpowerGroup | Halloween 2012 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
  95. 95. ManpowerGroup | Halloween 2012 Technology may give you headaches And the feds they may knock on your door But if you prepare Be consistent and fair They won‟t ever bug you no more
  96. 96. ManpowerGroup | Halloween 2012 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!
  97. 97. ManpowerGroup | Halloween 2012 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
  98. 98. September 18, 2013
  99. 99. September 18, 2013

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