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North Carolina SHRM Presentation

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North Carolina SHRM Presentation

  1. Everything You Ever Wanted to Know About (But Didn’t Want to Pay a Lawyer to Ask) Mark Toth Chief Legal Officer – North AmericaAugust 16, 2012
  2. Today’s AGENDA Smartest HR Person in the Universe Competition All the Latest Developments How to Get Sued Big Now Employment Law Sing-a-long Employment Law Tool BoxManpowerGroup | August 16, 2012 2
  3. marktoth.com @manpowerblawgManpowerGroup | August 16, 2012 3
  4. Official Disclaimer The presentation you are about to witness should not be relied upon or construed as legal advice. Failure to stay awake for the remainder of this presentation could result in potentially long-lasting side-effects, including severe disengagement, plummeting productivity, increased litigation and/or severe gastrointestinal discomfort from having to do all the work in your company because everyone else leaves. Please consult with your own HR and/or Legal departments before making any major policy and/or procedure changes. You have been warned.ManpowerGroup | August 16, 2012 4
  5. SMARTEST HR PERSON IN THE UNIVERSE COMPETITIONManpowerGroup | August 16, 2012 5
  6. LAWSUITS LAWSUITS LAWSUITSManpowerGroup | August 16, 2012 66
  7. According to a recent study, what‟s the #1 legal headache for U.S. businesses? A. Environmental regulation B. Patent protection C. International contract laws D. Employment law disputes E. LawyersManpowerGroup | August 16, 2012 7
  8. According to a recent study, what‟s the #1 legal headache for U.S. businesses? A. Environmental regulation B. Patent protection C. International contract laws D. Employment law disputes E. LawyersSource: Fulbright & JaworskiManpowerGroup | August 16, 2012 8
  9. According to the latest data, what are an employer‟s odds of winning at trial? A. It is unlawful for employers to win B. 22% C. 48% D. 68% E. 88%ManpowerGroup | August 16, 2012 9
  10. According to the latest data, what are an employer‟s odds of winning at trial? A. It is unlawful for employers to win B. 22% C. 48% D. 68% E. 88%Source: Jury Verdict ResearchManpowerGroup | August 16, 2012 10
  11. What hit record highs last year? A. EEOC complaints B. EEOC recoveries C. EEOC class actions D. EEOC love notes from employers E. All of the above except “D”ManpowerGroup | August 16, 2012 11
  12. What hit record highs last year? A. EEOC complaints B. EEOC recoveries C. EEOC class actions D. EEOC love notes from employers E. All of the above except “D” Source: EEOCManpowerGroup | August 16, 2012 12
  13. What‟s the #1 most common discrimination claim?A. AgeB. National OriginC. RaceD. RetaliationE. SexManpowerGroup | August 16, 2012 13
  14. Retaliation is #1 1. Retaliation (36,258) 2. Race (35,890) 3. Sex (29,029) 4. Disability (25,165) 5. Age (23,264) Source: EEOCManpowerGroup | August 16, 2012 14
  15. Which of the following is most likely to result in a humongous class action?A. I-9 violationsB. OSHA violationsC. FMLA violationsD. Wage and hour violationsE. Doing business in CaliforniaManpowerGroup | August 16, 2012 15
  16. Which of the following is most likely to result in a humongous class action?A. I-9 violationsB. OSHA violationsC. FMLA violationsD. Wage and hour violationsE. Doing business in CaliforniaManpowerGroup | August 16, 2012 16
  17. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)lawsuitslawsuits DEALlawsuits Or No?© 2011 ManpowerGroup 17
  18. How Much Will YOU Pay? $100K - $1M+: $0 - 50K: $51-100K: Big pattern 1 plaintiff + 1 plaintiff + $1M: +/or no horrible horrible Pattern +/or reeaaallllllllly facts facts horrible horrible (32%) (28%) facts facts (39%) (1%)ManpowerGroup | August 16, 2012 18 Sources: EEOC, Jury Verdict Research
  19. More MoreMore enforcement: up for third straight yearMore Suits: 1 / 5 has 50+More Big Suits: 4 / 10 have suit seeking $20M+More Investigations: 91% expect increase or stay sameMore Costs: median spend up 40% to $1.4M Sources: Fulbright, Seyfarth Shaw, Jury Verdict ResearchManpowerGroup | August 16, 2012 19
  20. What‟s Next? More More MoreEven More EnforcementEven More Class ActionsEven More $$$Big Targets: • Systemic • Wage and Hour • Inflexible Leave • Pregnancy/Caregiver • Exec MisconductManpowerGroup | August 16, 2012 20
  21. TECHNOLOGYTECHNOLOGYTECHNOLOGYManpowerGroup | August 16, 2012 2121
  22. True or False? None of the laws that apply in the real world apply in the social media universe and therefore I can completely lose my mind and absolutely anything goes.ManpowerGroup | August 16, 2012 22
  23. Same old laws … Non-discrimination Adverse impact FCRA GINA NLRA Negligent Hiring Off-duty Conduct Arrest & Conviction RecordManpowerGroup | August 16, 2012 23
  24. Same old test … job- job- related related job- relatedManpowerGroup | August 16, 2012 24
  25. Latest Stats: Employees62% “couldn’t live without the Internet”53% would rather lose nose than Facebook48% would swap pay for SM access29% access X-rated sites28% have posted work-related photos22% have posted/tweeted about a co-worker21% would turn down a job if unsocialSources: Cisco, Pew Research Center, McCann WorldGroup, Nielsen, DLA PiperManpowerGroup | August 16, 2012 25
  26. Question: How do those about to enter the workforce rank the following in order of importance?A. Social Activities, Romance, Music, InternetB. Internet, Social Activities, Romance, MusicC. Music, Social Activities, Internet, RomanceD. Romance, Internet, Music, Social ActivitiesManpowerGroup | August 16, 2012 26
  27. Question: How do those about to enter the workforce rank the following in order of importance?A. Social Activities, Romance, Music, InternetB. Internet, Social Activities, Romance, MusicC. Music, Social Activities, Internet, RomanceD. Romance, Internet, Music, Social ActivitiesSource: CiscoManpowerGroup | August 16, 2012 27
  28. Latest Stats: Employers73% do no SM training68% monitor internet activity58% say SM benefits outweigh risks56% block access to some sites45% use SM to screen31% have disciplined for postings about employer25% have disciplined for excessive SM use19% ban SMSources: SHRM, Clearswift, DLA Piper, CiscoManpowerGroup | August 16, 2012 28
  29. What Are Employers Really Using?95% LinkedIn58% Facebook42% Twitter29% Professional/Association Sites3% MySpace1% Foursquare1% Second Life6% OtherSource: SHRMManpowerGroup | August 16, 2012 29
  30. What Are Employers Really Finding? 35%: Bad Stuff 18%: Good Stuff• 53% inappropriate photos/info • 50% good personality• 44% drugs/alcohol • 39% strong qualifications• 35% disparaging comments • 38% creative abilities• 29% bad communication skills • 35% good communication skills• 26% discriminatory comments • 19% valid references• 24% lies about qualifications • 15% awards/accoladesSource: MindflashManpowerGroup | August 16, 2012 30
  31. Which of the following is NOT an actual employee tweet? A. “Hate my job!! I want to tell my bosses how dumb they are and how meaningless this job is, then quit, and be happy!” B. “So my job was to test all the food at the new restaurant, can I just say, ughew. I’m going to taco bell.” C. “Smoking weed at work is so [expletive] great” D. “I’m really bummed that I’m working today, I asked off so I could study but my boss is a [expletive] who can’t read.” E. “I am working really hard right now and feel very fortunate to have a job.”ManpowerGroup | August 16, 2012 31
  32. Which of the following is NOT an actual employee tweet? A. “Hate my job!! I want to tell my bosses how dumb they are and how meaningless this job is, then quit, and be happy!” B. “So my job was to test all the food at the new restaurant, can I just say, ughew. I’m going to taco bell.” C. “Smoking weed at work is so [expletive] great” D. “I’m really bummed that I’m working today, I asked off so I could study but my boss is a [expletive] who can’t read.” E. “I am working really hard right now and feel very fortunate to have a job.”ManpowerGroup | August 16, 2012 32
  33. Stay Out Of Court Basics Adopt a Reasonable Policy Consistently Enforce It Don‟t Intercept, Steal or Deceive Train Searchers + Managers Monitor But Don‟t OverreactManpowerGroup | August 16, 2012 33
  34. Search Checklist Be Consistent • All candidates or certain categories/departments • Same phase of interview process Designate Searchers • One employee, small group or 3rd party • Not hiring manager Limit Scope • Job-related, job-related, job-related • Restrict to certain approved sites • No age, race, religion, disabilities, genetics or other protected infoManpowerGroup | August 16, 2012 34
  35. Search Checklist Disclose • Notify candidates that may use SM • Include on applications and other documents Document • Consistent process • Note legitimate job-related reasons for not hiring • Follow document retention policiesManpowerGroup | August 16, 2012 35
  36. building theperfect social media ManpowerGroup | August 16, 2012 policy 36
  37. 10 Essential Elements Tie to Vision + Handbook + Code Set Clear + Reasonable Expectations Define SM Brooooooooadly Protect Trade Secrets/Confidentiality Clarify Who Owns WhatManpowerGroup | August 16, 2012 37
  38. 10 Essential Elements No Disparagement/Harassment Respect Copyrights NLRA Disclaimer Duty To Report Violations “Up to and including discharge”ManpowerGroup | August 16, 2012 38
  39. SM Policy Starter Kit Latest Legal Developments Official NLRB Policy Official Blawg Sample Policy Other Fortune 500 Policies SM 101 ArticlesManpowerGroup | August 16, 2012 39
  40. MEDICAL MEDICAL MEDICALManpowerGroup | August 16, 2012 4040
  41. What‟s true about the ADAAA? A. It’s easier to establish a covered “disability” B. Mitigating measures can’t be considered C. Episodic or remission conditions are covered D. Individualized assessments are required E. Rigid leave policies will get you in trouble H. All of the aboveManpowerGroup | August 16, 2012 41
  42. What‟s true about the ADAAA? A. It’s easier to establish a covered “disability” B. Mitigating measures can’t be considered C. Episodic or remission conditions are covered D. Individualized assessments are required E. Rigid leave policies will get you in trouble H. All of the aboveManpowerGroup | August 16, 2012 42
  43. Bob is normally a responsible, quiet employee. One day, however, he shows up two hours late and acts “obscenely happy, wearing make-up, avoiding eye contact, continuously rubbing his legs and touching everyone.” He also does a “crazy monkey arm dance” and begins “twirling and talking gibberish, flying around in the office in a hyper state.” Then he leaves. What do you do? A. Fire him for inappropriate workplace behavior B. Do a crazy monkey arm dance in his honor until he returns C. Drug test him D. Give him a chance to explain his behaviorManpowerGroup | August 16, 2012 43
  44. Bob is normally a responsible, quiet employee. One day, however, he shows up two hours late and acts “obscenely happy, wearing make-up, avoiding eye contact, continuously rubbing his legs and touching everyone.” He also does a “crazy monkey arm dance” and begins “twirling and talking gibberish, flying around in the office in a hyper state.” Then he leaves. What do you do? A. Fire him for inappropriate workplace behavior B. Do a crazy monkey arm dance in his honor until he returns C. Drug test him D. Give him a chance to explain his behaviorManpowerGroup | August 16, 2012 44
  45. Which of the following increase your chances of getting sued under GINA? A. Asking about family medical history B. Terminating an employee after a positive test C. Commingling medical and other information D. Not adopting the EEOC’s “safe harbor” language E. Discriminating against employees named Gina F. All of the above except “E”ManpowerGroup | August 16, 2012 45
  46. Which of the following increase your chances of getting sued under GINA? A. Asking about family medical history B. Terminating an employee after a positive test C. Commingling medical and other information D. Not adopting the EEOC’s “safe harbor” language E. Discriminating against employees named Gina F. All of the above except “E”ManpowerGroup | August 16, 2012 46
  47. An employee comes into your office at 4:59 on a Friday and informs you that he suffers from multiple medical conditions, including “work-induced narcolepsy,” “spontaneous combustion syndrome” and “episodic cubicle-confinement hyper-grumpiness.” He demands several accommodations, including: (1) a portable I.V. hooked up to an espresso machine, (2) a fire extinguisher mounted to his head; (3) three-and-a-half weeks off each month and (4) your office. If you have time to make only one call, to whom should it be?ManpowerGroup | August 16, 2012 47
  48. JOB ACCOMMODATION NETWORK jan.wvu.edu 800-526-7234ManpowerGroup | August 16, 2012 48
  49. Today‟s Format What‟s Next? Don‟t Be Inflexible “Presumed” Disabilities Interact, Interact, Interact Accommodate, Accommodate, AccommodateManpowerGroup | August 16, 2012 49
  50. WAGE & HOURWAGE & HOURWAGE & HOURManpowerGroup | August 16, 2012 5050
  51. What celebrity was recently sued for a plethora of wage and hour violations?ManpowerGroup | August 16, 2012 51
  52. LADY GAGAManpowerGroup | August 16, 2012 52
  53. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)How do you determine if an independent contractor isreally an independent contractor?A. It depends on a confusing, ambiguous, multi-factor test dependent on control that differs in WC, tax and other contextsB. It is the employer’s option to choose , depending on which is more advantageous from a tax perspectiveC. It is the employee’s option to chooseD. Under the new Contractor Clarification Law, if a person is separately incorporated, provides services to others and works in a recognized “profession”© 2011 ManpowerGroup 53
  54. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)How do you determine if an independent contractor isreally an independent contractor?A. It depends on a confusing, ambiguous, multi-factor test dependent on control that differs in WC, tax and other contextsB. It is the employer’s option to choose , depending on which is more advantageous from a tax perspectiveC. It is the employee’s option to chooseD. Under the new Contractor Clarification Law, if a person is separately incorporated, provides services to others and works in a recognized “profession”© 2011 ManpowerGroup 54
  55. Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) Independent Contractors KEY: CONTROL • Permanency of relationship? • Investment in equipment, etc.? • Opportunity for profit or loss? • Independent judgment and initiative? • Services integral to employer’s business?© 2011 ManpowerGroup 55
  56. Whats Next? Hot Spots IC Classifications OT Classifications (especially Administrative) Work @ Home Pre-shift “Work” (Donning/Doffing, Logon/Logoff)ManpowerGroup | August 16, 2012 56
  57. Whats Next? Hot States California Illinois Massachusetts Minnesota New Jersey New York Pennsylvania WashingtonManpowerGroup | August 16, 2012 Source: Seyfarth Shaw 57
  58. UNIONS UNIONS UNIONSManpowerGroup | August 16, 2012 5858
  59. True or False: The NLRB only has jurisdiction over unionized companies. A. True B. FalseManpowerGroup | August 16, 2012 59
  60. True or False: The NLRB only has jurisdiction over unionized companies. A. True B. FalseManpowerGroup | August 16, 2012 60
  61. Facebook Firings Don‟t discipline for Be especially wary of comments about wages group comments or work conditions OK (maybe) to discipline Review policy to make for comments unrelated sure not overbroad to work conditions or out-of-dateManpowerGroup | August 16, 2012 61
  62. PICTURE
  63. Top 11 Litigation Tips In the History of the Universe1. Love your employees2. Know the law3. Take the Mom Test4. Model ethical behavior at the top5. Address known and systemic issues6. If it ain’t job-related, it ain’t job-related7. Follow your own policies and contracts8. Conduct early case evaluations9. Establish budgets and fixed/flat fees10. Never ever ever retaliate11. Investigate and document ALL claimsManpowerGroup | August 16, 2012 63
  64. What % of employees are engaged? A. -9% B. 29% C. 49% D. 69% E. 89%ManpowerGroup | August 16, 2012 64
  65. What % of employees are engaged? A. -9% B. 29% C. 49% D. 69% E. 89%Source: GallupManpowerGroup | August 16, 2012 65
  66. Employment Law Talk ShowWe are • 80% of jobs are sedentaryStressssssed • 62% say workload increased last 6 months • 40% are sleep-deprived • 33% are chronically overworked • 32% increase in workweek in past 25 yearsSources: Pennington Biomedical Research Center, Kronos, National Sleep Foundation, • 1 in 25 bosses is a certifiedFamilies & Work Institute, Harris Interactive, Dr. Paul Babiak psychopathManpowerGroup | August 16, 2012 66
  67. Employment Law Talk ShowMore Stress = The Bottom Line:More Suits $200-$300B is lost each year due to stress-related absenteeism, burnout, decreased productivity, WC claims, turnover and insurance costs.ManpowerGroup | August 16, 2012 Source: American Institute of Stress 67
  68. Employment Law Talk ShowManpowerGroup | August 16, 2012 Source: ManpowerGroup 68
  69. If you had to boil all of HR and employment law down into ONE simple word, what would it be?ManpowerGroup | August 16, 2012 69
  70. LOVE
  71. EMPLOYMENT LAWSING-ALONG
  72. Employment Law Talk Show Employment law can be easy If you listen you surely won‟t fail We wrote you this song So please sing along If you don‟t, you could end up in jailManpowerGroup | August 16, 2012 72
  73. Employment Law Talk Show Don‟t put things off „til tomorrow Yes investigate right away Don‟t procrastinate And don‟t retaliate Or the more you will have to payManpowerGroup | August 16, 2012 73
  74. Employment Law Talk Show Remember this song And you‟ll never go wrong Yes we wish you the best On your journeys You‟ll stay out of court And you won‟t have to pay no attorneysManpowerGroup | August 16, 2012 74
  75. Employment Law Talk Show Technology may give you headaches The feds they may knock on your door But if you prepare Be consistent and fair They won‟t ever bug you no moreManpowerGroup | August 16, 2012 75
  76. Employment Law Talk Show Remember this song And you‟ll never go wrong Yes we wish you the best On your journeys You‟ll stay out of court And you won‟t have to pay no attorneysManpowerGroup | August 16, 2012 76
  77. Employment Law Talk Show If your brain‟s too full to remember All the stuff we just covered above There‟s one simple word That sums up what you heard Love, Love, Love, Love, Love, Love, LOOOOOOOOOOOOOOOOOOOVE!ManpowerGroup | August 16, 2012 77
  78. Employment Law Talk Show Remember this song And you‟ll never go wrong Yes we wish you the best On your journeys You‟ll stay out of court And you won‟t have to pay no attorneysManpowerGroup | August 16, 2012 78
  79. marktoth.com @manpowerblawgManpowerGroup | August 16, 2012 79
  80. August 16, 2012

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