All New Employment Law Quiz Show

©2010 Manpower Inc.
The All New Employment Law
QUIZ SHOW
Mark Toth
Chief Legal Officer NA
October 21, 2010

©2010 Manpower Inc.©2010 Manpower Inc.
2All New Employment Law Quiz Show
Today’s Format
• Shout-outs
• What Are You
Thinking?
• Text-o-rama
• Latest News
• Tools & Tips
• “Smartest Person in
the Audience” Quiz

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.

lawsuits
lawsuits
lawsuits

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

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

A. 33%
B. 53%
C. 73%
D. 93%
E. 113%
What percentage of employers expect
litigation to increase or stay the same this
coming year?

A. 33%
B. 53%
C. 73%
D. 93%
E. 113%
Source: Fulbright & Jaworski
What percentage of employers expect
litigation to increase or stay the same this
coming year?

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

Which type of discrimination case are you
least likely to win?
A. Age
B. Disability
C. Pregnancy
D. Race
E. Sex

Which type of discrimination case are you
least likely to win?
A. Age
B. Disability
C. Pregnancy
D. Race
E. Sex
Sources: EEOC, Jury Verdict Research

A. Age
B. Disability
C. Race
D. Sex
What discrimination claim is likely
to result in the biggest verdict?

A. Age
B. Disability
C. Race
D. Sex
Sources: Jury Verdict Research, Fulbright & Jaworski
What discrimination claim is likely
to result in the biggest verdict?

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

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?

A. I-9 violations
B. OSHA violations
C. FMLA violations
D. Wage and hour violations
E. Doing business in California
Sources: Littler Mendelson, Seyfarth Shaw, Manpower Employment Blawg
Which of the following is most likely to
result in a humongous class action?

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
• 200 new Wage & Hour Compliance Officers
• $25 million and 100 DOL enforcers to target
independent contractor misclassifications
Sources: EEOC, Littler Mendelson, Department of Labor, Manpower Employment Blawg

What Should Employers Do?
• Know the law (especially exemption, overtime, break
time and independent contract requirements)
• Train managers and employees on time-keeping
• Audit classifications and records
• Address any pay discrepancies immediately
• Limit use of electronic devices during non-work hours,
vacations and leaves of absence
• Implement complaint system and investigate promptly
and thoroughly

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

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

A. Yes, substantial increase
B. Yes, modest increase
C. No change
D. No, modest decrease
E. No, substantial decrease
QUARTERLY LITIGATION INDEX:
Are you seeing an increase in
employment law claims?

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

diversity
diversity
diversity

Diversity training helps diversity.
A. True
B. False

Diversity training helps diversity.
A. True
B. False
Source: American Sociological Review

Anti-diversity Training?
• Review of 30+ years of data from 800+ companies found that
mandatory diversity training was followed by a reduction of diversity
in management: 12% for black males, 10% for black females and
7.5% for females generally
• Problem isn’t diversity training per se. Problem is the type of
mandatory diversity training typically offered by employers —
superficial lawyers-made-us-do-it training that is forced on
employees to avoid discrimination lawsuits
Sources: American Sociological Review, Harvard University, University of Arizona, The Washington Post, TIME Magazine

So, what does help diversity?
A. Accountability at the top
B. Mentorships
C. Creating a diversity point person or task force
D. Recruiting from a wide variety of sources (e.g., minority
colleges)
E. All of the above

So, what does help diversity?
A. Accountability at the top
B. Mentorships
C. Creating a diversity point person or task force
D. Recruiting from a wide variety of sources (e.g., minority
colleges)
E. All of the above
Sources: University of Arizona, The Washington Post, TIME Magazine

Frustrated by a continuing lack of diversity in your
company, you create metrics to hold managers
accountable for promoting diversity, including
requirements that a certain % of new hires be
diverse candidates. This approach is most likely:
A. Lawful
B. Unlawful

Don’t Forget Disability Diversity
• 70% of companies have diversity policies but only
2/3 include disability as a component
• Only 19% have a specific person/department to
oversee hiring of persons with disabilities
(versus 40% in 1995)
• Only 21% of disabled persons are employed
(versus 59% non-disabled)
Sources: Kessler Foundation, National Organization on Disability

technology
technology
technology

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

Tech @ Court
• Tweets are forever
• “Sexting” is harassment
• Ignore purely personal communications
• Beware CrackBerry OT
• Don’t forget to hold
• Congress, others targeting Facebook?

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.”

• 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

POLL: Do you use a social networking tool?
A. Yes
B. No
C. What’s social networking?

POLL: If yes, what do you use most?
A. Facebook
B. LinkedIn
C. MySpace
D. Twitter
E. Other

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’s
NEW?

Is there any chance the state lawsuits
seeking to block PPACA will succeed?
A. Yes
B. No
C. Maybe

45All New Employment Law Quiz Show 45
• 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.
• The court: “The power that the individual mandate seeks to
harness is simply without prior precedent.”
• What about the elections?
Will PPACA Be Sent Packing?

Someone tells you the “Ice Man” is at the
door. What does that mean?
A. You will have plenty of ice to keep bratwurst and mixed drinks properly
chilled in your workplace
B. The newly created Interstate Council on Employment (ICE) is seeking
data on your workforce, including outsourcing, off-shoring and cross-
border migration patterns
C. The International Commission on Education (ICE) is about to present
you with an award for your novel approach to EEO training which
currently consists of proactively and strategically ignoring all
employment disputes
D. You’d better hope/pray that your I-9s are fully and lawfully completed

• 2,000+ cases (more than triple the rate before the crackdown)
• 500+ new NOIs (Notice of Intent to Investigate)
• Dozens of debarments (versus 0 pre-crackdown)
• Quadrupled NIFs (Notice of Intent to Fine): $15+ million
• $1+ million fine for Abercrombie & Fitch
Cold Hard ICE Facts

• Follow the law: ensure that all I-9s and supporting documentation
are properly filled out and maintained.
• Don’t wait for ICE: audit yourself and take corrective action on any
incomplete or defective I-9s in line with ICE and EEOC guidelines.
• Got an NOI? Respond promptly (or seek an extension if you need
one). Refrain from tampering with any documents. Keep copies of
everything you submit to ICE. Call a lawyer.

There is more discrimination against
Muslims now than there was in the year
immediately following 9/11.
A. True
B. False

There is more discrimination against
Muslims now than there was in the year
immediately following 9/11.
A. True
B. False
Source: EEOC

• Anti-Muslim discrimination claims hit new high of 1,490 last
year
• Claims have more than doubled in the past five years and
have far surpassed the number filed in the year after 9/11
• Public perception of Muslims has dropped from a 41%
favorability rating in 2005 to just 30% now — a decrease of
more than 25%.
• “There is a hatred, an open hatred, and a lack of tolerance of
people who are Muslim.” (Mary Jo O’Neill, EEOC)
The Facts

EEOC v. JBS USA
• EEOC alleges that supervisors and co-workers “threw blood
meat, and bones” at Muslim employees and repeatedly made
anti-Muslim offensive comments in the workplace.
• JBS allegedly refused to accommodate prayer-time requests
of Muslim employees and then retaliated against them by
firing them when they asked that their break times be changed
during the Islamic holy month of Ramadan.
The Suits

Boudal v. Disney
• Disney hostess alleges she was sent home when she refused to
remove her hijab at work.
• Her lawyer: Disney is “fearful the sight of a hijab would adversely
impact its guests.”
• Disney: “We’ve given her the opportunity to work in a backstage role
the last several shifts she’s come in.”
• Her lawyer’s rebuttal: “Take a ride on one of your own rides, a little
thing called ‘It’s a Small World,’ which celebrates human diversity.”
The Suits

• Don’t tolerate harmful, offensive conduct by your employees
that targets any protected class — including Muslims
• Reasonably accommodate religious practices
• Check out EEOC’s online religious accommodation FAQs and
Best Employer Practices Guide

Someone tells you the “Ice Man” is at the
door. What does that mean?
A. You will have plenty of ice to keep bratwurst and mixed drinks properly
chilled in your workplace
B. The newly created Interstate Council on Employment (ICE) is seeking
data on your workforce, including outsourcing, off-shoring and cross-
border migration patterns
C. The International Commission on Education (ICE) is about to present
you with an award for your novel approach to EEO training which
currently consists of proactively and strategically ignoring all
employment disputes
D. You’d better hope/pray that your I-9s are fully and lawfully
completed

An employee comes to you at 4:57 on a Friday afternoon
and says, “I’m not making a complaint or anything like
that but I think the CEO may be harassing me. But please
don’t investigate or anything like that because I fear he’ll
retaliate and he’s made some violent threats toward me
and I fear for my safety.” What should you do?
A. Don’t investigate
B. Investigate right away
C. Investigate after a “cooling off” period to potential workplace
violence
D. Investigate after promising the employee confidentiality to protect
him/her
56

An employee comes to you at 4:57 on a Friday afternoon
and says, “I’m not making a complaint or anything like
that but I think the CEO may be harassing me. But please
don’t investigate or anything like that because I fear he’ll
retaliate and he’s made some violent threats toward me
and I fear for my safety.” What should you do?
A. Don’t investigate
B. Investigate right away
C. Investigate after a “cooling off” period to potential workplace
violence
D. Investigate after promising the employee confidentiality to protect
him/her
57

• 34% of executive women know a female co-worker who had
an affair with her boss
• 15% of women at the director level or above had an affair
• 37% believe that the woman received a “career boost”
• 70% of women (versus 61% of men) lose respect for a leader
who has an affair
• 56% of women (48% of men) feel animosity toward the couple
• 65% of women (60% of men) believe that salary increases
and other perks are traded for sexual favors
Sources: Harvard Business Review; Center for Work-life Policy
Think Harassment is Dead?

• Have a policy that (1) clearly prohibits all forms of unlawful harassment and
(2) contains a clear mechanism for reporting potential violations, including
alternate paths when the alleged harasser is the complaining party’s boss.
• Train all employees on the policy, with a special emphasis for managers on
the dangers of workplace romance (particularly boss-subordinate).
• Fully investigate all complaints, even if (1) the alleged harasser asks you
not to and (2) the allegations are against the CEO or a superstar.
• If the investigation warrants disciplinary action, take it (even if it means
firing the CEO or superstar).
• Carefully consider any and all communications related to the investigation,
particularly if they concern a high-profile employee (and discuss them with
experienced legal and PR counsel).
What Employers Should Do

A. The DOL issued a rule that will require employers to publish 401(k)
fees and expenses
B. 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
C. OSHA fines will likely increase due to new enhanced penalty
procedures
D. It’s now easier for unions to obtain injunctions during union elections
E. The government issued a new toolkit to help employees with
disabilities return to work
F. All of the above
What Else is New?

What’s
NEXT?

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

NLRB Process
• “The NLRB has the ability to unduly increase union power
and leverage without intervention by Congress.”
(U.S. Chamber of Commerce)
• Case decisions: slow, narrow, easy to reverse
• GC Memoranda: fast, very narrow, easy to reverse
• Rulemaking: fast, broad, hard to reverse

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

Timing is Everything
• No action before November elections
• Lots of action between April and December 2011
– If Democrats maintain control over one or both houses =
NLRB more aggressive
– If Republicans win control of Congress =
NLRB more restrained

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
69

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

POLL: Should obesity discrimination be
illegal?
A. Yes
B. No

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
75

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

What’s Next With the Supremes?
• Informal Complaints. Does retaliation protection extend to
unwritten verbal complaints? (Kasten v. Saint-Gobain Performance
Plastics)
• “Associational” Discrimination. Does retaliation protection
extend to an employee’s fiancé who alleges that he was terminated
after she filed a discrimination complaint? (Thompson v. North
American Stainless)
• “Cat’s Paw” Liability. When is an employer liable for the unlawful
intent of “bad actors” who caused or influenced — but did not make
— an employment decision? (Staub v. Proctor Hospital)

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

83All New Employment Law Quiz Show 83All New Employment Law Quiz Show
If you had to boil all of
employment law,
HR and management best
practices down into
one simple word,
what would it be?

LOVE

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Smartest Person
in the Audience
QUIZ

A.Hiring
B.Medical issues
C. RIFs/Terminations
D. Technology
E.Wage and hour
QUARTERLY EMPLOYMENT LAW THERMOMETER:
Which employment law issue currently gives you the
most headaches?

THANK
YOU!

All New Employment Law Quiz Show

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