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What's New and What's Next in Employment Law for 2014

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What's New and What's Next in Employment Law for 2014

  1. 1. What’s New & What’s Next in Employment Law with Mark Toth Chief Legal Officer North America
  2. 2. 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 HR headaches, litigation 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.
  3. 3. Follow me on Twitter: @manpowerblawg Visit my Blawg: marktoth.com Find me on Facebook: facebook.com/manpowerUS
  4. 4. 187% Free Stuff
  5. 5. Open 24 / 7 / 365.25 World’s Most Fabulous Employment Law LIBRARY
  6. 6. Stay Out of Jail in 2014 The BIG Picture What’s NEW? What’s NEXT? Jail-free ACTION PLAN Least likely to be Incarcerated CONTEST 6
  7. 7. The BIG Picture
  8. 8. Question Is complying with employment laws getting easier or more difficult? Really very extremely easier Somewhat easier No change 0% 2% 24% 58% Somewhat harder Really very extremely harder 16% ManpowerGroup Pre-Webinar Survey, January 2014 8
  9. 9. Question Are you seeing an increase or decrease in employment law claims? Yes, substantial increase 4% Yes, moderate increase 26% No change 66% No, moderate decrease 3% No, substantial decrease 2% ManpowerGroup Pre-Webinar Survey, January 2014 9
  10. 10. 70% Un-engaged QuitYourJob App 70% Dump Vacation :( Work for the CIA? Karoshi 87% Want Out Workplace “Mobbing” Sources: Right Management, Staffbay, Gallup, Expedia, Kroll, PE.com 10
  11. 11. The Bottom Line: Employees are really very extremely incredibly disgruntled. 11
  12. 12. The Goal: Get your employees gruntled. 12
  13. 13. If you had to boil all of employment law down to one word, what would it be?
  14. 14. 5:1 VS. 0.3:1 Source: Harvard Business Review
  15. 15. Which of the following is proven to boost your mood and productivity? A. B. C. D. E. Surfing the web Drinking coffee Taking a walk Praising a co-worker Listening to music
  16. 16. Which of the following is proven to boost your mood and productivity? A. B. C. D. E. Surfing the web Drinking coffee Taking a walk Praising a co-worker Listening to music
  17. 17. How to Get Sued BIG Now
  18. 18. Employers win more lawsuits than they lose.
  19. 19. False
  20. 20. 49% Source: Jury Verdict Research
  21. 21. Lawsuit Facts & Figures Wage & Hour Suits (+3%) Systemic Investigations (+25%) EEOC Recoveries (new record) WHD Recoveries ($1B+) Discrimination Class $ (+381%) Sources: EEOC, Seyfarth Shaw, Littler, Wall Street Journal 22
  22. 22. Get a BIG Class Action Fast Ignore known violations Don’t address systemic issues Violate wage & hour laws Lie or engage in fraud Do business in California 23
  23. 23. “What celebrates its 50th birthday in 2014?”
  24. 24. The Civil Rights Act of 1964
  25. 25. Are we now absolutely discrimination-free such that we can repeal all employment laws, fire all HR people and make employment lawyers do something more productive with their lives?
  26. 26. Ummm … no.
  27. 27. 9 / 10
  28. 28. What’s Up with the EEOC?
  29. 29. Hiring Vulnerable Workers Pregnancy EEOC ADA Harassment Access to Legal System LGBT Source: EEOC 30
  30. 30. Is the ENDA near?
  31. 31. Probably not
  32. 32. Is the ENDA Near? Employment Non-discrimination Act Sexual orientation & gender identity LGBT: 4% of workforce, 21% face discrimination T: 26% fired, 97% face discrimination Passed Senate 64-32 but .0001% chance in House Sources: Williams Institute, National Center for Transgender Equality 33
  33. 33. 372 Million Reasons to Fear the EEOC $21.3M to 200+ employees for racial harassment + discriminatory promotions & assignments $4.9M to 427 employees for inflexible “maximum leave” and “no-restrictions” policies $2.5M to 89 women for egregious harassment, discrimination & retaliation $2.3M to 76 employees for systemic denial of reasonable accommodations $2.0M to 6,000 employees required to disclose medical info or face discipline Sources: EEOC, Seyfarth Shaw, Littler 34
  34. 34. What EEOC mediators tell you in mediation might not be 100% accurate.
  35. 35. True
  36. 36. EEOC Myth vs. Reality EEOC Mediators: EEOC Stats: • 73%: settle or cause • 70%: settle or suit • 3.7% cause rate • 0.2% suit rate Sources: EEOC, Merrily Archer, BNA 37
  37. 37. Criminal Background Checks June 2013: EEOC filed suits alleging disparate impact because no “individualized assessment” July 2013: 9 state AGs sent letters to EEOC demanding guidance be rescinded August 2013: EEOC responded to AGs, calling it a “misunderstanding” October 2013: EEOC ordered to pay $750K in costs due to “unfounded allegations” November 2013: EEOC posted “discussion letter” with instructions for inmates under the guidance 38
  38. 38. Which is most likely to result in a humongous class action? A. B. C. D. E. I-9 violations OSHA violations FMLA violations Wage & hour violations Doing business in CA
  39. 39. Which is most likely to result in a humongous class action? A. B. C. D. E. I-9 violations OSHA violations FMLA violations Wage & hour violations Doing business in CA
  40. 40. Wage & Hour WHIRLWIND
  41. 41. Wage & Hour in a Minute 39% of class actions; average settlement $5M Misclassification Initiative Worker Classification Survey Payroll Fraud Protection Act Jail for “repeat and willful” violations Sources: NERA Economic Consulting,Workplace Insights 42
  42. 42. Cheat Sheets
  43. 43. Medical MAYHEM
  44. 44. ADA in a Minute Broad “disability” definition Individualized analysis versus rigid guidelines New Guidance on cancer, diabetes, epilepsy and intellectual disabilities Obesity could be a disability EEOC target: 38% of merit suits Source: EEOC 45
  45. 45. Who wins? A. Employee B. Employer
  46. 46. Who wins? A. Employee B. Employer
  47. 47. ADA How NOT To Have an inflexible leave policy Make snap judgments Don’t interact Don’t accommodate Put dumb stuff in writing
  48. 48. Discuss Discuss Discuss Discuss 49
  49. 49. FMLA in a Minute Broad Serious Health Condition Definition Don’t Fear Intermittent Leave DOL FMLA Tools Never ever Retaliate FAMILY Act Coming? 50
  50. 50. FMLA Made Simple
  51. 51. Which is the only industrialized nation that doesn’t guarantee working moms paid time off after childbirth?
  52. 52. The United States of America
  53. 53. The FAMILY Act in a Minute All employers covered regardless of size Up to 12 weeks paid leave for birth/adoption, serious illness of employee or family member 0.2% payroll tax shared by employee & employer Capped at 66% & $1,000 / month Lesotho, Swaziland and Papua New Guinea? Source: International Labour Organization 54
  54. 54. GINA in a Minute Bans: Requesting or Using Genetic Info Reach: applicants, employees & family members In Court: EEOC filed first suits last year First Settlement: 370,000 Reasons to Know GINA 55
  55. 55. Workplace drug use is on the decline.
  56. 56. True AND False
  57. 57. Drugs in a Minute Illegal / old-school drug use Prescription / designer drug use 3.5% Positive Now vs. 13.6% Positive 1988 False Positive? DOL’s Drug-free Workplace Policy Builder Source: Quest 58
  58. 58. Workplace injuries are on the decline.
  59. 59. True
  60. 60. OSHA in a Minute Work injuries & illnesses: 3.4 / 100 300A Forms due February 1 I2P2 by September? New online whistleblower system Silica, dust & beryllium coming soon 61
  61. 61. ADA vs. FMLA vs. GINA vs. WC
  62. 62. Get WOMEN
  63. 63. Which of the following is true? A. Women are better educated and test better than men B. Less than 5% of the Fortune 500 have a female CEO C. Companies with more women in leadership generate higher returns D. Most employees prefer a male boss E. All of the above F. None of the above
  64. 64. Which of the following is true? A. Women are better educated and test better than men B. Less than 5% of the Fortune 500 have a female CEO C. Companies with more women in leadership generate higher returns D. Most employees prefer a male boss E. All of the above F. None of the above
  65. 65. Women @ Work Facts Women are better educated & test better < 5% of Fortune 500 have female CEOs More female officers = 34% better returns Most still prefer male boss EEOC Report: Obstacles Facing Women Sources: Pew Research Center, CNN Money, Businessweek, Gallup, ManpowerGroup 66
  66. 66. Get and keep women
  67. 67. If you’re a manager and you believe that your religion requires you to periodically scream at ashtrays, engage in 8-hour stare-downs and talk to walls, you should require your employees to do the same.
  68. 68. False
  69. 69. Don’t Make Employees SCREAM at Ashtrays
  70. 70. Religious Discrimination on the Rise 100%+ increase in past 20 years Please don’t require ashtray screaming, 8-hour stare-downs & talking to walls Dress codes vs. religious garb Harassment vs. accommodation Source: EEOC 71
  71. 71. 10 Commandments of Religious Discrimination 1. Thou shalt not assume a religion unknown to you is not a religion. 2. Thou shalt not discriminate on the basis of religion. 3. Thou shalt not harass employees based on religion. 4. Thou shalt reasonably accommodate an employee’s religious beliefs. 5. Thou shalt be careful enforcing dress codes. 6. Thou shalt be careful enforcing grooming standards. 7. Thou shalt allow employees to participate in religious observances. 8. Thou shalt provide a time and place for employees to pray, if requested. 9. Thou shalt treat religious displays in the workplace equally among religions. 10. Thou may have an exception if thou are a religious organization. (Source: Snell & Wilmer LLP) 72
  72. 72. 1 out of every 3 employees will be 65 or older by the year 2025.
  73. 73. True
  74. 74. We’re Getting OLDER
  75. 75. ADEA in a Minute 33% of the workforce will be 65+ by 2025 Most engaged? 92% of 60+ female admins $5.7M to 4 servers replaced by 20-year-olds $575K for pattern of age discrimination + failure to keep records Ageist comments can = age discrimination Sources: BLS, Keas, Jury Verdict Research 76
  76. 76. The latest research shows that Facebook is a good source of info to help predict workplace success.
  77. 77. False
  78. 78. Social Media MANIA
  79. 79. SM in a Minute Facebook: bad predictor, discriminator, dying? What’s hot? Snapchat? Instagram? Not Facebook? Cyberspace complaint ain’t a complaint Even PR professionals fail at SM Hot debate: Who owns SM accounts? Sources: Florida State, Clemson, Accenture,Global Web Index 80
  80. 80. 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 81
  81. 81. 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 82
  82. 82. SM Starter Kit
  83. 83. The NLRB in a Minute NLRB 2.0? Targeting non-union employers Union rights posting dead “Ambush” election and other rules coming? Supremes: (1) class action waivers OK and (2) parties can agree donning / doffing unpaid 84
  84. 84. LIGHTNING Round
  85. 85. The NLRB in a Minute NLRB 2.0? Targeting non-union employers Union rights posting dead “Ambush” election and other rules coming? Supremes: (1) class action waivers OK and (2) parties can agree donning / doffing unpaid 86
  86. 86. Immigration in 30 Seconds H-1Bs: stampede starts April 1 ICE brings the chill: Worksite Enforcement Strategy 23 indictments for undocumented workers $34M for alleged systemic visa abuse 87
  87. 87. OFCCP in 30 Seconds Veteran & disability rules effective March 24 Self-identification form posted January 27 7% utilization goal for disabled individuals Will lawsuits trump rules? Data collection, sex discrimination and construction rules next? 88
  88. 88. No More Credit Checks? Equal Employment for All Act Bars discrimination based on credit history Employers can’t request, even with consent Exemptions: national security or required by law EEOC considering guidance 89
  89. 89. Stay out of jail ACTION PLAN
  90. 90. Prison-free in 2014 Plan KNOW THE LAW FOCUS ON KEY PRIORITIES Known violations Systemic issues Wage & hour (especially CA) EEOC priorities INVESTIGATE & DOCUMENT ALL CLAIMS USE THE TERMINATION TEST LOVE YOUR EMPLOYEES
  91. 91. Sign up for our FREE alerts and visit marktoth.com every 0.3 seconds
  92. 92. 187% Free Stuff
  93. 93. Open 24 / 7 / 365.25 World’s Most Fabulous Employment Law LIBRARY
  94. 94. COMING NEXT: Employment Law Made Unscary
  95. 95. The Employment Law SING-A-LONG
  96. 96. 2014 won’t 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 ManpowerGroup | Halloween 2012
  97. 97. The law, it’s always a-changing With new acronyms every day But if you visit my Blawg You won’t be in the fog And big verdicts you won’t have to pay ManpowerGroup | Halloween 2012
  98. 98. 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 ManpowerGroup | Halloween 2012
  99. 99. The ENDA it soon could be coming The ICE Man may knock on your door But if you prepare Be consistent and fair They won’t ever bug you no more ManpowerGroup | Halloween 2012
  100. 100. 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! ManpowerGroup | Halloween 2012
  101. 101. 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 ManpowerGroup | Halloween 2012
  102. 102. THANK YOU!

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