everything you ever wanted to know about employment law

Everything You Ever Wanted to Know About Employment Law

ManpowerGroup | Tuesday, March 13, 2012 1 Tuesday, March 13, 2012

Mark Toth Chief Legal Officer, ManpowerGroup North America

Everything You Ever Wanted

to Know About Employment Law

(But Didn’t Want to Pay a Lawyer to Ask)


ManpowerGroup | Tuesday, March 13, 2012 2

Today’s Agenda

Smartest Person in Our Audience Competition

All the Latest Developments

Stay Out of Jail To Do List

Employment Law Sing-a-long

Tool Box: $697.8 Billion in Tools & Tips



marktoth.com

@manpowerblawg



Official Disclaimer

The presentation you are about to witness should not be relied upon or construed as legal advice. For specific information on recent legal developments, particular factual situations or the effect of a particular law, the opinion of qualified legal counsel should be sought.

Failure to stay awake for the remainder of this presentation could result in potentially 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 Legal and/or HR departments before making any major changes. You have been warned.



Smartest HR Person in the Universe

COMPETITION



Smartest

HR Person

in the Universe

COMPETITION

lawsuits lawsuits lawsuits



A. Environmental regulation

B. Patent protection

C. International contract laws

D. Employment law disputes

E. Lawyers

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. Lawyers

According to a recent study, what’s the #1 legal headache for U.S. businesses?

Source: Fulbright & Jaworski



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%



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 Research



What hit record highs last year?

A. EEOC complaints

B. EEOC recoveries

C. EEOC class actions

D. EEOC mediations

E. EEOC love notes from employers

F. All of the above except “E”



What hit record highs last year?

A. EEOC complaints

B. EEOC recoveries

C. EEOC class actions

D. EEOC mediations

E. EEOC love notes from employers


Source: EEOC



What’s the #1 most common discrimination claim?

A. Age

B. National Origin

C. Race

D. Retaliation

E. Sex



1. Retaliation (36,258)

2. Race (35,890)

3. Sex (29,029)

4. Disability (25,165)

5. Age (23,264)

Retaliation Is #1

Source: EEOC



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?



How Much Will YOU Pay?

$0 - 50K: 1 plaintiff + no horrible

facts (32%)

$51-100K: 1 plaintiff +

horrible facts

(28%)

$100K - $1M:

Pattern +/or horrible

facts (39%)

$1M+: Big pattern

+/or reeaaallllllllly

horrible facts (1%)

Sources: EEOC, Jury Verdict Research



More More

More Enforcement: up for third straight year

More Suits: 1 / 5 has 50+

More Big Suits: 4 / 10 have suit seeking $20M+

More Investigations: 91% expect increase or stay same

More Costs: median spend up 40% to $1.4M

Sources: Fulbright, Seyfarth Shaw



What’s New? Supremes’ Greatest Hits

Pro-employee

• Retaliation Expanded

• Beware the “Cat’s Paw”

Pro-employer

• Nationwide Class Action Restricted

• Churches Don’t Have to Hire Atheists

• Class Waivers Are OK (Or Are They?)



What’s Next? More More More

Even More Enforcement

Even More Class Actions

Even More $$$

Big Targets:

• Systemic

• Wage and Hour

• Inflexible Leave

• Pregnancy/Caregiver

• Exec Misconduct



Smartest

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technology technology technology



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.

True or False?



Same old laws …

Non-discrimination

Adverse impact

FCRA

GINA

NLRA

Negligent Hiring

Off-duty Conduct

Arrest & Conviction Record



Same old test …

job-related

job-related

job-related



Latest Stats: Employees

62% “couldn’t live without the Internet”

53% would rather lose nose than Facebook

45% 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



Question: 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



Question: 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



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, Mindflash, Clearswift, DLA Piper, Cisco



What Are Employers Really Using?

95% LinkedIn

58% Facebook

42% Twitter

29% Professional/Association Sites

3% MySpace

1% Foursquare

1% Second Life

6% Other

Source: SHRM


ManpowerGroup | Tuesday, March 13, 2012 30 Source: Mindflash

Tuesday, March 13, 2012

35%: Bad Stuff

• 53% inappropriate photos/info

• 44% drugs/alcohol

• 35% disparaging comments

• 29% bad communication skills

• 26% discriminatory comments

• 24% lies about qualifications

18%: Good Stuff

• 50% good personality

• 39% strong qualifications

• 38% creative abilities

• 35% good communication skills

• 19% valid references

• 15% awards/accolades

What Are Employers Really Finding?



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.”



Stay Out Of Court Basics

Know the Law

Adopt a Reasonable Policy

Consistently Enforce It

Consider SM Agreements

Don’t Intercept, Steal or Deceive

Train Searchers + Managers

Monitor But Don’t Overreact



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 info



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 policies



building the

perfect

social media

policy



10 Essential Elements

Tie to Vision + Handbook + Code

Set Clear + Reasonable Expectations

Define SM Brooooooooadly

Protect Trade Secrets/Confidentiality

Clarify Who Owns What



10 Essential Elements

No Disparagement/Harassment

Respect Copyrights

NLRA Disclaimer

Duty To Report Violations

“Up to and including discharge”



SM Policy Starter Kit

marktoth.com

Sample Policy

Other Fortune 500 Policies

SM 101 Articles

Latest From the NLRB



Smartest

HR Person

in the Universe

COMPETITION

medical medical medical



Is the U.S. Workforce STRESSSSSED Out?

81% of HR: more tired than ever

80% of medical expenses stress-related

60% increase in sedentary jobs

40% sleep-deprived

33% “chronically overworked”

32% increase in workweek

25% nap @ work

Sources: WorkForce Software, Harris Interactive, Workplace Power Outage Survey, Sage Software Survey, Urban Mobility

Report, Business Week, Families and Work Institute, Centers for Disease Control and Prevention, The New York Times



More Stress = More Lawsuits

The Bottom Line: $200-$300B lost each year due to stress-related absenteeism, burnout, decreased productivity, WC claims, turnover and insurance costs.

The Lesson: Be nice to your employees.

Source: National Safety Council



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 above



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



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




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?



Job Accommodation Network jan.wvu.edu

800-526-7234



Today’s Format What’s New?

Record # of Claims

Final ADA Rules

Leave Policy Scrutiny

OFCCP 7% Proposal

New Vet Disability and Diploma Guidelines



Today’s Format Big Suits

$20M for Inflexible Leave

$8M for No Accommodation, Retaliation

$3M for No Accommodation, Retaliation

$2.6M for No Accommodation, Retaliation

A $1.39 Bag of Chips is Cheaper Than a Lawsuit



Today’s Format What’s Next?

Don’t Be Inflexible

“Presumed” Disabilities

Interact, Interact, Interact

Accommodate, Accommodate, Accommodate



Smartest

HR Person

in the Universe

COMPETITION

WAGE &

HOUR



What celebrity was recently sued for a

plethora of wage and hour violations?



LADY GAGA



What's New? The Latest

"Class Action Crescendo" Continues

Violations in 73% of Actions

DOL Timesheet App

IC "Amnesty"

Jail for Violators

Don't Mess with HR

Sources: Department of Labor, Seyfarth Shaw



What's Next? Hot Spots

IC Classifications

OT Classifications (especially Administrative)

Work @ Home

Pre-shift “Work” (Donning/Doffing, Logon/Logoff)



What's Next? Hot States

California

Illinois

Massachusetts

Minnesota

New Jersey

New York

Pennsylvania

Washington

Source: Seyfarth Shaw



Smartest

HR Person

in the Universe

COMPETITION

unions unions unions



Today’s Format True or False: The NLRB only has jurisdiction over unionized companies.

A. True

B. False



In addition to Facebook firing cases, what else has the NLRB been busy with in recent months?

A. Approving giant inflatable protest rats

B. Creating new union rights posters

C. Passing new union election rules

D. Reversing decisions to make it easier to unionize

E. All of the above and much much more



What’s New?

“Recess” Appointments

"Ambush" Election Rules

Bigger Than the Supremes?

Union Rights Posting (Or Not)?

Fun with Facebook



Facebook Firings

Don’t discipline for comments about wages

or work conditions

Be especially wary of group comments

OK (maybe) to discipline for comments unrelated

to work conditions

Review policy to make sure not overbroad

or out-of-date



Smartest

HR Person

in the Universe

COMPETITION

PICTURE



Your employees are thinking about leaving your company right now.

A. True

B. False



Source: Right Management

Toledo HR Association

84% of employees intend to

leave their employer in

2012



If you had to boil all of HR and employment law down into ONE simple word, what would it be?



LOVE



Official 2012 Stay Out Of Jail

ACTION ITEMS



2012 ACTION ITEMS

► KNOW THE LAW

► FOCUS ON KEY PRIORITIES

• Known violations

• Systemic issues

• Wage & hour (especially pre-/post-shift, donning/doffing, work @ home)

• Medical leave (especially inflexible policies)

• Technology (policy, training, consistent enforcement)

► INVESTIGATE & DOCUMENT ALL CLAIMS

► BEWARE RETALIATION

► USE THE TOOL BOX



marktoth.com

@manpowerblawg



EMPLOYMENT LAW

SING-ALONG



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



Enforcement action’s expanding And so is the NLRA

And the ADAAA Isn’t going away

Get to know them now Don’t delay



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



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 pay



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 more



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, LOVE!

83



THANK

YOU

everything you ever wanted to know about employment law

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