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Answers to the World's Scariest Employment Law Questions

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Answers to the World's Scariest Employment Law Questions

  1. 1. Answers to the World’s Scariest Employment Law Questions with Mark Toth Chief Legal Officer North America
  2. 2. General Information • Share the webinar • Votes (polling questions) • Rate (before you leave) • Attachments (download)
  3. 3. Audio Problems? The audio for this event is streaming to your computer. If you lose sound at any point, simply refresh your browser and the sound will return.
  4. 4. Earning HRCI Credit To receive 1 HRCI for this webinar, participants must attend the webinar in its entirety (one person per computer).
  5. 5. Answers to the World’s Scariest Employment Law Questions with Mark Toth Chief Legal Officer North America
  6. 6. 6 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 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.
  7. 7. 7 Tweet along: #mpwebinar Follow Mark on Twitter: @manpowerblawg Visit Mark’s Blawg: Find us on Facebook:
  8. 8. 8 Today’s webinar is brought to you by
  9. 9. 9 Reduce your terror level What Keeps YOU Up at Night? Scary ???s Answered Twick or Tweet? How to Get Sued BIG Now Least Zombie-ish Contest
  10. 10. 10 Keep the monsters away
  11. 11. What Keeps 11 YOU Awake at Night?
  12. 12. 12 1. FMLA (18%) 2. ADA (15%) 3. WAGE & HOUR (12%) 4. DISCRIMINATION (11%) 5. FIRING (11%) 6. INVESTIGATIONS (8%) 7. OTHER (7%) 8. SOCIAL MEDIA (5%) 9. HARASSMENT (4%) 10. HIRING (3%) TOP 10 SCARIEST EMPLOYMENT LAW ISSUES Source: ManpowerGroup Employment Blawg
  13. 13. Really very extremely easier Really very extremely scarier 13 Question Is compliance with employment laws getting scarier or easier? Somewhat easier No change Somewhat scarier 0% 3% Source: ManpowerGroup Employment Blawg 16% 58% 23%
  14. 14. 14 Question Are you seeing an increase in employment law claims? Yes, substantial increase Yes, moderate increase No change No, moderate decrease No, substantial decrease 3% Source: ManpowerGroup Employment Blawg 30% 63% 3% 1%
  15. 15. 15 What spooks you most about the world of work right now?
  16. 16. 16
  17. 17. 17 de-spook-ify
  18. 18. 18 Medical MAYHEM
  19. 19. 19 @manpowerblawg If you could make only one call, to whom would it be?
  20. 20. 20 Scary Q Here’s what drives me bats: it seems that employees are getting more and more and more creative about why they can’t come to work. I’m seeing lots and lots and lots of ADA, FMLA and WC abuse. Is it just me or is that something everyone’s seeing? Eeeeeeeeeeeeeeeeeeeeeeeeek!
  21. 21. 21 “I woke up in a good mood and didn’t want to ruin it.” “I was at the casino all weekend and still had money left to play with on Monday morning." “I just put a casserole in the oven.” “My feet fell asleep while I was sitting on the toilet. When I stood up I fell and broke my ankle.” “My plastic surgery needed some ‘tweaking.’” “I had a ‘lucky night’ and didn’t know where I was.” “I got stuck in the blood pressure machine at the grocery store and couldn’t get out.” “I have a gall stone that I want to heal holistically.” “My uniform caught on fire when I put it in the microwave to dry.” “I accidentally got on a plane.” 2014’s MOST CREATIVE EXCUSES Source: CareerBuilder
  22. 22. Un-scary A EXCUSE-O-RAMA • 28% admit faking sickness • 24% have caught fakers using social media • 66% have asked to see a doctor’s note • 49% have called an employee • 15% have driven by an employee’s house • 18% have fired for using a fake excuse 22 Source: CareerBuilder
  23. 23. 23 800.526.7234
  24. 24. 24 Scary Q Ebola is my biggest nightmare right now. What are employers supposed to be doing to ensure that we don’t all die?
  25. 25. 25 Un-scary A Don’t panic. Prepare.
  26. 26. 26 Scary Q The FMLA continues to make me SCREAM more than any other law. I’m confused. Employees are confused. The lawyers I call are confused. Could you please help simplify it?
  27. 27. 27 Defeat FMLA-o-phobia
  28. 28. 28 Scary Q I heard that a court recently ruled that sending FMLA notices in the mail is insufficient. Then I heard that another court ruled that sending ‘em by email is insufficient as well. Seriously? What are we supposed to do? Staple it to the employee’s forehead?
  29. 29. 29 Un-scary A FMLA NOTICE • Don’t staple things to employee’s foreheads. • Get signature in person or get confirmation receipt. • If the employee claims she/he didn’t get it, be reeeeeally careful about firing.
  30. 30. 30 Scary Q Reality is what freaks me out. I like how you include real-life examples in your webinars to help us see what employers are REALLY facing right now (especially under the ADA). Will you do that in this webinar, too?
  31. 31. 31 Who wins? A. Employee B. Employer
  32. 32. 32 Who wins? A. Employee B. Employer
  33. 33. 33 Who wins? 414.761.0128 Your first name + answer
  34. 34. 34 Discuss Discuss Discuss Discuss
  35. 35. 35 The employee wins.
  36. 36. 36 Scary Q An employee sustained a serious injury at work, which resulted in a disability for which he’s requesting accommodations. He’s also demanding intermittent leave under the FMLA. He also alleges that we unlawfully released personal health information about him in violation of HIPAA. Here’s my question: How on earth can an employer apply the ADA, FMLA, HIPAA and WC (and let’s throw in GINA for good measure) separately and simultaneously? HELP!!!!!!!
  37. 37. 37 Sleep better: Open the Tool Box
  38. 38. 38 Scary Q I’m afraid that our do-more-and-more- and-more-with-less-and-less-and- less society is driving more and more and more employees (especially younger ones) to use supposed performance-boosting drugs like Adderall to get ahead at work. How do drug-testing rules apply to something like that?
  39. 39. 39 Drug Testing Made Un-scary Medical Review Officer Objective, not subjective Avoid prescription bans Reasonable suspicion Confidential
  40. 40. 40 Drugs @ Work Made Un-scary “Currently engaging”? No Recovering? Safe Harbor (unless “currently engaging”) Prescribed meds? Probably (unless direct threat) UI? No (other than legally prescribed meds)
  41. 41. 41 FLSA
  42. 42. 42 Scary Q Let’s say I only have time and energy to freak out about one thing in the employment law universe. What should it be?
  43. 43. 43 Poll Q Which of the following legal risk areas should be your top priority right now? A. Overtime B. Pre/post-shift work C. Meal/rest periods D. Doing business in California E. All of the above
  44. 44. 44 Poll Q Which of the following legal risk areas should be your top priority right now? A. Overtime B. Pre/post-shift work C. Meal/rest periods D. Doing business in California E. All of the above
  45. 45. 45 FLSA Fixes Know the Law Train managers & employees on time-keeping Complaint system: investigate promptly Audit classifications and records Address any discrepancies promptly & carefully
  46. 46. 46 Don’t Be Afraid of the EEOC
  47. 47. 47 The EEOC’s brand-new Pregnancy Discrimination Guidance scares me. I’ve heard different opinions about it. I heard it’s not really law. Can we ignore it? Scary Q
  48. 48. 48 GUIDANCE HIGHLIGHTS • Not law but … • Past, current & future pregnancies • Offer light duty if available • Don’t require leave • May have to accommodate • No adverse action for abortion, lactation or in vitro fertilization Un-scary A
  49. 49. 49 Scary Q I thought wellness plans were, well, well. But now I’m hearing that the EEOC is coming after employers and suing them and I’m scared ours might have problems. What’s up with that?
  50. 50. 50 UNWELL WELLNESS PLANS • Make it mandatory, not optional • Fire those who don’t participate • Decline coverage to those who don’t complete tests/assessments • Require disability disclosures Un-scary A
  51. 51. Discrimination 51
  52. 52. 52 Who wins? A. Employee B. Employer
  53. 53. 53 Who wins? A. Employee B. Employer
  54. 54. 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 mayst have an exception if thou art a religious organization. 54 (Source: Snell & Wilmer LLP)
  55. 55. 55 Scary Q Here’s my never-ending nightmare. We’ve had dozens of diversity initiatives in the past but our diversity has actually decreased. Our CEO is demanding real change and is tying our performance to achieving diversity goals, including earmarking certain strategic positions to be diversity hires. Is that OK?
  56. 56. 56 Who wins? A. Employee B. Employer
  57. 57. 57 Who wins? A. Employee B. Employer
  58. 58. 58 Termination
  59. 59. 59 Everyone in my company is terrified of terminations. I’ve been in HR for about 87 years but haven’t seen a termination checklist I really like. Do you have one you can provide? For free? Please? Scary Q
  60. 60. 60 Tons of Termination Tools & Tips
  61. 61. 61 Termination Test Reasonable notice of consequences? Related to (a) efficient and safe operations and (b) performance company should reasonably expect? Full, fair and timely? Sufficient evidence that guilty as charged? Rule consistently applied to all? Punishment fit the crime, considering (a) seriousness of offense and (b) service record? Notice Rule Investigation Proof Consistency Penalty
  62. 62. Social Media Spookiness 62
  63. 63. 63 Scary Q The cyberspace workplace terrifies me. What are the rules on disciplining employees for what they tweet, blog or post online?
  64. 64. 64 Un-scary A SOCIAL MEDIA TO-DO LIST • Have a policy. • Enforce it. • Train employees: – Facebook is forever. Keep your shirt on. – You are what you tweet. Think before you click. • Beware protected activity.
  65. 65. 65 Who wins? A. Employee B. Employer
  66. 66. 66 Who wins? A. Employee B. Employer
  67. 67. 67 SM Starter Kit
  68. 68. 68 Lightning
  69. 69. 69 Scary Q Here’s what scares me: Halloween. People come to work in costumes that are waaaaay too revealing, too violent, too derogatory toward certain races and/or galactically lacking in taste and judgment. Others refuse to take part and object to any parties on religious grounds. Other than firing everyone so I can get some peace and quiet around here, what else should I do?
  70. 70. 70 Un-scary A HALLOWEEN TRICKS • Chill: almost no one ever sues over a Halloween party. • Some don’t allow costumes, citing a professional dress code. • Some allow costumes, citing a professional dress code. • Whatever you do, don’t mandate attendance/participation.
  71. 71. 71 OK, so what’s YOUR nightmare, Mr. Webinar Blawg Guy? What ONE thing have you seen employers do over and over in your career that you wish they would stop? Scary Q
  72. 72. 72 Un-scary A Follow your own dang procedures.
  73. 73. 73 Scary Q The Supreme Court scares me. With one stroke of the pen those dudes can change everything. What’s on the docket that we should care about?
  74. 74. 74 Un-scary A WHAT’S UP WITH THE SUPREMES? 1. Religious accommodations 2. Pregnancy accommodations 3. Security screening pay 4. Mandatory EEOC conciliation
  75. 75. 75 Non-competes drive me absolutely bats. Our CEO wants to make everyone from our highest-ranking SVP down to our custodial staff sign nationwide 2-year non-competes and then sue each and every person that violates them. At the same time, he wants us to hire lots of our competitors’ employees whether or not they have non-competes. What should I tell him? (Feel free to include swear words.) Scary Q
  76. 76. 76 Un-scary A NON-COMPETE NON-NEGOTIABLES • Be reasonable, man. • States vary but most really, very sincerely hate NCs. • General rule: reasonable time and location restraint tied to legit business reasons AND must be consistently enforced.
  77. 77. @manpowerblawg If you had to boil all of employment law down to one word, what would it be?
  78. 78. 78 I’m a bottom-line kind of person. What things are most likely to result in BIG verdicts against my company right now? Scary Q
  79. 79. How To Get Sued BIG Now 79
  80. 80. 80 Get Sued BIG Now Forget What You Learned Today Don’t Address Wage & Hour Issues Manage Medical Leave Badly Don’t Do the ADA Interactive Dance Ignore the EEOC Don’t Use The Termination Checklist Tweet and Text Terribly Don’t LOVE your employees
  81. 81. How NOT To Get Sued Big Now 82
  82. 82. 83 visit
  83. 83. 84 187% FREE Stuff
  84. 84. 85 Open 24 / 7 / 365.25 World’s Most Fabulous Employment Law LIBRARY
  86. 86. 87 Coming soon … What’s NEW & What’s NEXT For Employment Law in 2015
  87. 87. THANK YOU!
  88. 88. Did you watch this webinar as a recording? Please request your certificate at Image credits: Shutterstock