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Mark: Thanks, Hannah! Hello everyone and thank you for joining us today!
Welcome to our special Halloween-themed Answers to the World’s Scariest Employment Law ?s where for the next 58-and-a-half minutes we will attempt to reduce your terror level by answering as many spooky employment law ?s as humanly possible.
We’re going to go at warp speed but if you miss anything a handy SlideShare version of my PPT plus lots of other stuff will be available for your reading pleasure on my blawg at marktoth.com.
OK, here’s where things officially get spooky. Because I’m a lawyer we’ll begin with some frightening legalese [read].
In other words, you can’t sue me, Hannah, ManpowerGroup or anyone else based on anything you hear here today. So there.
As an extra added bonus, ManpowerGroup’s own Kade Kimber will somehow be magically tweeting along as me during today’s webinar using the handle @manpowerblawg – that’s b-l-a-w-g – using the hashtag mpwebinar. Thank you, Kade, and please don’t say anything that’ll get me fired.
Today’s webinar is brought to you by … YOU. Thanks to the hundreds of you out there in Webinarland who submitted ?s and topics in advance for our consideration. We’ve included questions we thought would be most helpful to our audience and did some creative combining and editing to make this as impactful as humanly possible. Nice mix of big-picture and nuts-and-bolts stuff. In other words, if you don’t like what you see here today, you have no one to blame but … YOU.
Here’s what we’ll cover today. First, we’ll look at some of our pre-webinar survey results to see what YOU want us to talk about. Then we’ll dive right in and de-spook-ify ?s in the topic areas you suggested. To help keep you stay awake we’ll mix in a variety of Tweet- and Text-o-ramas for valuable prizes. We’ll then conclude today’s proceedings with our latest how to get sued BIG now tips. But that’s not all. Immediately after the webinar tune into my blawg at marktoth.com for our Least Zombie-ish Webinar Attendee Contest and other great free stuff.
We’ll also post on my Blawg our 187% free EL Tool Box. Includes a glossary to help decode the alphabet soup of employment laws; cheat sheets on every major employment law; an investigation checklist; termination tools; an overview of wage and hour basics; tools for reducing legal fees and much much more.
OK, let’s move on to the results of our pre-webinar survey. What keeps YOU awake at night?
We asked you to rank the world’s scariest employment law issues. Here’s your official top 10, topped off with FMLA and ADA, followed by wage and hour, discrimination, fiing, investigations, social media, harassment and hiring. We used this data to scientifically select the ?s we’ll be covering today topic-by-topic.
We also asked you: Is compliance with employment laws getting scarier or easier. Yikes. 81% of you responded with either somewhat or really very extremely scarier. A grand total of 0% of you said really very extremely easier. So, the percentage of you experiencing some form of increased scariness is 81% vs. 3% in the decreased scariness category – or 27 TIMES more of you. Wow. That’s very scary.
And here’s our Quarterly Litigation Index, where we ask you: Are you seeing an increase in emp’t law claims? Similar to the last slide, 33% of you report an increase vs only 4% of you reporting a decrease. In other words, the number of you seeing an increase in is 8 times greater than the number who are seeing a decrease. So that’s scary too.
We also asked you to answer this question in 10 words or less: What spooks you most about the world of work right now? Here’s basically what you said …
Hundreds of responses. That’s the main theme right there on your screen. We’ll try to publish a summary on the Blawg in the next few days but it’s going to be difficult because you identified everything under the sun and then some. But one thing is absolutely clear: there’s an absolutely unprecedented level of FEAR.
We’re here to help. Our goal is simple: to de-spook-ify employment law one law at a time. For those of you who follow my blog, starting Monday we’ll be breaking down each and every major employment law in a single post each and every day until we’re done and you know absolutely everything. We want you to be 187% fear-free.
In line with your votes putting the ADA and FMLA at the very top of your nightmare list, we’ll begin with medical mayhem. Lots of questions in this area.
Let’s kick things off with today’s Tweet-o-rama, or in honor of Halloween – Twick or Tweet. The first person to tweet the correct answer using the Twitter handle you see there on your screen – at manpowerblawg – that’s b-l-a-w-g -- will when a prize.
The following is an amalgamation and only slightly exaggerated combination of ?s we have received over the years. Here goes: 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? One call, that’s all, to whom should it be? Tweet your answer for all the world to see using the Twitter handle you see there on your screen.
OK on to the first SCAAAARY question …
Nope. It’s not just you. One of the areas in which you said you struggle most is leave abuse. To help you avoid getting taken advantage of, here are the Top 10 Most Creative Excuses for Missing Work from the past year. Hopefully you haven’t heard these from any of your employees or tried them yourselves … [read]. Plane .. Man, I hate when that happens.
Some data …
So, back to our first Tweet-o-rama. Your very first call when facing a tough disability leave or accommodation issue is: JAN, the Job Accommodation Network. I’m always shocked at how few HR people and lawyers know about this awesome service. Experts on disability, medical leave and accommodation issues of all types. Call ‘em myself. The EEOC has stated publicly that it LOOOVES when employers use this service – shows good faith. Call ‘em, email ‘em, they’re FREE, which is a quite a bit cheaper than most lawyers.
Here’s our next question. Very timely …
Key message: similar to H1N1 and SARS before it -- prepare don’t panic. Employers who already had pandemic plans in response to H1N1 have had an easier time knowing what to do. Dust those off and follow the latest guidance from OSHA, CDC, FDA and WHO, depending on industry.
OSHA has ID’d certain industries most at risk: healthcare, airline and other travel, mortuary workers, lab workers, border/customs worker, emergency responders. But all employers should have an action plan and communicate it. OSHA has detailed procedures on training requirements and on how to deal with potentially infected employees and work sites. If you haven’t already done so, have your EE safety person check out OSHA’s – as well as CDC’s and if you’re a food org, the FDA – and, for good measure, the WHO site, immediately.
If global company, take note of travel advisories issued by the gov’t, including right now Liberia, Guinea or Sierra Leone, and be exceedingly careful about travel to other affected countries, including Kenya, Nigeria and Uganda. Prohibit non-essential travel to those areas and develop procedure based on gov’t guidance for any Ees returning to the US from those areas.
Of course, balance plans with anti-discrimination laws, including Title VII prohibition against discn based on national origin, race or color.Also keep the ADA and HIPAA in mind, which require confidentiality on the disclosure of employee medical information in certain circumstances. Could also be FMLA impacts – Ebola most certainly would be considered a serious health condition – as well as NLRA impacts if Ees engage in protected concerted activity such as collectively refusing to work in an area or with a person believed to be infected by Ebola.
Check the government sites often. Updated continually. CDC just issued some new guidance yesterday.
In short, if you have reason to believe your workplace may have an actual Ebola impact, hang up on me immediately and go deal with it now.
This question is backed up by our poll identifying FMLA as the #1 scream-inducing law right now. Here it is …
Believe it or not, the government has published a handy doc that actually makes something simple. As we’ve mentioned in previous webinars, there on your screen is something every HR person and emp’t lawyer should read: The EE’s Guide to the FMLA, described as a QUOTE “plain language booklet designed to answer common FMLA questions and clarify who can take FMLA leave and what protections the FMLA provides.” Lots of colorful flowcharts and diagrams for people like me who can’t stand legalese. Your employees are reading it — so should you.
Another very timely question …
Please don’t staple things to employee’s foreheads. If at all possible, hand deliver FMLA notices and get signatures in person or use a method that requires receipt or other proof of delivery. Get proof or you may not able to prove it. Sounds simple but lots of employers neglect.
Next question …
***POLL***Ask and you will receive. Here’s an actual real-life case ripped straight out of recent headlines. But instead of just listening to me blah blah blah YOU be the judge. Let’s say you own a security company. You have a security guard who loses an arm in an automobile accident. Being the good employer that you are you keep him on as an employee despite the limb loss and assign him to one of your clients. However, that client then complains, saying QUOTE: “The company is a joke. You sent me a one-armed security guard.” Based on the pressure from the client you remove the guard from that assignment. You then try to find him other assignments but are unable to do so. The guard sues your company for disability discrimination. Who wins?
That’s right, the employee. Big lesson here that far too many employers forget: The client ISN’T always right. The EEOC loooooves to take cases like this to trial. That’s what they did here and won. After the verdict, the plaintiff said QUOTE “He hopes that other employers will get the message that they cannot rely on stereotypes and assumptions, and must treat people based on their actual abilities.“ Good thing to keep in mind.
As you can see on our screen there, it’s time for our Text-o-rama. Who do you think wins the following case? Let’s go with the THIRD person to text us at the number on the screen: 414/751-0126, that’s 414/751-0126 -- with the correct answer will win a $50 gift certificate good for any of the fine merchants @ giftcertificates.com. Just type in your first name so we can identify you + your answer to the question “Who wins?” Another real case. The facts: An employer agrees with an employee that he has an ADA-covered disability. But one of the symptoms displayed by the employee is reeeeeally angry outbursts directed at subordinates at work. And then, without asking, the employee starts bringing his shih tzu named Sugar Bear to work, claiming that Sugar Bear helps him control his anger. According to the plaintiff’s co-workers, the plaintiff allowed Sugar Bear to wander around and even wee-wee in the workplace. You then fire the employee based on his abusive conduct and for bringing a wee-weeing dog into the workplace without permission. The employee sues, claiming disability discrimination. Who wins? Again, send your texts with your first name and answer to the number there on the screen. The answer … in a moment.
While we’re awaiting your responses, here’s the ADA on 1 slide. The ADA is all about bringing the employer and employee together to interact in what is affectionately known as the Interactive Dance. The steps are there on your screen. Discuss discuss discuss discuss and then discuss some more. The goal is a good faith open dialogue that balances business needs AND EE needs. If more employers did that, fewer would get sued.
And here’s the answer to our Text-o-rama. Once again, the EMPLOYEE wins. The defendant sought summary judgment on the grounds that a disability can’t excuse abusive conduct toward subordinates and/or bringing a wee-weeing dog into work w/o permission. The court disagreed, finding that basically the employer failed to engage in the interactive dance. It said QUOTE “there are questions of fact regarding whether the employee requested to bring Sugar Bear to work as an accommodation, and if he had, whether the request was reasonable.”
Next question. LOTS of these out there …
Sleep better. Open the Tool Box we’ll provide after this webinar. Included is a handy checklist on each major leave law plus an analysis of how they intersect and interact with each other.
And now, let’s talk about drugs. One expert says that as many as 1 in 10 employees in highly competitive fields abuse Adderall or other similar drugs to get ahead. Here’s the question …
5 main things to keep in mind here. 1. Don’t rely on subjective perceptions or jump to conclusions. 2. Test on “reasonable suspicion” or after a workplace accident – note the word “reasonable.” Just because someone wears a Grateful Dead shirt to work doesn’t mean you can test them. 3. Avoid bans on prescribed meds without an individualized assessment. Very important. 4. Keep everything related to drug testing confidential just like you would for medical records. And 5. Have positive tests for prescription meds reviewed by a medical review officer to help you make the right decision.
Just bc someone is under the age of 25 and seems competitive and focused doesn’t mean they’re on Adderall. Lots of cases out there where Ers have had to pay big dollars for not following these simple rules, including one Er who paid close to half a million. Be very careful.
So, that’s drug testing. So what about drugs @ work generally?
1. There is generally NO ADA protection for those “currently engaging” in use of illegal drugs. 2. There is, however, a safe harbor for recovering addicts who aren’t currently engaging. So, what exactly does “currently” mean? No bright line in terms of days. Again, it requires individual assessment. 3. Prescribed meds may be covered unless they clearly pose a “direct threat” to safety. Not an easy test. Has to be a VERY direct and immediate threat. 4. And last there on the screen, it’s generally OK to prohibit being under the influence of any substance other than legally prescribed meds.
What about medical marijuana? Very state-specific. Talk to your favorite emp’t lawyer, which is always a good idea when it comes to drugs @ work. But these are some general guidelines to keep in mind.
Our next most scariest law according to YOU is the FLSA. Also the #1 source of humongous class actions so please stay awake during this portion.
The top three risk areas in the law in order are wage and hour, wage and hour and wage and hour. All of the areas you see there on your screen should be at the top of your priority list, especially if you do business anywhere in the great state of California, which, just to keep things interesting, recently passed 21 brand new laws that impact employers in that state. Enjoy.
But there’s no need to fear. Here’s what you should do to avoid being a defendant in the next huge class action. First: KNOW THE LAW. When I was in private practice I was often astounded at how many HR and business folks don’t know basic exemption and overtime requirements. Please please please don’t let that happen to you. Can be fatal to your company’s future. Train managers and employees on proper time-keeping. Now. Huge risk if you don’t. If you don’t have a complaint system, implement one and investigate complaints promptly. You’d much rather have employees complain to you than having them go directly to a plaintiffs’ law firm. Work with your favorite emp’t lawyer to audit classifications and records periodically. The law changes frequently and plaintiffs’ lawyers love to pounce on companies that don’t keep up. And, last, address any discrepancies promptly and carefully. Now. Please.
I once gave a speech at the annual SHRM convention. On the plane ride afterward I found myself sitting next to someone who attended the presentation. We talked about some of hot employment law issues for awhile and then right before we parted ways she revealed that she works for the EEOC. I found myself going over and over every single word I said in the presentation and on the plane to make sure I hadn’t said anything that could get me sued. Happy to say no lawsuits were forthcoming. But more than that I discovered that EEOC employees are actually human beings just like you and me. She was kind and warm and even humorous. Actually was quite humbling. The message? Please don’t demonize the EEOC. And if you do things right you don’t have to fear ‘em.
Like all EEOC guidance, not law and in fact could be overruled by the courts. But the EEOC really doesn’t like it when you ignore what it puts out. So what does it actually say? A lot of controversial things that have some business groups up in arms …
Another EEOC question …
Just yesterday, it hit the news that the EEOC is seeking an injunction against a company to stop its wellness plan. Big news. The key in the EEOC’s eyes is whether the plan is mandatory vs voluntary. If you want the EEOC in your face …
I remember reading a prediction a few years ago that discrimination is dead. Umm, not so much. Here are some questions and answers to help you navigate your way out of the scary forest of potential discrimination disasters.
***POLL***Let’s start with religious discrimination. Lots of ?s about that. Here’s another real-life recent case that mirrors some of the ?s y’all have out there. You be the judge. You’re the HR person for a police department. Again, that’s the POLICE department. An employee works for you as a QUOTE “parking services officer.” As a POLICE department you decide to give weapons training to all of your officers and require them to carry weapons. The employee says no to both, saying that he’s a Jehovah’s Witness and that it’s against his religion to carry a weapon. The department then fired him on the grounds that ensuring the public safety by carrying a weapon is an essential function of the job. The employee sued, claiming the department failed to accommodate him by failing to consider a transfer to a vacant non-pistol-totin’ job. Who wins?
Yep. The POLICE dept apparently thought it was so obvious that officers working for the dept should have to undergo weapons training and actually carry a weapon that it didn’t engage deeply enough in the accommodations process. Some Ers don’t even know that there IS a relig accommodation process similar to the ADA Interactive Dance. So, w/o further ado, here are the Ten Commandments of Religious Disc, courtesy of the fine folks at the law firm of Snell & Wilner.
Thou shalt not assume a religion unknown to you is not a religion. The EEOC and courts have recognized lots of religions you’ve never heard of. Thou shalt not discriminate on the basis of religion. Thou shalt not harass employees based on religion. Thou shalt reasonably accommodate an employee’s religious beliefs. Thou shalt be careful enforcing dress codes. Thou shalt be careful enforcing grooming standards. Thou shalt allow employees to participate in religious observances. Thou shalt provide a time an place for employees to pray, if requested. Thou shalt treat religious displays in the workplace equally among religions. Thou may have an exception if thou are a religious organization.
Here’s a question that’s getting more and more relevant by the moment …
***POLL***Another real-life recent case that echoes ?s our audience has. You be the judge. An organization is desperately trying to increase diversity but hasn’t had much success. It has an opening in a key position. A white male employee applies. He’s told that the position is being earmarked for a person of color for diversity reasons and is discouraged from applying. A person of color who is less qualified than the white male gets the job. The organization’s diversity metrics look better but the white male sues. Who wins?
Yes -- the employee, once again. Starting to see a theme here? 785 thousand reasons to make decisions based on qualifications, not race. That’s how much the jury awarded the plaintiff employee in this case.
No such thing as reverse discrimination. Law is perfectly clear: It’s illegal to discriminate on the basic of race or color whether someone’s white, black, brown, green or purple. Ps firms out there could make a pretty easy living suing companies and then deposing heads of HR and asking about their diversity practices could make lots and lots and lots of $$$.
Our next most terrifying area according to you is terminations. Here’s a ? …
Our next most terrifying area according to you is terminations. Here’s a ? …
Tons of termination tools and tips in the Tool Box. Check it out.
To help guide your termination decisions, here’s a handy one-page time-honored test that can save you lots of grief and money. I personally used this in several cases and won hands-down each time. If you can’t give a definitive “yes” to each of these ?s, don’t terminate. Read.
A category that’s causing increasing levels of terror …
Almost every employer has some sort of SM policy. But almost no employers consistently enforce them or adequately train employees on the perils of posting and tweeting. But 2 recent cases show that Ers may finally be getting the message.
Please please please train your employees – and any teenagers you may have in your house who hope to one day attend college and/or be employed -- on the 2 key messages you see on the screen. Last week, a cook from a well known natl restaurant chain was fired after he posted several revealing photos of himself working shirtless while cooking food and even tagging the restaurant in his post. The restaurant took prompt action, enforcing its policy and then issuing a public statement to reduce the PR hit, proclaiming that it QUOTE "clearly does not encourage this type of behavior in our restaurants. We maintain very high standards of food quality, safety and cleanliness and took immediate steps to ensure the restaurant continues to follow these requirements. Additionally, we ended this team member's employment after learning of his conduct.“ On that last point, let’s look at another real-life case …
Also last week, a well known professional sports organization ousted its president over what it found to be a sexist tweet in which he said of a golfer sounded QUOTE “like a little school girl squealing during recess.” The president quickly apologized but the organization fired him anyway for actions inconsistent with its policies.
The lesson? Again, have a policy and enforce it consistently – whether it’s against the chief or a chef or anyone else.
***POLL***Time for our next straight-from-the-headlines question for you to ponder. Let’s say 2 of your employees are talking in the cafeteria at work and they discover that they both owed more income taxes than they expected. They think the company screwed up. So they do what any normal modern employee would do, they jump on Facebook. One employee writes a not-very-nice post saying calling the company incompetent, saying it can’t even do paperwork correctly and concluding with an abbreviation that stands for something I can’t say during this webinar. That post prompted a number of comments from co-workers, including one who called his boss something I also can’t say during this webinar. The company found out about the posts and fired several employees for disloyalty. The employees went to the National Labor Relations Board. Who wins? Can’t be the employee yet again – can it?
The NLRB takes a very hard line on anything resembling protected concerted activity – which is when 2 or more employees complain collectively about wages or terms and conditions of employment even if it’s with swear words and even if it’s in cyberspace.
We’ve pulled together all the world’s greatest tips into our official Social Media Starter Kit, which is available for free right now on the Blawg. Here’s what you get: Summary of the law, NLRB-approved model policy, the Blawg’s official model policy, Other Fortune 500 policies, SM 101 articles and much much more. And. All. For. Free.
Start right here with your absolute #1 scary area of the law: medical mayhem.
Hope that first point doesn’t jinx you. But it’s true.
Almost nothing worse than trying to defend a case where an employer doesn’t follow its on procedures, particularly when it comes to investigations. Investigation. Firing. Recent case illustrates that graphically. An employee complained of serious racial harassment, including a noose on the worksite. The employer was slammed by a court for doing a QUOTE “ “lackadaisical, out of compliance with its own anti-harassment policy, and otherwise non-effective.” Don’t let that be said of you. Please.
Here are the 4 biggest cases for Ers. The Supremes will decide a case involving Abercrombie and Fitch and when an employer has notice of the need for religious accommodation. In that particular case is wearing a head scarf enough to constitute notice to the employer? Second, the Supremes will decide whether accommodations Ers make available to Ees for other disabilities must also be made available to pregnant Ees. The Court will also decide to what extent time spent in security screening should be paid, as well as whether a court can enforce the EEOC’s mandatory duty to conciliate claims before filing a lawsuit.
Certain sandwich maker made lots of not-so-positive headlines lately. Huffington Post and others ran scathing articles revealing how the company made “sandwich artists” sign 2-year NCs banning any and all work for any restaurant that gets 10% or more of its revenue from sandwiches anywhere within a 3-mile radius of where they were employed. Tell NC story.
And here’s our final Tweet-o-rama of the day. Those of you who have participated in my previous webinars have a built-in advantage on this question. But I’m OK with that. Here’s our first Tweet-o-rama. The very first person to tweet the correct answer to this question using our official Blawg handle you see there on the screen will win a $50 gift certificate good for any of the fine merchants on giftcertficates.com.
It’s a theme we repeat in basically all of my webinars but we want to see if our message is sinking in. If you had to boil all of employment law down to ONE word, what would it be? Again, If you had to boil all of employment law down to ONE word, what would it be? Tweet your answer for all the world to see using the handle @manpowerblawg. That’s @manpowerblawg. B-l-a-w-g.
Last question of the day …
Anyone can tell you how NOT to get sued. To sum up, here on one page is HOW TO GET SUED BIG NOW.
As for that last one there …
And here’s the answer to our last tweet-o-rama. If you remember nothing else today, the absolutely key to employment law, HR and everything else in the universe is this one little word: LOVE. If we treated each other how we’d like to be treated -- with kindness and dignity and respect – we wouldn’t have to have all of those annoying laws and regulations to keep track of and lawyers would all be unemployed. It’d be a beautiful thing. So, want fewer regulations? LOVE your employees. Fewer disputes? LOVE your employees. Fewer lawyers? LOVE your employees. More productivity and engagement and downright happy employees who don’t sue you in massive class actions that take all your time and effort and money? LOVE your employees. It’s that simple.
By the way, this whole LOVE message appears to be catching on. Harvard Business Review had a nice article on the positive impact of LOVE on the workplace and noted that Whole Foods has a set of leadership principles that start with LOVE and PepsiCo lists “caring” as its first guiding principle on its web site. And Zappos says this as part of its values: QUOTE “We watch out for each other, care for each other and go above and beyond for each other.” Interesting.
Just in case you were also wondering how NOT to get sued, here’s what we suggest …
#1: visit my Blawg at least every 35 seconds. Lots of great stuff. You can sign up for our FREE emp’t law alerts which will start up again in a few weeks with all the latest and greatest emp’t law info.
Immediately following the conclusion of today’s webinar, we’ll post on my Blawg our 187% free EL Tool Box. Includes a glossary to help decode the alphabet soup of employment laws; cheat sheets on every major employment law; an investigation checklist; termination tools; an overview of wage and hour basics; tools for reducing legal fees; our patented social media starter kit and much much more.
On the Blawg you can also find the World’s Most Fabulous Employment Library, which is open 24 hours a day 7 days a week 365 and a quarter days a year (which covers all leap years just in case you’re wondering). In it you can find a wealth of information on literally every employment law topic in the history of the universe. And. All. For. Free.
Also immediately following this webinar we’ll be having a contest on the blawg – again, that’s marktoth.com. Simple quiz to determine who stayed the most un-dead throughout today’s presentation.
Believe it or not 2015 is right around the corner. Join us to kick off the new year with my next webinar, What’s New and What’s Next for Employment Law in 2015. You won’t want to miss it.
THANK YOU THANK YOU THANK YOU so much for your time, attention and participation – we really very extremely incredibly much appreciate it!
And now, back over to Hannah.
Answers to the World's Scariest Employment Law Questions
Answers to the World’s Scariest
Employment Law Questions
Chief Legal Officer
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Answers to the World’s Scariest
Employment Law Questions
Chief Legal Officer
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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
Really very extremely easier
Really very extremely scarier
Is compliance with employment
laws getting scarier or easier?
Source: ManpowerGroup Employment Blawg
Are you seeing an increase in
employment law claims?
Yes, substantial increase
Yes, moderate increase
No, moderate decrease
No, substantial decrease
Source: ManpowerGroup Employment Blawg
What spooks you
most about the
world of work
If you could make only
one call, to whom
would it be?
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?
“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
• 28% admit faking sickness
• 24% have caught fakers using
• 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
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?
• Don’t staple things to
• Get signature in person or
get confirmation receipt.
• If the employee claims she/he
didn’t get it, be reeeeeally
careful about firing.
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
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?
I’m afraid that our do-more-and-more-
less society is driving more
and more and more employees
(especially younger ones) to use
drugs like Adderall to get ahead at
work. How do drug-testing rules
apply to something like that?
Drug Testing Made Un-scary
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)
The EEOC’s brand-new
Guidance scares me. I’ve
heard different opinions about
it. I heard it’s not really law.
Can we ignore it?
• 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
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?
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
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.
(Source: Snell & Wilmer LLP)
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?
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?
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?
The cyberspace workplace
terrifies me. What are the
rules on disciplining
employees for what they
tweet, blog or post online?
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.
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?
• 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
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?
Follow your own dang procedures.
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?
WHAT’S UP WITH THE SUPREMES?
1. Religious accommodations
2. Pregnancy accommodations
3. Security screening pay
4. Mandatory EEOC conciliation
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.)
• 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.
If you had to boil
all of employment law
down to one word,
what would it be?
I’m a bottom-line kind of
person. What things are
most likely to result in
BIG verdicts against my
company right now?
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