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Everything You Ever Wanted to Know About Employment Law




                                    Everything You Ever Wanted
                                  to Know About Employment Law
                                  (But Didn’t Want to Pay a Lawyer to Ask)

                 Mark Toth
                 Chief Legal Officer, ManpowerGroup North America




                                                                               Tuesday, March 13, 2012
ManpowerGroup | Tuesday, March 13, 2012                                                                         1
Everything You Ever Wanted to Know About Employment Law




          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

ManpowerGroup | Tuesday, March 13, 2012                                                   2
Everything You Ever Wanted to Know About Employment Law




                                          marktoth.com

                           @manpowerblawg



ManpowerGroup | Tuesday, March 13, 2012                                                            3
Everything You Ever Wanted to Know About Employment Law




   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.

ManpowerGroup | Tuesday, March 13, 2012                                                                4
Everything You Ever Wanted to Know About Employment Law




          Smartest HR Person in the Universe

           COMPETITION

ManpowerGroup | Tuesday, March 13, 2012                                                   5
Everything You Ever Wanted to Know About Employment Law




Smartest
                                          lawsuits
HR Person
in the Universe
COMPETITION
                                          lawsuits
                                          lawsuits
ManpowerGroup | Tuesday, March 13, 2012                                                      6
Everything You Ever Wanted to Know About Employment Law




     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

ManpowerGroup | Tuesday, March 13, 2012                                                   7
Everything You Ever Wanted to Know About Employment Law




     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
Source: Fulbright & Jaworski
ManpowerGroup | Tuesday, March 13, 2012                                                   8
Everything You Ever Wanted to Know About Employment Law




          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%

ManpowerGroup | Tuesday, March 13, 2012                                                   9
Everything You Ever Wanted to Know About Employment Law




          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
ManpowerGroup | Tuesday, March 13, 2012                                                  10
Everything You Ever Wanted to Know About Employment Law




                                          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”

ManpowerGroup | Tuesday, March 13, 2012                                                               11
Everything You Ever Wanted to Know About Employment Law




                                          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”
Source: EEOC
ManpowerGroup | Tuesday, March 13, 2012                                                               12
Everything You Ever Wanted to Know About Employment Law




 What’s the #1 most common
 discrimination claim?


A. Age

B. National Origin

C. Race

D. Retaliation

E. Sex

ManpowerGroup | Tuesday, March 13, 2012                                                  13
Everything You Ever Wanted to Know About Employment Law




                                          Retaliation Is #1

                                     1. Retaliation (36,258)

                                     2. Race (35,890)

                                     3. Sex (29,029)

                                     4. Disability (25,165)

                                     5. Age (23,264)
                                               Source: EEOC
ManpowerGroup | Tuesday, March 13, 2012                                                                      14
Everything You Ever Wanted to Know About Employment Law




 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


ManpowerGroup | Tuesday, March 13, 2012                                                                15
Everything You Ever Wanted to Know About Employment Law




 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


ManpowerGroup | Tuesday, March 13, 2012                                                                16
Everything You Ever Wanted to Know About Employment Law




    How Much Will YOU Pay?



                                                                       $100K -                           $1M+:
        $0 - 50K:                         $51-100K:                                                 Big pattern
       1 plaintiff +                      1 plaintiff +                 $1M:                            +/or
       no horrible                          horrible                Pattern +/or                   reeaaallllllllly
          facts                               facts                   horrible                        horrible
         (32%)                               (28%)                      facts                          facts
                                                                       (39%)                           (1%)




ManpowerGroup | Tuesday, March 13, 2012                                                                                        17
                                              Sources: EEOC, Jury Verdict Research
Everything You Ever Wanted to Know About Employment Law




          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

ManpowerGroup | Tuesday, March 13, 2012                                                                                      18
                                          Sources: Fulbright, Seyfarth Shaw
Everything You Ever Wanted to Know About Employment Law




     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?)
ManpowerGroup | Tuesday, March 13, 2012                                                  19
Everything You Ever Wanted to Know About Employment Law




          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
ManpowerGroup | Tuesday, March 13, 2012                                                  20
Everything You Ever Wanted to Know About Employment Law




Smartest
                                          technology
HR Person
in the Universe
COMPETITION
                                          technology
                                          technology
ManpowerGroup | Tuesday, March 13, 2012                                                      21
Everything You Ever Wanted to Know About Employment Law




     True or False?
                                              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.

ManpowerGroup | Tuesday, March 13, 2012                                                  22
Everything You Ever Wanted to Know About Employment Law




          Same old laws …
         Non-discrimination
         Adverse impact
         FCRA
         GINA
         NLRA
         Negligent Hiring
         Off-duty Conduct
         Arrest & Conviction Record
ManpowerGroup | Tuesday, March 13, 2012                                                  23
Everything You Ever Wanted to Know About Employment Law




          Same old test …


                                      job-       job-
                                    related    related

                                            job-
                                          related
ManpowerGroup | Tuesday, March 13, 2012                                                            24
Everything You Ever Wanted to Know About Employment Law




                                    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
ManpowerGroup | Tuesday, March 13, 2012                                                                                                25
                                   Sources: Cisco, Pew Research Center, McCann WorldGroup, Nielsen, DLA Piper
Everything You Ever Wanted to Know About Employment Law




          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
ManpowerGroup | Tuesday, March 13, 2012                                                  26
Everything You Ever Wanted to Know About Employment Law




          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
ManpowerGroup | Tuesday, March 13, 2012                                                                  27
                                          Source: Cisco
Everything You Ever Wanted to Know About Employment Law




                                    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
ManpowerGroup | Tuesday, March 13, 2012                                                                                             28
                                          Sources: SHRM, Mindflash, Clearswift, DLA Piper, Cisco
Everything You Ever Wanted to Know About Employment Law




                                  What Are Employers Really Using?

 95% LinkedIn

 58% Facebook

 42% Twitter

 29% Professional/Association Sites

 3% MySpace

 1% Foursquare

 1% Second Life

 6% Other

ManpowerGroup | Tuesday, March 13, 2012                                                                  29
                                           Source: SHRM
Everything You Ever Wanted to Know About Employment Law




                                 What Are Employers Really Finding?



 35%: Bad Stuff                                     18%: Good Stuff

•   53% inappropriate photos/info                   •   50% good personality
•   44% drugs/alcohol                               •   39% strong qualifications
•   35% disparaging comments                        •   38% creative abilities
•   29% bad communication skills                    •   35% good communication skills
•   26% discriminatory comments                     •   19% valid references
•   24% lies about qualifications                   •   15% awards/accolades



               Tuesday, March 13, 2012
ManpowerGroup | Tuesday, March 13, 2012                                                                      30
                                          Source: Mindflash
Everything You Ever Wanted to Know About Employment Law




    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.”
ManpowerGroup | Tuesday, March 13, 2012                                                           31
Everything You Ever Wanted to Know About Employment Law




    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.”
ManpowerGroup | Tuesday, March 13, 2012                                                           32
Everything You Ever Wanted to Know About Employment Law




          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
ManpowerGroup | Tuesday, March 13, 2012                                                  33
Everything You Ever Wanted to Know About Employment Law




          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
ManpowerGroup | Tuesday, March 13, 2012                                                        34
Everything You Ever Wanted to Know About Employment Law




          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


ManpowerGroup | Tuesday, March 13, 2012                                                      35
Everything You Ever Wanted to Know About Employment Law

building the
perfect




                                                   social media
 ManpowerGroup | Tuesday, March 13, 2012                  policy                          36
Everything You Ever Wanted to Know About Employment Law




                         10 Essential Elements

             Tie to Vision + Handbook + Code

             Set Clear + Reasonable Expectations

             Define SM Brooooooooadly

             Protect Trade Secrets/Confidentiality

             Clarify Who Owns What

ManpowerGroup | Tuesday, March 13, 2012                                                  37
Everything You Ever Wanted to Know About Employment Law




                         10 Essential Elements

             No Disparagement/Harassment

             Respect Copyrights

             NLRA Disclaimer

             Duty To Report Violations

             “Up to and including discharge”

ManpowerGroup | Tuesday, March 13, 2012                                                  38
Everything You Ever Wanted to Know About Employment Law




                            SM Policy Starter Kit

             marktoth.com

             Sample Policy

             Other Fortune 500 Policies

             SM 101 Articles

             Latest From the NLRB

ManpowerGroup | Tuesday, March 13, 2012                                                   39
Everything You Ever Wanted to Know About Employment Law




Smartest
                                          medical
HR Person
in the Universe
COMPETITION
                                          medical
                                          medical
ManpowerGroup | Tuesday, March 13, 2012                                                     40
Everything You Ever Wanted to Know About Employment Law




    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

ManpowerGroup | Tuesday, March 13, 2012                                                                                        41
Everything You Ever Wanted to Know About Employment Law




    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




ManpowerGroup | Tuesday, March 13, 2012                                                   42
Everything You Ever Wanted to Know About Employment Law




   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
ManpowerGroup | Tuesday, March 13, 2012                                                                43
Everything You Ever Wanted to Know About Employment Law




   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
ManpowerGroup | Tuesday, March 13, 2012                                                                44
Everything You Ever Wanted to Know About Employment Law




     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


ManpowerGroup | Tuesday, March 13, 2012                                                      45
Everything You Ever Wanted to Know About Employment Law




     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


ManpowerGroup | Tuesday, March 13, 2012                                                      46
Everything You Ever Wanted to Know About Employment Law




     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

                                     F. All of the above except “E”
ManpowerGroup | Tuesday, March 13, 2012                                                                          47
Everything You Ever Wanted to Know About Employment Law




     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

                                     F. All of the above except “E”
ManpowerGroup | Tuesday, March 13, 2012                                                                          48
Everything You Ever Wanted to Know About Employment Law




       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?

ManpowerGroup | Tuesday, March 13, 2012                                                  49
Everything You Ever Wanted to Know About Employment Law




          Job Accommodation Network
                 jan.wvu.edu
                 800-526-7234




ManpowerGroup | Tuesday, March 13, 2012                                                  50
Everything You Ever Wanted to Know About Employment Law




  Today’s Format
          What’s New?
         Record # of Claims


         Final ADA Rules


         Leave Policy Scrutiny


         OFCCP 7% Proposal


         New Vet Disability and Diploma Guidelines

ManpowerGroup | Tuesday, March 13, 2012                                                   51
Everything You Ever Wanted to Know About Employment Law




  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

ManpowerGroup | Tuesday, March 13, 2012                                                   52
Everything You Ever Wanted to Know About Employment Law




  Today’s Format
          What’s Next?
         Don’t Be Inflexible


         “Presumed” Disabilities


         Interact, Interact, Interact


         Accommodate, Accommodate, Accommodate


ManpowerGroup | Tuesday, March 13, 2012                                                  53
Everything You Ever Wanted to Know About Employment Law




Smartest
HR Person
                                          WAGE &
in the Universe
COMPETITION
                                           HOUR

ManpowerGroup | Tuesday, March 13, 2012                                                    54
Everything You Ever Wanted to Know About Employment Law




                   What celebrity was
                   recently sued for a
                  plethora of wage and
                     hour violations?

ManpowerGroup | Tuesday, March 13, 2012                                                  55
Everything You Ever Wanted to Know About Employment Law




                                          LADY
                                          GAGA

ManpowerGroup | Tuesday, March 13, 2012                                                     56
Everything You Ever Wanted to Know About Employment Law




          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
ManpowerGroup | Tuesday, March 13, 2012                                                                                       57
                                          Sources: Department of Labor, Seyfarth Shaw
Everything You Ever Wanted to Know About Employment Law




          What's Next? Hot Spots

         IC Classifications

         OT Classifications (especially Administrative)

         Work @ Home

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


ManpowerGroup | Tuesday, March 13, 2012                                                   58
Everything You Ever Wanted to Know About Employment Law




          What's Next? Hot States
         California
         Illinois
         Massachusetts
         Minnesota
         New Jersey
         New York
         Pennsylvania
         Washington
ManpowerGroup | Tuesday, March 13, 2012                                                                          59
                                          Source: Seyfarth Shaw
Everything You Ever Wanted to Know About Employment Law




Smartest
                                          unions
HR Person
in the Universe
COMPETITION
                                          unions
                                          unions
ManpowerGroup | Tuesday, March 13, 2012                                                    60
Everything You Ever Wanted to Know About Employment Law




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


          A. True

          B. False




ManpowerGroup | Tuesday, March 13, 2012                                                  61
Everything You Ever Wanted to Know About Employment Law




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


          A. True

          B. False




ManpowerGroup | Tuesday, March 13, 2012                                                  62
Everything You Ever Wanted to Know About Employment Law




 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

ManpowerGroup | Tuesday, March 13, 2012                                                        63
Everything You Ever Wanted to Know About Employment Law




 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

ManpowerGroup | Tuesday, March 13, 2012                                                        64
Everything You Ever Wanted to Know About Employment Law




      What’s New?
     “Recess” Appointments

     "Ambush" Election Rules

     Bigger Than the Supremes?

     Union Rights Posting (Or Not)?

     Fun with Facebook
ManpowerGroup | Tuesday, March 13, 2012                                                  65
Everything You Ever Wanted to Know About Employment Law




                               Facebook Firings

          Don’t discipline for
                                          Be especially wary of
        comments about wages
                                            group comments
          or work conditions




       OK (maybe) to discipline           Review policy to make
       for comments unrelated              sure not overbroad
          to work conditions                  or out-of-date

ManpowerGroup | Tuesday, March 13, 2012                                                       66
Everything You Ever Wanted to Know About Employment Law




Smartest
HR Person
in the Universe
COMPETITION


                                          PICTURE
ManpowerGroup | Tuesday, March 13, 2012                                                     67
Everything You Ever Wanted to Know About Employment Law




     Your employees are thinking about
     leaving your company right now.


                                          A. True

                                          B. False


ManpowerGroup | Tuesday, March 13, 2012                                                   68
Everything You Ever Wanted to Know About Employment Law




     Your employees are thinking about
     leaving your company right now.


                                          A. True

                                          B. False


ManpowerGroup | Tuesday, March 13, 2012                                                   69
Everything You Ever Wanted to Know About Employment Law




                                          84%
                                          of employees intend to
                                          leave their employer in
                                                   2012
                                               Source: Right Management




                 Toledo HR Association
ManpowerGroup | Tuesday, March 13, 2012                                                        70
Everything You Ever Wanted to Know About Employment Law




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


ManpowerGroup | Tuesday, March 13, 2012                                                  71
Everything You Ever Wanted to Know About Employment Law




                    LOVE
ManpowerGroup | Tuesday, March 13, 2012                                                  72
Everything You Ever Wanted to Know About Employment Law




                    Official 2012 Stay Out Of Jail

                                   ACTION
                                    ITEMS
ManpowerGroup | Tuesday, March 13, 2012                                                  73
Everything You Ever Wanted to Know About Employment Law



                                   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
ManpowerGroup | Tuesday, March 13, 2012                                                                  74
Everything You Ever Wanted to Know About Employment Law




                                          marktoth.com

                           @manpowerblawg



ManpowerGroup | Tuesday, March 13, 2012                                                           75
Everything You Ever Wanted to Know About Employment Law




                       EMPLOYMENT LAW
             SING-ALONG

ManpowerGroup | Tuesday, March 13, 2012                                                  76
Everything You Ever Wanted to Know About Employment Law




                      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




ManpowerGroup | Tuesday, March 13, 2012                                                   77
Everything You Ever Wanted to Know About Employment Law




                   Enforcement action’s expanding
                         And so is the NLRA
                          And the ADAAA
                          Isn’t going away
                       Get to know them now
                             Don’t delay




ManpowerGroup | Tuesday, March 13, 2012                                                  78
Everything You Ever Wanted to Know About Employment Law




            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 | Tuesday, March 13, 2012                                                  79
Everything You Ever Wanted to Know About Employment Law




                  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




ManpowerGroup | Tuesday, March 13, 2012                                                  80
Everything You Ever Wanted to Know About Employment Law




         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




ManpowerGroup | Tuesday, March 13, 2012                                                  81
Everything You Ever Wanted to Know About Employment Law




            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 | Tuesday, March 13, 2012                                                  82
83
                                          Everything You Ever Wanted to Know About Employment Law




            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!




ManpowerGroup | Tuesday, March 13, 2012                                                  83
Everything You Ever Wanted to Know About Employment Law




            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 | Tuesday, March 13, 2012                                                  84
Everything You Ever Wanted to Know About Employment Law




                             THANK
                           YOU
ManpowerGroup | Tuesday, March 13, 2012                                                  85

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Everything You Ever Wanted to Know about Employment Law

  • 1. Everything You Ever Wanted to Know About Employment Law Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) Mark Toth Chief Legal Officer, ManpowerGroup North America Tuesday, March 13, 2012 ManpowerGroup | Tuesday, March 13, 2012 1
  • 2. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 2
  • 3. Everything You Ever Wanted to Know About Employment Law marktoth.com @manpowerblawg ManpowerGroup | Tuesday, March 13, 2012 3
  • 4. Everything You Ever Wanted to Know About Employment Law 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. ManpowerGroup | Tuesday, March 13, 2012 4
  • 5. Everything You Ever Wanted to Know About Employment Law Smartest HR Person in the Universe COMPETITION ManpowerGroup | Tuesday, March 13, 2012 5
  • 6. Everything You Ever Wanted to Know About Employment Law Smartest lawsuits HR Person in the Universe COMPETITION lawsuits lawsuits ManpowerGroup | Tuesday, March 13, 2012 6
  • 7. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 7
  • 8. Everything You Ever Wanted to Know About Employment Law 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 Source: Fulbright & Jaworski ManpowerGroup | Tuesday, March 13, 2012 8
  • 9. Everything You Ever Wanted to Know About Employment Law 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% ManpowerGroup | Tuesday, March 13, 2012 9
  • 10. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 10
  • 11. Everything You Ever Wanted to Know About Employment Law 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” ManpowerGroup | Tuesday, March 13, 2012 11
  • 12. Everything You Ever Wanted to Know About Employment Law 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” Source: EEOC ManpowerGroup | Tuesday, March 13, 2012 12
  • 13. Everything You Ever Wanted to Know About Employment Law What’s the #1 most common discrimination claim? A. Age B. National Origin C. Race D. Retaliation E. Sex ManpowerGroup | Tuesday, March 13, 2012 13
  • 14. Everything You Ever Wanted to Know About Employment Law Retaliation Is #1 1. Retaliation (36,258) 2. Race (35,890) 3. Sex (29,029) 4. Disability (25,165) 5. Age (23,264) Source: EEOC ManpowerGroup | Tuesday, March 13, 2012 14
  • 15. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 15
  • 16. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 16
  • 17. Everything You Ever Wanted to Know About Employment Law How Much Will YOU Pay? $100K - $1M+: $0 - 50K: $51-100K: Big pattern 1 plaintiff + 1 plaintiff + $1M: +/or no horrible horrible Pattern +/or reeaaallllllllly facts facts horrible horrible (32%) (28%) facts facts (39%) (1%) ManpowerGroup | Tuesday, March 13, 2012 17 Sources: EEOC, Jury Verdict Research
  • 18. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 18 Sources: Fulbright, Seyfarth Shaw
  • 19. Everything You Ever Wanted to Know About Employment Law 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?) ManpowerGroup | Tuesday, March 13, 2012 19
  • 20. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 20
  • 21. Everything You Ever Wanted to Know About Employment Law Smartest technology HR Person in the Universe COMPETITION technology technology ManpowerGroup | Tuesday, March 13, 2012 21
  • 22. Everything You Ever Wanted to Know About Employment Law True or False? 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. ManpowerGroup | Tuesday, March 13, 2012 22
  • 23. Everything You Ever Wanted to Know About Employment Law Same old laws … Non-discrimination Adverse impact FCRA GINA NLRA Negligent Hiring Off-duty Conduct Arrest & Conviction Record ManpowerGroup | Tuesday, March 13, 2012 23
  • 24. Everything You Ever Wanted to Know About Employment Law Same old test … job- job- related related job- related ManpowerGroup | Tuesday, March 13, 2012 24
  • 25. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 25 Sources: Cisco, Pew Research Center, McCann WorldGroup, Nielsen, DLA Piper
  • 26. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 26
  • 27. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 27 Source: Cisco
  • 28. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 28 Sources: SHRM, Mindflash, Clearswift, DLA Piper, Cisco
  • 29. Everything You Ever Wanted to Know About Employment Law What Are Employers Really Using? 95% LinkedIn 58% Facebook 42% Twitter 29% Professional/Association Sites 3% MySpace 1% Foursquare 1% Second Life 6% Other ManpowerGroup | Tuesday, March 13, 2012 29 Source: SHRM
  • 30. Everything You Ever Wanted to Know About Employment Law What Are Employers Really Finding? 35%: Bad Stuff 18%: Good Stuff • 53% inappropriate photos/info • 50% good personality • 44% drugs/alcohol • 39% strong qualifications • 35% disparaging comments • 38% creative abilities • 29% bad communication skills • 35% good communication skills • 26% discriminatory comments • 19% valid references • 24% lies about qualifications • 15% awards/accolades Tuesday, March 13, 2012 ManpowerGroup | Tuesday, March 13, 2012 30 Source: Mindflash
  • 31. Everything You Ever Wanted to Know About Employment Law 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.” ManpowerGroup | Tuesday, March 13, 2012 31
  • 32. Everything You Ever Wanted to Know About Employment Law 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.” ManpowerGroup | Tuesday, March 13, 2012 32
  • 33. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 33
  • 34. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 34
  • 35. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 35
  • 36. Everything You Ever Wanted to Know About Employment Law building the perfect social media ManpowerGroup | Tuesday, March 13, 2012 policy 36
  • 37. Everything You Ever Wanted to Know About Employment Law 10 Essential Elements Tie to Vision + Handbook + Code Set Clear + Reasonable Expectations Define SM Brooooooooadly Protect Trade Secrets/Confidentiality Clarify Who Owns What ManpowerGroup | Tuesday, March 13, 2012 37
  • 38. Everything You Ever Wanted to Know About Employment Law 10 Essential Elements No Disparagement/Harassment Respect Copyrights NLRA Disclaimer Duty To Report Violations “Up to and including discharge” ManpowerGroup | Tuesday, March 13, 2012 38
  • 39. Everything You Ever Wanted to Know About Employment Law SM Policy Starter Kit marktoth.com Sample Policy Other Fortune 500 Policies SM 101 Articles Latest From the NLRB ManpowerGroup | Tuesday, March 13, 2012 39
  • 40. Everything You Ever Wanted to Know About Employment Law Smartest medical HR Person in the Universe COMPETITION medical medical ManpowerGroup | Tuesday, March 13, 2012 40
  • 41. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 41
  • 42. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 42
  • 43. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 43
  • 44. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 44
  • 45. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 45
  • 46. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 46
  • 47. Everything You Ever Wanted to Know About Employment Law 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 F. All of the above except “E” ManpowerGroup | Tuesday, March 13, 2012 47
  • 48. Everything You Ever Wanted to Know About Employment Law 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 F. All of the above except “E” ManpowerGroup | Tuesday, March 13, 2012 48
  • 49. Everything You Ever Wanted to Know About Employment Law 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? ManpowerGroup | Tuesday, March 13, 2012 49
  • 50. Everything You Ever Wanted to Know About Employment Law Job Accommodation Network jan.wvu.edu 800-526-7234 ManpowerGroup | Tuesday, March 13, 2012 50
  • 51. Everything You Ever Wanted to Know About Employment Law Today’s Format What’s New? Record # of Claims Final ADA Rules Leave Policy Scrutiny OFCCP 7% Proposal New Vet Disability and Diploma Guidelines ManpowerGroup | Tuesday, March 13, 2012 51
  • 52. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 52
  • 53. Everything You Ever Wanted to Know About Employment Law Today’s Format What’s Next? Don’t Be Inflexible “Presumed” Disabilities Interact, Interact, Interact Accommodate, Accommodate, Accommodate ManpowerGroup | Tuesday, March 13, 2012 53
  • 54. Everything You Ever Wanted to Know About Employment Law Smartest HR Person WAGE & in the Universe COMPETITION HOUR ManpowerGroup | Tuesday, March 13, 2012 54
  • 55. Everything You Ever Wanted to Know About Employment Law What celebrity was recently sued for a plethora of wage and hour violations? ManpowerGroup | Tuesday, March 13, 2012 55
  • 56. Everything You Ever Wanted to Know About Employment Law LADY GAGA ManpowerGroup | Tuesday, March 13, 2012 56
  • 57. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 57 Sources: Department of Labor, Seyfarth Shaw
  • 58. Everything You Ever Wanted to Know About Employment Law What's Next? Hot Spots IC Classifications OT Classifications (especially Administrative) Work @ Home Pre-shift “Work” (Donning/Doffing, Logon/Logoff) ManpowerGroup | Tuesday, March 13, 2012 58
  • 59. Everything You Ever Wanted to Know About Employment Law What's Next? Hot States California Illinois Massachusetts Minnesota New Jersey New York Pennsylvania Washington ManpowerGroup | Tuesday, March 13, 2012 59 Source: Seyfarth Shaw
  • 60. Everything You Ever Wanted to Know About Employment Law Smartest unions HR Person in the Universe COMPETITION unions unions ManpowerGroup | Tuesday, March 13, 2012 60
  • 61. Everything You Ever Wanted to Know About Employment Law Today’s Format True or False: The NLRB only has jurisdiction over unionized companies. A. True B. False ManpowerGroup | Tuesday, March 13, 2012 61
  • 62. Everything You Ever Wanted to Know About Employment Law Today’s Format True or False: The NLRB only has jurisdiction over unionized companies. A. True B. False ManpowerGroup | Tuesday, March 13, 2012 62
  • 63. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 63
  • 64. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 64
  • 65. Everything You Ever Wanted to Know About Employment Law What’s New? “Recess” Appointments "Ambush" Election Rules Bigger Than the Supremes? Union Rights Posting (Or Not)? Fun with Facebook ManpowerGroup | Tuesday, March 13, 2012 65
  • 66. Everything You Ever Wanted to Know About Employment Law Facebook Firings Don’t discipline for Be especially wary of comments about wages group comments or work conditions OK (maybe) to discipline Review policy to make for comments unrelated sure not overbroad to work conditions or out-of-date ManpowerGroup | Tuesday, March 13, 2012 66
  • 67. Everything You Ever Wanted to Know About Employment Law Smartest HR Person in the Universe COMPETITION PICTURE ManpowerGroup | Tuesday, March 13, 2012 67
  • 68. Everything You Ever Wanted to Know About Employment Law Your employees are thinking about leaving your company right now. A. True B. False ManpowerGroup | Tuesday, March 13, 2012 68
  • 69. Everything You Ever Wanted to Know About Employment Law Your employees are thinking about leaving your company right now. A. True B. False ManpowerGroup | Tuesday, March 13, 2012 69
  • 70. Everything You Ever Wanted to Know About Employment Law 84% of employees intend to leave their employer in 2012 Source: Right Management Toledo HR Association ManpowerGroup | Tuesday, March 13, 2012 70
  • 71. Everything You Ever Wanted to Know About Employment Law If you had to boil all of HR and employment law down into ONE simple word, what would it be? ManpowerGroup | Tuesday, March 13, 2012 71
  • 72. Everything You Ever Wanted to Know About Employment Law LOVE ManpowerGroup | Tuesday, March 13, 2012 72
  • 73. Everything You Ever Wanted to Know About Employment Law Official 2012 Stay Out Of Jail ACTION ITEMS ManpowerGroup | Tuesday, March 13, 2012 73
  • 74. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 74
  • 75. Everything You Ever Wanted to Know About Employment Law marktoth.com @manpowerblawg ManpowerGroup | Tuesday, March 13, 2012 75
  • 76. Everything You Ever Wanted to Know About Employment Law EMPLOYMENT LAW SING-ALONG ManpowerGroup | Tuesday, March 13, 2012 76
  • 77. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 77
  • 78. Everything You Ever Wanted to Know About Employment Law Enforcement action’s expanding And so is the NLRA And the ADAAA Isn’t going away Get to know them now Don’t delay ManpowerGroup | Tuesday, March 13, 2012 78
  • 79. Everything You Ever Wanted to Know About Employment Law 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 | Tuesday, March 13, 2012 79
  • 80. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 80
  • 81. Everything You Ever Wanted to Know About Employment Law 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 ManpowerGroup | Tuesday, March 13, 2012 81
  • 82. Everything You Ever Wanted to Know About Employment Law 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 | Tuesday, March 13, 2012 82
  • 83. 83 Everything You Ever Wanted to Know About Employment Law 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! ManpowerGroup | Tuesday, March 13, 2012 83
  • 84. Everything You Ever Wanted to Know About Employment Law 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 | Tuesday, March 13, 2012 84
  • 85. Everything You Ever Wanted to Know About Employment Law THANK YOU ManpowerGroup | Tuesday, March 13, 2012 85

Notas del editor

  1. This will not be your typical lawyer blah blahblah presentation. This is a no-holds-barred, fight to the finish white knuckle death cage competition-o-rama. The first thing we’re going to divide this room into 2 teams who will compete for valuable prizes. Name ‘em.
  2. Because I’m a lawyer, I have to start w/some legalese. Here’s our 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.And please please please consult with your own Legal and/or HR departments before making any major changes.In other words, you can’t sue me, ManpowerGroup or anyone else based on anything you hear today. You have been warned.
  3. Unfortunately, that’s exactly what we see. [Cite recent examples.]
  4. Deep thought. Don’t just adopt SM policy found online. 1 size mos def doesn’t fit all.If overbroad, could run afoul of NLRB rules.
  5. Living breathing doc. Don’t let it die.
  6. Allegations included that the Plaintiff was required to be on call QUOTE “from the earliest waking hour, for being responsive to the slightest need throughout the day, and for addressing spontaneous, random matters in the middle of the night” as well as QUOTE “maintaining the availability of defendant's personal supplies, ensuring the availability of chosen outfits, ensuring the promptness of a towel following a shower and serving as a personal alarm clock to keep defendant on schedule.” So, who was that alleged offender?And please don’t treat your employees like that.
  7. And to make it worse, Harvard Business Review research suggests that a company’s stars are the first to be poached by competitors and are less likely to stay.