answers to the world's scariest employment law questions

Answers to the World’s Scariest Employment Law Questions

with

Mark TothChief Legal Officer

North America

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Answers to the World’s Scariest Employment Law Questions

with

Mark TothChief Legal Officer

North America

6

Official DisclaimerThe presentation you are about to witness should not be relied upon or construed as legal advice.

Failure to stay awake for the entirety of this presentation could result in long-lasting side-effects, including litigation headaches, recurring nightmares and/or severe gastrointestinal discomfort from having to spend too much time with lawyers.

Please consult with your own HR andLegal departments before making any major policy and/or procedure changes.

You have been warned.

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Tweet along: #mpwebinar

Follow Mark on Twitter: @manpowerblawg

Visit Mark’s Blawg:marktoth.com

Find us on Facebook: facebook.com/manpowerUS

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Today’s webinar is brought to you by

YOU

9

What Keeps YOU

Up at Night?

Scary ???s

Answered

Twickor

Tweet?

How to Get Sued BIG

Now

LeastZombie-ish

Contest

Reduce your terror level

10

Keep the monsters away

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What Keeps YOU Awake at Night?

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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%)TO

P 1

0 S

CA

RIE

ST

EM

PL

OY

ME

NT

LA

W I

SS

UE

S

Source: ManpowerGroup Employment Blawg

13Source: ManpowerGroup Employment Blawg

QuestionIs compliance with employment laws getting scarier or easier?

Really very extremely easier

Somewhat easier

No change

Somewhat scarier

Really very extremely scarier

0%

3%

16%

58%

23%

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QuestionAre you seeing an increase inemployment law claims?

Yes, substantial increase

Yes, moderate increase

No change

No, moderate decrease

No, substantial decrease

Source: ManpowerGroup Employment Blawg

3%

30%

63%

3%

1%

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What spooks youmost about theworld of work

right now?

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Everything.

17

de-spook-ify

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Medical MAYHEM

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TWICK OR TWEET?

@manpowerblawg

If you could make only one call, to whom

would it be?

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Scary

QHere’s what drives me bats: it seems that employees are getting more and more and more creative about why they can’t come to work. I’m seeing lots and lots and lots of ADA, FMLA and WC abuse. Is it just me or is that something everyone’s seeing? Eeeeeeeeeeeeeeeeeeeeeeeeek!

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“I woke up in a good mood and didn’t want to ruin it.”

“I was at the casino all weekend and still had moneyleft 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 thegrocery 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 M

OS

T C

RE

AT

IVE

EX

CU

SE

S

Source: CareerBuilder

22 Source: CareerBuilder

Un-scary

AEXCUSE-O-RAMA• 28% admit faking sickness

• 24% have caught fakers using social media

• 66% have asked to see a doctor’s note

• 49% have called an employee

• 15% have driven by an employee’s house

• 18% have fired for using a fake excuse

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TWICK OR TWEET?

JOB ACCOMMODATION

NETWORK

800.526.7234askjan.org

23

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Scary

QEbola is my biggest nightmare right now. What are employers supposed to be doingto ensure that we don’t all die?

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Un-scary

ADon’t panic. Prepare.

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Scary

QThe FMLA continues to make me SCREAM more than any other law. I’m confused. Employees are confused. The lawyers I call are confused. Could you please help simplify it?

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Defeat FMLA-o-phobia

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Scary

QI 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?

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Un-scary

AFMLA NOTICE• Don’t staple things to

employee’s foreheads.

• Get signature in person or get confirmation receipt.

• If the employee claims she/he didn’t get it, be reeeeeally careful about firing.

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Scary

QReality is what freaks me out. I like how you include real-life examples in your webinars to help us see what employers are REALLY facing right now (especially under the ADA). Will you do that in this webinar, too?

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YOU Be the Judge

Who wins?A. EmployeeB. Employer

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YOU Be the Judge

Who wins?A. EmployeeB. Employer

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TEXT-O-RAMA

Who wins?

414.761.0128Your first name

+ answer

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34

THE

INTERACTIVEDANCE

Discuss Discuss

Discuss Discuss

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TEXT-O-RAMA

The employee wins.

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Scary

QAn employee sustained a serious injury at work, which resulted in a disability for which he’s requesting accommodations. He’s also demanding intermittent leave under the FMLA. He also alleges that we unlawfully released personal health information about him in violation of HIPAA.

Here’s my question: How on earth can an employer apply the ADA, FMLA, HIPAA and WC (and let’s throw in GINA for good measure) separately and simultaneously? HELP!!!!!!!

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Sleep better: Open the Tool Box

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Scary

QI’m afraid that our do-more-and-more-and-more-with-less-and-less-and-less society is driving more and more and more employees (especially younger ones) to use supposed performance-boosting drugs like Adderall to get ahead at work. How do drug-testing rules apply to something like that?

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Drug Testing Made Un-scary

Medical Review Officer

Objective,

not subjective

Avoid prescription

bans

Reasonable suspicion

Confidential

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Drugs @ Work Made Un-scary

UI? No (other than legally prescribed meds)

Prescribed meds? Probably (unless direct threat)

Recovering? Safe Harbor (unless “currently engaging”)

“Currently engaging”? No

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FLSA Frights

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Scary

QLet’s say I only have time and energy to freak out about one thing in the employment law universe. What should it be?

43

Poll

QWhich of the following legal risk areas should be your top priority right now?

A. Overtime

B. Pre/post-shift work

C. Meal/rest periods

D. Doing business in California

E. All of the above

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Poll

QWhich of the following legal risk areas should be your top priority right now?

A. Overtime

B. Pre/post-shift work

C. Meal/rest periods

D. Doing business in California

E. All of the above

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Know the Law

Train managers & employees on time-keeping

Complaint system: investigate promptly

Audit classifications and records

Address any discrepancies promptly & carefully

FLSA Fixes

46

Don’t Be Afraid of the EEOC

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The EEOC’s brand-new Pregnancy Discrimination Guidance scares me. I’ve heard different opinions about it. I heard it’s not really law. Can we ignore it?

Scary

Q

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GUIDANCE HIGHLIGHTS• Not law but …

• Past, current & future pregnancies

• Offer light duty if available

• Don’t require leave

• May have to accommodate

• No adverse action for abortion, lactation or in vitro fertilization

Un-scary

A

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Scary

QI 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?

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UNWELL WELLNESS PLANS• Make it mandatory, not optional

• Fire those who don’t participate

• Decline coverage to those who don’t complete tests/assessments

• Require disability disclosures

Un-scary

A

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Discrimination Disasters

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YOU Be the Judge

Who wins?A. EmployeeB. Employer

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YOU Be the Judge

Who wins?A. EmployeeB. Employer

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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)

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Scary

QHere’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?

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YOU Be the Judge

Who wins?A. EmployeeB. Employer

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YOU Be the Judge

Who wins?A. EmployeeB. Employer

58

Termination Terror

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Everyone in my company is terrified of terminations. I’ve been in HR for about 87 years but haven’t seen a termination checklist I really like. Do you have one you can provide? For free? Please?

Scary

Q

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Tons of Termination Tools & Tips

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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?

Termination TestNotice

Rule

Investigation

Proof

Consistency

Penalty

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Social Media Spookiness

63

Scary

QThe cyberspace workplace terrifies me. What are the rules on disciplining employees for what they tweet, blog or post online?

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Un-scary

ASOCIAL 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.

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YOU Be the Judge

Who wins?A. EmployeeB. Employer

66

YOU Be the Judge

Who wins?A. EmployeeB. Employer

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SM Starter Kit

68

Lightning Round

69

Scary

QHere’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?

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Un-scary

AHALLOWEEN TRICKS• Chill: almost no one ever sues

over a Halloween party.

• Some don’t allow costumes, citing a professional dress code.

• Some allow costumes, citing a professional dress code.

• Whatever you do, don’t mandate attendance/participation.

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OK, so what’s YOUR nightmare, Mr. Webinar Blawg Guy? What ONE thing have you seen employers do over and over in your career that you wish they would stop?

Scary

Q

72

Un-scary

AFollow your own dang procedures.

73

Scary

QThe 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?

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Un-scary

AWHAT’S UP WITH THE SUPREMES?

1. Religious accommodations

2. Pregnancy accommodations

3. Security screening pay

4. Mandatory EEOC conciliation

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Non-competes drive me absolutely bats. Our CEO wants to make everyone from our highest-ranking SVP down to our custodial staff sign nationwide 2-year non-competes and then sue each and every person that violates them. At the same time, he wants us to hire lots of our competitors’ employees whether or not they have non-competes. What should I tell him? (Feel free to include swear words.)

Scary

Q

76

Un-scary

ANON-COMPETE NON-NEGOTIABLES

• Be reasonable, man.

• States vary but most really, very sincerely hate NCs.

• General rule: reasonable time and location restraint tied to legit business reasons AND must be consistently enforced.

TWICK OR TWEET

@manpowerblawg

If you had to boil all of employment law down to one word, what would it be?

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I’m a bottom-line kind of person. What things are most likely to result in BIG verdicts against my company right now?

Scary

Q

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How To Get Sued BIG Now

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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

Get Sued BIG Now

LOVE

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How NOT To Get Sued Big Now

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visit marktoth.com

84

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85

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FabulousEmployment Law

LIBRARY

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