employment law made unscary
TRANSCRIPT
with
Mark TothChief Legal Officer
North America
EMPLOYMENT LAW MADE UNSCARY
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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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Visit my Blawg:marktoth.com
Sign up for my free alerts: at your seats
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What Keeps YOU
Up at Night?
SmartestHR Person
in the Universe Contest
Law Made Unscary
Stay Out of Jail To-do
List
FREEStuff
Reduce your terror level
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Keep the monsters away
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Open 24 / 7 / 365.25World’s Most
FabulousEmployment Law
LIBRARY
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What Keeps YOU Awake at Night?
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1. MEDICAL (22%)
2. TERMINATIONS (17%)
3. WAGE & HOUR (14%)
4. LITIGATION (12%)
5. HARASSMENT (10%)
6. INVESTIGATIONS (8%)
7. HIRING (7%)
8. UNIONS (4%)
9. IMMIGRATION (3%)
10. TECHNOLOGY (2%)TO
P 1
0 S
CA
RIE
ST
EM
PL
OY
ME
NT
LA
W I
SS
UE
S
Source: ManpowerGroup Employment Blawg
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What spooks youmost about theworld of work
In 2014?
1010
Everything.
1111
de-spook-ify
Smartest HR Person in the Universe
CONTEST
The BIG picture
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What percentage of employeeswould fire their bosses right now?
A. 36%
B. 56%
C. 76%
D. 96%
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What percentage of employeeswould fire their bosses right now?
A. 36%
B. 56%
C. 76%
D. 96%
Source: Monster.com
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What percentage of your employeesare thinking about leaving your company right now?
A. 26%
B. 46%
C. 66%
D. 86%
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What percentage of your employeesare thinking about leaving your company right now?
A. 26%
B. 46%
C. 66%
D. 86%
Source: Right Management
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$300B
1/25 bosses = psycho
32% workweek increase
62% workload increase
33% chronically overworked
80% sedentary
Sources: Dr. Paul Babiak, Pennington Biomedical Research Center, Kronos, Families & Work Institute, Harris Interactive
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The BIG Picture
If you had to boil all of employment law down
to one word, what would it be?
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LOVE
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Fun with LAWSUITS
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Ignore the law
Ignore your policies
Investigate + document poorly
Discipline inconsistently
Lie
Get Plaintiffs’ Lawyers to LOVE You
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DEALor no?
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WHOsaid it?
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How Much Will YOU Pay?
$1M+Big pattern +/or reallllllly horrible facts
1%39
%28%
32%
Sources: EEOC, Jury Verdict Research
$1M+Big pattern +/or reeeeeeeally horrible facts
$100K-$1MPattern +/or really horrible facts
$51-$100K1 plaintiff + horrible facts
$0-$50K1 plaintiff + no horrible facts
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Avoid the WAGE & HOUR abyss
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What celebrityrecently learned the hard way that even divas have to follow wage and hour
laws?
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LADY GAGA
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WAGE & HOUR BIG 101. On-call time 6. Travel during work hours
2. Commute time 7. Changing in/out uniform
3. Wait time 8. Donning/doffing safety
gear
4. Meals < 30 9. Walking from changing
area
5. Travel non-work hours 10. Rest > 30
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WAGE & HOUR BIG 101. On-call time 6. Travel during work hours
2. Commute time 7. Changing in/out uniform
3. Wait time 8. Donning/doffing safety
gear
4. Meals < 30 9. Walking from changing
area
5. Travel non-work hours 10. Rest > 30
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Wage & Hour ChecklistKnow the Law
Simple, accurate and enforced
Managers and employees
Investigate promptly and thoroughly
Classifications, records and OT calculations
Issues immediately, focusing on high risk first (systemic, CA)
Your favorite employment law attorney
Time System
Tool Box
Train
Complaint System
Audit
Address
Consult
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NLRB Nervousness
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True or False?The NLRB only has jurisdiction over unionized companies.
A. True
B. False
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True or False?The NLRB only has jurisdiction over unionized companies.
A. True
B. False
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What recent NLRB development has
employers freaking out?
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“Ambush” Election Rules
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Every Social Media Case On 1 Slide
“Protected concerted activity”
Union or non-union
> 1
Wages / work conditions
Same in cyberspace
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Get SOCIAL MEDIA now
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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.
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True or False?
Absolutely False.
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Same Old Test
job-related
job-related
job-related
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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
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How do those about to enter the workforce rank the following in order of importance?
A. Social Activities, Romance, Music, Internet
B. Internet, Social Activities, Romance, Music
C. Music, Social Activities, Internet, Romance
D. Romance, Internet, Music, Social Activities
Source: Cisco
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What percentage of men have viewed porn at work?
A. 0
B. 2
C. 17
D. 25
E. 118
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What percentage of men have viewed porn at work?
A. 0
B. 2
C. 17
D. 25
E. 118
Source: Harris Interactive
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1 out of every ___ employees has forwarded a sex-related email at work?
A. 50
B. 10
C. 7
D. 3
E. 2
F. 1
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1 out of every ___ employees has forwarded a sex-related email at work?
A. 50
B. 10
C. 7
D. 3
E. 2
F. 1
Source: Harris Interactive
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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.”
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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.”
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YOU be the judgeWho wins?
A. Employer
B. Employee
C. Neither
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Who wins?
A. Employer
B. Employee
C. Neither
YOU be the judge
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SM Searches Be Consistent
Designate Searchers
Limit Scope
All candidates or certain categories/departmentsSame phase of interview process
One employee, small group or 3rd partyNot hiring manager
Restrict to certain approved sitesNo posing, lying, fraud or demanding passwordsNo age, race, religion or other protected infoJob-related, job-related, job-related
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SM Searches
Disclose
Document
Notify candidates that may use SMDisclose on applications and other docs
Consistent processNote legit biz job-related reasonsFollow doc retention policies
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Social Media Starter Kit
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ADA, FMLA, HIPAA, OSHA … YIKES!
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Which of the following increases yourchances of getting sued under GINA?
A. Asking about family medical history
B. Terminating an employee after a positive genetic test
C. Commingling medical and other info
D. Not adopting the EEOC’s safe harbor language
E. Discriminating against employees named Gina
F. All of the above except “E”
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Which of the following increases yourchances of getting sued under GINA?
A. Asking about family medical history
B. Terminating an employee after a positive genetic test
C. Commingling medical and other info
D. Not adopting the EEOC’s safe harbor language
E. Discriminating against employees named Gina
F. All of the above except “E”
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What’s the #1 most headache-inducinglaw for employers right now?
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FMLA
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“My dog had a nervous breakdown.”
“My toe was stuck in a faucet.”
“I was upset after watching The Hunger Games.”
“I was bitten by a bird.."
“I was sick from reading too much.”
“My sobriety tool kept my car from starting.”
“My hair turned orange.”
“I forgot you hired me.”
“I was suffering from a broken heart.”
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14
’s M
OS
T C
RE
AT
IVE
EX
CU
SE
S
Source: CareerBuilder
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FMLA in Plain English
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Which of the following has NOT been recognized as a disability under the ADA?
A. Fear of Getting Fired
B. Internet Use Disorder
C. Obesity
D. Pregnancy
E. Shy Bladder Syndrome
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Which of the following has NOT been recognized as a disability under the ADA?
A. Fear of Getting Fired
B. Internet Use Disorder
C. Obesity
D. Pregnancy
E. Shy Bladder Syndrome
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An employee has been out on medical leave for 11 months. Your neutral policy is to terminate all employees who have been on leave for 12 consecutive months. If he doesn’t return in a month, can you terminate?
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No (for 20 million reasons)
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ADA How NOT To
Have an inflexible
leave policy
Make snap judgments
Don’t interact
Don’t accommodate
Put dumb stuff in writing
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THE
INTERACTIVEDANCE
Discuss Discuss
Discuss Discuss
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Bob is normally a responsible, quiet employee.One day, however, he shows up two hours lateand acts “obscenely happy, wearing make-up,
avoiding eye contact, continuously rubbing his legsand touching everyone.” He also does a “crazy
monkey arm dance” and begins “twirling and talkinggibberish, flying around in the office in a hyper state.”
Then he leaves. What do you do?
A. Fire him for inappropriate workplace behaviorB. Do a crazy monkey arm dance in his honor until he returnsC. Drug test himD. Give him a chance to explain his behavior
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Bob is normally a responsible, quiet employee.One day, however, he shows up two hours lateand acts “obscenely happy, wearing make-up,
avoiding eye contact, continuously rubbing his legsand touching everyone.” He also does a “crazy
monkey arm dance” and begins “twirling and talkinggibberish, flying around in the office in a hyper state.”
Then he leaves. What do you do?
A. Fire him for inappropriate workplace behaviorB. Do a crazy monkey arm dance in his honor until he returnsC. Drug test himD. Give him a chance to explain his behavior
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An employee comes into your office at 4:59 on a Fridayand 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 IV 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?
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JOBACCOMMODATION
NETWORKjan.wvu.edu
800-526-7234
What is the #1 most common claim filed with
the EEOC right now?
RETALIATION is #1
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TERMINATION TROUBLES
YOU Be the Judge
Who wins?A. EmployeeB. Employer
YOU Be the Judge
Who wins?A. EmployeeB. Employer
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Investigation ChecklistStep One: PreparePlan the investigation strategy
Review relevant policies and handbook provisions
Evaluate pros and cons of investigation
Pick a competent and impartial investigator
Analyze potential risk factors
Review allegations and prep list of witnesses and questions
Establish a confidential investigation file
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Step Two: InvestigateInterview the complaining employee first
Now – don’t procrastinate
View the site of the alleged incident
Each relevant witness identified by the complaining party should be interviewed
Supervisors should be involved to provide context
Take the time to gather all potentially relevant evidence
Interview the accused
Gather potentially mitigating evidence and talk to witnesses named by accused
Analyze all the evidence objectively
Talk to an attorney about any potential legal issues
End the investigation with a written report and appropriate communication
Investigation Checklist
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TOP 11 Termination Troubles11. Not telling real reasons
10. Poorly planned termination meeting
9. Ignoring policies and contracts
8. Bad post-termination communication
7. Ignoring past practice
6. Emotion over facts
5. Not getting a release
4. Inadequate documentation
3. Non-job-related factors
2. Not treating with dignity and respect
1. NOT firing someone who should be fired
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Termination ReviewEmployee Handbook
Employment Agreement
Collective Bargaining Agreement
Personnel File
Performance Appraisals
Discipline Notices
Manager Notes
ALL other relevant docs
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Termination Test
Reasonable notice of consequences?Notice
Related to (a) efficient and safe operations and (b) performance company should reasonably expect?
Rule
Full, fair and timely?Investigation
Sufficient evidence that guilty as charged?Proof
Rule consistently applied to all?Consistency
Punishment fit the crime, considering (a) seriousness of offense and (b) service record?
Penalty
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Termination MeetingManager, HR, no 3rd parties (except union rep). Security? Outplacement?
Manager: decision. HR: all else. Final pay + notice (some states).
In person. Not manager’s office. No projectiles.
Mid-week #1, Friday #2, Monday worst. End of day #1, morning #2. Avoid holidays.
Compassionate.
Who?
What?
Where?
When?
How?
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75% have written policy
Most give lump sum
66% require waiver
68% provide outplacement
Latest Severance Stats
Source: Right Management
2.3 – 3.4 weeks for each year of service
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Prison-free Plan KNOW THE LAW
INVESTIGATE & DOCUMENT ALL CLAIMS
BEWARE RETALIATION
LOVE YOUR EMPLOYEES
FOCUS ON KEY PRIORITIES
Known violationsSystemic issuesWage & hourEEOC priorities
The Employment Law
LOVEWave
THANKYOU!