everything you ever wanted to know about employment law
TRANSCRIPT
April 18, 2023
Everything You Ever Wanted to Know
About
Employment Law(But Didn’t Want to Pay a Lawyer to Ask)Mark Toth
Chief Legal Officer – North America
ManpowerGroup | April 18, 2023 2
Today’sAGENDA
Smartest HR Person in the Universe Competition
All the Latest Developments
Stay Out of Jail To Do List
Employment Law Sing-a-long
Tool Box: $797.8 Billion in Tools & Tips
ManpowerGroup | April 18, 2023 3
marktoth.com@manpowerblawg
ManpowerGroup | April 18, 2023 4
Official DisclaimerThe presentation you are about to witness should not
be relied upon or construed as legal and/or medical advice.
Failure to stay awake for the remainder of this presentation could result in potentially long-lasting side-effects, including severe disengagement, plummeting productivity, increased litigation and/or severe gastrointestinal discomfort from having to do all the work in your company because everyone else leaves.
Please consult with your own HR and/or Legal departments before making any major policy and/or procedure changes.
You have been warned.
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SMARTEST HR PERSON IN THE UNIVERSE
COMPETITION
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LAWSUITSLAWSUITSLAWSUITS
ManpowerGroup | April 18, 2023 7ManpowerGroup | April 18, 2023 7
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 | April 18, 2023 8ManpowerGroup | April 18, 2023 8
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 | April 18, 2023 9ManpowerGroup | April 18, 2023 9
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 | April 18, 2023 10ManpowerGroup | April 18, 2023 10
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 | April 18, 2023 11ManpowerGroup | April 18, 2023 11
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 | April 18, 2023 12ManpowerGroup | April 18, 2023 12
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 | April 18, 2023 13ManpowerGroup | April 18, 2023 13
What’s the #1 most common discrimination claim?
A. Age
B. National Origin
C. Race
D. Retaliation
E. Sex
ManpowerGroup | April 18, 2023 14ManpowerGroup | April 18, 2023 14
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 | April 18, 2023 15ManpowerGroup | April 18, 2023 15
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 | April 18, 2023 16ManpowerGroup | April 18, 2023 16
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 | April 18, 2023 17ManpowerGroup | April 18, 2023 17
$0 - 50K: 1 plaintiff +no horrible
facts(32%)
$51-100K: 1 plaintiff +
horrible facts(28%)
$100K - $1M:
Pattern +/or horrible
facts(39%)
$1M+: Big pattern
+/orreeaaallllllllly horrible
facts(1%)
How Much Will YOU Pay?
Sources: EEOC, Jury Verdict Research
ManpowerGroup | April 18, 2023 18ManpowerGroup | April 18, 2023 18
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 | April 18, 2023 19ManpowerGroup | April 18, 2023 19
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 | April 18, 2023 20ManpowerGroup | April 18, 2023 20
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
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TECHNOLOGYTECHNOLOGYTECHNOLOGY
ManpowerGroup | April 18, 2023 22ManpowerGroup | April 18, 2023 22
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 | April 18, 2023 23ManpowerGroup | April 18, 2023 23
Same old laws …
Non-discrimination
Adverse impact
FCRA
GINA
NLRA
Negligent Hiring
Off-duty Conduct
Arrest & Conviction Record
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Same old test …
job-related
job-related
job-related
ManpowerGroup | April 18, 2023 25ManpowerGroup | April 18, 2023 25
Latest Stats: Employees
62% “couldn’t live without the Internet”
53% would rather lose nose than Facebook
48% 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
Sources: Cisco, Pew Research Center, McCann WorldGroup, Nielsen, DLA Piper
ManpowerGroup | April 18, 2023 26ManpowerGroup | April 18, 2023 26
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 | April 18, 2023 27ManpowerGroup | April 18, 2023 27
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
Source: Cisco
ManpowerGroup | April 18, 2023 28ManpowerGroup | April 18, 2023 28
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
Sources: SHRM, Clearswift, DLA Piper, Cisco
ManpowerGroup | April 18, 2023 29ManpowerGroup | April 18, 2023 29
What Are Employers Really Using?
95% LinkedIn
58% Facebook
42% Twitter
29% Professional/Association Sites
3% MySpace
1% Foursquare
1% Second Life
6% Other
Source: SHRM
ManpowerGroup | April 18, 2023 30ManpowerGroup | April 18, 2023 30
What Are Employers Really Finding?
35%: Bad Stuff
• 53% inappropriate photos/info• 44% drugs/alcohol• 35% disparaging comments• 29% bad communication skills• 26% discriminatory comments• 24% lies about qualifications
18%: Good Stuff
• 50% good personality• 39% strong qualifications• 38% creative abilities• 35% good communication skills• 19% valid references• 15% awards/accolades
Source: Mindflash
ManpowerGroup | April 18, 2023 31ManpowerGroup | April 18, 2023 31
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 | April 18, 2023 32ManpowerGroup | April 18, 2023 32
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 | April 18, 2023 33ManpowerGroup | April 18, 2023 33
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 | April 18, 2023 34ManpowerGroup | April 18, 2023 34
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 | April 18, 2023 35ManpowerGroup | April 18, 2023 35
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 | April 18, 2023 36
building theperfect
social mediapolicy
ManpowerGroup | April 18, 2023 37ManpowerGroup | April 18, 2023 37
10 Essential Elements
Tie to Vision + Handbook + Code
Set Clear + Reasonable Expectations
Define SM Brooooooooadly
Protect Trade Secrets/Confidentiality
Clarify Who Owns What
ManpowerGroup | April 18, 2023 38ManpowerGroup | April 18, 2023 38
10 Essential Elements
No Disparagement/Harassment
Respect Copyrights
NLRA Disclaimer
Duty To Report Violations
“Up to and including discharge”
ManpowerGroup | April 18, 2023 39ManpowerGroup | April 18, 2023 39
SM Policy Starter Kit
Sample Policy
Other Fortune 500 Policies
SM 101 Articles
Latest From the NLRB
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MEDICALMEDICALMEDICAL
ManpowerGroup | April 18, 2023 41ManpowerGroup | April 18, 2023 41
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
1 in 25 bosses is a certified psychopath
Sources: Business Week, Gallup, American Psychological Association, Business Week, Families and Work Institute, Centers for Disease Control and Prevention, The Journal of Science, Wake Forest University, National Safety Council
ManpowerGroup | April 18, 2023 42ManpowerGroup | April 18, 2023 42
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 | April 18, 2023 43ManpowerGroup | April 18, 2023 43
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 | April 18, 2023 44ManpowerGroup | April 18, 2023 44
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 | April 18, 2023 45ManpowerGroup | April 18, 2023 45
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 | April 18, 2023 46ManpowerGroup | April 18, 2023 46
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 | April 18, 2023 47ManpowerGroup | April 18, 2023 47
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 | April 18, 2023 48ManpowerGroup | April 18, 2023 48
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 | April 18, 2023 49ManpowerGroup | April 18, 2023 49
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?
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JOBACCOMMODATION NETWORKjan.wvu.edu800-526-7234
ManpowerGroup | April 18, 2023 51ManpowerGroup | April 18, 2023 51
Today’s FormatWhat’s New?
Record # of Claims
Final ADA Rules
Leave Policy Scrutiny
OFCCP 7% Proposal
New Vet Disability and Diploma Guidelines
ManpowerGroup | April 18, 2023 52ManpowerGroup | April 18, 2023 52
Today’s FormatBig 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 | April 18, 2023 53ManpowerGroup | April 18, 2023 53
Today’s FormatWhat’s Next?
Don’t Be Inflexible
“Presumed” Disabilities
Interact, Interact, Interact
Accommodate, Accommodate, Accommodate
ManpowerGroup | April 18, 2023 5454
WAGE & HOURWAGE & HOURWAGE & HOUR
ManpowerGroup | April 18, 2023 55ManpowerGroup | April 18, 2023 55
What celebrity was recently sued for a plethora of wage and hour violations?
ManpowerGroup | April 18, 2023 56ManpowerGroup | April 18, 2023 56
LADY GAGA
ManpowerGroup | April 18, 2023 57ManpowerGroup | April 18, 2023 57
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
Sources: Department of Labor, Seyfarth Shaw
ManpowerGroup | April 18, 2023 58ManpowerGroup | April 18, 2023 58
What's Next? Hot Spots
IC Classifications
OT Classifications (especially Administrative)
Work @ Home
Pre-shift “Work” (Donning/Doffing, Logon/Logoff)
ManpowerGroup | April 18, 2023 59ManpowerGroup | April 18, 2023 59
What's Next? Hot States
California
Illinois
Massachusetts
Minnesota
New Jersey
New York
Pennsylvania
Washington
Source: Seyfarth Shaw
ManpowerGroup | April 18, 2023 6060
UNIONSUNIONSUNIONS
ManpowerGroup | April 18, 2023 61ManpowerGroup | April 18, 2023 61
True or False: The NLRB only has jurisdiction over unionized companies.
A. True
B. False
ManpowerGroup | April 18, 2023 62ManpowerGroup | April 18, 2023 62
True or False: The NLRB only has jurisdiction over unionized companies.
A. True
B. False
ManpowerGroup | April 18, 2023 63ManpowerGroup | April 18, 2023 63
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 | April 18, 2023 64ManpowerGroup | April 18, 2023 64
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 | April 18, 2023 65ManpowerGroup | April 18, 2023 65
What’s New?
"Ambush" Election Rules
Bigger Than the Supremes?
Union Rights Posting (Or Not)?
Fun with Facebook
ManpowerGroup | April 18, 2023 66ManpowerGroup | April 18, 2023 66
Facebook Firings
Don’t discipline for comments about wages
or work conditions
Be especially wary of group comments
OK (maybe) to discipline for comments unrelated
to work conditions
Review policy to make sure not overbroad
or out-of-date
BIGPICTURE
ManpowerGroup | April 18, 2023 68ManpowerGroup | April 18, 2023 68
What % of employees are engaged?
A. -9%
B. 29%
C. 49%
D. 69%
E. 89%
ManpowerGroup | April 18, 2023 69ManpowerGroup | April 18, 2023 69
What % of employees are engaged?
A. -9%
B. 29%
C. 49%
D. 69%
E. 89%
Source: Gallup
ManpowerGroup | April 18, 2023 70ManpowerGroup | April 18, 2023 70
If you had to boil all of HR and employment law down into ONE simple word, what would it be?
LOVE
ManpowerGroup | April 18, 2023 72
Official 2012 Stay Out Of Jail
ACTION ITEMS
ManpowerGroup | April 18, 2023 73ManpowerGroup | April 18, 2023 73
2012 ACTION ITEMS
► KNOW THE LAW• Known violations• Systemic issues• Wage & hour (especially pre-/post-shift, donning/doffing, work @
home)• Medical leave (especially inflexible policies)• Technology (policy, training, consistent enforcement)► FOCUS ON KEY PRIORITIES
► INVESTIGATE & DOCUMENT ALL CLAIMS
► BEWARE RETALIATION
► USE THE TOOL BOX
ManpowerGroup | April 18, 2023 74
marktoth.com@manpowerblawg
EMPLOYMENT LAW
SING-ALONG
ManpowerGroup | April 18, 2023 76ManpowerGroup | April 18, 2023 76
Employment law can be easyIf you listen you surely won’t failWe wrote you this songSo please sing alongIf you don’tYou could end up in jail
ManpowerGroup | April 18, 2023 77ManpowerGroup | April 18, 2023 77
Enforcement action’s expandingAnd so is the NLRAAnd the ADAAAIsn’t going awayGet to know them nowDon’t delay
ManpowerGroup | April 18, 2023 78ManpowerGroup | April 18, 2023 78
Remember this songAnd you’ll never go wrongYes we wish you the bestOn your journeysYou’ll stay out of courtAnd you won’t have to pay no attorneys
ManpowerGroup | April 18, 2023 79ManpowerGroup | April 18, 2023 79
Don’t put things off ‘til tomorrowYes investigate right awayDon’t procrastinateAnd don’t retaliateOr the more you will have to pay
ManpowerGroup | April 18, 2023 80ManpowerGroup | April 18, 2023 80
Technology may give you headachesThe feds they may knock on your doorBut if you prepareBe consistent and fairThey won’t ever bug you no more
ManpowerGroup | April 18, 2023 81ManpowerGroup | April 18, 2023 81
Remember this songAnd you’ll never go wrongYes we wish you the bestOn your journeysYou’ll stay out of courtAnd you won’t have to pay no attorneys
ManpowerGroup | April 18, 2023 82ManpowerGroup | April 18, 2023 82
If your brain’s too full to rememberAll the stuff we just covered above There’s one simple wordThat sums up what you heardLove, Love, Love, Love, Love, Love, LOVE!
82
ManpowerGroup | April 18, 2023 83ManpowerGroup | April 18, 2023 83
Remember this songAnd you’ll never go wrongYes we wish you the bestOn your journeysYou’ll stay out of courtAnd you won’t have to pay no attorneys
ManpowerGroup | April 18, 2023 84
marktoth.com@manpowerblawg
April 18, 2023
THANK YOU!