nebraska shrm conference
TRANSCRIPT
April 18, 2023
Everything You Ever Wanted to Know About
(But Didn’t Want to Pay a Lawyer to Ask)
Mark TothChief Legal Officer – North America
EMPLOYMENT LAW
ManpowerGroup | April 18, 2023 2
Today’sAGENDA
Smartest HR Person in the Universe Competition
All the Latest Developments
How to Get Sued Big Now
Employment Law Sing-a-long
Employment Law Tool Box
ManpowerGroup | April 18, 2023 3
marktoth.com@manpowerblawg
ManpowerGroup | April 18, 2023 5ManpowerGroup | April 18, 2023 5
Official Disclaimer
The presentation you are about to witness should not
be relied upon or construed as legal 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.
ManpowerGroup | April 18, 2023 6
SMARTEST HR PERSON IN THE UNIVERSE
COMPETITION
ManpowerGroup | April 18, 2023 7 7
LAWSUITSLAWSUITSLAWSUITS
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
ManpowerGroup | April 18, 2023 9ManpowerGroup | April 18, 2023 9
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 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%
ManpowerGroup | April 18, 2023 11ManpowerGroup | April 18, 2023 11
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 12ManpowerGroup | April 18, 2023 12
What hit record highs last year?
A. EEOC complaints
B. EEOC recoveries
C. EEOC class actions
D. EEOC love notes from employers
E. All of the above except “D”
ManpowerGroup | April 18, 2023 13ManpowerGroup | April 18, 2023 13
What hit record highs last year?
A. EEOC complaints
B. EEOC recoveries
C. EEOC class actions
D. EEOC love notes from employers
E. All of the above except “D”Source: EEOC
ManpowerGroup | April 18, 2023 14ManpowerGroup | April 18, 2023 14
What’s the #1 most common discrimination claim?
A. Age
B. National Origin
C. Race
D. Retaliation
E. Sex
ManpowerGroup | April 18, 2023 15ManpowerGroup | April 18, 2023 15
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 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
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
Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)
© 2011 ManpowerGroup 18
lawsuitslawsuitslawsuits
DEAL Or No?
ManpowerGroup | April 18, 2023 19ManpowerGroup | April 18, 2023 19
$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 2020
TECHNOLOGYTECHNOLOGYTECHNOLOGY
ManpowerGroup | April 18, 2023 21ManpowerGroup | April 18, 2023 21
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 22ManpowerGroup | April 18, 2023 22
Same old laws …
Non-discrimination
Adverse impact
FCRA
GINA
NLRA
Negligent Hiring
Off-duty Conduct
Arrest & Conviction Record
ManpowerGroup | April 18, 2023 23ManpowerGroup | April 18, 2023 23
Same old test …
job-related
job-related
job-related
ManpowerGroup | April 18, 2023 24ManpowerGroup | April 18, 2023 24
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 25ManpowerGroup | April 18, 2023 25
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 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
Source: Cisco
ManpowerGroup | April 18, 2023 27ManpowerGroup | April 18, 2023 27
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 28ManpowerGroup | April 18, 2023 28
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 29ManpowerGroup | April 18, 2023 29
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 30ManpowerGroup | April 18, 2023 30
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 31ManpowerGroup | April 18, 2023 31
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 32
building theperfect
social mediapolicy
ManpowerGroup | April 18, 2023 33ManpowerGroup | April 18, 2023 33
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 34ManpowerGroup | April 18, 2023 34
10 Essential Elements
No Disparagement/Harassment
Respect Copyrights
NLRA Disclaimer
Duty To Report Violations
“Up to and including discharge”
ManpowerGroup | April 18, 2023 35ManpowerGroup | April 18, 2023 35
SM Policy Starter Kit
Latest Legal Developments
Official NLRB Policy
Official Blawg Sample Policy
Other Fortune 500 Policies
SM 101 Articles
ManpowerGroup | April 18, 2023 3636
MEDICALMEDICALMEDICAL
ManpowerGroup | April 18, 2023 37ManpowerGroup | April 18, 2023 37
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 38ManpowerGroup | April 18, 2023 38
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 39ManpowerGroup | April 18, 2023 39
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 40ManpowerGroup | April 18, 2023 40
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 41ManpowerGroup | April 18, 2023 41
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 | April 18, 2023 42ManpowerGroup | April 18, 2023 42
JOBACCOMMODATION
NETWORKjan.wvu.edu
800-526-7234
ManpowerGroup | April 18, 2023 4343
WAGE & HOURWAGE & HOURWAGE & HOUR
ManpowerGroup | April 18, 2023 44ManpowerGroup | April 18, 2023 44
What celebrity was recently sued for a
plethora of wage and hour violations?
ManpowerGroup | April 18, 2023 45ManpowerGroup | April 18, 2023 45
LADY GAGA
ManpowerGroup | April 18, 2023 46ManpowerGroup | April 18, 2023 46
What's Next? Hot Spots
IC Classifications
OT Classifications (especially Administrative)
Work @ Home
Pre-shift “Work” (Donning/Doffing, Logon/Logoff)
ManpowerGroup | April 18, 2023 47ManpowerGroup | April 18, 2023 47
What's Next? Hot States
California
Illinois
Massachusetts
Minnesota
New Jersey
New York
Pennsylvania
Washington
Source: Seyfarth Shaw
ManpowerGroup | April 18, 2023 4848
UNIONSUNIONSUNIONS
ManpowerGroup | April 18, 2023 49ManpowerGroup | April 18, 2023 49
True or False: The NLRB only has jurisdiction over unionized companies.
A. True
B. False
ManpowerGroup | April 18, 2023 50ManpowerGroup | April 18, 2023 50
True or False: The NLRB only has jurisdiction over unionized companies.
A. True
B. False
ManpowerGroup | April 18, 2023 51ManpowerGroup | April 18, 2023 51
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
Employment Law Talk Show
ManpowerGroup | April 18, 2023 53ManpowerGroup | April 18, 2023 53
Sources: Pennington Biomedical Research Center, Kronos,
National Sleep Foundation, Families & Work Institute, Harris
Interactive, Dr. Paul Babiak
We are Stressssssed
• 80% of jobs are sedentary
• 62% say workload increased last 6 months
• 40% are sleep-deprived
• 33% are chronically overworked
• 32% increase in workweek in past 25 years
• 1 in 25 bosses is a certifiedpsychopath
Employment Law Talk Show
ManpowerGroup | April 18, 2023 54ManpowerGroup | April 18, 2023 54
More Stress = More Suits
The Bottom Line:
$200-$300B is lost each year due to stress-related absenteeism, burnout, decreased productivity, WC claims, turnover and insurance costs.
Source: American Institute of Stress
Employment Law Talk Show
ManpowerGroup | April 18, 2023 55
Employment Law Talk Show
ManpowerGroup | April 18, 2023 55ManpowerGroup | April 18, 2023 55Source: ManpowerGroup
ManpowerGroup | April 18, 2023 56ManpowerGroup | April 18, 2023 56
If you had to boil all of HR and employment law down into ONE simple word, what would it be?
LOVE
EMPLOYMENT LAW
SING-ALONG
Employment Law Talk Show
ManpowerGroup | April 18, 2023 59ManpowerGroup | April 18, 2023 59
Employment law can be easyIf 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
Employment Law Talk Show
ManpowerGroup | April 18, 2023 60ManpowerGroup | April 18, 2023 60
Don’t put things off ‘til tomorrowYes investigate right away
Don’t procrastinateAnd don’t retaliate
Or the more you will have to pay
Employment Law Talk Show
ManpowerGroup | April 18, 2023 61ManpowerGroup | April 18, 2023 61
Remember this songAnd you’ll never go wrongYes we wish you the best
On your journeysYou’ll stay out of court
And you won’t have to pay no attorneys
Employment Law Talk Show
ManpowerGroup | April 18, 2023 62ManpowerGroup | April 18, 2023 62
Technology may give you headachesThe feds they may knock on your door
But if you prepareBe consistent and fair
They won’t ever bug you no more
Employment Law Talk Show
ManpowerGroup | April 18, 2023 63ManpowerGroup | April 18, 2023 63
Remember this songAnd you’ll never go wrongYes we wish you the best
On your journeysYou’ll stay out of court
And you won’t have to pay no attorneys
Employment Law Talk Show
ManpowerGroup | April 18, 2023 64ManpowerGroup | April 18, 2023 64
If your brain’s too full to rememberAll the stuff we just covered above
There’s one simple wordThat sums up what you heard
Love, Love, Love, Love, Love, Love,LOOOOOOOOOOOOOOOOOOOVE!
Employment Law Talk Show
ManpowerGroup | April 18, 2023 65ManpowerGroup | April 18, 2023 65
Remember this songAnd you’ll never go wrongYes we wish you the best
On your journeysYou’ll stay out of court
And you won’t have to pay no attorneys
ManpowerGroup | April 18, 2023 66
marktoth.com@manpowerblawg
April 18, 2023
THANK YOU!