with

Mark TothChief Legal Officer

North America

EMPLOYMENT LAW MADE UNSCARY

22

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.

33

Follow me on Twitter: @manpowerblawg

Visit my Blawg:marktoth.com

Sign up for my free alerts: at your seats

44

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

55

Keep the monsters away

66

Open 24 / 7 / 365.25World’s Most

FabulousEmployment Law

LIBRARY

77

What Keeps YOU Awake at Night?

88

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

14

What percentage of employeeswould fire their bosses right now?

A. 36%

B. 56%

C. 76%

D. 96%

15

What percentage of employeeswould fire their bosses right now?

A. 36%

B. 56%

C. 76%

D. 96%

Source: Monster.com

16

What percentage of your employeesare thinking about leaving your company right now?

A. 26%

B. 46%

C. 66%

D. 86%

17

What percentage of your employeesare thinking about leaving your company right now?

A. 26%

B. 46%

C. 66%

D. 86%

Source: Right Management

18

$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

19

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

21

Fun with LAWSUITS

22

Ignore the law

Ignore your policies

Investigate + document poorly

Discipline inconsistently

Lie

Get Plaintiffs’ Lawyers to LOVE You

23

DEALor no?

24

WHOsaid it?

25

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

26

Avoid the WAGE & HOUR abyss

27

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

32

NLRB Nervousness

33

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

35

What recent NLRB development has

employers freaking out?

36

“Ambush” Election Rules

37

Every Social Media Case On 1 Slide

“Protected concerted activity”

Union or non-union

> 1

Wages / work conditions

Same in cyberspace

38

Get SOCIAL MEDIA now

39

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.

40

True or False?

Absolutely False.

41

Same Old Test

job-related

job-related

job-related

42

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

43

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

44

What percentage of men have viewed porn at work?

A. 0

B. 2

C. 17

D. 25

E. 118

45

What percentage of men have viewed porn at work?

A. 0

B. 2

C. 17

D. 25

E. 118

Source: Harris Interactive

46

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

47

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

48

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.”

49

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.”

50

YOU be the judgeWho wins?

A. Employer

B. Employee

C. Neither

51

Who wins?

A. Employer

B. Employee

C. Neither

YOU be the judge

52

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

53

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

54

Social Media Starter Kit

55

ADA, FMLA, HIPAA, OSHA … YIKES!

56

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”

57

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”

58

What’s the #1 most headache-inducinglaw for employers right now?

59

FMLA

60

“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.”

20

14

’s M

OS

T C

RE

AT

IVE

EX

CU

SE

S

Source: CareerBuilder

61

FMLA in Plain English

62

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

63

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

64

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?

65

No (for 20 million reasons)

66

ADA How NOT To

Have an inflexible

leave policy

Make snap judgments

Don’t interact

Don’t accommodate

Put dumb stuff in writing

67

THE

INTERACTIVEDANCE

Discuss Discuss

Discuss Discuss

68

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

69

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

70

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?

71

JOBACCOMMODATION

NETWORKjan.wvu.edu

800-526-7234

What is the #1 most common claim filed with

the EEOC right now?

RETALIATION is #1

74

TERMINATION TROUBLES

YOU Be the Judge

Who wins?A. EmployeeB. Employer

YOU Be the Judge

Who wins?A. EmployeeB. Employer

77

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

78

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

81

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

82

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?

83

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

84

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88

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!