North Carolina SHRM Presentation

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


marktoth.com@manpowerblawg

ManpowerGroup | April 18, 2023 4ManpowerGroup | April 18, 2023 4

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.


SMARTEST HR PERSON IN THE UNIVERSE

COMPETITION

ManpowerGroup | April 18, 2023 6 6

LAWSUITSLAWSUITSLAWSUITS


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


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


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%


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


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”


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


What’s the #1 most common discrimination claim?

A. Age

B. National Origin

C. Race

D. Retaliation

E. Sex


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


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


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 17

lawsuitslawsuitslawsuits

DEAL Or No?


$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 +/or

reeaaallllllllly horrible

facts(1%)

How Much Will YOU Pay?

Sources: EEOC, Jury Verdict Research


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

Sources: Fulbright, Seyfarth Shaw, Jury Verdict Research


What’s Next? More More More

Even More Enforcement

• Systemic• Wage and Hour• Inflexible Leave• Pregnancy/Caregiver• Exec Misconduct

Even More Class Actions

Even More $$$

Big Targets:


TECHNOLOGYTECHNOLOGYTECHNOLOGY


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.


Same old laws …

Non-discrimination

Adverse impact

FCRA

GINA

NLRA

Negligent Hiring

Off-duty Conduct

Arrest & Conviction Record


Same old test …

job-related

job-related

job-related


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


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


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


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


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


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


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.”


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.”


Stay Out Of Court Basics

Adopt a Reasonable Policy

Consistently Enforce It

Don’t Intercept, Steal or Deceive

Train Searchers + Managers

Monitor But Don’t Overreact


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


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


building theperfect

social mediapolicy


10 Essential Elements

Tie to Vision + Handbook + Code

Set Clear + Reasonable Expectations

Define SM Brooooooooadly

Protect Trade Secrets/Confidentiality

Clarify Who Owns What


10 Essential Elements

No Disparagement/Harassment

Respect Copyrights

NLRA Disclaimer

Duty To Report Violations

“Up to and including discharge”


SM Policy Starter Kit

Latest Legal Developments

Official NLRB Policy

Official Blawg Sample Policy

Other Fortune 500 Policies

SM 101 Articles


MEDICALMEDICALMEDICAL


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


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


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


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


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”


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”


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?


JOBACCOMMODATION NETWORKjan.wvu.edu800-526-7234


Today’s FormatWhat’s Next?

Don’t Be Inflexible

“Presumed” Disabilities

Interact, Interact, Interact

Accommodate, Accommodate, Accommodate


WAGE & HOURWAGE & HOURWAGE & HOUR


What celebrity was recently sued for a plethora of wage and hour violations?


LADY GAGA



How do you determine if an independent contractor is really an independent contractor?

A. It depends on a confusing, ambiguous, multi-factor test dependent on control that differs in WC, tax and other contexts

B. It is the employer’s option to choose , depending on which is more advantageous from a tax perspective

C. It is the employee’s option to choose

D. Under the new Contractor Clarification Law, if a person is separately incorporated, provides services to others and works in a recognized “profession”



How do you determine if an independent contractor is really an independent contractor?

A. It depends on a confusing, ambiguous, multi-factor test dependent on control that differs in WC, tax and other contexts

B. It is the employer’s option to choose , depending on which is more advantageous from a tax perspective

C. It is the employee’s option to choose

D. Under the new Contractor Clarification Law, if a person is separately incorporated, provides services to others and works in a recognized “profession”



Independent Contractors

KEY: CONTROL

• Permanency of relationship?• Investment in equipment, etc.?• Opportunity for profit or loss?• Independent judgment and initiative?• Services integral to employer’s business?


What's Next? Hot Spots

IC Classifications

OT Classifications (especially Administrative)

Work @ Home

Pre-shift “Work” (Donning/Doffing, Logon/Logoff)


What's Next? Hot States

California

Illinois

Massachusetts

Minnesota

New Jersey

New York

Pennsylvania

Washington

Source: Seyfarth Shaw


UNIONSUNIONSUNIONS


True or False: The NLRB only has jurisdiction over unionized companies.

A. True

B. False


True or False: The NLRB only has jurisdiction over unionized companies.

A. True

B. False


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


Top 11 Litigation TipsIn the History of the Universe

1. Love your employees

2. Know the law

3. Take the Mom Test

4. Model ethical behavior at the top

5. Address known and systemic issues

6. If it ain’t job-related, it ain’t job-related

7. Follow your own policies and contracts

8. Conduct early case evaluations

9. Establish budgets and fixed/flat fees

10. Never ever ever retaliate

11. Investigate and document ALL claims


What % of employees are engaged?

A. -9%

B. 29%

C. 49%

D. 69%

E. 89%


What % of employees are engaged?

A. -9%

B. 29%

C. 49%

D. 69%

E. 89%

Source: Gallup

Employment Law Talk Show


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



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




ManpowerGroup | April 18, 2023 68ManpowerGroup | April 18, 2023 68Source: ManpowerGroup


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 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



Don’t put things off ‘til tomorrowYes investigate right away

Don’t procrastinateAnd don’t retaliate

Or the more you will have to pay



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



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








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!







marktoth.com@manpowerblawg

April 18, 2023

THANK YOU!

Documents

North Carolina SHRM Presentation