What's New and What's Next in Employment Law for 2014

April 18, 2023

with

Mark TothChief Legal OfficerNorth America

with

Mark TothChief Legal Officer

North America

What’s New & What’s Next in Employment Law in 2014

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April 18, 2023

with

Mark TothChief Legal OfficerNorth America

with

Mark TothChief Legal Officer

North America

What’s New & What’s Next in Employment Law in 2014

6

Stay Out of Jail in 2014

What are YOU thinking?

What’s NEW?

What’s NEXT?

Jail-free ACTION PLAN

Least likely to be Incarcerated CONTEST

Official DisclaimerThe presentation you are about to witness is intended as

general commentary only and should not be relied upon or construed as legal advice. The views expressed are solely

those of the presenter and not of ManpowerGroup.

Failure to stay awake for the entirety of this presentation could result in long-lasting side-effects, including HR

headaches, litigation nightmares and/or severe gastrointestinal discomfort from having to spend

too much time with lawyers.

Please consult with your own HR and Legal departments before making any major policy and/or procedure changes.

You have been warned.

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What Are YOU Thinking?

12

Employment Law Thermometer

ADA 13%

FMLA 19%

ManpowerGroup Pre-Webinar Survey, January 2014

Which area of employment law currently gives you the most headaches?

1

2

3

4

5

6

7

8

9

10

Wage & Hour 9%

Investigations 8%

Firing 11%

Harassment 6%

Discrimination 5%

Social Media 5%

Hiring 4%

Immigration 4%

13

Is complying with employment laws getting easier or more difficult?

Question

Really very extremely easier

Somewhat easier

No change

Somewhat harder

Really very extremely harder

0%

2%

24%

58%

16%


14

Are you seeing an increase or decrease in employment law claims?

Question

Yes, substantial increase

Yes, moderate increase

No change

No, moderate decrease

No, substantial decrease

4%

26%

66%

3%

2%


What one thing concerns you most

about the world of work in 2014?

Everything

The BIG Picture

Tweet-o-Rama@manpowerblawg

If you had to boil all of employment law down to one word, what would it be?

19

:(

70% Un-engaged

QuitYourJobApp

Work forthe CIA?

70% Dump Vacation

Karoshi

87% Want Out

Workplace“Mobbing”

Sources: Right Management, Staffbay, Gallup, Expedia, Kroll, PE.com

20

The Bottom Line:Employees are really

very extremelyincredibly disgruntled.

21

The Goal:Get your employees

gruntled.

LOVE

5:1

0.3:1Source: Harvard Business Review

VS.

How to Get Sued BIG Now

True or False?Employers win more

lawsuits than they lose.

False

Source: Jury Verdict Research

49%

28

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

29

Wage & Hour Suits (+3%)

Systemic Investigations (+25%)

EEOC Recoveries (new record)

WHD Recoveries ($1B+)

Discrimination Class $ (+381%)

Lawsuit Facts & Figures

Sources: EEOC, Seyfarth Shaw, Littler, Wall Street Journal

30

Ignore known violations

Don’t address systemic issues

Violate wage & hour laws

Lie or engage in fraud

Do business in California

Get a BIG Class Action Fast

Text-o-Rama414.751.0126

Your first name + answer

“What celebrates its 50th birthday in 2014?”

What’s Up with the

EEOC?

33

EEOC

Hiring

Pregnancy

Harassment

VulnerableWorkers

Accessto LegalSystem

ADA

LGBT

Source: EEOC

34

Employment Non-discrimination Act

Sexual orientation & gender identity

LGBT: 4% of workforce, 21% face discrimination

T: 26% fired, 97% face discrimination

Passed Senate 64-32 but .0001% chance in House

Is the ENDA Near?

Sources: Williams Institute, National Center for Transgender Equality

35

$21.3M to 200+ employees for racial harassment + discriminatory promotions & assignments

$4.9M to 427 employees for inflexible “maximum leave” and “no-restrictions” policies

$2.5M to 89 women for egregious harassment, discrimination & retaliation

$2.3M to 76 employees for systemic denial of reasonable accommodations

$2.0M to 6,000 employees required to disclose medical info or face discipline

372 Million Reasons to Fear the EEOC

Sources: EEOC, Seyfarth Shaw, Littler

36

EEOC Myth vs. Reality

EEOC Mediators:• 73%: settle or cause• 70%: settle or suit

Sources: EEOC, Merrily Archer, BNA

EEOC Stats:

• 3.7% cause rate• 0.2% suit rate

37

June 2013: EEOC filed suits alleging disparate impact because no “individualized assessment”

July 2013: 9 state AGs sent letters to EEOC demanding guidance be rescinded

August 2013: EEOC responded to AGs, calling it a “misunderstanding”

October 2013: EEOC ordered to pay $750K in costs due to “unfounded allegations”

November 2013: EEOC posted “discussion letter” with instructions for inmates under the guidance

Criminal Background Checks

Text-o-Rama

The Civil Rights Act of 1964

39

9 / 10

Source: Pew Research Center

Wage & Hour

WHIRLWIND

41

39% of class actions; average settlement $5M

Misclassification Initiative

Worker Classification Survey

Payroll Fraud Protection

Jail for “repeat and willful” violations

Wage & Hour in a Minute

Sources: NERA Economic Consulting,Workplace Insights

42

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

Cheat Sheets

Medical MAYHEM

45

Broad “disability” definition

Individualized analysis versus rigid guidelines

New Guidance on cancer, diabetes, epilepsy and intellectual disabilities

Obesity could be a disability

EEOC target: 38% of merit suits

ADA in a Minute

Source: EEOC

YOU Be the Judge

Who wins?

A. Employee

B. Employer

YOU Be the Judge

Who wins?

A. Employee

B. Employer

ADA How NOT To

Have an inflexible

leave policy

Make snap judgments

Don’t interact

Don’t accommodate

Put dumb stuff in writing

49

THE

INTERACTIVEDANCE

Discuss Discuss

Discuss Discuss


Which is the only industrialized

nation that doesn’t guarantee

working moms paid time off

after childbirth?

51

Broad Serious Health Condition Definition

Don’t Fear Intermittent Leave

DOL FMLA Tools

Never ever Retaliate

FAMILY Act Coming?

FMLA in a Minute

FMLA Made Simple

Tweet-o-Rama

The United States of America

54

All employers covered regardless of size

Up to 12 weeks paid leave for birth/adoption, serious illness of employee or family member

0.2% payroll tax shared by employee & employer

Capped at 66% & $1,000 / month

Lesotho, Swaziland and Papua New Guinea?

The FAMILY Act in a Minute

Source: International Labour Organization

55

Bans: Requesting or Using Genetic Info

Reach: applicants, employees & family members

In Court: EEOC filed first suits last year

First Settlement: 370,000 Reasons to Know GINA

GINA in a Minute

56

Illegal / old-school drug use

Prescription / designer drug use

3.5% Positive Now vs. 13.6% Positive 1988

False Positive?

DOL’s Drug-free Workplace Policy Builder

Drugs in a Minute

Source: Quest

57

Work injuries & illnesses: 3.4 / 100

300A Forms due February 1

I2P2 by September?

New online whistleblower system

OSHA in a Minute

Silica, dust & beryllium coming soon

ADA vs. FMLA vs. GINA vs. WC

Get WOMEN

60

Women are better educated & test better

< 5% of Fortune 500 have female CEOs

More female officers = 34% better returns

Most still prefer male boss

EEOC Report: Obstacles Facing Women

Women @ Work Facts

Sources: Pew Research Center, CNN Money, Businessweek, Gallup, ManpowerGroup

Get and keep women

Don’t Make Employees

SCREAM at

Ashtrays

63

100%+ increase in past 20 years

Please don’t require ashtray screaming,8-hour stare-downs & talking to walls

Dress codes vs. religious garb

Harassment vs. accommodation

Religious Discrimination on the Rise

Source: EEOC

64

10 Commandments of Religious Discrimination

1. Thou shalt not assume a religion unknown to you is not a religion.

2. Thou shalt not discriminate on the basis of religion.

3. Thou shalt not harass employees based on religion.

4. Thou shalt reasonably accommodate an employee’s religious beliefs.

5. Thou shalt be careful enforcing dress codes.

6. Thou shalt be careful enforcing grooming standards.

7. Thou shalt allow employees to participate in religious observances.

8. Thou shalt provide a time and place for employees to pray, if requested.

9. Thou shalt treat religious displays in the workplace equally among religions.

10. Thou may have an exception if thou are a religious organization.

(Source: Snell & Wilmer LLP)

We’re Getting

OLDER

66

33% of the workforce will be 65+ by 2025

Most engaged? 92% of 60+ female admins

$5.7M to 4 servers replaced by 20-year-olds

$575K for pattern of age discrimination + failure to keep records

Ageist comments can = age discrimination

ADEA in a Minute

Sources: BLS, Keas, Jury Verdict Research

Social Media

MANIA

68

Facebook: bad predictor, discriminator, dying?

What’s hot? Snapchat? Instagram? WhatsApp?

Cyberspace complaint ain’t a complaint

Even PR professionals fail at SM

Hot debate: Who owns SM accounts?

SM in a Minute

Sources: Florida State, Clemson, Accenture,Global Web Index

Which do YOU use most to find

info on candidates or

employees?

A. Search engines (Google, etc.)

B. Facebook

C. Twitter

D. Ratings sites (Yelp, Glassdoor, etc.)

E. Nothing

70

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

71

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

SM Starter Kit


What is the #1 most common claim filed with

the EEOC right now?

What’s New with the

NLRB?

75

NLRB 2.0?

Targeting non-union employers

Union rights posting dead

“Ambush” election and other rules coming?

Supremes: (1) class action waivers OK and (2) parties can agree donning / doffing unpaid

The NLRB in a Minute

Tweet-o-Rama

RETALIATION is #1

Never Ever

RETALIATE

YOU Be the Judge

Who wins?A. EmployeeB. Employer

YOU Be the Judge

Who wins?A. EmployeeB. Employer

TERMINATIONTroubles

81

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

82

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

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

LIGHTNING Round

85

H-1Bs: stampede starts April 1

ICE brings the chill: Worksite Enforcement Strategy

23 indictments for undocumented workers

$34M for alleged systemic visa abuse

Immigration in 30 Seconds

86

Veteran & disability rules effective March 24

Self-identification form posted January 27

7% utilization goal for disabled individuals

Will lawsuits trump rules?

OFCCP in 30 Seconds

Data collection, sex discrimination and construction rules next?

87

Equal Employment for All Act

Bars discrimination based on credit history

Employers can’t request, even with consent

Exemptions: national security or required by law

EEOC considering guidance

No More Credit Checks?

Stay out of jail

ACTION PLAN

Prison-free in 2014 Plan KNOW THE LAW

INVESTIGATE & DOCUMENT ALL CLAIMS

USE THE TERMINATION TEST

LOVE YOUR EMPLOYEES

FOCUS ON KEY PRIORITIES

Known violationsSystemic issuesWage & hour (especially CA)EEOC priorities

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Least Likely to Be Incarcerated

in 2014

CONTEST

COMING SOON: Everything You Ever Wanted to

Know About Negotiation

(In 60 Minutes or Less)

The Employment Law

SING-A-LONG

ManpowerGroup | Halloween 2012

2014 won’t be easyIf you listen you surely won’t fail

We wrote you this songSo please sing along

If you don’t, you could end up in jail


The law, it’s always a-changingWith new acronyms every day

But if you visit my BlawgYou won’t be in the fog

And big verdicts you won’t have to pay


So, remember this songAnd you’ll never go wrong

Yes we wish you the best on your journeysYou’ll stay out of court

And you won’t have to pay no attorneys


The ENDA it soon could be comingThe ICE Man 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 little wordThat sums up what you heard

Love love love love love love LOVE!


So, remember this songAnd you’ll never go wrong

Yes we wish you the best on your journeysYou’ll stay out of court

And you won’t have to pay no attorneys

THANK YOU!

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