Answers to the World's Scariest Employment Law Questions

Halloween 2013

with

Mark TothChief Legal OfficerNorth America

Halloween 2013

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Halloween 2013

with

Mark TothChief Legal OfficerNorth America

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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.

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Today’s webinar is brought to you by

YOU

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Reduce your terror level

1010

Keep the monsters away

1111

What Keeps YOU Awake at Night?

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Source: ManpowerGroup Employment Blawg

1313 Source: ManpowerGroup Employment Blawg

QuestionIs compliance with employment laws getting scarier or easier?

Really very extremely easier

Somewhat easier

No change

Somewhat scarier

Really very extremely scarier

0%

0%

14%

70%

16%

1414

2%

34%

62%

1%

0%

QuestionAre you seeing an increase inemployment law claims?

Yes, substantial increase

Yes, moderate increase

No change

No, moderate decrease

No, substantial decrease


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QuestionStress-O-Meter: On a scale of 1-10, how stressed out are you right now?(845 respondents)

12 37 81 77 145 149 163 117 36 27

1 2 3 4 5 6 7 8 9 10

Perfectly at peace Absolutely terrified

Your Stress

Level


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What spooks youmost about theworld of workheading into

2014?

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Everything.

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de-spook-ify

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The BIG Answer

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ARRRRGGGGHHHHHHHHHHHHH!!!!!!Everything is getting sooooooo complicated. There’s more regulation, more enforcement, more penalties, more lawsuits, more work, more pressure, more MORE. The onlything we have less of is resources.Please please please help simplify things!

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Tweet-o-Rama@manpowerblawg

If you had to boil all of employment law down

to one word, what would it be?

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HR is getting just too dang hard. I think I need a new job. You guys are the job-seeking experts, right? What’s the latest resume advice to help me really stand out from the crowd?

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TO

P 1

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CA

RIE

ST R

ES

UM

ES

Source: CareerBuilder

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LOVE

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I’m freaking out. Right now. Seriously. I’m stresssssed to the MAX. My employees are, too. In previous webinars, you’ve shared helpful stress-reduction tips since excess stress leads to claims and lawsuits. What’s the latest on what I can do right now to help me and my peeps de-freak?

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Let’s say you’re taking a break at work. Which of the following is scientifically proven to boost your mood and productivity?

A. Surfing the web

B. Drinking coffee

C. Taking a walk

D. Praising a co-worker

E. Listening to music

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Let’s say you’re taking a break at work. Which of the following is scientifically proven to boost your mood and productivity?

A. Surfing the web

B. Drinking coffee

C. Taking a walk

D. Praising a co-worker

E. Listening to music

Source: Harvard Business Review

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5.6:1vs.

0.36:1Source: Harvard Business Review

2929

Medical Mayhem

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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

3131

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

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My absolute #1 most terrifying nightmare is figuring out what to do when an employee has a medical issue that might be covered by the ADA, FMLA and WC. Could you please explain how they all fit together (or not) in 3 minutes or less?

3333

Sleep better: open the Tool Box

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ADA / FMLA / WC: What’s the Purpose?

WC: provides compensation for work-related injuries.

FMLA: provides leave to employees.

ADA: prohibits discrimination against disabled individuals.

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ADA / FMLA / WC: Who’s Eligible?

WC: employees who incur an illness/injury in the course and scope of employment.

FMLA: employees who have worked 12 months + 1250 hours the previous 12 months within a 75-mile radius of at least 50 other employees.

ADA: employees with a qualifying disability.

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WC: illness/injury in the course/scope of employment.

FMLA: “serious health condition” of employee or certain family + birth, adoption and foster care placement + certain types of military-related leave.

ADA: “disability” that substantially limits one or more major life activities (or a history or perception of having such a disability).

ADA / FMLA / WC: What’s Covered?

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WC: depends on length of incapacity; some states prohibit terminating employees on WC leave.

FMLA: unpaid up to 12 weeks/year for serious health conditions and up to 26 weeks/year for certain military-related leave + may be intermittent.

ADA: reasonable accommodation but no undue hardship, typically for a defined period and unpaid unless similar leaves are paid.

ADA / FMLA / WC: What Leave?

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ADA / FMLA / WC: What About Reinstatement?

WC: generally no reinstatement rights but most states bar termination during leave + retaliation.

FMLA: generally reinstate to same or substantially equivalent position.

ADA: generally must keep position open during leave.

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ADA / FMLA / WC: What About Light Duty?

WC: typically can require LD if approved by physician.

FMLA: can’t require LD.

ADA: not required to remove essential functions as accommodation, but if offer LD jobs for WC may have to offer to disabled employees.

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ADA / FMLA / WC: What About Penalties?

WC: back pay, compensatory damages + punitive damages.

FMLA: back pay, reinstatement, benefits + attorneys’ fees.

ADA: back pay, compensatory damages, punitive damages + attorney fees.

4141

An employee has been out on medical leave for 11 months. Our neutral (and, I believe, fair) policy is to terminate all employees who have been on leave for 12 consecutive months. If he doesn’t return in a month, can we terminate him?

4242

No (for 20 million reasons).

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My scariest scenario is employees who abuse leave but I don’t want to make things scarier by doing something illegal and getting sued. What’s the deal when an employee asks for an extended leave? Can I deny it as an unreasonable accommodation?

4444

Courts have ruled that extended leave (e.g., 6 months) can be a reasonable accommodation.

However, courts have also semi-consistently ruled that indefinite leave is not reasonable.

4545

After a lengthy battle over potential accommodations, an employee is demanding telecommuting as an accommodation. It seems unreasonable and rife with potential problems, especially since the employee is non-exempt. Can I get sued if I deny it?

4646

Yes.

Whether you’ll win depends on the particular circumstances, like virtually all accommodations.

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Text-o-Rama414.751.0126

If you could make only one call, to whom

would it be?

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4848

ADA How NOT To

Make snap judgments

Don’t interact

Don’t consider

additional leave

Don’t request

additional medical info

Memorialize discrimination

in writing

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THE

INTERACTIVEDANCE

Discuss Discuss

Discuss Discuss

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Text-o-RamaJOB

ACCOMMODATION NETWORK

800.526.7234 jan.wvu.edu

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ManpowerGroup | Halloween 201251

I heard the EEOC has started enforcing GINA. That frightens me since I’ve basically ignored it since it was passed. What are the main things I need to know about GINA to stay out of trouble?


Which of the following increases your chances of getting sued under GINA?A. Asking about family medical history

B. Commingling medical and other info

C. Terminating an employee after a positive genetic test

D. Discriminating against employees named Gina

E. All of the above except “D”


Which of the following increases your chances of getting sued under GINA?A. Asking about family medical history

B. Commingling medical and other info

C. Terminating an employee after a positive genetic test

D. Discriminating against employees named Gina

E. All of the above except “D”


The FMLA makes me scream way more than any other law. There are soooo many rules and soooo much paperwork. I want to do the right thing but I usually have no clue what that is. What resources can you recommend to simplify it?


Defeat FMLA-o-phobia


It seems like every time I ask this one employee to do something she says, “Oooh, not today sweetie, I have a migraine.” Her doctor says her condition does indeed cause periodic migraines but hasn’t specified the exact frequency or duration and it’s driving me crazy. Do I have to let her take intermittent FMLA leave? Please say “no.”


Maybe (sorry).


Intermittent Leave Made Un-scary

Notice 7 days to cureIncomplete Certification

Clarify/authenticate HR, not supervisor

ContactProvider

Recert from original provider OREmployer-paid 2nd opinion

Recert or

2nd Opinion

If conflict Final & binding3rd

Opinion


It seems like everybody in my workplace (except me) is on drugs. What are the rules? When is it OK to drug test? Are there special rules for prescription drugs? What if someone is a certified alcoholic or addict? Help!!!


Drug Testing Made Un-scary

Medical Review Officer

Objective,

not subjective

Avoid prescription

bans

Reasonable suspicion

Confidential


Drugs @ Work Made Un-scary

UI? No (other than legally prescribed meds)

Prescribed meds? Probably (unless direct threat)

Recovering? Safe Harbor (unless “currently engaging”)

“Currently engaging”? No


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

6464

Termination Terror

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Let’s face it. The worst part of any job is when you have to fire someone (even if they deserve it). Where can I find a set of straightforward (i.e., legalese-free) tools to help ensure that my organization’s terminations are as fair, consistent, supportable and humane as possible?

6666

Tons of Termination Tools & Tips

6767

FLSA Frights

6868

Based on everything I hear, wage and hour class actions are the most terrifying lawsuits on the planet. Could you please identify the 5 biggest FLSA violations people are suing over and while you’re at it the 5 things we can do right now to avoid getting sued for them?

6969

OT Classifications

Pre-shift “Work”

Independent contractor classifications

Work @ home

California, California, California

FLSA Hot Spots

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Know the Law

Train managers & employees on time-keeping

Complaint system: investigate promptly

Audit classifications and records

Address any discrepancies immediately

FLSA Solutions

7171

I’m living a nightmare. We just discovered that we have several positions that are wrongly classified as exempt. What should we do? Seems like we’re danged if we change ‘em and danged if we don’t – legally speaking. Help!

7272

• Use the Tool Box

• Study the Exemption Cheat Sheets

• Analyze without assumptions

• Reclassify immediately, if appropriate

• Determine potential back pay

• Notify employees (carefully)

• Beware willful violation penalties

7373

Litigation Labyrinth

7474

Who wins more employment lawsuits – employers or employees?

A. Employers

B. Employees

C. Neither

7575

Who wins more employment lawsuits – employers or employees?

A. Employers

B. Employees

C. Neither

7676

50 - 50Source: Jury Verdict Research

7777

I feel that we’re conditioned to be overly scared of litigating a case through to the end, even when we’re in the right. Management is just too chicken to ever fight anything (in my humble opinion). What do the latest facts and figures say about litigating versus settling?

7878

Which number is scarier?

$205,000 $80,285

7979

Tweet-o-Rama

@manpowerblawg

Who said it?

8080

Plaintiffs’ lawyers SCARE me. What sorts of things do they look for in cases that make them more likely to come after an employer?

8181

What Plaintiffs’ Lawyers Want You to Do

Ignore the law

Ignore your policies

Investigate + document poorly

Lie

Discipline inconsistently

8282

Tweet-o-Rama

@manpowerblawg

Honest Abe

8383

Social Media Spookiness

8484

Scary

QWe use social media all the time in HR to screen candidates and gather dirt for investigations. Nobody in the entire department knows the rules – we’ve never had a lick of training. What exactly are the rules?

8585

job-related

Same Old Test

job-related

job-related

8686

SM Searches Be Consistent

Designate Searchers

Limit Scope

• All candidates or certain categories/departments• Same phase of interview process

• One employee, small group or 3rd party• Not hiring manager

• Restrict to certain approved sites• No posing, lying, fraud or demanding passwords• No age, race, religion or other protected info• Job-related, job-related, job-related

8787

SM Searches Disclose

Document

• Notify candidates that may use SM• Disclose on applications and other docs

• Consistent process• Note legit biz job-related reasons• Follow doc retention policies

8888

What social media do employers use most to find info on candidates and/or employees?

8989

What social media do YOU use most to find info on candidates and/or employees?

A. Search Engines (Google, Bing, etc.)

B. Facebook

C. Twitter

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

E. Nothing

9090

SM Starter Kit

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I’m a bottom-line kind of person. What things are most likely to result in big verdicts against my company right now?

Scary

Q

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How To Get Sued BIG Now

93

Get Sued BIG Now

94

How NOT To Get Sued Big Now

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Answers to the World's Scariest Employment Law Questions