answers to the world's scariest employment law questions
TRANSCRIPT
Answers to the World’s Scariest Employment Law Questions
with
Mark TothChief Legal Officer
North America
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Answers to the World’s Scariest Employment Law Questions
with
Mark TothChief Legal Officer
North America
6
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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Tweet along: #mpwebinar
Follow Mark on Twitter: @manpowerblawg
Visit Mark’s Blawg:marktoth.com
Find us on Facebook: facebook.com/manpowerUS
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Today’s webinar is brought to you by
YOU
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What Keeps YOU
Up at Night?
Scary ???s
Answered
Twickor
Tweet?
How to Get Sued BIG
Now
LeastZombie-ish
Contest
Reduce your terror level
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Keep the monsters away
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What Keeps YOU Awake at Night?
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1. FMLA (18%)
2. ADA (15%)
3. WAGE & HOUR (12%)
4. DISCRIMINATION (11%)
5. FIRING (11%)
6. INVESTIGATIONS (8%)
7. OTHER (7%)
8. SOCIAL MEDIA (5%)
9. HARASSMENT (4%)
10. HIRING (3%)TO
P 1
0 S
CA
RIE
ST
EM
PL
OY
ME
NT
LA
W I
SS
UE
S
Source: ManpowerGroup Employment Blawg
13Source: 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%
3%
16%
58%
23%
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QuestionAre you seeing an increase inemployment law claims?
Yes, substantial increase
Yes, moderate increase
No change
No, moderate decrease
No, substantial decrease
Source: ManpowerGroup Employment Blawg
3%
30%
63%
3%
1%
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What spooks youmost about theworld of work
right now?
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Everything.
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de-spook-ify
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Medical MAYHEM
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TWICK OR TWEET?
@manpowerblawg
If you could make only one call, to whom
would it be?
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Scary
QHere’s what drives me bats: it seems that employees are getting more and more and more creative about why they can’t come to work. I’m seeing lots and lots and lots of ADA, FMLA and WC abuse. Is it just me or is that something everyone’s seeing? Eeeeeeeeeeeeeeeeeeeeeeeeek!
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“I woke up in a good mood and didn’t want to ruin it.”
“I was at the casino all weekend and still had moneyleft to play with on Monday morning."
“I just put a casserole in the oven.”
“My feet fell asleep while I was sitting on the toilet.When I stood up I fell and broke my ankle.”
“My plastic surgery needed some ‘tweaking.’”
“I had a ‘lucky night’ and didn’t know where I was.”
“I got stuck in the blood pressure machine at thegrocery store and couldn’t get out.”
“I have a gall stone that I want to heal holistically.”
“My uniform caught on fire when I put it in the microwave to dry.”
“I accidentally got on a plane.”
2014
’s M
OS
T C
RE
AT
IVE
EX
CU
SE
S
Source: CareerBuilder
22 Source: CareerBuilder
Un-scary
AEXCUSE-O-RAMA• 28% admit faking sickness
• 24% have caught fakers using social media
• 66% have asked to see a doctor’s note
• 49% have called an employee
• 15% have driven by an employee’s house
• 18% have fired for using a fake excuse
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TWICK OR TWEET?
JOB ACCOMMODATION
NETWORK
800.526.7234askjan.org
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Scary
QEbola is my biggest nightmare right now. What are employers supposed to be doingto ensure that we don’t all die?
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Un-scary
ADon’t panic. Prepare.
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Scary
QThe FMLA continues to make me SCREAM more than any other law. I’m confused. Employees are confused. The lawyers I call are confused. Could you please help simplify it?
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Defeat FMLA-o-phobia
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Scary
QI heard that a court recently ruled that sending FMLA notices in the mail is insufficient. Then I heard that another court ruled that sending ‘em by email is insufficient as well. Seriously? What are we supposed to do? Staple it to the employee’s forehead?
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Un-scary
AFMLA NOTICE• Don’t staple things to
employee’s foreheads.
• Get signature in person or get confirmation receipt.
• If the employee claims she/he didn’t get it, be reeeeeally careful about firing.
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Scary
QReality is what freaks me out. I like how you include real-life examples in your webinars to help us see what employers are REALLY facing right now (especially under the ADA). Will you do that in this webinar, too?
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YOU Be the Judge
Who wins?A. EmployeeB. Employer
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YOU Be the Judge
Who wins?A. EmployeeB. Employer
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TEXT-O-RAMA
Who wins?
414.761.0128Your first name
+ answer
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THE
INTERACTIVEDANCE
Discuss Discuss
Discuss Discuss
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TEXT-O-RAMA
The employee wins.
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Scary
QAn employee sustained a serious injury at work, which resulted in a disability for which he’s requesting accommodations. He’s also demanding intermittent leave under the FMLA. He also alleges that we unlawfully released personal health information about him in violation of HIPAA.
Here’s my question: How on earth can an employer apply the ADA, FMLA, HIPAA and WC (and let’s throw in GINA for good measure) separately and simultaneously? HELP!!!!!!!
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Sleep better: Open the Tool Box
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Scary
QI’m afraid that our do-more-and-more-and-more-with-less-and-less-and-less society is driving more and more and more employees (especially younger ones) to use supposed performance-boosting drugs like Adderall to get ahead at work. How do drug-testing rules apply to something like that?
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Drug Testing Made Un-scary
Medical Review Officer
Objective,
not subjective
Avoid prescription
bans
Reasonable suspicion
Confidential
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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
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FLSA Frights
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Scary
QLet’s say I only have time and energy to freak out about one thing in the employment law universe. What should it be?
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Poll
QWhich of the following legal risk areas should be your top priority right now?
A. Overtime
B. Pre/post-shift work
C. Meal/rest periods
D. Doing business in California
E. All of the above
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Poll
QWhich of the following legal risk areas should be your top priority right now?
A. Overtime
B. Pre/post-shift work
C. Meal/rest periods
D. Doing business in California
E. All of the above
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Know the Law
Train managers & employees on time-keeping
Complaint system: investigate promptly
Audit classifications and records
Address any discrepancies promptly & carefully
FLSA Fixes
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Don’t Be Afraid of the EEOC
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The EEOC’s brand-new Pregnancy Discrimination Guidance scares me. I’ve heard different opinions about it. I heard it’s not really law. Can we ignore it?
Scary
Q
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GUIDANCE HIGHLIGHTS• Not law but …
• Past, current & future pregnancies
• Offer light duty if available
• Don’t require leave
• May have to accommodate
• No adverse action for abortion, lactation or in vitro fertilization
Un-scary
A
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Scary
QI thought wellness plans were, well, well. But now I’m hearing that the EEOC is coming after employers and suing them and I’m scared ours might have problems. What’s up with that?
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UNWELL WELLNESS PLANS• Make it mandatory, not optional
• Fire those who don’t participate
• Decline coverage to those who don’t complete tests/assessments
• Require disability disclosures
Un-scary
A
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Discrimination Disasters
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YOU Be the Judge
Who wins?A. EmployeeB. Employer
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YOU Be the Judge
Who wins?A. EmployeeB. Employer
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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 mayst have an exception if thou art a religious organization.
(Source: Snell & Wilmer LLP)
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Scary
QHere’s my never-ending nightmare. We’ve had dozens of diversity initiatives in the past but our diversity has actually decreased. Our CEO is demanding real change and is tying our performance to achieving diversity goals, including earmarking certain strategic positions to be diversity hires. Is that OK?
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YOU Be the Judge
Who wins?A. EmployeeB. Employer
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YOU Be the Judge
Who wins?A. EmployeeB. Employer
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Termination Terror
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Everyone in my company is terrified of terminations. I’ve been in HR for about 87 years but haven’t seen a termination checklist I really like. Do you have one you can provide? For free? Please?
Scary
Q
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Tons of Termination Tools & Tips
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Reasonable notice of consequences?
Related to (a) efficient and safe operations and (b) performance company should reasonably expect?
Full, fair and timely?
Sufficient evidence that guilty as charged?
Rule consistently applied to all?
Punishment fit the crime, considering (a) seriousness of offense and (b) service record?
Termination TestNotice
Rule
Investigation
Proof
Consistency
Penalty
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Social Media Spookiness
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Scary
QThe cyberspace workplace terrifies me. What are the rules on disciplining employees for what they tweet, blog or post online?
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Un-scary
ASOCIAL MEDIA TO-DO LIST• Have a policy.
• Enforce it.
• Train employees:
– Facebook is forever. Keep your shirt on.
– You are what you tweet. Think before you click.
• Beware protected activity.
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YOU Be the Judge
Who wins?A. EmployeeB. Employer
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YOU Be the Judge
Who wins?A. EmployeeB. Employer
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SM Starter Kit
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Lightning Round
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Scary
QHere’s what scares me: Halloween. People come to work in costumes that are waaaaay too revealing, too violent, too derogatory toward certain races and/or galactically lacking in taste and judgment. Others refuse to take part and object to any parties on religious grounds. Other than firing everyone so I can get some peace and quiet around here, what else should I do?
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Un-scary
AHALLOWEEN TRICKS• Chill: almost no one ever sues
over a Halloween party.
• Some don’t allow costumes, citing a professional dress code.
• Some allow costumes, citing a professional dress code.
• Whatever you do, don’t mandate attendance/participation.
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OK, so what’s YOUR nightmare, Mr. Webinar Blawg Guy? What ONE thing have you seen employers do over and over in your career that you wish they would stop?
Scary
Q
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Un-scary
AFollow your own dang procedures.
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Scary
QThe Supreme Court scares me. With one stroke of the pen those dudes can change everything. What’s on the docket that we should care about?
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Un-scary
AWHAT’S UP WITH THE SUPREMES?
1. Religious accommodations
2. Pregnancy accommodations
3. Security screening pay
4. Mandatory EEOC conciliation
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Non-competes drive me absolutely bats. Our CEO wants to make everyone from our highest-ranking SVP down to our custodial staff sign nationwide 2-year non-competes and then sue each and every person that violates them. At the same time, he wants us to hire lots of our competitors’ employees whether or not they have non-competes. What should I tell him? (Feel free to include swear words.)
Scary
Q
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Un-scary
ANON-COMPETE NON-NEGOTIABLES
• Be reasonable, man.
• States vary but most really, very sincerely hate NCs.
• General rule: reasonable time and location restraint tied to legit business reasons AND must be consistently enforced.
TWICK OR TWEET
@manpowerblawg
If you had to boil all of employment law down to one word, what would it be?
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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
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Forget What You Learned Today
Don’t Address Wage & Hour Issues
Manage Medical Leave Badly
Don’t Do the ADA Interactive Dance
Ignore the EEOC
Don’t Use The Termination Checklist
Tweet and Text Terribly
Don’t LOVE your employees
Get Sued BIG Now
LOVE
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How NOT To Get Sued Big Now
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visit marktoth.com
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187% FREE Stuff
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FabulousEmployment Law
LIBRARY
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