everything you ever wanted to know about employment law

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

SMARTEST HR

PERSONIN THE

UNIVERSE CONTEST

WHAT’S NEW?

STAY OUT OF JAILTO DO LIST

SING-A-LONGSONG

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Stay Out Of Jail

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 litigation headaches, recurring 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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Smartest HR Person in the Universe CONTEST

The BIG picture

ManpowerGroup | April 18, 2023 9

What percentage of employeeswould fire their bosses right now?

A. 36%

B. 56%

C. 76%

D. 96%


What percentage of employeeswould fire their bosses right now?

A. 36%

B. 56%

C. 76%

D. 96%

Source: Monster.com


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

A. 26%

B. 46%

C. 66%

D. 86%


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

A. 26%

B. 46%

C. 66%

D. 86%

Source: Right Management


$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


The Bottom Line:Employees are really very

extremely incrediblydisgruntled.


The Goal:Get your employees gruntled.


The BIG Picture

If you had to boil all of employment law down

to one word, what would it be?


LOVE

What’s NEW?

The Supremes Rule

Retaliation Standard Toughened

Supervisor Definition Narrowed

Class Action Waivers Upheld

Class Action Fairness Reinforced

DMV Plaintiff Recruitment Curtailed

What Else is New?

New FMLA

New HIPAA Rule

New EEOC ADA FAQs

New I-9s

GINA Is Real

What Else Else is New?

DOMA, FMLA & Same-sex Spouses

Online Whistleblower Complaints

Micro-units OK

Federal Contract Compliance Manual

Non-compete Suit Explosion

How to GET SUED big now


True or False?Employers win more employment lawsuits than they lose.

A. True

B. False


True or False?Employers win more employment lawsuits than they lose.

A. True

B. False

Source: Jury Verdict Research


49%Source: Jury Verdict Research


What Are Your Odds?

SEX

36%

ALL

49%DISABILITY

56%AGE

60% RACE

50%

Source: Jury Verdict Research


What’s the #1 most common discrimination claim?

A. Age

B. Disability

C. Race

D. Retaliation

E. Sex

Hiring

VulnerableWorkers

ADA

LGBTAccess to

Legal System

Pregnancy

Harassment

EEOC

DEALor no?

WHOsaid it?

Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)

© 2011 ManpowerGroup 32

How Much Will YOU Pay?

$1M+Big pattern +/or reallllllly horrible facts

1%$100K-$1M

Pattern +/or really horrible facts

39%$51-

$100K1 plaintiff + horrible facts

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



Ignore the law

Ignore your policies

Investigate + document poorly

Discipline inconsistently

Lie

Get Plaintiffs’ Lawyers to LOVE You


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


Avoid the WAGE & HOUR abyss


What celebrity wasrecently sued for a

plethora of wage andhour violations?


LADY GAGA


OT Classifications

Pre-shift “Work”

Independent contractor classifications

Work @ home

California, California, California

FLSA Hot Spots

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

The FMLA in Plain English




gear


area





gear


area


http://manpowergroupblogs.us/employment_blawg/2012/08/07/the-fmla-in-plain-english/

Wage and Hour Solutions

Know the Law

Train managers and employees on time-keeping

Complaint system: investigate promptly & thoroughly

Audit classifications and records

Address any discrepancies immediately



NLRB Nervousness



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

A. True

B. False



True or False?Union membership declined more in President Obama’s first term than in President Bush’s two terms combined.

A. True

B. False



True or False?Union membership declined more in President Obama’s first term than in President Bush’s two terms combined.

A. True

B. False

Source: Bureau of Labor Statistics



11.2%Source: Bureau of Labor Statistics

Every Social Media Case On 1 Slide

“Protected concerted activity”

Union or non-union

> 1

Wages / work conditions

Same in cyberspace



Get SOCIAL MEDIA now



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.



True or False?

Absolutely False.



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 WorldGroupNielsen, DLA Piper

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

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



What percentage of men have viewed porn at work?

A. 0

B. 2

C. 17

D. 25

E. 118



What percentage of men have viewed porn at work?

A. 0

B. 2

C. 17

D. 25

E. 118

Source: Harris Interactive



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



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

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

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.”

YOU be the judgeWho wins?

A. Employer

B. Employee

C. Neither

Who wins?

A. Employer

B. Employee

C. Neither

YOU be the judge

Social Media Starter Kit

ADA, FMLA, HIPAA, OSHA … YIKES!

Yikes No More


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”

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


“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.”

2012

’sM

OS

T C

REATIV

E E

XC

US

ES

FO

R M

ISS

ING

WO

RK

Source: CareerBuilder


FMLA in Plain English


ADA How NOT To

Have an inflexible

leave policy

Make snap judgments

Don’t interact

Don’t accommod

ate

Put dumb stuff in writing


THE

INTERACTIVEDANCE

Discuss Discuss

Discuss Discuss


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 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


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?


JOBACCOMMODATION

NETWORKjan.wvu.edu

800-526-7234

LIGHTNING Round

Many employment disputes can be traced back to a lack of leadership. According to research, what’s the #1 most important leadership trait?

A. CharismaB. HumilityC. KindnessD. ProactivityE. Results-orientationF. HeightG. Coordinating accessoriesH. Smooth dance moves

After a batch of frivolous complaints against execs that resulted in several of them hating your guts because you conducted the investigations, you institute a policy calling for brief “reviews” rather than full-scale investigations whenever a complaint comes in against an exec. What’s most likely to happen next?

A. Nothing: research shows that 97% of all complaints are bogusB. You get a big raise and promotion for sparing execs the hassle

and embarrassment of getting investigatedC. You get fired after the company pays a big settlement based in

part on your failure to conduct an appropriate investigation

Stay out of JAIL

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World’s Most Fabulous

Employment Law

LIBRARY

Go To Prison Soon Plan

Don‘t open the Tool Box

Don’t visit the EL Library

Don’t sign up for Mark’s alerts

Don’t follow Mark on Twitter

Don’t visit the Blawg every 0.3 seconds

Prison-free Plan KNOW THE LAW

INVESTIGATE & DOCUMENT ALL CLAIMS

BEWARE RETALIATION

LOVE YOUR EMPLOYEES

FOCUS ON KEY PRIORITIES

Known violationsSystemic issuesWage & hourEEOC priorities

ManpowerGroup | Halloween 2012

Employment Law SING-A-LONG


Employment law can 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


Don’t put things off til tomorrowYes investigate right away

Don’ procrastinateAnd don’t retaliate

Or the more you will have to pay


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


Technology may give you headachesAnd the 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 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

April 18, 2023

marktoth.com

April 18, 2023

THANK YOU!

everything you ever wanted to know about employment law

Career

percentage of employees

universe contest whats

false source

employment lawsuits

right management

smartest hr person

legal departments

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