Post on 20-Aug-2015
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.
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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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%
ManpowerGroup Pre-Webinar Survey, January 2014
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%
ManpowerGroup Pre-Webinar Survey, January 2014
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
Tweet-o-Rama@manpowerblawg
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
Tweet-o-Rama@manpowerblawg
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
ManpowerGroup | Halloween 2012
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
ManpowerGroup | Halloween 2012
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
ManpowerGroup | Halloween 2012
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
ManpowerGroup | Halloween 2012
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!
ManpowerGroup | Halloween 2012
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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