the great employment law quiz show

Manpower

The Employment Law

QUIZ SHOW

Manpower

Answers to YOUR Employment Law Questions 2

Today’s Format

• Shout-outs

• Polls

• Text-o-rama

• Lightning Round

• Official “Smartest Person in Our Audience” Quiz

• Valuable prizes galore

Manpower

3Everything About Employment Law

Today’s Agenda

• Official “Smartest PersonIn the Audience” Quiz Show

• $584 billion in tools & tips• What’s new? What’s next?• Hiring to firing• Official Employment Law Pledge• Stay Out of Jail “To Do” List• Employment Law Sing-a-Long

Manpower

4Answers to YOUR Employment Law Questions

Official Disclaimer

The material presented herein should not be relied upon or construed as legal advice. For specific information on recent developments, particular factual situations or the effect of a particular law, the opinion of qualified legal counsel should be sought.

Please consult with your own Legal and HR Departments before making any changes.

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Smartest Personin the Audience

QUIZSHOW

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Why You Should

STAY AWAKE

During This Webinar

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According to a recent study, what is the #1 legal headache for U.S. businesses?

a. Environmental regulation

b. Patent protection

c. International contract laws

d. Employment law disputes

e. Lawyers

Manpower


According to a recent study, what is the #1 legal headache for U.S. businesses?

a. Environmental regulation

b. Patent protection

c. International contract laws

d. Employment law disputes

e. Lawyers

Source: Fulbright & Jaworski

Manpower


On average, how many employment lawsuits are filed every day?

a. 55

b. 197

c. 362

d. 500

e. Too high to count

Manpower


On average, how many employment lawsuits are filed every day?

a. 55

b. 197

c. 362

d. 500

e. Too high to count

Source: Council on Education in Management

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What % of employment lawsuits are won by the employer?

a. It is unlawful for employers to win

b. 18%

c. 38%

d. 52%

e. 67%

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What % of employment lawsuits are won by the employer?

a. It is unlawful for employers to win

b. 18%

c. 38%

d. 52%

e. 67%

Source: Jury Verdict Research

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1 out of ___ employment law jury verdicts is a million-dollar case.

a. 1 million

b. 1,000

c. 100

d. 10

e. 5

Manpower


1 out of ___ employment law jury verdicts is a million-dollar case.

a. 1 million

b. 1,000

c. 100

d. 10

e. 5

Source: Critical Measures

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How to Lose Money Fast

• Class actions

– Wage & hour

– Exec misconduct

– “Systemic” discrimination

– OSHA violations

• Hot spots: CA, FL, IL, MS, NJ, NY, PA and TX

• Retaliation

Sources: Seyfarth Shaw; Washington Post; Business Week

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Everything About Employment Law

Employers in Court

• More Litigation – Up for 3rd straight year– Last quarter: 31% increase

vs. 3% decrease• Litigation Costs Up: Companies

spending $1+ million increased by 18%.• Median Verdict: $326,640 (up 60%).

Sources: Jury Verdict Research, Fulbright & Jaworski, Seyfarth Shaw

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Employers in Court

• Most Common– Sex (35%)– Race (26%)– Disability (16%)– Age (13%)

• Biggest Verdicts: Age, disability, sex, race• Average Cost: Edging closer to $100,000 to litigateSources: Jury Verdict Research, Fulbright & Jaworski, Seyfarth Shaw

17

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Big Hairy

SUITS

Manpower


Which of the following happened in recent months?

a.Record EEOC $$$ recoveries

b.Record # of retaliation, religion, disability & national origin claims

c.Largest gender discrimination verdict ever

d.Largest class action employment lawsuit ever

e.All of the above (and much much more)

Manpower


Which of the following happened in recent months?

a.Record EEOC $$$ recoveries

b.Record # of retaliation, religion, disability & national origin claims

c.Largest gender discrimination verdict ever

d.Largest class action employment lawsuit ever

e. All of the above (and much much more)

Manpower


Anatomy of a Billion-dollar Lawsuit

TIMELINE

• 10 years on Working Mothers best employers list

• 2003: 1st charge – pattern and practice of discrimination

• 2004: Lawsuit filed

• 2007: Class certified – all female salespersons since 2002

• 2009: Summary judgment denied

• 2010: Trial

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EVIDENCE

• Experts: performance and comp systems were “subjective” and vulnerable to bias

• Stats: women got lower performance scores and made $75/month less

• Affidavits:

– “First comes love, then comes marriage, then comes flex time and a baby carriage”

– “Get an abortion”

– “Oops – too late”

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BEST JUDICIAL QUOTE OF THE DECADE

The court must be “wary of a claim that the true color of a forest is better revealed by reptiles

hidden in the leaves than by the foliage of countless free-standing trees.”

Nevertheless, the “plaintiffs have produced enough foliage to raise questions about the

forest’s color.”

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TRIAL TESTIMONY

• Plaintiffs

– Unfair pay practices

– Promotion and salary increase denials after pregnancy leave

– “Baby carriage” poem recital

– Rape by doctor at company-sponsored social event

• Defendants

– Above were isolated “anecdotal” incidents

– Testimony from female employees with positive experiences

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VERDICT

• $3.4 million in compensatory damages

• $250 million in punitive damages

• 5,600 class members may now seek individual compensatory damages ($1+ billion?)

• Equitable relief

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LESSONS

• Don’t rest on your laurels

• Get PROACTIVE – train managers, fire bad ones and address adverse impact NOW

• Get REACTIVE – investigate and address ALL claims

• Beware “pattern and practice” claims

• Beware newsworthy allegations

• Consider early settlement

• Ledbetter = $$$

Manpower


Which of the following were actual rulings by the Supremes in the past year?

a. An employer can monitor employee “’sexting” if it has a “legitimate work-related purpose”

b. “Reverse discrimination” is bad: test results can only bethrown out if there is a “strong basis” of evidence

c. Title VII’s anti-retaliation protection includes employees whoanswer questions during an internal investigation

d. Age must be “THE” versus only “a” factor to win ADEA suit


Manpower


Which of the following were actual rulings by the Supremes in the past year?

a. An employer can monitor employee “’sexting” if it has a “legitimate work-related purpose”

b. “Reverse discrimination” is bad: test results can only bethrown out if there is a “strong basis” in evidence

c. Title VII’s anti-retaliation protection includes employees whoanswer questions during an internal investigation

d. Age must be “THE” versus only “a” factor to win ADEA suit


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29

More Big Verdicts

• $4.0 million to pathologist for alleged retaliation after opposing new blood test that could give false results

• $4.1 million to male cop who claimed retaliation after testifying in harassment case of department’s first female cop

• $4.7 million to black salesperson who alleged retaliation after he claimed race discrimination and harassment

• $5 million to white police officer who alleged retaliation after complaining of discrimination against black police officers

• $6.2 million for allegedly inflexible WC leave exhaustion policy resulting in termination instead of accommodation


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30

More Big Verdicts

• $10.7 million for alleged repeated firing of older employees and replacing them with younger employees

• $19 million to thousands of female employees of national restaurant chain in “glass ceiling” case

• $35 million to 88,000 employees allegedly forced to skip breaks and meal periods

• $68 million to whistle-blower who alleged pharma kickbacks, illegal marketing techniques and meetings in exotic locales

• $70 million to TV writers for age discrimination

• $4 billion to exec for breach of contract


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31

How to Get Sued by the EEOC

• Don’t address harassment/discrimination aggressively

• Don’t adequately investigate complaints against execs

• Don’t follow your own policies

• Don’t accommodate

• Retaliate

• Act in bad faith


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What’s

NEW?

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What three words starting with the letter “e” best

describe the government’s current approach to employment law?

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34

Enforcement, Enforcement, Enforcement

• Chao (“compliance assistance”) versusSolis (“new sheriff in town”)

• 200 new Wage & Hour Compliance Officers

• $25 million and 100 DOL enforcers to target independent contractor misclassifications

• 50 new lawyers to enforce Title VII, ADA and IRCA

• ICE targeting 1,000 employers

• More and more OFCCP and OSHA audits


Manpower


What was the very first law signed by the President and why is it freaking lots of

employment lawyers out?

Manpower


LILLY LEDBETTER

FAIR PAY RESTORATION

ACT

Manpower


The Ledbetter Act:

a. Gives an extra $250 per month to all employees named Lilly Ledbetter

b. Requires California employers to add a "0" to the end of every paycheck

c. Substantially extends the time period within which to file unfair pay (and potentially other) claims

d. Requires employers to conduct wage and hour audits prior to December 31

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Ledbetter Basics

• Overturns Supreme Court case requiring pay claims be filed within 180 days of initial decision

• Restarts time limit every paycheck• The freak out:

– Expanding to “other discriminatory practices” (e.g., demotion, promotion)?

– Expanding to nonemployees (e.g., spouse)?

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What is the HITECH Act?

a. Stands for Halt Illegal Technology and Electronic Crimes Hastily

b. Imposes new requirements related to personal health information

c. Prohibits Facebook, Twitter and anything else fun in the workplace

d. Expands Title VII to include “geekishness” as protected class

e. Gives public employees a recognized “right of privacy” in electronic communications

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HITECH ACT

• New personal health information (PHI) requirements

– Breach notices to plan participants, HHS and possibly even the media

– Enforcement started February 22• What should employers do?

– Revise HIPAA policies and procedures– Implement a breach response plan– Discuss the plan with business

associates and negotiate modifications to existing business associate agreements

– Train employees

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In addition to all the health care changes, what else does PPACA require?

a. All U.S. citizens to move to Canada

b. Extension of the COBRA subsidy to 12-31-10

c. Breaks for nursing mothers

d. All of the above

e. None of the above

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Which of the following is NOT real?

a. New machine called Pepper Mouth that emits a foul odor when employees use foul language

b. New TV show called The Naked Office in which employees are encouraged to get naked to help resolve workplace disputes

c. Online service that provides fake references for a small fee

d. A banker who claimed she was discriminated against because she was “too hot” for the workplace

e. A Hooters employee who claimed she was discriminated against because she was too big to fit into the uniform (which consists solely of the following sizes: S, XS, XXS)

f. Green cards will actually be green again

g. All of the above are very real

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47

What Else Is New?

• HIRE Act: payroll tax “holiday”

• Mental Health Parity Act

• New EEOC opinions on credit checks and education

• New from the DOL:

– Searchable enforcement tool

– H-1B and union elections advisors

– Wage, safety and EEO compliance coming soon?


Manpower

48 Everything About Employment Law

Update handbook, policies,

forms, posters and training

NOW!

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What’s

NEXT?

Manpower


What Presidential appointment is freaking out lots of employment lawyers

because of what it could mean for the future?

Manpower


BECKERTO NLRB

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Who Needs Congress?

• “The NLRB has the ability to unduly increase union power and leverage without intervention by Congress.”(U.S. Chamber of Commerce)

• Bush-era decisions at risk

– E-mail organizing rules

– “Salts”

– “Supervisor” definition

– Extraordinary remedies

• EFCA?

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POLL: Women now make up the majority of the workforce and the vast majority of college attendees. The U.S. will soon be more than 50% nonwhite. An African-American has ascended to the presidency. So, when will Title VII be repealed?

a. By the end of the year

b. By the end of the decade

c. By 2030

d. By 2050

e. Never

Manpower


After the Mancession: Women @ Work

• 50.3% of workforce

• 57% of college students

• 40% of #1 breadwinners

• 77¢ for every $1 (up from 58¢ in 1972)

• Only 3% of CEOs and 13% of executive officers

• Barriers to female success gone?

– Men: 60% “yes”

– Women: 50% “yes”

Sources: Bureau of Labor Statistics, Catalyst, TIME Magazine

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55

Potential Legislation

• Employment Non-discrimination Act (ENDA): bars discrimination based on sexual orientation or gender identity

• Protecting Older Workers Against Discrimination Act: reverses Gross – age a (versus the) factor

• Healthy Families Act: employers with 15 or more employees must provide seven days paid sick leave a year

• Arbitration Fairness Act: bars arbitration of employment disputes (except in collective bargaining agreements)

• Paycheck Fairness Act: shifts burden to employers to prove that pay differences are not gender-based

Everything About Employment Law?

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56


• Fair Pay Act: prohibits employers from discriminating based on sex, race or national origin if jobs are “equivalent”

• Security and Financial Empowerment (SAFE) Act: bans discrimination against victims of domestic violence, sexual assault and stalking

• Family-friendly Workplace Act: provides employees with compensatory time off

• Working Families Flexibility Act: permits employees to make an annual request to modify work schedule and location

• Breastfeeding Promotion Act: amends the Pregnancy Discrimination Act to include lactation


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57


• Equal Employment Act for All: prohibits employers from using consumer reports to make employment decisions

• Forewarn Act: expands WARN to include more employers and requires 90 days’ notice

• Alert Laid Off Employees in a Reasonable Time (ALERT) Act: expands definition of “mass layoff” under WARN

• Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act: permits employers to pay union employees more than collective bargaining agreement provides


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58


More FMLA Amendments

• Include employers with 25 or more employees

• Create leave for:

– part-time employees

– child’s or grandchild’s school activities

– child’s or elderly relative’s medical appointments

– care for same-sex spouse, domestic partner, parent-in-law, adult child, sibling or grandparent

– issues related to domestic violence and sexual assault


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Technology

BYTES

Manpower


What percentage of men have viewed Internet porn at work?

a. .07%b. 2.9%c. 14%d. 25%e. 33%f. 118%

Manpower


What percentage of men have viewed Internet porn at work?

a. .07%b. 2.9%c. 14%d. 25%e. 33%f. 118%

Source: Harris Interactive

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1 out of every ___ employees have forwarded a sex-related email at work.

a. 50b. 10c. 7d. 3e. 2f. 1

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1 out of every ___ employees have forwarded a sex-related email at work.

a. 50b. 10c. 7d. 3e. 2f. 1

Source: Harris Interactive

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Can my company monitor employee email and Internet usage and take employment action based on that monitoring?

a. Yes

b. Yes, if the employee signed a consent form consistent with either the model contract and/or safe harbor provisions of NRPA (National Right to Privacy Act)

c. It depends on whether the company has a policy deflating any expectation of privacy and whether it’s consistently enforced

d. No

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66

Tech @ Work


• Social networking more than doubled in the past year

• 90% of employees surf the ‘Net

• 47% spend more than 30 minutes on-line

• 45% use social media to screen candidates

• 40% block access to social networking sites

• 25% have disciplined employees for social media abuse

Sources: Consumer Reports, Vault.com, Manpower Employment Blawg, Wall Street Journal, Challenger, Gray & Christmas, Harris Interactive, Fulbright & Jaworski, Society of Corporate Compliance & Ethics

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67

Tech @ Court

• Think hard before you hit “delete”• Think hard before you hit “send”• Beware the Stored Communications Act (SCA):

Don’t steal employee social networking passwords• Don’t intercept employee communications while they’re

being made• Disclose if blogger is hawking your products or services


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Get Social

• Sad stats– 90% of policies out-of-date– 40% of HR not “social”

• Talk to a teenager• Adopt and enforce reasonable policy• Train employees

– “Mom Test”: permanent record– Harassment is harassment

• “Intelligence”: job-related, job-related, job-related• Sample social media policy

Sources: Challenger, Gray & Christmas, Harris Interactive, Fulbright & Jaworski

Manpower

69Doing Good While Doing Well

April 11, 2023

The OfficialYou Made It

Halfway Thru the Presentation

PLEDGE

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Wage &

HOUR

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71

How do you determine if an independent contractor is really an independent contractor?

a. It depends on a confusing, ambiguous multi-factor test dependent on behavioral and financial control and the parties’ overall relationship that differs in worker’s compensation, tax and other contexts

b. It is the employer’s option to choose either status, depending on which is more advantageous from a tax perspective

c. It is the employee’s option to choose

d. Under the newly passed Contractor Clarification Law, a person can be an independent contractor only if he or she (1) is separately incorporated, (2) provides services to other companies and (3) works in a recognized “profession” as defined under the law


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72

How do you determine if an independent contractor is really an independent contractor?

a. It depends on a confusing, ambiguous multi-factor test dependent on behavioral and financial control and the parties’ overall relationship that differs in workers’ compensation, tax and other contexts

b. It is the employer’s option to choose either status, depending on which is more advantageous from a tax perspective

c. It is the employee’s option to choose

d. Under the newly passed Contractor Clarification Law, a person can be an independent contractor only if he or she (1) is separately incorporated, (2) provides services to other companies and (3) works in a recognized “profession” as defined under the law


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73

Independent Contractor

• KEY: CONTROL – behavioral and financial

• DOL’s control factors:

– Permanency of relationship

– Contractor’s investment in equipment, etc.

– Contractor’s opportunity for profit or loss

– Contractor’s independent judgment and initiative

– Whether services are integral to employer’s business


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74

When is an unpaid intern really an intern?

a. Training given to the intern is similar to academic institution

b. Training is for the benefit of the interns, not the employer

c. Interns don’t displace regular employees

d. Interns aren’t entitled to a job at the end of the training

e. Both employer and interns understand that they aren’t entitled to compensation

f. If all of the above are true

g. If any of the above are true


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75

When is an unpaid intern really an intern?

a. Training given to the intern is similar to academic institution

b. Training is for the benefit of the interns, not the employer

c. Interns don’t displace regular employees

d. Interns aren’t entitled to a job at the end of the training

e. Both employer and interns understand that they aren’t entitled to compensation

f. If all of the above are true

g. If any of the above are true


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76

Pay or not pay?

a. On-call time

b. Commute time

c. Wait time

d. Changing into and out of uniform if required at work

e. Donning and doffing safety gear

f. Walking between changing and production areas

g. Rest periods of 30 minutes or less

h. Bona fide meal periods of 30 minutes or more

i. Travel during the course of the work day

j. Travel outside work hours


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77

Pay or not pay?

a. On-call time

b. Commute time

c. Wait time

d. Changing in and out of uniform if required at work

e. Donning and doffing safety gear

f. Walking between changing and production areas

g. Rest periods of 30 minutes or less

h. Bona fide meal periods of 30 minutes or more

i. Travel during the course of the workday

j. Travel outside work hours


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78

A training session is voluntary, outside of normal work hours, not directly job-related and employees perform no productive work. Is that time compensable?

a. Yes

b. No


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79

A training session is voluntary, outside of normal work hours, not directly job-related and employees perform no productive work. Is that time compensable?

a. Yes

b. No


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80

Exempt or Non-exempt?

• Follow the tests, not assumptions

• Job titles, descriptions and salary aren’t conclusive

• If make sweeping changes, be very careful –back pay claims, increased OT costs, morale

• Beware state law


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What Does the FLSA Require?

• Minimum wage• Overtime unless exempt• 1.5 times regular rate for 40+

hours• Restriction of minors’ jobs/hours

What Is the “Regular Rate”?

The total amount earned in aparticular workweek divided by thenumber of hours worked

What Records Must Be Kept?

• Wages paid and hours worked by non-exempt employees

• Keep for 3 years

What Are the Potential Penalties?

• Class action• Back pay• Overtime pay• Monetary fines• Punitive damages• Injunctive relief• Criminal penalties• Attorneys’ fees

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When Is an Employee Exempt?

Employees must be paid the minimum specified by statute and (except for the computer exemption) be salaried

• Executive- Primarily engaged in management- Direct 2 or more FTEs- Authorized to affect terms and conditions of other employees through hiring, firing, etc.

• Administrative- Office or non-manual work related to general business operations- Independent judgment and discretion in significant matters

• Professional- Functions that require advanced knowledge in a field of science or learning

• Computer- Functions that require application of systems analysis techniques, design or development of computer systems or programs, or the creation or modification of programs relating to operating systems

• Outside Sales- Make sales and regularly work away from the employer’s business

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April 11, 2023

Fun with

UNIONS

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84

Union Membership

• Lost 834,000 private sector jobs last year

• 7.2% (down from 7.6%) of private sector jobs

• First time: majority of union members are in public sector

• Evidence for EFCA?

• Increased organizing?

(Source: Bureau of Labor Statistics)


Manpower


What does the word “spit” have to do with union organizing?

Manpower


What does the word “spit” have to do with union organizing?

Don’t do it. NO . . .

SpyingPromisesInterrogationThreats

Manpower


In seeking to represent a unit of 100 employees, what is the least number of votes a union could receive and still win an NLRB election?

a. 1

b. 30

c. 50

d. 51

e. 67

Manpower


April 11, 2023

Medical

ISSUES

Manpower


Which of the following increase your chances of getting sued under GINA?

a. Including questions about family medical history on your application

b. Terminating an employee after a positive test

c. Commingling medical and other information

d. Asking too many ?s about medical issues

e. Discriminating against employees named Gina

f. All of the above except “e”

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92

GINA (Genetic Information Nondiscrimination Act)

Generally prohibits:

• Employers from (1) collecting genetic info and (2) discriminating based on genetic info

• Health insurers/plans from (1) requiring genetic testing and (2) discriminating based on genetic info

• Retaliation


Manpower


An employee comes into your office at 4:58 on a Friday afternoon and 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 I.V. 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?

Manpower


An employee comes into your office at 4:58 on a Friday afternoon and 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 I.V. 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?

The Job Accommodation Network (JAN)

800-526-7234

jan.wvu.edu

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Don’t Wait,

INVESTIGATE

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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

Manpower


Following 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: recent research shows that 94% of all complaints are frivolous

b. You get a big raise and a promotion for sparing execs the hassle and embarrassment of getting investigated

c. You get fired after the company pays a big settlement based in part on your failure to conduct an appropriate investigation

Manpower


STEP 1: PREPARE

P lan the investigation strategy

R eview relevant policies and handbook provisions

E valuate pros and cons of investigation

P ick a competent and impartial investigator

A nalyze potential risk factors

R eview allegations and prep list of witnesses and ?s

E stablish a confidential investigation file

Manpower


STEP 2: INVESTIGATE

I nterview the complaining employee first

N ow – don’t procrastinate

V iew the site of the alleged incident

E ach relevant witness identified by the complaining party should be interviewed

S upervisors should be involved to provide context

T ake the time to gather all potentially relevant evidence

Manpower


STEP 2: INVESTIGATE

I nterview the accused

G ather any potentially mitigating evidence and talk to witnesses identified by the accused

A nalyze all the evidence objectively

T alk to an attorney about any potential legal issues

E nd the investigation with a written report and appropriate communication

Manpower


How to

FIREwithout getting fired

Manpower


Who files more lawsuits: rejected applicants or terminated employees?

a. Rejected applicants

b. Terminated employees

Manpower


Who files more lawsuits: rejected applicants or terminated employees?

a. Rejected applicants (3% of lawsuits)

b. Terminated employees (80% of lawsuits)

Manpower


TERMINATION TEST: 6 QUESTIONS

1. Notice: Did the company give reasonable notice of the consequences of the conduct?

2. Rule: Is the rule reasonably related to (a) orderly, efficient and safe operations and (b) performance the company should reasonably expect?

3. Investigation: Did the company conduct a full, fair and timely investigation into the facts?

4. Proof: Is there sufficient evidence that the employee is guilty as charged?

5. Consistency: Has the company applied the rule consistently to all employees?

6. Penalty: Does the punishment fit the crime, considering (a) the seriousness of the offense and (b) the employee’s service record?

Manpower


Lightning

ROUND

Manpower


You can fire only one employee from TV’s The Office. Whom should you fire first to reduce legal risk?

a. Jim, office prankster who’s married to a co-worker

b. Toby, hapless HR “professional” who never enforces a single policy

c. Dwight, bobble-headed salesperson who brings weapons and dead animals to work

d. Michael, manager who disdains everything about HR

e. Andy, violence-prone moron who’s dating/stalking a co-worker

Manpower


What lessons can employers learn from the David Letterman, Bob Barker, Bill O’Reilly, Conan O’Brien and Jay Leno legal sagas?

a. Don’t sleep with your employees

b. If you do, come clean

c. Even if allegations are against a superstaremployee, investigate

d. Carefully craft a communication plan

e. Employment agreements can come back to haunt you

f. All of the above

Manpower


Many employment disputes can be traced back to a lack of leadership. According to research, what is the single most important leadership trait?

a. Charisma

b. Humility

c. Kindness

d. Proactivity

e. Results-driven

f. Height

g. Coordinating accessories

h. Smooth dance moves

Manpower


What does “employment at will” really mean?

Manpower


What does “employment at will” really mean?

Employers may fire an employee at any time for any reason or no reason at all with or without notice, with the following 637 exceptions . . .

Manpower


EMPLOYMENT LAW RED FLAGS

Discrimination• Race / color• National origin / citizenship• Gender• Religion• Age (40+)• Disability• Pregnancy / abortion / in vitro• Military service• Union activity• Disparate Impact• Association• Genetic information

• Marital Status*• Parental status*• Sexual orientation*• Arrest / conviction record*• Lawful off-duty conduct*• Trans-gender identification*• Physical appearance*• State of residence*• Political affiliation*• Lactation*

* = only in some states

Manpower



Breach of Contract• Express (e.g., contract)• Implied (e.g., handbook)

Leave Protection• Medical• Military• Jury duty• Witness duty*• Voting, school functions, bone

marrow / organ donation*

* = only in some states

Tort Claims• Constructive discharge*• Defamation*• Emotional distress*• Assault and battery*• False imprisonment*• Blacklisting*• Malicious prosecution*• Fraud / misrepresentation*• Invasion of privacy*• Negligent hiring / retention*• Good faith and fair dealing*• Violation of public policy*

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Other Risk Areas• Non-competes• Privacy breaches• Plant closing / layoff• Polygraphs• Unions• Benefits

Retaliation• Complaints about discrimination,

safety, working conditions, wages, etc.• Participating in an investigation,

proceeding or hearing

Retaliation (cont’d)• Union organizing or other

“protected concerted” activity• Workers’ comp claims• ERISA rights• Wage garnishment, bad credit or

bankruptcy• Demanding personnel file• “Whistle-blowing,” refusing

polygraph or exercising other legal rights

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EMPLOYMENT LAW GREEN FLAGS

KEY: legitimate job-related business reasons

• Poor Performance: failure to meet clearly articulated expectations despite opportunities to improve

• Gross or Repeated Misconduct: major or repeated violations of work rules

• Breach of Contract: failure to perform a material term or condition

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April 11, 2023

LOVEYour Employees

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121

STRESSSSSSSSSSSSSSSSSSSSSSSSSSS

• Average workweek: up 32% over past 25 years

• Time spent in traffic: up 157%

• 40% are sleep-deprived

• 33% of employees are “chronically overworked”

• 80% of medical expenses are now stress-related

(Sources: Harris Interactive, Sage Software Survey, Urban Mobility Report, Business Week, Families and Work Institute, Centers for Disease Control and Prevention)


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STRESSSSSSSSSSSSSSSSSSSSSSSSSSS

• 465 million vacation days were squandered in 2009

• 83% check e-mail at least daily while on vacation

• 1 in 6 employees has exhibited “desk rage”

• The average employee is interrupted 7 times an hour and switches tasks every 3 minutes

(Sources: Expedia.com, AOL, Caravan Opinion Research, TIME Magazine)


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123

More Stress = More Lawsuits

• The Bottom Line: U.S. companies lose between $200-$300 billion a year due to absenteeism, tardiness, burnout, decreased productivity, worker's compensation claims, increased employee turnover and medical insurance costs resulting from employee work-related stress.

• The Lesson: LOVE YOUR EMPLOYEES.

(Source: National Safety Council)


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The OfficialStay Out of Jail

TO DO LIST

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125

STAY OUT OF JAIL “TO DO” LIST Stay on top of the law – it changes every 0.3 seconds Get PROACTIVE -- audit and take action, especially:

Wage & hour Independent contractors I-9s OSHA ADA Privacy

Get REACTIVE -- investigate and document Adopt and enforce a reasonable social media policy Never ever retaliate Manage lawyers and litigation aggressively (but fairly) LOVE YOUR EMPLOYEES


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April 11, 2023

manpowerblogs.com

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Employment Law

SINGALONG

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Employment law can be easyIf you listen you surely won’t fail

We wrote you this songSo please sing along

If you don’tYou could end up in jail

Everything About Employment Law 129

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Don’t put things off ‘til tomorrowYes investigate right away

Don’t procrastinate‘Cause the more that you waitThe more you may have to pay


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Remember this songAnd you’ll never go wrongYes we wish you the best

On your journeysYou’ll stay out of court

And you won’t have to pay no attorneys


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Be honest, consistent and fair nowBe ethical, trustworthy and true

Let your conscience be kingYeah don’t do anything

Your mom wouldn’t want you to do


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Communication’s importantAnd documentation is key

Get all the facts Or you might get the axe

And subpoenas you’ll have to flee


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THANK YOU!

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