Post on 23-Jan-2015
description
Halloween 2013
with
Mark TothChief Legal OfficerNorth America
Halloween 2013
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Halloween 2013
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Halloween 2013
Earning HRCI CreditTo receive 1 HRCI for this webinar, participants must attend the webinar in its entirety (one person per computer).
Halloween 2013
with
Mark TothChief Legal OfficerNorth America
66
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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Reduce your terror level
1010
Keep the monsters away
1111
What Keeps YOU Awake at Night?
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TO
P 1
0 S
CA
RIE
ST
EM
PL
OY
ME
NT
LA
W I
SS
UE
S
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
Source: ManpowerGroup Employment Blawg
1515
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
Source: ManpowerGroup Employment Blawg
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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?
22
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
0 S
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
27
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
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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
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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
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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?
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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.
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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?
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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?
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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.
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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?
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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?
ManpowerGroup | Halloween 201252
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”
ManpowerGroup | Halloween 201253
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”
ManpowerGroup | Halloween 201254
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?
ManpowerGroup | Halloween 201255
Defeat FMLA-o-phobia
ManpowerGroup | Halloween 201256
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.”
ManpowerGroup | Halloween 201257
Maybe (sorry).
ManpowerGroup | Halloween 201258
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
ManpowerGroup | Halloween 201259
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!!!
ManpowerGroup | Halloween 201260
Drug Testing Made Un-scary
Medical Review Officer
Objective,
not subjective
Avoid prescription
bans
Reasonable suspicion
Confidential
ManpowerGroup | Halloween 201261
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
ManpowerGroup | Halloween 201262
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
ManpowerGroup | Halloween 201263
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
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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?
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Tons of Termination Tools & Tips
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FLSA Frights
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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?
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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
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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
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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
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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
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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?
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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
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SM Starter Kit
91
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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Get Sued BIG Now
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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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Open 24 / 7 / 365.25
World’s Most Fabulous
Employment Law
LIBRARY
9898
On the Blawg …
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Coming soon …
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What’s NEW & What’s NEXTFor Employment
Law in 2014
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INSERT NEW ICONTHANK YOU!
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