Employment Law Talk Show

with

Mark TothChief Legal OfficerNorth America

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with

Mark TothChief Legal OfficerNorth America

Today’s Webinar Designer: YOUWhat YOU Want Us To Talk About

What YOU Really Need to Know

YOUR Questions

YOUR 187% Free Resources

YOUR Chance to Win Valuable Prizes

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

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What YOU Want Us To Talk About

Employment Law Thermometer

Wage & Hour

Latest Developments

Unions

Investigations

Terminations

Litigation Prevention/Management

SM @ Work

Hiring

Medical Leave

Outside Counsel Management

Source: ManpowerGroup Employment Blawg

1

2

3

4

5

6

7

8

9

10

Is complying with employment laws getting easier or harder?

Question

Really very extremely easier

Somewhat easier

No change

Somewhat harder

Really very extremely harder

0.1%

3.1%

22.1%

61.4%

13.3%

Are you seeing an increase inemployment law claims?

Question

Yes, substantial increase

Yes, moderate increase

No change

No, moderate decrease

No, substantial decrease

3.3%

28.7%

65.9%

2.1%

0.0%

Tweet-o-Rama@manpowerblawg

If you had to boil all ofemployment law down

to one word, whatwould it be?

What YOU Really Need to Know

QTell us all we reeeally need to know about the latest world of work legal developments in 10 minutes or less (please).

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

Text-o-Rama

414.751.0126

Your first name + answer

Text-o-Rama

414.751.0126

The answer: FALSE

YOUR Questions:Wage & Hour

What ONE THING should I

do right after this webinar to avoid my company becoming the next wage and hour class action victim?

Q

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/

Exemption BasicsExecutive• Primarily engaged in management• Direct 2 or more FTEs• Authorized to affect terms and conditions of others 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

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

YOUR Questions: Unions

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

A. True

B. False

The NLRB only has jurisdiction over unionized companies.

A. True

B. False

True or False?

Can you explain all the NLRB appointment shenanigans? Who’s on the Board now, who’s not and why should employers care? Also, is it true that all of the Board’s decisions of the past few years are invalid due to unconstitutional appointments?

Q

It seems like the government keeps changing its position on what employers can and can’t do when it comes to social media. Can you sort it all out in one handy slide (please)?

Q

Every Social Media Case On 1 Slide

“Protected concerted activity”

Union or non-union

> 1

Wages / work conditions

Same in cyberspace

So what are employers reeeally using social media for?Q

To Find Bad Stuff

50%: Inappropriate photos/info

48%: Drug /alcohol use

33%: Bad-mouthing prior employer

30%: Bad communication skills

28%: Discriminatory comments

ManpowerGroup | Halloween 2012

YOUR Questions:Investigations


I’m thoroughly confused about the new rules on investigation confidentiality. What’s the deal?

Q


Investigation Confidentiality

Witness Protection

Evidence Destruction/Fabrication

Cover-up

Duration of Investigation

Company Time/Property


OK, I admit it. I’m an HR person who doesn’t really know all the steps in a good investigation. Please don’t tell my boss. Where can I find a handy guide to investigations that can help keep me from getting fired?

Q


Investigation ChecklistStep One: PreparePlan the investigation strategy

Review relevant policies and handbook provisions

Evaluate pros and cons of investigation

Pick a competent and impartial investigator

Analyze potential risk factors

Review allegations and prep list of witnesses and questions

Establish a confidential investigation file


Step Two: InvestigateInterview the complaining employee first

Now – don’t procrastinate

View the site of the alleged incident

Each relevant witness identified by the complaining party should be interviewed

Supervisors should be involved to provide context

Take the time to gather all potentially relevant evidence

Interview the accused

Gather potentially mitigating evidence and talk to witnesses named by accused

Analyze all the evidence objectively

Talk to an attorney about any potential legal issues

End the investigation with a written report and appropriate communication

Investigation Checklist

YOU be the judgeWho wins?

A. Employer

B. Employee

C. Neither

Who wins?

A. Employer

B. Employee

C. Neither

YOU be the judge

YOUR Questions:Terminations

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

Termination ReviewEmployee Handbook

Employment Agreement

Collective Bargaining Agreement

Personnel File

Performance Appraisals

Discipline Notices

Manager Notes

ALL other relevant docs

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

Termination MeetingManager, HR, no 3rd parties (except union rep). Security? Outplacement?

Manager: decision. HR: all else. Final pay + notice (some states).

In person. Not manager’s office. No projectiles.

Mid-week #1, Friday #2, Monday worst. End of day #1, morning #2. Avoid holidays.

Compassionate.

Who?

What?

Where?

When?

How?

LIGHTNING Round

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


ADA How NOT To

Have an inflexible

leave policy

Make snap judgments

Don’t interact

Don’t accommodate

Put dumb stuff in writing


THE

INTERACTIVEDANCE

Discuss Discuss

Discuss Discuss


Making Intermittent Leave Simple

Notice, 7 days to cureIncomplete Certification

Clarify/authenticate HR, not supervisor

ContactProvider

Recert from original provider OR employer-paid 2nd opinion

Recert or

2nd Option

If conflict, final & binding3rd

Option


EEOC

Hiring

Pregnancy

Harassment

VulnerableWorkers

Accessto LegalSystem

ADA

LGBT

Stay out of Jail ACTION PLAN

Prison-free Plan KNOW THE LAW

USE THE INVESTIGATION CHECKLIST

FOLLOW THE TERMINATION TIPS

LOVE YOUR EMPLOYEES

FOCUS ON KEY PRIORITIES

Known violationsSystemic issuesWage & hourEEOC priorities

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CONTEST

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

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

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

Don’t put things off til tomorrowYes investigate right away

Don’t procrastinateCuz the more that you wait

The more you will have to pay

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

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Employment Law Talk Show

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Transcript of Employment Law Talk Show