Toledo - All New Employment Law Quiz Show

©2010 Manpower Inc.

The All New Employment Law

QUIZ SHOWMark Toth

Chief Legal Officer NANovember 16, 2010

©2010 Manpower Inc.©2010 Manpower Inc.

2Toledo HR Association

Today’s Agenda

• “Smartest Person In the Audience” Quiz Show• $584 billion in tools & tips• What’s new? What’s next?• Stay Out of Jail “To Do” List• Employment Law Sing-along Song


3

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.



4Everything About Employment Law

Smartest Personin the Audience

QUIZSHOW


5Doing Good While Doing Well

April 18, 2023

Deep Philosophical

QUESTIONS



1 point (If at least semi-humorous)

Know any goodlawyer jokes?



Top 3 Lawyer Jokes Of All Time

What do you call 99 skydiving lawyers?





Skeet.





Skeet.

How many lawyers does it take to shingle a roof?





Skeet.


Depends how thin you slice ‘em.





Skeet.



Why does California have the most lawyers and New Jersey the most toxic waste dumps?





Skeet.



Why does California have the most lawyers and New Jersey the most toxic waste dumps?

New Jersey got first pick.


lawsuits

lawsuits

lawsuits



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


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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

Source: Fulbright & Jaworski




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

A. 55

B. 197

C. 362

D. 500

E. Too high to count


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

A. 55

B. 197

C. 362

D. 500


Source: Council on Education in Management




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

A. 1 million

B. 1,000

C. 100

D. 10

E. 5



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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What’s the average employment discrimination jury verdict?

A. $88,451

B. $102,925

C. $183,848

D. $317,032




What’s the average employment discrimination jury verdict?

A. $88,451

B. $102,925

C. $183,848

D. $317,032


Source: Jury Verdict Research



What is the #1 most common discrimination claim?

A. Age

B. Disability

C. Race

D. Sex



What is the #1 most common discrimination claim?

A. Age

B. Disability

C. Race

D. SexSources: Jury Verdict Research, EEOC



What are an employer’sodds of winning at trial?


A. It is unlawful for employers to win

B. 22%

C. 42%

D. 62%

E. 82%


What are an employer’sodds of winning at trial?


A. It is unlawful for employers to win

B. 22%

C. 42%

D. 62%

E. 82%Source: Jury Verdict Research


What’s the best way to keep your employment litigation costs from bankrupting your organization?


A. Require all employees to signmandatory arbitration agreements

B. Take a “no settlement” approach to litigation

C. Require law firms to adhere tobilling guidelines, budgets and fixed fees

D. Move your business to Antarcticaso that you’ll have no employeesand thus no lawsuits



What’s

NEW?



What three words starting with the letter “e” best

describe the government’s current approach to employment law?


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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

Toledo HR Association 30


A. I-9 violations

B. OSHA violations

C. FMLA violations

D. Wage and hour violations

E. Doing business in California


Which of the following is most likely to result in a humongous class action?



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


Class Action Facts

• EEOC aggressively pursuing “systemic relief”

• 3,500+ class actions last year

• 500+% increase versus 2000

• 300+% increase in CA

• Nearly 90% are wage and hour

Sources: EEOC, Littler Mendelson, Department of Labor, Manpower Employment Blawg




How to Get Sued by the EEOC

• Don’t address potentially systemic discrimination

• Don’t adequately investigate complaints

• Don’t train managers

• Don’t follow your own policies

• Don’t fire “bad actor” execs

• Retaliate

• Act in bad faith



Is “looksism” illegal?

A. Yes

B. No

C. Maybe

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Is “looksism” illegal?

A. Yes

B. No

C. Maybe

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Looksism: Recent Cases

• Too hot for banking?• Too ugly for Abercrombie & Fitch?• S, XS or XXS??

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Looksism: Recent Stats

• Looks: #3 most important success factor• 68% say looks affects performance perception• 2/3 would hesitate to hire an overweight candidate• 84% would hesitate to hire candidate who looks

“significantly older” than co-workers• 46% favor anti-looksism law

KEY: JOB-RELATED, JOB-RELATED, JOB-RELATED

Source: Business Week

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A. Yes

B. No

C. Maybe


Is obesity discrimination illegal?

A. Yes

B. No

C. Maybe


The Facts on Obesity

• Weight discrimination is more common than discrimination based on disability, religion, national origin and sexual orientation (and only slightly less common than race, gender and age discrimination)

• Women are twice as likely as men to face weight discrimination

• Obesity costs U.S. employers $73 billion each year in medical costs, lost productivity and absenteeism

Sources: Duke University, Yale University



The Law on Obesity

• No federal law includes obesity as protected class

• Michigan and a few municipalities (e.g., San Francisco and Washington, D.C.) prohibit obesity discrimination

• Workplace weight standards could constitute disparate treatment discrimination if they adversely impact women

• EEOC: new suit alleges obesity is covered under ADA



43Toledo HR Association 43

A. The EEOC issued regulations implementing the Genetic Information Nondiscrimination Act (GINA)

B. The DOL issued a rule that will require employers to publish 401(k) fees and expenses

C. The IRS delayed the PPACA requirement that employers provide the aggregate cost of “applicable employer-sponsored coverage” on W-2 Forms starting Jan. 1, 2011

D. OSHA fines will likely increase due to new enhanced penalty procedures

E. It’s now easier for unions to obtain injunctions during union elections

F. The government issued a new toolkit to help employees with disabilities return to work

G. All of the above

What Else is New?



A. The EEOC issued regulations implementing the Genetic Information Nondiscrimination Act (GINA)

B. The DOL issued a rule that will require employers to publish 401(k) fees and expenses

C. The IRS delayed the PPACA requirement that employers provide the aggregate cost of “applicable employer-sponsored coverage” on W-2 Forms starting Jan. 1, 2011

D. OSHA fines will likely increase due to new enhanced penalty procedures

E. It’s now easier for unions to obtain injunctions during union elections

F. The government issued a new toolkit to help employees with disabilities return to work

G. All of the above

What Else is New?



A. New machine called Pepper Mouth that emitsa foul odor when employees use foul language

B. New TV show called The Naked Office inwhich employees are encouraged to getnaked to help resolve workplace disputes

C. Online service that provides fakereferences for a small fee

D. Green cards will actually be green again

E. All of the above are very real

Which of the following is NOT real?


technology technology

technology



What percentage of men have viewed Internet porn at work?

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



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



1 out of every ___ employees has forwarded a sex-related e-mail at work.

A. 50B. 10C. 7D. 3E. 2F. 1



1 out of every ___ employees has forwarded a sex-related e-mail 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



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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Tech @ Work

• 90% of policies are out-of-date

• 90% of employees surf the ‘Net

• 80% use social media to screen candidates

• 70% have rejected applicants based on online info

• 70% text while driving (23 times more likely to crash)

• 50% ignore social media bans

• 47% spend more than 30 minutes on-line

• 40% block access to social networking sites

• 25% change security settings to enhance socializing

• 21% would turn down a job if unsocial

• 84,000+ companies on Glassdoor.com (even the CIA)

Sources: Consumer Reports, Vault.com, Wall Street Journal, Challenger, Gray & Christmas, Harris Interactive, Fulbright & Jaworski,Society of Corporate Compliance & Ethics, Cisco, Clearswift, Jobvite, Microsoft, Virginia Tech Driving Institute, Glassdoor.com


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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 communications while being made• Disclose if blogger is hawking your products or services• “Sexting” is harassment• Beware CrackBerry OT




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 deleted] great”D. “I’m really bummed that I’m working today, i asked off so i

could study but my boss is a [expletive deleted] who can’t read.”

E. “Coworker smuggled out a chair for me. Currently being paid to SIT around . . . I don’t hate my job today!”

F. “I am working really hard right now and feel very fortunate to have a job.”



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 deleted] great”D. “I’m really bummed that I’m working today, i asked off so i

could study but my boss is a [expletive deleted] who can’t read.”

E. “Coworker smuggled out a chair for me. Currently being paid to SIT around . . . I don’t hate my job today!”

F. “I am working really hard right now and feel very fortunate to have a job.”

Source: CNN, TwiTip.com



What Should Employers Do?

• Implement a reasonable policy• Consistently enforce it• Train employees• Monitor OT• Hold everything during litigation• Disclose if a blogger is selling• Don’t steal social networking passwords• Don’t intercept communications while being made• Focus: job-related, job-related, job-related• Visit the Blawg



What’s

NEXT?


Will PPACA go away?

A. Yes

B. No

C. Maybe




• Republicans probably won’t repeal but could block funding

• Suit filed by sixteen state AGs, four governors, the National Federation of Independent Business and others

• Florida federal court refused to dismiss claims that the law is unconstitutional on the grounds that (1) the individual mandate exceeds Congress’ authority and (2) its expansion of Medicaid constitutes unconstitutional coercion.

Will PPACA Be Sent Packing?


A. Congress

B. EEOC

C. ICE

D. NLRB

E. OSHA


Which of the following should frighten employers the most right now?



NLRB Members

• Democratic majority for the first time since 2001

• Democrats

– Chair: Wilma Liebman (called NLRB an “ossified” statute that needs change)

– Craig Becker (recess appointment, former SEIU and AFL-CIO lawyer and strong EFCA proponent)

– Mark Pearce (recess appointment, former union attorney)

• Republicans

– Brian Hayes (R)

• One vacancy



Who Needs Congress?• “Back Door” EFCA?

– Card check?– Fast-track elections?– Union access to company property?– Prohibiting “captive audience” meetings?– Binding fast-track arbitration?

• Other Bush-era decisions at risk

– E-mail organizing rules

– “Salts”

– “Supervisor” definition

– Representation of non-union employees in disciplinary interview

– Extraordinary remedies



What’s up with thePaycheck Fairness Act?

A. It became effective July 1

B. It goes into effect January 1

C. It’s awaiting the President’ssignature

D. It’s officially up for consideration

E. It’s officially dead

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What’s up with thePaycheck Fairness Act?

A. It became effective July 1

B. It goes into effect January 1

C. It’s awaiting the President’ssignature

D. It’s officially up for consideration

E. It’s officially dead

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What’s Next On theEEOC Hit List?

• Grooming/dress?

• Criminal background?

• Credit history?

• Bullying?

• Baldness?




Medical

ISSUES



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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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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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




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?

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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?

JOB ACCOMMODATION NETWORK (JAN)

800-526-7234

jan.wvu.edu

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Wage &

HOUR


77

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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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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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



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




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



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


employees

employees

employees


Your employees are thinking about leaving your company right now.


A. True

B. False


80% of employers expect fewer than

5% of their employees to leave

voluntarily in 2010

Source: Manpower



Source: Right Management


60%

of current employees intend to pursue new job

opportunities when the economy improves



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

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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

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If you had to boil all of employment law,

HR and management best practices down into

one simple word,what would it be?


LOVE


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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)

Toledo HR Association


93

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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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)




The OfficialStay Out of Jail

TO DO LIST


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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– Technology

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




manpowerblogs.com


FREE TOOLS

• BLAWG– Cheat Sheets– Checklists– Employment Law News– Employment Law Library– Weekly Office Analysis– Question of the Week

• ALERT• TWITTER @manpowerblawg




Employment Law

SING-ALONG


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

100


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

101


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

102


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

103





104


Communication’s importantAnd documentation is key

Get all the facts Or you might get the axe

And subpoenas you’ll have to flee

105





106



THANK

YOU!

Toledo - All New Employment Law Quiz Show

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