All New Employment Law Quiz Show

©2010 Manpower Inc.

The All New Employment Law

QUIZ SHOWMark Toth

Chief Legal Officer NAOctober 21, 2010

©2010 Manpower Inc.©2010 Manpower Inc.

2All New Employment Law Quiz Show

Today’s Format

• Shout-outs

• What Are YouThinking?

• Text-o-rama

• Latest News

• Tools & Tips

• “Smartest Person inthe Audience” Quiz


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.



lawsuits

lawsuits

lawsuits


What’s the average employment discrimination jury verdict?

A. $88,451

B. $102,925

C. $183,848

D. $317,032

E. Too high to count



What’s the average employment discrimination jury verdict?

A. $88,451

B. $102,925

C. $183,848

D. $317,032

E. Too high to count


Source: Jury Verdict Research


A. 33%

B. 53%

C. 73%

D. 93%

E. 113%


What percentage of employers expect litigation to increase or stay the same this coming year?


A. 33%

B. 53%

C. 73%

D. 93%

E. 113%Source: Fulbright & Jaworski


What percentage of employers expect litigation to increase or stay the same this coming year?


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



Which type of discrimination case are you least likely to win?

A. Age

B. Disability

C. Pregnancy

D. Race

E. Sex



Which type of discrimination case are you least likely to win?

A. Age

B. Disability

C. Pregnancy

D. Race

E. Sex


Sources: EEOC, Jury Verdict Research


A. Age

B. Disability

C. Race

D. Sex


What discrimination claim is likelyto result in the biggest verdict?


A. Age

B. Disability

C. Race

D. Sex


Sources: Jury Verdict Research, Fulbright & Jaworski

What discrimination claim is likelyto result in the biggest verdict?


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


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?


A. I-9 violations

B. OSHA violations

C. FMLA violations

D. Wage and hour violations

E. Doing business in CaliforniaSources: Littler Mendelson, Seyfarth Shaw, Manpower Employment Blawg


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


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• 200 new Wage & Hour Compliance Officers

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

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



What Should Employers Do?

• Know the law (especially exemption, overtime, break time and independent contract requirements)

• Train managers and employees on time-keeping

• Audit classifications and records

• Address any pay discrepancies immediately

• Limit use of electronic devices during non-work hours, vacations and leaves of absence

• Implement complaint system and investigate promptly and thoroughly



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



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


A. Yes, substantial increase

B. Yes, modest increase

C. No change

D. No, modest decrease

E. No, substantial decrease


QUARTERLY LITIGATION INDEX:Are you seeing an increase inemployment law claims?


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


diversity

diversity

diversity


Diversity training helps diversity.

A. True

B. False



Diversity training helps diversity.

A. True

B. False


Source: American Sociological Review


Anti-diversity Training?

• Review of 30+ years of data from 800+ companies found that mandatory diversity training was followed by a reduction of diversity in management: 12% for black males, 10% for black females and 7.5% for females generally

• Problem isn’t diversity training per se. Problem is the type of mandatory diversity training typically offered by employers — superficial lawyers-made-us-do-it training that is forced on employees to avoid discrimination lawsuits

Sources: American Sociological Review, Harvard University, University of Arizona, The Washington Post, TIME Magazine



So, what does help diversity?

A. Accountability at the top

B. Mentorships

C. Creating a diversity point person or task force

D. Recruiting from a wide variety of sources (e.g., minority colleges)

E. All of the above



So, what does help diversity?

A. Accountability at the top

B. Mentorships

C. Creating a diversity point person or task force

D. Recruiting from a wide variety of sources (e.g., minority colleges)

E. All of the above


Sources: University of Arizona, The Washington Post, TIME Magazine


Frustrated by a continuing lack of diversity in your company, you create metrics to hold managers accountable for promoting diversity, including requirements that a certain % of new hires be diverse candidates. This approach is most likely:

A. Lawful

B. Unlawful



Frustrated by a continuing lack of diversity in your company, you create metrics to hold managers accountable for promoting diversity, including requirements that a certain % of new hires be diverse candidates. This approach is most likely:

A. Lawful

B. Unlawful



Don’t Forget Disability Diversity

• 70% of companies have diversity policies but only 2/3 include disability as a component

• Only 19% have a specific person/department to oversee hiring of persons with disabilities (versus 40% in 1995)

• Only 21% of disabled persons are employed (versus 59% non-disabled)

Sources: Kessler Foundation, National Organization on Disability



technology technology

technology



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



Tech @ Court

• Tweets are forever

• “Sexting” is harassment

• Ignore purely personal communications

• Beware CrackBerry OT

• Don’t forget to hold

• Congress, others targeting Facebook?



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.”




• 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


POLL: Do you use a social networking tool?

A. Yes

B. No

C. What’s social networking?



POLL: If yes, what do you use most?

A. Facebook

B. LinkedIn

C. MySpace

D. Twitter

E. Other




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’s

NEW?


Is there any chance the state lawsuits seeking to block PPACA will succeed?

A. Yes

B. No

C. Maybe



Is there any chance the state lawsuits seeking to block PPACA will succeed?

A. Yes

B. No

C. Maybe



45All New Employment Law Quiz Show 45

• 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.

• The court: “The power that the individual mandate seeks to harness is simply without prior precedent.”

• What about the elections?

Will PPACA Be Sent Packing?


Someone tells you the “Ice Man” is at the door. What does that mean?

A. You will have plenty of ice to keep bratwurst and mixed drinks properly chilled in your workplace

B. The newly created Interstate Council on Employment (ICE) is seeking data on your workforce, including outsourcing, off-shoring and cross-border migration patterns

C. The International Commission on Education (ICE) is about to present you with an award for your novel approach to EEO training which currently consists of proactively and strategically ignoring all employment disputes

D. You’d better hope/pray that your I-9s are fully and lawfully completed




• 2,000+ cases (more than triple the rate before the crackdown)

• 500+ new NOIs (Notice of Intent to Investigate)

• Dozens of debarments (versus 0 pre-crackdown)

• Quadrupled NIFs (Notice of Intent to Fine): $15+ million

• $1+ million fine for Abercrombie & Fitch

Cold Hard ICE Facts



• Follow the law: ensure that all I-9s and supporting documentation are properly filled out and maintained.

• Don’t wait for ICE: audit yourself and take corrective action on any incomplete or defective I-9s in line with ICE and EEOC guidelines.

• Got an NOI? Respond promptly (or seek an extension if you need one). Refrain from tampering with any documents. Keep copies of everything you submit to ICE. Call a lawyer.



There is more discrimination against Muslims now than there was in the year immediately following 9/11.

A. True

B. False



There is more discrimination against Muslims now than there was in the year immediately following 9/11.

A. True

B. FalseSource: EEOC




• Anti-Muslim discrimination claims hit new high of 1,490 last year

• Claims have more than doubled in the past five years and have far surpassed the number filed in the year after 9/11

• Public perception of Muslims has dropped from a 41% favorability rating in 2005 to just 30% now — a decrease of more than 25%.

• “There is a hatred, an open hatred, and a lack of tolerance of people who are Muslim.” (Mary Jo O’Neill, EEOC)

The Facts



EEOC v. JBS USA

• EEOC alleges that supervisors and co-workers “threw blood meat, and bones” at Muslim employees and repeatedly made anti-Muslim offensive comments in the workplace.

• JBS allegedly refused to accommodate prayer-time requests of Muslim employees and then retaliated against them by firing them when they asked that their break times be changed during the Islamic holy month of Ramadan.

The Suits



Boudal v. Disney

• Disney hostess alleges she was sent home when she refused to remove her hijab at work.

• Her lawyer: Disney is “fearful the sight of a hijab would adversely impact its guests.”

• Disney: “We’ve given her the opportunity to work in a backstage role the last several shifts she’s come in.”

• Her lawyer’s rebuttal: “Take a ride on one of your own rides, a little thing called ‘It’s a Small World,’ which celebrates human diversity.”

The Suits



• Don’t tolerate harmful, offensive conduct by your employees that targets any protected class — including Muslims

• Reasonably accommodate religious practices

• Check out EEOC’s online religious accommodation FAQs and Best Employer Practices Guide



Someone tells you the “Ice Man” is at the door. What does that mean?

A. You will have plenty of ice to keep bratwurst and mixed drinks properly chilled in your workplace

B. The newly created Interstate Council on Employment (ICE) is seeking data on your workforce, including outsourcing, off-shoring and cross-border migration patterns

C. The International Commission on Education (ICE) is about to present you with an award for your novel approach to EEO training which currently consists of proactively and strategically ignoring all employment disputes

D. You’d better hope/pray that your I-9s are fully and lawfully completed




An employee comes to you at 4:57 on a Friday afternoon and says, “I’m not making a complaint or anything like that but I think the CEO may be harassing me. But please don’t investigate or anything like that because I fear he’ll retaliate and he’s made some violent threats toward me and I fear for my safety.” What should you do?

A. Don’t investigate

B. Investigate right away

C. Investigate after a “cooling off” period to potential workplace violence

D. Investigate after promising the employee confidentiality to protect him/her

56



An employee comes to you at 4:57 on a Friday afternoon and says, “I’m not making a complaint or anything like that but I think the CEO may be harassing me. But please don’t investigate or anything like that because I fear he’ll retaliate and he’s made some violent threats toward me and I fear for my safety.” What should you do?

A. Don’t investigate

B. Investigate right away

C. Investigate after a “cooling off” period to potential workplace violence

D. Investigate after promising the employee confidentiality to protect him/her

57



• 34% of executive women know a female co-worker who had an affair with her boss

• 15% of women at the director level or above had an affair

• 37% believe that the woman received a “career boost”

• 70% of women (versus 61% of men) lose respect for a leader who has an affair

• 56% of women (48% of men) feel animosity toward the couple

• 65% of women (60% of men) believe that salary increases and other perks are traded for sexual favorsSources: Harvard Business Review; Center for Work-life Policy

Think Harassment is Dead?



• Have a policy that (1) clearly prohibits all forms of unlawful harassment and (2) contains a clear mechanism for reporting potential violations, including alternate paths when the alleged harasser is the complaining party’s boss.

• Train all employees on the policy, with a special emphasis for managers on the dangers of workplace romance (particularly boss-subordinate).

• Fully investigate all complaints, even if (1) the alleged harasser asks you not to and (2) the allegations are against the CEO or a superstar.

• If the investigation warrants disciplinary action, take it (even if it means firing the CEO or superstar).

• Carefully consider any and all communications related to the investigation, particularly if they concern a high-profile employee (and discuss them with experienced legal and PR counsel).

What Employers Should Do



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

B. 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

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

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

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

F. All of the above

What Else is New?



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

B. 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

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

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

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

F. All of the above

What Else is New?



What’s

NEXT?


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

A. Congress

B. EEOC

C. ICE

D. NLRB

E. OSHA



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

A. Congress

B. EEOC

C. ICE

D. NLRB

E. OSHA




NLRB Process

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

• Case decisions: slow, narrow, easy to reverse

• GC Memoranda: fast, very narrow, easy to reverse

• Rulemaking: fast, broad, hard to reverse



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



Timing is Everything

• No action before November elections

• Lots of action between April and December 2011– If Democrats maintain control over one or both houses =

NLRB more aggressive

– If Republicans win control of Congress =NLRB more restrained



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

69


A. Yes

B. No

C. Maybe


Is obesity discrimination illegal?

A. Yes

B. No

C. Maybe


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



POLL: Should obesity discrimination be illegal?

A. Yes

B. No




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

75


What’s Next On theEEOC Hit List?

• Grooming/dress?

• Criminal background?

• Credit history?

• Bullying?

• Baldness?



What’s Next With the Supremes?

• Informal Complaints. Does retaliation protection extend to unwritten verbal complaints? (Kasten v. Saint-Gobain Performance Plastics)

• “Associational” Discrimination. Does retaliation protection extend to an employee’s fiancé who alleges that he was terminated after she filed a discrimination complaint? (Thompson v. North American Stainless)

• “Cat’s Paw” Liability. When is an employer liable for the unlawful intent of “bad actors” who caused or influenced — but did not make — an employment decision? (Staub v. Proctor Hospital)



employees

employees

employees


Your employees are thinking about leaving your company right now.


A. True

B. False


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


83All New Employment Law Quiz Show 83All New Employment Law Quiz Show

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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Smartest Personin the Audience

QUIZ


A.Hiring

B.Medical issues

C. RIFs/Terminations

D. Technology

E.Wage and hour


QUARTERLY EMPLOYMENT LAW THERMOMETER:Which employment law issue currently gives you the most headaches?



THANK

YOU!

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