Answers to the Scariest Employment Law Questions

Halloween 2012

with

Mark TothChief Legal OfficerNorth America

Halloween 2012

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Halloween 2012

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Halloween 2012

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Halloween 2012

with

Mark TothChief Legal OfficerNorth America

ManpowerGroup | April 18, 2023 6

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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Today’s webinar is brought to you by

YOU


What Keeps YOUUp at

Night?

Scary ???s

Answered

Twickor

Tweet?

ELGreat

Pumpkins

How to Get Sued

BIGNow

LeastZombie-

ish Contest

Reduce your terror level


Keep the monsters away


What Keeps YOU Awake at Night?

ManpowerGroup | April 18, 2023 12Source: ManpowerGroup Employment Blawg

Really very extremely scarier

Somewhat scarier

No change

Somewhat easier

Really very extremely easier

65%

21%

13%

1%

0%

Is complying with employment laws getting scarier or easier?

Question


No, substantial decrease

No, moderate decrease

No change

Yes, moderate increase

Yes, substantial increase

1%

1%

64%

32%

2%

Are you seeing an increase in employment law claims?

Question

Source: ManpowerGroup Employment Blawg


1. ADA (32.0%)

2. FMLA (20.9%)

3. FLSA (19.3%)

4. NLRA (14.6%)

5. Title VII (12.7%)

6. HIPAA (6.0%)

7. OSHA (5.4%)

8. USERRA (2.8%)

9. ADEA (2.5%)

10. COBRA (1.6%)TO

P 1

0 S

CA

RIE

ST

EM

PL

OY

ME

NT

LA

WS

Source: ManpowerGroup Employment Blawg


What spooks youmost about theworld of workheading into

2013?


Everything.


de-spook-ify


The BIG Answer


Tweet-o-Rama@manpowerblawg

If you had to boil all of employment law down

to one word, what would it be?


Scary

QTimes are tough, man. I could use a little levity. Please share something dumb from the wonderful world of work that will help me feel smart by comparison.


“I forgot you hired me.”

“My toe was stuck in a faucet.”

“I was upset after watching The Hunger Games.”

“My dog had a nervous breakdown."

“I was bitten by a bird.”

“My sobriety tool kept my car from starting.”

“My hair turned orange.”

“I was sick from reading too much.”

“I was suffering from a broken heart.”

2012

’s M

OS

T C

REA

TIV

E E

XC

US

ES

FO

R M

ISS

ING

WO

RK

Sources: CareerBuilder


LOVE


Medical Mayhem


What do YOU think?Which of the following has NOT been recognized as a disability under the ADA?

A. Internet Use Disorder

B. Obesity

C. Pregnancy

D. Shy Bladder Syndrome


What do YOU think?Which of the following has NOT been recognized as a disability under the ADA?

A. Internet Use Disorder

B. Obesity

C. Pregnancy

D. Shy Bladder Syndrome


ADA FACTS

Sources: BLS, US Government, Kessler Foundation, Ernst & Young

32% 2X

D = $ 27M


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


Scary

QAiyeeeeeeeeeeeeeeeeeeeee! Nothing freaks me out more than when the ADA meets the FMLA meets GINA meets WC.

Can you give us a roadmap?


Freak no more. Open the Tool Box.

Un-scary

A


We’ve had a no-fault attendance policy for decades. I heard that some companies are moving away from them. Do I really have to change it if we administer it consistently?

Scary

Q


Yes (for 20 million reasons).Un-scary

A


I tell people that unreasonably extended leave is, well,

unreasonable, and thus not a “reasonable” accommodation. Am I right? Please say “yes."

Scary

Q


Un-scary

ANo (sorry).

Courts have ruled that extended leave (e.g., 6 months) can be a reasonable accommodation.

However, courts have also consistently ruled that indefinite leave is not reasonable.


Scary

QAn employee claims he’s addicted to the Internet and that we have to accommodate him by letting him surf intermittently (seriously). Is he right? Please say “no.”


Un-scary

AMaybe (sorry again).

Internet Use Disorder has been officially accepted for inclusion in the DSM.


Scary

QAn employee wants to telecommute as an accommodation. I can automatically deny that request if the employee is non-exempt -- right?


Un-scary

ANo.

It depends on the particular circumstances, like virtually all accommodations.


Scary

QIs job reassignment required as an accommodation under the ADA?


Un-scary

AProbably yes, according to the EEOC and some federal courts – even in preference over more qualified non-disabled candidates.


Scary

QI’m confused, which makes me scared. Can you clarify what’s OK when it comes to pre- and post-offer medical inquiries?


Un-scary

APre-offer: No medical exams and no inquiries about disability, perceived disability, WC history, absence related to illness or drug/alcohol use.

Post-offer: Medical exams acceptable only if required of similarly situated employees.


Text-o-Rama414.751.0126

If you could make only one call, to whom

would it be?


Scary

QDrugs @ work are my biggest nightmare. Most of our employees seem to be goofed up on skunkweed half the time. When can I drug test? What if they’re addicts/alcoholics? What about prescriptions? Do I have to let ‘em crank “the Dead” all day as an accommodation?


Drug Testing Made Un-scary

Medical Review Officer

Objective, not

subjective

Avoid prescription

bans

Reasonable suspicion

Confidential


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


Scary

QWhat if a disability causes safety issues and work stoppages? We have a machine operator with diabetes who faints from low blood sugar. It causes interruptions as co-workers come to his aid and we fear he’ll fall into a machine and injure himself or others.


“Direct Threat” Made Un-scary

“Significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated by reasonable accommodation.”

Duration Severity

Likelihood Imminence


Discuss

Discuss

Discuss

Discuss

THE

INTERACTIVEDANCE


Text-o-RamaJOB

ACCOMMODATION NETWORK

800.526.7234 jan.wvu.edu


Scary

QI’m 2894% convinced that flexibility is the key to the modern workplace, including engagement, productivity and working with those who have workplace challenges such as disabilities. That said, I’m not 2894% sure of all the ins and outs of flexible approaches. Got any good resources you can recommend?


Un-scary

A

Workplace Flexibility Toolkit

Yes. Hot off the presses:


YOU be the judgeWho wins?

A. Employer

B. Employee

C. Neither


YOU be the judgeWho wins?

A. Employer

B. Employee

C. Neither


Scary

QA salesperson is out on FMLA. Is it OK to use company e-mail to communicate with him? Is it OK if he makes phone calls to clients while on leave?


Un-scary

ANo. The basics:• instruct employees not to work

• no contact except for leave-related info

• work is compensable and can’t be counted toward FMLA


An employee is demanding intermittent FMLA for migraines basically whenever she feels like it. Talk about scary – how on earth am I supposed to manage THAT?

Scary

Q


Very carefully.Un-scary

A


Intermittent Leave Made Un-scary

Notice7 days to cure

Incomplete Certification

Clarify/authenticateHR, not supervisor

ContactProvider

Recert from original provider OREmployer-paid 2nd opinion

Recert or

2nd Option

If conflictFinal & binding

3rd

Option


The FMLA in Plain English


How

NOTto

manage

FMLA


FLSA Frights



Scary

QWave your wand and whisk wage weirdness away wouldya?

In other words, could you please summarize all the latest FLSA decisions in one of your patented one-page thingys?

http://manpowergroupblogs.us/employment_blawg/2012/08/07/the-fmla-in-plain-english/



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




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



NLRB Neurosis


Scary

QThe NLRB makes me break out in hives. Can you please make sense of its most recent rulings for us?


No.Un-scary

A


NO Congress?

NO employmen

t at will?

NO discipline?

NLRBNo-Nos

NOconfidentiality?

NO anti-disparagement?


Scary

QShould I just trash my employee handbook?

Guide us thru the darkness. What should we do to avoid getting on the NLRB’s hit list?


“Protected concerted activity”

Union or non-union

> 1

Wages or work conditions

Same in cyberspace

The NLRB Made Un-scary


Scary

QThe NLRB’s attack on investigation confidentiality is a nightmare (not to mention unworkable). What exactly are employers supposed to do now?


Confidentiality Made Un-scary

Witness Protection

Evidence Destruction/Fabrication

Cover-up

Duration of Investigation

Company Time/Property


EEOCophobia


Scary

QThe EEOC freaks me out.

More and more regulation. More and more enforcement. More and more lawsuits. More and more class actions. More and more and more $.

Almost hate to ask, but what is the EEOC cooking up next for employers?


OnlineCharge

Tool

BIG Subpoena

s

752,000Reasons

to be Nice

EEOCNEW

CriminalBackground

Guidance

TransgenderProtection


Recruiting/Hiring

VulnerableWorkers

ADA

LGBT

Access to Legal

System

Pregnancy

Harassment

EEOCNEXT


Scary

QHow serious is the EEOC about its new agenda? Is it mostly political posturing?


Un-scary

AVery.


Scary

QWhat test are we supposed to apply to avoid conviction discrimination (in 100 words or less, please)?


Conviction Records Made Un-scary

Notify individual

sunder scrutiny

“Targeted screen”• Nature of

offense• Time elapsed• Nature of job

“Individualized assessment”if screened out:• Circumstances

surrounding offense

• Post-conviction work record

• References & other info from applicant


Scary

QAre “individualized assessments” always required?


Un-scary

AEEOC: “Not necessarily required in all circumstances.” BUT …

“The use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants.”


Scary

QIs it now unlawful to ask about convictions on job applications?


Un-scary

ANo, but not a “best practice” according to the EEOC).


Scary

QArrrrrrrrrgh! Do I have to train all my managers on this?


Un-scary

ANot unlawful not to, but a “best practice” (according to the EEOC).


Scary

QHow seriously do we have takethis new guidance?


Un-scary

ANot law. Just “guidance.”But take it seriously (especially in states that have restrictive conviction record laws) unless you want a class action.


Social Media Spookiness


Quarterly SM IndexDo you currently use social media @ work?

A. Yes

B. No

C. What’s social media?


Quarterly SM IndexWhat SM tool do you use most @ work?

A. Facebook

B. Google+

C. LinkedIn

D. Twitter

E. Other


Scary

QSocial media scares me silly.Don’t want to be a neanderthal and ban it completely but I also don’t want to expose my company to unnecessary liability. What’s the latest and what are real HR people doing?


SM

98%

75%

<10%

#10

:(

!!!!

Sources: SilkRoad, Achievers Social HR Survey


Social Media Starter Kit


Employment Law Great Pumpkins


Scary

QLike the Great Pumpkin of Charlie Brown fame, what are some great (or not-so-great) employment law myths that you can smash for us?


NLRA doesn’t apply to

me

ADA = new job

Salaried = Exempt

Probation means

something

CT but not OT is OK



me

ADA = new job

Salaried = Exempt

Probation means

something

CT but not OT is OKSMASHED



me

ADA = new job

Salaried = Exempt

Probation means

something

CT but not OT is OKSMASHEDSMASHED



me

ADA = new job

Salaried = Exempt

Probation means

something

CT but not OT is OKSMASHED SMASHED SMASHED



me

ADA = new job

Salaried = Exempt

Probation means

something


SMASHED



me

ADA = new job

Salaried = Exempt

Probation means

something


SMASHED SMASHED


How To Get Sued BIG Now


Don‘t open the Tool Box

Don’t do the ADA Interaction Dance

Manage FMLA intermittent leave badly

Punish protected concerted activity

Don’t follow the Wage & Hour Big 10

Believe in the EL Great Pumpkins

Ignore the EEOC’s New Targets

Don’t love your employees

Get Sued BIG Now


On the Blawg …

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& What’s NEXT

For Employmen

t Law in 2013


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