with Mark Toth Chief Legal Officer North America What’s New & What’s Next in Employment Law
Welcome message from author
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
with
Mark TothChief Legal Officer
North America
What’s New & What’s Next
in Employment Law
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.
Follow me on Twitter: @manpowerblawg
Visit my Blawg:marktoth.com
Find me on Facebook: facebook.com/manpowerUS
187% Free Stuff
World’s Most
Fabulous
Employment Law
LIBRARY
Open 24 / 7 / 365.25
6
Stay Out of Jail in 2014
The BIG Picture
What’s NEW?
What’s NEXT?
Jail-free ACTION PLAN
Least likely to be Incarcerated CONTEST
The BIG Picture
8
Is complying with employment laws
getting easier or more difficult?Question
Really very extremely easier
Somewhat easier
No change
Somewhat harder
Really very extremely harder
0%
2%
24%
58%
16%
ManpowerGroup Pre-Webinar Survey, January 2014
9
Are you seeing an increase or
decrease in employment law claims?Question
Yes, substantial increase
Yes, moderate increase
No change
No, moderate decrease
No, substantial decrease
4%
26%
66%
3%
2%
ManpowerGroup Pre-Webinar Survey, January 2014
10
:(
70%
Un-engaged
QuitYourJob
App
Work for
the CIA?
70% Dump
Vacation
Karoshi
87%
Want Out
Workplace
“Mobbing”
Sources: Right Management, Staffbay, Gallup, Expedia, Kroll, PE.com
11
The Bottom Line:Employees are really
very extremely
incredibly disgruntled.
12
The Goal:Get your employees
gruntled.
If you had to boil all
of employment law down to one word,
what would it be?
5:1
0.3:1Source: Harvard Business Review
VS.
Which of the following is
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
Which of the following is
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
How to Get Sued BIG Now
Employers win more
lawsuits than they lose.
False
Source: Jury Verdict Research
49%
22
Wage & Hour Suits (+3%)
Systemic Investigations (+25%)
EEOC Recoveries (new record)
WHD Recoveries ($1B+)
Discrimination Class $ (+381%)
Lawsuit Facts & Figures
Sources: EEOC, Seyfarth Shaw, Littler, Wall Street Journal
23
Ignore known violations
Don’t address systemic issues
Violate wage & hour laws
Lie or engage in fraud
Do business in California
Get a BIG Class Action Fast
“What celebrates its
50th birthday in 2014?”
The Civil Rights Act of 1964
Are we now absolutely
discrimination-free such
that we can repeal all
employment laws, fire all
HR people and make
employment lawyers do
something more
productive with their lives?
Ummm … no.
9 / 10
What’s Up with the EEOC?
30
EEOC
Hiring
Pregnancy
Harassment
Vulnerable
Workers
Access
to Legal
System
ADA
LGBT
Source: EEOC
Is the ENDA near?
Probably not
33
Employment Non-discrimination Act
Sexual orientation & gender identity
LGBT: 4% of workforce, 21% face discrimination
T: 26% fired, 97% face discrimination
Passed Senate 64-32 but .0001% chance in House
Is the ENDA Near?
Sources: Williams Institute, National Center for Transgender Equality
34
$21.3M to 200+ employees for racial harassment
+ discriminatory promotions & assignments
$4.9M to 427 employees for inflexible “maximum
leave” and “no-restrictions” policies
$2.5M to 89 women for egregious harassment,
discrimination & retaliation
$2.3M to 76 employees for systemic denial of
reasonable accommodations
$2.0M to 6,000 employees required to disclose
medical info or face discipline
372 Million Reasons to Fear the EEOC
Sources: EEOC, Seyfarth Shaw, Littler
What EEOC mediators
tell you in mediation
might not be 100%
accurate.
True
37
EEOC Myth vs. Reality
EEOC Mediators:
• 73%: settle or cause
• 70%: settle or suit
Sources: EEOC, Merrily Archer, BNA
EEOC
Stats:• 3.7% cause rate
• 0.2% suit rate
38
June 2013: EEOC filed suits alleging disparate
impact because no “individualized assessment”
July 2013: 9 state AGs sent letters to EEOC
demanding guidance be rescinded
August 2013: EEOC responded to AGs, calling it a
“misunderstanding”
October 2013: EEOC ordered to pay $750K in
costs due to “unfounded allegations”
November 2013: EEOC posted “discussion letter”
with instructions for inmates under the guidance
Criminal Background Checks
Which is most likely to result in
a humongous class action?
A. I-9 violations
B. OSHA violations
C. FMLA violations
D. Wage & hour violations
E. Doing business in CA
Which is most likely to result in
a humongous class action?
A. I-9 violations
B. OSHA violations
C. FMLA violations
D. Wage & hour violations
E. Doing business in CA
Wage & Hour WHIRLWIND
42
39% of class actions; average settlement $5M
Misclassification Initiative
Worker Classification Survey
Payroll Fraud Protection Act
Jail for “repeat and willful” violations
Wage & Hour in a Minute
Sources: NERA Economic Consulting,Workplace Insights
Cheat Sheets
Medical MAYHEM
45
Broad “disability” definition
Individualized analysis versus rigid guidelines
New Guidance on cancer, diabetes,
epilepsy and intellectual disabilities
Obesity could be a disability
EEOC target: 38% of merit suits
ADA in a Minute
Source: EEOC
Who wins?
A. Employee
B. Employer
Who wins?
A. Employee
B. Employer
ADA How NOT To
Have an inflexible
leave policy
Make snap judgments
Don’t interact
Don’t accommodate
Put dumb stuff in writing
49
Discuss Discuss
Discuss Discuss
50
Broad Serious Health Condition Definition
Don’t Fear Intermittent Leave
DOL FMLA Tools
Never ever Retaliate
FAMILY Act Coming?
FMLA in a Minute
FMLA Made Simple
Which is the only
industrialized nation that
doesn’t guarantee
working moms paid time
off after childbirth?
The United States of America
54
All employers covered regardless of size
Up to 12 weeks paid leave for birth/adoption,
serious illness of employee or family member
0.2% payroll tax shared by employee & employer
Capped at 66% & $1,000 / month
Lesotho, Swaziland and Papua New Guinea?
The FAMILY Act in a Minute
Source: International Labour Organization
55
Bans: Requesting or Using Genetic Info
Reach: applicants, employees & family members
In Court: EEOC filed first suits last year
First Settlement: 370,000 Reasons to Know GINA
GINA in a Minute
Workplace drug use is
on the decline.
True
AND
False
58
Illegal / old-school drug use
Prescription / designer drug use
3.5% Positive Now vs. 13.6% Positive 1988
False Positive?
DOL’s Drug-free Workplace Policy Builder
Drugs in a Minute
Source: Quest
Workplace injuries are
on the decline.
True
61
Work injuries & illnesses: 3.4 / 100
300A Forms due February 1
I2P2 by September?
New online whistleblower system
OSHA in a Minute
Silica, dust & beryllium coming soon
ADA vs. FMLA vs. GINA vs. WC
Get WOMEN
Which of the following is true?
A. Women are better educated and
test better than men
B. Less than 5% of the Fortune 500
have a female CEO
C. Companies with more women in
leadership generate higher returns
D. Most employees prefer a male boss
E. All of the above
F. None of the above
Which of the following is true?
A. Women are better educated and
test better than men
B. Less than 5% of the Fortune 500
have a female CEO
C. Companies with more women in
leadership generate higher returns
D. Most employees prefer a male boss
E. All of the above
F. None of the above
66
Women are better educated & test better
< 5% of Fortune 500 have female CEOs
More female officers = 34% better returns
Most still prefer male boss
EEOC Report: Obstacles Facing Women
Women @ Work Facts
Sources: Pew Research Center, CNN Money, Businessweek, Gallup, ManpowerGroup
Get and keep women
If you’re a manager and you
believe that your religion
requires you to periodically
scream at ashtrays, engage in
8-hour stare-downs and talk to
walls, you should require your
employees to do the same.
False
Don’t Make Employees
SCREAM at Ashtrays
71
100%+ increase in past 20 years
Please don’t require ashtray screaming,
8-hour stare-downs & talking to walls
Dress codes vs. religious garb
Harassment vs. accommodation
Religious Discrimination on the Rise
Source: EEOC
72
10 Commandments of Religious Discrimination
1. Thou shalt not assume a religion unknown to you is not a religion.
2. Thou shalt not discriminate on the basis of religion.
3. Thou shalt not harass employees based on religion.
4. Thou shalt reasonably accommodate an employee’s religious beliefs.
5. Thou shalt be careful enforcing dress codes.
6. Thou shalt be careful enforcing grooming standards.
7. Thou shalt allow employees to participate in religious observances.
8. Thou shalt provide a time and place for employees to pray, if requested.
9. Thou shalt treat religious displays in the workplace equally among religions.
10. Thou may have an exception if thou are a religious organization.
(Source: Snell & Wilmer LLP)
1 out of every 3
employees will be 65 or
older by the year 2025.
True
We’re Getting OLDER
76
33% of the workforce will be 65+ by 2025
Most engaged? 92% of 60+ female admins
$5.7M to 4 servers replaced by 20-year-olds
$575K for pattern of age discrimination
+ failure to keep records
Ageist comments can = age discrimination
ADEA in a Minute
Sources: BLS, Keas, Jury Verdict Research
The latest research shows that Facebook is a good
source of info to help predict workplace success.
False
Social Media MANIA
80
Facebook: bad predictor, discriminator, dying?
What’s hot? Snapchat? Instagram? Not Facebook?
Cyberspace complaint ain’t a complaint
Even PR professionals fail at SM
Hot debate: Who owns SM accounts?
SM in a Minute
Sources: Florida State, Clemson, Accenture,Global Web Index
81
Latest Stats: Employees
62% “couldn’t live without the Internet”
53% would rather lose nose than Facebook
48% would swap pay for SM access
29% access X-rated sites
28% have posted work-related photos
22% have posted/tweeted about a co-worker
21% would turn down a job if unsocial
Sources: Cisco, Pew Research Center, McCann WorldGroup
Nielsen, DLA Piper
82
Latest Stats: Employers
73% do no SM training
68% monitor internet activity
58% say SM benefits outweigh risks
56% block access to some sites
45% use SM to screen
31% have disciplined for postings about employer
25% have disciplined for excessive SM use
19% ban SM
Sources: SHRM, Clearswift, DLA Piper, Cisco
SM Starter Kit
84
NLRB 2.0?
Targeting non-union employers
Union rights posting dead
“Ambush” election and other rules coming?
Supremes: (1) class action waivers OK and
(2) parties can agree donning / doffing unpaid
The NLRB in a Minute
LIGHTNING Round
86
NLRB 2.0?
Targeting non-union employers
Union rights posting dead
“Ambush” election and other rules coming?
Supremes: (1) class action waivers OK and
(2) parties can agree donning / doffing unpaid
The NLRB in a Minute
87
H-1Bs: stampede starts April 1
ICE brings the chill: Worksite Enforcement Strategy
23 indictments for undocumented workers
$34M for alleged systemic visa abuse
Immigration in 30 Seconds
88
Veteran & disability rules effective March 24
Self-identification form posted January 27
7% utilization goal for disabled individuals
Will lawsuits trump rules?
OFCCP in 30 Seconds
Data collection, sex discrimination and
construction rules next?
89
Equal Employment for All Act
Bars discrimination based on credit history
Employers can’t request, even with consent
Exemptions: national security or required by law
EEOC considering guidance
No More Credit Checks?
Stay out of jail
ACTION PLAN
Prison-free in 2014 PlanKNOW THE LAW
INVESTIGATE & DOCUMENT ALL CLAIMS
USE THE TERMINATION TEST
LOVE YOUR EMPLOYEES
FOCUS ON KEY PRIORITIES
Known violations
Systemic issues
Wage & hour (especially CA)
EEOC priorities
Sign up for our FREE alerts
and visit marktoth.com
every 0.3 seconds
187% Free Stuff
World’s Most
Fabulous
Employment Law
LIBRARY
Open 24 / 7 / 365.25
COMING NEXT:
Employment Law
Made Unscary
The Employment Law
SING-A-LONG
ManpowerGroup | Halloween 2012
2014 won’t be easy
If you listen you surely won’t fail
We wrote you this song
So please sing along
If you don’t, you could end up in jail
ManpowerGroup | Halloween 2012
The law, it’s always a-changing
With new acronyms every day
But if you visit my Blawg
You won’t be in the fog
And big verdicts you won’t have to pay
ManpowerGroup | Halloween 2012
So, remember this song
And you’ll never go wrong
Yes we wish you the best on your journeys
You’ll stay out of court
And you won’t have to pay no attorneys
ManpowerGroup | Halloween 2012
The ENDA it soon could be coming
The ICE Man may knock on your door
But if you prepare
Be consistent and fair
They won’t ever bug you no more
ManpowerGroup | Halloween 2012
If your brain’s too full to remember
All the stuff we just covered above
There’s one little word
That sums up what you heard
Love love love love love love LOVE!
ManpowerGroup | Halloween 2012
So, remember this song
And you’ll never go wrong
Yes we wish you the best on your journeys
You’ll stay out of court
And you won’t have to pay no attorneys
THANK
YOU!
Related Documents
