Answers to the World's Scariest Employment Law Questions
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Answers to the World's Scariest Employment Law Questions
- 16. (Source: Jury Verdict Research)
- 18. (Sources: EEOC, Jury Verdict Research, Manpower Blawg)
- 20. Which number is scarier?
- 22. To arbitrate or not to arbitrate?
- 24. wage & hour WARN ULPs NLRA dishonesty crimes fraud Claim denied. strikes lockouts ADA WC UI bodily injury SSD property damage
- 29. Today’s Format
- 31. Today’s Format
- 46. Today’s Format
- 50. Just how scared should we be of the NLRB? What EXACTLY has it changed (and why does it matter)?
- 54. I’m well versed in handling “old school” discrimination and harassment but I’m seeing more and more religious discrimination claims. What are the latest tips I can pass on to my sometimes-less-than-sensitive managers?
- 55. Courtesy of Snell & Wilmer
- 58. (Sources: Gallup, Business Week, Families and Work Institute, Centers for Disease Control and Prevention, The Journal of Science, Wake Forest University)
- 59. (Sources: National Safety Council, Gallup)
- 61. Runaway legal fees are what terrify me. What’s the latest on how to keep lawyers from taking all my money?
- 62. Today’s Format
- 67. (Sources: Clearswift, DLA Piper, Nielsen, Consumer Reports, Vault.com, Harris Interactive, ComputerWorld.com, Jobvite, Microsoft, Virginia Tech Driving Institute, McCann WorldGroup; harmon.ie, National University of Singapore)
- 68. (Sources: SHRM, Mindflash, Clearswift, DLA Piper)
- 78. If we schedule employees for a shift (4 hours) and end up needing them for less (2 hours), can we ask ‘em to log out and not pay ‘em for the extra 2 hours?
- 79. If we schedule employees for a shift (4 hours) and end up needing them for less (2 hours), can we ask ‘em to log out and not pay ‘em for the extra 2 hours?
- 85. THANK YOU
Hinweis der Redaktion
- Hello everyone! Welcome to our special Halloween-themed Answers to the World’s Scariest Employment Law ?s where for the next 58-and-a-half minutes we will attempt to answer as many of the approximately 35,287 questions submitted in advance by YOU. Here’s our agenda for today …
- All about YOU today. We’ll start off with the results of our pre-webinar survey to see what you’re all thinking, seeing and feeling right now. Then, we’ll dive right into YOUR ?s, which we have arranged in categories to keep things neat and orderly. To help make sure you stay awake, we’ve sprinkled a few interactive mechanisms throughout today’s proceedings, including polls and text-o-ramas for valuable prizes to keep things int’g. We’ll also give you our official What YOU Should Do Right Now checklist that boils down everything you really need to know down to 1 page to help reduce your fear and anxiety and keep you all out of jail. But it doesn’t end there. Immediately following the webinar, we’ll post a quiz on my Blawg – which you can find at manpowerblogs.com – where the first person to respond with 100% correct answers will officially be crowned the Smartest Person in our Audience. Another reason to stay awake today. And last, i f you want to go into more depth on any particular topic, our Blawg features an EL library with hundreds of articles on every conceivable issue, handy cheat sheets on each major law, an investigation checklist, a termination toolbox, a sample social media policy, a place to sign up for employment law alerts that bring all the latest info right to your email inbox and much much more. We’re going to go FAST today to try to cover as many of your questions as possible. Really want you to get your money’s worth. If we don’t get to something in great depth, it’ll be there in the PPT which will be posted on the Blawg for your reading pleasure. If we were unable to fit your particular ? into today’s session, we’ll do our best to answer ‘em on the Blawg in the next few weeks. So, that’s what we’ll cover. Let’s go!
- Bc I’m a lawyer, I have to start w/some legalese. Here’s our official disclaimer … The presentation you are about to witness should not be relied upon or construed as legal advice. For specific information on recent legal developments, particular factual situations or the effect of a particular law, the opinion of qualified legal counsel should be sought. Failure to stay awake for the remainder of this presentation could result in potentially long-lasting side-effects, including litigation headaches, recurring nightmares and/or severe gastrointestinal discomfort from having to spend too much time with lawyers. Please please please consult with your own Legal and/or HR departments before making any major changes. You have been warned. In other words, you can’t sue me, ManpowerGroup or anyone else based on anything you hear today. So there.
- Judging by the tenor of all your questions and comments, there’s a whole lot of fear out there. Our goal today is simple: to overcome that fear with facts. The more you know the law, the less fearful and freer you’ll be.
- First, we wanted to find out what YOU are thinking, seeing and feeling out there in the real world. A Big THANKS to the more than 1,300 of you who responded to our pre-webinar survey. Here are the results …
- Notice a whopping 0% of you said “much easier.” 2% of you said “easier.” 79% of you said either harder or much harder. In other words, 39-and-a-half times more of you said things are getting harder out there rather than easier. Quite the contrast.
- Very interesting. Far and away the #1 problem area is terminations, termination, terminations. In our last 3 quarterly surveys, medical issues – which has now slipped to #4 was #1. Unfortunately, and this came thru in our questions, people frankly are firing folks and freaking out. Others in the top 5 were wage and hour, litigation and investigations. We’ll try to help you with as many of these today and will use these results to guide future content on the Blawg.
- A huge variety of rather thoughtful and creative answers. I’ll read a small sampling of your suggestions… Magically erase the recent regulations concerning union rights. We’ll talk about that later. Coordination among laws that overlap, like ADA, FMLA, state leave, WC. We’ll talk about that too. SIMPLIFICATION. Huge theme. Please give the law an easy button, one of you said. Less loopholes and legalese so can be confidently compliant. Reduce emp’t law burdens so we can reduce unemployment. FLSA, FLSA, FLSA. Go back in time ten years. Reduce reporting requirements. Loser pays for litigation to deter frivolous claims. Put the BOP on EE. Make it easier for employers to hire and retain employees based on what really matters – abilities and performance. More consistency state to state and state to federal. Make unions illegal. Make whining illegal. Make charging for legal services illegal (at least by the hour). Govt be consultative not punitive. Disband NLRB and EEOC and OFCCP. End retaliation as a cause of action – makes it too hard to discipline. End unemployment. Pure at-will on both sides. Create a federal Q&A bank with easy clear answers. Consolidate all govt employment agencies into one stop shop with one set of rules. Get rid of all protected class statuses except disability. More small biz exceptions to compliance. CEOs must listen to HR at all times. Kill Social Media. All of them. No more lawsuits. Bury all lawyers. Personal favorite: Mark make all the rules. You REALLY don’t want that – just ask my kids. Thanks for all the feedback. Very helpful for future content. And, following the conclusion of today’s webinar I will fly to Washington, give them your suggestions and have everything fixed by the end of the day. You’re welcome.
- OK, here’s our first category of your ?s: Lawsuits lawsuits lawsuits. Great reality check to see how afraid you should be and why.
- Common theme. Just for the record, we substituted “dickens” for other more colorful words suggested by our audience.
- Reviewed virtually every action filed by EEOC and other fed agencies to come up w/this handy 1-page list. TOPS on the list by a mile is the first one. If you have class action litigation exposure FIX it now. #1 class action is the 2 nd item: wage and hour. Overtime misclassifications. Exempt/Non-exempt. Failure to pay donning/doffing. Shortcuts on breaks. Ps firms LOVE it when you have systemic wage and hour issues. And the govt hates it: Here’s an interesting fact: Over the past 5 years, the W&H Divn of the DOL has conducted 68,644 enforcement actions, finding violations in 50,364 of them or roughly 73%, resulting in a total of $681,151,513 in back wages. And that doesn’t even include penalties and attorneys’ fees. #3 don’t address bad behavior by execs. The higher up in the company the bad acts are the more $ you’ll have to pay. If you want to get sued big, #4 don’t thoroughly investigate complaints. There’s a line in virtually every EEOC press release that talks about how the employer failed to take prompt and appropriate remedial action once it knew of a problem. Don’t let that be you. If you visit the Blawg, there’s a handy checklist of every step you should take in an investigation to make sure you don’t end up in the news. Another GREAT way to get to court is to fail to accommodate disabilities. Under the new and improved you should almost assume that any condition is a protected disability. The idea is that you should work with the employee to make rsbl accomms that help everyone win. If you don’t, prepare to get sued big. And last the new #1 disc claim in all the land is retaliation. If you fire someone who recently complained of discrimination or testified on behalf of someone who complained of R or is related in some way to someone who complained of R, prepare to join the other 36,000 employers who have been charged with retaliation in the past year. Not a good place to be.
- Next ? . . .
- Here’s our first poll. Let’s see what you think …
- Correct answer is 48%. Just released this month: latest exhaustive litigation study from the fine folks at JVR: Jury Verdict Research. Literally the first people on the planet to get this valuable info. Odds against you and truly gambling every time step into court.
- Here’s our next lawsuit-related ? … That’s a great ? And one that more Ers should be asking.
- Here’s a handy chart we put together based on years of research, EEOC data, jury verdict research and other sources. Go thru #s. Horrible facts = exec perp, nooses, no policy/training, no investigation, physical assault and/or retaliation.
- Next ?
- How much would YOU rather spend? Which # is scarier? The number on the left is the ave. risk of going thru the litigation process. $165K. Here’s how I got that number: $300K is the median cost of taking a case all the way to trial. Ave. comp damages award is $200K. Ave. pun damages about $30K. Ave. attys’ fees paid (including potential attys’ fees awards vs. employer) is about $100K. Equals $330K thru trial. As we just saw, you have a roughly 50% chance of winning the average case so leaves you with about $165K IF YOU GO TO TRIAL. The number on the right is the median settlement in emp disc cases: $75,000. WHICH WOULD YOU RATHER PAY? $165K or $75K. And just a few words about what isn’t in # on the left. PR risk of going to trial, mgmt distraction, employee morale, etc. Actually pushes that # on the left much higher. No brainer unless you truly have a 100% sure-fire winner, which, having recently served as a juror myself, doesn’t exist for employers.
- First of all, for the record, I’m against splitting babies in half.
- Excellent ?. Not many people are talking about this but they should be. Could literally save millions and millions and millions of dollars. In the Concepcion case, the SCt recently issued a ruling that the Federal Arbitration Act preempts state laws that limit class action waivers in arbitration agreements. In other words, the SCt has now possibly cleared the way for employers to avoid big class action lawsuits by requiring employees to sign arbitration agreements that require resolution of claims on an individual basis. This slide encapsulates the general feeling among ELs we talkd to. Consider adopting arb agreements for W&H claims where most of the big class exposure is but not for anything else bc other claims aren’t nearly as amenable to class action treatment, as the Supreme Court’s decision in the Dukes v. Wal-Mart case showed. You probably don’t want to go to arb for non-class claims bc arbs do tend to split the baby even in frivolous cases and arb agreements generally req the Er to pay for arb fees to make em enforceable, which can be anywhere between $20 – 60K and maybe even higher. There’s a pending bill called the Arbitration Fairness Act that could reverse Concepcion. But the chances of its passage anytime soon appear between slim and none. Great thing to talk to your favorite Elawyer about.
- Empt Practices Liab Insur
- Here’s kind of a scary chart. Lots of stuff typically not covered. Read a few. Wage and hour includes FLSA and state wage claims but usually doesn’t exclude equal pay claims. Depends on indiv policy exclusions and some of these could conceivably be covd by other policies (commercial genl liab policies). Get to know your insurance.
- POLL: OK, so now it’s time for the ManpowerGroup Quarterly Litigation Index – like to see what YOU’RE seeing. Here’s the question we ask each quarter: Are YOU seeing an increase in employment law claims? Your choices are Yes, substantial increase, Yes, modest increase, No change, No, modest decrease and No, substantial decrease. OK, so key in your answers. Substantial increase, modest increase, no change, modest decrease or substantial decrease. And if you fall in that last category, you should hang up right now, fly to Milwaukee and come lead the rest of this webinar. And here are our results. __ see an increase, while only __ see decrease. So ___ times more of you are seeing an increase versus a decrease. Yikes. Let’s compare that to last quarter’s results . . . Last Q: Yes, substantial increase: 8% Yes, modest increase: 31% No change: 58% No, modest decrease: 2% No, substantial decrease: 1%
- We’ll close our Lawsuits Lawsuits Lawsuits section with our first TOR. Let’s make this a little interesting: the 14 th person to text their first name and the correct answer to the # there on your screen: 414/899-0126. That’s 414/899-0126. [Read ?] 14 th person to text us first name and correct answer will win a $50 gift certificate good to any of the fine merchants on giftcertificates.com. We’ll reveal the correct answer later in our program.
- Our next category. Terminations terminations terminations. Your #1 fear area. Let’s defeat it right now …
- Here’s the basic ? lots of you asked …
- After a highly scientific study of literally bazillions of cases, here are the things that employers most often get wrong. We’ll give you our patented tips on how to fix all these in a moment.
- Last, here’s the latest thinking on the actual TM. Read quickly. Recent graphic example of how NOT to terminate. An Iowa convenience store chain owner was slammed by a judge for operating a “firing contest” in which employees were invited in a chain-wide memo to predict which cashier the company would fire next. The winner would get $10 and then the contest would start again. Several employees quit in protest and then the owner contested their unemployment. Company lost bc judge found that the owner had created a hostile work env’t. Please don’t do that.
- Next on to one area that clearly cause confusion
- Lots of people asked IL ?s.
- What’s the answer to the ? Maybe, but not without first obtaining additional information regarding the condition. While chronic migraines can be debilitating, they are also near the top of the list of conditions that lead to FMLA intermittent leave abuse. The key to preventing abuse in this situation is to carefully manage the certification process. It is the company – not the employee’s physician – who approves or denies FMLA leave. The first step to preventing FMLA abuse is to make sure the employee’s physician completely fills out the FMLA certification form. A complete form should provide details on the severity and duration of the illness, the effects on the employee’s job, and when FMLA intermittent leave will be needed. Going to get a little technical here but please bear with us. Impt stuff. We’ll go kinda quickly thru this now and post addl details later on the Blawg. 1. Ensure that the employee’s certification form is complete and sufficient. If you believe the form is incomplete or insufficient (i.e., the certification is not complete or is missing information), an employer must first notify the employee that the certification is incomplete – it’s got blanks -- or insufficient (i.e. it’s complete, but the information is vague or non-responsive). The notice must also state what information is needed to make the certification complete and/or sufficient. The employer must generally provide the employee with seven calendar days to cure the deficiencies unless it’s truly not reasonable under the circumstances. If the deficiencies are not cured within the time period, the employer may deny the FMLA request. 2. Contact the employee’s healthcare provider for purposes of clarifying and authenticating the medical certification. However, if you believe the form is complete and sufficient, but still have questions regarding the form, an employer may contact the employee’s health care provider for purposes of clarifying or authenticating the medical certification. This should never be done by the supervisor but by someone in HR and all HIPAA rules should carefully be followed. 3. Ask for recertification. If you have good reason to suspect that the employee is abusing FMLA leave (for instance, a pattern of Friday, Monday absences, coming in late on the same day every week), an employer can also ask the employee for recertification of the employee’s medical condition. Generally, an employer can ask an employee for recertification if more than 30 days have passed, with some exceptions that we’ll explain on the Blawg. Note, though, that if an employer requests recertification, it cannot require a second or third opinion. 4. Er can also ask for a second opinion. Alternatively, if you have reason to doubt the validity of a certification, the employer can require the employee to obtain a second opinion at the employer’s expense. If a second opinion is requested, the employee would be provisionally entitled to the FMLA leave during the time necessary to obtain the second opinion. If the second opinion does not establish the need for FMLA leave, the leave should not be designated as FMLA leave and may be treated as paid or unpaid leave under the employer’s other policies. If the second opinion and the first opinion conflict, the employer may require the employee to obtain certification from a third health care provider, at the employer’s expense. The third opinion is final and binding. Also, call your Ees back when they’re on FMLA and contact you. Failing to do so could constitute FMLA retaliation as one Er found out recently. Keep in contact.
- The EEOC is all over inflexible leave policies like this. A few weeks ago, it announced a $20 million settlement of a nationwide disability discrimination class action based on a similar policy. Hates inflexible/no-fault/rigid/automatic term leave policies and terms based on indefinite leave. Always always always go thru the interactive process and reasonably accommodate those with disabilities unless it truly imposes undue hardship. Talk to your fave emp’t lawyer before terming someone on this basis. The EEOC has held public hearings on this and spoken a lot about how it hates hates hates employers who do this.
- Here’s a question for you. Would you fire someone over a $1.39 bag of chips? The EEOC recently sued a prominent pharmacy chain for firing an employee who opened a $1.39 bag of chips because she was suffering from low blood sugar. Usually carried candy with her but forgot and didn’t want to leave the cash register where she was working. Fired even tho the employer knew she suffers from the disorder and even tho she paid for the chips after she came off duty. Some other ADA lowlights… A prominent coffee chain agreed to pay lots of money to a barista who suffers from dwarfism for term’g her only 3 days after she was hired bc she needed a stepladder to do her job. A prominent bank was recently sued by the EEOC for firing a blind data entry worker after one day’s work without – allegedly – any attempt at RA. The EEOC hates that. Just to show that not all ADA probs lie with employers, a CA man was recently publicly chastised after it was discovered that he had sued at least 161 businesses for disability discrimination. While the man claimed that he has end-stage emphysema, he was caught on videotape hiking and was well enough to operate several businesses, including one that procures human organs for transplant. Yikes. We know that complying with the ADA can be tough. Here’s the best FREE advice you’ll ever get …
- If you’re stuck, call these fine folks. FREE. EEOC loves.
- And here’s the answer to our first TOR. The answer is:
- [Announce winner if have] AGE DISCRIMINATION. Acc’g to the very latest research, e mployers won less than a third of age discn lawsuits lit’d in the last year. Compare that to disability cases, which employers won 58% of the time and sex discn case which Ers won sixty % of the time. And that’s a nice segue to our next section …
- More of the workforce is in the age-protected class than ever before, with 40% over the age of 55 The EEOC has made it clear that it is aggressively seeking systemic age-based claims. Some of the more common things they look for are RIF discn and refusal to hire older workers because they are overqualified, assumed not to have technology skills or assumed that they won’t be on the job for long. In fact, there were a record # of claims last year. $3M included an email from the CEO stating a “vision for leadership development” that said “we should be developing 30-year-olds with GM potential” and that the company should “tap into the youth as participants in the leadership development.” Not good. On the lighter side, a 61-yr-old lawyer who moonlighted as a lifeguard claimed he was forced out of the lifeguard gig bc after he refused to wear a required tight-fitting bathing suit in a qualification test. “There should be a law prohibiting anyone over the age of 50 from wearing a Speedo,” he said.
- Sample SM policy on Blawg. US Chamber put out dissection of cases. Not too complex.
- Time for our next TOR. This time we’ll select a winner completely at random so as not to unduly punish those who may not be able to dial as fast as others. The winner will get a $75 gift certificate good for any of the fine merchants on GC.com.
- Lots of interesting stuff here. NLRB has been the subject of recent Congressional hearings bc it has been deemed too active by some. Other members of Congress are trying to defund the NLRB. Another -- Trey Gowdy from SC -- has intro’d a bill that would eliminate the NLRB entirely, calling the NLRB a “sycophant for labor unions that has lost all pretense of objectivity.” Yikes. Since August, the Board has consisted of only three Members – two Democrats and one Republican. One Democrat – Craig Becker -- is a recess appointee whose appointment ends in December. Due to Republican control of the House, it’s unlikely that the Obama Administration will be able to reappoint Becker or issue a recess appointment for any other new member. The Board will thus lose its required quorum in December. If that happens, the Board bureaucracy will continue to function (e.g. investigate and pursue ULP charges and oversee elections), but it won’t be able to issue decisions or to implement regulation-type rules. Gridlock. As for the new union rights posting requirement, delayed from November 14 to January 31, 2012. In the meantime, lawsuits and other challenges to the proposed rule proceed. And as for “E,” decns making it easier to organize micro-unions and exclude supervisors.
- Thanks to the fine folks at Snell & Wilmer for this.
- Read thru. As for last one, that’s quadruple the national average. Apparently, if you want to get ahead in corporate America it’s better to be psychotic.
- The Bottom Line: $200-$300B lost each year due to stress-related absenteeism, burnout, decreased productivity, WC claims, turnover and insurance costs. The Lesson: Be nice to your employees (and your bosses).
- Ave cost to litigate approx $100K per case.
- On Blawg
- If you’re really adventurous, here’s a relatively new phenomenon that’s making some interesting waves. Instead of going to a law firm, you go to shpoonkle.com and simply list your matter and basically put it up for bid. If anyone out there tries this – or has tried it – be very interested in hearing your perspective.
- Here’s our next Text-o-rama. Want to encourage maximum participation on this one. No right or wrong answers. The 38 th person to respond with any sort of answer will win a $100 gift certificate to GC.com. We’ll give you the results and announce the winner later on the Blawg.
- Hot off the presses, including some that just came out.
- Last # doubled vs. last year. Twice as many companies banning SM than a year ago.
- POLL: Time for our quarterly social media poll. Again, want to see what YOU are doing. Here’s the question: Do you currently use a social networking tool? Your choices are: Yes, No, or What’s social networking? Again, do you currently use a social networking tool? Yes, No, or What’s social networking. Let’s look at the responses . . . A bit lower than your Ees. According to Social Media Today, 82% of those 18-29 use at least one form of SN. Interesting, went [UP/DOWN] compared to last quarter’s 58 41 1. Might want to get a bit more connected to keep up with your employees.
- POLL: That leads to our next question … What are you on? What social networking tool do you use most? Here are the current top 5 in alphabetical order, at least according to most recent surveys: Facebook, Foursquare, LinkedIn, Tumblr or Twitter. Which do YOU use most: Facebook, Foursquare, LinkedIn, Tumblr or Twitter? If you read Blawg the past few weeks, may have to soon add Google+ to this list. Could take over the world soon. The results? Facebook continues to be king, followed by LinkedIn. Really the only 2 legit #1 tools. All others are also-rans, altho Twitter is growing. Last quarter, it was Facebook 57, LinkedIn 41, Twitter 2, Foursquare .0004 and we dropped Tumblr after .0000% response. Linked In gaining.
- Have an entire webinar devoted to this and other related topics coming up on Nov. 2. Won’t want to miss it.
- Generally the answer is YES – IF an employee is negligent while acting in the course and scope of employment , then the employer can be liable for the resulting harm. This is the case whether the employee is working in a traditional work setting or from a home office. As a result, it’s a good idea to make sure your insurance doesn’t have any exclusions or limitations related to work from home situations.
- Truly scary issue. Answer is IT DEPENDS. Subject of lots of class action lawsuits around the country as we speak. DOL generally finds it compensable. The general rule is that preparatory activities that are an “integral and indispensible” part of an employee’s job must be counted as hours worked. This is a highly fact specific inquiry. Given these type of pay battles, and the possibility of liquidated damages and attorneys’ fee awards, employers should be careful when deciding what does and does not count as work-time.
- Generally yes. Unless a state-specific rule provides otherwise, employers may generally require an employee to provide their own equipment. However, some states (California for example) require employers to supply and care for equipment necessary for the job unless a statutory exception applies. Also, you should be aware that requiring employees to provide their own equipment could bring the pay rate below minimum wage, which could also lead to problems. So be careful out there.
- Generally yes. Under the FLSA, off-duty time is not compensable. An employee is considered off-duty when: (1) completely relieved from duty and (2) the period of time is long enough to use the time effectively for his or her own purposes. There are, however, three issues to keep in mind. First, the answer changes if the employer has contractually promised the employees that they will be given a full shift or a certain number of hours. Second, some states have “reporting time” pay rules. For example, in California, many employees need to be paid for at least half the scheduled day’s work (subject to a two hour minimum and a four hour maximum) if they report to work. Third, if the employees are told to remain near their computers because they may be called back to complete the shift, then federal and state “waiting time” and “on-call time” rules would typically be implicated. Want more on this topic? Tune in NOV 2 for our next webinar featuring Kevin Childs, Contact Center Professional Extraordinaire.
- Nice segue …
- If known violation, gets you into willful violations that often include huge penalties, sometimes double or triple the original fine. Also could lead to jail time. Want to get in huge trouble, fail to address safety issues. Govt, courts, shareholders and the press don’t like it when your employees get hurt or die EEOC is targeting systemic violations. Class actions are least fun. W&H class actions are the best way to lose a lot of $, esp in areas listed there
- Here’s our official blog address.
- Thank you so much for joining us. Special thanks to the fine folks at McGuire Woods for their assistance with answering some of your tougher ?s.