Nebraska SHRM Conference

Everything You Ever Wanted to Know About

(But Didn’t Want to Pay a Lawyer to Ask)

Mark Toth
Chief Legal Officer – North America

September 13, 2012

Today’s
AGENDA

Smartest HR Person in the Universe Competition

All the Latest Developments

How to Get Sued Big Now

Employment Law Sing-a-long

Employment Law Tool Box
ManpowerGroup | September 13, 2012 2

marktoth.com
@manpowerblawg


Official Disclaimer
The presentation you are about to witness should not
be relied upon or construed as legal advice.
Failure to stay awake for the remainder of this presentation
could result in potentially long-lasting side-effects, including
severe disengagement, plummeting productivity, increased
litigation and/or severe gastrointestinal discomfort from
having to do all the work in your company because everyone
else leaves.
Please consult with your own HR and/or Legal departments
before making any major policy and/or procedure changes.
You have been warned.


SMARTEST HR PERSON IN THE UNIVERSE

COMPETITION


LAWSUITS
LAWSUITS
LAWSUITS

According to a recent study, what‟s the
#1 legal headache for U.S. businesses?

A. Environmental regulation

B. Patent protection

C. International contract laws

D. Employment law disputes

E. Lawyers


According to a recent study, what‟s 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


According to the latest data, what are an
employer‟s odds of winning at trial?

A. It is unlawful for employers to win

B. 22%

C. 48%

D. 68%

E. 88%


According to the latest data, what are an
employer‟s odds of winning at trial?

A. It is unlawful for employers to win

B. 22%

C. 48%

D. 68%

E. 88%

Source: Jury Verdict Research

What hit record highs last
year?

A. EEOC complaints

B. EEOC recoveries

C. EEOC class actions

D. EEOC love notes from employers

E. All of the above except “D”

What hit record highs last
year?

A. EEOC complaints

B. EEOC recoveries

C. EEOC class actions

D. EEOC love notes from employers

E. All of the above except “D”
Source: EEOC

What‟s the #1 most
common discrimination
claim?

A. Age

B. National Origin

C. Race

D. Retaliation

E. Sex


Retaliation is #1

1. Retaliation (36,258)

2. Race (35,890)

3. Sex (29,029)

4. Disability (25,165)

5. Age (23,264)
Source: EEOC


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


Everything You Ever Wanted to Know About Employment Law
(But Didn’t Want to Pay a Lawyer to Ask)

lawsuits
lawsuits
DEAL
lawsuits
Or No?

© 2011 ManpowerGroup 18

How Much Will YOU Pay?

$100K - $1M+:
$0 - 50K: $51-100K: Big pattern
1 plaintiff + 1 plaintiff + $1M: +/or
no horrible horrible Pattern +/or reeaaallllllllly
facts facts horrible horrible
(32%) (28%) facts facts
(39%) (1%)

Sources: EEOC, Jury Verdict Research

TECHNOLOGY
TECHNOLOGY
TECHNOLOGY

True or False?

None of the laws
that apply in the
real world apply in
the social media
universe and
therefore I can
completely lose my
mind and
absolutely anything
goes.


Same old laws …

Non-discrimination
Adverse impact
FCRA
GINA
NLRA
Negligent Hiring
Off-duty Conduct
Arrest & Conviction Record


Same old test …

job- job-
related related

job-
related


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

Question: How do those about to enter
the workforce rank the following in order
of importance?

A. Social Activities, Romance, Music, Internet

B. Internet, Social Activities, Romance, Music

C. Music, Social Activities, Internet, Romance

D. Romance, Internet, Music, Social Activities


Question: How do those about to enter
the workforce rank the following in order
of importance?

A. Social Activities, Romance, Music, Internet

B. Internet, Social Activities, Romance, Music

C. Music, Social Activities, Internet, Romance

D. Romance, Internet, Music, Social Activities
Source: Cisco

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


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] great”

D. “I’m really bummed that I’m working today, I asked off so I could
study but my boss is a [expletive] who can’t read.”

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

Search Checklist

Be Consistent
• All candidates or certain categories/departments
• Same phase of interview process

Designate Searchers
• One employee, small group or 3rd party
• Not hiring manager

Limit Scope
• Job-related, job-related, job-related
• Restrict to certain approved sites
• No age, race, religion, disabilities, genetics or other
protected info

Search Checklist

Disclose
• Notify candidates that may use SM
• Include on applications and other documents

Document
• Consistent process
• Note legitimate job-related reasons for not
hiring
• Follow document retention policies


building the
perfect

social media
ManpowerGroup | September 13, 2012 policy
32

10 Essential Elements

Tie to Vision + Handbook + Code

Set Clear + Reasonable Expectations

Define SM Brooooooooadly

Protect Trade Secrets/Confidentiality

Clarify Who Owns What


10 Essential Elements

No Disparagement/Harassment

Respect Copyrights

NLRA Disclaimer

Duty To Report Violations

“Up to and including discharge”


SM Policy Starter Kit

Latest Legal Developments

Official NLRB Policy

Official Blawg Sample Policy

Other Fortune 500 Policies

SM 101 Articles


MEDICAL
MEDICAL
MEDICAL

What‟s true about the ADAAA?
A. It’s easier to establish a covered “disability”

B. Mitigating measures can’t be considered

C. Episodic or remission conditions are covered

D. Individualized assessments are required

E. Rigid leave policies will get you in trouble

H. All of the above


Bob is normally a responsible, quiet employee. One day,
however, he shows up two hours late and acts
“obscenely happy, wearing make-up, avoiding eye
contact, continuously rubbing his legs and touching
everyone.” He also does a “crazy monkey arm dance”
and begins “twirling and talking gibberish, flying around
in the office in a hyper state.” Then he leaves.
What do you do?

A. Fire him for inappropriate workplace behavior

B. Do a crazy monkey arm dance in his honor until he returns

C. Drug test him

D. Give him a chance to explain his behavior


An employee comes into your office at 4:59
on a Friday 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.wvu.edu
800-526-7234


WAGE & HOUR
WAGE & HOUR
WAGE & HOUR

What celebrity was
recently sued for a
plethora of wage and
hour violations?


LADY
GAGA


What's Next? Hot Spots

IC Classifications

OT Classifications (especially Administrative)

Work @ Home

Pre-shift “Work” (Donning/Doffing, Logon/Logoff)


What's Next? Hot States
California
Illinois
Massachusetts
Minnesota
New Jersey
New York
Pennsylvania
Washington
ManpowerGroup | September 13, 2012 Source: Seyfarth Shaw 47

UNIONS
UNIONS
UNIONS

True or False: The NLRB only has
jurisdiction over unionized companies.

A. True

B. False


Facebook Firings

Don‟t discipline for
Be especially wary of
comments about wages
group comments
or work conditions

OK (maybe) to discipline Review policy to make
for comments unrelated sure not overbroad
to work conditions or out-of-date


Employment Law Talk Show

We are • 80% of jobs are sedentary
Stressssssed • 62% say workload increased
last 6 months
• 40% are sleep-deprived

• 33% are chronically overworked

• 32% increase in workweek
in past 25 years
Sources: Pennington Biomedical
Research Center, Kronos,
National Sleep Foundation, • 1 in 25 bosses is a certified
Families & Work Institute, Harris
Interactive, Dr. Paul Babiak
psychopath


More Stress = The Bottom Line:
More Suits $200-$300B is lost each year due to
stress-related absenteeism, burnout,
decreased productivity, WC claims,
turnover and insurance costs.

ManpowerGroup | September 13, 2012 Source: American Institute of Stress 54


ManpowerGroup | September 13, 2012 Source: ManpowerGroup 55

If you had to boil all of
HR and employment law
down into ONE simple
word, what would it be?



Employment law can 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



Don‟t put things off „til tomorrow
Yes investigate right away
Don‟t procrastinate
And don‟t retaliate
Or the more you will have to pay



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



Technology may give you headaches
The feds they may knock on your door
But if you prepare
Be consistent and fair
They won‟t ever bug you no more



Remember this song
On your journeys



If your brain‟s too full to remember
All the stuff we just covered above
There‟s one simple word
That sums up what you heard
Love, Love, Love, Love, Love, Love,
LOOOOOOOOOOOOOOOOOOOVE!



Remember this song
On your journeys


marktoth.com
@manpowerblawg


Nebraska SHRM Conference

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