Answers to the Scariest Employment Law Questions
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Answers to the Scariest Employment Law Questions
- 1. with Mark Toth Chief Legal Officer North America Halloween 2012
- 2. General Information • Share the webinar • Votes (polling questions) • Rate (before you leave) • Attachments (download) Halloween 2012
- 3. Audio Problems? The audio for this event is streaming to your computer. If you can‟t hear through your computer speakers: US Dial-in Number: 1 877 465 4510 Passcode: 370 615 75# Halloween 2012
- 4. Earning HRCI Credit To receive 1 HRCI for this webinar, participants must attend the webinar in its entirety (one person per computer). Halloween 2012
- 5. with Mark Toth Chief Legal Officer North America Halloween 2012
- 6. 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 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 and Legal departments before making any major policy and/or procedure changes. You have been warned. ManpowerGroup | October 31, 2012 6
- 7. Tweet along: #mpwebinar Follow Mark on Twitter: @manpowerblawg Visit Mark‟s Blawg: marktoth.com Find us on Facebook: facebook.com/manpowerUS ManpowerGroup | October 31, 2012 7
- 8. Today‟s webinar is brought to you by ManpowerGroup | October 31, 2012 8
- 9. Reduce your terror level What How to Least Keeps Scary Twick EL Get Sued Zombie- YOU ???s or Great BIG ish Up at Answered Tweet? Pumpkins Now Contest Night? ManpowerGroup | October 31, 2012 9
- 10. Keep the monsters away ManpowerGroup | October 31, 2012 10
- 11. What Keeps YOU Awake at Night? ManpowerGroup | October 31, 2012 11
- 12. Question Is complying with employment laws getting scarier or easier? Really very extremely easier 0% Somewhat easier 1% No change 13% Somewhat scarier 21% Really very extremely scarier 65% Source: ManpowerGroup Employment Blawg ManpowerGroup | October 31, 2012 12
- 13. Question Are you seeing an increase in employment law claims? Yes, substantial increase 2% Yes, moderate increase 32% No change 64% No, moderate decrease 1% No, substantial decrease 1% Source: ManpowerGroup Employment Blawg ManpowerGroup | October 31, 2012 13
- 14. TOP 10 SCARIEST EMPLOYMENT LAWS 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%) Source: ManpowerGroup Employment Blawg ManpowerGroup | October 31, 2012 14
- 15. What spooks you most about the world of work heading into 2013? ManpowerGroup | October 31, 2012 15
- 16. ManpowerGroup | October 31, 2012 16
- 17. de-spook-ify ManpowerGroup | October 31, 2012 17
- 18. The Answer ManpowerGroup | October 31, 2012 18
- 19. @manpowerblawg If you had to boil all of employment law down to one word, what would it be? ManpowerGroup | October 31, 2012 19
- 20. Scary Times are tough, man. Q I could use a little levity. Please share something dumb from the wonderful world of work that will help me feel smart by comparison. ManpowerGroup | October 31, 2012 20
- 21. 2012‟s MOST CREATIVE EXCUSES FOR MISSING WORK “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.” Sources: CareerBuilder ManpowerGroup | October 31, 2012 21
- 22. ManpowerGroup | October 31, 2012 22
- 23. Medical ManpowerGroup | October 31, 2012 23
- 24. 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 ManpowerGroup | October 31, 2012 24
- 25. 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 ManpowerGroup | October 31, 2012 25
- 26. ADA FACTS 32% 2X D=$ 27M Sources: BLS, October 31, 2012 ManpowerGroup | US Government, Kessler Foundation, Ernst & Young 26
- 27. ADA How NOT To Don‟t Don‟t Make snap Don‟t consider request Memorialize judgments interact additional additional discrimination leave medical info in writing ManpowerGroup | October 31, 2012 27
- 28. Scary Aiyeeeeeeeeeeeeeeeeeeeee! Nothing freaks me out more Q than when the ADA meets the FMLA meets GINA meets WC. Can you give us a roadmap? ManpowerGroup | October 31, 2012 28
- 29. Freak no more. Open the Tool Box. Un-scary A ManpowerGroup | October 31, 2012 29
- 30. Scary We‟ve had a no-fault attendance policy for decades. Q I heard that some companies are moving away from them. Do I really have to change it if we administer it consistently? ManpowerGroup | October 31, 2012 30
- 31. Un-scary Yes (for 20 million reasons). A ManpowerGroup | October 31, 2012 31
- 32. Scary I tell people that unreasonably extended leave is, well, Q unreasonable, and thus not a “reasonable” accommodation. Am I right? Please say “yes." ManpowerGroup | October 31, 2012 32
- 33. Un-scary No (sorry). A 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. ManpowerGroup | October 31, 2012 33
- 34. Scary An employee claims he‟s Q addicted to the Internet and that we have to accommodate him by letting him surf intermittently (seriously). Is he right? Please say “no.” ManpowerGroup | October 31, 2012 34
- 35. Un-scary Maybe (sorry again). A Internet Use Disorder has been officially accepted for inclusion in the DSM. ManpowerGroup | October 31, 2012 35
- 36. Scary An employee wants to telecommute as an Q accommodation. I can automatically deny that request if the employee is non-exempt -- right? ManpowerGroup | October 31, 2012 36
- 37. Un-scary No. A It depends on the particular circumstances, like virtually all accommodations. ManpowerGroup | October 31, 2012 37
- 38. Scary Is job reassignment required as an accommodation under Q the ADA? ManpowerGroup | October 31, 2012 38
- 39. Un-scary Probably yes, according to the EEOC and some federal A courts – even in preference over more qualified non-disabled candidates. ManpowerGroup | October 31, 2012 39
- 40. Scary I‟m confused, which makes Q me scared. Can you clarify what‟s OK when it comes to pre- and post-offer medical inquiries? ManpowerGroup | October 31, 2012 40
- 41. Un-scary Pre-offer: No medical exams and no inquiries about A 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. ManpowerGroup | October 31, 2012 41
- 42. 414.751.0126 If you could make only one call, to whom would it be? ManpowerGroup | October 31, 2012 42
- 43. Scary Drugs @ work are my biggest nightmare. Most of our employees Q 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? ManpowerGroup | October 31, 2012 43
- 44. Drug Testing Made Un-scary Objective, Avoid Medical not Reasonable Confidential Review prescription subjective suspicion Officer bans ManpowerGroup | October 31, 2012 44
- 45. Drugs @ Work Made Un-scary “Currently engaging”? No Recovering? Safe Harbor unless “currently engaging” Prescribed meds? Probably unless direct threat UI? No (other than legally prescribed meds) ManpowerGroup | October 31, 2012 45
- 46. Scary What if a disability causes safety issues and work stoppages? Q 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. ManpowerGroup | October 31, 2012 46
- 47. “Direct Threat” Made Un-scary Imminence Likelihood Severity Duration “Significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated by reasonable accommodation.” ManpowerGroup | October 31, 2012 47
- 48. Discuss Discuss Discuss Discuss ManpowerGroup | October 31, 2012 48
- 49. 800.526.7234 jan.wvu.edu ManpowerGroup | October 31, 2012 49
- 50. Scary I‟m 2894% convinced that flexibility is the key to the modern workplace, Q 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? ManpowerGroup | October 31, 2012 50
- 51. Un-scary Yes. Hot off the presses: A Workplace Flexibility Toolkit ManpowerGroup | October 31, 2012 51
- 52. YOU be the judge Who wins? A. Employer B. Employee C. Neither ManpowerGroup | October 31, 2012 52
- 53. YOU be the judge Who wins? A. Employer B. Employee C. Neither ManpowerGroup | October 31, 2012 53
- 54. Scary A salesperson is out on FMLA. Q 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? ManpowerGroup | October 31, 2012 54
- 55. Un-scary No. The basics: • instruct employees not to work A • no contact except for leave-related info • work is compensable and can‟t be counted toward FMLA ManpowerGroup | October 31, 2012 55
- 56. Scary An employee is demanding Q intermittent FMLA for migraines basically whenever she feels like it. Talk about scary – how on earth am I supposed to manage THAT? ManpowerGroup | October 31, 2012 56
- 57. Un-scary Very carefully. A ManpowerGroup | October 31, 2012 57
- 58. Intermittent Leave Made Un-scary Incomplete Notice Certification 7 days to cure Contact Clarify/authenticate Provider HR, not supervisor Recert or Recert from original provider OR 2nd Option Employer-paid 2nd opinion 3rd If conflict Option Final & binding ManpowerGroup | October 31, 2012 58
- 59. The FMLA in Plain English ManpowerGroup | October 31, 2012 59
- 60. How NOT to manage FMLA ManpowerGroup | October 31, 2012 60
- 61. FLSA ManpowerGroup | October 31, 2012 61
- 62. The FMLA in Plain English Scary Wave your wand and Q 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? ManpowerGroup | October 31, 2012 62
- 63. The FMLA in Plain English 1. 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 ManpowerGroup | October 31, 2012 63
- 64. The FMLA in Plain English 1. 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 ManpowerGroup | October 31, 2012 64
- 65. NLRB ManpowerGroup | October 31, 2012 65
- 66. Scary The NLRB makes me break out in hives. Can you please Q make sense of its most recent rulings for us? ManpowerGroup | October 31, 2012 66
- 67. Un-scary No. A ManpowerGroup | October 31, 2012 67
- 68. NO Congress? NO NO discipline? confidentiality? NO anti- NO disparagement? employment at will? ManpowerGroup | October 31, 2012 68
- 69. Scary Should I just trash my Q employee handbook? Guide us thru the darkness. What should we do to avoid getting on the NLRB‟s hit list? ManpowerGroup | October 31, 2012 69
- 70. The NLRB Made Un-scary “Protected concerted activity” Union or non-union >1 Wages or work conditions Same in cyberspace ManpowerGroup | October 31, 2012 70
- 71. Scary The NLRB‟s attack on Q investigation confidentiality is a nightmare (not to mention unworkable). What exactly are employers supposed to do now? ManpowerGroup | October 31, 2012 71
- 72. Confidentiality Made Un-scary Witness Protection Evidence Destruction/Fabrication Cover-up Duration of Investigation Company Time/Property ManpowerGroup | October 31, 2012 72
- 73. EEOC ManpowerGroup | October 31, 2012 73
- 74. Scary The EEOC freaks me out. Q 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? ManpowerGroup | October 31, 2012 74
- 75. Criminal Background Guidance 752,000 Online Reasons to Charge be Nice Tool EEOC NEW Transgender BIG Protection Subpoenas ManpowerGroup | October 31, 2012 75
- 76. Recruiting/ Hiring Vulnerable Pregnancy Workers EEOC NEXT Harassment ADA Access to Legal LGBT System ManpowerGroup | October 31, 2012 76
- 77. Scary How serious is the Q EEOC about its new agenda? Is it mostly political posturing? ManpowerGroup | October 31, 2012 77
- 78. Un-scary Very. A ManpowerGroup | October 31, 2012 78
- 79. Scary What test are we Q supposed to apply to avoid conviction discrimination (in 100 words or less, please)? ManpowerGroup | October 31, 2012 79
- 80. Conviction Records Made Un-scary “Individualized “Targeted assessment” Notify if screened out: screen” • Circumstances individuals • Nature of offense surrounding offense under scrutiny • Time elapsed • Post-conviction work record • Nature of job • References & other info from applicant ManpowerGroup | October 31, 2012 80
- 81. Scary Are “individualized assessments” Q always required? ManpowerGroup | October 31, 2012 81
- 82. Un-scary EEOC: “Not necessarily required in all circumstances.” A BUT … “The use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on ManpowerGroup | October 31, 2012 individual applicants.” 82
- 83. Scary Is it now unlawful to ask Q about convictions on job applications? ManpowerGroup | October 31, 2012 83
- 84. Un-scary No, but not a “best practice” according to the EEOC). A ManpowerGroup | October 31, 2012 84
- 85. Scary Arrrrrrrrrgh! Do I have to Q train all my managers on this? ManpowerGroup | October 31, 2012 85
- 86. Un-scary Not unlawful not to, but a “best practice” A (according to the EEOC). ManpowerGroup | October 31, 2012 86
- 87. Scary How seriously do we have take Q this new guidance? ManpowerGroup | October 31, 2012 87
- 88. Un-scary Not law. Just “guidance.” But take it seriously (especially A in states that have restrictive conviction record laws) unless you want a class action. ManpowerGroup | October 31, 2012 88
- 89. Social Media Spookiness ManpowerGroup | October 31, 2012 89
- 90. Quarterly SM Index Do you currently use social media @ work? A. Yes B. No C. What‟s social media? ManpowerGroup | October 31, 2012 90
- 91. Quarterly SM Index What SM tool do you use most @ work? A. Facebook B. Google+ C. LinkedIn D. Twitter E. Other ManpowerGroup | October 31, 2012 91
- 92. Scary Social media scares me silly. Don‟t want to be a neanderthal Q 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? ManpowerGroup | October 31, 2012 92
- 93. 98% !!!! 75% SM :( <10% 0 #1 Sources: SilkRoad, Achievers Social HR Survey ManpowerGroup | October 31, 2012 93
- 94. Social Media Starter Kit ManpowerGroup | October 31, 2012 94
- 95. Employment Law Great Pumpkins ManpowerGroup | October 31, 2012 95
- 96. Scary Like the Great Pumpkin of Q Charlie Brown fame, what are some great (or not-so-great) employment law myths that you can smash for us? ManpowerGroup | October 31, 2012 96
- 97. NLRA Salaried = CT but not doesn‟t Exempt OT is OK apply to me Probation ADA = means new job something ManpowerGroup | October 31, 2012 97
- 98. NLRA SMASHED doesn‟t Salaried = Exempt CT but not OT is OK apply to me Probation ADA = means new job something ManpowerGroup | October 31, 2012 98
- 99. NLRA SMASHED doesn‟t SMASHED Salaried = Exempt CT but not OT is OK apply to me Probation ADA = means new job something ManpowerGroup | October 31, 2012 99
- 100. NLRA SMASHED doesn‟t SMASHED Salaried = Exempt SMASHED CT but not OT is OK apply to me Probation ADA = means new job something ManpowerGroup | October 31, 2012 100
- 101. NLRA SMASHED doesn‟t SMASHED Salaried = Exempt SMASHED CT but not OT is OK apply to me Probation SMASHED ADA = means new job something ManpowerGroup | October 31, 2012 101
- 102. NLRA SMASHED doesn‟t SMASHED Salaried = Exempt SMASHED CT but not OT is OK apply to me Probation SMASHED SMASHED ADA = means new job something ManpowerGroup | October 31, 2012 102
- 103. How To Get Sued BIG Now ManpowerGroup | October 31, 2012 103
- 104. 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 ManpowerGroup | October 31, 2012 104
- 105. On the Blawg … MOST UN-ZOMBIE-LIKE AUDIENCE MEMBER CONTEST ManpowerGroup | October 31, 2012 105
- 106. Coming soon … What‟s NEW & What‟s NEXT For Employment Law in 2013 ManpowerGroup | October 31, 2012 106
- 107. INSERT NEW ICON THANK YOU! ManpowerGroup | October 31, 2012 107
- 108. Did you watch this webinar as a recording? Please request your certificate at INSERT NEW ICON www.manpowergroup.us/requesthrci ManpowerGroup | October 31, 2012 108
Notas do Editor
- Dan
- Dan
- Dan
- Dan
- Mark: Thanks, Dan. Hello everyone and thank you for joining us today!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 reduce your terror level by answering as many spooky employment law ?s as humanly possible. We’re going to go at warp speed but if you miss anything the full PPT with all my notes will be available for your reading pleasure on my blawg.
- OK, here’s where things officially get spooky. Because I’m a lawyer we’ll begin with some frightening legalese [read].In other words, you can’t sue me, Dan, ManpowerGroup or anyone else based on anything you hear here today. So there.
- As an extra added bonus, Dan will somehow be magically tweeting along as me during today’s webinar using the handle @manpowerblawg – that’s b-l-a-w-g – using the hashtag mpwebinar. Thank you, Dan, and please don’t say anything that’ll get me fired.
- Today’s webinar is brought to you by … YOU. Thanks to all of you who submitted ?s and topics in advance for our consideration. Nice mix of big picture strategic stuff and nuts and bolts real-life stuff. We’ll do our best to cover both.In other words, if don’t like what we cover here today you have no one to blame but yourselves.
- Here’s what we’ll cover today. First, we’ll look at some of our pre-webinar survey results to see what YOU want us to talk about. Then we’ll dive right in and de-spook-ify ?s in the topic areas you selected. To help keep you stay awake we’ll mix in a variety of twicky Tweet- and Text-o-ramas for valuable prizes. We’ll then unmask some EL Great Pumpkin myths and then conclude today’s proceedings with our handy how to get sued BIG now tips. But that’s not all. Immediately after the webinar tune into my blawg at marktoth.com for our Least Zombie-ish Webinar Attendee Contest and other great free stuff.
- We’ll also post on my Blawg our 187% free EL Tool Box. Includes a glossary to help decode the alphabet soup of employment laws; cheat sheets on every major employment law; an investigation checklist; termination tools; an overview of wage and hour basics; tools for reducing legal fees and much much more.
- Pre-webinar survey. A truly terrifying 65% of you picked Really very extremely scarier as your #1 choice. 86 to 1. Wow. That IS scary.
- Here’s our 1/4ly Lit Index, where we ask you: Are you seeing an increase in emp’t law claims? 34% of you report an increase vs only 2% of you reporting a decrease. In other words, the number of you seeing an increase is SEVENTEEN times greater than the number who are seeing a decrease. Last Q was ONLY 12X. So that’s scary too.
- We also asked you to rank the world’s scariest employment laws. Here’s your official top 10. We’re going to tackle the top 5 for you here today. That’s one of the filters we used to funnel your ?s scientifically.
- We also asked you to answer this question in 10 words or less: What spooksyou most about the world of work heading into 2013?Here’s basically what you said …
- We also asked you to answer this question in 10 words or less: What concerns you most about the world of work?Got several hundred answers, some of ‘em several hundred words long. Lots of themes came thru loud and clear: [SM, and lots of other things we’re going to be covering here today. Full summary on the Blawg. Add.]
- Our goal is simple: to de-spook-ify employment law one law at a time. For those of you who follow my blog, been doing it all month long leading up to this auspicious occasion by breaking down each and every law in a single post each and every day. We want you to be fear free.
- Focus on the BIG picture as we go throughout so not lose our way …
- Here’s our first Tweetorama. The very first person to tweet the correct answer to this question using our official Blawg handle you see there on the screen will win a valuable prize.Here’s a question I’ve been asking on all my webinars, at live presentations and on my Blawg for the past year. If you had to boil all of empt law down to ONE word, what would it be?Let’s see if our message is starting to get thru. Again: [read ?] Tweet your answer for all the world to see using the handle @manpowerblawg.We’ll announce winners of all our contests later on the Blawg.
- While we’re waiting for folks to weigh in with the BIG answer, thought I’d continue with my personal favorite question. [Read]
- Ask and you will receive. Here’s something decidedly dumb: 2012’s most creative excuses for missing work compiled by our good friends at CareerBuilder. Hopefully you haven’t heard these from any of your employees or tried them yourselves … [read].There you have it, something dumb to start things off.
- Well, here’s the answer to our Tweet-o-rama. Dan, can you say it with me: LOVE!If you really think about it, the law is there basically because we don’t do this very well. If we treated each other with love – how we’d like to be treated, with kindness and dignity and respect – we wouldn’t have to have bazillions of laws and regulations to keep track of and lawyers would all be unemployed. It’d be a beautiful thing.So, want fewer regulations? LOVE your employees. Fewer disputes? LOVE your employees. Fewer lawyers? LOVE your employees. More productivity and engagement and downright happy employees who don’t sue you in massive class actions that take all your time and effort and money? LOVE your employees.It’s that simple.
- Thought it made sense to start right here, given that the ADA and FMLA were #1 and #2 respectively in your top ten scary laws.
- ***POLL***
- 2 lessons here: (1) pregnancy is not a disability bc it’s a short-term condition but (2) lots and lots and loooots of other things ARE including each of the ones on your screen. That doesn’t mean pregnancy discn is legal – it’s just not a disability under the ADA. More on pregnancy in a moment.Never ever assume that something’s not a disability just bc you haven’t heard of something or it seems counter-intuitive. To illustrate that point, one court just refused to dismiss claims brought by a bridge worker who couldn’t work on bridges due to fear of heights and another court refused to dismiss claims by a utility pole worker who couldn’t climb utility poles. Never ever assume.More on Internet Use Disorder in a moment.
- ADA generated a ton of ?s. Let’s look at some quick facts first to help set the stage.Only 32% of disabled working-age Americans are employed (less than pre-ADA, sadly) and only 27.6% are actually working, according to BLS. Americans with disabilities are 2X – two times -- as likely to end up in povertyAccg to a recent study, disability diversity = money:“There’s a large body of research showing that diversity spurs innovation and high performance.” One story: (Walgreens) 20% increase in productivity after focused efforts to increase diversity among the disabled population.And last on your screen there, there are at least 27 million reasons to follow the law. In the last year alone the EEOC recovered $27M for ADA claimants. Be careful out there.
- Thought it might be helpful to start with a how NOT to do the ADA checklist. Took all the recent ADA cases and boiled em down into a handy 5-step process for losing any ADA case [read]. [Add commentary re 1.2M turkeys]
- Chose this one first because it’s the only one that actually screamed. I think that’s pronounced AIYEEEEE! Dan?To make things, took the liberty of highlighting key words in each ? to make sure you get the main gist. We’ll publish afterward in a handy doc organized alphabetically by topic using the highlighted terms as a guide.
- EEOC has announced that it’s going after no-fault attendance policies in a big way. Why? If administer it consistently as ? Asked could mean that you’re flat-out failing to accommodate Ees whose absences are because of disabilities. Backed up its words in a humongous nationwide class action vs. Verizon that was settled for $20M.
- No bright line. Really have to work with Ees. More about that in a moment.
- Maybe (sorry again). Internet Use Disorder (or IUD) has been officially accepted for inclusion in the DSM – the Diagnostic and Statistical Manual of Mental Disorders, the official bible used by doctors, courts and the govt. Official psychiatrist diagnosis manual. According to the American Psychiatric Assn, which compiles the DSM, a person with IUD -- just like a drug addict -- is preoccupied with a substance. Only instead of drugs, it's the Internet. A person with IUD is QUOTE “overly occupied with gaming or checking messages or social media, suffers withdrawal when the Internet goes offline, feels the need to spend more time online to get the same ‘high,’ and neglects their work or family to stay on a computer or smartphone.” Sounds like about 80% of the people I know. Worse yet, studies show that people with IUD have changes in the brainmirroring heroin addicts with effects on brain cells that control attention and processing emotions. If that sounds like you, please please get help.
- A couple of recent cases have found that telecommuting MAY be a RA, but it depends on unique facts related to the EE and workplace in question. Q for jury. You don’t want to go to a jury. Interact with your employees and come up with a BALANCE which is a key word when it comes to the ADA. [22:00]
- Another great ? …
- Split in jurisdictions when it comes to job reassignment as a RA so, as always, check with your fave empt lawyer.
- Which brings us to our first Text-o-rama. Let’s go with the THIRD person to text the correct answer to the # you see there on your screen 414.751.0126 that’s 414.751.0126 will when a prize.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? One call, that’s all, to whom should it be? Operators are standing by.
- 5 main things to keep in mind here. 1. Don’t rely on subjective perceptions or jump to conclusions. 2. Test on “reasonable suspicion” or after a workplace accident. 3. Avoid bans on prescribed meds without individual assessment. 4. Keep everything related to drug testing confidential just like you would for medical records. And 5. Have positive tests for prescription meds reviewed by medical review officer to help you make the right decision.Just bc someone wears Dave Matthews Band T-shirts and has dreadlocks doesn’t necessarily mean that s/he is on drugs. Lots of cases out there where Ers have had to pay big dollars for not following these simple rules, including one auto parts mfr who paid close to half a million. [26:00]
- So, that’s drug testing. So what about drugs @ work generally?1. No ADA protection for those “currently engaging” in use of illegal drugs. 2. Safe harbor for recovering addicts who aren’t currently engaging. What’s currently? No bright line in terms of days. Flexible. Interaction. We’ll tell you all about how to make sure you’re interacting appropriately in a moment. 3. Prescribed meds may be covered unless “direct threat” to safety. More on direct threat in a moment. 4. Generally OK to prohibit being under the influence of any substance other than legally prescribed meds.What about medical marijuana? State-specific. Talk to your fave emp’t lawyer, which is always a good idea when it comes to drugs @ work. But these are some general guidelines to keep in mind.
- High standard as you can see at the bottom of the slide there. Has to be “a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated by reasonable accommodation.” [Read.]Tough but not impossible. A fed court case earlier this year found in favor of Er on the basis that a worker’s heart condition posed a direct threat where an independent medical examiner concluded that allowing the employee to work near moving machinery could pose a direct threat to safety. [29:00]
- Again, what’s the word, Dan? That’s right: LOVE! Treat those with disabilities the way you’d like to be treated.The law requires what we call a graceful interactive DANCE depicted on your screen there. Discuss discuss discuss discuss and then discuss some more. A good faith open dialogue that balances biz needs AND EE needs. Don’t make it a legal gotcha conversation. Actually engage and interact. Both sides can win. And here’s a great way to make that happen, which just happens to be our first Textorama answer …
- [Add]
- Not alone. Beats pay in importance according to recent surveys.
- The Office of Disability Employment Policy has put together a very handy Workplace Flexibility Kit. 172 resources including case studies, FAQs, tip sheets, reports, articles, websites, etc. all designed to enhance workplace flexibility such as time, place and tasks. Great thing to check out.
- ***POLL***Now it’s time for a poll as we transition from #1 scariest law ADA to #2 FMLA. Real life case. How would you rule? Your employee tells you she’s going on FMLA. You discover, however, that she actually took her mom on a vacation to Vegas. You also find out that the two of them hit the casinos, played the slots, shopped on the Strip and ate at some nice restaurants. Your employee claims that she is her mother’s primary caregiver, that she has terminal cancer and that she was there to look after her and give her medication. She admits, though, that her mom had no medical reason to visit Vegas and wasn’t there to seek medical treatment and was never hospitalized or treated there.You fire her for unauthorized absences. She sues. Who wins? YOU be the judge …
- Believe it or not, the EMPLOYEE won. Never ever assume just because something seems ridiculous that it’s not covered by the law. An eligible EE can take FMLA to care for a parent with a serious health condition such as cancer. But is it “caring” to take your mom to Vegas?The court focused on what the word “care” means under the FMLA. The statute itself is silent but the supporting regs say that caring for a family member doesn’t depend on a particular location or on participation in medical treatment itself. The court concluded that unquestionably what the EE did for her mom at home constituted “care” so why not when she’s doing some of the same things in Vegas? Note: At least one fed ct disagrees, saying that the family member must at least seek care in the locale in question. But the lesson again? Never assume. [34:00]
- This is a ? we’ve covered before. Here’s our handy-dandy one-page chart. Won’t cover here today. You can print out the chart and frame it in your cube and then search the Blawg using the word “intermittent” and you’ll get everything you could ever need to know and then some. [34:00]
- If that’s not enough, here’s another handy resource you might want to check out. The DOL issued a new EE Guide to the FMLA, a “plain language booklet designed to answer common FMLA questions and clarify who can take FMLA leave and what protections the FMLA provides.” Your employees are reading it — so should you. Specific questions/answers include: Who can take leave? When can they take it? How do they take it? What rights do employees have? What obligations do employers have? How does the medical certification process really work? How does the return to work process really work? Etc. It also contains a handy flow chart to determine FMLA eligibility, defines key terms and maps out the leave process. Good stuff to help you do the right thing.
- So that’s how TO manage FMLA. A recent case gives a great illustration of how NOT to manage FMLA …Let’s say an employee requests FMLA for a hysterectomy. The employee’s supervisor responds by giving her a copy of a book entitled No More Hysterectomies. The employee then gets a disciplinary warning for behavior that others who didn’t request FMLA were never disciplined for. The company then RIFs the employee and explains that she’s getting RIFd not for objective RIF-like reasons but instead because of her arguably discriminatory disciplinary record. To top things off the employer informs the employee that her RIF was really a QUOTE “blessing in disguise” for her. Please please don’t do anything like that. [37:00]
- The #3 scariest law according to YOU is the FLSA. Also the #1 source of humongous class actions so please stay awake during this portion.
- Lots of wage and hour weirdness being reported out there. We’re here to un-weird it for you.
- Not exactly sure if this qualifies as a “thingy,” but it is on one page. Gaze at the words there on your screen and try to determine for yourself which of these big 10 Ers generally are required to pay under the FLSA.Done? OK here’s the answer …
- Everything in white. [Read.]Pretty simple. Again, all the FLSA is doing here is trying to get employers to pay for what they should pay for without the govt or plaintiffs’ attys having to tell you that. Again. Love. Your. Employees. Pay em the way you’d like to be paid.
- LOOOOTS of ?s about the NLRB …
- Only slightly kidding.
- But I’ll try anyway. Here are the latest NLRB No-nos. Big concern is that NLRB’s broad rule-making and case-deciding authority can bypass Congress to put pieces of things like the EFCA in place. Real concern there and it’s already coming to fruition with some fairly union-friendly rulings. No confidentiality in investigations? More on that in a moment. No employment at will? The NLRB says handbooks that state that an EE’s EAW cannot be amended or modified is an ULP.But it’s not all Nos. One thing the NLRB did say yes to was unions putting giant inflatable protestrats on Ers sites. So that’s OK. [40:00]
- Avoid overly broad. NLRB model. SM Starter Kit.
- Blanket prohibitions saying thou shalt not ever under any circumstances now or forever more talk about this investigation are now on both NLRB and EEOC hit list. NLRB: “concerted activities.” EEOC: “complaint chilling.”If not, you could face NLRB or EEOC scrutiny.
- Speaking of the EEOC, there appears to be a whole lot of EEOCophobia spreading out there.
- Crim: More on that in a moment. New online charge tool: [Add]BIG subpoenas: Fed ct ruled that EEOC can subpoena QUOTE “virtually any material that MIGHT cast light on the allegations against the Er.”Transgender: EEOC now unequivocally contends that discrimination vs transgender individuals is gender discn under Title VII. 752,000 rsns for EEOC to be nice to Ers: Ct awarded $752K in attorneys’ fees and costs awarded to an employer after the EEOC withdrew a suit it decided not to pursue. Ct said QUOTE: “This is one of those cases where the cplt turned out to be without foundation from the beginning.”
- SEP.Systemic.
- Very, acc’g to EEOC C’r Chai Feldblum. Pregnancy disc is a big target for the EEOC bc Ers keep doing dumb – and illegal -- things. Major lawsuits against companies that you would think would know better, like Motherhood Maternity and Kids R Us.
- Interesting stat: Accg to recent survey, 69% of Ers now use bground checks for every posn.EEOC started to get interested in this area when it confronted a case in which an employee claimed he was unjustly fired when his Er learned of a 40-year-old murder conviction. Here’s what the new guidance says are best practices. [Read]
- And that’s a big “BUT.”
- Again, guidance, not law. [49:00]
- ***POLL***
- ***POLL***If your answer is “other” please tweet or text us what “other” you use. Really curious. To tweet, again it’s @manpowerblawg and the text # is 414.751.0126
- Hopefully you’re not like one prominent public figure who shall remain nameless who chastised peeps for using “Spacebook” and “Tweeter.”
- 98% of HR pros now say SM is impt for recruiting, retaining and managing Ees. (Achievers Social HR Survey)75% Ees access SM while on job; 60% multiple times/day (SilkRoad)< 10% Ees get SM training (SilkRoad)Not wasting time: #1 reason for using SM was to interact with co-ws. Fun #2 and customers #3.0 basically the # of Ers demanding EE passwords, despite all the hubbubFrowny face: Turns out that all this SM use could be depressing us. 1 study found that peeps are getting depressed over the # of FB friends they have. If they have too few, they compare themselves to those with 1000s and feel bad. If they have too many they feel like they can’t keep up. Especially true for the male of the species for some rsn. The magic #? Apparently 354. Another study concluded that there’s a scientific correlation bw how happy you look in your SM profile pics and social success. The bottom line? SMILE.!!!!: Want to find out what your Ees are REALLY thinking and doing? Check out weknowwhatyouredoing.com. It compiles SM updates from Ees into several interesting categories: “Who wants to get fired?” “Who’s hung over?” and “Who’s taking drugs?” and then displays ‘em for all the world to see.Here’s a sampling of some of what Ees are saying out there: I hate my boss with 4 exclamation points. Another: Hungover, still a lot of zombie makeup that won't come off, should probably go back to bed, or find some people to eat.Might want to remind your Ees and yourself to update your privacy settings.
- We’ve pulled together all the world’s greatest tips into our official Social Media Starter Kit, which is available for free right now on the Blawg. Here’s what you get: Summary of the law, NLRB-approved model policy, the Blawg’s official model policy, Other Fortune 500 policies,SM 101 articles and much much more. And. All. For. Free.
- As we start to approach the end of our time together here, let’s address some EL Great Pumpkins. Here’s a great ? …
- Let’s start with the first one. The NLRA doesn’t apply to me, I’m a non-union Er.
- Smashed. The NLRA covers the vast majority of private Ers whether you have a union or not. How about the next one?
- Anyone can tell you how NOT to get sued. To sum up, here on one page is HOW TO GET SUED BIG NOW.
- Immediately following this webinar. Contest on the blawg – that’s marktoth.com. Simple quiz to determine who stayed the most un-dead throughout today’s presentation.
- Next webinar. You may have heard that there’s an election coming up. Could result in some verrrrrrrry interesting changes in the emp’t law landscape. We’ll kick off the new year with a handy guide to everything you need to stay out of court and/or jail. You won’t want to miss it.
- THANK YOU THANK YOU THANK YOU so much for your time, attention and participation – we really really really appreciate it!And now, back over to Dan.
- THANK YOU THANK YOU THANK YOU so much for your time, attention and participation – we really really really appreciate it!And now, back over to Dan.