This webinar covered various employment law topics including wage and hour issues, unions, investigations, terminations, and ADA compliance. It provided updates on recent legal developments, answered audience questions, and offered practical advice and checklists for compliance. The presentation emphasized the importance of knowing employment laws, properly investigating complaints, consistently applying policies, and treating employees with dignity to avoid costly litigation. It also provided additional free resources for participants to stay informed on legal issues.
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6. Todayâs Webinar Designer: YOU
What YOU Want Us To Talk About
What YOU Really Need to Know
YOUR Questions
YOUR 187% Free Resources
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7. Official Disclaimer
The 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.
8. Tweet along:
#mpwebinar
Follow Mark on Twitter:
@manpowerblawg
Visit Markâs Blawg:
marktoth.com
Find us on Facebook:
facebook.com/manpowerUS
11. Is complying with employment laws
getting easier or harder?
Question
Really very extremely easier
Somewhat easier
No change
Somewhat harder
Really very extremely harder
0.1%
3.1%
22.1%
61.4%
13.3%
12. Are you seeing an increase in
employment law claims?
Question
Yes, substantial increase
Yes, moderate increase
No change
No, moderate decrease
No, substantial decrease
3.3%
28.7%
65.9%
2.1%
0.0%
23. What ONE THING should I
do right after this webinar
to avoid my company
becoming the next wage
and hour class action victim?
Q
24. 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
25. 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
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
26. Exemption Basics
Executive
⢠Primarily engaged in management
⢠Direct 2 or more FTEs
⢠Authorized to affect terms and conditions of others through hiring, firing, etc.
Administrative
⢠Office or non-manual work related to general business operations
⢠Independent judgment and discretion in significant matters
Professional
⢠Functions that require advanced knowledge in a field of science or learning
Computer
⢠Functions that require application of systems analysis techniques, design or
development of computer systems or programs, or the creation or modification
of programs relating to operating systems
Outside Sales
⢠Make sales and regularly work away from the employerâs business
27. Wage and Hour Solutions
Know the Law
Train managers and employees on time-keeping
Complaint system: investigate promptly & thoroughly
Audit classifications and records
Address any discrepancies immediately
29. True or False?
The NLRB only has jurisdiction over
unionized companies.
A. True
B. False
30. The NLRB only has jurisdiction over
unionized companies.
A. True
B. False
True or False?
31. Can you explain all the NLRB
appointment shenanigans?
Whoâs on the Board now, whoâs
not and why should employers
care? Also, is it true that all of
the Boardâs decisions of the
past few years are invalid due
to unconstitutional
appointments?
Q
32. It seems like the government
keeps changing its position on
what employers can and canât
do when it comes to social
media. Can you sort it all out in
one handy slide (please)?
Q
33. Every Social Media Case On 1 Slide
âProtected concerted activityâ
Union or non-union
> 1
Wages / work conditions
Same in cyberspace
34. So what are employers reeeally
using social media for?
Q
35. To Find Bad Stuff
50%: Inappropriate photos/info
48%: Drug /alcohol use
33%: Bad-mouthing prior employer
30%: Bad communication skills
28%: Discriminatory comments
37. ManpowerGroup | Halloween 2012
Iâm thoroughly confused
about the new rules on
investigation confidentiality.
Whatâs the deal?
Q
38. ManpowerGroup | Halloween 2012
Investigation Confidentiality
Witness Protection
Evidence Destruction/Fabrication
Cover-up
Duration of Investigation
Company Time/Property
39. ManpowerGroup | Halloween 2012
OK, I admit it. Iâm an HR
person who doesnât really
know all the steps in a good
investigation. Please donât tell
my boss. Where can I find a
handy guide to investigations
that can help keep me from
getting fired?
Q
40. ManpowerGroup | Halloween 2012
Investigation Checklist
Step One: Prepare
Plan the investigation strategy
Review relevant policies and handbook provisions
Evaluate pros and cons of investigation
Pick a competent and impartial investigator
Analyze potential risk factors
Review allegations and prep list of witnesses and questions
Establish a confidential investigation file
41. ManpowerGroup | Halloween 2012
Step Two: Investigate
Interview the complaining employee first
Now â donât procrastinate
View the site of the alleged incident
Each relevant witness identified by the complaining party should be interviewed
Supervisors should be involved to provide context
Take the time to gather all potentially relevant evidence
Interview the accused
Gather potentially mitigating evidence and talk to witnesses named by accused
Analyze all the evidence objectively
Talk to an attorney about any potential legal issues
End the investigation with a written report and appropriate communication
Investigation Checklist
42. YOU be the judge
Who wins?
A. Employer
B. Employee
C. Neither
45. 11. Not telling real reasons
10. Poorly planned
termination meeting
9. Ignoring policies
and contracts
8. Bad post-termination
communication
7. Ignoring past practice
6. Emotion over facts
5. Not getting a release
4. Inadequate documentation
3. Non-job-related factors
2. Not treating with dignity
and respect
1. NOT firing someone
who should be fired
47. Termination Test
Reasonable notice of consequences?Notice
Related to (a) efficient and safe operations and
(b) performance company should reasonably expect?Rule
Full, fair and timely?Investigation
Sufficient evidence that guilty as charged?Proof
Rule consistently applied to all?Consistency
Punishment fit the crime, considering
(a) seriousness of offense and (b) service record?Penalty
48. Termination Meeting
Manager, HR, no 3rd parties (except union rep).
Security? Outplacement?
Manager: decision. HR: all else. Final pay + notice
(some states).
In person. Not managerâs office. No projectiles.
Mid-week #1, Friday #2, Monday worst. End of day #1,
morning #2. Avoid holidays.
Compassionate.
Who?
What?
Where?
When?
How?
50. How Much Will YOU Pay?
$1M+
Big pattern
+/or reallllllly
horrible facts
1%
$100K-$1M
Pattern +/or
really horrible
facts
39%
$51-$100K
1 plaintiff +
horrible facts
28%32%
Sources: EEOC, Jury Verdict Research
$1M+
Big pattern +/or
reeeeeeeally
horrible facts
$100K-$1M
Pattern +/or
really horrible facts
$51-$100K
1 plaintiff +
horrible facts
$0-$50K
1 plaintiff +
no horrible facts
51. ManpowerGroup | Halloween 2012
ADA How NOT To
Have an
inflexible
leave policy
Make snap
judgments
Donât
interact
Donât
accommodate
Put dumb
stuff in
writing
53. ManpowerGroup | Halloween 2012
Making Intermittent Leave Simple
Notice, 7 days to cureIncomplete
Certification
Clarify/authenticate HR,
not supervisor
Contact
Provider
Recert from original provider
OR employer-paid 2nd opinion
Recert or
2nd Option
If conflict, final & binding
3rd
Option
54. ManpowerGroup | Halloween 2012
EEOC
Hiring
Pregnancy
Harassment
Vulnerable
Workers
Access
to Legal
System
ADA
LGBT
56. Prison-free Plan
KNOW THE LAW
USE THE INVESTIGATION CHECKLIST
FOLLOW THE TERMINATION TIPS
LOVE YOUR EMPLOYEES
FOCUS ON KEY PRIORITIES
Known violations
Systemic issues
Wage & hour
EEOC priorities
61. Employment law can be easy
If you listen you surely wonât fail
We wrote you this song
So please sing along
If you donât, you could end up in jail
62. The law, itâs always a-changing
With new acronyms every day
But if you visit my Blawg
You wonât be in the fog
And big verdicts you wonât have to pay
63. So, remember this song
And youâll never go wrong
Yes we wish you the best on your journeys
Youâll stay out of court
And you wonât have to pay no attorneys
64. Donât put things off til tomorrow
Yes investigate right away
Donât procrastinate
Cuz the more that you wait
The more you will have to pay
65. If your brainâs too full to remember
All the stuff we just covered above
Thereâs one little word
That sums up what you heard
Love love love love love love LOVE!
66. So, remember this song
And youâll never go wrong
Yes we wish you the best on your journeys
Youâll stay out of court
And you wonât have to pay no attorneys
68. INSERT NEW ICON
Did you watch this webinar as a recording?
Please request your certificate at
www.manpowergroup.us/requesthrci
Photo credits: Shutterstock
Editor's Notes
[Ellen]
[Ellen]
[Ellen]
[Ellen]
Mark: Thanks, Ellen. Hello everyone and thank for joining us for the Employment Law Talk Show. Todayâs presentation is brought to you, of course, by ManpowerGroup: making innovative workforce solutions humanly possible. Ellen: How many registrations do we have here today? [Answer.] Wow. Hereâs our agenda . . .
Weâre going to do something a bit different with this webinar. Rather than listen to me blah blah blah the entire time, youâll get a chance to hear what other far-more-interesting experts have to say about the worldâs hottest employment law topics. Iâll MC, provide color commentary, conduct contests for valuable prizes and keep things moving at a rapid-fire pace to make sure you stay awake.As always, itâs all about YOU. Todayâs webinar truly was designed by YOU. If you donât like it you have no one but YOU to blame. Weâll start with the results of our pre-webinar survey in which we attempted to determine what YOU really want us to talk about?The #1 thing you wanted to hear about is next on the screen there: What YOU really need to know. In other words, everything thatâs happened in the wonderful world of workplace law so far this year.Next is YOUR questions. You submitted roughly 28 bazillion ?s before the webinar and will continue to do so during todayâs show. Just send âem in. Ellen: Could you please tell our lovely audience how they can do that?To make sure you stay tuned for the entirety of todayâs webinar, toward the end weâll tell you where YOU can get our 187% free resources on every employment law topic under the sun.But thatâs not all. Throughout and even after the webinar weâll give you several chances to win valuable prizes.AND â if youâre good â we might even sing you a song. Based on feedback we got following his last appearance with us, we promise to keep the mic as far from Joel as humanly possible.As always, weâre going to move FAST. This will be a high-impact and quite possibly perspiration-producing presentation. Everything will be available later in a recorded as well as SlideShare version if you need to go back and review. Letâs go!
And now hereâs our official disclaimer. The 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 please please consult with your own HR and Legal departments before making any major policy and/or procedure changes. In other words, you canât sue me, Ellen, Joel, Kathleen, ManpowerGroup or anyone else based on anything you hear or see here today. You have been warned.
To further enhance your chances of staying awake here today, weâre giving you numerous ways of absorbing todayâs message thru a variety of SM. You can tweet along with todayâs festivities using the hashtag mpwebinar. You can follow me on Twitter @manpowerblawg â b-l-a-w-g. You can visit my blawg at marktoth.com and you can find us on Facebook at the address you see there on the screen.
Simple. Practical. Why we use MW. JW. KO. We asked visitors to our Blawg: What do you reeeeally want us to talk about? Here are the results, starting at the top.After nearly a thousand votes, here is your official top ten:Latest DevelopmentsWage & HourUnionsInvestigationsTerminations and then the also-rans you see there on your screen.We designed the webinar around your votes. As always, thanks for your participation!
Hereâs our semi-annual poll in which we ask: Is complying with employment laws getting easier or harder? Sadly, only 0.1% of you said really very extremely easier and only 3.1% said somewhat easier. By far the biggest # of you said somewhat harder â 61.4%. In other words, 24 times more of you said it is getting harder out there rather than easier. Thatâs probably why youâre here. Which leads us to our next pre-webinar poll âŚ
We asked: Are you seeing an increase in empât law claims? Similar results. A whopping 0.0% said theyâre seeing a substantial decrease. In fact, 15 times more of you said theyâre seeing an increase vs a decrease. The good news is that there is some stability with nearly 2/3 of you saying thereâs no change.
Those of you who have participated in my previous webinars have a built-in advantage on this question. But Iâm OK with that. Hereâs our Tweet-o-rama. The first person to tweet the correct answer to this question using our official Blawg handle you see there on the screen will win a $50 gift certificate good for any of the fine merchants at giftcertificates.com.Itâs a theme we repeat in basically all of my webinars but we want to see if our message is sinking in. If you had to boil all of employment law down to ONE word, what would it be? Again, If you had to boil all of employment law down to ONE word, what would it be? Tweet your answer for all the world to see using the handle @manpowerblawg. Thatâs @manpowerblawg. B-l-a-w-g.
Does the Supreme Court love business? You be the judge. First, the Court raised the standard for proving Title VII retaliation claims to âbut forâ causation instead of the lower âmixed motiveâ standard. âBut forâ causation requires proving that the employer would not have taken an adverse employment action âbut forâ an improper motive. âMixed motiveâ causation requires only proof that the improper motive was one of multiple reasons for the employment action. The Court also narrowed the definition of âsupervisorâ that triggers vicarious employer liability for harassment to those with the power  to take âadverse employment actionsâ such as hiring, firing, demoting and reassigning, rather than those who merely direct or oversee other employees. The court also upheld class action waivers (albeit in a non-employment context); struck down attempts by trial lawyers to avoid the effects of the Class Action Fairness Act, a 2005 statute designed to steer class actions into federal rather than state courts; and even ruled that trial lawyers canât troll DMV records to recruit plaintiffs for lawsuits. [Hereâs a question for Kathleen: In your expert judgment, which of these do you predict will have the most impact?]
You can find details on each of these on the Blawg. Just search for 2013 Halftime Report. Quickly, there are new FMLA forms, rules, posters and FAQs to cover all the new military leave related pieces. Hopefully youâre all aware that the Department of Health and Human Services issued a 563-page final rule regulating protected health information. In short, the message is pretty simple: protect ⌠health ⌠information. You have exactly 25 days to make the appropriate updates. Deadline is September 23. More details on the Blawg. The EEOC recently issued new guidance on accommodating cancer, diabetes, epilepsy and intellectual disabilities. Thereâs also a new I-9 form and lots of new enforcement efforts to go with it and last on the screen there, the Genetic Information Nondiscrimination Act is now officially real. The EEOC recently settled its very fist GINA suit. [Joel: Hereâs a question. Keep hearing that new OFCCP disability rules are coming. Are they? When? What employers are covered? What do they require?]
What else ELSE is new? Hereâs a question: Do employers have to grant same-sex spouses FMLA leave in the defenses of the SCtâs dumpage of the Defense of Marriage Act?[Joel/Kathleen: care to weigh in?] It depends (thereâs that phrase again) on whether the state recognizes same-sex marriage. DOL updated its FMLA fact sheet to capture that position. Some other wrinkles ⌠Whistleblowers can now blow the whistle electronically for any of the 22 whistle-blower statutes overseen by OSHA. A federal court ruled that the NLRB has wide discretion in allowing unions to organize small micro-units unless the employer can prove that it is âarbitrary, unreasonable or an abuse of discretion.â And just last week the OFCCP released its brand new Federal Contractor Compliance Manual, the âprocedural framework for executing quality and timely compliance evaluations and compliance investigations.â One other interesting bit: If you feel like youâre getting sued a lot more often for non-compete issues, youâre not alone. The # of lawsuits filed over nc issues has risen more than 60% in the last decade and is at an all-time high.
As you can see on our screen there, itâs time for our Text-o-rama. The first person to text us at the number on the screen: 414/751-0126, thatâs 414/751-0126 -- with the correct answerwill be our next winner of a $50 gift certificate good for any of the fine merchants @ giftcertificates.com. Just type in your first name so we can identify you + your answer. Hereâs the question: True or False: TV celebrity chef Paula Deen recently lost a race discrimination lawsuit. [Repeat.]
While weâre waiting for answers to come in, hereâs the answer to our Tweet-o-rama. The absolutely key to HR, employment law, employee engagement and everything else in the universe is this one little word: LOVE. This has been the central message of our last bazillion or so webinars so hopefully the message is starting to get thru. If you really think about it, the law is there basically because we donât do this whole LOVE thing very well. If we treated each other how weâd like to be treated -- with kindness and dignity and respect â we wouldnât have to have all of those annoying laws and regulations to keep track of and lawyers would all be unemployed. Itâd 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 donât sue you in massive class actions that take all your time and effort and money? LOVE your employees. Itâs that simple.Winner?
And hereâs the answer to our text-o-rama. FALSE. Probably surprising to some given all the media attention. While there was a lot of publicity about Paula Deenâs recent lawsuit in which she admitted under oath that she used racial slurs, she actually WON her suit. The reason? The suit was brought by a Caucasian individual who wasnât the actual target of the slurs but who neverthless claimed she was the victim of a hostile work environment. The court found she had no standing to sue. But while she may have won Ms. Deen reeeeeeally lost. Her sponsorships have split and her career has crumbled. Please pleaseplease never ever use a racial slur even in jest. Could end your career quickly.
And now itâs on to YOUR questions. Before we plunge in to YOUR wage and hour questions Iâd like to answer my favorite question that weâve received thus far. Here it is: Why do lawyers answer every question with âit dependsâ? Iâll take that one: It depends. Thanks for asking. Honorable mention ?s we received (and these are actual ?s that people have actually taken the time to type in): Why do we drive on the right side of the road in the US while in the UK they drive on the left? Joel? Hereâs another: When do we get to relax? Answer: After we die. Another: What recommendations do you have for those of us in CA? Answer: Leave. And last: âWhy are manhole covers round?â That questioner even provided the answer: Because the holes are round. You canât say you didnât learn something valuable here today.
[This is probably the most significant question yâall will answer all day so Iâll ask you both. Kathleen: What ONE thing would you recommend? Joel?]
Hereâs an awesome little tool that every HR, business and legal person should memorize. Virtually everything you need on one screen. Gaze at the words you see there and try to determine for yourself which of these big 10 employers generally are required to pay under the FLSA. Done? OK hereâs the answer âŚ
Generally speaking, everything in white. [Read.]Pretty simple. All the FLSA is doing here is trying to get employers to pay for what they should pay for without the government or plaintiffsâ attorneys or a judge having to tell you that. Again: LOVE your employees. Pay âem fairly.
Here on one screen [Joel or Kathleen: Hereâs an intriguing question from one of our attendees âWhen is an exempt employee entitled to OT pay?]
Hereâs another wage and hour question: Is it legal to set a salary ceiling for Ees and lay off those who reach it and then rehire new people?
And now itâs on to the next category of YOUR questions: Unions.
***POLL*** Hereâs a question for YOU. We asked this a couple of webinars ago and far too many peeps got it wrong. Letâs try it again. [read]
Some employers still donât realize that the NLRB and the National Labor Relations Act it enforces apply to both unionized and NON-unionized companies. If you donât have a union that doesnât mean you can just doze off til the next section.
[Joel: Hereâs one for you âŚ] Think weâll see expedited elections get resurrected? [Mark: If not raise -- A fed ct ruled 2 weeks ago that the NLRBâs top lawyer was improperly appointed. So could add even more wrinkles to an already wrinkly situation.]
Iâll take this one. Hereâs a handy one-page guide to every recent NLRB decision. Basically, anything that infringes on the blue box you see there, the NLRB will have a problem with. Protected concerted activity is the key concept. Again, applies in union AND non-union settings. Any time you have more than one employee discussing virtually anything related to wages or work conditions you need to be careful. And as many employers are discovering, the rule really isnât any different in cyberspace. Whether itâs in the cafeteria or on Facebook be very careful about punishing employees for anything that could be protected concerted activity. For more, check out our handy SM Starter Kit in the EL Tool Box. Lots more there on this topic.
More and more employers are using SM to screen candidates. More use it to find bad rather than good stuff. Up 10% in just the past year. In other words, people would be much better off if they never ever posted a single thing online. Here are the top 5 things that kept peeps from getting hired. [Read.] Reeeeally glad Facebook didnât exist when I was a pup.
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: âconcerted activities.â EEOC: âcomplaint chilling.â Here are some general guidelines. If you can show a legit interest in protection witnesses or avoiding evidence disappearing or a cover-up and you only require confidentiality for the duration of the investigation and on company time and property, youâre more likely to withstand NLRB or EEOC scrutiny. If not, you might not. Of course, that last one could swallow everything else up if employees start blabbing the moment they get off work. But thatâs the latest guidance. [Joel/Kathleen: Lots of ?s on this. What are employers reeeeally doing in this area?]
[Read] Ask and you shall receive.
Got several billion ?s in this area. Hereâs everything you need to know, courtesy of our updated Investigation Checklist.2 steps. Prepare and Investigate. This checklist was put together based on thousands of collective hours of litigationexperience. Follow these and you may never see the inside of a courtroom ever again.P stands for plan the investigation strategy. Waaay too many employers skip this step and plunge in without preparation. Donât. R is for review all relevant policies at the outset. E: Evaluate the pros and cons of investigation. Investigate ALL claims of discrimination but not everything else warrants an investigation. P: Pick a competent and impartial investigator. If you donât, the entire investigation could be attacked as a sham. Next, analyze potential risk factors such as protected classes, medical leave issues, potential retaliation, etc. R: Review the allegations and prepare a witness and question list so you donât forget anything. And then the last step of PREPARE is to Establish a confidential investigation file away from prying eyes.If you skip any of these steps, your investigation could be in peril. [Letâs stop and let people absorb this for a moment. Hereâs a question: Who makes the ideal investigator in your mind?]
Now that youâre PREPAREd, itâs time to INVESTIGATE. I: Interview the complaining employee first to get the whole waterfront of allegations and know what youâre dealing with. Keep asking: âAnything else?â to close things off.N: Now. Donât procrastinate. Act while memories, docs and evidence are still fresh.V: View the site of the alleged incident. Columbo always did it, so should you. Might miss the key to the puzzle.E: Each witness IDâd by the complainant should be interviewed next and then interview S Supervisors to provide needed context and background.And then T take the time to gather all relevant evidence.Next step: I interview the accused. Give him or her a chance to tell their side of the story. Donât rush to judgment and assume theyâre guilty.G: Gather all potentially mitigating evidence and interview any Ws IDâd by the accused.And then A analyze ALL the evidence objectively. Really think it thru. Imagine the govt or a judge ?g your every step and conclusion.T talk to your favorite empât law attorney â Joel Spitz for example â about potentially thorny legal issues.And then E end the investigation with a written report and appropriate communication.Hereâs a question for you Kathleen as someone whoâs actually spent a time in both HR and Legal. What 1 thing do you wish managers or HR folks would start or stop doing when it comes to investigations?A recent case out of my home state of KY shows the importance of resisting the temptation to skip any steps just because you think youâve got a reeeally solid case. A sexual harasser was caught dead-to-rights. The HR person was so sure that he could fire the person to show how strong the company is against harassment that he wrote up the termination notice prior to meeting with the plaintiff to get her side of the story. Court ruled against the employer. Donât skip steps.
***POLL*** Hereâs another real-life case. As I read it, weigh in. Letâs say youâre a male supervisor. You have a male employee thatâs giving you grief but you donât have the goods to fire him. So what do you do in todayâs modern world? You create a fake Facebook profile as a woman named Layla Shine replete with a womanly photograph and everything. You then send the male employee a friend request. He accepts it. You then dig around on the employeeâs site, print out some of his rather inappropriate comments and use âem to support a termination for âpoor judgment.â The employee sues. Who wins?
The ruling went in favor of the employee because the manager violated the federal Stored Communications Act or SCA. In short, if you use fraudulent means to obtain social media access you may run afoul of the SCA. Judges and juries donât like it when employers use shady tactics. When in doubt, donât be sneaky.
Please not that most webinars out there give you mere top 10 lists. Ours go to 11. Hereâs our updated official Top 11 Termination Troubles certain to land you in legal hot water.#11: Not telling someone the real reasons youâre firing them. Donât sugarcoat. Be honest. #10: A poorly planned termination meeting. Weâll fix that for you in a moment. #9: Ignoring policies and employment contracts. Never good. #8: Bad post-term communication. Saying either too much or too little can hurt you. #7: Ignore past practice at your peril. #6. Reacting out of emotion instead of facts can lead to terrible decisions. Just the facts, man. #5: Not getting a release especially if you give an employee $ to go away is never a good idea. They just might use it to sue you. #4: Inadequate documentation. Document, document, document unless you say dumb things. #3: Considering non-job-related factors. Again, if it ainât job-related, it ainât job-related. #2: Not treating employees with dignity and respect when you terminate them. More on that later. #1: Not firing someone who should be fired. Too many employers drag their feet when it comes to terminations which can end up hurting morale and costing more in the long run.[Joel/Kathleen: One theme of questions is how these tools apply in real life. So, Joel/Kathleen, any real-life examples of the termination troubles in the past year on this list youâd like to share?]
Before you terminate anyone, hereâs a handy checklist to make sure you review each and every key piece of information. Organizations miss one or more of these all the time. [Joel/Kathleen: Lots of questions of this variety â What ONE thing do you see employers most often mess up in this area?]
To help guide your termination decisions, hereâs a handy one-page time-honored test that can save you lots of grief and money. I personally used this in several cases and won hands-down each time. If you canât give a definitive âyesâ to each of these ?s, donât terminate.Kathleen: How about real-life examples where a client failed to follow one of these and the result wasnât pretty? Joel?OK, letâs apply this to a real-life case. Letâs say youâre a manager at a bank. A 68-year-old employee has worked for you for 11 years. She has no disciplinary history and just a few months ago she got an âexceeds expectationsâ performance review. One day, however, the employee tells a bank customer whoâs a friend of hers that when she sees her ex-boyfriend she QUOTE âwould wear her nightgown and it wonât be my flannel one.â You have a published policy that provides that most first-time issues should be addressed by a warning and/or training but includes a statement that when QUOTE âthe employee has done something so egregious that immediate dismissal is appropriate.â You conduct a full and quick investigation and conclude that the employee actually made the comment. [OK, experts, apply the test. Should she be fired?] Was there notice of consequences? What about the second test? Yep. Third? Yep. Fourth? Yep. Fifth? Hmm. Sixth? Bigger hmmmmmm. So what happened in real life? The employer didnât apply a test like this, made an example of the employee and fired her. She sued for age discrimination and won primarily because of a failure to meet the last step. The court found that the penalty for the employeeâs rather innocuous non-flannel nightgown comment in light of her spotless 11-year-career and recent exceeds expectation rating was more deserving of a warning rather than firing.
Another big area of ?s is: How exactly do we handle the termination meeting to reduce risk? Here on 1 slide are the worldâs greatest best practices in this area, based on lots of conversations with the worldâs greatest employment lawyers and HR folks.[Read]
Question: Iâm facing a lawsuit but have no idea how much to settle for? Help!So, how much will you have to pay? Hereâs our latest and greatest breakdown of real-life cases right now and how much youâll have to pay. Can be very helpful when it comes to settlement discussions.Starting at the left. If your case has just 1 plaintiff and really no horrible facts, which is about a third of all cases, expect to pay between 0 and fifty thousand dollars. If you have 1 plaintiff but horrible facts â 28% of cases â expect to pay between 51 and 100 thousand. If you have a pattern or systemic case with more than 1 plaintiff and/or really horrible facts â 39% of the cases out there â expect to pay between 100 thousand and 1 million. And if you have a big pattern with lots of plaintiffs and/or realllllllllly horrible facts, expect to pay more than a million. Thankfully thatâs only about 1% of all the cases out there.One recent note about settlements: one employer recently opted to pay a 150 thousand dollar settlement entirely in quarters. Thatâs 600 thousand quarters. 4 tons. 11 football fields long. Wouldnât advise doing that.
Lots of ?s on ADA pitfalls. Here on one slide is a handy checklist on how NOT to do the ADA, based on all the latest cases. First, have an inflexible one-size-fits-all leave policy that doesnât allow for individual variations and accommodations. The EEOC already has a $20M settlement in such a case. Next, make snap judgments that something youâve never heard of isnât a disability. Third, donât interact with the employee in a meaningful way. Next, donât accommodate the employee even if itâs fairly reasonable. And last, do like far too many employers have done and memorialize your discriminatory acts in writing for future judges and juries to see. [Again, Joel and Kathleen, itâs all about what? Thatâs right: LOVE!]
And hereâs how TO do the ADA. Treat those with disabilities the way youâd like to be treated. The law requires a graceful interactive DANCE depicted on your screen there. Discuss discuss discuss discuss and then discuss some more. It should be a good faith open dialogue that balances biz needs AND EE needs. Actually engage and interact. Both sides can win.
Several peeps asked this question: How do you reduce intermittent FMLA leave abuse? Hereâs our handy-dandy one-page chart weâve discussed on previous webinars.. You can print out the chart and frame it in your cube and then in the next few days weâll tell you what it all means.
Hereâs an answer to the question: What is the EEOC really targeting? These are what the EEOC itself says are its enforcement priorities, based on its latest Strategic Enforcement Plan. Now more than ever the EEOC will looking at systemic issues in each of these categories: Hiring practices (including screening and testing), Vulnerable Workers, disabled employees covered by the ADA, LGBT employees, those who lack access to the legal system, harassment victims and pregnant employees. Want the EEOC to come after you? Mistreat employees in one or more of these categories.
Now itâs time to start wrapping things up with our official 2013 Stay out of jail ACTION PLAN.
Hereâs how to stay prison-free. First, and this is why youâre all here, KNOW THE LAW. Update your policies and procedures â plaintiffâs attorneys love it when you donât. Next: Focus on key priorities we identified here today. Address any known violations of the law first and then any system-wide issues. Next address any wage and hour issues, particularly misclassifications. And then make sure youâre solid on all the EEOC strategic priorities we discussed. Use the investigation checklist we gave you and the termination tips. And â above all else LOVE your employees. Treat âem the way youâd like to be treated. With dignity and respect. If you donât, they just might sue you.
Weâll 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.
On the Blawg you can also find the Worldâs Most Fabulous Employment Library, which is open 24 hours a day 7 days a week 365 and a quarter days a year (which covers all leap years just in case youâre wondering). In it you can find a wealth of information on literally every employment law topic in the history of the universe. And. All. For. Free.
Immediately following this webinar weâll have our Least Likely to be Incarcerated Contest on the blawg â thatâs marktoth.com. Answer the questions correctly and you just might win a valuable prize.
And last but not least, weâll close todayâs festivities with our new and improved Employment Law Sing-a-long. Research shows that youâre far more likely to remember something if you actually sing it. Thatâs why you remember the lyrics to bad 70s songs but not the rules of the FMLA. Please sing along with gusto -- the words will appear on your screen. And to make this even more interesting, the person who sends us video and/or photographic proof of the most enthusiastic singing along will win a prize. Just email your submissions to blawg@manpower.com. Thatâs b-l-a-w-g@manpower.com. Of course, feel free to tweet âem for all the world to see as well.
THANK YOU THANK YOU THANK YOU so much for your time, attention and participation â we really very extremely incredibly much appreciate it!And now, back over to Ellen.