What s New & What s Next in Employment Law. with Mark Toth Chief Legal Officer North America

Transcription

1 What s New & What s Next in Employment Law with Mark Toth Chief Legal Officer North America

2 General Information Share the webinar Votes (polling questions) Rate (before you leave) Attachments (download)

3 Audio Problems? The audio for this event is streaming to your computer. If you lose sound at any point, simply refresh your browser and the sound will return.

4 Earning HRCI Credit To receive 1 HRCI for this webinar, participants must attend the webinar in its entirety (one person per computer).

5 What s New & What s Next in Employment Law with Mark Toth Chief Legal Officer North America

6 Stay Out of Jail in 2015 What are YOU thinking? What s NEW? What s NEXT? Jail-free ACTION PLAN Least likely to be Incarcerated CONTEST 6

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 Visit Mark s Blawg: marktoth.com Find us on Facebook: facebook.com/manpowerus

9 187% Free Stuff

10 Open 24 / 7 / World s Most Fabulous Employment Law LIBRARY

11 What Are YOU Thinking?

12 Which area of employment law currently gives you the most headaches? FMLA 18% 1 2 ADA 15% Firing 13% 3 4 Wage & Hour 12% Investigations 7% Discrimination 6% Immigration 3% Hiring 7% Harassment 5% Litigation 2% ManpowerGroup Pre-Webinar Survey, February

13 Question Is complying with employment laws getting easier or more difficult? Really very extremely easier Somewhat easier 0% 1% No change 16% Somewhat harder 61% Really very extremely harder 21% ManpowerGroup Pre-Webinar Survey, February

14 Question Are you seeing an increase or decrease in employment law claims? Yes, substantial increase 5% Yes, moderate increase 28% No change 64% No, moderate decrease No, substantial decrease 0% 3% ManpowerGroup Pre-Webinar Survey, February

15 What one thing concerns you most about the world of work in 2015?

16 Everything

17 @manpowerblawg If you had to boil all of employment law down to one word, what would it be?

18 How to Get Sued BIG Now

19 Employers win more lawsuits than they lose.

20 False

21 49% Source: Jury Verdict Research

22 Get a BIG Class Action Fast Violate wage & hour laws Don t address systemic issues Ignore known violations Lie or engage in fraud Do business in California 22

23 241 Million Reasons To Follow the Law $98M $56M $38M $26M $23M for hiring tests with an alleged disparate impact on Black & Hispanic applicants to 108,000 restaurant workers for decade of alleged wage & hour violations to female workers allegedly paid less than male counterparts to 1,074 trash truck allegedly denied naps & other activities during meal periods for alleged failure to pay OT & allow adequate rest periods Source: Seyfarth Shaw 23

24 @manpowerblawg According to lawyers, what is the ONE thing HR people mess up more than any other?

25 How Much Will YOU Pay? 32% $0-$50K 1 plaintiff + no horrible facts 28% $51-$100K 1 plaintiff + horrible facts 39% $100K-$1M Pattern +/or really horrible facts 1% $1M+ Big pattern +/or reallllllly horrible facts $1M+ Big pattern +/or reeeeeeeally horrible facts Sources: EEOC, Jury Verdict Research 25

26 According to lawyers, what is the ONE thing HR people mess up more than any other? INVESTIGATIONS

27 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

28 Investigation Checklist Step Two: Investigate Interview the complaining employee first Now don t 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

29 What s Up with the SUPREMES?

30 2015 Supremes Dance Card King v. Burwell: Will the ACA go away? EEOC v. Abercrombie: Style or religion? Perez v. MBA: Change without notice? 30

31 What s Up with the EEOC?

32 Your first name + answer What is the #1 most common claim filed with the EEOC?

33 EEOC lawsuit $$$ recoveries are at their lowest in 17 years.

34 True Source: EEOC, Seyfarth Shaw

35 Rough Year for the EEOC Lowest Lawsuit $$$ In 17 Years Lowest Settlement $$$ since 2006 Millions in Judicial Sanctions Charges Down But Backlog Up Background Checks: Ordered to Disclose Sources: EEOC, Seyfarth Shaw 35

36 Hiring Pregnancy Vulnerable Workers Harassment EEOC ADA Access to Legal System LGBT Source: EEOC 36

37 What is the #1 most common claim filed with the EEOC? RETALIATION Source: EEOC

38 The EEOC s Big 5 Retaliation (42.8%) Race (35.0%) Sex (29.3%) Disability (28.6%) Age (23.2%) Source: EEOC 38

39 EEOC Big Movers Unlawful Waivers (+174.2%) Discriminatory Ads (+146.9%) Early retirement incentives (+85.7%) Employment testing (+47.1%) Source: EEOC 39

40 In what % of cases does the EEOC find reasonable cause? A. 3.1% B. 7.1% C. 10.1% D. 14.1% E %

41 In what % of cases does the EEOC find reasonable cause? A. 3.1% B. 7.1% C. 10.1% D. 14.1% E % Source: EEOC

42 EEOC Myth vs. Reality EEOC Mediators: 73%: settle or cause 70%: settle or suit EEOC Stats: 3.1% cause rate 0.2% suit rate Sources: EEOC, Merrily Archer, BNA 42

43 Age discrimination claims rose for the 6 th straight year.

44 False Source: EEOC

45 Wage & Hour WHIRLWIND

46 Wage & Hour in a Minute FLSA claims: up for 5 th straight year New FLSA Regs: coming in March? Independent Contractors: Fed & states teaming up Security Screening: may not be compensable Predictable Scheduling: 6 months notice? Sources: Seyfarth Shaw, Huffington Post, Economic Policy Institute 46

47 Wage & Hour Checklist Tool Box Time System Train Complaint System Audit Address Consult Know the Law Simple, accurate and enforced Managers and employees Investigate promptly and thoroughly Classifications, records and OT calculations Issues immediately, focusing on high risk first Your favorite employment law attorney 47

48 Cheat Sheets

49 Medical MAYHEM

50 THE YEAR S MOST CREATIVE EXCUSES I had to wait for the judge to set my bail. I knocked myself out in the shower. I was drunk and forgot which Waffle House I parked my car next to. A deer herd that was moving through town made me late. I went out to my car to drive to work and the trunk had been stolen out of it. I discovered my spouse was having an affair so I followed him this morning. There was a stranger sleeping in my car. Someone robbed the gas station I was at and I didn t have enough gas to get to another station. I m not late. I was thinking about work on the way in. I dreamed that I got fired. Source: CareerBuilder 50

51 Your first name + answer What is the #1 cause of workplace injuries?

52 ADA in a Minute Broad disability definition Individualized analysis Inflexible Leave = BIG $$$ Paid Sick Leave: Fed next? Wellness Plans: EEOC not a fan Source: EEOC 52

53 ADA How NOT To Have an inflexible leave policy Make snap judgments Don t interact Don t accommodate Put say or put dumb stuff in writing

54 Discuss Discuss Discuss Discuss 54

55 What is the #1 cause of workplace injuries? OVEREXERTION Source: OSHA

56 OSHA in a Minute Work injuries & illnesses: 3.3/100 Overexertion #1 injury cause 300A Forms posted between 2-1 and 4-30 New reporting requirements as of 1-1 Online whistleblower system 56

57 Who wins? A. Employee B. Employer

58 Who wins? A. Employee B. Employer

59 ADA vs. FMLA vs. GINA vs. WC

60 Technology TERROR

61 Selfies, Tweets & Other Nightmares Please don t post selfies that show you drinking beer while driving a school bus Please don t tweet Ew I start this f*** a** job tomorrow. Please don t ban social media like SC did Please be careful recruiting: a barrier to EEO? Please don t be dumb: same rules on Earth & in Cyberspace Source: Facebook, Twitter, State of South Carolina, EEOC 61

62 SM Starter Kit

63 What s New with the NLRB?

64 The NLRB in a Minute Ambush elections: coming 4-14 (or not)? New joint employer standard: scary or not? organizing: now permitted 6 th Member coming? General Counsel reigned in? Sources: NLRB, SHRM, Michael Lotito, Littler Mendelson 64

65 What s Up With WHISTLEBLOWERS?

66 Whole Lot of Whistling Record $5.7 billion: 49% more than last year Record 3,620 reports under Dodd-Frank Record 3,060 cases under OSHA Record SEC awards: more than prior years combined Record $30 million recovery Sources: SEC, Ogletree Deakins, FORTUNE Magazine 66

67 The BIG Picture

68 If you had to boil all of employment law down to one word, what would it be?

69

70 How to Get Sued Big and/or Go to Prison Now Forget What You Learned Today Don t Address Wage & Hour Issues Manage Medical Leave Badly Don t Do the ADA Interactive Dance Ignore EEOC Priorities Don t Use The Investigation Checklist Tweet and Text Terribly Don t LOVE your employees

71 Visit marktoth.com every 0.3 seconds

72 187% Free Stuff

73 Open 24 / 7 / World s Most Fabulous Employment Law LIBRARY

74 Least Likely to Be Incarcerated CONTEST

75 The Employment Law SING-A-LONG

76 2015 won t be easy If you listen you surely won t fail We wrote you this song So please sing along If you don t, you could end up in jail ManpowerGroup Halloween 2012

77 ManpowerGroup Halloween 2012 Don t put things off til tomorrow Yes investigate right away Don t procrastinate Cuz the more that you wait The more you will have to pay

78 Remember this song And you ll never go wrong Yes we wish you the best on your journeys You ll stay out of court And you won t have to pay no attorneys ManpowerGroup Halloween 2012

79 Technology may give you headaches And the feds they may knock on your door But if you prepare Be consistent and fair They won t ever bug you no more ManpowerGroup Halloween 2012

80 If your brain s too full to remember All the stuff we just covered above There s one little word That sums up what you heard Love love love love love love LOVE! ManpowerGroup Halloween 2012

81 So, remember this song And you ll never go wrong Yes we wish you the best on your journeys You ll stay out of court And you won t have to pay no attorneys ManpowerGroup Halloween 2012

82 COMING SOON

83 THANK YOU!

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