What's New and What's Next in Employment Law for 2014

with

Mark TothChief Legal Officer

North America

What’s New & What’s Next

in Employment Law

Official DisclaimerThe 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.

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6

Stay Out of Jail in 2014

The BIG Picture

What’s NEW?

What’s NEXT?

Jail-free ACTION PLAN

Least likely to be Incarcerated CONTEST

The BIG Picture

8

Is complying with employment laws

getting easier or more difficult?Question

Really very extremely easier

Somewhat easier

No change

Somewhat harder

Really very extremely harder

0%

2%

24%

58%

16%

ManpowerGroup Pre-Webinar Survey, January 2014

9

Are you seeing an increase or

decrease in employment law claims?Question

Yes, substantial increase

Yes, moderate increase

No change

No, moderate decrease

No, substantial decrease

4%

26%

66%

3%

2%

ManpowerGroup Pre-Webinar Survey, January 2014

10

:(

70%

Un-engaged

QuitYourJob

App

Work for

the CIA?

70% Dump

Vacation

Karoshi

87%

Want Out

Workplace

“Mobbing”

Sources: Right Management, Staffbay, Gallup, Expedia, Kroll, PE.com

11

The Bottom Line:Employees are really

very extremely

incredibly disgruntled.

12

The Goal:Get your employees

gruntled.

If you had to boil all

of employment law down to one word,

what would it be?

5:1

0.3:1Source: Harvard Business Review

VS.

Which of the following is

proven to boost your mood

and productivity?

A. Surfing the web

B. Drinking coffee

C. Taking a walk

D. Praising a co-worker

E. Listening to music

Which of the following is

proven to boost your mood

and productivity?

A. Surfing the web

B. Drinking coffee

C. Taking a walk

D. Praising a co-worker

E. Listening to music

How to Get Sued BIG Now

Employers win more

lawsuits than they lose.

False

Source: Jury Verdict Research

49%

22

Wage & Hour Suits (+3%)

Systemic Investigations (+25%)

EEOC Recoveries (new record)

WHD Recoveries ($1B+)

Discrimination Class $ (+381%)

Lawsuit Facts & Figures

Sources: EEOC, Seyfarth Shaw, Littler, Wall Street Journal

23

Ignore known violations

Don’t address systemic issues

Violate wage & hour laws

Lie or engage in fraud

Do business in California

Get a BIG Class Action Fast

“What celebrates its

50th birthday in 2014?”

The Civil Rights Act of 1964

Are we now absolutely

discrimination-free such

that we can repeal all

employment laws, fire all

HR people and make

employment lawyers do

something more

productive with their lives?

Ummm … no.

9 / 10

What’s Up with the EEOC?

30

EEOC

Hiring

Pregnancy

Harassment

Vulnerable

Workers

Access

to Legal

System

ADA

LGBT

Source: EEOC

Is the ENDA near?

Probably not

33

Employment Non-discrimination Act

Sexual orientation & gender identity

LGBT: 4% of workforce, 21% face discrimination

T: 26% fired, 97% face discrimination

Passed Senate 64-32 but .0001% chance in House

Is the ENDA Near?

Sources: Williams Institute, National Center for Transgender Equality

34

$21.3M to 200+ employees for racial harassment

+ discriminatory promotions & assignments

$4.9M to 427 employees for inflexible “maximum

leave” and “no-restrictions” policies

$2.5M to 89 women for egregious harassment,

discrimination & retaliation

$2.3M to 76 employees for systemic denial of

reasonable accommodations

$2.0M to 6,000 employees required to disclose

medical info or face discipline

372 Million Reasons to Fear the EEOC

Sources: EEOC, Seyfarth Shaw, Littler

What EEOC mediators

tell you in mediation

might not be 100%

accurate.

True

37

EEOC Myth vs. Reality

EEOC Mediators:

• 73%: settle or cause

• 70%: settle or suit

Sources: EEOC, Merrily Archer, BNA

EEOC

Stats:• 3.7% cause rate

• 0.2% suit rate

38

June 2013: EEOC filed suits alleging disparate

impact because no “individualized assessment”

July 2013: 9 state AGs sent letters to EEOC

demanding guidance be rescinded

August 2013: EEOC responded to AGs, calling it a

“misunderstanding”

October 2013: EEOC ordered to pay $750K in

costs due to “unfounded allegations”

November 2013: EEOC posted “discussion letter”

with instructions for inmates under the guidance

Criminal Background Checks

Which is most likely to result in

a humongous class action?

A. I-9 violations

B. OSHA violations

C. FMLA violations

D. Wage & hour violations

E. Doing business in CA

Which is most likely to result in

a humongous class action?

A. I-9 violations

B. OSHA violations

C. FMLA violations

D. Wage & hour violations

E. Doing business in CA

Wage & Hour WHIRLWIND

42

39% of class actions; average settlement $5M

Misclassification Initiative

Worker Classification Survey

Payroll Fraud Protection Act

Jail for “repeat and willful” violations

Wage & Hour in a Minute

Sources: NERA Economic Consulting,Workplace Insights

Cheat Sheets

Medical MAYHEM

45

Broad “disability” definition

Individualized analysis versus rigid guidelines

New Guidance on cancer, diabetes,

epilepsy and intellectual disabilities

Obesity could be a disability

EEOC target: 38% of merit suits

ADA in a Minute

Source: EEOC

Who wins?

A. Employee

B. Employer

Who wins?

A. Employee

B. Employer

ADA How NOT To

Have an inflexible

leave policy

Make snap judgments

Don’t interact

Don’t accommodate

Put dumb stuff in writing

49

Discuss Discuss

Discuss Discuss

50

Broad Serious Health Condition Definition

Don’t Fear Intermittent Leave

DOL FMLA Tools

Never ever Retaliate

FAMILY Act Coming?

FMLA in a Minute

FMLA Made Simple

Which is the only

industrialized nation that

doesn’t guarantee

working moms paid time

off after childbirth?

The United States of America

54

All employers covered regardless of size

Up to 12 weeks paid leave for birth/adoption,

serious illness of employee or family member

0.2% payroll tax shared by employee & employer

Capped at 66% & $1,000 / month

Lesotho, Swaziland and Papua New Guinea?

The FAMILY Act in a Minute

Source: International Labour Organization

55

Bans: Requesting or Using Genetic Info

Reach: applicants, employees & family members

In Court: EEOC filed first suits last year

First Settlement: 370,000 Reasons to Know GINA

GINA in a Minute

Workplace drug use is

on the decline.

True

AND

False

58

Illegal / old-school drug use

Prescription / designer drug use

3.5% Positive Now vs. 13.6% Positive 1988

False Positive?

DOL’s Drug-free Workplace Policy Builder

Drugs in a Minute

Source: Quest

Workplace injuries are

on the decline.

True

61

Work injuries & illnesses: 3.4 / 100

300A Forms due February 1

I2P2 by September?

New online whistleblower system

OSHA in a Minute

Silica, dust & beryllium coming soon

ADA vs. FMLA vs. GINA vs. WC

Get WOMEN

Which of the following is true?

A. Women are better educated and

test better than men

B. Less than 5% of the Fortune 500

have a female CEO

C. Companies with more women in

leadership generate higher returns

D. Most employees prefer a male boss

E. All of the above

F. None of the above

Which of the following is true?

A. Women are better educated and

test better than men

B. Less than 5% of the Fortune 500

have a female CEO

C. Companies with more women in

leadership generate higher returns

D. Most employees prefer a male boss

E. All of the above

F. None of the above

66

Women are better educated & test better

< 5% of Fortune 500 have female CEOs

More female officers = 34% better returns

Most still prefer male boss

EEOC Report: Obstacles Facing Women

Women @ Work Facts

Sources: Pew Research Center, CNN Money, Businessweek, Gallup, ManpowerGroup

Get and keep women

If you’re a manager and you

believe that your religion

requires you to periodically

scream at ashtrays, engage in

8-hour stare-downs and talk to

walls, you should require your

employees to do the same.

False

Don’t Make Employees

SCREAM at Ashtrays

71

100%+ increase in past 20 years

Please don’t require ashtray screaming,

8-hour stare-downs & talking to walls

Dress codes vs. religious garb

Harassment vs. accommodation

Religious Discrimination on the Rise

Source: EEOC

72

10 Commandments of Religious Discrimination

1. Thou shalt not assume a religion unknown to you is not a religion.

2. Thou shalt not discriminate on the basis of religion.

3. Thou shalt not harass employees based on religion.

4. Thou shalt reasonably accommodate an employee’s religious beliefs.

5. Thou shalt be careful enforcing dress codes.

6. Thou shalt be careful enforcing grooming standards.

7. Thou shalt allow employees to participate in religious observances.

8. Thou shalt provide a time and place for employees to pray, if requested.

9. Thou shalt treat religious displays in the workplace equally among religions.

10. Thou may have an exception if thou are a religious organization.

(Source: Snell & Wilmer LLP)

1 out of every 3

employees will be 65 or

older by the year 2025.

True

We’re Getting OLDER

76

33% of the workforce will be 65+ by 2025

Most engaged? 92% of 60+ female admins

$5.7M to 4 servers replaced by 20-year-olds

$575K for pattern of age discrimination

+ failure to keep records

Ageist comments can = age discrimination

ADEA in a Minute

Sources: BLS, Keas, Jury Verdict Research

The latest research shows that Facebook is a good

source of info to help predict workplace success.

False

Social Media MANIA

80

Facebook: bad predictor, discriminator, dying?

What’s hot? Snapchat? Instagram? Not Facebook?

Cyberspace complaint ain’t a complaint

Even PR professionals fail at SM

Hot debate: Who owns SM accounts?

SM in a Minute

Sources: Florida State, Clemson, Accenture,Global Web Index

81

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

82

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

SM Starter Kit

84

NLRB 2.0?

Targeting non-union employers

Union rights posting dead

“Ambush” election and other rules coming?

Supremes: (1) class action waivers OK and

(2) parties can agree donning / doffing unpaid

The NLRB in a Minute

LIGHTNING Round

86

NLRB 2.0?

Targeting non-union employers

Union rights posting dead

“Ambush” election and other rules coming?

Supremes: (1) class action waivers OK and

(2) parties can agree donning / doffing unpaid

The NLRB in a Minute

87

H-1Bs: stampede starts April 1

ICE brings the chill: Worksite Enforcement Strategy

23 indictments for undocumented workers

$34M for alleged systemic visa abuse

Immigration in 30 Seconds

88

Veteran & disability rules effective March 24

Self-identification form posted January 27

7% utilization goal for disabled individuals

Will lawsuits trump rules?

OFCCP in 30 Seconds

Data collection, sex discrimination and

construction rules next?

89

Equal Employment for All Act

Bars discrimination based on credit history

Employers can’t request, even with consent

Exemptions: national security or required by law

EEOC considering guidance

No More Credit Checks?

Stay out of jail

ACTION PLAN

Prison-free in 2014 PlanKNOW THE LAW

INVESTIGATE & DOCUMENT ALL CLAIMS

USE THE TERMINATION TEST

LOVE YOUR EMPLOYEES

FOCUS ON KEY PRIORITIES

Known violations

Systemic issues

Wage & hour (especially CA)

EEOC priorities

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COMING NEXT:

Employment Law

Made Unscary

The Employment Law

SING-A-LONG

ManpowerGroup | Halloween 2012

2014 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

The law, it’s always a-changing

With new acronyms every day

But if you visit my Blawg

You won’t be in the fog

And big verdicts you won’t have to pay

ManpowerGroup | Halloween 2012

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

The ENDA it soon could be coming

The ICE Man may knock on your door

But if you prepare

Be consistent and fair

They won’t ever bug you no more

ManpowerGroup | Halloween 2012

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

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

THANK

YOU!