answers to the scariest employment law questions
TRANSCRIPT
Halloween 2012
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Halloween 2012
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Halloween 2012
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ManpowerGroup | April 18, 2023 6
Official DisclaimerThe 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 andLegal departments before making any major policy and/or procedure changes.
You have been warned.
ManpowerGroup | April 18, 2023 7
Tweet along: #mpwebinar
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Visit Mark’s Blawg:marktoth.com
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ManpowerGroup | April 18, 2023 9
What Keeps YOUUp at
Night?
Scary ???s
Answered
Twickor
Tweet?
ELGreat
Pumpkins
How to Get Sued
BIGNow
LeastZombie-
ish Contest
Reduce your terror level
ManpowerGroup | April 18, 2023 12Source: ManpowerGroup Employment Blawg
Really very extremely scarier
Somewhat scarier
No change
Somewhat easier
Really very extremely easier
65%
21%
13%
1%
0%
Is complying with employment laws getting scarier or easier?
Question
ManpowerGroup | April 18, 2023 13
No, substantial decrease
No, moderate decrease
No change
Yes, moderate increase
Yes, substantial increase
1%
1%
64%
32%
2%
Are you seeing an increase in employment law claims?
Question
Source: ManpowerGroup Employment Blawg
ManpowerGroup | April 18, 2023 14
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%)TO
P 1
0 S
CA
RIE
ST
EM
PL
OY
ME
NT
LA
WS
Source: ManpowerGroup Employment Blawg
ManpowerGroup | April 18, 2023 19
Tweet-o-Rama@manpowerblawg
If you had to boil all of employment law down
to one word, what would it be?
ManpowerGroup | April 18, 2023 20
Scary
QTimes are tough, man. 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 | April 18, 2023 21
“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.”
2012
’s M
OS
T C
REA
TIV
E E
XC
US
ES
FO
R M
ISS
ING
WO
RK
Sources: CareerBuilder
ManpowerGroup | April 18, 2023 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 | April 18, 2023 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 | April 18, 2023 26
ADA FACTS
Sources: BLS, US Government, Kessler Foundation, Ernst & Young
32% 2X
D = $ 27M
ManpowerGroup | April 18, 2023 27
ADA How NOT To
Make snap judgments
Don’t interact
Don’t consider additional
leave
Don’t request
additional medical
info
Memorialize
discrimination in writing
ManpowerGroup | April 18, 2023 28
Scary
QAiyeeeeeeeeeeeeeeeeeeeee! Nothing freaks me out more than when the ADA meets the FMLA meets GINA meets WC.
Can you give us a roadmap?
ManpowerGroup | April 18, 2023 30
We’ve had a no-fault attendance policy for decades. I heard that some companies are moving away from them. Do I really have to change it if we administer it consistently?
Scary
Q
ManpowerGroup | April 18, 2023 32
I tell people that unreasonably extended leave is, well,
unreasonable, and thus not a “reasonable” accommodation. Am I right? Please say “yes."
Scary
Q
ManpowerGroup | April 18, 2023 33
Un-scary
ANo (sorry).
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 | April 18, 2023 34
Scary
QAn employee claims he’s addicted to the Internet and that we have to accommodate him by letting him surf intermittently (seriously). Is he right? Please say “no.”
ManpowerGroup | April 18, 2023 35
Un-scary
AMaybe (sorry again).
Internet Use Disorder has been officially accepted for inclusion in the DSM.
ManpowerGroup | April 18, 2023 36
Scary
QAn employee wants to telecommute as an accommodation. I can automatically deny that request if the employee is non-exempt -- right?
ManpowerGroup | April 18, 2023 37
Un-scary
ANo.
It depends on the particular circumstances, like virtually all accommodations.
ManpowerGroup | April 18, 2023 38
Scary
QIs job reassignment required as an accommodation under the ADA?
ManpowerGroup | April 18, 2023 39
Un-scary
AProbably yes, according to the EEOC and some federal courts – even in preference over more qualified non-disabled candidates.
ManpowerGroup | April 18, 2023 40
Scary
QI’m confused, which makes me scared. Can you clarify what’s OK when it comes to pre- and post-offer medical inquiries?
ManpowerGroup | April 18, 2023 41
Un-scary
APre-offer: No medical exams and no inquiries about 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 | April 18, 2023 42
Text-o-Rama414.751.0126
If you could make only one call, to whom
would it be?
ManpowerGroup | April 18, 2023 43
Scary
QDrugs @ work are my biggest nightmare. Most of our employees 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 | April 18, 2023 44
Drug Testing Made Un-scary
Medical Review Officer
Objective, not
subjective
Avoid prescription
bans
Reasonable suspicion
Confidential
ManpowerGroup | April 18, 2023 45
Drugs @ Work Made Un-scary
UI? No (other than legally prescribed meds)
Prescribed meds? Probably unless direct threat
Recovering? Safe Harbor unless “currently engaging”
“Currently engaging”? No
ManpowerGroup | April 18, 2023 46
Scary
QWhat if a disability causes safety issues and work stoppages? 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 | April 18, 2023 47
“Direct Threat” Made Un-scary
“Significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated by reasonable accommodation.”
Duration Severity
Likelihood Imminence
ManpowerGroup | April 18, 2023 50
Scary
QI’m 2894% convinced that flexibility is the key to the modern workplace, 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 | April 18, 2023 51
Un-scary
A
Workplace Flexibility Toolkit
Yes. Hot off the presses:
ManpowerGroup | April 18, 2023 54
Scary
QA salesperson is out on FMLA. 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 | April 18, 2023 55
Un-scary
ANo. The basics:• instruct employees not to work
• no contact except for leave-related info
• work is compensable and can’t be counted toward FMLA
ManpowerGroup | April 18, 2023 56
An employee is demanding intermittent FMLA for migraines basically whenever she feels like it. Talk about scary – how on earth am I supposed to manage THAT?
Scary
Q
ManpowerGroup | April 18, 2023 58
Intermittent Leave Made Un-scary
Notice7 days to cure
Incomplete Certification
Clarify/authenticateHR, not supervisor
ContactProvider
Recert from original provider OREmployer-paid 2nd opinion
Recert or
2nd Option
If conflictFinal & binding
3rd
Option
ManpowerGroup | April 18, 2023 62
The FMLA in Plain English
Scary
QWave your wand and 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 | April 18, 2023 63
The FMLA in Plain English
WAGE & HOUR BIG 101. 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 | April 18, 2023 64
The FMLA in Plain English
WAGE & HOUR BIG 101. 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 | April 18, 2023 66
Scary
QThe NLRB makes me break out in hives. Can you please make sense of its most recent rulings for us?
ManpowerGroup | April 18, 2023 68
NO Congress?
NO employmen
t at will?
NO discipline?
NLRBNo-Nos
NOconfidentiality?
NO anti-disparagement?
ManpowerGroup | April 18, 2023 69
Scary
QShould I just trash my employee handbook?
Guide us thru the darkness. What should we do to avoid getting on the NLRB’s hit list?
ManpowerGroup | April 18, 2023 70
“Protected concerted activity”
Union or non-union
> 1
Wages or work conditions
Same in cyberspace
The NLRB Made Un-scary
ManpowerGroup | April 18, 2023 71
Scary
QThe NLRB’s attack on investigation confidentiality is a nightmare (not to mention unworkable). What exactly are employers supposed to do now?
ManpowerGroup | April 18, 2023 72
Confidentiality Made Un-scary
Witness Protection
Evidence Destruction/Fabrication
Cover-up
Duration of Investigation
Company Time/Property
ManpowerGroup | April 18, 2023 74
Scary
QThe EEOC freaks me out.
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 | April 18, 2023 75
OnlineCharge
Tool
BIG Subpoena
s
752,000Reasons
to be Nice
EEOCNEW
CriminalBackground
Guidance
TransgenderProtection
ManpowerGroup | April 18, 2023 76
Recruiting/Hiring
VulnerableWorkers
ADA
LGBT
Access to Legal
System
Pregnancy
Harassment
EEOCNEXT
ManpowerGroup | April 18, 2023 77
Scary
QHow serious is the EEOC about its new agenda? Is it mostly political posturing?
ManpowerGroup | April 18, 2023 79
Scary
QWhat test are we supposed to apply to avoid conviction discrimination (in 100 words or less, please)?
ManpowerGroup | April 18, 2023 80
Conviction Records Made Un-scary
Notify individual
sunder scrutiny
“Targeted screen”• Nature of
offense• Time elapsed• Nature of job
“Individualized assessment”if screened out:• Circumstances
surrounding offense
• Post-conviction work record
• References & other info from applicant
ManpowerGroup | April 18, 2023 82
Un-scary
AEEOC: “Not necessarily required in all circumstances.” BUT …
“The use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants.”
ManpowerGroup | April 18, 2023 83
Scary
QIs it now unlawful to ask about convictions on job applications?
ManpowerGroup | April 18, 2023 86
Un-scary
ANot unlawful not to, but a “best practice” (according to the EEOC).
ManpowerGroup | April 18, 2023 88
Un-scary
ANot law. Just “guidance.”But take it seriously (especially in states that have restrictive conviction record laws) unless you want a class action.
ManpowerGroup | April 18, 2023 90
Quarterly SM IndexDo you currently use social media @ work?
A. Yes
B. No
C. What’s social media?
ManpowerGroup | April 18, 2023 91
Quarterly SM IndexWhat SM tool do you use most @ work?
A. Facebook
B. Google+
C. LinkedIn
D. Twitter
E. Other
ManpowerGroup | April 18, 2023 92
Scary
QSocial media scares me silly.Don’t want to be a neanderthal 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 | April 18, 2023 93
SM
98%
75%
<10%
#10
:(
!!!!
Sources: SilkRoad, Achievers Social HR Survey
ManpowerGroup | April 18, 2023 96
Scary
QLike the Great Pumpkin of Charlie Brown fame, what are some great (or not-so-great) employment law myths that you can smash for us?
ManpowerGroup | April 18, 2023 97
NLRA doesn’t apply to
me
ADA = new job
Salaried = Exempt
Probation means
something
CT but not OT is OK
ManpowerGroup | April 18, 2023 98
NLRA doesn’t apply to
me
ADA = new job
Salaried = Exempt
Probation means
something
CT but not OT is OKSMASHED
ManpowerGroup | April 18, 2023 99
NLRA doesn’t apply to
me
ADA = new job
Salaried = Exempt
Probation means
something
CT but not OT is OKSMASHEDSMASHED
ManpowerGroup | April 18, 2023 100
NLRA doesn’t apply to
me
ADA = new job
Salaried = Exempt
Probation means
something
CT but not OT is OKSMASHED SMASHED SMASHED
ManpowerGroup | April 18, 2023 101
NLRA doesn’t apply to
me
ADA = new job
Salaried = Exempt
Probation means
something
CT but not OT is OKSMASHED SMASHED SMASHED
SMASHED
ManpowerGroup | April 18, 2023 102
NLRA doesn’t apply to
me
ADA = new job
Salaried = Exempt
Probation means
something
CT but not OT is OKSMASHED SMASHED SMASHED
SMASHED SMASHED
ManpowerGroup | April 18, 2023 104
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
Get Sued BIG Now
ManpowerGroup | April 18, 2023 106
Coming soon …
What’s NEW
& What’s NEXT
For Employmen
t Law in 2013