April 18, 2023
Everything You Ever Wanted to Know About
(But Didn’t Want to Pay a Lawyer to Ask)
Mark TothChief Legal Officer – North America
EMPLOYMENT LAW
SMARTEST HR
PERSONIN THE
UNIVERSE CONTEST
WHAT’S NEW?
STAY OUT OF JAILTO DO LIST
SING-A-LONGSONG
187%FREETOOLBOX
Stay Out Of Jail in 2013
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 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.
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ManpowerGroup | April 18, 2023 9
What percentage of employeeswould fire their bosses right now?
A. 36%
B. 56%
C. 76%
D. 96%
ManpowerGroup | April 18, 2023 10
What percentage of employeeswould fire their bosses right now?
A. 36%
B. 56%
C. 76%
D. 96%
Source: Monster.com
ManpowerGroup | April 18, 2023 11
What percentage of your employeesare thinking about leaving your company right now?
A. 26%
B. 46%
C. 66%
D. 86%
ManpowerGroup | April 18, 2023 12
What percentage of your employeesare thinking about leaving your company right now?
A. 26%
B. 46%
C. 66%
D. 86%
Source: Right Management
ManpowerGroup | April 18, 2023 13
$300B
1/25 bosses = psycho
32% workweek increase
62% workload increase
33% chronicall
y overworke
d
80% sedentary
Sources: Dr. Paul Babiak, Pennington Biomedical Research Center, Kronos, Families & Work Institute, Harris Interactive
ManpowerGroup | April 18, 2023 14
The Bottom Line:Employees are really very
extremely incrediblydisgruntled.
ManpowerGroup | April 18, 2023 16
The BIG Picture
If you had to boil all of employment law down
to one word, what would it be?
ManpowerGroup | April 18, 2023 19
True or False?Employers win more employment lawsuits than they lose.
A. True
B. False
ManpowerGroup | April 18, 2023 20
True or False?Employers win more employment lawsuits than they lose.
A. True
B. False
Source: Jury Verdict Research
ManpowerGroup | April 18, 2023 22
What Are Your Odds?
SEX
36%
ALL
49%
DISABILITY
56%AGE
60% RACE
50%
Source: Jury Verdict Research
ManpowerGroup | April 18, 2023 23
What’s the #1 most common discrimination claim?
A. Age
B. Disability
C. Race
D. Retaliation
E. Sex
ManpowerGroup | April 18, 2023 24
What’s the #1 most common discrimination claim?
A. Age
B. Disability
C. Race
D. Retaliation
E. Sex
Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)
© 2011 ManpowerGroup 27
How Much Will YOU Pay?
$1M+Big pattern +/or reallllllly horrible facts
1%$100K-$1M
Pattern +/or really horrible facts
39%$51-
$100K1 plaintiff + horrible facts
28%
32%
Sources: EEOC, Jury Verdict Research
$1M+Big pattern +/or reeeeeeeally horrible facts
$100K-$1MPattern +/or really horrible facts
$51-$100K1 plaintiff + horrible facts
$0-$50K1 plaintiff + no horrible facts
Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)
© 2011 ManpowerGroup 28
Ignore the law
Ignore your policiesInvestigate + document poorly
Discipline inconsistentlyLie
Get Plaintiffs’ Lawyers to LOVE You
Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)
© 2011 ManpowerGroup 29
Is the NLRB Dead?
Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)
© 2011 ManpowerGroup 30
True or False?The NLRB only has jurisdiction over unionized companies.
A. True
B. False
Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)
© 2011 ManpowerGroup 31
True or False?The NLRB only has jurisdiction over unionized companies.
A. True
B. False
Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)
© 2011 ManpowerGroup 32
BREAKING NEWS
NLRB AppointmentsUnconstitutional
BREAKINGNEWS
NLRB APPOINTMENTS
UNCONSTITUTIONAL
Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)
© 2011 ManpowerGroup 33
True or False?Union membership declined more in President Obama’s first term than in President Bush’s two terms combined.
A. True
B. False
Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)
© 2011 ManpowerGroup 34
True or False?Union membership declined more in President Obama’s first term than in President Bush’s two terms combined.
A. True
B. False
Source: Bureau of Labor Statistics
Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)
© 2011 ManpowerGroup 35
11.2%Source: Bureau of Labor Statistics
Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)
© 2011 ManpowerGroup 36
On Hold
“Quickie” election rules
Union rights posting
Everything?
Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)
© 2011 ManpowerGroup 37
Get SOCIAL MEDIA now
Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)
© 2011 ManpowerGroup 38
True or False?
None of the laws that apply in the real world apply in the social media universe and therefore I can completely
lose my mind and absolutely anything goes.
Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)
© 2011 ManpowerGroup 39
True or False?
Absolutely False.
Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)
© 2011 ManpowerGroup 40
Same Old Test
job-related
job-related
job-related
Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask)
© 2011 ManpowerGroup 41
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 WorldGroupNielsen, DLA Piper
How do those about to enter the workforce rank the following in order of importance?
A. Social Activities, Romance, Music, Internet
B. Internet, Social Activities, Romance, Music
C. Music, Social Activities, Internet, Romance
D. Romance, Internet, Music, Social Activities
How do those about to enter the workforce rank the following in order of importance?
A. Social Activities, Romance, Music, Internet
B. Internet, Social Activities, Romance, Music
C. Music, Social Activities, Internet, Romance
D. Romance, Internet, Music, Social Activities
Source: Cisco
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
Which of the following is NOT an actual employee tweet?
A. “Hate my job!! I want to tell my bosses how dumb they are and how meaningless this job is, then quit, and be happy!”
B. “So my job was to test all the food at the new restaurant, can I just say, ughew. I’m going to taco bell.”
C. “Smoking weed at work is so [expletive] great”D. “I’m really bummed that I’m working today, I asked off so
I could study but my boss is a [expletive] who can’t read.”E. “I am working really hard right now and feel very
fortunate to have a job.”
Which of the following is NOT an actual employee tweet?
A. “Hate my job!! I want to tell my bosses how dumb they are and how meaningless this job is, then quit, and be happy!”
B. “So my job was to test all the food at the new restaurant, can I just say, ughew. I’m going to taco bell.”
C. “Smoking weed at work is so [expletive] great”D. “I’m really bummed that I’m working today, I asked off so
I could study but my boss is a [expletive] who can’t read.”E. “I am working really hard right now and feel very
fortunate to have a job.”
ManpowerGroup | April 18, 2023 52
“My dog had a nervous breakdown.”
“My toe was stuck in a faucet.”
“I was upset after watching The Hunger Games.”
“I was bitten by a bird.."
“I was sick from reading too much.”
“My sobriety tool kept my car from starting.”
“My hair turned orange.”
“I forgot you hired me.”
“I was suffering from a broken heart.”
2012
’sM
OS
T C
REATIV
E E
XC
US
ES
FO
R M
ISS
ING
WO
RK
Source: CareerBuilder
ManpowerGroup | April 18, 2023 53
Guidelines for Adult Children Care
Facebook Festival Frolic = FMLA Fraud Firing
New DOL FMLA guide
New FMLA
ManpowerGroup | April 18, 2023 55
Workforce Recruitment Program
ADA-inclusive Workplace Tutorial
Domestic Violence Q&A
Teachers with pedophobia?
New ADA
ManpowerGroup | April 18, 2023 56
ADA How NOT To
Have an inflexible
leave policy
Make snap judgments
Don’t interact
Don’t accommod
ate
Put dumb stuff in writing
ManpowerGroup | April 18, 2023 58
February 1: OSHA 300A
Coming soon: 1,260 Inspections
Additional infectious disease regs?
Injury & Illness Prevention Program (I2P2)
Stricter reporting obligations
New OSHA
ManpowerGroup | April 18, 2023 59
New final omnibus rule
September 23: New privacy notices
Amend business associate agreements
Not all violations = security breaches
New HIPAA
ManpowerGroup | April 18, 2023 60
Bob is normally a responsible, quiet employee.One day, however, he shows up two hours lateand acts “obscenely happy, wearing make-up,
avoiding eye contact, continuously rubbing his legsand touching everyone.” He also does a “crazy
monkey arm dance” and begins “twirling and talkinggibberish, flying around in the office in a hyper state.”
Then he leaves. What do you do?A. Fire him for inappropriate workplace behavior
B. Do a crazy monkey arm dance in his honor until he returns
C. Drug test him
D. Give him a chance to explain his behavior
ManpowerGroup | April 18, 2023 61
Bob is normally a responsible, quiet employee.One day, however, he shows up two hours lateand acts “obscenely happy, wearing make-up,
avoiding eye contact, continuously rubbing his legsand touching everyone.” He also does a “crazy
monkey arm dance” and begins “twirling and talkinggibberish, flying around in the office in a hyper state.”
Then he leaves. What do you do?A. Fire him for inappropriate workplace behavior
B. Do a crazy monkey arm dance in his honor until he returns
C. Drug test him
D. Give him a chance to explain his behavior
ManpowerGroup | April 18, 2023 62
An employee comes into your office at 4:59 on a Fridayand 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 IV 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?
ManpowerGroup | April 18, 2023 65
What celebrity wasrecently sued for a
plethora of wage andhour violations?
ManpowerGroup | April 18, 2023 67
OT Classifications
Pre-shift “Work”
Independent contractor classifications
Work @ home
California, California, California
FLSA Hot Spots
Prison in 2013 PlanDon‘t open the Tool Box
Don’t visit the EL Library
Don’t sign up for Mark’s alerts
Don’t follow Mark on Twitter
Don’t visit the Blawg every 0.3 seconds
Prison-free in 2013 Plan KNOW THE LAW
INVESTIGATE & DOCUMENT ALL CLAIMS
BEWARE RETALIATION
LOVE YOUR EMPLOYEES
FOCUS ON KEY PRIORITIES
Known violationsSystemic issuesWage & hourEEOC priorities
ManpowerGroup | Halloween 2012
Employment law can be easyIf you listen you surely won’t fail
We wrote you this songSo please sing along
If you don’t, you could end up in jail
ManpowerGroup | Halloween 2012
Don’t put things off til tomorrowYes investigate right away
Don’ procrastinateAnd don’t retaliate
Or the more you will have to pay
ManpowerGroup | Halloween 2012
Remember this songAnd you’ll never go wrong
Yes we wish you the best on your journeysYou’ll stay out of court
And you won’t have to pay no attorneys
ManpowerGroup | Halloween 2012
Technology may give you headachesAnd the feds they may knock on your door
But if you prepareBe consistent and fair
They won’t ever bug you no more
ManpowerGroup | Halloween 2012
If your brain’s too full to rememberAll the stuff we just covered above
There’s one little wordThat sums up what you heard
Love love love love love love LOVE!
ManpowerGroup | Halloween 2012
So, remember this songAnd you’ll never go wrong
Yes we wish you the best on your journeysYou’ll stay out of court
And you won’t have to pay no attorneys