Our most recent Question of the Week — based on the very latest hot-off-the-presses research — asked:

What % of employers predict that litigation will either rise or stay the same in 2012?

We gave you 5 choices:

1. 112%
2. 92%
3. 72%
4. 52%
5. 32%
6. 12%

The votes are in. Your most popular choice was 72% (with 40% of the votes). Next was 92% (27% of the votes), followed by 52% (16% of the votes), 32% (8% of the votes) and then 12% (6% of the votes). A rather surprising 4% of you chose 112% which … um … is mathematically impossible.

The correct answer? You were close. A whopping 92% of employers say they expect litigation to either increase or stay the same in 2012. That’s more than ten times the 8% that expect litigation to decrease.

This data is from the brand-new and always-fascinating (at least to me) Annual Litigation Trends Survey Report, available for free from the fine folks at Fulbright & Jaworski here.

We’ll discuss some of the report’s other highlights tomorrow. Stay tuned.

As we discussed yesterday, wage & hour issues are the undisputed #1 scary-lawsuit-producing employment law issue on the planet right now.

The following is a little test of your knowledge of the “Wage & Hour Big 10.” If you master these, you’ll be well on your way toward a future free of FLSA foibles.

Which of the following must employers pay?

1. On-call time
2. Commute time
3. Wait time
4. Changing into and out of uniform if required at work
5. Donning and doffing safety gear
6. Walking between changing and production areas
7. Rest periods of 30 minutes or less
8. Bona fide meal periods of 30 minutes or more
9. Travel during the course of the work day
10. Travel outside work hours

Tune in tomorrow for the answers.

Each week, we post a thought-provoking question for your consideration. Last week’s question was based on real-life court cases on the topic of body art. 

Here’s the question, followed by a breakdown of your 326 responses:

A cashier shows up for work wearing a dozen large earrings, multiple eyebrow piercings, a nose ring and a highly inappropriate neck tattoo. Citing your company’s dress code policy, you ask her to remove all but two of the earrings and to cover up the tattoo. She says that she’s a member of the Universal Church of Body Modifications and can’t comply for religious reasons. You fire her and she sues. Who wins?

a.  The employer (59%)
b.  The employee (41%)

You are correct — the most likely answer is indeed “a.”

Generally speaking, employers are allowed to enforce reasonable job-related workplace appearance rules, as long as they are consistenly applied.

The facts in this question were based on the much-ballyhooed case of Cloutier v. Costco. Cloutier, a cashier, demanded that she be allowed to wear facial piercings based on her religious beliefs as a member of the Church of Body Modfication. When Costco rejected Cloutier’s demands, the EEOC sued on her behalf. The court balanced the relative burdens and sided with Costco, finding that its policy was reasonable and that Cloutier’s “church” doesn’t require that piercings be worn at all times.

Interesting Factoid: Nearly half of Americans in their 20s have a tattoo or other piercing (beyond traditional ear piercing), according to a study by the Journal of the American Academy of Dermatology. The study also indicates that the number will continue to rise.

Bonus Parenting Tip: As one alert Blawg visitor pointed out, parents now have an official court case to point to when they tell their kids that tattoos and piercings could hurt their job prospects.

Here’s last week’s question, along with your responses:

I’m allergic to work. Is that a disability under the Americans with Disabilities Act?

1. Yes (3%)
2. No (31%)
3. Perhaps, if it substantially limits 1 or more major activities of everyday life (47%)
4. Perhaps, if it is a “serious health condition” as defined under the law (19%)

Congratulations — the correct answer is indeed #3.

The Americans with Disabilities Act (ADA) protects physical or mental impairments that substantially limit one or more major life activities.  Employers should be careful to apply that test rather than jumping to any conclusions about whether a particular condition may or may not be covered.  “Major life activities” has been broadly defined to include breathing, sitting, standing, walking, seeing, hearing, performing manual tasks, caring for oneself, learning and working.

Another tip:  Any time an answer starts with “perhaps,” “maybe” or “it depends,” chances are that’s the correct answer.  Have you ever known a lawyer who didn’t start an answer that way?

Thanks for your participation!

Here’s last week’s question, along with your responses:

I want to spice up a PowerPoint presentation.  Which of the following are OK legally?

1. Kicking off the presentation by playing BTO’s Takin’ Care of Business from my iTunes playlist (3%)
2. Embedding a YouTube video of the SNL “more cowbell” skit to illustrate effective teamwork (3%)
3. Inserting a photo of Donald Trump into a section about how not to fire employees (1%)
4. Showing the opening sequence of Office Space to demonstrate the advantages of telecommuting (1%)
5. Passing out copies of an article on business ethics, including respecting copyright laws (8%)
6. Linking to one of the deeply inspirational videos on the Blawg (11%)
7. All of the above (27%)
8. None of the above (48%)

The correct answer is #6.  All the other choices could land you in legal hot water.

Copyright is one of the most misunderstood (and frequently violated) areas of the law.  That is especially true as technology continues to morph and the law tries to play catch-up. 

The basic principle is pretty simple:  If you own it, you can use it.  If you don’t, you can’t (unless you pay for it).

While some of the items may be somewhat debatable, the advice we generally get from our technology law gurus is that the only semi-safe choice among the above is linking.  That is particularly true if the site owner clearly owns the rights to the material and encourages linking.  That’s why “f” is the right choice.  (In fact, I’ll go on record right now as saying that you have my permission to link to any of the deeply inspirational and potentially life-changing videos on this site.)

Generally, to use the other items, you’d have to have the copyright owners’ permission.  The problem with that is that (a) it’s a time-consuming pain and (b) expensive.  For example, to get the rights to show an SNL skit, you have to obtain a license from the show’s owners, the individual actors and others.  The cost can be upwards of $5,000 for just a few seconds of footage.

Some companies opt to obtain general music licenses to allow them to pay music are workplace gatherings.  Click here or here if you’re interested in exploring that option.

The Bottom Line?  Get permission or get creative.

Our readers are now batting a somewhat respectable .543  (25 right, 21 wrong) on our Questions of the Week.  The next one will be coming your way soon.

Thanks for your participation!

After 343 votes, we have a clear winner in last week’s question.

Here’s what we asked . . .

Women now make up the majority of the workforce and the vast majority of college attendees. Recent studies show that wage disparities appear to be narrowing. In the not-so-distant future, the U.S. will be more than 50% non-white. The Supreme Court and even the Oval Office reflect more diversity than ever before. So, when will Title VII be repealed?

Here are your responses . . .

a.  By the end of the year (1%)
b.  By the end of the decade (13%)
c.  By 2030 (7%)
d.  By 2050 (3%)
e.  Never (76%)

So, the vast majority of you feel that Title VII will never be repealed. I tend to agree.

Setting aside some of the obvious political reasons (not a whole lot of politicians are likely to want to raise their hand and say “I’m against discrimination laws”), there’s still quite a bit of work to do before true equity will rein in the workplace.

Among other things, women still only earn 77¢ for every $1 earned by men. Despite the fact that women now constitute a majority of the workforce, only 3% of CEOs and 13% of executive officers are women. Given those statistics, it’s not too surprising that 60% of men responded “yes” to a recent poll asking, “Are barriers to female success gone?” Only 50% of women said “yes.”

Thanks for your participation. Our next Question of the Week will be coming your way soon.

(Sources: Bureau of Labor Statistics, Catalyst, TIME Magazine)

Each week, we post a thought-provoking question for your consideration. Here’s our last question, along with your answers . . .

In seeking to represent a unit of 100 employees, what is the least number of votes a union could receive and still win an NLRB election?

a.  50 (10%)
b.  51 (63%)
c.  1   (11%)
d.  30 (16%)

Believe it or not, the correct answer is “c”:  one is all it takes.  A union only needs to win a simple majority of the votes cast to win an election. Thus, if only one employee votes — and votes in favor of the union — the union wins.

Our viewers are now batting a respectable .556 (25 right, 20 wrong) on our weekly questions.  The next one will be coming your way soon.

As always, thanks for your participation!

Each week, we post a thought-provoking question for your consideration. Here’s last week’s question, along with your answers . . .

Are there limits to the length of time a temporary employee can work at an assignment?

a.  Yes, the federal cap is 9 months for non-professionals and 1 year for professionals (12%)
b.  There is no federal limit (83%)
c.  If the employee is from any staffing company other than Manpower, the assignment must be limited to a maximum of 0 days (5%)

Congrats — you got it half right.  The correct answers are “b” and “c.” 

Generally, there are no federal (or state) limits on assignment lengths. In fact, in our experience, artificially instituting an assignment limit cap does little more than increase costs due to turnover and lost productivity.

As for answer “c,” Congress recently passed the All Staffing Companies Other Than Manpower Are No Good Act, setting a maximum ceiling on usage of staffing companies other than Manpower at a maximum of zero (0) days. Penalties for non-compliance are severe.

Our viewers are now batting a respectable .558 (24 right, 19 wrong) on our weekly questions. The next one will be coming your way shortly.

Thanks for your participation!