Emerging Litigation Podcast

Episode: Humans at Work with Leah Stiegler

Host: Tom Hagy
Guest: Leah Stiegler, Principal Attorney at Woods Rogers
Date: October 10, 2024

Overview

This episode dives into the realities, complexities, and emerging legal issues of humanity in the workplace — ranging from harassment, pregnancy, discrimination, wage laws, and even workplace romance. Host Tom Hagy and employment attorney Leah Stiegler use humor, candid discussion, and real-world examples to unpack the latest EEOC guidance, subtle biases in workplace culture, new rules around AI, and accommodations for pregnant and lactating employees. Practical takeaways for employers and employees alike are sprinkled throughout, with a focus on recent regulatory changes and the fine line between personal rights and organizational responsibilities.

Key Discussion Points & Insights

1. Harassment and the Workplace: Expanding Definitions

(06:27–24:23)

• EEOC Guidance:
  Leah introduces the latest EEOC guidelines, emphasizing harassment isn’t limited to sexual misconduct but includes a broader spectrum like hostile work environments, microaggressions, and discrimination based on protected characteristics (race, gender, age, disability, etc.).

• Gender Identity & Pronouns:
  The EEOC is focusing on gender identity. Employers must allow use of chosen pronouns and address misgendering, intentional or repeated accidental. Gossiping or “outing” employees falls under harassment.

  “Employers have to make sure that they are allowing employees to go by the pronouns of their choice and that they are going to be enforcing their anti-harassment laws in workplaces where there's maybe misgendering going on.” – Leah (09:45)

  • Case Example: Employees deface a transgender colleague’s business cards; defense of “religious belief” does not override protected rights.

  “It takes a lot of work to be mean.” – Tom (12:14)

• Protected Perceptions & Microaggressions:
  Discrimination applies even when based on perception of membership in a protected class (e.g., someone perceived as Asian during COVID-19 or as Middle Eastern after 9/11). EEOC guidance extends protection to such scenarios.

  • Subtle forms of discrimination, like implicit bias and microaggressions, are increasingly targets for litigation.

  “We all have implicit biases… Even subtle comments can stem from prejudicial attitudes.” – Leah (22:23)

• Training & Cultural Shifts:
  Leah emphasizes the need for continuous civility training and awareness at all levels: “Really training employees, training managers on how to spot these issues, on how to be careful with their wording and check themselves…” (22:23)

2. Pay Equity, Wage History, and AI in HR

(24:48–31:18)

• Historical Pay Gaps:
  Employers are advised against requesting previous salary history since doing so perpetuates historic race and gender wage disparities.

  “You’re just carrying forward historical discrimination because their pay rates likely or what they're asking for are likely less…” – Leah (25:15)

• AI Bias & Litigation:
  AI-driven hiring tools can embed bias. EEOC recently settled with a company that, via AI screening, excluded older applicants, resulting in unlawful discrimination.

  • Leah warns, “You're responsible. You have to take accountability for that.” (29:06)
  • Payroll software can also incorrectly calculate overtime, creating liability.

• Human Error & Technology:
  Anecdote: A friend bluntly pastes her ChatGPT breakup message — meta-proof of AI’s limitations and potential for unintended outcomes.

  “There is still, you know, humans have to implement it in some way, humans have to program it in some way, and then humans have to use the product from it in some way.” – Leah (27:39)

3. Pregnancy, New Laws, and Accommodations

(31:11–44:04)

• Pregnant Workers Fairness Act:
  Only since June 2024 has a federal law required accommodations for pregnant workers. Reasonable accommodations could include adjusted schedules, temporary reassignment, or work from home opportunities.

• Common Employer Mistakes:
  Leah points out employers often see pregnancy as an “operational burden” and overreact instead of recognizing it as a temporary and manageable situation.

  "Pregnancy is a temporary condition… You can't fire someone just because they're pregnant or about to give birth." – Leah (33:44)

• Mindset Shift for Small Businesses:
  Employers, especially small ones, benefit from focusing on loyalty and flexibility. Many states require these accommodations even for businesses with a single employee.

• The PUMP Act:
  Since December 2023, federal law mandates reasonable break time and private, non-bathroom spaces for lactating employees. Class action suits have arisen against large franchises for failing to provide compliant spaces.

  "The law does not create a bright line rule for what is reasonable… because woman A may need 20 minutes, woman B may need some time to relax..." – Leah (39:47)

  • Example: Employer accommodates a bus driver needing time to express milk by temporarily assigning her to dispatch.

4. Workplace Romance & "Love Contracts"

(52:41–57:53)

• Love Contracts:
  With workplace romance common, employers can use “love contracts”: written, signed agreements between employees stating the relationship is consensual and that they understand company harassment policies.

  “What I always tell clients is that when you’ve got two employees...have them execute what we call a love contract. And this is basically a disclaimer that says...it is totally consensual. It is not harassment. And I'm aware of our harassment policies.” – Leah (54:44)

  • Especially important if there’s a supervisor-subordinate dynamic, to ward off future harassment claims.

5. Overtime Rules, Salary Thresholds & Independent Contractors

(58:32–66:37)

• Overtime Misconceptions:
  Paying someone a salary doesn’t automatically exempt them from overtime. Exemption requires a minimum salary, a salary basis, and specific job duties.

  • New rules: Salary threshold increased to $43,000 in July 2024, and will rise to $58,000 in January 2025.

  “You can't just pay an employee a salary to avoid paying them overtime... That's not what the law says.” – Leah (58:32)

• Independent Contractor Rule:
  DOL issued a new 6-factor test for classifying contractors. State and IRS rules complicate the landscape further. Some states automatically presume employee status.

  “You have different tests from different agencies, which is kind of odd… You better be paying them a W2 unless you meet these factor tests to prove otherwise.” – Leah (64:02)

• Flexible Work and the Gig Economy:
  Many workers seek contractor status for flexibility, while employers use this model to manage costs and workload variability.

Notable Quotes & Memorable Moments

• On Meanness at Work:
  “It takes a lot of work to be mean.”
  — Tom (12:14)

• On Bias and "Checking" Each Other:
  “He checked me on it, and so got to be checked on it, but...in a friendly way.”
  — Leah (23:57)

• On AI Blunders and Human Error:
  “She copied and pasted...including the directions to ChatGPT.”
  — Leah (27:34)

• On Workplace Pregnancy Myths:
  “According to Congress, [women] only started having babies as of June of this year…”
  — Leah (31:30)

• On Employer Mindset:
  “A good employee is a good employee and you’re looking at them over a career span.”
  — Tom (35:21)

• On Workplace Romance:
  “They may also break up at work. Okay. So the divorce rate is pretty high. The breakup rate is even higher...”
  — Leah (53:57)

Timestamps to Key Segments

• 06:27 – Leah introduces EEOC harassment guidance
• 09:45 – Gender identity and workplace pronouns
• 12:14 – Story of transgender employee's business cards, Tom’s notable quote
• 15:59 – Harassment due to “perceived” protected status
• 22:23 – Training on bias; microaggressions explained
• 24:48 – Gender and race wage gaps; salary history questions
• 27:34 – AI “breakup” story
• 29:06 – Legal liability for AI bias
• 31:30 – Pregnancy and new federal legal protections
• 39:47 – The Pump Act and lactation accommodations
• 44:04 – Litigation over lactation accommodations (class actions)
• 52:41 – "Love contracts" explained
• 58:32 – Overtime rules and salary thresholds
• 64:02 – Independent contractor test overview

Tone & Style

The conversation is frank, approachable, and laced with humor. Leah’s explanations are accessible, often illustrated with real or hypothetical examples, and Tom brings levity while steering the dialogue to practical workplace realities. The podcast is informative yet relatable, aiming to demystify evolving employment law issues for a wide legal/business audience without jargon overload.

Summary Takeaways

• The legal definition of harassment is broadening; subtle workplace slights can have legal ramifications.
• Employers must accommodate gender identity, pregnancy, and lactation needs, adapting to new federal and state mandates.
• Payroll, HR, and AI tools must be vetted to ensure they do not perpetuate discrimination or miscalculate pay/benefits.
• “Love contracts” can be effective tools for managing workplace romance risks.
• Changes to overtime and contractor rules require immediate employer attention.
• Adapting policies to legal shifts isn’t just about compliance—it builds workplace trust and reduces liability.

This episode is an essential listen for anyone navigating the intersection of law, workplace culture, and rapidly evolving regulations.