Loading summary
Transcript236 lines
- [00:02]
A
Welcome to the Emerging Litigation Podcast. This is a group project driven by HB Litigation, now part of Critical Legal Content and Valex companies Fastcase and lawstreet Media. I'm your host, Tom Hagee, longtime Litigation News editor and publisher and current litigation enthusiast. If you wish to reach me, please check the appropriate links in the show notes. Now, here's today's episode. If you like what you hear, please give us a rating. People, we're complicated creatures, am I right? And nowhere is that more on display than in the workplace. We can be compassionate. We can fall in love. Some number of us can even get pregnant. On the flip side, sometimes we don't care for each other so much. And frankly, some people deserve that. Sometimes we cross the lines of propriety, causing emotional or even physical harm to others on our teams, whether we work with them, for them, or supervise them. Sometimes we work more than regular hours, either because we're directed to or because we're willing to do whatever it takes. Or maybe we're slow. Or maybe we just want to avoid family. No one does that. We all know that the workplace can be a dynamic environment, a space where ambition, creativity, paranoia, backstabbing politics, and sometimes unexpected relationships. Employers need to know how to make sure their workers are able to navigate these things smoothly and appropriately and in compliance with changing laws and regs, norms and mores. I mean the concept, not the eel. It's always good to throw out a couple statistics. Forbes Advisor commissioned a survey of 2,000 employed Americans. They used Market Research Company 1 poll, and I'll give you some of those stats. But then the margin of error you should know is plus or minus 2.2 points. That includes in swing states, according to the writers of the article. Based on the survey, Kelly Main and Rob Watts like to give them Credit. More than 60% of these folks have had a workplace romance. Almost as many report that these workplace relationships have impacted their work performance. Doesn't say whether their performance was improved or whether it degraded. 43% have married somebody they worked with. Case, I just work with somebody I'm married to. Something I recommend highly. Right, honey? 35% don't report their relationships to their employer. 40% have cheated on their current partner with a co worker. Half have engaged in flirtatious behavior with colleagues. Can you imagine? Fewer than one in five think dating a colleague is unprofessional. Let's put that in a more positive way. 4 out of 5 say it's fine to date a colleague. Let me pronounce that better. Colleague, not Colley. Nearly 60% have heard gossip about colleagues in a workplace romance. And then turn to harassment and violence in the workplace. It's a global issue. A Gallup powered poll out of the UK Said that more than one in five people worldwide say they've experienced some form of violence and harassment, whether it's physical, psychological or sexual. More than one in ten say they've experienced such things in the past year. Psychological harassment such as insults, threats, bullying or intimidation. It's the most common form of workplace abuse. Globally. 17% of the people polled say they've experienced such things during their lifetime. So we're going to talk about some of these things. On the agenda is love at work, harassment at work, pregnancy at work, discord at work and working overtime at work. And certainly some of these issues aren't fun. But. But our guest is how's that for a transition? Leah M. Stiegler, She's a principal attorney at Woods Rogers Lee has extensive experience across a broad spectrum of employment law matters. She advises employers and provides them guidance on complex personnel issues, management performance challenges, fostering a positive work environment. She defends them in administrative actions like before the eeoc, the Department of Labor and the National Labor Relations Board. Breach of contact beach breach of contract, discrimination, whistleblower complaints. She does it all. She also tackles wage and hour concerns, making sure employers comply with complex labor regulation, making sure employers comply with complex labor regulations. She also assists educational institutions, those are schools with handling sensitive Title 9 and Code of conduct investigations. I only laugh when I say Title IX because it's always written in Roman numerals. And I literally every time have to say, let's see, there's an X and there's an I to the left, 10 minus 1. That's why I left. Lee is also passionate about creating customized workforce training programs because you know, if you're well informed, you're gonna have organizational success. So she finds that rewarding. And apparently she has fun doing it. And I think when you listen to her, you'll see why. Now she also finally, let's get her credentials out there. She has her JD from the University Richmond School of Law. Cum laude or cum laude, Order of the Coif. I always like saying that.
- [06:03]
B
I don't know why.
- [06:04]
A
I always think of hairstyles. I'm sure it's related. And she has a BA And BS I don't know how you do that. She'll have to tell me from Virginia Tech. Summa cum laude again. Okay, we get it. You're smart. And here's my interview with Leah M. Stiegler, principal attorney at Woods Rogers. I hope you enjoy it.
- [06:24]
B
Leah Stiegler, thank you very much for talking to me today.
- [06:27]
C
Yeah, thank you, Tom.
- [06:28]
B
So we've got a lot to go through. I thought we'd. I've already introduced you and generally introduced the topic first. We wanted to start with the new EEOC guidance on harassment in the workplace. So can you share with me some of what you see are the emerging issues as it relates to litigation in that category?
- [06:50]
C
Absolutely. So the EEOC is the Equal Employment Opportunity Commission. And this is the federal agency that is sort of the front line of defense, the sort of enforcement arm of Title VII of the Civil Rights act, and really plays a big role in assessing complaints from workers and former workers and applicants that are saying, hey, you know, I was discriminated against based on my race, my gender, my sexual orientation. And the EEOC will oftentimes investigate these charges, we call them, and sometimes they'll even bring litigation against an employer. And an employer has to defend themselves in the EEOC world. And so EEOC issued some new guidance that a lot of employers should be aware of. And it really does a deep dive on different issues that EEOC is looking at when it comes to harassment in the workplace and harassment. I don't know, Tom. You know, many people probably think harassment is really just sexual harassment, but it's a lot bigger than that. I mean, have you. Do you.
- [07:58]
B
Have I committed sexual harassment?
- [08:00]
C
No, no, that's not where I was going. But when I say harassment, oftentimes people think only sexual harassment.
- [08:10]
B
That's what comes to mind.
- [08:11]
C
Yeah, right. Yeah. And that's what's the fun, salacious stuff that people see in the news. And I shouldn't say it's fun. That's probably going to get me canceled.
- [08:20]
B
Oh, by the way, if you ever want to correct anything you say, just tell me you're going to redo it.
- [08:25]
C
So it's okay, you can leave that in. But more, it's more just the media likes that in the sense, because it's the salacious stuff in the workplace. So you see that sort of quid pro quo sexual harassment where a supervisor is harassing a subordinate. But another issue and something that I probably see more often in the, in the litigation that I deal with for employers is harassment on the basis is a hostile work environment. Harassment, harassment. And this is sort of severe and pervasive, unwelcome and offensive conduct in the workplace that's based on a protective characteristic like someone's race, someone's gender Someone's age, maybe mental health or some sort of disability. And so EEOC is being that sort of frontline enforcement arm of these laws, has come out with this new guidance. And one area that they're really touching on right now is gender identity. And I often have this phrase that, you know, life happens at work. And so if, if you turn the news on and someone is just, the news anchors are discussing something on the news, it's likely going to, it's likely something that's happening in the workplace. And so gender identity, sort of the way someone identifies has been a big issue in the workplace, so to speak. And EEOC's take is that gender identity is a protection, just like gender, male, female, non, binary. And that 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. So sort of intentional or even accidental misgendering by employees over time, over and over again, they're just not kind of getting it right. Another area is outing someone. And we have seen this. I'll get a call from a client who says, you know, hey, we have an employee who they're, they're a new hire and they identify as male. They go by the name Carl. And other employees are starting to gossip and in the break room about, you know, that Carl maybe was a woman before and they're trying to find Carl's social media and they're discussing it and all of that. That, that is all harassment in the workplace. It doesn't even have to be a comment directed at somebody.
- [10:58]
B
Right. Just creating a, just creating this environment.
- [11:01]
C
Right? Yeah. I mean it's negative and damaging. Yeah, exactly. It's gossip. Right? Gossip in the workplace, even not directed at you that impacts your work environment.
- [11:11]
B
Sure.
- [11:12]
C
And we actually had a situation employer called. You'll find this one interesting. They had an employee who transitioned while the employee was working there. So over time the employee let human resources know, let their supervisor know, hey, I'm going through the transition process and I'm changing my name and here are my new pronouns and this is what I'd like to go by. And the employer was very supportive. The employer actually got the employee new business cards and with the employee's chosen name and chosen pronouns.
- [11:46]
B
Great.
- [11:47]
C
And did a little bit of education, basically sent an announcement out to the other employees. Well, one night at like 6 o' clock when everyone had left, two employees go into that employee's Office, grab all of the business cards, the stack of new business cards, and cross off every single. Cross off the employee's name on every single card and their pronouns on every single card and put their birth name and their birth pronouns.
- [12:15]
B
Wow. It takes a lot of work to be mean.
- [12:18]
C
It. It does. And, and I'm glad you said that because we don't even have to get to the question of is that harassment based on gender identity? Obviously it is. We just have to get to is that disrespectful and mean? You know?
- [12:33]
B
Yeah, very. Especially for adults, you know.
- [12:37]
C
Yeah.
- [12:38]
B
Is we ever left elementary school or high school?
- [12:42]
C
The bullying, Right. Yeah, it's bullying in the workplace. And when you bully based on someone's gender identity, that's harassment. And so another issue, and those employees, by the way, the two that engaged in that misconduct, their whole response was, well, my religious belief is that I can only call someone by their birth name and birth gender. So we have this almost like this, this battle between gender identity protections and religious beliefs in the workplace and this idea that employers should accommodate someone's religious beliefs.
- [13:18]
B
Yeah, that's a stretch, though, to going in and changing everything on their business cards.
- [13:23]
C
Yeah, I don't think we need to accommodate it in that sense. So. And the EEOC's take on it. Right. Is that, you know, no one person's religious beliefs, we don't have to accommodate someone's religious beliefs if their accommodation request is an undue hardship, and it would be deemed an undue hardship to infringe on someone else's anti discrimination rights. So we don't have to accommodate you to the point that we have to in order to make you happy. We have to infringe on their rights and take it out of the gender identity context. Right. What if someone's religious beliefs was where I don't feel comfortable working with a woman who's not my spouse.
- [14:05]
B
Right.
- [14:05]
C
And then you're not going to give women in the workplace the same opportunity. Could we make that person a supervisor?
- [14:11]
B
Yeah, it's when one person's rights infringe on another person's rights. You know, there's a lot of that going on these days.
- [14:17]
C
Yeah. What.
- [14:18]
B
What do you do in that space? All right. Well, that's interesting. The pronouns, religious rights of people. We had talked earlier, you mentioned some other things during COVID Yeah.
- [14:29]
C
And this is another big area that we've seen. When you turn the news on during COVID almost daily you saw hate crimes. Do you remember this?
- [14:38]
B
Yes, very well. Yeah.
- [14:40]
C
Yeah. You'd see it. There was one.
- [14:41]
B
I remember I was stuck at home watching the news. Yes, right.
- [14:44]
C
Yeah, we all were isolated watching the news and, you know, binging Tiger King and all sorts of things.
- [14:51]
B
I missed that one, but I heard it was a thing.
- [14:54]
C
You're so lucky. So unrelated to tigers, EEOC is also really coming down on situations where someone is maybe harassed not because they fall into a protected class, but because we perceive them as falling into a protected class. So bring up Covid, because you saw hate crimes against Asian individuals and even against people who were appearing of Asian descent or appearing as if they were from China and someone who was maybe Latino but was mistaken and someone wrongfully attacking them or using derogatory terms against them. And so, as I said, what's happening in life is also happening in the workplace. We saw a lot of situations where employees filed complaints against employers and filed lawsuits against employers because of harassment, a sort of hostile environment that they were perceived as being from China and that employees were acting as if they were more infectious, were blaming them for bringing the virus to the United States.
- [15:58]
B
Right.
- [16:00]
C
And another area, speaking of 9, 11, you know.
- [16:03]
B
Yeah, we're recording this on September 11th.
- [16:06]
C
Yeah, that's right. Is the perception of someone who's maybe from the Middle east perception that they are Islamic. Right. And so misconduct related to that in the workplace. There were a lot of cases over the last few years where employees call other employees terrorists or other inappropriate terms. And you've got what's going on in Gaza, obviously making its way into the workplace as well. And employees are going to be discussing that and going to have really strong takes on what the US should do and what people's rights are in that sense?
- [16:41]
B
Yeah. And if you're Jewish, what role do you have in attacking Palestinians? And if you're Arab, what role did you have in, you know, October 7th? Yeah, it's nuts. I remember. I do remember after September 11th where I think it was. I forget what state it was, but it was Indian guys were attacked or. I don't know if they were sheikhs or. But they were Indian and they just assumed. They assumed they were Arabs.
- [17:05]
C
Yeah. That's a perfect example. Just someone assuming, by the way someone looks, that they fall into that category.
- [17:12]
B
Not that they should be doing it anyway. Right.
- [17:14]
C
No, absolutely. I'm actually. I'm really glad you said that. Yeah. Not to say that you could attack somebody because they are from China and you're upset about the pandemic. Absolutely not. That's not what we're saying. But just Sort of EEOC is saying, you know, they want to make sure that people have rights even if they are being harassed not because of their national origin to China, but because of a misconception of their national origin being from China.
- [17:38]
B
Yeah. I think my favorite quote after September 11th was from a construction foreman in New York City. They were arguing that you shouldn't be hiring minorities or Arabs because of this stuff. And he's like, if I start not hiring Arabs and Hispanics and on and on and on, we're not going to build anything, you know?
- [17:59]
C
Yeah.
- [18:00]
B
I just loved his bluntness, his real world thing, you know.
- [18:03]
C
Yeah. He's ignoring the discriminatory aspect of the directive. Right. And he's going straight towards the practical implication.
- [18:10]
B
Yeah.
- [18:11]
C
Kind of along that. Note, the, the other area that EEOC is getting into is, you know, we may not see as much overt discriminatory conduct in the workplace in the sense of really use of, of really derogatory terms or, you know, use of the N word in the workplace or physical sexual harassment. We oftentimes, we think that that's what it means when someone is being harassed. And that obviously falls in the category. But EEOC is coming forward and saying we also want to address the more subtle things that happen in the workplace. So issues of stereotyping or people playing on implicit biases, sort of these unconscious unintentional prejudicial attitudes that, let's say a supervisor may have in the workplace. And I, I had a case where the general manager of a dealership was alleged to have said to one employee, hey, well, this employee was going outside on his smoke breaks, and there were a group of other employees out there smoking, and the majority of them were black. And the, the general manager was alleged to have said something like, you really shouldn't be going out there on your smoke breaks. You don't want to be hanging out with all those thugs. Right. And so, and the question came down in the manager's deposition of, you know, the sort of this idea of implicit bias. Right. Like, if there were a group of white individuals out there, would he have really made that comment, that same comment? Or is it this implicit bias that because the employees were black, there's some connection in his brain to the fact that black is dangerous, for instance, as improper as it is.
- [19:57]
B
I had a head, let's just say a relative who asked me once about, about bias, you know, we're all, My family's mostly white people, you know, and they said, well, you know, I'm not prejudiced, but If I, if I'm walking down the street and I see a black guy coming in my direction and I cross the street, is that prejudice? And I'm like, what is the guy? Does he look like Barack Obama carrying a briefcase? So, yes, the question is racist. You know what I mean?
- [20:22]
C
Yeah, exactly. Exactly. Right. No, but we all have on it, we all have implicit biases, and I think you even see it in the form of, like, micro aggressions, for instance. But what is that?
- [20:34]
B
Tell me what that is.
- [20:35]
C
Okay, I will. I have been told before that I've defined it improperly because a microaggression is a form of discrimination. A lot of people believe, and especially the legal world, that, you know, plaintiffs lawyers, I'll say, because I do management side employment work, if it's a microaggression, it's still discrimination. Just as if you were to make a overt discriminatory comment, I would classify it as a subtle comment that maybe on its face doesn't seem overtly racist or sexist, but comes from that prejudicial attitude. There was a guy that I was talking to one time, and we were talking about this issue, and he was a black man, and he said, you know, I one time was down in Alabama and I, I, you know, I lived there for 20 years, went to school down there, and I had an Alabama Roll Tides sweatshirt on, and somebody approached me and said, oh, are you a football fan? And he said, yes, I'm a football fan. And the guy went on to talk with him. And the guy's assumption was that the friend of mine that I was talking to never actually went, could not have gotten into Alabama, that he just was a football fan because he was black. And sort of the connection between, oh, because you're black, you must be a good athlete. Right. Or you must like sports. And so he was explaining that this was a microaggression. And it's hard to address someone's subtle comment like that because it's hard to educate someone in that sense.
- [22:06]
B
Right, Yeah. I mean, if you look at the transcript of that conversation, where was the harm? You know?
- [22:12]
C
Yeah, but.
- [22:13]
B
But, yeah, it's there.
- [22:14]
C
Yeah, exactly. And so EEOC really wants to make sure that employers are addressing this type of conduct in the workplace.
- [22:23]
B
Yeah.
- [22:23]
C
And so really training employees, training managers on how to spot these issues, on how to be careful with their wording and check themselves, because we all have implicit biases. I was walking, I went to the break room a couple months ago, and someone had made peach cobbler, and I train on These issues. Okay, Tom, so this is really embarrassing, but I'm being vulnerable with you.
- [22:43]
B
Okay? No, no one will hear this. Just us.
- [22:47]
C
Someone had made this peach cobbler. It was really good. And I'm, I'm grab a plate of it and I'm walking back to my office and I'm like, oh, hey, Kathy, did you make this peach cobbler? No. Hey, Cindy, did you make this peach cobbler? No. Michelle, did you make this peach cobbler? No. Okay, go back. I'm doing some work. I go back for. I go back for seconds. I may not look at Tom, but I could eat. So I go back for seconds, grab another. Another piece of cobbler, and as I'm walking down the hall, I'm like, oh, hey, Madison, did you make this cobbler? No. No. And all of a sudden, my colleague Pietro, who is a 34 year old guy, comes out of his office and he's like, I, Betty, Bill cobbler. And he was, he was so mad. He was like, you need civility training.
- [23:35]
B
Honest to God. Yeah. One of these little women in the, in the kitchen making the cobbler for the world.
- [23:41]
C
Yeah, I, I never, of course, in, in my brain, I never would have thought the, the young guy in his 30s would. And so. Yeah, but that was an implicit bias. And what's funny is he checked, though. Yeah, he checked me on it, and so got to be checked on it, but.
- [23:57]
B
But in a friendly way. You know what I mean? So something's going on good there. Because he felt comfortable checking you.
- [24:02]
C
Yeah, you know, sure. Yeah, I'm sure. His statual limitations hasn't run yet. So, you know, he could still sue me, but.
- [24:08]
B
So I could be deposed. The. No, it's the same with, you know, it's the same when you. A doctor. What's, what's, what's his name? Well, it's a woman. Oh, right. Of course. You know it. We do that a lot. The same with nurse. That was the crazy thing about nurses. Suddenly no nurse is a guy. And then I saw something I have to. I should. I should fact check myself. But I'm pretty sure male nurses. So you think of nurses as being typically a woman's profession.
- [24:38]
C
Right.
- [24:38]
B
It's not anymore. And then you would think, well, women were there first, so they probably get paid more. No, male nurses make more.
- [24:46]
C
Oh, interesting.
- [24:47]
B
Yeah.
- [24:48]
C
Yeah.
- [24:48]
B
Now I'm gonna fact check that when we hang up, because I. That I did say that a couple years ago and I did look it up and it was true. And I shared it with some of my Cousins who were nurses. I'm like, this is just. Can you.
- [24:59]
C
What? Yeah, well, you know, in general, you, you know, you hear about, oh, women make 70 cents to the, to the man's dollar. Right, Right.
- [25:07]
B
Yeah.
- [25:07]
C
I always say to employers, like, here's a, here's a friendly tip, you know, take off your application, what you like, that box that says, you know, what pay do you want to make? Because historically, historically, and this is another area of emerging litigation, we're seeing a lot of cases on this. Historically, women and people of color have been paid less than white male for the same work. And so if you ask someone what their pay was at their last job or what pay they want to make here, and you base their pay on what they answer, you go up, you know, $5 an hour, $2 an hour or something. You're just carrying forward historical discrimination because their pay rates likely or what they're asking for are likely less than what they should be making or what the white males would be making coming in. And so we've seen a lot of courts that say, you know, even asking that question and relying on it, that absolutely can state a claim for gender based discrimination.
- [26:09]
B
Sure.
- [26:09]
C
And race based discrimination.
- [26:11]
B
Yeah, yeah. Let's just keep, let's just keep your salary. What it, what it's always been, and it's always been too low. Let's, let's jump to this because you had mentioned to me that increasingly, obviously AI is, is all the rage. And it's amazing and it's powerful and like anything amazing and powerful, when it's used correctly, it's, oh my gosh, the things it can do, I just can see unlimited amazing stuff it can do. And then obviously you can also see it causing great harm. What about AI in the, in the workplace?
- [26:48]
C
Yeah, absolutely. I'm only laughing because a friend of mine recently went on an online date and this is just a funny side note of sort of the use of AI and how it could go downhill. But she, she went on a, a date and she didn't like the guy. So she went on chat GPT and put in, you know, give me an example of a breakup message, you know, where I like somebody and nice conversation, but I don't see a future OR whatever. And ChatGPT came up with this brilliant thing.
- [27:17]
B
Sure.
- [27:18]
C
But there's human error involved in the use of AI because she copied and pasted. She just hit select all and copied and then hit paste and pasted the entire message to the guy, including the directions to ChatGPT.
- [27:35]
B
Sure. Yeah.
- [27:36]
C
You Talk about a broken heart, right?
- [27:38]
B
Yeah. Wow.
- [27:39]
C
You're broken up with by, by AI.
- [27:42]
B
That's. That stings.
- [27:45]
C
But the problem with AI and this kind of plays on that is that 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. And so another big area of litigation that we're seeing is when companies use some sort of AI software. And that software is programmed in a way, for instance, that may have a discriminatory impact on a group of people. So a perfect example, EEOC brought a case against a company called Itutor Group, which hires online tutors all over the United States. And they used an software screening application that helped screen applications coming in. And a lot of companies do this because they may get hundreds of thousands of applications, right, or hundreds of applications, and they just are looking for certain trigger words, certain degrees maybe. And the software system they were using was automatically screening out applicants that were 55 and older. So it was women 55 and older and men 60 and older, and 200 applicants that fell in those categories were kicked out. And so EEOC brought a case against them. And the company can't then say, oh, hey, it's not us. Well, this is our software that we're using. This wasn't. We didn't discriminate, the software did. But no, you're responsible. You have to take accountability for that.
- [29:10]
B
Right? Yeah, yeah, right. That's your, It's a tool and you, you. And you misused it, you know, Absolutely.
- [29:18]
C
I've also seen it with, you know, most companies nowadays are using software like an ADP system or a Gusto pay system, Right. And to help them with payroll and to help them carry out employee benefits and compensation. And I have seen cases where these companies, these third party companies will say, oh, you know, we make it so easy for employers and they tout themselves on how easy their software is. So they say, you know, all, if you want to pay someone hourly, you just put that rate in here and it will pay them. If you want to give them a premium, you put that rate in here. If they're doing weekend work and you can give them this extra little bit of money and then, oh, if you want to issue a quarterly bonus, throw that in this category, and then the employee will be paid out. Well, that's easy for the HR person or the payroll person at the company. But the problem is those software systems are often created to just simply comply with maybe basic wage and Hour law or federal law, they're not even looking at state specific laws. And so in a lot of those software systems, I've noticed, are not actually calculating overtime premiums correctly. So when you're looking at what someone should be paid for overtime, you don't just pay their overtime based on the hourly rate that, that you assign them, but you also factor in any premium pay they receive for hazardous work or weekend work, plus any bonuses they may have received, non discretionary bonuses. And these software systems are not implicating that. And so while, while the software may make it more convenient for an employer, they're also. They can also create a significant amount of liability.
- [30:58]
B
Yeah, there's a lot of blaming the robot going on, which we can't do. So I'm going to ask my question. And, and maybe it'll serve as a segue, too. Is so women making less money.
- [31:11]
C
It's wrong.
- [31:12]
B
What's that? It's wrong. It's wrong that you shouldn't do that.
- [31:16]
C
Correct.
- [31:17]
B
Okay. All right. Sorry. That was my question.
- [31:19]
C
That was your question. Okay.
- [31:20]
B
No, no, My question is, do you think that the fact that women have babies, is that one of the. Is that true also?
- [31:31]
C
But according to Congress, they only started having babies as of June of this year because we never had a federal law that required employers to accommodate a pregnant woman until June of 2024. And so only recently, Tom, do we see women having babies.
- [31:52]
B
Really Fascinating. It's funny. I've seen it happen, too, and I, I still, I still don't believe it. I think it was all a little scam. These little. These are little actors that they hired to appear as my daughters. And, and they were annoying. But anyhow, the wonderful daughters. I. Wonderful, Doc. No, my question is, do you think. Is it. Is it the fact that women have babies? Is that one of the biggest, let's say, reasons that women are paid less? Is that. Would you say that. Besides. I'm sorry to interrupt. Keep interrupting you, which is a guy thing, by the way.
- [32:28]
C
No, I actually prefer if you would mansplain the whole pregnancy thing to me. So keep going.
- [32:33]
B
I couldn't give you more than a paragraph, to be honest. I thought about it one day.
- [32:38]
C
I'm like, what, what's that now? What's the fallopian?
- [32:42]
B
I mean, I just. I just. I couldn't give you my. Go ahead. I'm sorry, I interrupted. Go ahead.
- [32:46]
C
No, you. I. That is absolutely a factor you even see in the legal profession. It is, it is. There are so few women, for instance, in partnership roles because, and I personally think, I mean, it is, you know, not just being pregnant, but then childbirth and then taking time off. It is hard to keep up a clientele. And my colleagues who do it, I admire the heck out of them. Incredibly impressive to continue to build a practice and do that. But in any workforce. Yeah, I mean, if you're taking time off to give birth, there's definitely, I mean, I can't tell you the number of calls I get from companies saying, oh, this, that we just found out this, this employee is pregnant and we've got to let her go. We can't deal with that. Well, like, if she has a baby and she's gone, we're not going to be able to operate.
- [33:38]
B
Right.
- [33:39]
C
And, and I'm like, are you. First off, just so you're aware, Tom, pregnancy is a temporary condition.
- [33:45]
B
So wait, is the first time hearing, the first I'm hearing this. What's, what's. It's over. You mean after a certain amount of time?
- [33:51]
C
Yes, generally nine months. Sometimes it can be shorter.
- [33:55]
B
Nine months. That's. I'm remembering that now. Okay.
- [33:57]
C
Okay. Yeah. And, and I, you have to remind employers this because they may have a stellar employee. I'll ask an employer, well, how. What's her performance like? You know, and, and first off, there are anti discrimination rules on, on pregnancy. So the general rule is, no, you cannot ask someone during an interview if they're pregnant. You cannot fire them because they're pregnant or they're about to give birth. Um, and the, the rules are really protective in this sense. You've got to offer accommodations. You may even have to have. Offer leave as a reasonable accommodation when they're pregnant. But I often ask employers, you know, when you tell me that it's such an operational burden, so you're sitting here telling me that she may take three, three months off, so 12 weeks off after giving birth, and that it's such a burden for you to operate for her to be gone for three months, that what you wanted to do is you want to let her go. Even though she's a great employee. She's. She's trained up to do the job. And then you want to post for a job and you want to go through a hiring period and finally bring someone on that may take a month. And then by the time you train them now, you're looking at 60, 90 days later. And at that point she'd be ready to come back. And so you're telling me that this is such a burden that you're willing to go through that.
- [35:07]
B
Right.
- [35:07]
C
Not to mention the statistics show that if you, anytime you terminate someone to replace their position, the economics of that or you're going to pay 1.5 times what you paid that person to bring in the new person and train them up.
- [35:21]
B
Yeah, yeah. And I've worked at large companies and small and really micro companies and both. And, and so I've had to deal with these, deal with these things. Boy, that's a great verb. I've, I've had to address these issues from, from both sides or both sizes of businesses. And I mean, I think in some cases what I found was a good employee is a good employee and you're looking at them over a career span. Right. Not just, oh, what am I going to get out of them for two years. It's like sometimes, you know, and there's nothing like building loyalty then also accommodating someone's major life events is this. I'm going to. Is a small company supposed to kind of adjust the way they think to accommodate the fact that a woman will be away for a certain amount of time and then come back and then have a child? Is it, is it, is what gets the employee or the problem into trouble is that they, they look at things as I hire you and you will be here every day for the next 10 years and, you know, you won't go away and you won't be distracted by anything. Is it a mindset change for small employers who have employees who get pregnant and take leave?
- [36:35]
C
I think it definitely could be because I have a lot of small employer clients that do an incredible job at this and they're really flexible and they allow work from home. They allow adjusted schedules. The easiest thing you can do, depending on the nature of the work, is bring in a temporary worker to fill that position. You could reallocate job duties. Yeah, you know, the, the law recognizes that big companies have a lot more resources to try to accommodate a woman's pregnancy and even her, her leave afterwards. And so, for instance, the Pregnant Workers Fairness act, which went into effect in June of this year, as I mentioned, requires employers to provide reasonable accommodations to pregnant workers. And so to kind of gauge in this back and forth, like, hey, you say you're pregnant. Well, and the employee says, you know, my doctor says I can't lift over 20 pounds. Well, can we accommodate that? Or, you know, I've got a, I need more frequent use of the bathroom. And so can we put her closer to the bathroom or allow her to work from home at this point? So you're Doing this back and forth. And the Pregnant Workers Fairness Act, I believe it applies to employers with 15 or more employees. So there's sort of a threshold, so they're excluding small businesses. That said, many states have stepped in to fill that gap. And so in Virginia, for instance, even small employers with one or more employee. Employee. Are looking at engaging in those reasonable accommodation discussions. And you would be doing it the same way. You would be engaging in an interactive process. If someone came to you and said, hey, I have a chronic hip problem and I need a hip replacement. Right. You just terminate them right there. Right. Some sort of disability.
- [38:16]
B
No, no, of course you don't.
- [38:18]
C
Wrong. Wrong again. Tom, this is.
- [38:21]
B
This is how I'm going to do the next podcast with you. I'm going to make a bunch of assumptions, and then you're going to correct. Okay, you can't fire those people. Right. I'm writing all this down. Go ahead.
- [38:36]
C
Absolutely. The other law that came into play is the Pump act, and this was passed in December of 2023. And this is a federal law. It's Congress coming up with a fun acronym, the Pump Act. And it applies to, you know, I. Because. Because it makes the law more fun. It's also easier for me to remember.
- [38:55]
B
Okay, that's fine. All right. Yeah, I won't judge it then. Go ahead.
- [38:58]
C
This is Congress really expanding the rights for women who've given birth who are expressing milk or in the process of lactating, breastfeeding, over. Over, you know, up to a year, let's say. And state laws also kind of fall in line as well. And an employer is obligated under the Pump act to give a woman who is expressing milk at reasonable break time to express milk. And it has to be a private place, free of intrusion, so it may not have to have a lock on it, but it's got to have some sort of sign. And it cannot be a bathroom. It cannot be a car. And so you see a couple of different issues with this. Well, one is, and I'm going to throw this at you, Tom, what is a reasonable time to Express Milk?
- [39:45]
B
30 minutes.
- [39:47]
C
That the. That could very well be reasonable. There's no. The law.
- [39:51]
B
Oh, you weren't looking for an actual number?
- [39:53]
C
No, no, I actually. You know what? I was actually. I was. I was looking for a number, as long as that's the right answer. And. And so you obviously, you know, employers have a right to address abuse of this problem. If someone is, you know, in the lactation room and they're smoking hours. Yeah, smoke well, hopefully not smoking, but watching Netflix, I've seen.
- [40:13]
B
Oh, dear God.
- [40:15]
C
But the, the law does not create a bright line rule for what is reasonable. Rather, the law says because woman a may need 20 minutes, woman B may need some time to relax, to actually start accumulating milk. And it's probably the wrong term, but. And then to express milk or to pump. And so you are seeing a difference. And I will say I've seen a lot of situations where managers struggle with this because another co workers struggle. They say, oh, well, you know, why does Leah get to take all these breaks throughout the day?
- [40:47]
B
You know, and, oh, come on, Denise, just focus on your work.
- [40:52]
C
You know, I love how you said Denise, because it's not just men, it's women too, that. Oh, yeah. Oh, yeah, yeah. It's that.
- [41:00]
B
Most guys have learned to shut up about that.
- [41:04]
C
Let's hope.
- [41:05]
B
Oh, yeah.
- [41:07]
C
But so you see that right, where there's not really a bright line rule. And I think employers often struggle with, okay, well, how long do we really have to give this person? And you know, can we ask them to stay later? And things like that, that come up. The other issue. And we're seeing a lot of litigation in terms of class actions against retail outfits, fast food franchises, for these type. When these types of entities don't have a lactation room or a room free of intrusion, that's a space where a woman can't express milk or can't pump. And so if you think about franchises like McDonald's and Wendy's, there's two huge class actions going on right now against both of these fast food restaurants because they don't provide. Or the allegations are that they don't provide spaces. And the named plaintiffs had said, have said things like, oh, I was required to pump in my car because, you know, the only other option was the manager's office. And the manager was in there, or the, the office had a camera facing internally so that, you know, people didn't engage in theft at the manager's office of cash and stuff like that. And I didn't feel comfortable, you know, pumping in front of that, obviously. Or, oh, I had to pump in a freezer room because. Or a bathroom. And so. And I think one of the problems with this is, you know, maybe a lot of these franchise outfits or, or restaurants or retail outfits that have many, many locations, they have some sort of architectural floor plan or design that's been in play for many years, and it doesn't include an extra room for this. And so they're kind of in this position of like, well, what do we do?
- [42:52]
B
Yeah. Some of this just requires will and a mindset change, because some of it is not. It's not necessarily expensive. It's just like, when we build buildings. Let's include this. I mean, it's not going to cost more to have it. One part of it is going to be private.
- [43:09]
C
My take, and I don't represent any of the parties in that. In either of those class action lawsuits, but I'm going to solve their problem right now. And they could settle this case by agreeing to put those little. Those little, you know, those freestanding cubes. Freestanding things that you see in the airport, you know, or at baseball games.
- [43:30]
B
Some. Some companies buy hundreds of them and they make them offices.
- [43:34]
C
Yeah, yeah, Just put them out there, actually, you know, where all the tables are, because you may even have patrons that need to use it.
- [43:41]
B
Yeah, yeah, There you go. Yeah, they could be nice. They don't have to look like a Porta John, but they know they're. Some of them are. Are really nice. I've wanted to get into one frequently just to get in there and scream. I'd like to be accommodated in that. In that regard. The. Or cry.
- [43:59]
C
Just to cry.
- [44:01]
B
But. No, but that's. Yeah, yeah. I mean, some of the solutions are simple.
- [44:05]
C
Yeah.
- [44:06]
B
It's like the whole. The whole bathroom thing about transgender folks and bathrooms, that just always baffled me. It's just like, first of all, the whole sharing of bathrooms is. I think we should just stop doing that. That should be banned.
- [44:22]
C
Right.
- [44:23]
B
So just have your own. Have private bathrooms for everybody. Right?
- [44:27]
C
Yeah.
- [44:27]
B
This is my world.
- [44:30]
C
I was up at a comedy show up in D.C. and they had only gender neutral bathrooms, but it was the same layout as would you go into a women's or a men's restroom and there's all the different stalls. And so at first I was like, whoa, this is weird. I'm in line with a bunch of guys, you know, and we're. But we all had our own private stall. I mean, so what's the big deal?
- [44:50]
B
Yes, exactly. Yeah, I've been in those, too. Not at comedy clubs, but. Comedians are definitely more sensitive people. But the. But no, that's right. And it's like a. Such a simple solutions. Like why. I mean, first of all, their women's restrooms obviously are poorly engineered because there's always 25 women in line.
- [45:07]
C
Sure.
- [45:07]
B
And guys are sailing in and out, you know, so what's wrong with you?
- [45:10]
C
Absolutely. I know. That's. That is always. I appreciate you Saying that so if, if, if anything we've said so far in today's episode has ultimately canceled us. That should save us. I will say not every solution is so simple. I did have a case or a situation for a client where in a, they ran a bus system for a locality and they had a bus driver who was expressing milk or she was breastfeeding for she wanted to do it for a year after giving birth and she was driving. Well, she actually was wearing a wearable pump which they have those, which on the pump devices they say, you know, you shouldn't use while driving. But there are these hand, hands free pumps. And the, the client didn't know, the company did not know that she was doing this. But she came back to work and she didn't she want, I mean, you know, a lot of times if you just, if she were to ask, have asked for continued leave, the company may not or would not have had to pay her. And so, you know, some people, they need to work, right? Like we all need to work. I need to work. And so she wanted to come back, she wanted to work. And she didn't necessarily know her rights because the employer had not, you know, advertised it or maybe it was like a small little provision in the handbook and a customer complained to the company and said, you know, I don't feel safe when this bus driver's picking me up. She's wearing an automatic, you know, hands free pumping device while driving. And isn't that some sort of safety concern? And the company was like, what are you talking about? So they look into it, kind of investigate it and sure enough, she's doing it. And so then the question is, well, okay, how do we just accommodate someone who's on a specific bus route around the city? Right? Like, do we, how can we just, we can't just like pull the bus over and have her go into a building and stop the route. We can't adjust this entire schedule. I mean that would be a completely, a complete undue burden. And so, but the employer still is under an obligation to come up with accommodations to allow a woman to express milk. So lactation based accommodations. And so in this case we were able to move her to the dispatch a dispatcher position temporarily for the tenure of her lactation period.
- [47:28]
B
Yeah, yeah. And I do, I do think there's, there is a difference, as you said, you know, with larger companies that have resources and, and those who don't. I mean, I got, this is top of mind for me because I made some statement on my social media to friends that if you can't pay your employees 25 an hour, maybe you have a terrible business model, you know, And I said 25, you know, because that's so much higher than what the minimum is. It's like, what's wrong with your business model? You can't pay that. And I, and I, and the guy came back with, oh, what about the local fruit stand? What about my local this? And I'm like, oh, okay, all right, all right, fine. But get creative, man. Okay, sure, there could be exceptions, and I think you were mentioning that too, like under a certain, certain level, right?
- [48:14]
C
Yep.
- [48:14]
B
It just seemed like they're just ways to, ways to get there because it, just because of the disparity between say the CEO and the frontline workers. It's like, look, I'm not a communist and I'm a, I'm a capitalist and I believe in it, but at some point, aren't we being hogs?
- [48:33]
C
You see on the news all the time, huge reductions in force for these big tech companies or whatever company it may be. And the CEOs are making a couple million dollars in there. And the marketing pitch that we're all supposed to accept is, you know, well, because of higher wages, we just can't sustain our workforce, you know, or because we have to get, offer health care now under the Affordable Care act, we just can't sustain these workforce. So we have to let all these people go. And it's total fear mongering. Right. Especially when you've got a CEO making millions.
- [49:05]
B
Right. And, and I guess the, the, the counter to that is, is we, is if we want a strong CEO, all the CEOs are getting that we have to pay. You know, I guess that's, that's the argument. So it's just like it just, it feeds itself. But there are, there are certainly ways to accommodate. You can give people what, maybe more flexibility, give them other benefits. I mean, people that we, that I've employed before, they valued as much having Fridays off in the summer as they did a pay raise. Because around here you already went to the shore. So hey, you get to go to the shore a day early and guess what? They're editors and they're writing. Did they slack off?
- [49:40]
C
No.
- [49:40]
B
Because they had so much to produce every week and they produced it.
- [49:44]
C
Yeah. And maybe their creative juices are flowing even better when they're over at the shore.
- [49:49]
B
I'm going, I'm really straying here, but I'm kind of interested in everything you're telling me. But you know, And I was thinking also as a. For a small company, I don't know why I'm. Because I am a small company. But the. If my wife is pregnant, we got big problems. But we're also. We're also way too old. But the. She. But she looks very young. Did I say that?
- [50:09]
C
Yeah. No. Yep. You've clearly clarified. Yep.
- [50:14]
B
She's also now the majority owner of this business, so she could fire me. I was thinking about a small business, and this is. I'll just say it because I'm sure it's. It's. It'll get you into trouble. But, you know, if you're a small business and you're hiring people of all ages, including people of an age where they might have children or they just got married and, you know, they might. I mean, you wonder. I wonder sometimes if. Is there a way to be upfront with. Everybody says, okay, there's only 10 of us here and somebody might have a child. I'm not saying who you, Janice. No. This is what's going to happen, you know, so the person themselves know, here's what we. Here's what we'll be able to do to accommodate this because we're small, some work from home, from some time off. This also means the other employees will have to absorb some of that work, which is what we did typically, you know, we had an editor who had a deadline. Well, we had. We had 10 editors. Or at the time we got bigger, we had 15, 20 editors. And they would pitch in. So what, what do you think about saying that stuff up front?
- [51:18]
C
Well, you. Actually, in some states, you have to say it up front in your policies. You have to say, you know, should an employee, you know, get pregnant, here are some proposed reasonable accommodations we will consider. And you can even many, in many states that require you to list those out. Right. Whether it's more flexible time, break time, whatnot. I would probably advise against a company just, you know, overtly saying that, especially because of hiring a younger female, for instance. Right. Or. Or whatnot, because you also have, you know, you. As an employer, you don't want to leave the impression to employees that you're. You're thinking about this as being a problem for you. Right. Because then if something negative happens to that employee, let's say, you ultimately lose some sort of grant funding or whatnot, you have to terminate that person. She was the most recent employee hired, you know, that that sort of announcement to the workforce is going to be used against the employer. It's as, you know, you. You're saying this is a funding issue, but that's really pretext. That's really just masking an unlawful, discriminatory motive that you know where pregnancy, the fact that she could become pregnant is the unlawful motive.
- [52:30]
B
Yeah, I got you. All right, so I won't do that. Where else did we want to go? I think we've covered a lot of ground here. We did have a couple other things we left off. Did I make up love contracts or did I read that in something you wrote?
- [52:41]
C
Yeah, no, you love contracts are a thing.
- [52:44]
B
What are they?
- [52:46]
C
So love contracts, these are. Are not marriage contracts, just so you're aware. Those are a form of love contracts, just so you know.
- [52:58]
B
Well, have you met married people?
- [53:03]
C
Maybe it's like a property agreement more some sense. Right?
- [53:07]
B
Yeah.
- [53:07]
C
Love contracts. It's kind of a fun term that we employment lawyers came up with. And really what it is is, you know, employees are going to fall in love at work. Okay. That's just the way it happens. People may be at work more than, you know, 40 hours a week in fact. My mom and dad worked together at a federal agency. Right. So they worked together, they're married, they got buried all that.
- [53:28]
B
They were in the CIA.
- [53:30]
C
Yeah, we like to think so. But I would, you know, obviously we'd have to.
- [53:34]
B
They wouldn't tell you.
- [53:35]
C
Yeah, no, yeah, yeah, I know those people.
- [53:39]
B
They tell. They told me all kinds of lies. We just did contract work. I'm like, okay, sure. I'm sorry, go ahead.
- [53:45]
C
Did some id, Right?
- [53:46]
B
Yeah.
- [53:47]
C
But, you know, so people fall in love at work or they start dating at work, or they, they. The new term is situationship. You familiar with that one, Tom?
- [53:55]
B
I'm not situationship. No. I'm learning a lot here.
- [53:57]
C
Yeah, it's a little more of a. I wouldn't say it's just a younger generation thing, but it's this idea that you're not actually defining yourselves as being in a relationship, but there's a friendly camaraderie, maybe some intimacy going on. So a situationship concern that, that I have and that I'm always telling clients about is, you know, oftentimes while people may fall in love in work and things are love at work, and that's, you know, things are fine and dandy. They may also break up at work. Okay. So the divorce rate is pretty high. The breakup rate is even higher than that. And so you've got employees who, let's say they start dating and they break up, and they may be co workers, and then one employee keeps pursuing the Other one, because they want to get her back or she wants to get back with him or.
- [54:44]
B
Right.
- [54:45]
C
Or they start treating her like crap or vice versa. Right. Or even worse, you've got a position situation where you've got a supervisor engaged in a relationship with a subordinate and they break up. And then one, especially if the supervisor were to continue to pursue the subordinate, then you have a potential issue of quid pro quo harassment. So oftentimes in harassment cases, what I've seen are sometimes at one point or another, you may have had a consensual relationship that goes wrong, or a consensual relationship that ends and then one person keeps pursuing the other, or they start fighting with each other at work, undermining each other at work, basically engaging in harassment of some sort. And so what I always tell clients is that when you've got two employees that you're aware of that are dating of some sort or in sort of some sort of romantic situationship, have them execute what we call a love contract. And this is basically a disclaimer that says, you know, to the employee, says, you know, I agree that I'm in a relationship, or whatever you want to define it, or have romantic close friendship or relationship with this other employee. It is totally consensual. It is not harassment. And I'm aware of our harassment policies. And so you have them, you have the harassment policy put in place there and you have, you know, any other policies you want them to be aware of, anti fraternization policies and you know, conflicts of interest policies that you may have to address if they're dating in the workplace. And so you have them sign off on this disclaimer or love contract and that and also a statement that they will inform you if they break up. And this is totally legal. And the, the benefit to that is if harassing conduct does in fact occur or if it in fact was not consensual in some way. And that, and one employee sues the company for having been the victim of sexual harassment in the workplace. The employer can oftentimes use that type of document as a major defense to say, well, first off, you know, you signed this document on March 1, 2024, and so anything that you may be complaining about before March 1 is going to be deemed consensual because at that time you had a full opportunity to disclose it. And so you can't now use what happened then in your allegations to make us look bad. Like all this sexual stuff was happening in the workplace or these inappropriate comments and text messages were happening. In the workplace. So you can kind of use it to exclude that type of, those type of comments as being used against the company later and then also to undermine and impeach the witness. If you got the employee saying, oh, I what, it was not consensual. I didn't feel safe reporting it because my, you know, harasser was a supervisor. I didn't want to go to the CEO then or whatnot. Well, no, you, in March, you signed this disclaimer saying you know how to report it, you would report it. You have these different reporting avenues. And so it's a, it's a great device or a great tool to use.
- [57:54]
B
Yeah, interesting. Okay.
- [57:56]
C
I have seen situations where it puts employees on the spot where, you know, I found a client is like, yeah, I sat them down separately, thank goodness, because, you know, he said they were in a relationship and she said no. She was like, well, at least had him sign it, you know, and put it in his file. You know, we never even told her about it, but she was not going to agree that she was dating this guy.
- [58:22]
B
You have to have two on that. On that contract. Yeah, the contract. The Department of Labor, it's got a new overtime rule on raising the salary threshold.
- [58:32]
C
All right, well, I'll start with this. You can't just pay an employee a salary to avoid paying them overtime. And when I say overtime, I mean time and a half for all hours worked over 40 hours in a workweek. Too often there's a misconception that if I pay someone hourly, then I have to pay them overtime, but I can pay them a salary and then I don't have to pay them overtime. That's. That's not what the law says. But that is a common misconception that I frequently see.
- [59:01]
B
That's what I thought.
- [59:03]
C
Yeah, no, it's very common misconception. So the federal Fair Labor Standards act is one of the oldest acts on the book that kind of sets the standard for minimum wage and overtime regulations and child labor laws and even some break time issues. Well, they, the federal, the FLSA basically says, look, if you want to avoid paying overtime, you've got to meet a three factor test. The first part of that test is they have to meet a particular salary threshold. You got to pay them at least this much. The second part of the test is you've got to pay them on a salary basis, meaning the same amount every single week. So there's very limited opportunities where you can take a deduction. So if I'm a salaried worker and I Take two hours off at the, on a Thursday. And I don't have any PTO left. My employer actually can't deduct those two hours from my pay. They could force me to use PTO or advance that pto. But you're supposed to basically give the employee the flexibility. So the basic, the, the benefit of a salary, paying someone a salary is, you know, Whether you work 32 hours this week or 48 hours this week, you're going to just get the, what would be, you know, your same pay every week. And the third test is they have to actually meet a particular duties test. So they have to either be engaged in executive functions. So think of sort of your manager supervising two or more employees, having the ability to hire fire and administrative functions, which does not mean sort of secretarial or office, you know, task based administration, but think of your back office positions, human resources, marketing. So sort of the parts of the company that are making the gears, the gears turn. Recruiting in a way and then you know, professional level employees. And these are sort of your, something like your lawyers, your doctors, your RNs, social workers. So maybe there's a specialized degree of learning that they've, that they've obtained some sort of degree or certification in order to carry out this duty. And then there are a few other sort of duties based tests, but those are the most common. And so you have to meet that three factor test if you want to avoid paying overtime. And the Department of Labor just issued a new rule this year that said for that salary threshold, it was current, it was at 36,000. And as of July 1st of this year, it bumped the new rule bumped it up to 43,000. So you have to at least pay someone $43,000 a year. And then starting January 1, 2025, it's slated to rise to $58,000 a year. And so a lot of our clients are saying, oh my gosh, we got four months left, we're already in September. How are we going to, you know, these employees may be making, you know, 48,000 or 52,000. So everyone, I want to keep paying a salary, I've got to bump them up to 58,000, right? Well, yes, you either have to do that or you have to convert them to non exempt, meaning they're not exempt from overtime. And you've got to start considering, you've got to start paying them over time.
- [62:19]
B
Wow, four months left. So we're going to work them like dogs until. Okay, well that's interesting. I did not, I mean most, I bet A lot of employers don't know that.
- [62:29]
C
No, tons of employers don't. That's why I have a lot of job security.
- [62:32]
B
Good for you. Good for you. Are you salary? No.
- [62:36]
C
Well, unfortunately as a lawyer, you know, I may have weeks where I'm working like 80 hours a week and if only I got overtime. My goodness, I wish sometimes I wish I'm like, I want overtime.
- [62:47]
B
You're going to get no sympathy for me as a small business owner. Just.
- [62:52]
C
Yeah, you're probably working 80 on the regular.
- [62:55]
B
Yeah, easily.
- [62:56]
C
There are some legal actions right now that are some cases out there that try to create get an injunction back. I believe it was in 2016 during the Obama administration, the Department of Labor increased the salary threshold, tried to increase the salary threshold them then. And then a day before it was supposed to go into effect, a court issued an injunction saying, hey, the Department of Labor expanded their authority or exceeded their authority and trying to develop this rule because I bet the DOL learned from that court case and what they had to do. So far I the courts haven't issued any injunction on this. So it's very likely it may go into effect. And the other thing Department of Labor has done this year because they've been super active is issued a new rule on independent contractors. And so that's another thing that probably you may see this in the small business world as well. You've got, there's a new six factor test that employers have to abide by to pay to make someone a contractor instead of an employee.
- [63:58]
B
Used to be 11, didn't it?
- [64:02]
C
Well, the IRS, I think.
- [64:03]
B
Oh, the IRS, you're right.
- [64:04]
C
I'm thinking about it. Yeah. But that's a really good point because you have different tests from different agencies, which is kind of odd. Right. And even state states that have new rules, like some states have a rule that says someone is automatically presumed an employee and you better be paying them a W2 unless you meet these factor tests to prove otherwise.
- [64:26]
B
Okay. All right. Yeah. Because I use freelancers and I use a service called upwork and I find great people on there.
- [64:36]
C
Yeah.
- [64:36]
B
I mean, and some are around the world. Some I absolutely have to have Americans or native born Americans because I need them to write in American English and in some cases be familiar with American court systems. But other things, I mean I've had great people from. Well, I had one lawyer who decided to become a writer. She decided she didn't want to do antitrust law anymore. So she moved from San Francisco to South Africa to run safaris and surface wow. Yeah. And so she was a writer on the side and her cost of living, I guess she worked that out. And so she was just writing from anywhere. Once in a while she'd, I'd say where are you today? And then she'd be her, her and her boyfriend would be in Indonesia. Places where I didn't know they were, you know, she'd say the name of an island and I have to look it up and like. So, yeah, I found great people that way.
- [65:22]
C
Yeah.
- [65:23]
B
And that's a good writer.
- [65:24]
C
That's the benefit of, you know, a lot of people want to be a 1099 contractor.
- [65:29]
B
Yeah.
- [65:30]
C
And, and that's, I've seen so many small too that they don't, especially startups. They may not have a substantial amount of funding to pay someone some sort of stable salary and so they're paying someone on a contract basis to get the job done. So it's almost like trying to fit a square peg in a round hole. You've got the laws saying, hey, it's really hard to make someone a contractor because the law says we want to make sure you're paying your employer payroll taxes. We want to make sure you're paying into Social Security with that. We want to make sure that this person is entitled to the same employee benefits that you would provide employees such as Healthcare 401K. And so, you know, it's hard and I represent a lot of gig economy workers as well. And you know, they oftentimes these companies will say, because we don't have frequent work and they, you know, the work may come and go, it's hard to keep someone. And so the turnover is so high for employees. And a lot of people want to be contractors. They want to be able to, you know, clock into a ride share company after work if they feel like it and not do it if they don't feel like it. Which an employee wouldn't have that flexibility.
- [66:38]
B
Great. Yeah, it does, it does give them flexibility and it can, and I feel like as again you talk about startups and small businesses, I mean there have to, has to be some, some leeway somehow that they can get started or they can grow to a certain size. It sounds like some of the laws do accommodate that. You know, when you, when you limit and say this, this is going to apply to companies with 15 or more employees, that kind of thing. So, so that's good. Well, look, we've covered a lot of ground here.
- [67:11]
C
Yeah.
- [67:11]
B
And I was listening to every word you were saying. But I do want to know over Your. I think it's your right shoulder. If you're. What is that. What is that painting? The one in the bottom left. No. Okay, your left shoulder then. Sorry.
- [67:25]
C
The one with the boat.
- [67:26]
B
The other way.
- [67:28]
C
The shark.
- [67:28]
B
Is that a shark? Looks like.
- [67:30]
C
Yes.
- [67:30]
B
I couldn't tell. It was a frog. Wearing headphones. I couldn't tell what it was.
- [67:33]
C
Oh, it's a shark. That says hangry. Because I get hang. I get very, very hangry.
- [67:38]
B
Oh, okay. So that's a. Oh, it's a shark. I see it now.
- [67:42]
C
Yeah. Yep.
- [67:44]
B
From here, it looks like a frog wearing headphones, yelling. Yeah, okay, I see.
- [67:49]
C
And that's the one over here. This boat. You probably can't see it as much, but it's a. I can see a boat. It's a boat with a mermaid. I did a federal clerkship in Norfolk, Virginia, and they have a big battleship there called the USS Wisconsin. And there was a homeless woman that sat outside the courthouse. And so I'd walk to. From my apartment to the courthouse every day and just say hi. And she got into painting and watercolors. And so I said, you know, hey, I'm. I'm, you know, I'm moving soon. Do you think you could. Can I commission one for about the. The u. The USS Wisconsin. I want a battleship photo to kind of remember my time here. Well, she was very creative, and she put a mermaid with, like, an evil tail drinking a bottle of whiskey in front of the battleship. It says the USS Whiskey. And she made the ocean, like, an eerie purple.
- [68:50]
B
Yeah, I see that.
- [68:51]
C
Yeah.
- [68:52]
B
Yeah, that's great.
- [68:53]
C
I. I loved it. I was like, this is incredible.
- [68:55]
B
So she had fun with it. That's great. That's cool. Yeah, I know. I know those battleships only because I used to build them as models as a kid. I used to build, like, the usa. I. I don't know if I built that one, but they were similar. The Iowa, the Ohio. I mean, I. I knew every little thing about them, and then I'd set them on fire. There wasn't anything wrong with me. There wasn't anything wrong with me.
- [69:19]
C
Just some red flags.
- [69:22]
B
We didn't have. We didn't have television. Okay, great. Well, Leah, thank you very much for all of this. I really appreciate your taking so much time. It was fun to talk to you too.
- [69:34]
C
Yeah, you as well. Tomorrow.
- [69:38]
A
That concludes this episode of the Emerging Litigation Podcast, a co production of HP Litigation, Critical Legal Content, Velec's Fastcase, and our friends at lawstreet Media. I'm Tom Hagee, your host, which would explain why I'm talking. Please feel free to reach out to me if you have ideas for a future episode. And don't hesitate to share this with clients, colleagues, friends, animals you may have left at home, teenagers you've irresponsibly left unsupervised, and certain classifications of fruits and vegetables. And if you feel so moved, please.
- [70:10]
B
Give us a rating.
- [70:11]
A
Those always help. Thank you for listening. Oh yeah, so I had to look up Order of the Coif. You know, I couldn't let it go anymore. It's been so many years since I've always wondered. Not exactly a hairstyle, but it's close. The symbolism of the coif evolved from the legal traditions of the Middle Ages in England. So everything was great in England back then. The coif itself originated as a. This is all from Wikipedia, by the way. Give them credit. The coif itself originated as a tight fitting headpiece once used by both men and women. A version of this, in the form of a close fitting hood that covered all but the face, was adopted as a symbol for those barristers who had been recognized as. I'm not even. Sergeants at Law, I guess. Sergeants. Sergeants at Law. And thus formed a narrow pool of legal practitioners who could be appointed judges, blah blah, blah. Anyway, so there you have it. White wigs were so often sewn into the coif that their usage became conjoined. Conjoined coifs. So there you knew you wanted to know that in the Middle Ages, just so Everybody knows, it's 13th, 14th or 15th century, depending on a lot of things. So I knew you wanted to know that too. Then stay tuned for our reading of the Canterbury Tales.