There have been several significant legal developments lately. The FTC has banned non-competes, the NLRB has made company policies and work rules a confusing muddle, and the Supreme Court recently clarified when a job transfer can constitute discrimination or retaliation. To find out more about how these decisions impact employers and what you should do (or not do), tune in to this week's episode with special legal eagle guest stars Stephen Zashin and Ami Patel from Zashin & Rich!
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[00:00:14] Welcome to Wine with HR, I'm Jules.
[00:00:16] Hey there, I'm Trish.
[00:00:18] Lawyers turned HR professionals.
[00:00:20] Through our company, Monarch Endeavors, we guide employers through their oh shit moments with their employees.
[00:00:26] In this podcast, we will discuss some of the most common and commonly frustrating HR problems
[00:00:33] while enjoying our favorite adult beverage, wine.
[00:00:36] So sit back, grab a glass if you choose, and join us as we think about and drink about all things HR.
[00:00:44] Welcome to this week's episode of Wine with HR.
[00:00:50] Today, we are delving into some of the recent, and in some cases, positively confounding legal developments.
[00:00:59] You will definitely need the beverage of your choice for this one.
[00:01:04] And we are thrilled to have with us two legal experts from the firm Zashen and Rich in downtown Cleveland, Cleveland Rocks.
[00:01:14] We have Amit Patel and Stephen Zashen, and I'm going to let them introduce themselves in just a second.
[00:01:20] But they are going to help us navigate all of these confounding issues that we just referenced.
[00:01:26] So Stephen, since it is your last name in the law firm, why don't you tell us a little bit about yourself and Zashen and Rich?
[00:01:33] Sure. So let's start with Zashen and Rich.
[00:01:35] We are a boutique, labor and improvement law firm.
[00:01:38] We've got offices in Cleveland and Columbus, Ohio.
[00:01:41] The firm has been around since 1981, and we represent employers across the country in terms of exclusively representing employers in all things having to do with their employees.
[00:01:51] And so much of what we do is, you know, implement discrimination stuff.
[00:01:54] We do a wage an hour.
[00:01:56] We do trade secret work.
[00:01:58] And really everything that has to do with your employees, we help employers navigate the complex rules and regulations that are becoming even more complex as the days go on.
[00:02:10] And for me personally, I've been doing this for almost 30 years and I love what I do and I love the people that I work with.
[00:02:16] And so I'm the managing partner of the firm.
[00:02:18] And we've got about 30 some odd lawyers that practice exclusively labor and employment law on behalf of employers.
[00:02:25] And I'm truly blessed that I get to work with Amit because she puts up with me day in and day out.
[00:02:30] And she is the practice leader of our trade secrets group and is a true rock star.
[00:02:36] And I mean that in the highest sense of the word because she does things in this area that is our it blows my mind every time I get to work on a case with her.
[00:02:45] So I feel very fortunate.
[00:02:46] So with that, I'll turn it over to you.
[00:02:48] All right. I'm Amit Patel and Steven's my hype man.
[00:02:54] Let's go!
[00:02:57] I've been doing this for about 20 years.
[00:03:01] This is my 20th year of practicing law, which is really scary.
[00:03:05] More than half of my life, I feel like.
[00:03:07] But close to it.
[00:03:09] And I've been doing the trade secret non-compete stuff.
[00:03:12] I kind of fell into it probably about what now?
[00:03:15] Ten years ago.
[00:03:17] And it's really it's challenging, but it's also a lot of fun.
[00:03:21] It's like a little puzzle usually.
[00:03:23] And we have a lot of fun when we're doing some of these cases.
[00:03:26] We take down other people that don't see us coming because we have a labor and employment background that a lot of trade secret business litigation folks don't have.
[00:03:36] So we approach it a little bit differently.
[00:03:38] So it's a lot of fun.
[00:03:40] Very cool.
[00:03:41] Yes. So when Monarch, you know, we're here for all your oh shit moments.
[00:03:46] But when the oh shit moments get to the they need a lawyer.
[00:03:49] Oh shit moment.
[00:03:52] Desasciated and rich.
[00:03:53] So full disclosure, Ami and I have been friends for 20 years now.
[00:03:59] So she and I have a lot of history, but we also get into some trouble together and had some fun legal ventures.
[00:04:10] So again, we're thrilled to have you both here today.
[00:04:12] Can't wait.
[00:04:13] So Trish, you want to get us started on the wine that you're drinking today?
[00:04:18] Of course, I would love to.
[00:04:20] Thank you.
[00:04:21] And I just need to say to you both, thank you so much.
[00:04:24] I am really excited about this episode.
[00:04:26] I know that people are probably going it's about the law, but I've had some burning questions and so I can't wait to hear your answers.
[00:04:35] And now to talk about trouble.
[00:04:39] The wine.
[00:04:40] I sent Will to the store, my husband, and of course his favorite is Menage a Trois.
[00:04:47] So yes, so he comes home.
[00:04:50] I can see you shaking your head.
[00:04:52] I know I thought it was like the perfect one to talk about with our labor and employment gurus here.
[00:04:58] This particular one is called Lime White.
[00:05:01] It's their Pinot Grigio.
[00:05:02] I had never actually had it before.
[00:05:05] And it is exactly what they say.
[00:05:07] Crisp, elegant and zesty.
[00:05:10] My first sip, I was kind of like, oh, that is crisp.
[00:05:13] I could see I could see this being very, very easy drinking, you know, down in Cleveland on a boat in the middle of the harbor.
[00:05:21] So just saying.
[00:05:25] I like it.
[00:05:26] All right, Jules, what about you?
[00:05:28] Well, so Ami and I are enjoying a and I know you're going to be shocked by this an Italian wine, Italian.
[00:05:36] What?
[00:05:37] This is a Palazzo del Littore.
[00:05:41] It's from the Rosso Veronese region.
[00:05:44] It is a full body red blend produced with the double fermentation method developed by Franco Allegrini in the hills above the historical city of Verona, home of Romeo and Juliet.
[00:05:58] And at first sip, I would have to say that it is it is pretty full body.
[00:06:04] It says it has notes of cherry and tobacco and prune.
[00:06:09] Really?
[00:06:11] So there you go.
[00:06:13] But so far, I am enjoying it.
[00:06:15] What do you think about it Ami?
[00:06:17] I can definitely taste the cherry.
[00:06:19] Hopefully don't feel or taste the effects of the prune.
[00:06:28] Even just embarrassed already.
[00:06:30] Gives me a reading to that oh shit moment.
[00:06:34] I don't even know what to say.
[00:06:36] Look, I'm just sitting here drinking tequila with soda water because that's all I drink.
[00:06:40] So you guys can enjoy your wine and I'll just shoot tequila.
[00:06:43] How's that?
[00:06:45] What's your brand of tequila?
[00:06:47] The one I really like is actually a brand called Lalo.
[00:06:50] It's a blog called it's really good.
[00:06:52] That's sort of my go to.
[00:06:54] And so with just soda water, I'm sort of simple that way.
[00:06:56] Nice.
[00:06:58] I like it.
[00:06:59] Very nice.
[00:07:00] So now we've discussed the WINE of the week and the tequila of the week.
[00:07:05] So let's get to the WHINE of the week.
[00:07:08] There are sort of four legal developments we're hoping to get to.
[00:07:13] They include the recent ban on non-competes from the Federal Trade Commission,
[00:07:18] a recent Supreme Court case, Mulderil v. City of St. Louis,
[00:07:23] the Stereocycle decision from the National Labor Relations Board,
[00:07:27] which if y'all recall, we did that last season,
[00:07:30] but it's still confusing the heck out of people.
[00:07:32] So we thought we'd ask some employers about it.
[00:07:35] And then the last one is the Department of Labor just recently revised
[00:07:40] the salary threshold and test for the executive exemptions
[00:07:44] under the Fair Labor Standards Act.
[00:07:46] So we're going to talk about that.
[00:07:48] And then we'll see what else we can get to.
[00:07:50] So let's start with the FTC ban on non-competes.
[00:07:55] And before we get to our legal experts,
[00:07:57] Trisha loves, loves, loves statistics.
[00:08:01] So we have to give her a chance to drop some knowledge.
[00:08:05] Yes. My favorite part of the episode other than the wine, of course.
[00:08:10] All right. So the FTC.
[00:08:13] Now they did their own research and then they also looked at some studies
[00:08:18] that were published by economists and they allowed public comment.
[00:08:23] And what they found was that one in five American workers,
[00:08:27] now for those of you that are out there kind of trying to do the math
[00:08:30] in your head, don't bother. I'll tell you it's around 30 million.
[00:08:34] So 30 million workers were actually subject to a non-compete.
[00:08:39] Now the Government Accountability Office found that 38% of workers
[00:08:45] had actually been subject to a non-compete agreement
[00:08:49] at some point during their careers.
[00:08:52] And over 70% of respondents to their survey,
[00:08:58] and the survey was done of 446 private sector employers,
[00:09:03] they used non-competes for at least some of their employees.
[00:09:09] As always, you know, Julie and I always put any of the stats
[00:09:13] and where we located the information from in the show notes.
[00:09:16] So make sure that you check that out. Jules?
[00:09:21] Yeah, I thought it was interesting too.
[00:09:23] Some of the percentages from the Government Accountability Office
[00:09:28] indicated that 69% of part-time employees were at least,
[00:09:34] some of them were required to sign a non-compete,
[00:09:37] 72% of hourly employees, 92% of salaried non-managers,
[00:09:43] 98% of salaried managers, and 98% of executives.
[00:09:48] And I think like the last two make a lot of sense
[00:09:51] because those are who we typically think of that have non-competes
[00:09:54] or your higher level employees
[00:09:56] and there's good valid reasons for non-competes to exist.
[00:09:59] I was a little bit surprised by some of the other categories
[00:10:02] because you don't always see,
[00:10:04] I personally have never seen a non-compete for a part-time employee.
[00:10:08] So again, this is one source
[00:10:10] and it's the Government Accountability Office.
[00:10:13] So take it for what it's worth,
[00:10:15] but we have some numbers to work with.
[00:10:17] Now the STC, part of the reasoning for their ban
[00:10:21] is that it negatively impacts competition in the labor markets,
[00:10:25] it allegedly suppresses earnings for workers,
[00:10:28] and it stifles new business formation and innovation.
[00:10:33] So again, that's their reasoning
[00:10:35] and that of course is what they're using to ban these non-competes.
[00:10:39] So I would like to hear Ami and Stephen's thoughts
[00:10:43] about the STC's reasoning and the ban
[00:10:46] and anything else you want to say about that in particular.
[00:10:49] So Ami.
[00:10:50] All right, so statistics are really funny, isn't it?
[00:10:54] Depends on who you get them from,
[00:10:56] depends on who you're asking,
[00:10:58] and it depends on how you define a non-compete.
[00:11:02] So every person that I've talked to
[00:11:05] that thinks they have a non-compete actually doesn't,
[00:11:08] and they have a non-solicitation agreement or a non-dislunction.
[00:11:11] Can you explain the difference for those for us?
[00:11:13] Sure.
[00:11:14] So a non-compete, when we typically see them,
[00:11:17] they restrict you from working in a particular area
[00:11:20] or a particular type of industry,
[00:11:23] and it tends to have a geographical restriction.
[00:11:26] Non-solicitations usually pertain to
[00:11:29] not soliciting customers, prospective customers,
[00:11:32] sometimes employees of your former employer.
[00:11:35] And then a non-disclosure is designed to protect
[00:11:38] your confidential and or trade secret information.
[00:11:41] So these statistics are a little bit interesting
[00:11:45] because obviously you can find a statistic for everything.
[00:11:49] It's like the whole glass is half full,
[00:11:51] glass is half empty analysis, right?
[00:11:55] Interestingly though, I do think
[00:11:58] with respect to non-competes,
[00:12:00] they're becoming a little more challenging.
[00:12:03] So you have to have one of the factors
[00:12:06] that courts consider are reasonable on geographic area.
[00:12:10] And the way our world works now,
[00:12:13] you're not just working in the city of Cleveland necessarily.
[00:12:16] You're not just working in the state of Ohio a lot of times.
[00:12:19] So I think that's where the challenge employers may feel anyways.
[00:12:23] So naturally, I think non-competes have narrowed significantly
[00:12:29] and the better response to maintaining your competitive value
[00:12:34] and protecting your information,
[00:12:36] I think has always in my view been more tailored
[00:12:39] to the type of business you are
[00:12:41] and what type of information
[00:12:43] and what type of customers or proprietary aspects
[00:12:47] of your business that you'd like to protect.
[00:12:50] So I know Stephen has a slightly different view on it,
[00:12:54] but maybe not too much.
[00:12:55] I don't know that I have a different view on it,
[00:12:57] but what I will say is that bad facts make bad law.
[00:13:00] And so where I think a lot of this originated from
[00:13:03] was some subway shops and I mean literally sandwich shops
[00:13:08] where they were implementing non-competes
[00:13:10] that would prohibit people from moving
[00:13:12] from one subway shop maker to another down the street
[00:13:16] because somehow they felt that that would impact sales.
[00:13:19] Is that Jimmy John's?
[00:13:21] I'm not sure which one, but it was some,
[00:13:23] one of the franchises.
[00:13:24] Sorry, Jimmy John's or Subway, whichever one it's not, sorry.
[00:13:28] Yeah, so from my perspective,
[00:13:30] I think that's where this issue sort of begins.
[00:13:33] And I think that even with employers that we represent,
[00:13:37] it's often really difficult to talk to them and say,
[00:13:40] you need to narrowly tailor this thing
[00:13:43] so that it actually protects what you needed to protect
[00:13:46] because that's what we're ultimately trying to do.
[00:13:48] But what we see is we see some employers,
[00:13:50] they just want a one size fits all kind of a response.
[00:13:53] And so when I'm working with a client and a good client,
[00:13:56] a responsive client, a client that thinks,
[00:13:59] you know, I'm usually thinking about a combination
[00:14:01] of three different documents, right?
[00:14:03] One would be a true non-compete, right?
[00:14:07] For those that really have the crux
[00:14:11] of the company's information in their possession
[00:14:14] and could really do damage if they were to go to a competitor.
[00:14:18] But then at the lower tier,
[00:14:19] we would use just a non-solicitation agreement.
[00:14:22] And then the bottom tier would be maybe just
[00:14:25] a straight up non-disclosure agreement.
[00:14:27] And so, but again, as Ami said,
[00:14:29] like there is this misnomer and oftentimes
[00:14:32] that we see this from actual lawyers.
[00:14:33] We were litigating a case in the Sixth Circuit Court of Appeals
[00:14:36] and a guy was calling a document
[00:14:37] that was a clear non-solicitation agreement on Al-Kabee.
[00:14:41] And there was no differentiation in his viewpoint as to,
[00:14:45] that's a completely different concept.
[00:14:47] And so, and I think courts also misunderstand them at times.
[00:14:51] But I think that what's happening here is the FTC has waded into some water
[00:14:56] that is going to become very challenging for the FTC
[00:14:59] to actually uphold this new rule-making authority.
[00:15:03] The challenges to this are going to be far and wide.
[00:15:05] However, I think that what is going to happen is
[00:15:08] that this is going to cause the judiciary
[00:15:11] to even further pull the reins back
[00:15:14] on what I'd call a traditional non-compete,
[00:15:16] which is you can't compete with a particular entity
[00:15:20] within a certain geographical limitation
[00:15:22] for both in terms of scope and time.
[00:15:25] And typically those can range from five years
[00:15:28] for the sale of a business
[00:15:30] or two years as it relates to sort of an everyday sort of worker.
[00:15:35] But again, smart employers have been thinking about these things for a long time
[00:15:39] because who likes to run the court only to have a court shut down
[00:15:43] when there are contractual restrictions?
[00:15:45] So, but we have employers, clients,
[00:15:48] who will enforce it no matter what.
[00:15:50] And they want to run the court on virtually everything.
[00:15:52] And we have to have those difficult conversations with those clients about
[00:15:55] can this person really hurt you?
[00:15:57] Is this something you really want to fight about?
[00:15:59] And when we get an email back that says,
[00:16:02] you know, we just want to jam every particular way we have.
[00:16:07] I mean, that can be a difficult conversation with a client.
[00:16:10] Yeah. I also think that the FTC will have problems
[00:16:13] with just like employers have been starting to tailor these
[00:16:17] hopefully to what they need to protect.
[00:16:20] The FTC is trying to do a one size fits all
[00:16:22] without considering every individual business
[00:16:25] involved and affected,
[00:16:28] which is kind of an interesting area.
[00:16:31] And then I mean, I have my own comments about enforcement.
[00:16:34] I mean, does that now mean that we're resolving breach of contract cases
[00:16:37] at the federal court when we're traditionally doing them in state court?
[00:16:41] Like that's an interesting, I don't know if the federal bench will appreciate
[00:16:46] having to navigate non-compete from all 50 states.
[00:16:50] But you also have to think about the investment
[00:16:54] that employers are willing to make in employees, right?
[00:16:57] Because if I'm an employer and I'm investing, you know,
[00:17:00] tons of money into someone and they're just going to run off.
[00:17:03] And what we have seen, by the way, I think this is important concept,
[00:17:06] which is millennials tend to change jobs at a much more rapid clip.
[00:17:11] I think that's something the FTC completely missed.
[00:17:14] So if I'm an employer, then how much more willing am I going to be
[00:17:17] to invest in a particular person that I know isn't going to last with me
[00:17:20] for very long? Like that gives me a disincentive
[00:17:23] to actually want to invest in my people.
[00:17:25] And so you're actually punishing those employers who want to invest
[00:17:29] in their people. And that is not a good idea because all of this trading
[00:17:33] of jobs, right? How does that really help our economy?
[00:17:37] You just get people who are moving to the grass is greener over here
[00:17:40] and the grass is greener over there, and they don't stick around long enough
[00:17:44] for them to make any real impact.
[00:17:47] And that's really troubling to me.
[00:17:49] And so that's where I think this is completely off the rails.
[00:17:52] But I want to say one other thing, which is, you know, we sent out
[00:17:55] a lot of alerts about a lot of different concepts that, you know,
[00:17:59] are updates in human resources law generally.
[00:18:02] Right. I don't know if we've ever seen one that has generated
[00:18:06] this kind of a response like we are getting clients that are literally
[00:18:10] freaking out over this going, what do you mean?
[00:18:13] We need to change everything. And our, you know, our basic response
[00:18:16] so far has been like, hold it.
[00:18:19] Don't panic. Wait, because I'm not convinced
[00:18:23] that this actually makes it through. I think it's a good conversation,
[00:18:27] but I don't think that this is the vehicle by which it happens.
[00:18:31] Yeah. And I think also the retroactivity is kind of an interesting
[00:18:34] like so they're preventing the rule is designed to prevent
[00:18:38] enforcement of contracts that are already in place.
[00:18:41] And if you if you think of traditional contract law,
[00:18:44] the benefit of the bargain happened when you signed.
[00:18:48] So if you gave someone five hundred thousand dollars to sign on
[00:18:52] as a signing bonus, one of the benefits was that when they left,
[00:18:55] that they weren't going to leave. And now employers after a certain point
[00:18:59] won't be able to enforce that if the rule goes forward as stated.
[00:19:06] But there's some irony attached to this, right?
[00:19:08] And I don't wish to make this a political discussion,
[00:19:11] but I do think it's ironic. Right.
[00:19:13] So with abortion for just a second, right, the Supreme Court looked at this
[00:19:16] and said this should be decided by the states.
[00:19:19] But yet you now have the Federal Trade Commission that's saying
[00:19:21] we don't want this decided by the states.
[00:19:23] We want this decided by the federal government.
[00:19:26] So so what where is the line here about all of this?
[00:19:30] That makes absolutely no sense to me.
[00:19:32] Oh, yeah, they're all over the place.
[00:19:34] I mean, they keep going back and forth.
[00:19:36] So I think I actually think this case probably does go to the Supreme Court.
[00:19:39] I think the Chamber of Commerce will take this all the way up.
[00:19:41] Well, I mean, there's a whole agency issue, too.
[00:19:43] There's no there's no congressional act
[00:19:46] that actually permits them to pass a law.
[00:19:49] It's not like Title VII where you have a statute
[00:19:52] and then the EOC is enforcing the statute.
[00:19:54] This is like a rule that they're enforcing
[00:19:58] and it's to private companies.
[00:20:00] Well, but I think what's also important to understand
[00:20:02] is that the current way that the law works is we have this thing
[00:20:05] called the Federal Defend Trade Secrets Act, right?
[00:20:07] That's federal that federalized the restriction of the use of trade secrets.
[00:20:12] But there really has never been a federalization of non-competes
[00:20:16] that this was completely a patchwork of state law.
[00:20:19] This was and if you're in Ohio,
[00:20:21] it gets enforced pursuant to this Ohio law.
[00:20:23] If you're in California, it's a completely different body of law.
[00:20:26] And although you could have companies that tried to tailor
[00:20:29] their agreements to use certain states laws,
[00:20:33] those weren't always enforced depending upon the nature of the circumstances.
[00:20:36] But it was always this patchwork.
[00:20:38] So we were always careful with our clients about
[00:20:40] if you're in Georgia, it's a different, it looks different.
[00:20:42] If you're in California, it looks different.
[00:20:44] If you're in Florida, it might look different.
[00:20:46] If you're in Ohio or Illinois or Massachusetts,
[00:20:48] it always looked different.
[00:20:49] And what this is,
[00:20:50] this is an attempt to sort of systematize everything across the country.
[00:20:54] And I'm not sure that that really works in this context.
[00:20:57] So what do you want employers to do at this point then?
[00:21:01] You said hold, but like what do they do?
[00:21:04] Well, I still say hold.
[00:21:07] Hold number one.
[00:21:09] So what's happening in this case is there's been a motion to stay filed
[00:21:12] in a case by the Chamber of Commerce.
[00:21:15] And so we'll have to see what a court does with respect to that,
[00:21:18] because this is supposed to go into effect in July.
[00:21:21] And so 120 days after the effective date of the FTC rulemaking.
[00:21:25] So from my perspective, it goes, you know,
[00:21:29] you're going to have to wait a little bit to find out
[00:21:31] how this actually is going to shake out.
[00:21:33] If I were a vetting person,
[00:21:36] I would say I think it is highly likely this does not get rolled out
[00:21:40] in 120 days.
[00:21:41] Especially not the way it's been.
[00:21:43] No.
[00:21:44] And I think we're going to see a lot of challenges,
[00:21:46] and this is going to go as far as it goes,
[00:21:48] because there are too many businesses that are going to spend
[00:21:51] a ton of money propping up this litigation
[00:21:55] because they have too much at stake.
[00:21:57] Yeah.
[00:21:58] So I think what I've also been telling employers is, you know,
[00:22:02] it's a good time to start looking at your agreements either way
[00:22:06] and making sure, you know,
[00:22:08] they actually protect what you envision them to protect.
[00:22:12] So sometimes people have,
[00:22:14] sometimes employers have agreements from 10 or 15 years ago
[00:22:16] that no longer make sense today.
[00:22:19] So it's worth taking an audit of what you have so you know.
[00:22:26] And then I would not encourage employers
[00:22:30] to rescind their contracts or send notices,
[00:22:33] because even under the rule as written,
[00:22:36] you don't have to rescind the whole contract.
[00:22:38] It's just you have to make a statement
[00:22:40] that you're not going to enforce that particular provision.
[00:22:42] So the worst thing to do would be to act
[00:22:46] and kind of tip your hand, I guess, in a way.
[00:22:50] Unless if that's what the policy decision you want to make.
[00:22:54] Right now there's nothing under the law that requires it.
[00:22:56] But I'd also say one other thing too,
[00:22:58] is one of the things that we often find
[00:23:01] when a client comes to us and says we won't enforce it on copy.
[00:23:04] And typically there are misappropriation
[00:23:06] and trade secret claims that are attached to that.
[00:23:08] And the first question we ask is,
[00:23:10] well, what kind of security measures do you actually take
[00:23:13] with respect to your information?
[00:23:15] And so this is actually part of me is
[00:23:17] this is a good conversation, right?
[00:23:19] Because it's now forcing employers to look themselves in the mirror
[00:23:23] and say, what do we need to protect?
[00:23:25] And if we want to do it, how do we do it?
[00:23:28] As opposed to just slapping down a document
[00:23:30] in front of an employee and hoping for the best.
[00:23:33] And I think that's the thing.
[00:23:34] Like when we get into litigation
[00:23:36] and we're moving to enforce and not compete
[00:23:38] or we have misappropriation trade secrets claim,
[00:23:40] there is some obvious defenses to that.
[00:23:43] One is you didn't do anything to protect your trade secrets
[00:23:45] in the first instance.
[00:23:46] So this is a little bit of cold water
[00:23:49] on an employer to say, wake up
[00:23:51] and understand where are your sensitivities
[00:23:54] and let's try to fix them.
[00:23:56] But it certainly makes for our jobs much busier
[00:23:59] than they would otherwise be.
[00:24:01] Yeah, and I think there's a little bit of,
[00:24:03] with everything, what starts out as a good thing
[00:24:08] sometimes grows legs and turns into a bit of a monster.
[00:24:12] And I do think some employers have gotten into the habit
[00:24:16] where they have just started putting
[00:24:19] a non-compete policy in their handbook
[00:24:21] and they think that everybody signing off
[00:24:24] is subject to that.
[00:24:26] And it goes to employees
[00:24:28] who really shouldn't have a non-compete.
[00:24:30] Yes, there are certainly situations
[00:24:32] where you have somebody who has, like you said,
[00:24:35] they have the critical information
[00:24:37] where they could really do a lot of harm if they leave.
[00:24:40] But I have seen a lot of non-competes
[00:24:42] where you're like, seriously, like the subway worker?
[00:24:45] No, he does not need to not compete.
[00:24:47] Like he ain't stealing a bunch of your business
[00:24:49] unless he's the best sandwich maker
[00:24:51] to ever walk the face of the earth.
[00:24:53] And then it's probably your fault
[00:24:55] because you didn't do enough to keep him there.
[00:24:57] So, you know.
[00:24:59] But one thing I do want to point out,
[00:25:01] and this is something we hear a lot about
[00:25:03] in boy handbooks, right?
[00:25:04] So let's be very clear about this.
[00:25:06] Boy handbooks are not contracts.
[00:25:08] Okay, and so, and virtually, well,
[00:25:10] any well-written one has a disclaimer in it
[00:25:12] that says this is not a contract.
[00:25:14] Unfortunately, sometimes we have clients who come in
[00:25:16] and they say, we want to enforce this handbook.
[00:25:18] And a handbook is nothing more than a policy guide.
[00:25:20] It's a statement.
[00:25:21] It's not a contract.
[00:25:22] It usually can't be enforced as contracts.
[00:25:25] So if you have an arbitration provision in your handbook,
[00:25:28] it's generally not enforceable.
[00:25:29] If you have your non-competes
[00:25:30] or your non-disclosures agreement in your handbook,
[00:25:32] it's not enforceable.
[00:25:33] So I would just caution.
[00:25:35] And a non-disclosure agreement.
[00:25:36] Even a non-disclosure agreement.
[00:25:37] Now that could be a warning.
[00:25:38] Now we're lucky because non-disclosure agreements
[00:25:41] are governed by additional state and federal laws
[00:25:44] like the OUTSA or the Defend and Trade Secrets Act,
[00:25:48] things like that, which are state by state
[00:25:50] and also the federal law
[00:25:52] that work with the misappropriation trade secrets.
[00:25:54] You can enforce that regardless of whether
[00:25:56] you have a contract at all.
[00:25:58] But I think sometimes there's this understanding
[00:26:00] or HR professionals sometimes get confused.
[00:26:03] Well, it's in our handbook and therefore we can enforce it.
[00:26:06] You can enforce a policy or rule,
[00:26:08] but it's not a contract.
[00:26:11] All right.
[00:26:12] Let's change tactics.
[00:26:13] And Trishy, want to give us a little bit of background
[00:26:15] on the Muldrow decision?
[00:26:17] Absolutely.
[00:26:18] All right.
[00:26:19] So as we mentioned,
[00:26:20] this is Muldrow versus the city of St. Louis.
[00:26:24] Now in this case, we had a sergeant
[00:26:28] and I'm hoping I'm saying her name properly.
[00:26:32] I believe it's Jatanya Claiborne Muldrow.
[00:26:36] So Jatanya Claiborne Muldrow.
[00:26:38] Jatanya Claiborne Muldrow.
[00:26:39] And she alleged that her employer,
[00:26:41] the city of St. Louis,
[00:26:43] the police department specifically
[00:26:45] transferred her from one job to another
[00:26:49] because of her gender.
[00:26:51] So here is kind of the background of it.
[00:26:54] She'd been working as a plainclothes officer
[00:26:58] in the intelligence division.
[00:27:00] And then all of a sudden,
[00:27:02] she gets a new division commander
[00:27:04] and that commander asked to have her transferred
[00:27:08] out of the unit
[00:27:10] and then replaced her with a male officer.
[00:27:14] So once she was transferred to this other division,
[00:27:18] she was required then to wear uniform.
[00:27:21] She had to supervise the day-to-day activities
[00:27:24] of other patrol officers.
[00:27:26] She used to have an unmarked vehicle
[00:27:29] that she could take home.
[00:27:31] And one of the biggest things was
[00:27:34] now she had a less regular schedule,
[00:27:36] so she was having to work weekends
[00:27:39] and so she brought a suit under Title VII.
[00:27:42] At this point, what she was alleging
[00:27:45] was that that transfer was discrimination,
[00:27:48] again based on her gender,
[00:27:50] and the district court did grant
[00:27:54] the police department summary judgment
[00:27:56] because they said she had not suffered a...
[00:27:59] And here's the kicker, y'all.
[00:28:01] If I bore you with my background,
[00:28:03] listen to this part.
[00:28:04] She didn't suffer materially significant disadvantage
[00:28:08] as a result of the transfer.
[00:28:11] In other words, her title, salary,
[00:28:14] and benefits all remained the same.
[00:28:17] And so the Supreme Court basically said,
[00:28:20] wait a minute, y'all are writing
[00:28:22] a whole new threshold here,
[00:28:25] this materially significant disadvantage.
[00:28:29] Ami, please explain this to us
[00:28:31] and what happened here.
[00:28:33] Sure, sure.
[00:28:34] So in the Muljo case,
[00:28:38] the Supreme Court essentially decided
[00:28:40] what was a little bit of a circuit split
[00:28:43] and held that an employee must show some harm
[00:28:46] respecting an identifiable term
[00:28:48] or condition of employment.
[00:28:50] And the Supreme Court did that
[00:28:52] by reviewing the statute itself
[00:28:54] and said that the statute doesn't require
[00:28:56] any significance to the harm,
[00:28:58] whether it's substantial material or anything.
[00:29:01] It's just gotta be some form of harm,
[00:29:03] some form of disadvantage.
[00:29:06] And in particular, the court went through
[00:29:09] the Title VII statute
[00:29:10] and some of the prior precedent
[00:29:12] and found that discriminate against in Title VII
[00:29:16] is really differences in treatment
[00:29:18] that injure employees
[00:29:20] and that Title VII is designed to target practice
[00:29:23] that treats someone worse
[00:29:26] because of their sex or other protective trait.
[00:29:29] So essentially, the Supreme Court in its view
[00:29:34] and there was all the justices concurred
[00:29:38] in the ultimate outcome for different reasons,
[00:29:40] but in its view did not want to write
[00:29:43] an additional layer.
[00:29:45] What's important to note though
[00:29:47] that the Supreme Court did comment
[00:29:49] on the Burlington-Eller white decision
[00:29:53] and found that in the context of retaliation,
[00:29:58] it does have to be materially adverse
[00:30:00] because the premise of a retaliation case
[00:30:03] is that you're trying to dissuade someone
[00:30:06] from either participating in a charge
[00:30:08] or bringing a charge.
[00:30:09] So there's a little bit of an extra element
[00:30:11] that they have to prove.
[00:30:12] So that was an interesting divergence
[00:30:15] because I think the city in the Muljoe case
[00:30:18] was trying to make the argument
[00:30:19] that you have this other standard for the retaliation
[00:30:22] provisions of Title VII.
[00:30:24] So it wasn't a finding that I think in my view
[00:30:29] was that different than what I would have predicted
[00:30:32] the court to go.
[00:30:34] And the reason is because in the Sixth Circuit,
[00:30:37] the court has always determined that a transfer
[00:30:40] or schedule change and things of that sort
[00:30:43] are considered acts that could be discriminatory.
[00:30:47] And I think where it might've been a shocker
[00:30:49] in some of the other circuits
[00:30:50] that where they were trying to add that extra layer.
[00:30:53] So to me, I don't know that it really changed
[00:30:56] the way I've counseled employers or anything like that
[00:31:00] with respect to transfers and things of that sort.
[00:31:02] But I do think that this makes some interesting aspects
[00:31:06] that employers should start looking at more carefully
[00:31:08] because now courts will actually not even look at the,
[00:31:14] can't think of the word, the weight of the harm,
[00:31:16] I think, in a way.
[00:31:17] Well, so that's the question right from my mind.
[00:31:19] And I was not surprised by this decision
[00:31:21] simply because of the makeup of the Supreme Court.
[00:31:23] You have people who, and I don't wish to get
[00:31:25] into a constitutional discussion or a legal one,
[00:31:27] but there are these people that are what we call
[00:31:29] strict constructionists.
[00:31:31] They read the text of the legislation
[00:31:33] and they say, we're going to construe it
[00:31:35] as it says it, not as it's been interpreted.
[00:31:39] And so if you look at the language of Title VII,
[00:31:41] it says otherwise discriminated against an individual.
[00:31:45] That's what it says.
[00:31:46] It doesn't say materially.
[00:31:48] It just says otherwise discriminated.
[00:31:50] The question that I have is, and for the longest time,
[00:31:53] and I do tremendous amount of training in this area.
[00:31:56] So historically I've always said, well,
[00:31:58] if you put someone on a performance improvement plan,
[00:32:01] is that discipline such that it could now be,
[00:32:04] it could constitute some form
[00:32:07] or trigger some sort of cause of action?
[00:32:09] I think now based on Muldrow, it is very possible.
[00:32:12] We're now going to see cases where people are filing
[00:32:15] discrimination claims by virtue of the fact
[00:32:17] that they've now been put on some sort
[00:32:19] of a performance improvement plan.
[00:32:21] When in the past, I would argue that is not
[00:32:24] a significant form of discipline such that it could be
[00:32:27] litigated, but remember one other part of this though,
[00:32:31] which is they have to find a lawyer who's willing
[00:32:33] to take the case and there has to be damage, right?
[00:32:37] Because-
[00:32:38] Now I feel better.
[00:32:39] You were scaring me for a second.
[00:32:41] I think that's still true.
[00:32:42] I still think you're going to see it.
[00:32:44] And there are those lawyers who take cases
[00:32:46] based on principle, not profit.
[00:32:49] And I still think we're going to see a bunch
[00:32:51] of those cases now where in the past
[00:32:53] we would have said there's no way that that amounts
[00:32:56] to something that triggers an actionable claim.
[00:33:00] And I think now we're going to be pressing lines
[00:33:02] much, much closer to a warning.
[00:33:06] And what is a verbal warning now,
[00:33:08] something that could trigger a discrimination claim?
[00:33:11] Well, so I think the Supreme Court tried to address
[00:33:13] that because there were some arguments about the floodgates
[00:33:15] that are going to open and the Supreme Court said,
[00:33:17] well, you still have to prove an injury.
[00:33:20] You still have to prove that the injury is sort of
[00:33:22] a conservative term or condition of employment.
[00:33:25] Okay. So let's go through a performance improvement plan.
[00:33:28] Yeah, sure.
[00:33:29] Right? Okay.
[00:33:30] And then it has to be based on sex
[00:33:31] or some other protected trait.
[00:33:34] Okay, don't forget the big elephant in the room.
[00:33:39] You put me on a performance improvement plan.
[00:33:41] I say you did it because I'm a man, right?
[00:33:43] I'm now restricted in certain activities
[00:33:46] that I can and cannot do.
[00:33:48] I'm evaluated after 30, 60, 90 days, right?
[00:33:51] And I can be fired if I don't adhere
[00:33:53] to the terms of this new plan.
[00:33:55] Understood. Yeah, I'm not.
[00:33:57] Now, I think there's a real question as to whether
[00:33:59] or not that constitutes something that will fall
[00:34:02] in line with Muldrow under Title VII.
[00:34:05] Yeah, but they still have to prove that it was because
[00:34:07] of or based on a protected characteristic,
[00:34:09] which right now anybody can file a lawsuit about anything.
[00:34:12] It's really easy to get into court.
[00:34:15] So I mean, like somebody could file a retaliation claim
[00:34:19] because they got put on a performance improvement plan.
[00:34:21] Well, sure, but here's the difference.
[00:34:23] The difference is that,
[00:34:24] and I do this training all the time, right?
[00:34:25] I say one of the first questions I ask is
[00:34:27] who here thinks that they're in a protected class?
[00:34:31] And inevitably, you know, most people are like,
[00:34:33] I'm not one, you know, I'm white, I'm male, female,
[00:34:35] whatever the case may be.
[00:34:36] And then you go through it and everyone like everybody
[00:34:38] in that room is a member of a protected class,
[00:34:41] whether you're white, if you're male,
[00:34:43] if you're over 40, if you're disabled,
[00:34:46] it doesn't matter, right?
[00:34:47] Everybody's in a protected class, everybody.
[00:34:50] And so that to me is the easiest burden of all to,
[00:34:54] you know, to climb.
[00:34:56] And I'm really wondering whether or not this,
[00:34:58] despite the fact that they didn't want
[00:35:00] to open the floodgates,
[00:35:01] whether this now does open the floodgates.
[00:35:04] And we now start seeing just filing after filing
[00:35:07] after filing.
[00:35:08] It's possible for sure.
[00:35:10] Yeah.
[00:35:11] Well, and Ami, I want to go back to what you said
[00:35:13] about the Voight v. BNS up case,
[00:35:16] because my understanding of that case is that
[00:35:20] that broadened the definition of retaliation
[00:35:22] to be not, it no longer had to be
[00:35:25] a materially significant thing.
[00:35:27] It's anything that would deter a reasonable person
[00:35:30] from complaining about discrimination or harassment.
[00:35:33] And in the BNS up case, it was the fact that
[00:35:35] her supervisor put her under surveillance,
[00:35:38] took her off forecloth duty.
[00:35:40] Like her wages didn't change,
[00:35:42] her title didn't change,
[00:35:43] it was all these little things
[00:35:45] and they said that was retaliation.
[00:35:47] Yeah, but I mean, if you look at the facts of Muldrow,
[00:35:49] I mean, there are tangible privileges in Muldrow.
[00:35:54] And I think so.
[00:35:55] And I think even the ones you're describing,
[00:35:57] those are tangible differences
[00:36:00] that happen in the position.
[00:36:01] So I think to me,
[00:36:03] I think the Muldrow case had a great fact pattern.
[00:36:06] Yeah.
[00:36:07] So I don't know that that fact pattern
[00:36:09] will always be replicated.
[00:36:10] Like the court specifically went through it
[00:36:13] and said, look, it was an effect over
[00:36:16] and over and over and over again.
[00:36:18] And it was not just one schedule shift
[00:36:23] for like one shift or something like that.
[00:36:25] But I agree with Stephen that you're going to see
[00:36:28] some of these actions occur,
[00:36:30] but I think there's ways that employers might have
[00:36:33] to just kind of take a harder look at
[00:36:36] the way they do transfers
[00:36:39] or the way they might do schedule changes,
[00:36:42] maybe have a little more management training or...
[00:36:45] Document, document, document.
[00:36:48] Julie, thank you.
[00:36:50] I was just going there.
[00:36:51] I was like, so basically what you're telling people
[00:36:54] is document your non-discriminatory,
[00:36:57] legitimate business reasons for your decisions.
[00:37:00] And earlier rather than later.
[00:37:02] By the way...
[00:37:03] When you're ready to fire someone.
[00:37:04] But I do think this is really important,
[00:37:06] which is one of the things that I always do
[00:37:08] when I counsel an employer, they call me,
[00:37:10] they say, hey, we're about to terminate someone.
[00:37:12] And I say to them, well,
[00:37:14] doesn't it make sense to actually put something
[00:37:16] contemporaneously in writing
[00:37:18] that speaks to why you're making this choice?
[00:37:21] And so I actually have them draft something
[00:37:24] that says we're going to terminate so-and-so,
[00:37:28] and here's why we're doing it.
[00:37:29] Because that's...
[00:37:30] And we send it in an email. Why?
[00:37:32] Because it's date stamped.
[00:37:33] It's time stamped.
[00:37:34] It's everything stamped, right?
[00:37:35] And it sets forth something that's very concrete.
[00:37:38] And that then lives as the legitimate
[00:37:40] non-discriminatory reason.
[00:37:42] I see it all too often, however,
[00:37:44] when employers don't do that.
[00:37:45] And then it turns into, well,
[00:37:47] there was this crazy incident that happened
[00:37:49] and we don't really know.
[00:37:50] And then people start talking about
[00:37:52] all the craziness that happened.
[00:37:54] And I just want to rely on a document
[00:37:56] that's in black and white
[00:37:58] that says here's why we did what we did.
[00:38:00] And you can rest on that.
[00:38:02] That is how you get past the prima facie case.
[00:38:05] And as long as you don't have
[00:38:08] the overt statements of discrimination,
[00:38:12] that's the way you get around it.
[00:38:14] And so I think that is such a missed thing
[00:38:17] when I'm counseling clients and I say,
[00:38:19] just know your writing,
[00:38:20] why you're doing what you're doing.
[00:38:21] Let's do it now.
[00:38:23] Do the homework now
[00:38:24] so you don't end up spending the money later.
[00:38:26] Yeah. Well, so on that note,
[00:38:28] I remember way back when I was practicing law,
[00:38:31] it's been a few years, but
[00:38:33] when I first started,
[00:38:35] when Ami and I were fresh out of law school
[00:38:38] and baby lawyers,
[00:38:40] I remember that they were telling people
[00:38:43] at that time,
[00:38:45] and people at my firm told us this,
[00:38:47] do not tell me,
[00:38:48] you don't have to give people a reason
[00:38:49] why you're firing them.
[00:38:50] And I thought that was such bad advice.
[00:38:53] And now I think it has totally switched
[00:38:55] because I'm with you, Steve.
[00:38:57] And I say, tell them why you're firing them
[00:38:59] because otherwise they make up a story.
[00:39:01] You have to.
[00:39:02] And the story is never that it's their fault.
[00:39:04] Well, I mean, from my perspective,
[00:39:06] one of the worst issues I've ever heard
[00:39:08] is when someone says, sorry, termination,
[00:39:10] well, why are you terminating me?
[00:39:11] And they go, because you're at will.
[00:39:13] Like what does it even mean?
[00:39:14] Oh, don't even get me started on that.
[00:39:17] That is so silly from my perspective.
[00:39:19] If you want to tell them you're terminating
[00:39:20] because you don't like their shirt,
[00:39:22] then tell them you don't like their shirt
[00:39:24] and it should be in writing
[00:39:25] before you walk into the meeting.
[00:39:26] I don't like Steven's shirt.
[00:39:28] He's out of here.
[00:39:30] But I mean, it's very true.
[00:39:31] I mean, look, just because someone is at will
[00:39:34] doesn't mean you shouldn't have
[00:39:36] a legitimate non-discriminatory reason
[00:39:37] for terminating their employment.
[00:39:39] And that's the key to all of this.
[00:39:40] I know we joke about it, but it is really true.
[00:39:43] What you say is true.
[00:39:44] And I can't stand it when I have clients
[00:39:47] who terminate someone and they don't tell them why.
[00:39:50] But the reason why is because they wish to avoid conflict.
[00:39:53] Yes.
[00:39:54] And so from my perspective is
[00:39:55] you have to confront conflict.
[00:39:56] You have to.
[00:39:57] And so it's super important from my perspective
[00:39:59] that you actually tell people
[00:40:00] why they're being terminated.
[00:40:02] And you need to tell them the un-bardished reason.
[00:40:05] Because if you give them the varnished reason,
[00:40:08] then you're in court and they go,
[00:40:10] wait a second, that's not what you said during
[00:40:13] that's not what you said during the termination meeting.
[00:40:15] And in a lot of cases, especially the technology, right?
[00:40:18] Those are recorded.
[00:40:20] Yes, we talk about that all the time.
[00:40:22] We say, I'll just assume you're being recorded
[00:40:24] because you probably are.
[00:40:26] I truly think we need to have you guys back
[00:40:29] maybe a couple months or so
[00:40:32] and have a conversation about this whole idea of at will
[00:40:36] and some of the craziness that surrounds it
[00:40:40] and why it's so dangerous to rely on it.
[00:40:43] Please, please tell me you'll come back
[00:40:45] and talk to us about that.
[00:40:47] We'll come up with a couple of other things too.
[00:40:49] But if we can have more drinks.
[00:40:51] Now everyone has to do tequila.
[00:40:53] Fair enough.
[00:40:54] Do you love news about LinkedIn, indeed, Google
[00:41:00] and just about every other recruitment tech company out there?
[00:41:03] Hell yeah.
[00:41:04] I'm Chad.
[00:41:05] I'm Cheese.
[00:41:06] We're the Chad and Cheese podcast.
[00:41:08] All the latest recruiting news and insights are on our show.
[00:41:11] Dripping in snark and attitude.
[00:41:14] Subscribe today wherever you listen to your podcasts.
[00:41:18] We out.
[00:41:19] Okay, so let's turn to the Stereocycle decision.
[00:41:25] So again, our listeners may remember that we
[00:41:28] tackled this in season one, episode 10.
[00:41:32] But as a refresher, this is from the National Labor Relations Board.
[00:41:36] And for those of you who don't have union employees,
[00:41:39] the National Labor Relations Act still applies to you.
[00:41:42] So this makes life murky and muddy for all employers.
[00:41:46] But an administrative law judge found that the
[00:41:50] that this particular employer, Stereocycle,
[00:41:52] had violated the National Labor Relations Act
[00:41:55] by maintaining certain rules for its employees
[00:41:58] that address things like personal conduct, conflicts of interest,
[00:42:02] and confidentiality of harassment complaints.
[00:42:05] The NLRB announced a new standard for whether work rules violate the NLRA.
[00:42:11] It said that if an employee could reasonably interpret the work rule
[00:42:15] to have a coercive meaning,
[00:42:17] then the National Labor Relations Board general counsel
[00:42:20] will admit her burden to prove that the rule has a reasonable tendency
[00:42:24] to chill employees from exercising their rights under the National Labor Relations Act.
[00:42:29] If you recall, their primary right under the National Labor Relations Act
[00:42:34] is to engage in protected concerted activity,
[00:42:37] which is any time two or more employees come together
[00:42:40] for their mutual aid or benefit to discuss the terms and conditions of employment.
[00:42:45] So that is a very broad definition.
[00:42:48] What is really frightening about the Stereocycle decision
[00:42:51] is that this administrative law judge said that the employer's intent
[00:42:55] in maintaining the work rule is immaterial.
[00:42:58] So it doesn't matter why the employer has the rule,
[00:43:01] it's just if an employee can argue that it chills their right
[00:43:05] to engage in that protected concerted activity,
[00:43:09] then it is pretty much de facto illegal.
[00:43:13] And then the employer can only come back and say
[00:43:17] that they narrowly tailored it as much as possible
[00:43:22] and there's no other way or no way to narrow it even further
[00:43:26] to accomplish the same result.
[00:43:28] And so this has left employers going, huh?
[00:43:32] So Stephen, what are they supposed to do with that?
[00:43:36] Well, I'm going to make a couple of comments here.
[00:43:39] And I think these are really important for employers,
[00:43:42] which is sometimes you hear clients of ours say,
[00:43:45] well, I don't have a union so clearly this doesn't apply.
[00:43:48] Okay, that is false.
[00:43:50] Section seven rights under the National Labor Relations Act
[00:43:53] apply to all employers, whether they're union or not.
[00:43:56] And so I was lucky because I was raised as a tweener.
[00:43:59] I was a labor lawyer and an employment lawyer.
[00:44:01] A lot of people post, I'm dating myself a little bit,
[00:44:04] were raised as employment lawyers
[00:44:06] and they really didn't understand the National Labor Relations Act.
[00:44:09] What this is telling you is you really do need to understand
[00:44:12] the National Labor Relations Act,
[00:44:14] even if you're just an employment lawyer.
[00:44:16] That's first.
[00:44:17] Second, I do think it's also important to understand
[00:44:20] that unlike the Department of Labor,
[00:44:22] unlike the Equal Employment Opportunity Commission,
[00:44:25] the National Labor Relations Board is the most political
[00:44:29] of all agencies that govern employers.
[00:44:33] And by that I mean this is like the whipsaw effect
[00:44:37] because what will happen is we'll have a stereotype now,
[00:44:40] then if there is a Republican president,
[00:44:42] whoever that person may be, this will get overturned.
[00:44:45] And then we will go back again and we will go back again
[00:44:48] and this is literally legal ping pong.
[00:44:52] And that's how I like to describe it to my clients
[00:44:55] because it is.
[00:44:56] And it depends on whether or not you're trapped
[00:44:58] in the ping pong game
[00:44:59] and when you're trapped in the ping pong game
[00:45:01] because this will change again
[00:45:03] because this is all that happens.
[00:45:04] It just keeps getting overwritten.
[00:45:06] That's very unlike what we see with the EEOC,
[00:45:09] very unlike what we see with the Department of Labor.
[00:45:11] There are changes, but they are nuanced changes.
[00:45:16] These are literally flip-flopping on the,
[00:45:19] it's yesterday, it's no tomorrow,
[00:45:22] and it solely depends on who's the president.
[00:45:24] And that to me is super, super, super unfortunate, yes.
[00:45:29] Can you or me just really quick explain
[00:45:32] to our listeners out there how the board changes
[00:45:35] with the president and how they come up for reappointment
[00:45:39] so that people understand that?
[00:45:41] These are political appointees.
[00:45:42] And so what will happen is,
[00:45:44] is that they will switch the majority of the board
[00:45:49] and so that the board will become
[00:45:51] whether Democratic or Republican
[00:45:54] and depends on who's the president in office.
[00:45:57] Even with respect to EEOC, like the chair of the EEOC
[00:46:00] can change, but typically they're not wholesale
[00:46:03] changing the law from yes to no.
[00:46:06] Whereas under the National Labor Relations Act,
[00:46:08] that's exactly what they're doing.
[00:46:10] And so you end up with things like Stereocycle,
[00:46:12] which I would bet a lot
[00:46:16] that when there's a Republican president
[00:46:18] and I'm not advocating for who it is,
[00:46:20] whatever, this is not a political conversation,
[00:46:22] but Stereocycle will be done.
[00:46:24] And we will go back to the current law,
[00:46:27] Boeing specialty produce,
[00:46:29] which is the previous standard.
[00:46:31] What this is effectively doing,
[00:46:33] and I don't wish to belabor this point,
[00:46:35] but it's effectively now placing the burden on an employer
[00:46:37] to actually prove that the rule advances
[00:46:41] a legitimate and substantial business interest
[00:46:44] and that the employer cannot meet that
[00:46:47] in any other way.
[00:46:49] Think about that.
[00:46:50] Like when you're drafting a rule or a policy,
[00:46:52] you have to prove now
[00:46:54] that you couldn't come up with another way
[00:46:58] to advance that interest.
[00:46:59] That's crazy town from my perspective.
[00:47:02] Well, in Trisha and I both teach a course
[00:47:05] on internal investigation.
[00:47:07] So we teach people how to do investigations
[00:47:10] as part of their job.
[00:47:11] And the confidentiality investigations
[00:47:14] is one of these where it swings from left to right.
[00:47:18] Thank you.
[00:47:19] That's where I wanted to go.
[00:47:21] I knew you did.
[00:47:22] Depending on who is in office as the president.
[00:47:27] And so we always have a hard time advising people
[00:47:30] on what they're allowed to tell employees
[00:47:33] about whether they have to keep things confidential
[00:47:36] during an investigation
[00:47:37] or whether they cannot even say that.
[00:47:39] Or if they can't even say,
[00:47:41] we really hope you do keep it confidential,
[00:47:43] which right now I don't even think
[00:47:46] they could say that much.
[00:47:47] My first thing is reach out to your lawyer.
[00:47:51] Ask your lawyer what they want you to do because man.
[00:47:53] Well not only that Trisha,
[00:47:55] I would say to you not only reach out to your lawyer,
[00:47:57] but make sure you reach out to a labor or employment lawyer.
[00:48:00] So a lot of times we see companies who reach out
[00:48:02] to corporate lawyers who don't even understand
[00:48:05] or who try to write handbooks
[00:48:07] that don't have the grounding in it.
[00:48:09] And so that's why I was lucky
[00:48:11] because I was raised as a both.
[00:48:13] Meaning like a labor lawyer and an employment lawyer.
[00:48:15] And I'm constantly looking at things like this
[00:48:19] in the lens of is it okay from an NLRA perspective?
[00:48:22] Is it okay from a Department of Labor perspective?
[00:48:25] Is it okay from a Title VII perspective?
[00:48:27] Because they're very different concepts.
[00:48:29] And you kind of need to have that sort of
[00:48:31] multi-factor analysis going on at all times.
[00:48:35] Well I think the confidentiality thing is well but interesting
[00:48:38] because historically and I think
[00:48:41] even under like some best practices,
[00:48:43] the confidentiality is designed to prevent retaliation
[00:48:47] against someone that's making a complaint
[00:48:50] or people that helped and participated in the complaint.
[00:48:52] So now you have this conflict
[00:48:54] where you're kind of creating a situation
[00:48:58] where everyone knows everything
[00:49:00] and that could lead to other problems
[00:49:03] in a different area of the law, right?
[00:49:06] Well it was really interesting
[00:49:08] because the EEOC and the NLRB used to be at odds with that
[00:49:12] because before when the NLRB said...
[00:49:15] They're not even on the same planet.
[00:49:17] Right, right. Not even on the same planet.
[00:49:19] But before the NLRB said,
[00:49:21] yeah in certain circumstances you can absolutely tell people
[00:49:24] that they should probably keep it.
[00:49:26] And the EEOC was like, nope.
[00:49:29] And then they finally sort of came together
[00:49:32] and then the NLRB went like,
[00:49:34] hold my beer.
[00:49:36] What the fuck?
[00:49:38] I got this.
[00:49:40] And we're going to just really confuse the hell out of everybody again.
[00:49:44] So these agencies don't even work together.
[00:49:47] It's really hard for employers.
[00:49:49] But what I'd say is I think like with respect to Stericycle,
[00:49:52] I think you just kind of cross your fingers, right?
[00:49:55] That you're not going to be the employer
[00:49:57] that gets tagged by a labor board charge
[00:49:59] because I think you could literally go into any workplace
[00:50:02] that you want, right?
[00:50:04] Find any work rule that you really want
[00:50:06] and file a board charge over it
[00:50:08] and if you hit the wrong administrative law judge,
[00:50:11] this is what you get now.
[00:50:13] And that's unfortunate because that's not...
[00:50:15] That's really difficult for us as lawyers to advise clients.
[00:50:19] Cross your fingers, you're going to be okay.
[00:50:23] That's crazy from my perspective.
[00:50:25] The law should be the law.
[00:50:27] And it should create a predictable workplace, right?
[00:50:30] So you kind of have this chain name.
[00:50:34] What I thought was interesting about Stericycle
[00:50:36] is it wasn't even the board.
[00:50:38] It was this random administrative law judge.
[00:50:43] And I was like, this is it.
[00:50:45] But that's how it all starts.
[00:50:48] That's how it all starts.
[00:50:50] And so we keep seeing this whoopsawing
[00:50:52] and this is just another example of it.
[00:50:54] We see it with respect to Weingarten rights.
[00:50:56] We've seen it over and over again
[00:50:58] in all different aspects of traditional labor law.
[00:51:01] And it gets imputed.
[00:51:02] Now the only thing I will say is that
[00:51:04] because the number of labor unions in the United States,
[00:51:08] especially in the private sector has decreased,
[00:51:10] we've seen an increase in activity by the labor board
[00:51:12] in terms of getting access to and enforcing rules
[00:51:15] against non-union employers
[00:51:17] because it makes the board relevant.
[00:51:20] And they want to be relevant.
[00:51:23] Well, I was going to ask their opinion
[00:51:25] specifically with regards to harassment complaints
[00:51:30] and investigations.
[00:51:32] In our classes, we kind of do the same thing
[00:51:35] that you guys do, which is,
[00:51:37] I hope you're not the next person.
[00:51:39] Do the best that you can do.
[00:51:41] And most of the time, what we're saying,
[00:51:43] in addition to reach out to your attorneys
[00:51:46] and validate what you're thinking about doing,
[00:51:49] we say to them, listen,
[00:51:52] the best idea is to have a legitimate business reason
[00:51:56] why you're requiring confidentiality in this case.
[00:52:00] Do you think that that is going to possibly protect
[00:52:05] our favorite employers and our employees?
[00:52:10] In that case, what do you think?
[00:52:13] Again, this is something that's going to shift
[00:52:16] depending upon who's in office
[00:52:18] and how this is going to go.
[00:52:20] I generally fear to the side of saying
[00:52:23] when you're talking to someone,
[00:52:24] we ask that you keep this information confidential
[00:52:26] because what can happen is obviously you're looking
[00:52:29] to get to the bottom of the investigation,
[00:52:31] what actually happened?
[00:52:33] And when you have people that aren't keeping
[00:52:35] their conversations with HR confidential,
[00:52:38] then it taints the investigation process itself.
[00:52:41] And so I'd rather deal with the consequences of that
[00:52:44] and say, I'm going to ask you to keep this confidential
[00:52:47] and if I get whacked for that, I get whacked for it
[00:52:49] because what I'm really looking at is trying
[00:52:51] to create a culture where people feel
[00:52:53] that they can come to human resources
[00:52:55] and make a valid complaint.
[00:52:58] And I think that's, when I give talks about this
[00:53:00] and I talk about this all the time,
[00:53:02] people feel that human resources
[00:53:05] is like going to the principal's office.
[00:53:07] Truly.
[00:53:08] So true.
[00:53:10] But here's what I say,
[00:53:12] it's called human resources for a reason.
[00:53:15] They're a resource
[00:53:17] and you need to treat them like a resource.
[00:53:20] That's what they're there to do.
[00:53:22] And so if you treat it like going
[00:53:24] to the principal's office,
[00:53:25] you've completely missed the point.
[00:53:27] But with respect to confidentiality,
[00:53:29] that's another feature to all this, right?
[00:53:31] Which is if someone won't keep it confidential,
[00:53:33] it's sort of, you're creating this tension
[00:53:36] between people going to HR
[00:53:38] and not going to HR
[00:53:39] and I think that's unfortunate.
[00:53:40] Yeah.
[00:53:41] So Stephen, if somehow or another
[00:53:44] we as HR reached out,
[00:53:46] if we said it to each other
[00:53:48] or if we said it to our attorney,
[00:53:50] and again, I know you can't say specifically,
[00:53:52] but just to kind of help our employers out there
[00:53:54] because that's what we're hoping to do,
[00:53:57] if they said something like,
[00:53:59] we would like to request
[00:54:00] that this stays confidential
[00:54:02] in this particular case because of this,
[00:54:04] would they be kind of like you said before
[00:54:07] having that statement out there
[00:54:08] for when you're firing someone?
[00:54:10] Is it a CYA, for example?
[00:54:13] Yeah. I mean, again,
[00:54:14] if you have a legitimate business reason,
[00:54:16] I think it's much more likely to uphold
[00:54:19] or I think you're much more likely to get through
[00:54:22] if you have a legitimate business reason
[00:54:24] as opposed to one that doesn't.
[00:54:25] But the other thing I do want to point out is
[00:54:27] when you have employees who come in and say to you,
[00:54:29] I want to tell you something,
[00:54:30] but you have to promise me
[00:54:31] you're going to keep something confidential.
[00:54:33] And that I hear a lot.
[00:54:35] That's a hard no.
[00:54:37] Because once you know,
[00:54:39] you got to advance it up the pole.
[00:54:41] Yeah. We tell employers that all the time.
[00:54:44] All the time.
[00:54:45] So let me ask this question
[00:54:46] because now I'm confused.
[00:54:51] So is there a cycle saying that you can't,
[00:54:54] I mean, to me,
[00:54:56] asking someone to keep something in confidence
[00:54:59] is different than a rule saying you must keep it in confidence.
[00:55:03] Does the stereotype make a differentiation between?
[00:55:06] No, because what it's saying is
[00:55:07] you have to have a legitimate business reason.
[00:55:09] So it has to be narrowly tailored.
[00:55:11] But you now have the burden of proof.
[00:55:14] Whereas before, you didn't have the burden
[00:55:16] if you could establish a rule.
[00:55:17] And the employee would have to prove that, in fact,
[00:55:19] it was violated, violative of Section 7 rights.
[00:55:22] Now, the burden gets flipped.
[00:55:24] The burden is now on the employer to prove that, in fact,
[00:55:27] this is narrowly tailored already.
[00:55:30] Well, but if it's...
[00:55:31] I mean, basically,
[00:55:32] they went back to the banner standard.
[00:55:34] If you remember the banner standard,
[00:55:36] they went back to that.
[00:55:37] Although they didn't say it.
[00:55:39] They didn't overrule what they had said in the...
[00:55:43] Apogee.
[00:55:44] ...Julee Helpy.
[00:55:45] Apogee.
[00:55:46] In the Apogee case.
[00:55:47] But basically, what it sounds like,
[00:55:49] at least within regards to confidentially
[00:55:52] of harassment complaints,
[00:55:54] they went back to banner and basically just said,
[00:55:58] meh, we don't give a care about Apogee.
[00:56:00] And that's why Julie and I are kind of focusing on that specifically.
[00:56:04] So the argument would be,
[00:56:06] you, even if you request it,
[00:56:09] but you're my employer and you control what I'm paid,
[00:56:13] and you asked me to keep this confidential,
[00:56:17] which to me was, that's not an ask.
[00:56:20] You're forcing me to keep this confidential,
[00:56:22] which means I can't talk about an investigation
[00:56:25] of let's say my manager committing sexual harassment,
[00:56:28] which is a term and condition of my employment.
[00:56:30] So you have now violated my rights
[00:56:33] under the National Labor Relations Act.
[00:56:35] And now if I discipline you for that,
[00:56:37] then it's a Section 7 violation.
[00:56:38] Yeah.
[00:56:39] Effectively.
[00:56:40] So I think that that is where they were going with all of that.
[00:56:43] That'd be interesting.
[00:56:44] Again, I think...
[00:56:45] There would be a...
[00:56:46] I think this is going to flip again.
[00:56:49] I agree.
[00:56:50] I agree.
[00:56:51] I agree.
[00:56:52] Well, it's like you said, it is whiplash.
[00:56:54] It depends on who is in office, right?
[00:56:58] One minute we're way over to the right,
[00:57:00] one minute we're way over to the left.
[00:57:02] I wish they could just end up in the middle.
[00:57:05] Well, no, it doesn't even...
[00:57:06] From my perspective,
[00:57:07] I don't care if they end up on the right or the left.
[00:57:09] How about just pick away?
[00:57:11] Right.
[00:57:12] Well, yeah, okay.
[00:57:13] I'm good with that too.
[00:57:14] Hey, I'm good with that too.
[00:57:16] Just quit giving me whiplash.
[00:57:18] Right, so this doesn't end up to be every presidential election
[00:57:21] and we're going a different road.
[00:57:22] But this is what happens.
[00:57:23] And so you can see this coming.
[00:57:25] Exactly.
[00:57:26] We see this coming a mile away.
[00:57:28] Oh yeah.
[00:57:29] All right.
[00:57:30] Okay, so our last topic for the day,
[00:57:33] and we're going to let Ami talk about it,
[00:57:36] but the Department of Labor...
[00:57:38] And we thought we knew this was coming.
[00:57:40] Obama, I think, tried to get it through originally,
[00:57:43] but it got stalled out.
[00:57:45] But the Department of Labor recently increased the salary threshold
[00:57:50] for the white collar exemptions under the Fair Labor Standards Act.
[00:57:55] So for those of you who have listened to some of our other episodes,
[00:58:00] that's like the executive exemption,
[00:58:03] the administrative, the computer professional,
[00:58:06] the learned professional,
[00:58:08] the highly compensated employee,
[00:58:11] and the creative?
[00:58:13] Outside sales.
[00:58:14] Outside sales, thank you.
[00:58:15] I got you.
[00:58:16] So those are these exemptions that we are talking about.
[00:58:20] And they have raised the salary threshold,
[00:58:23] which used to be $684 a week.
[00:58:27] Yep.
[00:58:28] That was the first thing you had to meet.
[00:58:30] And they have now raised it.
[00:58:32] And so I'm going to turn it over to Ami
[00:58:34] to talk about what sort of impact that's going to have.
[00:58:37] Well, so the DOL primarily addressed exempt employees
[00:58:42] under the executive, administrative, or professional exemptions
[00:58:47] and the highly compensated employees.
[00:58:49] So as of right now, its status quo,
[00:58:52] so executive, administrative, professional exemptions
[00:58:55] still have a salary threshold of $684 per week
[00:59:00] or $34,568 per year.
[00:59:05] You still have to meet your primary work duties tests
[00:59:08] regarding each of those categories.
[00:59:11] In July of this year, it will increase to $844 per week
[00:59:16] or $43,888 per year.
[00:59:20] And then in January of 2025,
[00:59:23] it will increase to $1,128 per week
[00:59:26] or $58,656 per year.
[00:59:30] And then with respect to highly compensated employees currently,
[00:59:34] it is $107,432 per year.
[00:59:39] July will be $132,964 per year.
[00:59:43] In January of 2025, it will be $151,164 per year.
[00:59:51] And then in July of 2027,
[00:59:55] they'll start revisiting, adjusting these staff salary thresholds
[01:00:00] every three years.
[01:00:02] The only alteration is on the salary thresholds
[01:00:04] for these particular positions.
[01:00:07] I think the primary impact will be,
[01:00:10] I would suspect, retail, restaurants,
[01:00:13] some industrial manufacturers,
[01:00:15] I don't know if there's any other groups that might...
[01:00:19] Because that threshold, it was toeing the line before,
[01:00:23] so now it fully will be a little bit of a challenge
[01:00:27] for employers to maintain the exemption, I think,
[01:00:30] in some of those industries.
[01:00:32] I think the only shock here is really just the rapid pace
[01:00:36] by which the raises come.
[01:00:38] And I think that's largely a measure
[01:00:40] that they haven't been adjusted in a while.
[01:00:42] And so what you're seeing is sort of
[01:00:44] what we'll call the catch-up factor.
[01:00:46] Because you're basically now seeing from now
[01:00:48] until January 1 of 2025,
[01:00:50] at least for the salary basis test,
[01:00:53] you're looking at almost a doubling in how many months?
[01:00:58] Not very many, like less than a year.
[01:01:01] Less than a year.
[01:01:02] Less than a year.
[01:01:03] With respect to highly compensated,
[01:01:05] basically a 50% increase in less than a year.
[01:01:09] So that's a rapid rise,
[01:01:10] but I do think that that's a catch-up factor.
[01:01:12] And I think once we get through that,
[01:01:14] then everything sort of escalates
[01:01:16] into something that makes more sense.
[01:01:18] And I think this is really just the vestige
[01:01:20] of the fact that these haven't changed quite a while.
[01:01:22] Yep.
[01:01:23] I think one thing that really confuses employers,
[01:01:25] I know I get this question a lot,
[01:01:27] I have employers who use the terms salaried and non-salaried
[01:01:33] instead of exempt and non-exempt.
[01:01:35] And I always have to have these conversations
[01:01:37] about how that's not the test.
[01:01:40] The test is whether they're exempt or non-exempt.
[01:01:44] And so they get really confused by that.
[01:01:47] And I think one of the things that is confusing
[01:01:50] to people about this is that you could actually
[01:01:52] have people in the same position,
[01:01:54] some of whom are non-exempt
[01:01:57] because they don't meet that new salary threshold,
[01:02:01] and some who are exempt because they do now meet
[01:02:04] that salary threshold.
[01:02:06] But that's going to be super tough.
[01:02:07] I mean, what I tell you is you have to look
[01:02:09] at the duties test.
[01:02:10] Right.
[01:02:11] Because if you don't pass the duties test,
[01:02:13] that's like calling.
[01:02:14] It's sort of like if it walks like a duck
[01:02:15] and quacks like a duck, it's a duck.
[01:02:17] I don't care whatever you've classified it as.
[01:02:19] And basically the Department of Labor agrees, right?
[01:02:21] They'll come in, they'll look and they'll say,
[01:02:23] what does the person actually do on a day-to-day basis?
[01:02:25] Do they manage two or more people?
[01:02:27] What are the duties that they're actually performing?
[01:02:29] Are they actually doing actual physical tasks
[01:02:31] or are they managing others, right?
[01:02:33] So these are considerations.
[01:02:35] And so we see this a lot where employers like,
[01:02:38] well, we just call the person a manager,
[01:02:39] but they don't actually manage anything.
[01:02:41] Yeah.
[01:02:42] Right.
[01:02:43] Or they don't have a degree.
[01:02:44] And so they won't pass the executive administrator
[01:02:48] or professional tests.
[01:02:49] So I think it's super important for companies
[01:02:51] to actually go back to a wage and hour audit.
[01:02:53] We have an entire department here at our firm
[01:02:55] that does wage and hour audits for companies
[01:02:57] because you need to know.
[01:02:58] And if you get trapped, right?
[01:03:00] And we see that the number of cases, right?
[01:03:03] That we see in terms of wage and hour class actions
[01:03:06] are absolutely astronomical.
[01:03:09] And they're so easy for a plaintiff to prove.
[01:03:12] And they'll bring them up not only on behalf of themselves,
[01:03:14] but they'll bring it on behalf of everybody
[01:03:16] who's similarly situated to them.
[01:03:17] Right.
[01:03:18] And they go back two years at least.
[01:03:19] Or three.
[01:03:20] Maybe three if it's Willful.
[01:03:21] But Willful is not what we think is Willful
[01:03:24] in the ordinary context.
[01:03:26] And what's really helpful is you didn't actually look at it.
[01:03:29] Right.
[01:03:30] It's like you just sort of fell down on this.
[01:03:32] Right.
[01:03:33] You just assumed that it was salaried or non-salaried
[01:03:36] and you didn't look at the duties test.
[01:03:38] But I had a case where there was a situation.
[01:03:43] They had a position called a warehouse manager.
[01:03:46] And in 99% of the cases,
[01:03:48] the warehouse manager actually did satisfy the duties test
[01:03:52] and was an exempt employee.
[01:03:55] And in this particular warehouse,
[01:03:57] it was a tiny little warehouse somewhere in California.
[01:04:00] The guy had one part-time employee that he sort of supervised.
[01:04:06] But 99% of the time he was stuck in the shelves,
[01:04:09] taking the inventory, and he wasn't managing anything.
[01:04:12] You know?
[01:04:13] But they thought, well, his title is warehouse manager.
[01:04:16] So he's exempt.
[01:04:17] And it was like, no, no, he's not.
[01:04:20] One thing I do want to point out,
[01:04:22] and this is a little bit off topic, but it's rounding rules.
[01:04:25] So we do a lot of work with employers about rounding.
[01:04:28] So a lot of companies have what are called rounding rules,
[01:04:31] where they round up or round down
[01:04:33] depending on when a person clocks in or clocks out.
[01:04:35] If you have a rounding rule,
[01:04:37] I would tell you to discontinue that practice immediately
[01:04:40] because with technology you can get down to the minutes.
[01:04:43] And when you have rounding rules,
[01:04:46] we're now seeing a new wave of class actions
[01:04:49] relative to rounding rules
[01:04:51] that will prove that the rounds actually match
[01:04:54] in favor of the employee versus the employer.
[01:04:58] And if you can't show that,
[01:05:00] you will actually lose on the rounding rule cases.
[01:05:03] And I would ask what employer is actually spending the time
[01:05:07] looking at their rounding to determine
[01:05:10] if it's washing out equal 50-50
[01:05:12] on behalf of employees versus employers.
[01:05:15] It just doesn't work that way in reality.
[01:05:17] So if you do have rounding,
[01:05:19] I strongly, strongly advise you to discontinue the practice.
[01:05:22] One more thing to worry about.
[01:05:23] There you go.
[01:05:24] Thanks for bringing us out.
[01:05:25] One more topic for when we bring them back.
[01:05:27] You know, I'm like,
[01:05:28] bring us out at the end of the episode, man.
[01:05:31] We could do wage and hour stuff for episodes.
[01:05:35] Truly.
[01:05:37] All right.
[01:05:38] There we go.
[01:05:39] There's another topic for our next time we have you guys on.
[01:05:43] Ouch.
[01:05:44] Okay.
[01:05:45] That was depressing.
[01:05:46] We have covered a ton this episode.
[01:05:49] So, and we cannot thank our guests
[01:05:52] for clarifying a lot of these important topics.
[01:05:56] As usual, we will put our contact,
[01:05:59] their contact information in the show notes.
[01:06:01] We will also include links to all their social media
[01:06:04] so you can follow them and get great tips.
[01:06:07] And we will also include all of our links
[01:06:10] to any sources that we cited during the episode.
[01:06:14] Before we end this episode,
[01:06:16] we of course have to get back to our WINE.
[01:06:19] Trish, how's the menage-a-trois going?
[01:06:22] Well, menage-a-trois is always lovely, Julie.
[01:06:25] I mean, I mean...
[01:06:27] Oh no!
[01:06:28] I just said that in front of
[01:06:30] labor and employment attorneys, didn't I?
[01:06:33] Probably the safest place to jump off.
[01:06:36] Right?
[01:06:37] Right?
[01:06:38] I always tell people we're the worst at it.
[01:06:41] Right?
[01:06:42] I'm like, oh lawyers, we're the worst.
[01:06:45] No, actually it's quite lovely for one of your,
[01:06:50] again that low to mid varietal.
[01:06:54] It has what I love.
[01:06:56] I love key lime.
[01:06:57] I'm a huge living down in Florida,
[01:06:59] love key lime, key lime pie.
[01:07:01] It says that there's some notes of key lime
[01:07:04] and green apple, and I totally taste it.
[01:07:07] I couldn't figure out what was getting me
[01:07:09] at the front of my tongue earlier.
[01:07:11] And then I took a second to read it
[01:07:13] and I was like, oh, that's what it is.
[01:07:16] So yeah, I again say to you,
[01:07:18] on a nice hot summer day,
[01:07:21] it would be lovely on a boat.
[01:07:24] Yes, can't wait for that season
[01:07:26] to really be here in full.
[01:07:27] I know, right?
[01:07:28] Can you tell where my head is?
[01:07:29] Yeah, yeah.
[01:07:31] Well, so I am still enjoying
[01:07:34] the wine that I chose.
[01:07:36] It's...
[01:07:37] I won't say it's my favorite Italian,
[01:07:40] but agreed.
[01:07:42] But it is a pleasant wine
[01:07:45] and I'm not going to not drink it.
[01:07:49] Ami?
[01:07:50] Thank you.
[01:07:51] An accurate statement.
[01:07:53] It's better than the Franzia we think
[01:07:55] we could block, right?
[01:07:59] Yes!
[01:08:00] Yes!
[01:08:02] And my tequila is pretty screened.
[01:08:04] Never knock the box, man.
[01:08:05] Never knock the box.
[01:08:07] Tequila straight down the middle.
[01:08:08] All right.
[01:08:09] I love that.
[01:08:10] Okay, good.
[01:08:11] Okay, so any last words from Ami?
[01:08:14] Any last words?
[01:08:15] No, this was a lot of fun.
[01:08:17] It was...
[01:08:18] Even though it's a very dry subject,
[01:08:20] it was a lot of fun chatting with you guys.
[01:08:22] I don't think you guys made it dry.
[01:08:24] I think you made it interesting.
[01:08:25] What about you, Stephen?
[01:08:26] No, I think it was fun.
[01:08:27] I thought it was actually quite wet.
[01:08:28] Oh!
[01:08:30] No.
[01:08:31] Oh!
[01:08:33] But what I will say is this.
[01:08:35] Look, you know, if you are an employer,
[01:08:37] if you're in human resources,
[01:08:38] like you have to stay on top of these things.
[01:08:40] And I know we like to joke and kid,
[01:08:41] but like you should be partnering
[01:08:43] with trained human resource professionals.
[01:08:45] You should be partnering with trained
[01:08:47] labor and employment lawyers
[01:08:48] to rely on people who don't know what they're doing.
[01:08:51] Art grounded in traditional labor law is a mistake.
[01:08:54] And so, you know, from our perspective,
[01:08:56] this is like, this is helpful for our business,
[01:08:58] but this is something where employers
[01:09:00] should be paying attention.
[01:09:01] And by virtue of the stuff that we are seeing,
[01:09:04] people are starting to pay attention.
[01:09:06] And from my perspective, paying attention is a good thing.
[01:09:09] And so that makes me happy.
[01:09:11] And you guys have news alerts, right?
[01:09:13] So they can go to your website,
[01:09:15] which again, we will have the link in our show notes
[01:09:17] and they can sign up for those alerts
[01:09:19] and you can get your...
[01:09:20] We can sign up for those?
[01:09:21] Yeah, you can get the information
[01:09:23] right from the source.
[01:09:24] Oh my gosh!
[01:09:25] Yes!
[01:09:26] I was so excited when Ami sent those to us.
[01:09:29] I was reading them.
[01:09:31] I was like, this is fascinating.
[01:09:33] So all right, I'm totally signing up.
[01:09:34] Thank you very much.
[01:09:35] And all of your listeners should do so as well.
[01:09:38] So Trish, last words.
[01:09:41] My only thing is, well, because again, you guys know me.
[01:09:46] I am more of the give you what you need for the wine.
[01:09:51] Steven, I'm going to give you a suggestion
[01:09:54] since you're a tequila guy.
[01:09:56] Cava de Oro, it's an extra agnejo tequila.
[01:10:01] I may be cheap on my wine, but on my tequila, let me tell you.
[01:10:06] So I'm just saying try that one out.
[01:10:11] Let me know what you think.
[01:10:13] And to everyone out there,
[01:10:15] thank you so much for listening to us.
[01:10:17] We know that sometimes the law can be kind of dry,
[01:10:21] but I hope we made it fun and insightful for you.
[01:10:25] I hope you got a lot of information.
[01:10:27] Make sure that you follow us on social and of course,
[01:10:32] subscribe wherever you get your podcasts.
[01:10:36] Cheers!
[01:10:37] Cheers!
[01:10:38] Cheers!