54 - Mitigate Risk and Drink Beer (AKA Employment Law)

Tyson and Alexa learn how to make smart decisions and still drink beer with Jon Hyman, Employment Lawyer and Partner at Wickens Herzer Panza, who goes through Employment law 101—everything from why people sue their employers to how to reduce risk even in the riskiest situations, also periods, oh and why you don’t actually have freedom of speech. Yikes! We dive deep into the greyest areas of legal perspective, so grab a pen and paper for this one folks!



Release Date: July 13, 2022

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[00:00:00] Presenter: Warning. This podcast is about the realities of working in People Operations. This is not a stuck-up, PC, compliance-based, or employment law podcast about stuffy outdated HR practices. Shit will get real here, and we assume no responsibility.

[00:00:16] Alexa Baggio: Just another day in the office.

[00:00:18] Tyson Mackenzie: There's nothing better than a bunch of people working in HR, getting around the table, and sharing these stories. We have this out-of-body experience in HR where you're like, "How did I get here?"

[00:00:26] Alexa: It's not that bad.

[00:00:26] Tyson: It's not that bad, it's not.

[00:00:29] Alexa: Come hang out with Tyson and I at this podcast. We'll make you laugh.

[00:00:31] Presenter: This is the People Problems podcast with Alexa Baggio and Tyson Mackenzie.

[00:00:39] Alexa: What's up, Tyson?

[00:00:42] Tyson: Today was fun. I went on a nature excursion with the baby. I'm going to all these different-- we have these free programs, playgroups, stuff like that. This was like a nature walk.

[00:00:55] Alexa: Canada? You don't say.

[00:00:56] Tyson: [laughs] Yes, I know. It's like, "Okay, you know what? We pay a lot of taxes. I'm taking advantage of that." Various programs, this one was actually in my neck of the woods, which is crazy because nothing is in my neck of the woods, and it was just like a cute little nature walk. Yes, it could have been my backyard, but yes, I did drive to a different forest to walk through.

It was super cute. They had this storybook. Do you remember Going on a Bear Hunt, the story? You can't go over it, can't go around it. You got to go through it. Yes, yes, yes. They had that set out, which was super cute, and it's always like a really good way to meet people, and I don't know. I just felt like today I was in my mojo with mat leave. I feel like I was doing the things that one should be doing on mat leave and it felt great.

[00:01:39] Alexa: All right, cool. Fucking hoorah for that.

[00:01:41] Tyson: Yes. How about you? How's France?

[00:01:43] Alexa: Awesome. I still can't speak French, so that's a bummer, but nothing about where I am gets less magical. I wake up every day to this just ridiculous French Alps setting, and I just am like, "What is going on in the world?" People are paragliding down to my doorstep and hiking and biking. If you like the outdoors, man, this is fucking Disneyland. It's cool. It's been great. It's been really cool to wake up and see big nature every morning, and I'm still adjusting a bit to the schedule. It's almost midnight here now for me, but I'm getting there. I'm finally sleeping at a normal schedule and the team's all adjusted to the new schedule and all that jazz. Doing well. Can't complain.

[00:02:28] Tyson: Love it.

[00:02:29] Alexa: All right, well, let me do some homework or some housekeeping, and then we'll get to our article. Today's episode is brought to you by Ink'd Stores. Are you looking to build your company's swag store? No minimums, no cost to build, no monthly fees, all merch, and none of the fine print. Visit inkdstores.com, I-N-K-D stores.com, and mention the code PeopleProblems for your discount.

Then I also am going to do a shameless plug today, Tyson, because we don't do this enough, and we haven't done this recently, which is that if you are not already following us on all things social, please follow us at People Problems Pod, whether that's LinkedIn, Instagram, whatever. You can also follow me @alexabagadonuts, or you can follow Tyson @hr.shook. You got to follow us if you like us, it's helpful. We love you. Thank you, and without further ado, let's talk about periods.

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Pops in the news today is an article-- I have to give a major-- I hope she listens to this at some point, I have to give a major shout-out to Susanna Vogel because she is like a one-woman HR content machine. She basically writes- actually she literally writes the entire HR Brew newsletter, and they do have some great stuff sometimes, and she just pumps this stuff out like it's fucking business. The article today is from HR Brew and it's titled "PMDD could be impacting some of your employees’ performance: Here’s how to help". The general gist of the article is basically if you're a female--

[00:03:59] Tyson: Wait, can you say what PMDD is?

[00:04:00] Alexa: Yes, I'm getting there. I'm getting there.

[00:04:02] Tyson: Okay. All right.

[00:04:02] Alexa: I was going to say if you're female, you already know what this is probably, but PMDD stands for premenstrual dysphoric disorder, which is basically like a really severe version of what people I think commonly associate with cramps and PMS.

[00:04:19] Tyson: PMS, yes.

[00:04:19] Alexa: Yes. It actually is a disorder associated with PMS. It affects about 3% to 8% of people who get PMS. I would assume that's most women at some point. Let's call it 3% to 8% of most women, which is like 2% to 4% of the population. Not everybody, but it is fairly severe. It can cause depression, anxiety, various kinds of pain, headaches, severe fatigue, difficulty focusing, and I think probably important to mention, everything about being a female and getting your special time or Shark Week or all the amazing names that we have for this Shark Week might be my favorite. I have to steal that.

[00:04:54] Tyson: Oh, it's brutal.

[00:04:56] Alexa: I don't think a severe hormonal-- Shark Week is so good. That's such a good one. We're talking about a severe hormonal change. If that affects you poorly, like, whoa, that can really fuck with you. Anyway, the whole point of the article is to talk about, first and foremost, that you in some cases are entitled to leave under the FMLA Act here in the United States or a reasonable accommodation under the Americas with Disabilities Act. I'm sure Canada has your version. We've talked about reasonable accommodations before on this podcast with our buddy Paul Artali.

Basically, they're talking about how HR can think about accommodating these employees. They're talking a little bit about the pros and cons of like, do you disclose, do you not, who wants to talk about their period with their manager, let alone HR, and really what is possible to help people and maybe how this affects people and how this can be more of a commonplace topic that we approach?

I think the general idea is just you got to get rid of the stigma, so people can disclose it and then reasonable accommodations can be made. The article is making the case for normalizing this discussion, but it is an interesting topic. I don't know. What do you think, Tyson?

[00:06:08] Tyson: I have an unpopular opinion here. I think our friend Vogel maybe was reaching for content this time around. I don't know. I don't see how this is any different than any other sickness, accommodation, or anything when it comes to that realm of things. You got to feel comfortable talking about it. It happens. Maybe one unique thing could be that it's going to happen at the same time every month, things like that, but that could be like anything really. This wasn't that groundbreaking for me. It was a little clickbaity.

[00:06:48] Alexa: It's definitely a little clickbaity. That's what they're good at the Brew. One thing I will say that I did think was interesting is that they talk about the concept of menstrual leave not being a new concept, but apparently, it's been around since like 1920.

[00:07:02] Tyson: What is menstrual leave? Is that sick leave?

[00:07:05] Alexa: It's fucking leave. It's just leave.

[00:07:06] Tyson: It's sick leave. It's the same thing if you need anything else. What is disappointing to me and this is what I thought this article was going to be the second I started thinking about periods, there's an author, I think her name's pronounced Alisa or Alisa Vitti. She wrote In the Flo, I'm obsessed with that concept, Alisa-

[00:07:23] Alexa: What is that?

[00:07:24] Tyson: -you need to come on the podcast. Basically, what she says is obviously we talk a lot about like, "Here we go on a whole--" This is an HR podcast, remember, people. Anyways, there's the cycle, right? The menstrual cycle. You don't just have a period. It's all these four things that happen. These four cycles, all those. I couldn't even tell you. Luteal or something like that.

[00:07:41] Alexa: Follic-- whatever.

[00:07:43] Tyson: Yes, ovulation, all those good things. Apparently, you are good at different things during those different parts of your cycle. When you are ovulating, you are like, "Go, go, go, go, go." You can get shit done, you're feeling super competent, and you're really good at presentations. That's the time to book your pitch versus when you are on your period, that's more of introspective, and you should be doing heads-down work, focusing, and that sort of thing. I think that that's super interesting. I would love to talk about that from a work perspective and how we really [unintelligible 00:08:14]. [crosstalk] It has to be.

[00:08:18] Alexa: That's not that perfect.

[00:08:19] Tyson: Exactly. I heard you say, "Let's talk about periods." I was hoping that we were going down that route versus this other article that didn't really tell me anything new.

[00:08:28] Alexa: No, it didn't tell us much. Although, again, to your point, I think it's just like, do you have the kind of work environment policy where you can be like, "Hey, I feel like shit. I need to take the day off," or, "I need to go home," or, "I need to do something differently." If the answer is no, then you probably are worried about things like menstrual leave. If the answer is yes, then this is just a normal thing where you're like, "Hey, I'm not having the best day. Work with me here," and you get worked with.

I guess some of the point they make is that people can over-stigmatize this and they can think like, "Oh, you have your period. You're basically nonfunctional." People will just write you off because you're a hormonal female, you're done, which is a fair point, but I'm with you on this one. I didn't think it was groundbreaking. I just think it's interesting that it is actually partially covered under FMLA, and there are some things that you can and legally have to do to accommodate people who have severe issues like this.

[00:09:19] Tyson: Totally,

[00:09:20] Alexa: We're not talking about like, "Oh, I'm having a bad day. I feel cranky." We're talking about major issues.

[00:09:25] Tyson: Totally. To be clear, at least in Ontario, you absolutely do not have to disclose what your actual sickness is. This article does not mean now if you feel you have cramps and you have PPMD, whatever it's called--

[00:09:42] Alexa: PMDD.

[00:09:42] Tyson: PMDD, [chuckles] that doesn't mean you have to start disclosing that if you're not comfortable doing it. Let's not get this twisted here if that's what people are thinking we're trying to say because you still absolutely do not have to share those details if you don't want to.

[00:09:57] Alexa: Yes. Well, speaking of sharing details, we did not share the details of this article with our guest and he's been very patient while [chuckles] we talk about periods.

[00:10:07] Tyson: No, the segue was speaking of what you're allowed to do and not do.

[00:10:12] Alexa: Yes, there we go. There we go. Thanks for the assist, Tyson. Speaking of things you're allowed to do and not do, our guest today is Jon Hyman. Jon is a partner at Wickens, Herzer, and Panza. Panza?

[00:10:25] Jon Hyman: Panza.

[00:10:25] Alexa: Panza. There we go. Lawyer for employers and craft breweries. He is the Master of Workplace Schadenfreude, a blogger dad, husband, and failed game show contestant. I can't wait to figure out which one. Welcome, Jon. Thanks for being here.

[00:10:39] Jon: Thanks for having me. What the fuck? You don't give me a heads up that you're going to lead off with-- you bring the guy lawyer on, am I allowed to even have an opinion about periods? I don't even know, is that-

[00:10:50] Alexa: I have been opinion about the law, doesn't [chuckles] mean I'm a lawyer.

[00:10:55] Jon: Well, okay.

[00:10:56] Alexa: What's your opinion about periods, Jon? Let's go.

[00:10:59] Jon: I've never had one. I don't know.

[00:11:01] Alexa: Oh okay. That's probably a safe opinion. They're not great. I wouldn't recommend getting one.

[00:11:06] Jon: I've heard as much. I got a wife and a teenage daughter.

[00:11:11] Alexa: Anything you have to nickname Shark Week is not a thing that you can be-- [laughs]

[00:11:16] Tyson: Let's stop calling it that. God, l hate that.

[00:11:19] Alexa: I love that.

[00:11:20] Tyson: Grosses me out, but, Jon, I want to know-

[00:11:23] Jon: No, I just feel like anything I say on the topic is just going to get me in trouble.

[00:11:29] Alexa: I don't know. We don't really subscribe to that line of thinking around here. We think you just live and then--

[00:11:34] Jon: I know, but I have to sometimes.

[00:11:39] Tyson: I was just going to say, quick wellness check for Jon who just disclosed to us that he's a teenage daughter, how's that going? Are you okay? [laughs]

[00:11:49] Jon: I'm fine. No, she's a good kid. I'm fine. She just turned 16. She is a great kid despite the typical teenage moodiness that we just deal with day-to-day.

[00:12:06] Tyson: Oh, yes.

[00:12:06] Jon: All in all--

[00:12:06] Tyson: I'm so afraid of teenagers. I do not want a teenager. [laughs].

[00:12:10] Alexa: Terrifying.

[00:12:10] Jon: Unfortunately, you're not going to have much of a choice, and they're going to be coming.

[00:12:14] Tyson: Oh, man.

[00:12:15] Alexa: Yeah, Rosie's really going to be a tree.

[00:12:18] Tyson: I got an 11-years-old. Oh, man.

[00:12:21] Jon: We'll check back in, in about a decade, and see how that's going for you.

[laughter]

[00:12:24] Alexa: Yes, exactly.

[00:12:25] Tyson: That sounds so long.

[00:12:27] Alexa: Exactly. All right, Jon, do us a favor, just so our listeners know and have a little context here, what kind of employment lawyer are you? What do you focus on? How'd you come to your specialty? Give us the quick life story.

[00:12:39] Jon: I have no idea. I've been doing this for 25 years. How did I come to this specialty? It was always interesting to me, but I guess I fell into it out of law school and working for a management-side law firm. I am a lawyer for employers. It's all I've done my entire career, mostly employment law, so the non-union labor-y stuff. Recently with the upswell of what's going on with Amazon and Starbucks, I've been focusing a lot on union avoidance stuff too.

Then the sweet spot is the small to midsize non-publicly traded business that doesn't have in-house counsel. I do an outside in-house counsel thing for businesses. Then most recently I've started representing craft breweries as well, and have developed a little niche in that area, representing breweries around the country, which is-- you got to do what you love, which is a really cool thing to do.

[00:13:35] Alexa: Do you love drinking the beer or do you love making the beer?

[00:13:38] Jon: Drinking the beer.

[00:13:38] Alexa: Okay, cool. I don’t know.

[00:13:40] Jon: I never made beer.

[00:13:40] Alexa: Everyone has a podcast and everyone makes their own beer now, so you never know.

[00:13:45] Jon: During COVID, my wife and I tried to make wine. She bought me a wine-making thing for Christmas a number of years ago because we both liked drinking wine too. We finally early on in COVID decided we were going to sit down and finally make the wine, only to find out that the kit she bought was too small for the juice that you get, so we had to go buy all new wine-making equipment, which we did, made the wine, and it tasted like complete shit.

[00:14:09] Alexa: Now you have all that fucking equipment. [chuckles].

[00:14:11] Jon: Now we have all the equipment, and maybe if you're lucky, I'll send you a bottle of-- we've called it Quaranvino Red. You'll get a bottle of Quaranvino Red. It tastes like--

[00:14:22] Alexa: It just needs a few years. Maybe it needs a few years.

[00:14:25] Jon: You know what? That's what we say in every three to six months, we open up another bottle and it tastes-- you picture what a chemical plant-- no, it doesn't. It's like what a chemical plant tastes like, that's what it tastes like. We have, I don't know, 40 bottles of it sitting in our house that will-

[00:14:42] Alexa: Can't give it away.

[00:14:42] Jon: -never-- Yes.

[00:14:44] Alexa: It's pandemic wine because you'll only drink it when you're desperate in a pandemic and you can't get more.

[00:14:50] Jon: Listeners, if you get one as a gift, it means I don't like you because it tastes that bad.

[00:14:56] Tyson: I feel like it's like law. We should leave it to the experts. We don't all have to be winemakers.

[00:15:02] Jon: It was cool. I had this thing connected to the drill to aerate the wine, and then you're pouring in chemicals and testing specific-- It was really cool, and I was so excited, and I designed this really cool label, and it just did not-- We're buying it and drinking it not making any more, which is fine.

[00:15:22] Tyson: Next time try Kombucha. You can't mess it up, and it's just as cool to make.

[00:15:27] Jon: I don't even know what Kombucha is.

[00:15:30] Tyson: Oh my God, it's a fermented tea kind of thing. It tastes a little bit like beer, so you will probably like it.

[00:15:37] Alexa: You have to buy a living organism to ferment it called the SCOBY. It's this thing that grows--

[00:15:43] Tyson: It's pretty fun, and you can't mess it up. It always tastes good.

[00:15:46] Jon: Okay.

[00:15:47] Tyson: Yes.

[00:15:48] Jon: All right. For our next pandemic, we'll do the Kombucha thing.

[00:15:52] Tyson: Okay. Put it on the list.

[00:15:53] Jon: Perfect.

[00:15:54] Alexa: All right. Back to the task at hand again, you represent employers, you are also the "Master of Workplace Schadenfreude", so you're going to have to tell us where that comes from. What I think would be really helpful to kick off here, Jon, is let's frame for people what are some very common instances where you are coming in to either represent the employer because someone has brought up an issue or-- let's talk about the process of how it gets to your desk.

[00:16:26] Jon: It gets to my desk in one of two ways. Either a company has enough foresight to realize an issue that comes across their desk, whether it's an HR person, or if the company's even smaller than that, maybe a CFO or an owner of a company who doesn't know what the hell they're doing with an issue. So they call me, or worst case scenario, they've gotten served with a lawsuit, or any EEOC charge, or OSHA shows up at their door, and then I'm coming in trying to fix the mess on the back end.

Proactively, where I get involved on the front end, it's a lot of harassment investigations, a lot of policy drafting, a lot of leave of absence related issues, either FMLA or for smaller companies, I need the accommodation for the time off kind of thing.

[00:17:15] Alexa: Period leave?

[00:17:18] Jon: Yes, period leave. That one does not come across my desk yet. It's a lot of the day-to-day, "We think we need a lawyer to weigh in and bless this decision before you make it. We're going to hire someone, we're going to fire someone."

[00:17:35] Tyson: What is your scope as a lawyer? Again, I'm coming from a Canadian perspective, so I'm just curious what your scope would be. Then in relation to that, do you have companies that sign on with you, that you are their lawyer, or is it very reactive, where companies are like, "Oh, man, we need someone," and then they go to you?

[00:17:55] Jon: It's a little bit of both. I much prefer where a company engages me to be their outside counsel.

[00:18:05] Tyson: You're already there sitting waiting for them.

[00:18:07] Jon: I know them, I know their business, I know management. I get to know them and their philosophy of how they manage people. It makes my job a lot easier that way. In an ideal world, that's great, but sometimes [chuckles] worlds aren't perfect. Sometimes it's, "We just got sued, what do we do?" It's a little bit of both.

[00:18:32] Alexa: I want to come back to the philosophy of how they manage people, but I don't want to go there yet because I want to give people a bit of an example here of just really common examples of stuff you're brought in on, that you're like "Yes, this is exactly when you should bring in an employment lawyer. This is exactly the right situation." Then maybe what are some examples, Jon, of the opposite of that where people are like, "Oh my God, we need a lawyer like Jon," and you're like, "You didn't need me here, this is not a situation where you needed me." I'm assuming most situations having you is probably always helpful, but--

[00:19:04] Jon: It never hurts. It certainly never hurts. Situations where people should be thinking about getting a lawyer involved, when an employee complains about anything that raises any potential issues under any law because now you have the potential for retaliation, the employee has put on their-- whatever, their retaliation superhero cape or whatever you want to call it, and they are now potentially protected from discipline, termination, or whatever.

[00:19:34] Alexa: Examples of that are like--

[00:19:35] Jon: -are like sexual harassment, discrimination, wage and hour violations. "I'm not being paid correctly, you owe me overtime," safety violations, leave of absence violations, things like that. That's one example.

I think reasonable accommodation requests by employees with disabilities or potential disabilities is another area, that's just huge potential pitfalls for inexperienced HR folks to screw up and create legal issues. I think sometimes-- Well, I'll give a perfect example of a company that did this really, really well, and this is an example that doesn't come from-- this is way before I was a lawyer. I worked in a fabric warehouse when I was in high school, unloading bales of fabric out of a truck. It was a terrible job, but it paid all right, so I kept doing it.

My third day of work, this guy came up to me, and he asked me if Harlan had cornered me yet. I said, "I have no idea what you're even talking about." He goes, "Oh, he will, don't worry about it." There was a guy there, his name was Harlan Jester. He was nuts. He named his kid Court, so his child was named Court Jester. That's the way this guy thought, and he also thought that the Freemasons ruled the world from an office on the 35th floor of Rockefeller Center, and Lee Iacocca saved Chrysler by making a pact with the devil, and that the apocalypse was coming, and there was going to be a big war between Israel and Palestine, and they were going to fight it out for the second coming of Jesus and all this crap.

Anyway, he had literature he gave me. He had pamphlets that he handed me about all this stuff. Anyway, that was Harlan, and people decided they were going to have a little fun with Harlan. He was out sick one day, and one of my coworkers who was a really good artist took Harlan's desk, sketched a drawing of Lee Iacocca on his desk that was spot on, perfect with the little word bubble coming out of his mouth and said, "Harlan, I'm watching you."

Harlan came back to work the next day and just lost his shit. He thought that Lee Iacocca had come in while he was out and sketched this thing on his desk and legitimately was watching him. He went to management and he was like, "If you don't get rid of this, this desk, I can't work here anymore," and to their credit, they took the desk, they put it in his storage closet, they brought him a new workstation, and he went about his business.

Too often, I think businesses, HR professionals, management, supervisors, whatever, get caught up in like, "Do we legally have to do this? Does the law say we have to do this? If not, then we're not going to do it because the law says we don't have to." I think too often they look the law as just the baseline floor, and as long as they meet that floor, like, they're good, "We're not going to get sued. We're protecting the assets of the company. We've done our job," where in reality, I think if you just put yourself in the mind of the employee and think, "Is this just the right thing to do by this employee? Is this going to hurt us that much to swap out desks for this guy?" I think most HR issues would resolve themselves, and you wouldn't need people like me.

[00:22:49] Alexa: Don't be an asshole.

[00:22:51] Jon: Yes, don't be an asshole. It's kind of that simple. It's like kindergarten. Treat your employees like you would want to be treated. It's really that simple, and I don't want to make myself obsolete, I've got bills to pay, so I like working and having clients and sending up bills and getting paid.

[00:23:11] Alexa: Yes, but this is also a dimensional example. I'm sure this is much harder when you get like a "He said, she said", or a "She said, she said", or "He said, he said", or a situation where it's not as easy as like, "Oh, we'll just accommodate this person or do something like an adjustment." It's like when you've got a situation that's a little stickier--

[00:23:28] Jon: Oh, yes, you definitely-- there are lots of situations where you have to make judgment calls, and in those situations, you definitely need-- you want a professional to come in who's experienced and nuanced and understands the questions to ask and what to look for and can help you as a business make the right judgment call because the reality is, look, anybody can sue any time for anything, we all get that, but from a liability protection standpoint, how are we going to protect the company, if you do things the right way from a process standpoint, make a well-reasoned decision and have a good faith basis for why you made an employment decision, you're going to be okay 99 times out of 100, so that's really what you're looking for.

[00:24:14] Tyson: Yes. What I find interesting, after working in HR for a number of years, I see it less-- anything that's like law, where we're getting into the legal realm of things, it's less about what is the actual law, and I'm thinking things more in-- so, what is the risk? How are things becoming more or less risky? Then what risk level are we willing to take versus not willing to take? Like that example, this guy was probably a pretty high-risk dude, so just switching out his desk is a good way to lower that risk. From an HR perspective--

[00:24:50] Jon: Lower [unintelligible 00:24:51] temperature. I think risk from a lawsuit, risk from doing something rash, we think about violence, especially nowadays, so all that stuff, exactly.

[00:25:03] Tyson: This is not as wild as an example, but we had someone, we moved their desk, they quit and filed something called constructive dismissal, which, for those of you who don't know, in Ontario, when you say that something was constructive dismissal, it means that we changed your job so much that it forced you to quit, so in turn, we were basically firing you, just in layman's terms.

He claimed constructive dismissal because we moved where he was physically sitting in the office. That was a guy who was probably pretty high risk to begin with. You got to watch those folks. Again, that's how I see it from the HR perspective. Of course, I'm not a lawyer, but that's how I'm managing things on the sidelines.

[00:25:43] Jon: I think if you just put yourself in the shoes of your employees and said, "If I was them or if I was their spouse or child or parent or whatever, how would I want to be treated?" The other way is, when a client brings me a problem, I try to look at it backward. I start with, "If I'm one of eight people sitting in a jury box and I'm hearing these facts, what am I going to think about how the employer reacted to this?"

I look at every issue that comes to me as a potential lawsuit. It's a potential lawsuit that I might have to defend and maybe even take to trial. If I can't look at a judge or a jury and, in good faith, say, "We treated this employee fairly," because, at the end of the day, the clients pay me a lot of money to write jury instructions and argue law to judges and everything, but at the end of the day, what juries care about, they're not lawyers, they're just regular people, they care about, "Was the employee treated fairly and reasonably?" [crosstalk] What's that?

[00:26:47] Alexa: Were you an asshole?

[00:26:48] Jon: Exactly. If I can look at a jury and say, "Yes, not the asshole," I'm pretty good with the decision at the end of the day.

[00:27:00] Tyson: Hold on, hold on. On that point, when we're looking at a legal issue, would you then say that positive intent actually has a benefit from a legal perspective?

[00:27:12] Jon: Yes, I think so. I think it does because, again, juries, but even judges, who deal with the law are swayed by perception too. If you're trying to do right by your folks, at the end of the day-- I had a case where we won it on-- we got the case thrown out. It was an FMLA case. The reason why we ultimately won the case, even though there were some issues with how the FMLA leave was ultimately handled, was because the company bent over backwards trying to help this employee.

There was three FMLA leaves before the one that was challenged. There was accommodations beyond the FMLA leave. It was a pain-in-the-ass employee that was just constantly taking time off of work for various ailments and aches and illnesses. Every time, the company bent over backwards. Then there was one time they didn't, and she lost her job. It's like, "If we were biased against you having all these medical issues, we wouldn't have helped you for two years. We wouldn't have bent over backwards trying to help you until we had a breaking point." I haven't really thought about it that way before, but yes, I do think positive intent is a good way to look at it.

[00:28:30] Alexa: This all sounds great and it's wonderful to hear that a lawyer who works with employers is constantly trying to make sure they're not acting like assholes because it's in everyone's best interest, but I guess my question for you, Jon, would be, it's not always this straightforward. Where does this get sticky? Where does it-- the obvious, "Oh, you want to just try to help and accommodate this person," where are the pitfalls here? Because there's a lot of lawyers that are paid for a lot of reasons. What are the pitfalls that people don't see coming?

[00:29:02] Jon: Oh, no. You're absolutely right. There are lots of lawyers that also don't have the same philosophy. I do either, and when the client says, "We want to fire this individual who just complained about harassment," they're going to sign off and bless that the company does that. In terms of where the pitfalls are, I think it's the same things I said earlier in terms of the same issues. It's not so much what creates the pitfalls, it's how you react to it. I tend to--

[00:29:36] Alexa: Are there specific examples where employers always want to try to do X, even the ones acting in the best intentions, and actually, it's harder to navigate than that, you need to do something different, whether that's harassment claims or whether that's union-- I don't know the situations, you'd know better than us. Things that people think are an obvious choice and you're like, "No. That actually doesn't work how you think it does."

[00:30:00] Jon: Well, one issue, for sure, I think when you're talking about things like FMLA and leaves of absence, I think there is a huge misconception, for example, that 12 weeks is 12 weeks, that when the individual exhausts their 12 weeks of FMLA, if they're not ready to come back to work, their job restoration rights end, and you're free to terminate their employment when the reality is that the ADA grants accommodation rights beyond the 12 weeks of the FMLA, and employers that treat that 12 weeks as a hard cap, "We're only going to give you that and nothing else," if you need additional time off beyond the 12 weeks of the FMLA, employers that draw that hard line in the sand and say, "You either come back at the end of your FMLA or you hit the unemployment line," I think that's a huge red flag risk for businesses, for example, because the ADA is going to tell the employer that you have to at least engage the individual, they're disabled under the ADA.

You have to engage them in the interactive process that the ADA requires to determine if there is an accommodation you can make for them beyond that 12 weeks. If they say, "Yes, the doctor says I need another month," then that extra month of unpaid leave is probably in most cases going to be reasonable. What becomes difficult then is when the employee says, or the doctor's note says, "12 weeks of FMLA and then Jimmy needs another month," you give another month, and then when that month expires, then the doctor's note comes and says, "Needs another month," then another month and another month, where do you draw the line between an accommodation that is reasonable, and then these serial requests for additional time off that-- where does it flip from reasonable to unreasonable?

That's not a hard line. That's a really gooey flexible line. That's where you really want to be talking to your counsel to make sure that you have the legal input as to when reasonable becomes unreasonable, for example.

[00:32:13] Tyson: Can we talk just a little bit about like, what is actually happening from a legal perspective when somebody quote-unquote-- we keep saying-- we're alluding to like, "Oh, it's getting sticky," or whatever, what is actually happening? It's not like if an employer does something that's illegal, automatically bang, bang, bang, the police come knock you on their door, and then off they go to jail. It doesn't work that way. It really doesn't. What has to happen of course first is the individual who's being the employee, let's say, has to file a claim, right?

[00:32:48] Jon: Yes. What often happens is, and what I see a lot is the employer will get a really eloquently written email from the employee. That's a huge red flag.

[00:33:02] Alexa: I've written a few of these for friends.

[00:33:04] Jon: Yes, that this employee might be talking to--

[00:33:08] Tyson: Lawyers also write these letters.

[00:33:12] Jon: Yes, if your guy who last week couldn't string two words together when he was talking to you, all of a sudden, is sending like a five-paragraph long email talking about his legal rights, he's got a lawyer. That's where you got to be careful. That could be step one, but in the discrimination realm, lawsuits have to start with EEOC, Equal Employment Opportunity Commission, or their state equivalent agency charge. There's an administrative process that proceeds the lawsuits--

[00:33:44] Tyson: Administrative labor here. Yes.

[00:33:45] Jon: Correct. Then either the administrative agency says, "Yes, we have probable cause to think that the law has been violated," and they could choose to sue the company, or they could just give the employee what here we call the right-to-sue letter, which basically is what it says. We give you the right to sue, file a lawsuit, and then that starts the actual lawsuit process rolling.

[00:34:05] Tyson: In the employment scope, what are people suing for?

[00:34:09] Jon: They're suing for discrimination. They're suing for--

[00:34:11] Tyson: What are they trying to--

[00:34:13] Jon: Oh, in terms of what are they trying to recover?

[00:34:14] Tyson: In terms of money, reinstatement--

[00:34:16] Jon: Money. Reinstatement-- once an employee sues in my view like that, the employment relationship is broken at that point. It gets difficult where the employee suing is a current employee because you can't fire them because they filed a lawsuit. That's retaliation, that gets you in more trouble, but when they're gone, they're an ex-employee, they're suing you over their termination, they might ask for reinstatement. They don't want it. They don't want it. That's not going to go well for anybody. They're suing for money.

[00:34:50] Alexa: In the form of paid severance or just--

[00:34:53] Jon: Back pay. There's salary or wages for how long they've been out of work. If they have difficulty finding work, they can sue for front pay, that is compensation for how long it would take them to find new work after the case is over, and then your emotional distress trying to solve gooey punitive damages to--

[00:35:14] Tyson: How it works in-- what we call that typically in Canada, usually, if you are firing-- Let's talk about firing. If you fire someone, you're just supposed to give them a basic amount, their severance and termination pay, but if they come back and they sue, what they're looking for is their common law pay, which is slightly different. It's a lot more, and that's exactly what it is. They're looking for the "damages". Do you guys use these words in the States, damages?

[00:35:41] Jon: Damages? Yes. Common law pay? No.

[00:35:46] Tyson: Yes, common law is a Canadian thing.

[00:35:47] Jon: Yes, but my sense is employees in Canada have a lot more protections than employees have here in the States.

[00:35:52] Tyson: Absolutely. We totally do. Anyway, typically how we see that come back is they're looking for anything that they would have earned in the certain amount of time, whether there was benefits, bonuses, or working-from-home expenses, all that stuff is what they're looking for.

[00:36:11] Jon: Same concept here.

[00:36:16] Alexa: Can I ask how often in your experience, Jon, these things get passed the EEOC board and get to full-blown lawsuits and get to full-blown trial situations? How often does that actually happen, versus a lot of these things it's a scare tactic, or EEOC is like, "Yes, we shut 90% of those down," what's the filter here for how that system tends to sieve things out?

[00:36:45] Jon: I think in most cases, the EEOC does not file suit on-- A lot of them don't have merit, but also they're limited by their resources. They're often looking for cases they can make a splash with, either because the allegations are egregiously awful, or because it just impacts a lot of people, so there's a huge class of employees they can sue for. The EEOC is not filing suit that often, but 25% of the cases that are pending in federal courts now in the States are employment cases. Cases get filed. There's a ton of cases that get filed.

[00:37:24] Tyson: It's public, right?

[00:37:25] Jon: Yes, public.

[00:37:26] Tyson: Anyone can see what companies have lawsuits that are out there, right?

[00:37:29] Jon: Correct. I get reports every day of lawsuits that are filed here in Northeast Ohio in the state and federal courts, and a lot of them are employment cases. A lot of them are employment cases.

[00:37:39] Alexa: Is there anything floating around on the federal level that you're like, "There's enough of this going on that a meaningful change might partake here"?

[00:37:48] Jon: No, Congress can't do anything. There's no meaningful change coming. That's not happening.

[00:37:53] Alexa: Let me rephrase that. Our political system is useless.

[00:37:56] Jon: Correct.

[00:37:56] Alexa: Let me rephrase that. Is there a common thread or a wave of a similar kind of issue of that you're like, "Of that 25%, 70% of you are in this--"

[00:38:08] Tyson: Organizing for example? Or immigration.

[00:38:12] Jon: No, you know what? Wage and hour, of that 25% of federal cases that are filed, a solid quarter of them are wage and hour disputes, like, "You didn't pay me my overtime, you didn't pay me a minimum wage." The plurality of employment cases in the federal courts are wage and hour cases.

[00:38:32] Alexa: Is that because they're hard to prove?

[00:38:34] Jon: No, it's because they're easy to win because our wage and hour laws are a mess, and they get filed because they're easy to win and because they carry automatic attorney's fees for the plaintiffs if they can prove their case and win. That's not just one individual. It's classes of dozens, hundreds, thousands of employees who come together in class actions and file the suits.

It's a big risk for businesses because they probably screwed up how they're calculating overtime, number one, because it's really hard to get correct, number one. Number two, the risk is huge because these cases are litigated over attorney's fees. I've had plaintiff's lawyers tell me that. "There's 50 grand in unpaid overtime, but we have a quarter million dollars in legal fees in this case, and we're not settling this case unless you pay us our legal fees." It's legal extortion. It's legally sanctioned. It's gross.

[00:39:37] Tyson: That's the worst when there's so much information that you need to collect. Again, just from an HR perspective, that's often where we're helping out in terms of collecting all the data and trying to figure out all the little pieces of the puzzle to help with the lawyers. Yes, that's wild because we have some things in Canada, we aren't actually technically allowed to have salaried employees. You're not allowed, you have to pay people by the hour. There's all sorts of exemptions to be salaried, but nobody follows it. It's like speeding. Nobody does that. If you broke it down, so many companies would be in huge trouble because we're not allowed to work different hours and stuff like that.

[00:40:18] Jon: It's no different here. In order to be exempt from overtime, you have to be paid at a certain small salary level and then meet certain duties that are super high level, but nobody understands that. The biggest exemption here under our wage and hour laws is what's called the administrative exemption, and everybody thinks, "Oh, administrative means you're doing administrative work. You're sitting at a desk and typing or sending emails," and that's not-- it is high-level matters of significance, like don't have to answer to anybody in how I'm making decisions. That's the level of work you need to do to be exempt. Nobody understands that. That's why these companies are getting sued.

[00:41:02] Tyson: We have the same thing. We have some easy ones like engineer, doctor, lawyer, the tech guys--

[00:41:08] Jon: [crosstalk] Those are--

[00:41:10] Tyson: Just some obvious ones.

[00:41:12] Jon: I see it in my beer practice too with how tips are calculated and dispersed out to employees. We see that there's a lot of these wage-and-hour lawsuits are filed in the hospitality industry as well over incorrect calculation of tip credits. You can pay here, you can pay a lower minimum wage to tip employees, and then count their tips against their minimum wage. Nobody understands that either. That's just huge-- and then on top of that--

[00:41:44] Alexa: It says [unintelligible 00:41:44] what I used to make.

[00:41:47] Jon: Yes, they do things like, management dips their hand into the tip jar and tips themselves, even though they're not supposed to. That wrecks the tip pool. It's another area that's rife for potential lawsuit problems.

[00:42:04] Tyson: Probably hard to really track because how much tips were there? Did anyone really count? [chuckles]

[00:42:10] Jon: Yes, well, credit cards are easy. Cash not so much. Exactly.

[00:42:20] Alexa: I guess one of my questions would be, and this is a fairly common example is like, when these situations go down whether they're harassment, wage and hour laws, whatever it is, you've clearly basically created a tumultuous relationship with the employee or employees. What are some of the things that either employees need to be aware of when they bring these situations up, or vice versa, companies should probably be aware of?

For example, one of the things that comes to mind for me is gag orders. It's like, "Oh, okay, cool. You can buck your feathers and you can say you feel like you need severance or whatever because you think we're going to fire you, but you have to sign a gag order for us to give you that."

[00:43:03] Jon: We do that. You talk about what Congress might do, that's one thing Congress has talked about, is making confidentiality agreements illegal because it chills people from finding out that companies are shady to employees or protect sexual harassers or whatever. That's one thing. During the lawsuits--

[00:43:28] Alexa: For example, you don't have to sign that. You're like, "I've always been given paperwork when I've left places and I've been like, I'm not signing shit."

[00:43:36] Jon: Oh, no, not without money being-- if they're going to pay you for it, that's one thing. Exactly.

[00:43:43] Alexa: Basically paying you for silence.

[00:43:45] Jon: One thing I always worry about now is with social media and everything that employees are always in communication with each other, and all that stuff then becomes discoverable in a lawsuit. Having conversations with employees, when a lawsuit gets filed, we need to not be on Facebook or Twitter talking about it, but also if you're friends with the employee that filed the suit or ex-employee or whatever, and you're communicating with them about their employment, the lawsuit, whatever, there's now going to be a digital record of that.

It's not just-- You can no longer say because we're not-- everything is done just-- even by text message. There's a digital footprint for everything. You just can't get away from the fact that these conversations are happening. People got to be careful what they're typing and to whom particularly when litigation is involved because that stuff never goes away.

[00:44:42] Tyson: Except if you're seeking legal advice from your-- If you have internal counsel, if I'm seeking-

[00:44:47] Jon: That's different.

[00:44:48] Tyson: -legal advice--

[00:44:50] Jon: That's attorney-client privilege. Yes, that is-- but just employees talking between themselves-

[00:44:56] Tyson: Yes. Totally. Slack. Watch your Slack. [crosstalk]

[00:44:59] Alexa: Can't keep texting each other if that's part of-- is that what you're saying? If Tyson and I are buddies and we're texting, and then Tyson works for the CFO, and I start suing the C-suite, text with Tyson could be considered discoverable.

[00:45:14] Jon: Correct. Now you're sitting in a deposition chair answering questions from someone like me and sweating it out while you're being questioned about all these conversations you had.

[00:45:25] Tyson: Oh my God. Is that what Johnny Depp did, is that called a deposition?

[00:45:29] Jon: [laughs] He was in trial. That was a trial.

[00:45:33] Tyson: He was getting asked a lot of questions.

[00:45:36] Jon: That was the trial. A deposition is when you're in a conference room. It's like a trial where you ask questions to find out what someone knows. You swear them in under oath, you're in a conference room. There's no judge, there's no jury. It's just a court reporter and a bunch of lawyers. You answer questions under oath to say what you know.

[00:45:53] Alexa: Have you ever seen videos of Jeffrey Epstein or stuff where he's sitting behind a middle school photo booth backdrop at a conference room table, and he is like, "I refuse to answer that question," or, "I plead the fifth," or-

[00:46:10] Tyson: Plead the fifth, I've heard of that.

[00:46:11] Alexa: -"That boy has instructed me not to answer that question." [crosstalk] Actually, you bring up a really good point, Jon, which I'm sure is something that you come across a lot now, and I've actually seen you post some pretty awesome stuff about it as well. I do love your posts. I find them both insightful and colorful.

The question for you is you brought up social media which is like, oh my God, between the People Ops Society group and the people that I work with, people are like-- they don't know what the fuck to do with employee social media. They don't know if they should police it. They don't know if they should have a policy for it. They don't know to the extent to which they can even enforce it. What is your general take on common pitfalls around social media right now, common misunderstandings, and then also "people need to get their shit together" moments, best practices?

[00:46:58] Jon: Well, the biggest misunderstanding is that employees across the board believe that they have free speech rights at work, which they don't.

[00:47:09] Alexa: That's true.

[00:47:09] Jon: In the public sector, so if you work for the government, you may have some free speech rights because then the first amendment does apply to your employer, but even then they're limited, but for most in the private sector, no free speech rights. You can't say what you want without impunity. You can say what you want, but there's consequences like being disciplined or being fired.

What I tell employees when I do, and I do social media training for businesses where they bring me in to talk to their employees about like, "This is what you should do online," what I tell them is, before you type anything and hit the send button to post or the post button on whatever your social platform of choice is, you got to run it through your personal filter and think, "Is this going to reflect badly on me, my coworkers, my employer, et cetera?" Because if it does--

[00:48:05] Tyson: What if the CEO saw this?

[00:48:06] Jon: You shouldn't send it. Do you want the CEO to see it? Do you want it to be on the front page of The New York Times?

[00:48:14] Alexa: That was the first-- they taught me in my first Wall Street job. My first job out of college, they were like, "Don't put that shit in an email if you don't want it on the front page of The New York Times."

[00:48:20] Jon: Yes, or being read to a judge or a jury, would you be okay if your spouse saw it or your kids? All those filters, think before you post.

[00:48:30] Alexa: You're asking a lot, Jon.

[00:48:31] Jon: I know you are, but that's why-- and people get fired. I counsel businesses all the time who end up firing employees because they posted stupid shit. If you're a business and you have an employee that exhibits bad judgment because they're posting like QAnon, January 6th, "Let's go storm the Capitol," or racist memes, we saw it a lot, not to go too far into the past, but we saw it a lot when Obama was elected, employees going on Facebook and posting racist memes.

It's like, "Yes, you know what? You can't do that and expect to keep your job because you know what? You work with black people and your company has black clients and customers and vendors. Your reputation is your business' reputation. If you don't safeguard that reputation, sorry, no job for you."

[00:49:25] Alexa: I think that's a common misconception though because I think people will think, "Okay, but you can't fire me for it. There's no policy." Me posting a racist meme has nothing to do with the widgets we make.

[00:49:37] Jon: Yes, unless--

[00:49:38] Tyson: People think they can't do it because they're on their own time and that they have free speech. [crosstalk] It's so much about a policy because there's always policies. There's always social media policies, but people think, "No--" [crosstalk] Let's say there is a policy. People are like, "Well, I'm on my own time, so why would a work policy mean anything to me?" That's the pitfall with people, they're like, "This is my personal Instagram. This is my personal Facebook."

[00:50:04] Jon: I think if you're going to-- well, the answer is because it can reflect on your employer, but that's part one. Part two is policy does you no good if you're not going to train your folks on what it means because even with that, who reads policies? I get it. Nobody reads policies. I understand. I draft them and I understand that nobody reads them.

[00:50:21] Alexa: Any policy, yes.

[00:50:22] Jon: Yes. I get it. That's why the training is so important, especially here where you have an issue that's so misunderstood. Bring me or someone like me in for an hour to talk to your employees and explain to them what the rules of the road are, so they just stop posting stupid shit, or at least if they do, they understand that it could potentially cost them their jobs.

[00:50:45] Alexa: You can get fired for saying stupid shit online.

[00:50:47] Tyson: I feel like that needs to be taught in school. I feel like that needs to be taught in school these days.

[00:50:52] Jon: Definitely.

[00:50:53] Tyson: The thing is, we think about-- Let's say it's just a person on their personal Facebook account. They post something inappropriate. That's one thing, but I am shocked at the stuff that people put into Slack at work, on their work phones, on their work computers, putting stuff on Slack. I'm like, "You didn't even try to hide that." I don't know if you see a lot of that too, Jon, but it baffles me what people think is okay to put on a work tool. It's crazy.

[00:51:25] Jon: Yes, and we used to sit around the coffee room or the water cooler or whatever and say this stuff and now we sit behind our computers and type it. The problem is, is that when you type it, it's there. It doesn't disappear like a conversation.

[00:51:42] Tyson: Even if you can delete your Slacks, [chuckles] they can still find them.

[00:51:45] Jon: They can find them. They can screencap them. They're there.

[00:51:49] Alexa: Oh, yes. It's like when everyone's like, "Oh, Snapchat." I was like, "You know you can just screenshot that shit, not disappear, right?"

[00:51:55] Jon: Then it ends up on Reddit and Twitter, and then you're screwed.

[00:51:58] Alexa: Exactly. You bring up a really good point though. This is the point that Tyson and I were making from other ends of the spectrum, which is, people just assume that because they're an individual, that they have protections while also being full-time employed by a corporation, and when you work for a private corporation, there are certain truths to that, and there are certain myths to that, which is that you're not necessarily protected as an individual on your own time because you're still employed by this corporation.

[00:52:32] Jon: Yes. If what you say even on your own time-- if I'm showing up on Capitol Hill on January 6th and jumping through the barricade, I shouldn't expect to keep my job. If I'm going to Charlottesville--

[00:52:47] Alexa: Regardless of if you put it on social media.

[00:52:49] Jon: Right. Yes, regardless. If I'm going to Charlottesville carrying a tiki-torch marching through Charlottesville, I shouldn't expect to keep my job. It is the biggest misconception in the workplace right now.

[00:53:05] Alexa: How would you coach through that? If someone was like, "Yes, but that's my personal belief. I worship Satan and I wear blue shoes on Tuesday. That's for me," how--

[00:53:15] Jon: Worshiping Satan is a protected religious belief, so can't get fired for that.

[00:53:20] Tyson: Right. I was going to say-- that was my question. What if it's a protected ground?

[00:53:26] Jon: Different story. Very different stories.

[00:53:29] Tyson: Because then you do have freedom.

[00:53:31] Jon: Then you have protections. The worshiping Satan thing, protected. I believe in a flat earth, not protected. Is it religious or is it a conspiracy? We--

[00:53:48] Tyson: I'd argue those are on the same spectrum potentially, but that's okay.

[00:53:52] Jon: I mean, there's fine lines here. We saw it a lot with the COVID vaccine and companies that were-- employees that were asking their employers to exempt them from vaccine mandates. Some stated valid religious grounds for it. "My body is a temple, it's against my religion to take in a foreign substance." Some people just had philosophical objections that are not protected. We saw that a lot during the pandemic once the vaccine came out.

[00:54:27] Alexa: Yes. I just think people are like, "Yes, but it's on my own time. I get to hang out with my skinhead friends. You can't fire me for hanging out with my skinhead friends." It's like, "Actually, I can."

[00:54:38] Jon: Yes. I can, because guess what? You got to come into work and work with all of your black coworkers that might not be real happy with the fact that you're a skinhead because if you're a skinhead when you're not at work, you're a skinhead at work, you just might not talk about it. [chuckles]

[00:54:51] Alexa: Yes, which is funny because, if you think about it, the laws-- the original breaker of the "Bring your whole self to work" thing, the law applies to you regardless of if you're nine to five or not in most of these particular instances we're talking about right now. You're employed by a private organization, your employment is not guaranteed.

[00:55:13] Jon: Yes, we're not, and who's really nine to five anymore anyway?

[00:55:16] Alexa: Nobody.

[00:55:17] Tyson: That's so interesting, so it's like bring your whole self to work, but only the things that are considered either, A, appropriate to the employer, or B, are a protected ground that you can't get fired for.

[00:55:30] Alexa: Exactly, and the law is like, "Yes, yes, no, no, your skinhead friends are under the realm here. You don't get to separate church and state here," which is funny. It's just there's a lot of ironic sort of--

[00:55:41] Tyson: So interesting.

[00:55:42] Alexa: Yes, there's a lot of--

[00:55:43] Tyson: That's what I love about the law though. It's not so black and white, and I always love having conversations-- I've always worked in companies with internal counsel, so there's nothing better than just sitting there talking to a lawyer about all the ifs, ands, or buts, and just these huge conversations that happen, so interesting.

[00:56:05] Jon: I think the reason why my clients that work with me like working with me is because what you see on LinkedIn where I take positions, very clear positions on things, I'm that way with my clients too. When they come to me with a problem and say, "Here's the situation," a lot of lawyers will say, "Well, you can do A, you can do B, you can do C, you can do D, and these are the various risk profiles that go with each of those decisions." I just tell them what they should do. "If I were you, I would do B because-- and here's the reason why."

For the businesses that work with me, that's why they like working with me because I'm very direct in telling them what I think they should be doing, which is what-- I think that's why they're paying a lawyer. They don't want to-- We want to understand what the options are. We want to know which one you think we should take. Don't just--

[00:56:52] Alexa: I always tell my counsel, I'm like, "Your job is to tell me how I can do this, not all the things that are going to go wrong. Not to tell me what I can't do and what I shouldn't do, your job is how I can get this accomplished.

[00:57:02] Jon: Yes, this is, what business outcome do you want, and let's figure out how we get you there-

[00:57:07] Alexa: Exactly, yes.

[00:57:07] Jon: -hopefully without getting you sued.

[00:57:09] Alexa: Fascinating. Anything you wish that employees or employers who you interact with most in these interactions remembered or knew, anything that you were just like, "Oh, man, if I could just tell all these employees suing their employers over a dirty Slack message--"

[00:57:26] Jon: I wish employees would know or would understand that their employer's not their enemy. Their employer's not out to get them. Like I said, I've been doing this for 25 years, I can count on not even one hand the number of businesses I worked with that were evil or out to get their employees. They're mostly sins of omission. Businesses are doing the best they can. They're flying fast. They're making decisions. Sometimes they get them right. Sometimes they get them wrong.

When sometimes when they get them wrong, they get sued, and it happens, but they're not out trying to get their employees. There's no "got you" moment here. They're just trying to do the best they can to run their business efficiently and effectively, and unfortunately, sometimes things go south, and employees get disciplined, get fired, investigations get botched, things happen, whatever, but it's not because they're out trying to-- "Oh, we're going to get the black employee," or, "We're going to fire the disabled employee," or, "No women here," or whatever. They make mistakes like everybody else. It's not an "us versus them". It in my view really is a team, and some teams are just for better or for worse functional or some are dysfunctional.

[00:58:47] Alexa: Amen to that. Any last questions, Tyson, before we move to our People Problem?

[00:58:53] Tyson: I don't think so. We got a good People Problem.

[00:58:55] Alexa: Right. Lay it on.

[00:58:56] Jon: Does it involve periods?

[00:58:59] Tyson: No.

[00:58:59] Alexa: We're not warning you. No early warning, Jon.

[music]

[00:59:17] Tyson: All right. What are some ways to reduce risk when terminating a high-level employee on top of paying their severance and termination pay?

[00:59:27] Jon: I'll take the word "high level" out of there and say that in most cases, when you terminate an employee, you want to pay severance and get a release in exchange for the severance you're paying that employee because--

[00:59:43] Tyson: So happy you brought up the release.

[00:59:44] Jon: You're buying--

[00:59:46] Alexa: Gag order.

[00:59:47] Jon: No, the gag order, yes, but you're buying certainty, like, "I no longer want this person working for me, but I also never want to deal with this person again." Period.

[00:59:55] Tyson: It's not a gag order though.

[00:59:57] Alexa: No, a gag order is like you can't talk disparagingly--

[00:59:59] Jon: Can't talk, yes.

[00:59:59] Tyson: It's just saying that you're not going to sue us.

[01:00:02] Jon: Right. You're not going to sue. We're never going to have to deal with you again. Depending on the--

[01:00:05] Tyson: Right, you're not going to sue us.

[01:00:07] Jon: Yes. Depending on the facts that led to determination, sometimes that could cost you a lot. Sometimes it cost you very little, but in all but the most extreme circumstances-- by extreme, I mean you're firing the person because they sexually harassed someone or they used the N-word at work, or they got in a fight, or they stole, or they breached confidentiality, those are extreme circumstances, right? You don't pay severance to those people.

If a sexual harasser wants to sue you, I'm like, "Bring it on. We'll take on that fight. That's fine," but for the-- so and so wasn't cutting it, they were not performing well, it wasn't the right-- I hate saying not the right fit, but it wasn't the right fit, whatever. They made a mistake. Pay severance and get the release signed because then you know you're not going to get sued. You have the certainty that you are going to never have to deal with this individual again ever.

[01:01:02] Tyson: Right. Again, a very quick Canadian perspective just because I want to make it clear in case it is different. We have severance that's dictated by provincial law. If we want to give a release, we have to give more money. Let's say that they're owed a $1,000 severance. That's just like a low number. Actually, I shouldn't even use the word "severance" here. I should use the word "termination pay". Let's say we owe them a $1,000 termination pay. We have to give that to them. Now, if we want them to sign a release, that's in a completely new contract, so we have to give them an extra $5,000- [crosstalk]

[01:01:37] Jon: Yes, we don’t--

[01:01:37] Tyson: -and that amount is determined with different factors.

[01:01:39] Jon: That concept's really alien here in the States. We don't have that. If employees--

[01:01:43] Alexa: [unintelligible 01:01:43]. My head is spinning. What?

[01:01:48] Jon: Employees are at will for the most part. You can fire them at any time for any reason. They're paid shit on the way out the door.

[01:01:54] Alexa: Yes. Also, severance, it's state-by-state here, it's not guaranteed. California is like, "We don't fucking get-- See you. Deuces."

[01:02:04] Jon: There's no-- this is all just--

[01:02:07] Alexa: It's federally regulated or required.

[01:02:10] Jon: It's not regulated at all. An employment contract can require it for-- if you have enough leverage on the way in or a high enough level, you can negotiate a contract that says-- if you're fired during the term of the contract, you're entitled to like X number of months or years of severance or whatever, but I would never draft a contract like that without getting the release in exchange anyway. I need that signed piece of paper saying you're not going to sue me, or giving you something you're not entitled to-- you better promise not to sue us or we're not giving this to you.

[01:02:39] Alexa: Is it a good idea to--

[01:02:39] Alexa: Even if someone leaves voluntarily?

[01:02:42] Jon: No. If they leave voluntarily unless they're claiming they were forced out for some protected reason, then, yes. Maybe, but no, in most cases if they leave voluntarily-- Yes, to answer the question, in the beginning, I might write that right in the employment agreement that we will-- if we fire you without just cause you're entitled to X number of months of severance on the condition that you sign a mutually acceptable separation agreement.

[01:03:11] Alexa: Totally.

[01:03:11] Tyson: That's so interesting. It's such different worlds. Here you always have that in your employment agreement and it always is-- it'll say like, "We'll pay you whatever, the provincial legislation it says that you'll get." Some companies will do a little bit more. Maybe within the first two years, you'll get two weeks. Then it's at the time of firing that we determine, "Okay, you're definitely owed eight weeks' termination pay plus nine weeks' severance. You get that. Then we also don't want you to sue us, so you do need to sign off this release. Here's more money on top of that," which is funny.

[01:03:44] Alexa: Which is just-

[01:03:46] Tyson: Sometimes we'll throw in other shit.

[01:03:47] Alexa: All the Americans listening to this, they're like, "What?"

[01:03:48] Tyson: Just throw spaghetti at the wall.

[01:03:50] Jon: Everybody's moving to Canada.

[01:03:52] Tyson: We'll extend benefits. You can keep your laptop. These are the things that we do to lower the risk. [crosstalk]

[01:04:00] Alexa: We're like, "Yes, so you're out and now you pay your healthcare premium, but we'll let you keep your healthcare for a little while under Cobra, but you have to pay the whole premium which is probably eight times more than you thought it was. Nice knowing you."

[01:04:13] Jon: It's more than the full. It's like 102% of the premium you got to pay to keep your-

[01:04:17] Alexa: It's fucking nuts.

[01:04:18] Jon: -insurance.

[01:04:19] Alexa: It's so goddamn expensive.

[01:04:20] Jon: It's the worst. God forbid--

[01:04:21] Alexa: We appreciate it if you're Candian right now, this is a lost cause, Jon, [laughs] but I'm with you. I'm so with you, man. All right, Jon, if people like what you have to say, where can they find you? Where can they get in touch with you?

[01:04:32] Jon: They can find me all over the place. You can literally just Google "Jon Hyman employment lawyer". I'm not hard to find.

[01:04:39] Alexa: Jon with no H.

[01:04:40] Jon: Jo with no H. I'm on LinkedIn. I'm on Twitter. You can find me at theohioemployerlawblog.com. You can find me at my law firm wickenslaw.com as well. I literally don't hide.

[01:04:56] Alexa: You are not shy.

[01:04:58] Jon: No, I publish-

[01:04:59] Alexa: If you don’t follow him on Linkedin, I highly recommend doing it. His posts are very informative and very direct.

[01:05:05] Jon: I appreciate that.

[01:05:06] Alexa: They're great stories. You always use good examples. You give good case examples, good precedents. I like it. I always learn something awesome.

[01:05:12] Tyson: What show were you on?

[01:05:14] Alexa: Oh, yes. What's your failed game show contestant experience?

[01:05:19] Jon: Who Wants to Be a Millionaire?

[01:05:20] Alexa: Oh, how far did you get?

[01:05:23] Jon: Not very far. I did not have the fastest fingers, but the story, real quick, I was on the night-- the very first guy who won the million dollar prize, his name was Jon Carpenter. He was an IRS agent from Connecticut. He carried over for the night before, and they put you all up in the same hotel in Manhattan. We took the bus to the studio, and we're on the bus, and he was like, "I'm really sorry. I'm thinking I'm going to win the million dollars tonight. I'm going to take the entire show. I'm not going to leave a lot of time for everybody else to really play the game." We're like, "You're an asshole, whatever." I said to the guy, "That's awesome as long as you agree to pick up the bar tab afterwards, after you win the million dollars, that's fine."

Everybody laughed and whatever. The guy did. He won, he took almost the entire show. He won a million dollars. He did pick up the bar tab. I think it was like $20,000. It was like all the staffers, the producers, contestants because there were 10 contestants plus plus-ones. He picked up the bar tab at, I don't know, like 1:00 or 1:30 in the morning with this bar in Manhattan, and Paul Schaeffer, David Letterman's band leader, and Richard Belzer, and this guy that to this day I still think is Andy Warhol, even though I know Andy Warhol is dead, but he looked just like Andy Warhol, walked into the bar with 50 drunk game show people, and they just got--

Somewhere someone has a picture because there was no-- This was November 1999. There were no cell phone cameras, but someone on a camera somewhere has a picture of me with an arm around Richard Belzer and an arm around Paul Schaeffer and a bottle of like half-drunk champagne balanced between my legs at 1:30 in the morning from this bar. It was a fun night.

[01:07:09] Alexa: Did you even get on the show?

[01:07:10] Tyson: That sounds awesome.

[01:07:12] Jon: I was. If you go to Getty Images and just search for Jon Hyman, Who Wants to Be a Millionaire, there's a couple of Getty images of me from the show because I was on--

[01:07:19] Alexa: What was the question you lost on?

[01:07:21] Jon: Kevin Costner movies. I had to rank Kevin Costner movies by date of release. I missed by like two-tenths of a second.

[01:07:28] Alexa: I don't even think I can think of-- it's hard.

[01:07:31] Jon: I was looking-- I think The Bodyguard threw me for a loop. I was not looking--

[01:07:35] Alexa: The Bodyguard is the only one I know.

[01:07:37] Jon: Yes. I was looking for Bull Durham and something else. The Bodyguard, Field of Dreams. How many Kevin Costner movies can we name? The Bodyguard threw me for a loop. I did not have the-- I did get-- it was a three-day all-expenses paid trip to New York. It was not bad.

[01:07:52] Alexa: You got a hell of a story out of it.

[01:07:54] Jon: A hell of a story out of it.

[01:07:56] Alexa: Hell of a story out of it. All right, Jon. Thank you so much for being here. It's been an absolute pleasure. I just love that we finally got an employment lawyer on People Problems. We've been asking for this for so long, and the general message was still, don't be a fucking asshole. Treat people like humans. I love that. Thank you for being here.

[01:08:13] Jon: Thanks for having me. This was great.

[01:08:14] Tyson: Thank you. Wait a minute. Before you leave, take some time to leave a five-star rating. We'd really love your feedback. Also, if you'd like to see our lovely faces each week as we're recording these episodes, check us out on our new YouTube channel. Thanks.

[01:08:27] Alexa: This episode was executive produced by me, Alexa Baggio, with audio production by Ellie Brigida of Clear Harmonies. Our intro music was also done by the wonderful Ellie Brigida of Clear Harmonies. You can find more information--

[01:08:36] [END OF AUDIO]

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