Employment Practice Panel with FLB

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All right, then. I think we're good to go.
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I'm gonna start off by saying thank you to everyone for coming out.
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Thank you especially to Fitzpatrick, Lenz and Luba for putting this together.
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Andrea. Jennifer.
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That you guys did a great job putting this together.
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It's easy to come up with an idea that a lot more difficult to execute.
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And you got everyone here.
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So thank you guys so much.
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And thank you to everyone for being here.
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I know it's very cold out there and events are being canceled left and right, so thank you for braving it.
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If you're here because your boss harassed you to be here, you're in good company.
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And then.
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And thanks to Notch, I think the space is perfect and it'll lead to a good conversation.
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So, you know, before we jump in, I wanted to introduce everybody on the panel.
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So, you know who is here and who, who you should be listening to.
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And we'll start with Jackie Plunkett.
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Jackie has over 25 years of experience in HR, and kind of, you name it.
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I think she's done it.
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Small business. Large business.
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Varied roles from in-house HR to a consultant throughout the US.
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Currently, she's a solution consultant for ISOL.
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She collaborates with US companies to deliver tailored human capital management solutions, which is a fancy term.
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Through the intelligently connected people Cloud platform.
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She holds the professional designations of professional human resources from HRCI and SHRMCP from the Society of Human Resources Management.
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I've heard that's a lot to say.
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You're very qualified.
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I cut it down for you.
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So thank you very much for joining us.
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Up next, we have Dave Steckel.
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Dave is an attorney at FLB and member of the Employment Law and Labor Relations group.
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He serves public and private employers, counties, townships and municipalities in a wide array of matters.
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His deep knowledge of employment law, public sector labor law, and he's counseled clients and litigated cases involving the full range of employment issues.
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And he has conducted collective bargaining negotiations, have grievances and interest arbitrations on behalf of numerous counties, boroughs and townships.
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He has also conducted hearings and mediations before the Equal Employment Opportunity Commission.
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We'll hear more about that later.
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The Pennsylvania Human Relations Commission, the Pennsylvania labor Force, and the state Civil Service Commission have.
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Thank you very much for being here. You.
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Absolutely a pleasure to be here.
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And then last but not least, Jake Sitman.
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Jake is a shareholder at Lehigh Valley, law firm, the Patrick Glancy and chair of the firm's employment, law and labor relations group.
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He councils and trains business owners, executives, HR managers in crisis situations, ways to reduce the risk of legal claims, and how to make smart, strategic and cost effective personnel related decisions.
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He drafts employment arrangements, personnel policies and represents employers in federal and state courts defending them against claims of discrimination, harassment, whistleblower, breach of contract, wrongful discharge, workplace safety claims and more.
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That's awesome.
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He's also been successful in wage and hour non-compete and trade secret litigation and appeals.
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That's what we're talking about today.
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So thank you for being here as well. Happy to be here. Awesome.
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And then, last but not least, I'm Jimmy Honochick, president of YMI Insurance?
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Got my MBA from Columbia and went into equity research at a large wealth firm, where I studied businesses and thought about them from an investment perspective.
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Before I entered the insurance business where I now work at distances and help them mitigate sort of the downside risk mitigation, and protection practices like that.
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So this is the team we are here to talk about HR risks.
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This is the first ever executive edge.
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I hope it will not be the last.
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I think this will be a quarterly event.
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And really looking forward to diving in.
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I hope it'll be, you know, give and take if you guys have questions as we're talking, please feel free.
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You have some incredible minds on the topics here.
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So with that, let's get started.
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All right.
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So the first question I have as I look out here, I see lots of different industries, being represented.
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So what do you see?
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You know, there's there's white collar.
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There is, you know, the trades.
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What do you guys see as sort of common occurrences or claims or things that, that both of those industries types face?
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You know, I start to yeah, Dave and I were talking, so it's hard to come up with initially said, let's get to top five.
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And it's kind of difficult.
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Just because there are so many who listed the absolute top five.
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But there are common ones we see pretty much every week.
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It's sometimes every day.
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So the the most common types of issues where you're counseling or sending claims, they tend to be discrimination and that those discrimination claims run the gamut.
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They can be anymore religion, race, age, sex, disability is hot now.
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So but all of them together.
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Discrimination is one.
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Retaliation is another.
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Meaning somebody at work complained about something or objected to something that was arguably unlawful.
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And then they're later disciplined and they suffer some type of adverse action.
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They're effectively a whistleblower.
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So we're seeing more of those types of claims.
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And this is what I mean, disability discrimination.
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And what goes along with that is the, the obligation of the employer to engage in the interactive process, to try to find a reasonable accommodation with someone as a disability.
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So that's a huge one.
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We deal with that all the time.
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Also, FMLA leaves of absence are huge there.
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Almost every workplace deals with them. And and one of the biggest complaints we get from employers is the potential abuse of leaves of absence.
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And they are easy to abuse.
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And you have to keep tabs on those.
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As Jimi mentioned, I also do some union work.
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And what are the, you know, biggest union issues I deal with is violations or perceived violations of the collective bargaining agreement.
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And the employer's lack of consistent enforcement of policies, which leads to grievances, grievance arbitrations and whatnot.
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I fell like, we're leaving a couple out.
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Yeah. Yeah.
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So wage and hour claims that people are arguing they work more hours or more, paid overtime correctly, that, oh, this wasn't included in the overtime rate or whatever the case may be, or they're they're not really exempt from overtime, but they're classified as exempt.
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Perceived as a manager.
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Maybe paid is not exempt.
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Yeah.
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And so, you know we're seeing more and more of that anymore.
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There are.
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But the new laws are being passed every day, particularly under the now former administration.
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Things are just going to be very different in the next administration. But, we have the Pregnant Workers Fairness Act, for example, which is brand new just last year.
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So now you need to accommodate in a formal way, all pregnant workers.
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And that wasn't legally the case before.
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We all knew we had to engage in the interactive process with disabled people.
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Disabled in quotes.
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Everybody's disabled. What?
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But now we need to do that with pregnant people.
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And there are specific requirements.
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And that's in addition to other things like, giving time breaks for lactation, etc..
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So the world gotten a little bit more complicated, I think as it's gotten more complicated, we're getting more and more of those types of issues.
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When our clients are picking up the phone call on us.
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Jake, here's the here's the new one.
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What do you think guys?
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Also seeing some independent contractor versus employee, issues.
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The dol the Department of Labor issued, revised guidelines last year.
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Specifying what it you know, how someone can be properly classified as independent contractor or employee.
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It's much more difficult to, classify somebody anymore as a 1099 kind of contractor. So that's a big issue.
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OSHA, I deal with that fairly often.
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You know, particularly in more, industrial, manufacturing settings, obviously, but that that one comes up fairly regularly and also food service.
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I see some of my restaurant clients. OSHA you have a disgruntled employee who I mean, the last one I had, they completely made up which things up.
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And then they put that out online.
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And you have to nip that in the bud quickly and get to OSHA and have them investigate and hopefully clear your client's name, because these days it doesn't take long to ruin the reputation.
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All it takes is one disgruntled employee and who has a, you know, easy access to social media these days, who doesn't?
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Right.
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All right, so you guys gave me a lot of directions.
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I want to take this.
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I'm going to give Jackie a chance to start here.
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You know, hearing the common concerns and and incidents that businesses face.
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What are ways that management ownership can mitigate those or set themselves up to be successful and reduce the amount of claims that they see?
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So we're talking about the set up before there's an incident.
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It's so a lot of the claims come out of treatment.
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People feel they're being treated unfairly.
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So if you communicate and do your best to speak to people, hear their issues.
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Treat them with respect.
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And, you know, the investigation is needed.
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That's great.
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But you have to be fair and consistent with that.
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And a lot of times, I would always recommend call legal experts.
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If you feel like you're being set up, it's time to make that phone call.
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Because one misstep can set up the whole thing for for error.
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I mean, essentially, and I'm sure you guys would agree with that.
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There's so many mistakes that you can make in answering claims, but by avoiding people, things fester, issues get worse, people can't get answers, and it makes them seek legal counsel from, you know, as a plaintiff to get some answers for themselves.
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So if you're addressing those concerns before they become bigger, whatever they are, it puts you in a better standpoint.
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And they've you've hit on restaurants.
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But are there industries in particular where you see more incidents, arise that other industries.
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But it's you mean just general employment claims?
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Yeah, it really runs the gamut.
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Every place deals with them, you know, the leaves of absence.
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We talked about earlier, the disability discrimination, reasonable accommodation, FMLA, those sit everywhere.
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And of course, the other discrimination kind of claims don't mention the age, race ethnicity.
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They really don't discriminate.
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They hit every type of industry.
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So I don't I don't see an overwhelming amount of employment claims in one industry versus the other.
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I think it's just there's so many of them.
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There's so many different types of employment claims that they hit every industry out there.
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Yeah, yeah, I would say some of the industries that have higher turnover just by nature of the the business itself and the and the the number of hires that they have, the number of employees, they tend to breed more claims.
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So just as a sort of matter of the function of the numbers and then so you're, you're going to have more claims when you have more high turnover type employees.
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But conversely, if you have a sort of a more professional setting and maybe even fewer employees, but they're hired, highly compensated.
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You may not have as many claims, but the claims that you do get are going to be more dangerous.
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You're at risk for greater liability when they do have a claim.
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So if you have a senior anymore, I'll just tell you it sounds like it's it seems like we get to get an idea.
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We get a daily blurb of all the new labor and employment cases and legislation that's come out.
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Believe it or not, every 24 hours or so.
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So we peruse them.
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And what we've seen is, for example, a lot of H.R.
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managers have lawyers and executives filing claims.
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Those claims, though historically infrequent, seem more frequent.
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And I'll suggest the other, you know, when there's a risk of liability, it's higher for them for a variety of reasons, one of which is they make more money.
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So when they win a lawsuit, they win more money.
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It's that basic at a certain level. Yeah.
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I don't know about you. I know we. Know where the bodies are buried.
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That's part of it, right?
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Could you hit on something, Jake?
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The change of administration and also keeping up to date.
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You guys regularly keep up to date.
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Any expectations on what might change given the change of administration?
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Yeah.
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I mean, a couple things are easy, right?
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Particularly with employment.
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So you guys might remember this past year there's a big to do.
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And the FTC, the Federal Trade Commission issued a new regulation effectively banning almost all non-compete agreements.
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So we had a lot of clients at that point calling us and writing to see what's going on.
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Well, a lot has happened since then.
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The courts have effectively put that on hold.
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I don't anticipate the new administration going forward with anything like that.
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To say, being, but you don't know.
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We'll have to wait and see.
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But we've already seen, for example, that I just saw this today.
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There's a new interim head of the EEOC, the Equal Employment Opportunity Commission.
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Just a point, I think today or yesterday, and apparently has a problem with corporate Dei programs and has made that a focus of what her past life has been, and we'll make it a focus of enforcement going forward.
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That's not something we've had to contend with so far.
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So just a couple of examples.
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So you're going to see, unfortunately, dramatic shifts.
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I think, you know, you would hope the law as it evolves would do so at sort of a sort of sensible pace.
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I don't think that's what we're likely to see.
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I think we've seen the pendulum swing one way pretty dramatically, and I think we're going to see the pendulum swing in the opposite direction equally dramatically.
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Leads me to a question, Jackie, maybe for you, but maybe for everyone.
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What role does training have in terms of, you know, reducing these or what role does it have an HR risks?
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I you know, I think of Dei but now compliance, harassment, these sorts of things.
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How should businesses be implementing those.
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So it's best to have policies.
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And if you have policies, break them down and then make people aware of those policies and communicate them regularly.
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Because the more that people are aware of what the rules are and what the parameters are, you can have less problems overall.
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But think of how many times you want to answer questions over and over again.
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If you put those materials in front of people and tell them how to handle complaints and grievances, you're also going to stop a lot of the the gossiping and the problems that start when people are upset and they just go chatter to other people if they know how to direct their issues and where to go for help.
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That cuts down on a lot of it, but it really it's about tackling those issues.
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When you see the storm starting up, you really want to jump in there and find out what it's all about.
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Pool your own resources, see what you can tackle.
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Having those policies and everything is a great first step.
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So training your managers when to realize things are getting out of control.
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Somebody said that they had an FMLA issue okay, you gave me FMLA.
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They came back.
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Then they had an absence that you don't believe was real and gave you what you think is a fake doctor's note.
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You're not a doctor, so you really have to be careful how you proceed with those things, because even if it's not tied to that FMLA, you can be accused of retaliation for someone taking a legitimate FMLA leave before that.
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So you have to be careful.
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But if your managers can pick out when these things are brewing, when the storms are starting, when the chatter is happening, it helps.
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You never want to be that employer that gets dragged into the news, that gets called out for defamation, all of the issues that can happen.
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So you really need to make sure that your employees are aware how to handle claims.
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You know they have problems themselves and how your managers can spot them and how to deal with them.
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Confidentially and get things to the right people to be resolved.
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How does HR or person balance you know, being an employee advocate and being them for their but also protecting the business?
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How do they deal with that?
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So it’s the monkey in the middle I mean it's it's HR.
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Yeah.
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So, your HR people are employees too.
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So, you know, they work in the company, they want to protect the company.
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They want to hopefully do what's best for everybody involved.
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But it's a tricky step.
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And sometimes it is hard to balance that.
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You have to be very careful about being treating everybody confidentially and respectfully the more confidentially you treat things.
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So if somebody has a problem and I blab about it, they're never going to come to me with their problem.
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It's all of these things of perception.
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You have to be very careful that very tricky place.
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But, you know, in investigations, when things are going on, don't chat amongst other managers unless they're involved in it.
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There's a reason to involve them.
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So it really just comes down to, you know, kind of a business acumen, really knowing who to involve and when.
00:16:50.250 --> 00:16:52.041
But keeping things close to the vest.
00:16:52.041 --> 00:16:53.666
You can't always give reasons.
00:16:53.666 --> 00:16:58.750
Employees ask you what I just told you to communicate, but you can't tell them the reasons behind things.
00:16:58.750 --> 00:17:03.957
If there are protective reasons, you're protecting somebody else or an issue that's happening.
00:17:03.957 --> 00:17:08.875
You want to make sure things are handled professionally, quickly and completely.
00:17:09.375 --> 00:17:12.708
So I mean, honestly, that's always what I've told clients.
00:17:12.708 --> 00:17:26.000
You probably need to speak to an attorney just to see, because a small problem is going to cost a lot less, that when you've tried to solve something that might have been out of your realm, and now you know that you really need both of them.
00:17:28.665 --> 00:17:31.290
Jake, I saw you nodding on that one to you.
00:17:31.290 --> 00:17:34.290
Is that when it gets to you, when it's finally bubble to the surface like that?
00:17:34.708 --> 00:17:43.458
Often, I mean, like, there's a spectrum there, sort of business owners and managers and HR professionals who think they can handle what they can, and then they call us too late.
00:17:43.458 --> 00:17:51.500
But there's a whole host, fortunately, you know, they have a good sense of when things have gotten to a point where, hey, look, I'm not confident.
00:17:51.500 --> 00:17:55.833
Let me see if I can get some advice to give me more confidence as to how to handle it.
00:17:55.833 --> 00:17:57.625
So it really is a spectrum.
00:17:57.625 --> 00:18:02.500
I mean, you have to go back to your own workplaces and decide for yourselves, like if you have the right.
00:18:02.583 --> 00:18:18.708
We were talking about this also, which is if you have good, reliable people in-house to digest whatever's going on and make, informed decisions as to when to pull in an outside resource like us, like a consultant, like an attorney.
00:18:18.833 --> 00:18:20.040
That's fantastic.
00:18:20.040 --> 00:18:24.000
Some of us don't have that for whatever reason, either, because we're in transition.
00:18:24.000 --> 00:18:29.958
We just know that the people we have in place, or an idea we can't really rely on for that level of discretion.
00:18:30.208 --> 00:18:36.290
So and unfortunately, though, yeah, there's a segment here, we handled it the way we handle it and now we're in trouble.
00:18:36.333 --> 00:18:37.333
Well yeah.
00:18:37.333 --> 00:18:43.708
Unfortunately litigation is time consuming and is an expensive and there's just virtually no way to avoid it.
00:18:43.708 --> 00:18:48.083
Once you're at that point, you're in for a, you know, a nickel, you're in for a dime, you're in for a dollar.
00:18:48.083 --> 00:18:50.583
It's, you know, not an enviable place.
00:18:50.583 --> 00:18:56.540
But conversely, you can do everything under the sun correctly, in-house, have the best people doing the right things.
00:18:56.540 --> 00:18:58.625
You've, in fact, done the right things.
00:18:58.625 --> 00:19:03.040
And inevitably, you find yourself trying to, you know, having to defend an employee claim.
00:19:03.040 --> 00:19:05.458
So that's not a reason not to do the right things.
00:19:05.458 --> 00:19:11.915
It's just, you know, don't beat yourself up for having been sued effectively because some kind of track, it's not your fault.
00:19:12.000 --> 00:19:16.875
Employees who perceive to have been treated unfairly and they're, pretty convinced of that.
00:19:16.875 --> 00:19:19.708
You can't dissuade them, and they'll file their claim anyway.
00:19:19.708 --> 00:19:21.290
And I guess that comes to me now.
00:19:21.290 --> 00:19:28.250
So claims, before we jump there, you had an analogy that I thought was really good when we were talking before this.
00:19:28.250 --> 00:19:31.165
Could you just shed a little light on what that is?
00:19:31.165 --> 00:19:33.415
In terms of protecting a business? Yeah.
00:19:33.415 --> 00:19:41.333
So this is not my invention, but I thought it was sort of a great, simple way to think about how to mitigate personnel related risk in the workplace.
00:19:41.750 --> 00:19:44.750
And it was described to me to be, the three legged stool.
00:19:44.875 --> 00:19:45.333
Right.
00:19:45.333 --> 00:19:51.415
And, what is have good policies Jackie mentioned is in people in place who are well trained.
00:19:51.458 --> 00:20:00.750
If you can do that, you've automatically right off the bat that cut your risk of nonsense and expense, and distraction, etc.
00:20:00.750 --> 00:20:01.833
remarkably.
00:20:01.833 --> 00:20:02.208
Okay.
00:20:02.208 --> 00:20:04.790
So that's one leg of the stool is in-house.
00:20:04.790 --> 00:20:07.083
Get your act in order, right?
00:20:07.083 --> 00:20:10.415
Whether it's the right people or the right documents, policies, training.
00:20:10.790 --> 00:20:22.375
But then the second one is, also to have outside professionals who are available for once, despite being okay and inside, you need additional resources like we talked about.
00:20:22.708 --> 00:20:24.000
This one's more complicated.
00:20:24.000 --> 00:20:28.040
I've never seen this version of, you have circumstances again.
00:20:28.375 --> 00:20:31.415
You have good accountants, lawyers and insurance brokers.
00:20:31.583 --> 00:20:32.833
Is they can help you.
00:20:32.833 --> 00:20:35.833
Sometimes it doesn't even cost you anything, right?
00:20:36.333 --> 00:20:43.500
We're generally well connected when you have people who you can trust and rely on, trust and rely on them, and they can save you a lot of time and money.
00:20:44.540 --> 00:20:46.500
And then the third piece really is the insurance.
00:20:46.500 --> 00:20:51.000
So you'll have the right inside people, the right professionals to call on when necessary.
00:20:51.290 --> 00:20:53.375
Inevitably, you might have that claim, right?
00:20:53.375 --> 00:20:58.790
That despite your best efforts, you're defending a claim, then you still need insurance.
00:20:56.458 --> 00:20:58.790
And that's where it comes up.
00:20:58.790 --> 00:21:06.125
And the insurance for employment claims is often called EPLI or EPL, which is employment practices, liability insurance.
00:21:06.458 --> 00:21:15.958
And we defend our clients sometimes because they don't have insurance, we defend them directly, or the insurance company will retain us effectively to defend the insured under those policies.
00:21:15.958 --> 00:21:18.790
And those policies come in a variety of shapes and sizes.
00:21:18.790 --> 00:21:30.790
But the basic premise is for most claims you might encounter in the workplace, the policy coverage will pay for things like your lawyers and, if you're found liable, the liability.
00:21:31.165 --> 00:21:33.500
So it can be a you know, those are the three legs.
00:21:33.500 --> 00:21:36.500
It's in-house people, outhouse people like us.
00:21:36.708 --> 00:21:39.708
And then, you know, perhaps insurance.
00:21:40.415 --> 00:21:43.665
And by that way, you've really mitigated your risk to the extent you can.
00:21:43.833 --> 00:21:44.915
Yeah.
00:21:44.915 --> 00:21:49.375
While we're on, I wanted to talk about, something we've mentioned, which is right to counsel.
00:21:49.375 --> 00:21:57.625
And so, your EPL policy, it is great in the sense that you had all the defenses and someone still files a claim.
00:21:58.500 --> 00:22:10.083
You know, you've been working with Dave, you've been working with Jake, you have all your procedures that Jackie told you to put in place, and someone still files this claim, and you go to Jake, you go to Dave, and you say, hey, you know, I filed the claim.
00:22:10.665 --> 00:22:12.833
Come on. You know everybody, you know all the stories.
00:22:12.833 --> 00:22:13.665
Come help us out.
00:22:13.665 --> 00:22:18.665
And the insurance company says, oh, no, no, no, no, we have the right to counsel.
00:22:18.665 --> 00:22:20.540
We choose the counsel for you.
00:22:20.540 --> 00:22:22.290
And that can be a real fracture.
00:22:22.290 --> 00:22:30.208
That can really, you know, affect the relationship with your insurance broker, but it I'm sure can impact you guys because you have to sit on the outside.
00:22:31.000 --> 00:22:42.583
And so that is something to have a conversation with your insurance broker about is does this policy give me the right to choose counsel because you ultimately, you know, you have the good relationships with your employment counsel.
00:22:43.000 --> 00:22:45.290
Not all policies are going to give you that.
00:22:45.290 --> 00:22:50.875
And I will say that the policies that generally don't are the ones that are sort of built into a commercial package.
00:22:50.875 --> 00:23:01.458
So your commercial general liability, your commercial property, it'll be another line item and it'll be and it's great to get people, you know, it's a gateway drug for EPL coverage.
00:23:01.458 --> 00:23:09.000
It's a great way to get them started it they're hesitant, but it's not a great way to really specialize and get them the best coverage.
00:23:09.000 --> 00:23:12.083
And so we go to markets for standalone EPL coverage.
00:23:12.750 --> 00:23:16.708
We'll go to Philadelphia, go to USLI people who specialize in that.
00:23:16.708 --> 00:23:18.833
And it gives you more robust coverage.
00:23:18.833 --> 00:23:20.915
It gives you the ability to choose your counsel.
00:23:20.915 --> 00:23:30.958
And so that's that's something I just wanted to bring up because I mean experiences from you guys, I'm sure having to watch your clients go in a different direction.
00:23:28.415 --> 00:23:30.958
That's got to be challenging.
00:23:32.333 --> 00:23:32.665
Yeah.
00:23:32.665 --> 00:23:43.083
And most, most of my clients who have had to go with EPL council, they're not thrilled initially because like you said, Jimi, we're the ones who know the clients the best.
00:23:43.083 --> 00:23:44.750
We've worked with them over the years.
00:23:44.750 --> 00:23:47.040
We know the players, we know the issues.
00:23:47.040 --> 00:24:17.875
And then it has to go to insurance defense counsel who has that steep learning curve of learning all those things while having to defend, you know, a complaint, get into discovery and, on top of that, well, you know, and my clients who who have been upset about having to go with insurance, defense counsel, what they'll often do is when they've come to the realization that, okay, they have to go that way, the something will come up and they'll send me an email or call me and say, hey, this is what's going on.
00:24:17.875 --> 00:24:19.540
What do you think about that? Yeah.
00:24:19.540 --> 00:24:26.000
And it puts you in an uncomfortable situation because you have a lawyer for the insurance company who's acting on behalf of that client.
00:24:26.750 --> 00:24:32.790
But since it's been my client for the last how many years, they want to talk to me to make sure that I agree with it.
00:24:33.290 --> 00:24:36.000
So it just puts you in a difficult situation.
00:24:37.458 --> 00:24:42.540
Another thing I've found is a lot of times insurance defense counsel.
00:24:42.540 --> 00:24:54.415
And I don't want to throw, you know, for almost sure as defense counsel under the bus, but that they have an absolute boatload of claims where they have to handle.
00:24:54.665 --> 00:25:00.040
And I think they try to get as many of them off their desk as, as quickly as possible.
00:25:00.333 --> 00:25:07.040
And sometimes that results in you're just trying to settle the case as cheaply as possible.
00:25:07.040 --> 00:25:10.208
Regardless of the fact that the case had very little merit to it.
00:25:10.583 --> 00:25:18.290
And that drives a client insane because they, like we've talked about clients, a lot of clients will do their best to follow all the steps. Yep.
00:25:18.290 --> 00:25:20.290
And do everything right.
00:25:20.290 --> 00:25:28.540
And regardless, they still get sued and they want their lawyer to to back them and defend them aggressively.
00:25:28.540 --> 00:25:35.040
But then they get said to insurance defense counsel, and they find a lot of times that it doesn't happen if they're just a number.
00:25:35.040 --> 00:25:38.583
And let's just okay, we could sell this for 30,000 right now.
00:25:38.583 --> 00:25:42.750
Let's do regardless of the fact that there was no real legitimate claim there then.
00:25:43.083 --> 00:25:46.165
So it's a constant frustration of clients.
00:25:47.250 --> 00:26:00.290
And, you know, I'd like to see more clients purchase the ones who are going to purchase EPL do so with the option that they can still retain, you know, the counsel that they've used over the years.
00:26:00.290 --> 00:26:02.500
Yep. No, I agree.
00:26:02.500 --> 00:26:10.040
Another thing I was going to bring attention to on the EPL front is it is claims made basis versus occurrence basis.
00:26:10.040 --> 00:26:16.375
And I don't know if you guys run into this at all, but, most of us are used to a current basis for our policies.
00:26:16.375 --> 00:26:30.958
Well, whether it is your commercial liability, whether it is your on your home, and what that means is if there is an occurrence during the policy period, you have coverage, even if someone comes back two years later, says, I slipped and fell on your property, you know, two years ago.
00:26:30.958 --> 00:26:32.250
I'm now suing you.
00:26:32.250 --> 00:26:34.665
Your policy will respond to that.
00:26:34.665 --> 00:26:35.583
EPL is different.
00:26:35.583 --> 00:26:44.875
It's claims made, and it means that the claim and the, the claim and the reference to the insurance company need to happen during the policy period.
00:26:45.333 --> 00:26:59.500
And so what I mean is, if you get an email in December and your policy goes from one 1 to 1 one and Steve says, hey, I've been the subject of harassment, I'm going to seek monetary recognition for this.
00:26:59.500 --> 00:27:01.833
And you say, look, you know, it's the holidays.
00:27:01.833 --> 00:27:04.250
We got a lot year end.
00:27:01.833 --> 00:27:04.250
Let's forget about it.
00:27:04.250 --> 00:27:08.333
We'll talk about it in January and and we'll address it then January comes.
00:27:08.333 --> 00:27:09.083
Forget about it.
00:27:09.083 --> 00:27:11.750
February comes and you get sued papers.
00:27:11.750 --> 00:27:14.790
Well, you were supposed to report that on the previous policy period.
00:27:15.290 --> 00:27:20.540
Your carrier can reject that claim because you didn't report it when you've heard about it.
00:27:20.540 --> 00:27:22.583
And that's something that people don't understand.
00:27:22.583 --> 00:27:34.833
And so we always advise, you know, if there's an issue that you're having conversations with legal counsel about or HR, and you think that there could be a claim you should report back to the carrier right away.
00:27:35.000 --> 00:27:36.625
It's just something to be aware of.
00:27:36.625 --> 00:27:38.540
It's different than other policies.
00:27:38.540 --> 00:27:49.083
You know, what we've found to sometimes our employer clients have are reluctant to report a claim or suspected client, because, you know, we all have auto insurance.
00:27:49.083 --> 00:27:51.750
We're like, well, what if I report that claims, right.
00:27:51.750 --> 00:27:53.333
It doesn't really work that way.
00:27:53.333 --> 00:27:58.583
You know, EPLI, isn't really I don't think it's that said, rate sensitive to those types of clients.
00:27:58.583 --> 00:27:59.958
Particularly sometimes you'll report them.
00:27:59.958 --> 00:28:01.625
They're not, in fact, claims.
00:28:01.625 --> 00:28:15.083
So I would just encourage you just based on some of the experience with clients, if you think you have a bona fide claim, speak your lawyer or speak or both, or speak to your broker and just report it, there's really little, if any downside to report it.
00:28:15.458 --> 00:28:22.208
You're better off getting the toehold in and that a claim was filed and later realizing, oh, I missed the deadline or it was under an old policy.
00:28:22.540 --> 00:28:23.790
It's not the fact anymore.
00:28:23.790 --> 00:28:33.458
And then another war story is we actually have one client who's been hit with a claim, and they went from a claims made policy to an occurrence policy, and they didn't speak to their broker, wasn't the same broker.
00:28:33.458 --> 00:28:36.000
And bottom line is there was a gap in insurer.
00:28:36.000 --> 00:28:38.625
They thought they were covered in consecutive periods.
00:28:38.625 --> 00:28:43.915
But because of the the type of policy that they had changed, they didn't appreciate that.
00:28:43.915 --> 00:28:47.665
Nor nor would most of us right, insurance is complicated, right?
00:28:47.833 --> 00:28:54.125
So but if you have a competent broker, they can guide you through those issues and help you avoid a gap in the insurance. Right?
00:28:54.125 --> 00:28:59.125
You effectively paid for two policies year over year, and now you have a claim that's not covered.
00:28:59.125 --> 00:29:01.583
That's not a good position to be in 100%.
00:29:01.583 --> 00:29:04.165
And there's ways to mitigate that, without bothering everyone.
00:29:04.165 --> 00:29:05.665
So definitely. Have a conversation.
00:29:07.208 --> 00:29:09.375
With your broker.
00:29:09.375 --> 00:29:11.250
You know, what are best practices?
00:29:11.250 --> 00:29:14.083
I think this is new, Jackie, for documenting incidents.
00:29:14.083 --> 00:29:16.915
So we don't want them to turn into suits.
00:29:16.915 --> 00:29:19.583
Sometimes they do.
00:29:16.915 --> 00:29:22.208
But as things are happening, we want to make sure our ducks are in or out.
00:29:22.208 --> 00:29:24.875
What are the best practices in terms of documenting?
00:29:24.875 --> 00:29:31.958
So, you know, I, I think Jake, you said this, if you didn't documents it, if you didn't write it down, it didn't happen.
00:29:32.125 --> 00:29:37.915
So, I mean, it's completely true if you if you didn't document it, it never happens and your memory changes.
00:29:38.290 --> 00:29:44.915
So, I usually recommend it's not enough to put it in a personnel file because you put it in the file and it goes away.
00:29:44.915 --> 00:29:51.750
So I know many people in this room use an HCM platform and it has the ability to track notes on performance.
00:29:52.165 --> 00:29:56.583
You want to put that there too, so that anytime there's a conversation or something.
00:29:56.583 --> 00:30:02.875
Because what if you are no longer managing that group but a different group when you take over that group?
00:30:02.875 --> 00:30:07.250
Were you given a turnover about the attendance issues with different employees and things like that?
00:30:07.250 --> 00:30:10.250
You need to track that documentation to see patterns.
00:30:10.500 --> 00:30:14.083
You need to make that available to other managers while keeping it so confidential.
00:30:14.083 --> 00:30:27.833
So I mean, not every gross and gory details sometimes, but just documenting an incident itself or having a way that other new managers can follow those incidences to a larger company has bigger problems with documentation than a smaller one.
00:30:28.165 --> 00:30:32.333
If you're a 25 person company, it's easy to know everybody and their issues.
00:30:32.333 --> 00:30:35.333
And fortunately, probably everyone knows everyone's issues.
00:30:35.500 --> 00:30:41.665
But in a larger company where maybe groups change over and things like that, it's more important to keep that detail somewhere.
00:30:41.665 --> 00:30:44.000
So I mean, the documentation is huge.
00:30:44.000 --> 00:30:45.290
It's the first step to anything.
00:30:45.290 --> 00:30:47.333
It's the first step to your defense.
00:30:47.333 --> 00:30:49.500
It's the first step to your protection.
00:30:49.500 --> 00:30:52.333
It's it's just it's everything.
00:30:52.333 --> 00:30:57.208
Which when you call them Dave or me about these things, it's the first thing we do.
00:30:57.500 --> 00:30:57.750
All right.
00:30:57.750 --> 00:31:00.165
Tell me about the claim or rights to send a copy to me.
00:31:00.165 --> 00:31:08.208
And then we start asking you for documents because we know if we're going to defend you and be successful, that's the most valuable thing we can have.
00:31:08.208 --> 00:31:15.333
How many times you get a phone call where they want to fire somebody that day or next week, and they're like, why? Well, because they're terrible.
00:31:15.333 --> 00:31:17.750
They never work for this. It's awful.
00:31:17.750 --> 00:31:19.500
Or their attitude is terrible.
00:31:19.500 --> 00:31:20.958
Like, okay, what do they have in their file?
00:31:20.958 --> 00:31:21.208
Okay.
00:31:21.208 --> 00:31:28.915
Disciplinary actions, whatever performance evaluations look like, either they don't have them or they're all good.
00:31:29.083 --> 00:31:30.790
There's no discipline in their file.
00:31:30.790 --> 00:31:34.833
Their performance evaluations are all, you know, outstanding.
00:31:34.875 --> 00:31:37.583
But even above average.
00:31:34.875 --> 00:31:37.583
Let's say you addressed it.
00:31:37.583 --> 00:31:41.208
So you talk to somebody about a problem and you put a little memo in the file.
00:31:41.415 --> 00:31:44.040
Well, if you sat down and talked to them, have everybody sign it.
00:31:44.040 --> 00:31:44.875
Right.
00:31:44.875 --> 00:31:46.000
Because you already have the conference.
00:31:46.000 --> 00:31:48.333
It's already uncomfortable. Document it.
00:31:48.333 --> 00:31:51.333
Get the signature on the policy, get the signature on the conversation.
00:31:51.500 --> 00:31:55.083
Make sure you have that that they were made aware of their responsibilities.
00:31:55.375 --> 00:31:57.750
You're telling them write it down and have somebody sign it.
00:31:57.750 --> 00:31:58.500
Yeah absolutely.
00:31:58.500 --> 00:32:11.458
But so many managers don't want to have that uncomfortable discussion with the point, you know, it's not until it's they've enabled the person so much and they've gotten so bad that they have to get them out of there, but there's nothing there's no kind of paper trail to allow you to do that.
00:32:12.125 --> 00:32:17.333
And, you know, they expect us to just, you know, work some magic and get the person out.
00:32:17.333 --> 00:32:19.250
And it's like, well, you can always do that.
00:32:19.250 --> 00:32:22.125
But here are the risks.
00:32:19.250 --> 00:32:22.125
So that's the risk.
00:32:22.125 --> 00:32:26.165
So the risk and treat and like in a in a termination people call me all the time.
00:32:26.458 --> 00:32:27.915
Person's terrible I want to let it go.
00:32:27.915 --> 00:32:30.625
I'm like okay but you know you can.
00:32:30.625 --> 00:32:32.540
And everyone throws around at well right.
00:32:32.540 --> 00:32:34.708
We're in an apple.
00:32:32.540 --> 00:32:34.708
So stole my next question.
00:32:34.708 --> 00:32:37.375
Well so sorry, but it's not the Wild West.
00:32:37.375 --> 00:32:41.083
And if you act that way, your employees feel that, oh, they just let them come.
00:32:41.083 --> 00:32:43.415
They never warned them.
00:32:41.083 --> 00:32:43.415
And they'll hear those kinds of things.
00:32:43.415 --> 00:32:46.165
So you have to kind of start with that backtrack and everything.
00:32:46.165 --> 00:32:47.125
It's not at will.
00:32:47.125 --> 00:32:49.375
You have to have that whole first step.
00:32:49.375 --> 00:32:50.040
Another good point.
00:32:50.040 --> 00:32:54.875
You just brought up the giving them an opportunity and litigation.
00:32:54.875 --> 00:33:10.125
I know, Jake, you see this all the time to one of the worst things for your case is if your client fired somebody without giving them any notice or an opportunity to correct their behavior or their performance, it's just it's damning to the defense of the case.
00:33:10.125 --> 00:33:16.250
You know, that when my clients call and say, well, they want to get rid of somebody immediately, there's nothing else in their file.
00:33:16.750 --> 00:33:45.500
My advice is usually, let's figure out, I mean, yeah, this person might end up getting terminated three months from now or six months from now, but let's, you know, create that sort of paper trail, start documenting performance or, violations or, you know, poor attitude situations and then work it up through your progressive discipline policy until you're at that step of termination, as opposed to just ignoring the prior four steps and just cutting the loose right away. Now.
00:33:45.540 --> 00:33:56.040
And the only situations where that's ever a good idea is when it's some egregious act, like stealing or fighting, you know, something where you really have no choice but to get rid of the employee.
00:33:56.040 --> 00:34:02.458
But otherwise it's really important to give that employee an opportunity to correct whatever they're doing wrong.
00:34:03.915 --> 00:34:12.291
And so I do want to dive into employment that well, just a little bit now because we we do have the right like, I can I can just hire people.
00:34:12.333 --> 00:34:14.083
All right.
00:34:14.083 --> 00:34:17.083
But they have the right to feel a certain way.
00:34:17.083 --> 00:34:17.375
Right.
00:34:17.375 --> 00:34:21.291
And that's really 100% they can feel discriminated against.
00:34:21.291 --> 00:34:23.541
They can feel that there was harassment.
00:34:23.541 --> 00:34:26.541
They can feel it was retaliatory.
00:34:26.583 --> 00:34:29.416
So there are big risks that go with just firing them.
00:34:29.416 --> 00:34:30.500
Well, correct. Right.
00:34:30.500 --> 00:34:33.125
Yeah, absolutely.
00:34:30.500 --> 00:34:33.125
You guys know that one better than me.
00:34:33.125 --> 00:34:35.666
Yeah. I mean, everybody thinks like you said, it's a magic bullet.
00:34:35.666 --> 00:34:36.458
Is that. Well, I can do it.
00:34:36.458 --> 00:34:37.750
I want even I feel unfair.
00:34:37.750 --> 00:34:39.250
So it's it's not unlawful.
00:34:39.250 --> 00:34:41.333
So the general rule is sure I will.
00:34:41.333 --> 00:34:44.333
The law is famous for having general rules and and exceptions.
00:34:44.333 --> 00:34:45.666
Exceptions, exceptions.
00:34:45.666 --> 00:34:48.208
The exception is I can get rid of anybody at any time.
00:34:48.208 --> 00:34:53.083
Not because they're black, not because the Muslim, not because they're pregnant, not because they're disabled.
00:34:53.083 --> 00:34:55.375
Hold on. I need more hands on because. Right.
00:34:55.375 --> 00:35:12.333
So I mean, at the end of the day, yeah, there's this great general rule until you realize there are legal restrictions on your ability to exercise your rights, quote unquote, under the well doctrine, the other exceptions and could speak to this more than for the Me, is, yeah, if you have a labor union, you have a collective bargaining agreement. You're not at will anymore.
00:35:12.333 --> 00:35:21.000
You can't just fire anybody at any time where if you have an employment agreement with somebody that says something different, right, I'm going to employ you for a period of X amount of time.
00:35:21.000 --> 00:35:24.333
Well, then your rights are restricted depending what the agreement says, right?
00:35:24.333 --> 00:35:26.916
Typically that's for executives and higher level employees.
00:35:26.916 --> 00:35:28.875
And not always. So there are exceptions.
00:35:28.875 --> 00:35:32.458
And sometimes the exceptions can feel like they swallow the rule.
00:35:33.666 --> 00:35:41.250
Those exceptions apply to EPL coverage a lot to the EPL will generally exclude, you know, collective bargaining situations.
00:35:41.250 --> 00:35:45.416
It'll generally exclude contracts, written contracts with an employee.
00:35:45.666 --> 00:35:48.083
So those are things to pay attention to.
00:35:48.083 --> 00:35:51.083
You listed on your hands as many as you could.
00:35:51.666 --> 00:35:54.666
I did some research.
00:35:54.833 --> 00:36:02.333
So the top six equal employment opportunity Commission charges, you know, you listed a good number.
00:36:02.333 --> 00:36:05.541
Their age, national origin, sex, race, disability, retaliation.
00:36:06.083 --> 00:36:06.791
What do you think?
00:36:06.791 --> 00:36:12.416
The number one reason, the number one charge that the EEOC sees is you have a guess?
00:36:12.416 --> 00:36:14.916
I guess disability?
00:36:14.916 --> 00:36:17.375
I'm pretty confident. Retaliation.
00:36:17.375 --> 00:36:18.000
Could you see it?
00:36:18.000 --> 00:36:22.291
Where, you know, you see, you know, I don't know this.
00:36:22.291 --> 00:36:23.000
Here's why.
00:36:23.000 --> 00:36:28.166
It's because you're always going to get your discrimination cases, but you're but almost any more.
00:36:28.291 --> 00:36:29.875
This wasn't always a case. It's.
00:36:29.875 --> 00:36:34.916
You discriminated against me on the basis of whatever race, age, sex, disability, all these things.
00:36:34.916 --> 00:36:41.250
And when I complained about it or when I told you it was a problem or when I requested an accommodation, then you fired me.
00:36:41.250 --> 00:36:43.708
And that's the reason it was a short time period.
00:36:43.708 --> 00:36:45.958
So then now you retaliated against me.
00:36:45.958 --> 00:36:51.416
So every one of those discrimination charges anymore has a retaliation sort of component with it.
00:36:51.666 --> 00:36:55.291
So and I think there's a couple extra just straight retaliation charges.
00:36:55.291 --> 00:36:57.333
Right. Claims. So 100% you. Yeah.
00:36:57.333 --> 00:37:00.333
More than half the claims have a retaliation charge on them.
00:37:00.583 --> 00:37:04.500
But some of them have the discrimination and a retaliation acts with it.
00:37:04.875 --> 00:37:06.875
Yeah. So, percentages add up to more than one.
00:37:06.875 --> 00:37:07.541
Yeah. Yeah.
00:37:10.708 --> 00:37:13.833
Okay, let's do two and a if anyone has any Q&A.
00:37:13.833 --> 00:37:16.833
Otherwise I can keep asking them questions all day.
00:37:17.750 --> 00:37:20.166
So I do have a question.
00:37:20.166 --> 00:37:22.250
Make a comment. And this is a hard one.
00:37:22.250 --> 00:37:32.250
Like literally as we speak right from the, we say that you write it down, we don't write it down.
00:37:32.708 --> 00:37:40.500
But because I do, write it down, doesn’t necessarily that's true, but because we're dealing with where we've got a document that we've requested signatures.
00:37:40.500 --> 00:37:46.791
Document the refusal signatures, let’s say it documented work.
00:38:11.541 --> 00:38:14.708
It's all, I'm back to that point.
00:38:14.708 --> 00:38:15.541
Yeah. Okay.
00:38:15.541 --> 00:38:22.500
This now has, And you're backing up with policies and providing evidence.
00:38:22.583 --> 00:38:23.666
Okay.
00:38:23.666 --> 00:38:25.250
We need everything we have.
00:38:25.250 --> 00:38:26.958
We we help with supporting.
00:38:26.958 --> 00:38:29.958
That might be the category where you're doing everything right.
00:38:30.291 --> 00:38:31.083
But for more.
00:38:33.916 --> 00:38:34.208
Yeah.
00:38:34.208 --> 00:38:42.500
I mean, that's the least you can do is document, you know, the pushback I often get, from managers, in-house, people like Jake, you tell me, document everything.
00:38:42.500 --> 00:38:45.208
I documented everything that happened.
00:38:42.500 --> 00:38:45.208
I thought, which is a problem.
00:38:45.208 --> 00:38:46.750
Could possibly result in what?
00:38:46.750 --> 00:38:49.750
I have no, no time to do my job right.
00:38:50.125 --> 00:38:53.000
And my response to them is, just keep at it.
00:38:53.000 --> 00:38:54.666
It doesn't have to be Shakespearean, right?
00:38:54.666 --> 00:38:57.291
You don't have to type it all out.
00:38:54.666 --> 00:38:57.291
It can be handwritten.
00:38:57.291 --> 00:39:00.916
It can be on a napkin, frankly, not ideal, but do it right.
00:39:01.041 --> 00:39:03.500
Much better than nothing. People refusal.
00:39:03.500 --> 00:39:04.708
I've never really understood that.
00:39:04.708 --> 00:39:14.791
My only sort of suggestion associated with that is on the signature line, say, you know, this just acknowledges that I've been spoken to about this, not that I agree to it. Right.
00:39:14.791 --> 00:39:16.833
And some people don't want to sign because they're fearful.
00:39:16.833 --> 00:39:17.625
They sign it.
00:39:17.625 --> 00:39:21.416
You're effectively agreeing that everything that is in the document is accurate.
00:39:21.416 --> 00:39:22.500
It's true.
00:39:22.500 --> 00:39:24.958
And look, you can leave for another day.
00:39:24.958 --> 00:39:27.750
The fight over what's true in that document or not.
00:39:27.750 --> 00:39:29.333
Do your best to get it down.
00:39:29.333 --> 00:39:32.333
And, you know, sometimes you investigate things and you don't.
00:39:32.500 --> 00:39:39.625
You know, at the end of your exhaustive, you know, investigation, you've done everything you can think to do and you're still not even sure what really happened.
00:39:39.708 --> 00:39:42.083
Right? Like, you can't tell objectively.
00:39:42.083 --> 00:39:45.208
I can't say I can't corroborate whether it's yes or no.
00:39:45.208 --> 00:39:45.750
Right.
00:39:45.750 --> 00:39:49.541
But at least have your documentation and save it and put it in your back pocket.
00:39:49.833 --> 00:39:52.083
It can be really useful to you, i.e.
00:39:52.083 --> 00:39:58.250
us, when an employee takes it a step before and files a later claim, we can still use it. It's still helpful.
00:39:58.250 --> 00:40:01.250
I wouldn't get too hung up on whether they're signing it or not.
00:40:01.291 --> 00:40:03.291
Document that whole thing like you're doing.
00:40:03.291 --> 00:40:04.333
That's the most you can do.
00:40:04.333 --> 00:40:08.833
If they don't want to play ball, they won't play ball right and they probably won't be employed very much longer.
00:40:08.833 --> 00:40:17.875
So that plus, remember, if the company does get sued after you do the investigation, it's not the burden of the employer to show that in the end, you are right.
00:40:18.750 --> 00:40:26.791
You just have to show that you didn't discriminate against the employee, that you treated that fairly, conducted a fair investigatory process, and arrived at a certain conclusion.
00:40:26.791 --> 00:40:31.291
You're not always going to be right, but that doesn't resolve legal liabilities, because just because you were.
00:40:33.208 --> 00:40:47.333
We say that you said things that we we try to do is when we do have a conversation, people will follow up with an email just to, you know, put in the work and say, as we spoke today about like like like like what?
00:40:47.458 --> 00:40:48.083
And send it out.
00:40:48.083 --> 00:40:54.500
So just it also gives them the opportunity to write back and say, can we have another conversation about that?
00:40:54.500 --> 00:41:02.250
So it's also an acknowledgment is that but the I always say please confirm that this is your understanding.
00:41:02.833 --> 00:41:06.166
Try to get them to respond to it so you can mark it for read receipt.
00:41:06.166 --> 00:41:08.833
But you want to understand you're on the same page.
00:41:08.833 --> 00:41:14.583
If you've asked that employee to confirm that that is what they understood and they took away from it as well, great.
00:41:14.583 --> 00:41:22.916
If they have a question to to come back to you, because if you get them to respond to it, they're acknowledging that they had the conversation.
00:41:22.916 --> 00:41:32.541
And it even helps if you just start those emails, those letters with, as we discussed today, comma, and then say whatever, whatever happened, period.
00:41:32.708 --> 00:41:38.291
If they don't respond, there's another, not another document from them that you can imagine once it gets to us.
00:41:38.291 --> 00:41:41.291
That looks pretty good to anybody listening to the case later on.
00:41:41.625 --> 00:41:50.125
Oh, you confirmed what exactly happened in a document and the employee didn't think it was important enough to respond, correcting your understanding of what happened.
00:41:50.458 --> 00:41:52.625
That's pretty good evidence in most cases.
00:41:52.625 --> 00:41:55.125
Yeah. Not getting another rule is that obvious, but it's a tip.
00:41:55.125 --> 00:42:05.291
Contemporaneous writing that you prepared, which you know, will lend itself to be more at greater chance of it being admissible if there is litigation down the road.
00:42:05.291 --> 00:42:10.458
The fact that, you know, right after your meeting, you sent this out because everything was fresh in your mind.
00:42:10.500 --> 00:42:14.125
So it increases the chances that what you put in there is actually true and accurate.
00:42:30.541 --> 00:42:30.791
Yeah.
00:42:30.791 --> 00:42:32.333
Jake there's no.
00:42:32.333 --> 00:42:35.458
I mean but there's something called a wiretap back in Pennsylvania.
00:42:35.541 --> 00:42:42.458
So with everyone knowing the media, this is like a sign posted that this is being recorded.
00:42:42.708 --> 00:42:44.291
If everyone's consenting.
00:42:44.291 --> 00:42:46.666
To interview you about this book, wait.
00:42:46.666 --> 00:42:48.916
As long as they consent to it, they have. To consent to it.
00:42:48.916 --> 00:42:50.833
Knowledge and consent in order to be recorded.
00:42:50.833 --> 00:42:53.041
But sure, let me see what we. Yeah.
00:42:53.041 --> 00:42:57.291
So you start off, see, I said on this, I wouldn't want to do.
00:42:57.541 --> 00:42:58.916
It, but typically you're not going to get.
00:42:58.916 --> 00:43:01.125
Yeah they usually won't consent.
00:43:01.125 --> 00:43:02.791
If you're sitting an employee down.
00:43:02.791 --> 00:43:08.000
And are we talking about like I have a complaint and you're sitting down to talk to me and you want me to consent to a.
00:43:09.375 --> 00:43:11.875
I won't say I don't want their lawyer there.
00:43:11.875 --> 00:43:13.416
No, I don't want. That.
00:43:13.416 --> 00:43:16.000
Let me give you a good reason not to do that. Almost.
00:43:16.000 --> 00:43:20.416
In any case, you're breeding mistrust, period.
00:43:20.416 --> 00:43:21.333
End of story.
00:43:21.333 --> 00:43:26.541
Your other employees realize that you're taking the opportunity to record them at any given time.
00:43:27.208 --> 00:43:28.500
I don't know what you're going to get back.
00:43:28.500 --> 00:43:30.000
I don't know who's going to stay employed.
00:43:30.000 --> 00:43:32.291
I mean, people recording me, I'm leaving.
00:43:32.291 --> 00:43:33.541
I don't care for what reason.
00:43:33.541 --> 00:43:37.000
And frankly, you don't really need it if you're doing the documentation.
00:43:37.208 --> 00:43:44.583
This will confirm, as we discussed, it's my understanding based on your you know, you know, what you said today that blah, blah, blah, that's going to be plenty.
00:43:44.583 --> 00:43:47.250
I think there is this issue of what state are you in?
00:43:47.250 --> 00:43:49.625
There's a wiretap law.
00:43:47.250 --> 00:43:49.625
Jersey, by the way, is different.
00:43:50.750 --> 00:43:55.875
Pennsylvania is what they call a two party consent state or all party consent, say Jersey one party, and you need one.
00:43:56.250 --> 00:44:03.416
I eliminate all that complexity and and nuance and confusion and just get it done if you need a witness.
00:44:03.416 --> 00:44:04.250
That's what I like.
00:44:04.250 --> 00:44:06.333
So you're having some of these meetings, right.
00:44:06.333 --> 00:44:10.791
And ordinarily you think, well I can have this one on one if it's important enough.
00:44:10.791 --> 00:44:12.000
It's a termination meeting.
00:44:12.000 --> 00:44:14.458
For example, or something resulting in it.
00:44:14.458 --> 00:44:20.666
If you can have two people in the room on your side, that's far better than recording them.
00:44:18.000 --> 00:44:20.666
Believe it or not.
00:44:20.666 --> 00:44:22.666
Yes, you're recording might have more.
00:44:22.666 --> 00:44:36.291
You know, verbatim what was said, but I think for evidentiary purposes, for proof purposes, if you ever need it, having that other body in the room taking some notes, you're in as good shape as if you recorded them in most instances without breathing.
00:44:36.291 --> 00:44:39.958
This sort of underlying notion that we don't trust you.
00:44:39.958 --> 00:44:44.875
So we're recording you, right, which, you know, filters through the employee population generally.
00:44:44.875 --> 00:44:47.750
And I think that's sort of a bad message to send.
00:44:47.750 --> 00:44:53.541
And I just think a lot of businesses rehab families like that.
00:44:53.541 --> 00:44:55.041
So you're getting recorded.
00:44:55.041 --> 00:44:59.458
Well, ironically, audio is different than, art than visual.
00:44:59.458 --> 00:45:03.666
Yeah. So, I have a question.
00:45:03.666 --> 00:45:05.291
So you've done everything right.
00:45:05.291 --> 00:45:08.291
They're filing suit against you anyway.
00:45:08.500 --> 00:45:11.708
How often do they see some sort of payout?
00:45:12.666 --> 00:45:18.000
And and I think I know the answer to this, but how often are they getting some sort of financial compensation?
00:45:18.375 --> 00:45:21.375
More frequently, when they go to EPLI.
00:45:23.708 --> 00:45:51.500
No. The reality is, a lot of the time, I would say, because not only insurance companies but employers, they're if they're not aware at the beginning, they're aware after speaking to Jake or I or whoever the lawyer is, what the cost to defend a lawsuit are, you know, a lot of these cases that we're talking about discrimination, harassment, retaliation, they involve fee shifting statutes.
00:45:51.666 --> 00:46:02.250
So if the plaintiff is eventually successful in any of their claims, they can get their attorney's fees paid by the losing part of the company, in addition to the company paying their own attorney's fees.
00:46:03.208 --> 00:46:13.291
That always serves as a huge deterrent for a company to go through and battle it to the very end, you know, on top of that, you have all the other damages in these statutes back pay, front pay.
00:46:14.666 --> 00:46:18.375
Emotional damages for emotional harm to court compensatory damages.
00:46:18.666 --> 00:46:20.916
Your statutory damages.
00:46:20.916 --> 00:46:30.416
You know, there's when you do this, the employers and the insurance companies will always ask at some point in litigation what's what's the worst case scenario.
00:46:31.250 --> 00:46:37.916
And you hate to ask that question because the potential damages in these cases are significant.
00:46:38.250 --> 00:46:40.791
You know, six figures, seven figures.
00:46:40.791 --> 00:46:42.583
Well, you always have to let them know.
00:46:42.583 --> 00:46:44.875
That's if all the stars align.
00:46:44.875 --> 00:46:47.625
And very rarely does that happen.
00:46:47.625 --> 00:46:50.833
You know, chances are it's going to be something far less than that.
00:46:50.833 --> 00:46:55.083
If they lose But they still just think of the worst case scenario.
00:46:55.083 --> 00:46:57.791
And that drives them to try to get a settlement eventually.
00:46:57.791 --> 00:47:03.500
I mean, when a case is initially filed, emotions are high and they're like, I'm fighting this.
00:47:03.500 --> 00:47:05.250
There's no way we're going to settle it.
00:47:05.250 --> 00:47:12.625
You know, after a year of litigation, the tune usually changes a little bit and they're like, oh, you know, another one, another bill coming in.
00:47:12.916 --> 00:47:15.500
We're a year into this.
00:47:12.916 --> 00:47:15.500
My employees are stressed out.
00:47:15.500 --> 00:47:20.000
You know, we're focusing on this lawsuit as opposed to the work we're supposed to be doing.
00:47:20.000 --> 00:47:22.375
There's so many distractions involved.
00:47:22.375 --> 00:47:24.250
And at some point it kind of wears people down.
00:47:24.250 --> 00:47:27.000
And they then they decide they want to settle the case.
00:47:27.000 --> 00:47:29.083
But I do think it depends on what's at stake.
00:47:29.083 --> 00:47:32.083
Unfortunately, I've worked with a number of companies that have been sued.
00:47:32.583 --> 00:47:35.833
And, and you're right, you know, in the beginning, everyone wants to fight it.
00:47:36.083 --> 00:47:37.833
You know, they have the documentation.
00:47:37.833 --> 00:47:40.541
They they weren't at fault.
00:47:37.833 --> 00:47:40.541
They want to prove it.
00:47:40.541 --> 00:47:48.083
But, I mean, I've worked with employers that stuck it out, and they really did clear their name because there was no case on the other side.
00:47:48.083 --> 00:47:50.583
And sometimes you need to do that.
00:47:48.083 --> 00:47:50.583
But it it depends.
00:47:50.583 --> 00:47:52.041
Is it going to ruin the business. Is it.
00:47:52.041 --> 00:47:54.125
But what else is it going to impact.
00:47:54.125 --> 00:47:56.333
So these scenarios aren't the same.
00:47:56.333 --> 00:47:57.708
Every single one is different.
00:47:57.708 --> 00:47:58.333
Yeah.
00:47:58.333 --> 00:48:04.166
And I ask that because you do get people who want to fight and get really mad that there was any sort of payout.
00:48:04.166 --> 00:48:10.375
But there is, you know, the the burden on management being tied into this for an extended period of time.
00:48:10.750 --> 00:48:12.250
So thank you.
00:48:12.250 --> 00:48:13.250
I see Andrea there.
00:48:13.250 --> 00:48:15.083
Do we have one more question?
00:48:15.083 --> 00:48:18.875
Oh, what one more question out.
00:48:22.375 --> 00:48:23.250
Wait, wait a minute.
00:48:23.250 --> 00:48:24.666
This is Tim Charles, right?
00:48:24.666 --> 00:48:25.541
Yeah.
00:48:25.541 --> 00:48:28.333
He's a shareholder attorney at the time.
00:48:28.333 --> 00:48:30.791
You know, I mean.
00:48:30.791 --> 00:49:00.833
Absolutely.
00:49:01.500 --> 00:49:09.750
I've had many cases where the email or letter that went out to the client, the employee had some statement in there.
00:49:09.750 --> 00:49:12.750
When you look at it after the fact and you're like, oh yeah.
00:49:12.833 --> 00:49:14.000
Or you leave something out.
00:49:14.000 --> 00:49:17.000
Or they leave it out, either it's misstated left out.
00:49:17.541 --> 00:49:23.166
And, you know, sometimes it's something that can really come back and bite you in a lawsuit.
00:49:23.166 --> 00:49:26.625
It's cheaper at that stage than after the mistake.
00:49:26.666 --> 00:49:27.750
Yeah.
00:49:27.750 --> 00:49:31.583
Because all right then.
00:49:31.583 --> 00:49:32.541
Thank you to the panel.
00:49:32.541 --> 00:49:35.000
This was great.
00:49:32.541 --> 00:49:35.000
I hope you all got something out of it.
00:49:35.000 --> 00:49:37.708
There will be, you know, a meet and greet afterwards.
00:49:37.708 --> 00:49:46.041
So please stick around with that for a test, not just for, you know, thank you, everyone for coming out.
00:49:46.041 --> 00:49:47.458
And thank you to the panel.
00:49:47.458 --> 00:49:50.458
Thank you.
00:49:51.750 --> 00:49:53.041
Yeah.
00:49:53.041 --> 00:49:56.333
And, just finished finish up there.