Emerging Litigation Podcast

One Size Fits None in Modern Employment Law with Jerry Maatman

• Tom Hagy • Season 1 • Episode 117

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Numerous aspects of the modern workplace are evolving fast—and so are the legal risks.

In this episode, I get to speak with Gerald L. Maatman, Jr.—a nationally recognized employment litigator and author with 40 years in practice. A partner with Duane Morris in Chicago, he has defended some of the largest “bet-the-company” class actions in the U.S. and is known for helping employers anticipate and prevent large-scale litigation risks.

We talk about how remote work, ADA compliance, workforce reductions, arbitration, DEI policies, and AI tools are reshaping employment law.

We discuss:

▪️ How courts are redefining “essential functions” in the remote work era.
▪️ ADA compliance and running a defensible interactive process.
▪️ WARN Act risks in distributed and remote workforces.
▪️ Why RIFs require careful planning and statistical review.
▪️ Arbitration strategies post-Epic Systems—and where they fail.
▪️ Legal boundaries for DEI programs in a shifting landscape.
▪️ AI in hiring and performance management—and emerging compliance risks.

From policy design to litigation exposure, the message is clear: decisions must be documented, consistent, and defensible.

If you manage people, risk, or compliance, this episode offers practical guidance for navigating today’s complex employment landscape.

🙏 Special thanks to Jerry for taking the time to share his insights and experience with us. His energy and enthusiasm for the subject are inspiring.

To access a roadmap for navigating employment law complexities while building stronger, more productive workplaces, check out Jerry's book, 'The Employment Law Manual: A Practical Guide for Business Owners, Managers, and Executives'.

Tom Hagy
Host of The Emerging Litigation Podcast

______________________________________

Thanks for listening! 

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If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com.

Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. 

Setting The Risk Landscape

Tom Hagy

Hello and welcome to the Emerging Litigation Podcast. I'm your host, Tom Hagy. A reminder that economic uncertainty is no longer theoretical. Is it ever though? So the companies are hiring more cautiously, revisiting headcount plans and making decisions under pressure. Aren't we always? But often these decisions are done quickly, and sometimes imperfectly. Can you imagine? At the same time, courts across the country are reshaping what the modern workplace is allowed to look like. Over the past year, judges have grown increasingly skeptical of blanket return to office mandates, especially where employers spent years proving that remote work was not only possible, but productive. In disability accommodation cases, individualized analysis matters, documentation matters. Now layer on top of that, the accelerating adoption of artificial intelligence. Employees are anxious, managers are uncertain, executives are hearing bold predictions about efficiency, headcount reduction, and automation, often before the legal implications are fully thought through. Even where AI hasn't replaced jobs outright, it's already challenging how work is evaluated, monitored, and documented, raising new compliance questions for employers who may not realize they're creating legal exposure in real time. Put all that together, you've economic stress, shifting workforce expectations, remote work disputes, disability accommodations, AI-driven decision making, and you've got a perfect storm for employment litigation. Not because employers are acting in bad faith, but because the rules are changing in many of the policies. I think anybody who's uh paying attention knows that. So that's the backdrop of our conversation today. I'm joined by Jerry Maatman, a prominent employment attorney with Dwayne Morris in Chicago. He's somebody who has spent decades more than four, helping employers understand where the legal pitfalls and traps are before they fall into them. Jerry advises companies nationwide on high-stakes employment issues from workplace compliance and accommodation decisions to litigation strategy when things go wrong. In our conversation, we talk about why one size fits all policies are more dangerous than ever, how courts are evaluating remote work and disability accommodation claims right now, and why managers and HR teams need to slow down just enough to document their reasoning, not just their conclusions. We also discuss how economic uncertainty changes the litigation landscape, and why cost-cutting decisions made in a hurry off and come back later as lawsuits. We also talk about Jerry's new book, The Employment Law Manual, a practical guide for business owners, managers, and executives. It's on shelves now. Uh digital shelves. So uh it's designed as a practical plain English guide for managers, HR professionals who don't want to learn employment law the hard way. No one likes to learn the hard way. It's about understanding the rules before decisions turn into disputes and disputes turn into litigation and so forth. I'll put a link for more information about the book in the show notes. I also asked Jerry to spend a little bit of time describing what goes into the book, uh what kind of problems he's trying to solve, what experience he draws on, and that kind of thing. So that is uh going to be the first couple of minutes of the podcast. But if you manage people, advise a business that workplace policy or are trying to navigate a workforce reshaped by remote work, AI, and economic uncertainty. This conversation is for you. It's more fun than it sounds. Here is my discussion with Jerry Matman of Dwayne Morris. Hope you enjoy it.

Documentation That Survives Juries

Jerry Maatman

Wonderful to be here today on your podcast. Thank you so much for inviting me to talk about my new book published by Wiley and Sons, The Employment Law Manual. It's been a labor of love for the past 44 years. And I've been asked by numerous clients and colleagues why did you invest the time and effort to put it together? And to me, it was to give back to all the clients who called me on the phone and emailed me or sent me letters before the age of the internet over the last 44 years and who posed vexing problems of how to deal with workplace situations. And um I kept a mental checklist in my mind over the years. And so what I wanted to create was a uh survival guide, something that uh would help managers, supervisors, owners of companies, HR professionals to answer those vexing questions with the um goal of avoiding legal problems, to manage employees and manage workplaces in a way to be what I call an employer of choice, uh, to be someone who is a great leader and who wakes up every morning trying to uh assist uh your talent at your workplaces uh achieve uh the best they can be as employees and to manage people in an effective and practical way uh to avoid uh lawsuits.

Tom Hagy

One thing that strikes me uh for somebody who's been doing this for more than four decades, you haven't lost your enthusiasm for it.

Jerry Maatman

I love this area. I live it and breathe it on a daily basis. It's a very people-centric area of law. It's constantly evolving, very interesting uh in terms of uh before the internet, I was a lawyer, and I remember the very first time a computer went on my desk and someone called me on the phone and said, Jerry, about two months ago I sent you an email and you never answered it. To which I responded, Well, what's an email? And then found it and answered it and said, Well, I'll never do that again. Uh and now uh uh in the digital workplace, it's found its way into lawsuits. And um, there's even a school of thought where people are managed uh through emails. Uh if they're remote workers where there's no human touch between a supervisor and the worker. So there's a lot in the book about email, about how to document things, uh, loose lips, sync shifts, the types of things that managers, supervisors, should not uh puts in emails. So um my vantage point, uh, it's written in a somewhat um purposeful fashion of what I've learned through trial and year in advising companies and counseling them, the proverbial Friday afternoon phone call at three in the afternoon of I want to fire John Smith and I want to do it in the next 15 minutes. Are there any laws that apply to me or my decision to do that and how to help managers, supervisors, businesses navigate the kind of thicket of state, federal, and local employment laws when they make key personnel decisions? But it also um pivots off my experiences in trying cases to juries and to judges to see what works in front of a jury. Because remember, if an employment lawsuit is filed, uh eventually they'd be heard by 12 jurors who are pulled off the voter rolls uh or off the streets, so to speak. Probably most don't own a business, most aren't making tough personnel decisions, many aren't balancing budgets, and what might seem reasonable or what might work in the corporate boardroom looks a little different in the jury room in terms of the way in which jurors look at corporate documentation and look at corporate decision making. So one of the pull-out chapters is something I call the uh poster board rule of documentation. What might your memo to the file, your uh uh note to the employee look like if blown up on a three by five foot poster board and it's looked at by members of the jury uh who somewhat uh post-COVID era are distrustful of corporations and naturally side uh with plaintiffs. And so what I tried to do is make a very practical, user-friendly survival guide for managers who have to make these personnel decisions, both to become better managers, uh, to be fair uh and reasonable, and also pass the legal test. If they're called to task by the EEOC, the government in a discrimination charge, if a lawsuit is filed, how is their explanation? How is their method of managing gonna fly uh in front of those uh juries? So basically it's how to manage within the law and how to avoid uh legal problems.

Tom Hagy

I've got a number of things. Now, um so one, you mentioned about remote work and things like ADA accommodation, the essential functions issues. So we're seeing seeing remote work uh not so much as a perk, but as a sometimes it's a potent it's it's an ADA accommodation for folks. Uh there was a case where a jury awarded 200 or $22 million in an ADA uh on an ADA theory tied to uh denied work from home requests, and now it's on appeal. But for corporate counsel, what's the key takeaway? Uh especially how to evaluate whether you need to be in the office as an essential function?

Jerry Maatman

Uh that's a great question, certainly one that uh vexes many managers, supervisors, and corporate counsel. And I think the watchwords or uh kind of less is more advice I give them is that is a very individualized personnel decision and one size does not fit all. And that a company needs to be flexible in this day and age in accommodating someone who may have an ADA protected disability in terms of their workspace, their work schedule, the policies, procedures that apply to them. And the case you refer to as the very famous or infamous, depending on how one looks at it, Wells Fargo case, where a jury uh gave damages of over $22 million uh to the remote worker. And so, you know, one of the issues uh pre-COVID was hey, uh under the law, as your boss, I can force you to come into the office because work gets done in the office. And what COVID taught the world was it's possible to pivot to a remote, remote work location and still get the work done. And so arguments that would resonate with judges prior to COVID about it was a legitimate requirement to have an employee come into the office to attend meetings, to interact with workers, has kind of been uh relegated to the dustbins post-COVID because even judges and their law clerks worked remote and often do court hearings on a remote uh basis. And so uh the ADA uh principles that applied before COVID have been turned on their head, and that sort of case law precedent uh doesn't apply anymore. And it's the rare situation where an employer can pull off the argument and win that this job is so important, so essential that it can't be done via Zoom, via remote basis. Uh, and so workers tend to come out on the winning side of that argument, and employers have to be Uber responsive in terms of um crafting an individualized situation that can work for someone with an ADA protected disability who needs to work remotely.

Tom Hagy

Great. Yeah, um, yeah, I mean there's certainly uh advantages. Uh you and I both have been working long enough, and um, I I know I remember very well being very young as as an employee, and uh the benefit that there was of being, in my case, it was journalism, and I was sitting next to two old guys, one was 41, the other was 45, and but just learning so much from them by just hearing them on the phones and getting quick feedback.

Jerry Maatman

Tom, you illustrate a great point. And if I want to be the best manager I can be, there's a bit of that physical disconnect between my team that's in the office and that remote worker who's behind their screen, and efforts to include that remote worker in team meetings, in events, even if it's by Zoom, even it's in the chain of information or circle of trust, requires hard work by managers because um that's human capital. You don't want it to go to waste. And there's this sense of out of sight, out of mind, but they shouldn't be out of mind. They're part of the team. And so some of the tips and some of the principles that um I talk about in the book about remote work are striving to include those people so that they feel like they're full participants in the work environment.

Managing And Including Remote Teams

Tom Hagy

Yeah. I have seen people use use platforms like you and I are talking, and um there's not a huge difference between me sitting there in your office and us doing this right now, but um you can't see the mess around me. That's the only thing. But the uh but it it it when people do it right, it's it's just super effective. I think that it is a way to hide sometimes if somebody's introverted. Um I notice a lot of a lot of folks now, like my nephews, and you know, they prefer text and uh things like that, but but man, getting getting um uh face-to-face like this is just is super helpful. It's a decent uh maybe substitute. Sometimes it's more effective. And it's certainly, you know, if somebody has a you know, like it snowed like crazy just now, when I was working uh as a younger guy, a snowstorm like this would mean it might take somebody three hours to get to the office.

Jerry Maatman

I agree, and I think there's a generational component to it. One of the things that I teach in my uh class at Northwestern is picking a jury and knowing that people in their 20s, certainly in their 30s, may get their news off their iPhone. They're used to little uh snippets of information, and the people who still read the hard copy newspaper from front page to back page and the way they socialize with that newspaper, uh, there are some people who do it, but not as many. And so the ability to seize the attention of a juror is much like if you're a manager, how do you engage with someone who is working remotely in their 20s on their iPhone? Uh, and so it takes a lot of work by a manager to kind of accommodate and acclimate someone like that and make them a full participant in the workplace. I guess it'd say if you're a manager, if it was easy, it'd be easy. And you know, it's tough these days being a manager. Yeah, lots expected of you.

Tom Hagy

Yeah, and and wise wise employees in their first years are wise to take the initiative and and help the manager make it work too. Um talk about the the return to uh return to the office policies. The EOC is uh is is dealing with this issue. There's EEOC versus total system services. Uh the court emphasized that there's a difference between a general policy for everyone and an individualized accommodation analysis. So how should employers structure that interactive process so a return to office policy doesn't become exhibit A in a lawsuit?

RTO Policies And Individualization

Jerry Maatman

Very interesting question. Interesting dynamic in terms of the EOC uh being viewed as the tip of the spear to enforce anti-discrimination laws in the workplace. But the EEOC is a political creature, and the EOC under President Biden was very different in terms of its agenda, interest, enforcement philosophies than the EEOC currently under the Trump administration. But uh coming out of COVID, the EEOC took the view of it's not um inappropriate for employers to ask employees to return to work and have a policy or process to do so. But just like accommodations for remote workers, there needed to be accommodations for people uh with disabilities in terms of that return to work policy. And so if you encapsulated a lot of different lawsuits and case law that emanated from that enforcement philosophy, it would be that employers could have a policy, but it had to be flexible and had to accommodate individuals. And so we do have a body of case law that kind of governs the process now. And I find if you're an employer, you can't insist on uh one size fits all return to the office policy without running a foul, probably, of either the ADA on a federal level or on a state law level. Whether or not the Trump administration would still be apt to file a lawsuit today over that issue remains to be seen. But the number one claim brought uh before the EEOC and the number one lawsuit brought by employees involving discrimination is disability discrimination under the ADA. It's nearly 40% of all the lawsuits uh brought against employers. And so if your HR department, if your company needs to get at least one thing right, it has to get right the process of dealing with employees who may have an ADA-protected disability. How to get reasonable accommodations right, how to be flexible in your policies, pays dividends because that's the number one pressure point of lawsuits these days.

Tom Hagy

So are you seeing any themes in the missteps that companies and managers might make, like the speed test and job duty assignments or inconsistent exceptions?

Jerry Maatman

Well, I'm seeing that uh sometimes a little bit of an emotional reaction of I'm sick and tired of you working from home, time for you to come back, everybody else has to come back, and this is the policy, and I'm not making exceptions for you, and not realizing that the exception is legal driven and that the law uh affords people that sort of priority. And then when an employee complains or registers a grievance about, hey, I I want my uh accommodation, then it leaks into what's called a retaliation claim, where the person who's trying to exercise their rights is treated adversely. And so what I say is retaliation is about making uh a dog of a case a really good case. You could have not much of a discrimination case, but because the messenger, so to speak, is killed or treated adversely, all of a sudden they have a great retaliation case. And retaliation cases are very difficult to defend. And where I see retaliation coming from is supervisor managerial frustration with the employee and in essence trying to uh lash out at them, and that's just verboden in America. Everybody has the right to make that sort of complaint, and they're statutorily protected under the law for exercising their rights. And so you might not agree with them, you have to respect the fact that they're doing it. And so I see the one-to-punch of a failure to accommodate followed by a retaliation charge being the sort of devastating one-to-punch that a lot of companies are experiencing in this space.

Tom Hagy

Yeah. Well, if we could move, let's move to a labor issue, the Warren Act, um, which requires a 60 days notice for certain plant closings and mass layoffs for employers um over 100 uh employees. Uh, courts are not testing this. And so there was a uh a case, Smith versus uh Zulili, is uh plausibly qualified as affected employees tied to the facility, even though they didn't work at a single physical site. So, what's your what's your practical guidance uh for corporate counsel planning restructurings? How do you map remote workers to a single site exposure and avoid surprises?

Retaliation Traps And Missteps

Jerry Maatman

So your question underscores a very vexing area of compliance for companies in any sort of workplace law, and that is if my company's brick and mortar building is in New York, but I have a remote worker in Montana reporting to a supervisor in that brick and mortar building in New York, um, is that person in Montana part of the employee population in New York under various laws? And is that person protected by Montana law or New York law or both in addition to federal law? And Warren, in the case you just mentioned, is one microcosm of that compliance problem of judges having to draw lines where Congress, when it passed the law, never even remotely thought of the notion of remote work or someone being tied to an office uh through the The internet, but not through a physical connection. And so that's an example of a judge drawing the line saying if you need to have at least 100 people that are impacted, and um you have people who aren't at that facility but are reporting to supervisors in that facility, actually have to count them in the employee count to determine whether or not notice is needed. And if notice is needed, the person working in Montana remotely needs to get that notice. And so it's uh a layer of cyberspace superimposed on top of brick and mortar statutes passed a long time ago before these concepts ever came. And that's happening with many, many areas of law where law can't keep up with technology. That's a great example where the technological caveat to that holding required the employer to comply with Warren in a way that wasn't intuitive in terms of how they thought about it.

Tom Hagy

Okay. Well, is there something that employers should do early on in anticipation of these kinds of things, like with org charts? Go ahead.

Jerry Maatman

Warren being a prime example of one, but not the only law that you have to go through a check-the-box exercise in terms of implementing a RIF to make sure you navigate all these laws and don't inadvertently violate it. And so in this day and age, if you have a RIF involving a significant number of people, it's not uncommon for companies to hire statistical consultants to so-called run the numbers to make sure that protected category employees are not adversely impacted and that uh uh the number of women, uh minorities, diverse employees included are what they ought to be in terms of the entire population. And so RIFs tend to be high stress uh for workers and they tend to be high potential for employers in terms of spiking legal claims and preparation is all important. I think uh to me, uh if you're not spending at least a month or two getting ready for the RIF, you're probably doing it a little too quickly.

Tom Hagy

The gig economy is obviously uh a major uh growing part of the economy anyway, and so it brings up issues of classification and and uh arbitration. So on gig workers, the courts are still grappling with classification and whether arbitration agreements apply. What developments are you tracking there? And what should what should companies know?

WARN, Remote Staff, And RIFs

Arbitration, Gig Workers, And Class Waivers

Jerry Maatman

Well, Tom, that's a great question. Raises um key principles for any sort of business that's trying to manage its risks. And certainly running uh a business in this day and age, uh, a key risk are employee-related lawsuits. And it wasn't until actually 2018 that um arbitration agreements with uh lawsuit waivers or class action waivers were greenlighted by the U.S. Supreme Court in a very important decision called Epic Systems v. Lewis. And if you fast forward to today, probably a good 70% of corporate America has one form or another of arbitration agreements. And in essence, it's given to applicants when they come to the company and on board, and it says if you have a legal issue, or we, the company, have one with you, we agree not to sue each other in court, but rather to arbitrate it in front of a private arbitrator on the theory that it's quicker, cheaper, uh, and it's a one-on-one situation, the company and the employee and advocates for uh workers uh attack those sorts of programs, saying that the ability to file lawsuit in the sunshine of an open court, the ability to file a class action is all important and shouldn't be restrained. But there are few impediments or impairments right now for employers that use it. Uh, but one of the signal issues now ongoing is the one that you mentioned in your question, and that is uh the gig economy or what are known as transportation workers who are exempted from the federal transportation or for the federal arbitration act. And so what you're seeing is uh logistics companies, airlines, any company involved in the shipment of uh interstate of goods interstate, there is an argument that you may have an arbitration agreement, but it's not viable. And plaintiff's lawyers would rather bring their case in court, bring a class action, than to be relegated into a one-on-one private uh arbitration. So the stakes are very high in the last eight years. The Supreme Court has decided about 10 to 15 arbitration decisions that have put some gloss and some um boundaries around um the issue of the transportation worker exemption. There are going to be two more uh argued this year. So we're starting to see those guidelines. But uh, one of the chapters uh in the book talks about how one might uh institute uh an ADR program in the workplace. One of the appendices has a form agreement. Um last year, statistically, I tracked uh arbitration decisions, and employers want about 80% of the time be able to prove that the employee uh assented and agreed to it. Uh but the issue then is both how do I put it together, how do I implement it? And so there are many employers that uh use it on a daily basis to resolve their grievances, other employers that use it as balance sheet protection to avoid that really big, huge class action where a lot of people band together and deal with them. Probably everyone listening to the podcast, you and I, Tom, are parties to an arbitration agreement. We might not even know it. But if we own a cell phone, we I'm sure uh hit a box that uh signaled our agreement to a click wrap or browse wrap agreement with the cell phone provider that said if we have a problem with our cell phone, we agree not to file a class action lawsuit, but rather to resolve it uh in arbitration. So in the last couple of years, Congress has passed a few laws to chip away from arbitration rights for employers. The main one is sex harassment cases. There's a statutory exemption, and so if someone claims they're a victim of sex harassment, they can't be forced into arbitration. And so a very uh interesting dynamic going on now in the courts is what if someone sues and part of the claim is for a wage and hour violation and part of the claim is for sex harassment? Should the sex harassment claim stay in court and should the wage and hour claim go into arbitration? Probably the majority view right now is all of the case stays uh in the courthouse. And so what you're seeing are criticisms about Plymouth's lawyers really bringing uh wage and hour cases, but they have a count in there for sex harassment to try and have a hook to keep it in court. So these are all issues that are going to be ironed out over the next couple of years. But the issue of arbitration actually even found its way into the presidential debates where candidate Harris was talking about it's uh unfair and untoward toward consumers and employees, and you had candidate Trump saying we should back up businesses, it's a legitimate way in which to run a business. So right now it's the law, could change in the future, but it's a very powerful tool for businesses that harness that tool and use it subject to these evolving uh exemptions to it.

Tom Hagy

Yeah. But as you said, plaintiff lawyers too, I mean, they um they aren't uh uh shrinking violets. Certainly they're gonna keep trying. And so you mentioned the one one way that they uh uh get around it, I guess is a way of putting it, is to get a uh sexual harassment uh count into something that might be a wage an hour. Yeah.

Jerry Maatman

And the other way is they say, well, the job of my client uh is they touch process uh goods, services that are in the stream of interstate commerce. And so basically almost any job is, and you got to draw some lines there. So the very famous case coming out of the Supreme Court was a baggage handler for Southwest Airlines who put suitcases on the belt ramp going up to the plane, and the justice says that's a pretty easy case. Those bags are in interstate commerce. Uh, these planes are taking off from uh O'Hare Airport in Chicago and landing in New York City. So this is a worker who's truly involved in interstate uh commerce and a transportation worker to whom an arbitration agreement cannot be enforced.

Tom Hagy

So I wonder see, um I'm trying to remember now. I looked at your outline, I can't remember if this is in there about DEI. You did talk about retaliation and internal uh and internal investigations, but so uh so uh DEI is um certainly uh it's a flashpoint politically. And so I'm just wondering what uh what uh what companies need to know. It seems to move from like HR concerns to enterprise level risk, and there's increasing scrutiny uh on on these programs. So how are these workforce issues changing the overall risk profile for for corporate counsel, would you say?

DEI, Documentation, And Legal Lines

Jerry Maatman

Very hot button issue, very uh not only divisive, but easily um misunderstood. And so uh some of the bedrock principles I talk about in the book is um to make personnel decisions, you need to make them for legitimate business-related reasons. And if you document those reasons appropriately, um that is your best offense at all times to ever being uh charged with discrimination, breaching a contract, whatever. And so a great example is that uh a man and a woman both show up to work late eight days in a row and you terminate the woman but not the man. And so they both engaged in the same conduct, they both violated the same personnel rule, but you treated one differently than the other and inconsistently, and the only reason must be the gender, uh, or why else would you have made the decision? And so how you document the legitimate non-discriminatory reason goes a long way towards um mitigating the risk of these lawsuits. Superimpose on that, then DEI, which is somewhat um contrary to the notion of make decisions uh based on people's abilities and experience. And sometimes DEI would say no, uh help people reach out, give them a chance, err on the side of giving them opportunities because of their protected category status. And this emanated uh from uh a series of cases. Uh there's a very famous case from the 1970s called Bakkey. And Bakke said that if a company is guilty of discrimination, one of the ways to remedy that is to provide affirmative action, to provide opportunities to minority groups who had been discriminated against in the past. And there have been very controversial cases over the last few decades about the notion of affirmative action. But what most people don't really understand is affirmative action voluntarily adopted is illegal, that it's only as a remedy to discrimination that's been proven in court. And so along in 2023 comes the Harvard University case, not in the workplace, but in the academic setting, where the Supreme Court, in a fractured decision, basically says consideration of race in and of itself in the process of admitting students to a university violates uh constitutional rights. And immediately that principle is then transferred into the workplace, and you began to see a bunch of lawsuits. Then along came the 2023 Harvard case, not involving a workplace situation, but involving admissions to higher education and the notion that taking an applicant, a student's race into consideration and uh courting that weight and value above people of different races violated constitutional principles. And almost immediately advocates uh began to file claims and lawsuits against employers saying DEI-related programs that would give opportunities or advantages that were earmarked for various uh diverse groups, were violations of the Constitution. Certainly played out in the last presidential election. Now it's played out in policies and practices of the U.S. Equal Employment Opportunity Commission, where programs uh like that, like minority scholarships, like affirmative action and hiring or promotions or pay raises have been targeted as instances of illegal DEI. And so you have a line between what's legal, uh, and in my mind, that's giving everyone an opportunity, opening up the pathways to advancement. That's still okay. But earmarking uh slots, uh earmarking programs for selected minority groups crosses the line into illegal DEI. And so many, many companies have been put to task about what do we do? Because they're in corporate mission statements, they're in obligations that they've made to um customers, vendors, to employees, to investors, and so it's an area filled with risk, all in flux, but we're still seeing these lawsuits brought uh uh for alleged illegal DEI. So my advice to companies and dealing with them is you have to, in essence, open up the pathways to everyone and not target specific minority groups as the beneficiaries of these programs, because if you do, you're apt to be sued saying that's some sort of illegal DEI that stems from that Harvard decision in 2023. Very complicated area, very um divisive, noisy area in the law right now.

Tom Hagy

Okay. When you see companies doing everything right on paper, uh you know, they've got their policies, they've got their training, they're documenting, but they still get themselves into uh into hot water. Um what what kinds of things are you seeing that do get companies uh caught in a in a risk, risky situation, even though they're doing all those things right?

Jerry Maatman

Great question. I often see it, and it's a two-sided coin. It's one thing to have state-of-the-art policies and practices, but the other side of the coin is to have state-of-the-art administration of those practices. And so I see a little bit of corporate laziness of oh, we have the policy, but not taking the time and effort in terms of uh sincere and appropriate and humane implementation or administration of those policies. What I'd like to say, and one of the things, principles in the book to strive to be the best company you can be in terms of the treatment of your talent, your workforce to be an employer of choice is to accord what I call workplace due process. You have the policies that say, if you have a problem, Mr. or Ms. Employee, knock on my door, I'll look at it. I'll might not agree with you, but I'll drill down to the bottom of it, I'll try and resolve it, and I'll inform you every step of the way that I'm doing it, to in essence, accord someone the due process of examining their complaint and responding to it. And what I see as indicative of a very, very healthy workplace is lots of internal complaints. Uh, what that says to me is employees think that their opinions matter and that executive suite has its door open to those concerns, doesn't rush it under the rug, a courts people due process, and then resolves it or gets back to them. So high number of complaints inside the company, very low number of complaints externally uh filed in terms of charges with the EOC or lawsuits in court uh against the employer or its executive. So that ratio of high internal, low external to me is one barometer of a very healthy workplace where the talk matches the walk in terms of administration of those HR policies.

Policies Versus Practice: Due Process

Tom Hagy

Yeah. Yeah, just two things from my personal experience is uh uh when I was uh a reporter, I remember uh we had uh somebody was suggesting should we have policies on how many sources we contact and how much this we do and how much that we do. And the lawyers, the media lawyer, he's pretty prominent now. He said, uh don't have the policy written if you're not going to follow it every time. Good advice. Absolutely. Absolutely. And we didn't. Uh the other thing about policies and realities is like there's one uh there's one company that's uh speaking of DEI that you know people are boycotting because it pulled its DEI uh policy. But um it happens to be a it happens to be a store that I like. So I I looked at their I looked at their statistics on their actual uh whether they are diverse, they're like one of the most diverse country companies out there, you know. They pulled a policy, you know, uh under pressure, but they're still doing it. They're they're walking the talk.

Jerry Maatman

Right. I I think modern day managers fail to comprehend that their personnel decision making can create and impact the brand of the company. And that is people are watching what's on Twitter, uh on Instagram, uh what employees or ex-employees say about a company, decisions that are made in the workplace might end up on Facebook and the like. And so um you there are constituencies out there, and doing the right thing pays dividends. And so, what I like to say to managers is the law treats everyone equally, but the law expects more of you as a manager to do the right thing and make the right decision because the spotlight is on you, and you're not gonna be known for the uh 99 things you did right, you're gonna be wrong, uh known for the one thing you did wrong. So you have to be on 100% of the time and be sincere in all your decision making because you never know when you're gonna be called out and the spotlight's gonna shine on you in terms of your decision making.

Tom Hagy

Yeah, yeah. And because you're perceived, and you are in fact at a at a higher level of authority over other people. So, yeah, the expectations are gonna be higher. So um with the advent advent of artificial intelligence, we're using it right now. This program I'm using will use AI to help me edit. If I say um a lot, which I do, it'll go out and cut those all out. It'll search what we say to find, like, you know, what did Jerry say that was really poignant? It'll do that, and it does a really good job. And then um I use it as a writer, but I have a whole separate podcast on uh drafting articles if you're at a law firm, not writing briefs and things, but writing uh leadership lead thought leadership pieces on how to use it responsibly because it is a great tool. You just want to treat it as a as a tool and as almost like a younger, uh very smart researcher. But so I have all sorts of rules around that. I just wonder how uh AI is coming in play, because it also I used it once, I looked at 50 resumes, and I thought, well, I'll try AI, I'll use Copilot, I'll upload 50 resumes, and I'll give it the job description, and I'll ask it to prioritize them. And it did an amazing job. The thing is, you then go back and check. I just wonder what your thoughts are generally about AI in the workplace and how it's uh impacting employers.

AI Hiring, Monitoring, And Patchwork Laws

Jerry Maatman

That's a huge waterfront of issues that are cascading across corporate America. And I would say a great example where the law can't keep. So the very first problem is what I call the patchwork quilt effect. And that is AI-related laws that impact the workplace are not one size fits all. You've got laws, for instance, in Illinois and Colorado that just went on the book in terms of use of AI in hiring people, notifications that need to be done, something called discrimination by algorithms. You have a New York City law that talks about notices that need to be given to employees if you use AI to evaluate their work or in according job promotions or pay raises. And so there's a definite patchwork quilt. If you're a multi-state employer operating in various states, you have to keep up with those laws because they're changing daily, monthly, annually. So that's the first problem, patchwork quilt. Second is there's a lot of abuse of AI going out there. Um I'm seeing it in lawsuits with fake emails, fake voicemails. Uh, you're seeing it with uh robocalls and the like. So AI tools are now surfacing that are the subjects inside of lawsuits like they never were before. The next category would be AI-assisted HR tools, the most predominant right now being onboarding, the shifting of uh uh and prioritization of various applicants and how they are cold and how they're graded, and the notion that there can be discrimination in those algorithms. And it's like old brick and mortar laws applying to these newfangled software products that inadvertently uh and not intentionally may nonetheless create an adverse impact uh impact. And so a very hot issue is if you're going to use AI, make sure it's been validated, make sure it's a reputable software dealer, make sure you're looking at the indemnification provisions within it, because not all tools are equal and some are leading uh into lawsuits. So what the law is today is going to look completely different in 24 months, let alone five years. The technology is accelerating very quickly. Um, this is an area where as companies embrace it for the positive attributes of it, it creates a full-time job of legal compliance, and the law is still catching up to it. So it's a it's time has come, but it's now uh raising the risks for using it in the workplace.

Tom Hagy

Okay. Well, Jerry, I think we've we've gone through quite a bit. I really appreciate your time. You got it. Thank you so much. Well, I want to say on a personal note, how long have you been practicing? 44 years. Yeah, me too. I mean, I've been in working for 44 years. I didn't I don't practice law, but I'm inspired by you because you uh you have an energy, you still have an energy and an enthusiasm for what you do. Uh and you also you don't seem like you've ever stopped learning. You know, you're talking about it. You're putting your finger right on it. Every day's a good day if you learn something. That's it is inspiring to me because some days, Jerry, what am I doing? I'm exhausted. That concludes this episode of the Emerging Litigation Podcast. I'm your host, Tom Hagey. Thanks to Jerry Matman and uh Wayne Morris for sharing his insights. If you like what you hear, give us a rating. It always helps. Thanks for listening.