Employment Practice Panel with FLB

Surprise! We dropped a bonus episode!

This episode includes a behind the scenes view of the Executive Edge Panel: Reducing HR Risks. Panel Guests Jake Sitman, Dave Steckel, and Jackie Plunkett are joined by our very own, Moderator, Jimi Honochick!

Throughout this discussion they touch on common employment lawsuit triggers, HR best practices, and ELPI coverage options! Huge thank you to Fitzpatrick, Lentz, and Bubba for hosting this wonderful event!

We hope you enjoy this extra upload! Tune in now!

For more info on YMI insurance visit our website at ymiagency.com

Or give us a call at 610-868-8762 to see how we can better protect your business and family.

Transcript

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All right, then. I think we're good to go. I'm gonna start off by saying thank you to everyone for coming out. Thank you especially to Fitzpatrick, Lenz and Luba for putting this together. Andrea. Jennifer. That you guys did a great job putting this together. It's easy to come up with an idea that a lot more difficult to execute. And you got everyone here. So thank you guys so much. And thank you to everyone for being here. I know it's very cold out there and events are being canceled left and right, so thank you for braving it. If you're here because your boss harassed you to be here, you're in good company. And then. And thanks to Notch, I think the space is perfect and it'll lead to a good conversation. So, you know, before we jump in, I wanted to introduce everybody on the panel. So, you know who is here and who, who you should be listening to. And we'll start with Jackie Plunkett. Jackie has over 25 years of experience in HR, and kind of, you name it. I think she's done it. Small business. Large business. Varied roles from in-house HR to a consultant throughout the US. Currently, she's a solution consultant for ISOL. She collaborates with US companies to deliver tailored human capital management solutions, which is a fancy term. Through the intelligently connected people Cloud platform. She holds the professional designations of professional human resources from HRCI and SHRMCP from the Society of Human Resources Management. I've heard that's a lot to say. You're very qualified. I cut it down for you. So thank you very much for joining us. Up next, we have Dave Steckel. Dave is an attorney at FLB and member of the Employment Law and Labor Relations group. He serves public and private employers, counties, townships and municipalities in a wide array of matters. 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. And he has conducted collective bargaining negotiations, have grievances and interest arbitrations on behalf of numerous counties, boroughs and townships. He has also conducted hearings and mediations before the Equal Employment Opportunity Commission. We'll hear more about that later. The Pennsylvania Human Relations Commission, the Pennsylvania labor Force, and the state Civil Service Commission have. Thank you very much for being here. You. Absolutely a pleasure to be here. And then last but not least, Jake Sitman. Jake is a shareholder at Lehigh Valley, law firm, the Patrick Glancy and chair of the firm's employment, law and labor relations group. 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. 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. That's awesome. He's also been successful in wage and hour non-compete and trade secret litigation and appeals. That's what we're talking about today. So thank you for being here as well. Happy to be here. Awesome. And then, last but not least, I'm Jimmy Honochick, president of YMI Insurance? 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. 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. So this is the team we are here to talk about HR risks. This is the first ever executive edge. I hope it will not be the last. I think this will be a quarterly event. And really looking forward to diving in. I hope it'll be, you know, give and take if you guys have questions as we're talking, please feel free. You have some incredible minds on the topics here. So with that, let's get started. All right. So the first question I have as I look out here, I see lots of different industries, being represented. So what do you see? You know, there's there's white collar. There is, you know, the trades. What do you guys see as sort of common occurrences or claims or things that, that both of those industries types face? 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. And it's kind of difficult. Just because there are so many who listed the absolute top five. But there are common ones we see pretty much every week. It's sometimes every day. 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. They can be anymore religion, race, age, sex, disability is hot now. So but all of them together. Discrimination is one. Retaliation is another. Meaning somebody at work complained about something or objected to something that was arguably unlawful. And then they're later disciplined and they suffer some type of adverse action. They're effectively a whistleblower. So we're seeing more of those types of claims. And this is what I mean, disability discrimination. 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. So that's a huge one. We deal with that all the time. Also, FMLA leaves of absence are huge there. 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. And they are easy to abuse. And you have to keep tabs on those. As Jimi mentioned, I also do some union work. And what are the, you know, biggest union issues I deal with is violations or perceived violations of the collective bargaining agreement. And the employer's lack of consistent enforcement of policies, which leads to grievances, grievance arbitrations and whatnot. I fell like, we're leaving a couple out. Yeah. Yeah. 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. Perceived as a manager. Maybe paid is not exempt. Yeah. And so, you know we're seeing more and more of that anymore. There are. But the new laws are being passed every day, particularly under the now former administration. 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. So now you need to accommodate in a formal way, all pregnant workers. And that wasn't legally the case before. We all knew we had to engage in the interactive process with disabled people. Disabled in quotes. Everybody's disabled. What? But now we need to do that with pregnant people. And there are specific requirements. And that's in addition to other things like, giving time breaks for lactation, etc.. 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. When our clients are picking up the phone call on us. Jake, here's the here's the new one. What do you think guys? Also seeing some independent contractor versus employee, issues. The dol the Department of Labor issued, revised guidelines last year. Specifying what it you know, how someone can be properly classified as independent contractor or employee. It's much more difficult to, classify somebody anymore as a 1099 kind of contractor. So that's a big issue. OSHA, I deal with that fairly often. You know, particularly in more, industrial, manufacturing settings, obviously, but that that one comes up fairly regularly and also food service. 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. And then they put that out online. 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. All it takes is one disgruntled employee and who has a, you know, easy access to social media these days, who doesn't? Right. All right, so you guys gave me a lot of directions. I want to take this. I'm going to give Jackie a chance to start here. You know, hearing the common concerns and and incidents that businesses face. 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? So we're talking about the set up before there's an incident. It's so a lot of the claims come out of treatment. People feel they're being treated unfairly. So if you communicate and do your best to speak to people, hear their issues. Treat them with respect. And, you know, the investigation is needed. That's great. But you have to be fair and consistent with that. And a lot of times, I would always recommend call legal experts. If you feel like you're being set up, it's time to make that phone call. Because one misstep can set up the whole thing for for error. I mean, essentially, and I'm sure you guys would agree with that. 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. So if you're addressing those concerns before they become bigger, whatever they are, it puts you in a better standpoint. And they've you've hit on restaurants. But are there industries in particular where you see more incidents, arise that other industries. But it's you mean just general employment claims? Yeah, it really runs the gamut. Every place deals with them, you know, the leaves of absence. We talked about earlier, the disability discrimination, reasonable accommodation, FMLA, those sit everywhere. And of course, the other discrimination kind of claims don't mention the age, race ethnicity. They really don't discriminate. They hit every type of industry. So I don't I don't see an overwhelming amount of employment claims in one industry versus the other. I think it's just there's so many of them. There's so many different types of employment claims that they hit every industry out there. 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. 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. But conversely, if you have a sort of a more professional setting and maybe even fewer employees, but they're hired, highly compensated. You may not have as many claims, but the claims that you do get are going to be more dangerous. You're at risk for greater liability when they do have a claim. 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. We get a daily blurb of all the new labor and employment cases and legislation that's come out. Believe it or not, every 24 hours or so. So we peruse them. And what we've seen is, for example, a lot of H.R. managers have lawyers and executives filing claims. Those claims, though historically infrequent, seem more frequent. 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. So when they win a lawsuit, they win more money. It's that basic at a certain level. Yeah. I don't know about you. I know we. Know where the bodies are buried. That's part of it, right? Could you hit on something, Jake? The change of administration and also keeping up to date. You guys regularly keep up to date. Any expectations on what might change given the change of administration? Yeah. I mean, a couple things are easy, right? Particularly with employment. So you guys might remember this past year there's a big to do. And the FTC, the Federal Trade Commission issued a new regulation effectively banning almost all non-compete agreements. So we had a lot of clients at that point calling us and writing to see what's going on. Well, a lot has happened since then. The courts have effectively put that on hold. I don't anticipate the new administration going forward with anything like that. To say, being, but you don't know. We'll have to wait and see. But we've already seen, for example, that I just saw this today. There's a new interim head of the EEOC, the Equal Employment Opportunity Commission. 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. That's not something we've had to contend with so far. So just a couple of examples. So you're going to see, unfortunately, dramatic shifts. I think, you know, you would hope the law as it evolves would do so at sort of a sort of sensible pace. I don't think that's what we're likely to see. 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. Leads me to a question, Jackie, maybe for you, but maybe for everyone. What role does training have in terms of, you know, reducing these or what role does it have an HR risks? I you know, I think of Dei but now compliance, harassment, these sorts of things. How should businesses be implementing those. So it's best to have policies. And if you have policies, break them down and then make people aware of those policies and communicate them regularly. Because the more that people are aware of what the rules are and what the parameters are, you can have less problems overall. But think of how many times you want to answer questions over and over again. 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. That cuts down on a lot of it, but it really it's about tackling those issues. When you see the storm starting up, you really want to jump in there and find out what it's all about. Pool your own resources, see what you can tackle. Having those policies and everything is a great first step. So training your managers when to realize things are getting out of control. Somebody said that they had an FMLA issue okay, you gave me FMLA. They came back. Then they had an absence that you don't believe was real and gave you what you think is a fake doctor's note. 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. So you have to be careful. But if your managers can pick out when these things are brewing, when the storms are starting, when the chatter is happening, it helps. 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. So you really need to make sure that your employees are aware how to handle claims. You know they have problems themselves and how your managers can spot them and how to deal with them. Confidentially and get things to the right people to be resolved. How does HR or person balance you know, being an employee advocate and being them for their but also protecting the business? How do they deal with that? So it’s the monkey in the middle I mean it's it's HR. Yeah. So, your HR people are employees too. So, you know, they work in the company, they want to protect the company. They want to hopefully do what's best for everybody involved. But it's a tricky step. And sometimes it is hard to balance that. You have to be very careful about being treating everybody confidentially and respectfully the more confidentially you treat things. So if somebody has a problem and I blab about it, they're never going to come to me with their problem. It's all of these things of perception. You have to be very careful that very tricky place. But, you know, in investigations, when things are going on, don't chat amongst other managers unless they're involved in it. There's a reason to involve them. So it really just comes down to, you know, kind of a business acumen, really knowing who to involve and when. But keeping things close to the vest. You can't always give reasons. Employees ask you what I just told you to communicate, but you can't tell them the reasons behind things. If there are protective reasons, you're protecting somebody else or an issue that's happening. You want to make sure things are handled professionally, quickly and completely. So I mean, honestly, that's always what I've told clients. 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. Jake, I saw you nodding on that one to you. Is that when it gets to you, when it's finally bubble to the surface like that? 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. 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. Let me see if I can get some advice to give me more confidence as to how to handle it. So it really is a spectrum. I mean, you have to go back to your own workplaces and decide for yourselves, like if you have the right. 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. That's fantastic. Some of us don't have that for whatever reason, either, because we're in transition. We just know that the people we have in place, or an idea we can't really rely on for that level of discretion. So and unfortunately, though, yeah, there's a segment here, we handled it the way we handle it and now we're in trouble. Well yeah. Unfortunately litigation is time consuming and is an expensive and there's just virtually no way to avoid it. 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. It's, you know, not an enviable place. But conversely, you can do everything under the sun correctly, in-house, have the best people doing the right things. You've, in fact, done the right things. And inevitably, you find yourself trying to, you know, having to defend an employee claim. So that's not a reason not to do the right things. 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. Employees who perceive to have been treated unfairly and they're, pretty convinced of that. You can't dissuade them, and they'll file their claim anyway. And I guess that comes to me now. So claims, before we jump there, you had an analogy that I thought was really good when we were talking before this. Could you just shed a little light on what that is? In terms of protecting a business? Yeah. 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. And it was described to me to be, the three legged stool. Right. And, what is have good policies Jackie mentioned is in people in place who are well trained. If you can do that, you've automatically right off the bat that cut your risk of nonsense and expense, and distraction, etc. remarkably. Okay. So that's one leg of the stool is in-house. Get your act in order, right? Whether it's the right people or the right documents, policies, training. 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. This one's more complicated. I've never seen this version of, you have circumstances again. You have good accountants, lawyers and insurance brokers. Is they can help you. Sometimes it doesn't even cost you anything, right? 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. And then the third piece really is the insurance. So you'll have the right inside people, the right professionals to call on when necessary. Inevitably, you might have that claim, right? That despite your best efforts, you're defending a claim, then you still need insurance. And that's where it comes up. And the insurance for employment claims is often called EPLI or EPL, which is employment practices, liability insurance. 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. And those policies come in a variety of shapes and sizes. 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. So it can be a you know, those are the three legs. It's in-house people, outhouse people like us. And then, you know, perhaps insurance. And by that way, you've really mitigated your risk to the extent you can. Yeah. While we're on, I wanted to talk about, something we've mentioned, which is right to counsel. And so, your EPL policy, it is great in the sense that you had all the defenses and someone still files a claim. 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. Come on. You know everybody, you know all the stories. Come help us out. And the insurance company says, oh, no, no, no, no, we have the right to counsel. We choose the counsel for you. And that can be a real fracture. 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. 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. Not all policies are going to give you that. And I will say that the policies that generally don't are the ones that are sort of built into a commercial package. 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. 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. And so we go to markets for standalone EPL coverage. We'll go to Philadelphia, go to USLI people who specialize in that. And it gives you more robust coverage. It gives you the ability to choose your counsel. 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. That's got to be challenging. Yeah. 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. We've worked with them over the years. We know the players, we know the issues. 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. What do you think about that? Yeah. 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. 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. So it just puts you in a difficult situation. Another thing I've found is a lot of times insurance defense counsel. 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. And I think they try to get as many of them off their desk as, as quickly as possible. And sometimes that results in you're just trying to settle the case as cheaply as possible. Regardless of the fact that the case had very little merit to it. 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. And do everything right. And regardless, they still get sued and they want their lawyer to to back them and defend them aggressively. 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. And let's just okay, we could sell this for 30,000 right now. Let's do regardless of the fact that there was no real legitimate claim there then. So it's a constant frustration of clients. 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. Yep. No, I agree. Another thing I was going to bring attention to on the EPL front is it is claims made basis versus occurrence basis. 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. 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. I'm now suing you. Your policy will respond to that. EPL is different. 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. 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. And you say, look, you know, it's the holidays. We got a lot year end. Let's forget about it. We'll talk about it in January and and we'll address it then January comes. Forget about it. February comes and you get sued papers. Well, you were supposed to report that on the previous policy period. Your carrier can reject that claim because you didn't report it when you've heard about it. And that's something that people don't understand. 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. It's just something to be aware of. It's different than other policies. 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. We're like, well, what if I report that claims, right. It doesn't really work that way. You know, EPLI, isn't really I don't think it's that said, rate sensitive to those types of clients. Particularly sometimes you'll report them. They're not, in fact, claims. 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. 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. It's not the fact anymore. 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. And bottom line is there was a gap in insurer. They thought they were covered in consecutive periods. But because of the the type of policy that they had changed, they didn't appreciate that. Nor nor would most of us right, insurance is complicated, right? 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? You effectively paid for two policies year over year, and now you have a claim that's not covered. That's not a good position to be in 100%. And there's ways to mitigate that, without bothering everyone. So definitely. Have a conversation. With your broker. You know, what are best practices? I think this is new, Jackie, for documenting incidents. So we don't want them to turn into suits. Sometimes they do. But as things are happening, we want to make sure our ducks are in or out. What are the best practices in terms of documenting? 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. So, I mean, it's completely true if you if you didn't document it, it never happens and your memory changes. 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. So I know many people in this room use an HCM platform and it has the ability to track notes on performance. You want to put that there too, so that anytime there's a conversation or something. Because what if you are no longer managing that group but a different group when you take over that group? Were you given a turnover about the attendance issues with different employees and things like that? You need to track that documentation to see patterns. You need to make that available to other managers while keeping it so confidential. 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. If you're a 25 person company, it's easy to know everybody and their issues. And fortunately, probably everyone knows everyone's issues. But in a larger company where maybe groups change over and things like that, it's more important to keep that detail somewhere. So I mean, the documentation is huge. It's the first step to anything. It's the first step to your defense. It's the first step to your protection. It's it's just it's everything. Which when you call them Dave or me about these things, it's the first thing we do. All right. Tell me about the claim or rights to send a copy to me. 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. 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. They never work for this. It's awful. Or their attitude is terrible. Like, okay, what do they have in their file? Okay. Disciplinary actions, whatever performance evaluations look like, either they don't have them or they're all good. There's no discipline in their file. Their performance evaluations are all, you know, outstanding. But even above average. Let's say you addressed it. So you talk to somebody about a problem and you put a little memo in the file. Well, if you sat down and talked to them, have everybody sign it. Right. Because you already have the conference. It's already uncomfortable. Document it. Get the signature on the policy, get the signature on the conversation. Make sure you have that that they were made aware of their responsibilities. You're telling them write it down and have somebody sign it. Yeah absolutely. 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. And, you know, they expect us to just, you know, work some magic and get the person out. And it's like, well, you can always do that. But here are the risks. So that's the risk. So the risk and treat and like in a in a termination people call me all the time. Person's terrible I want to let it go. I'm like okay but you know you can. And everyone throws around at well right. We're in an apple. So stole my next question. Well so sorry, but it's not the Wild West. And if you act that way, your employees feel that, oh, they just let them come. They never warned them. And they'll hear those kinds of things. So you have to kind of start with that backtrack and everything. It's not at will. You have to have that whole first step. Another good point. You just brought up the giving them an opportunity and litigation. 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. 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. 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. 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. But otherwise it's really important to give that employee an opportunity to correct whatever they're doing wrong. 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. All right. But they have the right to feel a certain way. Right. And that's really 100% they can feel discriminated against. They can feel that there was harassment. They can feel it was retaliatory. So there are big risks that go with just firing them. Well, correct. Right. Yeah, absolutely. You guys know that one better than me. Yeah. I mean, everybody thinks like you said, it's a magic bullet. Is that. Well, I can do it. I want even I feel unfair. So it's it's not unlawful. So the general rule is sure I will. The law is famous for having general rules and and exceptions. Exceptions, exceptions. The exception is I can get rid of anybody at any time. Not because they're black, not because the Muslim, not because they're pregnant, not because they're disabled. Hold on. I need more hands on because. Right. 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. 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. Well, then your rights are restricted depending what the agreement says, right? Typically that's for executives and higher level employees. And not always. So there are exceptions. And sometimes the exceptions can feel like they swallow the rule. Those exceptions apply to EPL coverage a lot to the EPL will generally exclude, you know, collective bargaining situations. It'll generally exclude contracts, written contracts with an employee. So those are things to pay attention to. You listed on your hands as many as you could. I did some research. So the top six equal employment opportunity Commission charges, you know, you listed a good number. Their age, national origin, sex, race, disability, retaliation. What do you think? The number one reason, the number one charge that the EEOC sees is you have a guess? I guess disability? I'm pretty confident. Retaliation. Could you see it? Where, you know, you see, you know, I don't know this. Here's why. It's because you're always going to get your discrimination cases, but you're but almost any more. This wasn't always a case. It's. You discriminated against me on the basis of whatever race, age, sex, disability, all these things. 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. And that's the reason it was a short time period. So then now you retaliated against me. So every one of those discrimination charges anymore has a retaliation sort of component with it. So and I think there's a couple extra just straight retaliation charges. Right. Claims. So 100% you. Yeah. More than half the claims have a retaliation charge on them. But some of them have the discrimination and a retaliation acts with it. Yeah. So, percentages add up to more than one. Yeah. Yeah. Okay, let's do two and a if anyone has any Q&A. Otherwise I can keep asking them questions all day. So I do have a question. Make a comment. And this is a hard one. Like literally as we speak right from the, we say that you write it down, we don't write it down. 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. Document the refusal signatures, let’s say it documented work. It's all, I'm back to that point. Yeah. Okay. This now has, And you're backing up with policies and providing evidence. Okay. We need everything we have. We we help with supporting. That might be the category where you're doing everything right. But for more. Yeah. 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. I documented everything that happened. I thought, which is a problem. Could possibly result in what? I have no, no time to do my job right. And my response to them is, just keep at it. It doesn't have to be Shakespearean, right? You don't have to type it all out. It can be handwritten. It can be on a napkin, frankly, not ideal, but do it right. Much better than nothing. People refusal. I've never really understood that. 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. And some people don't want to sign because they're fearful. They sign it. You're effectively agreeing that everything that is in the document is accurate. It's true. And look, you can leave for another day. The fight over what's true in that document or not. Do your best to get it down. And, you know, sometimes you investigate things and you don't. 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. Right? Like, you can't tell objectively. I can't say I can't corroborate whether it's yes or no. Right. But at least have your documentation and save it and put it in your back pocket. It can be really useful to you, i.e. us, when an employee takes it a step before and files a later claim, we can still use it. It's still helpful. I wouldn't get too hung up on whether they're signing it or not. Document that whole thing like you're doing. That's the most you can do. If they don't want to play ball, they won't play ball right and they probably won't be employed very much longer. 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. 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. You're not always going to be right, but that doesn't resolve legal liabilities, because just because you were. 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? And send it out. So just it also gives them the opportunity to write back and say, can we have another conversation about that? So it's also an acknowledgment is that but the I always say please confirm that this is your understanding. Try to get them to respond to it so you can mark it for read receipt. But you want to understand you're on the same page. If you've asked that employee to confirm that that is what they understood and they took away from it as well, great. 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. 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. If they don't respond, there's another, not another document from them that you can imagine once it gets to us. That looks pretty good to anybody listening to the case later on. 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. That's pretty good evidence in most cases. Yeah. Not getting another rule is that obvious, but it's a tip. 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. The fact that, you know, right after your meeting, you sent this out because everything was fresh in your mind. So it increases the chances that what you put in there is actually true and accurate. Yeah. Jake there's no. I mean but there's something called a wiretap back in Pennsylvania. So with everyone knowing the media, this is like a sign posted that this is being recorded. If everyone's consenting. To interview you about this book, wait. As long as they consent to it, they have. To consent to it. Knowledge and consent in order to be recorded. But sure, let me see what we. Yeah. So you start off, see, I said on this, I wouldn't want to do. It, but typically you're not going to get. Yeah they usually won't consent. If you're sitting an employee down. 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. I won't say I don't want their lawyer there. No, I don't want. That. Let me give you a good reason not to do that. Almost. In any case, you're breeding mistrust, period. End of story. Your other employees realize that you're taking the opportunity to record them at any given time. I don't know what you're going to get back. I don't know who's going to stay employed. I mean, people recording me, I'm leaving. I don't care for what reason. And frankly, you don't really need it if you're doing the documentation. 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. I think there is this issue of what state are you in? There's a wiretap law. Jersey, by the way, is different. Pennsylvania is what they call a two party consent state or all party consent, say Jersey one party, and you need one. I eliminate all that complexity and and nuance and confusion and just get it done if you need a witness. That's what I like. So you're having some of these meetings, right. And ordinarily you think, well I can have this one on one if it's important enough. It's a termination meeting. For example, or something resulting in it. If you can have two people in the room on your side, that's far better than recording them. Believe it or not. Yes, you're recording might have more. 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. This sort of underlying notion that we don't trust you. So we're recording you, right, which, you know, filters through the employee population generally. And I think that's sort of a bad message to send. And I just think a lot of businesses rehab families like that. So you're getting recorded. Well, ironically, audio is different than, art than visual. Yeah. So, I have a question. So you've done everything right. They're filing suit against you anyway. How often do they see some sort of payout? And and I think I know the answer to this, but how often are they getting some sort of financial compensation? More frequently, when they go to EPLI. 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. 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. 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. Emotional damages for emotional harm to court compensatory damages. Your statutory damages. 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. And you hate to ask that question because the potential damages in these cases are significant. You know, six figures, seven figures. Well, you always have to let them know. That's if all the stars align. And very rarely does that happen. You know, chances are it's going to be something far less than that. If they lose But they still just think of the worst case scenario. And that drives them to try to get a settlement eventually. I mean, when a case is initially filed, emotions are high and they're like, I'm fighting this. There's no way we're going to settle it. 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. We're a year into this. My employees are stressed out. You know, we're focusing on this lawsuit as opposed to the work we're supposed to be doing. There's so many distractions involved. And at some point it kind of wears people down. And they then they decide they want to settle the case. But I do think it depends on what's at stake. Unfortunately, I've worked with a number of companies that have been sued. And, and you're right, you know, in the beginning, everyone wants to fight it. You know, they have the documentation. They they weren't at fault. They want to prove it. 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. And sometimes you need to do that. But it it depends. Is it going to ruin the business. Is it. But what else is it going to impact. So these scenarios aren't the same. Every single one is different. Yeah. And I ask that because you do get people who want to fight and get really mad that there was any sort of payout. But there is, you know, the the burden on management being tied into this for an extended period of time. So thank you. I see Andrea there. Do we have one more question? Oh, what one more question out. Wait, wait a minute. This is Tim Charles, right? Yeah. He's a shareholder attorney at the time. You know, I mean. Absolutely. I've had many cases where the email or letter that went out to the client, the employee had some statement in there. When you look at it after the fact and you're like, oh yeah. Or you leave something out. Or they leave it out, either it's misstated left out. And, you know, sometimes it's something that can really come back and bite you in a lawsuit. It's cheaper at that stage than after the mistake. Yeah. Because all right then. Thank you to the panel. This was great. I hope you all got something out of it. There will be, you know, a meet and greet afterwards. So please stick around with that for a test, not just for, you know, thank you, everyone for coming out. And thank you to the panel. Thank you. Yeah. And, just finished finish up there.