HR is Not Your Friend

In our inaugural episode, Ryan and Arta delve into their viewpoints regarding the optimal duties of HR within a company. They take a critical look at the common issues faced by many organizations in precisely delineating these roles. Additionally, they explore the concept of "HR is not your friend," shedding light on the increasing skepticism employees often have toward HR.

During the episode, they address a real-life HR dilemma sourced from Reddit, which revolves around workplace bullying.

Transcript

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00;00;00;00 - 00;00;10;02


00;00;10;04 - 00;00;31;16
Speaker 2
I'm. I'm an attorney here in California who specializes in employment law. Welcome to the H.R. is dead, and we've killed it. Our guest. I'm here with Ryan Ellis. Good. Good friend of mine for 15 years now, also a fellow attorney here in California that practices employment law and does consulting. Ryan, you want to introduce yourself?

00;00;31;23 - 00;00;48;19
Speaker 3
Yeah, I for that. Glad to be part of this groundbreaking podcast as our name is Ryan Ellis. I am an attorney in California. Also relations in Nevada, Texas and Michigan. I focus on employment, defense and have doing so for essentially the last 15 years, about a year.

00;00;48;21 - 00;01;32;20
Speaker 2
So the reason we started this podcast is that we have been working tangentially in the industry as attorneys. Me as a plaintiff attorney suing companies and Ryan defending them. And we thought that after seeing years and years of companies just make really stupid mistakes that they were repeating over and over and all aspects of running a company. Wage and hour discrimination handbook setting all up that we could provide a little bit of insight from the attorneys perspective on first things that a plaintiff's attorney would look for in a company, whether or not it would be a good decision to sue this company for for one of their clients.

00;01;32;20 - 00;01;42;12
Speaker 2
And then also from Ryan's perspective, working with these companies as a defense attorney, just figuring out what what they did that led them to getting sued by their employees.

00;01;42;15 - 00;02;04;18
Speaker 3
Yeah, I mean, it's one of those things that, you know, a long time ago we realized that helping attorneys know is great and all, but we only get involved with companies essentially when you know, this stuff hits the fan. Right. But we don't go out there and beginning telling them, hey, you know, don't discriminate for that. You know, that reason or, you know, don't tell that person about their hair or, you know, don't like tell that person they can't go to their mom's funeral kind of thing.

00;02;04;20 - 00;02;25;20
Speaker 3
And so we realized a while ago that we should start consulting. And so we do that on the side. Actually, we thought it was going to be on the side, but it ended up being a full time gig. And so a lot of our time now is consumer consulting. And instead of being the person that gets paid, you know, an absurd amount of money by any standard to fix a problem, we're there to proactively try to avoid it.

00;02;25;22 - 00;03;03;10
Speaker 2
Yeah. And one of the things that has happened in H.R. over the past 20 years, I think, is that H.R. is turning from the kind of party planning department into a quasi legal department at most companies, and a lot of tasks that shouldn't be. H.R. related firing and things like that when making decisions on firing, that that should be something that management and general counsel and C-suite employees should be really involved in has just been dumped off on this poor H.R. department that was not designed for doing anything more than really administrative tasks.

00;03;03;13 - 00;03;28;28
Speaker 3
It's funny to two points, you know, that are very important that I'm sure within hours of podcast it is the four H.R. department because it's always understaffed and undervalued and underpaid as well as California. For listeners out there who are in California, California is a haven for plaintiffs attorneys, lawyers of abuses by employees from employers and former employers for issues in California, because it's so hard to comply.

00;03;29;00 - 00;03;49;15
Speaker 3
And I say so hard because companies from the Amazons, the Walmarts, the FedEx is all the way down to the mom and pop gas stations all have to do with the same laws. And I always say to clients that if FedEx can't do it right, if Wal-Mart can't do it right, if UPS can't get it right, if Amazon can't get it right, then how are the one or 2%?

00;03;49;22 - 00;03;54;24
Speaker 3
No legal experience, no experience. Properly supposed to make you care. And that's what we're seeing in California. It is.

00;03;54;26 - 00;04;16;09
Speaker 2
Yeah. And we're seeing a lot of small businesses and medium sized businesses try to take on a role that they're really not prepared for. I mean, I think a lot of business owners, they are they're very competent in areas like sales and business growth, but becoming the main h.r. Person for the company without a lot of legal help, especially in a place like california.

00;04;16;09 - 00;04;31;26
Speaker 2
That's a whole competency that you have to learn. And in the same way that you wouldn't necessarily do all your own accounting or your payroll and things like that. I think h.r. is rapidly becoming one of those things that companies have to look to outside help for because of all the legal pitfalls.

00;04;31;29 - 00;04;56;15
Speaker 3
That we kind of underscore there, highlight which one is better but thing in California, you want to hire somebody in California, do H.R. work like personal experience, and that costs money. And you need to have someone who wants to public office nowadays, which is going to cost you more money. If you can find it, you might find somebody you trust who is smart enough to think outside the box in situations where you need them to want to work with somebody or, you know, to find a solution where one doesn't exist.

00;04;56;17 - 00;05;20;01
Speaker 3
So in California specifically, and a lot of it's going to be tailored to California, given that we're here a lot in all of automation, most of what we deal with is in California. But anyway, it's expensive. You want to hire an H.R. executive, You're looking at the H.R. director of AI level manager, or you going to be H.R. However your company classified, you're talking hundreds of thousands of dollars a year for one person.

00;05;20;03 - 00;05;48;11
Speaker 3
And that one person is by the C-suite person or a high level director is supposed to be making future decisions for the company and H.R. perspective. So that's supposed to be your talking about, Hey, why is Sally complaining about Tommy or whatever? And so it's expensive. H.R. is expensive. And that's why I think an article comment on this one is why companies consistently undervalue H.R. department, underfunded H.R. department, and then interestingly later complain that H.R. in doing anything, it's the it of a budget cut.

00;05;48;13 - 00;06;21;08
Speaker 2
Yeah, I think that's a very good point because H.R. is a department that defies metrics in companies, because most companies, they're going to measure success by sales, by growth, by opening new locations, by hiring more people, signing contracts and H.R., their progress in a company or the value to the company doesn't reflect in the same terms. How do you how do you measure company happiness and employee happiness in a measurable way that you can put in a spreadsheet?

00;06;21;08 - 00;06;44;27
Speaker 2
You can you can compare like the amount of lawsuits that a company faces after implementing new policies compared to before. But it's kind of hard for an H.R. director to come in and say, Well, hey, I prevented 50 lawsuits this year and saved you, that it's impossible. And so that's one of the big problems that I think H.R. people have is nobody in the company wants to go to H.R. for any reason.

00;06;45;02 - 00;07;07;21
Speaker 2
And the only time they really want to go to H.R. is when when they have to dump off a task that that they don't want to do. And I'm really talking about management there when it comes to kind of dealing with interpersonal conflicts or employees and in hiring and firing issues. And H.R. has just been given a lot of tasks that that it wasn't meant for.

00;07;07;21 - 00;07;25;12
Speaker 2
So one of the things that I want to talk about with you, Ryan, is understanding his role and in a larger sense in the business, what it's actually supposed to do, what it's supposed to look like. And one thing I want to start with is the perception of H.R. and one thing and not being your friend.

00;07;25;14 - 00;07;35;14
Speaker 3
Well, say what? How do you want me to come at you with this one? Do you want to give you my thoughts on from a management perspective? So I hear to you from H.R. perspective, or like an outside legal perspective.

00;07;35;17 - 00;07;49;28
Speaker 2
I think probably I would want to start with with the management perspective. I think it's important for you to be able to give management an idea of what it is thought of by employees in general.

00;07;50;01 - 00;08;10;18
Speaker 3
I tell you right now, in charge of management and to employees, H.R. does everything and nothing at the exact same time, because I have an issue. H.R. has got to handle it because I can't go to my manager or a director I to do that. You're trying to fix it. And they're always understaffed, undervalued, underpaid. And then when they don't do anything, that's who's in control for.

00;08;10;18 - 00;08;31;16
Speaker 3
That is their job. It always comes down to a job. And then if for some reason Sally gets a promotion and Tommy does it because he's thought that is H.R. So H.R. is like the scapegoat of all scapegoats in organization. So from an employee perspective, a manager perspective, I think they're saying I mean, the manager expects to try to do more than they're supposed to.

00;08;31;19 - 00;08;51;08
Speaker 3
Same time, employees in most companies who have dealt with food for people or five people h.r. Does everything they want to do every day. There's companies that we that we've worked with in the past where the person is the accounting person that is the vice president of sales. I mean, they're all the same thing. And so when you have bigger companies, they don't fund it properly.

00;08;51;09 - 00;08;55;17
Speaker 3
We get smaller companies. The people that are tasked with those jobs don't have the time.

00;08;55;20 - 00;09;15;28
Speaker 2
Yeah, and you as a plaintiff's attorney, we run into a lot of situations where the head person is kind of like the legacy person who was originally working in a different department when the company was smaller. And as the company grew, they had been handed off certain tasks to them. That was kind of h.r. Stuff, you know, like giving new hires, paperwork and stuff like that.

00;09;15;28 - 00;09;20;29
Speaker 2
And then they became the de facto h.r. Person after being the parts manager or the cashier.

00;09;21;02 - 00;09;22;09
Speaker 3
That was after they were trained, right?

00;09;22;09 - 00;09;22;29
Speaker 2
Yeah.

00;09;23;01 - 00;09;27;14
Speaker 3
I mean, but the person that started as an account manager have to go back to school for each are training, right?

00;09;27;17 - 00;09;53;04
Speaker 2
I mean, they should, they did it. Yeah. They didn't and Right. Exactly. And this is the problem that a lot of companies are having is that this is really a legal department thing because the consequences of getting it wrong are a lawsuit which can be extremely expensive even if the company finds out at the end of the day that they're not going to be held liable or there's a settlement before it goes to trial, it's still going to cost a ton of money to go through that process.

00;09;53;04 - 00;10;10;19
Speaker 3
And I think you, based on that and I know that how much that costs is going to get exponential. Talking about hundreds of millions of dollars, as you see in the past. Attorney and I've seen now in many cases what I've seen in other cases that you've seen judgments are just absurd. I see it sort of like lottery money.

00;10;10;21 - 00;10;30;26
Speaker 3
It just takes a ton of money to get there. But the same time, from a chart perspective, I share my thoughts on H.R. things. H.R. It's interesting because H.R. thinks the same thing that management thinks about with a different view, right? Obviously, the view is, Well, I'm supposed to do everything. I have to do it. I want to do this effort, but I'll just make a flip decision based on like a not a full range of facts.

00;10;30;27 - 00;10;52;02
Speaker 3
Enough time for this. And that's like a perfect environment. I have two kids, two small kids. I know you do, too, but like, if you're having a bad day because you couldn't sleep last night, two different people say, is that going to help you the next day at work? Of course not. So when you come to work and you have to be responsible for a thousand employees or two employees of the company as like an H.R. manager or a director, you're going to wear that baggage to work.

00;10;52;09 - 00;11;08;07
Speaker 3
And when you come to work and that happens, guess what? You're not going to perform your best. And so when you're dealing with high level decisions that sometimes need to be made very quickly because you can't get hold of legal counsel, you can't get all your do you see your your directors or your code directors, your answer, your phone calls anymore?

00;11;08;14 - 00;11;11;00
Speaker 3
What do you do? You make decisions.

00;11;11;02 - 00;11;32;24
Speaker 2
Yeah. And I think what you touched on is also important is that a lot of these C-suite employees or management people who are supposed to be in on a lot of the decisions that h.r. Is tasked with and kind of thrown at them. They don't want to deal with it and they just say let h.r. deal with it and they try to hide away or shy away from these decisions and just leave it to h.r.

00;11;32;24 - 00;11;57;29
Speaker 2
And then if things go wrong, they just blame h.r. Right. And and one thing that's very difficult that i see for a lot of our personnel just themselves is that as h.r. They're looked at as hall monitors and other employees, you know, want to stay away from them so they don't get in trouble and and h.r. Employees, they have to sometimes enact discipline or deal with interpersonal situations.

00;11;57;29 - 00;12;08;12
Speaker 2
And i think that leads to a lot of loneliness for h.r. People at the workplace, which sounds kind of funny, but they do get isolated because they're looked at as the bad guy at work. Yeah.

00;12;08;14 - 00;12;23;04
Speaker 3
No, that's true. Because if you said, my dear, I just thought of, like, a school, like a high school situation where a homeowner is walking over now all the kids are doing because they don't want to be seen or kind of hiding would be lockers or in a bathroom. But kids that are running by and throwing stuff at them, we're going to skip all out of them.

00;12;23;09 - 00;12;38;01
Speaker 3
Have you have the kids who are trying to do good and follow the rules are walking like this and being able to with their books or whatever. So that's exactly that's a great example because the person that's in the hallway is either a volunteer or they're not being paid enough to be there. So they're asking you, what is company changing your company?

00;12;38;01 - 00;12;43;00
Speaker 3
You know, drastic decisions and they're not qualified to be paid and don't give a crap.

00;12;43;03 - 00;13;05;25
Speaker 2
Yeah, And exactly. They don't have a good rapport with the rest of the employees. And I think it leads to a lot of breakdowns in decision making that lead to situations with interpersonal problems not getting taken care of the way they should and blowing up into larger situations. And management is not getting enough communication from h.r. About what the mood is on the ground with their employees.

00;13;05;28 - 00;13;11;09
Speaker 3
Yeah. So you guys be kind of you preface this would be h.r. is not your friend. Tell me why you think you trust me.

00;13;11;12 - 00;13;36;25
Speaker 2
Well, one thing that i do to keep up with trends in work and human resources and just the relationship between employee and employer is going in a lot of forums like reddit that have subreddits about h.r. Related topics and issues. There's ask h.r. There's human resources, all these different subreddits where people come in and they either ask questions as h.r.

00;13;36;25 - 00;13;55;16
Speaker 2
People about what to do in certain situations or it'll be employees asking questions about something that happened to them at work and whether or not what the company did was fair or not or how to proceed. So one of the things that you always see after somebody, say an employee asks a question about what do i do? Do i go to h.r.

00;13;55;16 - 00;14;06;10
Speaker 2
In this situation, it's almost inevitable that somebody is going to comment just h.r. Is not your friend or never go to h.r. Never talk to h.r. They're they're not on your side. They're only on the company's side.

00;14;06;13 - 00;14;09;09
Speaker 3
Let me think. By a company, I mean our company payroll, right?

00;14;09;12 - 00;14;22;26
Speaker 2
Well, yeah, exactly. But, i mean, this is a situation where they're not supposed to really be on anybody's side. The whole point is just to be an administrative wing of the company and then be turned into this kind of like principal's office where employees get sent when they get in trouble.

00;14;22;26 - 00;14;32;05
Speaker 3
And I suppose to self-report like what you're supposed to self-report to the governing body, essentially using our office when something goes wrong or they think something goes wrong.

00;14;32;11 - 00;14;54;03
Speaker 2
Exactly. And if they are at a company where h.r. Already is disorganized or a company doesn't necessarily have all their ducks in the row when it comes to the administrative staff and, you know, just being able to explain h.r. Related stuff to their employees, their employees lose trust in the company as a whole. And they always think that h.r.

00;14;54;03 - 00;15;09;21
Speaker 2
Is going to be siding with the boss or with management when a lot of times the reality is it's not in the company's best interest for h.r. To just side with management because they could have a situation where something needs to be investigated or management has done something wrong. Yeah.

00;15;09;24 - 00;15;25;28
Speaker 3
That's where it makes it in our best interest as attorneys because plaintiffs attorneys, you know, you want them to screw up to capitalize on that with, you know, a lawsuit as defense attorneys. I mean, unfortunately, they're paid that way by it. A little different than you are as a defense attorney. But that's what happens in your career h.r.

00;15;25;28 - 00;15;42;02
Speaker 3
Company. And that's a common misconception where h.r. Was the side of the company every single time or if h.r. Was like, aligned with the ceo's wishes at all times, there would be an immense amount of litigation and resource problems. The law would be much worse than it is now. But, i mean, that's not actually not the case. I agree with you.

00;15;42;02 - 00;16;04;16
Speaker 3
I agree with the principle. h.R. Is not your friend, because a lot of people have h.r. roles. Like we talked about earlier are experienced enough to to get respite kind of or bifurcate the issue of, like personal and business, especially when these are all. But then you have not going to go to h.r. If there's a problem because i don't want somebody knowing about the relationship or i don't know that i got harassed at work.

00;16;04;16 - 00;16;28;28
Speaker 3
I don't want to know what's the sec loose lips sink ships and you know, every other day, h.r. People are people and h.r. Miller and h.r. Department could be a real gossip depending on the kind of business that you run in the enforcement that you handle internally. So i don't know, i i think they charge into your frame if you use it properly, but i also think that if you think it's all going to being like the wizard of oz, but you have a lot of problems.

00;16;29;00 - 00;16;48;25
Speaker 2
And just from a plaintiff's attorney standpoint, when I have a potential client come in and they tell me about a situation where they feel like they've been harassed or discriminated, and I asked them, Well, have you gone to H.R.? And they say, No, I'm looking at it like, okay, I just lost a potential chunk of money here that we could go after.

00;16;48;25 - 00;17;12;10
Speaker 2
Because really, the way that in my eyes that the law interprets things is that what an employee should do is try to get things resolved internally and give the company a chance to fix it before they reach outside to an attorney to try to get things done. Because one of the first things that a mediator or a judge will ask for in a situation with discrimination or harassment is, did you go to H.R.?

00;17;12;10 - 00;17;19;17
Speaker 2
Did you put it in writing? So what's your perspective on employees who just go straight to a lawyer and don't go internally?

00;17;19;19 - 00;17;53;17
Speaker 3
That's a good question. I think I honestly think that if you don't go H.R. and try to sue you have problems. But wage and hour is a little bit different. Keep an eye out for an indicator like employment issues. But if you don't reach out and have them try to fix an issue, it was always the exception. Like if some grossly aggrieved party it's abused like sexually abused or physically abused or, you know, some certain types of emotional abuse, that there's really no like you have Pasco situation, but you always think of H.R. like maybe you're getting a lot of comments as an employee and you don't feel comfortable with somebody making jokes about things,

00;17;53;21 - 00;18;23;12
Speaker 3
you know, inappropriate at work. That's something that you should immediately sue for, in my opinion, because H.R. can take that information and can easily, I think, come to a solution and remedy the situation. And there's a wide range of things to do there. So I think from a defense perspective, if if I see a case coming in or across my desk that I was not consulted on, I just might raise the lawsuit, especially on issues that I believe can be fixed to me if I'm going to make money on it, because I have to go through the process of what they're doing and then they file lawsuits.

00;18;23;12 - 00;18;28;19
Speaker 3
But it's going to be a defense victory, in my opinion. That's not going to give us a chance to fix it.

00;18;28;22 - 00;18;50;22
Speaker 2
Yeah, and you touched on something that was important cases where it is kind of appropriate to go straight to a lawyer And just to give a couple examples, because people always want to know about the exceptions, I've found that sexual harassment is a good one, but where people don't feel comfortable going to the company and and one of the things that's very important to keep in mind is the severity of what happened.

00;18;50;23 - 00;19;11;03
Speaker 2
So if you have a sexual harassment situation where somebody is physically touched you or made extremely, extremely offensive or lewd comments, that might be inappropriate situation, or in a small company that maybe doesn't have a whole separate H.R. department and your H.R. department is the owner of the company or your boss who's the same person perpetrating the harassment.

00;19;11;05 - 00;19;25;04
Speaker 2
Then of course, you go to a lawyer, because what's the point of going in and telling the guy who's doing the harassing? He's going to put on like a different at, you know, from CEO harasser and H.R. and you're going to have to talk to each different person. So, yeah, of course, that doesn't make sense.

00;19;25;07 - 00;19;44;19
Speaker 3
I laughed because the insertion comes up too often, just because the true definition of the word comedy is comical because the person we're asking you is also your boss and also the H.R. person. Clearly, you don't want to go to that person, but that's what the law especially has have something funny. It's obviously crass. So I want to try to make that clear.

00;19;44;22 - 00;19;57;19
Speaker 3
Not laughing at the harassment. That's it's absolutely terrible. But the fact that the lawyer would like you to go to that person and boss and stop or do something about it when the person who has to do or keep that action, being the person who did the harassing, it's absurd.

00;19;57;21 - 00;20;32;19
Speaker 2
Yeah. And one of the things as a plaintiff's attorney, the reason I want my my clients to go to H.R. is because if the company then fails to investigate the situation, that gives me a much stronger claim. Or if they investigate and they screw it up or it's obviously biased, I know I'm dealing with a company that doesn't know what it's doing, and I'm going to get the H.R. person or the manager in a deposition and just kind of run circles around them about why they didn't want to engage in a real investigative process to find out what this person's issue is and see if they can fix it.

00;20;32;19 - 00;20;36;06
Speaker 2
So I love it when people tell me they've they've gone through an investigation.

00;20;36;11 - 00;20;59;08
Speaker 3
Yeah, it's funny you bring that up to you don't go to investigate the situation because a lot of times in bigger companies, there's always a solution like barring the extreme, the extreme, most extreme, either way, conduct, you know, if your salary is not the most Tommy for whatever reason and it's critical issue move departments change schedules we're on a different desk.

00;20;59;08 - 00;21;19;01
Speaker 3
I mean there's so many things to be done, but the company either doesn't do it, which to me, if it does that movie, somebody has to ask, Are you having to buy an additional desk for a few hundred dollars and we have to get out of the building if there's space to be is like, well, you wouldn't spend $600, but you'll spend 50 grand defending a lawsuit against us.

00;21;19;03 - 00;21;35;14
Speaker 2
Yeah, it's just a lot of these losses we see is just the product of stubbornness from from management. And what is it ripping off your nose to spite your face or that's kind of what happens is that they don't want to seem like they're going to let employees take advantage of them and everything is made up. And you don't know that until you've gone through the investigation.

00;21;35;14 - 00;22;00;07
Speaker 2
So it's also very important for companies to investigate things thoroughly. So when they do get into a lawsuit situation, they have a lot of plausible deniability in the sense that, yeah, we took this seriously because one thing juries look at is how the reaction of the company to the problem kind of manifested itself rather than necessarily just the acute kind of situation that caused the problem.

00;22;00;09 - 00;22;26;05
Speaker 3
Well, that brings up another issue, which is trust. How does an employee trust somebody to have their best interests at heart? And that's like a collateral question. How does that work for you? Have that trust in another employee in charge of an employee to trust the manager with that other person seems to be or has a feel of like corporate bureaucracy that they're going to be on the side of the company?

00;22;26;08 - 00;22;51;23
Speaker 2
Yeah, exactly. And I think a lot of times what happens with people who have forgot the humanity aspect of their job because it is human resources, you have to behave kind of humanely is that they they have to understand that people have feelings and these feelings are going to affect the entire workforce if they're consistent, not investigating claims or firing people who bring up problems.

00;22;51;23 - 00;23;10;01
Speaker 2
This is something that's going to affect the company very deeply and cause a lot of problems. So it's very important to take both as an employer to take your claims brought to you from employee seriously and as an employee to give the business or employer a chance to solve things.

00;23;10;03 - 00;23;35;09
Speaker 3
And that is that the trust you're talking about? Right. And I agree. The problem, though, with having trust in somebody else is that they're not you right. So if you have these any thoughts about companies increasing the awareness of the Department of Transportation Department, there's initial reaction to that question that I've just posed would be or if you're telling me to trust this person, why why are you telling me that?

00;23;35;09 - 00;23;51;11
Speaker 3
There's obviously some reason that corporate or corporate wants me as an officer or you as an employee to trust this third person? Why is that? What is going on in corporate mind right when you have that community for sense of what's going on? Are they putting corporate mind back on the back? Is that why to get promoted last year?

00;23;51;11 - 00;24;06;14
Speaker 3
Is that why they can raise that way? I think it let off to go to my kid's graduation last week and my request, I was like, Hey, you got any suggestions or experience with times where you need to increase awareness, reach out and you should trust each other?

00;24;06;18 - 00;24;26;11
Speaker 2
You know, I think a lot of it starts with the way that managers kind of interact with their employees and whether or not managers are first taking the time to see if they can solve the problem before just handing it off to h.r. I think that makes a big impression on employees. If the manager is not taking time and just kind of have to.

00;24;26;12 - 00;24;26;29
Speaker 3
Do their job.

00;24;27;02 - 00;24;27;26
Speaker 2
Yeah.

00;24;27;28 - 00;24;28;26
Speaker 3
Yeah. this.

00;24;28;26 - 00;24;48;28
Speaker 2
Is. Yeah. Go to the principal's office. Because if you're a student, you just think about work and school are very similar and being in work situation, I think mentally puts people in a place where they almost feel like they're back at school and the managers are their teachers and h.r. Is like the principal's office. And so there's an issue where employees feel like infantilized almost.

00;24;48;28 - 00;25;15;05
Speaker 2
They're just getting sent h.r. And they're not heard by their management or the people who are directly involved in the problem. So i think one of the things that you can do to build trust just in the company in general is just to train your managers in interpersonal skills, in conflict management, and just learning how to just be like the nice, normal person that doesn't hide behind the rules and regulations of the company, but kind of stands by them.

00;25;15;05 - 00;25;16;12
Speaker 2
I think that's a big distinction.

00;25;16;17 - 00;25;36;14
Speaker 3
It's funny, as a kid growing up, I really liked to follow rules. I wasn't jaywalk. I wasn't going to do anything that I wasn't supposed to do. That's how I was raised. I grew up like you realize. You have these thoughts when you get older, especially when we're in the companies, large corporations, where it's like, I think we need to follow the rules.

00;25;36;14 - 00;25;42;27
Speaker 3
And what do you mean you were drinking on the job? You should have known that you're a person, right? You should not read at all. You should have known better.

00;25;42;28 - 00;25;44;11
Speaker 2
It's common sense concepts there.

00;25;44;13 - 00;26;04;17
Speaker 3
And that's a very good point to get out of that. The common sense here is lost from both sides because there's a lot of things that players or even employees do at work. That's just my stupid and nonsensical at the same time. Each hour before I see you for the inside, as is too many things that each artist well, because it makes no sense.

00;26;04;17 - 00;26;17;13
Speaker 3
I like going back to my example of like, I follow the rules. Why don't you follow the rules? Hey, you're not supposed to drink at work. And why are you doing? You know the rules right there. You have to handle it. You signed it. Why are you doing this? And all of a sudden you realize that not everybody is like you.

00;26;17;13 - 00;26;50;04
Speaker 3
One and two is that nobody really cares again today, no one cares. And if they do care, it's because they read it and don't want to make it better. But they become jaded after a certain point of time and nobody enforces those rules. And so and I think I'm trying to relate this very poorly, I think, to your suggestion of trying to have managers do their job and make train managers, because I guarantee you, because I had this experience where you have a manager and five managers, five employees, if those five employees are doing the job, drunk or not, the managers give a crap because they're doing a job.

00;26;50;07 - 00;27;07;26
Speaker 3
The manager's job is to get the work done. Work is done. They don't care sober or not, although it's grossly, you know, against a lot of most like the internal policy that's flaws and all probably more depending on the industry you're at but it just becomes an issue. And so as you get these people, I don't care. And that goes down and down and down to nothing.

00;27;07;27 - 00;27;10;25
Speaker 3
Everybody becomes just kind of a cog in a machine.

00;27;10;27 - 00;27;37;01
Speaker 2
Yeah. And I think that's very important. That relates back to what I was talking about, like putting the humanity back into human resources is that they're treating everybody equally, does not necessarily lead to a better workplace because different positions in companies should be treated differently. If you have an employee who is late every single day, you have to look at the totality of the situation, what kind of employees this is.

00;27;37;01 - 00;27;59;03
Speaker 2
This like if you're a security guard who's got to be at work at 9 a.m. to be able to open the door so everybody can get in? Yes, tardiness is extremely important and an issue that needs to be dealt with. But if you're, say, managing a group of ten engineers or five engineers like you were talking about, and somebody comes in 10 minutes late every day, they're standing half an hour later, their projects always get done.

00;27;59;06 - 00;28;18;15
Speaker 2
It doesn't then make sense to enforce these tardiness rules against this person. And like I said, it's treating everybody equally doesn't necessarily lead to better results. And a lot of people, I think, have a they detest being thought of as like, this employee as different rights than I do and I have to be here or whatever. But that's just kind of the reality.

00;28;18;22 - 00;28;40;22
Speaker 3
I'm smiling because that reminds me of a research I've done on colorblind constitutionalism. I relates to like rights as to race and status and how the Supreme Court justices over the years have interpreted one. Prosecution was one or like, yes, it's separate but equal or yes, it's, you know, whatever the law is and how they're different, people see the same thing, different ways.

00;28;40;24 - 00;29;12;06
Speaker 3
I was finally, because my example was before the rules that I was brought up, if I'm here and I got your car and your exam was class attorney was, which it should have been, my example is, well, you're 10 minutes late, but you say 30 minutes after y like it worked out. And so I of the same issues in three different ways and depending on who is doing it and how it's done to me, how often, how often it's done, if the rules were fighting with everybody, if that actually becomes an issue that we give up like a free or a defense may have to do.

00;29;12;08 - 00;29;34;13
Speaker 2
Yeah. And that just goes to highlight the difficulty of defining common sense, because common sense, there could be a whole bunch of solutions to one problem that could be considered common sense. But a one is is the best solution. And when people are in a position as a people or as management people or even as employees or being affected by something at the company, what's a forest for the trees situation?

00;29;34;13 - 00;29;53;28
Speaker 2
A lot of times you're so mired in the details and because of what you're dealing with in the company and all the possible consequences and unintended consequences that could happen that you don't realize, Hey, I'm just doing something really dumb. Why am I getting on my best employee who's making $200,000 a year as an engineer for being 10 minutes late?

00;29;53;28 - 00;30;01;25
Speaker 3
Who cares and never been late on a project delivery, who's never been has ever screwed up a calculation, and now you're jeopardizing your business over, you know, 10 minutes.

00;30;01;29 - 00;30;20;27
Speaker 2
So what would you say? Let's say you had a you had a manager who called you. And there's this situation where a lower level employee, like the security guard or somebody who needs to be there on time every day is complaining about like, let's say, a kind of engineering type employee being 10 minutes late every day.

00;30;20;29 - 00;30;42;10
Speaker 3
That's tough. And I go back to my example of everybody needs to follow the same rules, because if that employee who needs to be there at 10 a.m. or whatever, start doing their job, then I have to choose between my risk and reward, right? If I want my engineer, if I enforce the rules against an engineer, that I might lose a lot of business and or money off of this lawsuit, depending how I do it.

00;30;42;13 - 00;31;03;04
Speaker 3
But if I don't do software that engineer the security guard on that side or whoever that example, it's got to come to a point where they're not going to carry more once that person is late, one, five, three times of the Times laboratory. Here you are enforcing that. I have to start enforcing against that person. And they're going to say, well, you didn't do it and enforce those rules against the next man and I could do it.

00;31;03;06 - 00;31;20;02
Speaker 3
So really, i have to deal with something either way. Every business owner or h.r. Person or whatever. I don't know how i would handle that. I think i would trade. I think i've hit a middle ground. I think i would say something like, well, company widening their company wide, something like a pizza lunch that's like, do you charge your friend everybody with a pizza lunch.

00;31;20;09 - 00;31;42;12
Speaker 3
So like a Friday afternoon I say, everybody get pizza. You know, pick a name of a have for a pizza restaurant. As I'm handing out a pizza, everybody is saying this around here. Everybody be on time. I like to do like an informal, but I'm also giving you some pizza situation and and hope that it works. And if it doesn't fix the issue, that would be a guise of enforcement, but at the same time, try to resolve it.

00;31;42;15 - 00;31;47;09
Speaker 3
But I have to think something else, maybe 3 to 2 weeks.

00;31;47;12 - 00;31;51;15
Speaker 2
Sure. It's good pizza. I think that that's really the first step in an employee relations.

00;31;51;23 - 00;32;09;13
Speaker 3
Make sure you know what it's like to each our job. You see everything I go, I was actually you guys were very cool for your pizza party next week. Like, that's just the future. Like you said. I hope you attended that, but agree like circumspect. Back to your point of like h.r. Is a party planner. Like, nobody gives it, like, a serious connotation.

00;32;09;13 - 00;32;18;22
Speaker 3
No one thinks it's real if they think it's real because you have to deal with h.r. And they hate them and all they do is for parties, which is not anything close to what they do or.

00;32;18;23 - 00;32;42;25
Speaker 2
Yeah. Or force you to sit through trainings on whatever the topic, the sexual harassment training or the discrimination training where they see these trainings and then they don't see the things that are happening in the training being implemented in the company and they care even less and they respect the department even less. But yeah, it also, just like you touched on as a business owner, there's situations where our are going to be net losses no matter what you do and what.

00;32;42;26 - 00;32;43;24
Speaker 3
You can reduce the net.

00;32;44;00 - 00;32;45;07
Speaker 2
Yeah, exactly. Exactly.

00;32;45;07 - 00;32;52;22
Speaker 3
Loss can be, you know, some issues that you're playing with an employee or it could be, you know, $100,000 legal legal fees to defend the lawsuit.

00;32;52;24 - 00;33;09;12
Speaker 2
Exactly. And that's when you have to choose. And a lot of times with smaller businesses, this is when the owners kind of own personal attitude can get in the way of good business decisions. And it's just really difficult. Like you were saying, you know, you would you would throw a pizza party and tell everyone to be on time.

00;33;09;12 - 00;33;26;28
Speaker 2
And it's very difficult as a manager to go to that security guard or receptionist and tell them, hey, listen, you have a different position than the person that you're complaining about. This has nothing to do with you and kind of just letting them know that the expectations from the company for them are different from other employees. And also.

00;33;26;28 - 00;33;29;23
Speaker 3
Got official. What would you do with that same situation?

00;33;29;26 - 00;33;35;27
Speaker 2
Honestly, I think that that's what I would do. I would I would want to know why it's bothering the employee so much that this person is.

00;33;35;29 - 00;33;40;14
Speaker 3
Like the answer because they're not on time. And then we're going to be on time, like for you. Yeah.

00;33;40;17 - 00;33;43;29
Speaker 2
Exactly. And that's difficult because then yeah, then you have to explain a.

00;33;43;29 - 00;33;44;28
Speaker 3
Pizza party and.

00;33;44;28 - 00;33;58;25
Speaker 2
You know, but you know, and that's at the point you're like, well, listen, man, you know, is this going to be a problem going forward or are you going to, you know, is this going to affect your work? And if it does, then as an Atwill employer, I got to be thinking to myself, well, I don't want this disgruntled person around.

00;33;59;00 - 00;34;03;04
Speaker 2
If they're going to be complaining about somebody who has nothing to do with their work being late all the time.

00;34;03;04 - 00;34;06;03
Speaker 3
What's interesting to me. So they're only disgruntled though, because you want to push the rules.

00;34;06;06 - 00;34;09;07
Speaker 2
Yeah, it's true. that's what I mean. It's like there's no way to win.

00;34;09;07 - 00;34;25;08
Speaker 3
This one on my devil horns. You devil's advocate, that is. It's crazy because you have and it goes decision because that might be cutting off of a nostril not your nose to spite your face because your other nostril is worth more than whatever other position might be. Yeah. And that might be a good business decision for you. I don't know.

00;34;25;10 - 00;34;45;21
Speaker 2
And that's the thing that makes h.r. So difficult because it's a legal decision. It's a business decision. It's just a relationship decision. It has many things that go into it, and then it just gets so overwhelming that a lot of times these underpaid, underappreciated, ignored employees who are doing things that they're not supposed to be doing, start screwing up and not caring as much.

00;34;45;21 - 00;35;16;02
Speaker 2
So I think now would be a good time to take a break. One thing that I'd like to go over in our next segment is bullying in the workplace and just have a talk about the difference between kind of bullying that happens in the workplace, that is actionable legally, where you should go to a attorney and find out what your rights are and then bullying that steps over the line that goes into harassment or that fits the legal description of those things.

00;35;16;02 - 00;35;50;05
Speaker 2
So we'll pull out some examples from Reddit as well. And all right. We're back with our podcast h.r. Is dead and we killed it right here with you with ryan ellis and wanted to go over bullying in the workplace because that's a big topic. I get a lot of people coming into my office all the time telling me that they're being bullied, work and they want to sue for harassment and discrimination.

00;35;50;07 - 00;36;18;01
Speaker 2
And i think it's really important to kind of talk about the distinction between what is it commonly understood definition of bullying and then the bullying that steps into the realm of being legally actionable. So what we're going to do is just talk about the definitions of bullying first. And then I want to talk about a post that we found on Reddit that talks about this exact situation and gives us examples and then go over some of the comments and talk about the comments.

00;36;18;01 - 00;36;41;10
Speaker 2
And then we'll talk about the perspective of plaintiff's attorney, the perspective of a defense attorney, the perspective of manager, the employee, and just everything, just so you can get a full picture of what's going on. So, Ryan, I want to start with asking you, what is the definition of everyday bullying that you see people consider to be bullying in the workplace?

00;36;41;12 - 00;37;12;24
Speaker 3
I think that's hard because everybody takes everything differently, right? What you might perceive as bullying or bitchiness, as they call it in the office nowadays is not necessarily bullying like legal perspective. I think bullying is anything you say to somebody that they don't want to hear, which unfortunately in California means literally anything. But really, I think the traditional sense of bullying from a legal consulting perspective is statements in comments or otherwise other conduct that is intended to annoy, harass or oppress somebody else.

00;37;12;27 - 00;37;15;08
Speaker 3
I made that up as I was going so I'm not sure.

00;37;15;10 - 00;37;16;11
Speaker 2
I mean, I think that's pretty good.

00;37;16;11 - 00;37;30;07
Speaker 3
I think there was a jury instruction somewhere on it, but it was actually kind of intimidating, harassing, just, you know, conduct that necessarily. Right. Of rights. The level of physical harassment or emotional harassment, we're just like, you know, past.

00;37;30;09 - 00;37;34;14
Speaker 2
Yeah, pushing people around and intimidating them, making them feel stupid.

00;37;34;19 - 00;37;51;04
Speaker 3
High school drama. Like, imagine if you had if you were in an office. We use it. We'll go back to your example of like a school. If you're in high school or you're in middle school, and somebody said something like, I feel sorry for you. Like, what do you do to that? That's like, Why did you just say that?

00;37;51;06 - 00;37;57;12
Speaker 3
Like, we're adults here. Like, who says that one that was unnecessary and two, like when it was really well.

00;37;57;12 - 00;38;31;03
Speaker 2
And I also think that you know, it's very good to bring up the example school because this is where a lot of the conditioning starts for how to deal with these situations. You know, that that becomes your life when you're older. I work is in high school and in middle school and people being told by authority figures like teachers or counselors or principals or whatever it is, just forget about it or don't be a tattletale or making a big deal about or the opposite of making a big deal about doing something and then creating an expectation that there is an authority figure who is going to solve your problem.

00;38;31;03 - 00;38;35;04
Speaker 2
And that authority figure a lot of times, you know, manifests as the H.R. department.

00;38;35;07 - 00;38;53;18
Speaker 3
That's why I was bullied as a kid and I excuse my anxiety that I have today. I'm just seeing like how people interact. I never knew what threats of violence were as a kid. You don't know what that is when you're experiencing it, but you know, it's not you know, something makes you feel good inside, but you grow up, you realize like, whoa, like that's what it was.

00;38;53;19 - 00;39;11;14
Speaker 3
It was executive anxiety. Mental health now is a forefront of a lot of the world now, which is great because a long time ago, like 23 years ago, we care about mental health. They will not say they don't care about it, but it wasn't to the forefront of society. If people didn't ask you. And we're dealing with a lot right now and how is your mental health?

00;39;11;18 - 00;39;28;24
Speaker 3
You talk to somebody. So that's one thing. It shifts as a kid and two, in the exact environment in school for me, same thing. You're being bullied. What do you do to get out of it? Who's going to help you? Who's not going to help you? What are you trying to do? And it's literally, literally the exact same thing from school in the workplace, right?

00;39;28;26 - 00;39;42;28
Speaker 3
Where as an example, you have that be your principal of your team. You have rules you must follow, your people who abide not don't abide by those rules. So what do you do? Well, if I tell them those kids you beat me up or further harassment or intimidating or whatever. But if I don't tell them, I have to deal with it anyway.

00;39;43;02 - 00;39;43;29
Speaker 3
What's worse.

00;39;44;01 - 00;40;10;07
Speaker 2
Exactly. And people who feel that there is no place to go because they've gone to h.r. They're gone to a manager and haven't received help or they don't want to go to a manager or or h.r. Because they feel like it's just going to make things worse. That's a very powerless position to be in. And one thing that makes the school so difficult and also working in a big company difficult is that you see the same people over and over every day.

00;40;10;10 - 00;40;29;14
Speaker 3
And that's actually a good point in school, though. I'm going to i'm going to try to I'm going to attempt to to break these two examples apart for a for like a learning experience in school, you almost have to fit in. Right. Whether that's with your group of friends, whether that's what your grade, where is your age with your class?

00;40;29;19 - 00;40;47;10
Speaker 3
Not with like necessarily like, you know, the goth kids or the cool kids or the jocks, whatever. More like give the kids some. Right? Whether it's with your friend group, with your classmates, with your education, with your whole grade. Well, there's a level of it. And I guess you're forced to do that, right, to some degree. But in in real life, you don't have to do it.

00;40;47;15 - 00;41;05;01
Speaker 3
Like I learned this very recently, You don't need to have a million friends or you to appease everybody. You all need to be nice. Everybody. Mike Tyson said Someone who's a friend to everyone is an enemy to himself. And I might be misquoting, but it's like, you know, be nice to everybody. You're there in real life in the company.

00;41;05;08 - 00;41;13;18
Speaker 3
You're there for yourself, but you need you're there. You're not at work because you enjoy work. Like not maybe some people enjoy work, but if you're there because you didn't need to be there, right?

00;41;13;22 - 00;41;20;01
Speaker 2
You have a job to do and you've traded your time to do that job for money from the company. Right.

00;41;20;01 - 00;41;34;12
Speaker 3
And like my dad always still says to me, I don't want to go to work. He says, Well, if work was fun, they would call it fun. They wouldn't call it work, but that's what it is. And so you can get these idioms in your head to be saying, Well, so you go to work, you need to fit in, right?

00;41;34;12 - 00;41;49;24
Speaker 3
You don't need to. A lot of people keep that feeling. And I mean, again, where I fit in mentality or have a clique or have something at work when you don't need to like you don't have to. And there's a reason I'm saying it this way. You have to hold that like sacrosanct, not it up to be out there.

00;41;49;24 - 00;42;11;23
Speaker 3
Because at work, yes, you have to deal with people. But I can guarantee you any good company with a good artwork or just any great chart will recommend that you get moved, transferred, promoted, demoted or whatever for the same pay for different department. If you're getting interesting, keep reporting it because if you are working across from each other and desks, you know, desk meets whatever and you just harass me every day, I don't say anything.

00;42;11;23 - 00;42;32;01
Speaker 3
It's just going to worse. You're not going to just wake up one day, have an epiphany, I'm going to stop. Or as of writing today, No, you're going to keep doing it cause that's what you do. It's your comfort zone. But if I told you, I tell on you telling me if i were reporting to h.r. And he actually knows what they're doing or does anything like investigates or does any disciplinary thing, after a couple times, you're going to be gone or I'm going to be gone to a better place.

00;42;32;03 - 00;42;59;26
Speaker 2
Yeah, and I think the the difficulty is finding the line on when it becomes a problem that you need to report it. And I think just for bullying in general, once it gets to a point where it's impeding you from doing the job that you're being paid for because somebody is harassing you or bothering or bullying you and you can't do your job and you can't concentrate on your job to perform what you've been paid for, then that that's when it gets to a point where you need to take some action.

00;42;59;28 - 00;43;15;27
Speaker 3
So when so you give me an example. I mean, I think everybody has a different line, especially in California. But what's your line in the my example of, you know, being decimates and just kind of giving off color comments? If I was of color comments about you or to you, what was your line?

00;43;15;29 - 00;43;30;27
Speaker 2
Well, yeah. I mean, again, you know, it's very difficult because, again, there's that mentality that you're not supposed to be a tattletale or you're supposed to suck it up. You're supposed to deal with things, you're supposed to be an adult. And that comes with a certain measure of dealing with it, with people's personality quirks and things like that.

00;43;30;27 - 00;43;48;03
Speaker 2
But again, if somebody is bothering me to the point where I can't get my work done, I think that that's the line because I'm there to get work done. Of course, there's going to be personal relationships involved that work, work, friends and and things like that and socialization. And that's very important to be in a in a good environment.

00;43;48;03 - 00;44;06;26
Speaker 2
But yeah, I mean, I think once I'm at the point where I can no longer do the job effectively and it's affecting my performance and it could lead me to getting fired, then that's the point where I'm going to get up and say something that's going to be different for everybody. And again, that kind of goes back to what we were talking about earlier, about common sense and things like that.

00;44;06;26 - 00;44;24;28
Speaker 2
And people are bringing their past experiences from high school being bullies themselves or being bullied. Both. And that's going to reflect into their work because nobody's really taught what your personality is supposed to evolve like other than kind of sharpened by social interactions.

00;44;25;00 - 00;44;46;24
Speaker 3
Right. And I think that's that's a good segue way to and my comment is Rich should deal with this, right? I mean, any company in California worth, you know, for you know, one of the family lawsuits has a company handbook, right. So any company handbook should have an anti-bullying anti-harassment policy, which means that the company has acknowledged that it exists and they should have a method or means to address it.

00;44;46;28 - 00;44;56;06
Speaker 3
But it also needs management. It might not want to do. This might be one of those things like really of like just get along. Like, just figure it out, you know? Figure it out. Figure it out right at your job.

00;44;56;10 - 00;44;58;06
Speaker 2
You're an adult. You have to figure it out. Right?

00;44;58;06 - 00;45;18;02
Speaker 3
But then that could be your first complaint. And then your second the next couple days where there's another problem and eventually they're going to have to address it. If they don't address it, know one of their to get sued or even worse, get a class action because they're not enforcing policies on several levels. So I think management might not want to deal with these kind of little with very little like pebble in the shoe issues.

00;45;18;05 - 00;45;21;17
Speaker 3
But those pebble in the shoe issues become big problems when you're running a marathon.

00;45;21;20 - 00;45;47;08
Speaker 2
So and I think the difficulty for management is what is the line that they have to accept? Because a lot of times you might get somebody who you think as a manager is just complaining for no reason, but you still have to address the problem that's being brought to you so it doesn't snowball into something bigger. But yeah, you might have a situation where an employee comes in and says that you're being bullying or harassing and has a manager or h.r.

00;45;47;08 - 00;46;01;04
Speaker 2
Person. You have to tell them. Listen, this is not as big of a deal as you're thinking and or you're making it out to be, and you have to figure it out or or as a manager, you've got to bring in all all the both employees together and talk to them or or solve this.

00;46;01;07 - 00;46;18;22
Speaker 3
One on one or have some kind of a mediation session. I agree. And that's like with the growing level of mental health issues and for mediation, I think that's that's a great answer. But also that's that answer that comes from H.R.. I mean, it is an issue or isn't an issue comes after an investigation. And this word investigation, I'm sure, will come up a million times in this podcast.

00;46;18;25 - 00;46;22;18
Speaker 3
But management has a job retraining job to looking at the situation, right?

00;46;22;21 - 00;46;47;02
Speaker 2
So I have a lot of people coming in who want to sue employers telling me that they've been bullied or they're being harassed or discriminated and they want to sue. And I'll ask them. I said, Well, what's going on? And they'll say, well, my manager favors another one of my employees like their friends, and they're not friends with me, or I get twice the amount of work that I'm supposed to get or I get yelled at all the time to work faster.

00;46;47;04 - 00;46;57;17
Speaker 2
So let's take the work faster example that somebody is being bullied all the time by their manager to work faster. Is that something that you would be worried about as somebody who consults with a company?

00;46;57;20 - 00;47;13;07
Speaker 3
A lot of actors go into that response. Employee shortages is one of them. But assuming like in a vacuum of like just general business, I have no issues of if I need to hire someone to replace that person, I could or I could have enough adequate funding to supply the hardware, the people that need to get the job done.

00;47;13;09 - 00;47;30;04
Speaker 3
yeah. I mean, obviously I have an interest as an employer to tell you to do your job faster because if you're making widgets, for example, you make ten widgets in an hour. I want you to make 11 or 12 or 15 or 20 a certain point in time that becomes unsustainable. And then on the contrary, I want to make sure you're happy.

00;47;30;06 - 00;47;49;25
Speaker 3
So I have to push you to a point of I was like, there's like a range of like comfort, adverse reaction, trying to push you to do more of an efficient job and less of like a derogatory, jaded employee. I don't know that's different for everybody, right? And some people like to impress their employers. Other people are just there for the paycheck.

00;47;49;28 - 00;48;08;02
Speaker 3
But yeah, I'm telling me to work harder personally, my management style, that's because they're not doing their job. It's not because they're not meeting my code, it's because they're not just not doing the basics of their job. And that's it. That's usually my internal first morning. I'm watching you do something. I was out when you recently with one of my employees.

00;48;08;05 - 00;48;35;17
Speaker 3
I was like, Look, let's talk about something like how is working out kind of a very not nuanced way of approaching general such a specific situation that maybe it was all better after that if the person figured out or we talked about what issues were in whatever, what I could see in a bigger company when upper management is telling you to build a lower manager and get your numbers up wherever that might be, and then the whip comes down and now people are worried about getting their job already fired.

00;48;35;19 - 00;48;58;11
Speaker 3
But again, like if you hit too many times of this summer telling you to work harder, you're going to tell them f off and you want to do it anymore. And then you put your job, Jeopardy and then company and then it goes back up the chain through the upper management level to the top. So I think I think times where you work harder personally is not believe it's more of a very bad way of trying to make the company produce or be more efficient.

00;48;58;13 - 00;49;18;29
Speaker 2
And a thing that I tell a lot of potential clients who come in and I say, Well, them telling you to work harder or work faster, even as a plaintiff's attorney, I'm looking at it is that's that's just supervising, that's being a supervisor that if you notice employees being slow or or not working or goofing off, you have to go and tell them and confront them about their lack of production.

00;49;18;29 - 00;49;46;05
Speaker 2
And I think a lot of people take that as employees will take that as them being bullied. But, you know, it does require a certain amount of self-reflection from the employee to see, okay, am I not doing my job? But there is a line, a very difficult to define line in a lot of senses because of the nuances, but but very clear line from the government and what bullying crosses over into legally actionable harassment, discrimination.

00;49;46;08 - 00;50;12;25
Speaker 2
And that's what we want to talk about next, is when bullying turns into something that's legally actionable because the law usually wants to stay out of the business of businesses until the business is behaving in a way that that crosses a line that becomes legally discriminatory or legally defined as harassment. So, Ryan, why don't you give us the legal definition of?

00;50;13;02 - 00;50;13;19
Speaker 2
Harassment.

00;50;13;24 - 00;50;39;14
Speaker 3
Yeah. So California jury instructions define harassment essentially as somebody was subjected to conduct they believed to be harassing or harassing harassment again for a reason, that it was severe or pervasive, which means that all of their working conditions are work environment. But the kicker here is that a reasonable person would have believed that it was intimidating, oppressive, abusive, hostile stuff like that.

00;50;39;15 - 00;51;08;07
Speaker 3
If your work environment was changed because of it, it became hostile, oppressive, intimidating. So with that definition, a lot could be it and could not be harassing because you have that reasonable person a quote unquote subjectively objective standard of what a reasonable person would believe, or if that reasonable person would believe that it was subjective, created your work environment to be harassing, hostile or hostile, oppressive, intimidating stuff like that.

00;51;08;10 - 00;51;13;27
Speaker 3
I feel like this is a segway into a more defined term. Do you have a definition of hybrid?

00;51;14;00 - 00;51;34;21
Speaker 2
So it says Under California law, workplace harassment is defined as unwelcome conduct in the workplace based on a protected characteristic such as sex, race, age, disability or sexual orientation that is severe or pervasive enough to create a hostile or abusive work environment, or that results in adverse employment decisions such as termination, demotion, denial, promotion.

00;51;34;23 - 00;51;35;22
Speaker 3
I was a part of.

00;51;35;24 - 00;51;57;22
Speaker 2
No, I mean, that's generally what it is. And you'll get a lot of different definitions that basically say that same thing. But one thing I hear a lot is people complaining about a hostile work environment, and that is something that has its own kind of legal definition that really relates to these protected characteristics like age, sex, race and disability or sexual orientation.

00;51;57;22 - 00;52;18;08
Speaker 2
Those are those are the things that then you have a legal problem on your hands as an employer and that as an employee you can go to a lawyer and that's going to perk up their ears that somebody's getting fired for being gay, getting fired for resisting sexual advances from your boss, you know, being too old to work at a job or a disability.

00;52;18;08 - 00;52;22;18
Speaker 2
Those are the things that that as a plaintiff's attorney that I deal with.

00;52;22;21 - 00;52;44;14
Speaker 3
I'm trying to think, can you think of an example of a comment that would not fall into one of the protected categories of harassment? If I said, Hey, you're too old to do this job, obviously that's not right, or hey, like a woman couldn't do this or a man couldn't do this sex. Since you think you have an idea, a comment that doesn't really get on one of the protected characteristics, obviously religion is one of them.

00;52;44;16 - 00;52;56;06
Speaker 3
Sex, gender, orientation, race, color, creed, religious country, abortion, all that stuff. If any of you would think of a comment that is so offensive, yet innocuous enough to not be considered harassment, you suck.

00;52;56;06 - 00;52;56;22
Speaker 2
At your job.

00;52;56;25 - 00;53;00;16
Speaker 3
But it's not based on a protected characteristic of just me. That's not really a.

00;53;00;19 - 00;53;04;05
Speaker 2
You know, that's not a characteristic that's just based on your performance.

00;53;04;05 - 00;53;04;19
Speaker 3
As just being.

00;53;04;19 - 00;53;23;13
Speaker 2
Me. And but if I said, yeah, that's just me, if I said you suck at your job because you're Peruvian. Yes, that's true. You suck at your job because you're a guy. You suck at your job because you're trans. Those are issues. But if you just tell somebody they suck at their job or they're slow or slow worker.

00;53;23;14 - 00;53;35;01
Speaker 3
Because what if you didn't know that I was disabled in some regard, I was trans or I was gay or I was I look Caucasian, but I'm not Caucasian. And what if you didn't know what you did? The car would still be harassment.

00;53;35;03 - 00;53;57;28
Speaker 2
Well, this is when the company needs to step in and do an investigation of what's going on. This is when the manager has to say to the parties, Well, why do you think they're harassing you and why are you harassing this person to the to the harasser and to kind of get more information? I think the difficulty with a lot of stuff is that we can't give you good answers until we know all the facts.

00;53;58;01 - 00;54;05;15
Speaker 3
And that was now's a good time to enter like specific to all of you out there. Like this is for entertainment purposes only. This is not legal advice.

00;54;05;16 - 00;54;07;08
Speaker 2
It is not legal advice for either of us.

00;54;07;10 - 00;54;27;21
Speaker 3
This is for a podcast with we're taking examples that may or may not be extreme with crazy facts or not this. These do not apply to you out there and we're not making any representations of any specific position or what is or is not legal for me excuse to be harassing or not harassing based on our our talk to you.

00;54;27;21 - 00;54;30;19
Speaker 3
So don't take it as legal advice. This is not legal advice.

00;54;30;21 - 00;55;07;17
Speaker 2
Yeah. We're just trying to pick specific examples to kind of give a give a better slice of this type of stuff that that you could expect to deal with. And just kind of as a thought, thought provoking exercise illustrated because it's impossible to explain every situation, every exception. But what I want to do is give everybody a real life example of somebody who feels like they were bullied and just talk about it from the perspective of the person being bullied, the perspective of management perspective, the H.R. department of the company, and the perspective of attorneys, you know, both plaintiff and defendant.

00;55;07;17 - 00;55;20;12
Speaker 2
So, you know, I pulled this up from Reddit. This was somebody who posted about five months ago that was was being bullied at work. The title of the post is Am I being Bullied at Work? And the poster goes on to say, Asking.

00;55;20;12 - 00;55;21;07
Speaker 3
Is probably yes.

00;55;21;07 - 00;55;37;25
Speaker 2
Gone. I'm asking because I went to my supervisor and she dismissed my concerns. My office doesn't have h.r. We are supposed to go to a with any issues. I need to know if i would like to stand up. So this is just very common of what i deal with as a plaintiff's attorney. This sounds very and reminiscent that.

00;55;37;26 - 00;55;38;10
Speaker 3
They would sit.

00;55;38;10 - 00;55;40;08
Speaker 2
There and this is in north carolina.

00;55;40;08 - 00;55;41;18
Speaker 3
We're gonna presume they're in california.

00;55;41;18 - 00;56;04;14
Speaker 2
Yeah. For everything we're talking about. Presumably a California policeman. This person was working five years at the company as a manager, and they had a new admin who started four months previously that decided they didn't like this poster and they listed a bunch of stuff that this person has done that they're wondering if they're being bullied for. So asking if I was a fan of a musician and a disgusted tone.

00;56;04;14 - 00;56;05;03
Speaker 2
And then.

00;56;05;05 - 00;56;06;18
Speaker 3
They say, Which musician.

00;56;06;20 - 00;56;14;20
Speaker 2
Does it? I can only think that's Taylor Swift. She will sometimes sing a line from a song and then give me a mocking look and said that her lifelong work.

00;56;14;22 - 00;56;18;12
Speaker 3
Demonstrated a monkey with breast.

00;56;18;14 - 00;56;19;17
Speaker 2
Was like, okay, great.

00;56;19;22 - 00;56;23;07
Speaker 3
Thank you. Coca jammers, I'm going out.

00;56;23;09 - 00;56;46;14
Speaker 2
I think you have to do kind of a of she's she said said that her life was more valuable because she has kids Let's see. Told me that she didn't didn't think I was funny in response to me saying didn't like getting blackout drunk will whisper in someone else's ear while looking at me and then laugh every time she's in the middle of a conversation and I walk by, she'll stop talking and laugh at this.

00;56;46;14 - 00;56;50;06
Speaker 3
An adult posted this. Is there a limit on how you can post Read it?

00;56;50;09 - 00;57;11;05
Speaker 2
Listen, everybody is anonymous, but I'm hoping it's an app. Well, I'm hoping it's a kid. I guess I shut the door in my face multiple times, talks about having group chats that I'm not invited to make plans for everyone in the office but excludes me. Honestly. Yeah. This is kind of sucky, but often says I feel sorry for you in a condescending tone after I say something.

00;57;11;05 - 00;57;15;25
Speaker 2
So these are the examples they gave. And you know, I just want go through.

00;57;15;28 - 00;57;18;27
Speaker 3
That versus an account that you went to the supervisor. I would.

00;57;18;27 - 00;57;23;12
Speaker 2
And so it says I have tried talking to my supervisor multiple times, but she is friends with this person.

00;57;23;14 - 00;57;27;02
Speaker 3
God, this is exactly what we talked about earlier. Yes. How you can't report it.

00;57;27;02 - 00;57;33;22
Speaker 2
We're all adults and can decide who we like and don't like. You need to stop taking everything personally. She's just joking to.

00;57;33;22 - 00;57;37;23
Speaker 3
My wife and see what she does. If I whispered to my son, look through the eyes, laughs. See how that.

00;57;37;23 - 00;57;47;05
Speaker 2
Goes, You know, that goes exactly. I mean, so a lot of this, you know, on its face, it it seems very childish that that's kind of where we're making light of it. I mean.

00;57;47;07 - 00;57;49;09
Speaker 3
So So from your perspective, what do you think?

00;57;49;11 - 00;58;13;27
Speaker 2
What was her management perspective? Listen, I can understand why the manager would kind of want to roll their eyes at something like this, because you would hope that your employees as adults would, first of all, not engage in this type of behavior. But second of all, if they were subject to this, that they would be able to solve things by talking to the person who's who is bothering them or attempting to bully them and try to get it sorted out before escalating.

00;58;13;27 - 00;58;27;23
Speaker 2
But as the manager, I would take it seriously. I would ask what the deal is. Give me examples. I would talk to the person and then at a point you need to step in and try to see if this is something that you need to use discipline for.

00;58;27;24 - 00;58;40;17
Speaker 3
Does it matter to you? Are you putting yourself in a generic perspective where you're putting yourself in a perspective of like, I'm a friend with this one, with the offender, I'm a friend with the offender. And so the comment is a subjective.

00;58;40;19 - 00;58;46;00
Speaker 2
I guess it's more subjective when I'm friends with the commenter, I'm going to tell the person, you know, get the hell out of my office.

00;58;46;03 - 00;59;02;09
Speaker 3
And that's it. You know, it's funny. So if I have a different perspective on that, if I was the friends with the offender and the person that was being harassed or allegedly harassed or bullied or whatever came to my office, I would take it seriously because it it's my business. I want that. I want the business to go down.

00;59;02;12 - 00;59;09;21
Speaker 3
But also I would tell my friend, what the heck are you doing? I quit it like you're causing me problems. Like go caused me problems cause your solve problems.

00;59;09;25 - 00;59;18;28
Speaker 2
Yeah. Even even if you don't think it's necessarily something you could get sued for just because it's at the point that somebody is being bothered by your behavior, I think. Yeah, it.

00;59;18;28 - 00;59;31;18
Speaker 3
Would. Yeah. I would feel better telling my friend about equipment like, you know, it was like over like a drink or something or coffee. Right. But now Susan complained about you, like I'm doing my investigation, which start like coming out.

00;59;31;20 - 00;59;48;15
Speaker 2
So I think that that's the perfect place to start. And if you're an employee who talks to their manager and feels like they haven't gotten anywhere, in this case, there was no h.r. Department. So that's very difficult. But yeah, i think as the employee, the first step is to talk to your manager. For manager doesn't do anything. Then go talk to H.R. and have a talk kind of escalate.

00;59;48;15 - 00;59;55;14
Speaker 2
But as an h.r. Person, how would you feel if somebody came into your office and told you that these things were happening and they felt like they were being bullied?

00;59;55;17 - 01;00;15;29
Speaker 3
I feel like this is an easy answer for me because if i was an h.r. Professional and this into my office, i would like to take this because i would sit down with both of them initially ask what happened? Probably a five minute, ten minute conversation that I'm scheduled time to finish in the same room and hash it out and be like personally offender like, why do you feel this is necessary?

01;00;16;02 - 01;00;34;29
Speaker 3
And then I'm assuming you got to the individual conversations and go extremely poorly and or some other bias or an atmosphere that we couldn't address in the same room as trying to work out as adults because in a day we have to be stuck in this office in this example, we'd be stuck in this office for 8 hours a day or more hours work.

01;00;35;02 - 01;00;56;16
Speaker 3
So we got to get through this. And I would actually enjoy this conversation because it's kind of funny that one person is offended by the stuff. Imagine if it sounds very severe and pervasive. So I get that I completely empathize with. At the same time, to me, it's comical again that the person is actually doing this stuff. Like to me, I go to work and I do my job, you know, to pay my bills and to enjoy it.

01;00;56;17 - 01;01;06;29
Speaker 3
Is my family, right? That's why I do it. I it a lot. That's why I work so much. But same time, like I do it for a purpose, right time, essentially. So to me it's what is this person, the offender.

01;01;07;06 - 01;01;07;19
Speaker 2
Gaining.

01;01;07;19 - 01;01;20;18
Speaker 3
The gain. But there is something there that they can't live without, that they're gaining by late. This is probably a good word to use, like being a child is acting like a child like an unprofessional, immature child.

01;01;20;20 - 01;01;38;08
Speaker 2
Yeah. And I think the difficult part is being able to kind of put yourself in that person's mental state because before I started in this area of practice, I was, I would say, kind of doubtful or dubious of a lot of the things that I heard that were happening in the workplace, that it was a big deal because there's no way that happens.

01;01;38;08 - 01;02;12;29
Speaker 2
Yeah, exactly. Because, you know, when they were doing stuff that you wouldn't engage in yourself, you know, it becomes harder to believe. So it really takes a lot of kind of empathetic thinking as a person in management or h.r. To be able to put yourself in the shoes of both parties and figure out what's going on so you can solve the problem and also knowing when you have to escalate and go talk to general counsel because you feel like this is a point where, man, we might get sued because our employee is now engaging in behavior and bullying behavior that's going to get a suit.

01;02;13;01 - 01;02;19;13
Speaker 2
Is this something that if you heard that you would run to general counsel and talk to them about possibly getting sued?

01;02;19;15 - 01;02;39;19
Speaker 3
I wouldn't. because I think, again, depending on the example you gave to me is severe enough to terminate the offender, because I think we're I'm assuming we're hearing this all at one time, right? If this is over a period of time, the person might be terminated. So let's say I'm learning this all for the first time. All of the examples of this previously, it would result in some sort of discipline to.

01;02;39;20 - 01;02;57;18
Speaker 3
I would recommend that h.r. Software at this point to the offender. Whether that's a write up, whether that's enough to file, whether that's some sort of progressive discipline as pursuant to the company's policies, practices, procedures and handbook whatever, but definitely display that person. I mean, as much as I don't want to excuse my friend or he's my friend, I don't know if there's a gender there.

01;02;57;21 - 01;03;02;11
Speaker 3
I absolutely would need to. From a business perspective, h.r. Person, you need to discipline this person.

01;03;02;13 - 01;03;17;20
Speaker 2
And let me put in for a plaintiff's attorney perspective why you need to do that? Because if that employee does sue, you want to have a record of having investigated this and taking it seriously because that that's going to make their case a lot weaker.

01;03;17;22 - 01;03;28;23
Speaker 3
Well, let me that's a good point I want to address. What we've done is if I put a note to their file or I do some sort of discipline pursuant to my company's policy, is that enough to document that one incident where you would turn down that as a potential client?

01;03;28;25 - 01;03;52;11
Speaker 2
I think so. I don't think I would take that that person as a client at that point because it hasn't gotten to the point where anything is necessarily legally actionable. I think one of the commenters in this particular thread pointed out being a bitch is an illegal and it's true and it's true. Being a bitch isn't illegal. And that's the thing.

01;03;52;11 - 01;04;20;25
Speaker 2
Like now, as the employee, you got to figure out, you know, in a situation where something is happening that's not necessarily legal, how you're going to deal with this, Are you going to put up with it? Are you going to move jobs? And that's really part of the thing that makes h.r. And employment law and work seem so unfair to people is that a lot of times you're not going to find a situation or a solution that is going to be acceptable to you and emotionally validating and make you feel better.

01;04;21;01 - 01;04;40;04
Speaker 2
You might have to change jobs and that sucks. It's completely unfair. But again, it doesn't rise to the point of where you're able to, say, file a lawsuit against the company because it's not based your age, your disability, your gender, your national origin, the language you speak and your sexual orientation.

01;04;40;06 - 01;04;58;18
Speaker 3
Or from an example. Yeah, doesn't seem like any of that applies because, I mean, what kind of music you listen to is not a protected class. She doesn't talk about the poster. It doesn't talk about anything specific that seems to be a protected class that I can recall. So yeah, I mean, that just might be a general policy violation, but hey, don't be.

01;04;58;20 - 01;05;21;29
Speaker 3
Scuse me, Don't be a bitch. You know, essentially anti-harassment anti-bullying policy that you're enforcing as part of your company, not as a California law. As a law. But no, absolutely. And it's crazy that people do that what they do. Just to wrap this example from a legal perspective, if you might, thoughts here is I really would love to take this case as a defense because I don't bring anything else.

01;05;21;29 - 01;05;31;03
Speaker 3
I think that this would be a great defense case where, one, I could show my client, I know what I'm doing too. I would get paid for it and three would most likely be a successful result.

01;05;31;06 - 01;05;56;08
Speaker 2
Yeah, and as a plaintiff's attorney, this is one where I wouldn't really be interested in touching this. And it becomes difficult. You got to explain to somebody again, there is no universal cosmic standard of fairness. It doesn't exist where we as people can carve out fairness in our own daily lives by our own actions. But it's there's a saying justice costs money and it does.

01;05;56;08 - 01;06;22;22
Speaker 2
And going after somebody for or for asking discrimination has to get to a level where the payoff is going to be enough that an attorney wants to take this on because a lawsuit is a ton of work and it's a ton of time and very emotionally taxing for for the client, for the attorney. And so the only the really the most egregious examples of harassment are the ones that get taken care of in court or lawsuits because of this.

01;06;22;22 - 01;06;43;00
Speaker 2
So it leaves a lot of people feeling like the system has failed them and that, you know, people are getting away with stuff. But that's just kind of the reality of the work environment and the fact that the law can reach into every single aspect of life and try to regulate it. It's called court of Law. It's not a court of fairness.

01;06;43;03 - 01;06;48;03
Speaker 2
It's like a really dumb thing to say and kind of glib. But unfortunately, that's kind of the reality.

01;06;48;08 - 01;07;03;28
Speaker 3
If not, reasoning takes a lot of time to. So it's interesting that if you California, for example, if that person another filed the lawsuit today, quickest to get a trial in California or like a county like a Los Angeles would be like two years so you're minimum.

01;07;04;01 - 01;07;04;07
Speaker 2
Yeah.

01;07;04;10 - 01;07;20;14
Speaker 3
If this happens and like I do want and you sue on day two you're not and you get a new job, you move on the person or whatever you move out your life, you're not going to go to trial for one. Probably an average of two years at this point, given all the backups and the backlogs in the court system.

01;07;20;21 - 01;07;41;10
Speaker 3
So like that, when you go to trial, you take time off work that goes to your trial for the previous thing. It's just a it's a shenanigan. And unfortunately, I say shenanigan for like people's lives because that's the way the process works. And it's been like that for a long time. But if they want that justice for that fairness, they have to go to a trial, whether it's by their peers or by a through that process.

01;07;41;13 - 01;07;42;00
Speaker 3
So.

01;07;42;02 - 01;08;04;09
Speaker 2
All right. Well, we're kind of wrapping up over here. I think we've gone over a lot of stuff, setting a little bit of a foundation for problems in h.r. How to think about h.r. And our next one, we're going to talk about the the role of h.r. The specific role of h.r. And what a kind of best practices for what h.r.

01;08;04;09 - 01;08;23;19
Speaker 2
Should be doing at your company and what h.r. Should be doing at your company and try to define that so that people can kind of understand how their company can operate in a better way. And by better, we mean not getting sued because that that's really everything that it comes down to. If you just run your company in a way where you're like, okay, let's run it.

01;08;23;19 - 01;08;33;08
Speaker 2
Not to get sued. You will most likely create an environment that is to be acceptable for 90% of your employees over.

01;08;33;10 - 01;08;39;17
Speaker 3
The course of that and relentlessly sue.

01;08;39;19 - 01;09;04;14
Speaker 2
All right. Good luck out there. And.