Navigating the Legal Landscape: Highlights from MRA’s Employment Law Update

Description: In today's episode, we're diving into the complex and ever-changing world of employment law. Understanding the ins and outs of this legal landscape is crucial whether you're an employer or an employee. We'll cover a wide range of topics, from risky labor practices to data breaches and everything in between.

We'll also explore recent developments in employment law, including the impact of remote work on the employment relationship, the effect of The State of the Union Address on employers, and the increasing importance of mental health in the workplace. Join us as we unpack the nuances of employment law and equip you with the knowledge you need to navigate this critical area of business and employment.

Resources:

Employment Law Update 

MRA Membership 

About MRA 

Let's Connect:

Guest Bio - Christine Liu McLaughlin 

Guest Bio - Joel Aziere 

Guest Bio - Scott LeBlanc 

Guest Bio - Scott Reigle 

Guest Bio - Audrey Merkel 

Guest Bio - Craig Papka 

Host Bio - Sophie Boler 

Host LinkedIn Profile - Sophie Boler 

 

Transcript:

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Hello everybody and welcome to 30 minute Thrive,

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your go to podcast for anything and everything HR.

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Powered by MRA, the Management Association.

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Looking to stay on top of the ever-changing world of HR? MRA

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has got you covered.

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We'll be the first, to tell you what's hot and what's not.

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I'm your host, Sophie Boler, and we are so glad you're here.

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Now it's time to thrive.

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Hello and welcome to this episode of 30 Minute Thrive.

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We're glad you're here.

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And I am actually here at MRA's Wisconsin Employment Law Update,

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where attendees are gaining insight on how to remain resilient

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after this post pandemic uncertainty and economic change.

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We have over 600 people attending

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virtually and in person today, so it's a big event.

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And I will be talking with seven of the speakers from today

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who are all practicing attorneys in the area.

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So come along.

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Hello, everybody.

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I'm here with Christine Liu McLaughlin.

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Christine is a shareholder at Godfrey and Kahn’s Labor and Employment

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Practice Group, and she was actually the former practice group chair.

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Christine provides counsel on a wide variety of employment

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and labor issues ranging from interpretation and application

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of federal and state employment laws to specialized employee

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transition matters and complex business transaction.

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So, Christine, you just reviewed 2022 and kind of talked

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about 2023, the year ahead for employers.

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So can you kind of summarize some of your key points that you talked about?

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Sure.

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I talked a long time.

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So this is going to be a big summary.

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I always like to start on the federal level.

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So if anybody saw the State of the Union address,

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it was very heavy emphasis on employment.

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And President Biden's push to really make changes,

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both on executive level at a regulatory level.

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So what does that mean for employers for 2023?

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Forecasting it, you're looking at agencies

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passing a lot of guidance, a lot of rules and doing a lot of enforcement.

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And that's anything from the EEOC to the Department of Labor on union issues

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to wage and hour enforcement.

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You're also going to see

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and what we've seen so far in January was the FTC.

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So Federal Trade Commission, why am I talking about it?

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It's because they issued a proposed rule related to non-compete,

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which really is a broad reaching proposal that covers all restricted covenant

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agreements and is highly restrictive and preamps says it's written right now.

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Any state law that's inconsistent.

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So that's a big game changer.

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Don't expect it to pass as it is.

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There's going to be a lot more dialog.

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In fact, this afternoon, they're actually having an open forum to discuss it.

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So that's a big topic.

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We're also looking at some of those hot issues as it relates to enforcement

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at the agency level.

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So think about A.I., artificial intelligence and hiring and recruiting.

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What does that mean in terms of enforcement?

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We know in the draft enforcement report right now, for the next five years,

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there's going to be a heavy emphasis by the EEOC on that issue.

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And by the way, you know,

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saying that the algorithm is at fault is no defense for employers.

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And that's very clear.

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In the enforcement plan, as it reads right now, we're also looking at pay

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transparency issues as it relates to those state laws.

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So there's been a lot of state movement, family medical leave, paid leave expense

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reimbursement, which we've never seen on the books come to fruition.

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But in addition to that is pay transparency.

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How do your job post be transparent?

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Should you have a policy in place?

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What should that look like

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and how do you open up a conversation or respond to a conversation

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from an applicant that wants to talk about pay, something

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that historically has been very taboo and uncomfortable for employers?

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The final, I think emphasis is going to be on mental health

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and with all of the crises

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that we see out there in the U.S.

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right now, both in employers, places of business

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as well as our schools, it is at the forefront of everybody.

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And I think that one of the best things employers can target for 2023 is educating

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those individuals that work with employees,

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reminding them they need to take care of themselves,

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but also giving them the power and knowledge of power to identify

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risks in the workplace as it relates to mental health.

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Add some great advice, Christine, thank you.

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And you had a lot of important and essential updates that you gave us today.

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So thank you for summarizing those.

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But just as we wrap up here, do you have any other advice or insight

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you can give and kind of wrap up to employers today?

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I think that

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the biggest takeaway that I would look at for this coming

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year is to realize that those that deal with humans every day

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are tired and they need support.

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So whatever you can do to invest in your people, remember

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those that are at the highest level is making those really tough decisions.

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Need your support, whatever that may look like for you.

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Okay. Well, thank you, Christine, for joining us today.

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We appreciate it. Welcome.

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Thank you.

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Hello, everybody.

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I'm here with Joel Aziere, He's the president at Buelow Vetter.

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And Joel is a top rated attorney here in the Waukesha, Wisconsin, area,

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providing legal representation in the Wisconsin area

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for a variety of different issues.

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So thanks for joining us today, Joel.

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I want to ask you about your talk that you just had on risky labor practices.

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So with President Biden's endorsement,

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he says that I intend to be the most pro-union president

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leading the most pro-union administration in American history.

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So union efforts are definitely increasing.

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Can you give any advice for organizations on how to really prepare for this?

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I think there's a couple of things that organizations need to do.

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First and foremost, you need to remember that the National Labor

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Relations Act doesn't just pertain to union organizing.

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It also has to do with rules and policies that a company may have

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that could be seen by the board

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as having a chilling effect on employees ability to organize.

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So the first thing to do is even if you don't suspect

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that there could be any union organizing is look at your policies,

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look at your social media policies, look at your communication policies.

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All of those policies that could touch on how employees

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talk to one another and check those.

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Second of all, employees employers excuse me,

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need to be very, very diligent in watching their workforce.

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They need to look for changes.

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Anything that is a dramatic change from what the employees were doing

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before is an indication that they might be looking to unionize.

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The other piece that an employer needs to recognize is forming

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a union doesn't mean that the employees dislike the employer.

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I hear that a lot.

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What did we do wrong that got them to want to use or to form a union?

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That's not the right way to look at it.

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But it is good to do a self-reflection and say,

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Are there things that we can do to better communicate with our employees?

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Because obviously they feel they're not getting that direct communication.

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They want to bring in a third party to be the intermediary,

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and that's never a good idea.

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So look at what you are doing to try and facilitate clear communications.

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So you also talked about unfair labor practices,

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and I know you highlighted some great examples.

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Can you talk about the one with the vending machines?

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There was a recent case that you just worked on,

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so can you talk about some of the key points there?

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So the key to remember is, first of all, an unfair

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labor practice can be filed by anyone, not just somebody who has a union.

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And it has to do with a change in terms and conditions of employment.

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And whether you did something that you were not permitted to do.

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Now, the example

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that I use is an extreme example, and I can't see this happening again,

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but it's to illustrate what how far down

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the NLRB will look at four turns and conditions of employment.

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There was a production facility that had to break rooms.

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Both of them had vending machines.

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One was a newer breakroom, one was an older breakroom.

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And what the company did was they swapped the vending machines.

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That's all they did.

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The newer vending machine was swapped into the newer breakroom

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and they got an unfair

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labor practice charge and they couldn't figure out why what they had done wrong.

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The look, the vending machines, everything looked the same.

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One was a little bit older, but what they came down to is one of the

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vending machines had clean m&m's and the other one had m&m's with peanuts.

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And that in and of itself was enough for for these employees

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to say it was a change in terms and conditions of employment.

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Now, of course, we settled it.

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We resolve the matter very clearly, but it is an example

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of how far down you can go in making that determination.

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Oh, absolutely.

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And just as we wrap up here, do you have any other lasting advice

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or tips for employers out there on just the changing economy right now?

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You have to make sure that you are connecting with your employees.

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The number one reason that employees want to form a union

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is because they feel they are not being heard.

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That does not mean you have to give in to everything that an employee wants,

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but you do need to make sure that you are communicating to them

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that you are available to talk to them.

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You will listen to them

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and you will take their thoughts and ideas under consideration.

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That's some good advice.

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Good to end with.

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So thank you Joel for joining us today.

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We appreciate it. Thank you.

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Hello, everybody.

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I'm here with Scott LeBlanc, a labor and employee employment law attorney

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at Husch Blackwell, who helps clients really navigate

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the complexities of employment privacy in health care regulation.

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So, Scott, you just talked about reductions and workforce layoffs.

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Could you give us some highlights or just key tips for our listeners today?

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Yeah, Well, one of the things I talked about sort of at the end of my

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presentation is alternatives, layoffs, right?

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I think

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layoffs should always be the last resort.

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So if you're if you need to reduce your costs,

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what can you do short of layoffs that are.

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Okay.

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So we talked about wage reductions, Right.

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Which you're just, you know, temporarily or permanently reducing salaries

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or employ hourly compensation.

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You can do things like furloughs, which are

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require leaves of absence.

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So someone's going to take a required unpaid leave of absence

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for a certain period of time that's going to save you some money.

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So talking about, you know, if you and as an organization

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based on what you need to do

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there are other ways other than just laying off employees to do that.

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And there are

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there are things that you need to think about from a legal standpoint,

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but maybe thinking about those

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first before you dip all the way into to having to do layoffs.

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I know it's something that's on top of employers

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minds right now, especially with the start of the year.

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So can you just and end us with any other good advice you have

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or any tips for employers out there who may be struggling with ideas?

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Yeah, I think planning and documentation is always important.

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I mean, that's something I always hammer home,

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whether we're talking about layoffs or anything else

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from an employment law standpoint is just documenting your process.

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So if you're thinking about doing layoffs and you know,

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you really it's really helpful for a lot of different reasons,

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whether it's putting together

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a severance agreement for employees or making sure that you're not

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selecting employees based on discriminatory reasons.

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How how did you come to that process?

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Who made the decisions?

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How did you make the decision of how many employees that you need to get rid of?

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What are the categories are you using and who is coming up with the data there

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and just really documenting a process that's really going

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to help you in the end.

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It's not just going to make things easier

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because you're going to be more organized,

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but it's also going to help insulate you from legal liability.

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Well, thank you for joining us and thank you for the advice.

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We appreciate it. Glad to be here.

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Hello, everybody.

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I'm here with Craig Papka & Audrey Merkel from von Briesen & Roper.

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Craig is a shareholder in the labor and employment law section and counsels

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clients about a wide variety of matters

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with a view to preventing costly litigation.

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Audrey is a member of the Labor and Employment Section and focuses

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her practice on representing businesses, government in schools,

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with employment in covid related issues.

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So Craig, you discuss remote work and that it's really here to stay.

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However, professionals have to navigate the cultural

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and legal issues associated with employees working remotely.

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So can you highlight some of the key points

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you were talking about in your presentation today on that?

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Yes, certainly.

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Thank you.

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I guess the most important thing is really to stay consistent.

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It's really critical that HR Professionals have set guidelines

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and they stick to them really

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in all aspects, especially with regard to remote workers

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to avoid putting yourself

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in a potential discriminate, discriminatory type situation.

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And then in terms of some best practices, we recommend defining eligibility.

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So exactly which employees can be working from home and also consistently abiding

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by any seen criteria that the company has in respect to working from home.

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Also require written requests

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for work from home to be submitted to both management HR

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And also train managers on handling work from home requests perfect.

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Thank you guys for joining us today and thank you for your great presentation

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and the advice.

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So look forward to talking to you.

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Hello everybody.

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I'm here with Scott Reigle from Meissner Tierney, he represents clients

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in a variety of different civil litigation matters in Wisconsin,

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California and other jurisdictions around the country.

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So, Scott, I know you just talked about

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the digital world today in different data breaches and stuff like that.

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And we have access nowadays more than any time in history on data.

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So could you just summarize how a business

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can really reduce its vulnerability to protect its data nowadays?

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Well, thank you, Sophia, and thank you, Mary, for having me.

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This is a great event and I really appreciate the opportunity to talk

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as far as

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what a company can do to protect itself.

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I look at that in two different ways.

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This kind of comes from my litigation background.

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How do we protect ourselves proactively and reactively and all That's about,

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first of all, limiting the opportunity

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for somebody to attack you in the first place.

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But if they do to to limit

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would mean what we think of in the legal world is exposure.

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So what liability you might face.

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So on the proactivity point, typically we're going to advise

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our clients, you need to have policies and procedures.

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You need to stay up to date with software updates and security mechanisms.

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You need to and then also you need to have plans in place for

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if the unthinkable does happen when it happens.

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Excuse me,

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if it happens, we're all we're always hoping, of course, that it doesn't.

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But if it does happen to you,

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the biggest thing to do is act quickly and you want to act decisively.

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So you want to make sure that you're protecting

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the systems while an attack is going on or shortly thereafter.

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B) you're getting your arms around what happened, investigation is a key.

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C) that you

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then take the proper remedial actions to get involved.

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And and this is a big one.

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D) You've got to be transparent throughout the process.

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So many companies that

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get into big trouble in these situations get into trouble because

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for lack of a better term, it's either shame or greed.

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They're either ashamed that this happened to them

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or they don't want to lose sales, they don't want to lose.

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Customers eventually will get out.

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And they're they're both common law and statutory liabilities that can happen

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that can accrue to a company if they don't come clean on these types of things.

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So we always counsel it's best

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to just be forthright and upfront with these types of things.

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Now, of course, within all the things we're talking about, I just gave an hour

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long speech on it, so I can't cover it all here, but there's a lot of nuance.

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But that's the CliffsNotes. Yeah.

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And you did give a lot of good information in the past hour, like you said.

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But, is there any lasting advice that you want to give our listeners today

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or any other security advice you want to give them before we wrap up?

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Change your passwords early and often.

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That's that's the best piece of advice I can give in a short amount of time.

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And I know we don't have long,

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but I just want to thank you guys again for for having us.

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And and this has been a great event.

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Thank you, Scott.

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I want to thank each of the seven speakers that I got a chance to chat with today

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in sharing their knowledge and expertise on the employment law.

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We have linked the resources from this event and each of the speakers

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biographies in the show notes, so make sure to reference those as needed

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and I encourage you to join MRA if you aren't a member already.

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We also have resources in the show notes for that as well.

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Otherwise, thank you for coming along with me today,

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and we will see you next week.

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That wraps up our content for this episode.

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Be sure to reference the show notes, where you can sign up to connect

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for more podcast updates,

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check out other MRA episodes on your favorite podcast platform.

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And as always, make sure to follow MRA’s 30 minutes Thrive, so you don't miss out.

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Thanks for tuning in

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and we'll see you next Wednesday to carry on the HR conversation.