The Employee Handbook - An HR Podcast
The Employee Handbook - An HR Podcast
You're Fired! Please Don't Beat Me Up
Prepare to steer through California's legal maelstrom with us, Arta Wildebore and Ryan Ellis, as we dissect the seismic shifts in employment law hitting in 2024. This episode promises a dual-perspective deep-dive into the intricacies of arbitration enforcement laws. Businesses are under the microscope, and we're here to guide HR professionals with strategies to avoid the snares of wage and hour disputes—think of it as your litigation life vest.
Venture into the heart of employment litigation with a candid discussion on the clogged veins of our court system. We shed light on the economic tug-of-war between settling and fighting employment claims, offering valuable battle tactics for employers and a critical look at how justice is often constrained by time-limited trials and statutory penalties. This episode is an essential play for those looking to grasp the strategic decisions that shape the future of employment law.
Finally, we tackle the thorny issues of insubordination, remote dismissals, and the art of terminating with tact. Learn how to navigate choppy waters when dealing with disruptive employees and discover the blueprint for executing tough decisions with a professional edge. Your takeaway? A reinforced need for solid policies and meticulous documentation, helping you sidestep a world of legal strife. Join us for an episode rich with practical tips and legal savvy to fortify your business against the storms ahead.
Welcome everybody to the TPS report, an HR podcast with the Bob's. Here we are Bob one and Bob two I'm Bob one, arta Wildebore, an attorney here in California who deals mostly with employment law, and Bob two, ryan Ellis. Why don't you go ahead and introduce yourself quickly, ryan again?
Speaker 2:I am the exact same as Arta, except I focus on a little bit broader scope of employment law on the defense side by the employers.
Speaker 1:Yeah, that's right. I should mention that I'm a plaintiff's attorney and Ryan is a defense attorney, and we are here to give you the dual perspective of a defense and plaintiff's attorney on stuff that's going on in HR, specifically in California. We're both California licensed attorneys and so anything we talk about is going to be California focused, and I guess what's the way to put this?
Speaker 2:Yeah, cue the disclaimer music. This is a disclaimer. This show is for entertainment purposes only. We are not your attorneys. Do not take any of this as legal advice. Again, entertainment purposes only. Facts of situations change and every situation is different. So if you're a client, what's that?
Speaker 1:Always consultant attorney, always Always.
Speaker 2:Yes, always consultant attorney. So separately. If you'd like to discuss, that is fine, but without talking to specifically. We are not your attorneys. This is not legal advice. Entertainment purposes only. As Arta mentioned, he's licensed in California. I'm licensed in California, nevada, texas and Michigan but we are going to primarily focus on California law, unless we state otherwise. But again, entertainment purposes only, let's get into it.
Speaker 1:All right. Well, this week we're going to break down our podcast for this week. We're going to talk about big, big changes coming to California law in 2024. We're going to talk about in segment to focus on the arbitration enforcement laws that are coming in 2024 and talk a little bit about California's attempts to get arbitration clauses out of employee contracts and squeeze employers more.
Speaker 2:That's all it does. California loves to squeeze employers.
Speaker 1:California loves to protect its employees. I think that's what you're trying to say here. I understand. Being a defense attorney probably hit your head at some point in law school and decided to go into defense instead of punch, because that's the explanation that can come up.
Speaker 2:I had a few times, but I don't know if it's related to a lot of issues I have. But no, you're right, I mean, it's really a perspective and I think that's one of the benefits we have of being on different sides of the V, as they call it here Arta on the plaintiff side and me on the defendants, employer side. I've had I don't know how many calls every week with clients explaining to them that it's not my fault, california is so slanted towards employees and that the laws are so adverse to employers. And then the counter is well, I guess we make so much money because California is such a large economy, so really everybody wins the end of the day, except the employers, and they have to pay us.
Speaker 2:But again, that's the other purpose of this podcast is to try to educate more people on the HR process, how it works, and to avoid issues. Instead of being reactive towards concerns and complaints from employees, we try to be proactive, and Arta and I work together on these sorts of things and consulting roles to provide that to a little upfront money or a little upfront consulting to fix issues and be proactive is a lot cheaper. A lot cheaper. When I say a lot cheaper, I mean millions of dollars a year, cheaper than it would be to hire an attorney or a defense attorney to handle these issues in a reactive fashion.
Speaker 1:Absolutely, and that goes for both, like FIHA, discrimination cases and also wage an hour on a large scale. Let's say, if you're a manufacturing company, you need to be very, very worried about wage an hour for potential class action lawsuits. Manufacturing logistics companies that have a lot of delivery drivers, warehouse workers, all those kind of businesses where you have large amounts of employees that are hourly, you're going to have a huge amount of exposure to wage an hour.
Speaker 2:So very, very quick, just to interrupt really quick when Arta says FIHA, if you have a list of other numerous millions of episodes. Fiha in California is the Fair Employment Housing Act. That is, along with the labor code, the most utilized sections of the law in California that are used against employers by employees. There's also the government code. Excuse me, the government code encompasses the FIHA. There's also the business and professions code for unfair competition, things like that, but the FIHA, feha, fair Employment Housing Act in California is a primary means of suing employers. It contains a lot of very pointed and sharp laws.
Speaker 1:Yeah, basically employee protection laws against harassment that closely mirror the federal laws but are just the California version, which I think California is, yeah, like you said, a little bit more employee friendly and California has really made it a point to be protecting employee rights. But that had backfired a little bit.
Speaker 2:Only a little bit more. It's like a little small hill in middle America versus the Mount Everest of law. I think that there's a bit of a difference there, but just a little bit, just a little.
Speaker 1:Well, let me well okay, I think we should get into that real quick. I mean we're going to do it in a different episode, but screw it, we're live baby. You never know what's going to happen on this podcast. So California has, over the past 10 years, tried to enact a lot more laws that protect employees from predatory employer practices not paying overtime correctly, making employees miss breaks, miss lunches, work through lunches, work through breaks all to benefit the employer.
Speaker 1:This is kind of a cultural thing as well, because a lot of people who are working they want to give their all for their employer. They're told it's like a family. So they sacrifice a lot employees, I mean, for their employer, and they could have good employers and that could be fine. That's really up to them. But for people who were kind of involuntarily or unwillingly having to miss their breaks, having to miss their lunches, not getting paid correctly for overtime and working in conditions that are not ones that they signed up for initially or ones that mirror what the law says, california has gone to great lengths to try to protect these people and they've done so by crafting laws that have very punitive measures towards employers for not following the laws.
Speaker 2:And I want to add to that. So I'm going to at real time here, I'm going to Google Employment Judgments California 2023. And if you look at the amount of these judgments, like the type and highest as well, the amount of these judgments, it is absolutely absurd.
Speaker 1:I think there's like a $450 million judgment against LA County in there.
Speaker 2:I mean it's crazy. And just a caveat is I'm not saying that these plaintiffs are not entitled to that money and they don't deserve any part of that. They absolutely are. The jury awards it, you know, and even if they don't and it's a defense verdict comes out. A lot of times plaintiffs are owed money and they are, except employers don't pay it. They're hence lawsuits. And sometimes the jury comes out in the right way in my opinion, and the defense verdict comes in. But you see retaliation judgments $7.1 million for whistleblowing that's a lot of money. Like $7.1 million for I think almost everybody in the world would be a pay increase. And so one of those things were like wow, someone's making $7 million because they told or reported what they believed to be a violation of law to a federal state government entity. That is crazy to me. That could put a lot of businesses out of business. I don't care how big you are, $7.1 million is a big budget now.
Speaker 1:So when we see go ahead. I'm going to say these are not typical awards, but these awards go out as kind of a warning to other employers. That's a big reason. You know that that these awards get up this high is because there has just been an unending amount of labor abuse in California, especially with, you know, large immigrant population and large non English speaking population that's not familiar with with the laws and just kind of even scared to Scared to exercise their rights because of being in a new country or being unfamiliar with with English as as their first language.
Speaker 2:That's the reason I bring up the amount is the punitive. Punitive. And not only is it I heard this the other day. It's like back in history. Then don't quote me. I'm not a history major, but when people would arrive to Rome in like 5000 years ago or whatever it was, they walked on a dirt path and a dirt path was covered in stakes with people who they've killed like every 100 feet for miles, yeah, yeah, or crucified exactly down the street, like that's. The punitive measure of these, of these lawsuits is like well, shoot, if I see $7.1 million for retaliating after a whistle whistle blower, I'm not going to fire my employees after they whistle blow and also I'm not going to do illegal stuff that would cause them to whistle blow in the 1st place. So every time a judgment like this comes out, you have a new Crucifixion of an employer. That is an example of why California employers should comply with the law.
Speaker 1:And it's very interesting because this has also led to a little bit of a chilling effect on employee versus employer lawsuits, because there has been a huge rush for plaintiffs attorneys to start filing employee employment lawsuits on behalf of plaintiffs against companies because of these federal laws and what's happened and this this was really exacerbated when COVID hit was there there's been a rush of these lawsuits into the court system, especially in Southern California and LA, and it's absolutely clogged up the court system.
Speaker 1:And I'll go in front of a judge who's now retired he actually works in the what is it? The mandatory settlement program in LA is a great judge and he would always say you know, half half of his docket is now employment and he wasn't saying that. Happily they, these cases tend to really clog up the courts and they tend to be for lower amounts A lot of times, especially if they're if they're wage an hour lower amounts. I would say most judges don't want a case in their court, and right, you can, you can chime in on this, unless it's the amount in controversy is around $250,000 or more.
Speaker 2:Yeah, I agree. I don't know how to expand on that, except for we try to keep everything out.
Speaker 1:Yeah, and the reason is that litigation takes up a lot of time, takes up a lot of money and courts want to make sure that the trials that are happening in their courtroom are ones for larger amounts in controversy, for issues that are going to affect many different people, maybe because they could be issues that could speak to making new law, and usually that that's not going to really be one of the considerations. But generally they don't want like a $12,000 lawsuit in their courtroom because that's just going to clog up the system.
Speaker 2:Yeah, sorry I miss her. I thought you were talking about defense side. You're talking about the court side. No, absolutely. I mean it's funny that I don't want to like ruin too much of a foreshadow to the future, but judges hate employment law cases. Yeah, absolutely.
Speaker 2:I remember I was in trial in December of 2019. And it was a second trial. After an appeal we were transferred to a new judge because the first judge was gone. It was in complex civil litigation. I remember after day one we were walking in on the two, just kind of BS and getting our stuff ready to go for the day, and I talked to the clerk who was visibly irritated younger guy. He said man, I hate Paga claims.
Speaker 2:I'm like what. He goes all the pop because at that time all of the employment either class actions or the employment private attorney general act claims, which we'll talk about in another episode. But it's a way for a class certification essentially to be automatically granted, to skip a bunch of the litigation to certify a class. It gives you a lot of potential upside to a plaintiff. I don't allow them on into attorneys, but anyway. So the clerks, I hate these claims because they had hundreds, if not thousands, filed. They're all transferred to complex, and so the last thing they want to do is deal with this mundane, what their term BS issues every single day, hundreds a day for what seemingly would be into the future.
Speaker 1:And you know this has has really led to employees getting the short end of the stick here, because judges are not really willing to entertain, you know, motions and and kind of please from from employees to have their cases heard fairly and these cases tend to get rushed into mediation or rushed through the court process. If these cases make it to trial, a lot of judges will in place, put in place a lot of restrictions limited time for more dear to select the jury, limited time for opening statement, limited time for closing statement, limited number of witnesses all these things in order to have these cases not drag out, because these are cases that you know, in a workplace there could be so many witnesses that are potentially able to come. And again for, you know, $40,000 matter, $50,000 matter. Judges do not want to have a two week trial for something.
Speaker 2:And so that's to me and I'm not not labeling that as a complaint from a plaintiff's bar, but it's essentially it is and I think it's valid. But remember, we also have to worry about economy here, right? So if you have I don't have the number in front of me let's say there's 1000 employment cases file in Los Angeles County. There are not 1000 departments that handle those cases first of all, and if every one of those trials, once you like the city go to trial, you know you're supposed to go to trial in two years. Expedited would be one year, a little bit less. Whatever, let's say, those are supposed to go to trial in two years. So when that trial date comes, all of those cases filed in 2023 will we try in 2025.
Speaker 2:But there's 1000 cases in each case takes a week. That's 1000 weeks of capacity you need and you don't have capacity. You don't have it. Thankfully for any both sides of the be here that a lot of the employment cases will settle before trial. But they need to because you can't try them and there's a bar of you have to have a trial within five years, which covered, is affected a little bit. You know, there's always exceptions for appeal and all this other stuff, like imagine how hard it would be if a judge wasn't a stickler to rules and didn't want you there to actually have your case tried if you're in that batch of 1000. That's crazy.
Speaker 1:Well, and you know, even from the plaintiff side, we don't necessarily want all cases to go to trial, especially for these low amounts. You're you're looking for quick settlements and the I think personally the punitive nature of the laws, and so, where each, each of these violations are statutory per se violations, which means that there is a certain amount that is assigned to each violation, well, what's a better way to say this? So what do you mean? Like value it?
Speaker 2:like, value it.
Speaker 1:No, just to say that the reason that there's like these per se statutory violations is because they wanted to encourage employers not to fight these claims, because they're going to have to pay these per se violation fees and they're going to have to pay attorneys fees for the other side as well. That's what the law allows.
Speaker 2:I mean. I mean, that's why I think that's a good answer. The problem is that employers still won't pay. And if they know they have to pay, let's say that you send me a letter today saying well, I'm going to pay. You know you owe me a million dollars because that's what it adds up to pursuant to the statute. Let's say you have a million employees, whatever dollar employee, the employers are going to pay. That they're going to make you go through the process to to get them to pay right, which is a judgment which could take years. They'll appeal it take more years, but on a day they might pay some of it and reduced amount. So that's why they fight through it, to see if you have the balls to go through that judgment. Does that make sense?
Speaker 1:Yeah, I think that makes that makes a lot of sense and I think it's good.
Speaker 2:I mean just to add upon that is that this is. You have to remember too that you have very savvy business people that have large, you know, and whether they're part of our own large corporations that have a lot of money and a lot of control. On top of that you have very savvy attorneys from very big firms, make a lot of money to do this and they're worth every penny to find a way for the employer not to pay in these situations there's obviously very, very good plaintiffs attorneys. I fought against a lot of them. Although I may not like them, I give them credit where credit is due.
Speaker 2:But you know, sometimes your employee, your client on the plane aside, would be entitled to, let's say, $100,000 in back pay throwing numbers out there. But if you as a plaintiff's attorney are not willing to put in the time and effort to actually pursue the litigation and actually fight the employer, when the employer is paying a good attorney to defend it, the employer might pay the attorney 50 grand and then pay the employee attorney 50 grand and the employee may settle for 10 or 20 grand. So net profit and that quote unquote profit of 30,000 or 100,000 arc plane Plus attorneys. They saved all other crap that they'd have to pay after a judgment. So I mean there really is an economy there of who's going to fight for it. One do you have two sides that both want to fight? And if you do one, the plaintiff's attorney who will fight for a valid plan that's worth their time and to an employer who will fight because for principle or otherwise to defend their claim, Then you get these new laws that come out by case law.
Speaker 2:So this is a very interesting tangent, because that's how these laws are created, whether it's by good or bad attorneys, and by good or bad judges on civil or, excuse me, superior or a telecourt levels.
Speaker 1:And another thing that that goes against plaintiffs in these cases is that people have been trained by their experience with PI attorneys and PI ads that you don't have to pay anything for an attorney that attorneys. You know they get paid at the end, which is what we call contingency, versus a flat fee, where you pay $5,000 for somebody to do a will for you or on retainer for hourly work, which means that you're not exactly sure how much you're going to have to pay this attorney, but you'll pay in something like 10 or $20,000 chunks until it's over. So as a as a plaintiff's attorney for employment, you're typically working with a wage, an hour cases or a FIHA claims for people who can't afford to fund the litigation themselves. You know, paying for things like depositions, mediation's discovery All these things cost a lot of money and most people don't have an extra $10,000 lying around to spend on a lawsuit where they're owed $50, $60,000 and they have to rely on their attorney to do so.
Speaker 1:A lot of attorneys are not going to take cases unless their home runs, because who wants to risk $3040,000 of their own money as an attorney on somebody who might not be a great witness on? You know a case that that is not going to make them a ton of money. And then all that money has to get paid back by the, by the plaintiff, at the end of it. So if they spent $30,000 and let's say they win $100,000. Well, 33 to 40% is gone to the attorney right away. So another $30,000 right there is gone for the cost of the case, leaving somebody with only like 30 grand after they win $100,000. So it makes a lot of sense for people to settle and it makes a lot of sense for employers not to not to follow necessarily that closely what the laws are.
Speaker 2:And employers know that, or at least their counsel do, and that's the game right, that's litigation. It's a big bet from both sides because it costs a lot of money, a lot of time, but it's also, you know, a leverage bet, and that's employers know that. That's why we have long protracted litigation, because, although they I don't want to say they don't want to pay when money is owed, I mean, if they did, I mean honestly, it's logical. Oh, I agree.
Speaker 1:One thing that we want to impress on everybody listening who's not an attorney or is not involved in litigation and somewhere or another, is that this is not about fair. Get fair out of your head. This is strictly about economics and leverage. This has nothing to do with about fair. This is a court of law. This is not a court of fair. Fair is a concept that's not inherent in nature. This is something that is a product of society and morals and all that kind of stuff, and it's impossible to blanketly declare what's fair.
Speaker 2:So get fair out of your head and I just want to note this is a very important note for me personally, and I think you two are to that if fair was a thing like, if actually everybody lived in this utopian society, were fair, ruled and everybody was fair, there's no road rage. There's no, you know, bad weather, whatever it is. If everything was fair, then we wouldn't have a job. Yes, there would be no attorney. You'd be no need for an attorney because people would automatically, inherently agree on what fair was.
Speaker 2:They can negotiate terms of contracts. They wouldn't have to go to trial, Like the whole industry of attorneys would be gone. I mean there's a caveat here somewhere that I'm not seeing. But fair would destroy the invention of the attorney.
Speaker 1:Yeah, none of these problems would even be an issue. Exactly so. People would get paid on time, people would get paid for the amount of hours they work. Nobody would get a harass the audio. Unfortunately that's not the case, but so so let us move on quickly.
Speaker 1:This is just going to be the end of this segment. We want to talk about the new laws coming into, coming into effect in 2024, just quickly. So we'll do that in our next segment. Welcome back, thanks to our sponsors as well. I don't know if we have any sponsors, but I guess we're supposed to do these breaks because of that. But all right. So in segment two, we're going to talk about what we were supposed to talk about in segment one, which was the new laws coming out in 2024 in California regarding employment. So I I'm just going to talk about, I'm going to name them, and then Ryan, who, like everybody knows here, of course, and or should know, is a defense attorney who works with companies to help advise them on employment policies, and so the first thing that is happening in California for the new year that we're going to talk about is new changes from SB 616 to paid sick leave. Ryan, you want to just talk a couple of seconds about that.
Speaker 2:Yeah, really quick. California is expanding their law. They're going to give 5 days or 40 hours of paid sick leave to employees when they're previously entitled to 3 or 24 hours. You can front load that or accrue it. There's limits as to when they have to be accrued by and all that stuff. There's a use. A usage cap has been increased For the amount of paid sick leave to 40 hours. It was previously kept at 24, and then the accrual cat now Is they can be kept in a cruel of this at 80 hours for 10 days, and previously the cap was 48 hours or 6 days. Okay, and another caveat here.
Speaker 1:We're not caveat but disclaimer. Go talk to general counsel for your company, and if you don't have general counsel, go talk to your employment attorney. And if you don't have an employment attorney for the company, just shut your business down.
Speaker 2:Put it down, start again. Don't do it.
Speaker 1:Go fight If you can't afford a few hundred bucks an hour for an attorney in California and you're running a business. You're doing it wrong. I don't care. There's remember there's nothing as known as fair. Just go do it. This is what you have to do. Stop complaining. Next thing that we're going to talk about is SB 699, which is regarding non non compete agreements and notice requirements for employees. You want to. You want to first tell them what a non compete is and why those are a problem.
Speaker 2:Yeah, not going to be. Agreements are essentially kind of. What it says is that employees are being, or have been, historically told that they cannot compete with their employer. So if you work for McDonald's a good example would be if you work for McDonald's and then have you sign a non compete. You can't work for a competing burger chain or burger restaurant, or some would expand it to another restaurant that serves food.
Speaker 1:Open your own or open your own yeah in some geographical area.
Speaker 2:Usually they're limited to 25 miles, 50 miles, 100 miles, a state, A city, whatever. But the SB 699 is already was saying is kind of increasing the protections because there are exceptions, as there is, to most of every rule in life. The new law in California is going to ban as make void or ban or make void, I guess, in California, regardless of where the person worked when the employee entered into an agreement or when they signed the agreement. So non competes are void.
Speaker 2:There was a lot of niche law I'll call it where if an employee work for a California company but that employee was based in Missouri or another state outside of California I don't know why I'm picking up Missouri but another state where that employee could be, I guess restricted to a non compete because they weren't in California. This law changes that. The new one and also the other assembly bill is 1076 requires employers to notify their current employees and former employees if they were employed after January 1 to 2022 in writing that any non competes that they signed our void. So it puts a lot of awareness on employers, not only to fix their practices but to go back in time and notify them of things here.
Speaker 1:That is a proactive duty there, which means employers have to go out and actually seek out former employees and let them know they have a duty to do that by law and I don't know what the consequences of not doing that are, because we haven't looked into this.
Speaker 2:But yeah, well, I'll tell you what the consequences are. That it's going to be a inability for the employees to sue their employer, and I guarantee I don't. Again, I have not read the bill. I have like why. I've read it, but I have summarized it very quickly. I don't remember exactly what it says, but I can almost guarantee you there's going to be a punitive measure where the employee will have the ability to recover penalties, interest and the kicker for people like Arda and his bar attorney's fees. Humongous, humongous incentive for a plaintiff's attorney to take cases on contingency for employer employees.
Speaker 1:Yes, that means that if we go to trial and we went at trial that we are entitled to have our very generously compiled attorneys fees that we earned and I really want to emphasize that we earned throughout the litigation process to be paid by the losing side, aka the defendant, and that a lot of times can really outstrip even though a word that was given to the plaintiff themselves. So it's a huge incentive for employers to want to settle because they already know how much they're paying their own lawyers. So they're in a position where they're going to have to pay their own lawyer, they're going to have to pay the plaintiff and they're going to have to play a plaintiff's lawyer, which no sane business person wants to do. Agreed. And again, that goes into fair, because sometimes an employer could think that you know they shouldn't have to pay or the claims are made up. But this is business, you have to figure out what's best for your business and sometimes paying out, even if you think that the claim doesn't hold merit, could be the best thing to do.
Speaker 1:And that's not necessarily the sweetest pill to swallow. And you know there are a lot of unscrupulous attorneys on the plaintiff side. Not, I don't know any of them. I don't even know if they really exist, but we've heard of these people that might might be doing claims just to settle without having a lot of evidence, but that's a whole other topic. Next thing that we want to talk about is the new mandatory workplace violence prevention program starting again. This starts in July of 2024.
Speaker 2:Yeah, so employers have a little bit more time to implement this one, but California Senate bill 553 imposes requirements on employers, some of them being recording incidents or threats and a violent incident log. They have to employers and provide training to all employees on these issues, as well as maintain records relating workplace violence prevention plans, which is to kind of underscore what we talked about earlier in the first segment. We assist employers in doing this and, although it might cost a little bit of money or take a little bit of time, and complying with these laws when you're required to in this case July of 2024 is way better than it is to deal with a lawsuit that you don't think is coming from your family of employees on these issues.
Speaker 1:And this is going to be a big problem for companies that don't do this. Because if you get sued in a situation where one employee has physically harmed another employee and us as plaintiffs attorneys, get your HR person, your manager, whoever it is in a deposition and ask them well, why don't you take us through your workplace violence prevention program that you're now legally required to have your company and? And they sit there and they go. We have one of those. Well, guess what your cost to settle just went way up. Don't forget about these things. Go ahead and reach out to your general counsel at your company, if you're an HR person or your outside counsel, and get these things taken care of and have them explain to you and have them implemented at your company.
Speaker 1:Next thing that we want to talk about is the off duty cannabis use and drug test results that are going into effect in January 1st 2024. And these make it unlawful for an employer to discriminate against individuals in hiring, termination or any term or condition employment or to otherwise penalize an individual for cannabis use or drug test results under certain circumstances. So you they can't take any actions against employees, they being employers for off that off duty cannabis use away from the workplace or results of an employer required drug screening test that found individuals to have non psychoactive cannabis in their hair, blood, urine or other body.
Speaker 2:So let's make a big note here, like a big caveat, because you're thinking a lot of that's crazy, which which it is especially given a lot of industries require certain safety protocols. But it does not allow employees to possess or use marijuana on the job, but and it also does not interfere with my clients or employers rights to maintain a drug free and alcohol free workplace.
Speaker 1:That's right. So settle down, teach, and we want to talk about and this this is going to go a little bit into what we talked about in segment one is arbitration enforcement. But this has been an area of law that California really, really is trying to attack In comparison to the rest of the country stands and the federal stance. California stance is that they do not want arbitration agreements to be a condition of employment for employees, so meaning that employers should not be able to say that if you want to work for us, you have to agree to wave your right to be able to sue us in court, in state or federal court, and we have to go to arbitration.
Speaker 2:So it's just to add to that with a lot of specifically and it's space or like I guess, a 10,000 foot view of this law is allows plaintiffs to continue pursuing their claims in situations where an order has by the court denied a motion to compel or petition to compel arbitration when the appeal is made by the employer. Usually that takes a long period of time for that appeal to be completed, whether it's after briefing and arguments and receiving a decision a lot of time. So what this law does is allows for plaintiffs in those situations to continue their cases in court. So there's no waiting time, which one discourages appeals by employers. And two and two is if the plaintiff proceeds with their case. The employers have now two things they have to deal with. One is the appeal and two is defending the case by the employee.
Speaker 1:So I think we're. Maybe we should take people a little bit through the process of arbitration and how it fits into the litigation process. So arbitration is an alternative to litigation. Litigation means somebody has filed a lawsuit and this lawsuit is going to be subject to the California state courts or it's going to be subject to the federal courts, depending on where the lawsuit was filed. That's. That's all other subject. But so what happens if the employee handbook or the whatever agreement offer letter that the employee signed included an arbitration provision? Employers then can enforce this arbitration provision to take the case out of litigation from court into this kind of private litigation process of arbitration.
Speaker 2:And sorry, this is no fear, the biggest reason, for there's a lot of reasons, a lot of them. We can talk about this for days. The biggest reason is there's no juries in arbitration.
Speaker 1:Yes, arbitrations are decided by an arbitrate. Arbitrator is usually an ex judge, almost always an ex judge, because they're the ones that have the most gravitas and they're the ones that people are going to be more willing to listen to when it comes to an arbitration decision coming down. But, ryan, what I want to ask you for the benefit of our audience is why, as a defense attorney, are you going to be trying to go ahead and enforce this arbitration provision against the plaintiff?
Speaker 2:Yeah, again, there's a lot of reasons for this. A lot of them, the things that immediately come to mind again as first, there's no jury. So I'm not going to sit here and be worried that a jury of the plaintiff's peers will award them some astronomically ridiculous number of damages for what an employee excuse me, an employer may seem as a seemingly innocuous or not $20 million claim. A couple other reasons are that there's seemingly I don't know if there's reports to prove this or to support this, what I can tell you there is is there seemingly an inherent bias of arbitration towards the employer. And that's again for a couple reasons, one of them, the biggest one being that in California, employers have to pay for the cost of the arbitration. So in most circumstances they can't excuse me, employers cannot require employees to pay more than the filing fee the employee would have paid in civil court in an arbitration. So I think, like jams and AAA, it's like $400.
Speaker 2:But unfortunately for plaintiffs and unfortunately for employers, the cost of arbitration is ridiculous. Courts are free, you file the. There's filing fees $60 here, a couple hundred dollars there and there's delays because it's an overworked government process. But the arbitration process is expensive You're paying for, like Artis said, most likely a retired judge to preside over your case in an informal capacity, and they charge an hourly rate for services and daily rates for hearings. So it's expensive. Instead of just filing, go ahead, don't forget about the arbitration fee.
Speaker 1:A typical arbitration fee in Southern California is going to be maybe $30,000 to $50,000. That's the fee that the employer has to pay up for.
Speaker 2:Well yeah, and that really depends on the provider and how they're structuring. But that's a very good point. It's very expensive and so if you have an arbitration hearing that might take two weeks, that's a significant amount of money the employer's paying just to have it heard. I mean, they could still lose and they lose all the time in arbitration, employers. But just the fact of in the civil court I'm sorry it's supposed to be positive this is a very big negative for employers. But in civil court you pay $60 to file a motion, you pay $500 for a motion for summary judgment, you pay for a jury fee of like $100 a day and some small amount of money Excuse me and what have you. But in arbitration it's very expensive.
Speaker 2:The other reason that we have arbitration that I like arbitration specifically is you can very easy to schedule. You don't get screwed by a judge who doesn't want to continue your trial given a valid reason, and you get essentially an expedited review and result of your case. So those employers you don't want to have. If you have 10 or 20 active matters, which is common for big employers in California, you don't want those lasting two or three years going through the annals of the court process. You want them to be resolved if you have to go through the court process quickly and easily, and that is very it's more not really anymore with COVID and arbitration is getting backed up. But it's easier to resolve cases quicker in arbitration than it is in the court system.
Speaker 1:And that's something that we should touch on as well. Arbitrations used to be something that were an expedited process, but 2 things happened in the last 5 years or well, what year is it? Okay, so, last 4 years, I'll just say 4. Covid, and then the AB 5 law which came, which was directed at Uber and companies like Uber, doordash, things like that, who wanted to pay everybody's independent contractor.
Speaker 1:All of a sudden, there is a law AB 5, that gives employees who are now considered employees used to be independent contractors, the ability retroactively to go 3 years back and claim damages from the time that they were incorrectly misclassified as independent contractors versus employees, and those were all subject arbitration. So every single Uber driver well, not every single one, but a huge amount of Uber drivers then filed for arbitration, and that really clogged things up, and all the cases that were usually going to be filed in court during COVID went to arbitration, because you know, of course we're shut down really made the arbitration process go a lot slower, and generally, arbitration awards are much, much, much, much lower for the plaintiff, even if they're successful in winning the arbitration, than they would get from a jury. And so those are some of the considerations. We also want to note that even though you're an arbitration, it's still possible to go to mediation before the actual arbitration kind of trial takes place. So that is another alternative that's still available during the arbitration process.
Speaker 2:It's becoming like a small economy. I mean they always were, but even better now, given arbitration agreements. In California there's a whole process. You file the demand for arbitration, but that is processed. You get a case number, a reference number, then you go through an arbitration selection process, initial hearing, and then you go through. You know whatever those deadlines are the animals of the process. So no, it's very interesting.
Speaker 2:And the other reason just to kind of hit another reason, the other reason why our employers like arbitrations is not only to get the control of process a little bit better, but which employers love to do in all situations but you get to keep everything in the arbitration confidential. So the court process is a very public process. There's obviously exceptions to that and you can petition for stipulations to seal and make things confidential by stipulation and orders. But for most purposes, especially in California, anybody can go on the internet, anybody can search for any case and especially now you can pull documents directly from the court's website. Whether through the court itself or through party services, nobody will have that. There's ways to access documents if you're a party, but otherwise there's no other way to tell.
Speaker 2:I wouldn't know how many arbitrations Arda is in right now I couldn't find that, unless there's a service out there I'm not aware of, but it keeps everything confidential. So, as an employer, if you have a bunch of wage and hour claims that you can get an arbitration, it looks better publicly. I mean, you have investors sometimes for these large companies you have, you know, applications for credit you have. If you're going to search for a new office space in a different state, they might look up to see if you have a little lawsuits against you. I don't know Lots of reasons why you want to keep that confidential.
Speaker 1:And one other thing, last thing that I want to talk about just generally about arbitrations is kind of the inherent bias towards favoring employers because of the way that the pay structure has been outlined by the state of California, so the employer, as we mentioned before, is responsible for the bulk of the fees to the arbitration company, and the arbitration company makes a lot of money and they want these employers coming back to use their arbitration company. So that kind of you know. I mean, this is not some sort of conspiracy, this is just normal. If you're a business person, you want your customers to come back to you and so you're going to not outwardly or just patently favor the employers. But there is a bias there that really can't be denied.
Speaker 1:And again, none of this is fair, because fair we don't even give a crap about fair. Fair is something that doesn't exist. Reasonable is something that we deal with, which is even harder than fair. But yes, yes, but it's a less loaded word in a sense, because fair, you know, implies much more morality than I think reasonable, as does no, I agree, I agree with you.
Speaker 2:This is funny because lawyers always find ways to vagify things right. If you have a contract, it's like, oh, I'm going to provide my services, no, I'm going to have reasonably provide, to an industry standard the amount of services. I mean, you can always make it by it and that's. I just made that up, absolutely.
Speaker 1:And so I want to explain a little bit better about the effect of these appeals in arbitration enforcement in court. So what happens is, as a plaintiff, you go ahead and you file your lawsuit, you serve the other side of the summons and complain, and then, if there's an arbitration agreement, what will happen is that the attorney for the defendant will speak with the defendant, speak with that company, see how they want to play it. If they want to spend the money potentially for the arbitration, what's going to be the most cost effective way to deal with this, and if they decide that they want to go ahead and take it to arbitration, they'll file a motion with the court to enforce the arbitration provision. This is a very kind of tricky situation in California because California has very strict, very strict guidelines for what needs to be included for an arbitration provision in a contract employment contract to be enforceable. But if all those things are in place, it's almost impossible for the employee to defeat that arbitration provision, usually end up in arbitration.
Speaker 1:But in a case where the arbitration provision that the employee had signed from the company was not meeting the California guidelines and the motion for arbitration filed by the defendant is not successful, they have an opportunity to appeal that decision by the court, and usually this would mean that everything the case would be stayed, which means that the case cannot go forward with its normal machinery of things like conducting discovery.
Speaker 1:And this is a huge advantage to employers because the employees, the plaintiffs they always want their money fast, fast, fast, and they start getting impatient. Witnesses start to lose their memory and disappear. People no longer work at the company. It just makes things more difficult and with the way that courts are impacted, currently, an appeal well, first of all the motion to enforce could take six months to be heard and then the appeal could take another six to eight months. So already before you even have an answer to the allegations filed by the defendant, you're waiting another year to have this arbitration issue taken care of, and that's a huge advantage to the employer. So what this means is that the discovery, the depositions, the affidavits, the production of documents can still go forward while the court is pending this hearing on the appeal of the arbitration decision.
Speaker 2:Well said, well said, and that's again like you said at the very beginning. To wrap this part of it up, this California is again trying to restrict the ebb and flow of what employers are able to do to squeeze rights away from or keep rights away from its employees in the state yeah, and again, the federal is pro-arbitration.
Speaker 1:Most of the rest of the country is very much pro-arbitration clause because they feel that these employee-friendly laws, like crossing out the ability for employers to have arbitration provisions, is anti-business and is not good for people who want to start and run their own businesses.
Speaker 2:Right, well, and a lot of the federal law too, just says people can contract for things, for anything. That's not illegal. And it's not illegal to enter into agreement to have a third party aside from a court to have a dispute. So it's really more of a not necessarily it is a conflict of law issue, but the federal law does focus more on the party's ability to contract, amongst a bunch of other things.
Speaker 1:Yeah, I mean it's kind of an interesting kind of constitutional law topic as well, because it gets into states' rights versus federal, and how much should the government be prying into how you run your own business? But again, I mean that's more for a strictly legal podcast than an HR podcast, which we want to focus more on what the practical effects of these laws are going to be. Again, go talk to your general counsel or go talk to outside counsel about this kind of stuff. If you have more questions, you need to go talk to somebody who has legal experience and a license to be able to know how to effectively go ahead and deal with these new laws and what effect it will have on your business.
Speaker 2:Yep agreed. Thanks, Sabrina.
Speaker 1:Alright, so that is wrapping up our second segment over here. I want to thank you for listening so far and let me know that we have an awesome segment coming up. It's a brand new segment that I just came up with about 10 minutes ago. That is called billable hours.
Speaker 1:And billable hours is our new segment where we talk about a real life example of something that happened in the workplace, and we're going to talk to Ryan, as the attorney for this hypothetical company, on how to deal with the situation. So we'll be right back after these messages. Thank you to our wonderful sponsors. Welcome back everybody. Our sponsors, law Office of Arta Wildebaugh and Ryan Ellis Law Corporation, are two wonderful sponsors who have nothing to do with us. That sounds so familiar, though. Well, law Office of Arta Wildebaugh sponsors Ryan, and then Ryan Ellis Law Corporation sponsors me. So that's how it works, everybody.
Speaker 2:You're giving them industry secrets here.
Speaker 1:Oh, no, okay, here come the IRS. Well, I mean, at least somebody would be listening.
Speaker 2:Yeah, that's true.
Speaker 1:So in our third segment, called billable hours, we want to talk about a real life hypothetical. Well, no, that doesn't make any sense. Well, we want to talk about a hypothetical situation that could likely happen in real life for an HR professional and tie it in to the new upcoming 2024 law in California on workplace violence policies. So let's quickly recap what is the new policy that's coming into effect in July of 2024. Ryan, do you want to quickly recap that?
Speaker 2:Yeah, so that was the Senate bill 553 in California requiring essentially all employers to create workplace violence violence protection plans and essentially writing to the handwriting and all employees you know how they have to do it keeping logs and reporting all that stuff.
Speaker 1:And just quickly why is it important for this to this kind of stuff to be documented both, both for employees and employers?
Speaker 2:I think this could seem to a bigger issue of dealing with employees that may be hostile, maybe intimidating, maybe making threats. I mean, again, a lot of people listening to this podcast might not deal with larger companies that have thousands of employees. We understand people have their own stuff going on and some people are different than others. So workplace violence, workplace threats, intimidation and in subordination all happen and that's why we have laws like this. And obviously, what is the joke where if you see a warning sign that means it happened, like why would it toaster have a thing say, hey, don't put me in the bathtub, it's to people have done that.
Speaker 2:So this law is the result of issues arising in California relating to workplace violence, intimidation and threats. So I think a good way to discuss this, to go through the bill of Lauer segment, would be to discuss in subordination, because a lot of times and we've consulted specifically on these issues that managers dealing with in support nation for employees and it can happen in so many different ways, but a lot of times managers don't know how to deal with it. One and or they don't have the ability to control the situation by way of terminating that employee, and I'm not advocating that every instance of support in subordination should require a termination of that employee. But if I was at school and my teacher couldn't discipline me, I would have a different way of, I guess, dealing with my classmates or dealing with the teacher, as opposed to if I knew she, he or she, could discipline me.
Speaker 1:And that's basically negative incentive.
Speaker 1:If you know something bad is going to happen to you if you act a certain way. You're not going to do it. So maybe what I want to do is introduce the hypothetical. So we have a situation where employee is told by their manager constantly that they need to work harder, work faster, that they're not up to standard and maybe calling them stupid or slow or lazy or something like that, and that causes them, the employee, to go to HR and complain about their manager and, and you know, at this point they decide. The employee decides that you know what? I'm just not going to talk to my manager anymore.
Speaker 1:Whatever they tell me, I'm just going to ignore them. I'm going to do my job, but I'm not going to listen to this manager. If they talk to me, I'm going to look away. And this isn't something that was physical violence or, but it's not like I would say sabotage, is not like you're throwing a wrench into the machinery or something like that with actual physical acts, but it is something that is going to be very disruptive to a workplace, even ignoring somebody, on this case your manager. So right For your segment billable hours. What we would like to do is ask you how you would counsel a HR manager, hr director, who reached out to you to see what to do in this type of situation.
Speaker 2:So in given that example, you just you just provided where an employee is simply giving the silent treatment or ignoring the manager. Obviously that's not good for morale. I guess a deep dive should be taken by HR to figure out why that is happening. You know there's a lot again caveat there's a lot of things you can do here and a lot of different situations that could provide different results depending on the employers, policies, procedures and guidelines. But if I can see this phone call or email, my immediate response would be one why is this happening?
Speaker 2:I get a basic idea of what happened to lead up to this and then, depending on the severity or in this situation it's not too severe because it's just a silent treatment I'd make sure to counsel the manager or have HR counsel the manager to to now not. I have two small children. So in that situation if my child ignores me and I repeat their name After a while, I raise my voice to get their attention, because sometimes they're watching TV or doing homework or something and they didn't hear me. Whatever. You don't want an adult raising their voice at another adult, especially in situations where the employee is intentionally avoiding the situation or intentionally ignoring. So we don't want to escalate the situation on behalf of the manager.
Speaker 2:That's the first thing. So we counsel the manager on that. Second thing would be again depending on facts of why it's happening would be having a conversation with an employee, with the employee who's being in subordinates. They look what is going on here. You can't just ignore your manager. You have to address the situation and various things can be put into place, whether that's communicating and writing, which is what it can happen. It could be having HR sit in between meetings to essentially mediate communication until we can find an adequate solution, or anything in between there.
Speaker 1:Let me ask you is this a fireball offense? Is ignoring your manager a fireball offense?
Speaker 2:Not in your example, I don't think. I think being childish is not a fireball offense in an initial.
Speaker 1:But it's at will. How come it's not? Let's say you're disrupting the workplace. Let's say you're telling other employees like, hey man, you know, frank has been on my ass about being lazy or coming in late all the time and I'm just not going to talk to him anymore. What about that? And I'm not challenging you know, I'm just bringing you.
Speaker 2:Well, that's a very different example than what we were talking about, but I like the example. So just to underscore again for everybody listening here California is excuse me as an at well state, so an employee without a contract can be terminated for any reason. That's not unlawful. So if literally in this, let's say, it's me on the manager and Arda is the employee, he's just ignoring me and you know that to me just being ignored and in order to doing his work, you know, counsel the people individually, but I would do either a note to file or how severe it is. If, again, depending on the situation, do a write up and have the employee acknowledge it and possibly the manager to.
Speaker 2:But if Arda, as the employee, is going around and talking to other employees and say, hey, now this is all BS, or causing a scene and kind of spreading the word of why he is being in support, and I think that's a more punishable offense, again, depending on the situation, depending on the work needs, depending on the employer's handbook and the situations, it could be a terminal offense. I can terminate Arda right now for any reason, just because he came in on Monday or whatever day. This is what is it. Today is Wednesday when we're recording it. But he just came in today and I can fire him for any non, just any non illegal reason yeah, so as long as not discriminatory.
Speaker 2:What's that?
Speaker 1:This is going to affect our show sponsorship.
Speaker 2:Well, I'm going to keep you along for this one. I'll just put a note to your file. But it's one of those situations where it really it just depends, especially now we're recording this in 2023. So employers are having a tough time in California finding employees. So a lot of advice I give to employers is look, here are your rights, here's what you can do in the gamut of what is possible. That's advisable, but that doesn't mean she do anything, because if you have an assembly line, so to speak, and it's hard to find workers to work on an assembly line, you might not want to fire that person and you might want to take more discipline or not discipline, because you don't want to piss them off, which, again, is crappy advice to give but a crappy business decision to make.
Speaker 2:But I give you what you can do and you do what you want with it. So, no, a long-winded way of telling you that. No, that the insubordination can be a terminal offense, but it doesn't have to be insubordination to be nothing, as long as there's no discriminatory motive or animus behind it. There's no link to any discriminatory possible intent. Like, for example, if that employee complain hey, I have this disability that's requiring me to be late, causing me to be late. I need some accommodation for that. And then you fire the person. Big issue. But if the employee is just literally just late for no reason, you warn the guy or girl or whoever. You can turn them for any reason. Again, in California specific, I always tell employers to take as many steps as they are able to take from a business perspective before making any terminations. Given that California is such a heavily litigated state that advice changes in different states such as Texas and Nevada. But in this situation, again, depending on the business acumen, the business needs of the employer, I would not say to terminate.
Speaker 1:All right. So I want to expand on our hypothetical a little bit. So we've had now our investigation. Hr has now spoken with the manager, has spoken with the employee, has gotten kind of a handle on the situation, has told the employee that this is not something that the company can tolerate, that it's affecting the business and please stop and let's just get back to the way things were and we tell the manager hey, listen, chill out a little bit, maybe be a little bit less aggressive, find a way to be more of a people, person and manage the employee.
Speaker 1:And we have a situation afterwards, say like a couple of weeks later, supervisor has a word with the employee and the employee just absolutely blows up and starts screaming and yelling at the supervisor and saying that if they ever say anything to them again they're going to kick the supervisor's ass. And now you have a situation where as a HR person, you have a decision whether or not to terminate. But let's say you've taken the decision to terminate and you're scared of this employee, like physically. This is like a real thing. That's maybe less legal, just purely legal, but something that a lot of people have to deal with as HR personnel, that maybe you're in a logistics company and you got a bunch of just very angry, huge, gigantic people working there that can beat you up, and you're scared of firing them because they're already pissed off. How should the HR department handle a situation like that?
Speaker 2:Yeah, that's a good segue from legal to like more of the HR slash, day-to-day operations way to look at things and how to consult them. So there's two main ways to do it. First would be to have someone in HR who's confident enough to make such a determination, do so in person, in the room closest to the door. So just for purposes of this discussion, we're going to assume that the person that's being terminated has made threats, is intimidating. There's a worry by the company or HR that they'll do something, whether it's initiate violence, make additional threats, throw a fit, go crazy, all of the things. So let's assume that's true the room closest to the door, hopefully a conference room or bigger space.
Speaker 1:The chair closest to the door. What do you mean? Well, like a room.
Speaker 2:So like if you walk into an office, like my law office, for example you walk in the door, I have an open space that has some cubicles and I have a room directly to the right of the door. That's an office. I can have that office used by myself as an HR professional to terminate an employee in that office and it's five feet from the door as opposed to at the end of my office. There's several offices at the end, having the conference room down there, where I have to escort the potentially violent or intimidating or threatening employee, but we pray them through the entire office to walk them out. So you want to try to have a place closest to the door or the exit to make sure there's a way to control the situation in case it becomes hostile or violent.
Speaker 1:So, just to recap, so hostile and violent, but also you brought up another good point is you don't want this employee parading around the office acting like a martyr or yelling at other employees that this place is bullshit and this is unfair, and all this in making a scene as well. I think that's also one of the considerations.
Speaker 2:Yeah. So if you're going to do in person, as we said, you want to have a place close to an exit. You want to have, I think, with all terminations, you want to have a witness, somebody there and possibly, depending on how the situation would go, have it work forwarded audio or visually and make sure everybody's aware of that before anybody speaks or does anything. So after you do that, you give the HR professional or person making the termination would hopefully have a script to read. And I say that because we as professionals, hr professionals and attorneys have done I don't know how many terminations throughout my career. They've all range from good to bad and poor, depending on how the employee reacts to it. But we've all done it, but in situation. So I can do it right now off the off the cuff, no issue to anybody.
Speaker 2:But in these situations you want to have a short, concise, well written statement for the person to read, the person being the HR professional to the employee being terminated, to make sure that it's kept kind of In a box of control. You want to try to control the situation as much as you can when there are instances of violence, threats or potential intimidation. So short and sweet, do not give the person time to share their opinion or go off, go off the handle on crazy stuff or what you deem to be crazy or inappropriate. And then, if they have that person has questions or concerns, you have to shut them down from talking. Because again the point is to get this person out of there For whatever reason again, not unlawfully, but for whatever reason.
Speaker 2:If you give that person an option to speak with your counsel, to speak with you in writing, and again you push the person you don't push me to get the person out of there as quickly as possible. And again, at this point, if the person is complaining to you and giving you reasons, it shouldn't matter at that point too much. It may, but it shouldn't because at that point you've already made a determination to terminate that individual or the company has, and hopefully after an investigation and looking at all the facts and relevant. So if there was another option it would have been taken and at that point you shouldn't really worry too much about what that employee has to say when you're terminating them. So that's the way to do it in person. I guess a really quick overview.
Speaker 1:What about if, as the HR person, you are scared that they might retaliate physically? Do you call the cops? Do you have them?
Speaker 2:waiting there, do you have?
Speaker 1:security, building security, office security how do you handle that?
Speaker 2:Yeah, and that's a good point. I've never had a personally deal with security or police presence, either in the building or near the building, but that is absolutely an option. I've seen examples where police will provide a presence, whether it's in a parking lot, depending how severe it is, in the building, in the room, outside of the door of wherever the termination is occurring, just in case, and so that is an option, same with security, depending on the building you're working in. I worked in the high rise in Century City.
Speaker 2:There were several security individuals that would have loved to be part of that, as opposed to telling kids to stop skateboarding in the quad, so exactly. So, yes, that's absolutely an option and, again, this is actually a good segue. So if you were afraid, as an HR professional, that the person will be really physically violent whether that's because they're bigger than you, whether it's because you may think they have a weapon, whether that's because they've said they were, they would beat you up or had a weapon, any of those things there's a second way to go about terminating this individual.
Speaker 1:Before we get into the second way, what happens? Let's say, okay, fine, you fired me.
Speaker 2:Okay, whatever dude, okay fuck.
Speaker 1:I'm pissed off. I'm like listen, ryan, at least let me go to my desk and get my stuff. I got family pictures. I got kids all this stuff in my desk. I got my vintage playboys. I need to get my stuff Now. What Good example.
Speaker 2:No. The answer is no. You walk them out. That is the exact reason why you are in the door or the building closest to the exit or closest to an exit because you want to get them out. You inform if they say that or any iteration. They want to go back to their desk. You will have security or someone in HR go to their desk to grab their essentials, whether that be their phone, their keys or wallet. Provide that to the employee after they left the building.
Speaker 2:But you walk them right now. Most of the time, people carry their phone and keys on their person. We walk them right out. You have you tell them that all their their personal belongings will be shipped to them and you do so by way of insured, certified mail. Take pictures and possibly video of the person gathering the desk and you know you do not let them back in the building or back to their work station or their office because you don't know what will happen. You don't know what they're going to do. They could destroy things. They could delete things. You don't want any part of that.
Speaker 1:And so when also you said delete things, that that's perfect, because I wanted to ask you, when do you talk to it about like stripping them of passwords, email, all that?
Speaker 2:access. Yeah, that's another good question. You're full of them today. I like it. The talk with it. The talk with it is should be done prior to the termination. So you have a meeting set to terminate.
Speaker 2:In this situation, I'm going to terminate you for all the reasons we talked about before. You think you're going to attack me physically, bound to me or threaten me and cause the scene. I said a meeting with you at 3 o'clock. I we know we meet in this designated room closest to the exit. Prior to that meeting, I have already, and should have already, informed it that the person's access should be cut off at 3 o'clock, 255, 3 o'clock preferably the actual time of the meeting, because you have a few minutes to talk prior to termination occurring. So let's say it should have already had that done at 3 o'clock. So that person walks out of the building. They have no access to any of the company materials. They have no access to the building. If they have a key card to get in, that key card has been deactivated. And then, if there's again security in the building like in LA, lots of security in the buildings, especially in Century City you would form security of what's going on if it's really that big of a threat.
Speaker 1:And so there is another alternative to doing it in person, which would be to do it remotely somehow, either by Zoom or phone call or smoke signals, pony Express singing telegram.
Speaker 2:We wish you a merry goodbye. You're terminated.
Speaker 1:Pretty good, I like it Christmas, yeah. So that's the other option. How would you go about? Well, first of all, tell me what are the advantages, slash, disadvantages, if any, of firing someone remotely, and then how do you go about doing that?
Speaker 2:So, that's a. That was my segue of if somebody is being intimidating, they're making threats, you think they're going to be violent. You don't turn me in person for all the reasons, lots of reasons. For all of them, although it does seem a little impersonal. By doing it, it saves a lot of hassle and, a lot of times, violence Again in situations where you truly believe it's going to happen and your liability your, your exposure, legal exposure liability.
Speaker 2:Right as a business. And so in that situation what you do is, when that person leaves for the day, you put them on paid or unpaid leave, penning investigation, and then, no, they termate them at the end of the investigation, remotely or by phone, preferably. A record means because again, you have that as an employer as evidence in the future, god forbid, a claim comes up where you have to defend a lawsuit. So it's really the same kind of example that we went through earlier, which is you set up a meeting it's virtual, whether phone, zoom, skype, teams, blue jeans, whatever it is you go through your short script. If they try to insert their opinions that are at that point presumably improper or not relevant, you tell them to direct them to you in writing or to your counsel and writing. But yeah, you do it quickly, preferably recorded with everybody knowing about it and not in person, because it saves a lot of hassle.
Speaker 1:So you know you're going to reach out to them or you'll have to know they're suspended, and then Is it basically the same meeting that you have before you know. On Zoom, do you send them an email like and just mail in the stuff. Is that how it's going to work?
Speaker 2:Yeah. So let's say that it's 5 o'clock on a Wednesday. You, the HR professional or C? C individual who's making, telling the person they're being suspended, with or without pay, presumably what is cut off access to emails and access to the building. So make sure you have an alternative means of contacting this person, most likely by phone, and then you give them notice, whether it's by phone, send them a link to a personal email address or other email address aside from a work related 1 set of a time to talk again on the phone, zoom, whatever. Then at that, on that meeting or on that call, you give them the bad news and then any further stuff can be directed or if issues can be directed to you or counseling writing.
Speaker 1:Alright, I think that that's basically all we have to go over With this topic. Anything else to add regarding firing people, on any type of best practices or or Any other advice that you have for people on on terminating employees.
Speaker 2:There's a really big question. To wrap this up with, I'll say this the best advice is to document everything prior to making a decision to terminate and make sure if there's any semblance of A potential violation of federal or state law like your discrimination, disability, retaliation, harassment you know you're terminating that person relating to something that's protected, that you can solve it. An attorney first. Again, you want to document everything you can as a manager, as an HR professional, as a company For an employee. So if there is a reason to terminate that employees employment later you have records for doing so. So and it's somebody like you doesn't come around saying, hey, you terminate, this guy's been working there for 10 years, no discipline in the file. You want to avoid that because those cases, I'm sure, in your eyes, are worth more than cases where there's pages and pages of discipline over a period of time.
Speaker 1:Absolutely, the less documentation the better for a case like that for for me, because, again, you just get to put the person that's being deposed into a very bad spot where they don't they're not going to have good answers, there's no good answer for, well, why don't you have this policy in place? Why didn't you document this there? There's really no way to look good after that and it's really going to recap your case and recap your attorney's ability to to negotiate with the plaintiff.
Speaker 2:Yep, yeah, so that's the thing document everything. Us as counsel, as attorneys, as consultants are there to help you with these decisions and help you document things if needed, both through the process prior to issues happening, along with if you know, hey, we need to terminate this person, we need your help. We're there to help with that. Turn you there for that and again that consulting or attorney fee or whatever it is, is much cheaper than a lawsuit. I guarantee that.
Speaker 1:Yeah, absolutely. I think 1 thing is that people need to get over the the fear of making things out to be bigger than they are by reaching out to an attorney, like that's going to be the catalyst to some process where now they're stuck paying thousands and half dollars in attorney fees and yada, yada, yada and they made it such a big deal and now the boss is involved and but I mean, that's, that's really what you have to do, that that's going to be best practices to do that kind of thing. Because, again, if, if it does reach a point where you're in a deposition, being deposed as the person who did the firing, you want to have as much policy and procedure to be able to fall back on to to explain your decisions and behavior and have that documented as possible.
Speaker 2:Yep, no, so those are only I want to give advice, but any other questions, you know we're here, so please let us know. Contact us. Thank you everybody. This has been a great podcast is a great topic. Unfortunately, we could have talked about this for days, but we tried to summon up for you. We're looking forward to next, next podcast. This is Ryan and that is our dad. We are the Bob's and we'll talk to you soon.
Speaker 1:All right, take care everybody and be safe out there. Make sure that anytime you're firing someone, you call the swatting. Thank you, just your content.
