Episode 24

Transcript

Chris Koehler:
Welcome to another episode of Frantz Ward’s podcast series, Shoveling Smoke. I'm Chris Koehler, your host for today's podcast.

The last year has seen a large number of changes in labor and employment law. Change over from the Trump administration to the Biden administration has taken deeper route, and the appointments at various agencies are starting to have more tangible effects.

Frantz Ward's Labor and Employment Group will be taking a deep dive into some of these developments in our annual daylong seminar at the Cleveland Metro Park Zoo on June 14. So, we thought we'd identify some of the issues that are bubbling on the employment front, and at the same time, provide a preview of that seminar.
Here with me today to give us some perspective on what's going on in this area is my partner, Christina Niro.
Christina's a member of Frantz Ward's Labor Employment Group. She advises employers in a broad range of employment law matters from discrimination, retaliation, wrongful discharge, and harassment claims to cases involving contract disputes and restrictive covenants.

She has tried cases in state and federal courts and represents employers in various state and federal administrative agencies. Christine also provides employers of all sizes with day-to-day preventative counseling on the whole spectrum of employment topics.

She spearheads the firm's OSHA investigation and compliance activities, and she's OSHA 30 certified. She regularly advises employers regarding OSHA compliance and preparation of, and implementation of written safety programs.

Hi, Christina, thanks for being with us today.

Christina Niro:
Hey Chris, thanks.

Chris Koehler:
Looking forward to the seminar.

Christina Niro:
Always. This is, I think, my eighth year if I've got my math right. My first, I was very, very pregnant with my daughter, and it's a fun day. We get to see people that sometimes we don't physically see all year long because so much of our interactions are Zoom or phone or email, what have you.

So, it's a great opportunity for us to see physically the people that we work with all the time. And of course, for our employment professionals that we work with to get updates and practical advice on the employment law issues they're dealing with every day.

Chris Koehler:
Who’s your ideal audience for this?

Christina Niro:
Sure. Really, anybody who is involved in human resources: attorneys, certainly in-house counsel dealing with employment issues, people in HR functions, all employment professionals, really.

Chris Koehler:
I go every year because it's a good way to bone up unemployment topics that I have to deal with every day. What can the listeners and attendees expect this year?

Christina Niro:
Yeah, of course. As always, we've got multiple presentations on various topics. Some of them aren't necessarily going to be what's new and shiny in 2022, but they're topics that we get asked about with some regular amount of consistency.

And these are issues that employment professionals deal with on a day-to-day basis. So, one of those panels is going to be about common HR issues, best practices, kind of your bread-and-butter HR issues, and how to avoid liability.

Chris Koehler:
What are the bread-and-butter issues that you encounter most often, which we'll hear about at the seminary, I assume?

Christina Niro:
Sure. You know, certainly as we see more and more states updating and changing laws about cannabis, drug testing is a question that I get frequently, particularly with multi-state employers. The landscape right now continues to be varied. We're medical right now in Ohio, but there was a proposal that's been put before the Ohio legislature.

It doesn't look like it's going to go anywhere fast. There, Governor DeWine says he would veto a bill of fully legalize marijuana, Ohio, but of course, if lawmakers don't pass the bill, supporters can still collect the 130,000 odd signatures they need, and they can put the measure on the November ballot, and then it can become law through a ballot initiative versus some act of a legislature.

So, employers are sometimes actively and proactively dealing with these issues. Some employers are kind of holding tight until they absolutely have to make changes to their policies and practices. But those are definitely conversations I have all the time with clients.

Drug testing goes hand in hand with issues like criminal convictions and background checks, so there's going to be one entire presentation that's kind of dedicated to those issues.

Chris Koehler:
Are employers changing their requirements or relaxing their requirements on things like drug testing and criminal background checks in the midst of the labor shortage?

Christina Niro:
Yeah, I mean, we continue, like you said, to be in a very, very tight labor market. In my experience and speaking with clients in various industries, I do think it is industry specific. Your manufacturing, your construction industries are definitely continuing to take a more conservative approach because they do have all of these health and safety guidelines that they've got to be concerned with.

They've got to be concerned with OSHA, federal agency, and perhaps state OSHA equivalence. Marijuana's still an illegal and unlawful drug according to federal law. So, there's still that federal aspect that they're grappling with, but other employers who aren't in such heavily regulated industries are becoming a little bit more flexible.
Simply, by virtue you of the fact that they need to have bodies in positions, and if they're going to be eliminating everybody who pops positive for marijuana, they're not gonna have anybody to run their company.

Chris Koehler:
You mentioned health and safety, is COVID still an issue?

Christina Niro:
It is an issue. I think that we can safely say will continue to be an issue in the workplace. Doctors are still learning and studying about the effects of COVID, the different symptoms and effects of long COVID, in particular.

Long COVID, the federal government has said can be a disability under the ADA. CDC continues to update its guidance on COVID vaccines. It just did so last week, and we've got another panel discussion that's going to be dedicated to not just COVID, but these kind of ADA disability issues.

COVID is definitely going to be part of that conversation and our conversations for a long time coming, I think.

Chris Koehler:
What else on the disability and ADA a side is bubbling?

Christina Niro:
Sure. So, what constitutes an essential job function has kind of been influx since COVID. We've now settled into, I would say, a little more our new work routines.

And so, actually, one of our presentations is going to be a panel discussion with two in-house attorneys who are going to talk about what's changed, what stayed the same, and their experience and how they are interpreting, for example, in-person attendance as an essential job function given the changing landscape and frankly, the inconsistency in kind of legal interpretations of that concept post-COVID.

Chris Koehler:
So, remote work is having an effect on application of ADA?

Christina Niro:
Absolutely.

Chris Koehler:
I know we always have updates on what's happening with federal administrative agencies. As I indicated at the beginning, I assume this is changing pretty dramatically over the last two years because of the changing of the guard. What's going on with these agencies?

Christina Niro:
Yes. So, definitely lots of changes. As you mentioned to the heads of these federal agencies with the incoming Biden administration. Some drastic changes were promised on the campaign front, and many of those have at least started to come to fruition.

I think the first one that we've heard a lot about recently is the Federal Trade Commission, the FTC, and their proposed essential ban on non-compete agreements. Non-compete agreements are something that employers rely on. You and I draft and analyze and enforce those all the time for executives and key sales positions and other people.

So, the FTC and their new proposed ban, which has not worked its way through the court systems yet, but that's definitely a topic that will be a part of a presentation on all of these federal administration and agency updates.

Chris Koehler:
On this non-compete issue, and again, you and I know this; a lot of states are moving towards banning those as well. Is this signaling an eventual end in the use of non-competes, do you think?

Christina Niro:
You know, it's hard to say. We're always going to have certain states that take a more conservative approach, certain states that are, shall we say, more progressive in their approach. But I think we can safely say there's been some consistency now over a period of months and years in this tightening of the labor market.

And so, employers, states, we all want to make sure courts, frankly too, that people have jobs in any restriction on the movement of employees between companies. I think is something that we're going to have to be thinking about loosening up here a little bit. If we want to keep people, again, keep people in those positions doing work for these companies.

Chris Koehler:
So, employers might have to let their employees go somewhere else and figure out how to protect information or trade secrets or customer names while letting their employees go elsewhere?

Christina Niro:
And that's basically the argument that we're hearing from these federal administrative agencies. You don't need a non-compete. You've got other things like confidentiality provisions, that protect what is essentially your valuable trade secret information. You don't need the non-compete, if you've got the confidentiality piece of it.

Chris Koehler:
Okay, what's going on with the Department of Labor?

Christina Niro:
There's always something going on with the Department of Labor, Chris. We've got new guidance on handling telework under the Fair Labor Standards Act and the FMLA, lots to flesh out there.

Also, it seems like we've always got updates on independent contractor rules. Those never seem to stay constant. So, you'll hear about those in the same presentation. Artificial intelligence has gotten a lot of buzz really in the last couple of months too.

There was new guidance — well, it's not so new, but the EEOC has come out on artificial intelligence. And as a matter of fact, yesterday, the EEOC, the FTC and the head of one other federal agency came out pretty strong against artificial intelligence in the workplace.

So, we'll be talking about how AI and algorithms should be used and monitored, so employers aren't running afoul of the various employment discrimination laws that we have on the books.

Everyone wants to work smarter, not harder. But as we're seeing, there are some of these automated recruitment and performance tools that whether it's intentional or unintentional, have been found to reject certain candidates, even entire groups of candidates based on protected reasons.

So, whether it's advancement, there’re also unintended consequences. This is one of those issues that's going to have to get fleshed out. But when you're talking about adverse effects, eliminating entire categories of populations and protected people from the job pool, that leads to class action litigation. That's a huge risk.
And so, that's definitely something that employers and HR professionals are going to want to keep on their radar.

Chris Koehler:
Right before I was getting on this podcast, I was putting together a settlement agreement, and I was considering whether or not I could put in confidentiality or non-disparagement provisions. I heard there's a new rule on that. What's going on there?

Christina Niro:
Yes, this is the McLaren Macomb decision that was out of the National Labor Relations Board. Again, you and I do this all the time. Anyone who does this work knows that confidentiality and on disparagement are two big terms, big incentives for employers to enter into settlement or severance agreements.

This McLaren Macomb decision actually overruled old board precedent. And while it does not completely ban the use of confidentiality in non-disparagement terms in these kinds of agreements, it does place huge limits on how they can be used.

It is just a significant restriction on the use of these kinds of provisions. And again, we hope the decision works its way through the appeals process, but we're having serious conversations with clients about, like you, whether we put these in these agreements and how far we can safely go without risking running afoul of this very, very new and inconsistent opinion.

Chris Koehler:
So, like non-competes, is this signaling an end to these type of clauses or just limitations?

Christina Niro:
Yeah, this is another example of the Biden administration's leadership's extremely aggressive position.
I'm not sure that this is one that will stick around if the administration changes and things, pendulum swings to the other end of the spectrum. But obviously, they've put it front and center, so we're going to have to be looking at it whether we like it or not, at least in the immediate future.

Chris Koehler:
What else should employers know about what's new in 2023?

Christina Niro:
Going to be doing a separate presentation on some pregnancy-related laws that go into effect in June. We'll have an entire presentation dedicated to the Pregnant Worker Fairness Act, and the PUMP Act, which is providing urgent maternal protections for nursing mothers.

We've issued blog posts on this and updates, but I've heard a lot of comments since this passed in November and December, along the lines of, well, wait a second, we've got Title VII, we've had it since the 1960s, and the Pregnancy Discrimination Act came along in the 1970s.

We've got the Americans with Disabilities Act, I don't understand what this new law is supposed to do. Do we need this law? What is this all about? So, I'll actually be presenting with Megan Bennett on that one, talking about the gaps that were filled by these new laws and some of new requirements employers are going to have to face.

Not just after an employee gives birth, but beforehand as well. And kind of how to get your ducks in a row when you're put on notice that you've got an employee who's expecting.

Chris Koehler:
Well, it seems like a day isn't going to be enough to cover all the topics that you have going. I've gone to your seminars in the past, you always have a fantastic lunch speaker. Do you have somebody lined up for that?

Christina Niro:
We do. As always, lots to discuss, but anyone with exposure to our firm knows that Frantz Ward's very active in the community. We give back. We're interested in investing in what's happening in the community. And our lunch speakers always have that same kind of flavor.

So, I'm going to keep it close to the chest on that one, but we've always got somebody good lined up.

Chris Koehler:
Good. Now, this is at the zoo most importantly, so they sometimes bring out animals for the crowd. Any feedback on what the animals they're going to have this year?

Christina Niro:
I don't, but I know it's not going to be snakes. Because every year, I make them promise me that they will not bring out snakes. And every year, they've held true to that promise.

So, it's something small, something that can be brought inside and that isn't going to be dangerous, certainly to any of our attendees. But lizard's fine, rodent's fine. No snakes. Otherwise, I'm out.

Chris Koehler:
Christina, thanks for providing a preview and a little flavor for what's been going on in the labor and employment world, and what things our clients and HR professionals need to look at in the future. In case anyone is interested in attending our seminar, there's information on our website, frantzward.com, and we hope you can join us.

Christina Niro:
Thank you, I hope to see everybody there.

Chris Koehler:
That wraps up another episode of Shoveling Smoke. Thanks for checking in with us, and we hope you listen next time.

Shoveling Smoke is a production of Evergreen Podcasts. Our producer and audio engineer is Sean Rule-Hoffman, thanks for listening.