Humans at Work with Leah Stiegler

People. We’re complicated creatures. We can be compassionate. We can fall in love. Sometimes we don’t care for each other, but here we are.  

Also, some people cross the lines of propriety, causing emotional or even physical harm to others on our teams, whether we work with them, for them, or whether we supervise them. And sometimes we work more than regular hours, either because we’re directed to or because we’re willing to do what it takes to help our teams succeed. The workplace can be a labyrinth of tricky situations, and employers need to know how to make sure workers are able to navigate them smoothly, appropriately, and within changing laws and regulations.  

Our guest is Leah M. Stiegler, a principal attorney at Woods Rogers, who comes to the podcast with extensive experience across a broad spectrum of employment law matters. Leah is a trusted advisor to employers, providing guidance on complex personnel issues, performance management challenges, and fostering a positive work culture. Leah earned her J.D. from University of Richmond School of Law, cum laude, Order of the Coif, and her B.A. and B.S. degrees from Virginia Tech, summa cum laude.  

Listen as Leah shares practical solutions for a variety of challenges, like love at work, pregnancy at work, discord at work, harassment at work, and working overtime. She talks about gender identity protections, implicit biases, and microaggressions, plus conducting administrative investigations, and ideas to mitigate risk, stay out of court, and maintain a positive work environment.  

Thanks to Leah for sharing her insights on issues that arise where many of us spend most of our waking hours – at work! Her enthusiasm and passion for this work will be obvious to anyone who listens. I hope you enjoy it as much as I did producing it. 

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation, a brand of Critical Legal Content (a custom legal content service for law firms and service providers) and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at [e-mail].

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
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Episode Transcript

Tom Hagy (00:01):
Welcome to the Emerging Litigation Podcast.
This is a group project drivenby HB Litigation, now part of
Critical Legal Content and VLEXCompany's Fast Case and Law
Street Media.
I'm your host, tom Hagee,longtime litigation news editor
and publisher and currentlitigation enthusiast.
If you wish to reach me, pleasecheck the appropriate links in

(00:23):
the show notes.
And now here's today's episode.
If you like what you hear,please check the appropriate
links in the show notes.
And now here's today's episode.
If you like what you hear,please give us a rating.
People, we're complicatedcreatures, am I right?
And nowhere is that more ondisplay than in the workplace.
We can be compassionate, we canfall in love.
Some number of us can even getpregnant.

(00:44):
On the flip side, sometimes wedon't care for each other so
much and, frankly, some peopledeserve that.
Sometimes we cross the lines ofpropriety, causing emotional or
even physical harm to others onour teams, whether we work with
them, for them or supervisethem.
Supervise them.
Sometimes we work more thanregular hours, either because

(01:05):
we're directed to or becausewe're willing to do whatever it
takes, or maybe we're slow, ormaybe we just want to avoid
family.
No one does that.
We all know that the workplacecan be a dynamic environment, a
space where ambition, creativity, paranoia, backstabbing

(01:26):
politics and sometimesunexpected relationships.
Employers need to know how tomake sure their workers are able
to navigate these thingssmoothly and appropriately and
in compliance with changing lawsand regs, norms and mores.
I mean the concept, not the eel.
It's always good to throw out acouple of statistics.

(01:48):
Forbes advisor commissioned asurvey of 2000 employed
Americans.
They used market researchcompany one poll and I'll give
you some of those stats, butthen the margin of error you
should know is plus or minus 2.2points.
That includes in swing states,according to the writers of the
article based on the survey,kelly Main and Rob Watts.

(02:11):
I'd like to give them credit.
More than 60% of these folkshave had a workplace romance.
Almost as many report thatthese workplace relationships
have impacted their workperformance.
I report that these workplacerelationships have impacted
their work performance.
It doesn't say whether theirperformance was improved or
whether it degraded.
43% have married somebody theyworked with.

(02:32):
Okay, so I just work withsomebody.
I'm married to Something Irecommend highly Right, honey.
35% don't report theirrelationships to their employer.
40% have cheated on theircurrent partner with a coworker.
Half have engaged inflirtatious behavior with
colleagues.
Can you imagine.
Fewer than one in five thinkdating a colleague is
unprofessional.
Let's put that in a morepositive way Four out of five

(02:55):
say it's fine to date acolleague.
Let me pronounce that betterColleague, not collie.
Nearly 60% have heard gossipabout colleagues in a workplace
romance and then turn toharassment and violence in the
workplace.
It's a global issue.
A Gallup-powered poll out ofthe UK said that more than one

(03:17):
in five people worldwide saythey've experienced some form of
violence and harassment,whether it's physical,
psychological or sexual.
More than one in ten saythey've experienced such things
in the past year.
Psychological harassment, justas insults, threats, bullying or
intimidation.
It's the most common form ofworkplace abuse globally.
17% of the people polled saythey've experienced such things

(03:42):
during their lifetime.
So we're going to talk aboutsome of these things.
On the agenda is love at work,harassment at work, pregnancy at
work, discord at work andworking overtime at work, and
certainly some of these issuesaren't fun.
But our guest is How's that fora transition?

(04:03):
Leah M Stiegler.
She's a principal attorney atWoods Rogers.
Leah has extensive experienceacross a broad spectrum of
employment law matters.
She advises employers andprovides them guidance on
complex personnel issues,management, performance

(04:23):
challenges, fostering a positivework environment.
She defends them inadministrative actions like
before the EEOC, the Departmentof Labor and the National Labor
Relations Board Breach ofcontract, beach, breach of

(04:49):
contract discrimination,whistleblower complaints she
does it all.
She also tackles wage and hourconcerns, making sure employers
comply with complex laborregulations.
She also assists educationalinstitutions those are schools

(05:12):
with handling sensitive Title IXand Code of Conduct
investigations.
I only laugh when I say TitleIX because it's always written
in Roman numerals and Iliterally every time have to say
let's see, there's an X andthere's an I to the left, 10
minus 1, that's why I laughed 10minus one.
That's why I left.
Lee is also passionate aboutcreating customized workforce
training programs Because youknow, if you're well-informed

(05:34):
you're going to haveorganizational success.
So she finds that rewarding andapparently she has fun doing it
and I think when you listen toher you'll see why.
Now she also.
Finally, let's get hercredentials out there.
She has her JD from theUniversity, richmond School of
Law, cum laude or cum laudeorder of the coif.

(05:56):
I always like saying that Idon't know why I always think of
hairstyles.
I'm sure it's related and shehas a BA and BS.
I don't know why I always thinkof hairstyles.
I'm sure it's related, and shehas a BA and BS.
I don't know how you do that.
She'll have to tell me FromVirginia Tech.
Summa cum laude again.
Okay, we get it, you're smart.

(06:16):
And here's my interview withLeah M Stiegler, principal
attorney at Woods Rogers.
I hope you enjoy it.
Leah Stiegler, thank you verymuch for talking to me today.

Leah Stiegler (06:26):
Yeah, thank you, Tom.

Tom Hagy (06:27):
So we've got a lot to go through, but I've already
introduced you and generallyintroduced the topic.
First, we wanted to start withthe new EEOC guidance on
harassment in the workplace.
So can you share with me someof what you see, or the emerging
issues as they relate tolitigation in that category?

Leah Stiegler (06:50):
Absolutely so.
The EEOC is the EqualEmployment Opportunity
Commission, and this is thefederal agency that is sort of
the front line of defense, thesort of enforcement arm of Title
VII of the Civil Rights Act,and really plays a big role in
assessing complaints fromworkers and former workers and

(07:11):
applicants that are saying, hey,you know, I was discriminated
against based on my race, mygender, my sexual orientation,
and the EEOC will oftentimesinvestigate these charges.
We call them, and sometimesthey'll even bring litigation
against an employer, and anemployer has to defend
themselves in the EEOC world,and so EEOC issued some new

(07:35):
guidance that a lot of employersshould be aware of, and it
really does a deep dive ondifferent issues that EEOC is
looking at.
When it comes to harassment inthe workplace and harassment, I
don't know, tom, many peopleprobably think harassment is
really just sexual harassment,but when I say harassment,

(07:56):
oftentimes people think onlysexual harassment.

Tom Hagy (08:09):
Yeah, that's what comes to mind, yeah.

Leah Stiegler (08:11):
Right, yeah, and that's what's the fun, salacious
stuff that people see in thenews and I shouldn't say it's
fun.
That's probably going to get mecanceled.
Um.

Tom Hagy (08:19):
Oh, by the way, if you ever want to correct anything
you say, just tell me you'regoing to redo it.
That's okay, you can leave thatin.

Leah Stiegler (08:24):
Um, but uh, the way, if you ever want to correct
anything you say, just tell meyou're going to redo it.
That's okay, you can leave thatin.
But it's more just the medialikes that in the sense because
it's the salacious stuff in theworkplace.
So you see that sort of quidpro quo sexual harassment, where
a supervisor is harassing asubordinate.

(09:06):
But another issue and somethingthat I probably see more often
in the litigation that I dealwith for employers is harassment
on the basis is a hostile workenvironment harassment, and this
is sort of severe and pervasiveunwelcome and offensive conduct
in the workplace that's basedon a protected characteristic
like someone's race, someone'sgender, someone's age, maybe
mental health or some sort ofdisability.
And so EEOC is being that sortof frontline enforcement arm of
these laws, has come out withthis new guidance, and one area
that they're really touching onright now is gender identity,
and I often have this phrasethat you know, life happens at

(09:27):
work, and so if you turn thenews on and the news anchors are
discussing something on thenews, it's likely something
that's happening in theworkplace, and so gender
identity, sort of the waysomeone identifies, has been a
big issue in the workplace, soto speak, and EEOC's take is

(09:49):
that gender identity is aprotection, just like gender
male, female, non-binary andthat employers have to make sure
that they are allowingemployees to go by the pronouns
of their choice and that theyare going to be enforcing their
anti-harassment laws inworkplaces where there's maybe

(10:10):
misgendering going on, so sortof intentional or even
accidental misgendering byemployees over time, over and
over again that they're just notkind of getting it right.
Another area is outing someone,and we have seen this.
I'll get a call from a clientwho says you know, hey, we have
an employee who either they're anew hire and they identify as

(10:34):
male they go by the name Carland other employees are starting
to gossip and in the break roomabout you know that Carl maybe
was a woman before and they'retrying to find Carl's social
media and they're discussing itand all of that.
That.
That is all harassment in theworkplace.
It doesn't even have to be acomment directed at somebody.

Tom Hagy (10:58):
Right, just creating, just creating this environment.

Leah Stiegler (11:01):
Right, yeah, I mean it's negative and damaging.
Yeah, exactly, it's gossip,right?
Gossip in the workplace, evennot directed at you, that
impacts your work environment.
Sure, and we actually had asituation an employer called
you'll find this one interesting.
They had an employee whotransitioned while the employee

(11:21):
was working there.
So over time, the employee lethuman resources know, let their
supervisor know hey, I'm goingthrough the transition process
and I'm changing my name andhere are my new pronouns and
this is what I'd like to go by,and the employer was very
supportive new business cardsand with the employee's chosen

(11:44):
name and chosen pronouns.

Tom Hagy (11:46):
Great.

Leah Stiegler (11:46):
And did a little bit of education, basically sent
an announcement out to theother employees.
Well, one night, at like sixo'clock, when everyone had left,
two employees go into thatemployee's office, grab all of
the business cards, the stack ofnew business cards, and cross
off every single.
Cross off the employee's nameon every single card and their

(12:10):
pronouns on every single cardand put their birth name and
their birth pronouns.

Tom Hagy (12:15):
Well, it takes a lot of work to be mean.

Leah Stiegler (12:18):
It does, and I'm glad you said that, because we
don't even have to get to thequestion of is that harassment
based on gender identity?
Obviously it is.
We just have to get to.
Is that disrespectful and mean?
You know?

Tom Hagy (12:32):
yeah, very, especially for adults.
You know, yeah, uh, have weever left elementary school or
high school?

Leah Stiegler (12:42):
the bullying great um, yeah, it's bullying in
the workplace, and when youbully based on someone's gender
identity, that's harassment.
And so another issue and thoseemployees, by the way, the two
that engaged in that misconducttheir whole response was well,
my religious belief is that Ican only call someone by their
birth name and birth gender,only call someone by their birth

(13:08):
name and birth gender.
So we have this almost likethis battle between gender
identity protections andreligious beliefs in the
workplace and this idea thatemployers should accommodate
someone's religious beliefs.

Tom Hagy (13:17):
Yeah, that's a stretch , though, to going in and
changing everything on theirbusiness cards.

Leah Stiegler (13:22):
Yeah, I don't think we need to accommodate it
in that sense and the EEOC'stake on it right is that no one
person's religious beliefs.
We don't have to accommodatesomeone's religious beliefs if
their accommodation request isan undue hardship and it would
be deemed an undue hardship toinfringe on someone else's

(13:46):
anti-discrimination rights.
So we don't have to accommodateyou to the point that we have
to in order to make you happy.
We have to infringe on theirrights and take it out of the
gender identity context, right?
What if someone's religiousbeliefs was where I don't feel
comfortable working with a womanwho's not my spouse, and then
you're not going to give womenin the workplace the same

(14:08):
opportunity, could we make thatperson a supervisor?

Tom Hagy (14:11):
Yeah, it's when one person's rights infringe on
another person's rights.
You know there's a lot of thatgoing on these days.

Leah Stiegler (14:16):
Yeah.

Tom Hagy (14:18):
What do you do in that space?
All right, well, that'sinteresting.
The pronouns religious rightsof people, we had talked earlier
.

Leah Stiegler (14:28):
You mentioned some other things during COVID.
Yeah, and this is another bigarea that we've seen when you
turn the news on during COVIDalmost daily.
You saw hate crimes.
Do you remember this?

Tom Hagy (14:38):
Yes, very well yeah.

Leah Stiegler (14:39):
Yeah, you'd see it.

Tom Hagy (14:41):
I was stuck at home watching the news.

Leah Stiegler (14:43):
yes, right yeah, you'd see there was one.
I remember I was stuck at homewatching the news.
Yes, right, yeah, we all wereisolated watching the news and
you know, binging Tiger King andall sorts of terrible.

Tom Hagy (14:51):
I missed that one, but I heard it was a thing.

Leah Stiegler (14:54):
You're so lucky coming down on situations where
someone is maybe harassed, notbecause they fall into a
protected class, but because weperceive them as falling into a
protected class.
So bring up COVID, because yousaw hate crimes against Asian

(15:16):
individuals and even againstpeople who were appearing of
Asian descent or appearing as ifthey were from China, and
someone who was maybe Latino butwas mistaken, and someone
wrongfully attacking them orusing derogatory terms against
them.
And so, as I said, what'shappening in life is also
happening in the workplace.
We saw a lot of situationswhere employees filed complaints

(15:39):
against employers and filedlawsuits against employers
because of harassment, the sortof hostile environment that they
were perceived as being fromChina and that employees were
acting as if they were moreinfectious, were blaming them
for bringing the virus to theUnited States.

(15:59):
In another area speaking of 9-11, you know.

Tom Hagy (16:03):
Yeah, we're recording this on September 11th.

Leah Stiegler (16:05):
Yeah, that's right is the perception of
someone who's maybe from theMiddle East perception that they
are Islamic.

Tom Hagy (16:14):
Right.

Leah Stiegler (16:14):
And so misconduct related to that in the
workplace.
There were a lot of cases overthe last few years where
employees call other employeesterrorists or other
inappropriate terms.
Employees call other employeesterrorists or other
inappropriate terms, and you'vegot what's going on in Gaza
obviously making its way intothe workplace as well, and
employees are going to bediscussing that and going to
have really strong takes on whatthe US should do and what

(16:39):
people's rights are in thatsense.

Tom Hagy (16:40):
Yeah, and if you're Jewish, what role do you have in
attacking Palestinians?
And if you're Arab, what roledid you have in?
You know, october 7th it's nuts, I remember.
I do remember, after September11th, where I think it was I
forget what state it was, but itwas Indian guys were attacked,
or I don't know if they wereSikhs or but they were Indian,

(17:01):
they just assumed they wereArabs.
Or I don't know if they wereSikhs, but they were Indian,
they just assumed they wereArabs.

Leah Stiegler (17:05):
Yeah, that's a perfect example.
Just someone assuming by theway, someone looks that they
fall into that category.

Tom Hagy (17:11):
Not that they should be doing it anyway, right?
No?

Leah Stiegler (17:14):
absolutely.
I'm actually I'm really gladyou said that, not to say that
you could attack somebodybecause they are from China and
you're upset about the pandemic.
Absolutely not, that's not whatwe're saying.
From China and you're upsetabout the pandemic?
Absolutely not, that's not whatwe're saying.
But just sort of EEOC is sayingyou know, they want to make
sure that people have rights,even if they are being harassed,

(17:35):
not because of their nationalorigin to China but because of a
misconception of their nationalorigin, being from China.

Tom Hagy (17:38):
Yeah, I think my favorite quote after September
11th was from a constructionforeman in New York city.
They were arguing that youshouldn't be hiring minorities
or Arabs or because of thisstuff.
And he's like if I start nothiring Arabs and Hispanics, on
and on and on, we're not goingto build anything, you know?

(17:59):
Yeah, I just loved hisbluntness.
Is a real world thing, you know.

Leah Stiegler (18:02):
Yeah, he's ignoring the discriminatory
aspect of the directive, right,and he's going straight towards
the practical implication.

Tom Hagy (18:10):
Yeah.

Leah Stiegler (18:10):
Kind of along that note.
The other area that EEOC isgetting into is, you know, we
may not see as much overtdiscriminatory conduct in the
workplace in the sense of reallyuse of really derogatory terms
or, you know, use of the N-wordin the workplace or physical

(18:31):
sexual harassment.
We oftentimes we think thatthat's what it means when
someone is being harassed andthat obviously falls in the
category.
But EEOC is coming forward andsaying we also want to address
the more subtle things thathappen in the workplace.
So issues of stereotyping orpeople playing on implicit
biases, sort of theseunconscious, unintentional,

(18:54):
prejudicial attitudes that,let's say, a supervisor may have
in the workplace.
And I had a case where thegeneral manager of a dealership
was alleged to have said to oneemployee hey, well, this
employee was going outside onhis smoke breaks and there were
a group of other employees outthere smoking and the majority

(19:29):
of them were black.
And the general manager wasalleged to have said something
like you really shouldn't begoing out there on your smoke
breaks, you don't want to behanging out with all those thugs
, right?
And so the question came downin the manager's deposition of,
you know, the sort of this ideaof implicit bias, right, like if
there were a group of whiteindividuals out there.
Would he have really made thatcomment, that same comment?
Or is it this implicit biasthat, because the employees were
Black, there's some connectionin his brain to the fact that

(19:51):
Black is dangerous, for instance, as improper as it is?

Tom Hagy (19:57):
I had, let's just say, a relative who asked me once
about bias.
You know, we're all my family'smostly white people, you know
and he said well, you know I'mnot prejudiced, but if I'm
walking down the street and Isee a black guy coming in my
direction and I cross the street, is that prejudice?
I'm like, what is the guy?
Does he look like Barack Obamacarrying a briefcase?

(20:19):
So yes, the question is racist.

Leah Stiegler (20:22):
Yeah, exactly Right.
No, but we all have on it, weall have implicit biases, and I
think you even see it in theform of like microaggressions,
for instance.

Tom Hagy (20:32):
But what is that?
Tell me, what that is.

Leah Stiegler (20:35):
Okay, I will.
I have been told before thatI've defined it improperly
because a microaggression is aform of discrimination.
A lot of people believe andespecially the legal world, that
you know plaintiff's lawyers.
I'll say, because I domanagement side employment work
If it's a microaggression it'sstill discrimination, just as if
you were to make an overtdiscriminatory comment comment.

(21:04):
I would classify it as a subtlecomment that maybe on its face
doesn't seem overtly racist orsexist but comes from that
prejudicial attitudes.
There was a guy that I wastalking to one time and we were
talking about this issue and hewas a Black man and he said you
know, I one time was down inAlabama and I lived there for 20
years, went to school downthere and I had an Alabama Roll

(21:27):
Tides sweatshirt on and somebodyapproached me and said, oh, are
you a football fan?
And he said, yes, I'm afootball fan.
And the guy went on to talkwith him.
I'm a football fan.
And the guy went on to talkwith him and the guy's
assumption was that the friendof mine that I was talking to
never actually went, could nothave gotten into Alabama, that
he just was a football fanbecause he was black and sort of

(21:50):
the connection between oh,because you're black, you must
be a good athlete, right, or youmust like sports, and so he was
explaining that this was amicroaggression and it's hard to
address someone's subtlecomment like that, because it's
hard to educate someone in thatsense.

Tom Hagy (22:08):
Right, yeah, I mean, if you look at the transcript of
that conversation where was theharm you?

Leah Stiegler (22:13):
know, but yeah, it's there.
Yeah, exactly, and so EEOCreally wants to make sure that
employers are addressing thistype of conduct in the workplace
.

Tom Hagy (22:23):
Yeah.

Leah Stiegler (22:23):
And so really training employees, training
managers on how to spot theseissues, on how to be careful
with their wording and checkthemselves, because we all have
implicit biases.
I was walking, I went to thebreak room a couple months ago
and someone had made peachcobbler and I train on these
issues.
Okay, Tom, so this is reallyembarrassing, but I'm being
vulnerable with you.

Tom Hagy (22:42):
Okay, no, no one will hear this, just us.

Leah Stiegler (22:47):
Someone had made this peach cobbler.
It was really good.
And I'm, I'm, I grab a plate ofit and I'm walking back to my
office and I'm like, oh hey,kathy, did you make this peach
cobbler?
No, hey, cindy, did you makethis peach cobbler?
No, michelle, did you make thispeach cobbler?
No, okay, go back, I'm doingsome work.
I go back for I go back forseconds.
I may not look at tom, but Icould eat.
So I go back for seconds, grabanother, another piece of

(23:10):
cobbler, um, and as I'm walkingdown the hall, I'm like, oh hey,
madison, did you make thiscobbler?
Uh, no, no.
And all of a sudden mycolleague, pietro, who is a
34-year-old guy, comes out ofhis office and he's like I'm
Annie Bill Cobbler.
And he was so mad.

(23:32):
He was like you need civilitytraining.

Tom Hagy (23:34):
Honest to God.
Yeah, one of these little womenin the kitchen making the
cobbler, yeah.

Leah Stiegler (23:42):
I never, of course in my brain.
I never would have thought theyoung guy in his 30s would be
baking right.

Tom Hagy (23:48):
Yeah, yeah.

Leah Stiegler (23:49):
But that was an implicit bias.
And what's funny, is he?

Tom Hagy (23:52):
checked me.
We all have that.

Leah Stiegler (23:53):
Yeah, he checked me on it Good.
So, you got to be checked on it.

Tom Hagy (23:56):
But in a friendly way.
You know what I mean.

Leah Stiegler (23:58):
So something's going on good there, because he
felt comfortable checking youknow, yeah, sure, yeah, I'm sure
his statute of limitationshasn't run yet, so you know he
could still sue me.

Tom Hagy (24:07):
But so I could be deposed.
The uh no, it's the same withyou know, it's the same when
you're a doctor, what's, what's,what's his name?
Oh, it's a woman.
Oh right, of course you know it.
We do that a lot.
The same with nurse Absolutely.
That was the crazy thing aboutnurses.
Suddenly, no nurse is a guide.
And then I saw something I haveto.

(24:28):
I should, I should fact checkmyself, but I'm pretty sure male
nurses.
So you think of nurses as beingtypically a woman's profession.
Right, it's not anymore.
And then you would think, well,women were there first, so they
probably get paid more.
No, male nurses make more.

Leah Stiegler (24:46):
Oh, interesting.

Tom Hagy (24:47):
Yeah, now I'm going to fact check that when we hang up
, because I did say that acouple of years ago and I did
look it up and it was true and Ishared it with some of my
cousins who were nurses.
I'm like this is just can youwhat?

Leah Stiegler (24:59):
Yeah, well, you know, in general, you, you know
you hear about, oh, women make70 cents to the, to the man's
dollar, right?
I always say to employers likehere's a, here's a friendly tip,
you know, take off yourapplication what you like.
That box that says you knowwhat pay do you want to make?
Because historically,historically and this is another

(25:23):
area of emerging litigation,we're seeing a lot of cases on
this Historically women andpeople of color have been paid
less than white male for thesame work.
And so if you ask someone whattheir pay was at their last job
or what pay they want to makehere and you base their pay on
what they answer, you go up, youknow $5 an hour, $2 an hour or

(25:43):
something.
You're just carrying forwardhistorical discrimination
because their pay rates likely,or what they're asking for, are
likely less than what theyshould be making or what the
white males would be makingcoming in.
And so we've seen a lot ofcourts that say you know, even
asking that question and relyingon it, that absolutely can

(26:06):
state a claim for gender-baseddiscrimination and race-based
discrimination.

Tom Hagy (26:11):
Yeah, yeah, let's just keep your salary what it's
always been, and it's alwaysbeen too low.
Let's jump to this because youhad mentioned to me that,
increasingly obviously, ai isall the rage.
Oh, yeah.
And it is amazing and it'spowerful and, like anything,

(26:32):
amazing and powerful when it'sused correctly, it's oh my gosh,
the things it can do.
I just can see unlimitedamazing stuff it can do, and
then, obviously, you can alsosee it causing great harm.
What about AI in the workplace?

Leah Stiegler (26:48):
Yeah, absolutely.
I'm only laughing because afriend of mine recently went on
an online date and this is justa funny side note of sort of the
use of AI and how it could godownhill.
But she went on a date and shedidn't like the guy.
So she went on ChatGPT and putin you know, give me an example
of a breakup message, you knowwhere I like somebody and nice

(27:12):
conversation, but I don't see afuture or whatever.
And ChatGPT came up with thisbrilliant thing.
But there's human errorinvolved in the use of ai.
Uh, because she copied andpasted.
She just hit select all andcopied and then hit paste, uh,
and pasted the entire message tothe guy including the

(27:32):
directions to chat

Tom Hagy (27:34):
gbd sure, yeah, so you talk about a broken heart right
.
Yeah, wow.

Leah Stiegler (27:39):
You're broken up with by AI.

Tom Hagy (27:43):
That stings.

Leah Stiegler (27:45):
But the problem with AI and this kind of plays
on that is that there is still,you know, humans have to
implement it in some way, humanshave to program it in some way,
and then humans have to use theproduct from it in some way,
and then humans have to use theproduct from it in some way.
And so another big area oflitigation that we're seeing is
when companies use some sort ofAI software and that software is

(28:09):
programmed in a way, forinstance, that may have a
discriminatory impact on a groupof people.
So a perfect example EEOCbrought a case against a company
called iTutor Group, whichhires online tutors all over the
United States, and they used asoftware screening application
that helped screen applicationscoming in.

(28:30):
And a lot of companies do thisbecause they may get hundreds of
thousands of applications rightor hundreds of applications,
and they just are looking forcertain trigger words, certain
degrees maybe, and the softwaresystem they were using was
automatically screening outapplicants that were 55 and
older.
So it was women 55 and olderand men 60 and older, and 200

(28:52):
applicants that fell in thosecategories were kicked out, and
so EEOC brought a case againstthem, and the company can't then
say, oh hey, it's not us.
Well, this is our software thatwe're using.
This wasn't we didn'tdiscriminate, the software did.
But no, you're responsible.
You have to take accountabilityfor that.

Tom Hagy (29:09):
Right, yeah, yeah, right.
That's your.
It's a tool and you, you andyou, misused it.
You know.

Leah Stiegler (29:17):
Absolutely.
I've also seen it with.
You know, most companiesnowadays are using software like
an ADP system or a Gusto Paysystem, right, and to help them
with payroll and to help themcarry out employee benefits and
compensation.
I've seen cases where thesecompanies, these third-party

(29:39):
companies, will say, oh, youknow, we make it so easy for
employers and they toutthemselves on how easy their
software is.
So they say you know, if youwant to pay someone hourly, just
put that rate in here and itwill pay them.
If you want to give them apremium, you put that rate in
here if they're doing weekendwork and you can give them this
extra little bit of money.

(29:59):
And then, oh, if you want toissue a quarterly bonus, throw
that in this category and thenthe employee will be paid out.
Well, that's easy for the HRperson or the payroll person at
the company.
But the problem is thosesoftware systems are often
created to just simply complywith maybe basic wage and hour
law or federal law.
They're not even looking atstate specific laws and so in a

(30:23):
lot of those software systemsI've noticed are not actually
calculating overtime premiumscorrectly.
So when you're looking at whatsomeone should be paid for
overtime, you don't just paytheir overtime based on the
hourly rate that you assign them, but you also factor in any
premium pay they receive forhazardous work or weekend work,
plus any bonuses they may havereceived non-discretionary

(30:46):
bonuses and these softwaresystems are not implicating that
and so, while the software maymake it more convenient for an
employer, they can also create asignificant amount of liability
.

Tom Hagy (30:57):
Yeah, it's a lot of blaming the robot going on,
which we can't do so I'm goingto ask my question and maybe
it'll serve as a segue too.
Is so women making less money?
It's wrong.
What's that?
It's wrong.

Leah Stiegler (31:13):
It's wrong.

Tom Hagy (31:14):
We shouldn't do that.

Leah Stiegler (31:16):
Correct.
Okay, all right, sorry, thatwas my question, that was your
question.

Tom Hagy (31:19):
Okay, no, my question is do you think that the fact
that women have babies is thatone of the?
Is that true also, it's true.

Leah Stiegler (31:30):
But according to Congress, they only started
having babies as of June of thisyear, because we never had a
federal law that requiredemployers to accommodate a
pregnant woman until June of2024.
And so only recently, tom, dowe see women slaughtering babies

(31:51):
.

Tom Hagy (31:51):
Really Fascinating.
It's funny.
I've seen it happen too and Istill don't believe it.
I think it was all a littlescam.
These are little actors thatthey hired to appear as my
daughters and they were annoying.
But anyhow, wonderful daughters, I have wonderful daughters.
No, my question is is it thefact that women have babies?

(32:14):
Is that one of the biggest,let's say, reasons that women
are paid less, would you saythat's besides, I'm sorry to
interrupt, keep interrupting you, which is a guy thing, by the
way no, no, I actually prefer ifyou would mansplain the whole
pregnancy thing to me.
So keep going I couldn't giveyou more than a paragraph.

(32:34):
To be honest, I thought aboutit one day.
I'm like what's that now?
What's a fallopian?
I mean, I just, I, just Icouldn't give you my go ahead.
I'm sorry I interrupted.

Leah Stiegler (32:45):
Go ahead partnership roles, because and I
personally think I mean it is,you know, not just being
pregnant but then childbirth andthen taking time off.

(33:06):
It is hard to keep up aclientele and my colleagues who
do it I admire the heck out ofthem Incredibly impressive to
continue to build a practice anddo that.
But in any workforce, yeah, Imean, if you're taking time off
to give birth, there'sdefinitely, I mean, I can't tell
you the number of calls I getfrom companies saying, oh, this,

(33:28):
that we just found out this, uh, this, uh employee is pregnant
and we've got to let her go.
We can't deal with that.
We're like, if she has a babyand she's gone, we're not going
to be able to operate, and I'mlike are you First off?
Just so you're aware, tom,pregnancy is a temporary
condition.

Tom Hagy (33:45):
So it was the first I'm hearing.
First I'm hearing this what's,what's, it's over?
I mean after a certain amountof time.

Leah Stiegler (33:50):
Yes, generally nine months.
Sometimes it can be shorter.

Tom Hagy (33:54):
Nine months, that's.
I'm remembering that now, ok.

Leah Stiegler (33:57):
OK, yeah, and you have to remind employers this
because they may have a stellaremployee.
I'll ask an employer, well,what's her performance like?
And first off, there areanti-discrimination rules on
pregnancy.
So the general rule is no, youcannot ask someone during an
interview if they're pregnant.
You cannot fire them becausethey're pregnant or they're
about to give birth, and therules are really protective in

(34:20):
this sense.
You've got to offeraccommodations.
You may even have to offerleave as a reasonable
accommodation when they'repregnant, giving birth, and that
it's such a burden for you tooperate for her to be gone for
three months that what you wantto do is you want to let her go,

(34:45):
even though she's a greatemployee, she's, she's trained
up to do the job.
And then you want to post for ajob and you want to go through
a hiring period and finallybring someone on.
That may take a month, and thenby the time you train them now
you're looking at 60, 90 dayslater and that point she'd be
ready to come back.
And so you're telling me thatthis is such a burden that

(35:05):
you're willing to go throughthat Right.
Not to mention, the statisticsshow that if you, anytime you,
terminate someone to replacetheir position.
The economics of that areyou're going to pay 1.5 times
what you paid that person tobring in the new person and
train them up.

Tom Hagy (35:21):
Yeah, yeah, and I've worked at large companies and
small and really micro companiesand both, and so I've had to
deal with these.
Deal with these things, boy,that's a great verb.
I've had to address theseissues from from both sides or
both sizes of businesses and Imean, I think in some cases what

(35:41):
I found was a good employee isa good employee and you're
looking at them over a careerspan, right, not just, oh, what
am I going to get out of themfor two years?
It's like sometimes, you knowand there's nothing like
building loyalty than alsoaccommodating someone's major
life events Is a small companysupposed to kind of adjust

(36:02):
everything the way they think toaccommodate the fact that a
woman will be away for a certainamount of time and then come
back and then have a child?
Is it?
Is it is what gets the employeeor the problem into trouble?
Is that they?
They look at things as I hireyou and you will be here every
day for the next 10 years andyou know you'll go away and you

(36:25):
won't be distracted by anything.
Is it a mindset change forsmall employers who have
employees who get pregnant andtake leave?

Leah Stiegler (36:34):
I think it definitely could be, because,
you know, I have a lot of smallemployer small employer clients
that do an incredible job atthis and they're really flexible
and they allow work from home.
They allow adjusted schedulesat this.
And they're really flexible andthey allow work from home.
They allow adjusted schedules.
You know the easiest thing youcan do, depending on the nature
of the work, is bring in atemporary worker to fill that
position.
You could reallocate job dutiesand you know the law recognizes

(37:06):
that big companies have a lotmore resources to try to
accommodate a woman's pregnancyand even her leave afterwards.
And so for instance, thePregnant Workers Fairness Act,
which went into effect in Juneof this year, as I mentioned,
requires employers to providereasonable accommodations to
pregnant workers.
And so to kind of gauge in thisback and forth, like, hey, you
say you're pregnant, Well, andthe employee says you know, my
doctor says I can't lift over 20pounds.

(37:27):
Well, can we accommodate that?
Or you know, my doctor says Ican't lift over 20 pounds, well,
can we accommodate that?
Or you know, I've got a.
I need more frequent use of thebathroom, and so can we put her
closer to the bathroom or allowher to work from home at this
point.
So you're doing this back andforth.
And the Pregnant WorkersFairness Act, I believe it
applies to employers with 15 ormore employees, so there's sort
of a threshold, so they'reexcluding small businesses, or

(37:48):
more employees, so there's sortof a threshold, so they're
excluding small businesses.
That said, many states havestepped in to fill that gap, and
so in Virginia, for instance,even small employers with one or
more employee are looking atengaging in those reasonable
accommodation discussions.
And you would be doing it thesame way.
You would be engaging in aninteractive process if someone
came to you and said hey, I havea chronic hip problem and I

(38:10):
need a hip replacement.

Tom Hagy (38:11):
Right.

Leah Stiegler (38:11):
Do you just terminate them right there?
Right, some sort of disability?
No, of course you don't WrongWrong again, tom.

Tom Hagy (38:21):
This is how I'm going to do the next podcast with you.
I'm going to make a bunch ofassumptions and then you're
going to correct me.
So okay, you can, I'm going tomake a bunch of assumptions and
then you're going to correct me.
So OK, you can't fire thosepeople.

Leah Stiegler (38:35):
Right, I'm writing all this down.
Go ahead.
Yeah, absolutely.
The other law that came intoplay is the PUMP Act, and this
was passed in December of 2023.
And this is a federal law.
It's Congress coming up with afun acronym the PUMP Act and it
applies to, uh you know, up to ayear, let's say, and state laws

(39:11):
also kind of fall in line aswell.
And an employer is obligatedunder the Pump Act to give a
woman who is expressing milk areasonable break time to express
milk, and it has to be in aprivate place free of intrusion,
so it may not have to have alock on it, but it's got to have
some sort of sign, and itcannot be a bathroom, it cannot

(39:35):
be a car, and so you see acouple of different issues with
this.
Well, one is and I'm going tothrow this at you, tom what is a
reasonable time to express milk?

Tom Hagy (39:45):
30 minutes.

Leah Stiegler (39:47):
That could very well be reasonable.
There's no.

Tom Hagy (39:51):
Oh, you weren't looking for an actual number, no
I actually, you know what I waslooking for a number.
As long as it takes.

Leah Stiegler (39:57):
As long as that's the right answer.
And so obviously, you know,employers have a right to
address abuse of this problem ifsomeone is, you know, in the
lactation room for four or fivehours.

Tom Hagy (40:07):
Well, hopefully, use of this problem if someone is,
you know, in the lactation roomand they're smoking hours and
yet smoke.

Leah Stiegler (40:09):
Well, hopefully, not smoking, but watching
Netflix.
I've seen.

Tom Hagy (40:13):
Oh, dear, god.

Leah Stiegler (40:14):
But the law does not create a bright line rule
for what is reasonable.
Rather, the law says becausewoman A may need 20 minutes,
woman B may need some time torelax, to actually start
accumulating milk and it'sprobably the wrong term but and
then to express milk or to pump.
And so you are seeing adifferent and I will say, I've

(40:37):
seen a lot of situations wheremanagers struggle with this
because another co-workersstruggle.
They say, oh well, you know whydoes Leah get to take all these
breaks throughout the day?

Tom Hagy (40:47):
You know, and oh, come on, Denise, just focus on your
work.

Leah Stiegler (40:52):
You know, I love, how you said, denise, because
it's not just men, it's womentoo that are, oh yeah.
Yeah, it's that Most guys havelearned to shut up about that,
right, most guys, let's hope ohyeah, but so you see that where
there's not really a bright linerule and I think employers
often struggle with OK, well,how long do we really have to

(41:16):
give this person?
And, you know, can we ask themto stay later?
And things like that that comeup of litigation in terms of
class actions against retailoutfits, fast food franchises,
when these types of entitiesdon't have a lactation room or a

(41:37):
room free of intrusion, that'sa space where a woman can't
express milk or can't pump.
And so do you think aboutfranchises like McDonald's and
Wendy's.
There's two huge class actionsgoing on right now against both
of these fast food restaurantsbecause they don't provide, or
the allegations are that theydon't provide spaces, and the

(41:58):
named plaintiffs have saidthings like oh, I was required
to pump in my car because youknow the only other option was
the manager's office, my carbecause you know the only other
option was the manager's officeand the manager was in there.
Or the office had a camerafacing internally so that you
know people didn't engage intheft at the manager's office of
cash and stuff like that and Ididn't feel comfortable, you

(42:20):
know, pumping in front of that,obviously.
Or, oh, I had to pump in afreezer room, because, or a
bathroom, and so, and I thinkone of the problems with this is
, you know, maybe a lot of thesefranchise outfits or
restaurants or retail outfits,and have many, many locations.
They have some sort ofarchitectural floor plan or

(42:41):
design that's been in play formany years and it doesn't
include an extra room for this.
And so they're kind of in thisposition of like, well, what do
we do?

Tom Hagy (42:52):
yeah, some of this just requires will and a mindset
change, because some of it'sjust not it's not necessarily
expensive, it's just like whenwe build buildings, let's
include this.
I mean it's not going to costmore, more to have one part of
it is going to be private.

Leah Stiegler (43:09):
My take and I don't represent any of the
parties in that, in either ofthose class action lawsuits.
But I'm going to solve theirproblem right now and they could
settle this case by agreeing toput those little, those little
you know, those- freestandingcubes freestanding things that
you see in the airport, you knowor at baseball games.

Tom Hagy (43:30):
Some companies buy hundreds of them and they make
them offices.

Leah Stiegler (43:33):
Yeah, yeah, Just put them out there.
Actually, you know where allthe tables are, because you may
even have patrons that need touse it.

Tom Hagy (43:41):
Yeah, yeah, there you go.
Yeah, they could be nice.
They don't have to look like aport-a-john.
But no, some of them are reallynice.
I've wanted to get into onefrequently, just take it in
there and scream I'd like to beaccommodated in that regard or
cry To cry are simple.

(44:04):
Yeah, um, it's like the whole,the whole bathroom thing about,
um, transgender folks andbathrooms, and it's always
baffled me.
It's just like, first of all,uh, the whole sharing of
bathrooms is, uh, I think weshould just stop doing that.
That should be banned right sojust have your own, have private

(44:24):
bathrooms for everybody right,right, yeah, this is my world.

Leah Stiegler (44:30):
I was up at a comedy show up in DC and they
had only gender neutralbathrooms.
But it was the same layout aswhen you go into a women's or a
men's restroom and there's allthe different stalls, and so at
first I was like, whoa, this isweird.
I'm in line with a bunch ofguys you know and we're, but we
all had our own private stall, Imean.
So what's the big deal?

Tom Hagy (44:49):
Yes, exactly.
Yeah, I've been in those too,not at comedy clubs, but
comedians are definitely moresensitive people.
But the but, no, that's right,and it's like a such a simple
solutions Like why I mean, firstof all, their women's restrooms
obviously are poorly engineered, because there's always 25
women in line, sure, and guysare sailing in and out, you know
.
So what's wrong with that?

(45:10):
Absolutely, I know.

Leah Stiegler (45:11):
That is always.
I appreciate you saying that.
So if anything we've said sofar in today's episode has
ultimately canceled us, thatshould save us.
I will say not every solutionis so simple.
I did have a case or asituation for a client where
they ran a bus system for alocality and they had a bus

(45:34):
driver who was expressing milkor she was breastfeeding.
She wanted to do it for a yearafter giving birth, While she
was driving.
Well, she actually was wearinga wearable pump, which?
they have those which on thepump devices they say you know
you shouldn't use while driving.
But there are these hands-freepumps and the client didn't know

(45:54):
, the company did not know thatshe was doing this, but she came
back to work and she didn't,she won't I mean, you know, a
lot of times if you, just if shewere to ask have asked for a
continued leave, the company maynot or would not have had to
pay her.
And so you know, some peoplethey need to work, right, like
we all need to work, I need towork.

(46:14):
And so she wanted to come back,she wanted to work, and she
didn't necessarily know herrights because the employer had
not, you know, advertised it.
Or maybe it was like a smalllittle provision in the handbook
, it?
Or maybe it was like a smalllittle provision in the handbook
and a customer complained tothe company and said you know, I
don't feel safe when this busdriver is picking me up.

(46:34):
She's wearing an automatic, youknow, hands-free pumping device
while driving, and isn't thatsome sort of safety concern?
And the company was like whatare you talking about?
So they look into it, kind ofinvestigate it, and sure enough,
she's doing it.
And so then the question is well, okay, how do we just
accommodate someone who's on aspecific bus route around the
city?
Right, like, do we?

(46:55):
How can we?
Just?
We can't just like pull the busover and have her go into a
building and stop the route.
Um, we can't adjust this entireschedule.
I mean, that would be acompletely, a complete undue and
so.
But the employer still is underan obligation to come up with
accommodations to allow a womanto express milk.
So lactation basedaccommodations.

(47:17):
And so in this case we wereable to move her to the dispatch
a dispatcher positiontemporarily for the tenure of
her lactation period.

Tom Hagy (47:27):
Yeah, yeah, and I do think there is a difference, as
you said, you know, with largercompanies that have resources
and those who don't.
I mean, I got this is top ofmind for me because I made some
statement on my social media tofriends that if you can't pay
your employees $25 an hour,maybe you have a terrible
business model, you know.

(47:48):
And I said 25, you know,because that's so much higher
than what the minimum is.
It's like what's wrong withyour business model that you
can't pay that.
And I and I and the guy cameback with oh what about the
local fruit stand?
What about my local this?
And I go okay, all right, allright, fine, but get creative,
man.
Okay, sure, there could beexceptions and I think you were

(48:09):
mentioning that too, like undera certain level, right?
Yep, it just seemed like thereare just ways to get there
because of the disparity between, say, a CEO and the frontline
workers.
It's like look, I'm not acommunist, I'm a capitalist.
I believe in it, but at somepoint, aren't we being hogs?

Leah Stiegler (48:33):
You see on the news all the time huge
reductions in force for thesebig tech companies, or whatever
company it may be, and the CEOsare making a couple million
dollars in there.
And the marketing pitch thatwe're all supposed to accept is,
you know well, because ofhigher wages, we just can't
sustain our workforce you know,because we have to get offer

(48:54):
health care now under theAffordable Care Act.
We just can't sustain theseworkforce, so we have to let all
these people go and it's totalfear mongering, right,
especially when you've got a CEOmaking millions.
Right and I guess the counterto that is is if we want a
strong CEO all the CEOs aregetting that.

Tom Hagy (49:16):
We have to pay it.
You know, I guess that's theargument.
So it's just like it.
Just it feeds itself.
But there are certainly ways toaccommodate.
You can give people what?
Maybe more flexibility, givethem other benefits.
I mean people that we, thatI've employed before they valued
as much having Fridays off inthe summer as they did a pay
raise, because around here youalready went to the shore.
So, hey, you get to go to theshore a day early and guess what

(49:37):
?
They're editors and they'rewriting.
Did they slack off?
No, because they had so much toproduce every week and they
produced it.

Leah Stiegler (49:44):
Yeah, and maybe their creative juices are
flowing even better when they'reover at the shore.

Tom Hagy (49:48):
I'm going, I'm really straying here, but I'm kind of
interested in everything you'retelling me.
But you know, and I wasthinking also, as for a small
company, I don't know why I'm,because I am a small company but
the, and if my wife is pregnant, we got big problems.
But we're also, we're also waytoo old, but the, she, but she
looks very young.
Did I say that?

Leah Stiegler (50:12):
Yeah, no, yep, you've clarified, Yep.

Tom Hagy (50:16):
She's also now the majority owner of this business,
so she could fire me.
Um, I was thinking about a smallbusiness and this is I'll just
say it cause I'm sure it's it'llget you into trouble.
But you know, if you're a smallbusiness and you're hiring
people of all ages, includingpeople of an age where they
might have children or they justgot married and you know they
might, I mean, you wonder, Iwonder sometimes if is there a

(50:37):
way to be upfront with everybody.
So, okay, there's only 10 of ushere and somebody might have a
child.
I'm not saying you, you, janice, no, this is what's going to
happen, you know.
So the person themselves knowhere's what we, here's what
we'll be able to do toaccommodate this, because we're
small, some work from home, fromsome time off.

(51:00):
This also means the otheremployees will have to absorb
some of that work, which is whatwe did typically.
You know, we had an editor whohad a deadline.
Well, we had.
We had 10 editors, or at thetime we got bigger, we had 15,
20 editors and they would pitchin.

Leah Stiegler (51:17):
So what do you think about saying that stuff up
front?
Well, you, actually, in somestates you have to say it up
front in your policies.
You have to say you know,should an employee you know get
pregnant, here are some proposedreasonable accommodations we
will consider and you can, inmany states they require you to
list those out, right, whetherit's more flexible time, break

(51:39):
time, whatnot, I would probablyadvise against a company, just,
you know, overtly saying that,especially because of hiring a
younger female, for instance,right, or whatnot?
Because you also have, you know, you, as an employer, you don't
want to leave the impression toemployees that you're thinking
about this as being a problemfor you, right?

(52:01):
Because then if somethingnegative happens to that
employee let's say youultimately lose some sort of
grant, funding or whatnot youhave to terminate that person.
She was the most recent employeehired.
You know that that sort ofannouncement to the workforce is
going to be used against theemployer, as, as you know you,
you're saying this is a fundingissue.
But that's really pretext,that's really just masking an

(52:22):
unlawful discriminatory motive.
That you know where.
Pregnancy the fact that shecould become pregnant, is the
unlawful motive.

Tom Hagy (52:29):
Yeah, I gotcha All right, so I won't do that.
Where else did we want to go?
I think we've covered a lot ofground here.
We did have a couple otherthings we've left off.
Did I make up love contracts ordid I read that in something
you wrote?

Leah Stiegler (52:53):
Yeah, no, you love.
Contracts are a thing.

Tom Hagy (52:57):
What are they so?
Love contracts, these are notmarriage contracts, just so
you're aware.

Leah Stiegler (53:02):
What are they?
Property agreements, more somesense, right?
Yeah, Love contracts it's kindof a fun term that we employment
lawyers came up with and reallywhat it is is you know,
employees are going to fall inlove at work.
Okay, that's just the way ithappens.
People may be at work more thanyou know, 40 hours a week In
fact.
My mom and dad worked togetherat a federal agency, right, so

(53:25):
they worked together.
They got buried all that theywere in the CIA?
Yeah, we like to think so, butyou know obviously we'd have to,
you know.

Tom Hagy (53:34):
They wouldn't tell you .

Leah Stiegler (53:35):
Yeah, no, yeah.

Tom Hagy (53:37):
Yeah, I know those people.
They told me all kinds of lies.
We just did contract work.
I'm like, okay, sure, yeah,yeah, I'm sorry, go ahead

(54:09):
no-transcript.

Leah Stiegler (54:15):
oftentimes, while people may fall in love and
work and things that are love atwork, and that's you know,
things are fine and dandy theymay also break up at work.
Ok, so the divorce rate ispretty high.
The breakup rate is even higherthan that.
And so you've got employees who, let's say, they start dating
and they break up and they maybe coworkers, and then one

(54:37):
employee keeps pursuing theother one because they want to
get her back, or she wants toget back with him, or they start
treating her like crap, or viceversa.
Right him, or they starttreating her like crap, or vice
versa, right or even worse,you've got a situation where
you've got a supervisor engagedin a relationship with a
subordinate and they break up,and then one especially if the

(54:58):
supervisor were to continue topursue the subordinate then you
have a potential issue of quidpro quo harassment.
So oftentimes in harassmentcases, what I've seen are
sometimes at one point oranother you may have had a
consensual relationship thatgoes wrong, or a consensual
relationship that ends, and thenone person keeps pursuing the
other, or they start fightingwith each other at work,

(55:21):
undermining each other at work,basically engaging in harassment
of some sort.
And so what I always tellclients is that when you've got
two employees that you're awareof that are dating of some sort,
and so what I always tellclients is that when you've got
two employees that you're awareof that are dating of some sort
or in some sort of romanticsituationship, have them execute
what we call a love contract,and this is basically a
disclaimer that says you know tothe employee, says you know, I

(55:44):
agree that I'm in a relationship, or whatever you want to define
it, or a romantic, closefriendship or relationship with
this other employee.
It is totally consensual, it isnot harassment, and I'm aware
of our harassment policies, andso you have them.
You have the harassment policyput in place there and you have

(56:05):
you know any other policies.
You want them to be aware ofanti-fraternization policies and
you know conflicts of interestpolicies that you may have to
address if they're dating in theworkplace, and so you have them
sign off on this disclaimer orlove contract and also a
statement that they will informyou if they break up.
And this is totally legal.
And this is totally legal.

(56:26):
And the benefit to that is, ifharassing conduct does in fact
occur, or if it in fact was notconsensual in some way, and that
and one employee sues thecompany for having been the
victim of sexual harassment inthe workplace, the employer can
oftentimes use that type ofdocument as a major defense to

(56:49):
say, well, first off, you knowyou signed this document on
March 1st 2024.
And so anything that you may becomplaining about before March
1st is going to be deemedconsensual because at that time
you had a full opportunity todisclose it, and so you can't
now use what happened then inyour allegations to make us look

(57:10):
bad, like all this sexual stuffwas happening in the workplace
or these inappropriate commentsand text messages were happening
in the workplace.
So you can kind of use it toexclude that type of those type
of comments as being usedagainst the company later and
then also to undermine andimpeach the witness.
If you got the employee saying,oh I want, it was not

(57:32):
consensual, I didn't feel safereporting it because my harasser
was a supervisor.
I didn't want to go to the CEOthen or whatnot.
Well, no, you in March you signthis disclaimer saying you know
how to report it.
You would report it.
You have these differentreporting avenues and so it's a.
It's a great device or a greattool to use yeah, interesting

(57:54):
okay I have seen situationswhere it puts employees on the
spot, where, you know, I've hada client who's like, yeah, I sat
them down separately, thankgoodness, because, know, he said
they were in a relationship andshe said, no, she was like,
well, at least let him sign ityou know, and put it in his file

(58:16):
.
You know, we never even toldher about it, but she was not
going to agree that she wasdating this guy.

Tom Hagy (58:24):
You have to have two on that contract.
The Department of Labor it'sgot a new overtime rule on
raising the salary threshold.

Leah Stiegler (58:32):
All right, well, I'll start with this.
You can't just pay an employeea salary to avoid paying them
overtime and when I say overtime, I mean time and a half for all
hours worked over 40 hours in awork week.
Too often there's amisconception that if I pay
someone hourly, then I have topay them overtime, but I can pay
them a salary and then I don'thave to pay them overtime.

(58:54):
That's not what the law says,but that is a common
misconception that I frequentlysee.

Tom Hagy (59:00):
That's what I always thought.

Leah Stiegler (59:02):
Yeah, no, it's very common misconception.
So the Federal Fair LaborStandards Act very common
misconception.
So the Federal Fair LaborStandards Act one of the oldest
acts on the book that kind ofsets the standard for minimum
wage and overtime regulationsand child labor laws and even
some break time issues.
Well, the FLSA basically sayslook, if you want to avoid

(59:26):
paying overtime, you've got tomeet a three-factor test.
The first part of that test isthey have to meet a particular
salary threshold.
You got to pay them at leastthis much.
The second part of the test isyou've got to pay them on a
salary basis, meaning the sameamount every single week.
So there's very limitedopportunities where you can take
a deduction.

(59:46):
So if I'm a salaried worker andI take two hours off on a
Thursday and I don't have anyPTO left, my employer actually
can't deduct those two hoursfrom my pay.
They could force me to use PTOor advance that PTO, but you're
supposed to basically give theemployee the flexibility.
So the benefit of a salarypaying someone a salary is you

(01:00:10):
know whether you work 32 hoursthis week or 48 hours this week,
you're going to just get whatwould be.
You know your same pay everyweek.
And the third test is they haveto actually meet a particular
duties test.
So they have to either beengaged in executive functions

(01:00:41):
so think of sort of yourmanagers supervising two or more
employees have the ability tohire fire and administrative
functions which does not meansort of secretarial of the
company that are making thegears turn, recruiting in a way
and then professional levelemployees, and these are sort of
something like your lawyers,your doctors, your RNs, social

(01:01:03):
workers, so maybe there's aspecialized degree of learning,
that they've obtained some sortof degree or certification in
order to carry out this duty.
And then there are a few othersort of duties-based tests, but
those are the most common.
And so you have to meet thatthree-factor test if you want to
avoid paying overtime.
And the Department of Laborjust issued a new rule this year

(01:01:26):
that said, for that salarythreshold it was at $36,000.
And as of July 1 of this year,the new rule bumped it up to
$43,000.
So you have to at least pay$43,000 a year, and then,
starting January 1, 2025, it'sslated to rise to $58,000 a year

(01:01:47):
.
And so a lot of our clients aresaying, oh my gosh, we got four
months left.
We're already in September.
How are we going to?
You know, I've got to bump themup to fifty eight thousand,
right?
Well, yes, you either have todo that or you have to convert

(01:02:11):
them to non-exempt, meaningthey're not exempt from overtime
and you've got to startconsidering, you've got to start
paying them overtime.

Tom Hagy (01:02:19):
Wow, Four months left.
So we're going to work themlike dogs until OK.
Well, that's interesting.
I did not.
I've been most, I've been.
A lot of employers don't knowthat.

Leah Stiegler (01:02:28):
No, tons of employers don't.
That's why I have a lot of jobsecurity.

Tom Hagy (01:02:32):
Good for you.
Good for you Are you salary no?

Leah Stiegler (01:02:36):
Well, unfortunately, as a lawyer, you
know, I may have weeks where I'mworking like 80 hours a week,
and if only I got overtime, mygoodness I wish sometimes I wish
I'm like I want overtime.

Tom Hagy (01:02:46):
You're going to get no sympathy for me as a small
business owner.

Leah Stiegler (01:02:50):
Just um, yeah, you're probably working 80 on
the regular.

Tom Hagy (01:02:54):
Yeah, easily.

Leah Stiegler (01:02:56):
There are some legal actions right now that are
some cases out there that tryto create, get an injunction um
back.
I believe it was in 2016,during the Obama administration.
The Department of Laborincreased the salary threshold,
tried to increase the salarythreshold then, and then, a day
before it was supposed to gointo effect, a court issued an

(01:03:17):
injunction saying, hey, theDepartment of Labor expanded
their authority or exceededtheir authority and tried to
develop this rule, because I betthe DOL learned from that court
case and what they had to do.
So far, the courts haven'tissued any injunction on this,
so it's very likely it may gointo effect.
And the other thing Departmentof Labor has done this year

(01:03:39):
because they've been superactive is issued a new rule on
independent contractors, and sothat's another thing that
probably and you may see this inthe small business world as
well You've got um.
There's a new six factor testthat employers have to abide by
to pay to make someone acontractor instead of an
employee.

Tom Hagy (01:03:58):
It used to be 11, didn't it?
Well, the IRS, I think, oh, theIRS, you're right.

Leah Stiegler (01:04:05):
Yeah, but.
But that's a really good point,because you have different
tests from different agencieswhich is kind of odd right.
And even states that have newrules, like some states have a
rule that says someone isautomatically presumed an
employee and you better bepaying them a W-2 unless you
meet these factor tests to proveotherwise.

Tom Hagy (01:04:27):
Okay, all right.
Yeah, because I use freelancersand I use a service called
Upwork and I find great peopleon there.
Yeah, I mean as somewherearound the world, some I
absolutely have to haveAmericans or native born
Americans because I need them towrite in American English and,
in some cases, be familiar withAmerican court systems.
But other things, I mean I'vehad great people from well.

(01:04:49):
I had one lawyer who decided tobecome a writer.
She decided she didn't want todo any trust law anymore, so she
moved from San Francisco toSouth Africa to run safaris and
surf.

Leah Stiegler (01:05:01):
Wow.

Tom Hagy (01:05:01):
Yeah, and so she was a writer on the side and her cost
of living, I guess she workedthat out.
And so she was a writer on theside and her cost of living, I
guess she worked that out.
And so she was just writingfrom anywhere Once in a while.
I'd say, where are you today?
And then she'd be, her and herboyfriend would be in Indonesia,
places where I didn't know theywere, you know, and she'd say
the name of an island and I'dhave to look it up and like so
yeah, I found great people, yeah, and that's the benefit of.

Leah Stiegler (01:05:25):
You know a lot of people want to be a 1099
contractor, and that's.
I've seen so many smallbusinesses too that they don't,
especially startups.
They may not have a substantialamount of funding to pay
someone some sort of stablesalary, and so they're paying
someone on a contract basis toget the job done.
So it's almost like trying tofit a square peg in a round hole

(01:05:46):
.
You've got the laws saying hey,it's really hard to make
someone a contractor because thelaw says we want to make sure
you're paying your employerpayroll taxes, we want to make
sure you're paying into SocialSecurity with that.
We want to make sure that thisperson is entitled to the same
employee benefits that you wouldprovide employees, such as
healthcare, 401k, and so youknow it's hard and I represent a

(01:06:10):
lot of gig economy workers aswell, and you know they
oftentimes these companies willsay because we don't have
frequent work and they, you knowthe work may come and go, it's
hard to keep someone.
And so the turnover is so highfor employees and a lot of
people want to be contractors.
They want to be able to, youknow, clock into a ride share

(01:06:31):
company after work if they feellike it and not do it if they
don't feel like it, which anemployee wouldn't have that
flexibility?

Tom Hagy (01:06:37):
Right, yeah, it does.
It does give them flexibilityin it, and I feel like, again,
you talk about startups andsmall businesses.
I mean there has to be someleeway somehow that they can get
started or they can grow to acertain size.
It sounds like some of the lawsdo accommodate that.

(01:06:57):
You know when you limit it andsay this is going to apply to
companies with 15 or moreemployees, that kind of thing.
So that's good.
Well, look, we've covered a lotof ground here.

Leah Stiegler (01:07:11):
And.

Tom Hagy (01:07:11):
I was listening to every word you were saying, but
I do want to know, over your, Ithink it's your right shoulder.
If you're, what is thatpainting, the one on the bottom
left?
No, okay, your left shoulderthen?

Leah Stiegler (01:07:24):
The one with the boat.

Tom Hagy (01:07:25):
The other way.

Leah Stiegler (01:07:27):
The shark Is that a shark?

Tom Hagy (01:07:29):
Yes, I couldn't tell it was a frog wearing headphones
.
I couldn't tell what it was.

Leah Stiegler (01:07:32):
Oh, it's a shark that says hangry, because I get
very, very hangry.

Tom Hagy (01:07:37):
Oh, okay, oh, it's a shark.
I see it now.
Yeah, yep.
From here it looks like a frogwearing headphones, yelling yeah
, okay, I see.

Leah Stiegler (01:07:49):
And that's the one over here, this boat.
You probably can't see it asmuch, but it's a boat with a
mermaid.
I did a federal clerkship inNorfolk Virginia and they have a
big battleship there called theUSS Wisconsin battleship there

(01:08:09):
called the USS Wisconsin andthere was a homeless woman that
sat outside the courthouse andso I'd walk to from my apartment
to the courthouse every day andjust say hi, and she got into
painting and watercolors and soI said you know, hey, I'm, you
know I'm moving soon.
Do you think you could?
Can I commission one for aboutthe USS Wisconsin?
I want a battleship photo tokind of remember my time here,

(01:08:32):
Well, she was very creative andshe put a mermaid with, like an
evil tail, drinking a bottle ofwhiskey in front of the
battleship that says the USSWhiskey, and she made the ocean
like an eerie purple.

Tom Hagy (01:08:50):
Yeah, I see that, yeah , yeah, oh, that's great.

Leah Stiegler (01:08:52):
I loved it.
I was like this is incredible.

Tom Hagy (01:08:56):
She had fun with it.
That's great, that's cool.

Leah Stiegler (01:08:58):
Yeah.

Tom Hagy (01:09:00):
I know those battleships only because I used
to build them as models as a kid.
I used to build like the USA.
I don't know if I built thatone, but they were similar the
Iowa, the Ohio, I mean.
I knew every little thing aboutthem and then I'd set them on
fire.
There wasn't anything wrongwith me.
There wasn't anything wrongwith me.

Leah Stiegler (01:09:18):
Just some red flags.

Tom Hagy (01:09:23):
We didn't have television.
Okay, great Well, leah, thankyou very much for all of this.
I really appreciate your takingso much time.
It was fun to talk to you too.

Leah Stiegler (01:09:34):
Yeah, you as well , Tom.

Tom Hagy (01:09:37):
That concludes this episode of the Emerging
Litigation Podcast, aco-production of HB Litigation,
critical Legal Content, vlexFast Case and our friends at Law
Street Media.
I'm Tom Hagee, your host, whichwould explain why I'm talking.
Please feel free to reach outto me if you have ideas for a
future episode and don'thesitate to share this with

(01:09:59):
clients, colleagues, friends,animals you may have left at
home, teenagers you'veirresponsibly left unsupervised,
and certain classifications offruits and vegetables.
And if you feel so moved,please give us a rating.
Those always help.
Thank you for listening.
Oh yeah, so I had to look upOrder of the Coif.

(01:10:21):
You know I couldn't let it goanymore.
It's been so many years and soI've always wondered.
Not exactly a hairstyle, butit's close.
The symbolism of the coifevolved from the legal
traditions of the Middle Ages inEngland, so everything was
great in England back then, thecoif itself originated as a this

(01:10:42):
is all from Wikipedia, by theway, give them credit itself
originated as a tight-fittingheadpiece, once used by both men
and women.
A version of this, in the formof a close-fitting hood that
covered all but the face, wasadopted as a symbol for those
barristers who had beenrecognized as sergeants at law,

(01:11:05):
and thus formed a narrow pool oflegal practitioners who could
be appointed judges.
Blah, blah, blah, anyway.
So there you have it.
White wigs were so often sewninto the coif that their usage
became conjoined, conjoinedcoifs.
So there, you knew you wantedto know that.
So there you knew.
You wanted to know that in themiddle ages uh, just so,

(01:11:28):
everybody knows it's 13th, 14thor 15th century, depending on a
lot of things.
So I knew you wanted to knowthat too.
Dan, stay tuned for our readingof the canterbury tales.