February 27, 2025 • 35 mins
In episode 189, Coffey talks with Charles Krugel about a Day Without Immigrants-related firing, unions, the future of DEI, and the ongoing changes coming from the Trump administration.
They discuss a "Day Without Immigrants" protest that led to employee terminations at a Texas burger company; Amazon's North Carolina facility voting against unionization; President Trump's firing of NLRB and EEOC officials and the resulting impact on employment regulations; the rescinding of various NLRB labor-friendly memos including those on non-compete agreements and confidentiality clauses; the legal complexities of DEI initiatives in the current political climate; geographic variations in labor laws across states and cities.
Links to stuff they talked about are on our website at https://goodmorninghr.com/EP189 and include the following topics:
Amazon North Carolina Workers Reject Union, Handing Retailer Win in Labor Fight
Trump Paralyzes US Labor Board by Firing Democratic Member
Trump hobbles US anti-discrimination agency by firing Democrats | Reuters
Explainer: Trump says corporate diversity efforts are illegal - but are they?
Good Morning, HR is brought to you by Imperative—Bulletproof Background Checks. For more information about our commitment to quality and excellent customer service, visit us at https://imperativeinfo.com.
If you are an HRCI or SHRM-certified professional, this episode of Good Morning, HR has been pre-approved for half a recertification credit. To obtain the recertification information for this episode, visit https://goodmorninghr.com.
About our Guest:
For the past 24 years Charles Krugel, charlesakrugel.com, has run his own management side labor & employment law practice based in Chicago.
His clients are worldwide & in all industries. 1/3 of his practice is HR counseling on day-to-day micro issues; another 1/3 of his practice is transactionally based (e.g., employment agreements); & the final 1/3 of his practice is litigation in both state & federal courts & before regulatory agencies. Charles represents union as well as non-unionized companies.
Charles Krugel can be reached at
https://www.linkedin.com/in/charlesakrugel/
https://www.linkedin.com/groups/1798953/
https://www.charlesakrugel.com/
About Mike Coffey:
Mike Coffey is an entrepreneur, licensed p
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Charles Krugel (00:00):
Work very closely with your either your
attorneys or your HR peoplebecause, in all honesty, I mean,
it's gonna be a a day by daysort of analysis in terms of
what we can or can't do and astate by state or even like a
county by county or city by cityanalysis too because a lot of
cities like San Francisco,Chicago, New York have their own
(00:21):
indigenous, labor and employmentlaws or or rules. So you gotta
work closely with them becauseit's right now, it's a very
labyrinthian enforcement systemand there's too there's so many
unknowns, especially on a day today basis.
Mike Coffey (00:39):
Good morning, HR. I'm Mike Coffey, president of
Imperative, bulletproofbackground checks with fast and
friendly service. And this isthe podcast where I talk to
business leaders about bringingpeople together to create value
for shareholders, customers, andthe community. It's the last
Thursday in February, and thenew Trump administration
continues to give us things totalk about. Joining me for this
(01:00):
month's HR news roundup isCharles Krugel.
Charles is a management sidelabor and employment law
attorney in Chicago. He's also afaculty member at Loyola
University's Quinlan School ofBusiness where he teaches
employee relations. Welcome toGood Morning HR, Charles.
Charles Krugel (01:15):
Thanks, Mike. Great to be here.
Mike Coffey (01:17):
So it's been a month, and we'll jump into the
stuff that's been going on mostrecently with the Trump
administration. But we had backon, I think, February 3, the day
without an immigrant protest.And we've had a few of those
before, I think, and they'venever really gotten much news
other than the planning of them.But, this month down here in
(01:38):
Texas in Dripping Springs, thereis a local hamburger company
called Hat Creek Burger Company,and they had eight employees who
said, hey. We wanna you know,we're not gonna be here on the
day of work, or they told anassistant manager that they
weren't gonna be available forwork that day because they were
gonna honor the day without animmigrant where, you know,
(02:00):
people say, here's what lifewould be like if we didn't have
immigration and they don't cometo work.
And everybody every year hopesit's gonna grind the economy to
a halt and really just groundone little burger place, as far
as we can tell, to a halt. Butthe management said, you know,
said give us a list or, and theygot a list of them. And then
management, I guess, realized,oh, that's our whole staff for
the day. And so, eight peopledidn't show up. And, they
(02:25):
management the night before senttext to everybody, you know,
asking them to show up and evenoffering on financial incentives
and little bonuses, and we'llhave a party or do something,
but show up for work.
White people didn't, andmanagement fired them. And,
fired the assistant manager whodid show up, but, management
felt like he was part of theissue with the employees not
(02:46):
coming. So so far as I can tell,Hat Creek Burger hasn't replied
to any of the press inquiries.So all everything we're hearing
is from employees who got fired,so we have to take that with a
certain grain of salt. Butwhat's your take on the national
you know, day without animmigrant, that idea, if how how
would you handle that as anemployer if your employees
(03:08):
wanted to or how would youcounsel your clients if your
employees wanted to do that?
Charles Krugel (03:13):
Well alright. So you're in Texas, and Texas is
not exactly a, union friendly orlabor friendly state unlike it
where I'm in Illinois, which isvery union and labor friendly. I
would say that maybe under theunder Biden, it would have been
a greater than 50% chance thatthis would have been found that
(03:33):
the firings would have beenfound to be a legal, a violation
of concerted, associated, youknow, activity under the
National Labor Relations Act.But under the current with with
Trump in office and what he'sdone recently with the NLRB,
which he's basically gutted theNLRB, there's a good chance that
or right now, I'd say fiftyfifty chance that the company
(03:54):
won't be found liable forviolation of the NORA. It's
possible they could be found, inviolation of title seven of the
equal, of the Equal EmploymentOpportunity Act, basically,
which, would I I think theywould do, like, what's called a
disparate impact analysis tofigure out, well, did they fire
largely or only Hispanicemployees?
(04:16):
And if they did, that that thatcould possibly raise
discrimination against people ofHispanic origin. The fact that
they fired the assistant managerprobably looks good because it
shows that they didn't treatmanagement differently than rank
and file employees. But I wouldsay that there's a decent at
least a fifty fifty chance thatthey'll be found vile in
violation of the NLRA andlikewise, you know, 50% chance
(04:39):
that they won't be. And thenwe'll know I'd be higher.
Mike Coffey (04:42):
It'd be higher than ANFRA. Yeah. The the yeah.
Definitely. And we're gonna talkabout what Trump's changes at
NLRB, but Jennifer Abruzzo asgeneral counsel would have
definitely loved this case.
I don't think William Cohen'sgonna, even sniff at it. But
talk about a violation of titleseven of the Civil Rights Act.
How would the fact thatemployees didn't show up for
(05:04):
work? I mean, how is that howwould that be a violation of
title seven when you're just youknow, you're an employee.
Employees don't all seven youknow, eight employees don't get
to choose to take off a daywhenever they want to and just
walk out and close down therestaurant.
How what might the the argumentlook like for a civil, civil
rights case on that?
Charles Krugel (05:25):
It'd be disparate impact or disparate
treatment, basically, that theytreated one class of people
based on, you know, Hispanicethnicity differently than not
than, minor I'm sorry, majoritywhite people. So that I think
that would be the argument. TheEEOC is pretty liberal in all 50
states for the most part. So, Imean, even though it's a federal
(05:46):
agency, each state or everythere's different, regions, so
they would all have, each regionhas their own, I guess, culture,
but they're all pretty liberal.So I think they would find in
favor of the employees.
So not so much the treatment ofthem, but the firings of them
that, you know, were could be inviolation of title seven.
Mike Coffey (06:06):
So you get a right to sue letter probably because
unless they really decide totake this, you know, the agency
to take the action. And so thenyou get a right to sue letter.
So maybe a federal court you canconvince federal court that and
I guess you'd have to show thatit may it would maybe hang you
up if you had white employees oremployees of some other
background who didn't show upfor work and without you know,
(06:28):
with you know, violated thepolicy, whatever they're called,
no call, no show policy orwhatever, and, you know,
intentionally didn't show up.
Charles Krugel (06:35):
Oh, let's say it was four to four, four and four
and four whites and fournonwhite. Right. Then, you know,
if all eight are fired, thenbasically you can make a decent
case that it's not racialdiscrimination. There's no
disparate impact.
Mike Coffey (06:47):
Or if whites had chosen to not come in some other
day and the company didn't doanything about them not coming
in. And Comparable. Yeah. Yeah.So Comparable treatment.
Yeah.
Charles Krugel (06:57):
It's a it's a little bit of I think it's a
little bit of a stretch, butit's possible.
Mike Coffey (07:01):
Well, and the reality is the
Charles Krugel (07:05):
none
Mike Coffey (07:05):
of us wanna defend that case. Right? I mean, that's
the real you know, that's whatyou really you know, you don't
want you don't want the claim.You don't wanna deal with the
the issue coming back at at theemployer. So trying to figure
out how do we, you know, how dowe respond.
So what would you have suggestedan employer do when they find
out that, hey. Tomorrow,basically, most of my team's not
(07:25):
coming to work. To observe thisthing that's completely
political and unrelated to work,whatever that thing was, whether
it's a day without immigrant orsome march on whatever, those
kind of things, How would youtell an employer to respond to
that?
Charles Krugel (07:41):
Well, if if you wanna make the argument that
it's a political statement, Ithink you can make a better a
stronger argument as theemployer because then you're not
then arguably you're not firingthem for concerted activity,
like, based on wages, hours, andconditions of employment, but
really based on a politicalstatement. And that's not,
really put I don't think that'sprotected activity in the
(08:01):
workplace under the NLRA or theEqual Employment Opportunity
Act.
Mike Coffey (08:04):
Yeah. That's and that's basically what this was.
Right? I mean, I think it's, youknow, political expression,
because it was really designedto remind The US that we need
labor and that our immigrationpolicies are have been screwed
up for forty years and toadvocate for, you know, freer
immigration or, you know, inthis case, to advocate against a
(08:27):
deeper government crackdown, youknow, and and on employers who
are hiring undocumentedemployees and not deporting all
these people. So it'll be it'llbe interesting to see if, you
know, anybody can convince a alawyer in, you know, South
Central Texas to take that case,and and, you know, Hat Creek
(08:48):
Burger Company.
I don't know how big anorganization that is, but it may
not it may not even be worthgoing after. I mean, you know,
so it may Well,
Charles Krugel (08:54):
there's always there's always gonna be
attorneys who want this becausebasically I mean, in these
disputes, generally speaking,attorneys are the only ones who
come out ahead.
Mike Coffey (09:03):
Yeah. That's
Charles Krugel (09:03):
true. You know, we're the only ones profiting
off of this. That's at least75%, I think, of all labor labor
and employment disputes.
Mike Coffey (09:11):
That's crazy. Yeah. And so, yeah, the you get these
big class acts and settlements,and the people who make it are
the the the attorneys who makethe money on the on the
settlements and, the parties,you know, who are parties to the
Charles Krugel (09:23):
By the way, I might
Mike Coffey (09:24):
get small part. Right?
Charles Krugel (09:25):
I've been doing I've been on my own now for
twenty four years. I've beendoing this for about thirty
years. I've never seen as manylawsuits flying around right now
in in the, employment realm asthere are.
Mike Coffey (09:35):
Interesting. What do you what what, any what's the
trend?
Charles Krugel (09:38):
I think it's a combination of factors. We're
still in the hangover from thepandemic. So money was people
were making money for notworking or working, less hours,
and now, you know, they'rehungover from that, and they're
not making any more money.People are losing their there's
a lot of, the change from Bidento Trump. A lot of people are
losing their jobs.
Also, inflation, I think climatechange has a role in this too in
(10:03):
terms of, like, increasinganxiety and changing work
demographics. So Interesting.
Mike Coffey (10:08):
Yeah. So so good future for the rest of your
career there.
Charles Krugel (10:12):
For the most part, yeah. Yeah. Yeah. If you
would ask me twenty five yearsago if I'd still be doing way
union work in 2025, I probablywould have said very little,
maybe fifteen to 20. But rightnow, the union stuff is still is
at least half my work.
Mike Coffey (10:25):
Up there in where you're at, yeah, I can imagine.
Illinois country. Yeah.
Charles Krugel (10:30):
You know, there's a lot of, a lot of talk
about unions now. And there hasbeen since the pandemic. The
pandemic seems to increase a lotof, anxiety, human resources
anxiety or anxiety in theworkplace, leading to more, more
more concerted or, more activityand labor.
Mike Coffey (10:45):
And in my I've been in the HR world as long as
you've been practicing law, andmy experience is largely that
the companies that end up withunions are the ones that deserve
it. I mean, I think employees atleast here where I'm at in Texas
and and and the Southern US areslower to adopt a union unless
(11:06):
things are really bad. Is thatyour experience up there too?
Charles Krugel (11:10):
Yeah. I would say that in at least half of the
situations where union getsvoted in, it's because the
company deserves it because theyslipped up on communication.
Generally, they the the mistakeisn't something in
communication. Bad, you know,practices in terms of,
explaining wages, hours, orbenefits of, work to employees.
Mike Coffey (11:28):
Mhmm. Ten years ago, 11.1% of the workforce is
unionized. Now it's 9.9%. So itcontinues to decline down. And
that's after four years of aBiden MLRB that was really doing
everything they could to promoteunion membership.
Charles Krugel (11:49):
Biden is extremely pro union.
Mike Coffey (11:51):
Yeah. And I think that's gonna change now. And but
Amazon had a North CarolinaAmazon facility voted, earlier
this month to not to go union.Three quarters majority of the
voters, the members who voted orthe employees who voted voted
against unionizing. I mean,it's, like, 2,447 against, 829.
(12:14):
So at least, you know, NorthCarolina is the South.
Charles Krugel (12:16):
Southeast. Southeast tends to be anti union
Texas, the South there. So yeah.Up north well, I mean, Indiana
is not as labor is not as unitfriendly as Illinois is.
Illinois is extremely unitfriendly, and even Wisconsin and
Iowa aren't as unit friendly asIllinois.
We're so Austin, Michigan areare very union friendly.
Mike Coffey (12:36):
That's interesting. And, you know, this would have
been Amazon, the whole company'ssecond union facility. The first
one was a Whole Foods inPhiladelphia, which is at
Northeastern, and now, you know,it's not totally surprising. I
just thought it was interestingthat the union chose this North
Carolina plant as the place toto try the net you know, to try
for their second one, justbecause of of the, just that
(12:59):
culture down there. You wouldthink a union would pick go for
the low hanging fruit, you know,someplace up North where they
were more union friendly.
Charles Krugel (13:09):
No. It's I mean, I've seen unions trying to get
into the Southeastern States fordecades now. So I you know,
every once in a while, like inTennessee, in the auto plants
there, Alabama, various retailoutlets there, there's always
been a lot of activity in theSoutheast. They haven't been
very successful, but, you know,they keep trying the unions.
Mike Coffey (13:29):
Even I'm even labor there, I guess, in the South is
a little bit more conservativeand, you know, not as as gung ho
to to join up. And, I mean, ifthey're paying much attention, a
lot of folks who end up with theunion are are trying to figure
out how to not pay the duesafter a year or two because
they, you know, often don'tdeliver what they promised.
Charles Krugel (13:48):
Well, yeah. I think the I think there's less
corruption among the unions inthe South than there is on the
North. I think there's morecorruption with the unions in
the North. I mean, I grew up inChicago and I, you know, I've I
grew up in the largely unionfamily too, and I've had
relatives who worked for unionsor been closely associated with
unions. And they worked forunions, I mean, like, a
management positions withinunion itself.
(14:08):
Actually, I worked for a laborunion before I went off my own.
So I I've just seen morecorruption, more bloat and
mismanagement among the unionshere, especially among the
pension funds.
Mike Coffey (14:19):
Well and one of the things Amazon with that hill
that Philadelphia Whole Foods isthey've got a, an appeal to the
NLRB saying that the unionofficials coerced and
intimidated workers, which it'snot the first time I've ever
heard that claim. Or and butI've also talked to people who
are in organized you know, inenvironments that went
(14:40):
organized, and they said, yeah.There was a ton of pressure.
People are showing up at ourhouses and and really pushing.
So under the Biden NLRB, theyprobably would have fallen on
deaf ears.
But, under the Trump, NLRB, whoknows? Because we don't have an
NLRB right now. I mean, the thepresident fired Gwen Wilcox, and
(15:02):
so we have only two members onNLRB now, a Republican and
Democrat, but you they can'tmake any decisions because they
don't have, the the requiredthree votes to make a, you know,
to make a
Charles Krugel (15:13):
Well, they might be able to make decisions, but I
don't think they're forcible.
Mike Coffey (15:16):
Yeah. Yeah. Yeah. They yeah. They're not gonna
rule on any cases.
And then he also fired JenniferAbruzzo, who was the general
counsel. Yeah. Yeah. Andappointed William Cohen. But the
you know, it's an interestingthese independent agencies have
these positions like, you know,you've got a board, but then
you've also got this generalcounsel that's that seems odd
(15:37):
that that's a presidentialappointment because, you know,
usually, the general counsel isjust advising the board.
But in these cases, the generalcounsel really is kind of the
law enforcement piece of whatthe NLRB does. I mean, sets the
tone and says, here's what ourinterpretations are, you know,
or my interpretations are and,and really the administration's
(15:59):
interpretations of the NLRA are.
Charles Krugel (16:01):
Well and they also have an extra layer with
the administrative law judges.So they're the ones who are
handling the first levelhearings or complaint, complaint
hearings, trials, and then itgoes up to the board. Or or you
could also ask for generalcounsel review, I think, at
certain points too. So there'sit's a little bit more
labyrinthian whereas if youcompare it to the Equal
Employment OpportunityCommission, they don't really
(16:22):
have ALJs. They just haveinvestigators and they have
findings.
You know, they make theirfindings and then they either
sue or don't sue or they canissue a right to sue like you
said, a right to sue Etter,which, that could be issued in
term well, based on dismissal orbased on plaintiff's attorneys
asking for a right to suewhether to get it out of the EOC
(16:44):
and then just take it to aprivate law.
Mike Coffey (16:45):
Take it. Yeah. And so with William Cowan now as
acting general counsel, He camein, and, again, it's like the
executive orders. We talkedabout it last month with
affirmative action executiveorder, being rescinded, and it
was kinda shocking to me. I'vebeen in HR all these years, and
I never realized that the,affirmative action plans for
(17:09):
government contractors wasprimarily based on an executive
order.
Congress had never codified it,and that's kind of weird that
they never got around to doingthat in in all these years.
Charles Krugel (17:18):
I don't think that's weird, by the way. I just
think that's congress's riskavoidance, trying to avoid
controversy and all that.
Mike Coffey (17:24):
Yeah. Especially the last two decades. Yeah.
Yeah. Just not writing you know,not doing their job and leaving
it to the administration.
So, hopefully, they'll startdoing their job soon. But
Charles Krugel (17:34):
That's where I think that's where some of the,
or a lot not some, but a lot of,Trump's power grab where his
theory of where the authoritycomes in because Congress hasn't
acted.
Mike Coffey (17:43):
Yeah. And he's definitely doing it. You know,
but now he's got, William Cohenin as, I don't know if it's
Cohen or Cowan, but I'm gonnasay it both ways.
Charles Krugel (17:51):
I believe.
Mike Coffey (17:52):
Cowan. He's, and he came in and all of the a lot of
the memos that Jennifer Abruzzoput in place that really gave
employers heartbreak, he justrescinded them. And so it's the
same kind of situation. So theban on confidentiality and
nondisperagement clauseNoncompete. Yeah.
Yeah. And severance, noncompetes, captive audience
speeches ban, gone. Non competesstay or pay.
Charles Krugel (18:15):
Illinois, though, we still have a captive
audience ban here.
Mike Coffey (18:18):
Yeah. And a lot of states still have those. And so
and so the you know? And maybethat's the question is maybe
states should be, you know,should should drive some of
these things and not, you know,have one size fits all, and
let's see what works and whatdoesn't. But and then the mail
ballot elections that were camein during COVID, he he rescinded
that order as well.
(18:38):
So that's a lot, but, you know,like the non compete agreements,
the courts have already saidthat was outside. As I you know,
that was outside of what the,Federal Trade Commission could
do. And so I'm not sure thatthat was really making a big
difference to a lot of employersworrying about it. Talk about
stay or pay agreements becausewe don't hear about those a lot,
(19:00):
but, I mean, paying, you know,I'm gonna train you. You come on
board.
I'm gonna give you information.I'm gonna train you. I'm gonna
invest in you. I'm gonna payyour college or something. And
and you agree to stay here andbe a happy employee for x x
number of, you know, years orwhatever.
Do you see many employers whowanna do those? Because it seems
like a you know, I see it maybeas a retention bonus kind of
(19:22):
thing, something like that. Butother than that, I don't see
them much.
Charles Krugel (19:25):
For higher paid employees, yeah. I mean, you
know, when you're compensatedwell enough for it and it's con
it's we go and then we go easeit's called, like,
consideration. Mhmm. So the moreyou know, we give you more perks
and, in exchange for you stayingon. So you're not gonna see that
as much in lower paying jobs asyou would, I think, in higher
paying jobs.
(19:45):
But it's a useful it's a usefultool and it could be
enforceable, like, you know, ifyou have sufficient
consideration in exchange forthe, promise to stay. And it's
reasonable, you know, areasonable period of time.
Right.
Mike Coffey (19:59):
Yeah. It's not you can't stay here the rest of your
career.
Charles Krugel (20:02):
Yeah. Absolutely. Yeah. Right. Yeah.
What
Mike Coffey (20:03):
about in Illinois, what are you what are your laws
about confidentiality agreementsor, nondisparagement clauses,
non competes? What's what's theworld like up up there?
Charles Krugel (20:16):
The government here, the legislature has
basically done away with them.
Mike Coffey (20:19):
Okay.
Charles Krugel (20:20):
So, I mean, now I think the minimum pay
requirement for most agreementsis, like, 65,000. And, that's
sort of the benchmark. And,basically, there's other, you
know, other considerations suchas reasonableness in terms of
the amount of time you canrestrict somebody and the
geography where they can, youknow, work or not work. So
Mike Coffey (20:40):
And those I mean, that's except for the dollar,
you know, cap, that's prettysimilar to Texas and a lot of
other places. You know, that youknow, a lot of states have some
rules about, you know, thatnoncompetes have to be
reasonable geographically andthings like that.
Charles Krugel (20:55):
It was a good idea. I mean, there are too
many, businesses that went thatwent way too far with this,
became really obnoxious, I thinkthe poster child was Jimmy
John's. Jimmy John's sandwiches.
Mike Coffey (21:06):
Yeah. What what did they do? What was their oh,
that's a even the sandwichmakers had a had a non compete.
Charles Krugel (21:11):
That's Yeah. That's for yeah. And and that
was just obnoxious. That wasjust ridiculous. Yeah.
It made it freaks overpaid jobs.
Mike Coffey (21:17):
Yeah. It makes sense if you're somebody's
really getting some I mean, but,you know, some company secrets,
some unique training or, youknow, access to formulas, things
like that, maybe that'srelevant. But if you're flipping
burgers, you're makingsandwiches, and and rolling it
down to that level, I thinkwell, first of all, it's just
gonna give you when it gets out,it's gonna give you a bad
(21:37):
reputation and just make itharder
Charles Krugel (21:39):
for you to find.
Mike Coffey (21:40):
I mean Yeah. It's gonna make it hard to find the
the workforce you need.
Charles Krugel (21:45):
Is that to me, it was it was equivalent of,
like, food poisoning at a, fastfood place. I mean, if you
really want I mean, if you wannascare away business employer
employees, prospectiveemployees, and customers Mhmm.
Just try to, you know, just tryto restrict your employees like
that, especially with overpaidemployees.
Mike Coffey (22:02):
Or if you're in South Texas, fire half your
staff for for not showing up fora day without an immigrant that
you know, and and then try torecruit where the you know,
you've got majority Hispanicpopulations in a lot
Charles Krugel (22:13):
of places.
Mike Coffey (22:14):
And yeah. So I think, you know, employers will
hopefully think through some ofthese things before they they
take actions, you know, whetherit's, you know, those one off
instances or in planning theiremployment agreements, things
like that. But given the NLRB'ssituation, who knows how long
it'll be before we have a a a aquorum on the board, or
Charles Krugel (22:37):
Could be four years. Yeah. It
Mike Coffey (22:38):
could be. So what but do you think there's
anything employers should bedoing right now to change their
current behaviors and given thisNLRB's, you know, situation? Or
if Trump administration comes inand and staffs it and they start
executing, you know, much moreemployer friendly MLRA
(22:59):
interpretations. What whatshould employers be doing?
Charles Krugel (23:02):
Work very closely with your either your
attorneys or your HR peoplebecause, in all honesty, I mean,
it's gonna be a a day by daysort of analysis in terms of
what we can or can't do. And astate by state or even like a
county by county or city by cityanalysis too. Because a lot of
cities like San Francisco,Chicago, New York have their own
(23:23):
indigenous, labor and employmentlaws or or rules. So you gotta
work closely with them becauseit's right now, it's very
labyrinthian enforcement system,and there's two there's so many
unknowns, especially on a day today basis.
Mike Coffey (23:36):
And the feds get all the attention, but, yeah,
there's state laws and even atthe city level. I mean, most
cities have, and it alwayssurprises employers when they
get a claim there. They mostcities have their own
ordinances. We got for age,race, sex, national origin,
religion, gender, all thosethings. And the cities are
usually well ahead of the stateor the governments in in in
(23:59):
creating those things.
And so
Charles Krugel (24:01):
The global cities are. Yeah.
Mike Coffey (24:02):
Yeah. Well, I mean, even I'm I'm in Fort Worth,
which is in many ways whatpeople call the the last red
law, you know, big city inTexas, twelfth largest city in
the country now. And, and we'vesince the nineties had a human
rights ordinance in our in ourso and, you know, and that's a
pretty conservative, you know,city relative to Houston,
(24:23):
Austin, Dallas. And so I youknow? And Texas is Texas too.
So
Charles Krugel (24:29):
The legal structures in most states, in
most, jurisdictions, you know,go up court, whatever
jurisdictions, it's there. Butthe disparities I mean, the wage
disparities are still there. Imean, I I think women still make
about 80¢ on the dollar for theman earns and minorities tend to
people of color tend to earneven less than that. So, I mean,
(24:50):
you hear the argument that,well, the legal structure is
there, but yet the disparitiesare still the wage disparities
are still there in presentterms.
Mike Coffey (24:57):
I do think that the 80¢ on the dollar is across all
it's not job for job. It'sacross the labor market in
general. And so I think there'sa that's a I think that's really
important to say because, youknow, people do make choices.
And and it's only it's less thana nickel, or, you know, less
than a 5% chance, or gap formost professional jobs. So
Charles Krugel (25:19):
And by the way, these are, you know, as a
footnote, these are Bureau ofLabor Statistics, which is a
federal agency from the USDepartment of Labor, and there's
it's their stats. And peoplewill criticize, well, it's the
government stats, but they'rethe only ones who are keeping
this type of data. Yeah. Yeah.
Mike Coffey (25:31):
We're also
Charles Krugel (25:31):
gonna get it. Yeah. Yeah.
Mike Coffey (25:33):
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(27:03):
research credits. Then selectepisode one eighty nine and
enter the keyword krugel. That'sk r u g e l. And now back to my
conversation with CharlesKrugel.
And so you mentioned the EEOC,and and they've also, as Reuters
put it, been hobbled by theadministration because, he
(27:26):
fired, two EOC commissioners,and there'll probably be
lawsuits on that one toobecause, there is one on NLRB
one because
Charles Krugel (27:33):
Wilcox. Yeah. Yeah. She filed a lawsuit.
Mike Coffey (27:35):
And so it'll be interesting to see what happens
there, but that's a long termplay. It's not gonna affect
employers directly. But
Charles Krugel (27:42):
That's gonna be yeah. That's gonna be yeah. It's
gonna be long litigation, Ithink.
Mike Coffey (27:46):
And, Samuels, who was fired from the EEOC, Jocelyn
Samuels said that she saiddirectly she was fired because
she and her and her fellowdemocrat on the commission, was
fired, were fired because oftheir positions on sex
discrimination and diversity,equity, and inclusion
(28:07):
initiatives. President Trump hassaid, and he said on his
inauguration day, those arediscriminatory, and, and so he's
pushed that. But the problemwith DEI or the term diversity
or any of that, it's ineverybody has a different Yeah.
Definition of that. Right?
And so, definitely, I saw,especially over the last four
(28:30):
years, some DEI initiatives thatwere clearly and even the EOC is
even their guidance has said,you know, you can't do this
because there are certain thingsthat were just clearly a
violation of title seven.
Charles Krugel (28:41):
Sure.
Mike Coffey (28:41):
But then there were a lot of them where it was just
like, we're calling it DEI, butwe're really focusing on
creating as diverse an applicantpopulation as we can because we
want as deep an applicantpopulation. We wanna reach out
to all these communities. Wedon't want biases that don't
affect somebody's ability to dothe job to get in the way of
bringing in the best talent wecan find. Just period. And then
(29:02):
once they're here, we wanna wewant them to feel included.
We want them to feel likethey're part of the organization
and they belong and they'reheard. And so that is clearly
not, you know, a violation ofTitle seven. And so when we talk
about DEI, a lot of employersare saying, you know, is my DEI
program legal or illegal? Whatdo you how do
Charles Krugel (29:25):
you how would you counsel employer to look at
Mike Coffey (29:25):
their DEI program to determine if it's gonna get
them in trouble?
Charles Krugel (29:26):
Well, you would have to look at where their
applicant pool is coming from,where they're recruiting from.
So, I mean, if they're onlyrecruiting from certain ZIP
codes, certain, you know,municipalities, areas, counties,
whatever, that could beproblematic. The years ago, I
remember the EOC sued a businessin Chicago because they were
recruiting only from Hispanicareas and didn't recruit from
African American neighborhoodsand they found that to be a
(29:49):
violative of title seven. Andand there was a settlement day
and the company ended upsettling it before, going to
court. But anyway, you know, soyou have to look at the
applicant pool, where you'readvertising, how you know, that
type of stuff that maybe thelanguage that you're using.
So, you know, especiallynowadays with, AI types of
(30:11):
interfaces. I mean, if you'regonna try to hit use AI to
create job descriptions or jobads, you have to make sure that
you're using good AI, thatthey're using AI that, you know,
not just from, not just theKKK's database, but, you know,
from more a more diversedatabase.
Mike Coffey (30:27):
So Well and sometimes employers are just too
clever for their own good, andthey feed, okay. Here's what my,
my best performers in this rolelook like as far as their
demographics. They just feed youknow, they and we've seen cases
where with the AI where that'swhat got fed into the AI system,
and and it the AI picked up onthe wrong things.
Charles Krugel (30:46):
Yeah. Exactly.
Mike Coffey (30:46):
It picked up that, you know, it picked up on these
guys who were white men, not thefact that they had these levels
of experience and these thingsthat made them the engineers
that that company wanted. It wasyou know, it picked up on the
wrong thing.
Charles Krugel (30:58):
It's the same type of statistical analysis you
would use for, examining orvalidating tests.
Mike Coffey (31:05):
Right.
Charles Krugel (31:05):
You know determining if a test is
reliable and valid personalityassessments whatever. So you
have to look at you have to andI'm not good at statistics but
you have to run like a I guessregression analysis or you know,
the core to the correlate todetermine the correlation
coefficients and things likethat. Is the is your AI database
or is your job description oryour job ad, does it measure or
(31:28):
does it capture what youintended to capture in terms of
demographics?
Mike Coffey (31:35):
But far easier than that is just looking at, okay,
what are we doing to get asbroad an employment applicant
base as we can? And withoutnecessarily even worrying about
age, race, sex, any of thenational origin, color. But
let's just let's focus on makingsure we get as many qualified
applicants in the door as we canso we can hire the best people
(31:55):
that we can afford. And thenthen let's build a culture where
people wanna come to work here,and they feel like they belong.
And I think we focus too muchon, you know, is this gonna get
me in trouble, or is this gonnaget me in trouble and not enough
on if you're run you know, ifyou're running in a a place
where people wanna work, thosepeople don't go talk to
(32:18):
plaintiff's lawyers.
And, and if you can just figureout a way to, you know, stay in
compliance with title seven, allthat, definitely. But go well
beyond that by just creating aplace where people wanna work
and spending the time to do thatand training your managers and
all the things that come fromcreating that kind of workplace.
Charles Krugel (32:36):
Well, I think you've just boiled it down when
to its core, factor when yousaid training your managers. I
think you you gotta train yourmanagers and I think the
training that is involved islike cultural stuff to some
extent, leadership and maturity,you know, train him to be mature
leaders and, you know, adults.Because that I you know, I see a
(32:57):
lot of I do a lot ofinvestigations too and, and I do
investigations when I engage inlitigation because there's a lot
of due diligence involved andthat due diligence is is
basically investigation. And I Ithink I see a lot in a lot of at
least two thirds of the time,the reason for a dispute and
especially dispute that ends upin litigations or cause of the
manager, the peoplecommunicating decisions,
(33:19):
whatever. They were poorcommunicators, poor leaders,
immature, things like that.
Mike Coffey (33:23):
Yeah. And employers have this idea that they need to
keep all their cards close totheir vest and give people,
especially when it's negativenews, as little information as
possible. But in the absence ofa good, and I've said this for
years. In the absence of a goodexplanation, people are always
gonna assume the the decisionwas unfair, and and you're
(33:43):
giving them an opportunity to gotalk to a lawyer. And even if
that lawyer says, hey.
It's not illegal. My one of mybest friends is a plaintiff's
lawyer, and he was talking abouthow he had they hate intakes on,
employment law cases becausethey say all day long, yeah.
It's not illegal to be a jerk.It's not illegal to be a jerk.
It's not illegal to be a jerk.
And they don't take those cases,but they that's those are the
(34:05):
calls that come in. But thereare plaintiff's lawyers who will
sit down and talk to thatplaintiff, the potential
plaintiff and say, well, tell meabout the rest of their app
operation and and go findsomething where they they may be
in, you know, in real
Charles Krugel (34:17):
trouble. Yeah. I mean, if you don't engage with
your employees as business,they're gonna engage them with
plaintiff's side attorneys orthe EEOC or NLRB. They're gonna,
you know, find that that's wherethey're gonna go to the event.
Mike Coffey (34:28):
And that wraps it up with a nice bow. That's all
the time we have. Thanks forjoining me, Charles.
Charles Krugel (34:32):
Yeah. Thank you for having me. Appreciate it.
Mike Coffey (34:34):
And all Charles' contact information and his
excellent Facebook or LinkedIngroup is will or in the show
notes, we'll have all thoselinks. And thank you for
listening. If you enjoyed thisepisode, please write us a
review on Apple Podcasts,YouTube, or wherever you're
listening. It helps us reachmore listeners. Rob Upchurch is
our technical producer, and youcan reach him at robmakespods
(34:56):
dot com.
And thank you to Imperative'smarketing coordinator, Marianne
Hernandez, who keeps the trainsrunning on time. Speaking of
trains, there goes the L trainright behind Charles in in
Chicago. And I, Mike Coffey, asalways. Don't hesitate to reach
out if I can be of service toyou personally or
professionally. I'll see younext week and until then be
well, do good, and keep yourchin up.
Work very closely with your either your
attorneys or your HR peoplebecause, in all honesty, I mean,
it's gonna be a a day by daysort of analysis in terms of
what we can or can't do and astate by state or even like a
county by county or city by cityanalysis too because a lot of
cities like San Francisco,Chicago, New York have their own
(00:21):
indigenous, labor and employmentlaws or or rules. So you gotta
work closely with them becauseit's right now, it's a very
labyrinthian enforcement systemand there's too there's so many
unknowns, especially on a day today basis.
Mike Coffey (00:39):
Good morning, HR. I'm Mike Coffey, president of
Imperative, bulletproofbackground checks with fast and
friendly service. And this isthe podcast where I talk to
business leaders about bringingpeople together to create value
for shareholders, customers, andthe community. It's the last
Thursday in February, and thenew Trump administration
continues to give us things totalk about. Joining me for this
(01:00):
month's HR news roundup isCharles Krugel.
Charles is a management sidelabor and employment law
attorney in Chicago. He's also afaculty member at Loyola
University's Quinlan School ofBusiness where he teaches
employee relations. Welcome toGood Morning HR, Charles.
Charles Krugel (01:15):
Thanks, Mike. Great to be here.
Mike Coffey (01:17):
So it's been a month, and we'll jump into the
stuff that's been going on mostrecently with the Trump
administration. But we had backon, I think, February 3, the day
without an immigrant protest.And we've had a few of those
before, I think, and they'venever really gotten much news
other than the planning of them.But, this month down here in
(01:38):
Texas in Dripping Springs, thereis a local hamburger company
called Hat Creek Burger Company,and they had eight employees who
said, hey. We wanna you know,we're not gonna be here on the
day of work, or they told anassistant manager that they
weren't gonna be available forwork that day because they were
gonna honor the day without animmigrant where, you know,
(02:00):
people say, here's what lifewould be like if we didn't have
immigration and they don't cometo work.
And everybody every year hopesit's gonna grind the economy to
a halt and really just groundone little burger place, as far
as we can tell, to a halt. Butthe management said, you know,
said give us a list or, and theygot a list of them. And then
management, I guess, realized,oh, that's our whole staff for
the day. And so, eight peopledidn't show up. And, they
(02:25):
management the night before senttext to everybody, you know,
asking them to show up and evenoffering on financial incentives
and little bonuses, and we'llhave a party or do something,
but show up for work.
White people didn't, andmanagement fired them. And,
fired the assistant manager whodid show up, but, management
felt like he was part of theissue with the employees not
(02:46):
coming. So so far as I can tell,Hat Creek Burger hasn't replied
to any of the press inquiries.So all everything we're hearing
is from employees who got fired,so we have to take that with a
certain grain of salt. Butwhat's your take on the national
you know, day without animmigrant, that idea, if how how
would you handle that as anemployer if your employees
(03:08):
wanted to or how would youcounsel your clients if your
employees wanted to do that?
Charles Krugel (03:13):
Well alright. So you're in Texas, and Texas is
not exactly a, union friendly orlabor friendly state unlike it
where I'm in Illinois, which isvery union and labor friendly. I
would say that maybe under theunder Biden, it would have been
a greater than 50% chance thatthis would have been found that
(03:33):
the firings would have beenfound to be a legal, a violation
of concerted, associated, youknow, activity under the
National Labor Relations Act.But under the current with with
Trump in office and what he'sdone recently with the NLRB,
which he's basically gutted theNLRB, there's a good chance that
or right now, I'd say fiftyfifty chance that the company
(03:54):
won't be found liable forviolation of the NORA. It's
possible they could be found, inviolation of title seven of the
equal, of the Equal EmploymentOpportunity Act, basically,
which, would I I think theywould do, like, what's called a
disparate impact analysis tofigure out, well, did they fire
largely or only Hispanicemployees?
(04:16):
And if they did, that that thatcould possibly raise
discrimination against people ofHispanic origin. The fact that
they fired the assistant managerprobably looks good because it
shows that they didn't treatmanagement differently than rank
and file employees. But I wouldsay that there's a decent at
least a fifty fifty chance thatthey'll be found vile in
violation of the NLRA andlikewise, you know, 50% chance
(04:39):
that they won't be. And thenwe'll know I'd be higher.
Mike Coffey (04:42):
It'd be higher than ANFRA. Yeah. The the yeah.
Definitely. And we're gonna talkabout what Trump's changes at
NLRB, but Jennifer Abruzzo asgeneral counsel would have
definitely loved this case.
I don't think William Cohen'sgonna, even sniff at it. But
talk about a violation of titleseven of the Civil Rights Act.
How would the fact thatemployees didn't show up for
(05:04):
work? I mean, how is that howwould that be a violation of
title seven when you're just youknow, you're an employee.
Employees don't all seven youknow, eight employees don't get
to choose to take off a daywhenever they want to and just
walk out and close down therestaurant.
How what might the the argumentlook like for a civil, civil
rights case on that?
Charles Krugel (05:25):
It'd be disparate impact or disparate
treatment, basically, that theytreated one class of people
based on, you know, Hispanicethnicity differently than not
than, minor I'm sorry, majoritywhite people. So that I think
that would be the argument. TheEEOC is pretty liberal in all 50
states for the most part. So, Imean, even though it's a federal
(05:46):
agency, each state or everythere's different, regions, so
they would all have, each regionhas their own, I guess, culture,
but they're all pretty liberal.So I think they would find in
favor of the employees.
So not so much the treatment ofthem, but the firings of them
that, you know, were could be inviolation of title seven.
Mike Coffey (06:06):
So you get a right to sue letter probably because
unless they really decide totake this, you know, the agency
to take the action. And so thenyou get a right to sue letter.
So maybe a federal court you canconvince federal court that and
I guess you'd have to show thatit may it would maybe hang you
up if you had white employees oremployees of some other
background who didn't show upfor work and without you know,
(06:28):
with you know, violated thepolicy, whatever they're called,
no call, no show policy orwhatever, and, you know,
intentionally didn't show up.
Charles Krugel (06:35):
Oh, let's say it was four to four, four and four
and four whites and fournonwhite. Right. Then, you know,
if all eight are fired, thenbasically you can make a decent
case that it's not racialdiscrimination. There's no
disparate impact.
Mike Coffey (06:47):
Or if whites had chosen to not come in some other
day and the company didn't doanything about them not coming
in. And Comparable. Yeah. Yeah.So Comparable treatment.
Yeah.
Charles Krugel (06:57):
It's a it's a little bit of I think it's a
little bit of a stretch, butit's possible.
Mike Coffey (07:01):
Well, and the reality is the
Charles Krugel (07:05):
none
Mike Coffey (07:05):
of us wanna defend that case. Right? I mean, that's
the real you know, that's whatyou really you know, you don't
want you don't want the claim.You don't wanna deal with the
the issue coming back at at theemployer. So trying to figure
out how do we, you know, how dowe respond.
So what would you have suggestedan employer do when they find
out that, hey. Tomorrow,basically, most of my team's not
(07:25):
coming to work. To observe thisthing that's completely
political and unrelated to work,whatever that thing was, whether
it's a day without immigrant orsome march on whatever, those
kind of things, How would youtell an employer to respond to
that?
Charles Krugel (07:41):
Well, if if you wanna make the argument that
it's a political statement, Ithink you can make a better a
stronger argument as theemployer because then you're not
then arguably you're not firingthem for concerted activity,
like, based on wages, hours, andconditions of employment, but
really based on a politicalstatement. And that's not,
really put I don't think that'sprotected activity in the
(08:01):
workplace under the NLRA or theEqual Employment Opportunity
Act.
Mike Coffey (08:04):
Yeah. That's and that's basically what this was.
Right? I mean, I think it's, youknow, political expression,
because it was really designedto remind The US that we need
labor and that our immigrationpolicies are have been screwed
up for forty years and toadvocate for, you know, freer
immigration or, you know, inthis case, to advocate against a
(08:27):
deeper government crackdown, youknow, and and on employers who
are hiring undocumentedemployees and not deporting all
these people. So it'll be it'llbe interesting to see if, you
know, anybody can convince a alawyer in, you know, South
Central Texas to take that case,and and, you know, Hat Creek
(08:48):
Burger Company.
I don't know how big anorganization that is, but it may
not it may not even be worthgoing after. I mean, you know,
so it may Well,
Charles Krugel (08:54):
there's always there's always gonna be
attorneys who want this becausebasically I mean, in these
disputes, generally speaking,attorneys are the only ones who
come out ahead.
Mike Coffey (09:03):
Yeah. That's
Charles Krugel (09:03):
true. You know, we're the only ones profiting
off of this. That's at least75%, I think, of all labor labor
and employment disputes.
Mike Coffey (09:11):
That's crazy. Yeah. And so, yeah, the you get these
big class acts and settlements,and the people who make it are
the the the attorneys who makethe money on the on the
settlements and, the parties,you know, who are parties to the
Charles Krugel (09:23):
By the way, I might
Mike Coffey (09:24):
get small part. Right?
Charles Krugel (09:25):
I've been doing I've been on my own now for
twenty four years. I've beendoing this for about thirty
years. I've never seen as manylawsuits flying around right now
in in the, employment realm asthere are.
Mike Coffey (09:35):
Interesting. What do you what what, any what's the
trend?
Charles Krugel (09:38):
I think it's a combination of factors. We're
still in the hangover from thepandemic. So money was people
were making money for notworking or working, less hours,
and now, you know, they'rehungover from that, and they're
not making any more money.People are losing their there's
a lot of, the change from Bidento Trump. A lot of people are
losing their jobs.
Also, inflation, I think climatechange has a role in this too in
(10:03):
terms of, like, increasinganxiety and changing work
demographics. So Interesting.
Mike Coffey (10:08):
Yeah. So so good future for the rest of your
career there.
Charles Krugel (10:12):
For the most part, yeah. Yeah. Yeah. If you
would ask me twenty five yearsago if I'd still be doing way
union work in 2025, I probablywould have said very little,
maybe fifteen to 20. But rightnow, the union stuff is still is
at least half my work.
Mike Coffey (10:25):
Up there in where you're at, yeah, I can imagine.
Illinois country. Yeah.
Charles Krugel (10:30):
You know, there's a lot of, a lot of talk
about unions now. And there hasbeen since the pandemic. The
pandemic seems to increase a lotof, anxiety, human resources
anxiety or anxiety in theworkplace, leading to more, more
more concerted or, more activityand labor.
Mike Coffey (10:45):
And in my I've been in the HR world as long as
you've been practicing law, andmy experience is largely that
the companies that end up withunions are the ones that deserve
it. I mean, I think employees atleast here where I'm at in Texas
and and and the Southern US areslower to adopt a union unless
(11:06):
things are really bad. Is thatyour experience up there too?
Charles Krugel (11:10):
Yeah. I would say that in at least half of the
situations where union getsvoted in, it's because the
company deserves it because theyslipped up on communication.
Generally, they the the mistakeisn't something in
communication. Bad, you know,practices in terms of,
explaining wages, hours, orbenefits of, work to employees.
Mike Coffey (11:28):
Mhmm. Ten years ago, 11.1% of the workforce is
unionized. Now it's 9.9%. So itcontinues to decline down. And
that's after four years of aBiden MLRB that was really doing
everything they could to promoteunion membership.
Charles Krugel (11:49):
Biden is extremely pro union.
Mike Coffey (11:51):
Yeah. And I think that's gonna change now. And but
Amazon had a North CarolinaAmazon facility voted, earlier
this month to not to go union.Three quarters majority of the
voters, the members who voted orthe employees who voted voted
against unionizing. I mean,it's, like, 2,447 against, 829.
(12:14):
So at least, you know, NorthCarolina is the South.
Charles Krugel (12:16):
Southeast. Southeast tends to be anti union
Texas, the South there. So yeah.Up north well, I mean, Indiana
is not as labor is not as unitfriendly as Illinois is.
Illinois is extremely unitfriendly, and even Wisconsin and
Iowa aren't as unit friendly asIllinois.
We're so Austin, Michigan areare very union friendly.
Mike Coffey (12:36):
That's interesting. And, you know, this would have
been Amazon, the whole company'ssecond union facility. The first
one was a Whole Foods inPhiladelphia, which is at
Northeastern, and now, you know,it's not totally surprising. I
just thought it was interestingthat the union chose this North
Carolina plant as the place toto try the net you know, to try
for their second one, justbecause of of the, just that
(12:59):
culture down there. You wouldthink a union would pick go for
the low hanging fruit, you know,someplace up North where they
were more union friendly.
Charles Krugel (13:09):
No. It's I mean, I've seen unions trying to get
into the Southeastern States fordecades now. So I you know,
every once in a while, like inTennessee, in the auto plants
there, Alabama, various retailoutlets there, there's always
been a lot of activity in theSoutheast. They haven't been
very successful, but, you know,they keep trying the unions.
Mike Coffey (13:29):
Even I'm even labor there, I guess, in the South is
a little bit more conservativeand, you know, not as as gung ho
to to join up. And, I mean, ifthey're paying much attention, a
lot of folks who end up with theunion are are trying to figure
out how to not pay the duesafter a year or two because
they, you know, often don'tdeliver what they promised.
Charles Krugel (13:48):
Well, yeah. I think the I think there's less
corruption among the unions inthe South than there is on the
North. I think there's morecorruption with the unions in
the North. I mean, I grew up inChicago and I, you know, I've I
grew up in the largely unionfamily too, and I've had
relatives who worked for unionsor been closely associated with
unions. And they worked forunions, I mean, like, a
management positions withinunion itself.
(14:08):
Actually, I worked for a laborunion before I went off my own.
So I I've just seen morecorruption, more bloat and
mismanagement among the unionshere, especially among the
pension funds.
Mike Coffey (14:19):
Well and one of the things Amazon with that hill
that Philadelphia Whole Foods isthey've got a, an appeal to the
NLRB saying that the unionofficials coerced and
intimidated workers, which it'snot the first time I've ever
heard that claim. Or and butI've also talked to people who
are in organized you know, inenvironments that went
(14:40):
organized, and they said, yeah.There was a ton of pressure.
People are showing up at ourhouses and and really pushing.
So under the Biden NLRB, theyprobably would have fallen on
deaf ears.
But, under the Trump, NLRB, whoknows? Because we don't have an
NLRB right now. I mean, the thepresident fired Gwen Wilcox, and
(15:02):
so we have only two members onNLRB now, a Republican and
Democrat, but you they can'tmake any decisions because they
don't have, the the requiredthree votes to make a, you know,
to make a
Charles Krugel (15:13):
Well, they might be able to make decisions, but I
don't think they're forcible.
Mike Coffey (15:16):
Yeah. Yeah. Yeah. They yeah. They're not gonna
rule on any cases.
And then he also fired JenniferAbruzzo, who was the general
counsel. Yeah. Yeah. Andappointed William Cohen. But the
you know, it's an interestingthese independent agencies have
these positions like, you know,you've got a board, but then
you've also got this generalcounsel that's that seems odd
(15:37):
that that's a presidentialappointment because, you know,
usually, the general counsel isjust advising the board.
But in these cases, the generalcounsel really is kind of the
law enforcement piece of whatthe NLRB does. I mean, sets the
tone and says, here's what ourinterpretations are, you know,
or my interpretations are and,and really the administration's
(15:59):
interpretations of the NLRA are.
Charles Krugel (16:01):
Well and they also have an extra layer with
the administrative law judges.So they're the ones who are
handling the first levelhearings or complaint, complaint
hearings, trials, and then itgoes up to the board. Or or you
could also ask for generalcounsel review, I think, at
certain points too. So there'sit's a little bit more
labyrinthian whereas if youcompare it to the Equal
Employment OpportunityCommission, they don't really
(16:22):
have ALJs. They just haveinvestigators and they have
findings.
You know, they make theirfindings and then they either
sue or don't sue or they canissue a right to sue like you
said, a right to sue Etter,which, that could be issued in
term well, based on dismissal orbased on plaintiff's attorneys
asking for a right to suewhether to get it out of the EOC
(16:44):
and then just take it to aprivate law.
Mike Coffey (16:45):
Take it. Yeah. And so with William Cowan now as
acting general counsel, He camein, and, again, it's like the
executive orders. We talkedabout it last month with
affirmative action executiveorder, being rescinded, and it
was kinda shocking to me. I'vebeen in HR all these years, and
I never realized that the,affirmative action plans for
(17:09):
government contractors wasprimarily based on an executive
order.
Congress had never codified it,and that's kind of weird that
they never got around to doingthat in in all these years.
Charles Krugel (17:18):
I don't think that's weird, by the way. I just
think that's congress's riskavoidance, trying to avoid
controversy and all that.
Mike Coffey (17:24):
Yeah. Especially the last two decades. Yeah.
Yeah. Just not writing you know,not doing their job and leaving
it to the administration.
So, hopefully, they'll startdoing their job soon. But
Charles Krugel (17:34):
That's where I think that's where some of the,
or a lot not some, but a lot of,Trump's power grab where his
theory of where the authoritycomes in because Congress hasn't
acted.
Mike Coffey (17:43):
Yeah. And he's definitely doing it. You know,
but now he's got, William Cohenin as, I don't know if it's
Cohen or Cowan, but I'm gonnasay it both ways.
Charles Krugel (17:51):
I believe.
Mike Coffey (17:52):
Cowan. He's, and he came in and all of the a lot of
the memos that Jennifer Abruzzoput in place that really gave
employers heartbreak, he justrescinded them. And so it's the
same kind of situation. So theban on confidentiality and
nondisperagement clauseNoncompete. Yeah.
Yeah. And severance, noncompetes, captive audience
speeches ban, gone. Non competesstay or pay.
Charles Krugel (18:15):
Illinois, though, we still have a captive
audience ban here.
Mike Coffey (18:18):
Yeah. And a lot of states still have those. And so
and so the you know? And maybethat's the question is maybe
states should be, you know,should should drive some of
these things and not, you know,have one size fits all, and
let's see what works and whatdoesn't. But and then the mail
ballot elections that were camein during COVID, he he rescinded
that order as well.
(18:38):
So that's a lot, but, you know,like the non compete agreements,
the courts have already saidthat was outside. As I you know,
that was outside of what the,Federal Trade Commission could
do. And so I'm not sure thatthat was really making a big
difference to a lot of employersworrying about it. Talk about
stay or pay agreements becausewe don't hear about those a lot,
(19:00):
but, I mean, paying, you know,I'm gonna train you. You come on
board.
I'm gonna give you information.I'm gonna train you. I'm gonna
invest in you. I'm gonna payyour college or something. And
and you agree to stay here andbe a happy employee for x x
number of, you know, years orwhatever.
Do you see many employers whowanna do those? Because it seems
like a you know, I see it maybeas a retention bonus kind of
(19:22):
thing, something like that. Butother than that, I don't see
them much.
Charles Krugel (19:25):
For higher paid employees, yeah. I mean, you
know, when you're compensatedwell enough for it and it's con
it's we go and then we go easeit's called, like,
consideration. Mhmm. So the moreyou know, we give you more perks
and, in exchange for you stayingon. So you're not gonna see that
as much in lower paying jobs asyou would, I think, in higher
paying jobs.
(19:45):
But it's a useful it's a usefultool and it could be
enforceable, like, you know, ifyou have sufficient
consideration in exchange forthe, promise to stay. And it's
reasonable, you know, areasonable period of time.
Right.
Mike Coffey (19:59):
Yeah. It's not you can't stay here the rest of your
career.
Charles Krugel (20:02):
Yeah. Absolutely. Yeah. Right. Yeah.
What
Mike Coffey (20:03):
about in Illinois, what are you what are your laws
about confidentiality agreementsor, nondisparagement clauses,
non competes? What's what's theworld like up up there?
Charles Krugel (20:16):
The government here, the legislature has
basically done away with them.
Mike Coffey (20:19):
Okay.
Charles Krugel (20:20):
So, I mean, now I think the minimum pay
requirement for most agreementsis, like, 65,000. And, that's
sort of the benchmark. And,basically, there's other, you
know, other considerations suchas reasonableness in terms of
the amount of time you canrestrict somebody and the
geography where they can, youknow, work or not work. So
Mike Coffey (20:40):
And those I mean, that's except for the dollar,
you know, cap, that's prettysimilar to Texas and a lot of
other places. You know, that youknow, a lot of states have some
rules about, you know, thatnoncompetes have to be
reasonable geographically andthings like that.
Charles Krugel (20:55):
It was a good idea. I mean, there are too
many, businesses that went thatwent way too far with this,
became really obnoxious, I thinkthe poster child was Jimmy
John's. Jimmy John's sandwiches.
Mike Coffey (21:06):
Yeah. What what did they do? What was their oh,
that's a even the sandwichmakers had a had a non compete.
Charles Krugel (21:11):
That's Yeah. That's for yeah. And and that
was just obnoxious. That wasjust ridiculous. Yeah.
It made it freaks overpaid jobs.
Mike Coffey (21:17):
Yeah. It makes sense if you're somebody's
really getting some I mean, but,you know, some company secrets,
some unique training or, youknow, access to formulas, things
like that, maybe that'srelevant. But if you're flipping
burgers, you're makingsandwiches, and and rolling it
down to that level, I thinkwell, first of all, it's just
gonna give you when it gets out,it's gonna give you a bad
(21:37):
reputation and just make itharder
Charles Krugel (21:39):
for you to find.
Mike Coffey (21:40):
I mean Yeah. It's gonna make it hard to find the
the workforce you need.
Charles Krugel (21:45):
Is that to me, it was it was equivalent of,
like, food poisoning at a, fastfood place. I mean, if you
really want I mean, if you wannascare away business employer
employees, prospectiveemployees, and customers Mhmm.
Just try to, you know, just tryto restrict your employees like
that, especially with overpaidemployees.
Mike Coffey (22:02):
Or if you're in South Texas, fire half your
staff for for not showing up fora day without an immigrant that
you know, and and then try torecruit where the you know,
you've got majority Hispanicpopulations in a lot
Charles Krugel (22:13):
of places.
Mike Coffey (22:14):
And yeah. So I think, you know, employers will
hopefully think through some ofthese things before they they
take actions, you know, whetherit's, you know, those one off
instances or in planning theiremployment agreements, things
like that. But given the NLRB'ssituation, who knows how long
it'll be before we have a a a aquorum on the board, or
Charles Krugel (22:37):
Could be four years. Yeah. It
Mike Coffey (22:38):
could be. So what but do you think there's
anything employers should bedoing right now to change their
current behaviors and given thisNLRB's, you know, situation? Or
if Trump administration comes inand and staffs it and they start
executing, you know, much moreemployer friendly MLRA
(22:59):
interpretations. What whatshould employers be doing?
Charles Krugel (23:02):
Work very closely with your either your
attorneys or your HR peoplebecause, in all honesty, I mean,
it's gonna be a a day by daysort of analysis in terms of
what we can or can't do. And astate by state or even like a
county by county or city by cityanalysis too. Because a lot of
cities like San Francisco,Chicago, New York have their own
(23:23):
indigenous, labor and employmentlaws or or rules. So you gotta
work closely with them becauseit's right now, it's very
labyrinthian enforcement system,and there's two there's so many
unknowns, especially on a day today basis.
Mike Coffey (23:36):
And the feds get all the attention, but, yeah,
there's state laws and even atthe city level. I mean, most
cities have, and it alwayssurprises employers when they
get a claim there. They mostcities have their own
ordinances. We got for age,race, sex, national origin,
religion, gender, all thosethings. And the cities are
usually well ahead of the stateor the governments in in in
(23:59):
creating those things.
And so
Charles Krugel (24:01):
The global cities are. Yeah.
Mike Coffey (24:02):
Yeah. Well, I mean, even I'm I'm in Fort Worth,
which is in many ways whatpeople call the the last red
law, you know, big city inTexas, twelfth largest city in
the country now. And, and we'vesince the nineties had a human
rights ordinance in our in ourso and, you know, and that's a
pretty conservative, you know,city relative to Houston,
(24:23):
Austin, Dallas. And so I youknow? And Texas is Texas too.
So
Charles Krugel (24:29):
The legal structures in most states, in
most, jurisdictions, you know,go up court, whatever
jurisdictions, it's there. Butthe disparities I mean, the wage
disparities are still there. Imean, I I think women still make
about 80¢ on the dollar for theman earns and minorities tend to
people of color tend to earneven less than that. So, I mean,
(24:50):
you hear the argument that,well, the legal structure is
there, but yet the disparitiesare still the wage disparities
are still there in presentterms.
Mike Coffey (24:57):
I do think that the 80¢ on the dollar is across all
it's not job for job. It'sacross the labor market in
general. And so I think there'sa that's a I think that's really
important to say because, youknow, people do make choices.
And and it's only it's less thana nickel, or, you know, less
than a 5% chance, or gap formost professional jobs. So
Charles Krugel (25:19):
And by the way, these are, you know, as a
footnote, these are Bureau ofLabor Statistics, which is a
federal agency from the USDepartment of Labor, and there's
it's their stats. And peoplewill criticize, well, it's the
government stats, but they'rethe only ones who are keeping
this type of data. Yeah. Yeah.
Mike Coffey (25:31):
We're also
Charles Krugel (25:31):
gonna get it. Yeah. Yeah.
Mike Coffey (25:33):
And let's take a quick break. Good morning. HR is
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(27:03):
research credits. Then selectepisode one eighty nine and
enter the keyword krugel. That'sk r u g e l. And now back to my
conversation with CharlesKrugel.
And so you mentioned the EEOC,and and they've also, as Reuters
put it, been hobbled by theadministration because, he
(27:26):
fired, two EOC commissioners,and there'll probably be
lawsuits on that one toobecause, there is one on NLRB
one because
Charles Krugel (27:33):
Wilcox. Yeah. Yeah. She filed a lawsuit.
Mike Coffey (27:35):
And so it'll be interesting to see what happens
there, but that's a long termplay. It's not gonna affect
employers directly. But
Charles Krugel (27:42):
That's gonna be yeah. That's gonna be yeah. It's
gonna be long litigation, Ithink.
Mike Coffey (27:46):
And, Samuels, who was fired from the EEOC, Jocelyn
Samuels said that she saiddirectly she was fired because
she and her and her fellowdemocrat on the commission, was
fired, were fired because oftheir positions on sex
discrimination and diversity,equity, and inclusion
(28:07):
initiatives. President Trump hassaid, and he said on his
inauguration day, those arediscriminatory, and, and so he's
pushed that. But the problemwith DEI or the term diversity
or any of that, it's ineverybody has a different Yeah.
Definition of that. Right?
And so, definitely, I saw,especially over the last four
(28:30):
years, some DEI initiatives thatwere clearly and even the EOC is
even their guidance has said,you know, you can't do this
because there are certain thingsthat were just clearly a
violation of title seven.
Charles Krugel (28:41):
Sure.
Mike Coffey (28:41):
But then there were a lot of them where it was just
like, we're calling it DEI, butwe're really focusing on
creating as diverse an applicantpopulation as we can because we
want as deep an applicantpopulation. We wanna reach out
to all these communities. Wedon't want biases that don't
affect somebody's ability to dothe job to get in the way of
bringing in the best talent wecan find. Just period. And then
(29:02):
once they're here, we wanna wewant them to feel included.
We want them to feel likethey're part of the organization
and they belong and they'reheard. And so that is clearly
not, you know, a violation ofTitle seven. And so when we talk
about DEI, a lot of employersare saying, you know, is my DEI
program legal or illegal? Whatdo you how do
Charles Krugel (29:25):
you how would you counsel employer to look at
Mike Coffey (29:25):
their DEI program to determine if it's gonna get
them in trouble?
Charles Krugel (29:26):
Well, you would have to look at where their
applicant pool is coming from,where they're recruiting from.
So, I mean, if they're onlyrecruiting from certain ZIP
codes, certain, you know,municipalities, areas, counties,
whatever, that could beproblematic. The years ago, I
remember the EOC sued a businessin Chicago because they were
recruiting only from Hispanicareas and didn't recruit from
African American neighborhoodsand they found that to be a
(29:49):
violative of title seven. Andand there was a settlement day
and the company ended upsettling it before, going to
court. But anyway, you know, soyou have to look at the
applicant pool, where you'readvertising, how you know, that
type of stuff that maybe thelanguage that you're using.
So, you know, especiallynowadays with, AI types of
(30:11):
interfaces. I mean, if you'regonna try to hit use AI to
create job descriptions or jobads, you have to make sure that
you're using good AI, thatthey're using AI that, you know,
not just from, not just theKKK's database, but, you know,
from more a more diversedatabase.
Mike Coffey (30:27):
So Well and sometimes employers are just too
clever for their own good, andthey feed, okay. Here's what my,
my best performers in this rolelook like as far as their
demographics. They just feed youknow, they and we've seen cases
where with the AI where that'swhat got fed into the AI system,
and and it the AI picked up onthe wrong things.
Charles Krugel (30:46):
Yeah. Exactly.
Mike Coffey (30:46):
It picked up that, you know, it picked up on these
guys who were white men, not thefact that they had these levels
of experience and these thingsthat made them the engineers
that that company wanted. It wasyou know, it picked up on the
wrong thing.
Charles Krugel (30:58):
It's the same type of statistical analysis you
would use for, examining orvalidating tests.
Mike Coffey (31:05):
Right.
Charles Krugel (31:05):
You know determining if a test is
reliable and valid personalityassessments whatever. So you
have to look at you have to andI'm not good at statistics but
you have to run like a I guessregression analysis or you know,
the core to the correlate todetermine the correlation
coefficients and things likethat. Is the is your AI database
or is your job description oryour job ad, does it measure or
(31:28):
does it capture what youintended to capture in terms of
demographics?
Mike Coffey (31:35):
But far easier than that is just looking at, okay,
what are we doing to get asbroad an employment applicant
base as we can? And withoutnecessarily even worrying about
age, race, sex, any of thenational origin, color. But
let's just let's focus on makingsure we get as many qualified
applicants in the door as we canso we can hire the best people
(31:55):
that we can afford. And thenthen let's build a culture where
people wanna come to work here,and they feel like they belong.
And I think we focus too muchon, you know, is this gonna get
me in trouble, or is this gonnaget me in trouble and not enough
on if you're run you know, ifyou're running in a a place
where people wanna work, thosepeople don't go talk to
(32:18):
plaintiff's lawyers.
And, and if you can just figureout a way to, you know, stay in
compliance with title seven, allthat, definitely. But go well
beyond that by just creating aplace where people wanna work
and spending the time to do thatand training your managers and
all the things that come fromcreating that kind of workplace.
Charles Krugel (32:36):
Well, I think you've just boiled it down when
to its core, factor when yousaid training your managers. I
think you you gotta train yourmanagers and I think the
training that is involved islike cultural stuff to some
extent, leadership and maturity,you know, train him to be mature
leaders and, you know, adults.Because that I you know, I see a
(32:57):
lot of I do a lot ofinvestigations too and, and I do
investigations when I engage inlitigation because there's a lot
of due diligence involved andthat due diligence is is
basically investigation. And I Ithink I see a lot in a lot of at
least two thirds of the time,the reason for a dispute and
especially dispute that ends upin litigations or cause of the
manager, the peoplecommunicating decisions,
(33:19):
whatever. They were poorcommunicators, poor leaders,
immature, things like that.
Mike Coffey (33:23):
Yeah. And employers have this idea that they need to
keep all their cards close totheir vest and give people,
especially when it's negativenews, as little information as
possible. But in the absence ofa good, and I've said this for
years. In the absence of a goodexplanation, people are always
gonna assume the the decisionwas unfair, and and you're
(33:43):
giving them an opportunity to gotalk to a lawyer. And even if
that lawyer says, hey.
It's not illegal. My one of mybest friends is a plaintiff's
lawyer, and he was talking abouthow he had they hate intakes on,
employment law cases becausethey say all day long, yeah.
It's not illegal to be a jerk.It's not illegal to be a jerk.
It's not illegal to be a jerk.
And they don't take those cases,but they that's those are the
(34:05):
calls that come in. But thereare plaintiff's lawyers who will
sit down and talk to thatplaintiff, the potential
plaintiff and say, well, tell meabout the rest of their app
operation and and go findsomething where they they may be
in, you know, in real
Charles Krugel (34:17):
trouble. Yeah. I mean, if you don't engage with
your employees as business,they're gonna engage them with
plaintiff's side attorneys orthe EEOC or NLRB. They're gonna,
you know, find that that's wherethey're gonna go to the event.
Mike Coffey (34:28):
And that wraps it up with a nice bow. That's all
the time we have. Thanks forjoining me, Charles.
Charles Krugel (34:32):
Yeah. Thank you for having me. Appreciate it.
Mike Coffey (34:34):
And all Charles' contact information and his
excellent Facebook or LinkedIngroup is will or in the show
notes, we'll have all thoselinks. And thank you for
listening. If you enjoyed thisepisode, please write us a
review on Apple Podcasts,YouTube, or wherever you're
listening. It helps us reachmore listeners. Rob Upchurch is
our technical producer, and youcan reach him at robmakespods
(34:56):
dot com.
And thank you to Imperative'smarketing coordinator, Marianne
Hernandez, who keeps the trainsrunning on time. Speaking of
trains, there goes the L trainright behind Charles in in
Chicago. And I, Mike Coffey, asalways. Don't hesitate to reach
out if I can be of service toyou personally or
professionally. I'll see younext week and until then be
well, do good, and keep yourchin up.
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