Documentation: Your Best Defense Against Legal Challenges with Kelly Dobbs Bunting

In this episode of the HR Mixtape podcast, host Shari Simpson welcomes Kelly Bunting, a labor and employment attorney at Greenberg Traurig LLP. The conversation dives into the evolving landscape of employment law, particularly focusing on compliance issues surrounding Diversity, Equity, and Inclusion (DEI) policies, hybrid work dynamics, and the implications of recent legal changes. This discussion is timely as organizations navigate the complexities of creating an inclusive workplace while adhering to new regulations.

Listener Takeaways:

• Learn how to effectively adapt DEI policies to foster a genuine workplace culture.

• Discover why documentation is crucial for HR compliance and risk management.

• Explore strategies for managing employee requests for remote work under the ADA.

Hit “Play” to gain valuable insights that can help you stay ahead in the ever-changing HR landscape!

Guest(s): Kelly Bunting, Labor and Employment Attorney, Greenberg Traurig LLP

Episode Transcript

(00:02):
You're listening to the HR Mixtape. Your podcast with
the perfect mix of practical advice, thought-provoking interviews, and
stories that just hit different so that work doesn't have to feel, well,
Joining me today is Kelly Bunting, labor and employment attorney from
Greenberg Traurig LLP. Kelly co-chairs her

(00:24):
firm's labor and employment practice, advising organizations on
employment law compliance, workplace investigations, and
complex litigation. Her insights help HR leaders navigate
evolving employment regulations effectively. Kelly,
Shari, I would follow you anywhere. I love that. I

(00:45):
love that. We have such great, rich conversations. And
with your background and everything that you're touching, I know
this is a big, big, big question to get us started. But when you
think about the landscape right now, what are
the emerging compliance issues that HR should be really focused on
to stay, you know, kind of ahead of making

(01:07):
sure that they're not wading into some potential legal challenges.
You want just one? I mean, there's so many compliance challenges
now, but okay. I'll tell you what I think the biggest one
is, is changing your DEI
policies, changing your training, trying to keep up with the changing
guidance on DEI. So I

(01:30):
don't know if I can say this. I am going to put it out there. I do not
consider DEI to be illegal. I
do kind of chuckle at that term. DEI is
a way of life. It's a way of looking at the world. It
shouldn't just be a checkoff policy. So I
mean, you know, to that end, look,

(01:51):
if you look at your policies and you realize, oh, maybe you were
just checking off boxes. Well, that's not what it's
supposed to be. That's not what DEI is supposed to be. So,
you know, then I understand some of these new rules and
laws and executive guidance coming out because, no, you shouldn't be
doing it just to show people, oh, yeah, see, look, we have these policies. You

(02:12):
should be living it. So, you know,
a lot of clients have come to me saying, well, what
do we do? Do we still train on DEI? You know, I have
employees who are scared You know, we've worked so hard to
have a respectful workplace culture. And so I say, well,
that's where you start from. That was the end goal.

(02:33):
Now it's where you start from. So, you know, sure, yeah,
you can change the names of what you call things if you want, but
come at it less from, okay, DEI,
we're checking boxes. You know, we have so many women and
so many Hispanics and on and on. come
at it from how do I approach all

(02:55):
of these new laws and all the new guidance and
still maintain a respectful workplace. So that's what
my advice is, is get away from the weeds of
DEI and get back to what was your original purpose?
To make everyone feel welcome at work? To make everyone want
to come to work? You know, that's what

(03:18):
I think is probably the most challenging thing right now, but
Yeah. Do you see that organizations who have
government contracts are responding
in, I guess, a fearful way? Meaning that, like, I've seen organizations
pull it back, but then just rename and stuff, and now it
meets the criteria. Like, is that some of the things that we're

(03:41):
seeing happening or some of the advice that you're giving, like,
cause you said, it's like, it's not necessarily you're changing what you're doing per
You're exactly right. And that's the best way to put it. Are they fearful?
Yes. Yes, I definitely have seen federal contractors
literally pull back completely, which is a shame. I

(04:03):
would not recommend that. Changing the name, I
don't know if I'd recommend that either. I mean, I get it. That's like a first step for
everybody. But again, it's rethinking the
way you are approaching it. What is your ultimate goal?
And the ultimate goal, and again, this is harder for federal contractors
for sure, and I get it. They may actually

(04:25):
need to get rid of their policies, at least get rid of them on the website. You
know, don't advertise that you have these policies. But
federal contractors, this is going, this is their money. You
know, this is the way they survive. So I understand completely
if they are simply removing their policy, simply not, you
know, but you can still have an overall respectful workplace policy

(04:48):
and don't hit any of the key words that upset people. And
definitely, Go back to respectful workplace. Where
do you want to work? You know how what what kind of?
Culture atmosphere do you want to work and it's probably what
your employees want as well is a respite Let's
say where they can come and get away from the noise and

(05:10):
the anger so much anger in the country today Because you
know what we're all on a team here, and we're focusing on
work so All the noises should
go away. We're just here to work and
I mean, that's so powerful. And it does

(05:31):
lead into my next question, which is around thinking about these
new environments that we have where we're having hybrid work and high
flexibility, those types of things. What are
some changing ways that we're seeing employment law affected by
I'll tell you what, we're getting a heck of a lot of ADA claims, you
know, because, yeah, people got, you know, COVID. How

(05:53):
many years? That was like three years? Going on four years, people
were told work from home. I didn't want to come back to
the office. I'm going to be honest, you know, it's
like, well, wait a minute. I've gotten really comfortable, you know, letting the dog out
every three hours. Hold on. But yeah, I
definitely see the benefit of being in an office, collaborating with

(06:13):
people, feeling like you're on a team again.
Instead of just staring at people's bedroom walls on Zoom, you
want to feel part of an overall strategy again.
Like, yeah, hey, it's great to see you. Oh, man, your kids got
big. Things like that, all the things that make you want
to come to work. I always told my kids, You don't

(06:34):
have to have friends at work. You just have to be civil. You have to get along with people.
They don't have to be friends. But it surely is nice if you do have
friends at work. And it makes it just
a better experience overall. So you're not going to make friends on
Zoom. You know, you have to come back to work. What
I'm seeing, though, from all of these work-from-home policies

(06:56):
now saying, oh, you've got to come back, two days, three
days, and then you see how many companies are saying five
days, five days in the office. We're seeing a huge rise
in disability claims under the ADA or under state law saying,
oh, well, my doctor says I have to work from home. Now, I'm not saying that
they're all illegitimate. Certainly, there are many instances

(07:17):
when I can think, well, there's a medical necessity to work from
home. But I'm seeing some pretty bizarre reasons. And,
you know, you kind of question the health care provider's paperwork.
I've had some HR folks go as far as to look these
people up and realize that there is no such doctor at this
particular hospital. Oh, yeah, yeah. I

(07:40):
don't know if I'd go that far. You know, you have to be careful. You don't want a retaliation claim
or a discrimination claim. But I think you're somewhat justified
because just like the COVID vaccine, huge rise
in religious objections. And you're thinking, wait a minute, they
weren't religious before and now they are. You
really have to be careful in that thinking because there are plenty of people that

(08:02):
have legitimate reasons not to get the vaccine. There
are plenty of people, medical and religious, and plenty of
people that have reasons to be able
to continue to work from home. So you have to sort that out. Don't
automatically go into the accommodation, the interactive process, the
accommodation meeting, you know, thinking, okay, you
just want to stay working from home. I know what's going on here. You

(08:25):
know, you have to approach it with an open mind like you would any interactive
discussion, and then make a decision based on the
facts, understanding that what you decide for this person,
you know, is really going to have repercussions across the entire workforce. So
that's what I'm seeing with the work from Hunt. It's not so
much people being resistant to it anymore. I think

(08:47):
there's this grudging realization that we're
all going back. But now it's ways to get out of going
We have to say like, hey, we've done the same process for
everybody. We followed the same rules. And this is the outcome that
Their application of policies means the fair
application of policies. You know, you can't say,

(09:10):
oh, yeah, man, you're such a good employee. And, you know, I love you. You
always show up no matter what. I'm going to excuse you, but this guy
that has excuse after excuse and is just such
a downer and nobody likes him, nah, forget it. Maybe
he is the one you want to work from home. Potentially,
yeah. Keep him out of the workplace. You really

(09:33):
have got, and it's so hard, everything we ask of HR is
so hard, but this is really hard because you're overcoming your own
perfectly acceptable human bias, you know, towards good
workers as opposed to quote-unquote bad workers. But
you got to do that in every instance because you will get sued and
you're going to lose if somebody is able to show that

(09:56):
you have applied the policies differently according to
What are some areas, some compliance areas, that HR
overlooks or doesn't think about as much as they should? I would
It's easy. It's easy if you do it contemporaneously. You
have to keep up with it. You have to, have to, have to. And I say this all the

(10:19):
time to my clients. You thinking about it two weeks down
the road, I can guarantee it's not going to be, oh, we'll all write
it up when I get home, or I'll write it up tomorrow. It's going to be
a couple of months by the time you remember, if at all. Under
the law, it's got to be contemporaneous. So
you spoke to somebody in the hallway about being laid a gaddy. Just

(10:40):
sit down at your computer and shoot yourself an email. I
blind copy myself on emails to employees or
sometimes the clients. You have a little e-folder, if you
don't have too many employees, on everybody and just put it in there. spoke
to so-and-so today, 10.30, late again, you
know, second time this week, told him next time I was gonna write him up. So

(11:02):
people say, wait a minute, you want me to document the verbal warning?
Yes, yes, because it's really hard. to
put as an exhibit in court a verbal warning.
You're going to have to do that through testimony. And the HR does not
want to be deposed. So if I've got an e-folder that
has all the times that I stopped so-and-so in the hallway, and

(11:25):
said, hey, this is like the third time you've been late. Then I
can show, all right, you know, as you know, and
you look back in your file on 6-2,
on 6-7, on 6-17, I
stopped you in the hallway and I spoke to you. You know, that was a
verbal warning. We're now escalating to a written warning. That's

(11:46):
as simple as documentation can be. An email is documentation.
I love that idea. My question is,
I guess then, if that doesn't sit in the employee file,
right, that sits on your email, What
I would definitely put it in their file. I would definitely do that. So

(12:08):
you're blind copying yourself. You know, you're putting it into your own
file. Print it out if you have. Most people don't have those
file folders anymore. If you do print it out, stick it in there. If
not, you've got an e-folder on that employee somewhere. It's
really easy to move that into their folder as well. And
then that way, it is when you come back, And

(12:31):
you have the really serious discussion, like,
look, we're talking termination is the next step. Come on,
you've got to work with me here. And they come
up with Oh, didn't I tell you? So
my kid has autism and I actually
have them in a special school. And so

(12:52):
the school doesn't start until later. So on the
days that my ex brings them, no problem. On the
days that I have to bring them, I have to come. I'm going to need intermittent FMLA.
What? You know, and the HR person is stunned because
it's the first time you heard it. So, assuming that's true,
okay, probably, yeah, sure, I'd give you intermittent FMLA for

(13:14):
that. It doesn't happen all the time. Thanks for telling me. You know, it
would have been great before I had to write you up. But
you've got evidence now that well before
they made any sort of protected claim, you dinged
them for other things. Because you look back, it wasn't
every day that they were dropping their kid off at the special school, you

(13:37):
know? And they may end up using that as an excuse down the
road. I know I sound jaded. No,
I really do believe in the goodness of humankind, although,
that belief has been tempered, shall we say, over the 20 years
Well, and it's so complex because you're right. Maybe, maybe

(13:57):
that was the scenario all the time and they didn't feel comfortable sharing
it, right? Maybe, you know, maybe you're right when you do look
at it and you go back and you look at the documentation, you go, okay, well, you
know, one week we had this conversation four days in a row. Maybe
what happened that week is the ex was traveling, right? So maybe there is,
stuff you don't know. Could always be an explanation. Yeah, so

(14:18):
that's really good. So you talked about documentation and
I'm gonna get into kind of I think a sticky topic next. With
all of the news that we are seeing right now around ICE
raids, and not every organization is going to experience this
or be in a position where they need to consider it, but those that might, what

(14:41):
Speaking of documentation, I see why you
let into this. You know, what I would do right now to be proactive
and what I am telling my clients is do your own
I-9 audit. Go, you know, it doesn't have to be some big
overblown thing and you hire some outside company to do it, although you
certainly could if you wanted to. If you're a large organization, I would

(15:01):
suggest that. It's really too much. Insurance got way too many
things on their plate. But you, if you're
small enough, go through your I-9
folders, which should be kept, of course, separate and under lock and key.
So if you have physical folders, go through them,
take the time to do it. Especially companies, smaller

(15:22):
companies sometimes have very long-term employees. So
you look in the file and you think, oh my gosh, he's
been here 18 years. I never got anything from him because 18 years ago
it was you and two other people. So, you know, that's what happens,
right? You look at these old offer letters and you think, what was
I thinking? Because times change and laws change. And

(15:43):
we're seeing a huge shift in the law in
immigration. So Just be on the
safe side. I'm glad you brought that up because some people
probably will never experience this. You don't know that. You
don't know that. ICE has been going after,
and this is nothing against ICE. ICE is doing what it's told to do.

(16:05):
It's job. You know, I do feel bad for the guys because, you know, people,
they are the visible presence. And so people throw things at
them and scream at them and all. And it's like, OK, so he is trying to do his
job. You know, we need to come at it from
a higher level if we're going to try to change what's going on. However,
you don't know what they're going after now. And it does seem

(16:27):
there are a number of U.S. citizens that are being swept up
in these raids. You want to try to guard against that because once
they're gone, my experience with a couple of my
clients that have had this, they're gone. You
cannot find these folks, and you can't, there's
no place to appeal. Like, okay, look, I have the I-9 folder.

(16:48):
I've got all this proof that this person is a U.S. citizen or
has a green card, which is almost as good. And
look, I've got the paperwork, and sure, it's expired,
but you don't have to. That's what the law says.
You don't have to go back and renew it if they should tell
you. Well, there are certain things they have to renew. Like

(17:10):
for a U.S. citizen, your passport's expired, your driver's license expired,
okay. You don't go back to that person. It's actually against
the law. You don't go back to that person and ask for, hey, I
need another driver's license. Now, you can send an email and say,
by the way, you know, it's expired. If they bring it in to you, great. If they
don't, you don't hound them over it. But you can

(17:31):
show, look, they had a U.S. passport when
they first came to work for us. Yes, it expired last year,
but that means they were a U.S. citizen and still are. But
you, even if you have that paperwork, you don't know where to go to
appeal. the, you know, the grabbing of
the employee. And that's what I find so frightening. We

(17:53):
always had processes in place, you know, you could, you could, you get
a hearing and the employer is allowed to say, no, no, no, it's
been with us five years, here's the paperwork, you know, I think you made a mistake. And
you can see there have been a lot of mistakes made. We don't even have
that. So to guard against it, to be proactive, to
do that I-9 audit, absolutely, that would

(18:18):
No, no, you definitely don't, for sure. Do you think,
I'm curious just from your future forward thinking, do
you think we're going to see a change in I-9 re-verification
laws. Could be. Yeah. It could be really interesting that
It's something right now that so many HR

(18:40):
folks let go because they, you know, again, overwhelmed with everything
else they have to do. And if you're not, required to
do that, why would you? But to me, that would be
an easy, an easy place for
the administration to say, hey, wait a minute, you know, we've
never required re-verification of U.S. citizens. Let's

(19:02):
do an executive order or whatever. It would take a while to pass a
law, but let's start requiring this. which
would again add a huge burden to an already overburdened
HR staff. So I hope that that doesn't happen, but
That was your question? Absolutely. And again, Kelly, you and I could talk for hours
and hours. What are some upcoming legislations or regulatory changes

(19:24):
that you believe HR leaders really need to get kind of proactive and
I am seeing, well, the DEI, of course, is
huge. And I think that that is going to remain under attack for
a while. immigration will remain under attack. So,
you know, you have to be very vigilant about that. There are
a number of cases coming up, Supreme Court

(19:45):
cases, that could affect the workplace. One
thing I want to point out is a Supreme Court decision that was already made, was
made two years ago, and that was the Groff v. DeJoy case, which
really raised the standard of undue burden for a religious to
get out of accommodating someone's religious beliefs. So
if you have not gone through your files,

(20:08):
you know, in the past, looked at your policies, looked at your handbook in
the past two years, because trust me, the law has changed. I
would do that because so many things have changed. And
understand how you disseminate new policies, whether
you send them around by email, whether you've got an online handbook, Be
ready and pay attention to some of these decisions coming

(20:31):
out of the court now they finish for the year Although there's
talk that they might issue a few more decisions over the summer because there are
so many pending cases Yeah, but they pick up again
in October. So be aware in October One
of the things I do every morning, and again, sorry, HR,
because you have many things to do, but I come in a little early. I

(20:51):
literally, I'll read three newspapers online. I read the
blogs. I read SHRM, the daily SHRM thing, like,
okay, what fresh hell is this? Like, what are we dealing with today?
What new laws are out there? and be proactive about
keeping up with the laws. There's a couple of really good legal blogs that
are written for HR, and it doesn't have all the boring legal stuff,

(21:13):
but it has the really pertinent stuff for HR. I would sign
on to some of those laws. Don't you guys have one of those blogs too? We do. We
do. You know, and that'll keep up with your wage an hour, which
very well could change, but keep up with it.
And again, you don't have to be a lawyer. You don't have to be a lawyer. You're already an engineer with
AI. You're a doctor with COVID. You're

(21:34):
a religious expert now. You're a psychologist with all the mental health
issues in the workplace. So you don't have to
be a lawyer, too. But you might consider some
of these legal blogs that are written for HR. They do a morning
summary, and it just puts at the top of your mind Okay,
wait a minute. If that's going to change, should I

(21:55):
revise my policies now? Because lots of times when these laws go
into effect, they're not retroactive. So like if
you've got a non-compete already in place, you can keep that
non-compete. Yeah. Because that law is not going to be retroactive. So
things like that, just a quick morning scan,
Man, non-compete. We could do a whole podcast on that. Kelly,

(22:18):
as always, this is great. Thanks for sitting down and chatting with me about what
we should be considering in the employment law space. Thank you, Shari. It's
I hope you enjoyed today's episode. You
can find show notes and links at thehrmixtape.com Come