Why HR Must Keep Its Head on a Swivel in Today's Climate with Louis Lessig

In this episode of the HR Mixtape podcast, host Shari Simpson sits down with Louis Lessig, a Labor and Employment Litigator at Brown and Connery, LLP. They delve into the pressing legal risks that HR professionals often underestimate, including retaliation, intermittent leave, and the critical need for effective management training. This conversation is particularly timely as organizations navigate the complexities of employee experience and the evolving landscape of remote work policies, especially in light of AI's growing influence in HR.

Listener Takeaways:

• Learn how to proactively address retaliation and its impact on organizational risk.

• Discover why effective management training is essential for mitigating legal issues.

• Explore strategies for developing comprehensive social media and remote work policies.

Hit “Play” to gain valuable insights that can help you enhance your HR practices and protect your organization!

Guest(s): Louis Lessig, Labor and Employment Litigator, Brown and Connery, 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 Louis Lessig, Labor and Employment Litigator

(00:22):
from Brown and Connery, LLP. He frequently
speaks on compliance, workplace investigations, and
best practices to mitigate organizational risk. Louis'
legal practice emphasizes guiding organizations through challenging employment
Louis, thank you so much for sitting down with me, again, coming

(00:49):
I love having you, I really do. There are very few lawyers
I have met in my life who are you and Kelly Dobbs
Bunting. I don't know if you know her. Both of you just have this energy
I've never seen out of lawyers before, and it's just, it's very,
So I want to talk today kind of about a whole
bunch of different stuff, but I want to start with what are some of the top HR-related

(01:13):
legal risks that organizations commonly underestimate?
So I think the biggest one that we're seeing right now is the whole question
around retaliation. And the fact is that because
it is either in every single employment law or
if it's not in the employment law, then somebody filed an amendment and it's now required
as part of that law. But the problem is that it's

(01:36):
emotionally based. And so what happens is people react and
they don't think through what they're doing. It's like a knee jerk
reaction. The problem is that it's costly and
it's never a small number. The EEOC has been talking about it for like a
decade and we continue to have problems there. I
think another area that we're having and continue to have issues with is

(01:58):
intermittent leave and the concerns around, are
we doing it right? If we're treating Jane one way and
then we turn around for John, what do we do? Are we handling things
the right way? And then beyond that, we
have, I think, a massive shortage of legitimate management
training and it's creating a nightmare. Well, I guess

(02:19):
it depends on how you look at it, right? It's good for business, but that doesn't
mean that it's good for organizations because they need to really think
through what is required in their role and
The manager training thing is so interesting because every,
you know, top trends for the next year always includes a leadership development

(02:40):
component. I mean, it has been that way for years and years. And
I'm always amazed at the tactics that HR
takes to level up those managers. And
sometimes they get very process oriented. You
know, here's how you approve time off. Here's how you, whatever
the thing is. but they don't spend a lot of time getting them

(03:02):
up to speed on how does this policy actually
come to life? How do you have to think about some of the language
you're using as you talk to employees? What does actual documentation
look like? Do you have to document a verbal or not? What
does that look like? Those are a lot of skills
You're absolutely right. And I think the challenge of course is some

(03:25):
are better than others and some need more upskilling than others.
And to be fair, it's usually the first thing that gets cut. So when you're challenged,
it's a, it's a very vicious cycle and it ends up
putting us in a situation where you don't realize how much
you're at risk until it's almost too late. And it may be as
simple as saying, look, here's how we document information. And

(03:47):
even if, let's say you're using a particular system
online, where is information found? How
do I log in information? What are the kinds of things I have to
do? And it always puts us in a situation where we get nervous because
you can't assume anything. And I think a lot of us do, at

(04:10):
How do we get better at being proactive instead of
reactive in all of these scenarios? And I feel
like a big question because there's so many different verticals
or things we need to think about. But often, you
know, HR is so focused on kind of the day to day that
we're just responding to what's being thrown at us. And we

(04:31):
do need to spend that time being proactive. What are some of the things we should tackle
Well, to be fair, one of them should be subscribing to things like this
podcast. Because, you know, it's
so hard to stay on top of what's going on. I mean, it
doesn't matter whether we're talking about things like policies or
new laws or what are the top five things and

(04:52):
pick whatever network you want to listen to. Even
as simple as, well, simple, there's
a particular AI podcast that I listen to that's daily. And
they tell you in five minutes at the beginning of each episode what's
going on in AI. And the stupid thing is there's always something
every day. And I'm like, okay, who can keep up with this crap? So

(05:14):
I think a lot of it is appreciating that. It's also, you
know, it's different if you're an HR department of one, I think
there's a, has to be a recognition of a combination of
taking time for myself and what I need to learn as
opposed to trying to step back. Because you
know, if you have a team of folks, the hope would be your HR generalist

(05:35):
is handling the tackle and it may even be the
same way you may take time to go to the gym that you take time
for yourself to look at, all right, strategically, what do I need to think about?
As you've seen HR professionals who have really
focused on leveling themselves up, where do you see

(05:57):
maybe where they have the most lack of preparedness when it
comes to legal issues that they need to
be aware of or the ways they should be
I think the biggest challenge that they find is that they're not
necessarily thinking through, they're trying to get stuff done. How

(06:18):
fast can I get off my plate? Because I'm doing more with less. And
if they would just take the time, even to write it down,
We joke about how much documentation do we have, and I don't care, use
your phone, use your tablet, God forbid, use
a pen and paper, and then scan it in if it would make
you feel better. Just something that allows you to be able to step back.

(06:39):
I get very concerned that many things that we talk about,
even at conferences like this, it's not that it's massively
new or different. It's that it's a reaffirmation
of what we knew when we first got into it in terms of
what's the slight tweak to make sure we don't miss what's

(06:59):
Well, and that, it makes me think about my own education in
HR, you know, having gone and done my master's work and then getting
my certification. Those were really great moments, and
you learn the names of the concepts that you probably
have kind of already been doing. But unless you go back and revisit that, you
know, if somebody came to me and was like, hey, do you remember that leadership style,

(07:20):
that specific methodology? I'd probably have to go look
it up, if I'm being totally honest, right? I don't memorize all that stuff. but
it brings up the point of like, what podcasts are you listening to?
What ways are you staying current? You know, I think of,
I think of doctors, right? I want doctors to
be reading the most, you know, important medical

(07:42):
journals on the regular because they're dealing with my body. why
don't we have the same mentality in HR? Like our whole job is dealing with people,
right? With humans. So such a good point about really
staying close to that. As that evolves though, and
we move from kind of like the traditional way of doing stuff,

(08:03):
as I think about, you know, all the ways HR has changed even in
my career, you know, things like, you know, I joked when I
first got in that like HR was seen as like the policy place. And,
you know, there was like, how do we get a seat at the table? And now it's like, well,
you're at the table. How are you showing up from a strategic business
mindset perspective? What's the next innovation or

(08:28):
I think at the end of the day, in order to make sure
HR appreciates what's going on,
they need to be more focused on
the end. Meaning we get the
tactical, the day-to-day pushing paper, the basic,
here's the FMLA paper and you got to fill out. But

(08:50):
I think at some point you got to start looking
at, well, How do you make money in your organization and
how do you support that going forward? Because if
Right. And, and so often that becomes the critical point. In fact,
yesterday I was, while we were here, I was talking about retaliation and

(09:12):
one of the, a couple of slides were specific towards, look,
you need to do this because it's going to directly impact the profitability of
I've talked about this before. I don't know if I've talked about it on the podcast, but this concept
of HR coming to conversations with more
data, but related to people. And I'll give you an example. So you
know your organization is potentially going to create a new product next

(09:35):
year, right? They know it's on the docket. They want to start doing it. They
know that they need X number of skills to be
able to create this product, right? HR is in a very unique role
to look at the population and go, hey, we have maybe
20% of the skills we need. And so I'm going to come into the organization, the
leadership team and say, hey, you know, for us to meet this business objective, we

(09:56):
need to hire this many people with this skill set and increase
retention in these roles by X percentage. And, you know, really starting
to talk about data differently because
It is. And it's appreciating even how the
Right. Like how long does it, what's the ROI on recruitment?

(10:21):
How long does it take for you to get somebody not just hired, but when did
they become profitable for the organization? And, and what are the metrics you're
looking at to do that? Or, and I think we all
see this a lot now, which is this idea around how
many people on a given day are out of work for whatever reason.
And A, how are you covering? But B, what is

(10:41):
that doing to the culture? And how do you change that? And
that's very much the lifeblood of what HR is supposed
to be doing. To your point, there's so much more data
available today than there ever was before. And I think some
of the challenges relate to how
large your organization is to appreciate the data that you're assessing,

(11:03):
if it's not your own. Because even now, if you take
a look at, let's say, a KPMG report, that's great. But
they're looking at global organizations, which tend to have more than 25,000 employees. That's
So it, it makes life interesting. But
I also think that with a lot of systems, there

(11:25):
is so much more data available and the way in which
you manipulate that data that drives right into my
Yeah, for sure. I wanna switch gears just a
little bit to talk about some policies. And
the one I wanna ask you about is social media policies.

(11:45):
And I feel like they're so complex for
good reasons, but it's just a different world than
when I was growing up and the things that
HR needs to consider and what's... What is
them speaking just from free speech? What is
the, hey, you're not allowed to say that. Hey, that's proprietary. First,

(12:09):
how do we create a policy? That's part A.
And then part B is how do we manage it? Are
Let's break it apart this way. First of all, I don't think that you want
to start with, let's build a policy. I do think you want to start with, what
do we think is realistic? What do we actually want to
manage? Because if you have an organization that's going to

(12:32):
say, we want your password to LinkedIn, we want to know
that you're biographical information is
managed in a certain way, most of your employees are going
to flip you the bird and say, forget about it. I mean, I know from Jersey, but
come on. So you need to be able to look at it and say, what
are we actually trying to evaluate? I do think that

(12:54):
there is a world where we can talk about the kinds of things generally
that you want to say and manage and let folks know,
hey, if it's not putting you in a bad light and it's not putting us
in a bad light, that's fine. If you're going to have a marijuana
plant on your desk and take a picture and post on social media, probably a
problem, it doesn't send the right message. In the same way,

(13:15):
by the way, that if you're using AI, well,
what can you or can't you do? when you're trying to switch though
from okay we know how we want to do it in your part B and
switch to your part A that's when I think you do need to
sit down with whoever your employment counsel is or if you don't
have one touch base with one because A the laws

(13:37):
change quickly but B it may
be that you want to control one piece that you can and
one piece that maybe you can't or maybe there's a way to manipulate
behavior in a different way. I think it's become much more complex.
You know, it used to be, unless you were the social media person, nobody's
on it. And that's insane. No one's going to do that. And

(14:00):
it's also, you know, when you start looking at things like LinkedIn and the
amount of business that is done on LinkedIn, the
preclusion from utilizing that platform, or do
we hide the people we're connected with, or don't we hide?
Those are things that become very personal to individuals. And controlling
that information just

(14:21):
seems problematic culturally. So there's an
I mean, it's complex for sure. You
know, when I think about some of the other pieces, when
I think about compliance, and policy related
stuff. We saw a lot of changes in remote policies

(14:43):
during COVID, right? I mean, I know even for Paylocity, we
had a, not stringent by any means, but it was like, you
know, you can't be the main caregiver. You like, there was all
these kind of like, hey, we need to make sure you have a dedicated working space if you're going
to work remote. We had to throw that all out for COVID, right? Like during
that time, you know, because of our culture and
how we value our employees, we understood that like that quick

(15:06):
transition, you're not going to be able to do those things, right?
You're having to manage that. But now we're several years
away from that. Those policies have changed. We're seeing a lot of
return to office stuff. But that hybrid
environment is more prevalent than it
was before. And so what are some of the things that we should

(15:28):
be thinking about when we want to create these remote policies? And
again, it's going to depend on your culture, right? Because there's there's things that you might
be more comfortable with than other things. But what are kind
You definitely need to start off by thinking about how much face time do you believe
is required and why? If
you can't explain to your employees why they've got to be in the

(15:51):
office, it's not going to fly. The idea
of, I want to be able to come out of my office and walk down
the hall and talk to a person, God forbid, there is
value to that. I think we also found that in COVID, right? You can Zoom, fantastic.
But at the same time, having even the two of us sitting here now,

(16:11):
We couldn't do that. And I think we all crave that. So
there needs to be a balance and an understanding of probably
the larger question in terms of
what roles are we specifically talking about and what
are we trying to drive? Are there reasons to
have people, let's say maybe it's a three and a two, and

(16:34):
in terms of the three days that you're in, presumptively people want
to be in Tuesday, Wednesday, Thursday, and out Monday, Friday, so they
can have an allegedly a longer weekend. What
does that do to work? How are you engaging
that work? And at the same time, well, Do
we need to flex those days? Do we need to make sure that there's physically a body here?

(16:55):
I mean, look at Sharm. Sharm currently, Mondays and Fridays,
people wore Promote. I mean, even when I had the opportunity
to be on the Mac, we had gone in to, I
think we went like on a Sunday and it was like their Sunday and
Monday, Tuesday, well, Monday, they had to get a special dispensation
to open the building to have us in there. Like that's

(17:16):
the kind of stuff you start to look at, well, all right, maybe there's a reason because
you can change the HVAC and whatnot. Or maybe
it's, no, we need a physical presence every day
for our clients. And so a lot of that I think is
going to depend on the industry that you're in. So many of us, I mean, I
know so many people right now, they're like, well, I'd love to find a job that's fully remote. And

(17:38):
to me, I cringe at that. Like I want to be in.
So some of it is looking at where you're located. Some of
it is, I think, a reality around what
can happen, but I think we also have to caution folks, particularly
in HR, that are dealing with the C-suite to say, listen, we
can decide we want everybody back, or we can be hybrid, or

(18:01):
however you want to structure it. But we still need to be flexible. There's
a level of need, and whether we're talking about
the ADA or we're talking about whatever state or local law applies, we
still need to be able to work that out. Even if we've got this,
It's fascinating. It really is all the complexities that we have

(18:23):
to deal with. You know, as we wrap up our conversation, I'm
curious as you look forward, and I've joked about this before, like
five years seems like a super long time. So like maybe just the next 12 months,
what are some legal trends that you think HR leaders should really keep an eye
Well, I would be a fool if I didn't say that AI
is redesigning everything. So, in

(18:46):
some way, shape or form, appreciating not just AI
within the business, but how your vendors
are dealing with AI. And I think that when
you look at the case that Workday is currently dealing with here in California, That's
going to drive a lot. And where are the liabilities? Make
sure if in HR, you don't necessarily read the contract. You

(19:07):
may send that to legal or somebody else, but whoever you send it to needs
to appreciate the employment law aspect of those
concerns. And that's one area. I do think
that we have not seen the end or shrinkage at all
of leave concerns and independent of whether or
not there is a component of the FMLA that becomes

(19:28):
paid. It begs things that you and I worry about,
like, okay, how do we pay for it? And what does that do to other
things? Been dealing with a lot of stuff, particularly
in the union setting, where we're
concerned about stacking of time. Because the last time I checked,
as much as everybody likes to go to the beach around here, you gotta work
at some point. So, you know, we gotta deal with that. And

(19:52):
then I think the other thing is that We joke to
some degree about the challenges we have interpersonally right
now, whether it's civility, whether it's politics, whatever it
may be, people are afraid. And it's
incumbent upon HR to recognize that over the next 12 months or so, that
turbulence isn't going to change. And it's going to impact a lot more than we think.

(20:14):
The same way as I talked to my 13-year-old playing AAA ice hockey, you
need to be out there on the ice with your head on a swivel, and in the same way, HR
Such a good analogy. I love that. I love that. Well, Louis, as always, it
I hope you enjoyed today's episode. You can find show notes

(20:36):
and links at thehrmixtape.com Come back