This transcript was created using an automated transcription service and may contain errors.
Education and keeping up to date is just, I think, the most important thing you can do. Because even if, you know, you’re facing headwinds and you’re trying to get things… you’re telling people, well, we have to do this to be compliant and no one’s listening to you, at least you know which way to push the sails and which way to, like, get everybody moving, right?
Welcome to The JoyPowered® Workspace Podcast, where we help HR and business leaders embrace joy in the workplace. I’m Susan White, owner of Susan Tinder White Consulting, an HR consulting practice. Joining me is my co-host and dear friend JoDee Curtis, owner of Purple Ink and Powered by Purple Ink, a professional network that I’m a member of.
Today’s episode is focused on employment law for 2023. The topic is actually a selection from our listeners. We do periodically a listener’s choice survey, and we heard back from many of you, and we had actually two winners, this one and a training Q&A. Thanks to all of you who voted. Please be on the lookout for future listener surveys. Now, neither JoDee or I are lawyers, so we thought it made sense to invite someone here to help keep all of us and you up to date on some of the employment law happenings. Our guest today is Gina Carrillo, who you may remember. We’re inviting her back as her first episode with us back in June of 2021, which was entitled “You and the EEOC,” was very popular. Back then Gina was a trial attorney with the Equal Employment Opportunity Commission. Since then, she’s founded her own firm, Carrillo Law PLLC, which is based in Phoenix, Arizona. She’s also had another son since our last podcast conversation named Leo. Gina, you’ve been really busy. Gina, welcome back.
Oh, thank you so much for having me back. You know, I continue to listen to you guys all the time, and love learning from you and listen to you pretty much every single episode. So thank you for having me again, as not just a past person, but as a fan.
Aw, thank you. So please start us off with maybe telling us a little bit about upcoming legislation that you think may affect HR or employees?
Absolutely. Well, I know that, you know, some of your listeners will be well adept. I think actually, today is the day that the Pregnancy Workers… or the day of taping, I guess, but Pregnant Workers Fairness Act and PUMP are going into…
They’re going to go into effect. Tell us a little bit about those, if you don’t mind, maybe the highlights of those two.
Absolutely. So for many years, and then during my time at the EEOC, we worked a lot on trying to make ADA laws, Americans with Disabilities Act, apply to pregnant workers. You know, oftentimes when women are pregnant, they have limitations on what they can do. Sometimes lifting restrictions all the way up to bed rest and everything in between. But the Title VII didn’t really cover all that, and because it was a temporary condition because of pregnancy, the ADA didn’t always really cover everything. So luckily, we’re in a position now where Congress passed – and it’s been put into effective legislation that makes it a law – to accommodate women who are not only when they’re pregnant, affected by certain conditions, but also post-pregnancy, hence the PUMP Act to make sure that women have abilities and breaks and everything they need to be able to do what they need to at work post-childbirth.
Well, I say hooray. Long… long overdue.
It’s… it’s amazing, really, that we’ve gone so long without that.
Absolutely incredible, you know, that… that we had the Pregnancy Discrimination Act put in effect in the early 90s, and it took us almost 30 years to say, hey, wait a minute. It’s not just discriminating against them for being pregnant, but also literally everything else that comes with it.
Right. Right. Interesting.
There’s also other things that have been coming down the pipeline, too. You know, it’s maybe not in the legislation process yet, but I’m sure everyone’s seen memos coming from the NLRB, DOL really going after severance agreements, in particular non-compete clauses, non-solicitation clauses, things that are really restrictive, not just put into place for high-level executives, but for lower level employees and restricting what, if anything, they’re able to do after their employment ends with their current employer. And I think that’s something that given the current state and, you know, lots of layoffs and risks is something to be highly aware of when many companies are sending out lots of severance agreements.
Yes. Right. I think that’s really past due, too, so I’m very glad about that one.
Yeah, absolutely. And then on a state level, we’re seeing a rise in things like paid sick leave. You know, for example, I’m in Arizona. Arizona is a paid sick leave state, but that is starting to go to other states as well, requiring employers of pretty much any sizes to provide their employees with paid sick leave and not retaliating against them for using that leave. And there’s also a movement in some states such as California, Colorado, to have paid time off, which also goes hand in hand with the Pregnant Workers Fairness Act to require not just the FMLA protections that we know so well, unpaid leave, but think requiring smaller employers and also paid leave for people who are on extended leave of absence. There’s also been a lot of movements for things like discrimination in hairstyles. I know in Illinois, they have had just passed recently the CROWN Act, which says you can’t discriminate against somebody for wearing their hairstyle naturally. And I know that I think there’ll be a lot more pushback on this. But I know in California, there’s been a lot of movement towards completely banning background checks, which is kind of surprising. It’ll be interesting to see where that legislation goes and what… what happens with it.
Yeah, that I had not even heard of, so that’s very interesting.
And Gina, obviously, we’ve had so many changes in state laws in the past… I don’t know, five to 10 years maybe, that has just made all of this so complicated. Especially… I mean, even Purple Ink, we only have 15 employees, and yet we have two people who work in different states – right? – which is just making it very complicated for companies. Do you have any advice for them?
Yeah, absolutely. I think it depends a lot on the size of your company, but it is something… I think there’s a lot of value and benefits to be gained from remote work. You can really get any number of talent from around the country. But it’s something, like you said, you really have to take into consideration what those laws in those states are going to do and how they’re going to affect you. Because it’s not where your company is, it’s where your employees are, as we know. Depending on the size, you know, the more national-size companies, usually the advice I give is, maybe not apply the strictest laws from all over the country, because that can be overwhelming and a big change for a company, but maybe divide up by regions, like, you know, the northeast, what are the most restrictive laws there? Southeast, whatever, you know, and kind of choosing and picking and choosing where you’re going to draw those lines in order to make not only cost-effective ways of doing it, but manageable. It’s just like you said, extremely overwhelming, not only how much there is but how fast it’s happening.
Yeah, it’s crazy. Gina, how can our listeners help their organizations embrace laws that are changing even when they would prefer not to change?
Not just not prefer to change, but probably a bit of a feeling of “we just did this, now it’s changing to that?” Right? It’s hard to keep up with. It’s always something new and new articles coming out. But I think first and foremost is maybe trying to understand the policy behind this change, the public policy. Why are local lawmakers putting into this into effect? You know, we have a history, I think, in this country of being fair and equitable towards smaller businesses. So if they’re putting a restriction on smaller businesses, what’s the theory behind this? Why are we trying to protect a certain class of employees? And maybe understanding and empathizing with that fact would help push that moment forward. Like, you know, especially, like, for example, again, maybe somebody who’s a man in the workplace understanding, like, yes, it is a burden, it can be burdensome – not unduly burdensome, but burdensome – to make these accommodations for your pregnant employee. But thinking about why those are in effect and our history, why that’s going forward, is a reason to maybe help with the… to embrace those laws. I think another way to do that is to think about just general morale. And I think that goes hand in hand with policy. But while this might be more cost-effective to your business, obviously, I’m a true believer in the happier your employees are, the more money you’re going to make and save in the long run. They’re gonna want to stick around, they’re going to want to be with you, and they’re going to be loyal to you. And I think that’s a really, really good way to think about embracing these changes. It can be hard and expensive in the immediate future, but in the long run, you might even be seen as a, you know, somebody at the forefront of this… of this stuff and why it’s so important. If that just doesn’t work and, you know, you’re not as swayed by the emotions and empathy as I might be, you know, looking at the bottom line. Right? We’re talking about a cost up front, but if you sit down with either your, you know, HR person, your in-house counsel or whoever and say, okay, what is this lawsuit gonna cost me if I don’t do… if I don’t comply with this new law? Or what are the fines, in actuality, and how are they going to affect me? In addition to, if it’s a new law, states are going to be looking to enforce it against people, right? It’s clearly at the top of their mind. What is that bad press gonna do for your business and your bottom line? What, uh, you know… they don’t… You don’t want to be the one that somebody’s making an example of. So if it’s, you know, if it’s not empathy, maybe just looking at the cold, hard dollars, why this might be good for your business.
I think those are all good suggestions. Goodness.
So Gina, are there any differences in your mind between small versus big company compliance? And if so, what might those differences be?
Yeah, I think there’s… there’s a lot of, you know, differences to it, right? We’re not just looking at multiple states where an employer might just be in one, two, all of them, right? But we’re also looking at the different number of employees. Like we, you know, FMLA, there’s 50 plus employees, you might have 10, right? So you’re looking at not just which laws apply to you in your state, but then further, which laws apply to you based on the number of employees you have. But again, to use as an example the Arizona sick leave law, if you have less than 15 employees, a different standard applies, whereas more than 50 – or more than 15, another standard applies. So it might vary with the law. So you have to really think about, you know, there’s all these different laws to be in compliance with and it varies a lot based on your size and who you’re with. I think, again, talking about the bottom line, you know, as a lawyer, I’m never going to tell you not to follow the law or do anything like that. But if you’re looking at it, and the cost of implementing something is blank, greater than your fines, that might affect your compliance as well. You know, what… what can you afford? What you think is going to be important for you in the long run financially, you know, depending on what your resources are, you just have to prioritize what you’re going to do. So you can’t always do everything. But I think there are more things that are, you know, like newer laws, I think those are going to be much higher on the priority list and lower laws, maybe with lower fines might be a little bit lower. That would be the best way.
I think that’s good advice, to triage. I mean, you want to do everything right. We always do. But you’re a risk mitigator. And I think that your, you know, approach makes good business sense.
So Gina, we had… this topic today really came to us from our listeners as one of the areas that they wanted to hear more about on our podcast, and so we had different variations of a couple of questions that we’re combining. But the first one is, what are the best resources or maybe compliance tools that HR professionals and business leaders might use to keep up with all these different changing laws, company size, what state they’re in? Any advice for them on this?
Yeah, I mean, you know, what I can just share really what I do, which is I make it a habit, I spend about five to 10 minutes a day making sure to read the headlines, because, you know, if it’s made national headlines, it’s definitely a big deal, right? But then going to our more HR-specific sources and even, you know, the bigger law firms like Littler and Ogletree or also going to SHRM and things like that, seeing what their big headlines are, right? What are they talking about? What are the hot button issues? And if they’re saying that there’s… something is a new law that’s going into effect, that’s for sure something I’m going to be spending my time reading that day. It’s just continual curiosity and self-education, I think, is important beyond our own continuing education requirements. Right?
Any particular journals out there that you read or any associations that you have – other than SHRM, which I think is great – that you stay on top of?
Yeah, absolutely. So I know one of the big ones I honestly just do is the Department of Labor and EEOC newsrooms. They put out not only just what their new guidance is, what they are basically pushing for the law to be – right? – what we know from their guidelines they’re saying “this is the way we interpret it,” aka, “this is the way we intend to enforce it, hopefully the courts are going to pick it up.” So reading their newsroom is not only saying what kind of cases they’re bringing, but where they’re headed and where their head’s probably at, right? There’s also some smaller companies other than SHRM that I use, at least. There’s the Business Management Daily. They have newsletters every day on various topics. They do employment law ones or they give advice on, you know, like, to be just a leader in HR space. It’s a really good resource that I’ve liked using and it’s good to read every day. There’s also ones… I know lots of people out there read The Morning Brew, they also have this subsect The HR Brew, which I not only like reading their newsletter, but they also have a good LinkedIn group that they update very regularly, so I can follow that and see what everybody else there is talking about and what their concerns are, right? It’s not just what’s affecting your company, but maybe other like-minded companies and things like that. And then, of course, you know, the biggest source of what you can do is usually, in my opinion, is doing your internal and external audits of everything that’s going on. Right? As you’ve read the stuff, you know the things, you’re… you know, you know what the Pregnancy Workers Fairness Act generally is going to require, you don’t have to be a legal expert to have an idea that, well, they’re going to have these basic requirements, right? So looking back at some of your policies and saying, well, is that compliant with this? Is this something that we’re going to be able to do? And whether you are able to do that internally or have to do it externally is up to you.
Yeah, that’s great advice, really.
And you mentioned the Department of Labor newsroom. Can I just google “Department of Labor newsroom” and it’ll find it for me?
Yeah, I mean, one of the good things about these organizations is they – or these agencies is that they keep their, like, the EEOC one and DOL one, they keep it up on their website, they keep it updated, they put basically all their press releases up there. You know, because they’re a government agency. They keep it pretty well organized. And you can see everything that’s going on, not just in your region, nationally, things like that. But even just googling things like NLRB or DOL, hitting that news section of Google really can just give you a good idea, too, of everything that’s going on and staying apprised of it.
It hits my price point, which is free. So I love free resources. Yeah.
Yeah. Well, that’s so good. So Gina, what other advice might you have for HR professionals and business leaders regarding employment law? And I know that you can’t really give advice, because this is… we’re not asking you for any legal advice, but just tips that you have.
Yeah, I think, you know, my… I think I might have even said that the last time I was here. But just education and keeping up to date is just, I think, the most important thing you can do, because even if, you know, you’re facing headwinds and you’re trying to get things… you’re telling people, well, we have to do this to be compliant, and no one’s listening to you, at least you know which way to push the sails and which way to, like, get everybody moving, right? How to be a leader in that sense is to just know what’s going on and what’s important in the world and what is most out there, but keeping your head up, too. I guess that’s not really the legal perspective of it. But you know, it’s such… such federal, like, legislation as the Pregnancy Workers Fairness Act, and going all the way down to, you know, the City of Chicago stuff, the CROWN Act, they have requirements for sexual harassment training and things like that, it’s really important to just stay apprised of that on an employment law perspective. So that way, when you’re talking to in-house counsel or you’re having complaints come in or you’re looking at your policies, you know what to be looking for.
Right. Great advice. Gina, our JoyPowered® question today is what brings you joy in your work?
I hate to sound like an absolute broken record here, but since… I guess to just take a step back on it, you know, I left the EEOC about a year ago, and when I was there, my heavy-duty focus was federal employment discrimination laws, not so much the state level, but really this federal narrow issue. And in the past year, learning about everything that has gone on not just on my state level, like, I’m in Arizona, learning everything about… there is about Arizona employment law here, but learning about it in other states through my work in consulting with other businesses and talking to them, because they obviously have employees in other states, just constantly learning about this ever-growing landscape. I think we’re in a kind of – not kind of, just a very exciting time for being in this space. And there’s just so much changing, so learning, growing, that just… that brings me lots of joy.
I’m just grateful there’s people in the world with changing employment laws, it brings them joy. So yay for Gina. Yay for everybody who needs to find Gina. With that, it’s a nice segue. Gina, how do people find you if someone’s interested in engaging you for assistance? I know that your contact information has changed now that you’re not with EEOC.
Yes, you can find me on my website. I can spell it out if you want.
That’d be great. Please do.
My law firm is Carrillo Law PLLC, and that’s the website, so it’s www Carrillo Law – C-A-R-R-I-L-L-O-L-A-W-P-L-L-C dot com. And on there you can find my contact information. My email is just Gina at carrillolawpllc.com. And you can also find me on LinkedIn just searching for me. So I’m around, please reach out.
Beautiful. And we’ll put that in our show notes, too. So if you’re listening to this and you didn’t have a pen with you, please come back and look at our show notes.
Well, thank you so much for joining us again, Gina. And we hope you have a JoyPowered® day.
Thank you for having me again.
It was fun. Thank you.
Susan, we have a listener question today that is, “What suggestions do you have for people feeling stuck? How can I gain more HR exposure if my manager isn’t willing to train me or give me other work to make you a more well-rounded professional?”
That can be so frustrating when you’re hungry to learn and grow and you may not be in the right environment or with the right boss. So, you know, some ideas I have would be, first of all, can you find a mentor? Maybe somebody else in the HR profession outside of your company who you might meet through a SHRM event or through some other civic or community event. And ask that person if you couldn’t maybe do some conversations with them, if they’d be willing to be… serve as sort of a mentor for you. I think also being really active in your local HR organizations, whether it… whether it’s SHRM or some other organization, you know, go and meet other HR people, see what they’re talking about, see what’s hot on their worry list. You know, you certainly could go back to school to get a degree in HR if you don’t have one or a master’s in HR, I think you get a chance there just to really learn some of the real core competencies needed in the profession and so it’s certainly an avenue, you’re going to meet a lot of other people doing what you’re doing, and you may get some good ideas. And then JoDee, I know you and I are big fans of becoming SHRM certified or HRCI certified, which really helps you continue your own personal journey of learning and gives you some credentials if you decide that maybe this environment’s not the one you want to stay in. And then you don’t even have to go after degrees or certifications. There’s classes that you can take in HR on LinkedIn Learning, I’m sure your local universities, and specialty credentials that you might want to think about acquiring. How about you, JoDee? Any other ideas?
Yes, just – I love all of those suggestions and I think those are terrific, but I also would take you back to say, are there things you specifically asked your boss about that… that they actually turned you down, or are you waiting for them to give you those opportunities? Sometimes it’s just, hey, I really would like to learn more about benefits or something else, and ask for that specifically and directly, as opposed to making the assumption that he isn’t willing to train or give you other work.
Yeah, sometimes we feel like we’re getting that vibe they’re not interested, and maybe we haven’t been direct enough with them. So listener, good luck. We’d love to hear from you…
Yeah. Boy, that 80% is a huge number.
Oh, my gosh, I know. JoDee, do you agree that it isn’t really very hard to find clues on resumes or in applications that may indicate a person’s age?
Oh, totally. Yeah. So many people just put their graduation date on there. Now, it does assume that you graduated when you were 22. Right? And if you went to school and graduated later, they… they wouldn’t really know. Or they put their first job on there or…
Right, right. There’s lots of clues.
So if we can figure it out, no surprise that sophisticated AI can do even better at trying to ferret out the age of an individual. An expression that I used to hear voiced a lot when discussing candidates for hire or promotion was, “How long of a runway do you think they have?”
Oh, my gosh, when you think about it, that is just on the face of it discriminatory, right? Because you’re trying to figure out how old are they? Do you think they’re worth… they’re worth investing in? Once I hit my 50s, I can remember many times someone much younger than me in corporate America asking questions like, “Susan, how much longer do you want to work?” you know, “Have you thought about when you want to retire?” Oh, my gosh, you know, I probably didn’t take offense to then, but now that I think about it, you know, maybe they were sending me a message.
Yeah. It is funny to think of that question with you, because you did retire, but you’re still working. Right? So doing something differently. So.
No, very true. You know, now, JoDee, recognizing that you’re much younger than I am, do you ever hear it or see it in how people relate to you or how clients talk about candidates or talent? Do you ever pick up on any of these vibes?
Yes, and certainly, you know, Purple Ink does a lot of recruiting, so we’ll get questions from candidates, “Do you think my age is going to influence my ability to find something?” We have clients that say “We’re looking for someone young and high energy and new to this.” And I do think it has gotten – the age discrimination, at least from my perspective, appears to have gotten better, you know, when through COVID and even after COVID, as many companies are struggling to hire people, they… all of a sudden they have a new view on older people of what they might bring to the organization. So.
Glad to hear that. You know, I think people are in much better shape today. They’re living much longer. They want to be actively employed, or they need to be actively employed. You know, I guess I hope that older workers are feeling more comfortable and confident to work as long as they want to.
Yeah, and I just want to say too, about those resume clues. I’m not – certainly not suggesting that they try and hide information, but there’s no reason, for example, to put your college graduation date out there or to include a job you had 25 years ago either. So, you know, you don’t have to…
…bring it up to them.
Right. Right. I think that’s very fair and good advice. Thank you.
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