The Great Resignation: Key Steps to Reduce Employer Liability

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MP: awesome okay well i’ll get us kicked off Thank you everybody for.

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MP: staying with us through some technical difficulties so we’re going to go ahead and kick off the webinar.

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MP: Thank you for joining us here for an MP webinar covering the great resignation key steps to reduce employer liability.

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MP: i’m katie crater marketing specialist here at MP For those of you joining us on on a webinar for the first time, and he is a full service human capital management company we offer a complete suite of products and services to support organizations, through the entire employee lifecycle.

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MP: Some of those services include recruiting HR payroll benefits administration time and attendance and compliance assistance.

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MP: We support our clients with cutting edge technical solutions, as well as proactive reliable service and deep HR and payroll expertise at MP, we are wired for HR that help our clients succeed by aligning their people strategy with their business schools.

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MP: i’m excited to introduce your presenter for today’s program Eric summer Eric is an employment business law attorney for small to mid sized businesses who’ve been practicing law since 1999.

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MP: Eric began his career at a couple of prominent small law firms between 1999 and 2001.

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MP: And then founded his own firm the law offices of arrogant server in April of 2001 was a focus on employment Labor and business law for employers business owners and for employees, as well.

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MP: Eric has been an invited guest speaker at a number of professional organizations over the years from ny SS CPA to the nys bronx Bar Association.

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MP: The HR HR Roundtable group the practicing law institute incubators and co worker spaces and many other arenas and has been a guest on TV, radio and video podcast.

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MP: Eric conceptualized and now runs a weekly live talk radio show a video broadcast employment law today on i’ll katie and I.

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MP: Eric has been interviewed about employment law and business law matters by news publications and trade publications.

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MP: raised in valley stream long island New York Eric graduated cum laude from binghamton university and graduated with honors and in an academy academic award from hofstra.

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MP: University of law, he enjoyed spending time with his wife and son and southern servant suburban New Jersey, along with music playing guitar creative writing working out and cycling.

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MP: For over 20 years the law offices of Eric m server has defended counsel and represented small and midsize businesses in matters of employment law and Labor law and business law.

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MP: Including compliance with employment laws and defending companies and Federal and State courts from wage and hour lawsuits discrimination claims and the Department of Labor investigations and proceedings.

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MP: The firm’s business law practice includes business information and incorporation partnerships investor agreements and contract drafting and commercial litigation.

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MP: their clients are spread across various industries as well as technology hospitality and entertainment professional services retail finance marketing and advertising are just to name a few areas.

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MP: For more information, please visit the law offices of Eric and servers website at www that server dash law COM, just a few housekeeping issues before we get started here today, if you would like to submit a question.

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MP: During the program please use the q&a feature at the bottom of the screen, we will be sending out the recording of today’s webinar later, along with the slides and with that i’m going to hand the MIC off to Eric.

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Eric Sarver: Great and Kevin Thank you so much that katie Ray want to thank you, when I thank samantha.

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Eric Sarver: week for inviting me to speak today and very much want to thank Nathan need spaghetti for your tech help I love complex things run employment Labor law.

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Eric Sarver: The tech side of things, is not my forte so thank you all for and to everyone out there in the audience today it’s very nice to be able to speak with you.

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Eric Sarver: about an area that i’m very passionate about that being employment law and business law so.

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Eric Sarver: i’ll start with this disclaimer right no attorney worth their salt would not state that this training is for attended for educational and informational purposes only so the information and the materials that i’m offering.

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Eric Sarver: There for general informational purposes only and what i’m saying does not constitute legal advice and should not be considered legal advice.

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Eric Sarver: And what i’m talking with you all about today does not form an attorney client relationship between my practice and you the viewer.

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Eric Sarver: And nobody should rely on any of the information in this webinar as the basis for taking a specific legal action since different businesses have unique facts require an individualized decision making process.

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Eric Sarver: So party seeking advice bacon so with me Eric solver or the officer comes over or with knowledgeable legal counsel and should consult with such legal counsel familiar with their particular circumstances.

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Eric Sarver: Alright, so with that out of the way let’s get to the fun stuff here the presentation topics which would be.

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Eric Sarver: An introduction to the main issues we’re dealing with today, some of the problems and quandaries and solutions that i’m offering for you here here with this webinar.

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Eric Sarver: So we’re talking a lot about the great resignation, which is very much tied into the cover 19 pandemic and let’s just start a little bit with about what what that is what it’s about.

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Eric Sarver: So the resignation to many of you know, but if you don’t if the trend that started in around 2021 where workers have been voluntarily resigning from the jobs at record rates.

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Eric Sarver: In mass, as they say, and in April 2021, for example as code 19 vaccination rates increased we started to see evidence of.

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Eric Sarver: Over 4 million Americans quitting their jobs and by June, that was an additional 4 million more who quit and by September 2021.

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Eric Sarver: We were seeing numbers of 4.4 million people, on average, and quitting their their positions, and this is, according to the Wall Street Journal.

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Eric Sarver: that the fact that the percentage of people who are leaving their jobs is higher now than it has been in two generations.

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Eric Sarver: So what are some possible causes of that, and this again relates to our legal topic the the causes for some of the people residing in such large numbers include wage stagnation.

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Eric Sarver: and increasing rising cost of living economic freedom, provided by stimulus checks and might I add.

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Eric Sarver: Enhanced unemployment insurance was driving many to think Why am I going back to this job I don’t like I can collect unemployment and figure out the next steps.

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Eric Sarver: Well, we saw record numbers of pandemic burnout emotional psychological, physical related people’s jobs and careers.

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Eric Sarver: And record job openings which sounds funny reunion wage stagnation think, but as more people were quitting the openings gave people a false sense of security that well.

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Eric Sarver: I quit my job with that and the job and his place i’ll find something and, of course, in line with that we see want workplace flexibility with the change of remote workforce for the work from home environment.

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Eric Sarver: A lot of people know that if they quit their job in New York, they make it a full time remote position in California or Alaska but not limited as much by geography.

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Eric Sarver: And of course safety concerns through the coven 19 pandemic and job dissatisfaction have all been.

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Eric Sarver: Reasons people have given for resigning from their jobs and those last two points about job satisfaction and safety concern through the covert 19 pandemic, I will discuss as related to our three of our sub topics today.

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Eric Sarver: So there are three issues that i’d like to speak with you about this this afternoon.

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Eric Sarver: One has to do with the have a great resignation thing as related to non compete agreements non compete clauses like what are the basics, what are the trends we’re seeing are the issues that are enforceability coming up.

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Eric Sarver: And what are my recommendations for you as an employer.

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Eric Sarver: And the second issue, which we’ll get to has to do with the rise in unemployment insurance claims that are based on the the theory of constructive discharge.

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Eric Sarver: How that looks for people as employers, why the greatest nation and the pandemic we’re causing such heightened rates.

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Eric Sarver: And what we can do that the risk to you as an employer to stave off these type of claims.

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Eric Sarver: And then the third thing we’ll get to you has to do with discrimination claims being being on the rise in light of people asking for their different disability based accommodation request for their jobs undercover.

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Eric Sarver: And some of the implicit bias we’re seeing come out more that’s being shared about on social media.

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Eric Sarver: In articles that talk about implicit bias and the Green resignation, so we got three issues there we got legal quandary non competes unemployment insurance claims and termination.

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Eric Sarver: So getting to the non competes the basics right so many might know a non compete or non-competition agreement is a contract.

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Eric Sarver: It could be a standalone agreement or part of an employment contract, which prohibits employees from working for a competitor or for opening are.

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Eric Sarver: Competing business usually in the same scope of services for a certain geographic location, very often.

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Eric Sarver: And it has to do with a period of time, when the employee is working for your company and and the timeframe after they leave the job, whether by termination by resignation by neutral quitting if that’s possible.

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Eric Sarver: But that’s actually what the non compete is really about.

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Eric Sarver: And amid this mass exit and mobility from the grid resignation what we’re finding is that think a lot of employers have ramped up.

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Eric Sarver: Enforcement of non compete agreements they’ve been trying to force them in order to keep employees with them on the job, meanwhile, as the.

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Eric Sarver: Employers are wrapping up this enforcement of non competes hoping to number one stop residing employees from competing with them.

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Eric Sarver: And number two hoping to set an example for other employees to say hey if you’re looking to quit so quickly keep in mind that you would have a non compete, and it will be so easy to go somewhere else, what was happening that.

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Eric Sarver: A one one with that trend we’re seeing many courts are reluctant to find non compete agreements, reasonable and they’re being held as unfun enforceable.

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Eric Sarver: Because of the economy, because the numbers of unemployment levels that have gone up and down in last two years.

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Eric Sarver: So the courts are often we locked in, as I mentioned to enforce it on compete joining economic hardship and the way they see it is.

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Eric Sarver: That during a time of taking a hardship, the restriction on where the person can and can’t work for themselves or getting a new job.

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Eric Sarver: is just an undue burden on them financially, so we have this disconnect right, we have one more people quitting more employers scratching their heads, saying geez I keep.

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Eric Sarver: Losing people I don’t want to lose this compete i’m going to enforce it on the peace and the Court saying no we don’t want to enforce these so we also have to look at the fact that renovate resignation.

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Eric Sarver: And it could be not enforced, for the reasons that existed before the career as a nation which is.

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Eric Sarver: Many people, many companies they’re non compete agreements were attracted to broadly they covered entire sector industry.

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Eric Sarver: Who are the non compete periods to them, and if you listening today have a non compete that you have three employees that’s you know four or five six years old.

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Eric Sarver: Based on an old template you want to recommend respectfully realizing those ideally six to nine months.

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Eric Sarver: Post termination is a good reasonable timeframe for non competes with 12 months, maybe consider, but over that is often considered too long and struck down.

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Eric Sarver: And of course the geographic scope might be something to consider when enforcing a non compete because many employers, employees for that might have to move.

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Eric Sarver: To get a job in their industry, so if the scope of the geography, where they can’t compete with you is too broad that Dean, to move to work might be considered.

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Eric Sarver: unreasonable and therefore unenforceable and, of course, the flip side of that, as I mentioned a moment ago, is that with remote work being so prevalent.

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Eric Sarver: You can counter that the broad geographic scope is not a reasonable because people can find me mo positions.

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Eric Sarver: across the country but i’m just trying to give you a general sense, it is a growing trend you’re trying to enforce non competes and it’s getting harder and harder to do so, for various reasons.

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Eric Sarver: So, here are some interesting questions that the courts that will be will look at it, which i’ll talk about.

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Eric Sarver: And I say this because if you know what the courts are looking at when they examine the piece that are being challenged Member many employers will challenge their employer and say you can’t afford to stand up.

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Eric Sarver: it’s a reasonable or many employers will challenge an employee and say hey Julian I found out that when you quit last month, you went to work for the competition right across the street doing exactly what we do.

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Eric Sarver: using all of our secret sauce and our trade secrets and that’s just not acceptable So what are the courts, looking at well.

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Eric Sarver: They look in questions like such as is the employee getting anything in exchange for signing the non compete.

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Eric Sarver: One way that you as an employer can make your non competes more enforceable is to offer some kind of the added payment or consideration for that employee when they sign a non compete.

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Eric Sarver: Perhaps for getting certain bonus or additional training or you could actually have a non compete where let’s say you want to go past 12 months.

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Eric Sarver: For the non compete but you’re worried that will be strict that struck down, you can offer the employee say at the 12 months to give you a six month thing payout.

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Eric Sarver: For your full salary and that way, the person can argue too much, but economic hardship, because they’re getting paid as they work for you and you’re keeping that person out of this out of the circulation for competing against your company.

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Eric Sarver: Now the question becomes the courts have been looking askance at non compete enforcement when it comes to company they’re fired employee.

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Eric Sarver: And you might say, oh the important resigned, but what happens if they resigned claiming the shock the discharge right because construct the discharge, if proven, is basically a form of termination.

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Eric Sarver: And since the courts are looking more strictly at non competes with a person was terminated if the person was constructively discharged, even if they resigned.

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Eric Sarver: If they met those elements I get to this presentation, they might have an easier time getting out of their non compete.

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Eric Sarver: So what would I recommend for you as as the employer is watching today um well first off, I would recommend respectfully that you analyze your non compete agreements and your templates.

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Eric Sarver: Right take a look at them determine whether they’ll they’ll make sense when they still be relevant and valid in a post pandemic work world.

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Eric Sarver: For example, if you’re hiring remote workers consider expanding restrictions on future employment in terms of where they might be able to work phone.

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Eric Sarver: Number to look at the laws from each State in terms of like how they may impact your company’s non compete agreements.

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Eric Sarver: So you’re in New York based company let’s say hypothetically speaking of New Jersey based or Connecticut.

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Eric Sarver: you’re hiring an employee, now we really and they will live and work in California well you’re not competing even written for you, not for your dedicated employees or your local New York employees.

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Eric Sarver: But California has new rules now that can overturn a non compete for their residents who live there and work them.

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Eric Sarver: If they’re, for example in Colorado or in California, or the Oregon Illinois have a salary threshold that says like up employees, not making.

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Eric Sarver: X dollars per year and then another pete is an undue hardship so just take a look at your state laws and friendly recommend respectfully talking to your employment law counterweight find a knowledgeable experienced employment law attorney to help you through these issues.

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Eric Sarver: You can also ask your remote hybrid in place to confirm their address Where do they live, where they working from.

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Eric Sarver: And and make sure that if you are going to selectively enforced dog compete agreements, but you prepare a written record about why you’re doing so.

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Eric Sarver: This is an interesting point here what a company’s say you know what i’m not going to enforce this thing non compete against.

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Eric Sarver: Against Joseph because Joseph worked in tech and it’s not that competitive, but I am going to enforce a non compete against Joanna who worked in this other field of marketing.

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Eric Sarver: And they both started, and then the same day, and I said what salaries and what am I conclude that she’s being unduly penalized or or treated disparately discriminatory basis because of her gender.

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Eric Sarver: Or maybe she had a history of objecting to unfair Labor practices and she might say this is retaliation, this is the company getting back to me and whether that’s true or false if that’s the perception like it could be grounds for a lawsuit or claim being filed.

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Eric Sarver: And you don’t want to spend all this time, money trying to return and defeat a plane so make sure you are trying to be uniform with how you enforced non competes but there’s a reason why you don’t enforce one document that reason.

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Eric Sarver: And some other than strategic considerations to have minder consider whether revising employment agreements make sense in not just non compete but non solicitation clauses.

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Eric Sarver: And do this with again knowledgeable employment law Council before he terminate your employees or before you change compensation.

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Eric Sarver: And remember that, with people quitting in large numbers, with the great resignation it’s important to do this as soon as possible, before you’re faced with an employee who resigned.

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Eric Sarver: And then clean the truck the district discharge and file for unemployment insurance and trying to challenge your non compete.

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Eric Sarver: So, speaking of unemployment insurance perhaps they can I segue into our next issue.

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Eric Sarver: And that is the topic of unemployment insurance claims which have been on the rise, since the pandemic now.

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Eric Sarver: Of course they’ve been on the rise, for a number of reasons, even before the query resignation started.

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Eric Sarver: Obviously, when people with jobs people in jobs are closing down company shutting their doors massive layoffs be people being downsized for load.

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Eric Sarver: All that broke loose and 2020 a lot of people were applying for and getting unemployment insurance, but what i’m talking about today is different phenomenon.

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Eric Sarver: I was talking about those people who have resigned in the last day to yourself from their job or not fired.

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Eric Sarver: um but they’re still finding front implement insurance and they’re seeking it under a theory of constructive discharge.

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Eric Sarver: And they’re either claiming that they were in an unsafe environment a discriminatory environment or a toxic environment that was just too toxic for them to work in so, even though they really quit.

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Eric Sarver: For all intensive purposes they had no other choice they were fired and then i’ll talk about enforcing unemployment insurance claims rather objecting to their enforcement during the great resignation as an action steps for you as employers, but you can take.

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Eric Sarver: So let’s break this down one by one.

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Eric Sarver: unemployment insurance claim just a very kind of brief background, many of you might know but, just in case something if you’re new in business and you knew it to be an employer, you know that.

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Eric Sarver: When an employee file a claim for employment, insurance, assuming of course that they meet the criteria of having worked for your company for a certain period of time that they’ve made a certain amount of money per calendar per quarter per calendar year in the quarter rather.

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Eric Sarver: They can file if they were fired with that not for cause now for misconduct, not for job Benjamin and they will let go and they file for unemployment insurance, very often, they will receive it.

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Eric Sarver: If an employee is employees claim is valid they get up to 26 weeks of unemployment insurance weekly or less depending on will only work for your company and how much money they made and the most important thing won’t confess that, if that’s the case.

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Eric Sarver: But when employees leave a job, many of us think well if employee quits right that’s in the story they’re not gonna get unemployment insurance i’m going to protest that well not so fast right and if they’re leaving due to.

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Eric Sarver: A claim of right unsafe working conditions or if the claim, as I mentioned intolerable working conditions, different than unsafe, but it could be the same.

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Eric Sarver: unlawful discrimination their suffering that may qualify them for unemployment insurance benefits.

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Eric Sarver: So we need to talk a little bit about what I use this term now I think four times constructive discharge reconstruct the termination.

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Eric Sarver: So what I mean by that, what are the legal elements, like the checkpoints, the criteria and check off.

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Eric Sarver: For employee to show they’ve been constructed with this charge and once we cover that will answer the question why each claim rising so much and last year, why are we seeing the double the number of people.

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Eric Sarver: claiming the unemployment insurance department of Labor will say this person’s leaving the claim termination that person that they created constructive discharge so.

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Eric Sarver: To say what this is about the unemployment claims constructive discharge.

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Eric Sarver: must produce evidence to demonstrate that number one their work conditions will be deemed intolerable when taken as a whole, there are so unpleasant or difficult or debilitating.

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Eric Sarver: unpleasant difficult or debilitating such that are reasonable person and that employee shoes what I felt the need to resign and then employee of course fills in as well.

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Eric Sarver: Now the employee doesn’t have to show intend to drive them out there on the show that this that the company’s conspired did this on purpose to make them Quinn.

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Eric Sarver: it’s enough they showed the employer acura deliberately creating a toxic environment or or condone one.

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Eric Sarver: and conditions that may be considered unreasonable to work through but, as I mentioned before, include unabated or on and repair and remedied dangerous that workplace.

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Eric Sarver: Around Cobra 19 think, but I was OSHA violation that companies are being threatened with discrimination or threats of violence in the workplace.

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Eric Sarver: So that’s a little bit about the constructive discharge claims and So what are we finding now when it comes to like the.

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Eric Sarver: dependent well and then I guess the action steps are taking a moment a lot of people who would have otherwise tolerated some very unpleasant conditions in their work.

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Eric Sarver: They were at a company they didn’t like it was happening, they felt their boss was a big bully you know they felt a little bit abuse.

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Eric Sarver: When they got a year in quarantine they work from home and they were away from that environment every day they start to feel what it was like.

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Eric Sarver: A lot of them came back to work, you know hybrid or remote or hybrid rather part, remote or in person and suddenly their tolerance for this way down.

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Eric Sarver: Right and they start to say you know what this is intolerable and with the Greek resignation like we’re seeing so many articles written.

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Eric Sarver: And so many newspapers, importantly, talking about this, you know about employees becoming aware of their writing employees like not tolerating.

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Eric Sarver: And toggle work conditions so it’s giving employees more I guess you know more boldness at him and we’re both of challenge.

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Eric Sarver: conditions that they wouldn’t have challenged, five years ago, and with the atmosphere and social media people sharing about their.

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Eric Sarver: work harder than tick tock and on Facebook and on Twitter it’s encouraging the sort of almost like a revolution of sorts week so.

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Eric Sarver: That, I think involved explains the increase in constructive discharge claims and people who are claiming it’s a toxic work environment, maybe they’re just more of a sensitive basis or lower threshold to what they would be willing to tolerate.

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Eric Sarver: Another issue comes up is it with coven 19 there was so many safety issues.

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Eric Sarver: That workplace have to be aware of that many companies could not keep up with the vaccine mandates and the changes in that with the private vaccine mandates options, you can have with safety present plans for.

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Eric Sarver: Infectious airborne disease and with all the different rules around masking and not masking a lot of companies were getting complaints.

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Eric Sarver: And they were they were firing employees or the employee would quit and the employee would say I had to quit because it was so unsafe there was not a coven.

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Eric Sarver: 19 safe workplace so for all these reasons, we’re seeing a lot of a rise in unemployment insurance claims based on contract the discharge.

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Eric Sarver: And you as a company can be i’m hoping for that, in terms of liability now only for their unemployment insurance, but if that constructive discharge claim is tied into an.

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Eric Sarver: basis of discrimination, the place was to racist me to work out, for example, or two sectors trash being harassed.

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Eric Sarver: Now, you may have also a federal and state and see law discrimination case in your hands so let’s talk about terms of action steps.

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Eric Sarver: How do you respond to let’s Take, for example, a frivolous constructive discharge plan, how does the employee respond to this and protect themselves that’s number one.

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Eric Sarver: And the second DEMO discuss number two is it’s nice to respond to be reactive, how do you get proactive and hopefully stave off or try to reduce the number of these claims as they come.

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Eric Sarver: So let’s talk about responding to an employee’s constructive discharge clean, we take a separate T first, if you focus on mine.

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Eric Sarver: I was on a call with a corporate for them of the clients i’ve been speaking grab the whole morning.

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Eric Sarver: Thank you for bearing with me so responding to a frivolous contract the discharge plan number one gather evidence to make your case what I mean by that specifically.

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Eric Sarver: Well gather documents, if the if the employee says that he they had to quit they were they were constructively discharge terminated, what have you like, because.

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Eric Sarver: The workplace was full of toxic bullying and you as a company ask them to do unlawful things.

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Eric Sarver: So look at that look at that look at the record look at the evidence I.

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Eric Sarver: gather their attendance records today miss work, very often, when you for coming late with a frequently missing work for other reasons could that be a telltale sign that.

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Eric Sarver: Something else is going wrong on with them number two look at the resignation letter.

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Eric Sarver: Does it stay there, concerned about the company about the treatment or is it a very nice Thank you so much, I love working here the pleasure being with you all.

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Eric Sarver: I hope, to come back one day if there’s ever a change in my plans, so what are they saying and the resignation letter.

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Eric Sarver: and equally important look at the employees record look at communication with that employee before they quit like what are the written protest, they have or lack thereof.

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Eric Sarver: about problems in the workplace, they give you a quick example a client of mine called me about 10 months, nine months ago and said we had someone who quit.

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Eric Sarver: and claim constructive discharge, and I said Oh, why that’s happening a lot, these days, and then what happened and they said well.

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Eric Sarver: she’s been sexually harassed her and we asked her do illegal things with cooking the books.

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Eric Sarver: I said that sounds terrible How, then, when she went before they said a year and a half, I said Okay, I said, but in that time did she ever write any emails.

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Eric Sarver: Any reading view any texts and he calls the any log any record of her displeasure with being harassed by the membership team there as.

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Eric Sarver: Well, now did she ever claim any other concerns she ever seek out counseling with the HR department well, no.

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Eric Sarver: Well, what what is her her documents and communications look like like they were all positive she got promotions raises and she so it does sort of.

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Eric Sarver: cast a little bit of skepticism on the person’s claim so look at your look at your documentation look at letters have to do with employees reduced hours basically just gather evidence about their you what you know witnesses about that person’s experience working for your company.

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Eric Sarver: And so it was mattress after you can take for a frivolous or even a non disruptive discharge claim, if you want to respond to it, you want to show that you did actually have a safe working workplace and whatever she has to port that that theory that that position.

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Eric Sarver: So how do you as a company proactive i’m always a big fan of proactive versus reactive but i’m hearing, like everyone else, sometimes I will wait until you know, like that annoying you know toothache.

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Eric Sarver: got to me, and I wish I going to dentistry much earlier, so we, I think we all do, that some some area of our lives but i’m always encouraging my clients.

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Eric Sarver: To be practice when it comes to employment machines, so how can you like you’re out there listening, today you thinking well i’m so glad I have no problems with.

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Eric Sarver: I haven’t had a single employee complaint about chuck discharging no one’s complained about like an unsafe workplace.

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Eric Sarver: But how can you nonetheless take practice steps to make sure that that most like doesn’t happen, I can guarantee it, but to make it less likely.

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Eric Sarver: So number one take some steps as best you can to eradicate implicit bias and discrimination in the workplace, what I mean by that and This again is a frequent the underlying issue and and Tom working conditions.

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Eric Sarver: Of a constructive discharge plan so hire companies that is MP MP wired they do a lot of consulting and trainings for anti harassment get those combination, make sure that your.

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Eric Sarver: Employees at all levels, we can have these trainings and know about implicit bias.

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Eric Sarver: have meetings with your employees to talk about what implicit bias looks like like and how you can all be proactive and dipping in the body.

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Eric Sarver: And also update your protocols federal state local around safety like over 19.

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Eric Sarver: Around workplace conditions and include trainings like MP offer isn’t going to reduce likely to toxic workplace bullying harassment.

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Eric Sarver: And also, this is especially important now, when you if you have remote workers or you’re so busy keeping up with you know the hectic pace of are changing times and.

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Eric Sarver: You know if you still keep your eye off the ball and say like what’s happening with your employees, maybe hire an HR consultant to look into your employees.

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Eric Sarver: You know, talk to the employment law attorney about other steps you can take to proactively stave off constructive discharge claims, but are they based on a toxic environment discrimination or safety concerns.

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Eric Sarver: So we’re also seeing in addition to non compete challenges and in an excuse me, in addition to the challenges with constructive termination claims, there has been a rise of employment law things employment discrimination.

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Eric Sarver: During the great resignation, there has been a business or a trend, and this is basically post pandemic employment law says that we we litigate expected see continuing to rise and so let’s talk about this and it’s talking about their impact on the.

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Eric Sarver: nation on these planes okay so we’re we being attorneys in this formula field are seeing an increase in.

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Eric Sarver: pandemic related like distillation claiming many our workplace dispute dispute wrapped in a covert 19 context, so, for example, we as employment law attorneys are seeing many more cases.

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Eric Sarver: of people who argue that they would they’re disabled assembly based on covert I think it might even be my next slide here.

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Eric Sarver: People who might be say they’re disabled and they are requesting a reasonable Commission request.

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Eric Sarver: Maybe with the theme of covert 19 they have they suffered long haul coven and they can’t shake sometimes having a stable.

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Eric Sarver: And they need to work remotely or to shrink their hours some kind of is called a reasonable accommodation request to ask them for their company.

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Eric Sarver: or some people during the pandemic what happened mental health issues were on the rise, people with you know the isolation, the fear of death.

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Eric Sarver: The loss of loved ones like the constant quarantining many people at increases in depression, anxiety and ptsd.

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Eric Sarver: and substance abuse disorders, so when those folks ask for me as well Commission question their employers, a lot of employers said no, they didn’t know that that personally had a right.

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Eric Sarver: To our regional combination or the employer knew the person had disability, but the accommodation request was so.

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Eric Sarver: Such an undue hardship, it would have broke the Bank would have cost company too much money to implement.

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Eric Sarver: It would have been a logistical nightmare and operations or when other employees at risk, so they said listen i’m sorry Fred I can’t let you work remotely because you’re the head chef in a restaurant you can’t cook the meals really.

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Eric Sarver: I can’t put you in the basement away from one because you have to be in the kitchen and I can’t let you come in, if you’re truly RSA disabled where you can’t get the vaccine, because you might.

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Eric Sarver: Get sick from it, or because it wouldn’t help your you’re converting colon because you might now spread it over to other.

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Eric Sarver: immunocompromised patrons, so there are just examples that we’re seeing a rise in disability discrimination cases with more people, disabled from covert and coven related.

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Eric Sarver: issues and more people requesting wisdom accommodations, but we are also seeing a rise in race discrimination cases now what, why are we seeing some of this.

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Eric Sarver: Well, with, and also with sexual harassment discrimination cases too, so why the increase in sexual harassment cases well read before coven a lot of companies were completely in person.

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Eric Sarver: And so, people were on their best behavior or better behavior because as human nature, when you go into certain office, at least for most people, not all.

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Eric Sarver: And you’re around people and you’re in the conference room where you’re on the elevator and you’re dressed up this shirt shirt and tie too.

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Eric Sarver: often than not be a little more respectful and have more things in check, and if those employees you’ll do our discriminatory harassing didn’t know that or didn’t care.

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Eric Sarver: manager right there to see what’s going on, and they can stop things and nip it in the bud, but when the people went remote.

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Eric Sarver: Many people took the liberty to end it properly flirt with their college or they will only when they were just or they were discriminatory and they were like harassing women in their office by.

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Eric Sarver: You know, an inappropriate use of the chat box or in zoom or or through texting them or you know off off the clock make calls and asking them for dates and so.

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Eric Sarver: So a lot of increasing in harassment virtually and then with companies being virtual there was no one right, the police and guard these things, so all these contribute to an increase in discrimination claims.

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Eric Sarver: and increasing and disability base Commission claims and an increase in disability and safety claims.

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Eric Sarver: So that’s how the great resignation and the pandemic or titan situation last week and the greatness nation add to this because people who were leaving who thought you know.

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Eric Sarver: I kind of felt like I, like my employer who wasn’t too far to find me, maybe because of my you know, religion or my gender, but I can’t quite prove it.

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Eric Sarver: i’m just gonna move on or get different job some of those folks are saying you know what i’m resigning, I have no other job and say and.

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Eric Sarver: You know why not call it employment watch any of the flip side, maybe we can leverage like mine claims discrimination against the company to get higher sermons you don’t get six months and we’re going to year.

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Eric Sarver: So we’re seeing both these issues covenant team, dynamic and diverse nation, increasing distribution list and that’s important for you as a company to know, because you might have an increased chance of getting a letter from an attorney or a complaint filed record against you.

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Eric Sarver: So what are some action steps that you as employees can take to protect yourselves and later I just talked about.

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Eric Sarver: Well, number one you can get with an employment lawyer, you know work with people like myself i’m happy to talk to anybody on this call afterwards.

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Eric Sarver: Work with us and to make sure that you’re following the state and city and federal human rights around termination and abuse.

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Eric Sarver: Make sure that you’re having trainings of retaliation and make sure you have good processes in place for things that is progressive discipline and documenting.

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Eric Sarver: poor performance and and and make sure you’re firing people the proper way and HR companies such as MP can also help with some of these trainings around terminations and doing them the correct way.

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Eric Sarver: Also important, and I think npr for this as well to train your managers and to train your supervisors and.

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Eric Sarver: Having the spot discrimination in the workplace, how do they spot and micro aggressions and you know, they should be looking for more than just the most obvious horrendous.

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Eric Sarver: Cases of black and white, you know clear discrimination, you know distribution come to more forums and just adjust, but then say.

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Eric Sarver: A KKK sticker on someone’s desk or or a horrible racial certain it comes in many implicit forums and too so really train your supervisors and managers to look out for that they can nip in the bud.

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Eric Sarver: And when you do if you do have a complaint filed against you a grievance an internal complaint discrimination retaliation or an extra one.

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Eric Sarver: Make sure you get in front of that immediately when you hear word of it when the employee comes to it informally or formally.

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Eric Sarver: don’t wait until the employee quits claim constructive discharge, and then, as it were, a demand letter to you asking you for your salary a service rather or phones last.

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Eric Sarver: You know I always say to people who need it, and say oh you’re an employment lawyer that’s great if ever I know they’re getting sued for employment discrimination or a wage in our relations i’ll give you a call which is great, but.

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Eric Sarver: I always like to help people before they get to that crisis so just something to keep in mind.

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Eric Sarver: And I talked a little bit about an Ada combinations under coven and disabilities Commission keeps rising.

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Eric Sarver: And so, just to maybe give some color and context about that keep in mind that official comedy you know you as an employer have to accommodate certain employees, physical and psychological and mental disabilities.

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Eric Sarver: And there are federal and state and city laws that governess, there is the Ada the Americans with Disabilities Act.

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Eric Sarver: As a men in 2008 when the Ada there’s some New York City human rights law and State law that Max as well.

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Eric Sarver: And to find what a disability is it’s very broadly defined by the state and three laws in New York state in your city, so you have to look at say is your employee disable.

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Eric Sarver: Do they have a right to an accommodation request, and is there a request reasonable, you know can.

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Eric Sarver: You grab a request, without being financially in the red or in the hole right, can you regret granted permission request without.

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Eric Sarver: Having your operations dollars will help so if you’re a walmart and an employee, you know, we had one whole coven needs to cut this get it on three days a week, until they get better.

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Eric Sarver: it’s not an undue hardship financially if you’re a mom and pop pharmacy with three employees and one wants to go to a part time or one third of their hours.

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Eric Sarver: or 70 you’ve lost a 30 year workforce almost so that could be a problem, so look at like how the Ada defines.

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Eric Sarver: This ability and it means no accommodation request and make sure that you document your responses accommodation requests, you know if you can’t offer regional combination.

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Eric Sarver: The analysis has not stopped with you saying no I can’t goodbye right that’s easily by yourself discrimination lawsuit.

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Eric Sarver: What you need to do is engage in a dialogue with a process with your employees need to.

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Eric Sarver: have an interactive and processing talk about if you can’t grant a certain combination hey i’m sorry Susan I can’t think that you working entirely remotely because you are the onsite tech support for our company.

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Eric Sarver: need to help you know people like Eric when he’s in his office they can you can’t figure out how to toggle from the zoom to the zoom without notes, so you need to be there.

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Eric Sarver: Maybe in person in that situation have have another combination handy as to what else can we do to meet your disability.

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Eric Sarver: and still have to perform the job functions, so my point is it’s an interactive process of responding to a reasonable accommodation request.

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Eric Sarver: And you want to document the medical help you can actually earn points to get a medical documentation.

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Eric Sarver: right if you need to terminate employee because let’s say they you can accommodate them there.

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Eric Sarver: You know, a golf bit like like say if you run a task to be completed.

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Eric Sarver: And you know, one of your drivers go is going blind with cataracts and then all they can do is drive they don’t do paperwork they not available for this patch and.

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Eric Sarver: You might let them go, you know it’s just it’s sad but you can’t have them driving and if another job for them to do but make sure you do all this.

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Eric Sarver: termination or review, with the help of an employment lawyer or HR service companies, I mentioned again in and P, I truly believe this company they’re I think they’re excellent resource people so i’m not at not not shy about the name out there and.

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Eric Sarver: And I would say that, in terms of it presents a preventing your office related claims, make sure you train your managers.

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Eric Sarver: document your own safety protocols that you’re putting into place.

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Eric Sarver: And document your safety policies, you know you can I recommend going to OSHA or going to your employment law turning and saying we must make sure we’re OSHA compliant.

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Eric Sarver: With CDC compliant around covered and we’re complying with the federal state and city municipal healthcare questions such as vaccines in the workplace or.

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Eric Sarver: or a policy around the infection airborne disease control what we want to make sure that if another wave of.

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Eric Sarver: The Covenant team virus hits and this waving proves to be saved, listen to the vaccine, I hope and pray not but if that were the case.

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Eric Sarver: Are you up to date with all the different safety protocol, because if you are it becomes harder for somebody to quit.

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Eric Sarver: and accuse you of having unsafe work conditions.

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Eric Sarver: And even harder for them to say that you retaliate against them for objecting to them safety in the workplace, if you can prove to them that you actually have a safe working condition.

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Eric Sarver: So make sure you train your managers to know what to look for in terms of safety issues and violations, not just a quarter, but with any kind of.

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Eric Sarver: physical safety impediment in a workplace and make sure that when your employees are resigning in mass that you can address their safety concerns before they bring them up as a basis for a lawsuit or a charge or a complaint.

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Eric Sarver: So what are some final recommendations that I have, and you know for important in light of the agreement and nation.

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Eric Sarver: And again we’re seeing so many changes, but the workplace, these days, a lot of issues come up around like workers compensation.

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Eric Sarver: And around employment and contracts being a force and around termination but what are some final recommendations I might recommend as you’re going forward well one.

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Eric Sarver: Again, in the spirit of being proactive take a look at your work environment work with an employment law attorney an HR consultant.

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Eric Sarver: and keep your work environment, free from bullying and harassment and hostility again i’m happy to give you guys and then, if you need to.

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Eric Sarver: Ensure changes affecting employees or maybe legitimate business reasons, you know you might know in your mind why you are.

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Eric Sarver: Removing someone’s title or demoting bammer not giving them a reason, but if you’re not a documented those legitimate reasons that person may from a different theory is why you’re doing that, and if that person.

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Eric Sarver: Believes that they and three other African American workers i’d say like we’re not given promotions, and because of their race, and you need to make sure that the evidence is clear that that’s not the case.

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Eric Sarver: And, of course, you want to make sure that you talk with your employees prior This, I think, an important point, prior to making this difficult change to their position.

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Eric Sarver: right if you offer a different position, make sure the responsibilities in the total compensation or comparable to their prior position.

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Eric Sarver: And also, if you need to make a unilateral and substantial change give you employ notice that change, so you can engage in dialogue and reduce the risk of disgruntled employees will feel.

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Eric Sarver: blindsided and shocked and my feel betrayed might seek out and employment law attorney that handles plaintiffs cases to try to argue payment of discrimination, even where none exist.

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Eric Sarver: So these are just some some point, then, of course, another point I would mention is to take a look at your Employment Agreements.

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Eric Sarver: made sure that I talked to him earlier today you’ve got think employment agreements that have non compete clause and take a look at those clauses.

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Eric Sarver: You know, are they up to date, are they relevant to your remote workers are the timeframe reasonable.

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Eric Sarver: Are they keeping in mind what the courts are holding in second certain quarter appeals cases that are coming out time and again against.

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Eric Sarver: Non competes so looking at your Employment Agreements and maybe you can even have instead of a non compete.

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Eric Sarver: a trade secret protection contract or an nda So then, if an employee tries to leave and let’s say you compete with you, you can to them if they’re taking your trade secrets.

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Eric Sarver: Or if the risk of them so doing this is some examples of some tips, I recommend to proactively get in front of these liability factors and maybe cut down the chance of bad things like these happening to you as an employer invited the green resignation.

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Eric Sarver: And with that i’m happy to open up for Q amp a and any questions that anyone has about anything i’ve either I talked about today, or maybe related topic that you’d like to talk about and i’m happy to take a shot at answering your questions.

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Eric Sarver: I can.

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Eric Sarver: feel I can pose a couple days i’ve gotten recently for people but i’m just curious if anyone has any i’m happy to open the floor for any and let’s see if I can see any textbook here i’m chat box rather.

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00:56:43.350 –> 00:56:48.120
MP: yeah I don’t think we have any Yet if you want to go over some and see if any come in.

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Eric Sarver: sure.

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Eric Sarver: Okay well.

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Eric Sarver: Why, she would love to give some faqs that i’m getting, but I think it’s great to go back to some of the ocean things I talked about earlier, the points about ocean, you know state my safety protocols to keep also raise your hand raise it says what I said.

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Eric Sarver: Somebody with Tracy I don’t.

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Eric Sarver: See the question, but if there’s a question i’m happy to answer it.

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MP: yeah and again just a reminder all Q and a’s can be put into the Q amp a feature at the bottom of the screen.

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Eric Sarver: Kevin Would you mind reading the question to me please if that’s Oh, I think I see their mind.

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Eric Sarver: Okay, a question how successful I don’t know if I should give the name and I don’t want to embarrass anybody i’m just a question how successful having employees been with these losses and particularly harassment or bias related.

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Eric Sarver: that’s good question you know it’s like it’s um as attorneys and we rarely give a direct exact answer a lot of maybes and it depends, but the answer is.

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Eric Sarver: So we’re seeing higher to a question where I mentioned higher rates of filing we are seeing the courts and come out in favor of employees, a lot more on the disabilities ratio cases and we used to see, and last year alone.

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Eric Sarver: So I think, in that sense of been a higher success rate about disability museum is exactly what I mean by that well.

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Eric Sarver: It could mean that the case it survives what’s called summary judgment so because most cases take a long time to get the trial, so you know cases that were filed in 2021 or last November.

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Eric Sarver: Most likely have not been settled, but if his environment and dismiss the survivors called some interference that can be assignment during being treated with more difference so we’ve seen.

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Eric Sarver: Some success rate and it’s really hard to say exactly that varies across are based on where you’re located so your company example in upstate New York is not seeing the same level of.

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00:58:53.400 –> 00:59:01.380
Eric Sarver: Pro employee courts and investigation from the eeoc as you’re seeing down in New York City, you know we’re in Manhattan or brooklyn based, for example.

420
00:59:02.610 –> 00:59:10.740
Eric Sarver: But I would say that they’re definitely seeing a rise in the number of these lawsuits to answer that question, more precisely, i’d have to have is a remake of this.

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Eric Sarver: Presentation when we come back in about six months to a year right we’re more in cases like or decided or settled, but you know these cases are on the rise and the courts are looking at them much more seriously, so I hope that answers your question him.

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Eric Sarver: Anybody have open oh you’re welcome okay.

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Eric Sarver: seen any other another question, I think I saw a raising hand but I don’t Oh, I see another.

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Eric Sarver: Okay, a question coming in DC employers using their own doctors for Ada compliance, the question.

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Eric Sarver: I do see some using the company doctors.

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Eric Sarver: But, more often than not, people will get a diagnosis, or an update on their condition from their doctor and a third doctor gives a va medical opinion it’s not, in my opinion, why strategy to have your doctor to seek to examine their person and give a counter opinions.

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01:00:15.390 –> 01:00:22.080
Eric Sarver: It could give the appearance like that you’re trying to either intimidate them from following their their claim, you know the doctors.

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Eric Sarver: Point if they don’t actually work with that person that not their regular physician coming in, could appear bias, if ever challenged in court, so I definitely recommend you know staying to a to a employee well as having our doctor examine you maybe that’s.

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01:00:40.950 –> 01:00:43.710
Eric Sarver: Did I Oh, I see a common they’re.

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01:00:45.060 –> 01:00:53.100
Eric Sarver: All counter opinion right, yes, thank you yeah the counter opinion it doesn’t always work that you know well, what honestly is more important is to look at what.

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01:00:53.580 –> 01:01:01.560
Eric Sarver: they’re asking for is in combination, can you do it as a too much of a hardship and can you document that you know, few people are faking disabilities from a doctor.

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Eric Sarver: Usually the you know the ones that say like I have disability without a doctor’s note, you have to be suspect that but most doctors won’t.

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01:01:08.610 –> 01:01:13.320
Eric Sarver: Go out on a limb with their medical licensing and say you know this person has.

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01:01:14.160 –> 01:01:29.100
Eric Sarver: ptsd and, in fact, they don’t, so I hope I answered your question I think it’s a dead, thank you, glad to have answered um let’s see any other questions 1234 I see five in the chat box and for notes, I must be missing one respect and scroll down here.

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01:01:32.100 –> 01:01:37.020
Eric Sarver: Kevin do you see another question, I see four notes and you’re missing one.

436
01:01:38.070 –> 01:01:40.080
Eric Sarver: Oh yeah there it is okay 123 yes.

437
01:01:41.310 –> 01:01:51.420
Eric Sarver: I saw a notice of a raised hand button I didn’t see the person type of question in the in the queue and I wonder if anybody else has any questions me happy to answer them.

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Eric Sarver: You know, one question i’m getting a lot of.

439
01:02:03.960 –> 01:02:12.060
Eric Sarver: was in one issue and a lot of questions about his makes a ton of President says the company’s has to be like to have an employee who you know filed.

440
01:02:12.720 –> 01:02:23.910
Eric Sarver: a complaint with ocean or with terminal Labor and around coven 19 issues or with around termination and you know that person is a terrible employee and they wanted to fire them before.

441
01:02:24.240 –> 01:02:32.520
Eric Sarver: They file a complaint and they even suspect the person political plan to try to protect themselves from from being fires, and you can find me I engage them protected activity.

442
01:02:33.090 –> 01:02:43.230
Eric Sarver: How to handle those situations, and I find that the timing of the termination can be a key element of whether or not his views retaliatory so.

443
01:02:43.590 –> 01:02:52.500
Eric Sarver: You want to be careful about putting some time and distance distance between they’re protected behavior and determination, if you can, and you know, continue to build.

444
01:02:53.310 –> 01:03:04.530
Eric Sarver: A realistic valid truthful record of their performance, before, during and after the time they engage in that protected activity, being an OSHA complaint or department Labor.

445
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Eric Sarver: that’s an issue i’ve seen a lot during the pandemic the employee complaints on the rise again a combination of people being less powerful positions that they find dangerous or having more perhaps desperation fear around the pandemic what’s been covered in the pandemic so.

446
01:03:22.440 –> 01:03:32.430
Eric Sarver: Those are some issue thing to to cover I think I know Kevin you want to meet you leave in time for you to begin So do I have another minute or two or what’s my time might want to make sure.

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01:03:32.550 –> 01:03:33.660
MP: You have a few more minutes.

448
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Eric Sarver: Okay, great.

449
01:03:37.950 –> 01:03:40.500
Eric Sarver: Well, when I just also make sure that any other questions I missed him.

450
01:03:40.710 –> 01:03:44.520
Eric Sarver: He does anybody else have a Q amp a question, I can answer for them.

451
01:03:48.300 –> 01:03:54.270
Eric Sarver: Okay, we have a couple ready that’s great um I would say that it’s also important with non compete agreements.

452
01:03:54.780 –> 01:04:05.550
Eric Sarver: To be be careful not to give them to independent contractor consultant, this is a big issue i’ve seen before dependent, but with the pandemic.

453
01:04:06.240 –> 01:04:10.020
Eric Sarver: And many people going into remote positions and being consultant or contractor.

454
01:04:10.620 –> 01:04:18.660
Eric Sarver: And with many people leaving their jobs, and then the companies have to hire like a independent contracting consultants until they find a replacement.

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Eric Sarver: don’t give that the consultant, a non compete agreement because remember non compete So these are for employees, only the reserved for business partners.

456
01:04:29.550 –> 01:04:38.490
Eric Sarver: In the same llc or corporation or an LP they’re reserved for a certain the top level employees, but not for freelance contract, you know contractor.

457
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Eric Sarver: The whole theory is that they have control and autonomy over their schedule their ability to work for others and so.

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Eric Sarver: If you have a soccer game, and you have anything any language in there that mentions the word non-competition non compete.

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01:04:53.790 –> 01:05:06.750
Eric Sarver: Number one you’re essentially invalidating the entire non compete clause or even worse you’re invalidating like the independent contractors status and classification, so they later on clean with their misclassified and shipping an employee.

460
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Eric Sarver: The Department of Labor will look at that factor as a key factor that tips, the scale in favor of employees position.

461
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Eric Sarver: And those are really the main issues i’ve seen like coming up, you know, during the pandemic, I would say that you know, maybe, perhaps in conclusion me take a moment here to take us out after the QA.

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Eric Sarver: I would just note that the pandemic itself, you know it’s creating many issues and employment law it’s constantly changing a changing landscape changing field out there, so it’s really important, you know to not recognize that there’s a deep dissatisfaction.

463
01:05:48.480 –> 01:05:55.650
Eric Sarver: and marginalization happening with employees, whether it’s true or not, as how they feel and that’s what they’re communicating with one another and to their employers.

464
01:05:56.220 –> 01:06:02.190
Eric Sarver: So it’s vital to maintain a good dialogue with the employees and a good strong working environment and.

465
01:06:02.610 –> 01:06:08.400
Eric Sarver: You as an employer, you need to protect yourself and be updated on the latest federal state and three laws.

466
01:06:08.850 –> 01:06:16.500
Eric Sarver: And I can help you with that and so can you know each IMP but another employment lawyer Council if you’re in another State let’s say you’re tuning in today from.

467
01:06:16.770 –> 01:06:25.260
Eric Sarver: You know Illinois or john think or Florida, that you can find qualified, the key is to find qualified knowledgeable employment counsel.

468
01:06:25.920 –> 01:06:41.520
Eric Sarver: That experience these type of situations and can help guide you company, so you know with with a lot of preparation, and with good at good information and good help, I think we employer as business owners managers can all get through this time is very challenging for everybody.

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Eric Sarver: With that I pass the microphone over to you caitlin again I want to thank you so much caitlin and samantha or your staff who helped make this possible and who might even speak i’m really.

470
01:06:52.260 –> 01:06:56.160
Eric Sarver: Grateful you’re letting me talk today and appreciate every chance to have the MIC so thank you so much.

471
01:06:57.030 –> 01:07:02.070
MP: Thank you so much Eric lots of valuable information on the great resignation any.

472
01:07:02.550 –> 01:07:10.350
MP: questions that were not able to be answered, again, we should be able to reach out in five to seven days, I think that they were all answered so we’re all good to go.

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MP: And phr team is here to help guide your organization on any HR compliance issues, if you would like to learn more about how we can assist your organization.

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MP: Please visit our website, set up a short 15 minute call be sure to join us next week on the same day and time for our webinar on how to reduce legal risk in 2022 covert vaccine policies return to work and more.

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MP: Is there a website to register and to see the full calendar of upcoming events and available resources will be sending out a recording of today’s webinar along with the presentation slides this afternoon thanks for joining us and have a terrific day.

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Eric Sarver: And even if I make one more point so sorry I forgot to mention.

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Eric Sarver: any questions you can call me my number and office number dedicated line is 917930868 forth Eric 791-793-0864 and a website has my email address and contact information at www dot sovereign SCR vr hyphen law COM, thank you.

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MP: Thank you so much, have a great day, everyone.