The following transcript is provided unedited.
Louis Lessig:
It can be, and it’s interesting because back in the day when I ended up becoming barred in New Jersey and Pennsylvania, I also waved into DC. And at one point, my family came to me and said, “Well, why did you do that?” And I said, “Because on the labor side of the work that I do, you can appeal to the circuit that you’re in,” so we’re in the third circuit, “or to the DC circuit for a labor case.”
Tony Lee:
Welcome to the HR Storyteller podcast series from the Society for Human Resource Management. I’m your host, Tony Lee, head of content here at SHRM. Thanks for joining us. Our HR Storytellers podcast features practitioners and thought leaders in Human Resources, sharing stories about why they love HR, what motivates them, and what’s moved them in their careers. Today, we are joined by Louis Lessig, a partner with Brown & Connery in Westmont, New Jersey. Louis, welcome.
Louis Lessig:
Thank you, Tony. It’s great to be here.
Tony Lee:
Well, it’s great to have you. So why don’t we start off? You’ve got a little story you want to share.
Louis Lessig:
Well, I have a story. I spend a lot of time engaging with folks in HR which is fantastic because actually my undergrad is in HR. And I was in federal court recently trying to have a particular matter that was more than a little frivolous thrown out of the court, and as I sat there with a judge, and she went through the various scenarios, she started diving into these specific facts of the case. This particular matter involved one of our clients who had a director of safety that was suing for, if you’ll believe this, whistle blowing. And the interesting part here was that part of the issue surrounded the possibility that there was some theft of both copper as well as appliances out of a facility that they were demolishing to rebuild, and in the midst of this, the assertion at least, was that someone had come to him and asserted that some people were absconding with the copper and pocketing the cash.
Of course, coming forward, one would think, if you’re the director of safety, logically people would come to you because that’s part of your job, skip the fact that the individual happened to be a long serving member of the police force before he came to work for this employer. Well, it turns out the judge started to have a conversation with me, and specifically asked me for what we would consider to be a stock item in their job description. Regrettably, as I asked everyone ahead of time, there was no job description for the director of safety. But wait, there’s more. It gets better. Not only was he the director of safety, he was also the director of risk management appointed to be sitting on the panel for the insurance carrier, so he would go to the insurance carrier’s events and understand exactly how they operate. So now we have this position, and by the way, there’s also no job description for the insurance component either.
The judge listens to all this, she even looks at the handbook that specifically says, every employee is required to come forward if they understand that something is illegal or otherwise nefarious. And she looked at me and said, “Mr. Lessig, I understand what you’re trying to do. I understand you’ve done no discovery at this point, so you’ve basically put almost no money into the case. However, in the absence of a job description, until you do discovery, there’s no way that this court will take judicial notice of the director of safety having someone come forward because things were stolen from the client,” the little things.
Tony Lee:
The amazing part is how is it possible this person didn’t have a job description?
Louis Lessig:
It is truly amazing to me to tell you the truth, and that’s one of those core things you would think that in HR always happens. Unfortunately, all too often it ends up being one of those items that is a presumptive thing that one would have as opposed to, “Oh wow, here’s the litany of things that we have, and that’s just one of them.”
Tony Lee:
So obviously, compliance is something that every HR person loses sleep over one time or another. I mean, as great as HR has evolved and is sitting at the elbow of the CEO helping to guide through these turbulent times, the bottom line is everyone’s afraid of getting sued, that’s where it comes down, and that’s where you come in. So talk a little bit more about guidance that you would offer to HR professionals to try and keep them on the right side of the courtroom.
Louis Lessig:
So often it comes down to taking the time to not be so focused on the fact that there’s not enough hours in the day, and I have too many things on my plate, and I just can’t get to X, Y or Z. Oftentimes, my suggestion to our clients is, “Listen, step back. What do you need to have? How would it help you? And slowly go through it. If you need to ask someone else, hey, what do you do for example, for a job description? Write down all the things you do currently or have your boss do it, and then be able to go back and decide what makes the most sense.” Sometimes it’s as simple as just saying, “I recognize that you’re busy. I appreciate that, but do you want to end up,” as you put it, “on the wrong end of a courtroom?” Probably not, and the truth is, everyone is well intentioned. Unfortunately, that doesn’t always help.
Tony Lee:
Right. The thing that a lot of HR professionals are worried about now are the very quick changing laws. I mean, especially when you start getting into multi-state issues, trying to maintain a business in California, for example, is a lot harder than it is in some other places. How do you stay on top of this as an HR professional?
Louis Lessig:
I think the best thing that an HR professional can do is engage with their peers whether that is through a podcast like this, whether it’s through online platforms or going to conferences, certainly through other vehicles where they can gain information. And at the same time, I do think there needs to be a level of, and it used to be a bit of a punchline, pay me now or pay me later. It’s better to take the time to ask the question of the professionals that are more in tune whether it’s a lobbyist, whether it’s a lawyer, whoever it may be, particularly if you have an item that is truly cutting edge, whether we’re talking about, how does marijuana work in the workplace?
Or is there a worker’s compensation change? Or what direction is for a discrete area are you concerned about? Particularly if they’re going into new areas, if maybe you’re acquiring another organization, and you’re looking under the hood, clearly the finance department is going to truly look at the numbers, but the most important part as we all know are the people, so we need to take the time to really take a look at things carefully.
Tony Lee:
So you’ve been doing this a while, so what freaks HR out most? I mean, is it FMLA compliance? I mean, what do you hear the most from folks where they’re like, “Eh, I can’t handle this. I need legal help.”
Louis Lessig:
It’s funny because more often than not, you would think it’s the straight up FMLA, but it’s actually the ADA and the interactive process. And I think the reason is that, when we look at business or even the stock market, business likes certainty, and the ADA is inherently not about being certain, and we even talk about, how are you going to move your organization forward today? Is it going to be all in the office, partially in the office, fully virtual? And the customizable nature now of how we have to look at the workforce, just like the ADA, is not necessarily something that an HR professional of one, let alone 20 really wants to deal with.
Tony Lee:
Yeah. And is it possible that there’s no right answer sometimes? I mean, can a ruling go one way in one place, another place something completely different for the same case? I mean, is it that uncertain sometimes?
Louis Lessig:
It can be, and it’s interesting because back in the day when I ended up becoming barred in New Jersey and Pennsylvania, I also waved into DC. And at one point, my family came to me and said, “Well, why did you do that?” And I said, “Because on the labor side of the work that I do, you can appeal to the circuit that you’re in,” so we’re in the third circuit, “or to the DC circuit for a labor case.”
Tony Lee:
Wow. And so you can actually weigh who’s going to give me a better outcome before you move on.
Louis Lessig:
Exactly.
Tony Lee:
Yeah. Well, that’s really interesting. So let’s pivot a minute and talk about folks who are just getting into the profession, recent grads, emerging professionals who may not know a lot about the law and are thinking, “Gee, what do I need to know? Can I just rely on outside counsel? Is there stuff that I really need to learn?” What would your advice be for those folks?
Louis Lessig:
Honestly, be a sponge. Ask questions. There’s nothing wrong with asking outside counsel, but first I would ask the people inside. And the biggest challenge that I see is that there’s a belief at times when people are first coming into the workplace that they know everything. These laws are changing much too quickly, and it doesn’t matter whether you’re a seasoned professional or within the first six months of your job because you know what? If there’s a change in the Fair Labor Standards Act, you still have to pay your employees correctly, and whether you were out a year or five years or 25 years, it doesn’t change the obligation on the organization.
Tony Lee:
Yeah. One of the challenges we’re hearing a lot about and we write a lot about are the multi-state issues. If you’re a small company and you’re in one state, one jurisdiction, life isn’t terribly difficult, but when you’re trying to manage employees across a range of states, and frankly, I can’t tell you how many people I’ve talked to who now have global operations that never had global operations before. Is there any rule of thumb to follow here? I mean, you mentioned marijuana. I mean, marijuana laws couldn’t be more different depending on where you are. Any rules of thumb to follow when you’re trying to follow regulations across the country?
Louis Lessig:
Absolutely. In fact, I can give you a pretty good example. I have one client who was based in New Jersey, they decided that they were going to relocate, but before they relocated, they brought things back to the home headquarters, and then they started hiring. And it was the belief at the C-suite that, we can now hire people from anywhere, and so the original handbook review that was just for the laws in New Jersey included places like Chicago, Texas, Florida, California, specifically in San Francisco. And the challenge, of course, becomes the CEO doesn’t want to wait. They want people, butts in seats, virtual or otherwise to do their job.
The problem is, as I said to the folks in HR, it doesn’t work that way. And there’s a level of education, and I think that it behooves HR, if you’re going to be a multi-state employer, to find a way to get everyone together and explain to finance and to payroll and everybody that’s involved, there are nuances that you don’t necessarily understand that we’re going to figure out before you cut a single paycheck to ensure you pay correctly, to ensure that we’ve properly found a way to be registered within the state, to make sure that we’re not missing anything. There are some places around the country that are trying to catch up to Sacramento in ways that most employers would be petrified at. And just to take the opportunity to take a breath and say, “Here’s where we’re going to be, let’s determine what we need to know before you get there,” is critically important.
Tony Lee:
Yeah. So let’s play on that. So if you’re looking around the corner at what’s coming next, I mean, pay transparency, so salary listings and job descriptions, we don’t know what’s going to happen with Roe v. Wade, I should say. Employers paying for the travel costs for employees who need medical procedures, what should HR be thinking about for next year, the year beyond? What should they be preparing for?
Louis Lessig:
I think as a practical matter, we need to be prepared for a much more individualized assessment of what our employees want than we’ve ever done before, and it’s going to be different for folks, for example, that are taking care of their parents and their kids versus people that may be single and have different concerns. I do think that there’s always going to be a medical issue that we’re trying to address, and I think what we find is that you almost have to experience something to appreciate it in a way that you can be both empathetic and sympathetic.
The hard part is merely to find a way from an organizational perspective to a lot and design a line item in the budget to allow for some of that, and I think one of the big challenges, and it’s oftentimes on the back of a t-shirt.
How many different things does an HR professional have to worry about? And we joke, “Well, maybe you’re a shrink or maybe you’re a therapist,” all of those things apply. But looking ahead, I think we need to respect the fact that it’s going to be a little rocky. Are we going to cover the increase in gas prices or in other transportation? Or how can we find a way to blend what we do? And the biggest challenge we have to appreciate is the fact that the law will always play catch up, and because of that, the better employers are the ones that take at least a few more minutes before they do something to find and determine the best way for their workforce to make their way ahead.
Tony Lee:
Yeah. It makes perfect sense. Well, that’s great. Louis, thank you so much. We really appreciate your time. This has been a wonderful conversation with Louis Lessig sharing his stories and background in HR Law. You can hear all of our HR Storytellers podcasts by visiting our website at SHRM.org/podcast. Thanks for listening.
