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S3E13: The Other Side of Employment Law, with Brian McGinnis RLAW'15
14 Plays2 years ago
Co-Dean Kimberly Mutcherson is joined by Brian McGinnis RLAW'15, who shares his experience in employment law advising businesses on a wide range of employment law issues.
The Power of Attorney is produced by Rutgers Law School. With two locations minutes from Philadelphia and New York City, Rutgers Law offers the prestige and reputation of a large, nationally known university combined with a personal, small campus experience. Learn more by visiting law.rutgers.edu.
Production Manager: Margaret McCarthy
Series Producer: Nate Nakao
Editor: Nate Nakao
--- Send in a voice message: https://podcasters.spotify.com/pod/show/rutgerslaw/messageRecommended
Transcript
Introduction with Brian McGinnis
00:00:03
Speaker
My name is Kim Mutterson. I am the co-dean of Rutgers Law School on the Camden campus, and this is the power of attorney. Today, I get to talk to literally one of my favorite people on Twitter, our graduate, Brian McGinnis, who graduated from Rutgers Law School in Camden, not so long ago, actually. For some reason, I think of you as being somebody who's been out for a while, but you've only been out since 2015. That's right. That's right. It's been a long,
00:00:32
Speaker
Seven years, I guess. I think the pandemic probably helps make it seem like it's been a century. Well, it certainly is responsible for about 40% of the gray in my beard currently.
00:00:48
Speaker
That sounds about right. So Brian, thank you so much for being here today. I always enjoy talking to you. So I'm really looking forward to our conversation.
Brian's Journey to Law
00:00:56
Speaker
And I want to start this conversation the same way I do with everybody who comes on the podcast, which is to get your origin story, right? The world is full of things that you could have done with your life and you decided to become a lawyer. So how does that happen to you?
00:01:12
Speaker
Yeah, well, first, thanks so much for inviting me on. I'm so excited. I'm a listener, and it's great to be on and speaking with you. My origin story, I guess, in kind of coming to the law is like a little bit of a circuitous path, right? So I started my undergraduate deciding that I wanted to be an engineer, a chemical engineer specifically, and then
00:01:38
Speaker
you know, after about a semester said no thank you to that. I ended up graduating my undergraduate at the University of Delaware with a music degree. I was a classical voice major at Delaware. It's something I really enjoyed. It really kind of helped me, you know, connect to people and relate to people and also kind of develop public presence type skills. And it was also, you know, enjoyable itself.
00:02:07
Speaker
And then out of school, I worked right on a political campaign in South Jersey. So I worked on a 2007 state Senate race, came off of that race and served a year or so as the South Jersey director for Garden State Equality, which is the state's LGBTQ civil rights group.
Balancing Work and Law School
00:02:28
Speaker
And then after that, I worked for Assembly Majority Leader Lou Greenwald and Assemblywoman Pam Lampett as their communications director. And that was kind of a big
00:02:41
Speaker
turning point, right, in touching and interacting with the law every day because you're thinking about it, you're communicating it, you're making it in some instance, right? And so that was a really kind of transformative experience in kind of how I looked at the world. And, you know, as a result, about halfway through that job, I applied to Rutgers Law and I was an evening student and graduated class of 2015.
00:03:10
Speaker
And now I practice employment law at Fox Rothschild. So it's a long and winding path, but something I say to people when I describe it, who kind of say, well, wouldn't you have liked to go right out of undergrad? No, I think that these experiences made me the kind of lawyer I need to be now, but also like grounded me in a perspective of,
00:03:39
Speaker
who I am outside of being a lawyer, which I think is so important. Absolutely. And I also, I mean, so one thing, and I've said it on the podcast before, so I don't get to pretend like it's a secret, but, you know, our part-time students, our evening students are some of my favorite people in the building. And I, one of the things that I always say is that I could not have imagined
00:04:03
Speaker
going to law school at night while working a full-time job. And I know that there might be prospective students who themselves are thinking, gosh, is this a doable thing? So I'd love for you to talk about that experience a little bit because I just think it's incredible. Yeah. And thank you. That's really kind. I kind of found two things to stick out in particular about the experience. Yes, it is difficult because you're working kind of full-time and then
00:04:32
Speaker
your extra time, right, is devoted to school and learning and trying to retrain your brain how to think in the way that law school does. But the first part is there were a great group of about 25 to 30 students who were all in the same boat that we all kind of came in together. And this is a great feature of the Rutgers Evening Program, right? It's that
00:04:56
Speaker
it's kind of a cohort and there's great camaraderie. So, you know, when work or life happens, it's not kind of the archetype that you hear about law schools where people are hiding the outlines or that kind of stuff and people are always jumping in. How can I help? How can I help catch up to speed? What did you miss? What do you need? Like it was really collaborative. And then the other part is, you know, there's, there's, there is in law school such a thing as like,
00:05:23
Speaker
overthinking or overworking, right? And the thing that going part-time helped me to come to peace with was like there are only so many hours in the day, right? If I don't get this concept after X amount of time, I have to move on for now and like keep pushing and then maybe I'll circle back
00:05:45
Speaker
or chat with someone about it and it'll come to me, or maybe it won't, but it's just a time management thing. You're like, well, I gotta move on, so next thing. And then it's kind of a resilience builder in that way. So yeah, it was tough, but I think it also made me more efficient and better at, I guess, prioritizing where my time needs to go and how much of it.
Impact of Diverse Education on Law Career
00:06:12
Speaker
Yeah, I think that's one of the things that is really valuable. And I was a person who went straight through from undergrad to law school. So I will not beat up on people who do that. But I do think that there's something really valuable about taking some time in between. And then when you come back to law school, there's sort of a perspective there that I think can be really useful. So that really resonates with me what you just said.
00:06:38
Speaker
Oh, thank you. And in particular, because I developed an interest in employment law very early in law school and kind of took a lot of classes in that area and then have now practiced in that area. But one of the things that I thought was really important was had that time between undergrad and law school.
00:06:59
Speaker
I came from workplaces and I had perspectives about that. And so, you know, getting thrown into policy debates about what the law is or should be or how you should interpret it in various ways, you know, that context was first and then the casebook was second. And so I just thought that was so valuable for my own, you know, development.
00:07:19
Speaker
Definitely. So I have two questions that popped into my head based on what we just discussed. So one is sometimes we'll have folks who are prospective law students. You know, we do a pre-law diversity conference every year where we get juniors and seniors in college who come for that.
00:07:35
Speaker
and sometimes younger, and they'll say, you know, what classes should I take? Or, you know, what should I major in if I want to go to law school? And they never liked the answer, right, which is basically anything. But as somebody who first wanted to be a chemical engineer, which
00:07:52
Speaker
Good for you. And then switched into being a voice major and then ended up in law school. I think part of your story is you can kind of do anything in college, right? So what's your sense about how a college experience that wasn't pre-law or the typical sort of poli-sci major, how did that still lay a groundwork for you to be successful in law school?
00:08:19
Speaker
Well, that's a great question. I mean, I think the most important thing in getting ready for law school is not, have you taken XYZ and certain history classes, poli-sci class, not kind of have you done a checklist curriculum, but have you exposed yourself to experiences and challenges that make you,
00:08:45
Speaker
think about how you interact with the world, how you see the world, and how you project yourself to the world. And so in that vein, you know, I thought being a voice major was terrific preparation. There's a ton of like
00:09:00
Speaker
public performance quite literally, right? So the presence to speak or to perform in front of people and doing it kind of extemporaneously as well. That was a great skill to develop. But also to pick up a piece and to begin rehearsing it and then to think about what is the context
00:09:21
Speaker
socially, historically, in this composer's actual life? What's going on? What's the context in which these words are coming out? And then trying to
00:09:34
Speaker
feed that into the performance. And so in that way, it's great preparation for being an attorney, right? Whether it's a litigator or otherwise, you pick up a file and you immediately have to immerse yourself in the context. What's going on? Who are the parties? What are their needs and desires? What is the applicable conflict in there? And how do we resolve it? So I thought it was a great preparation in that way.
00:10:02
Speaker
I think one of the other things that's interesting to me, and this is something that I feel very deeply as somebody who teach, well, I don't teach as much as I used to, but who still fundamentally thinks of myself as a teacher. There's a way in which teaching is a performance,
From Music to Law Practice
00:10:19
Speaker
right? Like you walk into the room and you have a persona that's your teaching persona and sort of
00:10:23
Speaker
you know, how you do this. And I imagine that for lots of people like you who are practicing law every day, that there's a performance element to that as well.
00:10:33
Speaker
Right, for sure. And so honing that in a literal performance setting in undergrad was really great because I am someone who, you know, when I'm outside of the courthouse or outside of the client meeting and like the lights, the bright lights aren't on, I'm someone who's a little bit more
00:10:55
Speaker
a little bit more introverted, a little bit more anxious just generally about how I am projecting. But the instant that I am in that courtroom, it's like a switch. It flips, and I'm on, and I'm doing my thing. And then once it turns off, I kind of revert to myself. But it's great to be able to kind of develop that both in law school and before.
00:11:20
Speaker
Yeah, and I think one of the things that sometimes we'll hear from students is they think that you have to be born with a particular type of personality to be a litigator or to do various things. And there are lots of things that you can be taught, right? And you can practice them and you can become really good at them. So the fact that I actually think of myself as a very introverted person, although I think most people who meet me would not say that about me.
00:11:48
Speaker
But that's what it is, right? It's sort of a thing that you learn how to do and that becomes a part of how you do your profession. Exactly. And the converse is also true. The things that make you unique can't be taught. And those are the things that we need in the profession, right? We need different viewpoints. We need different sets of lived experience. We need people who experience the law in real tangible ways and not just kind of
00:12:18
Speaker
what it is in a Westlaw database or a case book, right? And so, yeah, you're totally right. You can learn so much of legal skill, but you can't be taught who you are and what you've lived. And that is just so vital for our profession.
00:12:34
Speaker
Absolutely. I love that. And again, one of the things that I talk about with students is that going to law school doesn't mean that you have to lose parts of yourself.
Overcoming Challenges in Law School
00:12:47
Speaker
You don't have to jettison your moral compass because now you're a lawyer, that you can continue to be yourself, even though you also have a particular professional persona.
00:12:59
Speaker
you're gonna be much more interesting if there's parts of you that continue to be those unique parts of yourself as opposed to sort of feeling like you're always playing a role. Did you have any lawyers in your family? One, my dad's sister, my aunt is an attorney. She went to law school in New York and she ended up marrying a Canadian national
00:13:27
Speaker
who does among other things kind of some
00:13:32
Speaker
photography of various folks. But also, as a result, she married him. They live in Canada now. And she has been very involved in a number of areas with advocating on behalf of native Canadian populations, specifically Inuits, among others. My late cousin was actually
00:13:59
Speaker
a member of one of those communities. Other than that, there was no real legal experience in my family.
00:14:11
Speaker
I think the real benefit of my aunt's experience is that it showed me like right off the bat, the popular media consumption of what a lawyer is. It's like, you know, it's not suits, right? It's not always, or it doesn't have to always be that. It can be any number of things and you can use those tools, you know, however you have a creative mind to do.
00:14:41
Speaker
Mm hmm. And, you know, certainly one of the ways that we often will pitch law school is that a JD is a very, you know, malleable degree. So you can be a person who does a range of different things when you have when you have a JD. I want to transition a little bit. And I want to think to start talking about both your sort of law school experience and then how that law school experience transitioned into
00:15:06
Speaker
The kind of work you do now and one of the reasons why I like to ask if people had a lawyer or lawyers in their in their families is that you know, sometimes that gives you a little bit of a window into what law school is going to be like and it can help you sort of set expectations or
00:15:24
Speaker
help you, I don't know, sometimes not feel so intimidated by the experience of law school. Did you find that to be true for you? Like was your aunt somebody who helped you sort of understand what that transition was going to be like or were you one of those people who felt like you were just throwing the wool? So it will probably not surprise you personally to learn that I came into my first
00:15:48
Speaker
semester or two, probably feeling a little bit cockier than I should, right? I'm kind of thinking, I have always previous to this,
00:15:59
Speaker
done great at capital S school, for lack of a better term, right? The school industry. So whatever that is, I have been good at it. Therefore, I will succeed as a matter of course here. I don't have to do or change anything different about how I approach it. And that was not the case. So it was kind of a learning of, you know,
00:16:23
Speaker
early on like learning to humble yourself and recognize what you don't know, right? And then seek out how to address that and be open to kind of alternatives of ways of learning and thinking and people as well. And once I kind of made that mental shift, I found not only like was it
00:16:50
Speaker
and a better academic performance, but it was also, um, it felt more like collaboration, right? Between future colleagues in the law, you know, when you're talking with someone about an essay problem or you're talking through a fact pattern or trying to figure out what a case says, you know, that felt more like
00:17:08
Speaker
the kinds of conversations I have today with colleagues where I walk down the hall or give someone a call and say, what do you think about this case under these scenarios? Let's just talk it out. And so, yeah, I really appreciated having such great
00:17:25
Speaker
classmates who could help me kind of redirect myself where I needed to go. You know, the great experience of that was, you know, once you like humble yourself a little bit and kind of ditch your preconceptions, it was my experience that I was able to learn so much more and so much better and it was more enjoyable. And so that's something I try to keep in mind as I approach things today as well.
00:17:52
Speaker
So you finished up law school and you said that even in law school, you identified pretty early on that employment law was a space that you were really interested in.
Discovering Passion for Employment Law
00:18:03
Speaker
So what drew you to employment law? Before you answer that, let me say this.
00:18:09
Speaker
A lot of times students will come into law school or early on in law school and will say, oh, I want to do employment law. I want to do health law. I want to do transactions. And they honestly have no idea what that really means. So one, did you have a really good sense of what it meant to be somebody who was going to do employment law? And then two, for people who are out there listening and who think they want to be employment lawyers, how would you describe the practice of employment law?
00:18:38
Speaker
So to the first question, I did not, coming into law school, I did not have a strong sense of that. I had in my work life dealt with a lot of different legislative proposals on various employment and labor type laws, and I had a kind of in mind for an interest in policy matters.
00:19:00
Speaker
So I took my first employment law class with Professor Stacey Hawkins, who is outstanding and I literally cannot say enough good things about. But it was a great overview of here are kind of some topics that employment law practice involves.
00:19:22
Speaker
But Professor Watkins also did a really good job of centering the policy implications and the policy thought process behind employment laws. And so that immediately caught my attention. And then I, you know, proceeded to take a few different classes and end up in the practice. But the practice itself is really broad, right? So there's, there are, it kind of divides into
00:19:49
Speaker
as many other practices do, right? Some litigating, some advising, some kind of like third party investigations and things like that. So it's a great range of skills. As far as litigation goes, it's in state court, it's in federal court, it's before a whole slew of administrative agencies. So again, it's a great range of areas to practice.
00:20:16
Speaker
The substantive areas are just so broad and diverse. I mean, it's everything from anti-discrimination and harassment laws to whistleblower laws to kind of wage an hour, how people get paid when they get paid, workplace safety, workplace health, and things like various types of employment contracts.
00:20:39
Speaker
And then beyond that, there's kind of niches in employee benefits law and kind of labor and collective bargaining. And each of these areas has its own little world and its own set of sub-niches. So it was just a fascinating breadth. But the thing that really drew me to it was
00:21:04
Speaker
In a way that other areas did not, when I was reading these cases in Professor Hawkins' class, I related to them on an intuitive level, right? Everybody has been in a workplace, right? And so you can kind of connect to it. And in a way that I didn't connect to cases about widget factories or about, you know, vesting interests and things like that, all of which are very important and interesting.
00:21:32
Speaker
you know, not to disparage them. At least very important, not necessarily. Certainly. Well, I just didn't, I couldn't kind of connect with them in a way that, no, I get this. And this I kind of understand fundamentally. And I think that really was the connection that made it something I wanted to do. And were you able to spend some time like, you know, as an intern or an extern doing some employment law kind of work before you ended up at the firm?
00:22:01
Speaker
So I did not do it per se. I did some work as a summer associate at the firm prior to joining full-time. And I did some really interesting employment law assignments that kind of confirmed for me that, yeah, this is what I want to do. But that's a really good point in that sometimes you come into law school or you come into an internship, externship, summer associate position.
00:22:28
Speaker
And you have a really big idea of what you want to do. I have known plenty of people who've had that, who've then experienced that thing and then changed 180 degrees, right? And then I've had people who are like myself who do the thing and say, yes, I enjoy the thing. And then they go on to focus in that area. So to your point earlier about what people asking, well, what kind of classes should I take? Things like that.
00:22:56
Speaker
I always recommend people experience as broad of a set of ideas as possible because that will help you figure that out.
00:23:07
Speaker
Yeah, I totally, totally, totally co-sign that. And, you know, the piece of advice that I regularly give is that law school is a really wonderful place to figure out what you want to do, but it's just as important to figure out what you don't want to do. Right. And the story I usually tell is my this was my second summer.
00:23:26
Speaker
in law school and I spent part of it at, I went to law school in New York and I spent part of it at the Legal Aid Society Juvenile Rights Division. And within about two weeks, I was like, well, this is not how I'll be spending my life when I graduate. I was like, I don't want 200 cases. I don't want a bunch of teenagers' lives in my hands. This is just not for me, right? So that's one of the beauties of law school that you can figure out where you want to be and where you don't want to be. I like that.
00:23:55
Speaker
Yeah. So now you're at Fox Rothschild and you are doing sort of a range of employment law there. And it sounds like you get a really nice mix of experiences, right?
00:24:10
Speaker
advising clients, you're in court. I would imagine that you're maybe doing some like mediation and kind of settlement conferences, kinds of experiences. So you have all these bits and pieces that are on your plate. Is there a particular type of work that is especially appealing to you? Yeah, so I like all of it. But the stuff I really enjoy the most, probably the most, if you make me pick, I really like
00:24:40
Speaker
doing...
00:24:43
Speaker
advising firstly, and kind of like the third party investigations second. So the first point is, the first point is, you know, advising, right? So litigating is what happens when someone thinks you as an employer did something wrong, right? I mean, fundamentally, that's what it's about, right? You did something wrong, there is a lawsuit now, and we'll duke it out in the civil process. The thing I like about advising clients is
00:25:13
Speaker
that you can help educate them about what the law is and help deliver solutions to them about how they can meet their compliance obligations in a way that is practical and makes sense in their industry.
00:25:28
Speaker
And so it's kind of helping clients to understand the law is not just necessarily just a brick wall, like we're gonna help shape it to what you're doing. And in that work, I have been so, you know,
00:25:44
Speaker
grateful to have so many clients who are not interested in kind of the mere letter of the law compliance. I can't tell you how many times I get called by clients who say, hey, I read about something, should we be working on this, right? So when there was a big push in
00:26:03
Speaker
in Congress and various state legislatures around the Crown Act, which prohibits discrimination on the basis of race, specifically on the basis of natural hairstyles and employment.
00:26:20
Speaker
you know it was not in a jurisdiction that affected this client but the client said should we add this to our non-discrimination policies and procedures and. It's kicked off a great conversation you know i really like the advising matters because.
00:26:35
Speaker
It involves clients who are really want to do the right thing. They just need help how to do it, right? So that's really like I also really like sometimes our firm will be engaged by people to conduct kind of fact investigations into Claims of discrimination or harassment or things like that and that I enjoy because
Handling Workplace Claims
00:27:00
Speaker
it's you know you get to put on your Sherlock Holmes hat right and try and figure out what happened and read all the documents and then you interview people and you compare your notes and you ask follow-up questions and you figure out who's credible who might not be and kind of make some determinations and recommendations on that because you know one of the big
00:27:25
Speaker
obligations in employment law is if you as an employer are on notice of potential discrimination or harassment in your workplace, you have an obligation, an affirmative obligation to promptly investigate and effectively remedy that issue if you find that something is substantiated.
00:27:46
Speaker
Something I like to do is to try and be involved in that process of getting to the bottom of what happened and trying to figure out how do we prevent it from happening again.
00:27:58
Speaker
Yeah, I think that there is a certain level. Well, let me say a couple of things. So one, you know, people can glean from the conversation we've had so far that that your work is for employers. Right. And there there is sometimes a
00:28:16
Speaker
sense that people who work for employers are not necessarily fighting the good fight. So I feel like you've already sort of talked about how, you know, part of your work is helping people who want to do the right thing do the right thing, right? And obviously, there are employers who don't want to do the right thing. But there are also a lot of them who really do and they just they need somebody to advise them to counsel them to move them in the right direction.
00:28:39
Speaker
The other piece, though, is I think that there is a certain cynicism that has grown up around the sort of outside agencies or lawyers or law firms who come in to do these investigations.
00:28:53
Speaker
You know, people can't see me doing the air quotes there. But I think, you know, sort of, you know, as part of the Me Too movement and sort of other kinds of things where people say, oh, you know, these firms come in and they do these investigations and then nothing ever happens or, you know, horrible things happen to somebody.
00:29:10
Speaker
The law firm says, oh no, this is totally fine. So I would love to hear you just talk a little bit more about what are the situations in which, and obviously without revealing any information you can't reveal, but what are some of the situations where a company will come and say, listen, we need you to do this investigation. You're a third party. So that sort of lends you some objectivity. And then how do you sort of go about that work where
00:29:38
Speaker
You know, basically what you're trying to figure out is kind of should this should this company be in trouble? Should this boss be in trouble? Should this employee be in trouble? Right. How do you go about an investigation like that? And then what do you do when you do think that somebody should be in trouble? And the company says, well, thanks for your time, but we're done here.
00:29:58
Speaker
Yeah, so that's a really good series of questions because I think you're right that there is sometimes some cynicism about this, right? The thought being that perhaps you are retained with an outcome in mind and your retention is, the purpose of your retention is to deliver that outcome. I make it pretty clear when I am doing these kinds of things
00:30:25
Speaker
that if that is what someone wants, then
00:30:28
Speaker
then I am not the lawyer for them, right? What I want to do is get to the bottom of what happened. Now, what that means is sometimes difficult to ascertain, right? Because when there are documents that are clear, it's easier to say if it's, you know, one person's word against another and there's clear contemporaneous accounts or documents, you know, it's easier kind of to make credibility calls, but sometimes,
00:30:58
Speaker
you're just not able to do that. And so it's really trying to sift through what we can figure out in the documents, what we can figure out from talking to people, where are the holes in the story, kind of assess what people are saying as it's happening. And then, you know, at the end of it, putting together a product that basically says, here is what we were able to determine insofar as we could determine anything.
00:31:24
Speaker
Right. And then from that, you know, clients can make their judgments frequently, but not always. Clients will say, you know, if you have recommendations about this particular scenario or about kind of how our procedures are set up, please include those. Sometimes people just want just the facts, ma'am. Right. They want to just know here is our best
00:31:49
Speaker
um assessment of whether these factual allegations are substantiated and then they kind of run with it but what i'm always looking to do is you know assess what can we figure out how certain what are people's motives and credibility and then what i always do in in a work product like that is
00:32:09
Speaker
make clear what we think we know and make clear what we don't know and what we can't make conclusions about. Because I think part of the cynicism in some of these things that have been seen in kind of popular media, right, is that there's kind of sweeping assumptions perhaps or other things that happen as a result of limited information. And so what I like to try and do is make it clear if we're not nailed on confident
00:32:43
Speaker
And that's something where sometimes during the editing process, I'm like very firm because it's, you know, we could not substantiate X. It would be not appropriate to say that you could if you couldn't. So, but the interesting part of it is really, you know, it's really like a giant puzzle and you're trying to figure out where the pieces fit together. Sometimes all the pieces don't fit together. And so that's kind of the inherent ambiguity
00:33:06
Speaker
of something, we're not gonna put it in there, right?
00:33:12
Speaker
that is challenging in the work. But at the end of the day, you know, it is rewarding. I have, you know, without going into specific situations, I have seen instances where, you know, I've done an investigation that has led to, you know, significant change in an organization in the form of kind of improved policies and processes, updated trainings and things like that. And so, you know, that is always a great outcome.
00:33:41
Speaker
anywhere that you go. And so it really is depending on the facts of what any situation comes up. So that leads me down two paths and I will acknowledge the level of skepticism that I'm about to bring to the table.
00:34:03
Speaker
Just to be fair. So one thing is I think that it can often be very difficult for people who are from communities that are sort of most likely to feel like they're being discriminated in a workplace, right? People of color, LGBT people, women. You can sometimes feel like there's something really wrong with this interaction, right? Or I feel like I'm not being treated the same way or I'm not getting the same opportunities.
00:34:29
Speaker
But nobody's saying to me, we don't like black people here, right? Nobody's saying to me women aren't good at this work. Nobody's saying to me gay people make me uncomfortable. So that's one part of it, right? Like in a world in which we know, you know, that microaggressions exist and we know that implicit bias exists, you know, how can we really think about
00:34:49
Speaker
discrimination in a context where people know better. I mean, there are still people who make just egregious, egregious, egregious, I guess I won't even call them a stace because they do them on purpose, right? But that's one category. But I think there's a much larger category of people who are acting in really problematic ways and probably don't recognize that they're doing it. So that I think is a really challenging thing.
00:35:16
Speaker
And then the second thing that I think is really challenging in workplaces, and I think this is true across probably all workplaces, is this idea of, well, we just need to do a training, right?
Training and Advising Clients
00:35:29
Speaker
We'll do a training, and then everybody's going to learn racism is bad, and sexism is bad, and homophobia is bad, and then we could all just go about our business, and now we've got a really great workplace.
00:35:39
Speaker
So as somebody who's doing this work and who I know has really deep commitments to equality and justice and fairness, how do you deal with those pieces, right? One, the idea of how do you identify discrimination that can be super, super subtle. And two, this idea that everything's fixable with the right training. Yeah, those are really great questions. And I don't know that we collectively as a society have
00:36:07
Speaker
definite answers. But the way I approach it, at least on the training side to answer the second question first, is, you know, my the way I like to conduct a training is that I make it clear, this is not like a training so you can check a box and move on with your life, right? This is the phrase that I always use ad nauseam is about
00:36:30
Speaker
building respect in the workplace into the company's DNA because it has to be top down every component. It has to connect every component of the workplace, right? It can't just be
00:36:44
Speaker
on Tuesday we did this and now we are done until next year, right? So it's about that. I also really like to make my trainings a little bit on the longer side, right? So it's not just a one hour and done kind of thing. Frequently it's longer than that. That allows for a lot more interactive participation.
00:37:05
Speaker
which really helps people wrap their heads around it. And the other thing that I try and do is use real, not just kind of reading people here is what the definition of harassment is, right? But like, let's walk through some facts scenarios, right? Let's look at this set of facts. Okay, what do you think? Okay, what if we change this one? Or what if this happened? Or what if this, was this person right? What should they have done differently? And in those scenarios, I like to try and build in, because
00:37:36
Speaker
When you do these trainings, right, everyone can...
00:37:39
Speaker
figure out very easily like the do not use slurs at work, right? That is not like the hard part, right? But what I like to incorporate is things like little microaggressions or things like just like a hint of potential bias or potential differential treatment. And then to ask people about what they think, how should it have been handled differently? You know, are you treating
00:38:07
Speaker
this young woman who works for you, who brought a complaint to you, different from the older gentleman who brought a complaint to you. And just trying to get people to think about how they're interacting and making sure they're doing it, interacting intentionally and with respect in the workplace.
00:38:25
Speaker
That's, you know, kind of on the training side. And then, you know, when you're, when you're looking into a situation to figure out what happened, um, my perspective is always to listen more than I talk and ask, not just follow up questions designed to elicit factual details. So like, not just when did this happen? Was this after the other thing, you know, stuff like that, but more like,
00:38:55
Speaker
you know, more questions like, tell me how you felt or tell me why you felt like this was not appropriate, you know, and I'll acknowledge in an interview, I'll tell someone, listen, if you just read this on the page, some people might not understand why it was harmful. Tell me in your own words so that I can understand and then that will help us figure out if there's an issue here.
00:39:23
Speaker
And you'd be surprised how frequently people are willing to trust and open up where they otherwise might not if you actually just show that you're interested in what they have to say in their perspective and not just there to kind of check a box, right? So just trying to establish that baseline of trust is so important.
00:39:49
Speaker
Yeah, and I think there's also this challenge of trying to help people understand how something that feels innocuous to them might be really impactful for the person on the receiving end of it, right? So, you know, the black woman who works for you and she comes in with braids and you're like, can I touch your hair, right? Maybe to you, that seems like a very sweet question, but it can be wildly offensive, right?
00:40:18
Speaker
Or in my own experience, as an openly gay man for a very long time, the number of times I have been asked in the workplace if I have a girlfriend is truly in the thousands. And yeah, that's not, again, in a one-time instance,
00:40:37
Speaker
It doesn't bother me, but an accumulation or the expectation certainly can. So I can't relate to everyone's situation, but I can understand a similar perspective. And so I really try to remove my assumptions when I'm coming to a situation like that to try and really understand it.
00:40:59
Speaker
Yeah. The other thing about what we were just talking about and you were sort of walking through the investigation and how you do that work.
00:41:08
Speaker
I think one of the things that people don't always realize is the broad skillset that lawyers have to bring to the table. It's about research and writing, of course, but it's also about being an investigator, being an advisor, being a counselor, being a litigator, being a trainer, all these different sorts of things, some of which you'll get in law school.
00:41:33
Speaker
Or at least start to get in law school some of which you're kind of gonna learn on the job So did you did you feel like did you feel like there were? Skills that you didn't realize that you were gonna need or that you were gonna Cultivate that you've had to really develop over the years that you've been that you've been in practice Yeah, that's right. That's a great question I have it's not I guess it's its own skill per se but the the
00:42:04
Speaker
the being okay with uncertainty, right? Or accepting something as a risk proposition, right? So in law school sometimes or in life sometimes, you know, you have problem X and it has definite answer Y, right? And so that is the easy part, right? But when a client comes to you with a question,
00:42:33
Speaker
And the law itself is unclear, right? It's a novel thing, right? How do you talk to your client about where the law has been, where you think it will go, but where it could go wrong if we're not right? So kind of giving people, learning how to
00:42:57
Speaker
advise clients on uncertainty was really a big challenge for me in my first few years of practice. I think I've gotten much better. I think someone's like, just tell me what to do. Yeah, yeah. Just tell me what to do. And so what I like to try and do is say, listen, here are the facts, right? We don't know the answer to this question, right? It just is not decided. So here are some options you could pursue. And it's like setting out a menu with various levels of,
00:43:26
Speaker
of risk and if there is a problem, what that potential exposure could be. And what I found is that a lot of clients really appreciate that because then in that context, they can make the business decision.
00:43:40
Speaker
based on what makes the most sense, right? And then if there's a subsequent clarification of the law, like a new regulation, a new case, then we can revisit it and it's already in their mind to do that. Something where this came up a lot was advising clients on some of the vaccination mandates, right? That came out from OSHA, the Occupational Safety and Health Administration, the Centers for Medicare and Medicaid Services and other entities, right? Because they were,
00:44:09
Speaker
They were the kinds of things that were prospective, and then they were in effect, and then they were temporarily stayed, and then they were unstayed, and then they were permanently, or not permanently, but de facto permanently stayed. So a lot of adjustments and a lot of uncertainty. But sometimes that's just how life is, and the law is really just a reflection of that.
00:44:35
Speaker
One of the things for folks who are prospective law students or people who are practicing outside of employment law, employment law is one of those spaces where agency law matters a lot,
Keeping Up with Legal Changes
00:44:50
Speaker
right? And what's coming out of the EEOC and all of that good stuff. And I wonder for people who don't have deep familiarity or all the people who thought that admin law was totally not important when they were in law school, what's the relationship between
00:45:05
Speaker
when you have something like the EOC, but then you also have the Supreme Court deciding, you know, like Bostock, you know, pieces like that and sort of expanding the categories of, you know, what discrimination can look like. How do you keep up with all of that? And then how do you make sure that your clients are keeping up with all of that? It's challenging. What I always like to do in advising clients is say, here is like the requirement. And if you're looking for best practices on how to go above and beyond, here are some thoughts about that as well.
00:45:34
Speaker
And that's actually a really good area you brought up because even before the Bostock decision, there were a lot of clients who kind of came to me and said, we want to be, we recognize that LGBTQ plus inclusion in our workplace is a great, it's like A, the right thing to do, but also it's a good business case, right? It's better recruitment and retention and productivity and morale. And so we're going to do it because it's the right and a good business incentive.
00:46:03
Speaker
And so, you know, to your point, what's so interesting was we had the livestock decision from the Supreme Court, which held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity.
00:46:22
Speaker
the genesis of that decision was in part in previous EEOC decisions and EEOC interpretive statements. And so the great thing about an administrative agency is that in theory, it is the expertise agency. So it can address problems and put together policy interpretations or solutions
00:46:49
Speaker
identify problems. I know at least in relatively recent memory there have been some great revisions to kind of technical manuals and interpretive guidelines from the EEOC on things like sexual harassment in the workplace and national origin discrimination, certainly sexual orientation and gender identity as well. And so
00:47:14
Speaker
those are great kind of laboratories for ideas that trickle up and into courts. Because when you think about it, right, a civil judge is dealing with, you know, 70 different types of case at all times. And while employment cases are usually a decent chunk of a civil judge's docket, it's not going to be to the exclusion of everything. And so they frequently rely on these agencies for, you know, expertise in interpreting the law.
00:47:43
Speaker
So I'm gonna ask you one last question, which is a relatively big question. So put your thinking cap on. So I mean, you're somebody who had a career in politics. You were a director at Garden State Equality. You do work with the New Jersey State Bar Association. Like you're obviously somebody who thinks of the law as a tool of transformation, right? And sometimes in really significant ways.
00:48:12
Speaker
And I think over the last couple of years in particular with what I actually sort of like to think of now as the racial reckoning that wasn't, but there was a lot of conversation about how do we transform our country? How do we transform our workplaces? How do we really think about who we are and kind of what we owe to people?
00:48:34
Speaker
And I wonder as somebody, you know, again, I think there's a lot of cynicism in this space about whether it's really possible to build workplaces that are truly equitable or places where everybody gets an opportunity to flourish or places where
00:48:51
Speaker
You know, people really feel like when they aren't treated well, they have recourse in their places of employment. And I wonder, sort of as somebody who's been doing this work for, you know, not for forever, but for a long enough period of time to have some sense of whether there's movement and what direction that movement is in, what's your level of optimism, I
Vision for the Future of Law and Society
00:49:13
Speaker
guess I would
00:49:13
Speaker
about kind of what the future of work is and the future of our workplaces. And are we actually capable of getting to a place where most people can work in places where they are protected from abuse, where they are not harassed, where they're not discriminated against? Do you feel like that's really the road that we're on or do we still have so much work to do before we get there? Yeah, that's a really, really good question. If you asked me that question 10 minutes after
00:49:41
Speaker
the Supreme Court releases orders or cert petition decisions, it would probably be very not optimistic. But I think on the whole, I do have a level of optimism. And so
00:49:55
Speaker
There is, in thinking about the law, right, there are people who kind of approach the law as it is immutable, this is what the law is, and that is what it is, and that is what it will be, versus people who understand that the law is a reflection
00:50:15
Speaker
of us, right? The law is not kind of the separate detached thing. It is a reflection of us. And so to the extent we can be better, the law can also be better. Because the law is, as you said, it is a tool. It is nothing more than a tool. And a tool can do a lot of things, right? A tool can punish, and a tool can restrict, and a tool can bind, but a tool can also build.
00:50:43
Speaker
and create and make something that's better than we have. And so, you know, I am optimistic because even in, you know, even with a lot of the, I mean, backlash politics you see to progress, which is really unfortunate and really, you know, hurtful. I also see people who never thought about issues
00:51:11
Speaker
in a certain way, coming to think about them in that way and coming to consider what has someone else's experience been or coming to step outside of their own privilege or position to try and deal with the law in a frame of equity and empathy. And I also am
00:51:30
Speaker
I am so impressed by a generation of attorneys who are kind of my cohort or compatriots who are frequently, I frequently encounter them on various social media, but who are just really breaking the mold and who are
00:51:51
Speaker
committed to kind of breaking down old structures just for the sake of themselves and creating something that's better and more equitable. It's really inspiring to see that work happen. There is a long way to go, but I think we can be better. If we as people can be better, the law can be better. We just have to kind of work in solidarity.
00:52:20
Speaker
continue to fight the tough fights, continue to have the tough conversations, and remember that it's not on any one person to change everything, but if everyone changes a little bit, we'll be so much better off. Definitely.
00:52:39
Speaker
Definitely. There's definitely something to be said for focusing on your little corner of the world and figuring out what are the good things that you can do there that potentially have much broader reverberations. And I absolutely love what you said about this sort of current generation of lawyers. And you and I are both
00:53:01
Speaker
you know, pretty big Twitter people. And it's nice to see how people are thinking about the profession, how people are thinking about law school, how people are thinking about the bar exam, right, this sort of whole host of different ways that we could be doing better than we are. And a really nice cohort of people who are ready to do the work. Yeah. And to the point you just mentioned, right, like some of the best advice, you know, I ever received, which was kind of about
00:53:29
Speaker
public policy and activism and the law in general, which is the best way to clean a room is to start in one spot.
00:53:39
Speaker
and clean it until that spot is clean and then move to the next spot and then move to the next spot and the next spot and the next spot until you've got the room straightened up. And then once you've got the room straightened up, you go to the next room. And then once you've got the house straightened up, you go to the neighborhood, right? And so that's kind of a lesson that I was taught in a pretty kind of despairing moment, right, about public policy a number of years ago. And it's something that stuck with me ever since.
00:54:07
Speaker
as something I try and remember and apply and share with others because again, the world is not already set in stone and we can change it. We just have to do it.
00:54:22
Speaker
Absolutely. Well, I think that is a really lovely place to end our conversation on this note of optimism and power and possibility. So thank you so much, Brian. I'm looking forward once again to having you on our Quizzo team at some point in the not so distant future. I am always happy to be a Quizzo sub, and I am so excited. And thank you so much for having me. It's been great to talk to you today. Absolutely. Thank you. Take care.
00:54:52
Speaker
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