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Andrew Nielsen on Legal Landmines, Remote Work Realities & Getting HR Right From Day One
8 Plays10 days ago
In this episode of MustardHub Voices: Behind the Build, Curtis sits down with Andrew Nielsen, General Counsel at MyHRCounsel, for a lively and enlightening conversation about the hidden pitfalls of HR law—and how to steer clear of them. Andrew shares his unconventional journey from pre-med to law, explains why FMLA is one of the most misunderstood areas in employment law, and gives practical advice on avoiding costly legal mistakes. From the rise of remote work to AI’s role in hiring discrimination, this chat covers the real-world challenges that growing businesses face—and how proactive policies, consistent enforcement, and a strong employee handbook can make all the difference.
About Andrew:
Andrew Nielsen is General Counsel at myHRcounsel. He can convey complex HR and employment law issues to executives, human resources professionals, and salespeople alike. Having handled more than 100 trials, he enjoys using that experience to help clients avoid litigation by taking a proactive approach to avoid problems before they arise.
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Transcript
Introduction and Guest Overview
00:00:07
Speaker
Hey everyone, welcome back to our fireside chats, Mustard Hub Voices Behind the Build, where we talk with people building, backing, and running better workplaces.
00:00:19
Speaker
I'm your host, Curtis Forbes. My guest today is Andrew Nielsen. Andrew, is general counsel at MyHR Council. He can convey complex ah HR and employment law issues to executive, human resource professionals, and salespeople alike.
00:00:37
Speaker
Having handled more than 100 trials, he enjoys using that experience to help clients avoid litigation by taking a proactive approach to avoid problems before
Passion for Law and Career Journey
00:00:49
Speaker
they arise. Welcome to Behind the Build, Andrew.
00:00:52
Speaker
Thanks very much for having me. Excited to be here. Yeah, i um I know that I'm about to to get a schooling here. you You had actually mentioned um that one of your hobbies is the law.
00:01:09
Speaker
So yes you're you're into reading, you're into this. Quick question about where those intersect. Any favorite judicial decisions or case law?
00:01:23
Speaker
Oh, man, I love, ah I mean, say what you will about his political bent. I love reading ah opinions by from Scalia, you know, rest in peace.
00:01:34
Speaker
his His writing just had of such a biting acerbic wit to it. Like he was super intelligent um and he would just write these these opinions that had these digs in them against you know ah either other justices or some of the parties in the case.
00:01:56
Speaker
And you know just reading them, um I don't know, i'm probably a dork for saying this thing. I would just bust out laughing. I remember ah Con Law 2, my buddy Alex and I were just like reading a case. And it's not a funny case. It was a death penalty case.
00:02:10
Speaker
um And he just had this one liner in there. And like we just started we just started busting out laughing in class. um So and yeah, so I i love reading Scalia.
00:02:21
Speaker
I love reading Posner opinions. OK, when did you know that you wanted to be a lawyer or is there something else that you thought you would do when you when you grew up?
00:02:35
Speaker
Yeah, I went to undergrad, EW La Crosse. I was going to be physical therapist. Like 90% of the people that went there back in the 90s, it was before they turned it into a doctorate program.
00:02:49
Speaker
And so it was really, really hard to get into um the master's program at La Crosse. And it ended up being easier, it turned out, to get into med school, probably.
00:03:00
Speaker
And so I switched from being pre-physical therapy to pre-med. Um, and I was a dual philosophy pre-med major. Um, uh, and I took the MCAT, I took the GRE.
00:03:14
Speaker
Um, I had no intention of going to law school whatsoever. And, uh, after I took the MCAT, you know, I kind of, uh, thought about, do I want to go to med school? I also had applied to, graduate schools of philosophy to do some applied ethics.
00:03:32
Speaker
And, I, thought about you know med school is like, you know I don't know if I really have it in me to make that commitment right now. And for philosophy grad school, i was like, there's not a ton of jobs in philosophy.
00:03:48
Speaker
um you know It's not like there's a philosophy factory down the street where you can just get a job afterwards. And so ah punted on both of them. And I went to work um actually really probably about seven blocks that way through my window at a bank, um, doing mortgage foreclosures.
00:04:09
Speaker
Um, and so that was my first real exposure to the law. Um, uh, so ah basically was the guy who sent you nasty letters, gave you nasty phone calls, said your mortgage fee is is behind and then, uh, would knock on your door and say, we're going to foreclose.
00:04:28
Speaker
Um, that's, uh, That's a pretty circuitous route. So then how how how did you get into HR law as a specialty?
00:04:39
Speaker
Yeah, that actually is a real interesting story too. I was running a team of about 13 attorneys and we're serving we all served one client.
00:04:50
Speaker
And what happened is that I was kind of growing out of that role. And i had kind of had that down pat and it was kind of running. and The team kind of ran itself at that point.
00:05:02
Speaker
And I was quite honestly a little bored. And my boss at the time said, hey, we're looking for someone ah that can handle these HR and employment law questions. And we don't have anybody.
00:05:15
Speaker
Who on your team would you recommend do it? And I said, me, I want to do it. That sounds fun. um And so that began what was originally called the HR help desk.
00:05:27
Speaker
um which was kind of a terrible name, ah started real small. We were doing phone calls. I don't know. i think it was like 50 bucks a call. It was, it was a real weird billing method and it started to gain some traction.
00:05:41
Speaker
And this was probably about, ah this is probably about 2010, 2009 ish. And um it just ah kind of took off. And my now boss, Mark,
00:05:54
Speaker
came to the firm and said, you know what, I've got a better idea for how to market this and for how to package this and how to bundle it. And he did. And it took off. We relayed as my HR counsel, we stayed incubated within that law firm for a couple of years.
Understanding MyHR Council and Client Challenges
00:06:11
Speaker
um And then we split off on our own about, ah you know, 2021, we, you know, emerged from our cocoon. so that's ah So that's what brought you to MyHR Council.
00:06:25
Speaker
um That makes a a little bit of sense now. So tell me more about, i guess, MyHR Council. Maybe you can help to explain to everybody, what does MyHR Council do? And tell me maybe what kind of customers that you traditionally work with.
00:06:41
Speaker
Yeah. So we're an online, on-demand law firm, for lack of a better word. um And we're subscription-based at a PEPM rate per employee per month. You pay us a flat rate and we have a system.
00:06:56
Speaker
um It's called Ask. And you submit um you know questions via our portal. And you know anything from hiring to firing, everything in between, we answer those questions online.
00:07:08
Speaker
ah There's a phone app. You can use your phone. um And it's a flat fee. So unlike Traditional law firms, you know, where you call an attorney and you build a minimum of 15 minutes and then they have to research and, you know, you don't know how much it's going to be each month or each issue.
00:07:24
Speaker
ah There's a lot of cost certainty with us. You know, you know what you're going to get. You've got questions. We got answers. um And it's nots not going to be hit with a surprise bill at the end of the month where the price goes up.
00:07:37
Speaker
um Very rarely do I tell somebody that that's not something that we can do or that's included. um You know, obviously like going to court is something that would be excluded because that's pretty time consuming and costly. But from, terms of legal advice aspect, um you know, if you've got questions, we get answers and we're probably going to cover everything that you have coming at us underneath your monthly subscription.
00:08:04
Speaker
um And our sweet spot is, i mean, we have employers, you know, I think our smallest employer has two, like the owner and one employee up to, you know, a medical insurance company that's got thousands of employees.
00:08:20
Speaker
um Our sweet spot though is probably that low to mid tier small business um that doesn't have in-house counsel um or that doesn't have, you know, a super large HR function.
00:08:35
Speaker
um Because that's where we can come in and we can kind of sit shoulder to shoulder with them and help them out as they have questions or we can be their backstop um if things pop up and they're like i don't I don't even know where to start, you know, because we've probably seen it already.
00:08:49
Speaker
That makes a lot of sense. it's it's It's almost like the human powered. Law chat GPT, if there was not AI, but there were like people behind, like the the wizard behind the curtain answering those questions as you type them in.
00:09:04
Speaker
um so as you work with your clients, I mean, what are some of the common HR issues, um you know, we what we like to call maybe people problems that you see with these small businesses?
00:09:17
Speaker
A lot of them are going to be the issues that I see are leave, you know, you be it ah ADA leave or FMLA leave. That's a perennial top three.
00:09:28
Speaker
Those those two are going to be in our top three every year. um And it it becomes tricky because, you know um you know, people call FMLA. Sometimes they call it the Friday-Monday Leave Act.
00:09:41
Speaker
um because, you know, people are intermittent leave and they they like go, I need Friday and Monday off for my FMLA. And how do you manage that? You know, how do you manage those people um that may or may not be abusing the system? Right.
00:09:56
Speaker
um And how do you do it legally in a way that protects you, that doesn't get you sued for FMLA retaliation or discrimination? um so those are a lot of the those are always evergreen issues for us.
00:10:11
Speaker
Are there other, so you know, outside of f FMLA, which I can totally see, um you see other things kind of come up a lot about, you know, remote work, accountability, ah employment classification, things like that um that come up or not so often?
00:10:32
Speaker
Yeah, remote work actually has been creeping up in terms of an issue lately. um I've had a bunch of employers come to me um and basically indicate that they don't think their employees are, you know, pulling their weight anymore because they're working remote.
00:10:49
Speaker
And I can see that. I understand how that works. You know, I've been remote since, you know, probably 2017-ish. um So as I was remote before it was cool, before the pandemic.
00:11:02
Speaker
um And I can see the struggle, you know, with accountability if you're not in the office, right? If you're not there and they go, you know, look out the window, my lawn needs to get mowed. you know, maybe I'll go do that right now instead of work on this spreadsheet.
00:11:20
Speaker
It's human nature to try to avoid things and to procrastinate things that are either unexciting um or you know, that they don't know how to do or that they're scared they're going to screw up. And so the issue I find is that it has been popping up more, um surprisingly more lately.
00:11:39
Speaker
um So it was 25, it's, you know, five years past all the start of the work from home, I guess, revolution. The whole movement.
00:11:50
Speaker
Yeah. um And so it's kind of interesting to me that it's kind of sneaking up now, um especially as all these larger workplaces are doing RTO, you know, return to office stuff, huge.
00:12:03
Speaker
here think that people hearing about that would be like, oh, shoot, I better get my my ducks in a row and show some productivity. But it has been popping up lately, which is surprising to me.
00:12:15
Speaker
So what kind of things do you feel like employers should be doing to, let's be proactive to try to prevent some of these people problems and HR legal issues? and i And I say try because you know they all aren't you know, totally avoidable because people are people.
00:12:37
Speaker
Yeah. I mean, analogy I use all the times, is you can't stop somebody from running a red light and hitting you, right? You know, there are rules in place and if people ignore them, you can't, you can't make them follow the traffic laws. Same thing with ah HR and employment law.
00:12:52
Speaker
I mean, the first step in my book always ah whenever we sign up a new client is we send them out within that first week and employee handbook questionnaire. So do you have one? If not, fill this out, let's get you rolling because employee handbooks are included with all our services. And we want to get that, you know, to use another analogy, that solid foundation um for them to build, you know, their HR compliance on.
00:13:17
Speaker
um And once we know that they have the right policies and the necessary policies in place, um And then we can start going from there in terms of saying, all right, well, um Bob isn't, you know, adhering to the remote work policy. What do we do? And then we look at the handbook, you know, and we say, all right, these are these are your options for what to do with him.
00:13:38
Speaker
And so I think. in my opinion, for my for my two cents, the employee handbook is is the foundation for all of that, to making sure um that you know what the rules are, that you tell the employee what the rules are, and then it's up to them to follow them or not, just like red lights.
00:13:58
Speaker
That's really, that's great advice. I know a lot of small business owners who lack those kind of tools. um Is compliance... with ah HR laws ever a major blocker for, for progress for your clients? I mean, especially so in this new world of work, distributed teams, contracted 1099 team members, you know, lot of that's the new normal, I guess employee misclassification, ah and or even just retaining the right talent in the right way could be an obstacle for lot of companies.
00:14:33
Speaker
Yeah. I mean, uh, was it just last summer? ah We went through the whole Fair Labor Standards Act exempt classification dance again, um which was ultimately struck down by the by the courts.
00:14:47
Speaker
um And so there's always
Employee Classification and Performance Improvement
00:14:50
Speaker
an issue with compliance in terms of exempt or not exempt employees. For example, this morning, somebody asked me a question about deducting pay for exempt employees for missing a half day.
00:15:02
Speaker
And, you know, I understand if you don't understand the law, that seems fair. You didn't work a half a day. You don't get paid for that half a day. But under the Fair Labor Standards Act, you have to get paid for that.
00:15:13
Speaker
um It becomes an employee discipline issue. um Now, there are different ways to handle it. If you have vacation PTO, your policy might say we can deduct ah vacation PTO for half day absences or absences over one hour.
00:15:27
Speaker
You know, but then what happens if that person's out of vacation or PTO? What if their bank's empty? um You know, at that point, ah can you deduct their pay? The answer is still no.
00:15:38
Speaker
You know, you still have to go through the normal discipline ah process and, you know, counsel and coach that employee ah about what they, you know, are doing in terms of their leave.
00:15:50
Speaker
um I've actually seen a couple issues cup up pop up lately that said, um My employee has vacation left, but they just want to take an unpaid day. Is that cool?
00:16:02
Speaker
And, you know, theoretically, sure. But what does that do to your workplace? You know, you, when you set your PTO vacation policy, you you set aside a certain bank of time, right?
00:16:16
Speaker
You say, all right, we know that we can let these people be out for this many weeks and we can still hit our numbers. We can still be productive. We can still get things done. But then people start taking unpaid time and all of a sudden they have unpaid time and paid time. And so instead of, you know, three, four weeks vacation, they're out six weeks.
00:16:36
Speaker
You know, what happens to productivity? um What happens to culture, morale, those team members who are playing by the rules and saying, you know what? I get three weeks of vacation. I'm only going to take three weeks. I'm not going to play this unpaid time off.
00:16:50
Speaker
Or maybe they can't take unpaid time off because they really need the money. um And so it's ah it's a question of equity and fairness at that point in terms of team morale. it's that's that That's really good insight. So how how often do you see leadership actually as the major blocker to progress for your clients, you know, or the reason why these businesses come to meet my HR council to begin with?
00:17:16
Speaker
Leadership usually isn't ah the ah problem. Right. they um do usually see us as a way to solve problems. I know HR is generally seen as a cost center and it certainly can be a cost center, but I think there's a way to leverage HR um and legal in a way to not only make it not a cost center, but to like improve culture and to improve morale.
00:17:47
Speaker
You know, was it Ronald Reagan phrase? i'm I'm from the government and I'm here to help. Um, you know, it's kind of like I'm i'm from HR and I'm here to help. Um, you know, and there's some really, really talented HR people out there.
00:18:01
Speaker
And, uh, you know, if, if they have the tools that they need, ah to succeed and thrive, they can push the company forward. Um, because, know, if you have, you know, for example, discipline and discharge, um,
00:18:21
Speaker
I am against PIPs the way they are normally used. um My wife is probably sick of me hearing this, but I'd say focus on the eye on a PIP, performance improvement plan.
00:18:36
Speaker
Focus on the improvement because it costs so much to attract talent. It costs so much to train talent. It costs so much when that talent is not there. ah You know, you got opportunity cost of things you can't do anymore.
00:18:52
Speaker
um You've got, you know, the burden on the rest of the staff that is, this you know, quote unquote left behind that has to pick up the slack for that employee that's gone.
00:19:02
Speaker
So if you have somebody that's qualified that can do the job, i mean, I'm not saying never put anybody on a PIP, but if you're going to put somebody on a PIP, don't do it as a precursor determination.
00:19:14
Speaker
Do it so that you can save, you know quote unquote, save that employee, rehabilitate that employee and make them a productive member of the team. There's a reason they were hired in the first place.
00:19:25
Speaker
And generally that's because they had the skills to do the essential functions of the job. um And so people don't just turn bad. um What happens is policies are lax in terms of enforcement.
00:19:42
Speaker
um Managers are sometimes scared to confront. um Maybe there's not a formal program um for how managers are supposed to do performance management.
00:19:55
Speaker
Or maybe the manager was promoted from you know an individual contributor and doesn't understand how to be a manager. All of these things yeah play a huge role, you know, in terms of in terms of that. And so if you let HR get involved strategically instead of reactively, you can head off a lot of these issues and you end up saving, you know, it's hard to say, well, I saved that employee from getting fired. So, you know, we can we can't where do you put that on the balance sheet?
00:20:23
Speaker
You don't, but there's a real value to that. Yeah. Yeah. Uh, I think that that's indisputable. Um, let's talk about the business leaders who are nailing it.
00:20:34
Speaker
I mean, beyond the legal compliance, you know, being proactive, you know, are there, are there common personality traits or soft skills or other competencies you see with folks that are leading high performing teams or organizations you admire?
00:20:49
Speaker
Yeah. Um, I think that servant leaders, um, in my opinion, our are really great, especially at the, maybe not at the exact top, but towards the top.
00:21:05
Speaker
um People that understand that their team needs to grow it needs to change and provides them with the opportunities and tools to either explore their interests and grow in that area or to, you know, finally come to the realizations and you know what,
00:21:23
Speaker
Ticking and tying PTO on payroll is not my thing. um I'd prefer to get prefer to get more in terms of the coaching and development, or you know what, maybe I wanna go, maybe HR isn't my thing, or maybe wanna try marketing.
00:21:37
Speaker
And I think that organizations that allow their people to kind of explore those different areas ah only set themselves up for success in the long run.
00:21:51
Speaker
Yeah, no, hundred percent. I mean, what do you think are some non-legal factors you see separating companies that, you know, consistently execute and drive success from those that, you know, flounder?
00:22:08
Speaker
Employee empathy. Um, so understanding where employees are coming from and understanding that employees are not, you know, robots or automatons or a number, um,
00:22:21
Speaker
So I guess that's, you know just caring about your employees. Now, on a certain level, that isn't feasible everywhere, right? You know, if you're running a widget factory and you've got a thousand people on the line, um you've on one hand, you've got to make numbers. But on the other hand, you know, Bob gets a repetitive use injury on the line.
00:22:42
Speaker
You know, why is he getting this injury? Is he going to be OK? You got to worry about work comp. And so. you know, that all gives you an an opportunity to say, why are we doing things this way? You know, is there something we could do to prevent these injuries? Maybe it's not even necessarily um at the individual level, but in terms of a class, like we don't want all our widget makers to come down with shoulder tendonitis.
00:23:06
Speaker
Is there something better that we can do to care for these employees and their in their livelihood?
Technology in HR and Legal Concerns
00:23:12
Speaker
Yeah, I love that. And, um you know, I'm kind of curious. So like,
00:23:19
Speaker
My HR council, it does have a layer of technology to it, right? Are you seeing any interesting changes in how companies are using or leveraging software to support these people or operations to maintain you know or or even maintain compliance?
00:23:38
Speaker
Yeah, I mean, so i have, I'm kind of I don't know, I'm tech curious. So I have automated our employee handbook system um There's an online questionnaire and it helps me cut down drafting time tremendously. yeah just spend hours and hours on a single employee handbook and I've got it down. I've cut ah cut out all the fat.
00:24:01
Speaker
um So it's down to you the bare minimum that I can do while still giving a quality handbook that's legally backed. um I have had people talk to me about ChatGPT.
00:24:14
Speaker
um I have tried Chappie, GPT, Claude, Gemini, in terms of asking legal questions. And they're smart. They're like, we can't give you legal advice.
00:24:25
Speaker
But if you say switch if you switch up how you word it, um um still you know you can get around it a little bit. And i I don't think from a legal perspective, we have a ton to be worried about right now.
00:24:41
Speaker
um I have a Westlaw product that's specifically you know, for lawyers with AI. And I asked it a question the other day and, you know, I was like, that's not right.
00:24:53
Speaker
You don't understand. So there's, um there's some, those, I guess those are my caveats up front is that, you know, there are hallucinations. There are things that it can't do.
00:25:06
Speaker
um But there are things that AI does extremely well. You know, I had to write an email a month ago and it's like, I don't want to write this email. know, I don't know. I was like, I have an idea of where I want to go, but I didn't want to phrase it.
00:25:19
Speaker
And so I spat it into one of the generators and is was like, you know what? That's pretty good. You know, it probably saved me five minutes, but, and I had to tweak it a little bit, but i was like, you know what? it's That's good. I like it.
00:25:32
Speaker
You know? So I think that companies right now, um the ones I'm dealing with, because they're still smaller um and they don't have the scale to have like huge in-house AI dedicated machines yet.
00:25:45
Speaker
Are you using them more for, i guess, mundane tasks as opposed to, um you know, really deep learning stuff?
00:25:58
Speaker
I mean, I used it the other day to write an Excel formula. um I don't do Excel. I do Word. My wife does Excel. um She was busy. And so I ran into, I think it was co-pilot. It's like Microsoft should know this. And I said, write me, you know, I want to, you know, if then it was a giant, if then, and it was going to take me an hour, you know, I was done in five minutes and it was great.
00:26:19
Speaker
I mean, definite that's definitely one of the advantages. Do you ever see tech getting organizations actually like in trouble legally? i mean do you have any tips on how to avoid those issues?
00:26:31
Speaker
Yeah, I've seen it. There cases. And, ah and the ones I can think of off the top of my head have to do with ATS, uh, applicant tracking systems.
00:26:42
Speaker
Okay. So when you go on and you apply for a job online, it asks you, you know, what year or you were born. ah Um, and there was a couple of them that were automatically excluding, um, one guy, the first case I remember the guy was like 80 something years old.
00:26:59
Speaker
Um, And so the birth dates only went back to like 1940 or something like that. And he was older than that. And so he couldn't apply because he couldn't put in his birth date. And so he said it was discrimination.
00:27:10
Speaker
And the EEOC said yes. And they filed a complaint and the employer settled because the ATS you know rejected him because he was too old. um Wow. And such an easy tech fix too. Right?
00:27:28
Speaker
There's another one that came back about a year ago. I remember the exact, but it was real similar in terms of was rejecting people over. It was either. Yeah, it was ah based upon age. And Microsoft and Amazon, and don't know if you saw this. This is probably about five, six years ago.
00:27:44
Speaker
Both got in trouble for using AI. um I'm going to mix the two up in my head. But one of them was using like on a video when they would do video conferencing ah for applicants.
00:27:58
Speaker
they would have AI read the emotions of, you know, the facial recognition ah software would say, all right, he looks angry or he looks happy.
00:28:10
Speaker
And ah it turned out that it was unfairly um applying negative emotions to black people. And so they got in a whole bunch of trouble for that.
00:28:20
Speaker
um I believe that was the Microsoft case and Amazon got in trouble. for using AI to sift and winnow their applications. And so what happened is they were looking for programmers, coders, and somebody applied from an all women's college um and she was immediately rejected because what happened is the AI went through it said, all right, these are all our top performers at Amazon.
00:28:50
Speaker
This is what they all have in common. And they went to these schools and none of them were all women's schools because coding, you know tends to be a male dominated field. And so they felt because she went to this all women's day, the AI felt, if it can feel it, mathed that because she went to this, you know, all women's college that wasn't,
00:29:13
Speaker
It wasn't really represented at all on their list of successful employees that she was rejected, even though she was completely qualified. Wow. That's um that's that's frankly remarkable. I did not know of those instances, but that's crazy to think. so um tell me a So tell me a story about a team, maybe like a client that you worked with,
00:29:41
Speaker
that had, you know, a major people breakthrough or, or break down for that matter, potential client. I mean, you don't need obviously name names, but I'm, I'm really curious to hear, um, about, you know, sort of a, of of a pivotal moment that had to do with some ah HR legal HR related activity.
00:30:06
Speaker
That's a great question. I'm kind of drawing a blank right now, be honest. So let me think about this one for a second.
00:30:14
Speaker
You know, I know that... So a lot of times, you know, when... when um You know, at least at least what I find, you know, leaders, team members, um you know, you made an interesting comment. And when people, you know, when you bring on new clients, you ask, you send them this questionnaire, right? Do you have a handbook, right? So there's a lot of small businesses that are totally unprepared for, you you know, certain things that come up, you know, and and a lot of that might be because be because they re lack ah they lack certain tools or guardrails or whatnot, right? And so um I've seen organizations, you know, who when they pivot to a really more well-defined and focused, you know, HR-related strategy, that their culture improves significantly. I've seen other cases where they try to do things and then have
00:31:05
Speaker
you you know, half their team leaves because, um you know, they've created this environment of, you know, feels like heavy policing, um you know, and I'm really kind of curious, have you ever seen any of these instances where some all of a sudden just shot through the roof and others were it like a complete disaster?
00:31:27
Speaker
ah I'm trying to, I don't think I've seen any um completely flame out. I have seen obviously clients when they, when there's change employees and people sometimes are resistant or scared of change.
00:31:41
Speaker
um And so people will self-select out um as, as, as opposed to staying. i haven't seen anything where, um you know, like the entire marketing quit because they're sick of this new PTO policy or something like that.
00:31:55
Speaker
um I have had, I mean, but that is ah significant, whenever you start talking about benefits and pay and whenever you start changing vacation policies and PTO policies from the old system to the new system, a lot of people, especially those that have been there for a while are like, you know, against it because, you know, this is what I was, you know, what I was promised.
00:32:19
Speaker
um But everyone's, Everyone's an employee at will, except for those of you who have people in Montana, um and which means that you can be hired and fired at any time for any reason, for no reason, for bad reason, for a wrong reason, as long as it's not you know discriminatory or otherwise prohibited by law.
00:32:38
Speaker
um And so I think the real opportunities um for a ship to go on the rocks is not managing those change moments where you're changing a big part of a benefit package.
00:32:50
Speaker
um And companies survive this all the time. You know, my wife used to work at Rockwell Automation um and they had a pension plan. um Before she started, they had a pension plan um and people that have been there for a while are still on the pension plan.
00:33:06
Speaker
Pension plans are incredibly costly, you know, you've got to put that money away. You've got to sock that money away as opposed to, you know, a defined contribution plan, like a 401k.
00:33:18
Speaker
um Those are much more cost effective for employers. um And obviously, i mean, I can't, I can think of maybe two, i don't know, maybe 10 employers that I have that still have pension plans as clients.
00:33:35
Speaker
And, you know, I've got like 12,000, twelve thousand 14,000 clients that you know subscribe to my HR council. So it used to be the thing, everyone had a pension plan and everyone managed the change. And so the key, i guess, doesn't really answer your question, but the key moment there is that you need to have strong change management skills in order to not flame out or not lose entire teams.
Adapting to HR Legislation Changes
00:34:04
Speaker
Yeah. I think that's probably the big lesson there. Just to provoke some some future focused thinking, what do you think is coming down the pike in terms of legislation and new regulations and in the workplace? What do you expect to see?
00:34:22
Speaker
i did ah I did a couple of webinars on this this year already. I did one right after the inauguration. I think I did another one in March and I was completely wrong on everything so far. um and so maybe maybe times a chart Let's see if my track record will stay straight. Cause I did say there's no way either the house or the Senate passes to no tax on tips bill and the Senate passed it already. So um that one's up.
00:34:46
Speaker
ah That one will be interesting. Um, I can't believe the Senate passed it when the Senate is currently holding up the, was it the one big beautiful bill act or whatever it is because of money?
00:34:59
Speaker
um Because that's a huge revenue source, taxes on tips. And they also talked about taxes on overtime. Will that eventually happen? I'm still going to say no. I'm to stick to my guns.
00:35:11
Speaker
ah Even though the Senate passed it, I don't know what the House will. um And I don't know what happens in the House with that. you know You had mentioned 12,000, 14,000 subscribers or clients to MyHR Council.
00:35:25
Speaker
um How do you see your work evolving as companies and specifically even you know small businesses or small to medium-sized businesses get more intentional about their people and their culture in the workplace and adopting new technology?
00:35:44
Speaker
Yeah, I think my role is ah to act kind of like, you know, the bumpers on a bowling alley to keep them out of the gutter to make sure that they don't go, you know, and do something that is going to get them into legal hot water down the road.
00:36:01
Speaker
um I never tell ah client. you know, that they can't do something. I mean, I tell them that it'd be illegal if they do it. And it would be my suggestion that they don't do it because everyone gets to make their own business decisions, right?
00:36:16
Speaker
They're the ones they get to sign on the dotted line. I can tell them advice, i can give them options. And so what I would like, to what I like to do, you know, as new technology evolves and as, you know, new things come to pass is like, all right, this is what's happening.
00:36:33
Speaker
These are your options. you know, similar to when they raise the, uh, or try to raise the exemption for, uh, salary level, you know, your options are to raise employee salary, change them to hourly, you know, whatever.
00:36:50
Speaker
And is there one answer? There's never one right answer. That's going to apply to all my clients or any company in the world. Um, And every company is going to have to do that balancing test, the cost benefit analysis, what makes sense for us, you know, what doesn't make sense for us.
00:37:08
Speaker
Right. So what do you, give me, give a, give me an idea here. what What's a common, maybe like a legal misconception that really persists, I guess, for, for business leaders. Do you see Yeah.
00:37:28
Speaker
I mean, I'm going to jump back to the first thing we talked about is like one of the, one of the things we see most is FMLA. um And what a lot of people don't understand is that once an employee has exhausted his or her or their FMLA leave, that's not the end of the story.
00:37:48
Speaker
um You don't get the firearm because they aren't back within their 12 weeks. At that point, you also have, other hurdles that you have to jump over in terms of the ADA, you know, do they need an accommodation?
00:38:00
Speaker
Is unpaid leave an accommodation that's available to that employee? And would it be an undue hardship? um And it depends on what state they're in. I believe the Seventh Circuit doesn't like that.
00:38:12
Speaker
um But I think every other circuit in the country is okay with, you know, that sort of thing. And people just thinking like, all right, 12 weeks and then we're done.
00:38:24
Speaker
It's not, you know we're not done after 12 weeks. There's other things you got to consider. I, yeah, I mean, and that's that's that's really good advice. if you could give...
00:38:35
Speaker
I like to bring up this scenario. If you could give a piece of advice to a business leader, right? Who's trying to really just get it right with their people. Let's say you have an opportunity. You got like, you know, 15, 30 seconds, right? You're both on a plane exiting the jetway. They grab their bag.
00:38:52
Speaker
They're about to walk down the thing and they just ask you, what do I need to do to get it right from day one? What's your advice? What's the one thing you tell them? I'm telling two things. Number one, have an employee handbook.
00:39:05
Speaker
It's a good foundation, right? And number two, be consistent with your enforcement. um Because what drives litigation is employees being felt like they're being treated unfairly.
00:39:20
Speaker
If employees think they're being treated unfairly, or if they don't understand the reason for a decision or termination or whatever, ah they're going to connect dots in their own head. And they're going to say it must have been because, you know, I'm, you know, I'm Polish and I'm from South Milwaukee.
00:39:37
Speaker
No, the the reason, the reason is because you showed up late to work 12 days in a row, you know, but if you don't communicate if you don't apply policies consistently, um,
00:39:49
Speaker
the employees are kind of left wondering and that's where you can get into trouble with lawsuits or EEOC or state equivalent claims when you can head those off at the pass just by just being consistent and having solid communication down the road.
00:40:06
Speaker
I mean, that's that's great advice just to build solid culture to begin with is that consistency and reinforcing those positive values and, and you know, how how everybody is really, I think, held to the same standard when that stuff breaks down. I mean, that's a, that's a quick trip to, um you know, having things fall apart pretty, pretty quickly. So Andrew, man, thank you. Thank you so much for, for this chat, for this conversation, a lot of amazing, amazing legal insights. And um I want everybody to visit my ah HR council because it's a pretty incredible ship you run.
00:40:42
Speaker
So thanks again. Yeah, you bet. Thanks for being here. Thanks for tuning into Mustard Hub Voices behind the build. Share this episode with a friend or teammate or even your boss.
00:40:53
Speaker
Check out mustardhub.com to see how we help companies become destinations for workplace happiness and turn culture into a competitive edge. Until next time.
00:41:04
Speaker
now.