Name: Employment Law 101: Compliance Risks Every Employer Must Know
Uploaded: 2026-09-02T18:19:16.809Z
Duration: 1 h 3 min 47 s
Description: Employment Law 101: Compliance Risks Every Employer Must Know

Transcript for "Employment Law 101: Compliance Risks Every Employer Must Know": Hi everyone and welcome. Thanks for joining, Employment Law 101 Compliance Risks Every Employer Must Know. I'm glad to see so many of you here today. And we'll move into our next slide. So most organizations already know they're required to follow employment law. You write the the policies, you post the required notices, and you respond when a problem lands on your desk. But that's often, you know, where it stops. The real risk shows up in the gap between checking those boxes and actually knowing how those or these rules play out day to day. That's the gap we're here to close today. So before we dive in, let me set some expectations because I want this hour to be useful to you no matter what your role looks like. This is a practical session on employment law fundamentals, and it's built for HR professionals, for people managers, and for business owners. So if you're wearing more than one hat at your organization, you're in the right place. Our focus is reducing your legal exposure and helping you avoid the mistakes that create that exposure in the first place. Here's what this session is and is not. It's not legal advice and it's not jurisdiction specific counsel. Employment law varies quite a bit by state and even by city, so treat everything today as a foundational, explanation and not a final answer to your specific situation. This also isn't a deep dive into every employment law on the books, and it's not a theoretical overview. We're focused on what's happening right now in real workplaces and what you can actually do about it. So we're just gonna jump into a few housekeeping items. The recording will be sent out after the event. So if you need to step away or you need to want to revisit something later, don't worry about it, and you can catch up, with the on demand recording. Please put your questions in the q and a box. You'll see on the top right of the screen, there's a chat panel and a q and a panel. We'd love for you to put that in the q and a. It's easy for us to peruse and answer them at the end of the session. We've also built a couple of poll questions. The polls will show up in that q and, in that panel as well when we launch them during the session, and we'll let you know when we do that. A survey will launch towards the end of the session. It also takes it only takes a minute, and your feedback generally shapes how we build these sessions going forward. And the last thing, we will drop registration links in the chat, for upcoming webinars so you can go ahead and register for them. Just a quick note about who we are. For anyone who's new to Mitratech, Mitratech serves more than 28,000 organizations across legal, GRC, and HR solutions. Our HR solutions business is focused on helping employers manage the full employment life cycle, from the moment you hire someone through every stage after that. We do that in two ways. We do it directly. You we provide expert tools and guidance, for employers navigating the compliance demands of hiring, managing, and retaining people. And through partners, we work with leading companies like health insurance carriers, HCM payroll platforms, and benefits brokers to bring our solutions to their clients. What we cover spans HR compliance and guidance, employment eligibility, and I nine support, background screening, performance and talent management, and our newest, solution, leave management. So if you have any issues with FMLA or leave, it's a great solution. We'd be happy to talk to you about it. So a little bit about our presentation today, I'd like to introduce Kara Govro. She leads our legal and HR analysis on employment law and compliance issues here at Mitratech. She's both an attorney and a certified senior professional in human resources. So she brings a protect practitioner's lens, to the risks that matter most for employers. And before we turn the presentation over to Cara, we're gonna launch a quick poll. Let me move on to the next slide and give you a preview of that poll. And so let me go ahead and launch that for you. There it is. So we're gonna open that poll up, and you'll see a poll tab in between chat and q and a. So which of these compliance areas are you least comfortable with? So a, at will employment and termination decisions, be unlawful harassment and the hostile workplace claims. C section seven of the. What's that? We're going to find out today and D worker classification and wage and our rules. So we've got a number of people putting in, votes into the poll. So we'll just give folks another second or two, and we're gonna go ahead and close that out in, three, two, one. So go ahead and close that out, and let's share the results here. And so some interesting results here coming out at will employment, almost 13%, unlawful harassment and hostile workplace claims at 13%. Section seven of the NLRA, wow, coming in at 54%, and worker classification and wage and hour rules, at 21%. So those are some interesting stats. So we'll return to the presentation. And let's let's welcome Kara to the stage. What did you think of that poll, Kara? Or oh, there I am. I'm here. Okay. Great. Hi, everyone. Yeah. That poll went actually about like it usually does. Most employers who attend this presentation or, or, or one like it, say that the NLRA is what they're least comfortable with. I think a lot of private employers don't even know that any part of the NLRA applies to them. So it's a kind of a soapbox I've been on for about a decade now. And, I look forward to talking about it some more today with all of you. Awesome. We'll take it away. So, all right. So our agenda is to first look at Atwell employment, then harassment and the hostile workplace. I think both of those terms have a fair bit of misunderstanding around them. So we will attempt to, to fix that a bit. Then we will get to, section seven again. Like if you have no idea what that is, we'll talk about the parts you need to know. Then we'll talk employee classification for a little bit as that is an area of significant financial liability. And those errors are often very easy to prove for, employees or former employees. And, then I'll turn it back over to Brian for a few minutes to talk about, some ways we can, we can help find out if you need help. And then I'm gonna do Q and A, and hopefully we'll have a good amount of time for that. And, I'll also be watching the Q and A throughout the presentation. So if you have a question that's related to the slide I'm on, feel free to throw it in there. And if I, if I catch it, I'll I'll address it while we're, while we're going through. Alright. So let's go ahead and get started with at will employment. So, three of the four topics we're talking about today are heavily rooted in law, written statutory and case law, things that are are really easiest for us to to see. Whereas, at will employment is actually sort of based in a absence of law. The United States is pretty much the only country in the world that, doesn't have laws around. Once you hire someone, you have to have good reasons to get rid of them and you have to go through seven steps and you have to give them all sorts of warning and all sorts of severance. The U S is pretty unique that way. So our, our theory of at will employment is really based on a lack of any laws around, that hiring and firing and the employee life cycle process. So it's kind of interesting that way. So, what does that really mean? Well, first up, we've got no promise of continued employment, assuming we do have a valid out will relationship, which most employee relationships are are in fact at will in The United States. If yours isn't that will, you almost certainly know it because there is a a contract involved, at, at the beginning, Montana also is technically not an at will state, although you do have at will employment through the introductory or probationary period. Assuming you've set one of those. So when you bring someone on, you're not saying they get to stay forever. Employment is open ended, and nothing is going to earn the employee tenure or or the right to to be there forever. Also, the employee isn't promising to stay forever. There there's really just no contract, no agreement that either of you is is committing for life or for a certain amount of time. So, that's that's sort of part one. Now I do have a practice tip in there, about use of the term probationary period. So if you're calling this introductory period, which often employers have, and it'll be sixty to ninety days, if you're calling that a probationary period, I would strongly encourage you to switch the name of that to an introductory period, because at least one court, it wasn't a big court, but at least one court has found that using that term, could create, or I should say, could interfere with the at will relationship. Because generally when we're talking about a probationary period, it is with relationship to employment contracts. And once you're beyond the probationary period, you are in fact, guaranteed employment unless certain conditions, are met or certain things happen. So it's a minor switch if you're using probationary, and and you're not a union environment and you don't have contracts, I would encourage you to just switch that out for introductory period. Alright. Another aspect of at will employment is that no notice is requirement is required. So you can let the employee go today. You can say this is this is your last moment of work right now with no additional notice, or you can give a day of notice or two weeks of notice. Likewise, the employee can do the same. We ask them to give two weeks notice, but we can't require two weeks notice. Otherwise, we have technically interfere with the Atwell relationship. Now can you write in and out parts of the Atwell relationship? Yes. You can. I mean, I I worked at a firm where I had a thirty day notice requirement and it went both ways. My employer had to give me thirty days notice too, but the rest of the at will relationship remained. So I could put for any reason. He could fire me for any reason. But we did agree to that thirty day notice period. Generally, most employers are not doing that. We don't wanna do that. And if you try to require it of the employee, a court could potentially say that you should have offered them, the same or that you you did offer them, the the same courtesy. So we can make some mild threats, you know, like, we won't give you a good recommendation if you don't give us notice, something like that. I wouldn't encourage that. But we can't absolutely require it unless we wanna get into contract territory, in which case we have, sort of interfered with that out well relationship. Now if you wanna get rid of someone right away, even though they've given you notice, that's fine. My practice tip here encourages you that encourages you to think about paying them. You don't have to. Maybe that's too expensive and it's not worth it. You don't care. But you might wanna consider paying them through their notice period if you're worried about unemployment insurance, that they could get and how that might affect your rates. Like, if you've already got high turnover and you're trying to avoid avoid any more of it because, if you, if they give you notice and they say, I'm giving you my two weeks notice and you say, great. We don't want you here. Leave today. And you don't pay them through that notice period. A lot of states will see that as instead an involuntary termination. So you've turned a resignation into a termination, and you could be on the hook for unemployment insurance. Now granted, most employers aren't just paying out unemployment insurance. It's not like you just give the employee the money yourself. You know, you've you've paid into the program. So if you don't have a significant turnover problem, that's that's not likely to affect you. You you don't need to worry too much about it. Alright. So next up, another aspect of this, the biggest aspect probably is that there's no good cause required. In fact, there's no cause at all required. You don't have to have a reason at all. You don't have to have a good reason. You can have a bad reason, but you can't have an illegal reason. And And an illegal reason would be one related to someone's inclusion in a protected class, or the fact that they have a protected characteristic or that they've used a protected leave or a protected right. So if they've exerted their section seven rights that we'll talk about in a little bit and you fire them for that, that would be illegal. If they report you to OSHA for a legitimate safety violation, and you fire them for that, that would be illegal. But you can fire someone because you didn't like the t shirt they wore that day cut or they gave you the stink eye or whatever. Absolutely not. We good business related reason, to to avoid litigation because if you don't have a good reason or maybe you've got a good reason, but for some reason, you don't wanna tell the employee what it is. You'd rather say, oh, we're an Atwell employer. We don't have to tell you why. Or, you know, I'm just gonna tell you it was a bad fit. If you don't give an employee a good justification, they will often write their own story, and then they will take that story to an employment attorney. And they'll say, I was fired for for x y z reason, that was illegal as opposed to the real reason that you decided not to share with them. So I've kind of already bled into my next slide here. We we wanna be careful with that. So an example I I've given many times, and this is, this is true. This is probably all almost twenty years ago. Now a friend I knew from college posted on Facebook about how she'd been terminated from her restaurant job, on the spot for coming in with, with hot pink hair. You know, we were like in our early twenties and I didn't think of it in an employment law context back back then at all. But you know, that employer was within their rights as an Atwell employer. You know, even in Montana, they probably could have said it was a business reason because, you know, they're a classy restaurant and they don't do pink hair. But for instance, if that friend had told her manager the day before or the week before that she was taking anti anxiety meds or that she was gonna need to take some time off, to take care of her parents in the near future. You know, that's the story that that she might feel like taking to a plaintiff's attorney. She might say, this wasn't about the pink hair. I had to fix the pink hair in ninety minutes with some box color from CBS, but instead, they terminated me. And I think it's because I told them I was on anti anxiety meds or because I was gonna have to take leave. So, we don't want to use that willy nilly. You wanna think a couple steps ahead to if I use this really poor excuse or sorry, not poor excuse, but this this not very business related reason for letting someone go. You know, could that bite me somehow? And and often the answer is yes. So, we really do generally wanna have some documentation. We wanna have some solid business related reasoning for why we've made the choice that we made. I could definitely talk about this for a full hour, but the bottom line is we want to be able to have some kind of evidence that we gave the employee a chance to fix their behavior. Doesn't have to be 10 chances, but probably at least one chance, that there's at least a little bit of a write up on what happened here. If we don't have at least that much, it just makes it really easy for employees to, to write their own story and to take that story to someone who will then make your life uncomfortable for a while. You know, even if you win at the end of the day and that employer could prove that it was related to the pink hair and that it was totally at will and it had nothing to do with the anxiety or the potential leave, they probably spent tens of thousands of dollars on attorney's fees. So you just really wanna stay out of that in the first place. Alright. Let's move on to unlawful harassment. Now, like I said, this is one where there's a fair bit of confusion, particularly around the term hostile workplace. So we are going to, spend some time on that one for sure. But we need to start with the foundation, which is what is harassment because not everything is harassment. Employees throw that that word around really loosely, and they throw their own house to workplace really loosely when they shouldn't because these terms do have a a very specific meaning under the law. So harassment is unwelcome conduct based on a protected class. That's what makes it illegal employment related harassment as we are concerned about it as employers under the law. If it's not related to protected class, it's not this type of harassment. It's just not. So if we don't have that protected characteristic, that protected class, then or or that protected activity, then it's it's not harassment. It's it's annoying. It's bothersome. It's toxic. It's problematic. It's something else we should fix, but it's not, it's not employment harassment of the variety that that we're talking about as employers. Now not even all harassment is necessarily illegal. There's a threshold. Right? You can have a little bit of harassment that doesn't rise to the level of being illegal. So when does it rise to the level of being illegal? Well, either when you have to continue to tolerate it to stay employed. So that could be, like, pretty bad, consistent harassment, but you've been told, hey. That's just how that person behaves. Deal with it or leave. Pretty straightforward. Right? Or it is severe or pervasive enough that it creates a work environment that a reasonable person would consider intimidating, hostile, or abusive. Still has to be related to a protected class. So we gotta start with the term harassment, so keep going back. Protected class, protected class, protected class. Every time I give this, somebody says, what about swearing? Well, if they're only swearing at the black employees, that's a huge problem. If they're swearing at everybody, then it's it's toxic. It's problematic. It's uncomfortable. It's something else you should fix if it's bugging a lot of people, but it's not harassment because it's not based on a protected class. So how do we know, if something is severe or pervasive? And severe and pervasive is what, as you can tell probably from that definition, brings us into a hostile workplace claim. So if it's occasional, if it just happens once or twice, if it's really mild and inconsistent, then it's not going to rise to the level of being illegal. So when an employee reports something to us for the purpose of figuring out whether we're gonna have down the road liability, we are looking for severity, pervasiveness, and, of course, that it's actually related to a protected class. So these are some examples, and I do wanna point out that this will ultimately be determined by a court. So I've given some likely examples in 2026. Now if you go back twenty years in the case law, in in employment harassment cases, they considered some pretty egregious stuff to not be harassment. They were like, oh, that's not severe or it's not pervasive. I mean, some of the some of the cases are are pretty wild. I think we have a very different culture now. And so I'd I'd be willing to bet that my examples would would be legitimate, but, ultimately, a court could say, no. We don't think that's severe or pervasive. So I'm just, I'm putting a big caveat on that, that, that I can't guarantee that these, these would be found one way or the other by a court, but I think it's pretty likely. So just straight up grabbing someone, right? Particularly their their butt, their breasts, you know, sensitive areas, right, that that would probably be severe harassment, particularly if it was done more than once. Circulating a picture of a coworker naked, even if it was made by AI. I think that would probably be severe harassment. If I weren't the judge on that case, I'd be thinking that was severe harassment. Leaving a picture of a swastika or an actual like physical noose on someone's desk. I would consider that severe harassment personally, again, what a court couldn't tell you, maybe not. Maybe they'd want that to happen more than, more than a few times before it became, severe or pervasive, but I think it's a decent enough example. And then we've got the old standard, right? Offering, someone a promotion for sexual favors or saying, unless you give me the sexual favor, I'm going to demote you. That's pretty straightforward. Right? And then pervasive harassment, I think, is the one that's much more common, probably, and much more difficult for employers to sort of wrap their heads around, because it's it's the kind of thing where the first few times it seems fine and a lot of managers are gonna blow it off. They're gonna say, oh, that's just so and so being so and so. Don't worry about it. He just thinks he's funny and he's not. That's that's the kind of harassment that that becomes pervasive and eventually rises to the level of being legal. So an example, let's say you've got an employee. His name is Robert and he is particularly religious. So, he has he keeps a bible at his desk, and he prays over his food at lunch. And there's another employee who, you know, works in his department who has started calling him Bible Bob. And he calls him Bible Bob in the hallway, and he calls him that in the lunchroom, and he calls him that in meetings. And maybe Robert has let it slide because, you know, the first time or two, it was, like, not that big of a deal. Right? You can kinda get over that kind of thing or brush it off just if you're used to being bothered about those things. But, you know, after the fifth or the tenth or the fortieth time, that's probably gonna be unwelcome conduct. It's definitely based on a protected class, and it's pervasive. I mean, it's kind of the definite definition of pervasive. So, you know, a manager who gets that complaint, even from another person, it doesn't have to be from Robert. It doesn't have to be from the religious employee who's being bothered. It could be from another employee who's bothered by this behavior. If it gets blown off as not a big deal and it's not dealt with, that can become, you know, pervasive harassment if we, if we don't put a stop to it in a, in a really valid legal claim there. So that's the kind of thing that we're, like, managers really need to be trained to understand these concepts, or or HR, whoever's taking these complaints. If you wanna skip managers entirely and say, please bring all complaints to HR. That's fine. We do usually wanna have options for employees though. They could take it to their manager. They could take it to HR. They could take it to, you know, name some other person in the company who, for whatever reason, is unbiased and seem qualified, whatever. We wanna give them a couple options, though. If they only have one option and it turns out it's that person that's engaging in the unwelcome conduct, that's obviously problematic. So I've already sort of explained the hostel workplace, but I I wanna double down here that it's it's not created by generally crabby bosses. It's not created by personality conflicts. It's not created by swearing or yelling unless these things are related to someone's inclusion in a protected class. Again, employees love to throw this around. Oh, this is a hostile workplace just because someone's, like, mean to them. Right? And a coworker is mean to them on a regular basis, maybe because they're bad at their job, or maybe because the coworker doesn't get enough sleep, or they're just an inherently angry person. That creates an uncomfortable workplace or maybe a toxic worse workplace, but it doesn't create a hostile workplace of of the, you know, employment harassment variety. So, doesn't mean you shouldn't deal with it. You almost certainly should deal with it, but it's a different thing. Right? It's it's a different beast, and it certainly has a lower set of legal obligations. You don't really have any legal obligation to deal with an uncomfortable workplace. It will probably increase the likelihood that you'll eventually get sued for something, but it doesn't inherently create legal claims. A truly hostile workplace does create legal claims. So that's why we care more about, about the specifics here, because we wanna make sure if we have crossed the line into this actual illegal behavior that we're, that we're jumping on it. And we're taking our responsibility to investigate that and put it into it seriously. Okay. Let's talk about section seven, the thing that so many private employers, I think, don't even know applies to them. So the National Labor Relations Act has been around since 1935. It is our oldest generally applicable employment law as far as I can tell. There are a couple older, like, real way acts, but I did some research on this one day, and I'm pretty sure it's our it's our oldest employment law. It's generally applicable. And just the name makes it sound like it's about unions, and most of it is. That's not untrue. But there are some specific parts that apply to all employers. And, what I'm gonna harp on quite a bit here in a minute is related to employees' ability to talk about their pay and their wages and their salary. But before we launch into that, I do think we're gonna take a poll. Alright. Yes. We are gonna do a poll. I have just opened it. Does your organization have any written or unwritten policies discouraging employees from discussing their pay? Answers are pretty simple. A, yes. B, no. C, not sure. So you'll see that whole tab open on the right side of the screen. We see a number of folks putting in their, answers as we speak. And give me a couple more seconds, and then I'll close it out. And looks like no is firmly in the lead, but let me close that. Thanks for participating, and let me share the results. And, yes. Coming in just around 10%. No. 76%. Wow. And not sure. 14%. What does that say to you, Kara? Well, I think those numbers would have been totally flipped ten years ago. So that's good news. Basically, nobody should have that kind of policy. So the fact that, you know, more than three quarters of you are sure that you don't, is is very good news. Those of you who said yes, I would encourage you to dig in a little more on that. Technically, under the federal law Brian, can we stop sharing so I can start yapping more about the law? Yep. Oh, sorry. My apologies. Let Ruby do that. Stop sharing. Okay. I'll go back to the slide presentation. Okay. Cool. So section seven, does technically only protect nonsupervisory employees. So if you said, yes. We have a policy like that, but it only applies to maybe managers or the CEO or the CFO, you know, your your top level people who are definitely in supervisory roles, that might be okay. If you said yes, and you're applying that employee sorry, applying that policy to employees generally, including those who are not supervisors, you should get rid of that policy, like, this afternoon because it it's it's illegal, and it has been for a very, very long time. The National Labor Relations Board, which enforces the NLRA, has been saying in very clear terms since, like, I think the oldest ruling I found was 1981 that, employers can't stop employees from talking about their pay, at least these non supervisory employees. On top of that, most states that have a second wave pay equity law so I'm just gonna go ahead and say probably the bulk of of blue states or democratic states, have a law on the books that actually says all employees can talk about their wages, even supervisory employees. So, if you're in Oregon, Washington, California, New York, New Jersey, you know, Massachusetts, Colorado, I can name a bunch more. You have a law that says everybody gets to talk about their wages. So, if you do have that policy, that's one you should be looking into getting rid of, as soon as possible. So section seven is where that rule comes from. And section seven says that all again, non supervisory employees have the right to organize and engage in concerted activity for the purpose of their mutual aid or protection, not some really old language concerted activity means in concert. So it means that two or more employees are involved. So if two employees are talking about their wages, it becomes concerted activity, and it's protected because we assume that them talking about their wages is for their mutual aid or protection. Mutual aid being they probably wanna have better wages, and that's why they're talking about it or they have concerns about their wages. So that's where the mutual aid and protection comes in. There's also terms and conditions of their employment has been part of the interpretation of that. So terms and conditions, of course, includes pay. So ultimately, section seven says, if two or more employees are involved in a conversation about pay, it's protected, it's allowed. And section eight says you can't punish them for having engaged in that activity. So, a couple more examples of per concerted activity on this next slide. Excuse me. Sorry. I have a cold. Employees discussing their wages as discussed already. Employees complaining about safety concerns or other workplace conditions. Collectively opposing something, maybe a vaccine mandate or an operational change or pay cuts doesn't mean they're gonna win at the end of the day, but they have the right to complain about it and organize about it and talk about it with one another. It could potentially be concerted activity even if it only seems like one employee is involved if that one employee is speaking on behalf of a larger group of employees. So if they've nominated one person, the brave person to come talk to management about the current scheduling system, for instance, you would not want to punish that one employee for coming to you because ultimately that was concerted activity because they were speaking on behalf of others within the organization, and they did that together. Circulating in petition, starting to talk about unionization. These are these are protected activities and even employees going directly to the media, a couple of them, to complain about your organization, that would be a protected concerted activity that, you would certainly at least wanna talk to a lawyer before punishing them for. Another surprising aspect of this protection for some employers is that it covers social media in many or most cases. So they're allowed to say it. The question will come down to whether it's concerted or not to determine if it has protections. So there have been a couple cases where basically an employee posted something, you know, kind of like aggressively against their employer, something really mean about their employer, but related to their terms and conditions of employment. And they posted on the like Facebook and it became concerted activity because at least one other employee, put a reaction on there, like gave it a thumbs up or put a comment along the lines of, yeah, preach brother, you know, something like that, or you got it, or I agree, or, you know, screw management, basically any involvement from other employees made that concerted activity on that social media post. So that's another one. If, if you found out that someone has said something mean or rude about the company online, but it appears that other employees may have supported them in saying it, that's not a leak to termination situation. That's probably a call and attorney situation if termination is really the direction you wanna go with it. Now there are some limits on this. An employee can cross the line into just being straight up defamatory. If they're just saying things that aren't true about you, they're saying there's roaches in all the food, you know, or dead rats in the bathroom or something, and these things aren't true, then, then that's not going to be protected activity. But if it was a little bit true or potentially true, you know, that line can become very fussy. So this is this is one where if employers call us about it, you know, we we do have some good guides on the platform, related to, like, employee political conversations in the workplace or employees going to protests. And we've got some q and a's, our advisors or our experts are are qualified to talk to you about this. But often this comes down to sort of particularly if the employer really wants to to go the termination route. But we can help you get a sense of whether something that happened is likely to be, likely falls under, you know, the activity, the conditions of employment, and and help you think through your reaction to something like that. So it's also, important to realize that workplace policies are impacted by the National Labor Relations Act and the decisions of the National Labor Relations Board, which enforces that law. So, for years, they've had a test for determining whether workplace policies inherently violate section seven, because they sort of imply that employees can't or or outright tell employees that they can't, get together to talk about their terms and conditions of employment. But lots of times it's implied or it's like a three steps down the road. This policy could potentially impact their ability to engage in concerted activity. It's not always obvious. So the the rule that's out there right now, I kinda thought this would be overturned, and become more employer friendly or employee unfriendly, since Trump took office because this generally does flip back and forth with presidents. This test will, basically be changed. Like, you know, the, the board will decide a different test should be applied, but we haven't seen this change yet, even though Trump's been office in office for a few years this time around. So we still got what's called the stair cycle decision from 2023. And the test there was whether a challenged rule that has a reasonable tendency to chill employees from exercising their rights incur like, basically tell employees that they shouldn't exercise their rights is presumptively unlawful. So assumed to be unlawful, incorrect, illegal, unless the employer can prove that they had a legitimate and substantial business reason and that they couldn't address it with a less restrictive policy. So, an example of this was, excuse me, an employer policy that prevented recording in the workplace everywhere. So just absolutely no recording in the workplace. And, the, at, at the time this was year of fact, but this it's still a valid example and the national labor relations board said that's too restrictive because it's possible that they're in the lunchroom and they wanna record a meeting about future unionization, or, you know, their pay or their hours or something. So they want to engage in concerted activity. They can't all be there at once. They want to record it and share it with their coworkers. So restricting video everywhere all the time is too restrictive. So, so it, it violates, it violates, you know, our standard for, for these types of policies. Instead, what you should have said is no video in sensitive areas, right, or no video of confidential papers or confidential activity or, you know, stuff where national security is on the line in this part of the building, whatever, because there was a less restrictive policy available there. That's what the, employer should have opted for. Excuse me. Alright. Let me see if there are any questions on this section right now. Alright. Someone made a comment that we have policies stating that employees can discuss their pay if they want and only if they want, and whose pay they're allowed and not allowed to discuss. That wasn't phrased as a question, but I'm gonna assume it was sort of a question. I wouldn't, prevent employees from talking about other people's wages. I don't think that really works, particularly if that other individual has shared their wages. Now if you're specifically talking about, like, a policy for HR or managers where it's like, don't share other people's wages without their permission, that makes perfect sense. We don't want HR out there just sharing everybody's wages with everybody else unless they've asked for that. But if if I find out if if I share my wages with Rebecca because we're comparing, right, and then Rebecca shares my wages with Dan, like I don't think HR should be saying, Rebecca, you can't talk about Kara Govro's wages, even though she shared them voluntarily. So, that policy may or may not be okay. If it's really about like ensuring confidential information, as far as a single individual is concerned stays confidential, like maybe I don't want my information shared, then of course that makes sense. We wouldn't want HR making wages, water cooler, conversation, but saying if you found out what someone makes, you can never repeat it, that probably doesn't work. Alright. Let's move on. So let's talk about employee classification. Again, apologies for the coffee. This is an area of significant liability. There in my opinion and estimation and experience, there are two main ways employers get sued. One's related to wage an hour. You didn't pay somebody right. And the other one is harassment or or discrimination. Those kinda go hand in hand. Somebody who's discriminated against or harassed. Let's see. We can get the primary ways for employers to get in trouble. And wage an hour is the one that's really easy to prove most of the time. And a lot of that does boil down to classification. So let's talk a bit about classification. So, our classification rules, both with respect to independent contractors, and exempt employees comes from the fair labor standards act. That is also a very old law, just a little older than, the national labor relations act. It's actually a pretty short federal law as federal laws go. I printed it out and put it in a binder about a decade ago and think it's only like 55 pages. So it doesn't actually say all that much. There there are, of course, many, many regulations that have been been written around it since. The Fair Labor Standards Act doesn't apply to independent contractors, which is why a lot of employers want to make people independent contractors, because then they don't have to follow wage and hour rules. And they also get out of, you know, all sorts of taxes that they might have to pay to the, to the government related to having an employee. So a lot of employers think an independent contractor classification sounds like a good idea, unfortunately for, for many of them. They think they can use the IC classification when they probably shouldn't or absolutely shouldn't, and they and they overuse it and that that often leads to, significant liability. So the FLSA also creates exceptions, from minimum wage and overtime, as you probably know. Many of you here right now may be exempt employees. You're probably classified that way as an administrative employee or possibly an executive or professional employee. Those are either referred to as the EAP or the white collar exemptions. They are often done incorrectly. So we're gonna, we're gonna talk about those in a, in a slide or two. Important to note that most laws, most states, have their own laws on the books that sort of replicate the fair labor standards act. So in many cases, if you have violated FLSA exemption problems or minimum wage or overtime problems, you've also violated state law that looks very, very similar, and that can double your liability. So, I did a number of wage and hour places wage and hour cases in Oregon. Oregon has its own pretty strict wage and hour laws, and we were able to get penalties under federal law and Oregon law for, employees that had been paid incorrectly. So, yeah, that makes that makes these these claims a lot more expensive when you, double up federal and and state claims, especially since both generally have at least double damages on their own. But I wanna talk first about the independent contractors, and what it requires to classify someone that way. So there's a pretty standard test that most states and most courts apply. It's called the economic realities test for independent contractors. And it's got sort of six facets for you to think about. Now, we've got a great guide on the, on the Mineral platform for this, with a, with a checklist, some sort of walk you through whether you can classify someone who is an independent contractor or not. I think I made that myself about six years ago. So, it walks through these in more depth. And we also just have it floating around on the platform. If you don't want to open up a guide, but we're going to look at someone's opportunity for profit or loss. We're going to look at their relative investment. So who's who's put the money into this? So let's say someone is working as a cleaner, for a cleaning agency, a housekeeping agency. They're more likely to be okay as an independent contractor if they supply all their own stuff. They drive their own car. They have their own vacuum. They have their own cleaning supplies. The relative investment is is higher. Excuse me for one second. We're also going to look at the permanence of the work relationship. So, if it is never ending, that looks more like an employee because that's generally how we hire employees in The States, at least. If it's short term, it's for a certain duration, certain number of months, maybe your busy season, or it's for the duration of a project, that that's more indicative of an independent contractor relationship. We're also going to look importantly at whether the in person is essential to the employer's business. So this one's pretty key. If you're a restaurant, your chef, your head chef cannot be an independent contractor. Your bartenders and your hostesses, your hosts should not be independent contractors. The person you hire to reupholster all the furniture or to redesign your menu layout, not the food on the menu, but, like, the look of the menu. Those people definitely could be independent contractors if they meet the other criteria. And then we're also gonna look at the the workers' skill and initiative, and this is related to sort of running their own business and having their own business. Like, have they marketed themselves? I apologize for you guys. I'm clearly about to lose my voice entirely. So I will, I will try to skip to the end here, But we're gonna look at the worker's skill and initiative in in, you know, promoting their own business and and whether they really truly have their own business. So this is called the economic realities test. There's also a test put out by the IRS that's a little bit different. So if you're concerned with being in trouble with the IRS, they do have a slightly different test. However, they run very similarly. I've always said like if someone passes the economic realities test, which is what's on the books with the DOL, even though the federal DOL says they're not enforcing it right now, it's very similar to the IRS test. And so if somebody passes one, they'll probably pass the other, but it doesn't hurt for your record keeping to say that you looked at both and that, according to both, you believe you do truly have, an independent contractor. Okay. So we talked about, minimum wage and overtime exemptions, how that often applies to EAP or white collared white collar employees. This generally requires that they pass a duties test for their exemption, be paid a minimum salary, and be paid on a salary basis. So I won't walk through these, but I did want to put these out for you. These are the duties tests for executive employees, administrative employees, and learned professionals. And what trips employers up in many cases is that they think anyone who's called a manager can be exempt. That's not necessarily the case. There's three criteria and they have to directly manage, two or more full time employees. So there are three criteria, but that's the one that I think a lot of people miss. Administrative employees, have to use their own discretion and independent judgment with respect to matters of significance. So just because someone does admin work doesn't mean they can be exempt. They really need to have some some power over some things. And then for our learned professionals, they need to have a specialized degree. A lot of times people think, oh, a paralegal could be a learned professional professional or CAD operator because they had a specific type of schooling. That's generally not the case. It generally requires like a master's degree or something even longer than that. Another thing that trips people up is exemptions for exempt employees. I'm just gonna talk about the one key thing here is that you can't, you can only take a full day absence for personal reasons other than sickness or disability. So, if someone is only gone for half a day and you have them classified as an exempt employee, you cannot take a salary deduction. If they have PTO, you can fill in with their PTO. If they don't have PTO available, you just need to pay that person for the whole day. Even if they only work for five minutes, that's the rule that surprises some employers. I do believe you'll be getting a copy of this presentation. So I know I'm kind of zooming through here at the end because I'm I'm losing my ability to speak. But the these are important to know, if if you're sort of like deductions, exempt employees, what's this about? We definitely do have more information on the platform about this. We're happy to talk about it anytime. It definitely trips a lot of employers up, and it's really important to understand. Alright. I think it's it's I get to turn it back over to Brian now. Yep. Absolutely. Thanks, Kara. And so, before we jump into questions, we have two quick polls. So everything we covered today, I will employment harassment risk the NLRA worker classification. You know, these rules do not stay static. Laws change. Your workforce changes, and the risk shifts with it. That's why the Mineral HR and compliance platform is built to help with. Anytime access to compliance tools, alerts when you expand into new states, expert backed answers instead of guesswork, and handbooks that update automatically as legislation changes. If this all sounds useful, we have a poll for you. So, let me go ahead and launch this poll. And the next slide cover covers the overview. So would you like, would scheduling a demonstration of the Mineral HR and compliance platform be helpful for your team? You can answer yes. I'd like to schedule a demo. Not at this time. And then if you're already a Mineral customer and you're here attending just for the information today, you can always, contact your account manager, or you can contact the mineral experts if you have a question about specifics about mineral, or you can contact tech support, if you have a question about specific functionality. So we'll let you go ahead and answer those, polls, and we'll go ahead and close that out. Then I just have one more poll before we jump into the q and a, and I'm gonna go ahead and launch that. So if your business has clients who face HR and compliance challenges, if you're a payroll provider, a benefits provider, a benefits broker provider, excuse me, an accountant, potentially an employment law office, this may be something that you'd be interested in exploring a partnership with Mineral to, provide these, solutions to your client base. If that's something that you're interested in, just select yes. Please have someone reach out to me directly. B, possibly you'd like more information, like to understand, how the partnership process works. Fine. And then c, not at this time, not interested. Totally acceptable. So go ahead and answer those polls, and then we're gonna go close that out in three, two, one. And, let's jump back into the questions. And, Kara, welcome back. Thank you. Alright. You guys have, really astute questions that I'm excited to answer. Alright. Backing up quite a bit. Someone said, can we be an at-will employer and have an introductory period? Yes. The intro introductory period does not interfere with at-will employment. Although I do think I pointed out in a practice slide that having an introductory period and maybe I didn't. Maybe I'm crossing decks in my head. But having an introductory period does not change the risk of terminating someone. So it doesn't like strengthen at will. It doesn't make it risk free to terminate someone in that first sixty or ninety days. That introductory period doesn't really have any legal meaning at all. Like, I'm not really sure what the point of it is, except to maybe encourage your managers to keep a closer eye on people for the first ninety days, or automatically set up more check ins or or something like that. Obviously, you can make it related to, you know, health benefits or or other or other benefits, but from a legal perspective in terms of, like, termination risk, it it doesn't really have an impact. Alright. Someone asked this is a tough one. How do you determine what a reasonable person is? This was related to a hostile work environment, what a reasonable person would consider hostile and terminate intimidating or abusive. It's a great question. We don't know. It it's it's not a road you wanna have to go down. Worry about the reasonable person standard unless or until you really feel like you're dealing with a situation where you have what we would call in law school an eggshell plaintiff. So, like, someone who is very sensitive, either physically, like they, they literally injure themselves easily, or maybe they are psychologically injured very easily. Someone who's very sensitive. If you feel like you're in a situation where someone is being very sensitive and you're not sure what steps to take, that's probably a good time to get legal advice. What a reasonable person is, is is gonna be really hard to determine. So I'm I'm basically, I'm just stealing your pain with you there that that that is very subjective. Someone said in 2026, Colorado had a ballot initiative to make it a just cause state, so to get rid of at will employment. Is that something we can help with? Absolutely. So if that passes, we will write it up. We'll send an email to all of our all of our clients in Colorado, and we'll tell you what the action item is, which will either be to remove your at will policies, modify your handbooks. If you've got a handbook with us and you're in Colorado, we'll make the necessary changes for you so you don't even have to deal with that. But, yeah, we're gonna if you're signed up for our emails at least or coming to the platform on a regular basis, we're gonna make sure you're aware of that. We're gonna tell you what what actions you need to take. Alright. There were there were a couple of really great ones in here. Oh, where did they go? I have lost questions. Brian, I don't know if you can help me, but I I seem to have lost maybe not. Maybe they went maybe they're in an opposite order. Okay. Maybe they just flipped on me. Sorry. Don't worry about it. Sorry, Brian. Alright. Can you be a w two employee and an independent contractor if the project you're working on is separate from your daily w two duties? Yes. If they're very separate, that could be okay. So let's say you're a computer programmer as a w two employee, which is really just an employee, and then you also offer your cleaning services as an independent contractor in the evenings for that same company you work for, that's probably gonna be okay. There are sort of tests and rules around that that your your state might have something in particular to say, but generally, if they are extremely separate and, like, the whole thing is very much in good faith and you can pass the independent contractor test for the thing you're doing on the side, it's it's probably gonna be okay. That's not legal advice. I don't know the facts of your situation, but it is possible for that scenario to to happen. Are you violating section seven if your CEO makes an announcement that you shouldn't discuss salaries? You can go ahead and say yes on that. Don't have your CEO say that. Shouldn't versus can't, that's gonna be one of those. If if you apply that test I put up, that Mitratech test for policies, that thing your CEO said is policy. They said it out loud. Right? It's a policy now, and it definitely restricts without a legitimate or legal, really, business reason, to do that. So I I wouldn't go there. All right. Do all of the factors oh, this was a good one. Do all the factors of the economic reality test need to be satisfied, or is the determination based on a certain number of factors being met? I think the slide might say this, but I didn't say it out loud. So that test is a factors test or a balancing test, and that means there is no determinative factor. So if you feel strong on four or five of them, but maybe kind of weak on one, there's a decent chance that that person can still be an independent contractor. You're gonna balance them all against the others. So great question. Yeah. That's that's a factors or a balancing test. Someone asked, are these concerted activities still protected if they encourage the public to disparage the employer? Like I mentioned, something can cross the line, but, generally, if it's, like, defamatory, meaning it's it's untrue. So if it disparages you in public, but it's true and it's multiple employees, so it's concerted activity, there's a very good chance that it's still gonna be protected activity. But, you know, I need to know a a lot more specifics of the case to to give a yes or no. And I wouldn't give a yes or no because I'm not your attorney. This was I'll I'll just do one more. I know I'm overtime. Thank you for being here if if you wanna take off, obviously. But I thought this was an interesting a good question. So for the purposes of evaluating whether conduct is severe or pervasive, can an employee who's not a member of a traditionally protected class claim harassment by an employee who is a member of a protected class. For example, a male employee is routinely required to perform physically demanding tasks because of assumptions about male strength while female employee is exempted from these same duties based solely on her sex. Could the male employee assert that the conduct is discriminatory or harassing if it's sufficiently severe or pervasive? Okay. So first things first here, men are a protected class. Everybody is a member of many protected classes. Women are not the only protected class. Men are in that same protected class. It's just sex. Sex is a protected class. So men get the exact same protections as women. Discriminating or harassing against a man is just as bad as against women. So in your example, yes, absolutely. Asking women to clean up the kitchen all the time could be, you know, most likely pervasive harassment because it's not particularly severe. Asking men to do the physical labor because you're assuming that the dudes are stronger, absolutely, that could be pervasive, but probably not severe harassment. So, yeah, it's a great question. And I I you know, everybody's in a bunch of classes. They're all equally protected, so it doesn't have to be a traditional class one way or the other. That's a great question. Okay. I'll end with that. Thank you all so much for being here today. I, again, apologize for my voice, and it'll be better next time. No worries. Thanks everybody for attending. We appreciate it. We will send you a follow-up email with the recording and slide links so that you can watch this at your leisure, and take a look at the slide decks. And then we will continue our Mineral thought leadership series in October. And it looks like we, Kara might be hosting harassment so something to look forward to and you'll get more information about that. I put some additional webinars, links in the chat that you can, register for and we thank you again and have a great day. Bye.