Episode 11: Labor Headlines

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's executive vice president and general counsel. With me today is Jennifer Shah, an expert in employment law and founding partner of the Shah Law Group. Today we are talking about several employment law and human resources issues that are making headlines. Welcome, Jennifer.

Thank you, Erica.

So, Jen, lots to talk about. Of course, workplace issues always creep up in the headlines.

Yes, for sure. There's never a lack of stories to tell or talk about.

Right. So we're gonna talk about three today. The first one being the title of the article or story was firm Slammed after Job Posting Seeks, quote, preferably Caucasian candidate. Yeah.

So I read the article, and of course, the first thing I think of is, how does this happen?

Good question. Yeah. So the article was published on April 11th. Company's based out of. I think I read Virgin. It was an informational technology staffing company that had listed a job listing saying that the ideal candidate would be preferably Caucasian. And of course, this hit the Twitter world, and everyone got pretty fired up. As they should.

Absolutely.

And so. Yes. How does this happen?

Well, here's the only thing I could think of. What a lot of employers are doing as part of efficiency is they're coming up with these menus and these automated programs to scan your resume to decide if you should be interviewed. I don't know why there would ever be a question in their database about race anyway, but my guess is somebody checked the wrong box or somebody didn't check a box. But it's crazy. And I love the quote from the company where they say, we were very upset, too. Okay, that's not really a good explanation. With everything that's going on in the world right now, how could it even happen? Who's double checking? And it sort of makes you wonder, like, would you ever hire them to do a search for you? I think not. Yeah.

And so, you know, it made me wonder, too. How does this happen? Because, of course, not only under federal law, but in California, it's illegal to have preferences based on race, gender, marital status. The list goes on and on.

Absolutely. Now, of course, we have this concept that is under state in federal law called bfoq. Bona Fide Occupational qualification. There may be some legitimate reason. The example that I use a lot, because it is a real one, and I think it makes the point is we do a lot of pro bono work in the community. One of the things we work with, or one of the organizations we work with helps Hmong refugees down in Stockton. They hire what they call Refugee resettlement coordinators to help folks assimilate into the country. Because of the cultural issues with the Hmong people, they need somebody who has been through what they have been through to trust the process. So as much as I care about them, and I really do, I would never be successful as one of the coordinators because I haven't shared their experience. In that very limited situation, you can understand why somebody might say, hey, we need somebody who's Hmong. And not only that, they have to have been resettled, they have to have gone through this experience. But 99.999% of the time, it is never going to be relevant.

So lessons learned here, right? I mean, mistakes sometimes lead to some of the best things happening because you know you're never going to do it again. But for all those employers out there, really be careful before you publish anything.

I think that's right. And I also think there's a PR angle here, which, of course, we're employment lawyers, and I don't know anything about pr, but I just think the response from the employer wasn't very helpful. I feel like employers need to fall on their sword when they make a mistake. I mean, I certainly tell our clients, look, if you've done something wrong, you're gonna pay for it. That's how it is. So I will negotiate the best, most efficient way for you to do that. But sometimes I think you just have to come clean.

I think you're right. I think you're right. And I think they were just probably stuck in one of those situations, like, oh, my God, how did this happen? How are we going to deal with it? That's right. All right, so let's move on to another topic in the workplace. The article was of Philadelphia CBS News, and it was, goodbye handshakes. Some companies are considering banning all physical contact in the workplace.

So here's what's interesting, right? You and I have talked about MeToo and all of the sort of unintended consequences of MeToo. I think it's absurd to think you could ban all contact in the workplace. However, I do understand, first of all, people are concerned about germs. Certainly with this measles outbreak, we have a lot of people concerned about germs and what's going on. Second of all, I. I always laugh when people tell me, well, you know, Jennifer, we need to do what most people are accustomed to. So when I do sexual harassment prevention training, people try to convince me, well, you know, giving someone a handshake is really part of our American custom of Course, what they don't understand is America is comprised of a million different cultures and perspectives and viewpoints, and handshakes are not always welcome. I mean, you and I were chatting a few days ago about this idea of the limp handshake.

Yes.

And the person who covers your hand with their hand in a sort of power play or. I. I've had my hand crushed by some guy who feels like I need to show her who's in charge and just about breaks your hand. So the handshake isn't as sort of innocuous, I think, as some people think.

Yeah. And, you know, those were kind of the things that the article brought up as far as this division between etiquette and what's appropriate and accepted versus what crosses that line. And there was even discussion of the, you know, the two kisses on each cheek when you're greeting. Well, in European countries, that's kind of the norm. And so I think you raise a really good point of in America, particularly California, there's a lot of different cultures and a lot of diversity as far as what's acceptable and what's not.

Right. And I certainly don't advocate a no touching workplace. I just think people have to think, you know, your plain old generic handshake, you hold on for a couple seconds, you look the person in the eye, you know, you don't hold on too long, you don't do anything funky. Then I think you're fine. And if somebody's offended, they can tell you, hey, I'd prefer not to shake your hand, or I've actually had someone bow their head, or when I'm gonna give a handshake to sort of tell me, look, that's not my greeting. Totally fine with that. We can't be expected to read people's minds, but I think we do need to be reasonable.

I think so, too. And you brought up the measles outbreak. You know, during the cold and flu season, when we're out there talking to people, you know, I've been in circumstances where I've said, you know what? It's cold and flu season. I'm really trying not to get sick. You know, a simple high is just fine by me. You know. Exactly. And the other person is actually thankful and going, oh, yeah, you know, you're right. I didn't think about that.

Well, especially when you're the one who's sick. Right?

Right. Yes, Particularly.

I actually had to say, gosh, I'm sorry, I have a nine year old. You know, I swear I catch everything that's out there. So don't touch me. I'm a walking germ at this point. So part of it, I think, is really just back to what you said about etiquette. It's the funniest thing. My grandmother was born in 1910, and she passed away several years ago. But she used to talk to me about manners. And when I was a kid, I didn't really get it. And it's amazing to me, as I grow older and I'm in the work world more and really interacting, have different sensibilities, different perspectives, how important manners really are.

I agree, and I'm an advocate that a good handshake is important when you're meeting somebody. And it's one of these things that I've even talked to my kids about. And I remember one day my daughter came in and said, mom, we learned how to give handshakes. And, you know, I think that's still important. So to your point, we have to be realistic as far as how far we're gonna go to try and prevent any unattended consequence from a potential handshake or inadvertent touch in the workplace. Right.

The only thing we can do is put ourselves in plastic, and that's really not going to happen. So we've got to use a little common sense.

Speaking of common sense, sometimes common sense and technology tend to go head to head, right? And what I'm talking about is the next article. It was actually published in the Wall street journal on April 17, and the article title was Texting Moves to the Workplace. As do the Awkward Misfires. I'm here. I love you.

Oh, my goodness, it's so true. So here's thing about texting, Erica, that I think is so fascinating. One of these consultants I hired to help me kind of manage my workload because I just. Usually I get about 450 emails a day, and most of them are substantive. So I try to find a way. How am I going to get back to people? So her big idea was to declare email bankruptcy. I said, what is that? She said, you just don't do email anymore. Just text everybody. And of course, my lawyer mind kicks in. I'm like, okay, first of all, how safe are the text messages? Right? Who else is going to look at them? Am I really going to have a privilege? It's so different than using email. And people are so casual when it comes to texting.

Yes, emojis. Half of them I don't even know. I'm embarrassed to say I don't know all the abbreviations for you have to.

Ask your 10 year old, right?

I do, yes. And they laugh. But you know, the other concern I have with text messaging is there's this notion of receiving an instant answer. And I think to your point, with all the emails that you're receiving on a daily basis, most workers, most individuals these days that have a phone or iPad or a computer are feeling the same pressure. And so now all of a sudden we're adding text messaging to the mix that is just creating even more chaos in some people's lives and potentially leading to inefficiencies and mistakes.

Well, that's right. And you know, if you use Siri, as I have been known to do when I'm driving, or I want to just send a quick message, don't feel like typing it all out. I'm not the best texter. She autocorrects and the autocorrecting can be quite embarrassing.

Yeah, Siri, I think it's confused sometimes about what we're trying to say. Yes.

So I had a client who was texting me to say that he was on his way and it instead, what it came out was something related to a sexual act. And I got the text and my heart stopped for a minute and I thought, okay, I lead a boring life. What is that? And then I said, okay, wait a minute, there's gotta be some problem. And of course he doesn't even notice it. So he comes in and I show him the phone. I turn 30 shades of red, like hysterical. But I was laughing because I said, you know, I get it. I text this stuff too, because it seems so fast and everything is so quick. I remember when I was a brand new lawyer, we didn't have voicemail, we didn't have email. The secretary wrote me a note on a pink pad. So when I was on an airplane, all I had to do was watch the movie, right? Nobody could bother me. And when I landed, good luck trying to reach me because I'm not at the hotel yet. I didn't have a cell phone. The first cell phone was some ginormous box I had to take. So I think these technological innovations are helpful in a lot of different ways. But the pressure we all feel in responding combined with this idea of the boo boos that can happen when you're using autocorrect and that sort you really have to wonder like texting is good for. Can you bring some milk home for dinner, honey?

That's right.

But it's probably not good for much else in the business world.

And even that can you Bring some milk home, honey. The article talked about poor co worker sending that to his boss with hugs and kisses, X's and O's.

Well, the boss and the spouse have the same name.

Right?

So when they go in to text something or to dictate, boom, you're sending it to the wrong person. And then when you're the recipient of that. But there's always this moment I feel like, okay, I don't want to embarrass the person, so how could I gracefully back up without sort of creating a problem? It just creates a whole slew of issues that we didn't have before.

I totally agree. And the other thing that a lot of employers may not be aware of is, you know, the requirement of the labor code for reimbursing employees for reasonable expenses extends to those charges that our cell phone charges, use charges. And text messaging can be costly, there's.

No doubt about it. And even though most of us have sort of an all you can eat text messaging plan or data plan, there still is a cost. And if you have people texting you, it's just like them emailing you when it's about a work related issue. You're absolutely right. The labor code requires reimbursement and every employer needs to decide how they're going to do that. Now, of course, the California Supreme Court didn't tell us how to reimburse that, in what amount. They use the term reasonable, which we have to figure out. But I really think employers, employers have to pay attention to that sort of conduct. That can unwittingly create wage hour liability for them.

Yeah. And I think also unlike email, to the extent you have to go into your system or you have to at least open your email app to read what the email says. So there's a little bit more steps that you have to take with the text message. It pops right up on your phone. That's exactly right. You know, there's this notion of group texting, hey, I'm not coming in today. But then all of a sudden the 20 people on this group text are all chiming.

How do you feel?

Better. Right. And the lady quoted in the article was like, I didn't need anybody to respond. I just wanted them to know I'm not coming in today. So there's a lot of things that I think we just take for granted. But when it enters the workplace, maybe that's not the best way to go.

I think that's absolutely right. It's so interesting because we send a lot of emails to clients, obviously, and Sometimes I complain I didn't even hear at all. I don't know if they got the email. Like couldn't they just write a K or got it or something? But the other side of the coin is when they say thank you. Thank you for thanking. No, thank you for thanking me. No, you're welcome. Suddenly you're like, please don't respond to my emails. It's okay. Like, you know, I'm just gonna assume you got it. So it's very interesting.

So, Jen, another common issue that I think is creeping up in the workplace as it relates to text messaging is co workers texting each other.

So one of the things that I think is interesting is coworkers will often think that's personal, private, off the clock. Nobody has, quote, access to that information. But it's just not the case. When you're talking about work. It goes back to that same old rul. It's not where you are, it is who you are with. And when you are texting, you are with the person you are texting. So it becomes a work related communication. And I think a lot of times people don't understand that. So we're getting folks who are having their phones subpoenaed as part of lawsuits and they want to argue, well, it was my personal communication. When you communicate with someone at work, it is not a personal communication. Just like saying, oh, I'm just going to give them a personal reference. Well, if you work with them, there's no such thing.

There's no such thing. Well, thank you, Jen. I think there's going to be more for us to discuss about all of these issues because they're consistent themes that continue to pop up. But for today, I think that will be it.

Well, thank you, Erica for having me. It's always my pleasure.

So thanks for joining us today and thank you to our audience for listening to the workplace. Please comment, subscribe and share. Cal chambers podcast@calchamber.com.

Sam.