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Welcome to the bringing the human back to human resources
podcast. I'm Tracy Chernoff, and I've
spent my entire professional career in HR.
Each week, we'll explore the delicate balance between people
and business with the aim to reconnect the two and create
meaningful outcomes. Listen in as I share my own
experiences, challenge the status quo, and chat with guests
from various industries about our mission to bring the human
back to human. Resources.
Hi, everyone. Welcome back to the podcast.
Thank you so much for being here for another week.
I have with me my esteemed colleague, although only
colleagues in the podcasting space really because I'm not an
attorney, but this is Brian. You probably, we remember him,
hopefully know him by now because he joins me every month
for a Policy Pulse segment on this podcast.
And this week or this month, I should say, we're actually going
to take a little bit of a different approach.
We have some questions that have either been submitted or that
we've kind of asked ourselves that we want to pose and kind of
have a bit of a broader discussion about and on.
And so, you know, naturally, if you've listened to these Policy
Pulse segment episodes, you know that we generally kind of come
packed with all of these recent legislative changes or updates
or things that could be kind of coming down the kind of the
funnel, so to speak, in terms of HR and policy and law.
And so rather than doing just that, we're going to speak a
little bit more broadly, of course, as I mentioned.
And so one of the things that I that actually Brian and I were
talking about offline just before is how some of these
things that we've even reported on in the last several months,
how some of these laws and policy changes or upcoming laws
and policy changes are kind of pointing to a more localized
effort or localization within the nature of HR and how we
navigate some of these things. So Brian, I think I'm going to
leave it to that. Maybe we start with how these
some of these ideas and changes proposed by some of these states
have localized our roles a bit more, whether it's HR or just
kind of staying on top of the legal updates.
Yeah, I think, I think the, the one of the easiest ways to sort
of sum it up is that the federal government is in the process of
deregulating laws related to HR policies related to HR employer
employee relationships. Some States and cities are not.
And so now as we were discussing just a minute ago offline, it's,
it's like HR is hyperlocal. And it doesn't matter if you're
only located in Texas, you're only located in Illinois.
If you have employees in a dozen different states, you have to be
hyperlocal in your knowledge of the laws in those States and in
some cases in individual cities where you have employees.
And that's kind of the, the thing that we've talked about
for a few months now we've alluded to, and I think we
probably said multiple times too, is that HR is becoming sort
of a patchwork of, of laws and regulations.
And employers need to be aware of, of that patchwork and
understand what do I need to adhere to when I hire an
employee in this new state? What do I need to adhere to when
I advertise to hire a new employee in this state or hired
nationwide? Like it's just, there's so much
there's, so it, it's a tough time to be in HR honestly,
because there's it, it, there's so much that you have to know.
You have to basically get an on the job JD in some cases to to
really really understand and and effectively implement some of
these changes that are happening in both directions.
Totally. And one of the things that I had
said to you before we started recording was that in my
practice, I look at what the most strict state or, you know,
this is, of course, assuming just the US regulations, the
most strict state, because you can't, by the way, you can't
apply like US regulations to like Canada or other places
around the world. Don't do that.
But anyway, I take the most strict state and I'm like, OK,
everyone's going to fall in line to that.
Most strict philosophy, but what we've seen, which is interesting
is that there are some states outside of California and New
York which are the most notable for being the most strict or you
know, most employee friendly, quote UN quote is that there are
states that are starting to take strictness to a new level even
beyond what New York and California typically adhere to
or require from employees. So when I think about you use
the word patchwork, I think about how in our roles, like
it's true, if we have you could have employees in 50 states,
especially if you're a remote employer and you have to be able
to figure out, OK, well, is California or New York, are they
the most strict in this thing that we assume they're the most
strict with? Or is it Colorado or is it
Hawaii or is it San Francisco, not even just California, right.
And so I think there is an element there that puts a lot of
ownership on us within HR. But then I also think about, and
this is kind of what I had written down for us today is
like beyond federal minimums, beyond the state and local laws,
how do employers with this multi state approach, you know, kind
of navigate the what could be conflicting or overlapping?
Now, of course, something that's more strict, like I said, in my
own practice, that's generally what everyone falls in line to,
but it's a little tough if you're you have all of these
multiple types of rules and laws and policies that you have to
navigate. Like I think about pay
transparency versus scheduling versus AI and hiring, like all
of these things can impact a company in one sitting, but have
different levels of strictness regardless of the state.
And so how do you, how would you suggest that companies and HR
leaders kind of go about navigating that?
Well, I have an unsatisfactory answer to that.
And it it is that it's, there is no easy way there.
There is no great way to go about it.
Your approach is one that I recommend to clients as well.
Frequently everybody's a case by case basis, but broad brush
strokes. Yes, I, I take a similar
approach to you that if you have employees in say Texas, Florida,
NY, Washington, IL, pick Washington, pick Illinois and
just make it easy on yourself and abide by those, those, those
laws. If you have more employees, if
you have a more robust HR department, then maybe you split
it up. Maybe you, you have different
handbooks for different states or you have different addendums
on, on your handbooks for, for different states to sort of make
sure you're, you're compliant in each of the states where, where
you have employees. And to your point, cities as
well, because some cities have higher minimum wages, have
different reporting requirements.
So it's important to, to keep all that in mind.
Again, going back to the hyperlocalness of the, of HR
today, that that's kind of the record.
I, I'm, I'm with you. That's, that's sort of my
recommendation as well. It's not, that's what I mean
when I say it's unsatisfactory. It's not.
It's not easy, it's not simple, it's not efficient.
You have to, you have to figure out what's best, what's best for
your business, what's best for your employees, and what, what
sort of the differences are between the states.
Like if you have a state like Florida and a state like
Washington, your differences are vast.
So maybe it does make sense to have two different handbooks
for, for your two different sets of employees.
If the states are relatively similar and you're just in a
couple of states, then maybe that's OK to to, you know, pick
the strictest and and go from there.
Again, it's it's sort of a case by case basis and it's
unfortunately it's not easy. Yeah, totally.
I am a big fan of addendums. I think that they solve a lot of
headaches, you know, because it's like then each person in
their own state can figure out OK, what's applicable to them.
No, And I, I think that is that's pretty satisfactory.
I think that that helps. And I've seen, I mean, in my own
like kind of life helping people with their handbooks and
whatever. I see some really terribly
executed handbooks and handbooks are really important.
And sometimes people are like, Hey, updated my handbook like 20
years ago. It's fine.
You're like, what, what do you mean?
Like things are so different even from a year.
I mean, really the best practice and at least in my, my book is
to update a handbook every year, at least look for any particular
updates that might be relevant. But there is, I mean, there's a
lot of, there's a, there's a lot of pressure on HR teams, I think
to, to be not only knowledgeable, but also
compliant. And when I think about the the
stigmas associated with HR especially, you know, where
generally handbooks kind of fall into like HR operations and
things like that, that it can just feel again, kind of tied to
these stigmas that we're just focused on, like what the
business and what protects the business and what, you know,
makes what what businesses have to do to make sure that they
don't get in trouble. And realistically, these are
these regulations are also in support of employees, even in
states where it doesn't necessarily feel that way.
The intention is to at least have some sort of understanding
of what is obligatory for a company and what an employee
falls, you know, kind of falls into.
You know, I think about some states like Texas and Florida
that generally don't really have many employee friendly laws, but
there are still laws there, like a minimum wage that are set to
protect an employee in some capacity.
Obviously it's hard to argue that when you compare to another
state, you know, that might be more, again, you know, employee
friendly, so to speak, But there's, there's a lot of
ownership and, and I think that in like during COVID, we saw a
lot of cuts in HR, especially, of course, recruiting, but like
just in general, a lot of layoffs.
Amongst HR teams. And now I, I wonder if there's
any inclination in the business landscape that's going to really
kind of require businesses to further invest in HR teams and
not run so lean because most there isn't.
I'm sure that everyone has brought this up even within
their own like experiences, anyone listening who's in HR,
but you know, there's always this like what's what is the
ideal number? What's the magic number for like
number of employees to number of HR partners, right?
And a lot of companies, they can they.
Run up to like. 300 employees with just a handful of HR
people. And it's like, can you, can you
really do that? It kind of depends on your, your
distribution, I suppose of employees.
But it's like, is that really the right way to go?
You know, I don't know. Yeah, I, I agree.
And, and I've seen it myself over the last, over the last
decade or so too, that like there are so many, so many
companies like you've said who are, who are in that multiple
100 employee headcount range that maybe don't even have a
dedicated HR team. And it's one of those things
that it makes you, from my perspective, it makes you come
in and think like, wow, it's amazing that you've gotten this
far, not because HR is like this, you know, this, this
revenue generating type type department for, for most
companies, but it does help keep you compliant and which, which
is a way of asset protection for businesses.
So, yeah, and I think that that it's important to, to, to sort
of, I'll mention 11 instance of sort of some recent news out of
Washington. This was just in the last few
weeks, a judge ruled that employees, sorry, candidates and
job applicants can sue employers, private employers in
the state of Washington if they don't adhere to the state's job
posting requirements, namely the pay ranges that are required.
And the unique thing about this, and the reason I'm calling it
out is because applicants can be from anywhere and they don't
have to be qualified. So you could just sort of troll
Indeed and find applicant job postings in the state of
Washington, see that there's no job range, salary range posted,
and then sue that employer. Now, do I think this is going to
be an epidemic of just people doing that and making a living
off of it? Absolutely not.
It's not going to be worth your time, but it is sort of a it's
sort of a yellow flag that like this is Washington putting
employers on notice that there are multiple ways that you can
get into trouble for not following the rules of of
Washington state. And so I think that's important
to call that out just to remind people that if you're hiring
nationwide or if you're hiring within the state of Washington,
those rules apply. Much like Colorado.
We've seen that in Colorado too, where employers based in Texas
have posted a job on Indeed. It's a nationwide job posting,
no salary range listed. That employer gets into trouble
because they're they're accepting applicants from within
the borders of Colorado. So again, back to the hyperlocal
patchwork nature of it all. You've just got to, got to be
focused and have, have an understanding of, of where
you're hiring people, where you're looking for employees.
And, and to your point about handbooks, making sure that
those are up to date. Because letting it go 20 years
is just not, it's kind of like, you know, yeah, it's not, I
mean, it's, it's kind of like an estate plan, right?
Like you wouldn't, you wouldn't let your will go for 20 years,
right? Things change.
You buy a new house, you have, you have a, a kid, you have, you
know, you get divorced, you get remarried, you have all these
life changes over the course of 20 years, you're going to update
that. Same thing is true with
handbooks. Totally.
I mean, I just as an anecdote, I remember when the pay
transparency laws started to become a little bit more
widespread. I mean, of course there were
already states that had these, but I think maybe it was New
York and California kind of coming around around the same
time a few years ago. And I remember saying to my team
at the time, not in HR but in recruiting, that, hey, we, we're
just, you know, we had, we post nationwide, we're posting salary
ranges in every single job. And that's just the way it's
going to go. And I remember there were a lot
of questions not only from the recruiting team, but also from,
you know, the, the leadership, like, is this really what we
have to do? Can we just make it specific?
Like there's no controlling who is applying to these job.
Like as a remote employer, you are taking applications unless
you restrict it. Even though you can still get an
application from anyone, you you have to be compliant in the
states where you could potentially be sourcing a
candidate and finding a candidate.
And even still, when I scroll on LinkedIn and of course I look at
jobs, whether they're HR jobs or otherwise, and I see so many
companies that don't post the salary range in that are like
based in New York, based in New Jersey, and it just doesn't
really make any sense. I don't know.
And then then I question like, well, you know, if I were
interested in applying to a job there, like, is this the company
where they're not even compliant with, you know, something that's
pretty easy to execute on? It's very, very, very strange.
And I don't know if that, you know, sometimes I think it's a
reflection of whether or not they have an HR team, frankly,
or, and, and, or I wonder, like, do they just not care?
Do they think they're above this law and that it could just get
away with it? But all of what you said is
really interesting that, you know, you could there is no
controlling where people are applying.
It's not like you're immediately turned off from the application
when you enter your street address or your home address, I
should say. And I think I, I do think that a
lot of this, I'm going to use your term again, patchwork, that
is kind of behind some of the ways in which we have to work
now. I think a lot of this comes from
the advent of improved technology.
Because obviously, like when we think about LinkedIn or Indeed,
it's like, wow, you can apply for a job anywhere if it's
remote and you can work from anywhere.
And yet that means that anywhere applies.
So all of those laws apply. And so it's really quite
interesting, I think. Yeah, it is.
And so which one do you follow? I mean, you know, we, we were
talking about this offline and I'll, I'll, I'll be brief, but
like it because it's kind of 1/2 baked thought.
But we could absolutely see it in my estimation.
We could absolutely see some states suing other states for
for their policies for job hiring, for example, much like
we have seen over the last over the last year or so, some some
very conservative states suing like Texas suing New York when
doctors in New York are sending abortion pills to patients in
Texas. We could see something similar
where Texas says Washington, you, you cannot have salary
ranges in job postings that are visible to applicants in Texas
because we forbid having that and we could see.
We could potentially see litigation between states on
stuff like that, which is like I said it, maybe it's a little,
yeah, it's a little wild, but I, I don't think it's out of the
realm of possibility. No, certainly not, especially if
you have a state that's trying to assert their opinion on
something, you know, like how far are they going to take it?
And like you said, we've already seen that between some states.
And so it's like, well, depending on the topic, they
might feel really impassioned by that particular topic and take
it to that, that level and to that extent.
And then it's just at that point, it's like, what are these
states doing with taxpayer dollars?
Like, is this really where you want to spend it?
But I mean, at the end of the day, like, it is true, it can
happen and politics can be very petty.
So I wouldn't count against it personally.
Well, we heard the prediction here first.
So, Brian, if it happens, you can totally claim claim rights.
Claim rights. I know that you also wanted to
talk a little bit about this whole idea of free speech.
And it's just so interesting because like I had said to you
offline, someone had brought up something similar to me recently
where I was like, well, it's kind of like a fine line between
what someone can and, and is responsible for in terms of what
they say, what they can say and what they do say online.
And then what a company's ability to kind of enforce their
own policies, expectations or brand against what might have
been said. You know, because sometimes
there's conflicting messaging there and that in most cases,
people can't necessarily just say whatever they want.
So I'll I'll pass to you because I know you have some thoughts
there. Yeah, I mean it.
It's an important time, I think, to remind employees, but also
employers that free speech is a constitutional right.
And that means it is not a that means it protects you from the
government as an individual, not from your boss, not from your
employer, regardless of what you want to say or on what medium
you want to say it. Free speech is a
constitutionally protected right.
Everyone inside the borders of the United States, regardless of
citizenship, regardless of of of your heritage, you have those
constitutional rights to free speech.
Your employer, because America is in the mostly an at will,
with few exceptions, at will country.
Your employer can terminate you as long as it's a non
discriminatory reason. So they can terminate you for
saying something on social media, they can terminate you
for saying something on a podcast, they can terminate you
for basically any reason as long as it is not discriminatory and
as long as it's not in say, retaliation for a whistle blower
claim or something like that. So your free speech rights as it
as it relates to your employer are quite limited.
That's not to say that you shouldn't speak your mind, you
just need to be aware of the limitations of those rights that
you have. Right, No, it, I think it's, we
should probably have like an annual reminder on this because
I, you know, look, I scroll very deeply and read it.
I don't really contribute a lot. I like to just read the other
crazy thoughts that are not other crazy thoughts because I
don't have crazy thoughts, but the, the, the people out there
that have just like crazy opinions, in my opinion, crazy
opinions on things. And of course, there's like an
HR subreddit. And really I just kind of, I
browse right. Like I want to see in people who
are not in HR will ask HR people questions in that subreddit.
And sometimes I see things that are really bewildering, like,
you know, my, I, my employer terminated me or rescinded my
job offer because of my social media page or because I have
only fans, which I don't, by the way.
I'm I'm reiterating what people say on Reddit.
This is not coming out right. I do not have that.
I'm barely on Instagram. You would not catch me on there
anyway. This is not OK.
Let me, should I start over Anyway, you get where I'm saying
what I'm saying, But this is like these are questions that or
things that people are bringing up on on the subreddit.
And it's like they're really confused why their employer
takes kind of like a formal stance against them and says you
either can't work here, you can't work here any longer.
And most people in that subreddit will reply saying,
look, you know, an employer is like free to do that unless
you're in one of these few states that are not at will.
And that ultimately, like, yeah, your presence online could
affect your ability to be hired or maintain your employment.
And I think about, you know, this just from the perspective
of like brand connection, like if someone has and only fans or
something that's maybe a little bit more controversial or like
puts them paints themselves in like a way that maybe the the
company does not want to align themselves with.
That's kind of that. And it doesn't matter whether
you have the right to do whatever you want with whomever
you want and however you want online, there is potential for
repercussion. And at the end of the day, I
mean, just like being a smart consumer, you can be a smart
provider and like you can decide, OK, this is what I want
to do for myself and I don't care if I'm fired.
Or you can say, oh, actually I don't want these repercussions.
I'm going to just like not do this.
And then sometimes, just my last point on this, I've actually not
sometimes it's maybe less sometimes and more so like in
the past, I've had questions from friends actually who have
said that they make their profiles private.
Doesn't that protect them in any way?
And no it doesn't because you can get docs to anytime.
Like someone whoever follows you could easily just share whatever
thing you might post that you think is, you know, appropriate
for your page, but isn't necessarily something that
again, like a brand or your company would want to align
with. So I think maybe it's part of
maturing and it is like understanding that, you know,
understanding that you are not. You sure you have?
Freedom of speech, but that doesn't mean that your employer
wants you to say anything and everything at any time.
We saw this like with the insurrection to people were
arrested, you know, and then their employers decided that
that was not, you know, that did not align with their company
messaging. Yeah, exactly.
And I think it's, I think it's asking sort of the question of
should you be able to say things?
Yes, I, I think you should. I, I'm not necessarily a free
speech absolutist like somebody like Elon claims to be, but I,
I, I think with a few limitations, yes, you should be
able to say what you want. If, you know, you can't incite
violence, you can't threaten people with with physical or
imminent harm, shouldn't say like just abhorrent things about
other people or about people in general or just abhorrent
things, period. But that doesn't mean that the
existing laws that we have in this country give you the right
to say those things. And yeah, I think it's just kind
of understanding where we are that there are some statutes in
some States and cities that provide some protections for
employees to say what they want on social media without
repercussion. Again, as long as it's not
inciting violence, as long as it's just not generally
abhorrent speech. But to claim that you had, as an
employee, have a constitutional free speech right to say
whatever you want with your as it relates to your employer,
that's unfortunately not not the case.
You know, my last point on this is that there is someone on
LinkedIn. I won't even say that I follow
them so much. I think that they just come up
on my LinkedIn. I don't know, it's an algorithm
thing and they are like actively outing their past employer and
like, like, I think that's probably why I still like get it
because I keep reading like what they're saying, but it's like,
see another person from insert company name is like terminated
for this thing. And like people are starting to
talk and like they're talking about the culture and like the
toxicity and all this stuff. And I'm like, I just don't think
you'd ever catch me doing that. Like I it's just, I get it.
They're they're not there anymore.
And so yes, they can, you know, what's the harm in terms of
their relationship with that that company.
But I don't know, I just, I feel like I'm kind of a product of
like my parents generation. They're boomers where it's like,
Oh my gosh, you could burn every single bridge because it's a
small industry potentially that this person's in and this is how
you want to spend your time online, like just completely
destroying them with your name. It's like they're not even
attempting to disguise themselves and Glassdoor reviews
like they're just, they are just putting it all out there.
And I mean, like, again, it's kind of a paradox.
Like you can say kind of anything, of course with the
asterisk of, you know, what is reasonable to say and not
illegal, but it's like, are, is there any thought on
consequences? Like if I were that person's
potential future employer, I don't think I'd be interviewing
them. I'd be like, you make one
mistake and then you're going to be outed like that.
You're right. It, it's a fine line because
there's the, there's that, that that mindset of, you know, I can
say what I want and yeah, I agree with that.
You can and should say what you want, but you have to be
prepared for the repercussions. And in our society, there can be
nearly unlimited repercussions from your current or potential
employers for, for things that you may say that they just, they
just don't want to touch. Some employers are fine with it.
Some employers are like, yeah, we, we are going to speak freely
about politics. We're going to speak freely
about, about civil rights. Like maybe, maybe those are the
employers that, that people like that need to, need to find.
But for the most part, I, I tend to agree with you.
I don't necessarily subscribe to the same idea anymore, but I
tend to agree with you that the majority of, of American
companies are like that, that like, we're just gonna stay away
from this. We don't want the hassle.
We don't want the stress with with someone who is who is that
open? Yeah, exactly.
And and I realize I've already said this is my final thing like
3 separate times, but this is really my final thing because I
have to insert this quote. It's so good.
It is from a former Real Housewives of Housewife of New
York, Dorinda Medley, who said say it, forget it, write it,
regret it. And that is like, you know,
those are words to live by, I think because you say something
and maybe people like completely forget what you actually said
because the game of telephone. But when you write it, that's
that's it. It's an ink or online forever.
You know you have no idea who screenshots things.
Exactly, exactly. I will say, just to twist this
back to HR, that you absolutely want to write it down when it
comes to HR because if you don't write it down, it didn't happen.
If you don't document it, it didn't happen.
Yeah, yeah, yeah. Right.
Document everything unless you don't want to regret it later
because it has nothing to do with HR, right?
That's fair, that's fair. That would be taking it back to
Real Housewives of New York, the OG cast.
Amazing. Well, Brian, thank you so much.
Really appreciate it. I think the next time we speak,
maybe we'll infuse some of these additional questions that we
have for you. And for any listeners who want
to ask any questions directly to Brian, please feel free to send
those in. You can e-mail me at
contact@hrtracy.com. And Brian, thank you so much
again, and we'll see you next month.
Thank you, Tracy. Appreciate it.
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