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Welcome to the Bringing the 
Human Back to Human Resources 

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podcast. 
I'm Tracy Chernoff, and I've 

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spent my entire professional 
career in HR. 

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Each week, we'll explore the 
delicate balance between people 

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and business, with the aim to 
reconnect the two and create 

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meaningful outcomes. 
Listen in as I share my own 

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experiences, challenge the 
status quo, and chat with guests

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from various industries about 
our mission to bring the human 

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back to human. 
Resources. 

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Hi, everyone. 
Welcome back to the podcast. 

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You know the drill. 
Don't forget to rate, review and

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subscribe wherever you're 
catching this episode. 

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And this episode is our monthly 
Policy Pulse. 

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And so I have, of course, our 
resident helper here, Brian 

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Driscoll, who is an attorney. 
And you know, of course, as you 

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know from all the previous 
Policy Pulse episodes, kind of 

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like our resident guru on all 
things employment law or things 

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I could at least affect people 
in the workplace. 

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And you know, of course, with 
anything else, this is not legal

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advice, as you know, but more so
kind of hopefully a discussion 

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that's a little bit more 
targeted toward some of you who 

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might need to kind of keep an 
eye on some things as they kind 

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of come through and happen. 
And so a lot of what we'll be 

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talking about today might not 
actually be in existence just 

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yet, but is more so kind of a 
look forward or something to 

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anticipate should there be any 
final determinations or 

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decisions that kind of come out 
of some of these things. 

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So Brian, of course will be will
be able to explain a little bit 

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more on those fronts. 
But we're going to start with 

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talking about the the National 
Labor Review Board, AKA the 

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NLRB. 
And a quick snippet here is that

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President Trump has nominated 
James Murphy and Scott Mayer to 

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fill vacant seats on the NLRB. 
And if confirmed by the Senate, 

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these nominees will restore a 
functioning quorum to the five 

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member board, which has been 
hamstrung since May and unable 

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to issue decisions. 
This signals a potential 

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significant course correction 
and labor law. 

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So Brian, I will pass to you 
because I think there's even in 

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that one statement, there's 
probably a lot, a lot to unpack.

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Yeah. 
So for a couple of months now, 

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the NLRB has not had a quorum, 
like you said, 55 members on the

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board, but they've only had 
three. 

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So they haven't been able to 
issue any rulings, any 

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decisions. 
So if these two people are 

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confirmed by the Senate, then 
they'll have they'll have the 

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quorum again and they'll be able
to make some make some changes. 

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What we expect to see, we'll go 
through a few of them, but what 

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we expect to see are lots of 
probusiness changes. 

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So removal of of some Biden era 
decisions, even going back as 

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far as some Obama era decisions 
that could be on the chopping 

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block. 
Interesting. 

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So when we think about some of 
those decisions, can you walk us

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through what might be on the 
chopping block then? 

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Yeah. 
So you know we've talked about 

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previously and I'm sure people 
have have paid a lot of 

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attention to the non compete 
issues that have been going 

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around the last couple of years.
Same type of thing with 

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confidentiality and and non 
disparagement provisions. 

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Previously there was a an NLRB 
decision that held severance 

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agreements that contained 
confidentiality clauses and non 

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disparagement clauses could 
possibly violate employee rights

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even if the severance was signed
voluntarily. 

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Essentially keeping them quiet 
with would be against the 

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leaving employees, right? 
Under the new board, we're 

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anticipating that this would 
just be removed reinstating the 

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prior the prior board ruling 
that post employment 

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restrictions do not interfere 
with employees NLRA rights. 

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And so it would essentially mean
that employees would still be 

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bound by confidentiality and non
disparagement clauses. 

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So what that means in practice 
is that if you're, if you're 

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leaving a company and you sign a
severance agreement or at the 

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beginning of your, your 
employment with the company, 

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you, you negotiate A departure 
package. 

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It will probably include a non 
disparagement clause, which 

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means that you can't leave a 
Glassdoor review that speaks 

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poorly of the company or your 
manager or the owner. 

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You can't talk with other 
employees negatively. 

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In practice, a lot of this stuff
can be hard to prove, but it's 

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still, it's still in the 
contract. 

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It's still something that 
technically you're you're bound 

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by. 
So it's like it, it basically it

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could be enforceable if someone 
were able to figure out that 

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someone were disparaging the 
company if they were potentially

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bound to that. 
That's interesting. 

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I, I mean, I'm curious, 
obviously I can see both sides 

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here. 
As an employee, I can see, well,

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you know, you want to have the 
right to express your experience

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from, you know, what the company
experience was as an individual.

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And I can also see from the 
employment side or the employer 

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side why these agreements are so
important because of, you know, 

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like a company could do 
everything right? 

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And that agreement is something 
that they really, you know, kind

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of lean on in the event that 
someone who's really disgruntled

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is kind of trying to tear things
down. 

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So I could see both sides. 
So I'm curious like what the 

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pros and cons would be to 
basically either overturning 

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like changing some of the these 
rulings or keep, you know, like 

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what I guess what the pros and 
cons would be either way, maybe 

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that's the best way to to phrase
it. 

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Yeah, I think the, I think in my
opinion, I think the the 

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biggest, the biggest sort of 
broad brush change that we'll 

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see here. 
It's no secret this 

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administration is extremely 
probusiness and, and many of 

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their decisions, many of the, 
the people that have been 

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nominated to key to key 
positions are extremely 

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probusiness. 
And so we're going to see that 

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trend. 
The, I think the the overarching

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theme for the administration in 
possibly overturning, reversing 

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some of these prior decisions is
to prevent businesses from 

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having to spend what they see as
unnecessary litigation money. 

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Instead of having to spend money
to go after a prior employee 

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for, for a Glassdoor review and 
an Indeed review or, or for 

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talking poorly to current 
employees, they, the company 

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could then use that money to 
hire more people or put more 

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money into R&D or just save 
cash. 

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That I think is the, you know, 
everything comes down to money, 

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right? 
Like I think that is, I think 

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that's the ultimate, the 
ultimate overarching theme that 

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we're, that we see across all of
these is that it just comes down

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to this administration wants to 
help businesses retain cash. 

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And I think that's that's, I 
think that's the ultimate, 

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ultimate goal. 
Got it. 

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And then as it relates to like 
the state by state laws, like is

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there is there any impact there 
where this is obviously a 

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national ruling, but then could 
states have their own kind of 

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set of principles or laws that 
potentially are more or less 

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strict than the national ruling?
So the states can't have 

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anything that's less strict, but
they can have more strict, at 

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least for now. 
I anticipate that there there 

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might be a challenge before the 
Supreme Court that would make 

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these decisions nationwide and 
and void any state laws that are

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more strict. 
But take California for example.

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We've used them in in our 
discussions previously with the 

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non competes. 
Same thing would be the case 

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here. 
They may keep the non 

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disparagement confidentiality 
clauses the the sort of the 

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boundaries that currently exist,
even if the NLRB takes a step 

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backwards. 
So if you're in California, you 

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might nothing, nothing 
effectively might might change 

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for you if if the NLRB reverses 
course. 

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Got it right. 
That makes sense. 

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So I think it's, it seems to me 
that of course HR leaders are 

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going to have to kind of keep a 
pulse on some of these things. 

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There are great like newsletters
and articles that kind of keep, 

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you know, the I, I'm subscribed 
to like the Human Times 

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newsletter. 
And they generally send a lot of

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international pieces of 
information actually that that 

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could impact HR or the workplace
people. 

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And so I would probably 
recommend people to, to find 

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some newsletter that resonates 
either with their industry or 

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that gives them information that
keeps them up to date, because 

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this is something that could 
have systemic changes with how 

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businesses operate. 
I mean, the non compete alone, 

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that's something like even in my
husband's work, they were 

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talking about that in the last 
year or so, Like how does that 

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change? 
Because in in a lot of fields 

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and a lot of industries, he's in
healthcare, there's, you know, 

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there are restricted covenants 
and non competes that really put

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a lot of restriction on how you 
can actually work and where you 

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can work. 
And that, you know, they're, 

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they're pros a lot for a lot of 
pros for the employer in that 

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regard and a lot of cons for the
individual. 

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So it'll be interesting to see 
how all this shakes out. 

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And I know there are some other 
kind of things to discuss within

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some of these national kind of 
potential changes, one of which 

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is, you know, recognition of 
unions and specifically related 

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to Cmax. 
Am I saying that correctly? 

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Cmax. 
Cmax. 

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Yeah, Cmax construction. 
Right. 

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Yeah, Cmax construction 
materials specific, I'll see. 

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And that they dramatically 
altered the process for union 

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recognition, requiring employers
to either, this is a prior 

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ruling, by the way, to either 
voluntarily recognize a union 

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based on a card check or 
promptly file an RM petition for

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a secret ballot election. 
Crucially, if an employer 

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commits any unfair labor 
practices during the pre 

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election period, the board could
issue a bargaining order 

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compelling recognition 
regardless of the vote outcome. 

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So there's an anticipated shift 
here, right? 

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And I, I, I realize that this 
might not necessarily be for 

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every union, but related to this
particular case. 

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Could you walk us through that? 
Yeah. 

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Again, theoretical in nature at 
the moment, but we would expect 

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that if if these two people are 
confirmed to the NLRB, they 

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would they would reverse course 
on on this prior ruling 

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essentially allowing employers 
to to reject the physical card 

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based union recognition and 
election process. 

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It would there this kind of is 
combined with with another union

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issue that might be reversed and
Amazon has actually filed filed 

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a charge in in that one. 
So there's something in in union

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meetings called the captive 
audience. 

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And that is a long standing, 
long standing provision from the

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NLRB that that requires people, 
employees to sit in a meeting 

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where the employer tells them 
essentially why unions are are 

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are bad for them. 
So the the the new board could 

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restore sort of reverse course 
again on that for these captive 

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audiences. 
So that would allow employers to

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then once again say, we don't 
want you to join a union. 

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We don't need a union. 
We're all we're just a family 

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here. 
We're just everybody's, 

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everybody's wonderful. 
You don't need a union to 

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protect your rights. 
We're doing the best by you. 

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Trust us. 
So under the under a binary 

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ruling that sort of what I just 
laid out that that sort of 

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conversation could not be forced
on employees. 

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Employees would have the option 
to sit there and listen to that 

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or leave. 
We could see that sort of take a

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step back. 
So these two things together are

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sort of attempting to weaken 
unions across the country, like 

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you said, not necessary for for 
everybody in the country. 

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I think union membership is down
now below 50% nationwide. 

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So it's not, it's not as widely 
wide, it's not as wide of an 

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issue as it used to be. 
But these two things would 

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certainly take a step back, 
allowing for more employer again

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my words, more employer 
persuasion in in the anti union 

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space. 
Interesting. 

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You know, maybe I'm mistaken 
here, but I was always under the

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impression that at least at the 
federal level, maybe it's 

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President Trump, maybe it's 
others, that there was a general

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like pro union stance, like more
generally speaking, right? 

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There. 
So, yeah, it's certainly not 

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with this administration there. 
There used to be in the gosh, 

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this is going to test my memory 
now. 

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I think it's sixties, 60s or 70s
union. 

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In the 60s or 70s, union 
membership peaked at something 

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like 8085% of the country. 
And that's where we saw a lot of

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progress with employee rights. 
We saw minimum wages in 

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different industries increase. 
Yeah, Labor Day exactly. 

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That's, that's a union thing. 
So we then in, in the 80s with 

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00:14:27,440 --> 00:14:31,600
Reagan, we started to see a 
decline in union membership as 

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00:14:31,640 --> 00:14:35,760
deregulation really, really 
wiped a lot of, a lot of things 

232
00:14:35,760 --> 00:14:38,760
out. 
And but as you and I have talked

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00:14:38,760 --> 00:14:42,640
about before it, even if you're 
not a member of a union, but you

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00:14:42,640 --> 00:14:48,760
are in an industry that is is 
governed by a union or you're in

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00:14:48,760 --> 00:14:51,680
an area of the country where 
union membership is extremely 

236
00:14:51,680 --> 00:14:55,400
high, you actually still see 
benefits where union membership 

237
00:14:55,400 --> 00:14:58,920
is high. 
Wages are also higher than than 

238
00:14:58,920 --> 00:15:01,200
the national average. 
So unions do have a positive 

239
00:15:01,200 --> 00:15:02,600
impact even if you're not a 
member. 

240
00:15:03,320 --> 00:15:04,920
Interesting. 
Interesting. 

241
00:15:05,160 --> 00:15:06,840
Yeah. 
I mean, it's funny. 

242
00:15:06,840 --> 00:15:10,920
When I was, when I started 
working in HRI, was working at 

243
00:15:10,920 --> 00:15:12,480
Target. 
That's like where I always say 

244
00:15:12,480 --> 00:15:14,480
that's where I sharpen my knives
and stuff like that. 

245
00:15:14,760 --> 00:15:18,840
It was a great experience. 
I remember there was so much 

246
00:15:19,200 --> 00:15:22,080
discussion on Labor Relations 
and that we were really like 

247
00:15:22,520 --> 00:15:26,520
trained on how to communicate 
that we like, quote UN quote, 

248
00:15:26,520 --> 00:15:29,640
protect our signatures and that 
we should encourage it. 

249
00:15:29,640 --> 00:15:32,680
Like part of the training, even 
for employees is to protect your

250
00:15:32,680 --> 00:15:34,320
signature. 
Like only sign things that you 

251
00:15:34,320 --> 00:15:36,920
really believe in. 
Like if there was no coercion, 

252
00:15:36,920 --> 00:15:39,960
obviously it was like, you know,
really trying to explain what 

253
00:15:39,960 --> 00:15:44,400
happens if you do sign a card, 
for example, in this case, or, 

254
00:15:44,760 --> 00:15:47,800
or, you know, sign up or for 
something. 

255
00:15:48,960 --> 00:15:53,520
And there was one instance where
like a particular CVS pharmacy 

256
00:15:53,520 --> 00:15:57,120
within a Target store did end up
unionizing. 

257
00:15:57,160 --> 00:16:01,640
And I think it kind of put a lot
of even more emphasis, I should 

258
00:16:01,640 --> 00:16:05,640
say, on Labor Relations at 
Target and, and just the 

259
00:16:05,640 --> 00:16:07,400
training in general, which is 
really interesting. 

260
00:16:07,400 --> 00:16:11,040
And, and it's funny, it's never 
come up again in my career. 

261
00:16:11,040 --> 00:16:13,480
Like there was never again a 
focus on Labor Relations. 

262
00:16:13,480 --> 00:16:16,720
I don't know if it's because 
that was the largest corporation

263
00:16:16,720 --> 00:16:19,080
that I had ever worked for or if
there was, you know, there's an 

264
00:16:19,080 --> 00:16:23,520
impact there, but there's there 
like everything, there are two 

265
00:16:23,520 --> 00:16:25,240
sides to everything. 
There are pros and cons. 

266
00:16:25,240 --> 00:16:28,160
Some people who are in unions 
say that, you know, like I have 

267
00:16:28,160 --> 00:16:31,440
family members who are part of 
unions, for example, based on 

268
00:16:31,440 --> 00:16:35,000
the industry that they're in. 
And they're like, I love my 

269
00:16:35,040 --> 00:16:36,520
union. 
It really protects my interests.

270
00:16:36,520 --> 00:16:38,600
There's always, you know, 
especially like teachers unions,

271
00:16:38,600 --> 00:16:40,920
for example, they're always 
like, you know, fighting for our

272
00:16:40,920 --> 00:16:43,120
interests. 
And then I hear from the other 

273
00:16:43,120 --> 00:16:45,120
side of the coin, it's like, 
well, I really don't like my 

274
00:16:45,160 --> 00:16:46,720
union. 
I never have any control. 

275
00:16:46,720 --> 00:16:49,640
I don't have any say. 
They kind of just decide what 

276
00:16:49,640 --> 00:16:52,640
matters to them. 
And frankly, that is kind of 

277
00:16:52,680 --> 00:16:55,400
like the case for anything. 
You could see both sides every 

278
00:16:55,400 --> 00:16:58,680
just because it's a union and 
two industries doesn't mean that

279
00:16:58,680 --> 00:17:02,480
it's going to be properly run or
run in a way that people want to

280
00:17:02,800 --> 00:17:07,440
to see it run every single time.
And then I see it on the other 

281
00:17:07,440 --> 00:17:10,440
side where it's like in a non 
union environment, there's so 

282
00:17:10,440 --> 00:17:15,680
much more control as an employer
to be able to change or or 

283
00:17:16,240 --> 00:17:20,920
maneuver and adjust the ways in 
which we support the teams. 

284
00:17:21,200 --> 00:17:24,040
But I've said before on the 
podcast that a lot of the times,

285
00:17:24,200 --> 00:17:28,400
at least in my experience, union
discussions come up when people 

286
00:17:28,400 --> 00:17:32,560
are really unhappy or feel that 
their interests are not being 

287
00:17:33,080 --> 00:17:37,360
supported or considered. 
So there is definitely an 

288
00:17:37,360 --> 00:17:41,720
element to that where businesses
are businesses who maybe don't 

289
00:17:41,720 --> 00:17:46,360
want to see employees unionized 
potentially they're inclined to 

290
00:17:46,720 --> 00:17:49,800
protect the interests of their 
employees still and really lean 

291
00:17:49,800 --> 00:17:53,520
into employee engagement and 
satisfaction and how they 

292
00:17:53,520 --> 00:17:55,880
support the people who drive 
their business. 

293
00:17:56,360 --> 00:17:59,040
Just my my opinion. 
Exactly. 

294
00:17:59,040 --> 00:18:03,200
And that's, that's where unions 
can have sort of a, an ancillary

295
00:18:03,200 --> 00:18:08,480
impact on, on companies, on 
businesses that don't, that 

296
00:18:08,480 --> 00:18:11,360
aren't unionized. 
They see that, OK, you know, 

297
00:18:11,400 --> 00:18:14,760
this Target is, is unionizing, 
this Starbucks is unionizing. 

298
00:18:16,160 --> 00:18:18,880
And we understand that it's 
because employees feel like 

299
00:18:18,880 --> 00:18:21,160
they're, they're being 
overworked, underpaid, not 

300
00:18:21,160 --> 00:18:23,240
getting the benefits that, that 
they think they should have. 

301
00:18:24,440 --> 00:18:28,600
So let's, let's increase ours. 
Let's let's increase our wages, 

302
00:18:28,600 --> 00:18:31,840
let's increase our benefits, 
let's add some benefits. 

303
00:18:32,320 --> 00:18:36,560
Those can be those can be 
positive impacts that that 

304
00:18:36,560 --> 00:18:39,880
again, unions can sort of have 
that have that knock on effect 

305
00:18:39,880 --> 00:18:42,440
from for, for for their 
neighbors. 

306
00:18:42,920 --> 00:18:46,760
Right, right. 
You mentioned deregulation 

307
00:18:46,760 --> 00:18:49,000
actually as part of this 
discussion, which is a good 

308
00:18:49,000 --> 00:18:53,720
segue for us because there is a 
change, a pretty big change at 

309
00:18:53,720 --> 00:18:57,240
the with regard to the 
Department of Labor and, and a 

310
00:18:57,240 --> 00:18:59,520
lot of deregulation that we're 
seeing here. 

311
00:18:59,520 --> 00:19:02,320
And so the Department of Labor 
has launched one of the most 

312
00:19:02,320 --> 00:19:06,240
sweeping deregulatory efforts in
recent memory, advancing over 60

313
00:19:06,240 --> 00:19:08,480
proposals in response to 
President Trump's executive 

314
00:19:08,480 --> 00:19:11,920
order to rescind 10 regulations 
for every new one issued. 

315
00:19:12,200 --> 00:19:15,160
So what does that mean? 
What are some of the proposed 

316
00:19:15,160 --> 00:19:18,000
deregulations as a result of 
this? 

317
00:19:19,400 --> 00:19:24,040
So some of the most notable 
things are one of them. 

318
00:19:24,040 --> 00:19:28,480
Again, not applicable to to 
everyone, but OSHA is is a big 

319
00:19:28,480 --> 00:19:32,320
one. 
And it would, this would really,

320
00:19:32,600 --> 00:19:35,200
in my opinion, harm some some 
workplace safety issues. 

321
00:19:36,640 --> 00:19:41,320
The they want to roll back 
reporting requirements for 

322
00:19:42,240 --> 00:19:45,520
muscular musculoskeletal 
disorders. 

323
00:19:46,240 --> 00:19:50,320
So that would be like, you know,
you're sitting at a computer all

324
00:19:50,320 --> 00:19:54,320
day typing and, and carpal 
tunnel starts to develop. 

325
00:19:54,320 --> 00:19:58,320
You get pain in the wrist. 
You go to the doctor and that 

326
00:19:58,320 --> 00:20:02,600
would currently you would report
that to your employer. 

327
00:20:03,480 --> 00:20:05,360
They would have to make some 
accommodations for you. 

328
00:20:06,520 --> 00:20:09,720
They would have to report that 
to the federal government that 

329
00:20:09,720 --> 00:20:13,480
there is there is someone 
suffering from from this type of

330
00:20:13,480 --> 00:20:16,960
injury at work. 
That would no longer be the 

331
00:20:16,960 --> 00:20:19,960
case. 
So these types of things think 

332
00:20:19,960 --> 00:20:25,280
construction workers and back 
injuries, any, any type of of 

333
00:20:25,560 --> 00:20:31,040
work specifically or mostly 
manual labor, but it would it 

334
00:20:31,040 --> 00:20:33,800
would roll back a lot of those 
reporting requirements, which 

335
00:20:33,880 --> 00:20:38,920
ultimately reduces the payouts 
for workers comp. 

336
00:20:39,640 --> 00:20:42,360
So again, going back to the 
money conversation, this then 

337
00:20:42,360 --> 00:20:45,480
would would keep employers rates
low. 

338
00:20:46,840 --> 00:20:50,880
Got it, got it. 
I noticed there was something 

339
00:20:50,880 --> 00:20:56,840
also on some fiduciary plan 
changes under the ERISA, which 

340
00:20:56,880 --> 00:21:00,440
for those who might not know 
their requirements related to 

341
00:21:01,200 --> 00:21:04,200
really like, I mean, maybe I'm 
maybe I'm not an expert in this,

342
00:21:04,200 --> 00:21:08,280
but my understanding is like 
requirements related to any type

343
00:21:08,280 --> 00:21:14,120
of like retirement contributions
plans that are might be in 

344
00:21:14,120 --> 00:21:16,440
place. 
Like for example, I've been, 

345
00:21:16,440 --> 00:21:19,320
I've worked with Fidelity before
and they have, you know, 

346
00:21:19,320 --> 00:21:21,800
fiduciary rule. 
They have a fiduciary that they 

347
00:21:21,800 --> 00:21:24,240
work with and their plans and 
they're all kind of compliant 

348
00:21:24,240 --> 00:21:27,080
under the ERISA. 
But what are some of those 

349
00:21:27,080 --> 00:21:30,280
revocations that you're seeing 
under some of these rollbacks? 

350
00:21:31,320 --> 00:21:36,200
So, yeah, like you said, under, 
under ERISA, the, the, the plan,

351
00:21:37,080 --> 00:21:41,440
the plan manager, which is often
the employer has a fiduciary 

352
00:21:41,440 --> 00:21:46,400
duty to, to ensure that, that 
the their employees money is 

353
00:21:46,400 --> 00:21:52,560
being managed properly, that the
fees are normal, not outrageous.

354
00:21:53,640 --> 00:21:56,480
And, and those would be rolled 
back. 

355
00:21:56,480 --> 00:22:00,240
Essentially. 
It would be similar to to some 

356
00:22:00,240 --> 00:22:03,320
of the rollback that we're 
seeing on personal credit cards 

357
00:22:04,200 --> 00:22:09,400
and overdraft fees from banks. 
So that again, was was a Biden 

358
00:22:09,400 --> 00:22:12,640
era rule where overdraft fees, I
think had to be capped at like 

359
00:22:12,640 --> 00:22:15,400
25 bucks or something. 
The Trump administration wants 

360
00:22:15,400 --> 00:22:17,400
to remove that. 
So, you know, they can charge 

361
00:22:17,400 --> 00:22:20,040
100 bucks if you overdraft by a 
dollar or something like that. 

362
00:22:20,320 --> 00:22:25,480
This is the same type of thing 
you would see, you would see 

363
00:22:25,480 --> 00:22:29,280
fiduciary duty drop. 
There might still be some level 

364
00:22:29,280 --> 00:22:34,600
of fiduciary duty, but you would
see a drop in litigation. 

365
00:22:34,760 --> 00:22:41,240
So if investments are improper, 
if you know if if instead of 

366
00:22:41,240 --> 00:22:44,920
putting putting the the 
employees funds into a whole 

367
00:22:44,920 --> 00:22:48,560
market fund or diversifying 
across many different areas, 

368
00:22:48,800 --> 00:22:51,560
they put everything in, I don't 
know, they put everything in 

369
00:22:51,560 --> 00:22:55,040
Bitcoin. 100% of your funds are 
in Bitcoin, and Bitcoin crashes 

370
00:22:56,080 --> 00:22:59,280
that would be that would 
absolutely trigger trigger 

371
00:22:59,280 --> 00:23:02,200
litigation. 
And now it might be more 

372
00:23:02,200 --> 00:23:07,040
difficult for employees to prove
that the plan manager failed in 

373
00:23:07,040 --> 00:23:10,200
their fiduciary duty. 
I see, I see. 

374
00:23:10,440 --> 00:23:12,360
Very interesting. 
Yeah. 

375
00:23:12,400 --> 00:23:17,000
I mean, I'm, I guess I'm trying 
to better understand this. 

376
00:23:17,000 --> 00:23:22,280
So basically the possibility 
here is that for part of the 

377
00:23:22,280 --> 00:23:27,040
deregulation is that for every 
new regulation that's not just 

378
00:23:27,040 --> 00:23:31,040
proposed but basically approved 
and issued, 10 regulations will 

379
00:23:31,040 --> 00:23:35,520
be rolled back. 
How are those rollbacks decided?

380
00:23:35,520 --> 00:23:38,400
Is it like based on this new 
issue is based on employee 

381
00:23:38,400 --> 00:23:41,400
benefits and so we're going to 
rollback 10 regulations within 

382
00:23:41,400 --> 00:23:43,400
that category like how is that 
going to work? 

383
00:23:45,080 --> 00:23:48,080
I think, I think they're 
throwing darts, honestly. 

384
00:23:48,080 --> 00:23:50,840
I, I there, there doesn't seem 
to be a there's, there's no 

385
00:23:50,840 --> 00:23:52,960
correlation. 
So like if you're to your 

386
00:23:52,960 --> 00:23:57,560
example, if, if you're, if 
you're adding a new rule on or 

387
00:23:57,560 --> 00:24:02,040
rolling something back on on 
employee rights, the other 10 

388
00:24:02,040 --> 00:24:04,680
that are eliminated don't have 
to be related to employee 

389
00:24:04,680 --> 00:24:05,360
rights. 
It can. 

390
00:24:05,440 --> 00:24:08,760
It can be whatever they're, 
whatever they feel like today. 

391
00:24:09,520 --> 00:24:12,400
Got it, Got it. 
Interesting, interesting. 

392
00:24:12,560 --> 00:24:14,280
I guess we'll see what happens 
there. 

393
00:24:14,280 --> 00:24:20,440
I mean, I know there's one other
point here that we kind of have 

394
00:24:20,440 --> 00:24:23,960
in our notes that I think is 
probably worth talking about 

395
00:24:23,960 --> 00:24:25,440
with regard to this 
deregulation. 

396
00:24:25,440 --> 00:24:28,520
And that's around the 
independent contractor rule that

397
00:24:28,800 --> 00:24:32,600
was present during the Biden era
Department of Labor. 

398
00:24:32,880 --> 00:24:37,000
But I don't remember what that 
rule was other than maybe the 

399
00:24:37,280 --> 00:24:40,840
potential for misclassification 
and having to really make sure 

400
00:24:40,840 --> 00:24:43,480
that you go through like the 
test, for example, to ensure 

401
00:24:43,480 --> 00:24:45,360
that contractors are contractors
are not employees. 

402
00:24:45,360 --> 00:24:49,440
But I guess I wasn't, I, I, 
it'll be interesting to hear you

403
00:24:49,440 --> 00:24:51,520
kind of explain that. 
I'll say I'll, I'll call us for 

404
00:24:51,520 --> 00:24:52,800
now. 
Yeah. 

405
00:24:52,800 --> 00:24:56,120
So the so the independent 
contractor rule has changed. 

406
00:24:56,120 --> 00:24:58,920
That is the one thing that that 
that we can talk about here that

407
00:24:58,920 --> 00:25:01,880
that's not theory that has 
actually changed. 

408
00:25:03,040 --> 00:25:10,840
So the I won't get to in the 
weeds, but like the, the, the 

409
00:25:10,840 --> 00:25:13,800
test for whether somebody is an 
employee or an independent 

410
00:25:13,800 --> 00:25:20,440
contractor under the, the Biden,
the Biden proposal was more 

411
00:25:20,440 --> 00:25:23,480
employee friendly. 
The essentially the burden was 

412
00:25:23,480 --> 00:25:27,360
on the employer to show that 
this person is not an employee. 

413
00:25:28,320 --> 00:25:30,880
That has shifted. 
It is now back to what it was 

414
00:25:30,880 --> 00:25:35,360
previously where it's it the 
burden is more on the employee 

415
00:25:35,360 --> 00:25:38,400
to show that they are an 
employee. 

416
00:25:39,520 --> 00:25:43,840
So you, you have what is it 
today it's almost 60% I think of

417
00:25:43,840 --> 00:25:48,320
the country that that is gig 
working in some fashion, whether

418
00:25:48,320 --> 00:25:53,160
full time or or part time and 
that's mostly done on a 1099 

419
00:25:53,160 --> 00:25:54,840
basis independent contractor 
basis. 

420
00:25:55,040 --> 00:26:00,120
So what we're seeing is a lot of
employees, a lot of workers who 

421
00:26:00,120 --> 00:26:04,480
are working as independent 
contractors and some of those 

422
00:26:04,920 --> 00:26:09,040
are probably employees 
essentially for employers and, 

423
00:26:09,040 --> 00:26:13,720
and for the HR pros listening, 
everybody probably already knows

424
00:26:13,720 --> 00:26:16,640
this. 
But the, the, the big picture is

425
00:26:16,640 --> 00:26:19,560
when, when you're looking at 
whether somebody is a 1099 

426
00:26:19,560 --> 00:26:23,760
independent contractor or an 
employee, do you as the employer

427
00:26:24,160 --> 00:26:29,400
control their work hours, what 
they do and when There's more to

428
00:26:29,400 --> 00:26:31,840
it than that, but those are kind
of the, that's the big picture 

429
00:26:31,840 --> 00:26:33,920
item. 
If you if you do any of those 

430
00:26:33,920 --> 00:26:36,360
things, the worker is an 
employee, not an independent 

431
00:26:36,360 --> 00:26:40,640
contractor. 
Yeah, the I did an episode on 

432
00:26:40,640 --> 00:26:42,240
this. 
I can't remember if it was this 

433
00:26:42,240 --> 00:26:48,880
year or last year, but I did 
talk about how important it is 

434
00:26:49,120 --> 00:26:54,480
to ensure correct classification
and I shared resources in on 

435
00:26:54,760 --> 00:26:57,520
where people can go and find the
test. 

436
00:26:58,520 --> 00:27:02,800
And you're right, there are more
elements to that, but it is 

437
00:27:02,800 --> 00:27:04,360
pretty important that it happens
a lot. 

438
00:27:04,360 --> 00:27:07,040
And it's actually something that
I've learned in managing a 

439
00:27:07,040 --> 00:27:12,920
global workforce in the last 
several years is that the 

440
00:27:13,080 --> 00:27:17,320
contractor rules that we 
understand in the US are kind of

441
00:27:17,320 --> 00:27:19,880
like held in other countries. 
Like there are other countries 

442
00:27:19,880 --> 00:27:24,040
that that do prefer like their 
employees in other countries 

443
00:27:24,040 --> 00:27:27,440
like in Brazil and Argentina and
other places where they prefer 

444
00:27:27,440 --> 00:27:29,480
to be contractors. 
I think it's because of some of 

445
00:27:29,480 --> 00:27:33,800
the tax laws, but the the 
potential for misclassification 

446
00:27:33,800 --> 00:27:38,200
remains just as high as in other
as as it does here. 

447
00:27:38,800 --> 00:27:41,760
And so I would encourage anyone 
who is managing a global 

448
00:27:41,760 --> 00:27:45,640
workforce to really understand 
each country's kind of standard 

449
00:27:45,680 --> 00:27:48,880
on that. 
And most people are probably, 

450
00:27:49,240 --> 00:27:51,960
you know, kind of tuned in and, 
and focus on the US and 

451
00:27:52,120 --> 00:27:54,560
generally the larger the 
company, the more resources you 

452
00:27:54,560 --> 00:27:56,680
have in those particular local 
markets. 

453
00:27:56,680 --> 00:28:00,560
But where then you have like 
someone in HR who knows what 

454
00:28:00,560 --> 00:28:01,960
they're doing in those 
countries. 

455
00:28:01,960 --> 00:28:05,160
But still, you know, it's, it's 
not lost on me that there are 

456
00:28:05,160 --> 00:28:08,800
likely people who are managing 
international workforces and 

457
00:28:08,800 --> 00:28:10,080
they really need to think about 
that. 

458
00:28:10,080 --> 00:28:15,000
So that's all very interesting 
and not theoretical for the US. 

459
00:28:15,000 --> 00:28:16,800
Very, very interesting there 
too. 

460
00:28:16,800 --> 00:28:19,920
I'm going to have to go and take
a, a look and a refresh on the, 

461
00:28:20,040 --> 00:28:24,200
the test and make sure that I'm,
I'm up to date as well. 

462
00:28:24,360 --> 00:28:26,400
And so all of these things that 
we've talked about today, of 

463
00:28:26,400 --> 00:28:31,520
course, put a lot of onus on HR 
pros and as they always do, 

464
00:28:31,520 --> 00:28:34,800
because we are, you know, the 
subject matter experts in this 

465
00:28:35,040 --> 00:28:39,520
alongside our legal colleagues. 
And so there are some things 

466
00:28:39,520 --> 00:28:42,880
that we should be proactive in, 
which is really focusing on 

467
00:28:42,880 --> 00:28:48,120
compliance, auditing our 
handbooks, of course, preparing 

468
00:28:48,120 --> 00:28:51,960
for some of these, especially 
when we think about like union 

469
00:28:51,960 --> 00:28:56,440
activity, preparing for those 
types of motions and movements 

470
00:28:56,440 --> 00:29:00,520
within organizations, tracking 
all of these changes or 

471
00:29:00,520 --> 00:29:03,240
potential changes that may come.
And then of course, assessing 

472
00:29:03,240 --> 00:29:06,360
impact on business OPS. 
And I don't know if there's 

473
00:29:06,360 --> 00:29:07,440
anything that you want to add 
here. 

474
00:29:07,680 --> 00:29:10,600
I obviously went over kind of 
the the high level elements 

475
00:29:10,600 --> 00:29:13,880
there, but what advice do you 
have to HR leaders so that they 

476
00:29:13,880 --> 00:29:16,240
can really think about this and 
and be prepared? 

477
00:29:17,320 --> 00:29:21,200
So what I was thinking this 
morning while while putting some

478
00:29:21,200 --> 00:29:25,120
notes together for for our our 
call today, I was thinking, 

479
00:29:25,720 --> 00:29:31,160
thinking about it like weather. 
This is kind of like a shifting 

480
00:29:31,160 --> 00:29:36,840
weather pattern. 
Some pads might clear up and 

481
00:29:36,840 --> 00:29:40,960
some might get even stormier, 
but you have to you got to look 

482
00:29:40,960 --> 00:29:43,640
out the window to keep running. 
With this analogy, you got to 

483
00:29:43,640 --> 00:29:45,960
look out the window to see, to 
see where the clouds are. 

484
00:29:47,560 --> 00:29:49,600
And I think that that's, that's 
probably the most important 

485
00:29:49,600 --> 00:29:53,360
thing for for HR professionals, 
whether they're in a A20 person 

486
00:29:53,360 --> 00:29:56,600
company or a 2000 person company
is to, to understand what's on 

487
00:29:56,600 --> 00:29:58,880
the horizon, to be able to 
prepare for it. 

488
00:30:01,200 --> 00:30:03,600
There's just, you know, as you 
and I talked about before, 

489
00:30:03,600 --> 00:30:06,960
there's, there's just so much 
happening right now and there's 

490
00:30:06,960 --> 00:30:09,320
a lot of whiplash in the HR 
space. 

491
00:30:10,680 --> 00:30:15,000
And so it's it's being prepared 
without being reactionary. 

492
00:30:15,040 --> 00:30:17,680
I think is, is one of the most 
important sort of mindsets to 

493
00:30:17,680 --> 00:30:20,080
have. 
You know, whatever you see on 

494
00:30:20,080 --> 00:30:22,640
the news today, it doesn't mean 
you need to run and and write a 

495
00:30:22,640 --> 00:30:24,080
whole new handbook. 
Right. 

496
00:30:24,680 --> 00:30:27,320
I mean. 
It might, but it doesn't, it 

497
00:30:27,320 --> 00:30:30,680
doesn't automatically mean that.
So I think the, the yeah, the 

498
00:30:30,760 --> 00:30:35,240
the big take away is to again, 
stay in, stay on on top of 

499
00:30:35,240 --> 00:30:38,000
things, understand what matters 
for your business, understand 

500
00:30:38,000 --> 00:30:39,680
where your weak points are. 
You know, you talked about 

501
00:30:39,680 --> 00:30:42,920
auditing a minute ago. 
I would, I would add to that 

502
00:30:42,920 --> 00:30:45,120
sort of unrelated to some of the
conversation we've had today. 

503
00:30:45,120 --> 00:30:49,200
But while we're talking about 
auditing I nines that is that is

504
00:30:49,200 --> 00:30:54,160
huge right now. 
That is, that is ISS door entry 

505
00:30:54,160 --> 00:30:57,640
point into your company. 
So make sure your I nines are, 

506
00:30:57,680 --> 00:31:01,880
are in order and separate from 
everything else. 

507
00:31:02,840 --> 00:31:05,680
So yeah, I think it's, it's 
really just, it's staying on top

508
00:31:05,680 --> 00:31:07,760
of things. 
And I know that many HR 

509
00:31:08,720 --> 00:31:11,200
professionals are already 
underwater and overworked with 

510
00:31:11,200 --> 00:31:13,120
everything that they're doing, 
trying to manage. 

511
00:31:15,200 --> 00:31:19,040
So one more thing might be, 
might be a little bit too much. 

512
00:31:19,640 --> 00:31:22,280
Yeah, exactly. 
But to your point, you know, 

513
00:31:22,320 --> 00:31:23,840
there's, there's great 
resources. 

514
00:31:24,320 --> 00:31:27,960
There's, there's people like me 
who can help out. 

515
00:31:27,960 --> 00:31:30,840
There's, there's podcasts like 
yours, which are a great 

516
00:31:30,840 --> 00:31:34,200
resource. 
There's also, I subscribe to 

517
00:31:34,200 --> 00:31:36,560
several law firm employment law 
firm newsletters. 

518
00:31:36,560 --> 00:31:40,080
There's some great ones and and 
making sure that you're just 

519
00:31:40,080 --> 00:31:43,440
staying on top of of what's 
happening in in your area of the

520
00:31:43,440 --> 00:31:45,160
country. 
Yeah, totally. 

521
00:31:45,160 --> 00:31:49,520
And actually, it really is a 
great time probably for HR pros 

522
00:31:49,520 --> 00:31:52,640
to think about outsourcing some 
of this to your point, like 

523
00:31:52,760 --> 00:31:57,360
bringing in Someone Like You to 
really be able to help navigate 

524
00:31:57,360 --> 00:32:01,560
some of these things related to 
their company or their industry 

525
00:32:01,560 --> 00:32:06,000
or their state. 
You know, sometimes we're just 

526
00:32:06,000 --> 00:32:09,360
not the right people to own 
every single thing. 

527
00:32:09,360 --> 00:32:11,560
And that's OK. 
Like, I, I mean, even just to 

528
00:32:11,560 --> 00:32:14,240
like put it into a different 
perspective. 

529
00:32:14,680 --> 00:32:22,000
When I was working still in, in 
retail, we went from like 1HR IS

530
00:32:22,000 --> 00:32:24,760
or HR information system to 
another and we were like, we 

531
00:32:24,760 --> 00:32:26,920
can't manage that migration. 
Like it's way too much. 

532
00:32:26,920 --> 00:32:29,200
We have all these like regular 
day-to-day operations that we 

533
00:32:29,200 --> 00:32:31,200
have to manage. 
So we brought in a consultant 

534
00:32:31,360 --> 00:32:34,360
and they managed in the 
migration and it was great and 

535
00:32:34,360 --> 00:32:36,560
they did a great job. 
And so that's like a, you know, 

536
00:32:36,560 --> 00:32:39,840
another quote, UN quote, real 
life example of how sometimes 

537
00:32:39,840 --> 00:32:42,760
outsourcing these things is that
the best is really the best way 

538
00:32:42,760 --> 00:32:44,800
forward. 
Because then you're bringing in 

539
00:32:44,800 --> 00:32:47,960
a real expert for some of these 
things who can help you navigate

540
00:32:48,560 --> 00:32:51,720
and who can really consult on 
what changes you you need to 

541
00:32:51,720 --> 00:32:55,080
make versus what changes you you
need to think about potentially 

542
00:32:55,080 --> 00:32:58,720
making as you know time goes on 
and decisions are made. 

543
00:32:58,720 --> 00:33:03,120
So Brian, thank you so much for 
another great policy pulse. 

544
00:33:03,760 --> 00:33:05,640
I don't know which number this 
is, but I feel like it's number 

545
00:33:05,640 --> 00:33:07,480
5 or 6. 
I think we've been going strong 

546
00:33:07,480 --> 00:33:10,440
for a few months here. 
We have been, yeah. 

547
00:33:10,480 --> 00:33:13,840
And I, I think we've got at 
least another few months of, of 

548
00:33:13,840 --> 00:33:16,000
some, some rapid developments, 
yes. 

549
00:33:16,640 --> 00:33:17,960
I think so. 
I think so. 

550
00:33:18,440 --> 00:33:22,280
So in that case, I'll let you go
and I will see you in another 

551
00:33:22,280 --> 00:33:23,800
month as well. 
All the listeners. 

552
00:33:23,800 --> 00:33:26,560
So thank you so much again for 
all of your insights and helping

553
00:33:26,560 --> 00:33:30,320
us to navigate some of these 
upcoming potential changes. 

554
00:33:31,720 --> 00:33:32,720
Thank you, Tracy. 
Appreciate it. 

555
00:33:32,800 --> 00:33:35,640
Hey, just before you go, don't 
forget to subscribe to the. 

556
00:33:35,640 --> 00:33:37,720
Show so that. 
You are the first to hear when 

557
00:33:37,720 --> 00:33:39,320
an episode drops. 
Each week. 

558
00:33:39,600 --> 00:33:42,400
And maybe leave a five star 
review and a comment about how 

559
00:33:42,400 --> 00:33:45,160
much you love this episode. 
Plus, if you have someone in 

560
00:33:45,160 --> 00:33:47,640
mind who would really enjoy this
episode, make sure you share it 

561
00:33:47,640 --> 00:33:49,640
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Thank you so much for tuning in 

562
00:33:49,640 --> 00:33:51,000
and I'll see you next week.
