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HR entrepreneur Mike Coffey, SPHR, SHRM-SCP engages business thought leaders about the strategic, psychological, legal, and practical implications of bringing people together to create value for shareholders, customers, and the community. As an HR consultant, mentor to first-stage businesses through EO’s Accelerator program, and owner of Imperative—Bulletproof Background Screening, Mike is passionate about helping other professionals improve how they recruit, select, and manage their people. Most thirty-minute episodes of Good Morning, HR will be eligible for half a recertification credit for both HRCI and SHRM-certified professionals. Mike is a member of Entrepreneurs Organization (EO) Fort Worth and active with the Texas Association of Business, the Fort Worth Chamber, and Texas SHRM.
Work very closely with your either your attorneys or your HR people because, in all honesty, I mean, it's gonna be a a day by day sort of analysis in terms of what we can or can't do and a state by state or even like a county by county or city by city analysis too because a lot of cities like San Francisco, Chicago, New York have their own indigenous, labor and employment laws or or rules. So you gotta work closely with them because it's right now, it's a very labyrinthian enforcement system and there's too there's so many unknowns, especially on a day to day basis.
Mike Coffey:Good morning, HR. I'm Mike Coffey, president of Imperative, bulletproof background checks with fast and friendly service. And this is the podcast where I talk to business leaders about bringing people together to create value for shareholders, customers, and the community. It's the last Thursday in February, and the new Trump administration continues to give us things to talk about. Joining me for this month's HR news roundup is Charles Krugel.
Mike Coffey:Charles is a management side labor and employment law attorney in Chicago. He's also a faculty member at Loyola University's Quinlan School of Business where he teaches employee relations. Welcome to Good Morning HR, Charles.
Charles Krugel:Thanks, Mike. Great to be here.
Mike Coffey:So it's been a month, and we'll jump into the stuff that's been going on most recently with the Trump administration. But we had back on, I think, February 3, the day without an immigrant protest. And we've had a few of those before, I think, and they've never really gotten much news other than the planning of them. But, this month down here in Texas in Dripping Springs, there is a local hamburger company called Hat Creek Burger Company, and they had eight employees who said, hey. We wanna you know, we're not gonna be here on the day of work, or they told an assistant manager that they weren't gonna be available for work that day because they were gonna honor the day without an immigrant where, you know, people say, here's what life would be like if we didn't have immigration and they don't come to work.
Mike Coffey:And everybody every year hopes it's gonna grind the economy to a halt and really just ground one little burger place, as far as we can tell, to a halt. But the management said, you know, said give us a list or, and they got a list of them. And then management, I guess, realized, oh, that's our whole staff for the day. And so, eight people didn't show up. And, they management the night before sent text to everybody, you know, asking them to show up and even offering on financial incentives and little bonuses, and we'll have a party or do something, but show up for work.
Mike Coffey:White people didn't, and management fired them. And, fired the assistant manager who did show up, but, management felt like he was part of the issue with the employees not coming. So so far as I can tell, Hat Creek Burger hasn't replied to any of the press inquiries. So all everything we're hearing is from employees who got fired, so we have to take that with a certain grain of salt. But what's your take on the national you know, day without an immigrant, that idea, if how how would you handle that as an employer if your employees wanted to or how would you counsel your clients if your employees wanted to do that?
Charles Krugel:Well alright. So you're in Texas, and Texas is not exactly a, union friendly or labor friendly state unlike it where I'm in Illinois, which is very union and labor friendly. I would say that maybe under the under Biden, it would have been a greater than 50% chance that this would have been found that the firings would have been found to be a legal, a violation of concerted, associated, you know, activity under the National Labor Relations Act. But under the current with with Trump in office and what he's done recently with the NLRB, which he's basically gutted the NLRB, there's a good chance that or right now, I'd say fifty fifty chance that the company won't be found liable for violation of the NORA. It's possible they could be found, in violation of title seven of the equal, of the Equal Employment Opportunity Act, basically, which, would I I think they would do, like, what's called a disparate impact analysis to figure out, well, did they fire largely or only Hispanic employees?
Charles Krugel:And if they did, that that that could possibly raise discrimination against people of Hispanic origin. The fact that they fired the assistant manager probably looks good because it shows that they didn't treat management differently than rank and file employees. But I would say that there's a decent at least a fifty fifty chance that they'll be found vile in violation of the NLRA and likewise, you know, 50% chance that they won't be. And then we'll know I'd be higher.
Mike Coffey:It'd be higher than ANFRA. Yeah. The the yeah. Definitely. And we're gonna talk about what Trump's changes at NLRB, but Jennifer Abruzzo as general counsel would have definitely loved this case.
Mike Coffey:I don't think William Cohen's gonna, even sniff at it. But talk about a violation of title seven of the Civil Rights Act. How would the fact that employees didn't show up for work? I mean, how is that how would that be a violation of title seven when you're just you know, you're an employee. Employees don't all seven you know, eight employees don't get to choose to take off a day whenever they want to and just walk out and close down the restaurant.
Mike Coffey:How what might the the argument look like for a civil, civil rights case on that?
Charles Krugel:It'd be disparate impact or disparate treatment, basically, that they treated one class of people based on, you know, Hispanic ethnicity differently than not than, minor I'm sorry, majority white people. So that I think that would be the argument. The EEOC is pretty liberal in all 50 states for the most part. So, I mean, even though it's a federal agency, each state or every there's different, regions, so they would all have, each region has their own, I guess, culture, but they're all pretty liberal. So I think they would find in favor of the employees.
Charles Krugel:So not so much the treatment of them, but the firings of them that, you know, were could be in violation of title seven.
Mike Coffey:So you get a right to sue letter probably because unless they really decide to take this, you know, the agency to take the action. And so then you get a right to sue letter. So maybe a federal court you can convince federal court that and I guess you'd have to show that it may it would maybe hang you up if you had white employees or employees of some other background who didn't show up for work and without you know, with you know, violated the policy, whatever they're called, no call, no show policy or whatever, and, you know, intentionally didn't show up.
Charles Krugel:Oh, let's say it was four to four, four and four and four whites and four nonwhite. Right. Then, you know, if all eight are fired, then basically you can make a decent case that it's not racial discrimination. There's no disparate impact.
Mike Coffey:Or if whites had chosen to not come in some other day and the company didn't do anything about them not coming in. And Comparable. Yeah. Yeah. So Comparable treatment.
Mike Coffey:Yeah.
Charles Krugel:It's a it's a little bit of I think it's a little bit of a stretch, but it's possible.
Mike Coffey:Well, and the reality is the
Charles Krugel:none
Mike Coffey:of us wanna defend that case. Right? I mean, that's the real you know, that's what you really you know, you don't want you don't want the claim. You don't wanna deal with the the issue coming back at at the employer. So trying to figure out how do we, you know, how do we respond.
Mike Coffey:So what would you have suggested an employer do when they find out that, hey. Tomorrow, basically, most of my team's not coming to work. To observe this thing that's completely political and unrelated to work, whatever that thing was, whether it's a day without immigrant or some march on whatever, those kind of things, How would you tell an employer to respond to that?
Charles Krugel:Well, if if you wanna make the argument that it's a political statement, I think you can make a better a stronger argument as the employer because then you're not then arguably you're not firing them for concerted activity, like, based on wages, hours, and conditions of employment, but really based on a political statement. And that's not, really put I don't think that's protected activity in the workplace under the NLRA or the Equal Employment Opportunity Act.
Mike Coffey:Yeah. That's and that's basically what this was. Right? I mean, I think it's, you know, political expression, because it was really designed to remind The US that we need labor and that our immigration policies are have been screwed up for forty years and to advocate for, you know, freer immigration or, you know, in this case, to advocate against a deeper government crackdown, you know, and and on employers who are hiring undocumented employees and not deporting all these people. So it'll be it'll be interesting to see if, you know, anybody can convince a a lawyer in, you know, South Central Texas to take that case, and and, you know, Hat Creek Burger Company.
Mike Coffey:I don't know how big an organization that is, but it may not it may not even be worth going after. I mean, you know, so it may Well,
Charles Krugel:there's always there's always gonna be attorneys who want this because basically I mean, in these disputes, generally speaking, attorneys are the only ones who come out ahead.
Mike Coffey:Yeah. That's
Charles Krugel:true. You know, we're the only ones profiting off of this. That's at least 75%, I think, of all labor labor and employment disputes.
Mike Coffey:That's crazy. Yeah. And so, yeah, the you get these big class acts and settlements, and the people who make it are the the the attorneys who make the money on the on the settlements and, the parties, you know, who are parties to the
Charles Krugel:By the way, I might
Mike Coffey:get small part. Right?
Charles Krugel:I've been doing I've been on my own now for twenty four years. I've been doing this for about thirty years. I've never seen as many lawsuits flying around right now in in the, employment realm as there are.
Mike Coffey:Interesting. What do you what what, any what's the trend?
Charles Krugel:I think it's a combination of factors. We're still in the hangover from the pandemic. So money was people were making money for not working or working, less hours, and now, you know, they're hungover from that, and they're not making any more money. People are losing their there's a lot of, the change from Biden to Trump. A lot of people are losing their jobs.
Charles Krugel:Also, inflation, I think climate change has a role in this too in terms of, like, increasing anxiety and changing work demographics. So Interesting.
Mike Coffey:Yeah. So so good future for the rest of your career there.
Charles Krugel:For the most part, yeah. Yeah. Yeah. If you would ask me twenty five years ago if I'd still be doing way union work in 2025, I probably would have said very little, maybe fifteen to 20. But right now, the union stuff is still is at least half my work.
Mike Coffey:Up there in where you're at, yeah, I can imagine. Illinois country. Yeah.
Charles Krugel:You know, there's a lot of, a lot of talk about unions now. And there has been since the pandemic. The pandemic seems to increase a lot of, anxiety, human resources anxiety or anxiety in the workplace, leading to more, more more concerted or, more activity and labor.
Mike Coffey:And in my I've been in the HR world as long as you've been practicing law, and my experience is largely that the companies that end up with unions are the ones that deserve it. I mean, I think employees at least here where I'm at in Texas and and and the Southern US are slower to adopt a union unless things are really bad. Is that your experience up there too?
Charles Krugel:Yeah. I would say that in at least half of the situations where union gets voted in, it's because the company deserves it because they slipped up on communication. Generally, they the the mistake isn't something in communication. Bad, you know, practices in terms of, explaining wages, hours, or benefits of, work to employees.
Mike Coffey:Mhmm. Ten years ago, 11.1% of the workforce is unionized. Now it's 9.9%. So it continues to decline down. And that's after four years of a Biden MLRB that was really doing everything they could to promote union membership.
Charles Krugel:Biden is extremely pro union.
Mike Coffey:Yeah. And I think that's gonna change now. And but Amazon had a North Carolina Amazon facility voted, earlier this month to not to go union. Three quarters majority of the voters, the members who voted or the employees who voted voted against unionizing. I mean, it's, like, 2,447 against, 829.
Mike Coffey:So at least, you know, North Carolina is the South.
Charles Krugel:Southeast. Southeast tends to be anti union Texas, the South there. So yeah. Up north well, I mean, Indiana is not as labor is not as unit friendly as Illinois is. Illinois is extremely unit friendly, and even Wisconsin and Iowa aren't as unit friendly as Illinois.
Charles Krugel:We're so Austin, Michigan are are very union friendly.
Mike Coffey:That's interesting. And, you know, this would have been Amazon, the whole company's second union facility. The first one was a Whole Foods in Philadelphia, which is at Northeastern, and now, you know, it's not totally surprising. I just thought it was interesting that the union chose this North Carolina plant as the place to to try the net you know, to try for their second one, just because of of the, just that culture down there. You would think a union would pick go for the low hanging fruit, you know, someplace up North where they were more union friendly.
Charles Krugel:No. It's I mean, I've seen unions trying to get into the Southeastern States for decades now. So I you know, every once in a while, like in Tennessee, in the auto plants there, Alabama, various retail outlets there, there's always been a lot of activity in the Southeast. They haven't been very successful, but, you know, they keep trying the unions.
Mike Coffey:Even I'm even labor there, I guess, in the South is a little bit more conservative and, you know, not as as gung ho to to join up. And, I mean, if they're paying much attention, a lot of folks who end up with the union are are trying to figure out how to not pay the dues after a year or two because they, you know, often don't deliver what they promised.
Charles Krugel:Well, yeah. I think the I think there's less corruption among the unions in the South than there is on the North. I think there's more corruption with the unions in the North. I mean, I grew up in Chicago and I, you know, I've I grew up in the largely union family too, and I've had relatives who worked for unions or been closely associated with unions. And they worked for unions, I mean, like, a management positions within union itself.
Charles Krugel:Actually, I worked for a labor union before I went off my own. So I I've just seen more corruption, more bloat and mismanagement among the unions here, especially among the pension funds.
Mike Coffey:Well and one of the things Amazon with that hill that Philadelphia Whole Foods is they've got a, an appeal to the NLRB saying that the union officials coerced and intimidated workers, which it's not the first time I've ever heard that claim. Or and but I've also talked to people who are in organized you know, in environments that went organized, and they said, yeah. There was a ton of pressure. People are showing up at our houses and and really pushing. So under the Biden NLRB, they probably would have fallen on deaf ears.
Mike Coffey:But, under the Trump, NLRB, who knows? Because we don't have an NLRB right now. I mean, the the president fired Gwen Wilcox, and so we have only two members on NLRB now, a Republican and Democrat, but you they can't make any decisions because they don't have, the the required three votes to make a, you know, to make a
Charles Krugel:Well, they might be able to make decisions, but I don't think they're forcible.
Mike Coffey:Yeah. Yeah. Yeah. They yeah. They're not gonna rule on any cases.
Mike Coffey:And then he also fired Jennifer Abruzzo, who was the general counsel. Yeah. Yeah. And appointed William Cohen. But the you know, it's an interesting these independent agencies have these positions like, you know, you've got a board, but then you've also got this general counsel that's that seems odd that that's a presidential appointment because, you know, usually, the general counsel is just advising the board.
Mike Coffey:But in these cases, the general counsel really is kind of the law enforcement piece of what the NLRB does. I mean, sets the tone and says, here's what our interpretations are, you know, or my interpretations are and, and really the administration's interpretations of the NLRA are.
Charles Krugel:Well and they also have an extra layer with the administrative law judges. So they're the ones who are handling the first level hearings or complaint, complaint hearings, trials, and then it goes up to the board. Or or you could also ask for general counsel review, I think, at certain points too. So there's it's a little bit more labyrinthian whereas if you compare it to the Equal Employment Opportunity Commission, they don't really have ALJs. They just have investigators and they have findings.
Charles Krugel:You know, they make their findings and then they either sue or don't sue or they can issue a right to sue like you said, a right to sue Etter, which, that could be issued in term well, based on dismissal or based on plaintiff's attorneys asking for a right to sue whether to get it out of the EOC and then just take it to a private law.
Mike Coffey:Take it. Yeah. And so with William Cowan now as acting general counsel, He came in, and, again, it's like the executive orders. We talked about it last month with affirmative action executive order, being rescinded, and it was kinda shocking to me. I've been in HR all these years, and I never realized that the, affirmative action plans for government contractors was primarily based on an executive order.
Mike Coffey:Congress had never codified it, and that's kind of weird that they never got around to doing that in in all these years.
Charles Krugel:I don't think that's weird, by the way. I just think that's congress's risk avoidance, trying to avoid controversy and all that.
Mike Coffey:Yeah. Especially the last two decades. Yeah. Yeah. Just not writing you know, not doing their job and leaving it to the administration.
Mike Coffey:So, hopefully, they'll start doing their job soon. But
Charles Krugel:That's where I think that's where some of the, or a lot not some, but a lot of, Trump's power grab where his theory of where the authority comes in because Congress hasn't acted.
Mike Coffey:Yeah. And he's definitely doing it. You know, but now he's got, William Cohen in as, I don't know if it's Cohen or Cowan, but I'm gonna say it both ways.
Charles Krugel:I believe.
Mike Coffey:Cowan. He's, and he came in and all of the a lot of the memos that Jennifer Abruzzo put in place that really gave employers heartbreak, he just rescinded them. And so it's the same kind of situation. So the ban on confidentiality and nondisperagement clause Noncompete. Yeah.
Mike Coffey:Yeah. And severance, non competes, captive audience speeches ban, gone. Non competes stay or pay.
Charles Krugel:Illinois, though, we still have a captive audience ban here.
Mike Coffey:Yeah. And a lot of states still have those. And so and so the you know? And maybe that's the question is maybe states should be, you know, should should drive some of these things and not, you know, have one size fits all, and let's see what works and what doesn't. But and then the mail ballot elections that were came in during COVID, he he rescinded that order as well.
Mike Coffey:So that's a lot, but, you know, like the non compete agreements, the courts have already said that was outside. As I you know, that was outside of what the, Federal Trade Commission could do. And so I'm not sure that that was really making a big difference to a lot of employers worrying about it. Talk about stay or pay agreements because we don't hear about those a lot, but, I mean, paying, you know, I'm gonna train you. You come on board.
Mike Coffey:I'm gonna give you information. I'm gonna train you. I'm gonna invest in you. I'm gonna pay your college or something. And and you agree to stay here and be a happy employee for x x number of, you know, years or whatever.
Mike Coffey:Do you see many employers who wanna do those? Because it seems like a you know, I see it maybe as a retention bonus kind of thing, something like that. But other than that, I don't see them much.
Charles Krugel:For higher paid employees, yeah. I mean, you know, when you're compensated well enough for it and it's con it's we go and then we go ease it's called, like, consideration. Mhmm. So the more you know, we give you more perks and, in exchange for you staying on. So you're not gonna see that as much in lower paying jobs as you would, I think, in higher paying jobs.
Charles Krugel:But it's a useful it's a useful tool and it could be enforceable, like, you know, if you have sufficient consideration in exchange for the, promise to stay. And it's reasonable, you know, a reasonable period of time. Right.
Mike Coffey:Yeah. It's not you can't stay here the rest of your career.
Charles Krugel:Yeah. Absolutely. Yeah. Right. Yeah.
Charles Krugel:What
Mike Coffey:about in Illinois, what are you what are your laws about confidentiality agreements or, nondisparagement clauses, non competes? What's what's the world like up up there?
Charles Krugel:The government here, the legislature has basically done away with them.
Mike Coffey:Okay.
Charles Krugel:So, I mean, now I think the minimum pay requirement for most agreements is, like, 65,000. And, that's sort of the benchmark. And, basically, there's other, you know, other considerations such as reasonableness in terms of the amount of time you can restrict somebody and the geography where they can, you know, work or not work. So
Mike Coffey:And those I mean, that's except for the dollar, you know, cap, that's pretty similar to Texas and a lot of other places. You know, that you know, a lot of states have some rules about, you know, that noncompetes have to be reasonable geographically and things like that.
Charles Krugel:It was a good idea. I mean, there are too many, businesses that went that went way too far with this, became really obnoxious, I think the poster child was Jimmy John's. Jimmy John's sandwiches.
Mike Coffey:Yeah. What what did they do? What was their oh, that's a even the sandwich makers had a had a non compete.
Charles Krugel:That's Yeah. That's for yeah. And and that was just obnoxious. That was just ridiculous. Yeah.
Charles Krugel:It made it freaks overpaid jobs.
Mike Coffey:Yeah. It makes sense if you're somebody's really getting some I mean, but, you know, some company secrets, some unique training or, you know, access to formulas, things like that, maybe that's relevant. But if you're flipping burgers, you're making sandwiches, and and rolling it down to that level, I think well, first of all, it's just gonna give you when it gets out, it's gonna give you a bad reputation and just make it harder
Charles Krugel:for you to find.
Mike Coffey:I mean Yeah. It's gonna make it hard to find the the workforce you need.
Charles Krugel:Is that to me, it was it was equivalent of, like, food poisoning at a, fast food place. I mean, if you really want I mean, if you wanna scare away business employer employees, prospective employees, and customers Mhmm. Just try to, you know, just try to restrict your employees like that, especially with overpaid employees.
Mike Coffey:Or if you're in South Texas, fire half your staff for for not showing up for a day without an immigrant that you know, and and then try to recruit where the you know, you've got majority Hispanic populations in a lot
Charles Krugel:of places.
Mike Coffey:And yeah. So I think, you know, employers will hopefully think through some of these things before they they take actions, you know, whether it's, you know, those one off instances or in planning their employment agreements, things like that. But given the NLRB's situation, who knows how long it'll be before we have a a a a quorum on the board, or
Charles Krugel:Could be four years. Yeah. It
Mike Coffey:could be. So what but do you think there's anything employers should be doing right now to change their current behaviors and given this NLRB's, you know, situation? Or if Trump administration comes in and and staffs it and they start executing, you know, much more employer friendly MLRA interpretations. What what should employers be doing?
Charles Krugel:Work very closely with your either your attorneys or your HR people because, in all honesty, I mean, it's gonna be a a day by day sort of analysis in terms of what we can or can't do. And a state by state or even like a county by county or city by city analysis too. Because a lot of cities like San Francisco, Chicago, New York have their own indigenous, labor and employment laws or or rules. So you gotta work closely with them because it's right now, it's very labyrinthian enforcement system, and there's two there's so many unknowns, especially on a day to day basis.
Mike Coffey:And the feds get all the attention, but, yeah, there's state laws and even at the city level. I mean, most cities have, and it always surprises employers when they get a claim there. They most cities have their own ordinances. We got for age, race, sex, national origin, religion, gender, all those things. And the cities are usually well ahead of the state or the governments in in in creating those things.
Mike Coffey:And so
Charles Krugel:The global cities are. Yeah.
Mike Coffey:Yeah. Well, I mean, even I'm I'm in Fort Worth, which is in many ways what people call the the last red law, you know, big city in Texas, twelfth largest city in the country now. And, and we've since the nineties had a human rights ordinance in our in our so and, you know, and that's a pretty conservative, you know, city relative to Houston, Austin, Dallas. And so I you know? And Texas is Texas too.
Mike Coffey:So
Charles Krugel:The legal structures in most states, in most, jurisdictions, you know, go up court, whatever jurisdictions, it's there. But the disparities I mean, the wage disparities are still there. I mean, I I think women still make about 80¢ on the dollar for the man earns and minorities tend to people of color tend to earn even less than that. So, I mean, you hear the argument that, well, the legal structure is there, but yet the disparities are still the wage disparities are still there in present terms.
Mike Coffey:I do think that the 80¢ on the dollar is across all it's not job for job. It's across the labor market in general. And so I think there's a that's a I think that's really important to say because, you know, people do make choices. And and it's only it's less than a nickel, or, you know, less than a 5% chance, or gap for most professional jobs. So
Charles Krugel:And by the way, these are, you know, as a footnote, these are Bureau of Labor Statistics, which is a federal agency from the US Department of Labor, and there's it's their stats. And people will criticize, well, it's the government stats, but they're the only ones who are keeping this type of data. Yeah. Yeah.
Mike Coffey:We're also
Charles Krugel:gonna get it. Yeah. Yeah.
Mike Coffey:And let's take a quick break. Good morning. HR is brought to you by Imperative, bulletproof background checks with fast and friendly service. On Thursday, March 20, I'm hosting a webinar entitled alt control deceive, protecting yourself from remote employee fraud. While many employers recognize the advantages of remote work in attracting and retaining employees, most are unaware of, much less protected from, the risk of illegal activity and fraud unique to the remote environment.
Mike Coffey:Foreign actors like North Korea, fraudulent employment verifiers, and dishonest over employed workers are but a few of the sources of liability, data breaches, and financial losses employers have suffered. Using traditional deception methods and modern artificial intelligence tools like deep fakes, bad actors are targeting unsuspecting employers. In this one hour webinar, I'll discuss some of the ways that dishonest actors have harmed employers and practical steps employers can take to protect themselves. And just like this podcast, the webinar is free and preapproved for recertification credit. You can register or watch the recording later by clicking on the education tab at imperativeinfo.com, where you can also find all of my previously recorded webinars.
Mike Coffey:If you're an HRCI or SHRM certified professional, this episode of Good Morning HR has been preapproved for one half hour of recertification credit. To obtain the recertification information, visit goodmorninghr.com and click on research credits. Then select episode one eighty nine and enter the keyword krugel. That's k r u g e l. And now back to my conversation with Charles Krugel.
Mike Coffey:And so you mentioned the EEOC, and and they've also, as Reuters put it, been hobbled by the administration because, he fired, two EOC commissioners, and there'll probably be lawsuits on that one too because, there is one on NLRB one because
Charles Krugel:Wilcox. Yeah. Yeah. She filed a lawsuit.
Mike Coffey:And so it'll be interesting to see what happens there, but that's a long term play. It's not gonna affect employers directly. But
Charles Krugel:That's gonna be yeah. That's gonna be yeah. It's gonna be long litigation, I think.
Mike Coffey:And, Samuels, who was fired from the EEOC, Jocelyn Samuels said that she said directly she was fired because she and her and her fellow democrat on the commission, was fired, were fired because of their positions on sex discrimination and diversity, equity, and inclusion initiatives. President Trump has said, and he said on his inauguration day, those are discriminatory, and, and so he's pushed that. But the problem with DEI or the term diversity or any of that, it's in everybody has a different Yeah. Definition of that. Right?
Mike Coffey:And so, definitely, I saw, especially over the last four years, some DEI initiatives that were clearly and even the EOC is even their guidance has said, you know, you can't do this because there are certain things that were just clearly a violation of title seven.
Charles Krugel:Sure.
Mike Coffey:But then there were a lot of them where it was just like, we're calling it DEI, but we're really focusing on creating as diverse an applicant population as we can because we want as deep an applicant population. We wanna reach out to all these communities. We don't want biases that don't affect somebody's ability to do the job to get in the way of bringing in the best talent we can find. Just period. And then once they're here, we wanna we want them to feel included.
Mike Coffey:We want them to feel like they're part of the organization and they belong and they're heard. And so that is clearly not, you know, a violation of Title seven. And so when we talk about DEI, a lot of employers are saying, you know, is my DEI program legal or illegal? What do you how do
Charles Krugel:you how would you counsel employer to look at
Mike Coffey:their DEI program to determine if it's gonna get them in trouble?
Charles Krugel:Well, you would have to look at where their applicant pool is coming from, where they're recruiting from. So, I mean, if they're only recruiting from certain ZIP codes, certain, you know, municipalities, areas, counties, whatever, that could be problematic. The years ago, I remember the EOC sued a business in Chicago because they were recruiting only from Hispanic areas and didn't recruit from African American neighborhoods and they found that to be a violative of title seven. And and there was a settlement day and the company ended up settling it before, going to court. But anyway, you know, so you have to look at the applicant pool, where you're advertising, how you know, that type of stuff that maybe the language that you're using.
Charles Krugel:So, you know, especially nowadays with, AI types of interfaces. I mean, if you're gonna try to hit use AI to create job descriptions or job ads, you have to make sure that you're using good AI, that they're using AI that, you know, not just from, not just the KKK's database, but, you know, from more a more diverse database.
Mike Coffey:So Well and sometimes employers are just too clever for their own good, and they feed, okay. Here's what my, my best performers in this role look like as far as their demographics. They just feed you know, they and we've seen cases where with the AI where that's what got fed into the AI system, and and it the AI picked up on the wrong things.
Charles Krugel:Yeah. Exactly.
Mike Coffey:It picked up that, you know, it picked up on these guys who were white men, not the fact that they had these levels of experience and these things that made them the engineers that that company wanted. It was you know, it picked up on the wrong thing.
Charles Krugel:It's the same type of statistical analysis you would use for, examining or validating tests.
Mike Coffey:Right.
Charles Krugel:You know determining if a test is reliable and valid personality assessments whatever. So you have to look at you have to and I'm not good at statistics but you have to run like a I guess regression analysis or you know, the core to the correlate to determine the correlation coefficients and things like that. Is the is your AI database or is your job description or your job ad, does it measure or does it capture what you intended to capture in terms of demographics?
Mike Coffey:But far easier than that is just looking at, okay, what are we doing to get as broad an employment applicant base as we can? And without necessarily even worrying about age, race, sex, any of the national origin, color. But let's just let's focus on making sure we get as many qualified applicants in the door as we can so we can hire the best people that we can afford. And then then let's build a culture where people wanna come to work here, and they feel like they belong. And I think we focus too much on, you know, is this gonna get me in trouble, or is this gonna get me in trouble and not enough on if you're run you know, if you're running in a a place where people wanna work, those people don't go talk to plaintiff's lawyers.
Mike Coffey:And, and if you can just figure out a way to, you know, stay in compliance with title seven, all that, definitely. But go well beyond that by just creating a place where people wanna work and spending the time to do that and training your managers and all the things that come from creating that kind of workplace.
Charles Krugel:Well, I think you've just boiled it down when to its core, factor when you said training your managers. I think you you gotta train your managers and I think the training that is involved is like cultural stuff to some extent, leadership and maturity, you know, train him to be mature leaders and, you know, adults. Because that I you know, I see a lot of I do a lot of investigations too and, and I do investigations when I engage in litigation because there's a lot of due diligence involved and that due diligence is is basically investigation. And I I think I see a lot in a lot of at least two thirds of the time, the reason for a dispute and especially dispute that ends up in litigations or cause of the manager, the people communicating decisions, whatever. They were poor communicators, poor leaders, immature, things like that.
Mike Coffey:Yeah. And employers have this idea that they need to keep all their cards close to their vest and give people, especially when it's negative news, as little information as possible. But in the absence of a good, and I've said this for years. In the absence of a good explanation, people are always gonna assume the the decision was unfair, and and you're giving them an opportunity to go talk to a lawyer. And even if that lawyer says, hey.
Mike Coffey:It's not illegal. My one of my best friends is a plaintiff's lawyer, and he was talking about how he had they hate intakes on, employment law cases because they say all day long, yeah. It's not illegal to be a jerk. It's not illegal to be a jerk. It's not illegal to be a jerk.
Mike Coffey:And they don't take those cases, but they that's those are the calls that come in. But there are plaintiff's lawyers who will sit down and talk to that plaintiff, the potential plaintiff and say, well, tell me about the rest of their app operation and and go find something where they they may be in, you know, in real
Charles Krugel:trouble. Yeah. I mean, if you don't engage with your employees as business, they're gonna engage them with plaintiff's side attorneys or the EEOC or NLRB. They're gonna, you know, find that that's where they're gonna go to the event.
Mike Coffey:And that wraps it up with a nice bow. That's all the time we have. Thanks for joining me, Charles.
Charles Krugel:Yeah. Thank you for having me. Appreciate it.
Mike Coffey:And all Charles' contact information and his excellent Facebook or LinkedIn group is will or in the show notes, we'll have all those links. And thank you for listening. If you enjoyed this episode, please write us a review on Apple Podcasts, YouTube, or wherever you're listening. It helps us reach more listeners. Rob Upchurch is our technical producer, and you can reach him at robmakespods dot com.
Mike Coffey:And thank you to Imperative's marketing coordinator, Marianne Hernandez, who keeps the trains running on time. Speaking of trains, there goes the L train right behind Charles in in Chicago. And I, Mike Coffey, as always. Don't hesitate to reach out if I can be of service to you personally or professionally. I'll see you next week and until then be well, do good, and keep your chin up.