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Highlights from AccelPro Employment Law - Volume III
With Stacey McClurkin Macklin, Maria Papasevastos, Mike Selmi, Cristina Gallo, Carla Brown, Anthony Panebianco and Nefertari Rigsby | Interviews by Matt Crossman
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Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. And a big thank you to our newest members for joining the community. Today we are featuring a look back at this summer’s interviews with experts in the employment law field.
For the full audio and transcripts:
On Unfair Labor Practice Charges with Stacey McClurkin Macklin (Stinson)
On Pay Transparency with Maria Papasevastos (Seyfarth)
On Racial Bias in Algorithmic Decision Making with Mike Selmi (Arizona State University)
On Starbucks and the Changing Labor Landscape with Cristina Gallo (Cohen, Weiss and Simon)
On Discrimination, Harassment and Retaliation with Carla Brown (Charlson Bredehoft Cohen Brown & Nadelhaft)
On Worker Classification in the Entertainment World with Anthony Panebianco (DarrowEverett)
On Non-Compete Clauses with Nefertari Rigsby (Kaplan)
With Stacey McClurkin Macklin, Of Counsel, Stinson
I’ve never had this happen, and then the cops return and ’I’m thinking, what now? Like, why?’ The deputy comes up to me and says they don’t want you to conduct the ballot count and allow the union to be there.
It’s common for the National Labor Relations Board (NLRB) to change its approach when a new presidential administration takes office, especially when the new administration also represents a change of political parties.
But the degree of change in the last few years has surprised experts in the employment law space. Add that to an ever-changing work environment, and it’s never been more important for employers, human resources executives and employment attorneys to be on top of unfair labor practice issues.
Stacey McClurkin Macklin steers us through these tumultuous waters. Today, she’s an attorney at Stinson, where she advises companies on a wide range of employment law issues. Before joining Stinson, she spent eight years with the NLRB, where she investigated unfair labor practice charges, educated employers on labor law and had a police escort away from a union vote.
Macklin offers best-practices advice about how to avoid NLRB investigations, how to handle them when they come up and how to deal with the NLRB’s newfound aggressive policies.
With Maria Papasevastos, Labor & Employment Associate at Seyfarth
In the beginning I was hesitant to suggest that kind of approach and have the law in New York City dictating all of what you’re doing across the nation. But I think given the widespread nature of these laws, we’re at that tipping point.
Pay transparency is one of the most vexing issues faced by employment attorneys, companies and human resources executives. The rules vary from state to state, which is confusing enough on its own. It’s made doubly difficult because remote and virtual work mean employers may be subject to laws in states in which they don’t operate. The legal complexities are compounded by cultural issues: Many employees are uncomfortable talking about how much money they make.
Maria Papasevastos sorts through these issues. At Seyfarth she represents employers in multiple areas of employment law, including discrimination, harassment, retaliation and wage and hour matters.
We discuss the recent surge in adoption of pay transparency laws, the challenges employers face in complying with them and how years of performing ballet helped prepare Maria for a career in law.
With Mike Selmi, Professor at Arizona State University
We’ve been trying to reduce human bias for generations, and we actually have made surprisingly little progress on that. As I say in the article, between a computer and humans, trying to figure out which is going to be less biased, I would go with the computer.
An algorithm is only as good as the people who program it and the data it analyzes. With the rise of algorithmic decision making in the hiring process has come concern in the legal community that those algorithms may be biased.
In reviewing what has been written on this topic, Mike Selmi, an employment law professor and expert in algorithmic decision-making as it applies to hiring practices found plenty of concerns. But then he analyzed what was actually happening, he didn’t find much basis for those concerns. “I haven’t seen anything that would suggest that algorithms have been more biased than humans. I suppose it could happen,” he says.
Selmi walks us through the challenges of deciding which data to use, how something as simple as a name can throw off equity and how he didn’t choose employment law but is grateful it was chosen for him.
With Cristina Gallo, Partner at Cohen, Weiss and Simon
I think it’s important when you’re going into this work to have fortitude. Fortitude is the belief that you belong in the room, and that your voice is valuable, and that even though the person on the other side of the table has 30 years more experience doing this work than you do, you still know what you’re talking about.
Unions are creeping into new industries, the NLRB is increasingly favoring workers’ rights, and some companies are fighting more aggressively once organization efforts start.
Having grown up in a union family and worked as a campaigner before she was a lawyer, Cristina Gallo has been in the trenches for much of her life. Today she is outside counsel for Workers United, the union representing Starbucks employees.
She explains the changing role of social media in organizing, the strategies Starbucks has used against organizers, and her own personal passion for workers’ rights.
With Carla Brown, Partner at Charlson Bredehoft Cohen Brown & Nadelhaft
I want to solve it for them. We love things that help us. I never give up on solving the problem, and sometimes it’s just going to be a question of who solves it for you? Is it the judge? Is it the jury? Or can the parties do it themselves?
A little-known secret: Most employees, if they are victims of discrimination, harassment or retaliation, don’t want to sue. They want to keep their jobs. They want their issues resolved, not litigated.
One of the best ways to do that is for everyone involved to listen, whether it’s a human resources executive tasked with dealing with the complaints or an attorney hired by the employee. “I think the vast majority (of lawsuits) could be avoided just by that alone,” says Carla Brown, who has decades of experience handling such cases.
Brown joins us to talk about the differences between discrimination, harassment and retaliation, how to recognize them, and best practices to resolve such disputes.
With Anthony Panebianco, DarrowEverett
On a keyboard, you have 88 keys and you’re confined by those black and white keys of what you can and cannot do. And it’s the same way with the law. But it’s the creativity of the performers, and the creativity of the lawyers, being able to work within that to make something beautiful, to be able to understand the scope of everything that’s possible, and then be able to perform.
Classifying workers is complicated enough. In the entertainment world, it is made more difficult because many performers would rather be classified as independent contractors even though the law says they should be employees.
Anthony Panebianco has a good deal of personal experience with this issue. As a classically trained pianist, he is a performer himself. As chair of the Cape Symphony, he often hires performers. And as an attorney, he has many creatives for clients.
He describes the pitfalls, and how to avoid them, for companies wishing to hire entertainers and for entertainers looking to land gigs.
With Nefertari Rigsby, Executive Director, Human Resources and Employment Law Partner for Kaplan North America
Let’s say you’re now out for celebratory drinks with a bunch of people who work for that competitor, it can lend itself to, “Hmm. Did you start working over there when you left us?”
Non-competes are a common, if also controversial, part of the modern employment landscape. Employees dislike them because they may hinder their ability to land a better job. But employers want them to protect their business interests.
Nefertari Rigsby previously worked in private practice in employment law and as in-house counsel and a strategic business partner for a Fortune 500 company. She talks about best practices to craft non-competes agreeable to both sides, the complications presented by different states having different laws, and tips for how Human Resources can best approach a former entry-level employee who now has a job requiring a non-compete.
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