Toxic workplaces have been an alarming concern in the corporate world. In our latest podcast episode, we have a conversation with renowned employment attorney Steven, who brings these issues to light. Steven has a plethora of successful cases under his belt, particularly those involving some of the biggest tech companies in the Bay Area.
Toxic workplaces often ignore the rights of employees, but Steven has been on the forefront, advocating for those who have been unfairly dismissed, particularly during maternity or paternity leave. He has also navigated the complexities of proving discrimination in workplaces, a task that involves more than just stating the facts.
A significant portion of our discussion with Steven is dedicated to the world of employment law, as he provides an in-depth analysis of the famous case of the artist, Lizzo. Steven offers an insightful perspective into the litigation process, the significance of the discovery process, and the severe consequences of destroying evidence.
We also delve into the dynamics between artists and their crew, discussing the potential for such interactions to create hostile work environments. It’s important to understand the power dynamics at play in these situations and how they can impact individuals on a personal and professional level.
As we navigate the shifting landscape of the traditional office environment, the implications of change management on employees’ rights become more critical. Steven enlightens us about the varying regulations in the U.S and New Zealand, and the importance of transparency in decision-making processes affecting employees.
One key aspect we discuss is the “three strike rule” and how it comes into play during the firing process. It’s crucial to understand these regulations and their implications on your rights as an employee. The conversation also touches on the challenges and advantages of remote and hybrid work, emphasizing the need for employers to be transparent in their change management strategies.
In the conclusion of our conversation, Steven shares invaluable advice on the importance of documenting evidence in the workplace. It’s a practice that could potentially be a game-changer in court proceedings. It redefines our understanding of employment rights and sheds light on how employees can safeguard themselves in toxic workplaces.
To sum up, our discussion with Steven offers an insightful and comprehensive overview of the complexities of employment law, the harsh realities of toxic workplaces, and the steps that employees can take to protect their rights. Tune into our podcast for an enlightening discussion that could redefine your understanding of employment rights and the workplace.
Listen to our episode on employee rights:
Watch the episode on employee rights:
Read the episode on employee rights now:
Good morning Steven.
Hey Gina, how are you doing?
Hey, good how are you doing? Good thanks with yourselves.
Oh good, I’m glad this worked. I’m doing well, I’m doing very well. Yeah, it’s been a while it’s been a while since we talked I think it was what a month ago or so it was like a month ago maybe. Yeah.
Maybe a month ago, was it a month?
Was it late.
Yeah, we got a little sidetracked there. We definitely got sidetracked. Um, Steven, would you like to introduce your lovely self?
Yes, tell us about who you are and what you do.
Sure, I’m super glad to be on. Gina and Nicola, it’s great to see you doing this podcast. I feel like there needs to be more talking about toxic workplaces. I’m glad you’re doing it. Thanks for having me on. I am an employment attorney. I’m almost exclusively representing employees against employers in California. I’m based in Oakland, California, and so I do a lot of dispute resolution on behalf of employees who have endured all sorts of toxic workplaces, much of which is illegal discrimination, retaliation, harassment, sexual harassment those types of things that people endure in the workplace and try to get them some some sort of resolution that’s, that’s fair and that tries to hold some of these companies accountable. So that’s me in a nutshell.
All right, I like it. So what are some of? I don’t know if you’re allowed to say um, but have you taken, have you done like any Aaron Brockovich stuff like really big companies? You went against Like you see all these movies right, and it’s like someone in uncovers like illegal gas or oil dumping.
you know that’s like poisoning a ton Illegal gambling ring in their underground house.
Have you done anything like wild, like that?
I don’t know about wild, but I being in the Bay Area is fun because chances are you’ll go up against big tech companies. So I’ve had cases against meta. I’ve had cases against Apple, google, um sort of every name. Name your tech company. There’s cases against them.
Of course yeah.
Now and then. But but sometimes you know those companies at least have some sort of mechanism, they have processes in place. They’re they’re so big, they have tons of lawyers, tons of HR people. Some of the more interesting cases are smaller entities that don’t know what they’re doing, that that are that don’t have an HR consultant or lawyers on staff, and so auto body shops um sports coaches for for for high schoolers. You know, like those types of employer employee relationships sometimes are juicier cases, just because the employers uh, not as prepared for for when issues come up For you.
They’re not prepared for you.
Yeah Right, they think they can get away with it. Uh, and they usually can until someone, until something happens and someone thinks oh, we should know. I should, I should do something about this.
So what’s been your most, what do you feel has been, I’m going to say, your most impactful case so far?
I’ve had a few cases this year involving leaves and uh. In in California and in the U S generally, you get protected leave for maternity and paternity leave and you get 12 weeks. Uh, it doesn’t necessarily have to be paid, but your employer can’t retaliate against you for taking the leave and so you’re, you’re entitled to your job, uh, when you come back. And so had a few mothers or fathers come uh, and they were working. They told their employer hey, I’m about to have this, this new baby take off, and either some of them it’s been during the leave, some of them it’s been right after the leave Uh, the employer decides that they don’t want them, that they never need them, and they terminate them. Um, and those cases, I think, for whatever reason. For me hearing people take what they think is going to be protected time off to bond with their new baby, only to be fired, um, and never get that time back. For, particularly for those who have been fired during the leave, so maybe they’re six weeks into a 12 week leave and they’re notified that they’re terminated. Not only do they have to go find a new job, but also they lose forever really, that the extra six weeks of of protected leave, and so um finding some sort of resolution for them, I think is has been probably the most rewarding.
So have you proved that they’re fired because they took their leave Cause, of course, I’m assuming the companies are somewhat smart enough to be like oh no, we just did like an evaluation of all the reasons that we realized it’s right, it’s a redundant or restructuring or whatever. So I’m assuming the the employment, whoever the company might be, would come back with that Right. And so I’m not sure how you sure you didn’t fire me because I took maternity slash paternity leave. How do you prove that it was because they took the leave?
It’s never easy and being in California is helpful because you get really friendly judges and juries in California for employees, but it’s it’s challenging. It’s challenging. The company will always come up with reasons when they hire attorneys. Those attorneys job to put every possibility on the table of why there was some other reason that they terminated the employee, and usually I think the timeline speaks for itself. They the employee had never had any issues with performance. It wasn’t a mass layoff, so it wasn’t like we got rid of, you know, 60% of the company. It wasn’t like Twitter where you know we’re getting rid of almost everyone. So, yes, some people are going to be on maternity leave when they’re, when they’re fired. These are individuals who are terminated. No one else was terminated. They never had performance issues and the entire during leave or within a few weeks or even a couple months after the leave, and the timeline speaks for itself and you get reasonable judges and juries who are going to see that timeline and understand that there’s really only one one reason.
Yeah, okay. So what has been some of your more challenging cases in terms of, you know, an employee being a whistleblower, so to speak, whether it’s the real. You know they had the, the what’s the word I’m looking for? I’m like side note, I’m stuck on stupid. Today. I’m very like slow and I don’t know why I slept like way too many hours last night. I can’t like form a sentence. My workout this morning took me double the time it normally did, because I’m just like. I’m like I’ve been staring off into space for 10 minutes in between sets, like so this is going to be rough. So what I’m trying to say is what has been some more, some of the more challenging aspects to proving employee, employee or discriminations or toxicity or whatever word you want to assign it. What has been some of the more challenging ones?
With respect to to toxic environments, gina, the, the biggest challenge is that a lot of people experience toxic workplaces that aren’t necessarily unlawful workplaces.
And so I talked to.
I talked to probably a dozen or two Employees a week doing intake calls and trying to learn about if they have cases and and so many people had negative interactions with their supervisors or colleagues and then but I’m not able to determine, you know, is this just a supervisor that you agree with, that treated you unfairly, that made a bad business decision? Is bad business decisions are bad business decisions, but it’s not unlawful. It has, you know, harassment has to rise to the level of being a hostile work environment, being severe and pervasive, being based on your religion, your race, your ethnicity, those types of things, at least here in California. And so often there’s just a lot of bad managers out there who aren’t, who didn’t get any training on being a manager and who just are bad at their jobs. And there’s often no case for that. It’s just you got yourself into a situation where you have a really bad manager.
So what is what for you when you’re doing these like screening calls. What is your litmus test? Like, what sort of questions are you asking people when they’re calling so that you know, when people do call, what should they be prepared with? And kind of what is your litmus test of? Okay, yeah, okay, this is bad. What is your litmus?
test of I’m always trying to think about, from the moment that potential clients call in, is what would this look like if there were a trial or, you know, there were a hearing on the matter? What could we prove? And so a lot of times there’s we had this conversation on the phone. You know, I had a conversation on the phone with my supervisor and and they made a comment about my weight and it was a one off comment and there was isolated and it’s awful. It’s awful, but it wasn’t in writing. I never reported it. It happened a year ago and, yeah, it happened and I believe them, but it’s going to be more challenging to prove. And so that’s going to be a conversation with the client or the potential client of how can we build that evidence. You know, will they say it again? Have they said it to anyone else? You know, was? Were there any witnesses? Those types of things. Alternatively, sometimes people put that stuff in writing, they write it on Slack, they write it on Teams, they put it in emails there’s or they say it in front of witnesses. Then there’s a case, because now we have things that we can use to prove and to actually show a judge or a jury. Here are the things you know that that that are discriminatory, and so I think, trying to get to the bottom of what that evidence is and people don’t people don’t call saying here’s all my evidence. You know I have a packet of screenshots and things like that because people aren’t thinking that way, but it’s trying to get people to think that way is important to get good.
So what do you think? And I know, when we first like, whatever long ago, we briefly touched on this when we chatted with you, how do you know? Like, how, how do you handle? Hold on, you’re going to have to edit that part out. And someone, what is the the tipping point? That’s the word I’m looking for when someone would call you, like, what is what is generally the tipping point? Like, is it something big or is it that they’re just realizing that this whole workplace or the relationship they’re calling you about is problematic? Like, what does that look like typically?
Typically I think I’m about to be fired or if I was just terminated and all this stuff happens. That’s usually when it comes out. I think a lot of people have been experiencing it, enduring it, for a long time and they haven’t necessarily recognized it as discrimination, harassment or retaliation. They’re letting it happen because when they want this job to work out, they don’t want to be that person who rocks the boat with their employer. There are good things about their job. Maybe they like the work, but there’s this one supervisor that’s off. Or they like the fact that they get to work from home, but they hate getting emails from this one person. I think a lot of people start weighing it and only when things really blow up to the point of being fired or demoted do they call. That’s usually the case Now. Sometimes there’s people who are a little bit more proactive or just wanting to get a consultation. I think I wish that happened more often. I think people should reach out more often, because the only way to really educate yourself about what’s if what’s happening is lawful or not at that time is to reach out to someone like me, in whatever state or country you’re in. I wish people knew to do it earlier.
I think we did God. That’s what.
I was going to say so earlier the better. So if you start seeing rumblings of something weird unfolding, it’s better to give you a call and you can then say this is the stuff that you need to look out for. Here’s a list of things that you need to start eyeballing in your Slack team slash emails, et cetera.
Right, right. Here are the things you should start documenting. Here are the things you should make sure there are witnesses present for. Here are the things you shouldn’t do. So the earlier the better. Most lawyers give out free consultations when they’re assessing a case, so you should be able to find that for free. It’s worth the hour of searching for a lawyer and having a conversation with the lawyer just to make sure that you’re doing everything you can. So then, on the back end, if you do have a case, you’re sort of as well prepared as possible.
What are some of the things that you would recommend people start documenting.
I pretty much and maybe you can agree with this from your prior work experiences, nicola and Gina I pretty much tell people to go ahead and throw away anything that didn’t happen in writing. So any phone call people are going to either lie about or really. People have very different perspectives when they remember a phone call or an in-person meeting. So unless there are witnesses there and unless it’s in writing, who knows what people are going to say months down the road when their goals change? But now they’re trying to protect themselves, they’re trying to protect the company that they work for. So with that, I always recommend people report things in writing over email to human resources, to the highest person possible within human resources, and then, in terms of any sort of discriminatory or harassing comment that’s made, I recommend reporting it and asking for any witness to say yes, this is what I heard too. So it’s not just you, but there’s other people who contemporaneously said oh yeah, I heard that too. And if you get that in writing, your case finally becomes a lot stronger because you can prove it, and that’s what matters. There’s the truth, and then there’s the provable truth, and the provable truth is, at the end of the day, what matters in lawsuits and litigation.
So what is the difference and I’m actually asking for myself between someone’s opinion of you as an employee and discrimination? Like I remember, because we’re talking, and I’m like thinking, like I always like to try to like test myself, like did I do this? Could I have been the toxic one? And it’s like I remember writing on Slack to someone well, I don’t think she’s like, I don’t think she’s a true business person. She’s making poor business decisions. Is that discriminatory or is that just my opinion Grants that I should have never said it, period. And it was to someone under me. I was just at my wit’s end at this company and I was just like whatever, like word vomiting, I was like I can’t stand it anymore, but like what is the line?
There is. There’s no line. The line is what a jury ends up thinking at the end of the day. And so they’re going to take that in the context of everything else. And if they’re able to say, oh, you know, Gina said that and it was substantially motivated by that person’s race or that person’s religion or that person’s sex, then it’s discriminatory. Alternatively, if it’s, if it has nothing to do with those factors, then it’s your opinion and you’re allowed to say it, and it’s about.
It’s like what this person was, what their gender rate, like I don’t care, I don’t even think I knew because we were all remote, but I just like saw them making business decisions that I felt were really poor in terms of the company getting to where they wanted it to go, and I was like who would do this? Like I just I’m so confused, like this doesn’t make sense to me. So so I guess the takeaway there right is that it has to be motivated by orientation, creed, sex, denomination, politics, weight, race, any of those like kind of hot button aspects. But if they just suck as a business person, then I’d be kidding anyone, you’re just stupid.
And there should be space. There really should be space in the work in a healthy workplace, right, there should be space for people to to give feedback and to give, you know, feedback upwards, downwards, across to peers, supervisors, supervisees and that should be happening on a regular basis and it should be honest, it should be candid and it should be specific, and sometimes that’s going to look like this person makes bad business decisions, and here’s reason. So, example one, example two, example three that’s not based on anything. You should be in a really good place as an employer or as a supervisor, and and and that’s why people document things, and if you have that writing and you can then show, look, this wasn’t based on someone’s race or sex. This is based on these specific instances of them just being a bad business person or making bad decisions.
Yeah, okay, I think that’s actually helpful because you know. But then how do you prove intent? I guess with the facts, right, because, like, anyone can be like, oh well, I didn’t mean it because it’s a woman, or I didn’t mean it because she’s underweight or overweight, whatever you know, you could always go back on that. But how do you prove intent?
People are going to be judges. Juries are going to be reasonable. They’re going to start looking at has this person made comments in the past? Have other people complained about this person? Are these comments? Is Gene or the supervisor making these comments about every single person on their team or just this one person? They’re going to end up having to make a conclusion or a guess on your intent. From my side, representing employees, all we have to prove is that it’s more likely than not. It’s not like you hear about criminal cases that are beyond a reasonable doubt. You have to prove someone committed a crime. That’s not the case, that’s not the burden here in our world of civil law. It’s just preponderance of that reference, which means more likely than not. So all you have to do is say more than 50 percent chance that this happened and we win. So at the end of the day, there’s a lot of risk for employees because more than 50 percent likely is just not that high to prove.
It’s not. Yeah, that’s not right. So I know, go ahead, nicola. I feel like you’re working on something over there that you’re about to launch at us.
I’m working, sure, launching. Let’s not launching, but I’m okay. Being in California, I am pretty confident and also, being a lawyer, I feel like you are pretty all over the Lizzo allegations.
Yeah, I know I’m unfamiliar with them. I don’t know the ins and outs, but so we had.
I feel like the year is blending together at this point. Was it last week that we did a live on LinkedIn. I think it was yeah, Whenever it was. Anyway, we did it kind of a deep dive into the submission that the plaintiffs had made, to which it was one of the counties in Los Angeles. I don’t know how your stupid counties work.
What do I know in New?
Zealand. What do I know?
There’s a county I don’t know, but he’s governed by the state of California. So the rules would be applicable to the whole state. It doesn’t matter the county, that’s just where right, that’s where it was filed. Am I right in saying that, steven?
That’s right. I think it was filed in the superior court of the county of Los Angeles, so each county has its own court. That the state law is primarily governing.
Yeah, it’s the governance.
Okay, what do I know?
We have like three courts.
We’ve got like a court, like the regional court, the high court and the supreme court.
Do you guys wear the white? Do you guys wear the white wigs?
God fun. Yes, we do, we do, we don’t, we don’t.
We can just show up like we can show up in whatever I think only.
I think only in the supreme court they do the cool wigs. That’s totally irrelevant.
Well, if you’re in America, nobody does wigs. Would you like to wear a wig? Steven, we’re totally on a tangent.
Are you wearing a wig?
Would you? Wear those like old school wigs that you see? No.
I wouldn’t, I would not want to, but there is something about being in the courtroom and having a judge wearing a black robe, and the judge is usually on a kind of a level above you and I think, when you know lawsuits and the law is a very serious topic and there is something to be said about the decorum and the costumes people wear and lawyers were sued, so there’s something to be said there. I think it’s a little ridiculous. During the pandemic, there were some judges who were doing remote proceedings, who wouldn’t talk to lawyers if they weren’t wearing ties, and meanwhile it was 2020 and in the middle of the pandemic, people are just trying to get through a day.
Right so like, who cares if you’re wearing a tie?
They’re the judge who who accidentally had like the cat filter?
Was that a?
reporter, a lawyer or a judge it was one of those three and they did the whole thing like as a cat on Zoom or hamster or something I’m like yes, this is what we need in our lives.
Anyway, circling back, there was also that right at the beginning, right when the Supreme Court of the United States went, went remote for the pandemic, they were doing not not video, but just audio. And there was a famous toilet flush, and no one knows exactly which of the nine Supreme Court justices did it. But you can, only I think that’s amazing.
Who do you think it was?
I don’t know. I have my guesses, but I don’t want to say them, I don’t want to be on the record saying them.
So Wait, wasn’t there something or was it some one of some politics? Politician like farmed some politics. I’m retarded today. I edit that out because I can’t say that word anymore. I’m a child of the 80s. Everyone, leave me alone. There was. There was a politician who farted like was it Trump? I should know this, but I don’t know this Somebody, like during the pandemic it was something virtual and like it was all over the internet and it was like was that a fart? Like nobody. Ok, we digress.
Rewrite the tape. Yeah, it would be surprising if it were Trump.
I feel like it wouldn’t be surprising.
Anywho circling back, OK. So I have got the Lizzo thing open over here and a lot of their stuff in. They’ve got a list of what they’ve called factual allegations. I’m like, OK, cute.
But what can you break down what a factual allegation is? Is that actually a legal term?
So yeah, I don’t know what you’re looking at, Nikola, but it sounds like I will. I will share it with you.
Go for it.
Hold on, give me a second, but have you heard that terminology before? Factual allegation? That seems like it’s an oxymoron.
It is, it is, and so usually what happens is the plaintiff, the person suing the employee in these, in this context, is going to submit a complaint. That’s the the beginning of a lawsuit.
And in that complaint.
OK, I’ll take a look in that complaint. They’ll say these are all the things that we’re alleging are facts, and throughout the next three years of litigation we’re going to prove each and every one of these facts. And then they’re going to turn essentially from allegations to facts that are proven, and so people make the shorthand factual allegations, which is a bit of a oxymoron. They’re almost opposites, but the goal is to take those allegations that we claim are true and actually proving them to be facts that other people agree with.
It sounds like it’s saying like yes, we’re alleging this, but we have factual information to back it up. So that’s why it’s a factual allegation and during the proceedings, should we go to trial, we’ll be able to prove it. Because if you know that of course, right, isn’t that usually what happens? How often now I’m on a different like tangent here, but how often do you actually go into litigation? Because that’s typically lengthy and expensive for everyone, right?
Yep, it’s not very common, particularly in the employment realm, and so Often, you know, anyone can file a lawsuit, and there’s tons and tons and tons of frivolous lawsuits, unfortunately, on unemployment law and it doesn’t look good for plaintiffs lawyers like me, because employee lawyers, because I have colleagues across the state some of whom will take any case and file a lawsuit and it’s completely BS and they call the factual allegations also and then they would never be able to prove them, and so it’s hard for when the media takes this complaint, this complaint against Lizzo. You know these people can just be saying these things and we don’t know and I personally believe them, but I think they’re going to have to prove it and it’s likely going to settle outside of court and and the public is not really going to get a clear picture of what happened. Is how it usually ends.
Right. So have you actually ended up going you yourself gone into litigation with any of your clients?
Yes, so I have cases in litigation and a lot of it’s back and forth, back and forth information just sharing, which is called discovery. And so you know there’ll be an allegation in the complaint in the factual allegations section. It will say something like you know, on this date Lizzo did X. You know she I mean I’ve she did it. Apparently some, some some sexual harassment, some harassment based on weight, I think, and and then it’s, how do you go proving that? So we’ll ask for all the documents from Lizzo, all the emails that she sent, and destroying emails at that point would be a crime. So she has a duty to turn over.
So you’re going in and you’re deleting emails is going to Come bite your hands. That’s a big no, no yeah.
So after it’s filed in the court system, right? Like? Let’s say, like you’re just doing maintenance on your in your email inbox and you’re just deleting things from like 2018 or something, cause I hoard all my emails, I’m aware Prior to it, prior to any kind of filing in a court system, that’s not illegal, it’s after the filing happens, correct?
The safest thing to do would be, as soon as someone’s aware of anticipated legal claims, to hold all their evidence and not destroy anything that could happen once the lawsuits filed. Sometimes it happens beforehand, because an attorney sends a letter saying you know we’re going to file a lawsuit, please hold all your evidence After that point. If you destroy evidence, it’s illegal. It’s. It’s illegal. It could be a crime. That it will be. It’ll be. If there’s anything that’s missing, it’ll be deemed to be in the favor of the other side, and so it also has consequences that people start assuming that that what he deleted was was something you didn’t want to, yeah, something you didn’t want people to see Um. So they’ll look through Lizzo’s emails and text messages and you know phone records, things like that, um, and they’ll take her deposition under oath. And so they’ll say you know, they’ll spend a day or two days or three days with Lizzo asking um, you know what, what happened and why are these things happened? And they’ll show her proof that they have maybe they have screen, you know photos or video recordings of some of this awful sexual harassment. They’ll confront her with it and they’ll say you know, is this you here, um?
is this you in this picture? That is actually you.
Right and that sort of stuff, and you’re under oath and um. It’s not fun to be. I don’t think it’s me, it’s a little blurry, yeah, yeah. Yeah.
I actually, I, actually I. I neither am a fan of Lizzo or against, but I, for some reason, I follow her on Instagram Um, I don’t think, I don’t know if I do anymore, but somehow I was at one point and her Instagram feed is there, is highly sexualized and it is um, also surrounding like her weight in a positive way, like she’s saying, like you know, just cause I’m overweight, or she doesn’t feel she’s overweight, or she doesn’t mind showing her body. So, just based on that information, which is a very shitty information, I wouldn’t be surprised that if these allegations ended up being completely truthful, because there is something very sexual about the way she operates.
With this, with these particular allegations. It wasn’t just the sexual harassment right, it wasn’t just the, the, the the.
No, it was also weight and money.
It was also the the um, the pay that they had. So they were on like holding pay, Um, but they, the dancers, weren’t getting any.
I don’t know what it’s called in America, but it was almost like um well, it’s almost like a retainer right, like a retainer to do the dancing. You can’t take other jobs during this period You’re, even though you’re not currently dancing with us, you’re not allowed to leave until your contracts up or whatever. So they didn’t have any sort of like retainer pay, for lack of a better word, and they’re saying that they had to. They wanted to get that, which seems fair, because all the other, like full-time dancers, were getting the retainer pay.
So section 40, um. This year, the team submitted their request for a retainer of 50% of their weekly tour rate to ensure they would be paid for their time while on break from touring, since whatever and Lizzo strongly preferred the dance cast not to take on any other jobs during these breaks, and they did like so. There was a huge pay issue as well, like there wasn’t just the sexual allegations, it was also around fat shaming, racial discrimination, disability discrimination. There was a bit around, obviously the pay and I think, our favorite one I know what’s the difference between, like a toxic work environment and a hostile work environment. Cause they say hostile quite a bit and I’m like that sounds like you’re a hostage in your hostile situation. Yep.
Yeah, a few things. Well, a hostile work environment is going to be a, an environment that’s so intolerable that it’s severe and pervasive harassment, which could be one really horrible instance, but usually it’s a pattern of it, and it’s usually going to be based on someone’s sex or race or gender or religion, the things that we’ve talked about, those protected characteristics, and talk about the power. I mean, how many of those dancers would probably work for free if they, you know, if that was allowed by the law, because they just want to be in Lizzo’s presence and it’s going to be their big break, and then they’re just totally taken advantage of because of that power dynamic must have been, I imagine must have been really intense on the on the sets of these music videos and things.
Yeah, and a lot of this happened. What Nicola and I ended up kind of coming to a very general conclusion was a lot of their allegations ended up just being like they were being told what to do on their own time. Like technically they’re not rehearsing, technically they’re not performing, but after hours, when you should be able to have your own hobbies, do what you want, there was pressure to continue to go out with Lizzo and do stuff with the crew yeah, and do stuff with the crew and as an employer or even as an employee, like how do you say no? and then to what you just said about being in Lizzo’s presence and her atmosphere if there’s a fear, I feel like already ingrained in you, if I say no, maybe they’re gonna fire me, right? It’s that power dynamic. If I say no, I’m gonna look like I’m not a team player. If I don’t do this, what if I miss out on becoming friends with her and then getting promoted Like who knows right? There’s all of that that comes with it. So how do you prove that? Like, how do you prove that those were my thoughts? And saying yes, that it wasn’t like a yes, because you genuinely wanted to go to this strip club with Lizzo?
In January there’s always a spike of calls about Christmas parties, company Christmas parties oh I hate to come in and so that happens. Oh my God, we hate that. But I think it’s a good parallel, right, because you don’t have to go, but there’s sort of pressure to go at some times and there’s usually alcohol involved and it usually sort of feels like it’s not work sometimes and I think that’s sort of the situation here with Lizzo is we’re not really at work. So everyone kind of puts their guards down and, technically speaking, employees are responsible for what’s in the scope of their employment, when supervisors like Lizzo and her manager, I think, are doing things within the scope of their employment and they’re gonna argue I’m sure those LA attorneys, they’re gonna argue very hard that anything that happened to the bar outside of work has nothing to do with the employment.
But that’s not really true and we all know that.
And on the flip side, yeah, and the courts have given a good amount of leeway to things that happen off the work site, as long as it was a work event, a work you know somewhat, work sponsored, you know. If a supervisor says, hey, we’re all going straight from the office here. Those are the types of things that are gonna be a little bit more gray, but generally speaking, there’s been a pretty good amount of leeway for liability for the employer when they’re taking their employees out to a different place and putting their guards down and talking about, you know, asking about their virginity, and they’re talking about dildos, I mean all sorts of just crazy things that they alleged in the Lizzo complaint that you sent me.
Still, I guess there’s some wild allegations in there, right.
Our favorite, right, nicola? We read this in depth. There was one that one of the dancers alleged they were not allowed to go to the bathroom during rehearsal and it was like a 12 hour rehearsal and they ended up peeing their pants, essentially, and then they were given a sparkly see-through body stocking by wardrobe to wear like, I guess, home or for the rest of the day.
It’s horrifying, it’s like.
I guess. For me it’s like it sounds so fucking weird that it has to be true, right Like, who’s gonna come up with that?
I’m getting a little bit of a mess All we had was like an absolute cheer, like we can see all of your bits body stocking. Oh, we didn’t. You know, I didn’t have a spare pair of sweatpants in my training kit.
I mean yeah, it’s like. So I don’t know, like knowing the very little that you do know about this particular complaint, or is it a complaint or an allegation at this point?
It’s a complaint, it’s a lot.
Okay, it’s a complaint.
The allegations are put in a document called the complaint, and once it’s filed, it becomes a lawsuit. Okay, got it the opening sort of the opening document of a lawsuit.
It’s the lid.
The lid on the can of worms.
So, based on what you know, which agreed, we can all agree, it’s all very limited and our retelling of situations yeah, well, retelling is probably terrible. Sweet. This reminds me Joe, joe’s my partner. Our listeners know this. I told him like a year ago I was like you got to watch the show it’s about. And he’s like what is it about? And I forget the name of the show now because this is a while ago and I was like it was about somebody getting raped in the woods, like, and it was like then covered up by all of these women at a brewery or something. So he’s like okay, I’m going to watch the show. He’s like two episodes in. He’s like first of all, nobody was raped. This is like eyewitness testimony, right? It’s like this is why it doesn’t work, because I watched the fucking show and I still got the whole premise wrong. Anyway, so that’s us retelling you the Lizzo bits. It’s like don’t really believe anything that comes out of our mouth.
Fair enough, I mean. But I have a gist and I feel like it’s been the news enough that I feel like we’ve all heard about it a little bit yeah.
I will say this. You know, often it’s sort of like what’s the end goal? And here it’s probably about money. It’s probably about these dancers aren’t making a lot of money. A lot of employers have insurance specifically for cases like this Employment practices, liability insurance, it’s E, what is that? E-p-l-i insurance. And so how much does it impact the company? You know, when this stuff happens, they file insurance claim, like you might do for a car accident, and their insurance flips the bill and their premiums go up. Now sometimes insurance won’t cover it or it’s gonna come right out of their pocket. But generally speaking, it’s like what’s the end goal? And I feel like here it’s money, but it’s also let’s expose Lizzo’s sort of operation for what it is. And so it’ll be interesting if they wanna settle quickly and you know, is this really about money? I think it will settle quickly If it’s less about money and it’s more about let’s really expose all the wrong doing for Lizzo. I think it will last for years and there’ll be a lot of back and forth, discovery where information will come out.
Interesting. I’m curious to know one of the things that they bring up a couple of times in this document, and this happened at our workplace as well. So I’m interested to know, just like, what your thoughts are on. This Is. One of the things that they brought up was always the commentary about that jobs aren’t safe. Oh, everybody’s gotta be on. You know their best behavior because the jobs aren’t safe, and Lizzo mentions it here. She does a couple of comments here, especially in April she goes, she told everybody that their jobs weren’t safe and that drinking alcohol before the show was prohibited, and there was like a bunch of things that she said along that line as well. But I’m curious to know, like, when a leader or manager says that to the team, obviously it’s gonna demoralize the team, like of course, but like, is that something that they shouldn’t be doing? Like, what’s the kind of, what is the legal aspect of that?
I don’t know for these dancers, for Lizzo, because I’m not sure if they were in a union or something like that but typically and I know you’re talked about this a bunch of times on your podcast about being an at-will employee so in California, the vast, vast majority of non-union employees are at-will, and so they can be terminated for any reason no reason at all and their employers can remind them that. And I agree, nicola, it’s horrible for morale, but there’s nothing really unlawful about it until it’s tied to something else. If you’re threatening their termination unless they do something, that’s illegal, that’s when it starts to become more of an issue. But I think there was an instance this spring or last fall Mark Zuckerberg saying telling all the meta employees your job’s not safe, we’re gonna be cutting and we’re gonna decide who gets cut, and it’s horrible for morale and you go home to your family thinking I might lose my job any day.
And it’s just stressful, like it creates additional stress that probably you’re doing in the end.
But would you rather not be warned that they’re doing? They’re going to be coming up on massive layoffs, like in the case of meta.
That’s why change management is really important. Right Like, do it in the right way. Say look, we’re doing a review, we know that we have to save $40 million. This is how we’re gonna save $40 million. One of these interventions that we’re gonna use is to cut some jobs, but we’re gonna go through a rigorous process. Everybody’s gonna have the opportunity to provide feedback and this is the change management process we’re gonna use.
And what ends up happening is it’s a lot of favoritism, a lot of I like this person, even though it’s not tied to any real objectives or metrics or anything like that, and those are how decisions are, unfortunately, often made.
Yeah, I would agree with that, especially in America, because we don’t. I don’t think America, like corporate America, for lack of better terminology has a good handle on change management.
I don’t think they would know what change management was if they put them in the air.
I think it’s a word you know, like I remember years ago when I was starting to like think, oh, maybe I want a different job, whatever. Like all of these acronyms like KPIs, like look at that, and it’s like, oh, you just want to and benchmark, that’s benchmark it. It’s like, oh, you wanna compare prices. Just fucking say compare prices. Like let’s not like you know fluff, what it actually is. Okay, you wanna get two different quotes from two different vendors and see who’s cheaper for the exact same item. Great, like they’re calling it benchmarking and everyone calls something different. You know something completely different. So it’s like I feel like change management is a buzzword that just means like how are we gonna keep our employers and employees on the same page in terms of what’s happening at a higher level? Right, and I don’t think Americans are good at that. Maybe I’m wrong, but I’ve never been part of an organization that has been particularly good with being transparent about what they’re doing, why and how they’re going to arrive at the decision what you just described, and I think that’s very typical of American employees, employers, rather sorry, and I think, steven, you would agree with me. What are your thoughts on that?
Yeah, absolutely. I mean, I think there isn’t a lot of transparency and I think some of that sometimes has to do with once you start telling employees things, they start talking, they start questioning and there’s little rebellions, that sort of happen. I think companies are really worried about that and like to safeguard decisions on sort of a as needed basis to know, and I mean from the sort of pessimistic capitalist viewpoint, these. They think it’s best for profits, as if we make decisions this way and our employees just work for us. We pay them the salary and they’re not entitled to this information.
So here in New Zealand just as a. Oh yeah, here in New Zealand, here down in our little freezing, cold little bucket of joy, when? So we have to, by law, go through a change management process which includes consultation, fair process, selection criteria, consulting with any unions if they’re involved. Notice and severance alternate we offer alternative employment, should that be an option redundancy compensation, and then obviously, we’ve got to make sure that we’re keeping records of Wow.
That sounds amazing, right See like yeah, that it how in America does that?
It’s unheard of. That is, it’s so. It’s such a better society to live in.
It’s very difficult to fire people here. Firing someone is incredibly hard. So unless you are like a serial killer and you have murdered people in your office, which is serious misconduct, getting someone fired is really tricky. Yeah, so it’s pretty much serious. Misconduct is, or you know, like serious, serious things will get you into trouble.
We had someone from New Zealand tell us that it was proven that this guy it was the EOS woman. She was in a workplace that she realized that all the higher ups knew that Kevin Smith, or whoever it was, was embezzling. They had proof, but they weren’t going. They couldn’t fire him for whatever reason. I forget what was the reason like. I can’t remember what the we’d have to go back. There was a reason that kind of made sense. But they were basically like hey, kevin, stop embezzling. Okay. And he was like, okay, and he kept his job, yeah because you’ve got to, it’s almost like a three strike rule.
So you’ve got to do your first warning, second warning and then your third warning, and you’ve got to provide performance management options as well. So if you suck at your job and we all hate you and we want to fire you, we’ve got to performance manage you out, which is a very long and drawn out process and can take anywhere from like three months to a year. So you’ve got this, let’s say, toxic person in the workplace that is just going to maintain there because it’s really, really difficult. And it’s kind of from that point onwards that you have to start keeping as an employee, as an employer, you have to start documenting all the evidence of the times that they didn’t meet the performance requirements that you’ve set out in this performance development plan.
That sort of sounds a little bit like government government workers in the US. I think it’s hard to fire. It’s hard, you know, and if you’re underperforming unless you’re really grossly underperforming you’re usually going to be able to stick around for a long time past. Probably should be there.
Past due expiration date. I also feel like even though, like in theory, the way you guys do it in New Zealand, it sounds a lot more thorough and you know a better way to do change management or you know getting rid of an employee. I also feel like it opens you up to keeping, like what Steven and you are saying, like people who are embezzling or who are really just not really pulling their weight and creating a more toxic environment. The reason why that woman told us about the story is because she left because she couldn’t wrap her. That was the deciding factor for her to leave, because she was like, if they’re letting Kevin Smith get away with it, who’s going to say that? Kevin Smith and 12 of his other you know team members won’t start doing that and they’re letting. This is a well-known secret, but we’re turning a blind eye to it. How can you run a successful organization in that manner? So I feel like it’s opening yourself up to having people who aren’t really pulling their weight, don’t really know what they’re doing, to stay in the said position that they have. Would you agree with that, nicola?
Yeah, I do agree with that. I think that makes.
There’s really no. You’re always going to have toxic people. You’re always going to have toxic workplaces. Like it’s such, like. It’s like a mind fuck right. It’s like. So here’s New Zealand, who’s doing everything properly in terms of change management and letting redundant staff go and it sounds great. And then here’s America, who’s just like you didn’t curl your eyelashes in the right way. You’re an at-will employee, so fuck you, you’re done. Today’s your last day. You’re kicked out of all your email. So it’s like is there a middle ground that could possibly be the sweet spot for corporate corporations and organizations across the world? Like what do you think about that, steven, seeing what you’ve seen through? All of your clients and employees come through your door who are disgruntled. Are they all disgruntled?
Almost. Yes, people are never happy talking to me. I would say at the beginning it’s such a good question, I think. I agree that I’m not sure if there’s a great solution. One idea is employee owned or partially employee owned businesses. I think people who have ownership stakes in their own work are going to do a better job and act ethically, and if they’re not, their fellow employees can terminate them more easily, because they all have an ownership in the company too. So I think there’s some work around.
It is a good. More employee owned businesses, or at least partially owned. I hope that’s very common, though these days I feel like that was something that happened years ago. Like many years ago, I don’t think that’s something that Americans even think of anymore.
Yeah, on the small scale, I feel you know there’s a pizza shop here in Oakland that is about to become employee owned and I was thinking I was eating my pizza there a couple of weeks ago, thinking you know how’s this going to change the employees? I think I’m assuming there would be less instances of discrimination, harassment, retaliation, also less experiences of poor performers sticking around way longer than they should, and it seems like it could really work. I think for bigger. If it was pizza, I’m not sure it would work. I think once it gets too big it gets harder to manage when so many people have input and I think it’s an interesting idea, at least for experimentation purposes.
Yeah, yeah, I don’t think many people even think about that. I mean, I think years and years ago, at my first job out of college, I think, technically, we had employee stock options, but it was like so minimal that it didn’t even make a difference in the whole grand scheme of things, because the people you know, the higher ups, had the most share. So even if we voted on something, it didn’t even really make a difference. Whatever they decided was going to be what ended up happening. So in theory it’s a good idea, but I think you’re right, when it gets to be too big, it gets so watered down that you’re really not your say doesn’t really make a difference anyway.
Right and you’re not waking up thinking you know, how can that contribute to my company today? It’s just, there’s my employer’s company I work for.
That’s so true. What do you think is important in toxic workplaces to cover off when gathering up evidence?
This isn’t that, but have you talked about diversity, inclusion, equity initiatives on your podcast before?
We were just talking to someone who has autism, who’s very you wouldn’t really know it until he mentioned it, but who might need, you know, special accommodations. But yeah, if like, then I’m like well, I’m special needs too, because I have a period it’s like huh Right.
Right, and people have been doing that with working from home, accommodations, but people have been trying to come up with any possible disability.
Have they really? Oh yeah, because it’s a big deal to work from home. Do tell I’m curious.
And as people have, as employers have required people to come back into the office, people want to stay working at home and one of the only ways to do that is say it’s a reasonable accommodation for my medical condition or disability. And so there’s a lot of people who have legitimate, real disabilities and medical conditions where working from home is necessary, or at least a few days a week, and it’s a reasonable accommodation, it’s not going to hurt the company, it’s not an undue burden. Then there are other people who just want to work from home and can get one doctor’s note saying that they have trouble driving from due to a medical condition. It would be best if they only work from home, if they only work in office three days a week, and I think that devalues the people who have real, genuine conditions Absolutely, and so it’s always a little bit tough to sess out of what’s going on?
Why are we pushing people to go back into the office? I just don’t understand.
Are you asking me? I don’t know the answer to that, I’m just asking in general.
I’m like it’s wild in my mind.
I have been working from home since pre-pandemic, because my company’s office is in New York and when I was six months pregnant with my daughter, I moved to Florida. So I’ve been working remotely and then the pandemic hit and then eventually our company gave up its office space because it was like we can do our work from literally anywhere. So there’s no reason to be renting a space on Amsterdam Avenue, on the Upper West Side, like in Manhattan. That sounds fancy. It wasn’t. It was just a small office, but it was nice to have that sort of storefront, so to speak. But I hate working from home. I feel like there are ben. Yeah, I hate it. I feel so isolated. I feel like it does most other employees a disservice. Because you and you and I have talked about this before, nicola Because then you’re relying on I am, I’m dating myself or texting instant messenger in terms of whatever it’s I message on your phone or Slack or any of those or Teams, and it’s like if you’ve never seen me in person and you don’t understand my personality, my mannerisms and I’ve used this example before in our podcast if I say, oh my God, nicola, you’re killing me In a text, you don’t know what that means. But if you saw me in person and I’m like, oh my God, this whole project is getting like making me go crazy and, nicola, right now you are killing me you would understand. It was like set in a joking, non-offensive way. So I feel like it does a lot of employees a disservice, right? Because you don’t really truly understand who people are. Maybe you’ll have Zoom meetings a couple of times a week, but it’s usually for problem solving or you don’t really get to know someone.
But maybe that’s one of the things that we need to start looking at is that we’re looking more at a more hybrid community, rather than just fully in the office or fully work from home, right, where we’ve got that more flexibility, where you’re like two days in the office, three days at home. The other thing is.
I also feel like when you go into the office on the flip side there’s so many more distractions you get less work done. When I’m working from home, I could do what would normally take me in an office like all day, in maybe two and a half hours, like I’m done, like this I’m not being interrupted, I’m not doing office chit chat, I’m not getting up every two seconds to get water or I’m just plowing through my work. So I don’t know, I don’t know what is your opinion, steven? Yeah, what’s your opinion?
I’m pretty mixed. I think a lot of people, a lot of employers, want to send people back to work for the wrong reasons and they want Wait, what are those reasons? Those reasons are supervisors, mid-level managers, want control, really direct control, over their workers. They want to be able to see them there.
There I say micromanagement.
There you go. You say I think that’s really unhealthy. I think it’s nice for people, for extroverted people who want to go into the office, to be able to build that community, to be able to really understand one another. I think is important. I like the hybrid approach. I just think that some of these companies that are now we’re checking your bad swipe entries to see how many times you come to the office. For me it feels a little bit like a helicopter employer and I don’t like that. But I agree with you, gina, that I think it’s helpful for building out community actually understanding what people are saying. You can’t really do that.
I think for morale too. Right, because just using me and Nicola, we didn’t realize that we both felt a certain type of way about our former employer because we were not physically together. Maybe if I had seen her every day and we started chatting, we would have been like maybe we should come up with an exit plan, because this place fucking sucks. This is draining the life out of me. I just want to go stab myself with a blunt object in the eye. So we didn’t have that opportunity. So I think maybe hybrid is the way to go, because you can do your social stuff, build morale and then go home and bang out your work and get it done in record time. Sounds like a good plan Without the commute on certain days.
Yeah, exactly. But then you’ve got that flip side right. We’ve got our micromanagers, who aren’t going to like the fact that you’re creating communities of work at work, because you should be at work to do your work right. So now they’re going to stymie or stifle your opportunities to create connections because they just want you to come into the office and sit at your desk and pound out work. So what the fuck is the point?
I think that would lead us into a whole different conversation about how do stupid people get in places of leadership.
I don’t know, but I hate stupid people, and that’s the root of a lot of different roles. I think why are?
people who want to micromanage being leaders, like it doesn’t make any sense. How has this happened? And, steven, why are we coming to you thinking you have the answers? Well, we know you don’t, but I don’t, but one.
I think there’s one problem, I think and this is the hot button issue I was going to mention earlier with diversity, equity inclusion. I think if there were more supervisors and managers that looked like employees racially, with religion, sexual orientation, whatever it is I think it would lead to a more healthy workplace. And so the fact that now, ever since affirmative action has been overturned in schools in the US last spring or early summer in June, the next frontier, I think, for a lot of people on that side is how can we end diversity equity inclusion initiatives in the workplace? And so that worries me, because I think it’s going to become a lot less healthier of workplaces if there are less people that look like their employees on the management level.
I can understand why it’s an issue. Right, I can understand for admissions, but I don’t understand how that, why that would then translate to a workplace.
Yeah, it’s a good question. So Edward Blum is one of the main attorneys who’s who represented, he took. He represented mostly, I think, asian students against Harvard and he was largely responsible for overturning affirmative action with Supreme Court when I sided with him. And then that happened this spring and he immediately sort of declared war on companies’ diversity equity inclusion initiatives. So he sued two big law firms saying you have for law students, you have fellowships for the summers for people who are historically underrepresented, so they give out some money and you do sort of an internship and it’s sort of known as it’s only for people who are underrepresented through that major law firms. And so he sued these big law firms saying that that is discrimination, that’s discrimination against people who aren’t of those historically represented groups, and so it’ll be interesting to see how that ends up getting handled through the courts. I think personally that diversity equity inclusion is super important to a healthy workplace and so I’m all for them.
But the way that this affirmative action battle is gone, I think it’s going to be interesting how OK, steven, tell us where we can find you for any of our listeners, and I’m sure there’s quite a few who might feel like they have a good case.
Especially all of those in California.
Yes, only California. You can find me on my website that’s probably the best place wwwchisenlawcom my last name’s Chisen, so chisenlawcom, that’s probably the best place to find me or on LinkedIn. Those are my main avenues. No social media for now.
Yeah, so you’re on LinkedIn. Ok, we’ll get people to stalk you on LinkedIn.
LinkedIn’s good. I’m not on the TikTok Instagram world for now.
Please don’t be on TikTok, nobody knows.
There’s some very popular lawyers on TikTok.
I was going to say what do lawyers post on TikTok?
Oh no, there’s employee like employment lawyer Ryan. No, but he’s Instagram which I think is quite he’s on.
TikTok too, is he. I don’t even I don’t fuck with TikTok, I’m too old.
Fun fact top cities Wellington, new Zealand, new York, gina and Los Angeles, California. Listen to the podcast, yeah.
OK, so if you guys need an employment lawyer, we know where to find. You know where to find one and we’ll put all of your info in the show notes so anyone can just click it if they want to reach out to you.
It was such a pleasure.
Chania with you both.
You too, and to everyone out there. Document evidence Is that your major takeaway Document everything and don’t delete anything. Document documents, yeah, and don’t delete.