Pete Neubig: [00:00:06] Welcome back everybody. And as promised in studio attorney extraordinaire Aaron Holt, he actually works for the good guys. Aaron, thank you so much for being here today.

Aaron Holt: [00:00:16] Thanks for having me, Pete.

Pete Neubig: [00:00:17] And, you know, the good guys are the company owners who that's who our listeners are. And you actually. So give me just, uh, go over again the firm that you're with and and the proximity that you live to me.

Aaron Holt: [00:00:30] So, um, my name is Aaron Holt. I practice labor and employment law for the good guys or otherwise known as employers. Um, so what that means is I represent, um, sometimes individual managers, sometimes companies against any type of employment related dispute that they might have. Sometimes that would be harassment, discrimination claims, maybe it's wage and hour alleged violations, maybe it's some kind of union issue really any kind of way in which, a lawsuit might be filed against an employer relating to some aspect of their employment is pretty much what I handle. I'm board certified in labor and employment law and have been since 2015. Prior to that, I was a criminal prosecutor here in Houston.

Pete Neubig: [00:01:16] And helped me personally with some stuff from Empire when I owned Empire. Helped me set up VPM. And Aaron literally lives next door to me, so I literally have one of the best attorneys for employment law sitting right across from my driveway. And yes, we have whiskey every once in a while together. So

Aaron Holt: [00:01:35] And you also have power right now because the hurricane knocked out power.

Pete Neubig: [00:01:39] We're actually recording this during Hurricane Beryl. And I literally got a generator a few weeks ago. And I have power, and Aaron and his family come over and I'm putting them to work.

Aaron Holt: [00:01:51] I can attest to Pete's power and generosity.

Pete Neubig: [00:01:56] All right, man, let's jump. Let's jump in it. So what are some of the common mistakes that especially smaller firms make when they're actually hiring people.

Aaron Holt: [00:02:07] So a lot of times when you hire someone you need to understand, I guess, the framework of employment laws in the country. And this might not be as applicable to smaller employers, but for for larger employers, defined as people with 15 or more employees, there's an entire patchwork of federal labor and employment.

Pete Neubig: [00:02:26] 15 or more?

Aaron Holt: [00:02:27] 15 or more is the touchstone for a lot of the major federal employment laws.

Pete Neubig: [00:02:33] Oh, wow. I thought it was 50 or more 15. Okay.

Aaron Holt: [00:02:36] Well, it's a patchwork. So 50 would apply to the Family Medical Leave Act. You have to have 50 or more employees. And then there's a couple other requirements to be eligible as an employer under that law. But other employment laws like the Americans with Disabilities Act, for example, title seven of the Civil Rights Act of 1964. Um, and there are a few more, but those are the big ones. They have a threshold of 15 or more employees, in which then you're under the definition of an employer and you have a whole slate of employment, um, compliance that you need to have. But that's also not a hard and fast rule. For example, if you're an employer in Texas, for example, um, there recently was a law that was passed a few years ago specifically related to sexual harassment. So, for example, even if you have ten employees and you're under most of the major federal employment laws, including some of the state specific laws, like in Texas, the Texas Commission on Human Rights Act has a threshold of 15 as well. They passed an amendment to that that said, if you engage in unlawful sexual harassment of an employee, they're going to lower that threshold to just one employee or more. So if you have one employee or more and sexually harass that employee, then all of a sudden that could be a potential claim under the Texas Commission on Human Rights Act. But to back to your original question, how do employers, um have some pitfalls, mistakes, things that they typically run into when they're hiring people. What I would say is think of the patchwork of employment laws that we have as far as, uh, um, what you can't do. In this country we are at will for the most part. So you can, uh, have great latitude to hire employees to do anything and everything that you want them to do. And you can also structure your business as you want to structure it. There's just a very few set of rules that you cannot cross, and everything else is really kind of up to the general business owner. For example, you can't pay someone below a minimum wage under any circumstances, and you can't engage in what's known as, um, discrimination or treat someone differently based upon a protected category or protected activity. Protected category, meaning something that someone is born with. Um, like their race, their gender, um, national origin. Things like that. You cannot take any action against someone based upon that protected status. And you also can't take any action against an employee based upon a protected activity. So some type of action that an employee might engage in that is protected, for example, making a complaint of harassment or discrimination, making a reasonable accommodation request, or going out on FMLA leave would be easy examples of those kinds of things.

Pete Neubig: [00:05:23] Now there's federal law and then there's state law. Like you said. So when when wherever you are registered your company, you need to look at both of these. Right. You need to look at the federal law. And then you need to look at the state law. Like I'm sure California has some different laws than maybe Texas does in, in with regards to hiring and employment and, and some of that stuff.

Aaron Holt: [00:05:44] Great point. Yes. You you need to pay attention to where the business is located in terms of where are you incorporated. That matters because then you are subject to those employment laws, state or federal. But it also matters in terms of where the employee is located. For example, if you have a remote worker who is based in California, you have to comply with the California employment laws for that employee.

Pete Neubig: [00:06:10] Even if he's working for my company, that's a Texas based company.

Aaron Holt: [00:06:13] Then you're going to have to comply, probably with both. It would not be a defense to paying someone less than the California minimum wage, who lives in California to say, well, we're a Texas company that wouldn't fly.

Pete Neubig: [00:06:24] Got it. What? So what should like most small business owners don't have this background. So what are some resources or what should they. Should they hire like an HR generalist or a specialist to maybe to show them, like to teach them some of these laws. Is there some place they can go? Like what? Like how do I prepare myself? Because typically most of these business owners are just guys that are realtors or investors, and they create a property management firm. And next thing you know, they got ten, 15, 20, 20 team members.

Aaron Holt: [00:06:57] So so what I would say is it depends on where you are in the growth of your business. If you're still starting out and you're still below that 15 threshold, then you can probably manage with what resources are publicly available to most. But the areas that I see a lot of employers kind of run into problems is when they have sustained growth over a period of time, and all of their efforts are focused on maintaining that growth, and they don't necessarily have the employment law or policy compliance that goes with that growth. So, for example, if you went from five employees to ten employees to 20 employees to 50 employees, you might be just dealing with the expansion of your business and not necessarily working on the back end of that. Like you haven't hired an HR dedicated person or a payroll dedicated person to kind of handle all of this. You've been just kind of figuring it out as you go, and then all of a sudden you're in an area of compliance where if you don't have technical compliance, then that's going to result in actual dollars of liability. So those are the people that I would say you really need to think about maybe getting some kind of PEO or HR specific organization that can kind of offload some of that responsibility for you and is still generally acceptable. You can pay lawyers like me to do it, but it is more expensive for us to do it than it would be for a smaller HR specific organization to do it. All that being said, I mean, we're happy to do it, or at least point you in the right direction or point you to companies that can do that for you and cheaper than we can.

Pete Neubig: [00:08:28] So one of the challenges that we had at Empire, and that I talked to people all over the country. Sometimes they're worried to get rid of somebody. And so they hold on to somebody because if they let them go, they're really nervous about the repercussions. If that person can then, you know, file unemployment And then maybe sue them because of, you know, whatever. Like, so what are some mistakes that people do on the on the other side of things, of letting people go?

Aaron Holt: [00:09:05] Whenever you're going to terminate an employee, that's something you want to put some thought into and make sure you have a justified reason for for doing that. And let me kind of explain it in this way. Um, you can terminate an employee for any reason or no reason at all, and that's perfectly legally acceptable. What you can't do is terminate someone for a discriminatory reason. So, for example, if you're my employee and I say I just don't like green shirts, you're fired, right? That's a perfectly legal reason for me to fire you because you have a green shirt on. However, um, proving that is is going to have some problems in court. For example, let's say, you know, you sue me because you think green shirt is a terrible reason to fire someone. Which it is. And then and trial you point out. Well, here's, you know, Frank, Bill and Tom, who also wore green shirts and weren't fired. Now all of a sudden, it looks like my justification for firing you isn't true. And your argument in that lawsuit. Well, the real reason that you fired me was because of my protected status or activity. I just got back from medical leave or my status as a as a male. You just don't like males, for example. So when you are terminating someone, you want to be consistent in the application of your policies and your processes. Because when you boil it down, discrimination at its core is treating someone differently than you would have otherwise done. So you're treating this person differently in this pay or this disciplinary action, or whether or not to grant this accommodation. But if you're applying all of your policies, procedures and practices in your employment consistently across the board, And then you cannot discriminate because you're not treating anyone differently. So when we get a discharge case, that's typically the analysis. Or when I have someone from an employer call me up on the phone and said, hey, here's what's happened. Here's what this person did. Can we fire them? Almost always, the first couple questions that I'm going to ask is about the comparators. So in a similar situation, the last time that you had this situation come up, um, what did you do? For example, if you've got an attendance violation and you want to. I just can't take this person not showing up for work anymore. He's on his third strike. I'm gonna terminate him. Okay. Have you had anyone else who's been on their third strike? What did you do in that situation? Because you're setting a comparator, and when you're on the employee side and you see someone being treated differently than you, then the reaction is, well, there's something else going on here. They just must not like me or my race or my gender, or the fact that I was on medical leave or something like that. They come up with a protected, nefarious reason why the employer is doing what they're doing, and that is where lawyers get involved. And when lawyers get involved, money starts getting thrown around and people's stories get a little shady. So when you're terminating someone, make sure you can prove to a third party neutral why you're doing what you're doing. If the business just needs to make an operational change, that's fine. If there's too many strikes in the disciplinary category, that's fine too. You just need to make sure that you're consistently applying these same policies across your organization.

Pete Neubig: [00:12:16] And so what I'm hearing is the best way to say it is like you are we're letting you go because failure to perform basically. And now do you have to give examples of what that failure to perform is as well? If you're doing a failure to perform.

Aaron Holt: [00:12:32] I think in a termination, what I tell employers is you can't really help your case when you are doing that termination meeting, but you can sure heard it right. So less is more typically in a termination meeting, but you want to have enough information that they understand what is happening and why. Right. And I think that's also fair in terms of respect. You want to show your employees, like if it doesn't work out, people understand that you have to make business decisions. So saying you're terminated for performance and without more doesn't really tell the full story as to what they did. If you say you're being terminated for performance over the last quarter, here's what your metrics have been. And in the last meeting, I said you needed to be here and you wouldn't. Or maybe you're on a performance improvement plan and you had these goals set and you didn't meet these goals, and therefore you're fired. It shouldn't come as a surprise, right? A lot of times when employees are completely floored by the fact that they're being terminated, maybe there hasn't been any type of documentation prior to that as to why they are deficient, why they are in problem, in a, in a place where you want them to improve. And, and that can create some animosity and some visceral reactions that aren't helpful for the business, because then they're going to go talk to a lawyer and see if they can't negotiate some kind of bigger severance, which you don't necessarily want. So a lot of times, and I use this phrase with a lot of different clients, the road to hell is sometimes paved with good intentions, you know. So if you're in a performance meeting or you're evaluating someone and how they've been performing for your business, be honest. Right. You're not doing anyone any favors by saying, well, I'm just going to give you a meets expectations, even though you're not really meeting expectations in the hope that it will improve. Because at the end of the day, if you get far enough down that road and this employee only has meets expectations in their performance reviews and no disciplinary action, and then all of a sudden they're terminated and they don't know why. And you gave them a vague reason, just performance. Then they might have an issue there. And a lawyer looking at that as to whether or not this is a case they want to take, might have a problem with that, um, that timeline as well.

Pete Neubig: [00:14:36] This is why I preach that every role in your organization should have key metrics, right? Key performance indicators. This way you can measure performance through math, not through emotion. And so having those key metrics, if they keep falling short of those key metrics, you now you have your documentation right there. And you also brought up performance improvement plans. Um, should should you do a quarterly or an annual review of of every team member, regardless of how small you are or how big you are? Or should you wait till you get to that 15 or 20 people and then put that in? Because that is a I can tell you, a VPM was only 7 or 8 of us. I don't do it, I don't I have metrics that we look at, and I let my team know every month if they're hitting the metrics or not. But I don't have like a quarterly review or a semi-annual review. Am I am I missing the boat on this one?

Aaron Holt: [00:15:28] No. I think that's more of a business question than a legal one. There's no legal requirement that you have X number of performance reviews every so often, or that you have any particular cadence or frequency to it. Um, what I would say though, is you you want it to happen enough that employees know where they stand, right? I mean, if you're doing it once every five years, then you're not really going to have a whole lot of touch points as to how they're doing. Um, so I think at least once a year is a good idea if you can do it once a quarter. Great. But there's not a legal requirement that you do it, and your administrative burden in managing your employees should not come to the detriment of the business overall, you know? So it really depends upon the size of your business and what works for your organization. Because at the end of the day, you still need to be competitive. If you can't keep the doors open, then there's no point and everybody.

Pete Neubig: [00:16:18] Loses their job.

Aaron Holt: [00:16:19] Right?

Pete Neubig: [00:16:20] So if somebody is having some performance issues, then you do recommend having like creating some kind of PIP plan.

Aaron Holt: [00:16:27] I recommend documenting it however you want to do that. Um, but however you do that, you should be consistent about it. For example, if you haven't ever really documented performance reviews in the past, and all of a sudden you got this one person, now that is a problem and all of a sudden you start doing things differently for this person. That could be a problem too, because you're not being consistent. Right? That one person might have a claim that, hey, you are treating me differently than you've treated anyone else, ever. You can't point to any other performance reviews or any other similar situations.

Pete Neubig: [00:16:58] Typically your good people will leave if they see you bending rules for people who are underperforming because everybody knows who the underperformers are in the business.

Aaron Holt: [00:17:04] Absolutely. And honestly, those are the ones who take most of your time too. The ones who who are the problem? Children take up a majority of your bandwidth, and the people who are your good performers are going to see how much, how different it is for them compared to others. And you're right, they will find other jobs because they are high performers and they can.

Pete Neubig: [00:17:24] When people do sue for, you know, wrongful termination, what are they typically trying to get? Are they trying to get back pay? Are they trying to get their job back? What are exactly is is the reason for the for the lawsuit typically?

Aaron Holt: [00:17:43] That will probably depend upon, I guess, why they're suing and under what law? They are suing because there are different remedies available. Typically, your remedies available for any type of wrongful discharge claim is going to be your back wages. So the difference in wages between what the employee would have made had that discharge not occurred all the way up from their termination, all the way up until the date of trial. Sometimes there's future wages, meaning how much would they have earned in the future after the trial date? Sometimes there can be injunctive relief and reinstatement, meaning this employee now has to come back to to their same job, which creates a lot of practical problems.

Pete Neubig: [00:18:25] Yeah, That's a culture killer right there.

Aaron Holt: [00:18:28] It is especially you know, and just imagine this where you have an employee coming back into a workplace after that person has accused everyone around them of some type of.

Pete Neubig: [00:18:38] Discrimination.

Aaron Holt: [00:18:40] Discriminatory conduct, which you know, there's there's hard feelings in those kind of circumstances. Um, and then there can also be like punitive damages. Um, to, to answer your question, in short, it's almost always about money. Um, I have found and I'm sure you have as well, that people taking responsibility and accountability for their actions is something that we have started to get away from culturally. Now it's, I think, seen more as like a longer form severance negotiation. Um, but it's done in a way that is, you know, well, I'm just going to accuse you of discrimination. And now we can talk about the severance that you offered me.

Pete Neubig: [00:19:18] Right.

Aaron Holt: [00:19:18] As kind of a way to start that.

Pete Neubig: [00:19:19] To get. So I don't you don't want to go to court. And so why don't you? I'm going to extort you for some money to get you to basically get you out of your hair.

Aaron Holt: [00:19:28] In a way. Yeah.

Pete Neubig: [00:19:30] So one of the one when I first started Empire and, um, I had to let somebody go. I was really worried about, um, unemployment and, um, you know, so talk a little bit about unemployment. How does it actually work? Right. Like because I thought I had to pay them, like I thought like when I fired them and they sign up for unemployment and they won. I had like I literally had to pay. But do you know how on unemployment, like, typically works?

Aaron Holt: [00:19:57] So honestly, your PEO is going to be a better person to ask that kind of question. My involvement with unemployment has typically been where someone has threatened a lawsuit or filed a lawsuit. They also file for unemployment. And then it goes to a contested hearing in which the plaintiff will testify. There has been circumstances when I have found out about this hearing in enough time that I can then go to the hearing and then question the plaintiff about their claims in this unemployment hearing, and that is all on the record, and that's testimony, so that you can use, um, and plaintiff's attorneys who find out about that are usually not happy because you get a free bite at the cross-examination apple in those circumstances. But generally speaking, unemployment is going to be something that you pay into over time. When someone needs to use it, they file for unemployment. The employer has an opportunity to fight it or contest it. Generally speaking, if they are terminated for misconduct, then they're not eligible for it. Or if they abandoned their job, then they're not eligible for unemployment. But proving what is or is not misconduct, or whether or not they did or did not abandon their job, is usually one of the points of contention during the unemployment hearing. Yeah.

Pete Neubig: [00:21:09] And then if you do lose and they do get unemployment, you don't have to pay like that. There's actually a percentage of your employment taxes is for unemployment. And so your unemployment percentage might go up a little bit. And so you might over time have to pay a little bit more unemployment taxes. But you don't have to pay. You're not paying the person out of pocket. So that's what happened to me anyway.

Aaron Holt: [00:21:32] So can I go back to your first question? There's something I wanted to mention about what payroll specifically in the opening segment you mentioned. What do employers typically fall into? What are some common common traps? And this topic of unemployment made me think about this. It's honestly like technical payroll compliance at times that people don't get. And what I mean by that specifically is wage and hour compliance. Wage and hour. Recently as of I think July 1st just increased their exempt salary thresholds. Meaning if you have a salary exempt employee, the threshold that you have to pay that person's salary just increased and it's going to increase again in January. This is going to be a total of about a 65% increase from...

Pete Neubig: [00:22:20] Good for VPM Solutions.

Aaron Holt: [00:22:24] It's going to be a huge increase for for a lot of employers. In the show notes, I emailed you some FLSA guides that my firm is putting out both federally and then states. I think the states that I sent you specifically were Texas, Minnesota and California. A summary of their wage and hour laws. I keep that as a as a desk reference guide on my desk whenever I have a quick wage and hour question, but I see that as a common thing that employers get wrong, both in terms of classifying their exempt employees and also in terms of paying their non-exempt hourly employees. What I mean by that is you think of overtime, everyone thinks of overtime as time and a half of whatever your hourly rate is. And that's not true. Um, it's kind of true, but not exactly true. Um, and your hourly rate is, let's say, $10 an hour, but you calculate overtime based on what's known as your regular rate of pay. So your hourly rate plus all other compensation that you get over the workweek. So, for example, let's say you and I have a business and we're FLSA covered and you're a salesman. I pay you $10 an hour. But if you sell 20 widgets, I'm going to give you $100 gift card because you're such a good salesman. So if I do that, then that $100 gift card that you earned needs to be factored into your overtime rate. So it's going to be your hourly rate of pay over that workweek, plus the $100 gift card then times one half. So a lot of people will get the overtime calculation wrong by not including all forms of compensation in their overtime calculation. And we see that a lot, um, whenever I'm asked to do due diligence. So whenever a company is selling to another company, we will get requests. So in terms of wage and hour compliance, it's just much more technical than in terms of discrimination compliance. Because when you're litigating a discrimination complaint, you have to get inside someone's head like, why did you take this action? Is it based upon this reason which is protected, or is it based upon this other reason which might be performance? Or you just weren't meeting our metrics? So there's a subjectivity element to it for wage and hour compliance. It's all technical. It's did you pay this person correctly? Yes or no. Okay.

Pete Neubig: [00:24:48] So in the case of the salesperson, I get paid 10 bucks an hour plus the $100 gift card. So when I get time and a half, they got to take that gift card into consideration as well?

Aaron Holt: [00:24:58] Correct. So the the time period in which that gift card was earned, whether or not it's over a quarter or whether or not it's over a work week or a pay period.

Pete Neubig: [00:25:08] You got to divide that by the week itself or by the hour?

Aaron Holt: [00:25:10] You got to divide it back into the work weeks in which it was earned, whatever that is. Which is why bonuses, commissions, when you when you get into these type of alternative pay arrangements for your non-exempt employees, your hourly employees, a lot of employers just don't think about that. They think time and a half is just, you know, time and a half of whatever their hourly rate is. And that's not true. It's all forms of compensation that are tied to the quality or the quantity of the work that is being performed. So if you just want to say, hey, we love all of our employees and as an appreciation, here's a pizza party. Or here's a $100 gift card for everybody that they don't come to rely upon. That's just different. That's just a gift that you give to your employees. It's not tied to the quality or quantity of work. If you incentivize performance in their job, if you hit these brackets, then you get this financial compensation, then that is, um, supposed to be included in the regular rate of pay.

Pete Neubig: [00:26:06] Now, I remember when I first started working, um, I was is it non-exempt where I, they could, I would work 60, 70 hours and I'd get paid my 40?

Aaron Holt: [00:26:15] That's exempt.

Pete Neubig: [00:26:16] That's exempt. All right.

Aaron Holt: [00:26:17] Exempt is it doesn't matter how many hours you work. This is what your salary is. It's fixed. Um, but there are two, two tests for exempt status. One is are they paid a sufficient salary? And two, are the duties that they are performing exempt duties. And this depends on what type of exemption this salary person is. So for example, if you are um executive exempt, then you've got to be managing at least two or more people as a subset of the business. If you are administrative exempt, then your duties need to be you have to have independence and discretion on matters of significance. You can't just be, um, doing manual labor out in the yard. That's not exempt work. You have to be, um, like for example, a purchasing agent, someone who is making decision about what the business needs to buy in order to continue functioning. If they have the ability to make those decisions on their own, then that can be administratively exempt work. But it really just depends upon what the nature of the job is. What does the job require, and are you paying it correctly? And that's that's why these wage and hour cases can be so difficult is because they're very formulaic. The intent to get it right doesn't matter.

Pete Neubig: [00:27:37] All I know is Memorial Sisters of Health, charity plans or whatever I worked for when I first came down here, they got a great deal. They were paying about $40,000 a year, and I was putting about 89 hours a week in. They got a hell of a deal from me. All right, so we are in 2024, and there's this thing called DEI. All of a sudden all over the place. Are are do we as small business owners typically... Because I know the big businesses they got to worry about this stuff. Do we have to worry about like do we have to have certain diversity in our 15 people that we are hiring or anything like that? Like, are there are there federal laws that we have to abide by that we actually have, like we're forced to hire, um, diversity and inclusion and all that good stuff? Or how does that work?

Aaron Holt: [00:28:22] So let me let me kind of unpack this a little bit. And full disclosure, I am part of the DEI initiative at my law firm, which I don't remember if we said it or not, but it's Cozen O'Connor. It's a Philadelphia based law firm. So to answer your question directly, you should make a decision, a hiring decision for your business that's in the best interest of the business. You should make these decisions irrespective of someone's protected activity or protected status, meaning you should always try to hire the best qualified person. Um, promoting diversity, I think is a noble concept and something that I do think makes a better culture and a better organization. But putting your thumb on the scale of your employment decisions in service of the concept of diversity can have negative consequences because at its core, discrimination is treating someone differently because of their race, religion, national origin, their protected status. So if you are making hiring or firing decisions based upon someone's race, even if it is in the service of diversity, then you are still discriminating against that person. And that is what the Supreme Court's recent decision in the Harvard and UNC admission cases, I think, really brings to the forefront. And just to kind of shed some light on on what happened in those cases, what Harvard and University of North Carolina were doing with their admissions is they were, adding a simple binary like plus or minus to an application based upon their race. So, for example, if you were Asian American, that was a negative to getting into UNC or to Harvard. If you are African American, that was a plus. And they did this in service of the concept of diversity. And what the Supreme Court essentially said is, look, that's discrimination. You cannot do it that way. You cannot have if you are black plus one, if you are Asian American, minus two or whatever they were were doing.

Pete Neubig: [00:30:30] You're discriminating against Asian people at that point in this example.

Aaron Holt: [00:30:34] Exactly. And in practice. And that's what was in fact happening. And what the Supreme Court said is, look, you can consider race in your admissions, but you can't consider it as a binary plus minus metric. So, for example, if you overcame diversity in the course of your life and that framed who you are as a person and you want to put that in your college admission application to tell them...

Pete Neubig: [00:31:02] Story, tell your story.

Aaron Holt: [00:31:03] Who you are and how you got here, and how this life experience that you had shaped who you are and how you overcame it. Absolutely. And that can be considered even though it is race based in admissions. But that is different than a simple plus minus based upon...

Pete Neubig: [00:31:21] Or whatever...

Aaron Holt: [00:31:21] Race, um, algorithm you happen to hit. Right. So that is kind of what the Supreme Court said. And every employer across the country with DEI initiatives is internalizing that and figuring out, how do you do this? How do you have a women's affinity group, for example, that doesn't violate the Harvard and UNC, um, kind of case dictates. And so so what I would say is diversity is a good thing, but you really need to think hard about whether or not you are making any type of employment law decisions because of race, right? Even if it and it works both ways.

Pete Neubig: [00:31:56] Right. Even if you're like, well, let's hire this person because they're, you know, black or Hispanic or whatever, and you don't hire the white person that is actually... You're still not hiring based on race.

Aaron Holt: [00:32:10] Yes. You're still choosing race or making an employment decision based on race. So I do I do a presentation for a lot of employers, and it talks about social media and hiring. And should you consider social media in hiring. And my I'll give you the the elevator pitch version of this.

Pete Neubig: [00:32:26] All right.

Aaron Holt: [00:32:27] My personal opinion is that, no, you shouldn't. Because social media is user-controlled content, meaning what you see on LinkedIn or Facebook or wherever.

Pete Neubig: [00:32:35] Just what they want you to see. It's what they.

Aaron Holt: [00:32:36] They want you to see. There's no there's no fact checking to it. It might or may not be true. And two, when you look at someone's social media as a screening test, you also see a lot of protected activity and status that you wouldn't have otherwise seen. Um, so, for example, you might see that this person belongs to a particular religious group, or you might see their race or their gender, or maybe they talk.

Pete Neubig: [00:32:58] So you don't you don't recommend that we look at social media when we're looking at applicants?

Aaron Holt: [00:33:03] I do not I tell my, my clients that you should not look at that because the juice isn't worth the squeeze. Frankly, the information that you're getting isn't reliable enough to then all of a sudden have to say, yes, I knew about all these protected things, but I didn't consider them because then you still have to get the judge and the jury into your mentality and get them to believe what you're saying. It's just a whole lot easier for you to say. I had no idea of any of that stuff. I did.

Pete Neubig: [00:33:28] Our policy is we don't look at social media, and so we didn't look at social media.

Aaron Holt: [00:33:32] I just didn't know that this person was this religious denomination. I had no reason to know that.

Pete Neubig: [00:33:37] Right.

Aaron Holt: [00:33:37] If it's on their Facebook, I'll just take your word for it. Um, I would also say that there are some if you're an employer and you come to me and say, look, I just really need a Facebook screening people. It's part of how I've always done it and I really want to do it. How can I make it legal? I mean, there are ways that you can make it legal, but what I would say is you need to compartmentalize the person that does the social media screening from the person who's actually making the decision.

Pete Neubig: [00:34:00] Got it.

Aaron Holt: [00:34:01] What is job related on their social media that you're looking for? And then you have whoever is screening it, look for that job related information and then pass along only the job related information to the person who's making the decision.

Pete Neubig: [00:34:14] We do that a lot in our industry because we do that for leasing, right? So the person who actually gets all the information typically is not the same person that makes the decision. Typically, if you're in a smaller firm, it can be, but they just get all the information. And then we're looking at like a scorecard.

Aaron Holt: [00:34:31] Right.

Pete Neubig: [00:34:31] And if it hits the scorecard great they're in. If it doesn't it doesn't.

Aaron Holt: [00:34:34] And the same thing with employment law is because that's those are the only things that should matter to what you're making a decision on. If you can articulate why you need to look on this person's social media and what you are looking for and how it relates to this job, then by all means consider it. But if you can't, then you really need to think twice about whether or not you really should be doing that in the first place.

Pete Neubig: [00:34:54] Got it? Man, you are a wealth of knowledge. We could talk all day, but we're going to take a quick commercial break and then Aaron Holt goes into the lightning round. We'll be right back, everybody.

Pete Neubig: [00:35:06] All right, we're back to the lightning round. Are you ready? Are you ready, counselor?

Aaron Holt: [00:35:12] I'm ready.

Pete Neubig: [00:35:13] All right. Um, does pineapple belong on pizza?

Aaron Holt: [00:35:17] Yes.

Pete Neubig: [00:35:18] We are no longer neighbors. What was your first job?

Aaron Holt: [00:35:22] I was a busboy at an Indian food restaurant when I was 14.

Pete Neubig: [00:35:26] Oh, see, they didn't use DEI to hire you back.

Aaron Holt: [00:35:29] They used cash under the table.

Pete Neubig: [00:35:33] If you decide to go out drinking one night and you drink too much the next day, you want to maybe hit some fast food. What's your go-to fast food restaurant?

Aaron Holt: [00:35:43] I like the Chick-fil-A chicken minis, the ones with like the sweet roll and the chicken nugget inside.

Pete Neubig: [00:35:50] You can't go wrong with Chick-fil-A.

Aaron Holt: [00:35:52] Those are breakfast tacos.

Pete Neubig: [00:35:53] You can't go wrong with Chick-fil-A. What's your ideal vacation?

Aaron Holt: [00:35:57] Some type of adventure. Going someplace...

Pete Neubig: [00:36:01] Like Peru hiking the Inca Trail?

Aaron Holt: [00:36:03] Yeah, yeah, something like that. Yeah. I mean, uh, I've been backpacking. Um, we went to, uh, Mexico City recently just to see, like, the monarch butterfly migration.

Pete Neubig: [00:36:14] That's pretty cool.

Aaron Holt: [00:36:14] I think travel is one of the the few ways in which you can, um, see different cultures and perspectives and places, And that's how I choose to spend my money.

Pete Neubig: [00:36:25] What is one thing most people don't know about you?

Aaron Holt: [00:36:30] I'm from Alaska, and for most of my life my shoe size was bigger than my age. I guess not. Most of my life now, but I mean all the way up. I have a size 16 shoe, so I say most of my life, but that was true until it wasn't.

Pete Neubig: [00:36:50] For the first few years anyway.

Aaron Holt: [00:36:54] Right.

Pete Neubig: [00:36:54] Um, what is, um, what is one success you've had in life?

Aaron Holt: [00:37:00] I picked a good wife. I made the right call with my spouse.

Pete Neubig: [00:37:05] If you could have dinner with anyone alive, who would it be?

Aaron Holt: [00:37:09] Anyone alive?

Pete Neubig: [00:37:10] Yeah. That's why. This way I get you out of Jesus or Muhammad like that. That's everybody's go-to. So it's somebody alive?

Aaron Holt: [00:37:16] I would probably say Dave Chappelle.

Pete Neubig: [00:37:19] That's a great one.

Aaron Holt: [00:37:21] He would have a lot to say.

Pete Neubig: [00:37:22] I think you would have a lot to say. And you might. You might get a little weed action with them. Um. What Disney character? I know you have two girls. So what Disney character do you most associate with?

Aaron Holt: [00:37:36] Uh, the the female from, um, Encanto. Um, who sings?

Pete Neubig: [00:37:45] You can tell he's got two young girls and he's getting deep into it.

Aaron Holt: [00:37:48] The Under pressure song. I think it's Luisa. I think that's her name. She's the big, strong one who, you know, has everything big.

Pete Neubig: [00:37:54] With big feet. She's got the big feet, for sure. Yeah.

Aaron Holt: [00:37:58] She sings a song that's just perfect. It's under pressure. It's all about, like, burdening yourself with everything in life. Because you're. You're strong enough and you can essentially deal with it, but it's still, you know, kind of cracking her.

Pete Neubig: [00:38:09] That's pretty cool. All right. Um. All right, let's do one more here. What is a book or a podcast that you would recommend.

Aaron Holt: [00:38:17] This one.

Pete Neubig: [00:38:18] Other than this one? Nice try.

Aaron Holt: [00:38:20] I feel like it's an easy layup. Um, for recreational reading. Uh, I have always had as a pocket pick, Steven Pressfield's The Gates of Fire. It's a story of the Battle of Thermopylae. Um, it's told from a first person fictional perspective. It's a great, easy read. Um, and it's not as well known as, um, a bunch of other books, but I've. I've really enjoyed that one.

Pete Neubig: [00:38:46] All right. And then what do you prefer, dogs or cats?

Aaron Holt: [00:38:48] Dogs all the way.

Pete Neubig: [00:38:49] Dogs all the way. All right. If, uh, if somebody was, uh, having a hard time with an employee and they maybe want to hire you or get in touch with you in some way, what's the best way to get in touch with you?

Aaron Holt: [00:39:01] Um, you can reach out to me, probably via email aholt@cozen, my direct office line is (832) 214-3961. My law firm is Cozen O'Connor. The name is Aaron Holt. You could just Google me. Um, we do a lot of webinars that are free for anyone. You can just email me, ask to be put on our marketing list. And then whenever we do a webinar, we will send you an email with free registration, and then you get a chance to kind of dive into whatever is the legal topic of the month.

Pete Neubig: [00:39:31] And it's aholt, H-O-L-T @Cozen. Can you spell that for everybody?

Aaron Holt: [00:39:34] C-O-Z, as in zed ,E-N.com.

Pete Neubig: [00:39:38] cozen.com. And if you are listening to this and you're not a NARPM member, join NARPM now. Go to narpm.org or give them a call at (800) 782-3452. And if instead of hiring US based people you want to hire contractors remotely, go to vpm.solutions.com. I think we're over 35,000 profiles in 120 countries right now looking for work for US based companies. And you can or you can email me directly at pete@vpm.solutions.com. Aaron, thanks so much for being here today, brother.

Aaron Holt: [00:40:14] Anytime. Thanks for having me.

Pete Neubig: [00:40:15] All right everybody. We'll see y'all.