Join Miriam and Tom as they welcome their first guest, John Bagyi. His experience and ability to connect with Human Resources professionals over the years have made him one of the most sought-after legal experts in Upstate New York. Listen in as we talk about a few do’s and don’ts, and a great employment story from one of the very best storytellers.
Recognized as one of the 500 Leading U.S. Corporate Employment Lawyers by Lawdragon, John counsels and represents employers on labor and employment issues helping them achieve and maintain legal compliance while improving employee engagement and workplace productivity. John has served as a guest lecturer at Albany Law School, the University at Albany, and the Lally School of Business at RPI and is a frequent speaker at national, regional, and state conferences, including the National SHRM Conference. He also serves as the General Counsel to the New York State Society of Human Resource Management.
John has been recognized by Human Resource Executive magazine as one of 200 of the Nation’s Most Powerful Employment Attorneys and is AV Preeminent Rated by Martindale-Hubbell. He is also listed in New York Super Lawyers and has been listed in The Best Lawyers in America for labor and employment law since 2007, when he was the youngest attorney in New York State to be recognized. Most recently, The Best Lawyers in America named John the 2022 Albany Labor Law – Management "Lawyer of the Year.”
Deep Work by Cal Newport
Essentialism: The Disciplined Pursuit of Less by Greg McKeown
John Bagyi, Esq., SPHR, SHRM-SCP
Voiceover Intro: Welcome to HR in the car with Miriam Dushane and Tom Schin of Alaant workforce solutions where exciting HR Professionals and business leaders share laughter, insider stories and maybe even a few tears about HR in today's world. Buckle up for the best 20 minutes of your week.
Miriam: So, Tom, do you know one of my favorite public speakers here in the capital region when talks about HR stuff is. You know who that is?
Tom: I think I do. Tell me.
Miriam: It's John Bagyi.
Tom: Absolutely. 100% agree.
Miriam: I mean, I try to make sure I go to every event he has locally and maybe even not locally. He's talked at Sure National. And he's all over the place. But he is one of the most lively speakers. I mean, he runs across the stage when he's talking and the stories that he puts with all of the examples of all the things that could scare us as an employer but also help us as an employer. I just I never miss a time to talk to him. So I'm so excited that we have him today.
Tom: Well, and listening to some of his stories, it reminds me of those in person presentations. You're always left laughing, not in a mean way, but you hear the stories and you're like, I can't believe this is true, but I know that it is.
Miriam: Absolutely. And almost sometimes it's like, Oh, okay, there is something worse that could happen to me or my business. So yeah, I want everybody to listen really carefully because there is an amazing story towards the end that he talks about that would be in his book if he ever wrote one one day.
Tom: Oh, that was hysterical. I can't wait to share.
Miriam: Welcome, John. Thank you so much for joining us today. John is an attorney at Bond, Schoeneck & King and is based here in Albany, New York. Many people will have seen him or heard him speak at local and national events related to human resources and employment law. So, John, thanks so much for joining us today.
John: Thank you for having me.
Miriam: So, John, I'll start with the first question. We know you're an employment attorney, but if you're in a cocktail event, not maybe a business related thing, but more of a social thing, how would you describe what you do as your job to other people?
John: Well, in a nutshell, I would generally say almost exactly what you just said. I'm a management side, labor and employment lawyer. That usually gets me a somewhat perplexed look. And then I explain that I help employers achieve and maintain legal compliance by counseling them, advising them, representing them in litigation pretty much the full gamut of labor and employment law.
Miriam: So another thing about that is when you say the management side, explain what that means to people who might not actually know what that means.
John: Sure. Absolutely. Our firm doesn't represent individuals. It only represents employers. And that's been a practice of ours for some time, just because it would create potential conflicts. And candidly, it is, I think, best for our practice that we do not, you know, straddle the line between representing individuals and representing employers. So we only represent employers in labor employment matters.
Tom: That's fantastic, John. One of the things that popped into my mind as you were answering that with the cocktail theme, as far as being at an event, there's going to be a follow up question where somebody has that glassy eyed look on their face, like, what did you just say to me? What is that most common question that people ask you after you tell them exactly what you just said to us?
John: Generally, the question I get most is, So what exactly does that mean? And I said, So if if somebody sues their employer, I represent their employer and also advise clients on labor relations matters, which means issues involving unions as well as just day to day compliance issues. You know, if someone needs an accommodation or if somebody is going to be disciplined or terminated and it's complicated, that's the type of advice I provide employers.
Tom: Perfect. Perfect. Our next question really revolves around trends in the industry, things that I know. I've seen you speak many times, many of our listeners have as well. Miriam has as well. The trends that you're seeing right now, things that people might want to know about to save them money in the long run. Obviously, you're you're an expert in that field as preventative maintenance in some regard. What are the most common trends that you're seeing right now on your side that people should be aware of?
John: Well, it's it's an interesting time. I mean, trends used to pre-COVID go last months and develop over months. And over the last two years, trends change from one week to the next. I can't tell you how many weeks I started on Monday thinking I'm going to be doing X and by 915 on Monday morning, I realize the week has taken a completely different turn. So trends change on a daily basis, but I will say sort of at a high level, a trend that I see developing, and it's not COVID related at all. And that's why I think it's more of a long term trend is the changing landscape in the harassment area. You know, previously employees had to show that they were exposed to severe and pervasive harassment based on protected status. Now, as a result of a change in the New York human rights law, all the employee has to establish is that they were treated less well. And I'm doing air quotes around that relative to their protected status. So we went from severe and pervasive harassment, which one of the courts, the Seventh Circuit, referred to as the hellish standard that is that an employee has to establish that they were subjected to a hellish work environment and now employees merely need to prove that they were treated less well. The other thing that complicates this or magnifies this trend is that the Division of Human Rights is issuing probable cause determinations routinely, sometimes based on just a single comment that is related to someone's protected status. So, for example, there was a case involving a employee who another employee referred to as ghetto, and that alone was the basis for finding probable cause for harassment under the old standard that never would have come anywhere close. And now we're finding probable cause determinations being issued commonly. And then in addition to that, the division, human rights has made it more difficult to settle cases. So we're finding more of these cases being filed, more of these cases probable cause being issued on them, and then they're actually going to a hearing as opposed to being either dismissed or settled. So it's I think it's only a matter of time before employees catch on to this. And we're going to see even more complaints being filed based on rather. They are discrete issues that arise in the workplace. So I will say the take away for that from my perspective is something I preached for years but takes on a greater importance now is training and education. And unfortunately, I think because of the requirement that every private sector employer do harassment training every year, a lot of employers have turned to sort of a check the box training because they have to get it done every year. Every employee has to go through it, new hires have to go through it. But in order to educate employees, supervisors, managers on this, what I would refer to as a seismic shift in what constitutes harassment, that training is going to have to be meaningful and it's going to have to be conducted in such a manner that you're actually getting through to these individuals about how very different the landscape has changed and what that means for the corporation as well as potentially for them.
Miriam: Sure. I mean, with the harassment training, I agree with you. I work with employers every day that are checking that box off. What would you suggest to an employer that is worried that they're just checking the box off? I've heard things like perhaps you don't always do that online, quote unquote. I'm using my air quotes, easy training where it's, you know, whenever your cycle is beginning of the year, whatever employee logs on and goes through a series of interactive web online training. I've heard suggestions where you mix it up every year and perhaps one year it's an online training, another year it might be in-person. With a paid professional leading the training, what would you recommend to employers to make sure that they're not just going through the motions and that people are actually, one, taking this seriously? Because it is important. It's important not only to the business, but frankly, if the business doesn't exist, the livelihood of all of those employees is in danger as well. And I don't think employees think that way.
John: Yeah, absolutely. Well, I basically recommend what you just suggested, Miriam, and that is a combination. I mean, I'm very conscious of the fact that in-person training can be expensive and that it's not realistic that it's going to be in person every year. I will say I have some clients that I do their harassment training for them every year in person. I would say more commonly our clients have a combination where they use a web based tool and we have one that we've developed for new hires, and then every other year we do in-person and then they use the web based training. In the off years, you know, I've done for the last two years, even my my quote unquote, in-person training was being done virtually via Zoom. Sure. And so I completely switched up our approach where, you know, I was doing polling, you know, where we ask employees to, you know, answer poll questions. And I think the key is really that you just can't pull out the same training every year, that you can just, you know, have people answering questions at the end and thinking they learned something. I'll give you a good example. I did. And this is going back years before the training was required. I did this training for a client who had done web based training for years. They had one issue pop up that concerned them. So they wanted me to train all of their their staff. And I went into the first training with the HR person saying, you know, they know this stuff. So, you know, there probably shouldn't be any pushback. You know, they may not even have many questions. And it was anything but like I walked into this room and it was like these people were hearing this for the first time, you know, starting with what crazy liberal president signed this into law. So it was really it was that, you know, referring to the Civil Rights Act in 1964. And so it was but it was that much of a news flash to them. And it was just a difference in approach. And I think when you just keep using the same thing over and over again, it loses its effectiveness. And when we're seeing the trend that I just described, that could be very dangerous.
Tom: Well, I'm interested to think about this scenario that's going to scare employers, and I hate to say that, but what's going to scare them most to do what they need to do, which is to follow up on this training and education moment to protect themselves. So what's the what's the worst case scenario that they're running into? For example, you had your air, quote, ghetto comment. What are they looking at?
John: Well, I mean, I guess the best case scenario is that they get a division, human rights complaint and they have to defend it. And as I just said, it's very likely it's not going to be dismissed quickly. So you're talking about legal expenses, which, you know, vary from case to case, but it's easily 5 to $10,000 to respond to this. And then, you know, if you try to resolve it, you're talking about additional costs potentially in terms of some form of payment for damages to the employee. Although I will say we do need to bear in mind that even though they're finding probable cause for the use of just one word, the employee is going to have a hard time establishing significant damages from just one word. Right. But with the cost associated with defending this, and candidly, is when my clients remind. Me frequently. It's not just the dollar value cost. It's also the time that this is consuming when the business is, you know, busy and folks need to worry about recruiting and staffing and all the other employees. And this is a time suck, but the worst case scenario would be you go to a hearing and there's a finding against you that becomes a matter of public record for one, and you could potentially be have to pay damages to the employee.
Miriam: I think the public record piece of it is something I would highlight in addition to the dollars and cents, because that's that's so critically important these days with everyone worrying about employment brands and their reputation on, you know, social media and Google and all of those types of things. It could definitely harm their business, both from that dollars and cents, like immediate pain in addition to potentially future pain if it's not perceived in the right light. And people get a sour taste in their mouth about that organization and what they are as an employer.
Tom: Especially when you think about how we tell folks constantly in our blog and in our email campaigns that we send out to folks about the importance of transparency and saying that we're going to do this and following through on those actions. And something like this comes out and it goes a completely against it. Now, you've just destroyed all that work, all that effort.
John: Well, and one other thing along those same lines, I was saying there changes in the way the division human rights are handling these. I referenced the difficulty in settling these cases because one of the things that employers do in order to protect their brand and their reputation is they often try to resolve these matters with confidentiality agreements and in place. And the division Human Rights has recently changed its direction with regard to parties being able to enter into an agreement. So an employer entering an agreement with an employee whereby they discontinue their division, Human Rights complaint and no one talks about it. We used to be able to go in and just go on the record and say, you know, the employee wants to withdraw their complaint. Now the division makes the employee go on the record and explain why they're withdrawing their complaint, which would involve disclosure of the confidant. What we would like to be a confidential settlement.
Tom: So many different directions that can go. John, one of the things that we like to do on our show here is talk about some of our questions of the week. We have these that we proposed that we put out every week and they're usually yes, no or option one, two or three that come into the answer stream and we get a decent following. Usually probably about 100 people will answer any given weekly question. One of the ones we had recently up was about doing Google searches on job applicants. Curious about your response and when you hear about employers Googling or hiring managers Googling a candidate or worse, an employee and what they're doing in their non-work time.
John: Yeah. So I'll start with this and I think people are surprised when I say this sometimes, but I would expect that most hiring managers would want to Google a candidate and to find the wealth of information potentially that's out there relative to that candidate. And I can tell you that I had one client years ago who hired someone in a very high profile position, an executive level position, and no one Googled that individual during the hiring process. When the individual was hired and started work, guess who did Google him quickly? The employees. Sure. And very quickly discovered some rather shocking and troubling information about this individual that likely would have resulted in him being screened out had it been discovered during the hiring process and it would have been lawful to screen him out on this basis. An inquisitive manager should want to do this, and there's also potential value to doing this. That said, I do not want hiring managers Googling candidates or accessing social media of candidates beyond LinkedIn. I'll carve Linkedin out instead. This should be done by HR With only relevant non-protected information shared with the hiring manager. Because if you access my facebook profile and it's pretty locked down, but there's still elements of it that's still accessible, you're going to know my race. You're going to know my national origin, you'll be able to figure out my age, etc. I mean, there's all sorts of protected information that you can find that hiring managers should not have access to. And hiring managers often say, but that could come up during the interview. I'm like, It could, but you can't ask about it during an interview. And I'd suggest that when you Google somebody and then start poking around their, quote unquote personal information on the Web, that's the equivalent of asking a question you shouldn't be asking. Right? It's not the same as an unsolicited disclosure by a candidate. So I recommend that employers that want to do this develop a policy with regard to social media background checks, for example, or at a minimum, instruct hiring managers not to access a candidate's social media as part of the hiring process. If there's a reason that social media should be accessed, they should loop in If we're going to do this as a matter of course, we absolutely need to have a policy. And then the other alternative is that instead of HR conducting this, you could have a third party do the social media background check. I do have a couple of clients that do that. But you do have to be mindful that the Fair Credit Reporting Act applies. So there has to be disclosure and consent before that occurs?
Miriam: Absolutely. I feel like this comes down into the category of training managers on actual legal hiring practices and interview practices. I find a lot of the clients that we work with a little bit lacking in this area, they don't put as much focus on actually preparing and training their managers who are then interviewing candidates or potentially doing Google searches. What do you recommend for an organization? I mean, obviously, the policy I mean, we sing this from the rooftops. I feel like a lot of times and we follow the practice of using a third party so that we're doing it legally and lawfully from that perspective. But, you know, talk to us just a tiny bit about training and managers, like if you were to just crash course checklists to an HR person, what are the three things or four things that you would want to make sure that they are telling their hiring managers and are training their hiring managers on who might be doing the interaction with potential job candidates.
John: Yeah, great question. And I will say that, you know, I've done some of this training for clients largely or mostly large employers that have a lot of the hiring pushed down to hiring managers because HR can't do all of it. And so there are a couple of things that I think hiring managers need to be informed of. One, and this may seem basic, but I think you need to tell hiring managers what they don't need to worry about. Right. That they shouldn't be going into questions about criminal convictions or the need for reasonable accommodation, things of that sort, because that needs to be handled by HR But until the hiring manager knows that HR has that covered, sometimes they feel they need to venture down that road, which we don't want them doing. Second, I think you need to advise them that there are rules about hiring and that while it might be straightforward or they might understand that you can't ask an employee or partnering a candidate how old they are. You also can ask questions that indirectly reveal protected status. So, for example, what year did you graduate from high school? Now you seem like, why would anybody do that? Well, candidly, one of the ways that supervisors often are hiring managers get tripped up is that they try to engage the candidate in conversation and they forget that this conversation has all sorts of rules to it. Right. So they could be trying to reach a connection with the person, right? Oh, you went to that high school? I would do that. High school to what year did you graduate? And ding, ding, ding. You just violated the New York human rights law. And so I think it's important to give them concrete examples of inquiries that are prohibited because they would indirectly reveal protected status. And really, those two things, it really come down to awareness. I like to give hiring managers a list like these are the protected statuses, and here are some examples of questions that may indirectly reveal protected status that you shouldn't ask. And then I'd say the third thing, Miriam, is that I strongly advise that hiring managers should be taught to not ask questions that have no bearing on the appropriateness of a candidate for the position. A lot of times hiring managers are trying so hard to develop this like personal connection that they start going so far afield from asking questions that are designed to determine if someone's a a good hire for a specific position. So just making them aware that you need to be mindful of the questions that you're asking and that when taken out of context, they can raise some real concerns.
Miriam: I have a funny story. I was overhearing an interview that my husband was on and my husband didn't speak during the interview. He was eventually hired for the job, but I was laughing in the other room when I was listening to his manager interview him. Air quotes again because he did an interview. He literally talked the entire time and my husband barely got a word in edgewise to like, kind of show. He was qualified for the position and he was a good guy. It was the most bizarre. And we're talking this is like a national company. My husband's like, Well, how'd I do? And I was like, You didn't talk. You did an interview. Like, I'm literally sitting here blown away right now. So it's a really good point that you definitely need to managers need to be trained on how to do this the right way because it can go a lot of different directions really fast.
Tom: Now, the ones that I worry about most are those small businesses 25, 40 people, 60 people don't have an HR presence. They don't have somebody who has that HR Knowledge or even knows that that and for me, it's like you think about what you know and what you don't know and this falls into that. What you don't know, you don't know for those small businesses and all the headaches and troubles that can be stumbling into so this is great insight for all of them. So, John, I want to go off script here. One of the questions that has popped into my head is Miriam was saying she had a funny story. I know a lot of HR folks talk about writing a book, having their own stories written in in terms of the odd things that they have had happen or seen or witnessed. I'm just curious, from your standpoint, what's the first story you're starting with?
John: Oh, there are so many. I'll tell you one that stands out because it goes back a few years where they had a client had an employee who did not report to work and when they finally made contact with her, she requested FMLA to care for her husband. And what we ended up learning is that the reason she didn't report to work is that she was in jail. And the reason she was in jail is because she stabbed her husband.
Miriam: Well, there you go.
John: And she was seeking leave to care for the husband that she stabbed. Now, mind you, she may have been eligible, but for the fact that she had lied to us about the reason for her absence and in fact, had been in jail, and as a result, she was terminated because she had lied about the reason why she had been absent.
Miriam: But I got to say, I actually give her a lot of points for creativity on that one. So in closing, we always are curious about how people stay educated and stay on top of things. Is there any good HR article or book or podcast that comes to mind that you either are a regular subscriber of or just something that you've come in contact with more recently that you might recommend to others, especially, obviously, people in the HR and business owner circles.
John: I'd answer this in a way you're probably not expecting. I pre-COVID, listened to so many podcasts. I was constantly reading HR related books. But, you know, candidly, I the last two years have just been so intense that during my downtime, you know, I obviously read all the periodicals every morning that come out regarding legal developments. But in my downtime, I candidly steer clear.
Miriam: I love that answer.
John: Reading those books. But I will say there are two books that are, you know, business related, also time management related that I'd highly recommend. One is very popular. I know Essentialism by Greg McEwan. I describe it to people as the art of saying no, because people feel, especially young professionals, feel the need to say yes to everything. And I think it is really important to learn how to draw appropriate boundaries so that you can maintain a healthy lifestyle. And then the other one goes in the exact opposite direction. And that's Deep Work by Cal Newport. It's an awesome book about how to manage your schedule so as to find time to do the deep work, the creative work that candidly is sort of like the pinnacle of the work that learning professionals do. I will tell you candidly, I haven't had much time for deep work in the last two years, but I aspire to some day to get back to it and deep work. It's great. I quote it to people all the time, so those would be the two recommendations I'd give.
Tom: That's awesome. I love the Greg McEwan book. I enjoyed essentialism very much. One last piece that we like to throw in here a lot is very much about sharing many of the organizations we support in the community. Are there any particular causes that you want to give sort of a shout out or prompt to locally or nationally that you love to support and why?
John: It's very interesting that we're doing this today because my daughter Kennedy was diagnosed with a severe peanut allergy 12 years ago today. Wow. And so the Food Allergy Research and Education Group, which is a national organization, it's very important to us and something we support because, you know, when we got that diagnosis and she was three at the time, we were thrown into a panic and didn't know anything and didn't know where to get information. And, you know, you're just so nervous a nd the Food Allergy Research and Education Group has so much great information available. And now we've found, you know, we've got a great doctor at Mass General. And candidly, she hasn't had a single allergic reaction in the 12 years since she's been diagnosed. But it's a great resource to those who have to deal with food allergy issues. And so it has a special place in our heart.
Miriam: Absolutely. Well, we'll definitely include the link to that organization so people can learn more about it if they're interested. Just the fact, like you said, you know, where do you go? How do you find out information? And I wanted to knock on wood, but I don't think the producer would let me do that because it would make too much noise on the allergy thing. My daughter's is a type one diabetic and we got through her entire K-through-12 education without one incident. So having those support systems in place is super, super important. So, John, thank you so much for your time today. I always make sure that when you were speaking. Locally. If I can get there, I get there because you are incredibly informative, educational and quite frankly very much fun to listen to because your stories are fantastic and you do it in such a way where you protect the innocent and the guilty by, you know, telling your stories in such a way where people can really see real world application without incriminating anyone. So I just want to thank you so much for your time today. We really appreciate it. Wish you well. And hopefully, you know, things will settle down a little bit. Yeah, right. When it comes to workload, because I feel the same way you do, my friend. And the recruitment side is, you know, I'll trade you. I'm sure. Fun and legal words that don't go together.
Tom: Well, that was fantastic. I love listening to John. It was exciting to hear the stories that he had around the stabbing incident. Can you imagine that happening or hearing that from a customer or any scenario like that?
Miriam: Well, like I said during our discussion, I mean, hey, points for creativity on that one because I've never encountered a situation which could you just imagine? Oh, look, there she is in a police blotter. Maybe that's why she didn't come to work today. It's not that her husband was sick.
Tom: I would be thrilled to be a fly on the wall in his room to hear all the other stories he has that he would put in this book.
Miriam: I can't even imagine it. I mean, I know obviously in our business we have tons of recruiting stories of just silly things and dumb things that people say or do. But yeah, a stabbing, I think is going to have to be the cherry on top of the cake.
Tom: That's fantastic. Well, for all of you listening in today, we appreciate you and you can find information about our guests today and in the future by visiting us on Alaant.com. Thanks so much for joining us. We look forward to speaking with you soon.