Rebel HR Podcast: Life and Work on Your Terms

Navigating Legal Landscapes in HR with Laura Folkerts

Kyle Roed, The HR Guy Season 5 Episode 224

Send us a text

Unlock the secrets to mastering employment law with Laura Folkerts, a seasoned attorney from Shuttleworth and Ingersoll. Get ready to arm yourself with knowledge as Laura guides us through the maze of HR risks and the importance of keeping up with ever-changing legal landscapes, especially for businesses operating in multiple states. Learn when to seek expert advice to sidestep costly pitfalls, particularly when making critical termination decisions. Laura shares how staying well-informed and adaptable can help you navigate this complex field with confidence, ensuring compliance while minimizing fears of unforeseen risks.

Brace yourself for an intriguing exploration of restrictive covenants that could reshape your business strategies. Discover why non-solicitation agreements might hold more value than non-competes in today's employment world, and how recent regulatory shifts could impact your organization. With a touch of humor, Laura also provides a glimpse into an upcoming seminar where you'll find the latest legal discussions. Join us for this compelling conversation that equips you with practical insights and leaves you ahead of the curve in the evolving landscape of employment law.

Support the show

Rebel HR is a podcast for HR professionals and leaders of people who are ready to make some disruption in the world of work. Please connect to continue the conversation!

https://twitter.com/rebelhrguy
https://www.facebook.com/rebelhrpodcast
http://www.kyleroed.com
https://www.linkedin.com/in/kyle-roed/

Speaker 1:

This is the Rebel HR podcast, the podcast about all things innovation in the people's space. I'm Kyle Rode. Let's start the show.

Speaker 2:

All right, welcome back Rebel HR community Continuing our live podcasting here at the Iowa State Sherm Conference. Really excited for our guest With us we have Laura Fulchard. She is an attorney out of the Cedar Valley working with Shuttleworth and Ingersoll and we are going to be talking all about the exciting world of employment law. Welcome to the podcast.

Speaker 3:

Hi, thank you, it's good to be here.

Speaker 2:

So excited to have you. I want to start off with the question that I'm always curious to ask this question, especially to attorneys. Why did you want to be a lawyer when you grew up?

Speaker 3:

That's a great question. Actually, I didn't decide to go to law school until I was a junior in college, so I guess it wasn't always my dream. But I was studying at the University of Northern Iowa and a human resource management degree and I took an employment law class that I just loved, okay, and so that is what really piqued my interest in going to law school. And, you know, come full circle, where I get to practice employment law day in and day out, working with all things HR related. I love the people side of this part of my work. I tell my kids who are elementary age that I just help people solve problems Sure, you know. Or just analyzing the situation and helping come up with solutions to whatever issues they may be facing at the time.

Speaker 2:

I love it. I love it and I will say, you know, side note, like attorneys are like my favorite people because they are the. They're like the people you call when there's nobody else to call. It's like oh shit, I don't know what to do. Call the attorney.

Speaker 3:

I can't make this story up. You wouldn't believe what happened. What are we going?

Speaker 2:

to do about it. You're not going to believe it. And then I'm sure your response is oh, try me, I've heard it all.

Speaker 3:

Right, Exactly. And the response is it depends Always, always, right it always depends.

Speaker 2:

That's my line.

Speaker 1:

I'm taking my line.

Speaker 3:

That's always my line.

Speaker 2:

So, but yeah, I mean, all kidding aside, you know. So one of the aspects of HR that we that it can be really really emotional and challenging and hard to manage is it's the risk, right, and you know, the reality is you're never going to be able to completely eliminate risk, right, it is kind of like it does depend on the situation. And so, you know, I'm curious to talk a little bit today about some of these risks that we need to be aware of, and there's been some, some kind of some some regulatory changes. It's always a shifting legal environment. So what are some of these risks that you want to call out that we should kind of be extra aware of in the workplace?

Speaker 3:

Yeah, you're absolutely right. There's risk in every decision we make, and a lot of times we have to tell our clients you know it's a business decision. Here's the risk either way, and you just have to decide where you are, how comfortable you are with that risk, because you're never going to be able to eliminate it. It's all a matter of mitigating it, and for me, I think one of the biggest things is a fear of not knowing what you don't know. You know I have clients reach out to review policies that they may have and it might be compliant with Iowa, but because they're a multi-state employer, they haven't thought about the legal and the legislative changes in the other states where they practice. And so we need to, you know, adjust what their policy is or even what their job application is based on, where you are recruiting, and so I think that's one of the biggest risks is just not staying up with the changes in the law and having that team that you're confident in and comfortable going to, just for that sounding board and to make sure that you are compliant in everything that you do, I also think it's helpful.

Speaker 3:

You know, a lot of risk comes with terminations, a lot of risk, and, as I said, we can only mitigate, but I think it's helpful to call and get that outside perspective before you make that termination decision, because a lot of times you know you can just be so close to the situation or maybe you have a difficult employee and you're just at wit's end dealing with that person. So to have that outside perspective, to look at the situation with a fresh lens, is very helpful as well. So those are some of the biggest risks that I deal with on a day-to-day basis when I'm taking calls from clients, right, yeah, and I think you know a couple of call-outs there.

Speaker 2:

I think the first thing that I would say is like so you know, in my day-to-day, in my W-2 job as a CHRO, a lot of times it's not, it's not about knowing the right answer, because we're we're international and multi-state, it's knowing when to ask for guidance, right, like, it's like no, you're not going to know this. You know whatever random page, you know, 157 in a 500 page documents pertains to this specific situation.

Speaker 2:

You need to know when to ask what you need to be aware of right. And that's where that like risk mitigation comes in. Like, yeah, it might cost you more upfront to ask for legal advice, but it's going to save you a hell of a lot on the back end if you do something.

Speaker 3:

Absolutely, and that's what we're here, for you know we're here to help with that risk mitigation and make those decisions and keep you out of the courtroom. Yeah, that is always my goal, or, as I like to say keep you out of pinstripes.

Speaker 2:

right, Right, let's keep everybody out of pinstripes.

Speaker 2:

Definitely appreciate that. Yeah, so you know, one of the things you mentioned I think is really important that I, you know, I think we also need to be very, very aware of, as HR professionals and you you were alluding to bias. Right, you know we all have bias and it's yeah, we're dealing with, we're dealing with a really frustrating employee or we're dealing with a situation that's highly emotional. Sometimes you need that outside perspective to help give you a gut check. You do Right, and so I'm curious what advice you'd have for us as we're dealing with these kinds of emotional situations, because I know you deal with a lot of emotions. What advice would you have for us, as we are kind of feeling the concern about being biased? How do you deal with that? I'm curious, because you know you have to manage your bias as well. So what, what, what, what can we?

Speaker 2:

do to protect ourselves.

Speaker 3:

No, that's a great question. So I think, when it comes to bias, that one of the key things is making sure you have that team that you're talking to and not making decisions in a silo. But when you know you need that gut check and have your go-to person maybe it's your attorney, maybe it's not, maybe you've got other people on your team that will help peel away. You know the lens so that you can look at something differently and making sure you're taking care of yourself, because if we're not taking care of ourselves, we're not going to be able to come to work with a clear mind and do our job the best way that we can either. So all of that being aware and accepting just the fact that all of us do have that bias is an important first step as well, so that we're aware and we're willing to act, you know, and take the appropriate next steps.

Speaker 2:

Right, yeah, I think you know the. I mean I love the saying. You know, put your oxygen mask on first before you try to put everybody else's on. A lot of times, you know, we forget about that in HR. I also think a lot of this is some of this is just self-awareness, right, and it's like, oh you know, I can feel that blood pressure elevating. I might not be in the right mindset to determine if we're going to fire this person.

Speaker 3:

And because we know that we are like this, we need to make sure that our team and our managers, our supervisors, any of those helping make those decisions, have that same awareness as we do. Right, so that we're training everybody and not just focusing on us.

Speaker 2:

Yeah, yeah, the most expensive situations I've been in have been trying to undo something that a manager did Without calling, without calling or thinking it through, something that a manager did without calling or thinking it through. And then it's like now you're trying to, you know, you know, un-beep a situation that has been completely beeped up by somebody else, right, you know, I mean that's, that is. That is a challenge. So I want to change lanes a little bit, cause I'm curious to get your perspective on some kind of some recent legislative changes or something.

Speaker 2:

I think it's not even legislative changes, now it's like in the hands of the courts. But that's restrictive covenants and you know we talk about you know, I know many of us do employee agreements. We talk about non-competes and non-solicitations. What's your perspective on the current landscape of these restrictive covenants?

Speaker 3:

in the way that you see it, yeah, so you know, the topic for our state SHRM conference is here's what's brewing, and restrictive covenants have been brewing for a long time and they're going to continue to brew for a long time. But yeah, you're right, there's been a lot of changes in the last couple of years, both at the state level but also at the national level, where we've had the FTC non-compete rule. That's currently stayed, so not not taking effect, but that just means that right now, restrictive covenants are still governed on a state by state basis. So if you're a multi-state employer, you really have to pay attention to the state where your workers are to know what the rules are there and what the laws are that you have to follow.

Speaker 3:

With respect to restrictive covenants, I'm still seeing a lot of litigation over non-compete agreements. I do think there's been so much focus on non-competes, not as much on non-solicitation and other confidentiality and trade secret agreements which, from my perspective, non-solicitations in many cases are more valuable than the non-compete, because when I talk with my clients who I prepare non-competes for or who are looking to hire an employee who has a non-compete and wants to evaluate the risk in that hire, you know and we're talking about restrictive covenants and what I find is, by and large, people care less about where their employees go to work next, but more about protecting their relationships.

Speaker 2:

Right.

Speaker 3:

You know, they don't want to lose their current employees. They don't want to lose their customers, their suppliers, their vendors, but when you can protect those with the non-solicitation agreement, then the non-compete to them is a little bit less important. Now, that being said, there are certainly circumstances where non-competes are very valuable. So I think it's good for us to just really think about the importance and the purpose of that agreement, to decide what we want to do in that arena, because this landscape is going to continue to change over time, and so Making sure that you're thinking about the why, that will help you make the decision as to just how far you want to go.

Speaker 2:

Right. Yeah, you know, I think it's. It's really interesting. I will say just, you know this is anecdotal evidence, but it non-competes and restrictive covenants are the most common reason that I get involved in employment litigation in my company. Just because there's just there's so much around it, there's so many questions. It directly impacts somebody's ability to go make money if they leave, right, so it's a highly emotional topic as well. And then, yeah, you talked about the relationship risk losing customers. Potentially they're stealing your employees Like there's, it's just a real, it's a high level of business risk if you get it wrong.

Speaker 3:

Absolutely, and you use that word emotional and I tell people when we're involved in the non-compete litigation it is emotionally driven.

Speaker 1:

Right.

Speaker 3:

You know, by the time you're spending tens of thousands of dollars litigating. Usually it's emotionally fueled. More than making that business decision of you know, is this the best place for our money? And I'm not judging people for doing that, because there's a lot of reasons that people do continue in that litigation, but that's been my experience in litigation involving restrictive covenant is there is a strong emotional piece to it.

Speaker 2:

Yeah, yeah, I can't tell you. You know it's. It's interesting to me. There's always this like cost benefit analysis, right, and it's like at a certain point it doesn't make any sense to spend any more. You know legal fees on this, you should just settle it and be done with it. But there's I mean I. But yeah, there's many times where it's like forget it, screw it.

Speaker 2:

We're going to, you know we're going to die on the sword for this, I don't care what it costs. But you know, again, like you said, there could be valid reasons for that, even if it is emotionally driven to operate in that way. But I don't know. That's the hard part for me, like so you know, and I'm sure you feel the same way, Like the law is messy, people are messy, are messy. Employment law is like double messy, right and it's and and so much of it. It's like it's like kind of finding that balance between you know, allowing for your you know emotions to exist and the feelings to exist, but also operating in a logical way that allows you to stay with it.

Speaker 2:

Canines of the law, it can create a perfect story it is. That's what's so fun about it right.

Speaker 1:

I mean we're dealing with people.

Speaker 3:

We're dealing with real-life experiences all the time when we're in employment law, and so every day is different and every person is different. We have to remember that. Yeah, so that's what makes this a lot of fun.

Speaker 2:

Absolutely yeah, lot of fun. Absolutely yeah, and I do, you know, I think it's. I agree with you. Like employment law is one of those, like it's one of those areas where it's just pretty fascinating right. It's kind of like a like a fun logical Rubik's cube that you're trying to solve every day. Yes, not really ever a right answer.

Speaker 3:

No, but it keeps you on your toes. So if you want to be a lifelong learner, absolutely. Go into HR.

Speaker 2:

This is true If you're not a lifelong learner. Don't Right, Because you're going to flame out quickly.

Speaker 3:

Absolutely. You got to keep up with all the generations and yeah.

Speaker 2:

Yeah, once you think you got it figured out, then here comes Gen Alpha, and you know, and that now you're trying to understand what the words even mean.

Speaker 3:

And then train everybody else Exactly why it has to be how it is.

Speaker 2:

Exactly. Yeah, we got time for one more question. I'm fascinated to hear your perspective. Where do you feel that HR professionals need to rebel?

Speaker 3:

That's a great question, you know. I think that HR professionals, we could all do better not living in a world of checklists right and.

Speaker 3:

I love my list. Some of my best days is I've been able to check things off my list. That's how I'm wired. But again, we're dealing with people, so we can't live in these checklists, in the world of checklists, and that's going to take educating, you know, our C-suite folks and our other decision makers on why it's important to not just check the box, but why we have to go that step further. And you know why we have to take on the risk, right, because there are a lot of situations where that risk is worth it, even though we might be fearful about what's going to come out on the other side. So we just need to be courageous and willing to take that step and think of things in a much bigger picture and not just think of things as hey, this is what the law requires, let's check that box.

Speaker 1:

Why.

Speaker 3:

Why is this important and how does this fit into our culture and what culture do we want? So what steps do we need to take to make that culture it's? You know, it can't just be talking the talk, but we have to walk the walk at a new level.

Speaker 2:

I love that, I love that answer and I think it's you know, it's so, so incredibly true that you sometimes you have to take the risk. True that sometimes you have to take the risk. It's almost worse to be afraid of the risk and then just take no action. And certainly I think anybody can attest to those tough termination decisions that, yes, we're going to incur that risk but the risk to the business if we don't is worse if they stick around.

Speaker 2:

And that's just a small example of kind of getting comfortable with the risk being aware of the risk and then ultimately making that best decision at that point, based upon what you're willing to talk about.

Speaker 3:

Yep.

Speaker 2:

That's what we do every day. Sounds like a lawyer response.

Speaker 3:

Yeah, it depends, it depends.

Speaker 2:

Laura, thank you so much for stopping by. Where can our listeners connect with you, learn more about your background and get connected with your organization?

Speaker 3:

Yeah, so definitely check us out Our website at shuttleworthlawcom. We are a firm of over 60 attorneys who cover a wide variety of practice areas. We do have our specialties. Mine, of course, is labor and employment. We have a seminar coming up, our fall seminar, and so that is at the hotel at Kirkwood from 8 to noon on October I believe it's the 13th. It's Friday, yeah, friday the 13th, right, but you can go online to get registered for that and we'll have lots of great just very timely topics that we'll be talking about that day as well.

Speaker 2:

Awesome. We'll have that information clicked open at the show notes and hop in there and check it out. Laura, thank you so much for sharing your expertise and hopefully we didn't go over too many billable hours today.

Speaker 3:

Well, I told you 10th of an hour. We're on the clock. Yeah, thanks for having me. It's been great. Yeah, thanks for having me it's been great.

Speaker 1:

All right, that does it for the Rebel HR podcast. Big thank you to our guests. Follow us on Facebook at Rebel HR Podcast, Twitter at Rebel HR Guy, or see our website at rebelhumanresourcescom. The views and opinions expressed by Rebel HR Podcast are those of the authors and do not necessarily reflect the official policy or position of any of the organizations that we represent. No animals were harmed during the filming of this podcast.

Speaker 2:

Baby.

People on this episode