Employment Law Considerations

Speaker A: Foreign.

Speaker B: My name is Mark Minford with HR Catalyst. And today I've got the pleasure of, uh, talking to a good friend of mine, Adam Dougherty. And Adam is with, uh, Ogletree Deakins. And we'll get into their law firm. And they are a nationwide law firm, but, uh, Adam is based in Dallas. So with that. Adam, how are you doing this afternoon, man?

Speaker A: I'm doing okay. Um, as you know, I've been a little bit under the weather, so hopefully my voice will hold out, but, uh, I'm confident that it will.

Speaker B: There you go. Thanks, Adam. I know. I think there's just. This time of year is. There's just a lot of. A lot of things going on. Going on around here. But no. No worries if you need to grab some water along the way. But, uh. So tell me, so Ogletree Deacons, um, how long, um, how long have you actually been with the Farm?

Speaker A: Yeah, so I've, um. I've been with the firm about 10 years. Just, uh, had that anniversary, I guess, back in May. Um, so I've been practicing for about 25, I guess, going on 26, which is just really, really hard to believe. But, yeah, so I've been here for, uh, 10 years, and it's just been, um, a really great ride. Um, you know, we were actually international, so.

Speaker B: Okay.

Speaker A: Wow. Yeah. I think when I started here, I don't know that we had any international offices at the. And I think we're about half the size that we are now, and we're. We're basically around 1100 attorneys, um, in about 65 different offices, pretty much every major city in the country. Three up in two or three up in Canada. Mexico, um, city, and then a number, uh, throughout Europe as well.

Speaker B: Wow. That's great. So I didn't even know that you were. I know that you're international, but that's great to hear. So, um, tell me a little bit about your, um, exact specialty area in the legal field.

Speaker A: Yeah, so, I mean, just kind of consistent with our firm because we're very unique in that all we do is represent companies on their employment law issues, you know, whether it's compliance or advice or litigation. And so I'm personally, uh, board certified in employment law. Uh, Texas is pretty unique in that the bar has, um, what's called a specialization, and there's any number of areas that you can get board certified in. It's, um, quite a cumbersome process to do so. And I think about 7% of attorneys, um, in the state of Texas are board certified in One of the areas, yeah. So, you know, I personally focus at this point in my career, um, mostly on providing advice and counseling. Um, and that can range from, you know, difficult, uh, termination, uh, terminations that might arise for my clients. Um, I do a lot of drafting, whether it be separation agreements or employment agreements. And then I also spend, um, quite a bit of time on helping my clients on, um, any sort of government complaints, whether it be with the EOC or Department of Labor. And so I would say with my client base, um, any given time I'd probably have about, um, I would say 25 to 40 pieces of individual litigation. Um, but I typically get my colleagues, uh, across the firm to help with that. Um, just kind of the nature of my practice. And also, you know, managing a lot of clients, it's pretty hard to be away from the phone or my desk for an all day hearing or an all day deposition. Um, so that, that kind of precludes me from doing that. But we, we just have a really great firm where we do work hand in hand with each other, not only in the office, but in between offices. So, um, we, we get a lot of support.

Speaker B: Right, right. And I know a couple of times that actually, um, I've had to reach out to Adam regarding some clients that we have at HR Catalyst, a couple of times that Adam and this firm has done, have done a nice job in supporting. So, So I appreciate that. So, um, so with employment law, because I'm sure there are people out there who don't clearly understand, so they understand the basics of it. But is employment law, um, from your perspective, Adam, is it really there to protect the business, the employee, or both?

Speaker A: Yeah, I would say, I think that's an interesting question. And I would say almost all the employment laws are, um, you know, written to protect employees. And to me, and you'll probably agree, you know, employment law really kind of came out of the fact that there used to be little to no protections. Right. For just your average worker. And so slowly but surely, you know, employment laws were put in place to protect them. You know, whether it relates to just employee safety or, or working too many hours in a day or a week. Um, and then with respect to discrimination, I think most of those laws were put in place to protect the employee. And then what's really been unique, especially over the course of my career, is over the years, all of the states have kind of gotten into the business of employment law, where it used to be primarily a federal, uh, body of law. Um, we still have the federal, but now every Other every state really has their own what I call kind of state framework. And you know, the most obvious comparisons of states are California and Texas. And so you know, California being on the one side where all the laws almost across the board are drafted very pro employee. And then you have the opposite on where we have Texas, where I wouldn't say that our laws are drafted to be pro employer, but I would say we don't have nearly as many on the books as California does. And then the framework we have designed um, to protect employees aren't nearly as punitive against employers who might violate them compared to our friends over there in California.

Speaker B: Right.

Speaker A: And you know. Yeah, and one of the most obvious ways just to look at this is that you know, uh, under Title vii, say, which when most people are thinking of employment law, can't discriminate against somebody because of their sex, you know, sexual harassment isn't allowed. Well, under Title 7, which is the federal framework, um, there's caps on the damages that are available. And a lot of companies, a lot of just, you know, day to day people don't realize that to where for, for Title vii, worst case scenario for the two most common types of damages that typically can get, you know, pretty high. The, the caps are at 300,000 and it's based on the number of employees. And so if you have employees under you know, for say 50 to 100, the, the damages caps were even lower. Texas's state framework, what our legislature basically said is hey, we're just going to follow Title 7. So our, our laws are pretty identical to the federal. Compare that to California where under their state framework there's no caps on damages whatsoever. So you could have a company that might have one or two employees and if uh, if one of the employees gets terminated, files a lawsuit. Under California state framework, if a jury awards 10, 20, 30, 40, $100 million, the company is effectively going to be on the hook for that. So that's just one of many examples, Texas versus California on how the laws have uh, been drafted and have developed.

Speaker C: Mhm.

Speaker B: That's. That is so fascinating. I would imagine probably a topic for a different day would be um, you just look at the migration of how many employees and how many employers are just moving out of California simply because the framework as you mentioned, is so pro employee that in some cases it's just simply hard to do business in California. And the state legislature doesn't really help matters there because they're looking at it from a, from a governmental perspective and not from a business perspective.

Speaker A: Exactly. Yeah.

Speaker B: So how have you seen, and I would imagine with Your experience over 25 years, Adam, how have you seen employment law, just broadly, how have you seen employment law change over, uh, those multiple years?

Speaker A: Yeah, that's a great question too. And I think I can use kind of the present day, California, Texas kind of juxtaposition on that. And one way is, um, definitely with respect to independent contractors. So when I first started practicing over a couple of decades ago, um, especially here in Texas, it used to be if you, if you're an employer and you have a written independent contractor agreement with a worker and the person signs it, you know, doesn't sign it under, under duress or anything like that, you could be very confident that a court or one of our agencies would, would deem that person to be an independent contractor based on basically two, you know, independent parties, meeting of the mind, saying, hey, we want this person to be one. Um, fast forward it now. Um, you know, compare it in California. And, and it seems like I have this, um, conversation, you know, many times throughout the week with um, either clients or new clients that are thinking about having independent contractors there. And, and California has basically done away with independent contractors. They've, they have pretty much set up their framework to make it as difficult as possible for an independent contractor to exist out there. And, and kind of like you, you mentioned, I, I think it just goes to the, the mindset that the people running California have versus the mindset that people running, say Texas have. And, and the mindset here is, you know, maybe, for lack of a better way of describing it, we're adults, we have free will, we can contract versus California. I, I think the powers that be there really view companies as existing to exploit workers. And so from that perspective, you know, California has adopted what's called the ABC test. And it's basically a three pronged test. And, and the company has to satisfy every prong. And if the company doesn't, the person's automatically misclassified, um, as a, as an employee and, or as an independent contractor, I should say. And then in California when that happens, it seems like there's hundreds of violations that arise immediately for having misclassified somebody. You know, really going down to, you know, the check that you would have given them is inappropriate. And so, um, you know, part of the ABC prong is, and I think it's the, the B1, you know, do you have any employees that are effectively doing the same job duties as the independent contractor? And if you do, that person, with very few exceptions, is going to be misclassified. Whereas in Texas, where it's kind of developed over the years, I wouldn't say that here just having the independent contractor agreement is enough. Um, the way I describe it now, even here in Texas, if you have that agreement as the employer, it really means you don't lose automatically. Right. So it's kind of the first line of defense. And then what our agencies or courts are going to do is do a very fact specific analysis that effectively comes down to how much control does the company have over the worker. But at the end of the day I think our agencies are in courts are still going to give kind of a fair, reasonable analysis of that relationship. And I don't think they're going to approach it like California will, where, hey, we're just going to give basically every benefit of the doubt to the worker.

Speaker C: Mhm.

Speaker A: But that's definitely one way that I've seen everything change over the years.

Speaker B: Right now that's fascinating. And like you said, it's amazing how many organizations have, have independent contractors at some level.

Speaker A: Right.

Speaker B: And before I started HR Catalyst about 13 years ago, you know, I worked for some large companies and they had multiple thousands of independent contractors and it was just kind of this of the back of the day, of the 90s and it'd be interesting just to see you know, if how many, if they were in, if they had some m, you know, they might have had significant legal exposure because of what was being done there and their classification of some people. So. But uh, now this is interesting. So we're going to take a short break right now folks and um, then I'll be back in just uh, a couple of minutes with Adam Doherty from Ogletree Deacons and we'll continue the conversation then. Thanks so much.

Speaker C: You want to grow your business, but people issues are getting in the way. Managing the people side of your business is complex and can feel overwhelming. Does this Sound familiar? At HRCatalyst, people strategy is our business. We create and implement a uh, people strategy with you so you can get back to growing your business. HR Catalyst was founded in 2013 with the goal of bringing the best in class HR practices to small and middle market companies. We are your outsourced strategic people experts. We help you solve the people issues in your business that are slowing you down. If you have HR concerns, you can schedule a complimentary call on our website@hrcatalystconsulting.com

Speaker B: hi, uh, this is Mark Mitford again. So, and I ready to continue the conversation now with Adam Doherty from Ogletree Deakins and um, so. And fascinating conversations so far Adam. So I think one of the big things we um, everybody has heard about, know about maybe they're use, utilizing uh, this technology and this wave of changes but artificial intelligence and AI so how, and I'm sure it has some legal ramifications for the work you do, but what is your, from an expert perspective, what are you seeing about how this is really starting to change things from an employment landscape with the whole into AI and the everything uh, it brings to the table?

Speaker A: Yeah, I would say it really entered into my world about six months ago or so. Um, and like I said at the beginning of our conversation, I spend most of my day advising clients on terminations or you know, usually before and lots of times afterwards too where maybe the employee is unhappy and is then you know sending a demand letter or making complaints following that. And so um, for this one in particular, uh, situation just kind of sitting at my desk, client uh, reaches out and not an uncommon situation where they say hey, we were working with this employee for a number of months, just wasn't working out. And so we terminated the individual and uh, terminated them the day before. And then early this morning we got know a complaint from the person, uh effectively saying hey um, if we can't reach some sort of monetary resolution, I'm going to bring a lawsuit against you. So the client forward me the individual's email. I read it and you know the way we help a lot of clients is we, we help ghost write responses for them. And so you know, I think the initial call with the client just going over the background was probably about you know, 30 minutes to an hour. You know, and then I studied the email and then drafted a response. So I would say it took about maybe two or three hours soup to nuts to help draft this initial response. And then the client reviews it, client sends it out and um, within about later that day, within about 30 minutes or so, the employee has a response already. And so client sends it back over to me and, and it's, it's a detailed response. Right. So my, my initial thought was and, and as I'm reading it I'm like okay, the formatting's a little off, the response is good. But I, I couldn't really put my finger on it. Something just seemed a little bit off. So I said to my client is, I said I bet you he has a friend or maybe a cousin who's an attorney who does a little bit of employment law. But not day to day. Right? So take that response And I think it was maybe the next day, you know, take another couple hours, respond to it. And you know what I tell my clients, when, when you're doing these responses to the employee or the ex employee, a lot of times why it's so important is because your responses are becoming evidence, right? That's going to be used. If there's an EOC charge or even if there's a lawsuit, it effectively becomes evidence. So there, there's, you know, a lot of strategy that goes into it. It's kind of an art. And so again, takes a couple of hours, give the client the response, she sends it over to this ex employee again within 20 minutes, four pages. And, and you know, so, I mean, it's coming back to where it's like three or four times as long as my response. Well then in this one, the person finally laid out here are the statutes that I'm going to sue you under. And like the first four, it's like, okay, that makes sense. And then like the fifth, sixth and seventh didn't make any sense at all. The eighth was, okay, that makes sense, Title seven. And then it was like osha, um, the OSHA Minds Act. And then it just immediately dawned on me, this guy is using AI, right? To, to put together how he's going to come after the client. And, and then once it dawned on me was just blatantly obvious because, because at that point I'm like, man is his attorney or the cousin or whatever, like literally sitting there over his shoulder. Um, but. And then it kind of went back to the formatting, which again, this is about six months ago. I think probably everybody who works in the space now is very familiar with it. You know, the formatting for the AI, if, if the individual is literally kind of cutting and pacing and not reformatting it, you can kind of just tell there's some weird spacing, there's weird bolds to it. And, and then again where this person, um, you know, five of the statutes were on point and then the five had literally no connection to this individual.

Speaker B: Wow.

Speaker A: Um, so that, so that was very eye opening. And I would say now, I mean it, it, it's more surprising when I'm helping clients with this, where they're not using AI with the employees that is, or the ex employees or where it's just not obvious. Like, like almost always now it is, um, which is, is good and bad. You know, there's any number of goods and bads that come with it. But what we've seen over the last six months which is very, very eye opening. And there's good and bad with this, too. So every day my firm has a service, and we typically use it as a benefit for our clients, where we get a report of all the lawsuits filed every day in the state of Texas. And so we kind of scoured every day. Okay. If our clients are, um, hit with lawsuits, whether it's employment related or not, we can kind of give them the heads up because we're kind of getting notified before our clients are. And so what's been really, really interesting and the way this service sets it up for us is we get employment lawsuits that are kind of at the top of the list, so to speak, when we're seeing them. And so six months to prior to that, we have what are called pro se lawsuits. Well, these are lawsuits that are filed by the individual and not by an actual plaintiff's attorney. And I would say, you know, here in Dallas, we have state courts, we have federal courts. We used to see maybe one a week, maybe two pro se lawsuits prior to the rise of AI. And, you know, part of the reason why that is is because, you know, plaintiff's attorneys operate on contingency fees. So very rarely are ex employees who want to sue companies having to shout any money. So, uh, uh, and. And this comes up quite a bit, especially with, you know, companies that are maybe on the smaller side or that haven't really been through this process before. You know, a lot of times they'll say, why I can't imagine a plaintiff's attorney taking on this case. And I'm like, well, you'd kind of be surprised. Like, it has to be a really bad case for all of the plaintiff's attorneys in town to say, all of them, hey, we're not going to take your case.

Speaker B: Right.

Speaker A: Um, and part of the reason why with that, too, is that it's very hard as a company to get your attorneys fees awarded in litigation, even if you win. Like, our system, unfortunately, isn't designed for that. If, if our system was 50% of employment, Lotus fees would go away because plaintiffs attorneys wouldn't bring them. If, if there was a real fear that, hey, I'd have to. I'm going to have to pay the company's attorney's fees. Right. So because of that, most individuals can find plaintiffs firms to represent them. And then especially in states like California, where. Where the plaintiff's bar is probably. I don't know what the numbers are, but I would say 10, 20, 30 times bigger than it is here in Texas. But getting Back to the AI. So with these pro se claimants again representing themselves, what I think is probably happening is AI, when they're going in and saying, here's my claims, I, I think people aren't realizing that a lot of times AI is telling you what you want to hear. So AI is telling these individuals, hey, you have a really good claim. And, and I think what's happening is, I think a lot of individuals are doing AI first. Maybe they're talking to an attorney afterwards, maybe not. But let's say that they are. AI tells them, hey, you've got this really good claim. Well, they go in and they talk to a plaintiff's attorney and the plaintiff's attorney is then going to tell them, well, you know, there's two sides to every story, which is typically the case in employment law. And then, oh, I can represent you, but I'm going to take 30% of any recovery, if not more in some cases, I think probably in the majority. And I think what's happening is the, these pro se plaintiffs individuals are then are going through this analysis in their mind and they're like, well, I've got a law firm at my hands with chat, GPT or whatnot, so I'll just file the lawsuit on my own behalf.

Speaker B: Right.

Speaker A: Wow. So it's turned into where we used to see one or two a week, we might see six or seven in a day. So in literally one day where these individuals are filing these lawsuits on their behalf. And I, fortunately for like my specific clients, I've only had one who's been hit with this. And we're, we're kind of working through the process now because the individual is not doing the correct, really basic things to kind of get the lawsuit out the gate, so to speak. So that's been a good thing. I know from talking to my colleagues it's become very cumbersome because a lot of these pro se litigants really don't know what they're doing, even with AI's assistance. Right. And, and kind of on the unfortunate side, they're filing things, filing things, filing things where they're not appropriate. Our clients are still having to go to the time and expense of fighting it and trying to get, get it kicked out of court, which sometimes is easier said than done for any number of reasons. So it's been absolutely fascinating to follow it. And I'll just say too, where I'm seeing it, just doing daily advice from my clients is even over the last six months, it was really after the time of termination, where we're seeing the pro se, or I'm sorry, the AI responses where the employees were sending them. Now we're seeing it just on reprimands where it's like, hey, you know, your, your performance hasn't been great, gave you a reprimand. Here's a final warning. What I call them is the books. It's like the AI book where the employer is getting the response where it's like eight paragraphs on why I'm challenging this reprimand, you know, and where I've seen this go just over the last six months is again where your response is as the employer, you're kind of building your evidence, so to speak, you're challenging the employee just in case it gets in a litigation. I, I've now seen employers where they're, they're making the strategic decision where they're basically saying we're not responding to you anymore because we could, you know, it's honestly not worth the time or effort. And, and with the AI, you, you could go on indefinitely with, with the he said, she said or the back and forth because all they're doing is putting it in a chat gbt, taking two minutes and then sending it back to you.

Speaker B: Yes.

Speaker A: And, and where you're, you have other stuff to do. So it's again, I'm, um. And this is very unique, like it. I, I've never really counseled a client to say, hey, just stop responding to the employee again for any number of reasons. But we're getting to the point where I think employers are just going to stop doing it.

Speaker C: Right.

Speaker A: Because it's just sucking up too much time and effort.

Speaker B: Sir, I would, I would imagine that's like you said, with just your analysis there, just the amount of claims that are coming up from that are probably employee or former employee driven. It's just, and it could just bog down the court system too and the due process you would have to go through. So.

Speaker A: Exactly.

Speaker B: Yeah, it's this huge double edged sword. But, um, yeah, I'm going to, I'm going to move on here, Adam, but thank you for that response. It was great. So, um, so probably one of the biggest struggles, and I would say even for myself and the work I do with clients is what is your advice? You know, when you are talking to a business owner, when should, so, so there's a complex employee issue they're dealing with. When typically, when would you recommend that a business owner or the HR leader who you may work with closely, when should they be contacting an employment attorney because they Know, there's obviously you have a billable rate. So when, when do you, when do you still recommend that it's better you, you get a little more proactive here than reactive regarding getting your counsel and advice in, in a situation that could be a, a fairly um, complex employee grievance.

Speaker A: Yeah, you know, uh, I'll just use my own experience. It seems like most of the advice I give and this is like pre termination. You know, a lot of times I call it a gut check where a client will call. Excuse me. A lot of times it's just a 20 or 30 minute call, if that. And, and they're, we're just kind of talking through, hey, am I missing anything here? But I would say like the most complex area of, of terminations that makes them risky is when you have the interplay of the Americans with Disabilities act, the ada, the fmla, you know, Family Medical Leave act, and then sometimes you might even have a workers comp claim in there. And so that, you know that, that triple headed, um, creature, um, there is, is to me very challenging. And it's challenging for any number of reasons because you have you know, three different statutes, kind of going back to your initial question, all really designed to protect individuals. And so if you have somebody who's maybe out on a medical leave, they could be receiving an accommodation with respect to that leave under the ada, if the employer is covered by the fmla, they might be covered, the employee might be covered by the fmla, maybe they were injured on the job to where they fired, filed a workers comp claim. And so what, what might happen in that situation is hey, despite all that, they are just not objectively performing. And so with respect to that situation, what a lot of companies don't realize that are maybe not, um, maybe they've never experienced this issue before, maybe they've never thought it through is how does an individual prove discrimination or retaliation under any of those statutes? And it's typically done by circumstantial evidence. So very rarely is there an email saying, hey, we're firing you because you're sick, we're firing you because you took leave.

Speaker B: Right.

Speaker A: Well then how do they have to prove it? And that goes into the, the burden of proof. Well, in most of these statutes it's a motivating factor statute. So in other words, the, the motivation for why am I terminating you? Only has to be 5, 10% of the decision. It almost always doesn't have to be 100% of the decision. So because of that, when you have somebody who's on leave who's received an accommodation, maybe somebody who's pregnant. Um, it's very easy for them to kind of have a minimal showing that, hey, the employer is taking this adverse decision with respect to my employment because of one of my, what we call kind of protected categories. So in other words, it's a very minimal, easy showing for the employee, which increases the risk for the employer. And so a lot of times, like I said, I've, uh, I mean, I've never had an employer come to me and say, we're terminating this employee because they're on leave or they're coming back from leave. But then when it comes to, why are you terminating them? Oh, it's because of X, Y and Z with their performance. Okay, well, let's kind of talk that through. Why is their performance so bad? And a lot of times it's objectively true that the performance isn't bad. But how does your documentation look? How is the individual who might be called as a witness to testify about the issues, how is that, how do we think that person's going to do under oath? And then the, the. One of the key facts for employment law is how have you treated similarly situated employees in this, in, in. In a very similar type of situation? And that's where a lot of employers get caught up, is that. And in this area of law, that's a lot of times how discrimination is shown by the employee, and a lot of times the employers are just not thinking it through. From this legal perspective, that's where individuals like yourself and I can help is like, hey, let's really look at, how is the EOC going to analyze this? How is, um, a court going to analyze this? And then kind of the natural outgrowth from that analysis might be, okay, maybe we need to postpone the termination. Maybe a written reprimand is better for this situation. Or if the client's like, no, we need to. For whatever reason, this person really doesn't need to be here. Let's talk about, is it worth getting a separation agreement with a release? Right, right. And then that, that's a whole other kind of analysis on objectively speaking, you know, what's the amount of risk here? Whereas we talked about with, say, the damages caps under Title vii, what's our worst case scenario? What's this person like? Uh, a lot of it's psychology, A lot of it's an art. What do we think they might take to sign a separation agreement? What do they have going on in their life to where. What, what dollar amount might make them more apt or not to sign the separation agreement. So that's a very long, um, answer. But that's, that's kind of what I do on a daily basis. And there, there really is, I mean, as you know, for having done this for so long, you can almost kind of spot the more challenging ones.

Speaker B: Right.

Speaker A: And so like I said, some of these, it's a 15 minute call, others might be a little bit longer, others might be. Okay, well, let's look at some of this documentation you have. Let's look at some of the emails out there. And then it becomes kind of a partnership on talking it through, analyzing it. How are we going to handle this particular situation with the idea being, you know, perhaps we want to eliminate the risk of litigation altogether or we want to just kind of create our defenses if that EOC charge or litigation is going to come.

Speaker B: Right, right. No, that's in. No, it is fascinating because there's, like you said, it I, uh, loved when it's, when you said it's as much, it's psychology. It's a little, you, you have the law, which sometimes is a very broad framework. Then you have the psychology, you have the art form, you have the specific employee and what their history is. And it could be how long they've been with a company. It could be, are they going through some trying times, are they financially in a bad situation? So it is fascinating just in this conversation. I always love this when I interview people because I learned some things along the way. So, um, do you think, um. A couple of last questions for you, Adam, but do you think again, this one's going to be much more of a general statement? But do you find, and again with your, uh, experience, do most employers contact you or HR people, do they contact you too late in the process and they think you almost have this magic wand where you can make this thing go away? Or do you find that quite a few of them are actually a little more proactive and they want to do that 30 minute kind of a gut check with you, um, before things, uh, become a little bit too, uh, complex.

Speaker A: Yeah, you know, I think, I think most employers are pretty conscious of the employment laws. And um, so I would say, you know, especially the clients we work with routinely, I, I think they really see the value in that 30 minute to one hour call. And then just you know, even generally speaking, like the companies that I get referred to, um, I, I think most companies in this day and age and, and maybe that's kind of the benefit of chat GPT where it's not unusual, especially for new clients that are referred over where they'll say, hey, we kind of ran this through AI and we're seeing that we do have some risk. So we would like to get a real thinking attorney's thoughts on that. And so I think that's a more positive side of the AI. Um, so I think most employers are, are pretty conscious and, and like I said it's, you know, especially earlier in my career, I think a lot of clients were like, you know, lobby damned, we're just going to terminate this person, that we're going to fight it to the death. I think it's very rare to see a client do that or a company do that nowadays. And maybe that's because they've seen these kind of verdicts over the years. But I think it's also that you know, so many clients have HR internally, legal internally or outside support that I think clients do a good job nowadays of weighing risks and trying to avoid that litigation where possible.

Speaker B: Right, okay, that's great. So um, what other besides obviously an employee situation where there might be litigation or there is litigation or possible litigation and uh, some of the things you talked about earlier, are there other things that you do within your practice or you know, in a general employment practice that, that is a little bit beyond the scope of what we're talking about today?

Speaker A: Yeah, you know I draft um, a lot of employment agreements and um, you know, a lot of times the employment agreement will have non compete provisions in there, whether they might be confidentiality protections or non solicitation of employees or customers or what I call the pure non compete where you're restricting or limiting um, an employee to go work for a competitor. And you know, going back to one of your earlier questions just on how that's kind of changed over the years. Well, you know, going back 20 years we, we used to basically just have one kind of form agreement we would give a client even if they were in multiple states. California, Texas and, and fast forward now. Um, really every state has their own non compete framework. And, and again Texas and California are, are the perfect kind of juxtapositions where a number of years ago um, California basically said no non competes, no, no even non solicitation restrictions are allowed here. Um, you can still have protections in California for your confidential information and that could be the hook for maybe limiting somebody from soliciting your clients. But really that's it versus here in Texas, non compete agreements are still very enforceable. In Texas. Um, we have an interesting framework. I won't get into the details where there's a number of hoops you have to jump through, um, to show that your non compete is enforceable. Um, the flip side of that though, we have a lot of judges in Texas, even though the agreements are very valid on their face, even though adults sign them, where a lot of judges are just very inclined not to enforce them, um, and judges have a lot of discretion, again, not getting into the weeds on how it plays out. Right.

Speaker B: Interesting.

Speaker A: Yeah. So that, that's one area where we still draft multi state employment agreements, but when we do, we basically have addenda that are attached for each state. I think, I think the addenda we have are up to about 20 to 25. You know, for, for different states that have all these different hoops you have to jump through. You know, some you have to give the employee the agreement, I think like a week or two before they start. Um, others you have, uh, you know, thresholds for how much money they earn to where that's only when they become effective. Texas again hasn't done that. Um, and I don't think Texas will anytime soon because I think the framework we have is good. But that's definitely another way that I spend, you know, quite a bit of time helping companies. And then the same for drafting separation agreements where when I first started separation agreements, maybe a page or two, our kind of typical form is up to about seven or eight pages just for Texas. And again, when you get California and other states in there, um, they can even become longer than that. And it can be if you give a separation agreement out that doesn't have the bells and whistles in it, that you're effectively creating a claim for the, the employee in of itself just with, with respect to the separation agreement.

Speaker B: Interesting. Wow, fascinating. So, so if there are, if there are business owners that are watching this podcast and they don't have an employment attorney in there, you know, with as part of their team already and their outside counsel and advisory groups, um, um, why should they contact one now, do you think?

Speaker A: Well, I, I think, um, you know, even with a more pro employer executive that we have now in Trump, there's just so much risk with, with so many laws out there. There's any number of ways, just from an employment perspective that companies can trip up. So I think it's always good to have somebody like yourself or me on speed dial. You know, you and I do a lot of the same, but then there's a lot of things that we, we kind of do differently too. Um, and I, you know, I'd say for us in, in working with us, we do have the attorney client privilege that will cover almost all of the communications. So especially when, when you have really dicey issues, I think that's always a good reason to, um, talk to an employer. And then, um, you know, most of the employment laws kick in, not all of them, but most of them kick in when you have 15 employees. So, and we represent companies of all sizes here. Um, so for the smaller companies, when you're getting into that 15 employee threshold, you know, that's when the laws are kicking in. And then when you get into that like 50 employee threshold, that's when I tell, you know, my clients, like, okay, you're, you're getting to that size, you, where you really do have a target on your back. And so with respect to AI and employee knowing their rights, that's when you're kind of in that danger zone. Um, especially for when you have these, um, statutes where there are caps that 50 employees, that's when the caps start really increasing. So that's when the risk really starts to kick in to where I think it's good to have somebody like yourself or me on speed dial. And I know you're the same as me, where we really pride ourselves on being very responsive and so having that person that you really trust, that's going to drop what they're doing. Because a lot of times, like, hey, we need to make this decision today or by the end of day tomorrow, where you really want a trusted partner, you know, who's, who's there to help. And that's what we really pride ourselves on, on doing. Me, me personally, then the firm too, right?

Speaker B: Oh, that's great. That's great. So, um, yeah, thank you so much, Adam. This has been really insightful. So, um, what I want, I kind of, when I, whenever I do a podcast with a guest, I just, you know, always want to ask you a couple of other, um, always want to ask you a couple of things that are, you know, a couple, couple things a little, that are a little more fun in nature. So, um, so how about if you are. I'm not sure if you're a book person or a podcaster, but do you have any recommendations on books you'd recommend to our audience or podcasts that you'd recommend to our audience?

Speaker A: Yeah, sure. So I, um, I very rarely listen to HR podcasts or legal books. Same with TV shows. It's kind of like you live it. I don't need to, you know, have any more of it. I need to take a break. So I've, I've got a number of interests and, and I know I've, I know you're somewhat aware of this too. So I love, um, religion. I study it for fun. Kind of a dork that way. Um, I also love military history. And then I also love, uh, the Razorbacks, um, and then I've got another love too of electronic music. And so with respect to books, um, there's a great book called the Infinite Way, which is written by this guy named, uh, Joe Goldsmith. He's no longer with us. And it's basically a book on Christian mysticism, which is just kind of a fancy word for, you know, how can we just kind of realize that God is here 24 7, you know, internally and externally. And that's, that's a book that really changed my life. And I think it's a very interesting, deep read for people that are of a religious or spiritual bent. Um, from a military history perspective, um, a book that really changed my life and I, you know, unfortunately didn't serve. Wish I did, um, is a book called with the Old Breed, um, by a gentleman named Eugene, um, Sledge. And I, I, I've recommended that book to people who don't read military history. And I think every person that I've given it to has finished it within a week. Um, he fought in the Pacific. He was a grunt. Fought in some of the most, uh, bloodiest battles in the Pacific in World War II. And then, um, you know, he was, he was a young man at the time. Turned um, out to just be a very gifted writer. And so most military historians will say it's like the best military history book ever written to just give you kind of the day to day feel of what it's like to fight in the front lines. Right. So, um, he really turned, if you ever heard the, ah, the phrase meat grind grinder. He really coined that based on what he experienced. And then if you've ever watched um, the Pacific on hbo, which is kind of the um, Band of Brothers, um, if he. I'm sure you've probably seen that the Pacific is kind of the um, Pacific take uh, battles on, on Band of Brothers. And so the Pacific is based on his book and then another book and he actually appears not himself, but Eugene Sledge is a character actually in the Pacific.

Speaker B: Wow, interesting.

Speaker A: So really recommend that too. Um, as far as podcasts, I spend way too much of my time following the Razorbacks. There's a great podcast called Inside Arkansas. Okay. That uh, Every day, you know, at noon, um, I'll be listening to that. And then I also love, uh, electronic music which I listen to throughout the day. And there's a podcast called the Boiler Room where you can get all the latest and greatest, uh, DJ sets if, if you're so inclined.

Speaker B: Oh my God, look at you. You're, you're a man with many layers, Adam. So, um, so final question for you is. So what, what advice would you give your 16 year old self?

Speaker A: Um, that's a great question too. Um, and you know, I, I would say I'm, I'm kind of late into the game on traveling and, and part of it was just being so busy earlier in my career. But, um, I, I definitely would have said to travel more because it's been such a great thing that my family and I have done, especially over the last, you know, 10 to 15 years where it, you know, my wife and I ended up having a competition on who could go to all 50 states first.

Speaker B: Okay.

Speaker A: And, um, she ended up beating me. But I, I hit 50 states. I think it was about four years ago.

Speaker B: Okay.

Speaker A: My last one was, uh, Minnesota. And I always thought business travel would take me there, so it never did. So I ended up taking my oldest daughter there for a four day weekend about four years ago. And then, um, we, as of this summer we're going to go to South Africa and once we do that, we'll have hit six continents with, um, only Antarctica left. So. Wow. Yeah, it's been, it's just been really, really fun doing that with my two daughters and my wife.

Speaker B: That's fun. Um, good for you. That's, that's, that's great to hear. So, so how, if people want to continue the conversation with you or talk to you about, uh, about you as an attorney and your background and your expertise, how can m. They, how can they reach you online?

Speaker A: Yeah, so I, I try to keep a fairly active presence on LinkedIn. So you know, shoot me a LinkedIn request or you know, feel free to reach out via email or um, you know, by my, you know, my phone, which is on our website. Um, I'm, um, like I said before, I try to be responsive 24 7. And um, I'll also add too, you know, our, our firm really prides ourself on all of the free content that we provide. And so, um, you could go to our website and sign up for it. There is no obligation. And um, yeah, we're, we're continuously putting out free content, whether it be articles or blogs. Um, if there's any sort of breaking news. Yeah, we really strive to have something out with our opinion and a summary of it within 24 hours. And then we also have, um, just a ton of webinars that we put out on all the latest, greatest topics for all of our clients that are free. Um, for non clients, there's just a small free associated with it. But I think that's a great, great outreach that we have. And then, then for clients, too, that sign up, I think we're one of three law firms where we have what's called a client portal. And in that client portal, we have all sorts of, uh, free content, whether it be state law, summaries, all sorts of forms, you know, great things. Is just, uh, a thank you for our clients, um, once they retain us, Right?

Speaker B: Oh, that's great. And. And I am, you know, I have used some of your services. I've heard. I've heard you, um, you and a colleague of yours, Sean. I've actually. I've actually listened to you guys live a couple times in an audience. And you. And. And trust me, if you haven't, they are, you know, attorneys with a sense of humor and attorneys who come across who make, um, hearing about the legal landscape exciting and fun. So by all means, you know, for Adam Doherty or his, uh, or his colleague, Sean, you know, highly recommend that, uh, if you ever get a chance to listen to them or take advantage of some of the other Ogle Tree Deacon, uh, resources, uh, I would highly advise that. That you do. But, um, thanks so much, Adam, for your time. This has been a pleasure catching up with you. And as always, I learned something new about every guest that I have on board. And we've known each other for multiple years. So I appreciate your time again, thanks so much and take care.

Speaker A: Bye. Bye. Okay. Thank you, Mark. Bye. Bye.

Speaker B: Bye.