The HR Life Podcast

Tony Benjamin (00:09.705)
Welcome to the HR life podcast, a podcast about the work life experience of those of us in human resources and business leadership. Your hosts are Tony Benjamin, owner and founder of the Grange strategic HR consulting, and Stephen big deal Smith, who is so influential, even Johnny Taylor accepts his party invitations.

Hey Steve!

Steve-o (00:36.936)
That one actually is true.

Tony Benjamin (00:38.983)
Right. See, there you go. Right. Yeah, you got to tell the story of how you got him to come to Utah.

Steve-o (00:41.671)
man, I guess everybody's gonna have to hear that story, right?

Yeah, so you know, when I was a state executive director, there was this promise that Johnny C. Taylor was going to come to Utah, one of our conferences, and they had talked about it for a couple of years. And he had come to Salt Lake, to the Salt Lake Shurm chapter. But the commitment was he's going to come to our state conference. And then COVID hit and all these things happened.

And and you know, I'm going to these these VLBMs, which is the volunteer leadership business, you meetings that they have every November all over the place Washington DC, you know, just wherever they are It was this it was and I missed that one shucks, right? anyway, so I Finally said we have to get him to our conference because not only did he promise me that it was gonna happen And it had been now several years. I was like we have to make this happen. And so

Tony Benjamin (01:20.533)
This year's was in Cancun, I think. So yeah, yeah. Yeah, right.

Steve-o (01:40.559)
I finally at one of these VLBMs, I got the entire team together and I made us do a video which was about I think 30 seconds, maybe it was 60, I can't remember. But I was like, look guys, I have a connection because I knew the Mac rep for New Mexico, that was in New Mexico and I knew him really well. His name was James and I said, James, if I give you a video, can you get this in front of Johnny C. Taylor?

And he says, I sure can. And so I literally just did an emergency. Everybody get together. And we went in the back and we said a few things, put the video together. And I ran it over to James. said, James, here's the video. And he runs over to Johnny C. Taylor. And he also gave it. We gave him some swag from our previous conference. Yeah. Yeah. And so we had. Yeah. Yeah, it was like a whole.

Tony Benjamin (02:24.053)
T-shirt. That's right. I've got a picture of Johnny C in our t-shirt from from the Ogden conference. That's right.

Steve-o (02:31.338)
It was like a whole bag of goodies, right? Along with the video and sure enough, it worked. It worked. The swag. Tony, I think your idea was the swag though, isn't it? To throw in a t-shirt and stuff like that. I know you were at the conference, but.

Tony Benjamin (02:39.423)
That's right.

Tony Benjamin (02:45.725)
No, that wasn't mine. I was trying very hard to influence him, but that's my favorite t-shirt. The t-shirt you gave him is my favorite t-shirt we ever did. It says on the back, you can't spell HR without Henry Jones Jr. Or you can't spell Henry Jones Jr. without HR. Yeah, that's right. That's right. That's right. That's it. Does it does everybody there's that's a Mark Tolman joining us today.

Steve-o (02:58.41)
Mm-hmm. Junior without HR,

Mark Tolman (03:03.091)
It works better the other way around, Tony.

Steve-o (03:04.925)
Hahaha

Steve-o (03:09.102)
And there he is, ladies and gentlemen.

Mark Tolman (03:13.981)
And and hate

Tony Benjamin (03:14.379)
All right, the studio audience goes crazy.

Mark Tolman (03:18.089)
Yes they did. This is fantastic. I didn't know there'd be a live audience. Hey! Johnny Taylor's coming back! Am I supposed to hold for applause here? I don't know what the protocol is.

Tony Benjamin (03:24.073)
That's all of them over there. Yes, he is. Yeah. Well, look, just bask in it. So we got them all up there in those seats. This is live and everybody can see and we're separated from them by a velvet rope to keep them away from famous people like you, Mark.

Steve-o (03:26.936)
This is true.

Mark Tolman (03:42.291)
Well, for sure it's the longest applause I've ever had and wow did that end abruptly. So Johnny Taylor's he's he's going to be my firm partners with Salt Lake Shurm for an employment law seminar in the spring and he'll be the keynote speaker this April here in Salt Lake City. Yeah, we didn't even have to send him a t-shirt.

Tony Benjamin (03:47.435)
Yeah. Well, Steve holds up a sign says shut up.

Steve-o (04:00.888)
That's awesome. Good deal.

Tony Benjamin (04:02.953)
That's really cool. that's because I'm not as cute as Becca. Yeah. That's right.

Steve-o (04:05.322)
Man, like what in the world?

Mark Tolman (04:07.423)
But he probably assumes it's coming, given the precedent y'all set.

Steve-o (04:10.19)
Yeah, you better give him a gift basket.

Tony Benjamin (04:14.901)
That's right. And a minke blanket if we still have one.

Mark Tolman (04:15.466)
Ha

Steve-o (04:19.99)
Right, yeah, ain't that the truth. I'm sure we do. It's probably pink, but that's okay. It'll be all right. Or maybe it was that, what was the other one? Puce? Was that the color? can't remember. Peach, maybe it was peach.

Tony Benjamin (04:23.915)
Yeah, well, you know.

Mark Tolman (04:24.469)
Hahaha!

Tony Benjamin (04:30.264)
That it was I think they were blue and pink or peach or whatever. Yeah. I don't know that.

Steve-o (04:35.404)
They had a peach and a pink and there was a difference because I had to separate them when we were setting it all up at the conference because there were some complaints about me mixing it up and I was like, they look the same to me. But no, they were different. As soon as I got them in the light, I was like, yeah, there's a difference. And so, so it was peach and pink. I didn't. My wife says it's my blue eyes. It doesn't help, so.

Tony Benjamin (04:49.759)
You're such a guy. You're such a guy, Steve. You didn't even know the difference. You're such a guy. Well, yeah, that's that's what it is. I.

Mark Tolman (04:52.393)
Ha ha ha!

Steve-o (05:04.632)
That's what I blame is my blue eyes. My blue eyes only sees blue.

Mark Tolman (05:07.477)
So let me get this straight, Steve. There, I assume there were people who got the puce blanket who were mad they didn't get the pink one.

Steve-o (05:13.322)
Yeah, because they were supposed to get pink. You they asked for pink, you because, well, what happens is you can come to the booth and you can purchase them. Right. So you make a purchase and we actually donated it all to the Sherm Foundation this year. mean, Minky Couture, by the way, was phenomenal because we had the regional council business meeting in Salt Lake City last year. And Minky Couture, man, they went all out. They gave us hundreds of blankets to give out to all of the attendees.

Tony Benjamin (05:28.799)
Yeah, shout out to them.

Steve-o (05:41.347)
And these attendees included everybody across the country, all of the executive directors and some of the bigwigs for every single chapter in the country. And even outside of the country, there were a few people from outside the country. And so Miki Katorman, they stepped up and we did have a few extra, I think about 30 or so. And so we decided, well, let's sell them at half price of what they would normally be and let's donate the money to the Schirm Foundation. And so that's what we did for the conference.

And the cool part about that is this year's conference was the most that Utah has historically ever donated. And so that was awesome. So we were really excited about that.

Mark Tolman (06:19.111)
all on the promise of a pink Minky Couture blanket.

Steve-o (06:21.458)
That's right, instead of peach. I guess guys didn't buy it, it was the girls and son. That's where we got in trouble. I want a pink one please, here you go. Wait a minute, that's peach. What? Peach?

Tony Benjamin (06:22.763)
That's right.

Mark Tolman (06:24.02)
you

Tony Benjamin (06:25.707)
That's exactly right. I got. Yeah. Those those those those blankets are incredible. Those blankets are incredible.

Steve-o (06:38.498)
Mm-hmm, and they were the large ones too. They were the really nice ones like I you know I'm over six feet or just right at six feet tall and so when you get the smaller ones Okay, I'm sure everybody else is much taller than I am but but I hate it because the blankets don't cover my feet right you know the some of the medium size or whatever they don't cover my feet and so with the large one that actually covers me up and it just makes me happy so there you go I Know let me wipe the tear

Tony Benjamin (06:47.519)
You really are a big deal.

Tony Benjamin (06:53.355)
You

Tony Benjamin (06:56.971)
yeah, yeah.

Tony Benjamin (07:03.687)
that's so sweet and nice. Well, Mark, we're very happy to have you here today. Thank you for joining us on the podcast. This is really great. Mark is, well, I'll let Mark tell all about himself, but Mark is, Mark is an incredible.

Steve-o (07:17.558)
Yeah, he's got to his story, right?

Tony Benjamin (07:21.387)
attorney, labor law attorney known all over the place, very famous. And he he he he said that he would dana's you know, he would descend to our level for the podcast for a little bit. So

Steve-o (07:32.832)
is true. Now just before we move on there's a caveat, anything and everything that we talked about today is not considered legal advice, right?

Mark Tolman (07:33.643)
Ha

Tony Benjamin (07:41.515)
That's right. Especially to you and I. Right, right.

Mark Tolman (07:41.759)
You got that right, Steve.

Steve-o (07:43.31)
That's right. I know. No matter what question I ask, it's not legal advice. So there we go.

Mark Tolman (07:46.889)
Haha!

Mark Tolman (07:51.923)
It won't be legal advice. It would be the things I would say if I was your lawyer, but I'm not. So it isn't legal advice. I can be. Yes, that's right. I have a phone call away. If you want legal advice, there is a way to get it. Yeah, sort of the business model, actually. So Tony, I am an employment lawyer. That's right. I am the co-chair of the Employment Department at Parsons, Bailey and Latimer.

Steve-o (07:55.46)
There you go. Nice. Nice. But he can be your lawyer, so plug.

Tony Benjamin (07:58.284)
That's right. Don't take this advice too seriously. Yes.

Steve-o (08:08.175)
That's right.

Tony Benjamin (08:09.675)
That's right. Okay. That's right.

Mark Tolman (08:21.099)
which is a Mountain West regional law firm. We've got offices in Utah, Nevada, Idaho, Wyoming, Montana. I'm based in our Salt Lake office, although I'm admitted in Utah, Idaho, and Wyoming. So at this point in my career, every single case I work on touches on an employment relationship in some way. So everything from disability accommodation to

discrimination, harassment, retaliation claims, wrongful termination claims to contract disputes like non-competes and non-disclosure agreements. And I love it.

Steve-o (09:00.121)
Run.

Tony Benjamin (09:00.169)
Right, and you represent companies usually in those instances.

Mark Tolman (09:04.047)
That's right, Tony. We're a management-side firm. There are a number of very good lawyers who specialize in representing employees only. We're not one of them. We specialize in representing employers only. We make exceptions for reviewing like an executive compensation agreement or separation agreement, something like that. But we don't like to file lawsuits on behalf of individuals.

Tony Benjamin (09:28.287)
Yeah, it makes perfect sense. So Mark, other than your evil design to take over and rule the world, why didn't you get into labor law?

Mark Tolman (09:34.795)
you

Steve-o (09:37.039)
you

Mark Tolman (09:38.123)
So it wasn't my initial intent. I went to law school as a young man. I graduated from Weber State in 2001 as a 23-year-old person and went immediately to law school. When I went to law school, I just didn't understand what an HR person did, that there even was such a thing as an HR person. I had worked in construction jobs, putting myself through college, setting tile.

Tony Benjamin (10:01.771)
Yeah, yeah.

Mark Tolman (10:08.137)
company I worked for is fair to say didn't have an HR person. So when I went to law school there was an employer yeah there were employment courses offered but I just had this skewed assumption that they were about taxes and employee benefit issues. I had no idea so I didn't take employment law wasn't on my radar. I started at a large firm in Winston-Salem, North Carolina based out of Atlanta Kilpatrick Stockton.

Tony Benjamin (10:13.483)
It hit you

Mark Tolman (10:33.835)
and worked there for about a year after law school. And then I moved home to Utah where I'm from. In 2005, started at a law firm called Jones Waldo working under the mentorship of a lawyer named Michael Bryan, who has been involved heavily in the Utah Sherham Council. He predated my involvement there in Salt Lake Sherham. He was my mentor. I loved working with him. And I found out that I just completely misperceived employment law.

Steve-o (10:51.567)
Hmm?

Mark Tolman (11:01.007)
And I wanted to do more and more of it. And over time, my practice evolved from from helping Mike a bit to only doing employment work. It's just every case is different. It's truly a people centric area of the law. There's it's no one would describe employment law as a dry profession.

Although I will say I give presentations all the time and people will say things like, well, that was relatively entertaining or I was expecting that to be so dry and it wasn't. it's like, why would it's not though? I can't take credit for it being interesting. It is interesting. It just is. You know, we get caught, for example, here's a case. Here's a call that came in just the other day. You won't believe it. And when I train supervisors, I tell them that very rarely am I ever surprised.

Steve-o (11:40.173)
Right? It just happened.

Steve-o (11:49.589)
Nice. This is fresh, guys. Dun dun dun dun dun dun dun.

Mark Tolman (11:56.319)
And this one surprised me. So we get a call. client calls us and they've got these two employees, two co-workers, not a supervisor involved, male and female. And the female is down on her luck. She needs some money to fix her car. And she tells her male colleague about this. He says, well, I have some extra money. I could help you with your car, but I'm going to need something in return. I need to see some nudes, he said. And that's not the wild part. That doesn't surprise me at all. That actually doesn't surprise me at all.

Steve-o (12:20.638)
What?

Tony Benjamin (12:21.651)
Of course. OK. OK.

Steve-o (12:23.522)
Wow.

Mark Tolman (12:25.417)
So she obliges, she sends him some nude photos and he gives her like 300 bucks and she fixes her car. Well then, he gets onto her scam. And what she had done is she just went on the webs and found some nude photos of guess women she maybe thought looked sort of like her. And she sent him generic nude photos and he figured it out and he sent her.

Steve-o (12:29.231)
She obliges.

Tony Benjamin (12:30.121)
Oops, oops.

Mark Tolman (12:54.771)
a written communication that said, hey, you've cheated me. I want my $300 back or I'm going to report you to HR. And then he did. He did. He reported her to HR. I mean, that's like a criminal calling the police because someone stole their drugs, right? mean, it's like fact patterns like that are the reason I love my job and the reason I will continue to do this job.

Tony Benjamin (12:57.172)
Oops.

Tony Benjamin (13:07.263)
Yeah, yeah, yeah, okay.

Steve-o (13:11.919)
This is awesome.

Tony Benjamin (13:15.999)
That's it.

Tony Benjamin (13:22.901)
That's really cool. That reminds me of all those pictures or those little short videos from Ring doorbells that go around, know, porch pirates stealing a package and they walk off five feet and it blows up in their face and there's all this paint all over them. They're calling the cops. I'm calling the cops on you. And you're like, yeah, yeah, that's exactly what we wanted. Yeah, that's right.

Steve-o (13:32.035)
Like blows up.

Mark Tolman (13:33.439)
Yeah, right.

Yeah, yeah, yeah. Go for it. Yeah, yeah, yeah. Well, it didn't, it did not work out for this fellow when he reported this matter to HR. He may now need a loan for car repairs. What's that?

Steve-o (13:38.799)
I'm suing I'm suing I was on your property. They say that kind of imagine that imagine that

Tony Benjamin (13:49.503)
That's awesome. So was the act.

I was going to say, was the action you were called in to help with because he was suing the company or chasing the company?

Mark Tolman (13:59.177)
No, no, no, they just were like, what the hell do we do now was the question. Yeah, yeah, yeah. Most of my work is not litigation. The vast, most, little more than half is just advising, counseling clients, compliance issues. I take calls from HR folks every day. I wasn't expecting when I hit my chair. And that's actually the favorite part of my job is helping folks sort out those complex issues and try to avoid litigation because litigation sucks.

Steve-o (14:02.067)
Hahaha

Tony Benjamin (14:02.448)
yeah. Yeah.

Steve-o (14:21.261)
Yeah, that's kind of cool actually.

Tony Benjamin (14:29.015)
That's one of the things that I love about consulting is walking through those sorts of things with people, right? And I always tell people that the difference between an HR manager and HR director is that an HR director has seen everything there is. Like nothing shocks us anymore. It just, doesn't, it never surprises me what happens, right? You're just like, yeah, yeah, I had some similar to that. Okay, here's what you do, right? But that's what I like. That's the exact right thing.

Steve-o (14:43.887)
Mm-hmm.

Mark Tolman (14:51.637)
Yeah, that's right.

And it was terrifying when I started this job and I would get questions and it would be like, well, let get back to you on that. having done it so often, very rarely do I have to get back to people because it's rare when you do hear a situation at this point where it's like, well, geez, I don't know what to do.

Tony Benjamin (15:10.079)
Yeah.

Steve-o (15:15.227)
So how do you base your responses? mean, obviously you have a lot of experience and so I assume that you've seen it before in that sense and so you can address it in that way. But what do you do when you have a case or a question or something comes across where you haven't really seen it before? I mean, you really got to know your stuff, right?

Mark Tolman (15:31.327)
Well, yeah, look, there are times when you have to say to a client, pump the brakes, thanks for the question, that's really complex, I actually don't know. And lawyers need to say, I don't know when they don't know. I'm happy to do it when that's the case. And then we research, right? There's a number of platforms to research. mean, their little secret is lot of us just start with Google, right? I mean, it is a good place to start, but I will tell you that the AI function on Google,

Steve-o (15:41.347)
Yeah. Yeah.

Tony Benjamin (15:54.475)
Right? Yes.

Mark Tolman (15:59.755)
This is not statistically significant what I'm about to say, but I would say in my experience about half the time the answer is wrong. So you can't end with Google, right? So then you look for guidance from the Department of Labor, for example, or the EEOC has a number of publications over the years. Maybe you have to pop on to one of the search engines that has the reported case decisions. Westlaw is the one I use and you look for, has a judge ever seen this before? What did a judge say, right?

Tony Benjamin (16:10.315)
you

Steve-o (16:27.694)
Yeah.

Mark Tolman (16:28.629)
So there are times when you need to research stuff, but most of the time if it's just my, I've got employees that aren't working well together. That sort of stuff, you've addressed it so much that you really don't need to do a lot of research there. Yeah.

Steve-o (16:40.942)
Yeah, you just kind of know what to say and how to advise and you know, it's ultimately up to them to make the decision and hopefully follow the advice.

Mark Tolman (16:46.901)
That's right. Yeah. That's so true Steve and sometimes I'll need to say to clients here's what I recommend and they'll say well we're not going to do that. Okay if you're not going to do that here's the best way to mitigate your risk if you're not going to do the thing I recommended. Right. Yeah.

Tony Benjamin (16:50.155)
Yeah.

Steve-o (16:54.896)
Mm-hmm.

Steve-o (17:04.708)
Yeah, that makes perfect sense though.

Tony Benjamin (17:05.685)
Yep, that's, I just took a call from a client earlier and they're like, can we just fire this person? I said, you can do whatever you want. But if you want to ask me how to reduce your risk and not get sued, then I probably wouldn't do that.

Mark Tolman (17:15.241)
Yeah.

Mark Tolman (17:21.065)
Yeah, that's right, Tony. mean, I tell him, look, know, no one's going to jail over this. And sometimes, you know, the risk of a lawsuit is a risk, right? But there's a risk to keeping a trouble employee, too. And sometimes you just have to weigh those risks and you say, look, yeah, we've got a weakness here. It's not well documented. But if we don't fire this person, our entire team is going to quit. And then we can't produce our product and we're going to go out of business. Well.

Steve-o (17:25.55)
Mm-hmm. Which is positive.

Tony Benjamin (17:25.818)
Right.

Tony Benjamin (17:35.615)
Yes, absolutely.

Steve-o (17:35.788)
Mm-hmm. Absolutely.

Mark Tolman (17:48.959)
All right, there's competing risks and you decide which one you can stomach the best.

Steve-o (17:50.679)
Mm-hmm.

Tony Benjamin (17:54.262)
You know, I always tell lots of HR people to, I just say, imagine you were the lawyer that that person's gonna go and complain to, and that you have to prove this in a court of law, right? What's the odds that you're gonna actually take the case? And usually that's enough to get HR people to calm down a little.

Steve-o (18:06.927)
Yeah.

Tony Benjamin (18:16.471)
Because you know, they freak out. what about this? What about that? And I'm just like, okay, I get it. Your job is risk avoidance. That makes perfect sense to me. But put yourself in the attorney shoes and ask yourself if you would take that case. Yeah, right,

Steve-o (18:28.016)
Yeah, is it defendable? All those things.

Mark Tolman (18:31.273)
Yeah, you sometimes we put blinders on and we only consider litigation risk and it's important to consider it. But there are lots of other non litigation risks out there that need to be weighed to business risk, for example, right?

Steve-o (18:35.898)
Mm-hmm.

Tony Benjamin (18:41.515)
Yeah, yeah, exactly. No, that's exactly right. Okay. I'm going to stop us here for just a second. I'm going to, I'm going to do our, uh, our ad read here.

Steve-o (18:43.216)
Mm-hmm.

Steve-o (18:50.291)
I thought you were gonna do a joke. Okay, all right. Go ahead.

Tony Benjamin (18:52.491)
This is definitely not a joke, Steve. Running a business is hard. HR shouldn't be. Megastar HR is here to save you from bad HR. With expert support and everything from hiring to handbooks, compliance to culture, need payroll help or recruiting power, we do that too. Fractionally and flexibly, no overhead, just results. Visit megastarhr.com and let's grow your business together.

See that mark? Yeah, yeah, I've done it enough now that Steve gets it. So he's. Yeah. Right.

Mark Tolman (19:23.903)
Well done.

Steve-o (19:28.085)
I just haven't memorized, right? Which reminds me of a lawyer joke.

Mark Tolman (19:30.529)
Yes.

Steve-o (19:35.128)
I only know one though that I always enjoyed. So what is the difference between a good lawyer and a great lawyer? So a good lawyer knows the law, but a great lawyer knows the judge.

Mark Tolman (19:36.799)
Let's hear it. Let's hear it.

Mark Tolman (19:43.135)
I don't know, what is the difference?

Mark Tolman (19:48.184)
nice, nice, this is true.

Steve-o (19:49.296)
That's the only one I know

Tony Benjamin (19:53.055)
You

Mark Tolman (19:53.424)
Hahaha

Tony Benjamin (19:55.551)
You

Steve-o (19:55.589)
Now you know, Mark, now you know. You gotta get another judge. That's the only one I know. That's the only one I can take credit for.

Mark Tolman (19:58.741)
That's true. I gotta get to know more judges. I want to be great. I want to be truly great, Steve, so I'm gonna need to get to know more judges.

Tony Benjamin (20:06.219)
Mark, so let's let's talk a little bit. You mentioned briefly your involvement with Sherm. Why don't you mention that? Describe that a little bit. How you got into that and your connection there. I know that every year for Salt Lake Sherm, you do the the legal update that their legal update conference that they do. But talk to us about how you got involved in Sherm and why and all that sort of stuff.

Mark Tolman (20:29.343)
Yeah, well, again, I have to refer to my mentor, Michael Bryan. He introduced me to Salt Lake Shurm first. So Michael Bryan was on the board of the Salt Lake chapter of Shurm and on the State Shurm Council for many, many years. About, I don't even know how many years ago, 13-ish years ago, Mike rolled off of the Salt Lake Shurm board and I rolled on in his place.

And I have served as the Director of Legal Affairs or the Co-Director of Legal Affairs ever since. And I serve in that role today as part of that function. We do an annual legal update every February at the Salt Lake Shurm Chapter Meeting for a couple of hours. We also have recently partnered with Salt Lake Shurm for our Spring Employment Law Seminar our firm at Parsons Bailey was doing.

an employment law seminar in the spring and so it was Salt Lake Shurm. In the wake of COVID, the numbers for both seminars were down a bit. And so we partnered together and combined our seminars. And last year we had, I think people registered. Yeah.

Steve-o (21:43.726)
Yeah, I think it was the most attended they've ever had,

Mark Tolman (21:47.091)
It was, I think it was the highest attended HR event in the state last year and certainly was the most attended we've ever had. So that's been a great event. We do that in the spring. And then in the, gosh, I think it was the late 90s before I was a lawyer, Michael Bryan through Salt Lake Shirem started an employment law newsletter, an actual newsletter with a stamp. And then, yes, years,

Steve-o (21:51.152)
Mm-hmm.

Tony Benjamin (22:10.836)
Wow.

Steve-o (22:10.96)
Really? Was it like lifted on the paper and everything like the official emblem?

Mark Tolman (22:16.523)
Yeah, like somebody had to like lick a stamp and put it on an envelope and send out and then some years later we figured out this thing called email and started sending those Employment law newsletters via email. We now have a whole team of folks working on that email and thousands of Subscribers that was initially something that originated with thought Salt Lake Sherman has grown to be much larger Those are free by the way if folks want to send me a note. I'll get you registered

Tony Benjamin (22:19.531)
Let's try.

Steve-o (22:44.464)
And they're great too. They're great too. I get those all the time. sometimes it's just fun to read some of the updates that are coming out.

Mark Tolman (22:46.229)
Thanks, Steve.

Tony Benjamin (22:47.147)
Yeah, yeah.

Mark Tolman (22:51.849)
Well, yeah, we try to keep it light, you know, like a paragraph or two. We're not writing a treatise over here. That's a lot. would be too much work to do that. So we try to get. Yeah, it's a light read. It's a light read. And then a few years ago, just before COVID, I was invited to replace Michael Bryan on the State Sherham Council. And I've been doing that for the last, I don't know, six or seven years.

Tony Benjamin (22:53.131)
Yeah.

Steve-o (22:54.052)
Mm-hmm.

Steve-o (22:59.248)
No, you're right. And it doesn't feel like that either. So kudos, kudos to your team. Yeah.

Mark Tolman (23:19.463)
as well in my capacity as Director of Legal Affairs. And one of the things that I've helped to start that I've really enjoyed with both Salt Lake Sherham and Utah Sherham is legislative work. We've had and Steve knows this well. He worked hard on it too. We've been able to pass a well frankly a number of bills that are helpful to the HR profession and employers generally. Most recently we

Steve-o (23:35.386)
I do.

Mark Tolman (23:48.991)
passed a bill amending the state protective order statute. Prior to our work, an individual could seek a protective order, but not a business. And that led employers in a tough spot, right? If an employee came to them and said, my coworker's threatening me or this customer's threatening me or you just have somebody coming in off the street threatening your receptionist, what do you do? You can't do anything. You can support those individual employees and hire lawyers and pay for those lawyers to help them get protective orders.

Well, because of our work, we amended the law and an employer now can get a protective order against anyone who is threatening harm or engaging in harm against the employer's people or the employer's property, employees and assets as well. it's rewarding work and it's work that it was. And, you know, it's definitely I help with drafting the legislation. I help with.

Steve-o (24:37.883)
That was a lot of fun to be a part of too. It really was, yeah.

Mark Tolman (24:47.143)
you know, getting some of the doors open, but these bills don't pass without HR folks coming and testifying at the Hill. And that's really rewarding too to help facilitate some of that. We did.

Steve-o (24:56.145)
We had a great turnout. were like they showed up and I you know, and there's a reason why I sure from a national level we actually won the pinnacle award in 24 from that and just from those efforts and and you know, I was talking with one of the directors over at Sherman. They said one of the reasons why we were selected is because it not only did it impact the entire HR community, but you know a lot of pinnacle awards. You really have to show that that people got involved and we had ample proof.

that there were enough people involved in passing that bill into law that it just, it was just exciting. It was really cool to be a part of and just kind of see how we actually can come together as HR professionals and get some stuff done, you know, so. I know that's a big deal. Yeah.

Mark Tolman (25:37.811)
Yeah, that's right. We made a law. How about that? There's a law that exists. You can look it up. You can go find a dusty statute book and open it up. I guess it wouldn't be that dusty yet. It will be eventually dusty. And it's there because of the HR professionals up and down the state of Utah.

Steve-o (25:51.057)
Eventually, yeah.

Tony Benjamin (25:51.467)
At least stuffy.

Steve-o (25:56.336)
Well, and Mark, how many have we had use it already? Because the last number I knew since it had passed was about six or seven.

Mark Tolman (26:04.011)
When I last looked, which has been a few months ago, it was averaging about once a month. Yeah. And when I looked, yeah, there was one employer more than any other that was utilizing this bill to get protective orders. Any guesses? It's not my client, so I can say it. It's a public record. What would you say is the business in Utah that seeks protective orders against individuals threatening harm more than any other?

Steve-o (26:10.895)
Yeah, see, that's a big deal. That's when you know it was important, right?

Tony Benjamin (26:12.277)
That's pretty cool.

Steve-o (26:29.947)
I'm going to say IHC, but.

Mark Tolman (26:33.375)
That's a good guess. It's not a IHC. Tony, what would you say?

Tony Benjamin (26:36.273)
see, I was going to say one of the car dealerships, but I don't really want to say the names in public.

Steve-o (26:39.761)
Like Larry H. Miller.

Mark Tolman (26:40.839)
It's, and this won't surprise you, it's Walmart.

Tony Benjamin (26:45.375)
Wow, really?

Steve-o (26:45.413)
Wow, there you go.

Mark Tolman (26:46.857)
Yeah, that was the last time I looked of the eight or so that we saw over that eight month period. More than half were filed by.

Steve-o (26:54.033)
It's interesting.

Tony Benjamin (26:54.407)
Wow, that's pretty cool actually.

Mark Tolman (26:55.371)
Yeah, you get somebody crazy coming in on the street and threatening your employees and now you can do something.

Steve-o (26:58.213)
which never happens at Walmart or in the Walmart parking lots. So, I mean, I follow the people of Walmart for a long time. I just couldn't see that happen.

Tony Benjamin (27:02.269)
Right, right.

Mark Tolman (27:06.827)
Hopefully it happens less now.

Steve-o (27:09.049)
Not with the way they dress, there's just no way.

Tony Benjamin (27:11.403)
No one ever goes to Walmart. You guys ever see that video online? There was a spoof online and you know some it's a fake reporter and they're like there was a shooting today at the Walmart.

And they're going up and they're trying to interview eyewitnesses. And they put a microphone in this one lady's face and she goes, the ripper's like, you were there at Walmart today. What did you see? And the lady's like, no, no, no, I never go to Walmart. No, no, I've never been in my whole life. I just happened to be this one. And he says a little bit about what happened, goes to some guy and puts a mic in his face. He's like, yeah.

Steve-o (27:42.257)
Could hardly admit it,

Tony Benjamin (27:48.488)
No, no, I wasn't there. I woke up, I blacked out and I woke up and I was in Walmart and I don't know how that happened.

Steve-o (27:52.721)
That's in Walmart.

Mark Tolman (27:53.803)
That's funny. Hey, I'm a loud and proud Walmart customer. No stigma there. No stigma there.

Tony Benjamin (27:58.39)
That's right, man. That's right. Okay, so Mark, I think this is a good transition point with that. Let's talk a kind of big picture here for just a second. What is the state of HR right now? Like, what is the state of HR in general? Broadly.

Steve-o (28:18.033)
especially with all the changes we've seen in the last year.

Mark Tolman (28:20.703)
Yeah. Well, let me start with a caveat to that, right? Like, I recognize this is an HR podcast for HR professionals and like-minded folks, and I'm the like-minded folks. I'm not myself an HR professional, right? I have this little slice of the HR world that I have visibility into and that I'm a service provider for. And I fully recognize that there's a whole pie out there that I just don't even know it. So, but with respect to this little slice of the pie.

Tony Benjamin (28:33.322)
Right.

Tony Benjamin (28:44.104)
See

Tony Benjamin (28:48.029)
See, this is Mark's, this is Mark's, this is Mark's politic, politic way of saying, I'm going to be a little cynical here. So here we go. I'm good with the Mark.

Mark Tolman (28:57.771)
No, no, no, I I recognize so what I'm saying is I can only answer that question from an HR law perspective and The state of HR I totally understand goes a lot farther than just HR laws, you know, look I think there is Certainly, there's lots of change But there's also lots of talk without change that can be very confusing. So for example

Steve-o (29:03.643)
based on his piece of the pie.

Tony Benjamin (29:05.289)
Yeah, that's okay. I'm good with that.

Mark Tolman (29:25.235)
We've seen a lot out of the Trump administration on transgender issues. And here's one more disclaimer. Like I recognize these are politically charged issues and you're going to have listeners on both sides of this political political divide. And I'm asking all of you not to hate me. I'm not I'm not about to offer a political statement. But these are controversial issues and the executive branch is taking some pretty tough positions.

Steve-o (29:37.349)
Mm-hmm.

Tony Benjamin (29:44.138)
Yay!

Mark Tolman (29:54.391)
on transgender issues, suggesting that there may not be transgender employment rights. And I worry that an employer in Utah will listen to all of that talk, agree with it or disagree with it, but assume that that's changed the law. And it doesn't. Executive orders apply to the executive branch and to federal contractors, right? And the executive branch cannot trump

Steve-o (30:19.473)
Mm-hmm.

Mark Tolman (30:21.771)
the judicial branch or the legislative branch, right? So for example, in 2020, the US Supreme Court for the first time said, if you're discriminating or mistreating an employee on the basis of transgender status, you're violating Title VII of the Federal Civil Rights Act of 1964. That's the law today. Nothing about those executive orders changes that law. And so I worry that there might be somebody out there that says, oh, we don't need to worry about

I don't have to intervene when somebody complains about transgender-based harassment in the workplace. I don't need to intervene when a supervisor wants to terminate someone for those reasons because the law has changed and hasn't changed. You're going to get super sued over that and you're going to lose heart. Right? And look, even if the law changed at the federal level, I don't see that happening. I mean, after all, Justice Gorsuch, one of the conservative justices authored

Steve-o (31:05.356)
Mm-hmm.

Mark Tolman (31:17.035)
that decision in 2020 called Bostock v. Clayton County. I don't see justice course. It's changing his mind on that point. He was joined by another conservative justice. So I don't see that changing. It was a 6-3 decision. If it comes up to the Supreme Court again, maybe it's 5-4. It's not going to change. But even if it somehow did, right, there's a Utah law in the book since 2015 that says that transgender status, along with sexual orientation or protected classes under Utah law. So that's part of the state of HR law, Tony, is that

There's a lot of talk and that talk can be confusing about what is the law because that talk doesn't change the law. And then I would also add this, Tony, well, let me ask you this question, both of you. The EEOC every year reports the number of people who filed discrimination charges with the EEOC, number of folks in the United States. And it tells us on what basis, like what protected class. What would you guess?

is the protected class that gets filed on the most? What type of discrimination is most prevalent, alleged more often than any other? Tony, you can't answer this. So Steve, you answer. What do you think? Sex, race, age, disability, religion, ethnicity, national origin, citizenship?

Tony Benjamin (32:22.859)
See, I've seen Mark's presentation or a presentation he did. So I think I, yeah, I think I know where this is going.

Steve-o (32:27.154)
Well

Steve-o (32:34.586)
I mean, my initial thought would be sex. That would be my initial thought. But the second would be harassment in some shape or form. So.

Mark Tolman (32:45.461)
Well, harassment has to be based on a protected class too, like sex harassment, right? And certainly sex discrimination and sex harassment is among the most frequently filed, top five. But it's disability. And it's been disability for a long, long time. So part of it is making sure we're paying attention to what's changing, because the law does change on the margin. Make sure that we understand what's not changing.

Steve-o (32:48.754)
Correct, yeah, yeah.

Steve-o (32:55.884)
is it disability then? Wow. Interesting. That would have been my second guess is disability.

Steve-o (33:11.868)
Mm-hmm.

Mark Tolman (33:15.273)
And don't lose sight of the ball on what happens the most anyway. So here's some data. I've got it pulled up on my screen here so I can get it.

Tony Benjamin (33:23.925)
Here we go. This is the data for everybody right here.

Steve-o (33:24.678)
We love data. Here we go.

Mark Tolman (33:28.506)
88,531 people in 2024 filed charges of discrimination with the EEOC. Of those, 33,668, 38 % were disability. And that number is even higher in Utah. 45 % of the folks from Utah filing with the EEOC said it was on the basis of disability. So just statistically speaking, if you're dealing with a discrimination claim in Utah,

Tony Benjamin (33:36.191)
Sorry, that's awesome.

Steve-o (33:46.318)
Wow.

Mark Tolman (33:56.125)
It's probably almost 50 % likely based on disability, not on transgender status, not on sexual orientation, not on these, not on DEI issues. It's on disability. So I'm afraid if we lose sight of the bread and butter and we like stop training supervisors on these issues in a regular way, because we're so focused over, you know, over here on these issues that are in the news all the time, I'm worried. I'm worried about for employers for that.

Steve-o (33:59.891)
based on disability.

Mm-hmm.

Steve-o (34:24.626)
So 88,000, that's kind of high. That seems a lot higher than maybe 2015 or 16, right? Or somewhere around there.

Mark Tolman (34:30.859)
It is a 10 % increase over last year. We did have a big, big dip down to I think 60,000 something right after COVID. We had some high, well, I think that's right. I do have a theory about that if you're interested in it. But before COVID, I think a decade or so ago, we were close to 100,000. So we're below that. We're below those high watermark years near 100,000, although we're creeping up.

Tony Benjamin (34:43.371)
It's because nobody had been working, so.

Steve-o (34:55.026)
Gotcha.

Mark Tolman (35:00.103)
Since that low year after COVID, every single year has been an increase in folks filing charges against their employers with EEOC.

Steve-o (35:10.226)
crazy.

Tony Benjamin (35:11.327)
Yeah, in Mark, you and I have talked about this. do a little work with Pearson Butler on on the plaintiff side. Right. And and I'm I'm surprised at the number of people that approach me about mean bosses. Right. That that's the biggest number of complaints that I see here. They didn't treat me right. They were mean. They told me they'd do this and they didn't, you know, that sort of stuff.

Mark Tolman (35:28.96)
Yeah.

Tony Benjamin (35:38.52)
And I hate to just tell people the law doesn't protect you against the jerk, right? They just don't. And it's, I don't know, think it's a sad commentary. guess I look at it this way, and we all know these businesses in Utah, by the way, right? That they are always turning through their HR people and they never can keep an HR person.

But, you know, I just, I just say, eventually those things catch up with your business and you get zapped and you get zapped a couple of times. That's exactly right. To me, me, to any Coldplay, I wonder what they lost in value on that deal. Just the value of that company. I wonder what they got dinged. I bet it was significant. So, Mark, these are all under the ADA, right? So the Americans with Disabilities Act. And that was a law passed by

Steve-o (36:09.372)
Yeah, too many Coldplay concerts and you run into real issues.

Mark Tolman (36:13.222)
That's right.

Tony Benjamin (36:32.797)
number one Bush, Bush number one. And, and he came in, this was a pet thing of his for a long time. Well, while he was in the Senate, he really wanted to pass the ADA. And finally, when he became president, he was able to do it. And then and then this is my understanding this you tell me if the history of this is right, that the courts over time were narrowing rights under the ADA, meaning it was getting harder and harder to sue employers. And so that's why they decided to pass the ADA AA.

Americans with Disabilities Act Amendment Act later, which is one of my favorite. That's one of my favorite laws to say the Americans with Disabilities Act Amendment Act.

Mark Tolman (37:05.855)
You've got it right.

Steve-o (37:11.346)
You

Mark Tolman (37:11.563)
That's right. So you've got that history, right, Tony? The ADA was passed some 35 years ago in 1990. And in the decade and a half that followed, it's not that the court was narrowing the ADA or even really could a court narrow statute. But what happened was is that the litigation really wasn't about whether or not an employer provided a reasonable accommodation or whether a hardship

made it so they didn't have to. The litigation was on whether or not the individual had a disability. So in every case, there was a medical expert to testify on whether or not they had a physical or mental health impairment that substantially limits one or more major life activities. That's what the litigation was about. So in 2008, Tony, the Congress amended the law to provide more coverage and to shift the focus of litigation from

whether or not someone is disabled to whether or not the employer provided a reasonable accommodation or whether one was available. And so since 2008, I don't think I've had a single case where we engaged an expert to testify about whether or not the plaintiff had a disability.

Steve-o (38:30.092)
All those poor experts now, they can't get paid for their extra time.

Mark Tolman (38:32.138)
That's right, they got to do something else. Yeah, unintended consequences, I guess. The whole industry went away. There's been plenty of litigation since then, even more so really, right? mean, folks understand the ADA in ways that they just simply didn't 10 years ago that, yeah.

Tony Benjamin (38:34.101)
Dang it, I was going to do that as a sideline. Now I'm out.

Steve-o (38:39.42)
So much for Tony's side hustle.

Tony Benjamin (38:41.355)
That's right.

Steve-o (38:44.807)
Mm-hmm.

Steve-o (38:50.652)
Yeah, I think the education piece has been huge, right? Because I've seen a lot of conferences. I've been all over the country, obviously, and seen a lot of speakers. And I feel like the education piece has been the most critical. And I think that attests to the types of presentations that your team does, Mark. mean, by educating us from an HR profession, we are more equipped to, I don't know,

just better our own company and organization instead of acting like chicken little like the sky is falling, we can actually focus on, well, here's what applies. Here's what we need to be aware of. And here's how we can just mitigate that risk. So it's more of what it was intended to be. So.

Mark Tolman (39:28.915)
Yeah, and certainly there are materials available to your employees, right? Current and former chat GPT has changed the way people approach employment disputes. I do a lot of in-house training for my clients. I train supervisors a lot. One of the topics I train on is the ADA. And I'll just tell you, compared to other topics I train about, discrimination, harassment, retaliation, documentation, for example.

Steve-o (39:33.476)
Mm-hmm. Yeah, AI is a beautiful thing.

Mark Tolman (39:55.915)
supervisors are simply more engaged on this topic because they have employees come to them, whether they know what to do with it or not, with disability issues. And so it's always an engaging discussion. And I really think that that's where employers who want to avoid these claims, they don't want to be part of this 45 % of the charges in Utah, they're going to be proactive and not just sending their HR folks to conferences, which they should do, but

have their HR person or bring someone in externally and train your managers. I think most especially on how to recognize when an employee may be requesting an accommodation. Because I think that's really where the ball gets dropped the most often.

Steve-o (40:39.293)
That is such a great point. That is such a great point because the supervisors and the managers are the ones that are gonna deal with it first. They're the ones that are gonna experience it. They're the gatekeeper, if you will. And sometimes the gatekeeper is holding onto it a little bit too long when they should be addressing it, right? And that's where I think a lot of the problems that I've seen, so.

Mark Tolman (40:45.727)
Yeah, they are.

Mark Tolman (40:57.088)
Yeah.

I think if a company addresses ADA accommodation on page 35 of its 80 page handbook, right? And that's the only time they address it. Like, believe it or not, folks, not everyone's reading page 35 of your handbook. And I'm reading it. I'll read it.

Tony Benjamin (41:06.251)
You

Steve-o (41:12.653)
What? Tony does.

Tony Benjamin (41:12.963)
That's shocking. I, I write some very, I write some very entertaining policies, I'll have you know.

Steve-o (41:17.363)
Hmm.

Mark Tolman (41:19.295)
Send it to me, I'd love to read it, but your employees probably aren't reading it. And here's the other trouble, Steve, is that not only are supervisors not understanding that the ADA is triggered, sometimes the employee themselves doesn't know it either. And then, so you've got an employee and a supervisor, neither one understands that there's a law here that's supposed to be followed. So an employee with a disability is getting performance management. They're not getting an accommodation. They get fired, all without either one of them even knowing a law.

Steve-o (41:21.843)
You

Steve-o (41:30.835)
Yeah.

Steve-o (41:43.794)
Yeah.

Mark Tolman (41:49.097)
And then that employee feels something wasn't right. They've put something into chat GPT or they call a lawyer. And that's when, aha, suddenly we've got somebody raising an ADA claim. And I just think employers need to get ahead of this. Talk to your supervisors. They're on the front lines. Make sure they know that an employee does not need to invoke specifically the ADA. They don't have to come and say,

Steve-o (42:03.997)
Yeah.

Steve-o (42:12.754)
Yeah.

Mark Tolman (42:14.451)
Supervisor I'd like an accommodation for my disability under the federal Americans with Disabilities Act amendments act Right now look if they do that like they've triggered their they've triggered their they yeah like if that's what they say like get it in the hands of HR but all they have to do really is say something about their job and something about their health and marry those two concepts together and if supervisors don't know that if supervisor doesn't know how to respond to an employee who says hey, you know, I

Steve-o (42:20.147)
I'm sorry.

Steve-o (42:24.657)
What? That happens to me every time.

Tony Benjamin (42:24.733)
If they say the ADA, AA, I give them extra points. Yeah.

Mark Tolman (42:43.765)
My anxiety is really making it hard for me to deal with customers. If a supervisor doesn't know that that triggers the ADA, you're bound for a lawsuit. It's going to happen eventually.

Tony Benjamin (42:54.549)
You know, one of the things I always tell people as a critical indicator, right, of whether or not the ADA may be involved or whatnot, is watch your employee and if they're starting to use their sick time or PTO often, if they're just starting to use it, then we as HR, and I'm of a big proponent of HR handling these things as much as possible instead of asking managers to do it, but someone needs to approach them and say, are you okay?

What's going on? What can I help you with? Right, right, but go to them and say, are you okay? You're missing a lot of days lately and look, you have PTO or you have sick leave and all that and you can take those. I'm just concerned that something is wrong and I need to see if I can help you.

Steve-o (43:23.955)
And there's nothing wrong with

Mark Tolman (43:26.421)
Yeah.

Tony Benjamin (43:40.176)
And if you go and ask somebody sincerely, generally speaking, it triggers the conversations that should lead to that discussion, whether or not it really is ADA. And it's like it's the first indicator and to be proactive. But instead, a lot of managers just get ticked off. Suzy's abusing her time off and she just keeps calling out and more and more.

Steve-o (44:00.913)
Yeah, they totally look at that side of it. They don't think about the human element, which boggles my mind sometimes with these people.

Tony Benjamin (44:08.094)
And what I...

Mark Tolman (44:08.383)
Yeah, or they think it's unfair, right? That I can't provide something special. And that's, look, I mean, let's be fair to supervisors. We drill into them. Be fair, be consistent, don't treat anyone differently. And then we say, accept, right? Accept when they need it for disability accommodation. Like they need to know that there are exceptions to that very good general rule. And Tony, you're right, they need to be empowered to ask, how can I help you?

Steve-o (44:10.61)
Mm-hmm.

Steve-o (44:16.498)
Mm-hmm.

Tony Benjamin (44:18.557)
Right, right.

Steve-o (44:19.547)
Yep, exactly.

Tony Benjamin (44:35.529)
Right. And the cool thing about that is then instead of it being an adversarial conversation, it becomes a conversation which you're on their side. Right. And there are always limitations to something like that. But my experience is if the person really is abusing the system just by asking that it perks in their head like crap I've pushed a button here. They've now noticed and they start tailing that off. Right. They start

Mark Tolman (44:41.653)
Mm-hmm.

Tony Benjamin (45:02.269)
not calling in sick as much. But if they really are ill 80 90 percent of the time they they will say something hey this has been going on it's either their illness or yeah my you know I'm caring for my mother and she's got this and right something like that and that's the point where I start going okay this is this is why we have these conversations but anyways hey it's just

So Mark, your experience, how do most employers mess it up? How do they mess up those ADA claims or accommodations?

Mark Tolman (45:32.585)
Yeah, well, first, just the hypothetical we've been talking about. Manager has conversation with employee who discloses something physical or mental about their health that's getting in the way of their job and doesn't understand, simply doesn't understand that the ADA or the FMLA, now the Pregnant Workers Fair Disact, the PWFA, that there is this network of acronyms that may be invoked by that conversation. So I would say first and foremost, Tony, that's it.

Steve-o (45:53.127)
Yeah, a new one.

Tony Benjamin (45:53.888)
Yeah.

Mark Tolman (46:03.025)
After that, I think it is this notion that I can't treat you differently. I need to treat everyone the same. The analogy I give when I train supervisors is imagine an employee comes to you and says, here's my doctor's note. I've got this fill in the blank visual impairment, not corrected through glasses or contact lenses. And I look at spreadsheets all the day and my performance is suffering because I can't see them. And my doctor recommends I get a large high definition.

And the supervisor says, gosh, to themselves. Of course, if I give her that or give him that, everyone's going to be mad. And you know what? Tough it up. I never got the high definition monitor. I think being dismissive, I think being overly concerned about what others in the organization might think, I think also leads to trouble. And all of this is resolved, frankly. Not all.

Tony Benjamin (46:45.129)
Yes, that's ISS, I hear that.

Mark Tolman (47:01.065)
you're going to have some stubborn managers out there. A lot of this is resolved by being proactive and having regular conversations, training your supervisors on what to do.

Tony Benjamin (47:10.729)
You know, that's good. You know, I worked for a company once where we had an employee who faked having cancer.

Because you know somebody had had cancer in the company and everybody had donated PTO and given this person all this time off and all that sort of stuff and And you know she started she wanted additional attention and she wanted to take days off and so she faked having cancer she faked doctors notes and everything else and went so far as to shave her head and And I you know and it only came out later when the company called and said hey called the doctor and said hey, you clarify this?

Steve-o (47:36.893)
Wow.

Tony Benjamin (47:46.746)
know and the doctor's like I have no idea who you're talking about and and you know so look I get it some people abuse that stuff but they are rare matter of fact most people don't want to be known that they have a disability like my generation for sure I if I got something I'm not telling my employer unless I absolutely positively have to right hey Mark while I'm thinking about that

Mark Tolman (47:49.152)
Yeah.

Tony Benjamin (48:09.915)
How about ADD? Because I know this is like a boundary thing, right? About attention deficit disorder, especially in adults, and how much does it really affect their product, their performance and all that?

In my mind, I guess I see that as one of those things that yeah, that's a legitimate disability and it can cause problems at work and that sort of stuff. But it also seems one of those things that's a a giant thick gray line. What is, what has been in the courts about that in particular?

Mark Tolman (48:40.757)
So ADD for sure has been recognized as a disability and mental health impairment, right? And that's another distinction we ought to stress is that ADA is both physical and mental health. And mental health is just far and away. We see more mental health disability accommodation requests than physical.

Steve-o (48:58.868)
And these require an actual diagnosis, right? Because I have a certain member of a person that I know who has self-proclaimed, right? And I always shake my head at people like this because I'm like, you can't just self-proclaim that this is your issue. You actually have to get it diagnosed.

Mark Tolman (49:01.749)
They do. So that's right.

Mark Tolman (49:20.265)
Well, you know what I would say to that Steve is most of the time that's right. I mean sometimes there's a quick simple easy fix available. Employee comes and says I have ADHD or ADD and what I need from you, only thing I need is a set of noise canceling headphones. Now an employer in this situation can say I need a doctor's note. I want to know all about this ADD or an employer can say here's the headphones don't tell me anything more about it right. So to your question Tony what I would say is it

Steve-o (49:46.27)
Yeah. It's a great point.

Tony Benjamin (49:46.43)
You

Mark Tolman (49:49.511)
It depends, right? So we start off with saying the ADA requires accommodations for both physical and mental health impairments. But those impairments need to substantially limit a major life activity. And given the amendment in 2008 we've already talked about, what they would need is a doctor to certify or verify that I've diagnosed this person with ADHD and here's how it's affecting them.

Steve-o (50:11.7)
Mm-hmm.

Mark Tolman (50:16.887)
And so somebody who's making it up isn't going to get that doctor's note maybe. And then you'd be able to say, well, something's going on fishy here. I think if you've been diagnosed with ADHD by your doctor, your doctor is also going to tell your employer that you need an accommodation. And so if they get a doctor's note, Tony, that verifies that it's not only do they have it, but their experience with it,

Tony Benjamin (50:22.187)
you

Steve-o (50:33.044)
Yeah.

Tony Benjamin (50:33.577)
Right.

Mark Tolman (50:41.851)
is impacting their life in some substantial way, then it's going to be covered. I had one of these cases a number of years ago. It was an employee who worked in a large call center, had to go through some training, was struggling with the training, needed retraining because of ADHD. And he asked for something sort of odd. He said, what I need in order to focus.

In addition to more time to study is I don't want you to put my workstation near a woman. We thought, well, that's odd. We can't do that. We can't do that for you. But we can give you more time to study. And he could never pass the test and ultimately was off boarded not long after being on boarded after several weeks of studying.

Tony Benjamin (51:17.899)
I can't wait to hear the second half of this story.

Steve-o (51:22.932)
Yeah

Mark Tolman (51:39.179)
and failed attempts to meet those. Yes, that's right. Yes. So he then files and well, yeah, well, they were just innocent bystanders. He didn't enjoy sitting next to them apparently. Well, OK, so we get into the litigation and we get the medical records and the medical records show why he wanted that accommodation. He had obsessive compulsive thoughts about women.

Tony Benjamin (51:39.301)
Off-boarded. Off-boarded. There's another euphemism we can pick up right there for Steve Jaffe, Steve.

Steve-o (51:46.76)
But the fact that a woman was involved in all this, just...

This right?

Tony Benjamin (51:54.187)
Right, right.

Mark Tolman (52:07.997)
triggered when he would see women's thighs and his thoughts were about cannibalism. He wanted to eat them and I had to ask him at his deposition about this. By the way, called the court reporter and prepared the transcript and I told her in advance like if there's a male court reporter that you if you don't feel comfortable here's what you're going to hear but if you're coming you got to wear pants all the way to the ankle please.

And and so it was it worked out for her at the deposition. He swore up and down that he never acted on these impulses But yeah, he didn't win that case right it that case didn't you're not gonna get an accommodation to like not have to work around women because I'm gonna I Can't focus on my work because I'm thinking about consuming that so there's gonna be boundaries Tony To ADD and ADHD most of the time they won't be about cannibalism. I guess statistically that must be true

Steve-o (52:37.48)
That's a reasonable combination, right?

Steve-o (52:55.795)
you.

Tony Benjamin (53:05.503)
I was going to say the boundary being cannibalism, think that's a relevant, reasonable boundary.

Mark Tolman (53:07.499)
But it's gonna be, again, it's gonna be things like noise-canceling headphones and working in a quiet space. You're gonna get a lot of requests for remote work with folks with attention deficit issues as well. And look, if they have a doctor's note verifying it, and I'm here to tell you they're gonna get one, that's gonna tell you they deserve it, then you gotta give it to them, right, unless...

Tony Benjamin (53:24.254)
Okay, no.

Tony Benjamin (53:30.589)
Yeah.

Mark Tolman (53:34.74)
they're asking to be excused from something essential or the thing that they're wanting would cause an undue hardship,

Steve-o (53:37.64)
Yeah.

Tony Benjamin (53:42.346)
No, that's and we could probably spend another full hour having a conversation about what is a reasonable accommodation, right? Because I know courts put limits on, you know, we would have to spend five thousand dollars on, you know, on a different kind of computer for you and, you know, stuff like that.

Mark Tolman (53:50.379)
We could.

Steve-o (53:52.371)
But let's not.

Mark Tolman (53:53.909)
Ha

Tony Benjamin (53:59.84)
the courts say, man, for you, five grand is no big deal, right? That sort of stuff. And like I said, we could go into that a long process. But I think that the cardinal rule that I've always ended up with is be reasonable and accommodate them however you honestly can.

And it's a fantastic way to say, now, that doesn't mean you have to create new jobs for people. It doesn't mean you have to redo your operations to accommodate one person. All that's ridiculous. But it does mean that you have to see if you can't find it. And you keep talking until all avenues are exhausted, until you've gone back with everything back and forth, right?

Mark Tolman (54:42.923)
That's right, Tony. Yeah, I agree.

Tony Benjamin (54:47.593)
Yeah, OK, here's now, Mark, I wanted to hit on this. And this is something that I see right now on the opposite end. Although I've worked at one employer where I got some EEOC complaints at one time. So the EEOC process and now kind of lay into this. And the question I have for you that I want to get to next is, you know, how should companies reply to EEOC complaints? But so an EEOC complaint, usually someone in a

They don't have to go through a lawyer because usually a lawyer will want to contact you first and figure it out first before they go to the EOC. But they file with the EOC and then you get this notice in the mail that says and I've had some that are like two sentences long, which I thought were awesome. Yeah. So you get them in there. You know, they don't have to be much. They have to be prima facie is my understanding. Right. But, you know, if that meaning if it's true, if if at first face it's plausible, if it's true, then there's a complaint.

Steve-o (55:28.072)
Wow.

Tony Benjamin (55:43.691)
So you get that in the mail. So what's the best response to that?

Mark Tolman (55:51.669)
Well, first, remember in Utah, employees have a choice. They can file directly with the EEOC. There's not any EEOC office in Utah, so it's going to be somebody out of Phoenix handling it. have far few, I told you there were 88,000 and change folks who filed charges. They have fewer investigators than that. yeah, their investigators are slow, they're overworked. know, Tony, I don't know all that.

Tony Benjamin (56:10.675)
Yeah, right. Not many. Right.

Steve-o (56:12.145)
Imagine that.

Mark Tolman (56:20.323)
I can't remember the last time I received anything from the EEOC other than we've closed your case and here's your right to sue notice. And Tony, I like to think it's because I write a very good position statement. But maybe it's because, maybe it's because no one's reading it. And I just don't know. I don't have a sense of that. But in Utah, remember, they have the option to file instead directly with the state with the

Tony Benjamin (56:27.873)
wow, yeah.

Steve-o (56:32.949)
That's exactly what it is.

Mark Tolman (56:45.259)
UALD, the Utah Anti-Discrimination and Labor Division, UALD has a work-share agreement with the EEOC. So if you're with the UALD, it's filed duly both places, but the UALD will do an investigation. My experience with the UALD is far different than the EEOC. You're going to get an investigator who is invested, who is interested in finding out what happened. If you're at the UALD, you need to provide

a narrative position statement responding to each allegation. I recommend that you help the investigator write their ultimate determination. Put some law in there. Tell the investigator why even if what they're saying is true, this wouldn't be a valid charge, right? Get that in. There's also a series of 13 questions, requests for information that the UALD is going to push for. Most important to them is going to see comparators. How have you treated other people who did the same thing, right? Get that data to them.

You're also going to need to be thoughtful about who you identify as the people most knowledgeable. The UALD is going to want you to tell them that, and they will do witness interviews. They used to do them, I would say, 10 times in 10. For whatever reason, over the last year and a half, that's more like eight times in 10, my own non-statistically significant poll. But they're involved, and the UALD has authority to issue orders against an employer, to issue findings, to require an employer

pay back wages. Now an employer can appeal that of course, as can an employee, but I would take those issues seriously. And I frankly, I would hire a lawyer. Doesn't need to be this lawyer, but I would hire a lawyer. Yeah.

Tony Benjamin (58:19.487)
Yeah.

Tony Benjamin (58:24.523)
But it could be this lawyer.

Steve-o (58:26.997)
So you had mentioned the 13 questions, is that what you said? 13 questions.

Mark Tolman (58:30.667)
Yeah, there's a request for information. happens to be 13 of them.

Steve-o (58:35.057)
for information.

Mark Tolman (58:36.671)
Yeah, so they'll want to use to provide all documents. Most of them are document requests, like provide all documents about this person's discipline they've received, provide all documents that explain why they're no longer employed. They will ask you to identify if this is a termination case. Every other employee who you've terminated in the last six months prior to this person getting fired and in the six months since,

Tony Benjamin (58:37.162)
Yeah.

Steve-o (58:41.14)
Mm-hmm.

Mark Tolman (59:01.739)
and identify their protected classes, who their supervisor was, why they were fired. It's a lot of work to respond to these. You know, we had a case a number of years ago before they hired lawyers. responded, it was somebody who was operating heavy machinery and he was taking medication. And they said, well, we just can't have, he also wasn't licensed to operate the machinery.

Well, they said, you know what, you're fired because you're taking medication. Didn't consider a reasonable accommodation. If they had hired a lawyer, their lawyer would have said, you weren't qualified. You didn't have the right license to do it. Even if the medication issue was unrelated, you told us you had a license and you didn't. I'd get a lawyer. Again, doesn't have to be this one. But if you're at the UALD, that's an agency that can enter orders against you.

Steve-o (59:43.413)
It would have been so much easier.

Tony Benjamin (59:50.869)
Yeah.

Mark Tolman (59:57.387)
I would take those seriously and I would provide a fulsome response.

Tony Benjamin (01:00:01.993)
Yeah, so in the tactic that I've always taken with any of those sorts of requests for information or whatever that comes along is that I give a big response. I don't give short, terse response. So those instances where I said I got complaints from the EEOC, it's two sentences long, right? I think my responses to all that with the documentation I provided is somewhere around 60 or 80 pages, right? And you get this big narrative letter on top and then you're going to document everything that went along with that employee, why they

Mark Tolman (01:00:26.474)
Yeah.

Tony Benjamin (01:00:31.927)
were in trouble, what they did, why you made the decision you did, what steps you took to make the decision, right? And then, and then you're going to provide as many of that as much of that documented as possible. And then and then it's, I'd rather get it all out front first. And look, even on the other side, when I make filings with the EEOC, this is this is my tactic is I give them all the information up front. And I'll even provide them some of the counter arguments that an employer has said to me.

and say, here's why this is not the case. Like I will give I'll give the full picture and still come to this conclusion, right? Because I'm thoroughly of the belief that if I leave something out or try to hide something until the second round of something, it's a lot less impactful. So if you're the internal, at least my tactic is this, give them the full information all up front and say, okay, I'm going to put it on the other party now to

to dispute this or to make a counterclaim against this, right?

Mark Tolman (01:01:33.835)
Tony, that's the right strategic response.

Tony Benjamin (01:01:36.523)
Yay. Okay, here we go.

Steve-o (01:01:40.104)
Way to go.

Tony Benjamin (01:01:40.669)
I was waiting for that word.

Mark Tolman (01:01:41.192)
Listeners, Tony told me in advance that there was a drinking game here and here you go.

Tony Benjamin (01:01:44.371)
Yes, yeah, that's because I've been thirsty for a while. I'm to take second one just because that's been a long time.

Steve-o (01:01:45.525)
That's right. I'll say it for you, Tony strategic.

Tony Benjamin (01:01:52.545)
Thank you. I was running out of caffeine in the bloodstream. So there you go. But OK, thank you. Thank you. That's that's I like it when people tell me I'm right. So thank you, Mark. That's that's fantastic. Yeah, that's right. OK. No, they come so very few. So seldom that I have to celebrate that kind of thing.

Steve-o (01:02:05.802)
haha

Mark Tolman (01:02:06.763)
You're right. You're absolutely right, Tony. Don't treat those lightly. Don't treat those lightly.

Steve-o (01:02:08.435)
He loves that. I never tell him he's right.

Tony Benjamin (01:02:20.126)
I wanted to and we're kind of getting near the end of time or whatever. I wanted to talk about this Muldrow versus city of St. Louis and the new adverse action thing. And we probably don't have a chance to go into it in detail. For those of you who are listening to podcast, we'll put the link to the court case itself in the show notes. And so you can drop it in. Steve and I joke all the time that we love reading court cases. I think it's awesome. I'm such a nerd, but.

Steve-o (01:02:48.445)
It's just fun, it's fascinating to see. And I don't think this case has really come to a conclusion yet, has it? I don't... okay, okay.

Mark Tolman (01:02:56.555)
No, has. last year, yeah. So last year, the Supreme Court issued its decision in the Moldrow case. And for many, many years, the standard to show in a discrimination case, right, in order to have a case, you had to show that your employer took an adverse employment action against you, right? Something negative. And the standard that courts applied to that was it's got to be something significant or material. And they concluded that reassignment

Tony Benjamin (01:02:57.772)
The Mulder one has.

Steve-o (01:03:04.661)
Gotcha.

Steve-o (01:03:17.29)
Mm-hmm.

Mark Tolman (01:03:27.015)
wasn't material enough. That case, by the way, was a NASA case where an employee was reassigned to work in a wind tunnel, if you can believe that. And she said, I think it's because of my race. And the court basically said, even if that were true, this reassignment didn't have a material significant adverse impact, therefore it's not actionable. Well, Supreme Court in the Muldrow case said that was never the right standard. It doesn't require a higher showing, significant or material.

Steve-o (01:03:27.027)
Wasn't material enough, yeah, significant, yeah.

Mark Tolman (01:03:56.831)
You do still have to show adverse. And so the new phrase is harm. Some harm is the phrase that the court gave us. during the, when the court went up on for oral argument, some of the questions the judges were asking were about DEI programs. Maybe you've got an affinity group and you say you need to be a member of the affinity group to come to this lunch. Right? Is that harm?

Tony Benjamin (01:04:23.414)
Right.

Mark Tolman (01:04:25.227)
Or maybe it's something a good old well or sort of the opposite of that, right? In a DEI

Steve-o (01:04:25.729)
The good old boys club.

Right? Yeah.

Tony Benjamin (01:04:29.694)
Mm hmm. You got to be you got to be half Italian right handed person to attend this meeting. Right? Yeah.

Mark Tolman (01:04:35.379)
yeah to come to this or to participate in this mentor program and so I plainly we're going to see an increase in litigation as a result of that decision. Employees don't need to show that it was significant or material in the ways that negatively impacted them. As long as they can show some harm they can take a case to court. It doesn't need to be thousands of dollars or millions of dollars in damages just some harm and then they can take you to court.

Steve-o (01:04:35.968)
Wow, there you go.

Mark Tolman (01:05:03.167)
So yeah, it's an important decision. We're now waiting now on lower courts to start telling us what some harm means. We only know what it doesn't mean. It doesn't mean significant or material.

Steve-o (01:05:14.614)
Well, I have seen one definition, it's more than trifling. Right? There you go.

Mark Tolman (01:05:18.121)
More than than de minimis, right? Yeah, yeah. So I've seen that one too, which was the old standard we looked at for religious accommodation, which by the way, that standards blown out now too. So lots of change.

Tony Benjamin (01:05:20.33)
Yeah.

Steve-o (01:05:30.587)
Well, I think I think one of the things I noticed about this case was you know, she got a worse schedule, right? There were worse hours the duties were completely different and Well, not completely different but there were a lot of differences in what her responsibilities and perks were because her title didn't change her pay did not change and that's why it initially said nope This isn't you know, there's nothing here. But the fact that her schedule changed her responsibilities and perks change her perks Especially like she had some really cool perks from what I recall

Mark Tolman (01:05:58.559)
Well, she was a police officer. Was. was talking about she's past tense. This is real person. She is a police officer and she had this exciting job, right? Stopping crime on the streets of St. Louis. And she was reassigned to desk duty and believe that may have been because of her gender or her race. And the lower court did it. It did as it had to do. It said, you don't have a case. Reassignment is not adverse action. The Supreme Court said, no, come on.

Steve-o (01:06:00.32)
Yeah. Yeah.

Tony Benjamin (01:06:01.782)
there.

Steve-o (01:06:06.922)
Yeah.

Steve-o (01:06:13.718)
Yeah.

Steve-o (01:06:24.234)
Yeah.

Mark Tolman (01:06:28.04)
Take another look at this lower court. She just has to show some harm here. If they put her on death's duty because of her gender or because of her race, they can't do that.

Steve-o (01:06:29.332)
Yeah, yeah, yeah.

Steve-o (01:06:36.694)
Correct.

Tony Benjamin (01:06:37.524)
My favorite part about that case is that the court essentially says, you know, that the St. Louis, the city St. Louis in response says, hey, look, if that's going to be your ruling, if it's going to be, you know, just any harm, then you're going to the courts are going to be flooded with this, which is a logical argument to me. And then the court just says, that's not our problem. That's the that's Congress's problem. They should they should write a better law. And I was just.

Mark Tolman (01:07:01.043)
not yeah

Steve-o (01:07:02.262)
Ha!

Tony Benjamin (01:07:06.262)
I was like, that's hilarious. That's the Supreme Court slapping Congress and saying, you guys suck at writing laws. You should do better at this.

Mark Tolman (01:07:13.065)
Well, right, Congress can, right? They did that. They expanded the ADA in 2008. And certainly they could restrict Title VII by putting in, by qualifying adverse action in the statute to say significant or material, to take us back pre-mortem. Congress can do that. And if they don't, you're right. It's going to be more work for folks like me and the two of you. And as I tell folks all the time, yes, it's going to make our jobs harder.

We should always rejoice when that happens. It's the reason we get to have a job in the first place. If these issues were easy, they wouldn't need us, right? We should be grateful when the Supreme Court makes our jobs more difficult.

Steve-o (01:07:44.118)
That's right. It's like job security.

Tony Benjamin (01:07:45.302)
That's right.

Steve-o (01:07:53.27)
there we go.

Tony Benjamin (01:07:54.317)
Now that's okay. So if everybody wants to review that case, that's Muldrow versus city of St. Louis, Missouri. And the Supreme Court ruling on that. And it was April of 24 is when that course or when that suit that that case came about was decided.

Steve-o (01:08:10.122)
Yeah, and really what I did is it kind of lowered the bar a little bit there, even though the bar hasn't really been defined completely. I still think...

Mark Tolman (01:08:17.855)
Yeah, the bar always said it always said adverse action on it, but we didn't know how high it was.

Tony Benjamin (01:08:24.542)
Right, right. And I think, you know, I get the question all the time. I've got this employee that's been out on FMLA and they're coming back and I couldn't have that position open forever. So I've backfilled it. I have to bring the person back.

Do I have to put them in the exact same position? Because the law legal requirement, of course, is equivalent position. And I don't know. That's interesting. Mark, does Muldrow affect that process? It seems to me that it would. That it would have a ripple effect on returning FMLA.

Mark Tolman (01:08:54.911)
Well, it.

Mark Tolman (01:08:59.697)
think it will. So, Moldrow is about adverse action and the meaning of adverse action. You're talking here, I certainly think it will apply in ADA cases and AIDS discrimination cases, not just Title VII. I suspect it will apply not just to discrimination, but also to retaliation cases. And certainly, I think it could apply to FMLA retaliation cases too. Whenever adverse action is an element of the offense. What you're talking about here is reinstate.

Steve-o (01:09:05.206)
Mm-hmm.

Tony Benjamin (01:09:17.131)
Right, right, okay.

Tony Benjamin (01:09:21.204)
Right, right, and that's kind what I was thinking.

Mark Tolman (01:09:28.835)
and there's an entire statute and regulatory framework that talks about when reinstatement is required. Now certainly if they were going to say you didn't reinstate me to punish me to retaliate against me if there's an if there's a retaliation claim I do think Muldrow would be applied there. If it's an interference claim you simply didn't comply with the FMLA I think we'd just be looking at the existing body of law there and yeah you probably should put that person back in their job.

Steve-o (01:09:39.648)
Yeah.

Tony Benjamin (01:09:52.938)
Yeah.

Steve-o (01:09:54.485)
You know one last thing I want to say on this. I'm sure Tony's got some other things, but you know, whenever I read cases I always want to think to myself. OK, what does this mean for me as an HR professional? What does this mean to my managers? From you know what they could be taught or what they can be educated on to make this better. And I felt like one of the biggest things is is understanding the hours, assignments, visibility, perks, working conditions, all these terms and conditions. If you will, that.

that those are technically protected, right? There are elements of that that could be protective or protectable. I don't even know what the word is there. And when we say that, she'll be better in that desk role, or he'll fit better with that team, or when you start saying things like that, that's where, to me, those are the red flags. And helping our managers understand those things as a red flag is really where the application here is, if I'm not mistaken.

Mark Tolman (01:10:52.835)
You're absolutely right. I do think that's an opportunity for training. Certainly, when we talk to managers, we hammer home the importance of documenting your intent. I would say that's the other major takeaway from the Moldrow case. It simply means that they're going to go to trial now unless they settle the case. When they go to trial, city of St. Louis isn't going to say, this wasn't adverse action. They're going to say, we did it for these legitimate job reasons. It had nothing to do

Steve-o (01:11:03.094)
Mm-hmm.

Steve-o (01:11:19.978)
Yeah, they're going to outline it, right?

Mark Tolman (01:11:21.835)
with her gender or her race, we did it because she was X, Y, and Z bad or good at her job, right? That's the, I think the major takeaway from Woldrow is managers need to be careful. If you are going to do something adverse that someone might think is harmful, have a good reason for it and document why, right? It's not, he's not a good fit. That's a terrible reason, right?

Steve-o (01:11:26.176)
Mm-hmm.

Tony Benjamin (01:11:46.198)
Well, in their case,

Steve-o (01:11:48.332)
Exactly. And it's kind of like the old case of steering. I was in Alabama when there was a huge steering case that happened out there where they were steering female applicants into certain roles in this manufacturing company and then male applicants into this other role that was labor intensive simply because of the gender, right? And so this steering concept becomes so critical here too. You can't just assume that, well.

You have to sit back as a manager and think, why am I steering this person this way? Why do I feel like that's a better fit? Because if in my head the actual definition is, it's because they're female or male, or it's because of this race, or it's because of whatever, that's when you need to take a step back and say, okay, as a manager, I'm thinking, I'm going about this incorrectly. That is not an appropriate reason, right?

Mark Tolman (01:12:34.399)
Yeah. The acronym I use when I train managers on these issues is CAP, C-A-P, Conduct Attendance and Performance. And if you can't describe why you're doing what you're doing into one of those three buckets, don't do it.

Steve-o (01:12:48.904)
That's a great one. Yeah, that's great.

Tony Benjamin (01:12:51.948)
Now that's fantastic, Mark. That's a great way to do that. I tell everybody all the time, what is your real business concern? What is your real business concern? And focus on your real business concern, not...

Like age discrimination is the classic one, right? And I've been at companies where somebody's like, we're not gonna hire that guy, he's too old. And then there's me going, time out, time out. What is the real business concern? Well, the real concern is that he won't put in the hours necessary, that he'll wanna do his 40 hours and go home. And you're like, okay, that's the concern. Why don't you talk to that applicant or whatever and say, hey, this job requires overtime on a frequent basis.

And generally we like people who are hungry who are willing to work that and do it for us. Are you willing to do that? And that's the question to ask in an interview, right? Now, if the person has half a brain, they're going to say, yeah, of course I'll work any overtime you want. having, having said that, that is the real business concern. And then you try to suss that out, not whether they're too old to want to do it or whatever.

Steve-o (01:13:50.071)
course I work 40 hours a week. Plus.

Mark Tolman (01:13:59.401)
Yeah, great. And I would just add, make sure you're asking everybody that question, not just the old folks. And then there's a follow-up question, right? Because you are going to get the, love working overtime response, have them describe for you, when is the time recently when you've had a prolonged experience working overtime? How has that worked for you? Right? Put them on the spot. See if they can think of a time when that happened. If they say I've never really worked overtime. Well, regardless of their age, that might be a red flag.

Steve-o (01:14:03.351)
Yep. Yep.

Tony Benjamin (01:14:04.609)
Yeah, yeah.

Tony Benjamin (01:14:17.398)
Yep. Yep.

Steve-o (01:14:25.015)
Yep. Great point. That's behavioral interview questioning right there.

Tony Benjamin (01:14:25.968)
Exactly. Yeah, that's that's good. Well, Mark, thank you. There you go. That's right. That's right. Mark, thank you so much for being with us. This this has just been fantastic. I'm really grateful that you've been here. We wanted to talk about Okanowsky versus Garland, too. But maybe we can save that for another time when you come back. The more detail I read about that case, the more grossed out and shivery I get. And I wonder what the crap is going through that HR person's head. But.

Steve-o (01:14:51.848)
it's disgusting to me. Yeah. Ugh.

Tony Benjamin (01:14:55.614)
But anyways, we're grateful you're here. Thank you Mark very much for doing this with us.

Mark Tolman (01:15:01.023)
Thanks guys, appreciate you having me on, it was fun.

Tony Benjamin (01:15:04.118)
Yeah, the crowd loves Mark Tolman as we do all those those people back up there in the nosebleed seats that are cheering their heads off. You know, they're the ones there. Steve held up the sign.

Steve-o (01:15:07.201)
That's right. Who wouldn't?

Mark Tolman (01:15:07.339)
Hahaha

Steve-o (01:15:15.873)
This is why Tony doesn't allow me to access those because he knows I would stop it right away. It would just cut off. And he just likes to let it go.

Mark Tolman (01:15:21.771)
That was a good amount of lingering there, Tony. Thank you. I feel validated.

Tony Benjamin (01:15:25.834)
Yeah. Well, you'd be surprised how many of our guests are like, like more, more, please more. We enjoy the. Yes, that's exactly right. Made me feel good. That's right. That's exactly right. No. And and and hey, I also think that this was a good episode because we only made one lawyer joke the whole time. So that's that's pretty good. It was a very.

Mark Tolman (01:15:33.323)
More pre-recorded applause, please.

Steve-o (01:15:33.495)
Bring it on, bring it on. Especially at the beginning.

Steve-o (01:15:39.543)
See, leave it to the lawyer to call it like it is.

Mark Tolman (01:15:42.373)
Yeah.

Mark Tolman (01:15:51.755)
That's right. There were so many available.

Steve-o (01:15:54.603)
And it was my fault, I tell ya.

Tony Benjamin (01:15:54.795)
It was very sensitive of us. It was very sensitive and caring of us. Not to make jokes, but another person's profession.

Mark Tolman (01:16:00.061)
I appreciate it. Thank you both.

Steve-o (01:16:01.803)
Hey, I love lawyers.

Mark Tolman (01:16:04.074)
I love most lawyers.

Tony Benjamin (01:16:09.152)
Yeah, I love the ones that are up during the day and not at night all the time and don't have long fangs. That's right. So yeah, those are the worst. And I know some of them. But anyways, thanks again, Mark. Before we get out of here, I want to take a minute and mention the Thrive Life Project and Brock's effort with this. When a child faces a serious illness, the entire family feels the impact. Thrive Life Project steps in to lighten the load.

Mark Tolman (01:16:14.475)
There you go. Those are the worst.

Steve-o (01:16:14.772)
Wow.

I've never seen those, but okay.

Tony Benjamin (01:16:37.12)
delivering nutritious meals and engaging STEM kits directly to families homes completely free of charge. It's more than support. It's a community of care. Learn more at thrive life project dot org. That's thrive life project dot org. So there you go. Everybody. Mark Tolman. Thank you again. Is there anything you want to tell us or promote that is coming up that you're doing soon or whatever before we get you out of here.

Mark Tolman (01:17:05.779)
Well, if you're a member of Salt Lake Shurm, join us in February, second Tuesday in February for our annual legal update. Register soon, that particular event sells out quickly. And then join us in April. We'll have our half-day seminar at the Grand America in Salt Lake City. Again, John A. Taylor will be our keynote. We'll have nine options for breakout sessions for you to attend. Yeah, April 14th, second Tuesday in...

Steve-o (01:17:14.689)
Yeah, it feels fast.

Steve-o (01:17:28.695)
What dates are those, Mark and April?

Mark Tolman (01:17:33.547)
April will start to send out some email announcements, not just to Salt Lake Shurm, but to HR folks throughout the state. sign up and register early to take advantage of the early per discount. Hope to see you there. Come up and say hi to me if you do.

Tony Benjamin (01:17:47.37)
Yeah, tell him that you heard him talking on the HR life podcast and tell him how cool it was and all that sort of stuff and how how he raised the bar on the on the podcast of knowledge. And it wasn't just a couple of guys ranting about different things. So that'll be helpful. Yes. And a lawyer joke. That's right. As long as it doesn't involve a protected class. Go ahead. Right. OK. Anyways.

Steve-o (01:18:02.935)
and share, you know, a lawyer joke here and there.

Tony Benjamin (01:18:14.87)
Thanks again, Mark, much, much appreciated. We'll head out the same way that we came in today. Thank you for listening to today's podcast. Don't forget to subscribe and leave a five star review on your favorite podcast app. Comments or questions for us? Email the podcast at the HR life podcast at gmail.com and we'll talk again soon.

Mark Tolman (01:18:17.941)
My pleasure.