What's New in Employment Law?

Human resources professionals are often the first people to recognize when an ordinary workplace issue is becoming a legal one. An employee mentions retaliation. A leave request gets complicated. A termination suddenly feels risky. A wage-and-hour issue surfaces. Or a leader asks, “Can we do this?”

That is often the right time to involve counsel—not three weeks later, after the decision has been made and everyone is trying to reconstruct what happened. But bringing a lawyer into the conversation does not automatically make everything privileged. Attorney-client privilege can be enormously valuable in the employment context, but HR needs to understand what it protects, what it does not, and how easily careless communication can undermine it.

What the Privilege Actually Protects

The attorney-client privilege generally protects confidential communications between a lawyer and client made for the purpose of obtaining or providing legal advice. That protection matters because employers need to be able to speak candidly with counsel about risk, mistakes, strategy, and difficult personnel decisions without assuming those conversations will later become exhibits in litigation.

But the privilege protects communications, not the underlying facts. If an employee complained about harassment on Tuesday, that fact does not become privileged simply because HR tells counsel about it on Wednesday. The communication with counsel may be protected, but the underlying event remains a fact that may be discoverable.

“Privileged and Confidential” is Not a Magic Spell

One of the most common mistakes HR folks make is assuming that putting “ATTORNEY-CLIENT PRIVILEGED” at the top of an email somehow makes it privileged. It doesn’t. Neither does copying a lawyer on an otherwise ordinary business communication.

There is a meaningful difference between writing, “We have decided to terminate Sam on Friday. Jen, FYI,” and writing, “We are considering terminating Sam on Friday. He recently raised a retaliation concern. Before we make a decision, please advise us regarding the legal risks and any additional steps you recommend.” HR should be intentional about why counsel is being brought into the conversation and, where appropriate, make clear that legal advice is being requested.

Know When to Involve Counsel

Not every workplace issue requires a lawyer. But some situations should trigger an early legal-risk assessment, including discrimination, harassment, or retaliation complaints; complicated disability, leave, or religious accommodation issues; discipline or termination involving someone who recently engaged in protected activity; significant wage-and-hour concerns; workplace violence issues; executive-level terminations; reductions in force; and any situation where HR finds itself thinking, “This could become a lawsuit.”

The earlier counsel becomes involved, the more options the organization likely will have. Calling after a termination has occurred limits counsel to evaluating a decision that can no longer be changed. Calling beforehand gives counsel the opportunity to identify gaps in documentation, inconsistent treatment, timing concerns, accommodation obligations, investigation issues, or other risks that may still be manageable.

Keep the Circle Small

Privilege also depends on confidentiality. One of the easiest ways to create problems is by forwarding counsel’s advice too broadly. HR receives an email from counsel, forwards it to the department head, who forwards it to a supervisor, who adds another executive, and suddenly a confidential legal discussion has become a sprawling email chain.

Legal advice generally should be shared only with those who genuinely need it to carry out their responsibilities. Even then, consider whether they need the lawyer’s actual communication or simply need to know the decision or action they are expected to implement. HR also should avoid casual statements such as, “Our lawyer says this termination is fine.” Those summaries can create unnecessary issues and may reveal the substance of legal advice.

Be Careful with Investigations

Workplace investigations require particular care. Counsel may conduct an investigation as part of providing legal advice, but the organization should think at the outset about counsel’s role, why the investigation is being conducted, how it will be documented, and how the results may later be used.

That matters because an employer that later relies on the adequacy of an investigation as part of its defense may put aspects of that investigation at issue. The time to think through those privilege questions is before the investigation begins, not after litigation starts.

Sometimes, Stop Typing

HR professionals live in email, Teams, Slack, text messages, and other electronic communications. Those tools are convenient, but they also make it easy to create lengthy written records before anyone fully understands the facts.

Sometimes the best first communication with counsel is simply, “Can you call me?” A conversation gives HR the opportunity to explain what is happening, answer questions, and receive preliminary guidance before creating an unnecessary email narrative. Counsel can then help determine what should be documented and how.

HR should also be thoughtful about where privileged communications are stored or shared. Legal advice should not be casually copied into shared databases, collaborative workspaces, AI platforms, or other systems without considering confidentiality and access.

The Bottom Line

Attorney-client privilege is not something HR should first think about after receiving a demand letter. Used correctly, it gives employers and their lawyers space to have candid conversations, evaluate risk, correct mistakes, and make better decisions before workplace problems escalate.

The practical rules are straightforward: involve counsel early when legal risk appears, clearly seek legal advice, keep communications focused, limit who receives them, and do not assume that copying a lawyer or adding a “privileged” label creates protection. And when a matter is particularly sensitive, consider picking up the phone before hitting “send.”

The goal is not to label everything privileged. It’s to make sure the communications that truly need protection stay protected.

The post Privilege Isn’t Automatic: What HR Needs to Know Before Hitting “Send” first appeared on Shaw Law Group.

      

Labor Day Is About People

We spend a lot of time talking about work as though it is separate from the rest of life. It isn’t. People come to work carrying everything with them: grief, fear, divorce, sick parents, sick children, financial stress, new babies, bad news, good news, exhaustion, ambition, pride, disappointment, and hope. Most of the time, the people around them know very little about any of it.

That is what I have been thinking about this Labor Day. I have spent my career advising employers about the workplace. I think about compliance, risk, investigations, policies, performance, accommodations, terminations, and all of the complicated decisions that come with employing people. But the longer I do this work, the more I believe the best workplaces are not defined only by how well they follow the law. They are defined by how they treat people when things are hard.

People Remember How You Show Up

Over the last few weeks, I have been reminded of that in a very personal way. When my daughter and I lost Weston unexpectedly, people showed up for us. They called, texted, checked in, remembered stories, and said his name. They understood that he was not “just a horse.” He was part of our family, part of my daughter’s life, and part of a future she thought she had.

Nothing anyone said could fix it. But kindness mattered. Presence mattered. And it made me think about how often the same thing is true at work.

A leader may not be able to fix what an employee is going through. An employer may not be able to say yes to every request. Sometimes performance must be addressed. Sometimes a job has to end. Sometimes the answer is “no.” But there is always a choice about how those moments are handled, and people remember that choice.

The Law Rarely Is the Whole Story

By the time an employment problem reaches a lawyer, we tend to focus on the legal questions. Was the leave protected? Was the accommodation reasonable? Was the investigation adequate? Was the termination justified? Those questions matter, of course.

But after decades of doing this work, I can tell you that many workplace disputes begin long before anyone starts talking about statutes or lawsuits. They begin when someone feels dismissed, when no one listens, when a difficult conversation is handled carelessly, or when an employee is reduced to a “problem.” They begin when a leader becomes so focused on being right that they forget there is another human being sitting across the table.

Sometimes the employer has done nothing legally wrong, and the situation still goes terribly wrong.

Kindness Does Not Mean Weakness

I think some employers are afraid of kindness. They worry that empathy means giving in, that compassion makes accountability harder, or that listening creates expectations they cannot meet. It doesn’t. You can be kind and still hold someone accountable. You can listen and still say no. You can recognize that someone is struggling and still require them to do their job. You can make a difficult business decision and still deliver it with dignity. Those things are not opposites. In fact, the strongest leaders I know are very good at both. They are clear. They are direct. They make hard decisions. And they never forget that their decisions affect actual people.

Work Is More Human Than We Pretend It Is

Employment law can make the workplace sound clinical. We talk about human resources, headcount, performance management, reductions in force, and the interactive process. We use phrases that make deeply personal moments sound almost sterile.

But work is not sterile. It is where people spend an enormous portion of their lives. It is where they succeed and fail, form friendships, discover what they are good at, and sometimes feel valued or invisible. A promotion can change a family’s life. A bad supervisor can make someone dread Monday morning. A termination conversation can stay with a person for years. A few thoughtful words from a leader can too.

That is why how we treat people at work matters so much.

What Labor Day Means to Me This Year

Labor Day is supposed to recognize the contributions of working people. This year, I find myself thinking less about “labor” as an abstract idea and more about the individual people doing it: the employee who showed up after a sleepless night, the leader carrying a burden no one else can see, the coworker who noticed someone was struggling and quietly helped, and the person who is doing their best during a season of life that is asking too much of them.

I also think about the people whose names may never appear in a company announcement, but whose work keeps everything moving. We owe them more than compliance. We owe them fairness, honesty, dignity, and sometimes a little grace.

Because work matters. But people matter more.

And if there is one thing I hope we remember this Labor Day, it is this: people may forget the policy, the meeting, or even the decision itself. They will not forget how they were treated when it mattered most.

The post Work matters. But people matter more. first appeared on Shaw Law Group.

      

Last week, my daughter lost her horse, Weston, without any notice. I have rewritten that sentence about 10 times because there really isn’t a way to capture what happened. Weston wasn’t just a horse E. rode. He was her partner.

They had been together for six years. They trained together, traveled together, competed together, and won together. They were two-time champions at the Pinto Worlds in Tulsa. But the championships aren’t the point. They knew each other. They trusted each other. They had that kind of relationship you sometimes see between a rider and a horse where it becomes hard to tell where one ends and the other begins. E. loved him completely, and suddenly he was gone.

As her mother, there was very little I could do about the one thing that actually mattered. I couldn’t fix it or make her feel better, and I certainly couldn’t give her Weston back. So, I did what most of us do when something terrible happens: I tried to deal with everything else. And, of course, everything else was still there. There were client emails, meetings, deadlines, and people who needed answers from me. Life does not clear your calendar when something awful happens.

What struck me over the last week was how many people simply understood. Clients were patient when I was slower to respond. People moved meetings. Colleagues took things off my plate without making me explain every detail first. Friends checked on E., and people from the horse world who understood exactly what Weston meant to her reached out. There were so many messages that essentially said the same thing: “Don’t worry about us. Take care of E.” Nobody asked me to justify why the death of a horse had turned our lives upside down or suggested that, because Weston was an animal, this loss should somehow be easier. They just understood E. was grieving, and I was incredibly grateful for that.

It also made me think about the workplace in a way I probably wouldn’t have a week ago. We spend a lot of time advising employers about rules. How much leave is someone entitled to? What does the policy say? Does the law require an accommodation? Can we make an exception? Those are legitimate questions, and they are questions I answer for a living.

But sometimes there is another question worth asking first: What does this person need from us right now?

Not every difficult moment has a statutory leave attached to it, and not every family crisis fits neatly into a policy. What feels devastating to one person may not seem nearly as significant to someone else, but I’m not sure that should matter as much as we sometimes think it does. A parent dies. A marriage ends. A child is struggling. Someone gets frightening medical news. An elderly parent suddenly needs care. Or a 16-year-old girl loses the horse who had been part of nearly every important moment in her life.

Sometimes people just need a little room. That doesn’t mean abandoning standards, eliminating deadlines, or granting every request. It means recognizing that there are moments when being a decent human being matters more than proving that a rule could be enforced.

There is sometimes a fear in workplaces that if we give people too much grace, they will take advantage of it. Maybe sometimes they will. But my experience last week was exactly the opposite. Every person who told me not to worry about something right now made me want to get back to them faster. Every client who said, “Take care of your daughter,” made me even more appreciative of my relationship with that client. Grace doesn’t necessarily make people care less about their work. Sometimes it makes them care more.

And people remember it. They may not remember the precise language in a bereavement policy or how many days off the handbook technically allowed, but they will remember the person who said, “Go. We’ve got this.” They will remember who made a terrible week harder, and they will absolutely remember who made it a little easier.

I wish I hadn’t had a reason to think about any of this last week. I would much rather be writing about E. and Weston heading to their next show or watching the two of them walk into another arena together.

But I am deeply grateful for the people who have surrounded us since we lost him. Nothing anyone can say is going to make E. okay right now. That isn’t how grief works. But people can make a terrible time less lonely, and that matters more than I realized before last week.

We talk a lot in my world about what employers are legally required to do. Sometimes the most important thing we can do for another person has nothing to do with what the law requires. Sometimes somebody’s life falls apart in the middle of the workweek. And sometimes the kindest thing we can say is simply, “This can wait.”

The post When Life Falls Apart in the Middle of the Workweek first appeared on Shaw Law Group.

      

It happens all the time. An employee calls out for several days and returns with a doctor’s note. Or HR gets an email saying the employee needs to work from home, avoid lifting, change their schedule, or remain off work for another month.

At that point, the employer usually wants to know one thing: Can we approve this, deny it, or ask for more information? Unfortunately, the answer usually is not that simple.

In California, a doctor’s note often is not the end of the analysis. It’s the beginning. Here are the practical steps employers should take after receiving medical documentation.

First, Figure Out What the Employee Wants

Do not get too hung up on the form of the request.

Employees do not have to use the words “reasonable accommodation” or “interactive process” to trigger an employer’s obligations. A note that says “off work until September 15,” “no lifting over 20 pounds,” or “must work from home” may be enough to put the employer on notice that the employee needs some kind of workplace change because of a medical condition.

The first question should be: What does this employee need to work, return to work, or remain employed? If the answer is not clear, ask.

Do Not Turn HR Into a Medical Investigator

Employers understandably want enough information to make a sound decision. But that does not mean HR is entitled to the employee’s diagnosis, complete medical history, or medical records.

Usually, what you need to know is much narrower: What are the employee’s restrictions? How long are they expected to last? What job duties are affected? What accommodation is being requested?

That is the information that helps you make a decision. Knowing the name of the employee’s medical condition does not.

A Doctor’s Recommendation is Not Automatically the Answer

This is another common mistake.

A doctor may write, “Employee must work remotely,” “Employee should not work more than six hours per day,” or “Employee cannot perform customer-facing duties.”

That does not automatically mean your employer must accept the doctor’s proposed solution exactly as written.

The employer still has to look at the employee’s limitations, the essential functions of the job, and whether there are other effective accommodations.

For example, if the note says the employee must work from home, HR should understand why. What limitation does remote work address? Does the job actually require the employee to be onsite? Could another accommodation solve the same problem?

The goal is not simply to approve or reject the doctor’s suggestion. You need to determine whether there is an effective, reasonable accommodation.

Look at the Job the Employee Actually Performs

This sounds obvious, but it is often where the analysis goes sideways.

Before deciding whether an accommodation will work, look at the employee’s real job duties. Not just the job description that was written six years ago and hasn’t been touched since.

Which duties are essential? Which are marginal? Does the employee really need to be onsite? Does the employee really need to lift 40 pounds? Could duties be adjusted temporarily? Would changing one task actually eliminate an essential function? These questions matter.

Employers generally are not required to eliminate essential job functions. But if you want to rely on that principle, you’d better be able to explain essential functions and why they matter.

If the Note Is Vague, Do Not Guess

Medical notes frequently are unhelpful:

• “Employee cannot work in a stressful environment.”
• “Employee needs flexibility.”
• “Employee should avoid prolonged standing.”

These statements do not give the employer enough information to evaluate the request. But an unclear note does not necessarily justify an immediate denial. Ask for clarification.

What does “flexibility” mean? What is the employee unable to do? How often does the restriction arise? How long is it expected to last? What accommodation would allow the employee to perform the job?

You don’t have to guess, and you shouldn’t.  Ask the follow-up questions and get the answers you need.

Keep Talking When Things Change

The interactive process is not a one-time event.

An employee may need a temporary accommodation and then request an extension. A restriction may become permanent. An accommodation that worked well for six months may suddenly stop working.

When the circumstances change, the conversation may need to start again. That is especially important with leave requests. An employee who initially needs four weeks off may later request additional time. Employers should evaluate the new information rather than assuming the original decision settles the issue forever.

Document How You Got There

Employers often document the final answer but not the process that led to it. That is risky.

The file should show when HR first learned about the issue, what information was requested, what the employee provided, what accommodations were considered, and why the employer ultimately approved or rejected a particular option.

Months later, the question is rarely just, “What did we decide?” It is usually, “Why did we decide it?” Good documentation answers both.

The Bottom Line

When a doctor’s note arrives, do not rush to stamp it “approved” or “denied.”

Figure out what the employee is asking for. Focus on restrictions, not diagnoses. Look at the actual job. Ask follow-up questions when the information is unclear. Consider alternatives. And document the process.

The best accommodation decisions do not come from a form or a doctor’s note standing alone. You must engage in a dialogue and thoughtful review of the facts.

Want more information about this important topic?

• Check out EmployersLawyer’s upcoming September 9 webinar, Accommodation Requests Done Right: Avoiding Costly Mistakes in California. Details here: Upcoming Webinars | EmployersLawyer 
• And don’t miss Shaw Law Group’s Effectively Managing Leaves of Absence and Reasonable Accommodations: Intensive Workshop (Advanced Topics) on September 22 and September 29. Space is limited, so register before it’s too late! LOA/RA Advanced Topics

The post The Doctor’s Note Just Landed in HR’s Inbox. Now What? first appeared on Shaw Law Group.

      

If you work for a larger employer that has spent years preparing the annual EEO-1 Report, the latest development out of Washington may sound like welcome news.

The Equal Employment Opportunity Commission has proposed rescinding the EEO-1 and related reporting requirements, with public comments on the proposal due August 24, 2026. If finalized, the rule would mark a major change to a reporting system that has been part of federal equal employment opportunity compliance for decades.

It is easy to understand the employer reaction: One less report? Great.

But not so fast.

A reduced filing burden would be meaningful. But employers should not confuse the elimination of the reporting requirement with the need to understand their own workforce data.

Those are very different exercises—with very different consequences.

What is the EEOC’s Proposal?

The EEO-1 Report currently requires covered private employers to submit workforce demographic information by job category, race/ethnicity, and sex.

The EEOC’s proposed rule would eliminate that requirement, along with several related EEO reporting obligations. The agency has questioned the reports’ usefulness, burden, and potential misuse.

For employers, the practical question is not only whether the report disappears. It is what employers should continue doing with the information they already collect.

That question is especially important because the proposal does not eliminate anti-discrimination laws. Federal agencies may change their reporting priorities, but employers remain responsible for making lawful, defensible employment decisions.

No Report Does Not Mean No Risk

If the EEO-1 requirement goes away, employers may be tempted to stop looking closely at demographic patterns in hiring, promotions, compensation, discipline, terminations, and other employment decisions.

That would be a mistake.

Workforce data can help employers spot potential issues before they become claims, complaints, or litigation exhibits.

For example, an employer may discover that employees in one protected group are promoted at a significantly lower rate than similarly situated employees.

The numbers do not prove discrimination; there may be legitimate explanations.

But they may show where the employer should ask better questions.

How are promotion decisions made? Are managers applying consistent criteria? Are opportunities communicated fairly? Does documentation support the decisions? Are seemingly neutral practices producing results that deserve a closer look?

Do Not “Fix the Numbers” by Creating a New Problem

There is also an important caution: demographic data should be used to evaluate practices, not to make decisions based on protected characteristics.

A statistical disparity is a reason to investigate the process, not manipulate the outcome.

If hiring data reveals a significant demographic imbalance, the appropriate response may be to examine recruiting sources, job qualifications, interview practices, selection criteria, and decision-maker training.

The response should not be: We need to hire someone of a particular race or sex to fix the numbers.

That distinction matters, especially in the current enforcement environment.

Employers need processes that support equal employment opportunity without turning protected characteristics into selection criteria.

Why Workforce Data Still Belongs in the Compliance Toolkit

Even without a federal filing requirement, workforce data can still help employers answer questions that matter:

• Are policies being applied consistently?

• Are similarly situated employees being treated similarly?

• Do managers need clearer standards, better documentation practices, or additional training?

Those are questions employers would rather ask internally and early—not for the first time after a charge has been filed or litigation has begun.

Of course, employers should be thoughtful about how internal analyses are conducted, who performs them, what questions are asked, how results are documented, and whether employment counsel should be involved.

A spreadsheet titled “discrimination problems” is probably not the compliance strategy anyone wants to defend.

What Employers Should Do Now

Employers do not need to overhaul their compliance programs overnight. The rulemaking process is still underway, and the proposal is not final.

But this is a good time to revisit the purpose, scope, and safeguards around workforce analytics. Start with these questions:

• What workforce information are we collecting?

• Why are we collecting it?

• Who can access it?

• Are we reviewing hiring, promotion, compensation, discipline, and termination practices for unexplained disparities?

• If we identify a disparity, do we have a disciplined process for evaluating the underlying practices?

• Are managers using objective, job-related criteria?

• Are we documenting decisions consistently?

• Should certain analyses be conducted with employment counsel?

The goal is not to achieve predetermined demographic outcomes.

The goal is to make lawful, defensible employment decisions—and identify potential problems before they become bigger ones.

The Bottom Line

Employers may eventually be able to say goodbye to the EEO-1 Report. But you should not say goodbye to understanding your workforce. Government reporting requirements come and go. The obligation to make employment decisions without unlawful discrimination remains.

The post The EEO-1 Report May Be Going Away, But Your Workforce Data Still Matters first appeared on Shaw Law Group.