What To Do If You Get Laid Off: Employment Attorney Ryan Stygar on Keyboard Tracking, Return to Office and Negotiating Severance

18:56Just the key thing. So again, it's going to be stuff that materially affects your pay, your work conditions, your schedule, your duties, things like that. Anything like a conversation about leave, a conversation about a dispute with your pay. Those are the kind of things we save.

19:10Nicole Lapin:Yeah, I just the nuance is super important because some workplaces you're if you're putting everything in a personal Gmail, then perhaps there's trade secrets or there's other stuff that you could screw yourself inadvertently. Very well put. So, you know, that is one thing that I have seen come up. You need to be mindful of that. So if someone's sending out an email and there's a workaround to this. So if someone sends out an email and it's got a bunch of confidential trade secret stuff, but you're like, Hey, this is important. Another way you can do is just your own documentation, a follow-up note to your manager.

19:42Hey, got the email. These are the assignments that I see you have for me. These are the due dates. That's fine because Because you're extracting the core information without including the trade secrets and the confidentiality.

19:53Nicole Lapin:I'm a big, big fan of the recap email. Recaps. We love recaps. Thank you so much for chatting. Really nice to talk about XYZ. I'm glad we're on the same page and blah, blah, blah, blah, blah. I hope you're on the same page. I'm doing the paper jokes a lot of times we're not. Well, if you're not, then you call Ryan. So in the last couple of years, as you've seen, because you're up on all of this, we've seen some public terminations after employees have made political statements on social media. And on another show that I host, Help Wanted, with the editor-in-chief of Entrepreneur Magazine, we talk about this stuff a lot.

20:27Nicole Lapin:And I was surprised to hear that that's not illegal. Yeah. So things are tense right now. Am I exaggerating? Things are pretty tense right now. And people have a lot to say. Heck, I'm one of them. You know, I'm on the Internet every day sharing my big opinion about things. And folks are surprised to learn that an employer can fire you over a social media post. And a lot of times people say the punishment didn't fit the crime. They'll say, I just reposted a video. I didn't. It wasn't even my speech. I commented. I reposted something that Tucker Carlson said, and I got fired. That's not fair. Doesn't it affect my First Amendment rights?

21:05And the answer is no, not really. The First Amendment protects you being constrained by the government. Yes.

21:13Nicole Lapin:Say that louder for the people in the back. So look, our Constitution. Because people are like, no, no, I have free speech in this country. Sort of. So, you know, there are things that we do as adults where we do check some of our rights at the door. That does happen. Another example would be your Fourth Amendment rights. Some people will say, hey, my office went through my work drawer looking for a document. Does that violate my Fourth Amendment right? No, they control the space and you do check some of those privacy rights at the door. That said, with the First Amendment, that's a contract between you and the government.

21:45It constrains the government. It says the government's not going to lock you up and throw you in prison because you criticized one of the leaders. At least we hope things stay that way. So if you say something the employer doesn't like, they're a private party. They're not constrained by the First Amendment. Now, there are some forms of speech that would be protected. We talked about discussing pay and work conditions, conversations about unionization, collective bargaining, a complaint to your manager saying, hey, we were at the company happy hour with Ted and he was getting really handsy with me and it made me uncomfortable.

22:17That would be a protected form of speech. So I'm not saying none of what you say is protected, but a lot of your big opinions on politics, current events. I used to say block your boss. I still think that's a really good idea. You need to be mindful that your employer is not constrained by the First Amendment. OK.

22:36Nicole Lapin:So to be extra, extra clear, the First Amendment protects you from the government. Yes. Shutting you down. Yes. Or locking you up for saying something. Yes. But not from a company who might have morals clauses. I mean, I've signed employment contracts. Oh, my gosh. Yeah. I despise morality clauses. I think a lot of times they're very silly. Often it's an owner just playing tiny tyrant, in my opinion. My values have to be your values, which I don't think is fair. But yeah, the First Amendment, if you're a private company and you see something that your employee is doing and you don't like, most jobs in this country are at will.

23:1449 states are at will states where the default is at will employment. If they don't like what you're saying, they can let you go.

23:20Nicole Lapin:What's the one state? Do you want to guess? If you were to guess, what would you say is the one state that's not at will? Texas. That is so funny. I love that you went straight to Texas. It's actually Montana. Okay. Montana is the only state. So what's interesting is 49 states are at work. Montana also the only state the last time I checked that was running a budget surplus. So go Montana. Hey. After a certain probationary period, most employees actually require cause to be terminated. But in every state that's not Montana, the default rule is you can be fired for any legal reason with or without cause, with or without notice.

23:54And that's if you don't have a contract, just assume that that's probably you're probably at will.

23:59Nicole Lapin:OK, but even if you do have a contract, even if you have a contract. So the reason I bring that up, Nicole, is a lot of times you'll have in your employment paperwork, it'll say at will. Fine. But if you do not have a contract, the default is at will. So if you're saying, wait, I don't know if I am. If you don't know, you're probably at will. So at will basically means you can be fired at any time for any reason, any time for any legal reason. They love to leave out the legal reason part. And I always make sure to shoehorn that right big in there because even though you can be fired for infinite number of unfair, petty, objectively unreasonable reasons and it wouldn't break the law, there are also many protected reasons where it is not lawful to fire you, even in an at-will state.

24:42My practice is primarily wrongful termination, wage theft, sexual harassment, things like that. We're in an at-will state. I represent almost exclusively at-will employees. And I still sue for wrongful termination and win because despite the at-will presumption, if we can show, usually with a paper trail, that your termination had an unlawful motive or was in retaliation for a protected activity, then we can get you recourse for that. Okay.

25:08Nicole Lapin:I will say though, I did have an employment contract. So I started a hundred thousand years ago in local news and I had a contract that I left early because I, even with a contract, I was at will. Yeah. And so that actually worked in my favor. That's fantastic. So you had a contract for, was it for a term of years? Like you were guaranteed so many years of employment and you chose to leave. I chose to leave and I went to another job. But they couldn't, I didn't want them to stop me and say, so basically I was at in Palm Springs. So I got a job at CNN. Yeah. Right. So like I have to go to and then needing to get out of it.

25:50Nicole Lapin:They said that I had a contract so I needed to stay so that I found a like whoever a lawyer to tell me about this at will stuff and then i went to cnn and then my whole department got let go oh my god and then i didn't get paid i there was some clause where if i got another job then i wouldn't get paid out of my current contract so they they let me go mid contract there and then i got a job at cnbc like a few weeks after because i'm so amazing yes you are and so like i got i didn't get the money that I was owed from the first steal. And then I left CNBC myself mid contract. And I remember how there was one lawyer who was sort of specialized in TV stuff and paid, I paid$10 ,000 to, which was like all the money I ever had.

26:37Oh my God. Just to get you out of the contract. Yeah.

26:40Nicole Lapin:And then I signed a one year non-compete. And so then at the one year non-compete, I went to Bloomberg. No, it was in New York. And I'm sure that there was a point. I mean, it's really cool to see you and where you are now. I mean, look at all of this. It's really cool. At the time, I'm sure you felt pretty defeated. It was so scary. It was pretty scary. It was so scary because I felt like I was going to war with a needle. Yeah. It feels like I think of I remember being a kid and seeing Peter Pan where Captain Hook fights Peter Pan. And I remember he had that little dagger. And Captain Hook has a whole ass sword.

27:14And I remember being a kid being like, that's not fair. Yeah. That's not fair. He's a grown-up and he has a whole sword. Peter Pan's a kid. He's got a little dagger. That's not fair. That's how it feels being an employee. It feels like they're bigger, stronger. They've got more institutional knowledge. They've got experts. They've got lawyers. They've got insurance. They've got the money. And what do you have? And it's a powerless position to be in. I will say, not glazing you because I don't think we're recording, I hope you're really proud of yourself for what you went through. Because I went through similar experiences where I got kicked around and lost all of my money and made huge mistakes.

27:45And I remember multiple points in my life, Nicole, where I thought I'm never going to be a success. It's never going to turn out. Like what am I even doing? Thank God I didn't listen to those thoughts and I kept pushing and you did the same thing. I hope you take time and walk around here and think back on those experiences and where you are now. It's pretty cool.

28:04Nicole Lapin:And now you're everybody's Tinkerbell. You know what? I like to think of myself as a Tinkerbell. Thank you. My pixie dust.

28:17Nicole Lapin:That's amazing. That's amazing. Yeah. So, okay. So if you get that dreaded email, the first time I got it from HR, come and meet with us. I didn't know that that was code for shit's about to go down. At the time you did not know. So part of the reason for the book, which I think we put over there, a lot of employees don't know what they don't know. And they walk right into an ambush or a trap with no preparation because they don't even realize that it is a high-risk situation. And so they go into the HR meeting totally unprepared. What are we talking about, guys? What's up? You want to talk? Oh, shit.

28:55My manager in HR is here and everyone looks really serious. And now you're fired. And people make mistakes in that meeting because they do not know what to expect. They're devastated. They're embarrassed. They're afraid. They just sign whatever paperwork gets put in front of them. They don't ask questions. They don't negotiate any kind of severance. And then they walk out without a job with any opportunity of maybe negotiating for a better deal to give them a transition. Gone. They've waived their rights. And it's because they didn't know. So part of my goal, Nicole, is to get this book out in enough hands to where that doesn't happen to people anymore.

29:29Nicole Lapin:Well, because it's so scary. It's so intimidating. I cried the first time. I couldn't help myself. I don't blame you. No, bad bitches cry sometimes. Thank you. It's okay. The baddest. No, the baddest. You know what? Being open to expressing yourself is how you stay bad. It's true. Thank you so much. But also, the mistakes that people make, how can we help them before it's too late? So the number one thing is don't sign anything that's put in front of you. Yeah, I wrote that quite a few times in the book in big, bold letters. When you're in that meeting, they're going to turn into timeshare salespeople real quick.

30:05They have a bunch of paperwork. Kate, we need you to sign this. They might not even be honest with you about what it is. They might say, oh, it's just to confirm your last paycheck. Oh, it's just some exit paperwork. No big deal.

30:16Nicole Lapin:Well, the confirm your last paycheck, I think, is really sus because you want your last paycheck and you want the money. So you're signing it with the assumption that you're getting paid that way. There's a couple of things there, Nicole, and I'm glad that you flagged this because it's really important. One, just because they say that that is what the document says and all the document says doesn't make it true. I have seen HR people put documents in front of my clients and say, oh, it's just confirming your last check. And you look at it and it says, it says here that you confirm all the amounts are correct and you waive any right to a wage claim with them.

30:51So, no, it isn't just confirming your last check. It's also a waiver of your rights. So you've got to look out for that sort of thing. and the time to make sure your pay is correct is not in the heat of the moment while you're being fired. You've been surprised. You might be crying. You might be scared. They've been preparing for this meeting. They had a meeting before this meeting. You're on the receiving end of a surprise attack. So your job in that moment is to stay as calm as you can. Note the reason that they say you're being fired. It's okay to ask, why am I being fired? Don't expect them to be 100 % honest, but do note the reason that they give you.

31:25Do not start screaming at them. And if the reason they give you for being fired doesn't make sense, don't demand the truth and try to extract a confession out of them there. It's going to make things way worse. Just figure out what reason they're going to say. So, you know, their side of the story and anything they're trying to get you to sign, say, I'm not signing this till I have a chance to look it over and understand what I'm saying. If they get angry with you, fine. What are they going to do? Fire you again? It's like, Like, look, I'm not comfortable signing this until I take it home. Surely I can have one day to read what I'm signing before I sign it.

31:56And let them pop off and be upset if they want to be upset. But don't sign things without taking a minute to breathe and actually read it.

32:04Nicole Lapin:And also, it's like a breakup. If you start arguing with them and they've already made up their decision, it's not going to work out well. I've seen people try to, like, plead their case. They've already made the decision. And a lot of times the person who is delivering the news, it's above their pay grade. They're like, look, I don't know what to tell you. Bill says you're fired. I'm just here to tell you I have no power in this. So you can yell at me. You can threaten me. I literally cannot do anything. So you might say something you regret. You might say something that ruins your shot at severance negotiation later.

32:36Don't forget, there's still an opportunity for this to turn out OK for you.

32:39Nicole Lapin:OK, severance negotiation. You can negotiate severance. Severance is negotiable. Look, there's going to be different experiences at different companies. Everyone's situation is unique. And for the most part, there is no legal requirement that they provide severance. Historically in the United States, it's kind of less and less now, unfortunately. It used to be the custom that you would get two to four weeks of pay for every year of service. That's not written in any rule books anywhere. That was just the sort of custom. Now, more and more, I'm seeing just a month, regardless of how long you've been there.

33:14Which is a pretty big fuck you. Oh, can I say fuck on the show? I'm sorry.

33:19Nicole Lapin:Say it. It's a pretty big fuck you from the employer. That it used to be someone who put in 20 years could expect quite a few months of severance. Now I'm seeing as little as one month. And they're saying there's no flexibility. But going back to the paper trail. If you have a paper trail, we can look back at the last year or two years of your employment and say, is there anything here that gives us leverage in the negotiation? Were you an exceptionally high performer? Did you really pull through with them sometimes? Did you have maybe some legal claims possibly against them that they should be aware of where they have a risk now?

33:51Because a lot of times that severance, it's not just because, oh, we like you. We want you to land on your feet. So sorry, we're downsizing. It's to get you to sign the waiver. They don't want to be looking over their shoulder like, hey, yeah, Nicole came back from maternity leave and then we fired her. so maybe we should negotiate this now and resolve it amicably. You have leverage in that situation, but you don't know how much leverage you have if you don't have a proper paper trail going up to that moment.

34:19Nicole Lapin:Yeah, it's mitigating risk for them. Yes, exactly. And I've done that for clients quite a bit. Very recently, I had a client, she was offered about$6 ,000 of severance. Not enough. She had been there for years. She had been a top performer. Didn't really have much of a claim. You could argue there was some harassment going on. She had a work bully that she was dealing with and the company knew about it, didn't help her very much. I was able to take those emails and say, look, we had a harassment issue you guys didn't address. And she gave you years of her life and look at these fantastic performance reviews and you're giving her$6 ,000 in this economy.

34:55Get serious. We were able to get her over 60K of severance. So it just goes to show that if you have an organized paper trail, like she did, at least some awareness of your rights, and you do not panic and sign things in the heat of the moment, you can come back and negotiate. And there can be some back and forth and you can end up okay. I'm not saying it's going to happen every time. I'm not guaranteeing that result. But the alternative is to not even try. And that's not acceptable.

35:19Nicole Lapin:But can people do that without you? Go from 6 to 60? You could. Without a lawyer? People have successfully negotiated severance. But do put it on your radar that getting an experienced workers' rights lawyer to negotiate severance on your behalf could be helpful. Is it contingency? So the way I do it, I mean, I'm airing out all my business for everybody, but this is fine. So what is it? What's custom? What should you ask for? So here's how I do it in my business. And every lawyer might do it a little differently. Some might charge you hourly. Some might do a flat fee. I recognize that you just got fired and money is a little bit tight.

35:52So when I do a severance negotiation, it's contingency. I get a percentage of whatever new money I get for you. So for easy math, if they offer you a$10 ,000 severance and I get in there and talk to them, I get you up to 20, I would get a percentage of the new money I got for you, not the money that was already offered.

36:09Nicole Lapin:The delta. Yes, the delta. Ooh, yes. I love that. Yes. But customary contingency is what, 30 %? Usually, yeah. For a severance review, I do less. But everything is going to depend on the circumstances because some severance reviews can be very quick and very, hey, I talked to them. I presented our side of the story, showed them why they should give you more. Good. Others, basically, they dared me to sue them. Or there was a lot of contention and a lot of back and forth. So it'll depend on the circumstance. But really the high level for everyone to know who's listening, when you are in that position, remember, maybe getting a professional to look over that paperwork is a good idea.

36:49idea. A lot of them are going to be more affordable than you think. I know you're thinking, I just lost my job. I don't know if I can afford a lawyer. Ask them if they do contingency arrangements and ask what those structures look like because there's more help available than a lot of people realize.

37:03Nicole Lapin:And what else do people forget that's negotiable? So COBRA, if they have vesting schedules, if they have equity in their companies, there are non-disparagement clauses. There's all sorts of stuff that goes into this. Yeah, there's a lot of things. So there's the severance amount of money that we look for. Obviously, a big basket of cash. No one's upset about that. I'm so glad you brought up COBRA because people leave thousands of dollars a month on the table when they don't think about that. So when you leave that group health plan, COBRA gives you the opportunity to stay on that plan. Really, really important, especially like if you have kids, if you have a condition that needs ongoing care or you just don't know where your coverage is going to come from.

37:44because you lost your job. This is really valuable. The problem is COBRA, the United States is such an interesting place. The employer can actually keep you on that plan and have you pay up to 102 % of the premiums. They can charge you the whole premium amount plus a 2 % administrative fee. So weirdly, it can be more expensive. But if you go in and negotiate, you can get them to pay part of or that whole premium and you can get it extended for longer.

38:13Nicole Lapin:Longer than the initial offer. Longer than the initial offer. I've seen the most disgustingly pitiful offers. I've seen like one month of Cobra and you pay the whole premium. I've seen 18 months of Cobra, but all paid by the company. Like there's really a lot of flexibility there. What's the max for Cobra extension? The most that I've seen is 36 months for some very unique situations, but I would caution people that that's not typical. And what about vesting schedules for company equity? Those are interesting. You can certainly – again, it's all negotiable. And I have negotiated those for some very high-earning senior-level people who got let go.

38:52Personally, I usually – it depends on the company. Usually I'm like, dude, if we can just get you more severance, I mean that's better than stock and XYZ company that's a startup that has quote-unquote tons of potential. I mean you're hoping that it's your lottery ticket when this thing IPOs or whatever. It depends on the situation, Nicole.

39:11Nicole Lapin:Because there's tax implications too. There's a lot to it. And if you have options, then you actually have to pay them. I've done it before. I'm happy to do it when it's really important to someone. But a lot of times I say, hey, zoom out. I know you have an emotional investment in Squiggly or whatever your startup is. And you have all this stock. We don't know if Squiggly is going to be the next Google. Probably not. So do talk to a financial advisor. Talk to your family and think, hey, how aggressive do I want to be negotiating this vesting schedule, negotiating these options? Is it really worth the squeeze?

39:42Because a lot of times you might say, hey, maybe I let that go and I just want more severance up front. It depends.

39:49Nicole Lapin:If they're, though, at a Google or a bigger company. If you're at a Google or a bigger, get it. Yeah. So is that beyond your scope? Is there a special employment corporate lawyer that you should be talking to? You should be talking to a financial advisor because here's the thing. I can help you with the negotiation and I can help press the levers to get you what you want. But you need to make sure that that is a prize worth fighting for. And for that, you need to talk to your tax person, a financial advisor, because they will know how valuable that prize is. My job is to get you what you want.

40:19But make sure you know what you want when you talk to me.

40:21Nicole Lapin:We've got to work together on this one. Yeah. RSUs are implications. That's actually a really good idea, Nicole. So someone in that position who's like, hey, I've got all this stock in Apple and I've got a severance coming up. They should talk to someone like you first. I'm not qualified to say, hey, here's really how these shares and this vesting schedule matches up against your broader financial goals. That's not my job. My job is to go to people who do not want to pay you, who are lying about the reason they fired you, and convince them that it is in their best interest to take care of you.

40:52Let's team up. Before I go out and fight. Yeah, you got to make sure you want it.

40:55Nicole Lapin:Give the people what they want. Yeah, there we go. Let's kick some ass. Dream team. Let's go kick some ass right now. Let's go. Let's fucking go. Okay, I want to. Oh, quick disclaimer. I just made up a company squiggly for the example. If it's LA, I'm sure there's a company that's squiggly and it's the next big thing in AI or whatever. I just made it up. If there is a real squiggly out there, I'm not talking about them. In a firing situation. So I would love to do like, what do you say when HR? I love this. I hope you're going where I hope you're going with this. Tell me where to go. Fire me, Nicole.

41:28Fire me. Should I fire you? Fire me. Fire me right now.

41:31Nicole Lapin:Okay. Ryan, thank you so much for coming into this meeting. I know we just put it on your schedule for first thing Monday morning. I just wanted to thank you for all of your efforts here at our company. We're going to have to go in a different direction with your position. What do you mean different direction? We're going to have to replace your position with somebody else. I have a baby on the way. I just bought a new car. I just moved. What am I going to do? I really understand that. And how could you do this to me? Where do you get off? Nicole? How could you do this to me? Oh man. It's not funny.

42:14It's horrible. All right. No, but in all seriousness, when, when someone says that going back, don't guilt trip them. Don't give them all the reasons why you shouldn't be fired because clearly you have already made the decision and begging and pleading and guilt tripping. Isn't going to fix it. But instead, very calmly, I'm just going to say, can I ask why this is happening?

42:34Nicole Lapin:Yes, we are. Fuck, I need to think of this story first. Hold on. Let me think about it. It ain't true. See, this is suspicious. And you know what, folks? I think Nicole is lying about the reason I'm fired. She doesn't seem to have her story straight. OK, hold on. Redo. OK, Ryan, thank you so much for joining this meeting. I have our friends at HR here. Me and my whole family depend on this paycheck for our livelihood. I'm glad to be here too. Thank you so much for that. You have absolutely done an amazing job at your role at this company. We're actually going to need to eliminate this position altogether.

43:13And so the whole position is being eliminated.

43:15Nicole Lapin:The whole position is going to be eliminated, but we're so grateful for your time here. We have a little bit of paperwork just so you can get your final paycheck and everything else to help you and your family out. But we really appreciate your service here. For a brief moment, I forgot I'm actually not being fired. I actually started to panic a minute and I realized this is role play. So good acting. No, I would say, all right, obviously this is a surprise to me. Can I ask what's going on? Like why is my position being eliminated? We just feel like we're generally downsizing and it's no longer relevant to the core of our business at this point in the business cycle.

44:00So you're really good at the corporate HR speak, and I mean that as a compliment to your acting. So I want to ask that question calmly and just say, why is this happening? And I understand that they may not be being totally honest with me. That is possible, Nicole. but I want to hear what their side is, which is why I asked very calmly, can I, can you please explain to me why this is happening? The next question I'm going to ask is going to give me an idea of the scope of what's happening. Okay. And again, I just need to know what their side is. We can look in and see if they're telling the truth or not later.

44:29Is anyone else being affected by this?

44:33Nicole Lapin:That's confidential, Ryan. So we're only focusing on you and the next steps here right now. I got some information there. So they're saying it's general business downsizing. They're not willing to say, okay, this is actually affecting the entire department or this is company-wide. They didn't want to share it with me. So I can take that and say, hey, they weren't really giving me a clear answer. That's fine. But we have some paperwork here. It's just all really standard paperwork. And we just want to make sure that you get your final paycheck, severance a couple of weeks of cobra that will really help you out and so we've put together a really generous package here and you just have to sign it and and you can read through the rest of it later okay obviously i'm surprised by this you know it's a big change i'm going to take this home and read it over and then i'll sign it and i'll reach out to you guys but i want to take this home first okay i just i want to make sure that you get your final paycheck of course and i know your family's amazing and I I've loved getting to know them and spending time with them I respect that Nicole thank you but this does affect my rights and and this is a surprise so just let me take this home and and read it over okay that's it and look you're so nice you didn't threaten me or anything I've seen it go way worse than that but again what I would threaten to sign the paperwork threaten yeah saying you won't get severance you won't get your pay you forfeit this you forfeit that.

45:57I've seen it go pretty badly. So what I want to remind people is just stand firm. Just look, ask for the reason they fired you. If they're saying, oh, it's a layoff, something like that, ask, is anyone else being affected? Just let your future lawyer know what they said. I just want to know what their side of the story is. Try not to black out. Yeah. Try not to black out. Stay calm. Just ask, why is this happening? Remember their response. Is anyone else being affected? Remember that response. And then when they say we're going to sign, just say, all right, this is a big change. I need time to look this over.

46:29And then you kind of insisted. And I said, I appreciate that. I want to take it home and read it. If someone gets angry, I'm going to say, look, this is a big decision. It affects my rights. I would like to look it over. And if they continue to threaten me, just say, look, I've made my decision. I'm not signing anything until I have a chance to read it. I'm not going to do it right here. If they threaten to take away the severance, that's a game time decision you have to make. I have had employers say, okay, well, no deal then, and I've gotten the severance anyway.

46:59Nicole Lapin:But only through a lawyer. Yeah, look, you're going to have to weigh the situation yourself. I will say it is much more likely you will regret signing something you do not read and do not understand in the heat of the moment than signing it because someone got angry at you and it was hard to sit in that discomfort for a moment. Can we flip roles? Sure. Because, look, I run a business. You know, I have employees and if I have to be in this situation, I want to handle myself in the best way possible. And sometimes you don't really know. So our intentions are there. What should you say? What would be the best?

47:36Leading with kindness is fantastic. And it's funny. I could see you're a good boss because you were struggling to be mean to me in the role play. So the way I would handle it is, yeah, you'd bring in Nicole. Thank you for being here. This is a tough conversation that we don't want to have because you've done great. But we have to eliminate the role. It is a business decision. It has nothing to do with your work performance. And we want to make sure that you can land on your feet. So we have some paperwork here. We've got a severance to help give you some runway. You're absolutely welcome to apply for unemployment and anything you need in the support phase, let us know.

48:13Things like letters of rec, you know, stuff like that. I think as the employer, if you eliminate someone for a business reason like that, valid. but try to help them out. If someone is hiring in your network, see if you can give them a letter of rec or at least tip them off and don't, don't fight their unemployment. I see that happen a lot too. It's petty. Really?

48:31Nicole Lapin:What if I say, I would love to look this over with a lawyer before I sign anything? Fine. It is their right to do so. And I'd say, yeah, absolutely. Look it over with, with whoever you need and, and let us know. But we would like to know within, you know, two weeks something like that it is fine and what if i start crying in the fetal position i'm very empathetic nicole so the way i would handle that is i would offer a tissue and say i'm so sorry i can't imagine how hard this is for you i hate that i have to give you this news but we're going to get through this and i'm going to support you any way i can cool that's how a nice employer does it and then they never get sued by her nice employer keeps people that are not a fit, a kind employer, I think has to make these.

49:17That is a really good point. If someone is seriously struggling in a role and they're not thriving and you're keeping them on just because they're not doing well, but I don't want to fight. Do them a favor, give them a chance to go somewhere where they're going to be a better fit, but there's a right way and a wrong way to cut someone loose. And as the employer, as an employer myself, you cannot forget that a lot of people who work with you, they're paying all their bills with this job. This is their sole source of income. So if it's not an emergency, termination should be planned, there should be communication, and there should be an off-ramp for the employee.

49:52Don't throw someone into the jungle without any support.

49:57Nicole Lapin:Same goes with freelancers? So freelancers are interesting because I work with freelancers all the time and I'm one of many clients to them. So if it's not working, it's just not working. You don't have the same rights. That one I don't worry about so much. Like I'll use freelancers for different things. And I'm not their boss. They're an independent contractor if you're doing it correctly. So I don't worry about that so much. But if – this has never happened. But if a freelancer were to come to me and say, you're my only client. I don't know what I'm going to do. This is so hard. I would still do what's right for my business.

50:32But I would probably say, look, you did great. Let me introduce you to some friends who might need your services.

50:37Nicole Lapin:So if you're a freelancer, these productions aren't in place. So when we say freelancer, just to make sure we got the nomenclature totally correct, I'm assuming you are a 1099 independent contractor. An independent contractor, we call them a 1099 because their wages are reported not on a W-2. That's for employees. It's reported on an IRS form 1099. That means you are an independent business person in enterprise for yourself. You are not an employee. And if someone calls you a 1099 employee, something is typically there's a mismatch there. OK, a 1099 should truly be independent. They do not get the protections of the Fair Labor Standards Act.

51:18They don't get a lot of the protections that employees have because they're not employees. They're business owners, basically. So I have had a lot of cases where the employer had employees as a 1099, even though they were really employees. By itself, it's okay, but then things start happening. People aren't getting their pay right. They aren't getting a minimum wage. They aren't getting overtime. They aren't having workers' comp coverage, and a lot of complications can spiral out of that. So it's important to classify people correctly. But a lot of times also the employer simply doesn't know. So we try not to – it depends on the situation.

51:56I try not to jump to the worst case. A lot of times it's very fine for an employee to come and say, hey, I'm 1099'd, but you control my schedule. You control my uniform. You tell me when to show up, how to work, what to do. I don't have the autonomy and you're my only employer. So I'm pretty sure I'm an employee. We should probably reclassify this. That's a fair conversation to have.

52:17Nicole Lapin:I mean, they do have better tax treatments. So if you want to reclassify that, then if you are actually a 1099, yes. So one way this conversation goes off the rails sometimes is I'm not saying 1099 is bad. It's great. It's only bad if you are not and you don't want to be. I've dealt with employees who got paid sub-minimum wages because they were told they were a 1099. They believed they were, even though in actuality they were an employee. And because of the way the pay worked out, they were earning less than a minimum wage. So you do need to flag it as something that can be abused. But if you are a true 1099, it's your business.

52:57Run it how you want and you get those tax benefits and you can set your prices and you decide who to work with. But you're a business owner in that sense. If you get fired or laid off, who should actually escalate this to a lawyer?

53:12Nicole Lapin:Because I think the biggest fear that people have is that if I escalate this to an attorney and I become that litigious person, then I'm never going to get a job. The world is small. Life is long. I'm so glad you brought this up. So there's so much to unpack there. Can we talk first about the sort of fear of if I assert my rights, if I sue or if I get in there with a demand letter, whatever it is, no one's going to want to work with me. Believe it or not, the most common time I see that is sexual harassment cases. It's really sad. So we're going to get real for a minute. The sexual harassment cases are very heartbreaking because more often than not, it is a woman in her 20s or 30s.

53:55This is the most common sexual harassment victim. men can be sexually harassed too, and I helped them, but this is the most common. Woman in her 20s or 30s, the harasser is someone who has some influence, maybe some power, and she is afraid to speak up because this influential person can theoretically block her from other employment opportunities. And that's the kind of shit that really makes me upset. So someone is using that power to control and overstep boundaries on another person. I will say this, every situation is unique. You should talk to a lawyer carefully about your options before doing anything.

54:28I have never had a client. I've represented a lot of people in my ears. I've never had a client say, Ryan, I can't get a job because I sued. I can't get a job because I stood up to John, who was sexually harassing me. Here's what I want to put out there, and I hope people are listening carefully to this. If someone is using their position of authority at work to sexually harass you in some way. It is only going to get worse if you don't find a way out of that situation or find a way to assert yourself. Simply trying to let it pass is not going to make it better. And if you do assert yourself and if you go to a job and they somehow find out that you stood up to an abuser and beat them or whatever it was and they don't hire you on that basis, they're telling on themselves.

55:15They're actually doing you a favor. Do you really want to work for someone who sees you tolerating abuse as a good thing?

55:22Nicole Lapin:Yeah, but they're never going to tell you. They'll never tell you that. But I will say it's a rational fear. I respect the fear. I get it. It's the amount of fear people have is not proportional to the threat in my experience. And everyone will come to me. I understand there will be people saying I stood up and I got blacklisted. I believe that person. I believe that experience. I have a pretty big sample size, thousands of clients, hundreds of cases. I really don't see that many people having their lives ruined because they had a case. More often than not, my clients are happy they stood up for themselves.

55:56Nicole Lapin:And I am happy that you are a male feminist. Thank you. You have to be. Thank you so much. There are a lot of issues that women experience in the workplace that are inherently unique. Yeah. Maternity leave. So if we're talking to the women listening now, there are obviously a lot of workplace issues surrounding maternity leave. I'm just going to say this and we're going to definitely we have to bleep it out. But I must tell you this, that one of my girlfriends whose brother is got pushed out of by. Are you serious? During maternity leave. How? Which is fucking crazy. You would think that's someone who's untouchable.

56:40Nicole Lapin:us based on the relationship. Well, it just, and I'm glad you brought that up because it shows that no one is untouchable. A lot of people think, well, I'm very high ranking. I've been here a long time. I'm very close with the CEO. If she can get pushed out, anyone can get pushed out. I've seen co-founders get pushed out on maternity leave or after maternity leave. And no one is ever going to tell you that's why, of course, because I'm glad you brought that up twice now. So I want to stick on it for a minute. A lot of people will say, Ryan, I don't think I have a case. Why? Because the employer says that they're firing me and it's just downsizing.

57:15So that's it. It's at will. And they said it's downsizing.

57:18Nicole Lapin:And I just happened to be on maternity. I know. I said, look, I've never had, it's never going to happen. I've never had an employer say, oh yeah, we fired your client because she's pregnant and we didn't want to deal with it. That is not going to happen. They're always going to say it's a performance issue. It's a business need. It's something else. They're not going to say, oh, yeah, we fired her because Bill wanted to sleep with her and she said no. That doesn't happen. But a lot of people wrongfully think, well, if they didn't give me the real reason, if I can't get them in a confession, then I have no case.

57:47Not so. Imagine for a minute you robbed a bank. You robbed it. And the police pull you over. Say, hey, you match the description. We saw you fleeing the bank. We're taking you in for questioning. And you say, officer, that wasn't me. Do they look at you and say, oh, so sorry for the misunderstanding on your way. I'm so sorry. No, they say, okay, that's your side of the story. We're going to compare it against the evidence and you see who's lying. I do the same thing. I get lied to for the reasons my people are fired all the time. And my job is to stitch together the paper trail. What is the broader narrative here?

58:19You're telling me that Nicole was fired for poor performance. I don't see a single bad performance review. I see her telling you she's pregnant and three weeks later, suddenly she's written up for quote unquote poor communication. A little vague, Don't you think? I don't need a confession. But with a good paper trail, we can stitch together the narrative of what really happened and we can still assert your rights. Okay.

58:39Nicole Lapin:So what should that paper trail be if you got pregnant, if you're taking maternity leave, if you're having a discussion around maternity leave? I love this question because this is controversial advice and there are going to be people who hear this advice and get very angry with me. It always happens. But I am coming from a place of love and I am trying to help and I am a professional who knows what he is talking about. Do not hide your pregnancy. A lot of people want to keep it private, especially in that first trimester. They might want to tell their friends and they say, I don't want my boss to know why.

59:10I've got this promotion coming up. I've got this going on. And I don't want that to get messed up. You're going to start showing eventually or someone is going to hear it through the grapevine. I would much rather you protect yourself and establish your protected class as early as possible. That way if they do something, they suddenly deny that promotion you had coming that you had totally earned. They lay you off, whatever it is. At least we can show that they knew you were pregnant. Because the law, those discrimination laws, they don't protect you unless the employer knew or had reasonable notice, like reasonably should have known that you were pregnant.

59:45So if you're not showing and then the manager kind of catches wind of it and decides they're going to pull back on something, you don't have a paper trail protecting yourself. so interesting so it's better to have it and not need it than to need it and not have it

59:58Nicole Lapin:but you also are i mean and i don't know if you want to talk about this on air or not but you are you're and you're i'm having a baby don't worry it's fine i'm not holding my cards close to my vest the the three-month mark too you're before the oh yeah we're about we're about to cross it we're right on the the cusp of that three-month mark it's a tricky time because you don't want to talk about it in case something happens, but then in case something happens at work and you don't talk about it and they hear about it, then you could be shooting yourself in the foot. So there's a couple of scenarios that come up.

1:00:37One, this is actually from a real case. I don't remember if this made it in the final draft of the book, but I've had clients where they told their friends, made it through the grapevine, went to management, and then management decided to do something shitty based on that information. I've even had management get angry saying, how long were you thinking of keeping this from us? Asinine behavior, not acceptable, but that is a worst case that could happen where they feel like you were concealing it or something. And ultimately, they don't want to deal with the leave, even though it's your legal right.

1:01:09Some of them might have very outdated, misogynistic, disgusting ideas around pregnancy. And I will tell you, Nicole, pregnancy discrimination is the number one form of discrimination I deal with in my office, more so than anything else. It's more so than race, more so than age. Pregnancy is the most frequent I see.

1:01:26Nicole Lapin:Well, what's crazy is I wrote an article for Forbes during the pandemic or right after the pandemic that showed that women who were raising money who are pregnant and you couldn't see because everybody was on Zoom were actually more successful during that period and got raises at a higher rate than typically because you weren't able to physically see it. isn't that i mean look i'm not going to say correlation is causation but i believe that study it's true there and we talked a little bit earlier about inherent bias people have sometimes a lot of times it's not even a manager who's like out to get you it's not like they hate pregnancy and hate women and they're an anti-feminist whatever it is they have a business to run and they may not be aware of the law that's the other thing you have to remember a lot of managers don't have a clue about employment law.

1:02:17They never heard of FMLA leave. They never heard of the Pregnant Workers Fairness Act. And so they're thinking, oh gosh, Nicole's going to be out for her maternity leave. I need to plan for that. So I guess we'll pull her off these big projects and that's just how the ball bounces. They may not realize that they have an obligation to engage in some interactive process with you. They may not even be aware that you have a right to some kind of accommodation or protected leave.

1:02:39Nicole Lapin:So what do you get in writing if you're pregnant? The way I I would recommend doing it for most people. Again, I'm sensitive to everyone's unique situations, but for most people, an announcement to management first. I understand that it feels unfair. You want to share with your friends in the workplace first. Tell management first. Hey, boss, so happy to announce I am pregnant. I'm excited to continue working. I will want to discuss my accommodations and upcoming leave at some point. When can we have that conversation? Boom. So it's coming from a, I want to plan together so that everybody is taken care of.

1:03:13An invitation to collaborate with them is an invitation to engage in what I call the interactive process. And that is a legal term. They have a legal obligation to work with you for things like what kind of accommodations will you need while pregnant. You're going to have more medical appointments. You might need to be getting more bathroom breaks. Maybe you need water by your station. There's a lot of things that pregnant workers need to keep doing normally. And I want to flag this real quick before we move on. Some employers, I've dealt with them, I've sued them, get angry and do not want to accommodate pregnancies.

1:03:46They say it's special treatment. It is not special treatment. It is the removal of barriers to equal treatment.

1:03:53Nicole Lapin:Someone who is pregnant. Say that one more time. Giving accommodations to a pregnant worker is not special treatment. It is the removal of barriers to equal treatment. And I can prove that because she is going through something no one else is going through. She's 3D printing a human being inside of her freaking body. That's a lot. And that puts a strength. She is literally competing in an athletic event here. A marathon a day. Yeah, it's truly. And it's something that the other workers do not have to struggle with or mitigate or deal with day to day. So when we say, hey, Nicole gets a stool here.

1:04:26Well, why don't I get a stool? Are you 3D printing a baby inside you? No? Okay. We're removing barriers to equal treatment and we're giving Nicole a hand. Okay. so tell your boss if you

1:04:40Nicole Lapin:Are in a bigger company or tell HR, I suppose. I would tell both. Look, the paper trail protects you. And again, I understand there are a million reasons people might have for not wanting to disclose, not wanting to disclose early. I am sensitive to it and I respect it. If you have a really compelling reason you don't want to, it's your life. I'm not telling you how to live your life. But if you're asking me as a workers' rights lawyer, Ryan, what gives me the most legal protection? Disclose early. Disclose in writing. Keep a copy for yourself. The biggest emotional concern that women have, and I was there myself, is that there is a higher risk of miscarriage in the first trimester.

1:05:21Nicole Lapin:So let's play this out and get uncomfortable. So I write a note to my boss and to HR and I say, I'm eight weeks pregnant and I'd love to figure out what our plan is for my pregnancy and maternity leave and the rest of it. And then I miscarry. What are my rights if I miscarry? It's a heartbreaking situation. I understand it because part of it is you have this excitement. Oh, my gosh, I'm pregnant. I'm going to have a baby. This is great. And it's one of those things like when you get really good news, sometimes you almost don't want to tell people because it's delicate. You don't want to jinx it, we say.

1:05:59And with the pregnancy, you're like, I don't know what's going to happen. I don't want to deal with that heartbreak, that disappointment. And what do I say to them when I asked for leave and now I don't need it anymore? Here's the deal. If you come back and say, hey, really bad news. Pregnancy didn't take. So just wanted to put that on your radar, guys. It's a good time to ask for some sick leave, some time. and you're at least telling them where you are at. A lot of employers are going to be sensitive to that and work with you. California is unique in that it actually has protections for an unsuccessful pregnancy where you can actually get some protected time off for that because recovering mentally as much as physically from that, it's critical.

1:06:41And thank goodness you started that conversation early and you can still be protected sometime after that event as well. Some employers might not react well to the pregnancy and the miscarriage. They might not want to give you the sick leave, but you've got a paper trail now showing your protected status.

1:07:03Nicole Lapin:So there is some protection for pregnancy loss in California. That's not only California. I'd have to check for the other states. It's somewhere between sick leave bereavement, short term disability. Yeah, it's new. And so what California will do is it will give you some protected time off to recover from an unsuccessful pregnancy, which thank goodness. I mean, California is very progressive in that light in that we've had some big steps forward the past couple of years. The Pregnant Workers Fairness Act in 2022, fantastic piece of litigation. Because before that, in most states, you could only get accommodations for your pregnancy if you could show it was a, quote, unquote, medically difficult pregnancy.

1:07:42And you were basically protected by the ADA in that situation. But then lawmakers, probably a couple of feminists and mostly strong women, said, hey, pregnancy is hard. It's not hard just because there's an added complication. People need help before that. So we got the Pregnant Workers Fairness Act. California then around that same time realized, hey, recovering from a failed pregnancy is brutal mentally and physically. There should be protected time off for that too. So we are seeing some progress. I know right now times are a little tough on that particular front, but the past five years have been good for pregnancy rights at work.

1:08:16Nicole Lapin:I want to ask you, lightning round style, a few hot button issues in the workplace these days. So return to office. Some say that companies are using return to office mandates as a stealth layoff strategy. What? They would never. Really? Sneaky. walk us through what that actually looks like legally well so let's set the scene that does happen and you're not crazy i'm going to validate a lot of people yeah you worked remotely for a long time everything was fine now hr is a broken record they're just telling you it's our understanding this position is done 100 in person you say well wait i've done this for years remotely what changed it's our understanding it needs to be i've dealt with this so many times nicole they just repeat it.

1:09:04So a lot of times they're trying to force people to quit. That does happen. A lot of times they're just trying to exert more control. If you are just a regular employee, no particular circumstances like a disability or anything like that, you don't have a lot of options. It just is what it is. They, as the employer, have the right to control the terms of your employment. However, I see this a lot with disability discrimination cases. I had a client who was actually had a cancer diagnosis. She was working remotely just fine. Company said, everyone has to come in office now. She says, well, hold on.

1:09:40I'm immunocompromised. I can get sick very easily right now. I'm going through my treatments. I need to stay remote. And they say, no, remote doesn't work. Has to be done in office. And then they gave her an ultimatum. Say, you're full-time in the office or you're fired. She tried to stick through it. It was exhausting and brutal. Worst couple months of her life. Couldn't do it. Ultimately, she was fired. And I talked about this one in the book. Here's how that case shook out legally. Employers said, hey, it was at will. We had the right to control the terms of employment. She wasn't fired because she needed leave for her cancer.

1:10:11She was fired because she refused to come into the office full time. And then I said, well, wait a minute. She did this job just fine remotely for a year. No problems. Now all of a sudden she is a cancer treatment. She needs time and she's immunocompromised. And you can't accommodate her. You can't have a conversation and let this continue being remote. So in that case, she had extra protection. She had a medical condition. She had a disability. So we could characterize the remote work as a form of accommodation for her. And when they took that away without so much as talking to her, and when they tried to say, oh, it's business necessity, but we have a year of evidence that it's not a business necessity, then she had some more leverage in that situation.

1:10:54Nicole Lapin:So is it just if you're sick or what about if you've moved or you can't get child care? Is there any child care is going to be a gray area? It'll depend on a few issues in California. I can get that protected with child care. But if you are in a state that's a little less robust with its protections, like like Texas or Louisiana, I would say talk to a lawyer about your specific situation. But it is possible. Just know that the default rule. And this is the bad news. I always try to deliver good news. The bad news is the default rule, if they want to go full-time in office again, they can do it.

1:11:26And if you've moved, if you've changed your life because you depended on the remote work, more often than not, that's not going to be enough. There's going to need to be some protected reason.

1:11:35Nicole Lapin:What about a couple of months ago for installing keystroke monitoring software on employees' computers? Is that legal? All right. So AI tracking, keystroke tracking. I mean, that's akin to productivity trackers. I don't love them, but for the most part, they're within their rights to do that. I mentioned at the beginning of the show that you do check some of your rights at the door when you engage in certain activities. One of those would be work. You're going to give up some of your privacy rights. They have the right to see what you're doing during those work hours, what you're doing on company property, what you're doing with company property, what you're doing with company time.

1:12:08Nicole Lapin:What you're emailing. Yes, especially if it's a server they control or if you're doing it while holding yourself out is working for them. Or what about a company phone? your messages oh my god ryan are you okay don't do you need a moment don't watch porn on the company phone and i'm doing this because it's happened more often than you'd think it's i've had i've had situations where people downloaded it i've had people film it on the company form do not do porn on the company phone please important psa sorry i just did this like an exasperated dad. Like just what are you people doing? Assume, look, I'm not saying that employers are in real time monitoring every text, every message on your company devices, but assume that everything you do on those devices is discovered.

1:12:55Nicole Lapin:So how has that, no pun intended, screwed people? Oh, that's, well, I didn't take their case. You know, they said, you know, someone came to me, they were very upset about how they had been treated at work and it was unfair. And then I found out that they had actually violated company policy pretty egregiously by filming pornographic content on a company phone. So in that situation, no, I'm not going to take your case because look, maybe there was some bullying and harassment going on, but they had a valid reason to terminate you. So try not to screw. I keep saying screw. I can't, I can't even think give another word after that.

1:13:34Nicole Lapin:So even if they have legitimate claims, if you violated terms like that or otherwise, then it's hard to get a lawyer. It's a balancing act. So it'll depend on the competing claims here. If you have like a wishy-washy, like, hey, your boss was kind of bullying you. Maybe it was harassment, maybe not. But then I have a very egregious policy violation here. The scale does this and I can't do much for you. But I'm glad you brought this up. And I I question. We'll go back. You do not have to be a perfect employee. I have helped a client once. I don't want to, I don't want to disclose too much. I want to protect privacy.

1:14:09Nicole Lapin:So we can also bleep it out. Yeah. So basically what my employee did is he worked in the hospitality industry and he worked nights and it was known that nights were lonely. They were boring. He would whip out his phone and scroll tick tock at night. Okay. He got written up for that like five or six times. They're like, Hey, we know it's boring. We know there's not going on. We really don't like you scrolling tick tock on, on that. He had all these write-ups for it. Not just him. Other employees got dinged for this too. It was known that that night shift was boring. You would scroll TikTok. And if you got caught, you get in trouble.

1:14:40Fast forward, my client reports missing wages to the employer. They say, tough shit. He goes, okay, well, I'm going to go to the labor commissioner. Files a report with the labor commissioner. The employer gets notice of that report, suddenly decides, you know what? You're fired for scrolling TikTok. Do you really think he was fired for scrolling TikTok? Do you think maybe the report to the labor commissioner had something to do with it? Yeah. And so those bad write ups actually helped us out a lot because at first glance you're thinking, wait, you did violate company policy multiple times and they fired you.

1:15:12It looks legit. But then we say, well, wait a minute. He's gotten in trouble for this before, but it wasn't a terminable offense. They didn't love it. They say, hey, knock it off with the tick tock thing. But it was never something people got fired for and other people got written up for it, too. Suddenly, you go to the labor commissioner saying, hey, I'm not being paid all my wages, and now the TikTok's an issue? Highly suspicious. So there's a balancing act, Nicole. If you have claims and a big violation of policy, that's a problem. If you have just some dings in your record, but we have a pretty clear-cut case here, you don't have to be a perfect employee to have a claim.

1:15:49Nicole Lapin:What about non-competes? The FTC, of course, tried to ban them. Now it's a mishmash hodgepodge amongst the states. I have signed a non-compete myself. What should somebody know about signing a non-compete in 2026? Oh, wow. All right. Well, so for the FTC thing, by the way, there was a conversation for a while that the FTC found that non-competes cost the U.S. economy something like$300 billion a year. They also estimated that one in five American workers is subject to a non-compete. Oftentimes they don't know it. You get those big packets when you sign up for a job and you just you sign like 100 times in there.

1:16:27You don't realize you've signed a non-compete. And non-compete.

1:16:30Nicole Lapin:Oh, not your exit packet. So you're. No, no, no. When you first sign up. So I've seen both. OK. Let's let's do first things first, because we're I'm going to I'm going to talk about what happens when you exit as well. So a lot of people don't know that they've signed that non-compete at the beginning. Sometimes it gets front loaded. That becomes a problem. And this is why the FTC looked at banning non-competes in employment, because it limits your mobility. It means when you have a boss that really becomes an ogre towards you or you're being paid well below market and you want to move on to another opportunity, you can't.

1:17:02Or even worse case, you move on and then you get some kind of cease and desist or you get threatened with a lawsuit because you've moved on. And that is what a non-compete can do. So what a non-compete can do is it can prohibit you from seeking employment at another place. It can even prohibit you from starting your own business if it's in the space. Now, just because an employer puts a non-compete on paper and makes you sign it doesn't mean it's automatically enforceable.

1:17:27Nicole Lapin:Can you redline that going in? You could try to negotiate it. I don't know how open they would be. It would depend on the position. But here's what you need to know if you're going to try to do something like that, okay? A non-compete is not automatically enforceable. There's factors we're looking for. first of all, how long does the non-compete last for? I've seen one year after employment. I've seen two years after employment. Anything past that, it's less likely to be enforced. So we need a limited time. A non-compete cannot be indefinite. And the longer it lasts, the more likely, hey, maybe there's an enforceability concern here.

1:18:02There also needs to be reasonable geographic constrictions. They can't say, all right, you have a non-compete. You can't work for any company in the Western Hemisphere that's in our space. That's much too large. There needs to be reasonable geographic limits. I've seen 50-mile radius. I've seen 100-mile radius. Statewide, I've seen in some cases. It depends on the situation. The other concern is scope. They can't say you can't get any job anywhere or start any business anywhere. They have to say, look, we are Coca-Cola. You cannot go work for PepsiCo. You can't go work for Frito-Lay. You can't work for our competitors.

1:18:37But if you decide you're going to go start a pillow company, you're not going to be talking about that.

1:18:42Nicole Lapin:But what if you started a Coke-like company, like a soda company? That could be something covered by the non-compete. So I signed a non-compete when I left CNBC that I couldn't work for Bloomberg or Fox Business for a year. And then at the year-end-one-day mark, I started at Bloomberg. Fantastic. Good for you. I mean, just look, I haven't seen that document based on your description of it. sounds valid to me, but there is one more thing I want to flag. Some states have banned non-competes in employment. California is one of them. I believe Oklahoma is one. If you could believe it, kind of random.

1:19:17There's a few of them.

1:19:19Nicole Lapin:So if you sign it, you could just be like, well, it would be unenforceable in California. So California's business and professions code 16600 prohibits non-competes in employment. That doesn't mean a non-solicit can't be enforceable, but if you work for KFC in California and you decide, hey, I'm going to start my own fried Chicken Company, they can't use a non-compete to stop you. Interesting. Even if you signed it? Even if, well, again, I'd have to see what you signed and what's in there. There might be some, I'm about to nerd out so hard. There could be a severability clause where some parts are valid, even though other parts are invalid.

1:19:51But the point is those non-competes wouldn't be enforceable in California.

1:19:55Nicole Lapin:So right now, if I had signed that non-compete that I did almost 15 years ago in New New York and I wanted to work at one of those two places, Bloomberg or Fox Business in California. I could do that. I would have to see your situation a little bit more. I'm not going to comment on the specific because I haven't seen the document and I wish I knew more about your industry, but I don't. But basically, if I signed a non-compete in a different state, it wouldn't be enforceable in the state where non-competes are not valid. Possibly. Okay. I can't say definitively. I'm sorry, Nicole. Spoken like such a true lawyer.

1:20:29Nicole Lapin:I know. Hey, be very suspicious of lawyers with firm answers. I appreciate that. I appreciate that. So can we do a little role playing? Okay. So I will put those acting skills to work. Let's go. So you clap every time I ask you a question in a job interview simulation. That's illegal. Okay. Am I underdressed? I wouldn't want to try if we were going to do a job interview. So let's say you're interviewing. Yes, I do. Ryan for a digital marketing role. Oh, fun. So I'm going to be interviewing you. And if I ask you a question that's illegal, you clap. Okay. Hey, Ryan. So wonderful to meet you. Thanks so much for coming in.

1:21:11I love digital marketing. I'm so happy to be here, Nicole. Thanks for inviting me to this job interview.

1:21:16Nicole Lapin:So where do you live? I live here in town. What are your hobbies? I actually, I'll tell you for real. I love competitive paintball. Good fun. Do you have some favorite restaurants around here? What do you like to do for fun? less taco bell you'll care oh did you grow up here uh yeah yeah i grew up here in town i know that you're waiting here's the thing i'm waiting for him here's the thing i'm gonna i guess i'll do a half clap i'm gonna do a golf clap here's because i see what's going on here that's interesting we want to look out for national origin discrimination if someone's giving you the whole where are you from no really where are you from uh that's a little concerning Also, we're role playing.

1:21:57I have the privilege of being a white presenting male who did grow up in this country. So a question, did you grow up in town? I have the privilege, I have the luxury of not feeling threatened by that question. But maybe someone who is darker skin tone, maybe has an accent, that could be a threatening question. Like, are you not going to accept me because I wasn't part of this community? So golf clap, I'm going to say yellow flag on that one. We have to be reasonable for just like common conversation.

1:22:25Nicole Lapin:What if I say, is your family from here? I don't like that. That's a bigger clap. The clapping rule is funny because I'm clapping, but I'm displeased. Like a big clap. Yeah, I don't like that. Look, the job is about you and your qualifications. Why are we talking about your family origin? I don't like that. Okay. Yeah. A real character. No, this is important. we need we need to especially for small business owners by the way you know i don't know the ins and outs of all of these yeah look we're reasonable i i try to be reasonable not every person who asks oh did you grow up around here not not all of them that's not nefarious horrible seething racists who are looking for reasons to deny you a job but we have to look out for implicit bias if they're asking things like oh are you married do you have kids well wait a minute Let me get there.

1:23:14Nicole Lapin:Oh, okay. Sorry. Coming up on. So are you married? Yes, I am. And I'm real excited to talk about the job. What can you tell me about this workplace? So it's fine to ask if you're married. I don't love it. Do you have kids? Family's family. You know how it goes. I'd love to talk about the job with you. And does your partner work around here? I would love to talk about the digital marketing role, Nicole. So here's the thing. Those are all hot button issues. is asked one off with good intentions. They're normal. I mean, what do we do when we meet people? No, we try to connect. Where are you from?

1:23:49Are you married? What is that like? But in a job, the job interview should, it's not a coffee date. It should be focused on your qualifications for the job and whether it's going to be a good fit for you.

1:23:59Nicole Lapin:Okay, Ryan. Go ahead. Back to the interview. Oh, God. This role involves marketing to millennials. Are you a millennial? I don't like that question at all. I am an expert in digital marketing and I can appeal to the millennial audience. That's how I would answer that. So here's the deal. Again, we got to be reasonable. I don't jump up and down and scream. You can't ask me that you're trying to violate my rights. That's age discrimination. I don't like questions about your family origin. I don't like questions about family, family planning or perceived gender based roles. I don't like questions about childcare because that can be discriminatory as well.

1:24:35And I don't like the millennial question because age discrimination. When you're asked a question like that, it is fine to simply redirect. Like they said, we are marketing to millennials. Are you a millennial? I would seriously say I can handle the millennial audience. I'm very good at what I do and I know how to speak to that core audience. That's fine. But if they're prying about your age, now my red flags are going up that this is an age discrimination problem. Right.

1:25:01Nicole Lapin:The last person who had this role really struggled with the fast-paced nature of our work environment. How do you feel about the fast-paced nature of this industry? I thrive in a fast-paced environment, but your failure to plan is not my emergency.

1:25:21Nicole Lapin:I think the last person had a hard time because she had insomnia. Is that something you struggle with? Do we have a lot of late-night meetings? What did you do to this poor woman? I don't like that question because it kind of veers into a possible disability discrimination. I'll just say, look, I can do the job. That's it. If you do have a condition that requires accommodation, you know, it's fine to say I can do the core duties of this job just fine. And do you have to disclose that? You don't have to. Look, if I can be a little Machiavellian, a little ruthless right now, employers do deal with a lot of implicit bias when it comes to these interviews.

1:25:59And a lot of people who deserve a fair shot don't get them. And I'm not going to pretend that people with disabilities or people who maybe have child care issues do not get a fair shot. That happens every day. If you can do the job, tell them you can do the job. And when you get in there, if you need some kind of accommodation, then ask for it. But my ruthless Machiavellian approach is if you can do the job, that's all you need to tell them. Okay.

1:26:25Nicole Lapin:Ryan, we end all of our episodes by asking for one final tip that listeners can take straight to the bank. You've given us so many. We know we have to get it in writing. What else should people be aware of when signing employment contracts or leaving jobs? We talked about protecting your money and the paper trail and all of that, but we didn't talk a lot, Nicole, about protecting your soul, you, your self-esteem. A toxic workplace is going to do more harm to you. There's some studies that suggest it's as harmful as drinking heavily or smoking every day. A toxic workplace can make you feel that you are average, ordinary, or even less than, even when you're wonderful.

1:27:11A toxic workplace is going to change you before you change it. And I say all of this because just because a workplace is not seeing your value doesn't mean you are not valuable. If I may go on a very brief tangent, in my book I talk about the story of Joshua Bell, legendary violinist, debuted at Carnegie Hall when he was just a kid. He was on Angels and Demons. Like, this guy's legit, okay? And his violin costs more than my car. The big deal. He did a social experiment in the 2000s where they went to the metro station in DC. And the experiment was, hey, let's take this legendary performer and put him in this common place and see what happens.

1:27:47A lot of folks thought, hey, the Joshua Bell, it's going to move the place to tears. Trains are going to stop. Like, this is going to be incredible. We can't wait to see what this kind of music does. So he goes down there, he plays. And what really happened was more amazing. Do you know what happened? Have you heard this story? No one gave a shit about this guy. No one noticed him about in 40 minutes, about a thousand people passed this legendary, one of the most talented musicians on the planet passed by. Didn't even stop to listen. I think maybe 20 stopped to listen of the 20 who stopped to listen.

1:28:17I think less than five left a tip. He made about$50 in tips in an hour and only two or three people even recognized who he was. Does that mean he's not an amazing violinist? Does that mean that he is not one of the best at what he does? No, he was in the wrong place. Context really matters. So if you are listening to this and you're feeling less than, you're feeling your self-esteem is decaying, you think maybe you're not smart, maybe this is all that a job can be for you, Maybe you're not that special. Check the soil around you. Are you Joshua Bell in the metro right now? Maybe there's somewhere else you need to be.

1:28:57So the big advice I want to give people that's not really a written rule, do not let your boss or a toxic workplace dictate your self-worth. It is not you. It is the environment. And you deserve good things. And you are so much smarter and more special than you realize. And if a workplace can't recognize that, I hope you find the courage to leave it.

1:29:18Nicole Lapin:I like to think of it like an orchid in a sauna. Yeah. The orchid in the sauna dies, but the orchid is amazing. Yeah, it's not the orchid. In the right environment. Exactly, exactly. And I've been through it, Nicole. I got very raw in my book, and I talk about the worst boss I ever had. His name was Joe. Joe was – there were a few things that were making me rethink my career as a firefighter and look at maybe a career in law instead. But Joe was kind of the final nail in that coffin. He was a horrible supervisor. He hazed me ruthlessly. He was just a brutal, mean spirit. He was a very unhappy person.

1:29:50And he took it out on me because I was a low man on the totem pole. And by the end of my time with Joe, despite loving my career as a firefighter for years, I started to think that I was dumb. I genuinely thought that. I thought, maybe I'm not that smart. I'm not a good firefighter. Maybe I don't deserve the brotherhood. I really started to feel that because of nine months of this guy drilling it in my head how much he thought I sucked. It was brutal. And I don't want anyone else letting that toxicity affect the way they view themselves. I'm not dumb. I left that environment. I went to law school.

1:30:23I passed the bar. I built a business. I'm here with you. I'm clearly not stupid. Joe was wrong. He was wrong about me. He was wrong to treat me that way. And I was wrong to let it affect me. And I hope that other people can learn from my mistake in that regard. Thank you.