Finance, In-House Counsel

In-House Q&A: Kate Bally Of Thomson Reuters

The Director of Labor and Employment Service at Thomson Reuters Practical Law offers some practical advice concerning pandemic-related issues.

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Kate Bally is Director of Labor and Employment Service at Thomson Reuters Practical Law.

Her previous experience includes clerking for the U.S. District Court, District of Connecticut, working at the Center for Reproductive Rights, and work in private practice focused on employment law.

Today, Kate offers some practical advice concerning pandemic-related employment law issues, describes new trends affecting in-house lawyers when it comes to cannabis legalization, and details how to minimize the risk of sexual harassment claims like the allegations facing Governor Cuomo.

(This interview has been edited for length and clarity.)

JW: Can I call you Kate?

KB: Absolutely, everyone does.

Great. I took the liberty of stalking your LinkedIn profile a little before the interview, looks like after law school you had a federal district court clerkship, served a brief stint at the Center for Reproductive Rights, and then were in private practice before arriving at your current organization. Is that fairly accurate?

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Yeah, thanks for doing your homework. I’m an employment lawyer by trade. I started with Practical Law in 2009. Thomson Reuters then acquired Practical Law in 2013.

What drew you to employment law?

The subject is fascinating, the law is complex, and the human element makes the subject relatable. Plus, my father was an employment lawyer, and he had great cocktail party stories. 

I guess it runs in the family. What do you do now at Practical Law?

I serve as director of a team of 23, and we write about a wide range of topics within the employment law field. We provide content to help busy lawyers practice more efficiently. As one of my colleagues says, our job is to help people get their kids to their soccer games.

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We’re really providing resources that allow companies and their attorneys to more easily navigate their obligations under complex and changing laws. We provide a know-how service. We’re trying to be, for the people who need it, that lawyer down the hall who you can ask questions to.

And we’re providing a lot of context and analysis that is useful practically in getting to a result, as our name suggests. We’re answering the question, “Why does it matter to my practice?” not just quoting the statutes and the case law.

So what have you been dealing with most recently in light of the pandemic?

It’s been a busy season! There was a form of paid leave for the first time at the federal level, that’s been a remarkable departure from prior law. Federal FMLA leave has been traditionally unpaid leave, but for a portion of 2020, an amendment made that leave paid leave for the first time. There had been paid leave at the state level in some jurisdictions, and even before the new federal mandates on paid leave, content on state-level paid leave was one of the most popular Practical Law resources in the L&E space. Employers are always trying to figure out what sort of leave they have to provide.

It’s not just paid leave though, everything has changed about work. People were never working remotely so much before. This brings up privacy concerns, it affects non-competes — if you can work anywhere, what do the geographic restrictions in non-competes mean? People moving from one state into another but staying with the same employer now often have different rights regarding getting reimbursed for business expenses. Carryover for leave can vary by state.

And then there are all the things that haven’t just expanded or crossed borders, they’re here for the first time. Social distancing, temperature checks, vaccine policies, no employers had these before, so we’re getting a lot of questions in those areas. Employers want to know if they can provide employee incentives for these things, or even just mandate them.

Can employers require vaccinations?

The EEOC issued guidance that said yes, you can mandate vaccines if you want to, but you have to make exceptions for legitimate medical issues and sincerely held religious beliefs. We actually have a great COVID-19 employment law tracker that we’ve unlocked. It tracks federal laws, agency guidance, all of the state laws that are relevant to COVID. We’re providing the tracker as a service; I can send you a link to share if you’d like.

That would be fantastic. Well, we were going to try to cover a couple more hot employment law topics, and I’m already going to be at a lot of words on this one.

Sorry about that!

No, no worries, it’s interesting. Lots of words can be good. So what’s going on with Governor Cuomo? Seems like he’s in some employment law hot water.

Cuomo’s not alone. In the midst of the #MeToo movement, we’ve really been trying to address how else we tackle this problem, other than the typical sexual harassment prevention trainings and policies, some of which are pretty bad. Unfortunately, a lot of the trainings out there are people saying, “How do we just check this box?” Something like 75 percent of people who claim to be harassed say there was also retaliation for reporting the harassment. People don’t feel supported and encouraged unless they have a safe environment to make these complaints.

There was a report that came from the EEOC in 2017 with five tenets that have actually proven effective in addressing workplace harassment issues. Probably the most important of the five in my view is leadership from the top: clear, frequent, and unequivocal condemnation of harassment from the leadership roles is just critical for people throughout the organization to take harassment seriously. Accountability, consistent follow through, is another big one.

If you don’t actually do what you said you were going to do, it’s not going to help you in a legal defense or in your compliance work.  

Sound advice. Well, let’s move on to marijuana, I think we were going to cover that a bit too.

Practical Law has had a ton to say on marijuana lately, there has been so much movement in this area. New York, New Mexico, Virginia, and a number of other states have new legalization laws coming into effect. We have a tracker for new marijuana laws to help keep pace with these changes.

The culture is changing, and legislatures are changing with it. When states started to legalize marijuana, it was a light touch on what was changing. But now we’re really changing at a fast pace.

Have any examples?

As recently as 2015 there was a pro-employer case out of Colorado that left employers with the impression that terminations for positive drug tests for THC, even with a medical marijuana card, were lawful. Now you cannot even test for marijuana in pre-employment screening in New York City. In New Jersey, just testing positive is not enough for employers to impose consequences, they have to prove actual impairment at work. It’s a much higher burden on employers. In Arizona, for example, if an employer finds THC in the system of a medical marijuana user without additional evidence of impairment, that employee now has a private right of action to sue if terminated — that would have been shocking 10 years ago.

I think we’re going to see more court opinions favorable to employees. There’s thought to be a racial bias aspect to legacy marijuana laws that courts are increasingly eager to address. I don’t know that we’ll see any changes at the federal level soon, but there’s some movement there as well. Even though many states have legalized medical marijuana, there is still some reticence on recreational use. For example, we’re seeing some pushback from Minnesota Republicans right now on legalizing recreational use.

It’s too much fun, that’s the problem. I’m based in Minnesota, and we’re always the last to authorize anything fun.

The culture is changing and with it, legislatures and courts as well. They are more actively considering, “What is the harm of having THC in your system?” Even with legalization spreading and the culture changing, employers and employees have a lot of unanswered questions, and we may start to see guidance on these questions in the future. It’s confusing to employers and employees alike.

Indeed it is. Well, any parting words?

Just that we’re not done with the coronavirus yet, unfortunately. We have a lot of vaccine content, safe reopening content, that we’re updating all the time right now. Some states are considering vaccine passports, others, like Utah, are saying they don’t support a mandate around vaccination, so that’s going to continue to be an area of focus for the foreseeable future.

And thank you for taking the time to talk to me. I’m a huge fan of Above the Law, I read it all the time.

Well, thank you. Flattery will get you everywhere.

I actually did an interview with ATL about my experience as a federal clerk a few years ago.

You should save me some Googling and send me the link to that, I’ll include it for the readers.

Absolutely, I’ll do that.

Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

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