OK at Work

Attorneys Sarah Sawyer and Russell Berger of Offit Kurman discuss risks created when clients use AI tools like ChatGPT for legal questions during litigation or transactional matters. They explain that courts are applying traditional attorney-client privilege and work product rules to AI, meaning using public AI can waive protection. They warn against pasting privileged emails or legal strategy into AI for explanations or summaries. Ask your lawyer directly, who can use AI through protected channels. They also note that AI chat histories may trigger litigation hold obligations, including preserving records that might otherwise auto-delete.

• (00:00) - Client AI Use Intro

Sarah Sawyer and Russell Berger, attorneys at Offit Kurman, discuss how companies should respond when an incident draws public or media attention and reporters seek offhand comments from employees. They emphasize planning before a crisis by creating a crisis communication plan that identifies a point person, establishes a vetting process, and clarifies how messages are shared. They recommend consulting specialized crisis-communications experts when needed. They also note that high-profile incidents can cause employee concerns, so organizations should support employees with internal resources. They stress the need to keep the business operating and communicate appropriately with the workforce during stressful situations.

• (00:00) - Crisis Media Risks

Attorneys Sarah Sawyer and Russell Burger of Offit Kurman discuss the lawsuit alleging Workday’s AI hiring software discriminatorily screens out certain candidates and what that headline means for employers using AI in recruiting. They outline AI risk areas such as accuracy, confidentiality, intellectual property, and especially bias. Employers who use these programs cannot delegate legal compliance to a vendor and may still face liability if a screening system is biased. They note the lawsuit’s facts are unknown and will be explored in discovery, but employers should ask vendors how tools process information. Employers make screening decisions, consider contractual risk-shifting, add controls or a human review component, and evaluate settings and internal practices to mitigate bias.

00:00 Workday Lawsuit Overview

01:18 AI Risk Categories

01:56 Employer Liability for Bias

02:38 Mitigation Options and Contracts

03:13 Asking Vendors the Right Questions

04:24 Big Vendors vs DIY AI

05:10 Practical Steps and Wrap Up

In this episode of OK at Work, attorneys Sarah Sawyer and Russell Berger of Offit Kurman explain why indemnification clauses—often buried in the “miscellaneous” section of contracts—deserve close attention. They describe indemnification as a key risk-allocation tool that determines who pays for defense costs and liability when third-party claims arise. They also discuss how smaller businesses may face more aggressive indemnity terms from larger companies, the importance of negotiating reasonable limits, and the need to understand accepted risk upfront to avoid surprises when an indemnification claim arises.

• (00:00) - Welcome and Setup

Attorneys Sarah Sawyer and Russell Berger of Offit Kurman discuss key considerations when starting a business, focusing on entity structures and formation. They stress beginning with tax implications by consulting an accountant about what entity to form. The next step is working with a lawyer on questions such as which state to organize in, the business’s size and type, plans for growth, and whether additional owners will join. They emphasize the importance of having foundational documents that serve as a roadmap for ownership terms, operating expectations, and what happens if owners exit or the business is sold. They also highlight assessing business risks and insurance needs, aligning co-owners’ risk tolerances, and considering multi-entity structures to better allocate and reduce risk.

00:00 Show Intro

00:22 Startup Scenario Setup

01:13 Tax and Entity Choice

01:35 Legal Planning Questions

01:59 Operating Agreement Roadmap

02:27 Exit and Owner Offboarding

02:42 Risk and Insurance Basics

04:08 Layered Structures for Protection

04:40 Wrap Up and Goodbye

Attorneys Sarah Sawyer and Russell Burger of Offit Kurman discuss the idea of the “ironclad contract” and why truly loophole-proof, unbreakable agreements don’t exist. They explain that while contracts can be sloppy or well-prepared, even strong drafting can’t anticipate every unexpected real-life scenario. The episode emphasizes focusing on common contingencies and high-impact issues, treating contracts as adaptable documents that evolve as circumstances and business needs change. 

• (00:00) - Ironclad Contract Myth

Attorneys Sarah Sawyer and Russell Berger of Offit Kurman discuss how litigation strategy depends not only on cost and risk but also on how long it takes to reach court and trial. Using Maryland as an example, they compare the faster district court process that can reach trial in roughly four to six months and typically under a year, versus circuit court jury trials with full discovery that generally take at least a year. They note that time affects leverage and helps explain why most civil disputes settle. Timelines can vary by state, county, case volume, COVID-era disruptions, and factors like AI and pro se litigants. 

00:00 Litigation Timelines Intro

01:01 Court Forum Factors

01:38 Maryland Court Speed

02:20 Time Value and Settlements

02:48 Venue and Backlogs

03:58 Speed Versus Recovery

04:22 Arbitration for Faster Results

05:00 Wrap Up and Next Time

• (00:00) - Litigation Timelines Intro

In this episode of OK at Work, attorneys Sarah Sawyer and Russell Berger of Offit Kurman discuss what employers should do when they receive an administrative discrimination charge from the EEOC or a state/local agency, whether after terminating an employee or while the employee is still working. They explain that discrimination and harassment claims typically must go through an administrative process before court. You must take the notice seriously, engaging in the process to build leverage and improve litigation posture. They also note the process can be slow and inconsistent, which can sometimes benefit employers, and stress planning to avoid retaliation concerns if the charging party remains employed.

00:00 Discrimination Charge Basics
01:05 Administrative Process Overview
01:38 Deadlines Mediation Outcomes
02:17 Why Engage and Resolve
03:02 What You Learn in Process
03:39 Patience and Timeline Delays
04:19 Leverage from Slow Process
04:43 Active Employees Retaliation Plan
05:28 Improve Policies and Training
05:46 Wrap Up and Goodbye

Sarah Sawyer and Russell Berger, attorneys at Offit Kurman, discuss how businesses can keep up with compliance as both laws and business activities change over time. They explain that new services, expansions into new states, or shifts in operations can trigger new requirements. Russell recommends doing an annual assessment of business changes, reviewing end-of-legislative-session summaries of new laws, and staying current on industry and state developments. They highlight making compliance process-oriented by centralizing obligations on a compliance calendar. Sarah adds that delegating to roles like HR or operations, continuing education, and routine seasonal check-ins can help prevent penalties and operational disruptions.

• (00:00) - Welcome and Topic

In this episode of OK at Work, attorneys Sarah Sawyer and Russell Burger of Offit Kurman discuss how employers should respond to employees using AI at work. They recommend adopting a standalone generative AI policy that sets guardrails on permitted software, confidential information, and acceptable and prohibited uses. Sarah and Russell also stress reducing legal risks such as bias and discrimination, guiding employees away from unofficial sources, and using approved platforms with controls for sensitive areas like management and recruiting.

• (00:00) - AI at Work Overview