COVID-19 Planning for Employers

COVID-19 Planning for Employers

I Love it When a Plan Comes Together: COVID-19 Planning for Employers

Most episodes of the 1980s hit show, The A-Team, involved the team cobbling together some super-weapon from a collection of spare parts that they would use to defeat the bad guys. After securing their victory, team leader, Col. John “Hannibal” Smith, would often say, “I love it when a plan comes together . . . .”

As employers have been cobbling together their defenses of hand sanitizer, disinfecting wipes, and face masks, they need to also work on crafting a plan. In fact, Indiana Governor Eric Holcomb’s latest Executive Order says, “On or before May 11, 2020, all Hoosier employers shall develop a plan to implement measures and institute safeguards to ensure a safe environment for their employees, customers, clients, and members. The plan shall be provided to each employee or staff and posted publicly.” As you develop your company’s plan, here are some important considerations:

  • It doesn’t have to be lengthy. Written workplace policies serve many goals, but the most important one here is communication. Use this plan to send clear messages; don’t bog down your workforce with too many details.
  • It should be flexible. None of us have ever lived through a pandemic like this. Things have changed a lot in recent weeks and months and are likely to keep changing. Let your employees know that current workplace procedures are temporary and are likely to change.
  • It must take safety seriously. Read the relevant CDC guidance; study other reputable local, regional, and national resources to determine concrete steps your company can take to do its part in preventing the spread of COVID-19. Seek professional advice if you need it.
  • It must respect other relevant employment law. All the existing rules against discrimination, harassment, and retaliation—along with laws requiring reasonable accommodations for disabilities and religious beliefs—continue in force. Congress recently passed new laws providing paid sick leave and family leave to most workers, and various other state or federal employment laws could be implicated by your company’s COVID-19 response. Keep these considerations in mind.

Having a plan is required in Indiana, but it is a good practice in other states, too. Tuesley Hall Konopa attorneys are available to assist businesses and individuals in Indiana or Michigan with a variety of legal needs. Visit our website at thklaw.com for a comprehensive list of our legal services.

Michael J. Hays, Business Counsel & Partner, Tuesley Hall Konopa, LLP

Author: Michael J. Hays is a civil litigation attorney and Partner at Tuesley Hall Konopa, LLP. His practice areas include civil litigation, employment law, business counsel, and contract review. Michael is licensed to practice in Indiana and Michigan.

You can contact Michael by calling 574.232.3538 or by email mhays@thklaw.com

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.
Work in the Time of Coronavirus

Work in the Time of Coronavirus

If you’ve read Love in the Time of Cholera, you know that running a business in 2020 is nothing like that. Employers addressing this unprecedented pandemic have lots of questions. Below are some quick tips on sick leave, layoffs, medical evaluations, and other issues. As this crisis unfolds, Tuesley Hall Konopa will remain open to address your legal needs. Coming changes might affect our in-person contact, but our lawyers and other professionals will stay engaged to serve our clients. In the meantime, consider the following guidance, which is current as of March 16, 2020:

A. It’s okay to stick with your normal paid time off policies for now, but be ready for changes.

The House of Representatives passed the Families First Coronavirus Response Act on March 14th. If the Senate passes it, and the President signs it, then employees will have a guarantee of 14 sick days relating to COVID-19, easier access to FMLA leave, and other benefits. We are waiting to see the final law before offering more detailed guidance.

As of today, you may insist that employees away from work for Coronavirus reasons follow normal paid time off policies. We advise that you do not penalize employees under normal attendance policies whose absences are caused by the pandemic. We also recommend employers exercise some flexibility and understanding with required doctors’ notes.

B. If mass layoffs may be coming to your business, now is the time to start planning.

The federal WARN Act generally requires 60 days’ notice for “mass layoffs” by employers with 100 or more employees. Please seek legal advice because the counting of employees can be confusing. Employers are to provide a specific written notice to affected workers and to certain local government offices.

A “mass layoff” only falls under the Act if it will be for 6 months or more, but if there is a risk at least some employees will have their hours reduced by at least 50% for at least six months, then the most conservative advice would to be give WARN notices even if you hope and expect any layoffs will be shorter.

WARN is a complicated law with exceptions for “natural disasters” and “unforeseeable business circumstances” that might apply to COVID-19. Generally, these exceptions spare the employer liability for shortening the notice, but notice is still required. Given the unprecedented nature of this outbreak, Congress may intervene to modify the WARN Act. Even so, if the size of your workforce and the size of your layoff implicates WARN, you should consider giving as much WARN notice as possible—even if it’s only a few days.

C. Employers will have to be creative.

There is a “general duty” under OSHA for all employers to protect their employees from workplace hazards. You may rely on this to force employees to stay home from work if they have flu-like symptoms, have likely exposure to Coronavirus, or present other risks. You may also:

  • Consider new standards for work-from-home to mitigate risks;
  • Inform your employees of any exposure risk they may have faced at work, but without revealing confidential medical information about affected employees;
  • Consider temperature screenings before allowing employees to return to work but seek guidance as other “medical examinations” could implicate the Americans with Disabilities Act.

D. Be thinking about “force majeure.”

Using a Latin phrase, the law has long allowed a contracting party to avoid fulfilling a contract if unforeseeable circumstances make performance impractical or impossible. Historically, things like wars, natural disasters, and labor strikes have been considered force majeure events. Most legal scholars believe the COVID-19 outbreak will fit that standard. In fact, the NBA is already talking of invoking this rule to avoid paying players.  Depending on the terms of your agreements, your business may be able to rely on force majeure to avoid certain contracts. But your business partners might be able to do the same to you. This is another area where advance planning and careful guidance are in order.

E. Stay in touch.

The news media and your inbox are flooded with Coronavirus information. That won’t stop any time soon. As you try to run your business while staying abreast of public health needs, contact Tuesley Hall Konopa for legal guidance in this evolving situation.

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Michael J. Hays, Business Counsel & Partner, Tuesley Hall Konopa, LLP

Author: Michael J. Hays is a civil litigation attorney and Partner at Tuesley Hall Konopa, LLP. His practice areas include civil litigation, employment law, business counsel, and contract review. Michael is licensed to practice in Indiana and Michigan.

You can contact Michael by calling 574.232.3538 or by email mhays@thklaw.com

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.
Importance of Depositions in Business Litigation

Importance of Depositions in Business Litigation

Most organizations find themselves in litigation at some point in the life of the business. Maybe a disgruntled former employee brought a claim, or you had to go after a customer who didn’t pay—or a supplier who didn’t deliver. Maybe a contract went wrong, or a real estate deal turned sideways. Maybe you needed to enforce a non-compete or you hired someone under a non-compete and got drug into that dispute. Whatever the reason, most businesses will find their names in court documents on occasion. When that happens, you hire attorneys to advise you and to represent your interests in the courtroom. Every case is different, and every client has unique motivations, but most of the time, the instructions to the lawyer are something along the lines of: “Get this thing over quickly, cheaply, favorably, and with as little disruption to the business as possible.”

The work of a business litigator is to partner with the client in achieving those aims as the dispute travels through its various stations along the journey to resolution. Often, an important stop on the way involves depositions. Readers of this blog probably know what a deposition is, either through personal experience or from memories of Bill Clinton. But for the uninitiated or those who may have forgotten, a deposition is a when an attorney questions a witness under oath as part of the pre-trial fact-gathering process. It generally takes place in an attorney’s conference room and often lasts several hours. I tell clients a rough average is 4 hours, but I’ve sat through depositions twice that long, and I’ve also seen quick depositions that take less than an hour. I’ve never met a witness who enjoys being deposed. Even expert witnesses who do it regularly dislike depositions. But they are a critical part of the litigation process. Understanding a little more about their purpose and function may help prepare your business for its next litigated dispute.

First, if you or someone else in your organization is going to be deposed, it will be costly. The witness needs to prepare well before the deposition itself. The day of the deposition is likely to be long. And you will be paying an attorney to advise, assist, and advocate for you throughout the process. You will also be losing productivity while the company’s witness tends to these matters instead of running the business. Whole books have been written about the art of preparing for a deposition. I won’t repeat those strategies here, but you should lean on your attorney for guidance in this important area.

Second, depositions may be unavoidable. Parties to a lawsuit generally have a right to investigate facts relevant to the lawsuit, including questioning knowledgeable witnesses. You would not want anyone limiting your rights in that regard, and it is generally hard to limit the other party’s rights, too. But that’s not to say your opponent has an unlimited ability to question anyone it likes. The law says that any discovery process must be “proportional to the needs of the case.” And a strong body of law protects “apex employees,” such as corporate executives, from being deposed when they were not personally involved in the matters covered by the lawsuit. A good business litigator may also be able to negotiate other ways of limiting or delaying the burden of depositions.

Third, depositions have an outsized position in the mind of many attorneys. A lot of statistics are available on the so-called “vanishing” civil trial, but in general, an average civil case stands around a 95% (or greater) chance of being resolved without a trial. The reasons for this have been debated elsewhere, but one consequence is that many lawyers treat the opponent’s deposition as the showcase event in a lawsuit. If you are paying a lawyer to take a deposition on your behalf, you should instruct him or her to guard against this selfish tendency. And if someone in your organization is going to be questioned by an opposing lawyer, you should be prepared that this force may be at work.

Finally, there is no denying that depositions are powerful. When a witness is “locked in” to a certain line of testimony, that narrative will control the rest of the lawsuit. Likewise, when a party is forced to explain his or her position under the stress of adverse questioning, everyone gets a good sense of the strengths and weaknesses of that position. Deposing key witnesses is almost always essential in the rare cases that go to trial, and it is often necessary to facilitate a settlement or a key pre-trial motion in other cases.

Considering all this, nearly everything about depositions runs counter to the goals most clients pursue of resolving their litigation quickly, inexpensively, and without disrupting the business. But clients also want to resolve the dispute favorably. Finding the right balance of when and how depositions fit into these objectives is something your business litigator should be discussing with you. Make sure you are comfortable with the advice you receive on that score and that your organization is read when depositions need to be taken or defended.

Michael J. Hays, Business Counsel & Partner, Tuesley Hall Konopa, LLP

Author: Michael J. Hays is a civil litigation attorney and Partner at Tuesley Hall Konopa, LLP. His practice areas include civil litigation, employment law, business counsel, and contract review. Michael is licensed to practice in Indiana and Michigan.

You can contact Michael by calling 574.232.3538 or by email mhays@thklaw.com

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.
New Sick Leave Rules Coming to Michigan

New Sick Leave Rules Coming to Michigan

Michael J. Hays, Partner & Civil Litigation Attorney at Tuesley Hall Konopa, LLPAre you ready for the new Michigan Paid Medical Leave Act? Did you know there was such a thing? After much political wrangling, the current version of this law is scheduled to take effect on April 1. Under it, many Michigan employers will be required to provide paid sick time for their workers. Keep reading for an overview of the new law and what it requires.

The law began with a ballot initiative. Michigan voters were posed to give themselves a generous helping of paid sick time, so the Michigan Legislature intervened and passed the law themselves, thus taking it off the ballot and allowing time to delay the effective date. This gave us the Michigan Earned Sick Time Act—which never became effective. In the final weeks of 2018, the Republican-controlled legislature passed a series of amendments, including re-naming the law the Michigan Paid Medical Leave Act. Lame duck governor Rick Snyder signed the amended version into law shortly before his Democratic successor Gretchen Whitmer came into office.

The politics of sick leave

The first thing to understand about this law is that the political battle rages.  Some activists feel the legislature “stole” their ballot initiative and watered it down. Movements are afoot to bring a new ballot initiative. There is also talk of court challenges, and with divided government in Michigan, it’s hard to predict where this issue will ultimately land. But for now, employers have to prepare themselves and be ready to honor the new requirements that come into play April 1.

Eligibility

The next thing to understand is that it currently only applies to employers with 50 or more employees. This was one of the biggest amendments in December, as the original version applied in some form to almost all employers. If you don’t employ at least 50 workers in Michigan, you are spared from this law—at least for now.

Benefits

For those employers covered by the Act, you must provide your workers with one hour of paid sick time for every 35 hours worked, up to a maximum of one hour per week and a maximum of 40 hours per year.

The benefit does carry over from year-to-year, but you are not required to allow employees to use any more than 40 hours in a given year. The law also includes some detailed definitions surrounding what types of health issues, family health needs, and domestic violence concerns qualify for paid time off under the Act. Be on the lookout for a poster published by the State of Michigan (not yet available) that employers will be required to post.

Strategies for Compliance

The law expressly allows you to “front load” the 40-hour benefit at the beginning of a year and permits reliance on a standard paid time off policy to satisfy the requirements of the Michigan Paid Medical Leave Act, so long as the benefit and eligibility rules are at least as generous.

For many employers, it may be possible to make modest tweaks to your current policy and bring it into compliance with this new law.  For others, providing this benefit will represent a major change.  You should consult with your legal and HR advisors to determine what works for your organization. Even for Indiana employers or small businesses in Michigan that do not fall under this law, it is important to stay tuned to changes in sick leave rules so that you are offering competitive benefits for your workers.

Whether your business is domiciled in Michigan or Indiana, your employee benefits manual should be reviewed annually, and updated as needed. If you have questions about being in compliance in either state, please call Employment Law Attorney, Michael Hays at 574.232.3538.

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.

Will Arbitration Sweep the Nation?

Will Arbitration Sweep the Nation?

You may have heard that just last month, the United States Supreme Court ruled employers can enforce binding arbitration agreements with their employees—even if the agreements waive all rights to participate in class action lawsuits. The case is called Epic Systems Corp. v. Lewis.

For employment law, this is a big deal. Just hours after the Supreme Court decision was announced, one national law firm posted information on its website offering to help clients prepare binding arbitration agreements. But is it a big deal for your business?  Should local employers change their policies or practices?

It depends. The Epic case was actually a combined decision dealing with three different cases. All three involved claims for overtime compensation under the Fair Labor Standards Act. All three also involved large-scale employers with hundreds of employees in the same job classification. For those companies, the risk of a class action was high. One or two claims surrounding overtime issues can be handled quietly. But if a complaining employee can orchestrate a class action involving hundreds (or more) current and past employees, that’s a different kind of problem. Business owners often complain about the costs of litigation. But class action litigation is on a completely different plane. The costs and risks are enormous. In some circumstances, a class action can force a company into bankruptcy.

So for Epic Systems and the other employers involved in that case, it made sense to hold their employees to an agreement compelling arbitration and waiving the right to a class action—and to fight the issue all the way to the Supreme Court. You should consult with your own legal, business, and financial advisors to determine if it makes sense for you. When you do, you may wish to think about arbitration agreements more broadly. Even if you believe the risk of a class action is low or claims for overtime compensation unlikely, the Epic Systems case is the latest in a trend favoring arbitration. The specific arbitration agreement used by Epic Systems Corporation did not cover workplace discrimination or harassment claims, but it might have. Knowing the federal courts take a strong pro-arbitration stance, you might want to consider requiring all employees enter into agreements requiring them to arbitrate all claims. Arbitration proponents argue it is faster, less costly, and more efficient than litigation. They also tout the confidentiality of the process. All those benefits could be yours, providing you with a mechanism to keep any employment dispute out of the courts.

But all rewards come with risks, and arbitration has its complications, too. For example, there is almost no opportunity to appeal an arbitrator’s decision.  Also, experience shows the costs of arbitration can, in some cases, run higher than courtroom litigation. Further, some observers complain that arbitrators often make “split the baby” decisions, rather than ruling in favor of one party or the other.

On top of all that, if you want to use arbitration to resolve employment disputes, you’ve got to have a binding arbitration agreement in place. Most of your at-will employees likely do not have a contract of any type.  You will want to structure any arbitration agreement in ways that do not change the at-will status.  And the law requires some other specific contract provisions if an employee is waiving statutory rights.  Although courts have been very favorable to arbitration agreements in recent years, that does not mean an employee won’t fight the issue. If you have to fight in court about the validity of the agreement before you even get to fighting about the underlying employment issue, then you have definitely missed out on the promise of prompt and inexpensive resolution.

Also, the law on this subject may change. Late last year, Senators Gillibrand and Graham introduced a bi-partisan bill called the Ending Forced Arbitration of Sexual Harassment Act of 2017. Early this year, the attorneys general of all 50 states, the District of Columbia, and the five U.S. territories sent a letter to Congress in support of the law. This may or may not become law, and if it does, there may be more to discuss about the differences between “forced” and “voluntary” arbitration.  But there is broad support across the political spectrum for combating sexual harassment. Many believe the confidentiality of an arbitration process is unsuitable for these types of claims. In fact, when it comes to confidentiality, you may have missed the so-called Weinstein provision in the recent tax law that prohibits employers from deducting legal expenses incurred as part of a sexual harassment case if the case is resolved through a confidential settlement.

Of course, differences between sexual harassment and other types of employment claims represent just one of the many factors to consider in evaluating the merits of an arbitration agreement for your employees. The courts will generally allow these kinds of agreements. But employers have to think carefully about when or whether to use them. Only time will tell if the Epic Systems case prompts a wave of arbitration agreements across the country.

Call 574.232.3538, if you’d like to make an appointment to discuss the merits of an arbitration agreement for your employees.

Michael J. Hays, Business Counsel & Partner, Tuesley Hall Konopa, LLP

Author: Michael J. Hays is a civil litigation attorney and Partner at Tuesley Hall Konopa, LLP. His practice areas include civil litigation, employment law, business counsel, and contract review. Michael is licensed to practice in Indiana and Michigan.

You can contact Michael by calling 574.232.3538 or by email mhays@thklaw.com

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.