Category: Labor & Employment

Executive Order Increases the Minimum Wage for Federal Contractors to $15

On April 27, 2021, President Biden signed Executive Order 14026, which increases the minimum wage for workers on or in connection with a federal government contract to $15.00 as of January 30, 2022.  This Executive Order increases the minimum wage level set by President Obama’s 2014 Executive Order 13658, which has been set at $10.95 per hour since January 1, 2021.

The new minimum wage applies to most new federal contracts, contract-like instruments, solicitations, extensions or renewals of existing contracts or contract-like instruments, and exercises of options on existing contracts or contract-like instruments that are entered into or exercised on or after January 30, 2022.  However, the Executive Order “strongly encourage[s]” agencies to ensure, to the extent permitted by law, that the wages paid under existing contracts are consistent with the Executive Order’s requirements.  The Executive Order provides that compliance with the increased minimum wage will be a condition of payment on the government contract, raising the potential for False Claims Act liability if a government contractor accepts payment on a federal contract while failing to pay covered workers the required wage.  The Executive Order’s requirements must, in many circumstances, be included in subcontracts.

Although the Executive Order does not elaborate on which employees work “on or in connection” with a federal contract, it is likely that the Department of Labor’s forthcoming regulations implementing the Executive Order will follow the lead of its previous regulations implementing Executive Order 13658.  Under those regulations, workers perform services “on” a contract if they directly perform the services called for by the contract’s terms, and they perform services “in connection with” a contract if they perform work activities that, although not specifically called for by the contract, are necessary to the contract’s performance.

The Executive Order also addresses the cash portion of the tipped minimum wage for covered workers.  The cash wage for covered workers who qualify as tipped employees will increase to $10.50 as of January 30, 2022.  The wage will then increase as of 85% of the general minimum wage as of January 30, 2023, and 100% of the general minimum wage as of January 30, 2024, at which point the tip credit will be eliminated.

The Department of Labor is required to issue regulations implementing the Executive Order by November 24, 2021.  Federal contractors and subcontractors should consider beginning preparations for the increased minimum wage now, in advance of the regulations, by identifying potentially covered workers whose wages may require adjustment.  Polsinelli will continue to update the contractor community when regulations are issued.

© Polsinelli PC, Polsinelli LLP in California

ARTICLE BY Jack Blum of Polsinelli PC
For more articles on federal contractor minimum wage, visit the NLR Government Contracts, Maritime & Military Law section.

Chicago’s Vaccine Anti-Retaliation Ordinance – What Employers Need to Know

On April 21, the Chicago City Council (“City Council”) passed the Vaccine Anti-Retaliation Ordinance (the “Ordinance”) establishing protections for Chicago workers who take time off of work to receive the COVID-19 vaccine. The Ordinance broadly applies to individuals, including independent contractors, who perform work in the City of Chicago. It is effective immediately and remains in effect until further notice.

Overview of the Ordinance

Under the Ordinance, employers must allow workers to take time off to obtain the COVID-19 vaccine without retaliation against them in their terms and conditions of employment—whether the worker voluntarily chooses to get vaccinated or whether vaccination is mandated by the employer. Workers may either choose to take time off to receive the vaccine, or to do so outside of work. However, the Employer may not force employees to receive the vaccine outside of work if the employee opts to get the vaccine during working time.

Unless the employer mandates the vaccine, employers do not need to pay employees for the time off. However, employers must allow workers to use any accrued paid time off (“PTO”) for unpaid time required to receive the vaccine. Please note, it is at the option of the employee whether or not to use PTO to receive the vaccine: An employer cannot force the use of accrued PTO.

If an employer mandates the vaccine, the employer must pay the employee for the time spent getting vaccinated, if the vaccine appointment is during a shift, at their regular rate of pay, capped at four hours per vaccine dose. Employers that mandate COVID-19 vaccinations cannot require workers to use accrued paid time off as an alternative to compensating workers in accordance with the Ordinance.

Enforcement and Penalties for Violations

The Chicago Office of Labor Standards will enforce the Ordinance. Employers found to violate the Ordinance are subject to fines that may range from $1,000 to $5,000 per violation.

Individuals may also sue in court for remedies including reinstatement and triple damages.

Practical Considerations for Employers

At present, neither the Ordinance nor any accompanying guidance addresses what documentation, if any, may be required from a worker to verify the need for leave under the Ordinance. The Ordinance is also silent as to whether a covered worker is entitled to additional protected leave—or whether an employer may require the worker to use accrued PTO—in the event the worker is temporarily unable to return to work due to adverse effects/symptoms experienced as a result of receiving the vaccine. We anticipate that additional guidance for employers will be issued addressing questions left unanswered by the current language of the Ordinance.

We suggest that employers consider the following to maximize compliance and reduce legal risk:

  1. Update COVID-19 leave policies to reflect the requirements of the Ordinance;
  2. Train supervisors and managers on the requirements of the Ordinance;
  3. Communicate updated vaccine leave policies with employees;
  4. Determine whether vaccine mandation is appropriate for the business, consistent with state and federal labor and employment laws;
  5. Establish policies for the documentation of the need for leave, consistent with other state and federal anti-discrimination and confidentiality laws.
    ©2021 von Briesen & Roper, s.c

For more articles on vaccines, visit the NLR Coronavirus News section.

Goodbye COVID-19 Priority Phases and Tiers, Hello Battles With Vaccine Passports!

On Tuesday, April 6, 2021, while touring a vaccination site in Alexandria, Virginia, President Joe Biden imposed a deadline on every state to open up vaccination eligibility to all adults by April 19, 2021 (moving up the previous target date of May 1, 2021). The White House COVID-19 coordinator, Jeffrey Zients, told governors also on April 6, 2021, that more than 28 million doses of vaccines will be delivered to all of the states the week of April 4-12, 2021. The president’s directive matches Dr. Anthony Fauci’s estimate in November 2020 that the earliest a vaccine would be available for most nonprioritized Americans would be April 2021.

While it is unclear whether or how that deadline could be enforced—and vaccination eligibility and scheduling does not mean that shots will actually get into people’s arms by, or on, the end of April (that will take several more weeks for sure)—it appears that the country is on the verge of opening up the floodgates regarding vaccine availability.

More than a dozen states have already completely opened up eligibility to anyone 16 years old and older. Now that there are vaccines available from three pharmaceutical companies, and the first few priority phases and tiers have been exhausted in most states, it seems that anyone willing to get the vaccine will be able to do so in very short order. Of course, polls show that approximately 13 percent of individuals say they will “definitely not” get vaccinated and another 25 percent say they will either “wait and see” or get vaccinated “only if required.” This may help explain why supply has met (or quickly will meet and exceed) the current demand for the vaccine.

Texas is one of the states opening up eligibility to everyone over the age of 16, but Governor Greg Abbott on April 6, 2021, signed an executive order prohibiting governmental entities (and those private businesses receiving public funds) from requiring proof of vaccination for purposes of receiving any service or entering any place—whether through the use of “vaccine passports” or otherwise. According to the governor, he issued these prohibitions and protections in Texas because each person has “the option to accept or refuse administration of the product” under an emergency use authorization (like all three of the currently available vaccines) and vaccination “is always voluntary in Texas and will never be mandated by the government.” This executive order also classifies mere “vaccination status” as “private health information,” although the federal government has explained that asking or requiring employees to show proof of receiving a COVID-19 vaccination is not a disability-related inquiry under the Americans with Disabilities Act.  Florida Governor Ron Desantis issued a similar Executive Order on April 2, 2021, but it prohibits all “businesses in Florida . . . from requiring patrons or customers to provide any documentation certifying COVID-19 vaccination . . . to gain access to, entry upon, or service from the business.”  While the Executive Order does not reference “employers” or “employees,” it is not clear yet how broadly the prohibitions will be interpreted.

Considerations for Tweaking Vaccination and “Return to Office” Policies

Even if an employer may legally require full vaccination before employees return to its offices or facilities, requiring employees to choose between a vaccine and all previously existing aspects of their jobs could still breed resentment, and risk legal action. But there is a good business case to be made for requiring full vaccination of all employees working at a worksite with other employees. The U.S. Centers for Disease Control and Prevention (CDC) recently provided guidance—Interim Public Health Recommendations for Fully Vaccinated People—and explained that fully vaccinated people need not wear masks or observe social distancing during private indoor visits with a small group of other fully vaccinated individuals (although even fully vaccinated individuals should “[a]void medium- and large-sized in-person gatherings” and continue to practice other preventative measures “in public settings”). The CDC guidance does not specifically address how to manage fully vaccinated employees in the workplace, and for the time being, existing state and local regulations regarding face coverings and other mitigation measures may still apply.

Given the above-referenced statistics and relatively high percentage of those who will oppose vaccination or receive it only begrudgingly, employers may want to consider alternatives such as continuing to allow remote working arrangements or allowing unvaccinated employees to return to their worksites under continued health and safety protocols, such as strict social distancing, masking, and quarantining.

However, other employers cannot (or may prefer not to) allow remote working arrangements indefinitely. For those employers, slowly phasing in a mandatory vaccination requirement may make sense, but such employers may also want to keep in mind reasonable accommodation requests from employees based on sincerely held religious beliefs or covered disabilities. Potential accommodations include granting exemptions from the vaccination requirement, waiting for alternative vaccine products without objectionable ingredients, or requiring additional mitigation measures, such as increased social distancing, continued use of face coverings, or reassignment to a different position or area of the workplace. Reviewing accommodation requests and engaging in the interactive process is a fact-intensive process, which often require careful consideration.

If a workplace is only open for those who have been vaccinated, knowing who is vaccinated is easy—everyone is! But, for those workplaces that allow both vaccinated and unvaccinated employees to return to their worksites, how do employees know who among them has been vaccinated—color-coded name badges, stickers, or other accessories? Will coworkers care if those working closely around them all day long have been vaccinated? How should employers track vaccination status, and can they? Currently, other than the Texas governor’s executive order, nothing prohibits employers from requiring proof of vaccination and (confidentially) keeping records of such vaccinations (e.g., seeing and maintaining a copy of employees’ CDC COVID-19 vaccination record cards). However, labeling (or branding) employees as either vaccinated or unvaccinated might lead to shaming, bullying, or harassment in the workplace if not properly implemented, monitored, and controlled.

The debate continues regarding whether “vaccination passports” or other types of identification should be used to distinguish between those who have been vaccinated and those who have not. Many restaurants, bars, concert venues, fitness centers, movie theaters, theme parks, and other businesses and organizations have said they will likely start requiring proof of vaccination (or proof of the need for an accommodation) in order for people to enter their facilities and enjoy their food, products, entertainment, and services. And, currently, most employers can start doing the same (subject to prohibitions that exist in Texas, Florida, and other states that follow suit).

Current Considerations for Employers

Employers may want to continue to communicate with employees (and continuously update them) regarding the organization’s position on vaccination, remote working arrangements, and safety protocols.

Employers may want to take this opportunity to implement a voluntary vaccination policy or convert a currently voluntary policy into a mandatory policy (whether for all employees or for those subsets of employees who are allowed or required to return to work in-person). And, if the ability to return to work in-person is not sufficient to reach a desired level of vaccinations in their workforces, employers might want to consider providing further incentives to vaccinate, such as monetary bonuses, gift cards, extra paid time off, or other rewards, if they have not already. However, a vaccination requirement for returning to an office or facility might incentivize employees to refuse vaccinations (or not tell their employers that they have been vaccinated) in order to continue their remote working arrangments—thus, ironically, creating a disincentive for getting vaccinated.

Either way, employers no longer have to worry about figuring out which employees might qualify for vaccinations under all the vague, confusing, and conflicting phases and tiers initially set up by the CDC and implemented with various tweaks by each of the states. And that is certainly great news and progress!

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
ARTICLE BY James M. Paul of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
For more articles on vaccine passports, visit the NLR Coronavirus News section.

Help! We Think Our Employee Is Lying About COVID-19 Exposure or Symptoms

Does this fact pattern sound familiar?

Employer has a COVID-19 policy requiring employees with COVID-like symptoms or exposure to a COVID-positive (or suspected COVID-positive) person to report the same to Human Resources.  If reported, the employee is required to not come to work (or go home) and to self-isolate or quarantine for 14 days, consistent with CDC Guidance.

Seems easy enough. But then an employee calls work exactly two weeks prior to a company-paid holiday, and reports not feeling well (fever, slight cough, and muscle fatigue) – typical COVID-19 symptoms. The employee is told to stay home and “get better,” but not to come to work for 14 days consistent with CDC guidance and company policy.

Employee returns to work after the 14-day quarantine and the four-day holiday weekend and works for two weeks.  But then, the employee reports to Human Resources that he was just informed by a friend, with whom he was at a bar the previous night (and with whom he was in close contact), that the friend has COVID-like symptoms.  Consistent with company policy, employee is told to go home and quarantine/monitor for symptoms.  Fourteen days later, employee returns.

The next month, employee informs Human Resources that he was told that yet another friend with whom he was in close contact suspects he may have COVID-19.  Employee reports the friend had been helping him move, told him the next day he had been feeling really ill, and was just told that his roommate had COVID-19.  Employee is sent home and told to quarantine for 14 days and monitor for symptoms.  Fourteen days later, employee returns to work.

There have now been three instances in which employee has been away from work for 14-day periods.  His reliability is in serious question.  And worse, the company suspects he may not have been telling the truth, just so he could get off work.  In fact, Human Resources was informed that the employee is a “big-time skier” and often skis during the winter.  So what can you do?  Here are some options (and you can go with more than one) for consideration.

  • Question the employee about the circumstances of the symptoms or “close contact.”  For instance, on a form, have employee describe in writing all facts supporting his claim that he has experienced COVID-19 symptoms within the past 48 hours.
  • Ask employee to describe all facts supporting his claim that within the past 14 days, he or any member of his household has been in close contact with someone who has recently tested positive for COVID-19 or has suspected COVID-19 symptoms.
  • Require the employee to sign an attestation form stating that the claims of symptoms/close contact are true and accurate:  I certify that the above information is true and accurate and that any misrepresentation of the information provided could subject me to potentially adverse employment action, including but not limited to discipline and discharge.
  • As employers often do in suspected worker’s compensation fraud matters, you can hire an investigator to “follow” or investigate the employee while supposedly quarantining.  Is he, in fact, quarantining?  Or is he spending his days on the ski slopes?

Unfortunately, there are no “perfect” fixes to these challenging situations.  However, because the situation involves COVID-19 does not mean that the employer is handcuffed.  Just like other situations where an employee may be suspected of being dishonest, you can investigate and take action based on upon any dishonesty.  The world may have changed significantly since March 2020, and workplaces may have also changed since the onset of the pandemic; however, employee honesty will continue to be a legitimate work expectation – the lack of which may lead to a legitimate, nondiscriminatory adverse employment action.

© 2021 Foley & Lardner LLP

ARTICLE BY Daniel A. Kaplan of Foley & Lardner LLP
For more articles on coronavirus policies, visit the NLR Labor & Employment section.

EEOC Will Issue Guidance on COVID-19 Vaccine Incentive Programs Offered by Employers

Lawmakers and many employer organizations have urged the Equal Employment Opportunities Commission (EEOC) to issue guidance to companies that are considering providing incentives to employees who get the COVID-19 vaccine. Specifically, Sen. Richard Burr and Rep. Virginia Foxx stressed the importance of guiding employers that want to protect their employees stating,

“Employers actively working to protect their employees by increasing the number of workers receiving vaccinations through incentive programs are seeking assurance this action is allowable and does not violate important labor laws such as the Americans with Disabilities Act…”

In response, just a few days ago Carol Miaskoff, the EEOC’s acting legal counsel, stated that the agency expects to update its technical assistance to address these issues, but that the work is still ongoing. She did not indicate when the EEOC would issue its guidance.

Even without the promised guidance, many employers have offered incentives to their employees who receive the COVID-19 vaccine, including paid time off and cash bonuses, but the concern is the legality of the incentive programs. Do these incentives violate federal anti-bias laws? Do they violate the Americans with Disabilities Act (ADA)? If an employee cannot receive the vaccine for medical or religious reasons, how are those employees being treated?

Employers should be careful when offering incentives to employees prior to the EEOC’s guidance. Things to consider before offering incentives are to look at the size of the incentive, meaning if the incentive is too large, it may lose its “voluntary” status, the value of the incentive, and to ensure there isn’t a disability-related inquiry of the employees.

©2021 Roetzel & Andress
ARTICLE BY Amanda M. Connelly of Roetzel & Andress LPA
For more articles on the COVID-19 vaccine, visit the NLR Labor & Employment section.

Are Employers Required to Pay For Employee Time Spent Receiving COVID-19 Vaccine?

Although millions of people in the United States have been vaccinated since COVID-19 vaccine distribution began in December 2020, a large percentage of the population still remains unvaccinated. Many lawmakers and companies are brainstorming ways to remove barriers to individuals obtaining the vaccine, especially frontline workers who remain at a higher risk of COVID-19 exposure and infection. One such barrier is the time away from work that may be required to obtain the vaccination and the risk that the time will be unpaid. Many employers, including manufacturers, are questioning whether they must, or should, provide employees with paid time off for time spent related to obtaining the COVID-19 vaccine.

On the federal level, there is generally no law specifically requiring payment for employee time spent obtaining the vaccine or recovering from side effects or complications other than as it relates to federal contractors that may be required to provide paid sick leave. That being said, some companies that voluntarily choose to provide their employees with such paid time may be eligible for tax credits under the Families First Coronavirus Response Act (FFCRA).  While the requirement to provide paid leave under this law expired at the end of 2020, the Consolidated Appropriations Act (CAA) extended the availability of the tax credit to employers who voluntarily provide such leave through March 31, 2021 and the American Rescue Plan Act of 2021 (ARPA) subsequently extended the availability of the tax credit through September 30, 2021. It is important to note that previously, if an employer provided paid sick leave to an employee and claimed a tax credit for the leave provided to that employee in 2020, the employer was not able to claim the tax credit for any leave provided to that employee in 2021. However, ARPA now permits employers to receive a payroll tax credit for up to ten additional days of paid sick leave for employees starting April 1, 2021 (even if the employer previously took a tax credit for paid sick leave for those employees prior to that time). This means that employers may now offer up to an additional ten days of paid sick leave to employees, even if the employee exhausted his/her FFCRA leave in 2020 or the first quarter of 2021, and the employer may still claim a tax credit for this leave. Importantly, ARPA also expanded the qualifying reasons for paid sick leave to include time spent obtaining the vaccine and recovering from any injury, disability, illness, or condition related to vaccination, among other reasons.

On the state level, there may be laws that require payment including more recent laws that have been passed. For example, New York recently enacted a law that requires all public and private employers to provide employees with four hours of paid leave, per dose, to obtain the COVID-19 vaccine. Additionally, existing state and local paid sick leave laws may cover time spent obtaining the vaccine (e.g., preventative care) as well as time spent recovering from side effects or complications or assisting a family member in this regard.

Additionally, payment may be required under wage payment laws. Depending on the circumstances, exempt employees may be entitled to their full salary for time off (both hours and days) related to obtaining the COVID-19 vaccine. Further, employers that implement mandatory vaccine policies may be required to pay for the time obtaining the vaccine as such time may be considered “working time” even if it occurs outside normal working hours.

Copyright © 2021 Robinson & Cole LLP. All rights reserved.

ARTICLE BY Abby M. Warren,  Alisha N. Sullivan and Emily A. Zaklukiewicz of  Robinson & Cole LLP
For more articles on COVID-19, visit the NLR Coronavirus News section.

Are Your Workplace Policies Compliant with the NLRA?

NLRB issues Memorandum GC-21-03 Signaling Aggressive and Expanded Enforcement of Section 7 Rights

On 31 March 2021, Peter Sung Ohr, Acting General Counsel of the National Labor Relations Board (NLRB), issued Memorandum GC 21-03 (GC 21-03) to the regional field offices signaling significant changes to enforcement priorities under Section 7 of the National Labor Relations Act (NLRA). In part, GC 21-03 indicates that the NLRB will be “robustly enforcing the Act’s provisions that protect employees’ Section 7 rights” and that “cases involving the retaliation against concerted employee conduct will be vigorously pursued.” GC 21-03 cites to increased workplace health and safety issues resulting from the COVID-19 pandemic as well as employees’ political and social justice advocacy concerns as factors necessitating increased enforcement of the NLRA.

NLRA Protections

The NLRA is a federal law that grants employees the right to form or join unions; engage in protected, concerted activities; address or improve working conditions; or refrain from engaging in such activities. The NLRA applies to almost all private employers but does not apply to federal, state, or local governments; employers who employ only agricultural workers; and employers subject to the Railway Labor Act. Some employers are surprised to find that the NLRA protects nearly all employees in the private sector, not only union employees or employees seeking to form or join a union. In fact, concerted activities protected under the NLRA often occur outside of the context of union activity. The NLRA does not cover, however, government employees, agricultural laborers, independent contractors, and supervisors (with limited exceptions).

It is not uncommon for the NLRB and its general counsel to modify or reverse their interpretations of the NLRA with changes in the composition of the Board. The political party of the presidency enjoys majority representation on the NLRB. Consequently, changes in the presidential administration often lead to significant changes for employers. GC 21-03 is emblematic of that trend. It states that “recent decisions issued by the current Board have restricted [Section 7 rights] for employees.” Specifically, GC 21-03 criticizes Alstate Maintenance1 and Quicken Loans2 for applying “mutual aid and protection” narrowly. The enforcement priorities highlighted in GC 21-03 are in stark contrast to enforcement priorities under the previous administration and a clear indication that employers should expect increased NLRB oversight for the foreseeable future.

Broadened Concerted Activities for Mutual Aid and Protection

Section 7 of the NLRA grants all covered employees the right to engage in “concerted” activities for the purpose of “mutual aid or protection.” The phrase “mutual aid or protection” focuses on “whether there is a link between the activity and matters concerning the workplace or employees’ interests as employees.”3 GC 21-03 indicates that such a link will be broadly construed, and it outlines an expansive characterization of what constitutes protected, concerted activity. As noted in GC 21-03, employee advocacy can have the goal of “mutual aid or protection” even when the employees have not explicitly connected their activity to workplace concerns. As examples, GC 21-03 cites to a solo strike by a pizza shop employee to attend a convention; protests in response to a sudden crackdown on undocumented immigrants or social justice concerns; and a hotel interview with a journalist concerning minimum wage issues. In addition, GC 21-03 highlights how concerted activity can occur outside of the context of union activity—such as when employees raise health and safety issues resulting from the COVID-19 pandemic or seek protections from government agencies.

Renewed Application of Inherenty Concerted Conduct

In addition to a clear directive to interpret concerted and protected activity more broadly under the NLRA, GC 21-03 also signals a renewed enforcement of conduct that is deemed “inherently concerted.” As noted in GC 21-03, employee conduct generally becomes concerted when it is “engaged in with or on the authority of other employees”4 or when an employee seeks either “to initiate or to induce or to prepare for group action.”5 In other words, concerted conduct revolves around employees’ intention to band together to improve their wages or working conditions. However, contemplation of group action is not required and employee discussions surrounding certain employment policies may be sufficient to constitute inherently concerted activity—even if group action has not yet been contemplated or is in its early stages. Indeed, as noted in GC 21-03, inherently concerted conduct need only involve a “speaker and a listener.” Further, GC 21-03 emphasizes that there are no “magic works” required for concert to attach. However, the NLRB has previously found that certain categories of workplace life have been found to be “inherently concerted”—namely, exchanges of information concerning (i) wages or wage differentials, (ii) changes in work schedules, (iii) job security, (iv) workplace health and safety, and (v) racial discrimination. GC 21-03 expressly warns that the NLRB will be considering such categories as well as “other applications of the inherently concerted doctrine” for the foreseeable future.

Key Takeaways

  • Employers should work with their counsel to ensure their workplace policies are compliant with the NLRA, including the expansive definition of protected conduct that will be enforced for the foreseeable future.
  • Employers should expect an increase in NLRB oversight and NLRA enforcement.
  • Employers should expect an increase in complaints brought by the NLRB, including increased prosecution of cases involving retaliation against concerted employee conduct.
  • Employers should exercise caution when deciding whether or not to discipline or discharge employees who have engaged in discussions or activities related to workplace health and safety (importantly as related to the COVID-19 pandemic), social justice issues, or political views.

1 367 NLRB No. 68 (2019).

2 367 NLRB No. 112 (2019).

3 Fresh & Easy Neighborhood Mkt., Inc., 361 NLRB 151, 153 (2014).

4 Meyers Indus., 268 NLRB 493, 497 (1984) (Meyers 1), remanded sub nom. Prill v. NLRB, 755 F. 2d 941 (D.C. Cir. 1985), cert. den. 474 U.S. 948 (1985).

5 Meyers Indus., 281 NLRB 882, 887 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F. 2d 1481 (D.C. Cir. 1987), cert. den. 487 U.S. 1205 (1988).

Copyright 2021 K & L Gates

ARTICLE BY Rosemary Alito and  Rio J. Gonzalez of K&L Gates
For more articles on the NLRB, visit the NLR Labor & Employment section.

American Jobs Plan, By the Numbers

On March 31, 2021, President Biden released details on the American Jobs Plan, which provides funding for infrastructure, clean energy, innovation and R&D, manufacturing and workplace support, and the caregiving economy. The proposal also includes revenue increase proposals to partially offset the new initiatives. Here is a summary of the amounts proposed in each major category:

INFRASTRUCTURE AND CLEAN ENERGY
Transportation Infrastructure $ 621 billion
Roads and Bridges $ 115 billion  
Public transit $ 85 billion  
Passenger and Freight Rail $ 80 billion  
Road safety $ 20 billion  
Electric vehicles $ 174 billion  
Airports, ports, waterways $ 42 billion  
Reconnect neighborhoods $ 20 billion  
Large projects $ 25 billion  
Resilience $ 50 billion  
Other $ 10 billion  
Water, Electricity, Broadband $ 311 billion
Drinking water $ 111 billion  
EPA state fund ($45 billion)    
Water systems ($56 billion)    
PFAS ($10 billion)    
Broadband $ 100 billion  
Electric Power $ 100 billion  
Electric grid    
Extend clean energy ITC, PTC; establish EECES    
Reclamation ($16 billion)    
Brownfield, Superfund ($5 billion)    
Carbon capture and sequestration    
Civilian Conservation Corps ($10 billion)    
Homes and Buildings $ 378 billion
Retrofit Homes and Buildings $ 213 billion  
Affordable rental housing    
NHIA tax credits ($20 billion)    
Zoning incentives    
Public housing ($40 billion)    
Clean Energy Accelerator ($27 billion)    
Education and Child Care Facilities $ 137 billion  
Public School modernization ($ 100 billion)    
Community Colleges ($ 12 billion)    
Child Care ($25 billion)    
VA Hospitals $ 18 billion  
Federal Buildings $ 10 billion  
SUBTOTAL, INFRASTRUCTURE AND CLEAN ENERGY $ 1.310 trillion
CAREGIVING ECONOMY
Expand Medicaid Home and Community-based Care $ 400 billion
INNOVATION AND R&D
Future technologies $ 180 billion
NSF $ 50 billion  
Rural, additional R&D $ 30 billion  
Research labs $ 40 billion  
Climate R&D $ 35 billion  
HBCUs/MSIs $ 25 billion  
Retool and revitalize manufacturing $ 300 billion
Commerce supply chains $ 50 billion  
Semiconductors $ 50 billion  
Medical countermeasures $ 30 billion  
Clean energy (EV, nuclear) $ 46 billion  
Regional innovation hubs $ 20 billion  
NIST $ 14 billion  
Manufacturing extension partnerships $ 2 billion  
Capital access, sec. 48C $ 52 billion  
Small business incubators $ 31 billion  
Rural Partnership program $ 5 billion  
Workforce Development $ 100 billion
Dislocated Workers program $ 40 billion  
Underserved communities $ 12 billion  
Apprenticeships, STEM $ 48 billion  
SUBTOTAL, INNOVATION AND R&D $ 580 billion
     
TOTAL $ 2.290 trillion

LABOR REFORMS

  • Enact the Protecting the Right to Organize Act
  • Apply labor standards to infrastructure, clean energy funding recipients
  • Increased penalties for workplace safety and health violations

REVENUES

  • Raise Corporate Rate to 28%
  • Increase Global Minimum Tax to 21%
  • Global agreement on minimum corporate tax
  • Limit Corporate Inversions
  • Deny Offshoring deductions, create Onshoring credit
  • Repeal Foreign Derived Intangible Income deduction
  • 15% minimum on corporate book income
  • Eliminate fossil fuel tax incentives
  • Increase corporate enforcement
    ©2020 Greenberg Traurig, LLP. All rights reserved.

    For more articles on the American Jobs Plan, visit the NLR Coronavirus News section.

COBRA Alert: Enhanced Benefits for Those Eligible

On March 11, 2021, President Biden signed into law the American Rescue Plan Act (ARPA), which provides important health insurance benefits to certain eligible individuals. Specifically, the ARPA requires employers to cover 100% of Consolidated Omnibus Budget Reconciliation Act (COBRA) premiums from April 1, 2021, through September 30, 2021, for former employees who:

  • Became COBRA-eligible in or after November 2019;
  • Lost employer-sponsored health insurance because of an involuntary termination of employment or because of an involuntary reduction in hours; and
  • (1) Elected COBRA; (2) elected COBRA but let the coverage lapse; or (3) did not elect COBRA.

Former employees are not eligible for the ARPA COBRA subsidy if they:

  • Resigned voluntarily, or voluntarily reduced their hours;
  • Were terminated for gross misconduct;
  • Are now covered under another group health plan; or
  • Are Medicare-eligible.

Note, if COBRA coverage is set to expire before September 30, 2021, ARPA does not extend the expiration date; and many questions remain. For instance, does the ARPA COBRA subsidy extend to those who left employment per a mutual decision, for “good reason” under an employment agreement, or pursuant to a voluntary exit incentive plan? The Department of Labor is currently drafting regulations and guidance that should help answer these questions.

What Do Eligible Former Employees Need To Do?

For anyone who is covered by COBRA as of April 1, 2021, nothing needs to be done. It is up to the employer or the employer’s health insurance carrier to ensure that the premiums are paid for the relevant period. For those who let COBRA lapse or had not elected COBRA, the employer or the health insurance provider must provide notice of the new benefit and of a new enrollment period. The new enrollment period begins on April 1, 2021 and ends 60 days from delivery of the ARPA COBRA notification.

If you believe you may be entitled to coverage, are interested in receiving the benefits, and are not contacted by your former employer or their provider in the next few weeks, consider reaching out to the employer’s Human Resources Department or the insurance carrier to ask for information about your COBRA benefits under ARPA, or contact your employment lawyer.

© 2020 SHERIN AND LODGEN LLP

ARTICLE BY Gavriela M. Bogin-Farber of Sherin and Lodgen LLP
For more articles on COBRA, visit the NLR Corporate & Business Organizations section.

Taking the Jump to Virtual with Jennifer Schaller, Managing Director of The National Law Review and Megan Braverman, Principal of Berbay Marketing & Public Relations [PODCAST]

What you’ll learn in this episode:

  • The pros and cons of a virtual office.
  • The biggest challenges of working remotely.
  • Transitioning your technology to a virtual “platform.”
  • Advice for firms considering going remote.
  • What to ask prospective employees to ensure they’re a fit for remote work.

Listen to Taking the Jump to Virtual, Episode 87 of the Law Firm Marketing Catalyst podcast.

Sharon:      Welcome to the Law Firm Marketing Catalyst podcast. Today, we’re talking about a timely subject which is affecting many of us, and that is working remotely. First is Jennifer Schaller who is a co-founder and the Managing Director of The National Law Review, a publication which many of you are familiar with, and Megan Braverman, Principal of Berbay Marketing & Public Relations, and I am Sharon Berman, Managing Principal of Berbay Marketing & Public Relations. So, we’ll be here from each of our desks today talking about their experiences and what they have to learn and what we can learn from them about working remotely. Jennifer, can you tell us about your experience?

Jennifer:    Sure, absolutely. We started as a remote company just simply because we were formed by a group of attorneys at different in-house law departments, so it wasn’t like most of the co-founders were leaving their regular positions working in corporate law departments. A former law firm administrator and I and a few other young attorneys actually started the more public-facing part of The National Law Review. So, it wasn’t like we had an office and we moved to remote. We were kind of a remote group to begin with and then we hired more remote people, if that makes sense.

Sharon:      Yes, it does. O.K., so you’ve been remote from the beginning. Basically, you started—

Jennifer:    Yes.

Sharon:      O.K., that’s a great way to start in terms of not having to transfer technology and think about things. Megan, can you talk a little bit how Berbay—we have just gone totally remote, but we’ve building to it for a while, so tell us about the Berbay experience.

Megan:       So, Berbay was founded in 1995 and since that date, we’ve had a physical office in Los Angeles and our most recent office we were in for just over twenty years in West L.A. It’s a long time and as you said, we were really thinking about going virtual for some time. For those that understand the L.A. world, traffic and the commutes are painful, and we really ran the agency like just get the work done; we don’t care what time you clock in and clock out and everybody really liked that and so the past few years, we would walk into the office and it felt like a bit of a ghost town. People were coming in later and leaving earlier to help avoid the commutes and traffic, and so once COVID hit, it came at an interesting time because our lease was coming due at the end of that year and so it really just propelled us into going virtual. I think in many ways it was a blessing in disguise because it really got our—we had to get our act together, whereas if COVID and the pandemic didn’t happen, I think we would have probably taken our time and maybe reluctantly gone out the door. So, we officially went virtual on February 1, 2021.

Sharon:      That’s true and when you say it would have taken a long time, I think about it because we had talked about, “Well, let’s talk again in a few months” and then it’s like, “O.K., how do we do this?” and it probably would have been five years from now if we really hadn’t been sort of forced in—well, not forced. It’s not that we didn’t want to do it, but it’s like, “O.K., we’d better get it done.” So, for both Jennifer and Megan, what did you think before you set this up? For both of you, what do you think the biggest challenges were going to be working remotely?

Jennifer:    We’ve always had a physical office space. It’s just having space for initial training and storage of conference and office supplies in Chicago. Right now, we have people in our main office Chicago and then we grew to Denver, and we have one of our tech people in Detroit. Since it’s always been mature attorneys or an office manager who has thirty years’ experience, there wasn’t the need to have the supervision of making sure people come in on time because in running a news service, we know if you’re producing work or not. It’s really more for initial training or for the purposes of picking stuff up. So really more of the remote issues that we’ve encountered along the way have been dealing with operating in different states and some of the laws relating to that.

Sharon:      Yeah, you just have to think about the fact that different states have different compliance standards to think about. Did you think when you brought on people in different locations like Seattle or Detroit, did you think, “Oh my god, how am I going to keep everybody together?” or what did you think the challenges might be?

Jennifer:    It is really, really organic. The Detroit person is one of our more technical guys and he has a tight relationship with my spouse, who actually handles the real high-level oversight of the more technical end of the website because we’re an extremely high-volume website and they’re kind of buddies. So, they handle their thing and the Denver part of it grew very organically by adding an additional tech person in Denver. We had a person who had been working with us for a while who was relocating out there for her husband’s position and so we agreed to keep her position and we’ve just found a whole little kind of hub of really good talent out there. We’re actually now starting to actively hire more towards the East Coast and bring in people in specific time zones where we might not have anybody, but the other part of it was just based on people—we try to accommodate the needs of our employees and to try to make it a win-win with the company’s goals.

Sharon:      And Megan, were there challenges that you expected or that you didn’t think about that popped up?

Megan:       Most of the challenges that we faced were expected. I mean the typical ones like—well, change is really hard, especially from a technology standpoint, so I think there are always technology issues along the way. I expected that. I knew people were going to have trouble adapting to the new system, especially when you’re used to something for so many years. I think there will be challenges to come because we’re still in the midst of a pandemic. In California, we’re pretty locked down here. I think there will be different kinds of challenges when everybody can start seeing each other again, like logistical I think is a little bit hard right now. Before, we would all be at the office and we’d jump in the car together and go see a client and I think that will be different. I think what Jennifer said—it’s like Jennifer has an office where you can kind of do some physical pickup of things. That’s all going to be remote for us and we’re going to be doing drop-offs of computers when we have a new employee and if someone leaves, picking them up and how that’s all run and handled. Those things I think are challenging. You don’t really think about all those little things as you move virtual, but those were all challenges and things you have to figure out a plan for.

I think the one challenge that—not only is it happening now, but I think it will get harder as we continue to be virtual and live in this virtual world longer, is we’re in the creative space and so there is a lot of collaboration and right now every collaboration is intentional. So before in the office, you would just say, “Hey, Sharon, can you swing over here and take a look at this? Look what do you think?” And we would sit there and have it out or I’m sure it happens the same with you, Jennifer. We sit down randomly and have brainstorm sessions and strategize. Now all of that has to be intentional. It’s more like, “Sharon, do you have twenty minutes tomorrow at 10:00 a.m. to go through this” and so it’s less of a spur of the moment and I think that that will—it can impede collaboration.

I think there are ways to combat and ensure that we’re doing the same things as we once did physically. For example, we’ve created something called Co-llab which is really just an intentional weekly meeting where we can all get together and bring things to the table. There’s no agenda. It’s just like, “Here’s my challenge” or “Hey, can you look at this ad? What do you think?” or “What about this copy” or “I’m struggling with this pitch” and we can all just bring things to the table. So, it has to be much more planful and intentional now.

Sharon:      In technology—because technology was the most daunting thing—I mean there are a lot of like you say, bugs that have to be worked out, but to me, from my perspective, it was thinking about how do we move the technology, are we in the cloud or is it a server or whatever and then also, we use Microsoft Teams in terms of collaboration. Jennifer, you are on Slack?

Jennifer:    Yeah, the technical end of it has been the easy part for us because we’re a tech-based company given the volume of publishing that we do. We publish anywhere from 65 to 85 articles a day, and that’s why we also have people in different time zones. It’s sort of challenging when we’re hiring and we’re like, “We’re publishing anywhere from six in the morning to seven at night” and interviewees are like, “I’m not working those days.” We split that up into different work teams and that concept gets kind of messy in a lot of the minds of people we interview who are working nine to five, but ultimately our clients win if we get the best results for them which means a quick turnaround on their publishing and we win because we make half of our revenue from advertising, so we have every incentive to get their content out there quickly and to do the best with it that we can. So, since we have people working in different shifts, in different time zones, all to produce news content, they have developed a great system on Slack where they talk throughout the day, figure out who’s doing what, who’s doing the social media, who’s doing the formatting of the content and the SEO work and who’s publishing it.

On the front end, we do scheduling as far as a month out on our work calendar. We have a system where; we ask folks to put their preferred hours to help fill publishing time slots during the day so we can cover the publishing cycle. Then we also have staff available on the weekends for publishing and customer service—so it’s like our road map for things. I wish I could have found something to read on how to do this, but we just kind of felt our way through it with both the scheduling of people and the timekeeping and then the daily conversations on Slack kind of evolved organically.

We have subcommittees for social media, advertising and SEO and a couple of other groups for projects and then we have regular team meetings. We usually will have a written agenda of things for our meetings that we want to go over, not that we can’t talk about different things, but in order to have a roadmap of who’s going to be covering what and what the deliverables are from the last meeting, so everybody knows they’re going to be held accountable and to have their stuff ready. So, we’ve just had to develop a lot of formalized systems but have done it through technology.

Sharon:      It’s interesting how—I’m sure you’ve hit roadblocks along the way and said, “O.K., we tried that. That wasn’t really the way to go.” You also have been able to do this over time, whereas a lot of firms are scrambling right now. Yes, there’s an aspect of scrambling, but we had a foundation of people working remotely. It wasn’t like, “Oh my gosh, what are we going to do?” It’s nice to have that luxury of trial and error and it sounds like it’s really served you well in terms of “O.K., we tried this. This is the way we want to go. Let’s go around this way.”

Megan, for firms that are considering or who are in the midst of going remotely or debating whether to revert back when get to the new normal or to go totally remote, what do you think the firm should be thinking about?

Megan:       Well, I think it’s a big decision for a lot of firms to decide what to do when things start to get back to normal. I’ve talked to so many people who have said that they love the virtual world, and their employees and the staff love the virtual world. It gives them a lot of flexibility; a better workplace balance and they can’t imagine going back. I’ve spoken to a lot of employees who have said they’re not going back. So, they’re really hoping that their employer’s going to be amenable to their request because they can’t imagine going back into the office. I’ve talked to a lot of folks that feel differently. They really believe in having that physical presence and having that office and having people there every day.

I do think that this pandemic has changed the mindset on virtual. I think there are a lot of sort of nonbelievers out there that turn believers because in their minds it was impossible. I mean there was no way that they could operate virtually, but when you’re forced to operate virtually, you realize that you can and actually there are a lot of benefits that come with it. I do think there are more believers out there. I think that that will change permanently. I think if you’re considering embarking on going virtual, even partially virtual, maybe you decide to have your employees come in twice a week or whatever it might be or downsize your offices. You just kind of share space differently. I think you really have to come up with a plan of action. To me that was so crucial when we made the decision, we were going to officially go virtual.

I did a ton of research and thought about—I mean technology is one small piece. Privacy is a big piece. For example, there are some employees who are sharing their living with a roommate or a partner and you have to think about privacy issues beyond just secure technology, but what if someone’s overhearing conversations of confidential information, but they’re living in 600 square feet, what do you do? So, there’s a lot under each umbrella. I think that plan of action includes everything from how meetings are going to work, as Jennifer went into detail about how they handle their meetings, what to do when like for example the internet isn’t working very well at home. That happens all the time. It’s amazing. It’s like no matter how much you call your internet provider, nothing happens. So, what do you do when something is the matter with your internet?

I think of all these things—first there’s a lot online. There are a lot of people who’ve done this, so talk to people who’ve done this; they can tell you their mistakes or the things that they overlooked, but a simplified plan of action of all the things we needed to be thinking about really kept us on track and made sure that we really—and we did things in phases. I think that was a big thing for us. Don’t try to tackle everything at once. We had almost a year to move out of our office. We took that time, and we did little by little by little. That was so helpful. If you try to move out of an office in a month, you are going to be scrambling.

Sharon:      I think you made some very good points about the fact that if you do it in phases. First of all, I do have to say that you were the main planner and driver of going virtual and I give you a lot of credit because it really went—it happened, and it didn’t happen with people tearing their hair out. So, I think that’s—

Megan:       Just me tearing my hair out.

Jennifer:    Your hair still looks very good.

Megan:       Thank you, thank you.

Sharon:      Jennifer, you must have seen over time a real evolution in how people view—ten years ago, you just didn’t say if you weren’t going to the office. You must have seen a real change.

Jennifer:    Well, we have one advantage. We’re the kind of business that nobody visits us, so it’s not like we’re going to have client visits. That was one thing that kind of made things a little bit easier with the whole virtual situation, but yes, perceptions have changed drastically over what it means to work from home and we work very purposely when we interview to ferret out people’s perception of what it means to work from home because being in the publishing business, there’s a lot of freelancers and there are a lot of folks who are like, “I’m just going to work when I want to work” and we try to explain the rigid schedule of news publishing, if they haven’t worked for a newspaper or a daily publication, how—no,  it’s got to be between certain hours and that there’s structure in order to produce the product that we do for our clients. But yeah, I mean initially ten years ago, there was a perception either that it was kind of two extremes, either you were like some lady who’s doing quilting in her basement or you’re like Bill Gates and you can work from the south of France and there were very few in-the-middle kinds of situations.

So yeah, it took a little bit to educate people whom we were bringing onboard on what the expectations were. I mean we’ve learned an amazing amount over the years—it’s a huge red flag if somebody says in an interview like, “How do you know if I’m working” and it’s like, “Oooh.” So, we just have figured out mostly through being exceedingly descriptive when we post jobs and then continuing through the interview process of explaining what our daily routines are, and to explain that there is some expectation of an in-person component for both work and training.

For training, we train normally pre-COVID three weeks one-on-one to get folks into the publishing process because it is pretty difficult to find people who have SEO experience and legal experience and publishing experience, we’ve yet to find the trifecta of somebody who has all those things. So, we’ve found it most effective when we train to sit down with people so we can see if, versus virtual, if their eyes are glazing over because we’re going over something that’s routine for them or if it’s a new task that they have no clue what’s going on, so we can better tailor our training and also develop rapport because we know eventually, we will be working remotely.

We have multiple people interview everybody when we hire, which some interviewees are confused by. Especially in the publishing process, it’s an all-day-long cycle of either different team members coming on and tagging in or working jointly in different parts of the publishing process. We really want a cohesive team, and we want anybody who’s joining us to know what they’re getting into and to have as many different people to talk to, to get a flavor for that. And by the same token, anybody we bring onboard, we want the full buy-in of our staff. So, the net of it is, in person when we can, monthly in-person meetings, like we do an LMA meeting and usually work together as a group in the afternoon pre-COVID. -. In-person training and then we do lots of conferences, and we try to mix up the people who are going to different events and can get to know their coworkers and their clients better.

Sharon:      That’s really nice. You have the independence and then really work to build the camaraderie among different people. Megan, what do you think? What are some of the questions or what are you looking for when you’re asking somebody about coming onboard to Berbay?

Megan:       So, we’ve only hired one staff member virtually and onboarded and trained this person virtually, so we’re fairly new to doing this and I think a lot of the questions and sort of what we’re looking for in a candidate is very similar to before. There are of course questions related to their space. Do they have a designated office space or not, and have they had experience working virtually? Would this be their first experience? How do they manage their time productivity?

It’s interesting. I found that we are working more productively, longer hours virtually than when we were in the office and there are a couple of reasons for this. I think one reason is that we’re all locked down, so there’s nothing else to do, so we just fill our time with things that we need to get done. I think that because you have a lot more flexibility, that you kind of work different hours. Sometimes you’ll work a big chunk in the morning and then you’ll take an hour or so break, eating lunch, maybe going outside and then you’re back to working. The fact that you’re able to break whenever you want during your day at the convenience of your schedule I think works really well versus when you are in the office, you are in the office. Even if there was a slow period, you were in the office.

You just kind of did what you needed to do, but I do think when you’re finding candidates, I mean you really need someone that is used to that autonomy and if they’re used to working side by side with people and they’ve never had that remote autonomous position, I think that’s going to be challenging. With that said, if they’re a very disciplined person and motivated and proactive, all the qualities that probably any company looks for, I think that a lot of people can adjust and will find—if you probably talked to anyone at Berbay including myself, we all agree that it’s just been so amazing working virtually. I mean there’s a lot less planning you have to do and that frees up your mind for other things, like for example a lot of us who go to the office, we think about meal planning: what should I make the night before so I can bring lunch in the next day or what time do I need to leave so I can get into the office on time for whatever call I have? You have to think through all those things. You have to plan them. Even your outfit, when you’re at your office, some people love to do the day before if you have a meeting. So, there are a lot of things you have to think through. I think the fact that you have more brain space now and not have to think about that makes a big difference. I know I sort of got sidetracked with the questions, but I think those are all the things that you can kind of probe a candidate for in terms of discipline, ability to be autonomous, their experience with remote work, etc.

Sharon:      No, I mean there is more brain space because you don’t have to figure out what time do I go to the gym, should I make lunch, should I pack dinner for the night before for lunch. I think the main difference—what Berbay and Jennifer are saying—and I thought that was an interesting point—is somebody in what we do, can be a freelancer in a sense. I mean they can be part of our team, but be a freelancer, where, Jennifer, you need somebody who is going to be available at certain times; it doesn’t matter if there in an office or not; they have to be available to take an assignment at a certain time and get it done at a certain time. So, that’s interesting because I think candidates who haven’t been exposed to what Jennifer is saying would have a hard time sort of wrapping their heads around the fact, “Well, I’m not a freelancer, but I’m not in an office.”

Jennifer:    Yes, it’s been challenging. We really, really, really, really try to front everything in the interview process. That makes it sound like there’s something sinister going on here. We have exceedingly talented people. Most of them have advanced degrees and have years and years of either publishing or SEO experience or editorial experience and some legal, and so to talk to interviewees and say, “Well, we kind of work in an assembly-line environment” for lack of a better way to put it because we have somebody who checks what’s coming in and then verifies that we can publish it, formats it, does the SEO work, has an editor look at it and makes it go live, does the social, does homepage placement. We kind of repeat that process for 60 to 85 articles throughout the day.

As things come in, editorial questions come in from our clients who want changes to things or just have general questions and to understand the interdependence of how to do that for 12 hours a day with different people working, it’s easy to explain it to somebody who’s worked in a news environment, but even with that, that tended to be more print, intended to be super deadline specific, we tend to publish live and cut things off at a certain time in the day. So, there’s a lot of judgment calls at the end of the day if we have things coming in still if they’re breaking news, if we publish them or wait until the next day.

So, that whole process I think is somewhat unique between having our own writers’ writing, original contributed content and then syndicating content from law firms and mixing it up into a newsfeed. That’s not super-common out there. It’s not like we can recruit people who’ve been doing the same thing at other places. There’s a learning curve and a trust curve.

Sharon:      No, I can understand that. That would be a difficult thing to find. To me, I’m still struck by having to explain these to them overnight. It’s not freelance, but you’re working virtually basically. So, Megan and Jennifer—Megan, let me start with you.  Based on your experience, what would you tell other firms who are considering going totally virtual or what would you say the benefits are? What would you do differently? What would your advice be to them?

Megan:       My advice to those that are going to go virtual, first is give yourself—however much time you think it’s going to take to really go virtual, I would double it. I think the fact that we had essentially a year to do it was incredibly beneficial and mind you, I took that year very seriously. It’s not like I started four months out. I mean I really started at the top of the year and just started chipping away at the paint because that was the only thing that my brain could actually handle getting out of this physical office and transferring technology and all of the things that had to come with it. So, I would say give yourself ample time.

I think that there are an enormous of benefits from working virtually, challenges too, but I think that there is a new meaning to the work-life balance. I think that whatever the new normal looks like, I believe that people are going to be permanently changed. Maybe everybody can’t wait to get out of their house and I’m sure a lot of people can’t wait, but at the same time, I think once we’re able to get out, I think we’re going to love the fact that we had that time at home and with our family and the quality time and we’re going to need that, and I think the virtual workplace offers that.

I would say the other piece of advice too is have someone to support you. Don’t think that you have to do this all your own. This was very a team approach of Berbay. Everybody had a role in going virtual. Every single staff member had a role in helping get to the virtual space. So, someone has to lead the charge of course, but just rely on your staff as much as possible and everything is overwhelming with change. I think just taking it day by day—I know that that’s such a simple piece of advice, but it’s really true. I think I had a realization moment where I knew that I couldn’t think too far ahead. You just think about the day, think about the week and what you’re going to achieve and over time, you’ll see how much progress you’ve made.

Sharon:      Megan, we had that year, and you had that year, but that still sounds like if you could have had more time, you would have. At the same time, if this hadn’t happened and we said, “O.K., we’re going to go virtual,” I think that five years down the line we’d still be converting. So, what do you think? Do you have an idea of what—is it a couple of years you think? What would you say?

Megan:       It’s a good question. I think it depends on the size of your company. I think that plays a big role. I mean we had one office. We were a small team. We can work leanly. There’s not a whole lot of bureaucracy, so decisions were made very quickly, very easily. So, I think depending on the size of the company, that can change. I think if you’re working with multiple offices and maybe each office is doing something different, that can be a challenge. I do think creating some kind of timeline, even if it’s over a long period of time, that’s O.K. You just have to create a timeline and really stick to it because we were forced into that timeline, but I think that it was probably one of the more beneficial motivators we had in place. It was like we had that—we couldn’t change the timeline. It wasn’t like we could say, “Well, our lease was up. We weren’t going to renew, so we had to get out of the office by February 1.” I think that’s why the timeline is so crucial, but again, I think you’ve got to rely on your staff and it’s so important. You can’t do this on your own. I talked to probably ten other employers who went virtual. I just picked their brains for 20, 30 minutes and just got the rundown of everything I needed to know, and you just get it done.

Sharon:      And you did and once again, I give you a lot of credit. Jennifer, in wrapping up, what would you like people to know? What do you think they should know about working remotely or going remote or words of wisdom?

Jennifer:    Well first of all, what a wonderful way you guys rolled it out, you had a hard deadline, but a lot of runway at the same time in order to make it happen and it’s fantastic that you pulled together as a group. One thing I can say, we were exceedingly blessed to have an extremely strong office administrator when we first started. Not only was she very experienced in the law firm world, but she was technology savvy, and you don’t always find somebody with a huge amount of experience in tech and office systems. So, we had her—thank you, Shirley—early on and actually now she works for a client of ours and came from a client of ours before.

So, I would say if you can, start out with strong parameters like having filing protocols and having systems for reporting time and requesting time off, formal systems for payroll. Just because you’re working remotely or have a small team, that stuff doesn’t go away. I think the stronger systems that you have in place like they do at larger companies makes it simpler to make that transition and then just letting team members know not only do they have input into how to change them or tweak them, but that we actually do take our team’s input and implement the changes.

Sharon:      And I think that’s a good point because I think that goes a long way in terms of pulling people together and making them feel like they’re part of something, at least knowing what the protocols are. It’s not like, “Well, I can do whatever I want. I’m floating in space. I can do whatever I want.”

Jennifer and Megan, thank you so much for talking today. I’m sure that those listening gleaned a lot of information and we gave everybody a lot to think about and I hope we didn’t scare anybody off. Thank you once again for being here. Jennifer Schaller who is the Managing Director of The National Law Review and Megan Braverman who is Principal of Berbay Marketing & Public Relations. Thank you both.

Jennifer:    Thank you.

Megan:       Thank you.

Sharon:      We hope you apply what you learned here today to propel your firm forward. If you have questions or want even more resources, go to Berbay.com and as always, thank you for listening.

© 2020 Berbay Marketing & Public Relations

ARTICLE BY Sharon Berman and Megan Braverman of Berbay Marketing & Public Relations Firm
For more articles on remote work, visit the NLR Labor & Employment section.