 Okay, we're back, we're live. I'm Jay Fidel. This is Think Tech and it's two o'clock on a given Wednesday and we have Louise here with us and we are so happy and proud and just ecstatic that she's with us. Welcome to the show, Louise. Thank you, Jay. Louise is a labor and employment law litigator person and a partner at Dentons, the successor to Alston Hunt here in Honolulu and she's been giving lectures all over town about the subject. So we are happy to be able to tap into her knowledge and the subject is, what is the subject? The law of COVID comes to the workplace and it is changing the workplace and so we wanted to ask Louise about that. I guess the first part Louise is to talk about the CARES Act and all those benefits that we were supposed to see and what the status of them was and I wanted to ask you about how we were doing on that. So the first one that comes to mind, let me get my notes up, the first one that comes to mind is the CARES Act itself, 2.3 trillion, I personally have not seen any of that although a lot of people have and some of them shouldn't have. Can you give us a snapshot of how that act is doing? Well, that's the CARES Act and the benefits under it is probably the current hot topic these days other than what's happening with stay-at-home orders and that's because we're in the middle of the second round of paycheck protection program funding and that's the really big program that probably a lot of people are hearing about for small businesses of 500 employees or less and there's other rules but it basically is a program to encourage employers to retain employees not to put them on furlough or fire them and it also entails a loan forgiveness component as long as the employer is eligible. So right now the banks and potential borrowers are very, very busy either having applied for and gotten their loans or in the process of applying because the word is the money's gonna run out this week and then the next stage is just for those who have qualified or received their loans because the regulations keep evolving are they still eligible? So we've started to confer with clients on that whole issue of eligibility, Secretary Mnuchin's talked about having increased scrutiny of really big loans and eligibility issues. So that's the next thing that people are looking at. This CARES Act cover some of these really, really big loans, bailout loans for example, the administration was gonna give big money to the airlines but it tried to condition those funds on taking stock back in the airlines. The airlines gave pushback on that and that didn't happen. Now there's talk about the administration trying to do that with utility companies in the same way and I imagine they'll be pushed back there too. Is that part of the CARES Act? Yes, it is part of the CARES Act. The CARES Act has a lot of different sections and one of them does involve financial help to the airlines and so I think a number of airlines have already received large loans, probably not enough to cover their losses and then there's other programs as well. There is a program, the Main Street Lending Program is one that's in the process of being rolled out. There's one for specific industries and other specific industries and there are for some of these other programs, some conditions that may not make it attractive to businesses such as what you mentioned, as well as that you think there's things about union organizing and the like. Yeah, it's like the old Oklahoma land rush in some ways, as you say, the regulations are evolving and that's not necessarily a good word when you have short deadlines, evolving regulations but short deadlines and then of course the Lakers. The Lakers call it the Lakers phenomenon. How in the world did that happen? Is there no structure in this legislation that would prevent what happened in the Lakers case? Yeah, well, and I think of the Shake Shack case too. Yes. I'm not sure how the, probably for some of these teams and the like, the way they qualified is they were under 500 employees and in the case of companies that were in the news like Roots, Chris and Shake Shack, the way they qualified is that for certain businesses, hospitality, restaurant and food service, food service being like the places that service universities and the like, they were not governed by, did they just have 500 employees per location. So some of these places were able to qualify even though they really are big companies or there's affiliation rules that mean that they may be backed by big companies and they still got their loans. And so that's what hit the news. And I think that's, what I've said to somebody is that Shake Shack kind of shook the administration up and made them much more attentive to, oh gosh, we've got to take a closer look at these loans. I think yesterday or Monday's paper, there was already reports of law enforcement going after companies on the mainland who made certain attestations to their eligibility, but it turns out that they were misrepresenting. So more enforcement actions. Yeah, well, I think, you know, this is what happens when, as in the Tax Reform Act of 2017, when you don't have hearings, when it's all written in the back room and quickly and you know, anything goes and that's what happened with this bill, except that 2.3 trillion is as big as it gets so far. So you have mistakes made in the drafting and otherwise. Right, I mean, I think the intention was good. The intention was to help these poor businesses that are just suffering so badly because of the stay home orders and the life. But, and I think, you know, what I've heard is that the SBA was encouraging lenders to be very flexible and broad in the application or their review of applications in order to benefit as many businesses as possible. And then what happened in that rush is, you know, in the meantime, regulations were being written and you know, they tried to keep up with the flow and it was all happening at the same time and clarifications were happening after loans were submitted or granted. So it's just, it's been a confusing process, but I think the initial motivation was good. It's been problematic. Yeah, well, I mean, I guess one last question on all of that is, is it achieving what it was intended to do? We had an economy, an unprecedented event in the economy that stopped everything suddenly. Is it doing what it was supposed to do? Well, I guess that remains to be seen because some of the funding has just started to come through. But I think that for a lot of businesses who have received these loans, it's gonna be very important for them to enable them to pay their employees, to be able to keep employees, you know, on payroll and to kind of give a jumpstart to their businesses as all these businesses and organizations face reopening what that's gonna look like. Yeah, well, one of the considerations of course is how long can you keep on doing this? We had trunch number two and query, can we do a trunch number three, four, five, six, seven without a real opening of the economy. One of the things before we leave this topic is my check. Where is my check? I don't see my check. I don't know if you've seen your check and how about unemployment compensation? Where is that? Just if you could just update us on what's happening with that. Yeah, well, I haven't seen my check either. I'm not even sure if I'm gonna get a check because hopefully there were income limits on who would qualify. But supposedly, those who had bank accounts at IRS could access or have the numbers for, they're supposed to be getting their checks in their accounts. And I guess there were some people who if they hadn't filed tax returns or weren't in the IRS's database, they're gonna have to file something to get their checks. Hopefully those checks are coming, but that'll be a nice one-time boost, but it's certainly not going to cover every all the needs that people have. And as for unemployment, what the federal legislation did do is it added $600 extra to unemployment benefits. And so people have started, those who are unemployed have started to get that, although I've read in the paper that sometimes what that means is that the benefit is better than the pay they actually get at work. And so when some of our local companies are starting to get up to speed or reopen again, they're having problems sometimes getting their employees to come back. Not to mention that there's the whole issue of workplace safety and how safe is one going to be when they go back to work. Yeah, I certainly, I wanna go to that. But what's interesting is a lot of people, they will see the workplace as dangerous. They will not be so quick to drop their social distancing and masks and the like. They won't go back. They'll say, I'd rather live. I'd rather my family live and take a risk of going back because I don't have any level of confidence that the administration of Washington has protected the workplace or anyone else has protected the workplace. So I'm staying home, do me, I'm staying home. And I think we'll see a lot of people do that if they actually, if they can afford to do that, a lot of people will do that. And then you have an economic problem, no? Yeah, I think so. We're already seeing that with some of the states that have, where the governors have relaxed the stay at home orders and allowed businesses to open, not all businesses are opening. It's being reported. And I think for our employers here in Hawaii, the issue is gonna be, how do I keep my employees safe and prevent further disruption from a second wave if there's infection in the workplace. And then on the other side, employees who are gonna be reluctant to come back to work until they know that safety measures have been taken. So I think that means we're going to be seeing a different workplace than what we left, those of us who left to do work remotely. And it's about masks as a way of life and more social distancing and be even a combination of remote work and in-office work continuing for a while. Yeah, I noticed you didn't even mention shaking hands. Oh yeah. In all of human society, shaking hands, well, most of it anyway. Shaking hands is part of, it's a greeting. It's, I don't have a weapon with me. I mean you well, and on the way out, I'm glad we had this meeting and I wish you well until we meet again. I mean, it has all kinds of implications, but that's over. It's hard to do a business meeting actually. I always think about shouldn't I shake his hand or her hand, shouldn't I say hello, goodbye that way? But I think as you suggest, it's not going to happen anymore. Yeah, I think along with social distancing is going to be new ways to greet each other socially too. So that's going to be interesting. I remember getting a grocery store recently and seeing somebody I knew and your natural urge is to get closer to them and talk, but they didn't do that. I realized, oh, we're supposed to be socially distancing. So we're all still getting used to that new normal. Yeah, I walk in my neighborhood, you gotta get some exercise, you know? And I see people, they're across the street, they're 20 feet away or more. And I want to say hello, I want to share, I want to ask them how they're doing. You know, fundamental human interaction can't do it. And they look down the street, they avoid conversation. And so I've learned to avoid conversation. It's really tragic in terms of the human experience. But let's talk about the workplace because this is going to change the workplace, it is changing the workplace, it's changing it de facto, but it's also changing it legally. Can you describe to me the workplace as it is changing and how it will be when we, I shouldn't say come out of this because I have no high hopes or come out of this at any time soon. Well, that's an issue that is still in the process of invention and re-imagining by all of us, employers as well as lawyers. I think from the legal side, what we, maybe the starting point is where the starting point was when we first started learning about this whole pandemic and how to respond to it, which is to look to guidance from the CDC, go to their website, the department of our local department of health, as well as the federal OSHA, Occupational Safety Agency, and as well as EEOC, the Equal Employment Opportunity Commission because all of those websites have guidance on what employers are supposed to do. And that's going to sort of be the legal framework under which we all return to work. And that involves based on those various websites assessing the risk in terms of, okay, is this a workplace where you're gonna have a high amount of interaction either among workers or customers? And if so, what kind of protections need to be put in place? And OSHA, for instance, has a, and CDC have a host of guidelines on how to maintain a safe and hygienic workplace, what employees need to do for personal hygiene, and then what you should do if employees are sick or there is, have symptoms, which is still is the rule is we've got to stay home. They've got to report in, they can't come to work and sort of power through because they need to get the work done. If you're sick, you need to stay home to prevent infection. And we have seen how some of the clusters that we've had even here in our state have arisen from people coming to work sick. Probably they either couldn't afford to stay home or they felt like they needed to do the job. I'm reminded, I'm trying to analyze the meatpacking. Rachel Maddow talked about it in the last couple of days. It's very interesting how this huge percentage of people working in these meatpacking plans in little towns where it's the only job available. And a thousand people working in a meatpacking plant and more than half of them are sick. So why is that? There's got to be a physical biomedical reason for that. And I would guess is that it's physical work. And while you do physical work, you're going to breathe harder. And if you're in close proximity to the person near you, you're going to breathe in that person's direction. And the virus particles are micro droplets and they go in all directions. As a result, everybody in the plant is sick. And so that kind of circumstance is more dangerous than in an office that has, for example, partitions and separate offices where people don't necessarily do physical work. They don't breathe hard. Although I suppose you can get emotional and breathe hard from that point of view. But what I'm saying is different strokes for different folks for different businesses. And it seems to me, if I'm a CEO of a company, a Hawaii company where I want to protect my employees going forward, I want to offer them safety to return. And I'm not pushing legal practice here, but I would come to a lawyer because there are so many regulations, so many sources, so many confusions. And as you say, right now, all these regulations are dynamic. They could change as soon as you look away. Then I would come to a lawyer like you and I would say, what do I do now? How do I change my plan? Do I put plastic dividers between staff members? Do I change my air conditioning system? I want them to be safe. I'm willing to spend the money because I want them back. Am I right about that? The best source of all these varying regulations, changing regulations, is gonna be somebody like a lawyer now. Well, Jay, of course it's a little, us being both lawyers, we might be a little biased, but I think that's very true because we know where to look for the relevant regulations. And one of the great things that I'm really happy that our office, our firm did nationwide and globally early on was to form a pandemic special situations team. And I was a member, have been a member of the team and it's been a really interesting, a good opportunity to see, to work across offices and cross disciplines to be able to serve our clients by combining our resources and knowledge. And I tell you that's been keeping us really busy because the issues that have faced employers have just been changing constantly. There's always some basics that remain, but the basics have been just needing to keep constantly monitoring this array of federal and state agencies that have added coronavirus type of regulations. And as I mentioned, that's the CDC and OSHA and EEOC and our own Department of Health. I even go to the governor's website to check on what the latest proclamations are. And so law is a very essential part of making sure that employers not only are legally compliant, but also give their employees the assurance of knowing that they have the employee's interests in mind and they're keeping a safe workplace. Yeah, well, but that's more than just a matter of advice to the managers. There's other implications. I mean, for example, if I'm thinking loosely, but if the employer doesn't care about that, doesn't get counsel on it, doesn't look at the regulations, and he winds up with a shop full of sick people who suffer, who die. That sounds like a pretty good tort claim to me, don't you think? Well, that's probably one of the other next areas. And I'm seeing that in the advertisements for continuing legal ed, but it's gonna be the issue of, okay, what kind of liability and litigation is going to arise out of this and what kind of maybe inaction or whatever by the employer is gonna, could give rise to liability on the employer side. So yeah, we're probably gonna see more of that as well as things are settling down and we see the ongoing ramifications of the COVID pandemic. Yeah, by the same token, an employee who gets terminated for failure to come in when the employer is saying, look, I made it safe. I followed all the regulations. I did everything I could do. I'm prudent. Look at me, I'm prudent. And you refuse to come in because your perception of this is this riskier than I think it is. I'm terminating you. And the question of course is raised because there's a contention there. Is that a wrongful termination? It could be a significant job, a significant damage. It could be in a market that's so strange like this one. A lot of damages result from that termination. Don't you think that's gonna happen if it isn't already happening? Yeah, I mean, that was an issue that probably was there at the very beginning among HR people too, it's just what to do. If you've taken all the steps needed according to the CDC and OSHA, to maintain a safe workplace and still the employee is afraid to come in. They're afraid of someone who may be traveled or has been exposed or actually got sick. And it remains to be seen how that plays out. But I think that the lesson for employers is that one, the importance of compliance. Second, the importance of communication and educating everyone from top down on what is a safe workplace, what needs to be done. And making sure that the education comes from the employer so that there's not fake information out there that people access that get them all concerned. And ultimately, if the employer has done all of those actions and an employee still unreasonably refuses to come in, that could well be the basis for termination or a discipline. Interestingly note though, at least during all of the pandemic period, if you go to the CDC website which does have guidances for businesses, they have often been urging that employers be flexible during this period just because there's still things that we're learning about the disease and how contagious it is. So I think in general, employers have been trying to be understanding but there will be a point in time when they need to reopen, get back to business. And then I think the education and communication piece is gonna be very important. Yeah, we have much to learn about this. I mean, not only in the biochemical level but on the human relations level on the law, the legal side level. Well, for example, I see businesses as hubs in a wheel and the spokes lead out to a million possible collaborators, the suppliers, there's customers, there's consultants, there's professionals, all kinds helping that business deal with the modern world. I mean, up till January anyway. But now you wanna hire somebody, maybe you have to look more carefully at what force major really means. You wanna be sure that there's something in there, pro or con, however you see the way it cuts about epidemics and pandemics. I'm sure you must have some contact with it. I'm sure there's a lot of contracts where people who are parties to that contract wished they would have changed the words if they knew this was gonna happen. It would have been different provision about force major and epidemics and pandemics. And I think going forward, you'll be more care about that paragraph. What do you think? Yeah, I think we're learning as we go. And that force major has been a big issue during this pandemic because oftentimes, well, there's all kinds of clauses and they're not always all labeled force major, but the whole idea of what excuses you from contract performance, it differs by contract. And sometimes it may include a epidemic or pandemic provision and more often, apparently, it does not might relate to government orders and the like, one of, I think probably from a business standpoint, maybe the first action isn't to litigate or say, I'm not gonna do this, but the counseling has been to reach out to the other side and try to work out a business solution because even if performance can't be done now, maybe there's a reason to continue the business relation in another way in the future. Hopefully when we all emerge from the other side of this pandemic. Yeah, that's very profound because what that means is that business relationships will change. Business entities will change the way they form up and the way they connect and the way they act as hubs or not hubs in a given enterprise. It's very interesting. You know, I don't know the exact circumstance, but I remember your firm got to certify compliance with some rules that had been promulgated by the state in connection with the inspection of condo properties, this is years ago and you may be too young to remember this, but it seems to me it's like a lead's inspection. So if I come to your place of business and I inspect your place of business, then I look at the partitions, I look at the policies, I look at the, I don't know the air conditioning, I look at the sick leave arrangements, the insurance arrangements, all that stuff and I certify you, I take a look at what you're doing and I say you qualify, we give you three stars or four stars or five stars as a compliant organization. And so when people are thinking about working with you when contractors are thinking about contracting with you, suppliers, partners, what have you, they know that you have five stars and you're relatively, not guaranteed, but relatively safe. What do you think about that for a business idea going forward? Well, I think that that's a very interesting and probably potentially useful business idea. And I think it goes to the point that we're probably gonna see a lot of different new types of business models and service models coming out of this pandemic. For instance, just disaster planning is gonna take a whole new meaning because now we've seen that disasters really can happen and can have a profound effect. And we're seeing that, for instance, the gig economy, there's a lot more attention gonna be paid to the Uber style or the Lyft style of service where you need people to provide services to you door to door, business to business, this whole certification, I have a feeling the companies who got in there and figured out how they should be doing deep cleaning. For instance, in a lodging and accommodation situation, they're gonna be getting more business Costco, certainly. They're certainly doing quite well in this economy. And yeah, businesses like that, I think some of us lawyers have been very busy too, just giving advice on just how to navigate this whole uncertain arena. Yeah, and one of the things, of course, everybody talks about the change in the workplace to allow working at home because we have all learned so much about Zoom. Look at that beautiful background you have. I mean, a lot of painting. Gotta give a pitch to Doug Young. Okay, I had one fellow yesterday, he went out and bought a green screen for his house. So this is happening all over the place and they wanna be part of the new model about talking comfortably on Zoom or other Cisco, WebDirect, whatever it is, WebEx. So the question is, where is that gonna fit in the workplace going forward? Not everybody can effectively work at home. Some people, there has to be a division of dichotomy between those that can and want to and are equally efficient that way and those who really have to be physically present. How do you see that unfolding in the workplace and the way the workplace is organized, the legal structure around it? Well, I think that for one thing, businesses are gonna need to be more nimble and attend to their particular situation. I was just making some notes this early on. I took some notes at the very beginning of this pandemic on what employer should be doing which is to calibrate responses and respond appropriately, achieve balance. Would this health crisis become an economic crisis? It certainly has. But I think that's still to sort of be resilient and maybe be able to pivot in this new environment means a lot more kind of looking, really taking a good look at how things work. And it might mean that from the future on, we may indeed have more remote or flexible working arrangements. And each business is gonna have to decide how it can best function between remote and in-office and a safe in-office environment. And then there's that whole issue too of how are you gonna manage a remote workforce and how to effectively manage that? That's another thing I have to give our firm kudos to because we've had a lot of phone calls and virtual conferences. And sometimes we say, well, another one, but actually that communication is really important when we have a remote workforce to be able to see each other even virtually is a way of maintaining and keeping employees engaged. So I think we're all gonna be having to figure out new ways to engage our employees and with colleagues and to manage a very different work environment. Yeah, and memorialize it. I mean, it's a little scary to think that if anybody wants to record a Zoom call, a Zoom conference, they can do that. And that is forever. And so if you wondered whether it was on the record before, now you know it's on the record now. The other thing, the last thing I wanted to mention is that we talk about everybody working together. We're all in this together. Well, it isn't only the employee at home or in the office, as the case may be, in a new environment, in a new paradigm. It's the employer, of course. Legally, the employer has a greater responsibility and accountability to the public and to employees and gig employees included. And so then you get, well, wait a minute, this is going back to, I guess, the 80s, maybe, or the early 90s when mainland companies and Hawaii companies, too, decided that they could do more with fewer people, that they didn't need 10,000 square feet of space in a downtown office building. They could get along with 2,000 square feet of space in a downtown office building. And as one of our guests not too long ago pointed out, well, this is gonna happen again, because if I decide that some of my employees, my staff can be at home and don't have to come in at all, I don't want them in and all, so I need less square footage. So the next time that lease gets a chance to be reopened, okay, they're gonna say to the landlord who's got hundreds of millions invested in this big property, they're gonna say, we don't need all this space. We're a very good company making money and doing the right thing, but we need maybe a quarter of the space we used to need. Somebody is gonna be under big pressure. This is one of those elements, I think, in the reopening that we have yet to see play out, but there will be a change in what do you wanna call it, investment in space, don't you think? And there'll be legal friction about that, don't you think? Yeah, oh, I think you've hit it on the head, Jay. I think that probably there are gonna be a lot of companies and firms and organizations looking at their space requirements in light of what we've all been through. And that gets into the whole area of, okay, then, right, how do you revisit contracts or renegotiate? I think the next area we're gonna see too is just commercial real estate and landlord attendant relations and how those are all gonna be worked out as everybody figures out what the new business is gonna look like. Exciting, but time for innovation. Now, you gave a talk to the Bar Association a few weeks ago, which was well-received and well-appreciated, and then you made an outline that went on for quite some time in preparation for this discussion. And I'm sure we have not covered it all, but I wanna give you one last minute, Louise, to say what you'd like to leave with people, what we might have missed and what you would like them to think about going forward in terms of the new workplace and how the law of COVID comes to the law of the workplace. Yeah, thanks, Jay, parting thoughts. Well, to me, the new bywords are that is not real, only not talking about reopening, but let's really rethink how we do business and what revitalization and sustainability is gonna look like. We've seen that in the Sunday article about transforming tourism. Let's rethink how that's gonna look and let's try to be better about it. I think I had sent you a nice little YouTube piece that was on the news the other day called The Realization. It was a lovely piece about how this pandemic was giving us an opportunity to kind of do things better. So I hope that we use the next or define the next new normal in a way that we do things better and we don't mess things up. How's that? Okay, can we check back with you from time to time to find out how it's going? Yeah, I think we should check back in and see how it's going and calibrate and make sure that we are on the right path. All right, Louise, thank you so much. Thanks for coming down. Really appreciate it. Thank you. Yeah, take care. Wash your hands. Yes.