OPEN TRANSCRIPT

00:00
tarter territory again it's probably
00:01
gonna be new laws changing and you need
00:03
to make sure your businesses are are
00:06
evolving if you believe we can change
00:08
the narrative if you believe we can
00:09
change our communities if you believe we
00:12
can change the outcomes and we can
00:14
change the world
00:14
robbery to me welcome to disruption now
00:19
welcome to disruption now I'm your host
00:21
a moderator Rob Richardson I'm two in a
00:24
row Winona and we have a special guest
00:26
with us Michael Elkins who is also a
00:28
podcaster so we always love to do stuff
00:31
with the fellow podcast community his
00:33
podcast is Game seven it's a podcast
00:35
about sports business and lifestyle and
00:38
good to have you on how you doing I'm
00:41
doing great thanks for having me
00:42
thanks for coming on so when you're not
00:45
doing podcast and your and your and your
00:47
real and your real version of your of
00:49
your job that actually pays the bills
00:51
you are a labor attorney representing
00:53
both employees and employers mostly
00:55
employers but you do both so I think you
00:57
know we want to talk to you and put in a
01:00
specific detail about this current
01:02
moment where a lot of people are
01:03
uncertain about their employment
01:06
employers are uncertain about how long
01:08
they're going to be able to keep folks
01:10
on the payroll we have businesses go
01:12
from a hundred to zero just like that in
01:15
the week something that no one's ever
01:17
experienced no one's ever gone through
01:19
so we are we're living and experiencing
01:22
history as we speak because unless any
01:25
of us were around in nineteen eighteen
01:27
we have nothing to fall back on and so
01:29
we are all learning in this moment and
01:31
people are worried and concerned people
01:33
are employers are concerned about
01:34
whether they're going to be able to move
01:36
forward whether they can keep their
01:37
employees employees are obviously
01:38
worried about their jobs and so it's a
01:40
lot of uncertainty right now and this
01:42
Korona craziness as I'm sure you have
01:44
I'm sure all of you who listen to our
01:46
we're out but Michael as a labor and
01:48
employment attorney I'm sure you're
01:50
getting a lot of this so what is it
01:52
let's just let's just step back and
01:54
let's just go here from broad scope
01:57
scope and let's start on the employer
01:58
side can you start with the employer
02:01
about how not to go about letting go or
02:04
firing people because I think employers
02:05
get this wrong pretty often and it's
02:08
probably why you have a job but at least
02:11
you could give some folks of advice
02:13
they're trying to figure out it might
02:15
not be firing it might just you just
02:16
can't maintain it but there might be
02:18
things you need to be aware and
02:20
cognizant of before you pull that
02:22
trigger do you think of some general
02:24
advice and if you can't pull a
02:25
particular story when you've seen it
02:27
done wrong well that's um that's a great
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question especially in in this time
02:32
because of you know obviously with COBIT
02:34
19 you know what what happened from a
02:37
labor and employment perspective
02:38
initially was it was a triage I mean
02:42
certainly not the same as the emergency
02:44
rooms and the doctors but from a legal
02:45
perspective the employment lawyers were
02:48
front and center especially with
02:49
employers because like as you correctly
02:51
noted businesses went from zero from a
02:54
hundred to zero within a day including
02:56
some of my clients and so the first
02:58
thing that happened was a scramble to
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make sure that if employers you know
03:04
with a hundred employees 200 employees
03:06
were having mass layoffs that they were
03:09
following the rules of what's called the
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WARN Act W a RN E which is a federal law
03:15
that basically governs what to do in a
03:18
mass layoff situation if it's at one
03:20
particular plant or shop and you don't
03:24
really get a lot of warn act stuff
03:25
unless a client's going out of business
03:27
and it's you know it's rare that you
03:30
have Warren Act issues come up like that
03:33
like immediately so that was the first
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huge issue was good board like there's
03:38
all these layoffs happening so the first
03:41
point would be if you're a big employer
03:43
and you're laying off a lot of people
03:44
you need to make sure that you if you're
03:46
not if you don't know it that you're
03:48
covered by the Warren Act find out yes
03:50
or no and if you're covered make sure
03:52
you're following those rules the the
03:54
second big issue that came up was pretty
03:58
much immediately that maybe two weeks in
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we we knew that Congress was gonna enact
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the family-first coronavirus response
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act which was the first big law came
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before the cares Act that law was unique
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because what it did was it did two major
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things for employers it had two
04:18
provisions the first was the emergency
04:22
paid sick leave Act which was part of
04:25
that law and the second was an amendment
04:27
to the Family Medical Leave Act also
04:30
providing for paid leave now that was
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huge and I when I say huge I mean in the
04:35
employment world this was big because
04:37
under federal law before the corona
04:41
bought this this act before kovat and
04:43
his new laws there was no federal paid
04:45
sick leave
04:46
no well states had their own provisions
04:49
but generally speaking it wasn't there
04:53
was no federal law there was the FMLA
04:54
the Family Medical Leave Act but that's
04:56
unpaid leave right hey so this was huge
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and employment where's like myself were
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on the front lines with this we we're
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literally in the middle of the night I
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know because I was corresponding with
05:09
other defense lawyers reading the bill
05:12
as it was coming out on Congress gov and
05:15
then waking up in the morning to read
05:17
the changes so that whenever this thing
05:19
was enacted we could get on the front
05:22
lines and tell our clients what they
05:23
needed to do and they didn't need to do
05:25
so when the law was enacted there was
05:27
probably if I'm remembering right I
05:30
could be wrong there was certainly at
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least a week or two lag time between the
05:34
when the President signed the law and
05:36
when it took effect it took effect April
05:38
1st so it was again triage getting
05:42
everyone up to speed on what in the heck
05:44
the paid sick leave laws required and so
05:48
from a high level you know thousand
05:50
thirty thousand foot perspective to give
05:53
an answer to your question I know this
05:54
was kind of long employers who are going
05:58
to be laying off or firing need to be
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aware if any employee has invoked rights
06:05
under the emergency paid sick leave act
06:07
or the amendments to the Family Medical
06:09
Leave Act and in addition so there's two
06:12
different laws that were passed it is so
06:15
talked about like if you can't go
06:17
through a quick scenario because we want
06:19
to be helpful this can apply to this
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applies to big and small alike is it
06:23
employers so it applies to across the
06:26
board not across the board but here's
06:28
what was unique about the law and you
06:29
asked a really great question normally
06:31
employment laws start with okay it
06:33
applies to employers of say 10 or 15 or
06:36
more the Family Medical Leave Act
06:38
regular Family Medical Leave Act applies
06:40
to employers with 50
06:41
or more but most laws employment wise
06:44
say X number of poi employees or more
06:48
these laws apply to employers with 500
06:51
employees or less yellow reaction is the
06:56
reaction of the employment law community
06:58
and all of these businesses that have
07:00
three four or five ten they were like
07:04
what what are you talking about and it
07:06
was crazy um so so it's a really broad
07:10
law a lot broader than the FMLA and it
07:13
applies across the board it sounds like
07:16
almost so almost like maybe not across
07:18
the board but it applies to most
07:19
businesses you can talk about some of
07:20
the exceptions but it sounds like you
07:22
need to need to look into this as you
07:24
know it's just this doesn't just apply
07:25
to multinational corporations or huge
07:27
organizations actually it doesn't apply
07:30
to your multinational actually you're
07:32
right that's wait that's that's risky
07:33
right yeah I just thought about that cuz
07:34
it says 500 or less you just is now now
07:37
now really it doesn't apply to them
07:40
correct it doesn't apply to have any
07:42
employer with 500 or more it doesn't
07:45
apply to health care providers and that
07:47
definition is very expansive and we can
07:49
talk about that it doesn't apply to
07:51
emergency responders and that definition
07:54
is also expansive so what happened was
07:57
when the law came out most people
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including employment lawyers like myself
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had the look on their face like you just
08:04
had like what what wait what's going on
08:06
here what does this mean there were a
08:07
lot of things in the law that we just
08:10
didn't know because in addition to
08:12
living through a pandemic we're in brave
08:15
new a brave new world legally normally
08:18
when a client approached me about a law
08:19
I say well let me look at the cases and
08:21
object say and I can give you a
08:23
background on what problem your your
08:25
situation has probably been dealt with
08:27
before
08:27
there's no cases there's no
08:29
interpretation this is literally a piece
08:32
of legislation and we have to figure it
08:35
out so the Department of Labor and the
08:36
EEOC and as a defense lawyer I tend to
08:40
not give them a lot of credit but I give
08:42
them a lot of credit in this day we're
08:45
issuing interpretations and guidelines
08:47
for these laws almost on an hourly basis
08:50
I mean I think there was one point where
08:51
I posted like 15 LinkedIn updates
08:55
over like a three-day period and I was
08:57
doing webinars so ultimately what
09:00
happened was the dol issued 124 pages of
09:03
rules on how to govern how the law works
09:05
and last I checked 89 questions and
09:08
answers about little situations within
09:11
the law for example we didn't know what
09:13
I'll give you one of my municipal
09:15
clients said well it says emergency
09:17
responders it doesn't apply to emergency
09:19
responders we understand that that's
09:21
clearly police and fire understood clerk
09:25
n11 call centers no problem but what
09:28
about Public Works what about the people
09:30
to keep the water on are they emergency
09:32
responders I said I don't know that's a
09:35
really good question and sure enough
09:36
about two hours later as as I'm
09:39
researching it the dol answered it and
09:41
said look it applies to Public Works and
09:44
a whole bunch of other people so we
09:46
really had a lot it was a lot to deal
09:49
with
09:49
sounds like we still have a lot to deal
09:50
with we still don't know a lot of stuff
09:52
so this is a your small employer it
09:55
applies mostly to them I won't get into
09:57
why they won't make it apply to larger
09:59
corporations but smaller ones that seems
10:01
backwards to me but neither here nor
10:03
there I didn't write the law so we can't
10:05
do anything about that bipartisan
10:08
legislation it wasn't that was not I'm
10:10
agreeing with you it was it was sound
10:12
bipartisanly stupid but maybe I'm
10:14
missing something but that says everyone
10:17
was surprised I mean it was interesting
10:19
because there was we were following it
10:21
the employment lawyers' following
10:22
everything in the House and the Senate
10:23
and you know went from the house to the
10:25
Senate and there was some they were
10:26
haggling they weren't haggling over that
10:28
they were not haggling over the 500
10:31
employ employee limit I don't know the
10:34
reason why it would it was 500 or less
10:37
yeah yeah that's a lot of people that's
10:40
a lot of people it applies a lot of
10:41
businesses this applies to so what
10:43
you're saying is if they want to unpack
10:44
this a little bit yeah you you you you
10:47
have to be careful if someone
10:48
particularly is sick and they have the
10:51
coronavirus in particular or is it
10:53
others just Corona right like what how's
10:55
this work great question and here's how
10:58
it works so as expansive as the law
11:00
seemed in encompassing all these
11:03
businesses that ordinarily didn't have
11:05
sick leave when the DOL finally issued
11:07
the regs and the EEOC issued some
11:09
rotation it's still pretty limited first
11:12
of all under the emergency paid sick
11:14
leave act the sick leave is capped at 80
11:17
hours so two weeks and then there's also
11:19
a cap on amount I think it's five
11:22
hundred and eleven dollars per day under
11:24
the Family Medical Leave Act it's no pay
11:28
for the first ten days but what's
11:30
interesting is you could if you're an
11:33
employee you could take sick leave under
11:35
the FMLA portion your first ten days
11:38
would not be paid but they would be paid
11:40
under the paid sick leave act version of
11:43
the law so there's all these little
11:44
quirks but ultimately there are under
11:49
the emergency paid sick leave Act which
11:51
is its own law there are only six
11:52
qualifying reasons and they basically
11:55
relate to Kovac but they're very very
11:57
specific you know you if you're subject
11:59
to a quarantine order and you can't work
12:02
whether it's at home or at the job site
12:06
so if you're subject to a quarantine
12:08
order but you can telework no paid sick
12:11
leave if you have been told by a health
12:14
care provider you have to self
12:16
quarantine right because either you've
12:18
been exposed to Kovac or you have kovat
12:21
that's fine but if you can telework no
12:24
paid sick leave I mean it's good we
12:26
could spend you know five hours going
12:28
through everything the point is it's
12:30
very specific as to who qualifies and
12:33
then what happens in certain situations
12:37
gets a little murky by way of example
12:39
there's an issue of intermittent leave
12:41
the problem that came up almost from the
12:44
beginning was I have an employee who is
12:46
teleworking they have been diagnosed
12:49
with Kovac but they can work five hours
12:53
a day but not eight do they get sick
12:56
leave then the answer became well it
13:00
depends the DLL said look yeah what if
13:03
you get so sick you can't work even
13:04
telework they say you still can't do it
13:06
I don't understand well if you if you
13:08
just absolutely can't work and you have
13:10
kovat then you can get sick leave okay
13:13
but if you can let's say you have kovat
13:16
but you can work from home but only
13:19
intermittently so if you normally worked
13:21
eight hours a day
13:23
let's say you could only work for
13:24
because you needed time to rest and you
13:26
had a fever and all that
13:27
the answer was interesting because we
13:30
never dealt with that before because
13:31
ordinary ordinary leave intermittence
13:34
fine but because this is paid it was a
13:35
brave new world and the Department of
13:37
Labor said look the lien for telework
13:40
only if the employer and employee agree
13:43
so if the employer says we don't agree
13:47
to that
13:47
no intermittent leave for telework so
13:51
there's some interesting rules that came
13:54
down that had everybody sort of
13:58
scrambling it's so it's a lot it really
14:03
is a lot for employers there were notice
14:05
requirements from the Department of
14:06
Labor you know you have to provide the
14:08
employees a poster that informs them of
14:11
their rights under these laws and the
14:14
DOL was smart and said look if you have
14:16
people teleworking then you got to email
14:18
them the poster or post it on your
14:20
website or post it on your intra mail
14:22
but you got to let them know and so you
14:25
know if employers are dealing with
14:28
potentially eliminating employees or are
14:30
hearing from employees that they might
14:32
be sick or maybe exposed there are
14:34
obligations on them here that bring
14:37
these laws it's a lot yeah that's a
14:39
whole lot I mean that's whoo well it's a
14:42
lot to really absorb in and now small
14:45
businesses should definitely is there
14:46
any particular resources we'll put them
14:48
on the website any places that they can
14:50
get your firm obviously yeah I mean I
14:54
guess they can go to the Department of
14:55
Labor to look up the regs to I just
14:58
don't know about it I mean but this is
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something that I think people need to be
15:01
really really really cognizant of look
15:04
I'm a I don't do as much labor attorney
15:06
law but I've done it for a while and I
15:08
didn't know hardly any of this stuff and
15:09
it's and it's something right I mean
15:11
because I don't I don't do as much day
15:13
to day I've done it before
15:14
I'm not sitting up like you looking at
15:16
regs anymore at that's not something
15:18
that that gets my rocks off sorry this
15:20
doesn't excite me today so like go
15:23
through a moment so that's that that's
15:25
new information people need to know but
15:27
let's just take a little global scope
15:29
about maybe give an example of an
15:31
employee that you've you've dealt with
15:34
that might have had a case but they
15:36
found
15:36
a way to make the case harder on
15:39
themselves you can kind of go through a
15:40
fact pattern of that you might have seen
15:43
so you can advise people out there that
15:44
are right now trying to assert their
15:46
rights even if even if it's are these
15:48
new laws or it's under prior laws how do
15:51
you advise people to approach a
15:53
situation when they feel as if their
15:56
employer might be gunning after them
15:59
unfairly great question and actually the
16:03
DOL addresses this in the regs something
16:06
they I don't think that they've done
16:07
before but they make really clear
16:09
whether it's intermittent leave and
16:12
agreeing on that or figuring out how
16:14
much leave the employee needs obviously
16:16
up to the maximum of the two weeks
16:18
they're advising employers and employees
16:21
to work together to continue to
16:23
communicate and so I personally haven't
16:26
had a situation with an employee where
16:28
it was made difficult on them but I have
16:31
had a couple situations where employers
16:33
where we were dealing with difficult
16:36
employees who yeah you know that's
16:39
always the case right you got an
16:40
employee like you know you want you've
16:42
been wanting to get rid of them then all
16:44
of a sudden you know boom something like
16:47
that happens and Korona they get it you
16:50
know what do you do because I'm sure
16:51
that situations real well there's been a
16:53
couple fun oh I don't know if they're
16:55
fun but funny examples I represent and
16:58
uh we'll say there are a construction
17:00
company and they have a big huge outdoor
17:04
work area and some of their day laborers
17:08
decided they were gonna try to take some
17:10
kovat 19 time off so they called and
17:13
said we were exposed to coronavirus
17:15
we're not coming in to work and the
17:17
client calls means there's what do we do
17:19
I said you tell them to get their asses
17:20
into work that's that's not enough to
17:22
trigger the leave they need to the law
17:25
is very clear they need to be advised by
17:28
a health care provider that they are to
17:30
self quarantine so mere fear and I was I
17:34
spoke at CNN in an article to CNN about
17:37
this Mir fear of kovat 19 is not enough
17:40
to stay home so they told them you need
17:42
to come to work so they called back two
17:44
hours later and said well we called the
17:46
Department of Health and we spoke to a
17:48
nurse on the
17:49
phone and that nurse told us we should
17:52
self quarantine so the client calls me
17:56
and says is that a health care provider
17:58
I was like I don't I don't think so
18:02
but that's a new points for creativity
18:05
man they were on it points for
18:07
creativity and then the legal issue
18:09
though became you know virtual medicine
18:11
right because I had another client with
18:13
employees in New York and that client
18:16
had an employee that said look I had a
18:19
virtual doctor session here's the name
18:22
of the doctor the actual doctor and they
18:24
told me I have enough symptoms that I
18:26
have to self quarantine and we said no
18:28
problem a doctor is a clearly health
18:31
care provider right he granted them the
18:33
leave and then we did an agreement that
18:35
they could take intermittently because
18:36
they were teleworking and you know so I
18:38
think this is an important point that I
18:39
want to make sure people understand you
18:40
know if you're an employee you know for
18:43
one it's not enough for you to say I
18:45
feel sick I feel like I could have
18:47
Corona somebody around me at Corona I
18:49
want off that's not enough it sounds
18:52
like you need somebody has to give you a
18:53
diagnosis to say or not diagnosis I
18:56
guess you have it's not clear I don't
18:57
know what it sound like you gotta get
18:58
somebody to give you notice a doctor's
19:00
note or something to say you got it like
19:02
to be a note you need to this is what's
19:04
interesting actually
19:05
yet the employee needs to put in writing
19:07
the name the dates of the leave they
19:09
want on and the health care provider
19:11
that told them either that they have
19:13
coded or that they're at being advised
19:15
to self quarantine so you don't even
19:18
need the note you just need to put that
19:20
stuff in writing but the problem we had
19:22
with my my construction company was that
19:26
is it was the quote nurse from the
19:30
Department of Health considered a health
19:33
care provider and we concluded no I said
19:36
you know what having read the regs
19:39
they're not skewing in favor of
19:42
employees they're kind of I read the
19:44
regs is sort of skewing a little bit in
19:46
favor of employers I think the DOL was
19:48
trying to strike a balance now this is
19:50
my thought they don't say this but right
19:51
I mean we need to protect employees but
19:54
we need to protect against frankly BS
19:57
people trying to take time off yeah
20:00
that's interesting I mean I think people
20:01
need to know so it sounds like the
20:02
safest way to
20:03
go is a is a doctor giving you
20:06
assessment and you said what what
20:07
particulars you have to go through you
20:08
have to have it what has to happen you
20:10
just need to put in writing to your
20:12
employer your name obviously the the
20:14
dates of the leave that you want and if
20:17
you're taking leave because of exposure
20:19
to Cove it or because you've been
20:21
diagnosed with Cove it you have to
20:22
provide the name of the health care
20:23
provider that either diagnosed you or
20:25
advised you to self quarantine if that's
20:27
the one of the reasons that you're
20:29
taking they're triggering reasons like
20:31
if you have to take care of a child or
20:33
an individual that that's a different
20:36
story
20:36
right okay so with my construction
20:38
client once we told them no the the
20:42
nurse on the phone from the Department
20:44
of Health in Florida doesn't count
20:46
then they went to an urgent care clinic
20:48
and probably counts yeah and then I was
20:51
like okay they did it so we spent the
20:52
day with them look kind of leading them
20:55
down the path I guess right fun story
20:58
about wow I mean that's just it's it's a
21:00
brave new world because look somebody
21:02
people are gonna try to abuse it and and
21:05
and I that's probably the case but I
21:07
also think employees need to be
21:09
protected in trying to trying to get
21:11
through the balance is really really
21:12
tough in well I've got one for you on
21:15
the employee side okay I want to hear
21:16
that one friend of mine who's in the
21:19
medical sales business so she's not a
21:22
doctor she's not she's just a sales
21:24
person but she's selling a medical
21:25
device she was diagnosed with kovat so
21:29
she calls me and she said what do I do
21:31
and I said tell your employer like tell
21:34
HR and they told her they allowed her to
21:37
take time off but they weren't gonna pay
21:39
or they were gonna force her to use PT
21:41
oh yeah the emergency paid sick leave
21:43
act you can't force the employee to use
21:45
pto or any kind of a crude time if they
21:48
qualify for the leave you have to give
21:50
them the leave you can't say okay we're
21:52
gonna give you the leave but it's coming
21:53
out of your bank no you can do that
21:55
under regular FMLA which was another
21:57
change right she said to me I'm like
22:00
well that's part of my French [ __ ]
22:03
they need to pay you until I did a
22:06
little bit of digging now she works for
22:09
a health care provider okay their
22:12
provider
22:13
she's a sales person I was wrong the
22:17
the DOL regs basically are very
22:19
expansive on what constitutes a health
22:22
care provider so it was concluded that
22:24
because she's with a health can force
22:26
health care providers to use their time
22:27
that seems absurd to me but but yes they
22:30
can and it turned out her okay let's -
22:33
just note the audience this is why you
22:35
need a union this is why people need
22:37
unions there needs to be I know
22:39
employers don't love this but there
22:40
needs to be a balance go ahead that's my
22:41
point of view you know we might come at
22:43
that differently me being a labor
22:45
attorney but that's okay we could have a
22:46
little debate go ahead Mike for a lawyer
22:48
especially representing municipalities
22:49
against unions in case any of my
22:51
municipality clients are listening I do
22:54
not agree with that that's okay he's not
22:57
supposed to but employees do you want a
23:00
voice because look you're not gonna say
23:03
this but let me say this there's always
23:04
going to be the balance towards
23:07
organized capital and this is I think I
23:10
think Kovac 19 this is purely my opinion
23:13
and that's what it is it's showing why
23:16
we have why we need protections that
23:18
we've taken for granted or are not as
23:20
strong as they used to be I think any
23:22
crisis exposes institutional weakness is
23:24
one what I think in this country to no
23:27
surprise to anybody who knows me or who
23:29
follows me is the fact that we have weak
23:31
labor laws and I appreciate the balance
23:34
that business needs I have a small
23:36
business owner myself but I also think
23:37
we can balance that and still balance
23:39
the needs of workers and I found unless
23:41
unless people want to organize and have
23:44
their interests represented collectively
23:46
you know you'll get the balance that
23:47
Mike is talking about not that employers
23:50
are cruel or anything is just how the
23:52
how it works but that's my opinion you
23:55
know and I know and I'm not saying
23:56
unions are perfect because they're not I
23:58
just think that you know your example to
24:02
me shows why you know why why people
24:07
need those protections to say me that's
24:08
a clear example when you mentioned the
24:10
employee in the sales that you know
24:12
they're gonna make her use her her time
24:14
when she was exposed at her job makes no
24:17
sense to me
24:18
wasn't exposed at her job no no she was
24:20
not no she just got diagnosed with it it
24:23
was okay okay but nurses but give you an
24:25
example like so I'll give you an example
24:26
that I know I have a friend who daughter
24:29
is a nurse
24:30
and she was exposed to Coba 19 and
24:33
forced to use her vacation time during
24:36
corn fart forced and quarantine was of
24:38
course you had to because you can't be
24:40
because she was exposed to people while
24:42
she was working as a nurse helping
24:45
someone who had koban 19 because of the
24:47
exposure she has to be quarantined
24:49
because of the quarantine she can't work
24:52
with people and because of that they
24:54
want her to use her vacation time which
24:57
i think is UPS it's just crazy
24:59
you know people talk about supporting
25:01
first responders and then they're the
25:04
ones exposing themselves and they have
25:05
to use their vacation time another
25:07
example I'll give you is you know the
25:09
Jeff Bezos of the world which you know
25:11
he's got Whole Foods and he's making
25:14
employees trade their time in for sick
25:16
time with each other I'm like dude
25:18
you're the richest man on the earth like
25:20
why don't you just pay them I mean these
25:23
are the things that you know frustrate
25:24
me when I look at the system we're at a
25:26
moment where we're in crisis mode and
25:28
people that have made a lot should give
25:31
a little more that's how I that's how
25:32
that's my fundamental belief and I know
25:35
people have different views but that's
25:37
what I see kind of frustrates me when
25:38
you bring up the example you did is not
25:40
exactly the same but I think there are
25:41
fact patterns that are worse than hers
25:43
so the ball part and the other issue we
25:45
discovered with her was it wouldn't
25:48
matter what she did because her employer
25:49
has over 500 employees yeah that's what
25:52
and that's a and just tell Congress
25:55
everybody else this goes to Democrats
25:56
and Republicans I want to just to give a
25:57
shout out to how incredibly [ __ ]
26:00
stupid that was okay excuse me my
26:02
language no don't excuse me it was
26:03
stupid it was real dumb like it should
26:06
have gone the opposite direction if you
26:07
were going to go like ah unless Mike
26:09
tell me something here help me out here
26:11
on that but go ahead yeah what am I
26:13
missing here the fact that they made it
26:15
apply to smaller companies but not
26:18
larger ones like am i off on something
26:20
am I just what what what's going on no I
26:23
think there was a lot of surprise but
26:25
here's what I think they meant to do
26:26
what their thought process was this is
26:28
Michael Elkins opinion all right just
26:30
just remember this before you finish
26:31
intentions can pave the way to hell but
26:34
go ahead go ahead
26:36
[Laughter]
26:38
the thought process was that an employer
26:41
of 500 or more likely has already set up
26:46
compensation system with sick time and
26:48
vacation so that if you're out sick you
26:52
are able to get paid because but a
26:54
smaller business most of them don't have
26:56
that and most of them are not required
26:59
there's no paid sick leave in most
27:01
places so they said look we're gonna
27:03
cover the mom-and-pop shop and say look
27:06
you got to pay your people if they're
27:08
sick ordinarily you don't have to but
27:10
you're gonna have to in this situation
27:12
and by the way it's not like they said
27:15
you have to pay them for three months
27:17
it's right it's a it's not a big it's
27:20
not big but it's big in the fact that it
27:23
we in this country again now really
27:25
behind when it comes to the family
27:26
sickly but think we're the only
27:27
industrialized nation that doesn't have
27:30
significant sick leave or any at this
27:32
point until until this point am I wrong
27:34
on that I don't know about the rest of
27:36
the world but I think I know for sure I
27:38
mean federally I'll talk about the rest
27:40
of the world Western industrialized
27:42
nations and - China I'm not including
27:44
China answer democracy so I'm sure China
27:46
decided just that's what happens in you
27:49
either get you to get off the job or
27:51
they the government takes you out so I'm
27:52
not including China and there are some
27:55
states that have paid sick leave
27:56
Florida's not one of them so there's no
27:58
paid sick leave requirement in Florida
27:59
there's no mature if requirement you
28:02
know I often times consult with clients
28:04
and they say well so and so is gonna
28:06
have a baby don't I have to pay them and
28:07
my answer is nope no you know I mean
28:11
it's true it's that's that's how the law
28:12
works like you could but you're not
28:14
required to under there and and this law
28:17
is just there's so many enzyme if you
28:19
want to keep it let me just give them
28:20
advice if they're good employees you
28:21
want to keep women around at your firm
28:23
maybe you should pay them I don't know
28:24
so that's another cost that's another
28:26
that's what I tell clients you don't
28:28
have to but you need to figure out the
28:30
cost-benefit analysis of not paying
28:32
employees if you think they're good
28:34
employees and so that's what I think -
28:36
you've struck the chord which I often
28:37
talk about with my clients and I talk
28:39
about with you know law students
28:41
interested in labor and employment law
28:42
which is it's not just the law in this
28:44
field its cultural so you have oh your
28:47
clients corporate culture and understand
28:49
and be able to talk to them about
28:51
look here's what you could do under the
28:52
law which may seem draconian and then
28:56
what how does that gonna fit with what
28:58
you're trying to accomplish from a day
28:59
to day workplace perspective so you're
29:01
right
29:02
when whenever I'm giving advice we're
29:04
always taking into account the practical
29:05
concerns and and most of my clients
29:07
created their own sort of maternity
29:09
leave policies and sick leave policies
29:11
but this law changed the ballgame now it
29:15
expires December 31st 2020 hopefully
29:18
we're passed coded I'll be very curious
29:20
to see what happens down the road if
29:22
there is any legislation December 30th
29:28
or 31st 2020 both the emergency at the
29:31
end of this year essentially correct
29:32
that seems stupid to me - okay it's like
29:35
I know only for kovat these are not like
29:38
no I get it I get it I get it
29:40
coded reasons no it makes sense and to
29:43
Nando you had a question very quickly
29:45
though I just wanna make sure I have
29:46
clarification on what you think you're
29:47
saying that they did five hundred and
29:50
under because they thought the larger
29:52
corporations already had paid sick leave
29:53
in their policies that's what my thought
29:56
process now well that makes them
29:58
incredible naive incredibly naive then
29:59
okay today you next um this this in my
30:03
opinion on that just to finish that that
30:05
that thought bomb here is um I would
30:09
just say that I'm gonna assume that
30:11
companies that have over 500 employees
30:13
have a much stronger lobbying arms in
30:18
they're able to twist arms and get
30:20
things ready that's a little cynical
30:22
Tunde isn't it yeah so now about a very
30:25
interesting conversation but I've been
30:27
quiet here on purpose because definitely
30:29
you guys are the lawyers on this one and
30:31
this is great information Mike I think
30:33
you know in terms of my practice on the
30:36
wealth management side it's interesting
30:37
cuz I see both right I have I have
30:39
clients that own businesses and some
30:42
that do have several hundred employees
30:44
so they are dealing with these type of
30:46
these type of issues and then I've got
30:49
employees that are partners at law firms
30:51
or or you know you know junior
30:56
executives or middle management at large
30:58
corporation so I've heard from both
31:01
sides
31:03
frustrations concerns and you speak to
31:06
it very well Mike in it and it is a good
31:08
point not only about as a you know
31:11
employees you know you know should take
31:14
a look at unionize knee for moments like
31:17
this that's our thing of course that's
31:18
me but ya know that's that's for you
31:20
know we're disagreements but that's good
31:21
that's good that's Rob's own profession
31:24
well Mike must have note for the record
31:26
he is not for that we made that clear oh
31:28
that's how it is for a guy like me
31:30
that's not the expert on all this stuff
31:32
it's been they're kind of cool watching
31:34
you both here because I feel like all
31:36
right Rob's point is very important for
31:38
a certain part of the labor force which
31:40
is primarily the employees and the
31:42
workers and then obviously the business
31:44
owners are part of the labor force too
31:46
because they own the company and they
31:47
also work there and so you know for the
31:50
most part so with Mike I think the big
31:52
advice I would say that business owners
31:54
is this is why it's important to have
31:55
good at attorneys and that's a little
31:57
equal representation you know don't be
32:00
cheap on accounting and legal
32:03
representation
32:04
I completely agree you want to make sure
32:06
that you have going on as a business
32:08
owner and and also it's about we talked
32:11
about this on another show when we
32:12
talked about Corona and small businesses
32:14
you know that's another cluster of a f
32:17
of a bill too but but but I'll just say
32:20
this very quickly and I'll let you get
32:21
back to your point that we said on that
32:23
show you set that point to day along
32:25
with April you guys go back and look at
32:26
that show that you have to still have
32:28
some fundamentals of the business and
32:30
part of it is having your your paperwork
32:32
together and this means also having good
32:34
attorneys and and knowing and doing
32:36
things and following the process right
32:38
so I think what we can learn from
32:39
Michael through this experience you know
32:41
we're giving him hard time other ways
32:43
because that's just what I do
32:43
but in reality he's a good attorney
32:46
people should think about how how
32:48
they're gonna go about employment in
32:50
this current environment that we're in
32:52
my guess is no matter what happens after
32:54
December we're gonna be in unchartered
32:56
territory again there's probably going
32:58
to be new laws changing and you need to
33:00
make sure your businesses are evolving
33:03
because we're talking about this applies
33:04
to smaller businesses this likely apply
33:06
this applies to a few if you have a few
33:07
employees it applies to you so you need
33:09
to listen you need to be prepared and
33:12
you need to make sure if you're thinking
33:13
about getting rid of an employee or
33:15
having to layoff folks you have to go
33:17
about that the process matters and how
33:19
you do it you can likely you can likely
33:21
still do it and and you know to now go
33:24
back to you then Michael I want you to
33:25
speak to this why process matters and
33:29
you can have a horrible employee that
33:31
you are about to get rid of you have
33:32
every legitimate reason but if you do it
33:35
wrong it can really hurt you and cost
33:37
you a lot more money it's better to
33:39
protect yourself on the front end today
33:41
yeah now I think Mike you bring up some
33:44
some really great points and to me it
33:47
just reminds me as someone that owns a
33:48
business as well you know this is Mike
33:51
is the type of professional that
33:54
deserves his hourly rate because from
33:56
what I heard from you Mike is you ever
33:58
he's not paying us either he's an honest
34:01
plug mad mad not for any any benefit for
34:05
us financially or anything but more
34:06
because you know I think what happens
34:09
with business owners it look like I said
34:10
I've started a company I remember when
34:13
it was scrimping and scraping by and so
34:15
what happens is your mind starts doing
34:17
the math and the scarcity math like I
34:19
only have so much in the bank or only so
34:21
much revenue coming in I can't pay for
34:23
this this or this and that you you start
34:26
building excuses as a business owner or
34:28
why you can't afford sort of things like
34:29
good accounting or good legal help and I
34:31
think you know Mike would what I often
34:34
tell people because I'm in a service
34:36
industry as well so it's it's also like
34:39
what makes why should I hire you over
34:42
the next person that that does what you
34:43
do and I think might you illustrate it
34:45
well for anybody that's paying for
34:47
advisory services whether legal
34:49
financial whatever is what you showed us
34:53
today is that you're a student of what
34:55
you do and like I said you have you if
34:58
you think tank you're looking at you
35:00
you're getting updates from the
35:01
Department of Labor and an EEOC you're
35:04
looking out for this information and to
35:06
me that any business owners should be
35:09
looking at like a squad looking for
35:11
advisors like this that are really
35:12
active and trying to seek all this new
35:14
information that is coming out about the
35:17
specific silo of law or finance whatever
35:19
it is so kudos team in on that you guys
35:23
didn't keep going quick quick question
35:26
let's let's pivot a little bit unless
35:27
Mike you have anything else
35:28
say on that I wanted to pivot to the
35:31
coronavirus and how you're handling this
35:33
moment so you're a big sports person I
35:36
know like me in a way I mean I don't
35:38
think I'm a fanatic but what are you
35:41
doing to make up for this time and
35:43
sports and is it is it is it driving you
35:45
crazy that you can't watch sports and
35:47
how are you really adjusting to this
35:49
moment of things changing in your life
35:51
in that area and really in others you
35:54
know tonday and I were talking about
35:55
this
35:56
I think last Friday night a couple of
36:00
things I mean for me I have been slammed
36:04
and I don't mean that as like a victory
36:06
lap so I want to make sure I'm careful
36:08
how I say that but it has been every day
36:11
basically from 7:00 in the morning till
36:14
8:00 9:00 at night with a little break
36:15
in there to hopefully work out of
36:17
handling all the new issues with kovat
36:20
and and employers and employees and so
36:22
there hasn't been a lot of time to miss
36:25
a whole lot of stuff and you know my
36:29
business my law firm has always been
36:31
built on the premise of being very
36:32
modern yeah
36:34
mobile virtual it's in my marketing so
36:37
when this all happened that was kind of
36:40
business as usual for me like I I think
36:43
but June all this stuff is commonplace
36:44
exactly a quick point on that and I'll
36:46
let you finish this it's funny that you
36:48
know I've seen two extremes people are
36:50
either busier than they're I've never
36:52
been or got more time and I'm on the end
36:54
of busy but it seems to be knowing
36:55
between people aren't like I'm exactly
36:56
where I was before but yeah so right and
36:59
and I definitely watched as you know on
37:01
law 360 we started seeing the the the
37:04
articles coming out about big law
37:06
cutting and having to reduce I mean look
37:09
I've sort of been preaching that for
37:10
years like this office space these phone
37:12
systems all this crap you know just
37:15
don't need it preach brother preach yeah
37:17
I mean it's garbage you know and and
37:19
people not using sort like this is this
37:21
is the time if you were posting on
37:23
social media which I did all the time
37:25
and you know my prior law firm was super
37:27
against I mean that's why you left and
37:30
started your own good for you drop the
37:32
mic you can drop the mic literally now
37:33
I'll let you do it right now if you
37:34
could you can just Virgil my truck yeah
37:38
and so there
37:40
doesn't really been time to miss stuff
37:42
and I was telling tenday this the other
37:43
night you know I do love sports and I
37:45
have a podcast that's dedicated to
37:47
sports the intersection between business
37:49
and sports and I've been very fortunate
37:51
to turn that little show into a sort of
37:54
national show and and very fortunate to
37:56
meet some really cool people in the
37:59
sports world that are actual you know
38:01
decision-makers that sure people I
38:04
haven't I haven't missed the games that
38:07
much not yet anyway the only thing I'll
38:10
say is I I was able to watch the last
38:13
dance on Sunday night the Jordan
38:15
documentary I haven't seen well you see
38:20
you know well spoiler one wins the state
38:23
championship I could tell you that I'll
38:26
spoil that part go ahead and then that
38:28
kind of ignorant fire again first of all
38:30
you gotta watch it it's amazing and that
38:32
sort of got me think you know back to a
38:34
man I do kind of miss the drama in the
38:37
games but I haven't been longing for
38:39
baseball or basketball and I thought I
38:42
would be but but I haven't been now when
38:45
I watched the documentary I was like
38:46
yeah I do miss this stuff I mean look I
38:48
say sports is the only reality TV show
38:51
that matters right it's the greatest I
38:53
think it's the its its soap opera for
38:56
men right generally I know women love it
38:58
too but it's that's we follow everything
39:00
that goes on off the field and who's
39:02
going where and why did Tom Brady leave
39:04
the Patriots and all these things but
39:07
you know I've been pretty comfortable
39:10
with what what life's been like right
39:11
now I'm enjoying being home with my dogs
39:13
I'm enjoying helping my clients and I've
39:16
been doing Kobe dogs are gonna be so
39:18
depressed when things go back to normal
39:19
they wait wait wait what my puppy is
39:23
gonna be I think my lab who's old isn't
39:24
gonna care but my puppy is gonna be like
39:26
wait a minute you're not home all day um
39:28
I've been doing Mike Ovid 19 work for my
39:31
my clients basically for no charge to
39:34
help them out and that's been gratifying
39:37
and they've been appreciated so and
39:38
that's what I want to get on that and
39:40
before our last question to tell people
39:42
why it's so important in this moment I
39:44
mean I'm doing a lot for clients and the
39:46
media into not getting paid much if
39:49
anything but the importance of having an
39:52
intentional relations
39:53
chips and building a relationship and
39:57
how that really pays off in the long run
39:59
people think like okay if I'm not
40:01
getting everything and getting paid at
40:03
this moment then it's not worth my time
40:05
talk about how you built your business
40:06
that way but I think it's important for
40:08
other people that are looking at to step
40:09
out on their own to understand the
40:12
importance and the value of
40:14
relationships as as soon as kovat broke
40:17
and we saw the economic downturn
40:20
happening swiftly I immediately let all
40:24
my clients know whatever kovat questions
40:26
you have bring them to me I'm gonna
40:28
answer all of them thoroughly I'm gonna
40:30
give you all the time I can and I'm not
40:32
charging you for it I'm not gonna charge
40:34
you today and I'm not gonna send you a
40:35
bill down there I'm not even tracking
40:37
the time and the product the thought
40:39
process was this my business was was
40:43
sort of not purposely but it was set up
40:45
too with weather this storm because I
40:47
don't have a lot of overhead right and
40:49
so if we're gonna say we're in this
40:52
together
40:53
then let's act like it and I know my
40:56
clients were super grateful and I was
40:59
happy to do that because it really there
41:02
were some nights where I was on the
41:03
phone with some of my longer-term
41:05
clients that I've had for 10 11 12 years
41:07
some mid-sized business owners that were
41:08
really scared and we were just talking
41:11
through everything that could happen in
41:13
helping and trying to figure out
41:14
solutions and I know they were pleased
41:16
that they could do that and not worry
41:19
about getting a bill and frankly what do
41:21
I care if it's 6 7 8 9 hours of work now
41:24
not gonna send somebody a bill for that
41:26
now look to be honest of course I'm
41:30
building brand loyalty right because let
41:32
but that's how that's how it works
41:33
though right I want people to understand
41:34
brand loyalty comes with it's a
41:36
two-sided conversation is everything
41:38
can't be a direct transaction yes you
41:40
have to make money no one's no one's
41:42
saying no one's saying that but in this
41:44
time those who survive are going to give
41:47
the most value the mode the greatest
41:49
greatest thing you can give right now in
41:51
terms of resources is to give value to
41:53
others that's right as always
41:54
actually that's always true and it's and
41:57
is exacerbated and the point in the
41:59
point is emphasized in the midst of a
42:00
crisis and so I'll tell folks right now
42:02
you want your business to thrive you
42:04
want to be there for the long run
42:06
be there to add value right now as much
42:09
as you can everybody obviously has to
42:11
eat I mean there's a baseline floor to
42:12
this but when it comes to it do
42:14
everything you can to add value and you
42:16
will get it back yeah it's a it's a long
42:18
game and you have to just see it long it
42:21
takes you've been you've been doing this
42:22
for a long time building relationships
42:23
it's why you're able to go on your own
42:25
so I encourage everybody in this moment
42:28
that is panicking panicking is not a
42:30
plan you should go back and build your
42:33
relationships and be intentional about
42:35
that I think that's something folks can
42:37
do right now in this moment of Corona
42:39
final glad you're some no I totally
42:42
agree and I think and it's been
42:44
rewarding to work with my clients that
42:47
I've been with me for a long time and
42:49
even new clients and just to hear what's
42:52
going on help them out and just know
42:54
that you're doing that because you're
42:56
when you say we're in this together
42:58
you're gonna take action to show that
43:01
yeah that's so important it is it's
43:04
important generally but don't tell me
43:06
what you value show me what you do and
43:08
I'll tell you what you value I totally
43:10
agree totally your actions speak your
43:12
values not your words that's right yep
43:15
so that's exactly right
43:17
final point here just you have any funny
43:19
story from this whole quarantine
43:21
experience that you can share with the
43:23
audience that you might hate what - I
43:26
don't know how funny it I thought it was
43:28
funny so my hobby is Olympic
43:30
weightlifting I compete as a 81-kilo
43:33
lifter in the 45 to 49 age group I'm 45
43:38
so I'm closer to that than 49 and my gym
43:42
was fortunate enough they let us
43:44
they let the lifter a lot of people take
43:46
equipment home so I have an Olympic
43:47
weightlifting barbell and a full set of
43:50
kilo plates now those plates bounce
43:52
because you have to drop the weight so
43:54
I've been lifting in my driveway and I
43:58
have a neighbor across the street and so
44:01
I'm lifting one day and dropping the
44:03
barbell and dropping the way and it's
44:05
not even a lot of weight I'm just trying
44:07
to move all right
44:08
he comes out and I'm cleaning up I'm
44:11
done and he's laughing I said what are
44:12
you laughing at he said every time you
44:15
drop the weights my house shakes
44:18
I said what he's like I know it's crazy
44:20
right listen heavyweights Roy it wasn't
44:23
it was probably you should have gone
44:25
with the man I was trying to give you a
44:26
good light like you know 90 100 kilos
44:31
and we couldn't we were trying to figure
44:34
it out so there he was laughing because
44:36
I said look my neighbors to the right or
44:38
left and he doesn't bother them but
44:39
across the street for whatever reason
44:41
dropping the weights in my driveway
44:43
caused his house to actually like shake
44:45
like he could feel it so funny that is
44:47
but it's a quirky little story I mean I
44:50
go up in my neighborhood when I'm
44:52
lifting in my drive well I'm glad you're
44:55
staying active and keep yourself active
44:56
and insane through this process Michael
44:59
Elkins I appreciate you coming on the
45:00
show and don't make yourself a stranger
45:02
come back thanks for having me stay safe
45:04
everybody
45:05
[Music]