May 27, 2020

Governor Pritzker announced that Illinois is planning to move into Phase 3 of his 5-phase plan called Restore Illinois starting on May 29, 2020. As part of Phase 3, the governor has added a provision to allow restaurants to serve outdoor seating so long as the six-foot social distancing requirements are met.

Bars and restaurants were originally scheduled to reopen as part of phase 4, which also included the opening of schools. We seem to be very far from that phase so it’s a welcome boost to restaurant owners to relax the restrictions currently in place. The question is how the outdoor seating will be managed.

We have some guidance from other areas that have already allowed restaurants to serve patrons outdoors. Many countries in Europe starting relaxing their rules two weeks ago. They were mandated to maintain two meters distance between tables (about the same as six feet), and at least one German restaurant, the Café Rothe, measured that distance by attaching pool noodles to the heads of patrons (you can see pictures here).

But joking aside, Europe has always had a robust outdoor service scene. It’s common to see tables on sidewalks in most European cities. I wonder how we will handle these new guidelines here.

Cities across the globe have adopted a plan to close streets to vehicles so that businesses, primarily restaurants, can expand into the road. They can then serve more customers without violating social distancing protocols. Some large cities that have implemented such plans include Cincinnati and Tampa (article here). This allows them to operate at higher capacity, which is necessary given the normally low-profit margins enjoyed by restaurants and bars.

This reminds me of an article I read a month ago by The Hustle, that discussed the possibility of repurposing parking lots to allow for restaurant seating (here). It turns out that parking lots are not in use right now, given that most people are out of work or working from home. By repurposing them, like we have seen with roads, we create a win-win situation for lot owners and restaurants.

There are still concerns, though. Will patrons return? Will they worry about getting sick, will they want to sit in a parking lot to enjoy their meals? We can look to Wisconsin, where the stay-at-home order was lifted about two weeks ago for some answers about demand for these services.

As soon as the order was lifted, we saw videos and pictures of people packing into bars and restaurants in Wisconsin. That certainly suggests that patrons will return to restaurants in Illinois, but were those videos representative of the actual interest in returning to public eateries?

According to an article by USA Today (here), the data reflected that the number of people who went out after the stay-at-home order was lifted was consistent with the trends leading up to that point. Meaning, people went out, but not in the mass numbers we thought when we saw the videos.

Some bars and restaurants chose to hold off on reopening, despite the order being lifted, and most businesses in Milwaukee and Madison remained closed. The percentage of people traveling outside their home only increased by 3% the three days following the lifting of the order. Therefore, the evidence suggests that demand was present but not in the extreme way portrayed by videos and pictures.

What does that mean for Illinois?

I have maintained since the start that a sudden reopening will not turn the economy back “on” like a light switch. People simply don’t operate that way. Some will go out, and those numbers may be enough to save restaurants, but many will still opt to stay in.

There is no doubt that we need to start taking steps to reopen, and this will definitely help small businesses. The risk is probably worth the reward.

But what about that risk? I read an article a few days ago that included an interview with Amy Webb, who is a quantitative futurist. She stated that movie theaters are unlikely to reopen anytime soon because if people attend a movie and get sick, the theater will get sued.

That got me thinking, can I really sue a movie theater because I got sick attending a movie? Where is the negligence? Prior to COVID, could I have sued for catching the flu at a movie theater? Or at a restaurant?

The duty of care owed to someone coming into a business is well defined in Illinois. The owner must exercise reasonable care under the circumstances (740 ILCS 130/2). They need not take any care for conditions on the premises known to the entrant, normally referred to as an ‘open and obvious’ condition. Essentially, the owner of the premises is under no obligation to even warn an entrant about conditions that are obvious to the entrant.

This normally comes up when discussing slip/fall cases. If a danger, say a pothole, is large and obvious to all visitors, a plaintiff who stumbles into the danger will likely not recover any damages. This is because the plaintiff knew or should have known about the danger and made efforts to avoid it.

Isn’t COVID an open and obvious danger? Certainly, we all understand that by going out we risk catching COVID. I doubt there is an actual negligence claim here. And imagine if a court allowed a plaintiff to collect under a theory that a business owner has a duty to prevent patrons from catching sickness from other patrons. No business would be safe. What possible efforts could a business show to avoid that liability? Perhaps they could put up signs or something? I don’t know. I doubt it will actually come up.

Don’t misunderstand, businesses will need to adopt systems to keep patrons safe. If they don’t, people may not return to their establishment. But to hold them liable for other people’s sickness seems a step too far.

In the end, businesses will start to open over the next few weeks. Hopefully, it will be enough to save most of them. I expect that we will see a percentage of the population take advantage of the reopening, and I doubt we will see any legitimate lawsuits generated against businesses for the catching of COVID in public.

May 25, 2020

We’ve historically paid people for their work from nine to five. I’m sure this is a carryover from factory work during the Industrial Revolution. We probably have Henry Ford to thank for that. Actually, we probably have unions to thank for it because prior to unions people worked much longer shifts. Unions brought about a limitation in hours worked. (Please note, I am clearly not an expert in historical labor rules or development)

In any case, we got onto this system where we all are expected to put in eight hours of work during a workday. I have been reminiscing on this fact over the last week or so because, like many people working from home, I have not been putting in my eight hours, at least not in the traditional sense. There are lots of reasons for this: kids, wife, lunch, etc. I’m sure I’m not the only one.

I’m still working, for sure, but my billable hours have been reduced. But that’s sort of my point, who determined that what is billable is work?

And that made me think about the nature of our work and whether eight hours really made sense. Most of us who have been working from home would be considered knowledge workers. Who determined that knowledge occurs in eight-hour increments?

I joke, and many of my colleagues have agreed, that we’re working a lot of more than eight hours a day because it’s hard to turn it off. This was true before COVID, as well. I think about cases all the time. It’s sort of automatic background noise in my brain. I’m not billing for the time (if only), but the work is still happening.

Further, I read new updates about laws related to coronavirus, and I’ve been researching the ways that our businesses are likely to change over the next few months. I don’t technically get paid for that work, but if a client calls and says, “Can I track my employees with a cellphone app?” I can reply that, why yes, you can. I get paid for that 5-minute phone call, a far cry from the actual work that went into my knowledge and ability to answer the question.

Of course, this is how it’s always been. I attended law school and have amassed large amounts of experience, which none of my current clients technically pay for. However, my hourly rate reflects that knowledge and experience. That is why it has increased over the years.

But with the shift in our economy towards work-from-home, it really highlights the disparity between what we get paid for and the actual work we do. The actual work being the knowledge gathering and experience, and what we get paid for being literal time spent dealing with an issue.

Why do we have that separation?

You pay me for knowledge and experience, not my time. In fact, I’d get paid much more if I was dumb. I could bill for research and figuring out answers. But because I know the answer off the top of my head, I can only bill 0.1 hours or whatever. So why make the time the increment of pay?

We probably do it because we have always done it that way. But times are changing.

How can a family attorney get paid when they aren’t making court appearances, which was a primary billing method? I have colleagues that have reported that their billing has been reduced to 1/5 of the original billing because of a lack of court appearances. But are they really paid to appear in court? Is that really where they add value?

Certainly, it is one way they add value. They give you a voice in court, which is no small feat. But it’s not like they are paid solely for the three minutes they appear in front of the judge. Should your divorce cost 1/5 of what it used to simply because courts are closed?

Maybe, but it doesn’t seem fair to discount the attorney’s work simply because the nature of it has changed. Their knowledge and understanding of the material haven’t changed just because we are wearing masks and staying at home. In the case of a family attorney, assets still have to be divided and the needs of children still have to be met. These issues are taken just as seriously as when the courts were regularly open.

Why aren’t they paid consistent with their knowledge and experience?

That is the disconnect that I can’t figure out.

Don’t get me wrong, the billable hour was invented by lawyers to overbill their clients so in some way we had this coming. But a general reduction of hours worked should not necessarily trigger a lower value for attorneys.

What do we do about it? What will clients tolerate?

Should we go to flat-rate billing or figure out a way to bill for base knowledge that every lawyer has accumulated over their career? Like a bill that includes a base price for knowledge plus an additional billable hour cost.

What if, for example, I billed $2,000 per month just for my base experience and then an additional $300/hour? The hourly would be pretty low right now because I’m not attending court. But it’s not as if I’m not working. It’s just hard to quantify the work.

There are no clear answers here. I suspect that other knowledge workers will have similar issues in the coming months. Consider accountants, IT professionals, and engineers. Are these people really paid to punch a clock for eight hours a day?

Work-from-home has changed the way knowledge work is done, and we will continue to see changes over the next year. We have to rethink what we compensate people for. It’s not merely for their time.

May 20, 2020

Over the next few weeks, we expect to see the American economy re-opening. Although it’s not entirely clear what that re-opening will look like, businesses will start calling their employees back to work one way or another.

With that re-opening comes concerns about a second spike in COVID cases. Many companies are looking for ways to protect their employees, prevent shutdowns, and avoid liability from employees getting sick at work.

As such, the newest workplace technology may be contact tracking technology. This technology purports to track employees to monitor who has come in contact with whom. That way if someone tests positive or is diagnosed with COVID, the company can alert the other employees who were in contact with the individual.

This seems like a great idea on its face. It protects employees and avoids the possibility of having to shut down entire divisions or floors of a company when someone is diagnosed with COVID. It helps everyone.

Or does it?

There is a sinister side as well. These apps or technological devices track our movements, which may trample on privacy concerns. Will they track people at home? Will they stop being used once the pandemic has passed? How much data are we actually giving up?

These are legitimate concerns. Let’s break it down and discuss the possibilities and legalities of this technology.

Technology Available

There are a few options available to companies wishing to track employee movements and contacts. The first form is based on smartphones. Tracking on smartphones is not particularly new, we already have GPS for our Google Maps, but this will be the first use for employees within an office.

GPS technology can be used to track workers. It has the advantage of identifying locations the employee frequents and other employees he or she came in contact with. That way, when someone gets sick, the company can isolate the areas where the person traveled and the people who came in contact with them. This avoids over-alerting people and over-quarantining employees.

The primary negative with GPS technology is that employers actually know the exact locations of their employees. This makes privacy experts very nervous for good reason. Who’s to say how that data will be used. Will we limit bathroom breaks? Or will employers use it to monitor where employees have traveled outside of the office, say, when they go to a job interview at a competitor?

Bluetooth technology, on the other hand, works by having devices sense other devices around them. An employee’s phone can sense another employee’s phone and determine how close they came to one another. This has the benefit of alerting employees when they come in close proximity to someone who has been diagnosed with COVID. That way companies don’t have to over-quarantine when someone gets sick. They can simply notify the people most likely to have been infected.

Bluetooth technology has the other benefit of being a decentralized network, meaning that the phones know who they have been close to but not exactly where they were. This is generally a preferable method of tracking contacts because it doesn’t literally track employees’ locations.

For more technological options for use with smartphones, check out this article by Fast Company here. There are also some details on an app created by PwC here.

There is another area of technology that may get traction in contact tracking: tracking via Bluetooth beacons and long-range, low-power LoRaWAN networks.

Microshare is a company offering Bluetooth enabled badges, key-rings, or wristbands. When these devices come in proximity to another device, they note the contact in a central database. More details on this product can be found here.

This technology has the benefit that it does not rely on smartphones. Therefore, you don’t have to count on employees installing the software or carrying their phones. In fact, it’s ideal in a work environment where employees would not normally be allowed to carry phones like manufacturing, security, and prisons.

It also has fewer privacy complications because workers would not need to wear the device home. Therefore, there would be no concern about being tracked outside of work.

Is It Legal?

I found a dynamite article that went into a ton of detail about the legalities here. I will not go nearly as in-depth, but I will sum up what I know.

The short answer is yes, it’s legal to track your employees. However, you may only track employees to the extent necessary to meet a legitimate business concern, namely keeping people safe from COVID. A legitimate business concern is a factual determination and some businesses will have more concerns than others.

Consider, also, OSHO requirements which state that employers must furnish a place of employment free from recognized hazards that are likely to cause death or serious physical harm. Companies are required to comply with these standards. (Though, there is some debate as to whether COVID is “likely to cause death or serious physical harm.” I will not debate that here).

A company that has employees who generally work remotely and don’t come in close contact with one another, say a trucking company or professional services company (like accountants), may not have a legitimate business concern that allows for tracking of workers because the likelihood of spreading COVID is relatively low. But a company where presence is required and close contact is the norm, like a packaging plant or hospital, has a clear legitimate business concern.

Like everything in the law, this is a gray area and the facts will determine how a company is treated by the courts.

Will This Be Long Term?

No one knows. I think once we have these devices or apps, it will be hard to get rid of them. There will always be another pandemic or other reason to track employees. Like I mentioned in a previous post, we are passing laws much like we did after 9-11. Not all of these laws will be good. It’s not clear what courts will do regarding our privacy laws. I expect that there will be numerous legal battles regarding privacy in the coming years.