On March 11, 2020, Kelsey Knowles, a shareholder and attorney at Belin McCormick, was among a group of panelists for what would be the Business Record’s last in-person event before having to switch to virtual settings to mitigate the spread of COVID-19. 


That panel – focused on legal matters – not surprisingly turned to questions about the novel coronavirus and whether it might present challenges that employers should know about. In just a few short days before the panel gathered, many across the country and in Iowa began realizing the virus’s threat. And just hours before the Business Record’s event started, the World Health Organization announced the global health emergency was now officially a pandemic. 


Questions during the panel discussion included: Could they take the temperature of their employees, and were they allowed to selectively let some people work remotely while requiring others to come in? 


Later that day, in a prime-time Oval Office address, President Donald Trump banned travel from Europe. It was among many other news updates that endlessly dropped that afternoon and evening, like actor Tom Hanks contracting the virus and the NBA suspending its season. 


Now a year later, we know more about the virus and its deadly toll, taking more than 5,600 Iowa lives to date, and its unprecedented toll on the economy. Yet the future is still uncertain, and we were curious about what changes the pandemic has created within employment law. We talked with Knowles to reflect and look forward. 


Knowles said requests from employers she counsels have varied while they’ve navigated the unprecedented waters of COVID-19. Early questions she received included things like whether they could tell an employee to stay home if they just got back from a cruise, requirements for paying health insurance for those no longer working, and all kinds of questions about accommodations. 


“There was a period of time where [questions were focused on] mandatory vaccination when the vaccines first started to come out in December,” Knowles said. “Now it is more a question of reopening, and do we ask people whether they’ve been vaccinated, and … those sorts of things. So it’s very much been this evolution of a question of the day, question of the week, question of the month.”


It’s not as though Knowles and others working in employment law haven’t seen big changes before, but the pandemic’s effects were quick and sweeping, whereas even major Supreme Court decisions or IRS changes usually took some time while they were being debated. 


“I tell people all the time when I talk to them – we don’t have cases that we can look at to tell you what other people have done,” she said. And while there have been some cases to look to for guidance, they were often not in a global pandemic.


The biggest change is that work cultures are simply different now. 


“I think one of the things it’s done is made everybody a little bit more aware that the person you see in the office is not the whole person. ... Prior to last March, it was easier to sort of draw the line and say this is … what we are at work and these are our considerations – and that was it,” Knowles said. “I think the pandemic has made people maybe a little bit more compassionate.”


Employers could see, for example, that someone had three kids and needed the flexibility. But she said employers she counseled were also forced to draw the line at times when it came to balancing compassion and an employee’s ability to fulfill job responsibilities. 


Here are some of things Knowles said employers should have on their radar as they move forward: 


Many corporate employers didn’t have to think about OSHA regulations as often as perhaps those in the construction or manufacturing industries. But now employers need to be thinking more broadly about workplace safety and hazards as guidelines continue to change. 


In regard to continued virtual settings, “I think that one of the things that you should be aware of is you can get this window into your employees’ personal lives. And that can be good and bad.” You might learn, for example, that an employee is in a protected class and it’s important to separate what you learn about people for decision-making so that it’s not riddled with bias. 


Employers should also remember to pay close attention to rules for hourly employees as work schedules have shifted for those working remotely. 


There may also be changes in sick leave policies in the future. The pandemic has made people realize that the American cultural ideal of pushing through mild colds, showing up to work even when someone in your household isn’t feeling well or perfect attendance incentives may not actually be in everyone’s best interest. “This last year has demonstrated that it is probably something we need to figure out, and employers can do a lot to keep their workplaces healthier by giving some thought to what those policies look like and then how they implement them culturally in their workplace. … I think that’s one shift that a lot of workplaces are going to have to kind of go through as they come back into the office.”


With a new administration at the federal level, there are sure to be new policy changes to keep an eye on. For example, the Trump administration had some regulations with contractor status that may be changing. 


More coverage from the conversation with Knowles will be included in upcoming publications. 

 


4 other trends to know

We asked a few area legal professionals to tell us about one legal trend the business community should know about. Here’s what they said. 

 

Who is responsible if customers’ personal information is compromised?

Jess Vilsack, attorney at Nyemaster Goode


Last year Russian hackers conducted a supply chain attack on SolarWinds, a company selling widely used network monitoring software. The attack led to data breaches at organizations worldwide, including the Pentagon, the National Security Agency, the Federal Aviation Administration, NATO, the European Parliament, Microsoft and Cisco. 


Companies have made significant investments in their internal data security systems in recent years. However, a supply chain attack doesn’t attack a company’s own data security systems. It attacks service providers that a company purchases software and services from, and the service providers that those service providers purchase from. The attack cascades until the hackers find a weakness somewhere in the supply chain. 


When a supply chain attack compromises a company’s customers’ personal information, who is responsible for paying for remedial measures, like credit monitoring, identity restoration and fraud insurance? Anyone responsible for protecting their company’s data should review their service provider contracts. Those contracts almost certainly contain traditional language -- the service provider promises to provide a data security program that contains “appropriate” safeguards or is “designed” to protect your company’s data. If that’s the case, your company will have a difficult time holding those service providers responsible for a data breach and will likely be forced to pay for the damage caused by the service provider’s failure to prevent the data breach.


How do you fix the problem? You require your company’s service providers to provide a data security program that “ensures” the security of your company’s data, and to agree any software and services your company is purchasing will be free from viruses. And you make sure the service providers have appropriate indemnification obligations and cyber-liability insurance coverage.  


At first, your service providers will complain. Remind them that the world has changed. They will come around eventually because they know you are right.    

 

Don’t take an administrative “no” for an answer

Lori Chesser, Davis Brown Law Firm immigration department chair

 

As an immigration attorney, I help my clients navigate federal administrative agencies. These agencies have significant discretion in how they interpret the laws they are charged with following and enforcing. An adverse decision can be appealed but – at least in the immigration arena – the appeal goes to another part of the same agency.

 

A recent trend in the immigration context is to take administrative agencies to court. The Administrative Procedures Act, while it sounds boring, has been a boon to immigrants and their employers who are hurt by agency interpretations that vary from long-standing practice or exceed the bounds of their discretion.

 

Besides reining in agency discretion, the APA requires that new rules or changes to existing rules must be done only after public notice and comment. Failure to follow the APA has resulted in both major policy initiatives and individual decisions being overturned. It and other laws also have prevented unreasonable delay in deciding applications in many instances.

 

This trend is not limited to immigration, as the APA covers all federal agencies. The takeaway is that businesses should not overlook litigation against federal agencies in the right situation as a strategy in achieving their goals.

 

Social justice is sparking litigation

Beatriz Mate-Kodjo, attorney at Timmer & Judkins

 

I analyze human dramas that unfold across our 99 counties. I sue businesses, schools and individuals that discriminate on purpose, or on accident, for a living. My craft teases bias out of people and patterns of decisions. 

 

An emerging trend I’ve identified as a litigator is a social justice spark in our communities leading to more cases. I profit from our collective weaknesses, but business leaders should do what they can to channel that spark into corporate social responsibility. 

 

Looking past the current legislative climate, I see an Iowa more willing to self-reflect and accept accountability for the biases we all have. As much as they like to claim, it’s not a Democrat or liberal phenomenon. It’s a human phenomenon. The spark was ignited by national politics, but I see a sustained, low-burning flame of courage and a desire for a better future for our kids. That metaphorical heat is encouraging folks to speak up on behalf of others with respect to microaggressions, implicit bias, and the “isms” related to race, gender, etc. at school, at work and in public. Iowa will improve when business leaders, parents, neighbors, teachers, students, strangers and kids decide one by one to unlearn harmful narratives and stereotypes we all inherited. 

 

Iowan Robert Roozeboom Dykstra wrote “Bright Radical Star,” a book about our state’s historical accomplishments and capacity to be ahead of the social justice curve. I have faith and anticipate the low-burning flame will motivate enough of us to continue rejecting and healing from our inherited biases (an ill much more pervasive than COVID), which threaten to dampen our collective progress. 

 

Sometimes I feel alone in sustaining this low-burning flame but am always humbled to see fellow Iowans doing the hard work of self-reflection and personal accountability to advance toward our bright radical future.


It will be harder for some to put their lives back together

Nick Smithberg, executive director of Iowa Legal Aid

 

The events of the last year will leave a lasting mark on the practice of law. COVID-19 dramatically accelerated several workplace trends. Remote work and flexible scheduling are now the norm rather than the exception. Tools such as electronic signature and remote notarization are now widely used. Court hearings over Zoom are commonplace. These transformations will endure as we transition to the new “normal” of the post-pandemic world.

 

At the same time, the inequities in our society that were exposed and exacerbated by the events of 2020 persist. The same families that found remote learning difficult, if not impossible, because of the digital divide also experienced challenges accessing the justice system during the pandemic. Moving forward, it is clear the fruits of the Zoom economy will not be shared equally. Iowans working in retail and hospitality are unlikely to benefit from flexible scheduling or remote work. Telecommuting is not an option for a single parent working in a fast food franchise.

 

Changes reshaping the legal profession are of little importance to the thousands of Iowans who cannot afford the legal representation necessary to protect their most basic needs. Iowa Legal Aid has helped thousands of Iowans to recover from natural disasters such as flooding, tornados and, in 2020, a derecho. We have learned that it can take months, if not years, for families to recover from catastrophe. The aftermath from the pandemic will be no different. Thousands of Iowans have been devastated by unemployment, the threat of eviction and many other effects of the economic fallout of the pandemic. Even as the economy begins to reopen, members of the business community should remember that it will be harder for some in our community to put the pieces of their lives back together.

 

And so, as the legal profession enters a new and exciting chapter, it is more important than ever that members of the bar remember our collective obligation to ensure that meaningful access to justice is a reality for all.