In this episode of Civilly Speaking, host Sean Harris talks with Columbus attorney Jessica Doogan, an Associate in the Labor and Employment practice at Barkan Meizlish DeRose Wentz Mclnerney Peifer, LLP. Jessica shares her perspective on how COVID-19 has impacted the workplace, how it will change the infrastructure both in traditional workplaces and law firms and how it will affect employment law.
Sean: Hello, I’m your host, Sean Harris, and this is episode 59 of Civilly Speaking brought to you by the Ohio Association for Justice. Today is May 21st, and I’m here with our guest, Jessica Doogan. Jessica, thanks very much for joining us here and Civilly Speaking.
Jessica: No problem. Thanks for having me, Sean.
Sean: Well, here we are at the end of May of 2020. We’re in the midst of the COVID-19 crisis. There’s no part of our lives that it hasn’t touched and certainly the workplace is a major part of that. From your perspective, what kinds of changes do you see forthcoming in workplaces, both for law firms and in general?
Jessica: Yeah, I mean, I think it’s been kind of an interesting test of, you know, all of our infrastructure, both in and what we would call traditional workplaces and law firms, which are notoriously, I think, inflexible and paper driven, although obviously, you know, with technology as it’s progressed some firms have begun to move away from the paper file system. But I think that the big thing it’s done for all workplaces is kind of force management and the decision makers to think about things in a different way. You know, for law firms specifically, I think that the old adage that working from home isn’t really productive or isn’t actually producing work has been dispelled. You know, we’ve all kind of had to make that shift because of state orders or safety guidelines. And so, you know, it’s made us adapt much quicker than I think we would have otherwise. It forced some of the notoriously older upper management of law firms to look at new technologies, embrace new technologies, and kind of take advantage of the technologies that are out there. I think that how it’s going to change things going forward is that for many workplaces that are in an office, I think it’s going to reduce the physical footprint because I think it’s made the cost benefit analysis really shift in that we’ve been able to be productive, we’ve been able to produce work that normally was only done in a traditional office setting. Again, both in law firms and other traditional office setting. So, I think that it’s going to not necessarily erase the need for office space, but it’s definitely going to reduce the office space. I think we’ll move away from, you know, giant offices for partners or giant offices for upper level management and the corporate structure and kind of go to a more a smaller office space with the opportunity to use conference rooms or things like that. You know, at least for our practice, we in the wage and hour context, in employment context, we have very few meetings with our clients in person just because we often are representing people that are all over. We have a national wage and hour practice so our practice was able to adapt a little faster than some other practices in our office. But, you know, I think it’s also made clients more receptive to meeting in non-traditional spaces, which has been great. And I think that going forward, that’s going to be really good for the overhead reduction in both the corporate structures and traditional office work as well as law firm.
Sean: So flexibility is the name of the game?
Jessica: Yeah, I think so and, you know, the other thing I think that’s been interesting is, it’s made employers that traditionally didn’t focus on the health and safety in the workplace because they didn’t have to. You know, when you think of going to an office every day, you don’t think of that as being unsafe. So I think that that’s something that employers in the more traditional office work spaces have had to really put employee health and safety on the forefront, which is kind of a shift, you know, other industries, the industrial industries, construction industries they’ve always had health and safety at the forefront because they’re in, you know, a more dangerous environment, but I think that it shifted the focus of employers to really think about the health and safety of their employees and how they can ensure that to which is going to be great for employees going forward.
Sean: Well and speaking of employees and employee rights, how do you foresee these changes that we’ve been talking about affecting employment law?
Jessica: Well, I think that that’s going to be both a mixed bag and an unknown for now. You know, it’s going to take some time for the case log to develop in this area and I think it’s a little scary for those of us that practice in the federal judiciary because, you know, there’s some concern that the judiciary is going to be sympathetic to employers that have done things either not well or, you know, not correctly, because this is such a new world. You know, the plaintiff’s bar attorneys that I’ve been talking to are a little bit concerned about that. You know, the federal bench is disproportionately more conservative, which tends to lean toward employer rights rather than employee rights. So that’s a little concerning just I think that when it shakes out at the end, we may end up with employers being more protected if they were trying to do something, even if what they ended up doing wasn’t right. Just because this is such an unprecedented time, I think that the efforts made by employers are going to receive a lot of leeway. So although I think there’ll be a huge spike in workers’ compensation and employment claims going forward, I’m interested to see and I think all of us are, at how the judiciary is going to handle that and you know, what leeway the employers are going to be given in dealing with something they’ve never faced before.
Sean: Well, so much of the changes, as you’ve mentioned, are relying on technology, right? The ability to have a Zoom call or frankly, to send e-mail and those kinds of things. I would imagine that not all employees have the same access to technology at home as everybody else.
Jessica: Right. Yeah, I mean I think that it’s definitely showed an interesting dichotomy and potential socio-economic schisms in the workplace that although many of us knew existed, especially those of us practicing in the labor and employment sector that represent, you know, disproportionately so we represent mostly the lower wage workers. I think it’s really raised public awareness of that and I think that that’s going to have a lot of consequences. And, you know, you saw the spike in unemployment rate for those in the service industry and for the typically lower wage jobs. Well, you know, those of us that are in a traditional office or in, you know, more elitist jobs are able to transition because most of us have high speed Internet at home. We have access to computers and things like that. I think it’s really disproportionately affected lower wage workers and lower wage community. But it also has brought public support for things like raising the minimum wage and for the labor movement. So, I think it’s going to kind of be twofold. I think that it’s exacerbated the socio-economic divide that already existed in the workplaces. But it’s also really made the public aware that these jobs are very important. You know, we went from people arguing against raising the minimum wage for some of these positions to now these are the people that we rely on every day to make sure that we’re getting food safely, that we’re able to continue putting a roof over our head and food on our tables so I think that hopefully the public support will continue to grow for those lower wage workers to get their wages raised and to get a better quality of life through benefits and things of that nature.
Sean: One of the buzz words that has come out of the crisis is the concept of essential workers. Obviously, attorneys were happy to be included in that group, but I imagine that going forward, that definition may change and be manipulated for one side or the other.
Jessica: Yeah. I mean, I think that the category of essential worker is something that that’s really interesting, you know, and in our minds, we already feel like it’s being stretched. You know, what constitutes essential and what doesn’t seem to be malleable, depending on which lawmaker is speaking, which again, is a little bit scary because, you know, you could cross state lines and something deemed essential here, may not be deemed essential across the state line. So for those of us with the federal practice, I think, again, you know, back to how the federal bench is made up, it’s going to be interesting how each court deals with that differently, because it seems as though as litigation starts coming up related to the COVID crisis, it’s likely going to be the judiciary that decides what essential means. And if that’s different, depending on what district or what circuit you sit in, you know, that’s going to be interesting for us litigators, because we’re going to have to really think about which forum we choose and it’s also going to be difficult to predict for clients and advise them accordingly when we are not sure how that definition is going to be done in each court.
Sean: Well, speaking of advising clients, obviously the relationship, the attorney client relationship must change and evolve during this time. How can law firms be able to be flexible and adjust to their client’s needs now?
Jessica: Yeah, I think that that’s something that the legal field has done well. You know, this crisis forced us all to make changes really quickly. Certainly, I’m sure it was bumpy. You know, we have staff that’s not used to working from home with day care centers closed. We also have staff that’s juggling their parental responsibilities with their work responsibilities, which we know is always difficult. But going forward, I think that it forced firms to put response plans in place that we’re likely not there. I mean, I don’t think that when people were thinking about, you know, putting plans in place for management that we thought, oh, the government might shut down our businesses. So I think it’s made us more ready for, you know, any coming situation and it’s also proven to us that we can service our clients really well, even from home or from anywhere if we have to. Which again, goes back to, you know, potentially reducing our physical footprint, but also, I think that our clients have been very receptive to the changes. You know, I often have dog barking in the background or, you know, making noise in the background and clients seem to be okay with it because everybody understands that this is a new world we’re living in and most people are working from home if they’re working at all. So I think it’s made clients both more receptive to not meeting in a traditional office space and it’s also made us rethink the way we serve as our clients.
Sean: Anything else that we didn’t cover that you want to add?
Jessica: No, I mean, I think those are the highlights the basics are everything’s going to change. It’s going to be interesting to see how it develops going forward, both in the legal context and just, you know, as workers in the workplace,
Sean: The new normal, as they say.
Jessica: Yes, I was trying to avoid those buzz words.
Sean: Yes. Well, Jessica, thank you very much for being here no Civilly Speaking today.
Jessica: Well, thank you, Sean. It’s great to be here.
Sean: And thanks to all our listeners out there. If you like our show and want to learn more, check out civillyspeaking.com and please leave us a review on iTunes and we’ll see you on the next episode of Civilly Speaking.