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Expert Connexions Video: Legal Roundtable with Foster Swift

What do employers need to know before employees return to the office? What are your next steps to ensure PPP forgiveness? Or, what alternatives do you have for financial support?

In this episode of Expert Connexions, Julie Holton, Founder and Principal Strategist of mConnexions is joined by attorneys Patricia Scott, Cliff Hammond, and Taylor Gast of Foster Swift in a live panel discussion. For additional legal insights, visit the firm’s dedicated Coronavirus resource page.


Julie: Good Morning. Thank you for joining us for our Expert Connexion series. I’m Julie Holton, I’m the Founder and Principal Strategist of mConnexions Marketing Agency. We have been bringing you these live interviews throughout the pandemic as a way to connect our community to resources that can help us all as we navigate our businesses and navigate our lives through COVID19 and I’m so grateful we’ve had several times throughout this live series we’ve had attorneys from Foster Swift joining us to share their insight and their resources and we’re so grateful to Foster Smith for doing that. Today we actually have three attorneys joining us for a roundtable interview to talk through these next steps. What we’ve been going through as businesses and looking forward to the future. So joining us today we have Patricia Scott she leads the firm’s finance, real estate, and bankruptcy law practice group. She’s also serving on the Lansing Regional Chamber of Commerce’s task force. Which just created a resource guidebook for employers as we look at returning to the office, also with us this morning is Cliff Hammond, he focuses his practice on employment and labor law counsel and litigation and he and Patricia both joined us gosh it’s been at least a month now since our initial conversation. So thank you both for coming back. Also joining us we have Taylor Gast who is an associate Attorney. He helps businesses and organizations of all sizes at all stages of development which right now for many really means focusing on the Paycheck protection program, so we’re going to be talking through that of it this morning. So thank you all three of you for taking the time to join us.

Cliff: Thank you.

Patricia: My pleasure.

Taylor: Thanks.

Julie: Okay so let’s dive right in and I want to talk first Patricia with you. Let’s focus on this resource guide book that you’ve helped to develop. This is really a great starting point for organizations. So and I know there’s a lot in it. So what are some of the highlights for us? What resources are included?

Patricia: Thanks, Julie. The task force was created Tim Damon is the Chamber’s director and he created a task force that has some phenomenal people on it much more so than me and my participation was you know minimal compared to others. They just did an outstanding job creating this and I think that your goanna provides the link for viewers and for people and this is a document that is geared towards creating a resource and creating a spot for people to start because it’s very difficult for many of us. We don’t know where to start. How to go from crisis to recovery into what are the new phrase the new normal is going to be? So this will be changing this will be an electronic guidebook and they’ll be updating it on a regular basis. So I do want to point out just a couple of things that I think are really helpful in this guidebook. The resources that are provided and if you look at page four just make a note there’s a four-step plan and what’s nice about that plan is it tells you where to start because you know like I said a lot of us don’t know where to start. Let’s assess your risks, develop a plan, make necessary modifications, and revive demand. There’s a lot of concerns in the community. So there are tidbits and there are links all within that to get you started on your four-step plan. Fast forward in the book a little bit you’ll get to page eight it talks about best practices and resources. There are several different banners. You click on that banner and it takes you to another site in one instance if you want to talk about accessing control you know how to deal with employees to monitor whether they get sick. Takes you right to the CDC’s website. What the requirements are. There’s a link for PPE. How do you find it? How do you get it? Ordering it, how much is it going to cost? There’s one for local resources to your local health department to areas like that and then contact Tracy which is a phrase that I had never heard of before all of this and so you can you know click on that. Again it takes you to the CDC might take you to your local for us, Ingham County, Health Department. So that’s very helpful and then page 11 is probably my favorite page and that is industry-specific resources. So just about every resource is listed on that page and again you click on it and it takes you than to that industry overarching organization like the Michigan Manufacturing Association or Retailers Association Manufacturing. So then all of their resources and their guides are there so with resources then guidebooks within the guidebook. So again It will be regularly updated. Take a look if you only you know look at it for a few minutes and gain a few pieces of information I think it’ll be helpful.

Julie: I mean incredibly helpful. I mean suddenly business owners who are already dealing with this shutdown and trying to figure out their next steps just reopening and running the business kind of they’re returning to business as usual, now having to become experts on PPP or the protection for their staff and being able to follow those guidelines to wear masks and like you said contact tracing. I mean how many of us have ever studied any of this prior? You know what an incredible resource for businesses I just put the link to that so that after this interview you can go ahead and access that resource. Patricia thank you because what a great resource to have and to know that it’s going to continue to be updated as these guidelines change as well. Cliff, I want to ask you, you know of course from an employer perspective, there are so many issues that we have to deal with when we talk about reopening. What are some of the key issues that we really should focus on first?

Cliff: Well it’s a good question because there are a lot of things floating around and even get lost in this and I know even from myself sometimes to keep yourself focused where you need to be it’s difficult, but the main thing you have to do is you have to stop looking around for all these different pieces of advice you’re getting. I think that it’s causing a lot of misunderstandings because you have different states. You’ve got the federal, you’ve got the local, you’ve got the state of Michigan, these orders keep changing the CDC guidelines keep changing. As an employer what I always tell people is you got to make it simple right and the first thing you’ve got to do is go to the state of Michigan’s website. They have a list of executive orders and you can actually go to google up Michigan executive orders 2020 or you can go to the governor’s website and she’s actually got a list of her executive order and there’s over a hundred right now and you go to the most recent you work yourself back and the most important ones you can take a look at right now and they’re always updating and always changing our 2020 – 97 in 2020 – 96. These are the orders that tell employers right now what they need to do to get on top of their workplace and they show you what the education is that you have to provide to your employees, they tell you the safety things that you have to put in place, and they tell you the rights of every employee and employer as we start to reopen. Then you go to your local health department. So in Ingham County, they’ve got a health department in Oakland County they’ve got a health department and what they’re doing is they initially had a lot of rules and regulations about employees when they would come into work and what they would have to do as far as a pre-screening. So you’re screening your employees as they come in. They try to make sure that the place is safe and they’ve changed these. So you should always go in and see what the most updated screening requirements are and then from a federal level, it’s very important that you go to the CDC and find out what it is that we’re supposed to do for personal protection and for the exclusion of employees and how long and on what basis should we keep people in or out of work. If you go to those three areas the CDC, the federal guidelines, it will tell you what the testing is they’ll tell you how to clean, they’ll give you guidelines on some of the ideas of what you should do, and how long. It’s very interesting. I mean some of the cleaning things you would think well we have to close the place down and we’ll just bring in a company, but it’s not necessarily something you have to do. They actually show you how you should maintain a building or your office space or even your work area on a day-to-day basis and they’ll tell you what you use and they say that there’s the cleaning and there’s disinfecting and there are two different issues and they tell you basically soap and water is great for cleaning and then there are CDC approved an FDA approved cleaning disinfectants that you should use next. They tell you should wait 24 hours if you have a person who is positive in a particular area close it off you ventilate it and don’t have people rush in and get COVID themselves and you can stop it and then you clean it in a certain manner. So that’ll help you go a long way to making sure it’s your place is safe. Then you go to the state’s guidelines you make sure you’re in compliance you don’t want to get yourself in trouble with providing an unsafe work environment and so essentially you can go to the state you know to tell you how to put your protocols together and things you need to do like designating somebody as a supervisor for COVID reasons for safety reasons. Making sure people where specific types of masks, making sure that there’s no congestion and workplace. Working around those type of things and your local health department will help you make sure that you’re following all these and it may even give you some more tips and I think it’s key to stick with the law stick with the rules and then if you have a question then start looking out but find out what the basics are first to read them review them because if you don’t know what the rules are you may miss a lot of important guidance that’s out there to help keep people safe including yourself keep the building clean, keep it safe, and keep hysteria down.

Julie: So many things to think about Cliff and it sounds like a lot of what you were saying when you’re talking about the various health departments depending on where your business is located you know the local, state, federal. All of that Patricia was included and you know those links to the direct information is included in the resource guide that you created with the Lansing Chamber. So great resource again between the two.

Patricia: Julie I will say I do think that the Health Department –

Cliff: Those are the resources that you really should go to and I would recommend that you do this on a weekly basis. I really think it’s important to weekly update yourself because it keeps changing.

Julie: Absolutely thanks Cliff. Patricia, what you wanted to add one point about the resource guide?

Patricia: Yeah I think the health department that’s referenced in that guide is just Ingham County. I think it does go on in the state of Michigan like Cliff mentioned and it does talk about state requirements and certainly goes to the CDC’s website but for contact tracing it probably goes just to Ingham County because it was the Lansing Chamber that created that but certainly, you will then see where you need to go for you for your County.

Julie: Which is a really good point to emphasize for those of you who are watching who are outside of Ingham County. Still, an amazing resource guide for you to use but make sure to check because there may be some nuances some differences depending on where your business is located. Taylor, I want to ask you so we’ve been talking a lot on Expert Connexions about the paycheck protection program. So another of course concern for businesses as they’re as we’re working through all of these layers all of these elements. What should businesses with PPP loans be doing right now to make sure their loan is forgiven?

Taylor: Yeah it’s a really good question and it’s a question that’s on the mind of just countless businesses nonprofits all sorts of organizations out there who you know we’re looking for a lifeline and they’re looking at this as a really helpful kind of relief you know program that’s provided a great access to some you know some capital to be able to let the organization survive but now on top of it we’ve kind of added some significant you know layers of complexity and rules and updates that seem to be coming in on a daily basis and now regulations and so it’s been kind of a saga that’s getting more complex over the weeks and so the recommend now is that you know if I have a PPP loan and you have not kind of walked through the rules as to how that loan can be used you know if you’ve not thought through your kind of forecast for you know whether the loan will be forgiven and the extent to which it will be forgiven, that we really kind of sit down take some time and sort of run that forecast and make sure that we’re thinking through those rules and in particular what I would I kind of have in mind here and that a lot of our clients have had questions about are you know there are there are loan forgiveness reduction calculations that are now more clear than they but although they’re more clear they’re also you know not exactly the simplest calculations to run because they involve a clear understanding of how many full-time equivalent employees do we have now as we’re using the loan proceeds and also looking back to either earlier this year or last year and so that’s one calculation that we need to run. We also have another addition to that looks at whether we’ve reduced salary and wages for our employees relative to look back periods and these calculations are not exactly user-friendly or intuitive. I would they are their things that we can kind of wrap our arms around if we take some time and just kind of walk through them. So the first kind of you know a general piece of advice here is to make sure we understand the rules make sure that we if you have not taken a look at the loan forgiveness application that was recently released about a week ago let’s make sure that we hold that down and we can certainly get the link out there and make sure everybody has that, but it’s available on the Department of Treasury’s website. The Small Business Administration. So that’s kind of our first you know to make sure that we have a good handle on the rules make sure that we’re using those to really kind of wrap our arms around you know loan forgiveness and you know our understanding of what our forecast is and once we understand those rules let’s make some strategic decisions about you know how the business is operating, how many employees are back if we’ve laid people off for instance and make sure that we are working within the rules to maximize forgiveness because there are a number of strategic decisions and planning decisions that can be made especially for you know organizations that are out there that recently received the loan. You’ve got some decisions to be made as we work our way through using up the loan proceeds and the last item that I would just add you know as it relates to things that we can be doing right now is you know to keep records. We really want to make sure that we’re keeping great records and understanding how our using the loan you know the costs that were using the loan for and then we’re keeping records of that and that is something that’s actually really probably the easiest to understand a piece of this is you know there’s one page in the application for the forgiveness application that just lays out everything you need to know on record-keeping requirements and so again encourage everybody to take a look at that and make sure we understand it.

Julie: And I can see looking through, we have several small business owners who are joining us and some nonprofit organizations as well. If you have any questions, go ahead and put them in the chatbox and we’ll answer them as we go through. Taylor thank you for that. Patricia, I want to come back through again because a couple of months ago we talked and we talked about collections and contracts and a need to keep businesses afloat. Of course, talking about cash flow so important and now that card is considered what are some things that businesses can do with existing contracts?

Patricia: Yeah Julie it’s hard to imagine it’s been a couple of months since we last spoke and daily at that point. I mean they still are to a certain extent, but I think that we are moving from crisis to recovery. I think that’s a phrase we’re hearing a lot of and –

Julie: I’m not sure but keep talking and I’ll let you know.

Patricia: So the point is you know how do we move forward? You know we have customers and clients that we’ve dealt with for years and years and now they’re in a financial situation that they’ve never been in before and to no fault of their own and so it’s not a matter of if it’s often then the customer can’t pay or wants an extension of terms and people work things you can do right now is either to ignore it or do not get it in writing and a lawyer comment but it’s very important because as a creditor you have rights and you may waive those rights if you make an agreement with somebody orally and you don’t get that in writing and you may create what’s called an implied contract or an amendment to the contract. So it’s important you know we talked last time too about communication. That’s important but it’s also important to take action at this point. It’s time to move forward and so there’s a number of different ways that you can get it in writing, it does not have to be complex. You can do a simple contract modification which is typically one-page you’re just modifying an existing contract. Whether it’s the payment term, payment amount, length, interest, whatever that is. Then you do have to make sure that the existing contract has a no modification clause or if what you want to change is included in that no modification clause. So you have to confirm that because you don’t want to be the one that first breaches the contract. The goal is that you come out of this and the best shape that you can. Working with your clients and customers the best that you can and so that simple contract modification is one available mechanism. The second is a forbearance agreement. That’s not a modification at all it’s a whole new contract and it’s much more involved and it’s typically when the debtor needs an extended period of time. The debtor recognizes it is in default and the creditor agrees to forbear from exercising its rights provided the debtor complies with certain components that will be listed in the contract. Common many examples of the needle forbearing agreement or the debtors going to refinance to somebody else or the debtor selling property and I think in this instance in this environment waiting maybe for PPP loan or some kind of a stimulus check or financing of some sort and so then the debtor typically has requirements along the way in that agreement and that’s all spelled out in that fourth appearance agreement. At a minimum, I would like to see a reservation of rights agreement that goes out. So it’s common you have clients they’re calling on a regular basis saying I gave my debtor 90 days to pay. That’s great but what happens with that is you may now have just waived your rights to enforce that contract because you’ve given them the impression that implied contract we just talked about that you’re not going to pursue them and so what happens on 91 days? Do you get to enforce? So it’s best to send a reservation of rights agreement to have them sign it that says that you are acknowledging that they’re in default you’re going to continue to consider your rights but at no time are you waiving your right to enforce the terms of the contract and so it just makes it clear so that everybody is on the same page. A final one that you might consider is a repayment plan. So maybe you don’t have an existing contract at all but maybe you’re a supplier and you have what’s called an open account. Maybe you provide services or goods and you just don’t have a contract in writing. Let’s say they owe you $10,000 and they need you know instead of paying $10,000 I need ten months and they want to pay a thousand a month, get it in writing. Again it can be simple. Obviously counsel can help you with yet but the better off you are to get it writing because people tend to comply with something they agreed to in writing more so than just telling you I’ll pay a thousand bucks on the fifteenth of the month 16th of the month comes and that check wasn’t has arrived. So get those kinds of terms in writing as well. The key component here to all of this is that you need to know who you are in the equation. We hear that in regard to COVID right whether or not you should be in a group of social distance so we just you know as long as you socially distance of fewer than ten people should you participate in that? The one thing I think doctors all agree on which aren’t a lot that they agree on but the one thing they agree on is that you need to know who you are in that equation? Are you vulnerable? Are you at risk and that is true in the financial setting? You can expect customers and clients or in one time or they’re going to want forgiveness or they’re going to want a waiver or they’re going to want you to forbear. Whatever it is that they want you to need to know what you can do. What are your position and you may be an okay position as well? So try to look at that it is the global picture to understand if five people call and ask you that if all of them come and ask you that what is the thing you can do to accommodate.

Julie: Absolutely and as you said we’re in a situation where people are not they’re not choosing to pay anyone asked for this no one has done anything wrong to cause these financial hardships and so and you had said I remember the stuck with me said that a couple of months ago you know now is the time that it really falls on to those business relationships we’ve been building and communicating and talking with each other and figuring out I mean at the end of all of this gosh don’t we want every business to reopen and every I mean that’s I know that’s a dream and I know that the numbers show that that’s not going to happen, but that’s why we’re even having this conversation. We want to make sure that as many businesses as possible can get through this and part of that Patricia as you said really comes back to working through these agreements and making sure in the process that you’re doing it in a way that is protecting yourself protecting your business. Taylor you know it was we’re talking about cash flow we were just talking about PPP but what if that was not you know that was not in the cards for a business? What if that was or you didn’t get it? You know you applied in and you and you weren’t accepted? What are some other funding options?

Taylor: Yeah so a couple you know main options that a lot of organizations are pursuing. The first is it really is kind of an either and is an alternative that was provided you know in the cares act and in the same set of rules essentially that the PPP loans were provided in and that is the employee retention tax credit. Which provides potentially a very significant amount of the tax credit and it’s a refundable credit. So this is potentially going to come you know straight out as you know a significant amount of money, yeah and the way that this is essentially calculated is if we have employees and particularly if we’re a small relatively small organization less than a hundred employees the credit is calculated such that if you are paying those employees and they are continuing to remain on the payroll you can get up to five thousand dollars per employee back as an as a tax credit. You have a few options as to how you take advantage of the credit. You can, for instance, use it and essentially withhold you know when you typically would withhold some payroll taxes you can instead use that for the credit and just kind of gain immediate benefit for it. If you anticipate an amount to come back as a refundable portion you can actually request it in advance from the IRS and your third option is to wait until the end of the calendar quarter and claim it all is all at once and it would actually be refunded back to you as an employer. That’s a potentially a very significant amount. Again it’s up to $5,000 per employee in a calendar quarter. So pretty significant that’s one piece that we want employers to be thinking about. Now there are a few qualifications on that and eligibility requirements, for instance, the this is really designed for organizations that have been impacted by you know the pandemic and have been affected by the stay home orders so for instance if the organization has been required to be either shut down or operating at a reduced capacity that’s you know we would expect them to be eligible. Alternatively, if they’ve seen significant declines in gross receipts that’s another way to become eligible and that is not too difficult to me unfortunately right now but on the plus side, it gains us the ability to take advantage of that credit. So the employee retention tax credit is one the other is and I would say the ERTC is not something we can claim if we have a PPP loan. On the other hand, we have another loan program that is kind of more information that has been coming out on this and is not something that you can apply for it even if you have a PPP loan and that is the Main Street lending program. This is generally this design for some of our larger businesses are medium to larger businesses but there have been efforts to make it more accessible for our smaller businesses but you’ll want to really kind of have a need a significant need rather than let’s say you know we have some businesses out there that have smaller loans in you know the few thousand dollars up to hundreds of thousands of dollars calculated based on their payroll. The Main Street lending program is at this point at least we’re talking about you know five hundred thousand is a minimum amount. So it’s a significant amount but we have a number of organizations out there that are looking very closely at this loan program because there will be some fewer restrictions on the use of the funds. It won’t be tied it’s just to payroll it may be able to satisfy some just general operating costs that are you know are not just payroll-related and so there’ll be a little freer use of the funds with certainly some restrictions but that’s just you know another program that’s out there for our businesses that and other organizations that are having a tough time meeting you know financial you know needs right now. I just say for those that are interested in that program you know it’s been a little slower to start compared to the PPP information is still kind of filtering out there it’s not up and running yet but we expect it to be within the kind of the near term here. So it would benefit our interested organizations out there to kind of get going on looking at the initial requirements that are out there and restrictions on the funds just to check in on whether this is something one that we will want to pursue once it does become available because we if it’s anything like the PPP the funds could go quickly and so be a good idea to apply.

Julie: Okay so definitely stay on top of that. Cliff I’m going to come back to you in just a moment I’ve not forgotten about you but before we kind of move away from this you know the financial aspect, Patricia I want to come back to you because we have seen a lot of we’ve already seen bankruptcy filings and we’ve seen some major corporations j.crew, Neiman Marcus, JCPenney, so some of the major retailers that have already filed for bankruptcy. You’ve said Patricia that it’s not a matter of if but when that we’re going to see a big influx here talk to us about this because there are so many layers of impact when business files for bankruptcy.

Patricia: Yeah absolutely you’re right it’s not if it’s when and many people gauge it could be as early as the end of this summer, could be the fall that occurs and my phrase that I use over and over for bankruptcy is not all is lost. This occurred with a major influx of bankruptcies in 2008 9 and 10 it actually went on for 3 years and then recently up until this point there was low the lowest numbers ever for bankruptcy filings. So we were really almost due anyway because these 10 things tend to be cyclical and so the large retailers that you just described or likely in a pretty tough financial position before COVID 19 and then that just kind of sent them over the edge. So you’ll have those businesses and then you’ll have some that are directly COVID related and so the big question to ask the first thing that you have to look at is who filed bankruptcy? You’re going to receive a bankruptcy notice in the mail on the old rule of thumb for a lot of businesses or individuals it would just throw it they would charge the account off. You’re not likely going to be able to do that anymore because there’s going to be so many of them. First of all, it’s a bad idea because in most bankruptcies there is money to be had but you have to follow the proper procedures. The other aspect of bankruptcy is very time-sensitive. There are a lot of deadlines and the idea of bankruptcy is to treat all creditors the same you know as a creditor you’re the person that’s owed money you know the debtor is the one that files bankruptcy. There are several different types of chapters in most chapters’ reorganization chapters you file a proof of claim immediately and that proof of claim is the document in essence that governs how you get paid. There are tears of claimants in a bankruptcy case. I think I said that bankruptcy is designed to treat all creditors the same it doesn’t really honestly because there are classes. The unsecured creditor is the very bottom it’s the phrase that we often hear you get paid pennies on the dollar. The next is a secured creditor may be you have a security interest in assets and you might be able to at least get that asset out of the bankruptcy case and get some money that way even if you can’t get actual money. The next is administrative and priority claimant’s taxes and administrative claims. If you provide goods and services during the bankruptcy case itself trustees fees attorney’s fees those kinds of things. So that’s the hierarchy level of payment so your goal in a bankruptcy case is to get as high up that level of priority payments that you can and so where people literally leave money on the table is they either don’t file a proof of claim at all they don’t contact counsel or they don’t find out that they actually have higher claimants. There are administrative claims under Section 503 B 9 and that’s if you provided goods post-petition meaning after they file bankruptcy you get moved right up the chain to get paid as you can imagine why because you’ve provided to help keep that bankruptcy case alive. So you should be paid quicker and more than an unsecured creditor. If you also provided goods within 20 days of the debtor filing for bankruptcy you can be treated as an administrative claimant. You may have a reclamation claim it’s a state court principle or state law principle and it’s also applied in bankruptcy very time-sensitive. If you provided goods within 45 days of the debtor filing bankruptcy you have 20 days, it’s 45:20 rule 20 days to claim it and you get them back. Again you probably would prefer money but at a minimum, if you can get your goods back that is something. There are also builders trust fund claims which are kind of a breach of fiduciary duty a claim that requires an adversary proceeding that we could talk about at length probably more than our time that we have here today but and there’s also a critical vendor. So the point is to pay attention to bankruptcy notices don’t throw them away. Figure out who filed bankruptcy so if you have let’s see you are dealing with the company and you have a guarantee from that person to pay us from the individual who owns the company pay attention to who filed because the moment that a person or an entity files an automatic stay goes into place that you have to stop collecting. So if I get a bankruptcy notice for Cliff but Cliff doesn’t owe me any money then I don’t really care but if I get a bankruptcy notice for the company that Cliff owns then I need to stop collecting against a Cliff or excuse me the company but if Cliffs also owe me money I can still collect against him because he didn’t file. So it’s important to pay attention to all those things and this probably more so than any area that we that I have talked about likely requires counsel to assist you and the nice thing about it is while it may seem confusing to the layperson I can tell you pretty quickly whether or not you have a claim this worth pursuing whether or not you want to money to try to get money or whether or not you know you should walk away.

Julie: Thank You, Patricia. Yeah, so many things to think about so many like I think I could have spent an hour with each one of you and we would still be just skimming the surface. Cliff, I want to come back to you and ask you and I think the echo is coming from you actually but that’s we just moved up okay so Cliff I want to come back to you because of course at the center of everything that’s going on right now we do have a health pandemic that’s happening and so as we’re talking about businesses reopening employees returning to the office we have these health concerns so as an employer what can I do to make sure that as my team returns to the office they feel safe? What do I need to be doing to help them come back to the office?

Cliff: Well there’s a couple of things you can do that are common sense and then there are a couple of things you have to do that are more regimented and clinical based right. So the first thing that an employee wants to hear is they are safe right you have three bodies of people right now you got body number one and that’s people that are truly fearful because they whatever they believe that there’s a problem they have a health condition that they think makes them more susceptible to being seriously ill or dying or they’re around people who have such a thing. You have another group of people that you know they’re fearful but really they’d like to have some of that unemployment or they’d like to go ahead and stay home working home because it’s more convenient or it is you know like the idea of not coming in when they don’t want to come in and so that’s the group number two they’re kind of maybe they’re fearful maybe they’re not but it’s just not as flexible and not as nice as staying home in nice summertime and the third group is just people who just they don’t care one way or the other and they all have different reasons of looking at things. So from an employer standpoint, you got to find the common denominator how the denominator really is if you establish and you show that you actually care instead of look just go back to work as we get back to work it’s going to make a big difference and it just will because you can resolve a lot of issues by just getting to the bottom line on this. Here’s what you do. The first thing you do is physically change your work area to the extent that you can. Just move the desk around right you go to the website I just told you about the state of Michigan you look at that 2020 ninety-seven and it’ll tell you to keep people away from each other to the extent you can. There are nine different sections that order each one applies to different types of businesses, some are outdoor businesses some are construction some are manufacturing some are retail some are office spaces each one has its own individual requirements some more than others and then there are general requirements or whatever you are do something to make people think about the very least think that you care about them and so that you’re in compliance. Okay so there are two elements do it because you have to and do it because it makes a lot of sense psychologically for your employees to say they look what they’re doing and then don’t hide it trumpet, tell them what you’re doing. Well hey, look man we went out there and we spent $50.00 to put this little thing between you and everybody else. We moved you apart, here you go. You have to give people face coverings we went got you some really good ones maybe even get some cool ones with your logo on it right. I mean something that shows that you care and it’s personal for them. So that’s the very in my opinion that’s number one makes a change be compliant go out and get some cleaning supplies and make sure not just because you have to but then it’s available for people so they feel safe. When people say well I’m a little bit worried about coming back to work say well I understand don’t say too bad you got to come back to work. It’s you know it’s like anything else you go to a restaurant you throw a steak down well we used to be able to restaurant right you throw a steak down and say here you go or you go to a restaurant the exact same steak you put a nice tablecloth how can I help you and you put it down nicely put a nice garnish on it same steak probably worth twice as much because of the way you presented it. A lot of what we’re doing here is not just legal what we’re doing here is psychological we’re trying to make people feel safe by both what we do and how we do it and I think one of the critical components to getting people to come back to work is to alleviate unnecessary stress and the way we do it is we have a plan. Now we’re required to have a plan. The state has said every employer has to have a COVID 19 preparedness plan a pandemic preparedness plan and that plan is going to be those things we just talked about you’re going to put safety procedures, you’re going to make environmental procedures, you’re going to have administrative procedures and you’re going to have cleaning procedures. You’re going to have all these things in place and you have to have an on-site person designated whatever people are working and you know out they’re actually coming out of their house they have to be designated to review, monitor, and enforce everything that’s going on with respect to COVID19. So make sure people know who that is and before they come in say listen I just want you to know we have a plan we are ready and we have somebody here we’ve screening mechanisms that keep people out who have symptoms. We’re going to have an opportunity once you come in here to have a physically changed workplace and if you have any problems any questions here’s where you go to. I mean you put a plan like that together I mean you’re not going to have everybody be happy some people just going to scream and yell you can’t please everyone but for the most part, those are the types of things that will get people back through the door quicker. Now you can always argue well to make more money on unemployment they want to stay on unemployment because it makes sense for them. Work with your employees, be flexible can’t stress that enough. If you just go to the letter of the law you’ll get people doing just the letter of what their obligation is and they’ll fight you but if you would do a little bit more and you the biggest problem is going to be attending and I’m the biggest stickler, show up to work all the time you can’t come to work I don’t need you. if you’re good when you’re there if you don’t come there then you know good that’s my mindset that’s how I’ve always thought but you got to relax that a little bit and it’s just the reality of how life is right now for at least for the meantime. So be flexible with your work rules be understanding but more than anything else you can still be a good employer tough employer if you show that you are in compliance with the rules if you’re open if you’re trumpeting your own horn showing them what you’re doing for employees that goes so much farther than simply banging your head against the wall go why don’t people just come back to work and maybe you’ve done some great stuff maybe you are taking a lot of effort to get out there and do it and you’re looking at the CDC guidelines and you’re looking at all these new information that’s coming out on how to do things but the communication is critical. How you communicate when you communicate being upfront and just let people know they have certain rights. So I think that’s the most important part of what we’re doing right now. Is it’s not rocket science okay it really isn’t it? What it really is just more of a kinder way of communication that’s going to get you there. The things that we’ve got to do aren’t complicated. Keep people six feet apart that extent you can. That’s just it is what it is and you say well I can’t do that okay fine then to the extent that you can’t keep people 6 feet apart you got to identify why and where to do everything you can and then provide additional PPE for those people. So whether you know there are rules out there to say if you can’t stay 6 feet apart you got to require them to wear a mask of certain elements and if they can’t stay more than 3 feet apart for prolonged periods in like a manufacturing setting or other settings even you got to give them a face shield right. So keep on top of what you’ve got to do and explain to them why you’re doing it. If people have to go to the bathroom make sure they have a mask on when they go around. If they’re going to come in they got to hit a time clock, make sure your spacing about 6 feet. If people have to drop something off to somebody put an X on the ground little things and then let them know about it and then train them, teach them how to put on a mask. I know it sounds silly but trains them how to put a mask on right you have people hang and masks all over the place it just looks dangerous to some people who are scared. So take the time to either put a video together to show or have a meeting and say look here’s how you wear face you know coverings here’s what it is. You go on the CDC hand them out a little printout you don’t do a whole lot of work on this but train them how to do it. Little things like that are critical to alleviating fear and unnecessary anxiety in the workplace.

Julie: Cliff so many things you said are just really resonating because you again are emphasizing this point of communication you know businesses need to be in compliant they need to get their workplaces ready for employees to return but talk to your staff help them to feel comfortable make sure they know what you’re doing and talk to your clients your customers about it as well you know put it out there and if you need help with the language and how to say some of these things if it’s just not your forte as we talked about with their experts yesterday on our on our series we put together a whole blog and language to you some language to avoid to kind of help through this process because as business owners we do sometimes get and we’re very focused and as everyone has heard today there are so many things to be thinking about so many so many layers to this for businesses and so we need to we need to remember as our experts said on Monday our mental health experts that everyone’s going through some level of trauma right now and the clip as you described people are going through various layers of whether they think masks are needed or not needed or just a whole range of feelings about returning to the office and from an employer perspective Cliff what you’re saying is we really need to focus on staying in compliance making sure our team feels safe because at the end of the day people who feel comfortable and who are as kind of happy as they can be in the environment they’re going to be more productive they’re going to help our businesses get back off the ground again. So Cliff along those lines talking about communication we’ve got it we’ve got just a couple of minutes left as we wrap up here give it any final questions please go ahead and put them in now so that I can our guests get on with their day. Patricia, we talked months ago about communication and communication on every level. All three of you have really emphasized that with each of your answers today so if there’s one thing we close on it’s talking about communication only with communication Patricia you’re saying we now have to also take action.

Patricia: Yeah communication is key always has been but certainly it is now more than ever and again like we’ve talked about these are relationships we’ve had with our customers and clients for years and years and years so these are difficult conversations and so that’s why our inclination might be to stick our head in the sand or try to ignore it and we just simply can’t you’re going to leave money on the table you’re going to lose your rights or you may end up being the one that breaches the contract first you don’t want any of that to happen. So communicating is key taking action is key and I will say in my conclusion there are many people who are willing to help you know the resource guide is one there are two other additional people in addition to or two I mean there’s many people willing to help and the phrase that we keep hearing is that we’re in this together is true and if there’s of communication if there’s a conversation that you don’t want to have with your client call an attorney that’s what they get paid to do and they can do it for you so that you don’t have to have some of those very difficult conversations.

Julie: Cliff is there anything you’d like to add if we wrap up here? Anything that we haven’t touched on that we should make sure to mention?

Cliff: Yeah I think the number one thing I can tell people is being educated be educated react slowly when it comes to an emotional reaction and only rely on facts and it’s the most important thing that an employer can do because one wrong statement one quick-fire one quick suspension one loose statement to a non-manager or non-attorney I can come back to hurt you if you get sued later on down the road and make no mistake this is a time when lawsuits are born. Okay, whenever you have anxiety emotions all the stuff that’s going on and all different beliefs out there that employee who is the worst employee who didn’t get rid of before this it’s now looking for an opportunity to you know either protect themselves or get a gold ticket on the way out. Educate yourself on your rights make sure you’re up to date on what you’re supposed to do. They’re putting it out there they’re making you it’s clear what you have to do I think there are some gray areas but when in doubt slow down before you fire people slow down before you discipline slow down before you speak out of hand and say something you’ll regret later on. That will get you in trouble quickly you know if you say well I don’t want to give this person more leave think about what the long-term consequences are how does it really affect your business and I think that’s when we get ourselves into trouble and we don’t do that so think part of your at the business plan think before you speak number one and number two give yourself time so let me get back to you but you want to leave until I get back to you something that’s not discriminatory I suppose it’s not a knee-jerk reaction that’ll get you out of a long term problem.

Julie: And of course as questions arise reach out to your care team your legal counsel thanks you all three of you for joining us today. We are out of time. I really appreciate you all taking the time to continue to support all of us here in the community with your answers to these questions so thank you all of you and we will be back here again for one final interview this week. Tomorrow we’re going to be talking about business strategies with Chris buck of Martin commercial properties and Reuben Levinsohn partner and founder at Washington Avenue ventures. We’ll see you back here tomorrow at 11 a.m.


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