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NEBRASKA PARALEGAL ASSOCIATION

IN BRIEF

VOLUME MMXX ISSUE 2

JULY 2020

IN THIS ISSUE: From the President ..... 1 From the Editor ........... 2 New Members ............. 3 Save the Dates ............ 4 Student Education Award Winners ............ 4 District I News ............ 5 NALA News .................. 6 NALA Conference ........ 8 Article: Become a More Productive Person ....... 9 District II News ......... 12 Getting to Know Your Officers ...................... 13 Getting to Know Your Committee Chairs...... 15 Article: New Protections Under Title VII .......... 17 Article: Implications of Temperature Screening Procedures ................ 19 Article: FAQ: How will COVID-19 and its Economic Impact Affect Businesses ................. 23

FROM THE PRESIDENT: KIMBERLY BROWN, ACP Summer is here! I hope you are safe, sound, and healthy this summer! We certainly have had a trying few months in our lives; however, as paralegals, adapting is what we do best! Please know that the Board of Directors, Committee Chairs, and also our members would be happy to help anyone in need. The Nebraska Paralegal Association is healthy & thriving during these uncertain times and is doing so because of our amazing members! A recap of NePA’s accomplishments over the last few months: 1. NePA’s Board of Directors met once in April for an informational and planning meeting and another in June for our regular Board of Directors meeting.

2. The District I & II Directors converted the March and April luncheons to a virtual format. We had many more attendees for each meeting than normal! The District II meeting was accessible for those who normally cannot travel to Lincoln, which was well received! 3. The CLE Committee converted the entire Spring Seminar to a virtual platform. Each session had over 45 attendees! Mark Fahlsen’s presentation had over 60 attendees! Thank you for your support and attendance – we have heard your feedback and plan to continue offering virtual sessions in the future. 4. NePA’s Board of Directors also held an informational meeting in June after the last Spring Seminar session. We did not have as many attendees as anticipated, but we had a quality discussion and reports by our officers. Thank you to those who attend! 5. Kelly Elder, NePA’s Technology Director, has continued posting job opportunities on the website. If you have not checked out our Careers page, please do so here! We have 7 job opportunities posted since the beginning of May, which is such a blessing in the current state of our country. 6. Carla Larson, NePA’s Secretary, has continued scanning hundreds of documents for future preservation and upload to the backend of NePA’s website.

www.nebraskaparalegal.org

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FROM THE EDITOR Welcome to the July edition. I hope you all are continuing to stay healthy! It has been a strange time since our last edition and hope you are all doing okay during the COVID-19 pandemic. Cases have been paused, trials have been moved, meetings cancelled, and most of us are working from home. Good things will soon come and I hope, if anything, we’ve enjoyed the company of loved ones! As you can see in this edition, NePA did not skip a beat in battling the changes we faced. We had wonderful virtual CLEs, Zoom calls, and volunteering. Please enjoy our latest issue and remember we are all in this together!

If you have any comments or corrections regarding this issue or have suggestions for future content, please forward them to me at publicationseditor@nebraskaparalegal.org

Publications Committee Members Casey Ochs, CP, Chair Kimberly Brown, ACP Kim Hansen Amber Roberts, ACP


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NEW MEMBERS

Active Susan Willis

Student Alexander Plymale - Metropolitan Community College Not a member yet?

Check out all the details and download an application at: https://nebraskaparalegal.org/join.php

President’s Message Continued 7. Alicia Tutini, Ad Hoc Survey Committee Chair, and her committee members have continued working on drafting a salary survey as discussed at the 2019 Fall Meeting. 8. Amber Roberts, NePA’s Past President, graciously offered Gavilon’s webinar technology for us to host our Spring Seminar and District meetings. A huge shout out to Amber for running each of those meetings and to Gavilon for allowing us to use their technology! 9. We have created an Ad Hoc Financial Committee to determine how we can use the extra funds in our budget due to the cancellation of so many of our in-person events to give back to our members and continue to be technologically relevant in today’s environment. 10. NePA added a Public Relations Committee Chair, Tyson Girard, who updated our LinkedIn page and has a long list of ideas for volunteer opportunities for members in the coming year. We are fortunate that Tyson agreed to take on this role. Stay tuned, as there is more to come from this committee! Reach out to me if you’re interested in joining this committee. Thank you to each of our Board members, Committee Chairs, Committee members, and members for all you do and for the support you provide. As you move through the uncertainty over the next few months, please remember that we are all here for one another and if you need anything, please reach out to your Board of Directors (whether it’s NePA’s Board of Directors or your personal Board of Directors), and seek help. We do not need to go through these tough times alone. Be safe. Be well. Be kind.


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SAVE THE DATES August 1, 2020: Deadline for the CP Scholarship August 12, 2020: District II (CLE) - Getting to Know the Civil Division of the Attorney General’s Office - Virtual September 16-17, 2020: Fall Seminar, Recognition Breakfast, and Annual Meeting (CLE)

October 28, 2020: District I (CLE) - Notary Tips, Tricks and Things to Avoid

Register for events at: http:// nebraskaparalegal.org.

November 3, 2020: Diversity Event (CLE) - Native American legal update, Legislative update, and Privilege & Microaggressions session

Board Meetings (5:30-7:30pm):

November 4, 2020: District II (CLE) - Prosecuting Domestic Violence & Sexual Assault Cases

August 4, 2020 Virtual October 6, 2020 Kutak Rock LLP

November 18, 2020: District I (CLE) - Working for Justice for All April 23, 2021: Spring Seminar & Mid-Year Meeting (CLE) - Mahoney State Park

Winners of the Student Education Award: Rylee Hall - College of St. Mary Rae Bodnar - Metro Community College


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DISTRICT I NEWS As many of you are aware, due to the ongoing COVID 19 pandemic, NePA was faced with the decision of cancelling its monthly luncheons or going virtual. With the help of Amber Roberts, NePA was able to go virtual and allow our members to continue obtaining CLE! Below is a summary of the great CLE offered this spring. In March, NePA partnered with the Nebraska Chapter of ARMA to host “Managing Law Firm Records in the Digital Age,” presented by Ed Carroll, CIO of Dinsmore & Shohl LLP. Ed is a national speaker, including having presented at the 2019 NALA Conference. He provided a comprehensive overview of the many considerations law firms have when it comes to their records including protecting their clients’ information from security breaches. He emphasized the importance of this topic including that it minimizes risk, ensures compliance, reduces costs, and controls data growth. With the increase of the need for digital files, there are many challenges to maintaining or digitizing old paper files. Ed offered suggestions on not only the benefits of eliminating paper files, but how to ease into the transition and manage it. Twenty-seven members were in attendance, as well as two non-members. In April, NePA hosted “Flood Waters Rising: Bankruptcy & Dealing With the Devastation,” presented by Patrick Patino of Patino Law Firm. Patrick provided not only an overall summary of bankruptcy laws, but provided a look at how the 2019 floods and current pandemic are increasing the rates of bankruptcy. The presentation provided in-depth information and reflected the local impact these events will have today and in the future. Patrick noted staggering statistics, such as the result of the flood, there was an economic loss to Nebraska of over $1.3 billion dollars. This number has a direct effect on bankruptcy. Patrick indicated that we are just starting to see the fillings increase, but they will likely continue for the foreseeable future. Thirty-seven members were in attendance, as well as nine non-members, and one sponsor. This session was also recorded.


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NALA NEWS - CARYN REDDING, CP As you’ve undoubtedly heard many, many times over the last few months, “due to the current circumstances…,” it is, unfortunately, NALA’s turn to utter those words. Sadly, the 2020 NALA National Conference in Atlantic City, NJ has been canceled... in person, that is. However, NALA has decided to offer the annual conference virtually! If you already registered for the 2020 Conference, contact NALA. They will either issue you a full refund or apply your conference fee to the 2021 conference which will lock in your rate for 2021. That conference is scheduled for July 22 – 24 in Louisville, Kentucky. You can choose to attend the “new” 2020 NALA Conference @ Home. Many of the same speakers will be presenting, but a new schedule will be distributed once it is finalized. The best part is NALA is charging a significantly reduced registration fee. Virtual conference registration can be found on NALA’s website. The new rate is $99 for members and $149 for non-members. Complimentary sessions which provide access to the Installation Ceremony, Annual Membership Meeting, Affiliated Associations Annual Meeting, and both NALA Board of Directors meetings are free to everyone. You will still need to register for the complimentary sessions if you are not already registered for the virtual conference. You can also order the On-demand Conference Recording bundle for a virtual conference attendee which will be an additional $199 for members and $249 for non-members; or, for those not registered as a virtual conference attendee: $575 for members and $628 for non-members. NALA members please be sure to vote for your choice of Board members. Voting will be open June 17th through July 8th. As always, check NALA’s website for details on the candidates and to vote. Have you heard about NALA Commons? Have you checked it out yet? This is a collaborative site recently launched and has already facilitated engaging conversations about the paralegal field. This is an excellent way to talk through questions you may have, share important articles and stories, and simply engage in meaningful conversations about the subjects you are passionate about in the paralegal field. Now, for some exciting and wonderful news: Amber K. Roberts, ACP has been selected as our Affiliate Association Award winner! If there is anyone in NePA that does not know Amber, where have you been hiding? Just kidding! The following paragraph is a small snippet of how Amber has helped and improved our association over a short period of time. I can’t imagine what she will continue to do for us! Amber Roberts, ACP joined NePA in 2011. In the short nine years since, Amber has served on the Board of Directors as Publications Editor, NALA Liaison, President-Elect, President and Past President. As PresidentElect, Amber chaired the Continuing Legal Education Committee and as Past-President she chairs the Sponsorship Committee. Amber has also been on our Relay for Life team for many years and is very active in organizing fundraisers for our team, the Legal Beagles. For example, she organized fundraising events at the Corky Canvas, where you can pretend to be an artist...all who attend have lots of fun, whether they can paint or not. In addition, Amber has also served on numerous committees. On a national level, Amber is a graduate of NALA’s LEAP program and has also presented at two of NePA’s NALA Affiliate Exchange presentations. She has also been instrumental in providing and equipping NePA with the tools to continue offering CLEs virtually. Be sure to thank Amber for all her work in NePA the next time you see her. Congratulations, Amber!!! If anyone plans on taking or retaking the CP exam and has questions, please contact NALA at testing@nala.org. If you are planning on taking the CP exam, NALA has updated the CP Exam Fundamentals book. Visit the website for more information. If you need to check on the status of your certification or any CLE credits, contact NALA at cle@nala.org.


Attention Students and Paralegals! Apply Now for NePA's CP or ACP Scholarships!

Who? YOU!

Be a NePA Member Reside in Nebraska or Iowa Meet the NALA CP Eligibility Requirements Complete the Application on NePA's Website Not received any other NePA CP/ACP Scholarship

What? $925 - CP Scholarship to cover approved expenses $250-300 - ACP Scholarship

When?

Apply now!

CP Application deadline: August 1 ACP Application deadline: May 1

Where? For more information on eligibility requirements and application procedures, see NePA's Scholarships/Awards webpage: https://nebraskaparalegal.org/ scholarships.php

Questions? Contact: Katie at 402-978-5227 or kwibbels@fraserstryker.com Selection of scholarship recipients shall be made without regard to race, color, creed, sex, age, national origin or marital status


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NALA CONFERENCE NEWS - BRIDGET STUHR, ACP For those of you who may have not yet heard, NALA’s Board of Director’s has announced it will host its first-ever, 100% virtual conference! This feat will be as unprecedented as the pandemic. Almost everything they’ve been planning for the last year, is now being reconfigured to accommodate this unique opportunity. The brainstorming sessions kicked in immediately and The Board, along with NALA’s staff has completly shifted gears to pull this off. The best part about entering this uncharted territory is that ALL members of NALA (and non-members too!!) can take part. For those who have always dreamed of attending a NALA conference, but didn’t have the means, this one’s for you! As a registrant, you get to experience the phenomenal CLE presentations ($99* for NALA members, $149 for non-members), participate in the annual meetings, watch the Board of Director meetings and the installation of officers ceremony (for free!), all from the comfort of your home or office. The format for this conference will definitely be a little different, the schedules may vary slightly from what we’re used to, but the focus and the goal will be the same. We will all be able to come together, even if it’s via a virtual platform, to become better paralegals. If you have any questions about the virtual conference, feel free to contact me. I hope you’re all staying healthy and I look forward to seeing you soon! *If you are a member of NALA and haven’t used your $80 gift certificate, you can apply it to the $99 fee! That brings the total registration fee to $19!

Conference Registration Options* Type

Member

Non-Member

Virtual Conference Registration (includes complimentary sessions below)

$99

$149

Complimentary Sessions Only (Board Meetings, Annual Meetings)

Free

Free

Registration Link

Conference Recording Packages available on the Recorded Tab on NALA’s Conference & Expo page.


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3 PSYCHOLOGY-BACKED WAYS TO BECOME A MORE PRODUCTIVE PERSON The psychology of time management is based on a simple principle called the Law of Control. This law says that you feel good about yourself to the degree to which you feel you are in control of your own life. This law also says that you feel negative about yourself to the degree to which you feel that you are not in control of your own life or work. Psychologists refer to the difference between an internal locus of control, where you feel that you are the master of your own destiny, and an external locus of control, where you feel that you are controlled by circumstances outside yourself.

When you have an external locus of control, you feel that you are controlled by your boss and your bills, and by the pressure of your work and responsibilities. You feel that you have too much to do in too little time, and that you are not really in charge of your time and your life. Most of what you are doing, hour after hour, is reacting and responding to external events. There is a big difference between action that is self-determined and goal-directed and reaction, which is an immediate response to external pressure. It’s the difference between feeling positive and in control of your life and feeling negative, stressed, and pressured. To perform at your best, you must have a strong feeling of control in the important areas of your business and personal life. YOUR THOUGHTS AND FEELINGS In psychological terms, each person has a selfconcept, an internal master program that regulates his behavior in every important area of life. People with a high self-concept regarding time management see themselves and think about themselves as being well organized and productive. They are very much in charge of their lives and their work. Your self-concept is made up of all of your ideas, pictures, images, and especially your beliefs about yourself, especially regarding the way you manage your time. Some people believe themselves to be extremely well organized and efficient. Others feel continuously overwhelmed by demands of other people and circumstances.

person, there are a series of personal programming techniques that you can practice. 1. Program Your Mind: …Change your inner dialogue. Ninety-five percent of your emotions, and your eventual actions, are determined by the way that you talk to yourself most of the time. Repeat to yourself, “I am well organized and highly productive.” Whenever you feel overwhelmed with too much work, take a time-out and say to yourself, “I am well organized and highly productive.” Affirm over and over to yourself that “I am an excellent time manager.” If people ask you about your time usage, tell them “I am an excellent time manager.” Whenever you say that “I am well organized,” your subconscious accepts these words as a command and begins to motivate and drive you toward actually becoming well organized in your behaviors. 2. Visualize Yourself as You Want to Be: The second way to transform your behaviors is to visualize yourself as an excellent time manager. See yourself as organized, efficient, and in control of your life. Remember, the person you “see” on the inside is the person you will “be” on the outside. If you are already a well-organized and highly productive person, how would you behave differently? What would be different from the way you behave today? Create a picture of yourself as calm, confident, highly efficient, more relaxed, and able to complete large amounts of work in a short period of time. Imagine what a highly productive person would look like. Would the person’s desk be clear and tidy? Would the person appear unhurried and unstressed? Create a clear mental picture of yourself as a person who is in control of his time and life.

3. Act “As If”: The third way to program yourself is to act “as if” you were already a good time manager. Think of yourself as being well organized in everything you do. If you were already excellent in time management, how would you behave? What would you be doing differently? With regard to your time and personal productivity, what would be different from the way you do things now? Interestingly enough, even if you do not think that you are a good time manager today, but nonetheless you preMAKE A DECISION tend that you already are, these actions will generHow do you develop new, positive beliefs about ate a feeling of personal efficiency. You can actually yourself and your level of personal productivity? For- change your actions, habits, and behavior when you tunately, it is not difficult. You simply use the four “fake it until you make it.” Ds: desire, decisiveness, determination, and disci- BELIEFS BECOME REALITIES pline. Most important, make a decision to develop a specific time management habit, like being early for What are your beliefs about yourself and your ability every meeting for the foreseeable future. Every to manage your own time? You can take all of the change in your life comes about when you make a courses on time management, read all the books, clear, unequivocal decision to do something differ- and practice the various systems, but if you perceive ently. Making the decision to become an excellent yourself as being a poor time manager, nothing will time manager is the first major step. Once you have help. If you have developed the habit of being late made the decision to become a highly productive for meetings and appointments, or you believe that


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3 PSYCHOLOGY-BACKED WAYS TO BECOME A MORE PRODUCTIVE PERSON you are a disorganized person, those habits become your automatic behavior. If you do not change your beliefs about your personal levels of effectiveness and efficiency, your ability to manage your time will not change, either. Adapted with permission from Time Management by Brian Tracy, copyright Brian Tracy. Bring It Home Sitting outside a Panera Bread adjacent to an airport, planes set off in calculable succession while my mind wandered without restraint. I had just left a conference room in a building about a mile away where I had interviewed for an enterprise company. Coming from a string of small marketing agencies, the elevators and siloed wings of offices made me queasy. Now that the interview was over, however, I realized how badly I wanted the job. But, doubt crept in. “You will get the job,” I repeated to myself internally and externally under my breath. There were people around, but I didn’t care. The situation was out of my control. My response to it was not. Three weeks later, I received a phone call from HR. I got the job, and I attribute it to shifting my mindset and moving forward when I could have put my life on hold. Have you ever wasted time worrying about events with which you had no decided influence? How do you escape the downward spiral of negative thoughts to continue operating as a productive person? Comment below with your unique story about turning beliefs into realities. - HarperCollins Leadership Essentials Brian Tracy is Chairman and CEO of Brian Tracy International, a company specializing in the training and development of individuals and organizations. Brian's goal is to help you achieve your personal and business goals faster and easier than you ever imagined.

Reprinted with permission, from the October 11, 2019 edition of Leadership Essentials Personal Growth section, by Brian Tracy. Get more information at https://hcleadershipessentials.com/ blogs/personal-growth/3-psychologybacked-ways-to-become-amore-productive-person.

877-567-5669


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Koley Jessen Paralegals 1125 South 103rd Street

Omaha, NE 68124

koleyjessen.com


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DISTRICT II NEWS

The next Quarterly Luncheon is going to be a Webinar on 8/12/20 with Assistant Attorney General, Ryan Post, talking about the Civil Division of the Attorney General’s Office. For all questions, please contact: Courtney Pfeiffer, District I Director at district1director@nebraskaparalegal.org or Deb O’Brien, District II Director at district2director@nebraskaparalegal.org


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GETTING TO KNOW YOUR OFFICERS - AMY OLSON, ACP How did you end up in the paralegal field? Growing up, I knew I wanted to be a judge or a paralegal. Years later I worked at Omaha Legal coding documents in Summation. This fueled my love for the legal field. I then began working at Mutual of Omaha as a Litigation Assistant. Doing that work prompted me to go back to school to earn my paralegal degree. How did you become involved in NePA? Mutual encourages participation in NePA.

What made you decide to join the Board? While working with Kim Brown and Amber Roberts on the Diversity & Inclusion Event committee I realized that they are very intelligent, thoughtful, and powerful leaders. When they approached me about joining the board I was thrilled to learn from them. Kim has a very mild-mannered, but confident leadership style that is very effective and engaging. What has been the greatest benefit of being a member of NePA? I would say networking and continued personal and professional growth are huge benefits of being active in NePA. What advice do you have for those looking to enter the paralegal field?

Learn about many different areas of the field. There’s more to the field than CSI and Criminal Minds. There are opportunities in government and civilian arenas, including contracts, patents, family, military, insurance, and more. The many fundamental principles of the American justice system are involved in all of them, and often overlap. What is your favorite part of your job? The challenges it offers me. Although litigation is often repetitive work every matter is different. I like learning new things every day. Also, my team! I know I am extremely blessed to work with such an intelligent, kind group of people.


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GETTING TO KNOW YOUR COMMITTEE CHAIRS - TYSON GIRARD, CP How did you end up in the paralegal field?

What is your favorite part of your job?

Happenstance! I enlisted in the United States Air Force right after High School and became a Security Forces (fancy word for cop) member. When I got out of the Air Force, I knew I wanted to do something different, but wasn’t sure what that was at the time. I began pursuing my Associates degree in Business Management. During a Business Law class our professor and the Paralegal professor had our classes participate in a mock trial as a project. I volunteered to be one of the “attorneys” for the project. After we completed the project, all of my classmates (including both professors) told me I was getting my degree in the wrong field and encouraged me to switch my degree to the Paralegal Studies program – so I did! Shortly after switching my degree focus, I landed my first job for a small firm in Salina, KS doing criminal defense and family law. The rest, as they say, is history.

Full disclosure, I’m a prior cop! What I love the most about criminal defense work is I get to be a cop all over again (without the politics associated) and dig into cases. I get to investigate alleged crimes, go look at crime scenes, investigate/interview potential witnesses, and dig up all the dirt that I can on individuals. In my experience, I have found this to be extremely lacking in the police work that is done today. I firmly believe that everyone, regardless of guilt/innocence, is entitled to representation and a defense. I love that I get to help individuals on a daily basis.

How did you become involved in NePA? My boss encouraged me to join shortly after I started at my firm to help me grow my network of individuals in our profession in Nebraska. What made you decide to become Committee Chair of the Public Relations Committee? After joining NePA and attending a couple events, I knew I wanted to get involved more and help in any way that I could to further the vision and mission of NePA. I wasn’t really quite sure how to get involved and had expressed interest to a few members here and there. After doing what I could here and there, I was approached about the Public Relations Committee Chair position, and I couldn’t help but jump at the chance to get more involved in our organization. What has been the greatest benefit of being a member of NePA? The professional development, leadership skills, networking and friendships that I have developed! What advice do you have for those looking to enter the paralegal field? You are going to work long, hard hours, but it is so very worth it. As a Paralegal you play a very integral role in a firm/attorney’s success. Be aware of your ethical rules and guidelines. You are going to run into good attorneys and bad attorneys. You are going to run into good clients and bad clients. Never compromise your own integrity. Nothing is worth losing your self-respect over. You literally have your client’s lives in your hands. Treat your position with the highest reverence.

Any funny stories you could share? At the last firm I worked for, I talked my “old school” attorney into transitioning from research in books to computer research. With law books now available on CDs, and through Westlaw/LexisNexis, I thought it would be great to free up our office library for other practical/useful office space. We went through a room full of books and decided which few books we wanted to keep and identified the remainder to be recycled. After that I reached out to numerous colleges/schools to see if anyone would take a donation of the old books. No schools wanted them, so we stacked them in a corner and asked the cleaning crew to remove them with the other paper recycling. It was a big job, which I didn’t expect them to accomplish in one night but thought if they would take even just a few books out with them each night, we would eventually have the office space free. After the first night or two, a few books disappeared, but the rest of the large pile remained there day after day, in spite of the “recycle” tag that reminded the cleaning crew to remove them. After a couple of weeks had gone by and the large pile of books was still there, I added a second note alongside the “recycle” sign. It read, “Please remove these books or we’ll make you read them.” Every book was gone the next morning.


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SEXUAL ORIENTATION AND GENDER IDENTITY ARE NOW PROTECTED CHARACTERISTICS UNDER TITLE VII For more than half a century, the law has been clear that Title VII of the Civil Rights Act of 1964 has prohibited employers from discriminating against employees on the basis of sex. The statutory language, however, does not specifically include, reference, or otherwise address sexual orientation or gender identity among the list of protected bases. Thus, left uncertain was whether “sex” – as that term is used in Title VII – was to be interpreted broadly so as to prohibit employment discrimination on the basis of sexual orientation or gender identity. Uncertain, until now. On June 15, 2020, the Supreme Court of the United States unambiguously answered this question, declaring that Title VII protects employees against discrimination based on sexual orientation and transgender status. The case of Bostock v. Clayton County, Georgia was a combination of three lawsuits, each from a different Circuit Court of Appeal. Notwithstanding the different circumstances of each action, all three cases shared the fact that each separate employer admitted to firing its employee for being homosexual or transgender. The Second and Sixth Circuits held that Title VII protected the employee from such conduct; the Eleventh Circuit reached the contrary conclusion. Given this split in the lower courts, the only question for the Supreme Court’s analysis was a legal one – Does Title VII protect employees against discrimination on the basis of sexual orientation or gender identity? The Court answered in the affirmative, issuing a 38-page opinion that can be distilled down to author Justice Gorsuch’s statement that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Accordingly, discrimination against employees on the basis of sexual orientation or gender identity is now actionable under Title VII.

Reprinted with permission, from the June 17, 2020 edition of Baird Holm’s Labor & Employment Law Update. Mark Goldsmith is a member of Baird Holm LLP’s Labor & Employment Section. Get more information at www.bairdholm.com.


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LEGAL IMPLICATIONS OF IMPLEMENTING TEMPERATURE SCREENING PROCEDURES Businesses are reopening and implementing public health procedures to protect both their employees and customers or other visitors to their premises. One procedure that most are including in their safety protocols is temperature screenings. Questions are arising as to the permissibility of conducting such screenings, and how the resulting information should be handled. The purpose of this alert is to outline the legal implications of conducting temperature screening of individuals, including employees and customers, and most importantly, to provide practical recommendations to employers and business owners to guide their activities. Employee Temperature Screenings at the Federal Level

The Equal Employment Opportunity Commission (EEOC) has announced that temperature screenings are permissible. They will retain their permissible status as long as COVID-19 remains a “direct threat” to public health, as defined in the Americans with Disabilities Act (ADA). COVID-19 will be deemed a “direct threat” by the EEOC at least until the CDC and state and local authorities update their evaluations of the public health crisis. Under the ADA, any data from disability-related inquiries or medical examinations must remain confidential. Records of employee medical conditions or history must be collected and maintained as separate, confidential records. These record-keeping and confidentiality requirements likely apply to temperature checks. To help employers establish effective testing protocols, the CDC has published guidelines for conducting employee temperature checks which include in material part: •

Employers should develop and implement policies to prevent employees from congregating in groups while waiting for screening. This can be done by staggering shifts, start times, and break times to reduce the density of employees in common areas.

Screening methods should incorporate protective social distancing, or physical barriers to minimize the screeners’ exposure. These methods can include: •

Allowing employees to take their own temperature before coming into the workplace and then verifying upon arrival that their temperature is below 100.4°F to the screener, and that they are not experiencing coughing or shortness of breath. This should be coupled with a visual inspection of the employee for signs of illness, while maintaining a distance of 6 feet apart.

If the screener is taking the employees temperature, the screener should stand behind a physical barrier, such as glass or plastic window or partition. The screener should wash hands with soap and water or use hand sanitizer with at least 60% alcohol before beginning to screen. The screener should: •

Make visual inspection of employee for signs of illness

While using disposal gloves, check employee’s temperature by reaching around or through a partition or barrier while making sure the screener’s face remains behind the barrier at all times.

If the screener is performing a temperature check on multiple individuals, a clean pair of gloves should be used for each employee and the thermometer must be thoroughly cleaned between each check. If disposable or non-contact thermometers are used and the screener does not have physical contact with an individual, there is no need to change gloves before the next check. Non-contact thermometers should be cleaned and disinfected according to manufacturer’s instructions and facility policies.


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LEGAL IMPLICATIONS OF IMPLEMENTING TEMPERATURE SCREENING PROCEDURES •

If social distancing or barrier controls cannot be implemented: Personal Protective Equipment can be used if screener is within 6 feet of an employee during screening. However, PPE is seen as a less effective protection method.

Employee and Business Owner Temperature Screenings at the State Level States vary wildly in their current approaches to temperature screenings and in determining what temperature level is defined as a “fever”. In Nebraska, there is no state-wide policy in place. However, some local governments and County Health Departments are setting unique temperature screening requirements. While in Iowa there is also no state-wide policy in place, Iowa has recommended that employees with a temperature of at least 100.4 degrees stay home. Other states are implementing policies and procedures that go beyond the employer-employee context. For example, on June 6, 2020, the New York Governor issued Executive Order No. 202.38 that permits commercial building owners, retail store owners and those authorized to manage public places within buildings and businesses to require individuals to undergo temperature checks as a condition to entry. Building owners may deny entry to individuals who refuse to undergo the check or who have a temperature above the levels set forth in New York’s Department of Health Guidelines. As businesses continue to open up public access, it is unclear whether other states will follow New York and implement mandatory temperature checks authorizations in commercial and retail settings. Property owners and businesses should keep in mind that they have discretion over whether to require visitors and customers to temperature screen (unless required to do so by governmental entities). Even in the absence of applicable state guidance authorizing required temperature screenings, property owners and/or businesses can set a uniform policy for all building visitors. Data Privacy Concerns The collection of information from employees or other individuals can often create data privacy and security concerns under state and federal laws. Many businesses are turning to efficient no-contact temperature taking devices for the technology efficiencies underlying the use of these devices. However, businesses must remain aware of the implications of using no-contact devices that incorporate facial recognition and thermal scanning to take temperatures. A handful of states, including Illinois, Texas and Washington, have adopted privacy laws governing the collection and use of biometric data. Under these state laws, the use of temperature taking devices that deploy facial recognition may violate privacy rights unless proper disclosure and consent is received. A business who chooses to maintain a record of the temperature screening results should bear in mind that the collection of personal information by the business is likely subject to applicable state and federal privacy laws and may require additional disclosure and retention obligations on top of those required by the ADA. In particular, a business collecting temperature screening data from a California resident (including a California employee) should be mindful of the requirements of the California Consumer Protection Act (CCPA). Businesses subject to the CCPA must provide heightened disclosures with respect to the collection of personal information, including biometric data, prior to the point such information is collected. Recommendations To help businesses implement effective, safe and compliant temperature check protocols, the following steps should be taken: •

Follow CDC Guidelines: The CDC has provided several different methods for conducting temperature screenings as outlined above, and each business should evaluate which procedure will work best for them.

Communicate with Employees and Building Visitors: Inform employees and other building visitors how the screening process will be conducted; what, if any, information will be collected; and how the information will be used, stored and shared.


VOLUME MMXX, ISSUE 2

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LEGAL IMPLICATIONS OF IMPLEMENTING TEMPERATURE SCREENING PROCEDURES CONTINUED •

Conduct Screenings in a Confidential and Non-Discriminatory Manner: To comply with the ADA, ensure that screenings are as private as possible. If an employee fails the screening, inform them in a private manner. Additionally, implement a non-discriminatory screening policy by mandating screenings for all employees.

If You Maintain Records, Keep Them Confidential and Separate: To comply with the ADA, any screening records must remain confidential and separate from the employee’s personnel file. Employers can also elect to not record temperature screening results (except as to instances where results dictate excluding the employee from the premises) which may be the best option for many employers. In addition, keep in mind the state requirements applicable to the collection and retention of personal information generally.

Comply with State and Local Requirements: State and local screening requirements may deviate significantly from federal requirements and should be consulted for each business location. Consider whether the type of temperature taking device used subjects the business to heightened privacy disclosures.

Consider Paying Employees for Screening Time: There is little to no law concerning compensation for temperature screening time. As a result, it may be advisable to consider providing compensation.

Stay Up-To-Date: Recommendations and requirements are subject to change rapidly, and must be monitored.

Our team at McGrath North is prepared to provide guidance on these issues for business environments of all types. If you have questions, please reach out to any of our professionals identified below.

Aaron Clark aclark@mcgrathnorth.com (402) 633-9580

Abbey Moland amoland@mcgrathnorth.com (402) 633-9566

Stacey Shadden sshadden@mcgrathnorth.com (402) 633-9591

Contact information for the complete McGrath North’s COVID-19 Response Team can be found here.

For information regarding additional business-related concerns centered around COVID-19, please visit our COVID-19 Resource Guide here.

Reprinted with permission from McGrath North’s COVID-19 Resource Guide. Aaron Clark and Abbey Moland are members of McGrath North’s Labor & Employment Practice Group and Stacey Shadden is a member of McGrath North’s Business & Corporate Practice Group. Get more information at www.mcgrathnorth.com.


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VOLUME MMXX, ISSUE 2

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FAQ: HOW WILL COVID-19 AND ITS ECONOMIC IMPACT AFFECT BUSINESSES, LENDERS, AND OTHER CREDITORS? Coronavirus, COVID-19, and its fallout are What should lenders and borrowers do if they threatening the United States economy and are concerned about borrower cash flow and markets around the world. ability to continue making loan payments in the coming weeks and months? Supply chains risk significant disruption, and travel and other service-based industries are experiencing While no one size fits all, lenders and borrowers reduced demand and losing revenue. Recent market should be proactive, communicate early, and get losses also threaten confidence and demand in the ahead of potential covenant and payment defaults. economy. These issues will likely threaten companies Every lender is different, so a general characterizaacross multiple industries, including retail, travel and tion of how to respond is not possible. But under curhospitality, healthcare, insurance, automotive, ener- rent conditions parties should work through issues gy, real estate, construction, and shipping and logis- early rather than allow conditions to deteriorate with tics. no communication. Lenders often have other banking relationships with their borrowers, and having a As everyone’s health remains our top concern, below wholistic understanding of where their borrowers are FAQs for businesses and their lenders as we stand may allow lenders to react quickly to address begin to work through what could become challengcash flow and other finaning economic conditions. cial issues that their borrowWhat steps should businessers may be experiencing. es immediately take to proWorking together will help tect themselves from disruplenders and borrowers tion? weather the storm. •

Preserve cash. Now is not the time to pursue large capital expenditures.

Put together short- and long-term budgets. HavTriage and communication ing both short-term and are key. Just like people, long-term budgets is althe most vulnerable borrowways a good idea to help ers will be those most seprioritize sources of reveverely impacted by the nue and expenses. This is COVID-19 outbreak, includespecially critical heading ing those already in into an economic downworkout, under forbearance turn. Look at what equipor in default. This mostment and other assets distressed subcategory you really need to run the business and make should be addressed first. Then, lenders can focus on appropriate adjustments. particularly impacted industries like tourism, hospitality, etc. Lastly, it will be time to evaluate the Look at your loan documents and covenants and “healthy.” Because of the quick shift from bull to work preemptively to deal with any concerns that bear markets, lenders will need to be internally nimmay be raised by your lender. ble, moving resources into special assets and workout departments to handle the triage and ultiLook at current staffing. While reducing staff is mate “treatment” of those customers impacted by often a difficult and emotional decision, especially the outbreak. In all instances, open and honest comin this health crisis, companies should review munication, both internally and with the customer, is their staffing needs and determine whether any the number one priority. Lenders need to understand adjustments can be made. the impact of COVID-19 on their customer, work with the customer to estimate the financial implications of Review customer credit terms and accounts re- the impact and, if possible, work in tandem to formuceivable. To service customers effectively, you late a plan moving forward. One of the bright spots need to know which customers you can count on, of this downturn is the relative health of our major which ones you may be able to assist, and which financial institutions and the abundance of liquidity in ones will be unable to pay. Work to reduce the the debt market. With triage and proper communicarisk for both you and those customers. tion, lenders can make sober assessments of their portfolios and work with their internal team members and customers to blunt the inevitable impact in the short and long terms.

What should lenders do in preparation for impacts from the global pandemic?


VOLUME MMXX, ISSUE 2

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FAQ: HOW WILL COVID-19 AND ITS ECONOMIC IMPACT AFFECT BUSINESSES, LENDERS, AND OTHER CREDITORS? What impact will economic changes have on Will the outbreak of COVID-19 cause bankcommercial tenants? ruptcies? Like the lender-borrower relationship, the landlordtenant relationship will likely be impacted by economic distress in the wake of the virus. The extent of this impact is not yet known. Nevertheless, landlords and tenants should communicate early and frequently. Landlords and tenants will need to consider whether to close facilities and, if so, for how long. These closures will doubtlessly trigger lease obligations, and landlords and tenants should work together to avoid litigation over their decisions. For example, while leases generally provide for the tenant’s quiet enjoyment of the premises, some leases may give landlords the ability to close a facility temporarily in the event of an emergency. Meanwhile leases may also require a tenant to remain in continuous operation of the premises. As closures ensue, both landlords and tenants risk cash flow disturbances and, potentially, economic viability. Collaboration will mitigate the risk of litigation and economic failure.

Unfortunately, yes. Because bankruptcy is usually a lagging indicator (it comes after, not before or during the precipitating event), when the bankruptcies will come and what they will look like are unknown. As a preliminary matter, healthcare costs are one of the most significant causes of personal bankruptcies. Any increase in per capita healthcare costs is going to drive up individual chapter 7 and chapter 13 bankruptcy numbers. Unfortunately, a significant number of Americans do not have the excess income or savings available to address a medical crisis. With regard to businesses, undercapitalized companies in industries directly impacted by “socialdistancing” mitigation protocols—tourism, airlines, hospitality, retail, gaming, etc.—will be the most likely candidates for financial restructuring in the short term. Other industries could follow. However, at this point, with the spread of the virus in the U.S. in its early stages, containment and mitigation strategies underway and limited guidance on potential What impact will supply chain disruptions and relief from (or back-stopped by) the government, it a reduced labor force have on businesses? is simply too soon to make predictions. The total impact of supply chain disruptions and a Are bankruptcy courts still open and what will hapreduced labor force are difficult to predict at this pen to pending chapter 11 bankruptcy cases? point. They will, however, likely lead to delays, lost opportunities and revenue, and significant disruption As of now, the bankruptcy courts are still open; to business operations. A cascading effect may re- however, the courts are on alert. Many bankruptcy sult. To mitigate the impact of this disruption, com- courts have issued notices to attorneys asking them municate frequently with customers and manage ex- to notify the court if they or their clients have expepectations. As conditions change rapidly, solutions rienced any symptoms of COVID-19 or have been may be made available by governmental authorities exposed to anyone who may have COVID-19 so the and others to mitigate the negative impact of these court can reschedule hearings. Bankruptcy courts disruptions. But until that happens, businesses are allowing for more telephonic appearances and should do what they can in their own power to pro- expanding video hearings to avoid larger gatherings tect themselves, as outlined above. of people. Because of the widespread adoption of telephonic and video appearances, we expect the Does the inability to comply with the terms of bankruptcy courts to be able to continue operations, a contract due to COVID-19 virus excuse per- at some level, even if courthouses are closed. That formance under a force majeure clause? said, parties-in-interest in bankruptcy cases should Every contract has different terms, and each contract consider expected or potential relief that will be must be analyzed separately to determine if perfor- sought from the court over the next few weeks and mance may be excused on the basis of the COVID- start making contingency plans by filing motions 19 virus. The specific types of events under a force early, seeking expedited relief or making contact majeure clause that may trigger non-performance with the clerk’s office and the Office of the U.S. may very well be covered in these situations, but Trustee to discuss alternatives for emergency relief analysis of the specific provisions is needed. As in the event of court closures. events quickly develop, including declarations of Reprinted with permission from Kutak Rock LLP and emergency, travel bans, and forced shutdowns and its Bankruptcy, Restructuring and Creditors’ Rights closures, force majeure provisions will more likely be Practice Group comprised of attorneys Peter J. Bartriggered. If triggering force majeure provisions is rett, John H. Bernstein, John T. Coghlan, Michael A. widespread, companies may experience significant Condyles, Dean M. Dinner, Adam L. Hirsch, Dan R. revenue disruption, and litigation will likely ensue. Nelson, Lisa M. Peters, Loc Pfeiffer, Kyle T. Unser,

Jeffrey T. Wegner and Jeremy S. Williams.


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