Trust the Leaders 2.0 - Volume 6

Leaders Trust the

A PUBLICATION OF SMITH GAMBRELL RUSSELL

Volume 6

2.0

SGRLAW.COM

It's All About Change Looking Ahead to the Post-Pandemic Future

Volume 6

Contents 3

Editor’s Letter

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Introduction

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Flexibility and Remote Work: Finding the Balance Between Employee Needs and Business Demands as the World Emerges from the Pandemic

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The Fairy Tale of Business as Usual: Work Flexibility After COVID-19

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Multistate Labor and Employment Law Compliance with Rise of Remote Workers

20 The Future of Work (and everything else):

Observations from the UK 24 Desperately Seeking Certainty:

Considerations for Office Landlords and Tenants

The information contained herein has been obtained from sources believed to be reliable. The content and information in this publication do not constitute legal advice, do not in all cases reflect the opinions of SGR or its attorneys and are

not in all cases complete or current as 30 The Evolution of Marketing and Business of the publication date. This publication

Development During – and After – the Pandemic is not intended to and does not create

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Tested by COVID: Positive Life Lessons in a Pandemic

an attorney-client relationship or provide legal advice or legal opinion. Legal advice should be obtained from one’s legal counsel.

Permission is granted to use and reproduce this publication in whole or in part for internal and personal reference, provided that proper attribution of authorship is given. Except for material in the public domain, this publication may not be further copied, modified, used or distributed, in whole or in part, in any form or by any means without the written permission of Smith Gambrell Russell.

All other rights expressly reserved.

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© 2021 Smith Gambrell Russell

Editor’s Letter Ladies and Gentlemen, Welcome to this sixth issue of Trust the Leaders 2.0 – an entirely digital version of the magazine of Smith Gambrell Russell.

I am pleased to bring this issue to you from our new offices at 1105 West Peachtree Street in midtown Atlanta. The brand new 1105 building (which, come the first of the year, we will share with one other tenant – Google) is a beautiful, modern space full of vibrancy and collaborative energy that will inspire us to continue to provide our clients with the very best in legal services. We look forward to your visit. *** As we welcome a gradual emergence from the pandemic, this issue of TTL 2.0 endeavors to envision what the post-pandemic world will look like for our clients and their businesses.

To guide us on this mission, we’ve enlisted Pat Cain, our talented SGR partner and the

head of SGR’s Los Angeles office, to curate the issue. In the pages that follow, Pat has compiled from clients and colleagues a diverse array of articles on various subjects – employment, real estate, international, business development, and personal stories – that trace our shared experiences of the recent past and how they have shaped a future that, in many respects, will be very different from how things were only a couple of years ago. We hope you enjoy the issue.

Now entering “sweater weather” and edging ever closer to the end of this year, we wish each of you and your loved ones a safe, happy and peaceful holiday season, and best wishes for a bright and promising 2022.

Dana M. Richens Editor-in-Chief editor@sgrlaw.com

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© 2021 Smith Gambrell Russell

Introduction “The Times They Are A-Changin’.” Some of you probably recognize this as the title track of Bob Dylan’s 1964 album of the same name.

Well, at the risk of an obvious observation, the times continue to change, and we all are in the middle of it. This issue of Trust the Leaders 2.0 tries to capture some of the impacts of that change.

We start off with an article from one of our clients, The Adecco Group – a leader in human resources solutions. This article focuses on the need for employers to balance employees’ changed views of work with the imperatives of continuing to operate a business.

Next up, Matt Clarke and Sasha Greenberg of our Atlanta office discuss the importance of employers addressing the reality that, at least in some fashion and to some extent, remote working is here to stay. As the article notes, many employees are willing to accept such things as pay cuts, increased hours or reduced benefits, all for the option of being able to spend some portion of their work week operating from home.

Yash Dave and Ian Jones, of our Jacksonville office, take this theme a step further. Initially, work from home just meant that employees – all of whom were local – simply logged in from home rather than commuting to work. But “remote” increasingly means remote, to the point of working from a completely different state. This has important – and up until now, not really considered – impacts on how an employer manages its workforce.

Lest you think that employment is the only

area of change, a trio of our real estate experts – Jim Porter (JAX), Linda Koffman (LA) and Michael Manzi (NYC) – discuss how changes in the nature of work impact commercial real estate. As the article notes, the impacts are being felt by both building owners and their tenants. There are changes not just to whether or how much space is needed, but how that space is configured and how it is utilized.

What we all are experiencing is, of course, a worldwide phenomenon. To that end, Ben Graham-Evans of our UK office offers his thoughts on what is happening there.

Touching on the broader point that how we interact with one another across the spectrum of our business relationships has changed, our firm’s Chief Marketing Officer, Lee Watts, lays out how we all can expect to reinvigorate our marketing and business development efforts as we move forward. Finally, the period since March 2020 has impacted us all on a personal level. Emily Ward of our Atlanta office provides a uniquely personal perspective on how she and her family have dealt with the changes. I am sure you will find this as uplifting as I did. And please visit Southern Belle!

The last 1-1/2 years have been, at the very least, difficult, and for some they have been heart-breakingly tragic. I hope that this edition of Trust the Leaders 2.0 provides some reassurance that there is a way forward, and that we all can and will get there together.

Patrick Cain pcain@sgrlaw.com

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Flexibility and Remote Work: Finding the Balance Between Employee Needs and Business Demands as the World Emerges from the Pandemic Client Perspective: The Adecco Group 6

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© 2021 Smith Gambrell Russell, LLP

Client Perspective

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he economic recovery from the COVID-19 crisis is projected to be bumpy and nonlinear, and it will accelerate many ongoing transformations, with the effects of the crisis felt most in labor markets. Few areas of our daily lives have been impacted by the pandemic as much as the way we work. As the world reopens, the future of work – across industries, sectors and markets – has been permanently altered. By 2024, it’s predicted that 30% of the global workforce – 600 million people – will be remote. How will this impact communities and the businesses within them?

challenge to ensure that individuals are equipped to successfully participate in the world of work and be able to build skills they need to be competitive.

Reskilling and upskilling enable sustainable and lifelong employability for individuals and empowers organizations to optimize their workforces for longterm success.

A paradox exists today between record-high job openings and relatively high unemployment. The International Labour Organization estimates that in 2020 the global workforce lost the equivalent of

In a post-pandemic world, the challenges associated with the future of work are many: building the right skills, creating equal opportunities, fostering good and fair work environments, etc. It will likely require an ecosystem approach across policymakers and businesses, both domestically and globally.

One of the major positive impacts of a remote work environment is the ability to focus on employee performance and production while reducing the potential for bias and claims of hostile work environments. But what about the social impact, the lack of human connection and collaboration in the workplace? What do employees want and what are employers willing to provide to recruit and keep top talent?

Investing in People This environment presents us with an opportunity to focus on building the workforce of the future with a deep investment in people. We are witnessing an unprecedented phenomenon with new technologies having a strong impact on the job market. We must invest in, and address, this

255 million full-time jobs. The pandemic, combined with the effects of technology, are reducing the shelf life of skills. Workers who are facing redundancy or displacement from automation need to be open to building new skills, even if at first it seems daunting.

According to a recent report by the World Economic Forum, an accelerated investment toward reskilling and upskilling of workers could inject at least $6.5 trillion into the global GDP by 2030 and may create 5.3 million (net) new jobs.

It would also help develop more inclusive and sustainable economies and societies worldwide.

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Client Perspective Investing in skills requires a multi-stakeholder solution. First, we need to invest in the worker to promote a mindset of lifelong learning. Second, companies should shift from the idea that the workforce is replaceable to one that sees the workplace as renewable, by breaking the cycle of hiring/firing and instead investing in the existing workforce. Finally, governments should incentivize re- and upskilling by partnering with private sector experts.

in the home and if the employer isn’t required by state law to reimburse for such an expense, a company may end up excluding disadvantaged populations. These will be critical elements for building a long-term and viable workforce for the future and good jobs accessible to all.

Flexibility and Equity Additionally, employees’ demand for flexible work – both in time and location – must be embraced across employers in virtually every sector. The long-term implementation of both remote work and flexible types of work in a post-pandemic reality does not come without challenges, from both an organizational and a regulatory point of view.

From a risk of rising inequalities, drop in productivity and uncertainty around taxes, costs and wages, the transition toward hybrid work models will not be a success story unless accompanied by adequate policies. If unregulated, remote work could worsen inequalities, as not all workers enjoy the same access to this model.

Inequalities may also arise between workers who decide to return to the workplace and those who do not.

Ensuring equity in remote work opportunities will be critical for disadvantaged populations. A focus on infrastructure, including high-speed internet in underserved communities, will help level the playing field. Not everyone has high-speed internet

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Flexible work arrangements often drive flexible pay arrangements, too. Working remotely implies new costs and new ways of calculating wages and taxes. On the company level, employers should make clear which costs are incumbent to whom. In addition, governments will need to address wage and hour laws to assist this new way of working. For example, unless Congress or the U.S. Department of Labor amends the Fair Labor Standards Act and its regulations to keep up with the future of work, strict adherence to these outdated regulations will still apply.

And while the flexibility of the remote work model has increased in demand among workers, it’s made businesses even more vulnerable to cyberattacks.

Investments in IT tools are crucial.

© 2021 Smith Gambrell Russell

Finally, a focus on the populations that have yet to return to work post-pandemic is vital. Nearly 2 million women who were forced out or voluntarily left the workforce during the pandemic have yet to return. Women in the workforce have been disproportionately affected by the COVID-19 pandemic and the demands that have been placed on them (for example, lack of childcare and increased demands at home). According to the Census Bureau, in the U.S. almost 1.5 million fewer moms of school-aged children were actively working mid-pandemic than in February 2020. Addressing the inequalities and systemic challenges working women face will ensure access to quality jobs, skills building and advancement.

Overall, flexible/remote work could be a turning

point, laying the foundation for the future of work over the next several years. With adequate policies in place, its long-term implementation will boost productivity, foster a better work-life balance, and address the talent scarcity. It is crucial that we work to ensure this transition is inclusive, fair and profitable for all.

Based in Zurich, The Adecco Group is "the world's leading talent advisory and solutions company." www.adeccogroup.com

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Work Flexibility

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© 2021 Smith Gambrell Russell

The Fairy Tale of Business as Usual: Work Flexibility After COVID-19

By Matt Clarke and Sasha Greenberg

E

mployers attempting to emerge from the wake of COVID-19 are trying to define what a new normal will be in what may be a whole new world. The expectation that a vaccine would lift the corona-curse, and return everything to how it once was, may have been a fantasy (thanks a lot, Delta variant!). Instead, among the lingering effects of the novel coronavirus are employees wishing for (or, in some cases, demanding) flexible work options.

Once upon a time, in the not-so-distant past, many employers deemed remote work impossible, or at least impractical. But those same employers were forced to embrace remote work in response to shutdowns and social distancing protocols. While this adventure proved difficult for some, others found that teleworking was not nearly as villainous as expected. In fact, some companies reported that employees were more productive overall and worked longer hours in 2020 as compared to 2019.1 Likewise, some employees, who successfully navigated the uncharted waters of remote work, found the grass greener on the other side.

Employees have different reasons for requesting to work from home. Some have medical issues and safety concerns that may not be fully addressed by vaccines. Some simply prefer the comfort of

their own castle to that of the office. Whatever the reason, employers expecting remote work options to turn back into a pumpkin once the COVID clock strikes midnight may be in for a surprise. Surveys show that many employees are willing to take pay cuts, work more hours and give up benefits for positions that will allow them to work from home.2 While teleworking may have been the white knight that got many companies through the initial coronavirus crisis, some employers have already shared that they will not champion widespread remote working options into the future. Leadership from JPMorgan Chase & Co, Goldman Sachs and WeWork, for example, have come under fire for comments suggesting that remote workers will not be as competitive as their office-based counterparts.3 Google plans to alter its employees’ pay based on where they perform their work, with some employees opting to work from home indefinitely receiving pay cuts of up to 25%.4 Facebook is embracing a similar policy, as it predicts that 50% of its company could be working remotely in the next five to 10 years.5 While these policies have been met with criticism, they do foretell that remote workers are likely to encounter pushback in the near future.

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More than half of companies will continue to allow their employees to work from anywhere.

Employers have a number of options in dealing with requests for remote work. Some employers have elected to embrace the new frontier and allow their employees to continue working from home. Others have adopted a hybrid approach, wherein employees are permitted to work remotely on certain days while being required to come in on others. Still others are maintaining their work practices of old and requiring workers to return to their office-based battle stations full time. This last option raises the question of what to do when an employee simply refuses to come back.

during the pendency of a global pandemic. Rather, even then, employers faced with requests for reasonable accommodations should consider the totality of the circumstances, including the particular job duties, any potential hardships posed by the accommodation, and whether that same accommodation has already been afforded to any similarly situated employees.

"I'm Not Coming In" While businesses generally can terminate employees for refusing to return to the office, there are some exceptions for employees subject to legal protections that may require employers to make accommodations. For example, employees who remain at high risk for COVID-19 and, therefore, cannot be vaccinated may request an ADA6 accommodation. When those requests are made, the law requires employers to engage in an interactive process with these employees and to consider whether an acceptable compromise may be reached.

Lawsuits alleging that employers failed to meet their obligations to engage in such disability-related accommodations during the pandemic are on the rise, with over 3,000 COVID-related employment cases filed so far.7 Employers accused of failing to allow employees to work from home as an accommodation during COVID may potentially face liability in some of these cases. The obligation to engage in an interactive process is not lifted

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There also is a legitimate concern that the newly realized ease with which many employees worked remotely during COVID will have lasting impacts on non-COVID related lawsuits. While there has been no change to the legal standards surrounding an employee’s request for teleworking as a possible accommodation for a disability, the landscape has changed. For an employee who worked from their own home-based ivory tower, and did so successfully, an employer’s burden to demonstrate that remote work poses an undue hardship and is, therefore, not a reasonable accommodation, is effectively heightened. In order to meet this burden, employers should be prepared to point to specific issues, problems and hardships that were caused by the employee’s remote work.

© 2021 Smith Gambrell Russell

Work Flexibility

For example, some employers have indicated that working from home resulted in decreased productivity, miscommunication, declining morale and a reduction in useful interaction with customers. Another legitimate concern is the extent to which training and mentorship may be impacted when everyone is not physically together in the office. These considerations can help demonstrate that remote work creates an undue hardship and that an employer is, therefore, not required to provide this accommodation.

While a new day may have dawned in the world of remote work options, the reality is that inperson attendance is an essential function of many jobs and that employees who are unable to perform in-person work may, accordingly, not be qualified for certain positions. For these jobs, it can be advantageous to expressly include that requirement in a written job description before the employee makes a request for an accommodation.

For example, language in a written job description indicating that the “ability to work in person in a fast-paced, stressful office environment” is necessary to a particular role is relevant evidence that an employer can rely on in a discrimination suit. Courts routinely point to these written job descriptions to determine what may or may not be a reasonable accommodation for a particular positon.

Possible liability is not the only concern facing employers post-COVID. The potential disconnect between employers and employees over what the future holds for workplace flexibility is a factor in what some are calling the “great reshuffling” of workers leaving their jobs at historic rates. With many employers struggling to fill their workforce,

requests for increased flexibility are often being taken more seriously than ever before. Studies suggest that some employees would prefer to take a pay cut in order to keep working from home.

Changes to work schedules and compensation structures are being utilized to incentivize employees’ return. And, at a historically high rate, employers are embracing unprecedented flexibility and allowing employees to work from home where possible.

The number of employees teleworking has declined in recent months, with only 25% of managers and professional workers teleworking in July 2021 as compared to 41% in January 2021.8 Still, recent surveys indicate that more than half of companies will continue to allow their employees to work from anywhere.9 For employers who are embracing remote work options on a more permanent basis, a number of other considerations have become relevant. The prevalence of employees working from home has encouraged many employers to rethink their office designs, questioning whether and to what extent assigned offices may be a thing of the past.

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Work Flexibility Employers also have to consider where exactly their work is being performed to ensure that all state and local laws are being complied with. For example, a new Colorado law requiring heightened disclosure of salary and pay ranges has led to employers advertising remote work positions to specify that those living in Colorado need not apply – an exclusion that has sparked an investigation by Colorado’s Department of Labor and Employment.10 This law serves as a reminder that where work is performed does have legal implications.

Compensation and promotion track is another matter to address in fashioning remote work policies. Companies like PricewaterhouseCoopers LLP have committed to tracking rates of advancement for remote staff versus office-based staff to ensure that its employees are being treated similarly.11 Employers are also working to establish equal access to the same training and career development opportunities for all employees, regardless of whether they will be working remotely. This equal access will be important in helping to avoid future discrimination claims that may arise from treating similar employees differently.

Back in the Office Although permitting remote work may raise a number of issues for employers, returning to work in person presents additional challenges.

Employers bringing employees back to the office must determine whether and to what extent they should encourage vaccination. A recent poll showed that 25% of companies with 1,000 employees or more were requiring proof of vaccination cards from returning employees, compared to 33% of companies with under 100 employees.12 These types of policies have met mixed reactions from employees. Some

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feel that their privacy and personal choices are being hindered. For employers who are already struggling to find and retain qualified workers, this could result in even more turnover or recruiting challenges. To combat this, some employers’ policies have focused on rewards rather than firm mandates. Increasingly, major employers are requiring that their employees get vaccinated, unless they have a legitimate medical or religious reason not to. At the same time, the federal government and many local governments are implementing vaccine requirements as a condition of employment.13 Many large employers are

reporting that these requirements have resulted in a significant increase in the number of workers who report being fully vaccinated. While higher levels of vaccination may greatly reduce the level of concern about returning to the office, it seems likely that the interest in remote work will remain significantly higher than before the pandemic.

Mask mandates have also been widely embraced.

Approximately 57% of companies with 1,000 or more employees and 41% of companies with less than 100 employees are requiring masks in common areas.14 Some companies have also implemented policies limiting the extent to which employees can meet with clients inside the office.

The majority of employers, large and small, have created formal “return to the office” plans to address these and other policies.15

© 2021 Smith Gambrell Russell

Moreover, returning to work does come with a risk of exposure to COVID-19. Some states have enacted laws providing personal injury liability protections against COVID-related claims to businesses.16 Several states have also taken action to extend workers’ compensation coverage to include COVID-19 as a work-related illness.17 Thus, employers should be considering what local and state laws have been enacted to address these issues. Many of these issues are further addressed in the article that follows.

While a lot remains to be seen as to the long-term impacts of COVID-19 in the workplace, particularly in light of the changes brought on by the Delta variant, it does not take a crystal ball to see that business as usual is not the reality faced by many

employers. All employers should be considering what, if any, changes COVID-19 should bring to their policies.

If you have any questions about these issues, please contact your Emplyment Law counsel at Smith Gambrell Russell or contact the following:

Matt Clarke mclarke@sgrlaw.com

Sasha Greenberg sgreenberg@sgrlaw.com

Prodoscore, Prodoscore Internal Data 2020 Shows Shifting Workday Patterns and Productivity Gains, PRODOSCORE.COM, Mar. 12, 2021, https://www.prodoscore.com/wp-content/uploads/2021/03/Prodoscore-Internal-Data-Shifting-Workday-Patterns-and-productivitygains.pdf.

2 Lisa Fleisher, Americans Are Willing to Take Pay Cuts to Never Go into the Office Again, BLOOMBERG, Aug. 3, 2021, https://www. bloomberg.com/news/articles/2021-08-03/return-to-work-americans-willing-to-take-pay-cut-to-never-go-back-to-the-office.

3 Vanessa Fuhrmans, Bosses Still Aren’t Sure Remote Workers Have ‘Hustle,’ WALL STREET JOURNAL, May 23, 2021, https://www.wsj. com/articles/bosses-still-arent-sure-remote-workers-have-hustle-11621771201.

4 Martin Coulter, Some Google Employees Could Face a Pay Cut of Up to 25% if They Work from Home Permanently, According to a Leaked Salary Calculator, BUSINESS INSIDER, Aug. 11, 2021, https://www.businessinsider.com/google-salary-calculator-work-fromhome-pay-cut-technology-2021-8.

5 Lauren Fries, Mark Zuckerberg Said Facebook Employees Who Move Out of Silicon Valley May Face Pay Cuts, BUSINESS INSIDER, May 21, 2020, https://www.businessinsider.com/zuckerberg-facebook-salary-employees-moving-out-of-silicon-valley-2020-5.

6 Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.

7 Employment LitWatch, JACKSONLEWIS, https://www.jacksonlewis.com/covid19-litwatch?intIaContactId=g6TJQpk9gPgUXw7ICkcuoQ %3d%3d&intExternalSystemId=1.

8 Joe Mysak, Only a Quarter of Office Crowd Now Working from Home, BLOOMBERG LAW, Aug. 10, 2021, https://news.bloomberglaw. com/daily-labor-report/only-a-quarter-of-office-crowd-now-working-from-home-joe-mysak.

9 Andy Midici, How Company Size is Shaping Employer Covid-19 Protocols, ATLANTA BUSINESS CHRONICLE, Aug. 25, 2021, https://www.bizjournals.com/atlanta/news/2021/08/25/covid-19-vaccine-mask-mandate-work-employer.html?utm_source=st&utm_ medium=en&utm_campaign=me&utm_content=at&ana=e_at_me&j=24860154&senddate=2021-08-26.

10 Division of Labor Standards and Statistics, Equal Pay Transparency Rules, 7 CCR 1103-13.

11 Chip Cutter, If You Thought Working from Home Was Messy, Here Comes Hybrid Work, WALL STREET JOURNAL, May 25, 2021, https://www.wsj.com/articles/if-you-thought-working-from-home-was-messy-here-comes-hybrid-work-11621935000.

12 Midici, supra note 9.

13 As of the time of publication, the federal government is in the process of implementing new regulations requiring vaccinations of employees of federal contractors and vaccination and/or testing requirements of employees of employers with 100 or more employees. These regulations are being implemented in accordance with President Biden’s Executive Order No. 14042, 86 C.F.R. 50985 (2021). President Biden’s COVID-19 Action Plan, EXEC. OFFICE OF THE PRESIDENT (2021), https://www.whitehouse.gov/ covidplan/. The directive to OSHA for mandates for employers with 100+ employees did not come out of an executive order but through the COVID-19 Action Plan on the White House website.

14 Id. 15 Id. 16 See, e.g., Georgia Covid-19 Pandemic Business Safety Act, SB 359.

17 See, e.g., West Virginia Covid-19 Jobs Protection Act, W. Va. Code §§ 55-19-1 – 55-19-9.

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Multistate Labor and Employment Law Compliance with Rise of Remote Workers

By Yash Dave and Ian Jones

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Multistate Compliance

T

he COVID-19 pandemic thrust remote working arrangements into the limelight with approximately 70% of U.S. workers working from home in April 2020.1 While the numbers have decreased as COVID-19 vaccines increased in availability and governments relaxed pandemic restrictions, the upward trend in remote working is likely to remain. Additionally, with the rise of the COVID-19 Delta variant and shortage of workers, many employers are maintaining remote working flexibility to not only address employee health concerns but also remain competitive in the labor market where a greater number of employers are advertising remote working as a perk. More than 25% of U.S. workers expect remote working to continue throughout 2021, and one study predicts that remote working levels, including fully remote positions, will remain at nearly twice prepandemic levels through 2025.2 Some areas of the economy, particularly white-collar workers in sectors such as computer sciences and finance, are maintaining full-time remote working rates above 65%.3 One of the many impacts of this dramatic increase in remote employment is that a significant number of U.S. workers are, possibly for the first time, no longer required to live in a particular city or state because of their job.

Localities around the country are even offering thousands of dollars to individuals willing to move to their town or city to attract future talent.4 This article addresses the potential considerations and pitfalls facing employers that find themselves employing individuals who are now, or in the future will be, living and working in other states.

Employers’ first order of business should be to establish clear guidelines and policies regarding

remote work, including policies relevant to hours, availability, work product, communication, timekeeping and compensation. These remote work policies should also include provisions requiring that employees provide advance notice of any changes of address, particularly when the move would take the employee to another state.

This notice is essentially to permit employers to address anything from availability concerns, to ensuring compliance with state and local tax and employment statutes.

State and Local Taxes As those familiar with operating across multiple states already know, there is no one-size-fits-all answer to potential tax and payroll questions impacting remote work performed across state lines. Having remote employees in another state may also trigger business registration and tax filing obligations. Generally, a business has tax reporting and payment obligations in a state where it is considered to be “doing business.” This typically requires an analysis of the nature of the business conducted in the state, the number of employees and their functions, and the duration of the work in the state. Therefore, having remote employees working in a state may establish sufficient contact with a state for a business to be considered to be “doing business” in the state and impose new business registration and tax reporting obligations.

Additionally, state and local income taxation of service income is generally based on where the services are performed and where the individual resides. Some states, however, tax income based on where the employer is located.

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Multistate Compliance For example, New York State takes the position that an out-of-state employee who regularly commutes to work in New York but then temporarily works remotely in a different state remains subject to New York tax unless a number of complex requirements are satisfied. States such as Connecticut and Pennsylvania also base service income on employer location. Therefore, many employers in states like New York, Connecticut and Pennsylvania are expected to withhold employee income taxes under these rules. On the other hand, in the majority of states, tax is based on where the services are performed. Therefore, if an employee is working remotely then it would follow that the tax should be based on where the employee is located.

In either case, advance notice from the employee is critical to ensure that the employer is able to comply with its withholding obligations.

Workers’ Compensation and Unemployment Insurance Obligations Remote workers who move to another state may also impact an employer’s obligations under workers’ compensation insurance and unemployment insurance, which are governed by state law. Employers usually must obtain workers’ compensation insurance in the state where the employee is actually working. It may be the case that the workers’ compensation laws in the employer’s state would not apply to the employee working remotely in another state. The same also applies to unemployment insurance, where the outof-state employee would likely trigger the state’s requirements that the employer register for and pay unemployment insurance premiums through that state’s particular unemployment insurance program.

Failure to do so may expose the employer to liability, including penalties for noncompliance with the state’s unemployment insurance laws.

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State and Local Employment Laws Remote employees are generally subject to the laws of the city and state where they are physically located and perform work. Depending on state law and conflict of law principles, there may be exceptions for employees who are temporarily located in a state or not considered based within a state. However, employees that relocate permanently to another city or state will not be exempt. Critically, even within the same state, local ordinances on matters such as paid sick leave may differ considerably. For example, Pennsylvania has no statewide statute requiring paid sick leave, but paid sick leave is required by the City of Philadelphia. With employees working remotely outside their usual office locations, employers may need to familiarize themselves with the state and local employment laws of each jurisdiction where it employs individuals. Failure to comply with state and local workplace posting requirements, leave entitlements, wage and hour laws, etc., can result in significant potential liability.

Issues as mundane as an employer’s obligation to reimburse employees for the cost of equipment associated with remote work vary considerably from jurisdiction to jurisdiction. For example, California and Illinois provide broad reimbursement requirements, defined as “all necessary expenditures” incurred by the employee in direct consequence of the discharge of his or her duties.5 Less broad in terms of applicability, D.C.’s Municipal Regulations require reimbursement for “the cost of purchasing and maintaining any tools required of the employee in the performance of the business of the employer.”6 Less populous jurisdictions, e.g., Montana, North Dakota and South Dakota, strike a middle ground between the two, requiring reimbursement for all expenses that are necessarily incurred as a direct consequence of the employee

© 2021 Smith Gambrell Russell

discharging their duties.7 Other potential areas that are subject to being overlooked by inexperienced employers are wage statement requirements and an employee’s right to inspect their personnel records.

Furthermore, once an employer permits out-ofstate work for one employee, the employer must be mindful in granting/denying it to others, as allowing it for one employee but denying it to another could potentially be considered discriminatory.

State and local leave law entitlements also vary depending upon the number of employees within the state, duration of leave and type of leave available. Wage and hour laws vary by state and may offer more generous minimum wage, overtime, and rest and meal break benefits. Similarly, legislation regarding pre-employment questions and discrimination protections, particularly those relating to the question of disability accommodations, vary considerably between jurisdictions.

Employers should seek guidance regarding drafting remote work policies and navigating the interactions between state and local laws that arise through the expansion of remote work. SGR’s Labor and Employment counsel across the country are well versed in state labor and employment laws and are ready and able to assist with navigating the evolving landscape.

Conclusion In light of the potential compliance minefield presented by the prospect of employing remote workers across the country, employers may ask: “Is all this hassle really worth it?” Ultimately, the decision to allow employees to work remotely from another state is up to the employer and depends on the particular facts and circumstances of each employment situation. Employers may be justified in saying no to such arrangements, but there may be significant trade-offs with respect to the employer’s ability to hire/retain competitive talent.8

If you have any questions about these issues, please contact your Employment Law counsel at Smith Gambrell Russell or contact the following:

Yash Dave ydave@sgrlaw.com

Ian Jones ijones@sgrlaw.com

https://www.usnews.com/news/national-news/articles/2021-02-12/majority-of-americans-work-remotely-a-year-into-coronaviruspandemic-poll-finds.

2 https://www.cnbc.com/2020/12/15/one-in-four-americans-will-be-working-remotely-in-2021-survey.html.

3 https://news.gallup.com/poll/348743/seven-u.s.-white-collar-workers-still-working-remotely.aspx.

4 See, e.g., https://ascendwv.com/the-offer/; https://liveandworkinmaine.com/opportunity-maine/; https://livebaltimore.com/residentresources/financial-incentives/buying-into-baltimore/#.We5GOVtSzDc; https://tulsaremote.com/#hero; https://findingnwa.com/incentive/.

5 See 820 ILCS 115/9.5; California Labor Code § 2802.

6 See D.C. Mun. Reg. tit. 7, § 910.1.

7 See Mont. Code Ann. § 39-2-701; S.D. Codified Laws § 60-2-1.

8 See, e.g., https://www.bloomberg.com/news/articles/2021-06-01/return-to-office-employees-are-quitting-instead-of-giving-up-workfrom-home?sref=lAVQtUwz; https://www.businessinsider.com/quit-job-flexible-remote-working-from-home-return-to-office-2021-6; https:// www.census.gov/library/stories/2021/03/working-from-home-during-the-pandemic.html.

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The Future of Work (and everything else):

Observations from the UK

By Ben Graham-Evans

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© 2021 Smith Gambrell & Russell, LLP

Life in the UK

COVID-19 has affected workers across the globe in different ways.

Office Life - A European Angle

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OVID-19 has affected workers across the globe in different ways. This essay is a reflection on current working dynamics for office workers from a European perspective.

The world continues to turn. After a short initial stall and some occasional supply chain interruptions, the construction industry soon got going again. International freight by sea and air has continued. Global politics even got to party, with this summer’s G7 meeting taking place in sunny Cornwall whilst the vast majority of Europeans remained on some form of restricted travel mandate. For many, working in what has become a universally adopted office model 2020 presented a stark and sudden interruption to routine. Working from home became the new normal and, 18 months later, working patterns are still changed for many, especially those working in the professional services sector.

So, what is happening now and where are we heading?

In the UK, after 15 months of the Government mantra “work from home if you can,” most businesses large and small went into “planning stage” in terms of what the new “agile working environment” will look like post-COVID. During June 2021, the City of London, the central business district for London, saw daily office worker numbers at around 20% of pre-COVID levels. But then there was a “glass half full” optimism and talk of a gradual increase across the demographic of these

traditionally high-paid, high-skilled City workers. By August, office worker numbers had not significantly increased but the prediction for the autumn is that numbers will continue to rise.

Working from home remains largely something enjoyed by those in the higher skilled and higher paid roles. Many businesses have already made it clear that office workers in support and other roles must return to work. Large banks need people working in offices for security reasons and other businesses with perhaps less skilled workforces are seemingly enforcing a return to work in many industry areas.

It is tricky to generalize within and across the myriad of industry types utilizing offices but attitudes, expectations and requirements have most certainly changed and perhaps it is legal and other professional services firms where that change is most evident, with most big law firms reporting less than 30% of pre-COVID office occupancy.

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Life in the UK

During the summer of 2021, the professional service sector widely adopted the following assessment criteria for now and the future: 1. What is right for their people? (Of course, all professional services firms are just that) 2. What opportunities are there to rationalize and optimize the existing real estate portfolio and commitments?

3. What opportunities are there to maximize the opportunities afforded by offices?

to Zoom meetings making it easier for those with family commitments (often women) to compete on a leveled playing field, in contrast to the preCOVID travel-dependent (often male-dominated) conference circuit.

There is a lot of guessing surrounding what the daily office return numbers will be like come late 2021 – some say 30%, others closer to 50%. There is differing opinion over the timeline both in Europe

Talk, talk – everyone is an expert now ...

We now hear that business leaders have to take responsibility for developing the careers of the young professionals and maintain a firm culture in which people want to stay and develop. This is clearly not easy to do on a permanent work-fromhome basis.

In the UK, we hear stories of home working leading to a lack of camaraderie and an inability to make new friendships at work and develop businessnetworking relationships leading to some levels of social anxiety.

We are told that whilst a significant number of feerevenue-generating staff have done better during COVID, the majority have taken a big productivity dip. In other words, in some cases the minority of overachievers is masking the underperformance of a majority.

According to some, contrary to populist thinking it is the extroverts who are tackling working from home better than introverts are. The Zoom call pressure to turn your camera on is real and challenging for some. But then we hear positive stories of international conferences giving way

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and beyond. But what is clear is that office real estate will remain relevant but when teams do come back together and when workers do come to the office it is a logical imperative on leaders to ensure the experience is a positive one.

The problem is compounded by the fact that senior business leaders are overall more bound to the office environment than their junior workforces are.

In law firms and other professional firms, this bias may be strengthened by business leaders having a personal ownership stake in long-term office real estate plans, which overall did not cater for the likely effect of a global pandemic. In fact, prior to COVID office layouts gurus almost universally

© 2021 Smith Gambrell Russell

Could this be a once-in-a-lifetime opportunity to adapt our ways of doing business? pushed the boundaries and “benefits” of open plan office environments.

People talk of three-day “in office” weeks and plans for mandatory testing if workers choose to not be vaccinated. We see headline articles about often-regarded "most modern and dynamic" tech companies like Apple and Google struggling to come to terms with a displaced workforce whilst most big law firms by contrast are posting record results notwithstanding most of their talent are now still working from home.

Towards a new expectation for office use?

The days of professional offices as “work cells” where workers work with “heads down” was always slowly receding, but COVID has seemingly accelerated the change for many businesses.

It seems logical now to see offices as places for professional development and places to collaborate and develop skills to better serve clients rather than places to test or control worker productivity. The best pro-office arguments heard recently perhaps relate to worker development, mentoring and networking. The all-important small talk in the corridor leads to relationship development and, eventually, career development.

Junior workers do not tend to reach out informally to leaders in a formalized work-from-home setting but find it easier to make connections informally within the office.

might not work for another. On the flip side, what works for one business might be bad for another.

People and businesses will have choices, and how those choices are made will, it seems, be pivotal for business large and small. Perhaps by communicating and leading our teams with a consultative “heads up” rather than a dictatorial “heads down” attitude, our businesses will emerge stronger and more together whilst maintaining the all-needed agility to navigate obstacles and changes ahead.

Could this be a once-in-a-lifetime opportunity to adapt our ways of doing business whilst keeping individuals at the heart of things no matter what the size of any given team or firm or organization?

Law and accountancy firms are rarely seen as game-changing innovators but just perhaps these super-profitable firms may actually find themselves possessed with the intellectual and cultural capital to lead the change on this towards a tailored, rather than a one-size-fits-all, approach.

Ben Graham-Evans bgraham-evans@sgrlaw.com

Finally, given the uncertainty faced with pandemic and post-pandemic working we must be mindful of the different needs of individuals within teams and recognize that what works for one worker

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Desperately Seeking Certainty: Considerations for Office Landlords and Tenants

By Jim Porter, Michael Manzi and Linda Koffman

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© 2021 Smith Gambrell Russell

Real Estate

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hen it comes to business, much time and money is devoted to limiting uncertainty, and this may be especially true in the real estate business. Justice Oliver Wendell Holmes said, “The longing for certainty … is in every human mind. But certainty is generally illusion.” And so it was for office owners and tenants as the impact of COVID-19 began to take effect in March 2020.

Although the severity of the pandemic seems to be subsiding, it is too early to predict with any degree of accuracy the scope of changes that will emerge in commercial real estate. The changes depend on variables of human behavior that do not always reflect reasoned thinking. The decisions to be made in the near future by executives, administrators and employees will arise from a variety of causes, such as a desire to return to the community of the workplace that cannot be duplicated by videoconferencing, the desire to remain distant from urban centers, hesitancy to use crowded trains, planes, buses and elevators, and a reluctance to resume lengthy commutes. Employer mandates are also varied: some want a total return to the office, some agree to continuing working from home for now, and others are trying hybrid arrangements. This article will discuss options office owners and tenants may need to consider in light of increased vacancies as a result of the pandemic and the uncertainty it has created, and will delve into lease provisions that may take on heightened importance going forward.

As more workers become vaccinated and return to work, many companies are rethinking their office design and space needs. For those companies that have kept a more traditional office layout with segregated private offices, conference rooms for meetings and “break-out” rooms for eating and socializing, their existing space plan may not need significant changes. For those companies that have

opted for “open concept” offices where people sit side by side in an effort to maximize space usage and encourage collaboration, they may consider whether they want to revise their space plan to provide room for social distancing and other safety measures arising from the pandemic.

For many industries, the experiment about whether work from home could be productive and not negatively impact the bottom line has been proven successful. Nonetheless, business leaders across the country are readying their workforce to return to the office on a regular basis. Despite the optimism among many office owners, brokers and company leaders, many others – including a large percentage of employees – do not necessarily want to return to the office full time. The forced lockdowns and other impacts of the pandemic have created significant changes to our behavior, lifestyles and ideas of work, with many believing they are more productive and happy working from home.

In larger cities like New York, many companies recognize that employees with less space at home, roommates, or families with young children, will likely embrace coming back to the office as a quiet place where they can be more productive.

For others, reclaiming hours previously spent on a long commute and the flexibility that comes from working from home may be too difficult for them to give up. With concern about losing good employees who prefer to work from home, many companies are rethinking office design to allow for a hybrid style of working with flexible space at the office to allow those who wish to be in the office an ability to do so, and to convene in-person meetings and collaboration sessions.

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Real Estate The commercial office sector is experiencing a sea change in the way people think about their work. This does not mean that high-rise office buildings are doomed, or that downtowns will be deserted, but it does mean that significant change is happening in the office building sector and landlords and tenants will be adjusting to those changes for years to come.

From an owner’s perspective, there is concern about rising vacancies now and in the future as tenants shed space to allow a more flexible work environment. Owners of office buildings may need to embrace repurposing some office space to other uses. In most urban centers in the United States and beyond, commercial buildings (particularly warehouses and factories) have been converting to residential and mixed use for some time. An owner facing an empty or soon-to-be-empty office building can explore the possibilities of converting the building to a condominium or rental building if such reconfiguration is architecturally feasible and zoning compliant (putting aside issues of affordable housing mandates). As many cities were and remain adherent to a single-use zoning plan,

do in an effort to expand and diversify the tax base. The day may soon be near when the urban dwellers can take care of all their basic needs – work, home, medical, retail, grocery, dining, entertainment, religion – under one large roof.

The dependence of building owners on an officeonly building in downtown areas may become unsustainable.

Tenant Perspective For those tenants with office space that does not allow for social distancing, the tenant will need to evaluate the practicality and cost of reorganizing the space. Many tenants nearing the end of their lease term will want to consider whether their current building, location and amenities are compatible with the company’s preferred working style. Buildings that are not as dependent upon elevator use and those that provide more open space, natural light, windows that open, easy food and beverage options, green spaces and COVID-19 protections (touchless features in the restrooms, flexi-glass dividers, hand sanitizers, air filtering systems, etc.) will likely be in higher demand after the pandemic. There is also an increased focus on making the workplace a comfortable and exciting place to go.

Some employees may still be working from home most of the time. A tenant needs to consider what changes it should make to conference room(s) to improve audio and video capabilities to make it a productive experience both for those attending in person and those participating virtually.

conversions may be difficult. Although mixed-use buildings and developments are not new and are popular in cities such as Toronto, this popularity may increase considerably going forward, particularly if local governments take a more flexible approach to zoning, which they should

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Another trend among tenants is “office hoteling,” where employees no longer have a dedicated private office and instead reserve a desk or office for the day.

© 2021 Smith Gambrell Russell

Companies exploring hoteling will need a reservation system to manage bookings and to avoid overcrowding. Some employers are adding lockers into their office design so that employees have a place to store personal belongings only used at the office.

Lease Provisions Many tenants who are staying in their existing leased premises are looking for ways to reduce charges for underutilized, or unused, office space.

Following are a few areas of focus in this regard:

Financial/Lease Considerations

Reduce Pass-Through Operating Expenses.

One area of potential savings is operating expenses, with a particular focus on variable costs such as janitorial. Some leases allow landlords to mark up pass-through expenses with an administrative fee. Tenants should look closely at these provisions and seek changes where savings can be attained. As with any negotiation, success often comes down to relative leverage.

Before COVID, most office leases were for a term of five years or longer. Because of the uncertainty caused by the pandemic, office tenants are now seeking leases with shorter terms, and many tenants who decide to renew are negotiating renewals at steep discounts.

Caps on Operating Expense (“OPEX”) Increases. Requests for caps on OPEX increases are becoming more common.

Obviously, no landlord wants to agree to an OPEX cap, but if a landlord is forced into a position to consider this concession, it would be wise to focus on whether the cap is cumulative or not cumulative. For example, if OPEX costs increase in the year following the lease amendment but not up to the cap, can the landlord carry over the difference between the OPEX cap and the actual increase in OPEX charges to the next year? A non-cumulative cap is best for tenants.

For tenants who did not fare well financially during the pandemic, or have determined that their current space doesn’t meet current needs, or who wish to reduce lease expenses going forward, there are a number of strategies they may want to consider. A good first step is to undertake a strategic analysis of its space needs after reviewing its financial performance during the pandemic, its business plan post-pandemic, how well the space meets its current needs and to what extent its employees will either be working from home or on a hybrid schedule. Once these determinations are made, the tenant can develop a plan going forward.

Essential to any such plan is negotiating preferred lease terms or amendments.

Contraction/Drop Space Clauses. Tenants may want to seek a contraction option (sometimes called a “Drop Space” clause). In negotiating a “drop space” clause, the following are concepts the parties should consider:

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Real Estate - identify the portion or portions of space that can be “dropped” from the lease premises.

The space should be identified with reference to an exhibit; - identify the time period(s) by which the tenant must exercise its right to contract its space. If the tenant is on a multi-tenant floor, the landlord will want to coordinate this “drop space period” with the expiration or expansion periods of other tenants on that floor or adjacent floors; - the parties need to agree whether annual base rent will be reduced based upon (i) a reduction in the rentable area of the premises using the rental rate per square foot set forth in the lease, (ii) the then current rental rate for other space in the building or, if there aren’t a sufficient number of comparable transactions, the then current rental rate for other comparable space in comparable buildings in the vicinity of the building or (iii) another formula; - tenant’s proportionate share of operating expenses should be decreased by the reduction in the rentable area of the leased premises; - subject to any approvals required from the landlord’s lenders, the parties should enter into an amendment to the lease to accurately reflect the changes in the leased premises, base rent, tenant’s proportionate share of operating expenses, a reduction in parking spaces, the construction of demising walls, systems, etc. to divide the dropped space from the leased premises the tenant will continue to rent and other agreed-upon terms; and

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- the parties should discuss the consideration for the reduction in space. This could be a lump sum, such as a “termination fee,” an extension of the lease term, credit enhancement such as a lease guaranty or other consideration determined by the landlord and tenant.

Assignment/Subleasing With more tenants looking to sublease office space, a landlord’s own tenants may become its biggest competitor for office space. When a tenant is looking to reduce its financial obligations under its lease, the tenant will usually be able to offer a subtenant a lower price per square foot than the landlord is asking of new tenants coming into the building. Allowing existing tenants to enter into subleases at a significantly lower rental rate may impact fair rental value. To guard against this, landlords would be wise to negotiate recapture rights that permit a landlord, at its option, to terminate the lease with respect to space that an existing tenant wishes to sublet. Such a provision allows landlords to maintain a higher level of control in the building.

It is important for a tenant to understand challenges involved in a sublease transaction. Besides the responsibility for managing the subtenancy, it will take time to identify a prospective subtenant and may involve construction if the space is to be divided. A sublease transaction also involves a number of transaction costs, including: (i) payment of brokerage commissions, (ii) providing “free rent” or cash as an incentive, (iii) construction costs, (iv) likelihood that the subtenant will want a “discount” from the sublandlord’s then current per square foot rental amount, (v) downtime (that is, how much time the space will be on the market), (vi) possible profitsharing with the landlord;

© 2021 Smith Gambrell Russell

(vii) attorney fees to negotiate the sublease, and (viii) paying the landlord’s attorney fees (and possibly an administrative fee) to review and consent to the sublease.

Landlord Perspective What options are available to landlords facing higher vacancy rates? What does a landlord do with excess office space where the supply of available space exceeds the demand? This article touched on these questions in the earlier discussion of potential repurposing of excess space. The following are a few additional considerations.

It is important for landlords to communicate with tenants about new and enhanced operating protocols so that tenants will feel more confident that the building is a safe working environment.

While many employees are still working from home and occupancy percentages are still low, landlords may want to undertake construction projects at the building to further enhance safety precautions or to construct or enhance amenities to make the building more appealing to tenants.

This may be a good time for owners/operators to consider the right tenant mix for its building. In the past, many office landlords considered it a good idea to lease most, if not all, of a building to a single tenant. The pandemic has shown that this previously attractive strategy may have a serious downside as some large tenants are using their considerable leverage to negotiate significant concessions, or failing to renew entirely. Spreading risk among multiple tenants and types of uses may be the preferred strategy in the future.

If a landlord finds itself with empty space in its building, it may want to consider building that space out into a conference room or rooms with

attractive amenities and offer that space to lease to existing tenants on a reservation basis. In such event, it will be important for a landlord to have its attorney carefully review its loan documents and determine if it needs to work with its lender to implement such changes.

Some landlords, pre-pandemic, were launching their own shared office brands. Besides being a way to increase revenue for available space in the building, these shared spaces can be incubators for start-up companies that may later wish to lease larger exclusive space in the same building.

*** In closing, it is clear that the COVID-19 pandemic and the response of federal, state and local governments across the country have created an elevated level of uncertainty about the future of office space and how it will be used in the future. Tenants and landlords will need to carefully consider the issues raised in this article, and many others, to successfully navigate their way through.

Experienced legal counsel, with an ability to think outside the box, can help determine the best path forward.

If you have any questions about these issues, please contact your Real Estate Law counsel at Smith Gambrell Russell or contact the following:

Jim Porter jporter@sgrlaw.com

Michael Manzi mmanzi@sgrlaw.com

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The Evolution of Marketing and Business Development During – and After – the Pandemic

By Lee Watts

SGR Chief Marketing Officer

“The new normal” has become a commonly used term as we think about life and business after the pandemic. Many industries and companies, and the overall workforce, have been impacted. And marketers and business leaders are assessing how developing business and executing marketing strategies have also changed.

Without a doubt, marketing and business development practices have been redefined by the pandemic. As a result, many companies have had to pivot their strategies and tactics for communicating with clients and customers, as well as growing their business with prospects. As we have faced challenges with health care, the economy and social justice issues, businesses have been forced to adapt and reexamine policies, core values and approaches to the market. The question remains: are these changes temporary, or permanent?

Below are some of the major impacts of the pandemic to marketing and business development practices. As we delve into each of these areas,

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we can evaluate whether we believe the pivot is permanent, or we will return to “normal” once the pandemic is over.

1. Digging Deeper with Clients.

As business leaders, understanding your audience is one of the key marketing strategies for growth. When the country effectively shut down, businesses needed to move quickly to understand their audience, i.e., their main concerns, preferred methods of communication, buying patterns, geography, company core values, etc. In essence, companies needed to go below the surface and take time to really think about their clients’ needs well beyond the sale or the service offering. The world had changed … in a big way. Companies needed to understand how their clients and customers had changed and understand how they would be impacted by the pandemic and workforce issues. Now that this expectation has been set, customers and clients will demand this level of attention going forward.

© 2021 Smith Gambrell Russell

Marketing 2. Client Experiences.

Clients and customers have come to expect more, and better, user experiences. This is happening across every industry – from hospitality to professional services. A focus on client experience was already on the rise prior to the pandemic, but this expectation is here to stay. Due to the shutdown, business closures, product shortages, and supply chain disruption, companies needed to quickly adapt and find creative ways to keep clients and customers engaged and pleased despite disruptions and lack of workforce. What resulted was a surge in e-services and self-service options. Companies learned quickly how to provide clients with an enhanced experience and more control, as well as better information.

3. Digital Channels.

Digital transformation accelerated overnight. The entire world discovered how to host virtual events and become experts at virtual meetings. This trend is here to stay and is now our new normal.

As the pandemic lifts, many companies and organizations will ease back into in-person events, yet virtual experiences will still be part of the marketing mix. This will not be limited to just virtual events and meetings, but will include such things as offering videos to explain information and products, and digital brochures and other digital platforms to display the digital transformation that has occurred.

4. Relationships Are Everything.

At the end of the day, business development is about building relationships with our prospects and clients. It goes without saying that trust and credibility must be at the center of good business development. Although professionals and business leaders with existing relationships have been able to maintain relationships and

momentum during the pandemic, developing new relationships in a virtual environment and within a society experiencing such fear and change has been difficult. Prospecting for new clients and customers has required a different set of skills focused on selling creative solutions, not products or services based on a price point. Trust, consistency and integrity are the hallmarks to developing new relationships during this tumultuous time. Trust will be the reward for those who listen to clients’ needs and then develop solutions to meet those needs.

5. Companies Show Their Values.

The pandemic has put a premium on brands and businesses sharing their values and beliefs. According to a McKinsey report, 61% of consumers report that how a brand responds during the crisis will have a large impact on whether they continue buying it when the crisis is over. This means marketers must communicate a strong sense of their brand’s purpose – a cause that the brand stands up for, or an area where the brand aims to make a real difference. Brands can do this through the projects they choose to be involved in, the partners they choose to work with, the way they treat their employees, and the messages they send to customers. During the pandemic and even as we emerge from the pandemic, employees, clients and customers will be watching to see whether messages change. They will want to see whether companies remain consistent in their stances on health care and social justice issues.

I will venture to say that these changes in marketing and business development are here to stay. As business leaders, brand owners and companies, have you implemented these changes and are you prepared to maintain them permanently?

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Tested by COVID: Positive Life Lessons in a Pandemic

By Emily Ward "Life is a cruel teacher. She loves to give you the test first and the lesson later." - Daymond John Although my husband, Joey, and I were nearly the same age when we met and married, I was just two years into my career as a lawyer, while he had been a professional chef for over a decade. It thus came as no surprise when, a year or so later, he got serious about opening his own restaurant as the next step in his career. Because he knew he needed help on the business side of things, shortly after becoming partners in life, we became partners in business as well.

Just getting the doors open took us nearly three years and the combined efforts of innumerable friends and family who supported our dream financially, emotionally and with their talents – from an old colleague handmaking ceramic plates to my mom making the curtains to my dad’s basement office becoming “world headquarters!” When the restaurant, Southern Belle, finally opened in November 2019, it seemed like Joey’s career was secure and progressing, and I was looking forward being able to return my full-time focus to my own career now that my work drafting our operating agreement, commercial lease, vendor contracts and employee workflows was complete.

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Then COVID happened.

We had been operating for only five months when the shutdown was ordered in March 2020. I remember watching Joey break down in the middle of the restaurant when my dad and I told him we had no choice but to temporarily close. He was devastated over what this would mean for his dream, his career, and how being without a job would affect the amazing team of employees who had helped him achieve one of the most talkedabout restaurant openings in Atlanta.

In the days and weeks that followed, there were a lot of tears, frustration and hours spent learning how to file for unemployment for our employees as I turned my attention back to the restaurant.

Like so many others, I was incredibly scared during this time because courts were closing and government investigations were put on pause – meaning my white collar practice was essentially stalled. With Joey despondent at home collecting unemployment and my workload incredibly light, I did not know if my job was secure enough to get us through the first COVID wave, so I legitimately started researching bankruptcy procedures as it seemed like a very real possibility.

© 2021 Smith Gambrell Russell

Editorial But before I knew it, spring warmed into summer, and a glimmer of hope for both my legal practice and the restaurant began to take hold. While my colleagues at SGR brought me in on shareholder and lease disputes, background investigations for a software company purchase, and even a few land-use projects, we reopened the restaurant as a takeout-only restaurant, a patio-only restaurant, and then a hybrid of the two. The only constants during this time were change, adaptation and the need for effective communication, but somehow, that was enough to get us through.

As I reflect today on all that has occurred over the past 18 months, I have to believe that what we’ve been through during this time has made me a more effective lawyer, patient partner to Joey, and hopefully, a better person. Although it’s not the typical practice in the legal field, I freely communicated with my colleagues and practice leaders when I was having a hard time professionally or personally. Rather than step away or label me as someone “not committed” to my job, they found ways to support me and our restaurant through the dark days we faced. Today, I feel more valued, more skilled and more plugged into the firm than I likely would have if COVID hadn’t happened – a truly surprising result considering the bleak outlook of last year. Joey and I tried to mirror that empathy and understanding with our

own employees as they stood beside us while we reopened, reconfigured and constantly revamped our restaurant to meet the ever-changing health needs of our community. We’ve also tried to be more honest and open with each other as personal challenges have piled on top of the professional ones.

While the past 18 months have been unqualifiedly horrible and full of all manner of tragedies, they have also helped me develop the resilience to “get through” whatever life throws at me and the confidence to communicate with my law colleagues, my husband and my friends about the good and bad that is going on. Whether I’m making calls on the fly during a trial or figuring out the next version of the restaurant we need to be in order to adapt to our next challenge, the COVID experience has changed me for the better.

As our society continues adapting to this evolving pandemic, my hope for us all is that we take the lessons of patience, empathy, communication and flexibility with us when life returns to “normal.” Until that “normal” arrives, I’ll continue finding the time to enjoy the little pleasures of life like working with my dogs at my feet and sharing a great meal or glass of wine with a friend – at whatever version of Southern Belle is currently operating.

Emily is a member of SGR’s White Collar Practice and the co-owner of Southern Belle and Georgia Boy, located at 1043 Ponce De Leon Avenue NE, Atlanta, Georgia 30306.

Emily Ward eward@sgrlaw.com

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