Roughly 18 months ago, the word “Zoom” would have caused most people to think of cartoon race cars, or perhaps P.D. Eastman’s classic book Go, Dog. Go! Such images aren’t just indicative of our age—they also reflect how much the world has changed since the COVID-19 pandemic arrived.
Zoom enabled the practice of law to continue with limited interruption—once you figured out how to use it, of course. Zoom meetings became so common that many folks got “Zoomed out,” lamenting the absence of personal connection. We’ve all heard the stories or seen the ads with Zoom faux pas galore: dress code violations, or forgetting to mute oneself while flushing the toilet. (Yes, that actually happened during a U.S. Supreme Court hearing last year.) From a practical perspective, though, clients have generally found Zoom and similar platforms great for saving time and cutting costs.
Dealing With Unions in the Era of Zoom
One of us personally completed two collective-bargaining negotiations since the start of the pandemic, with all meetings conducted via Zoom. The first involved a facility in Alaska, with representatives based in Alaska, Virginia, Florida, and Tennessee. In the second, the parties were in New Mexico and at two sites in Tennessee. In each scenario, Zoom offered great flexibility in scheduling meetings and conducting discussions, including caucusing—and in both cases the parties successfully negotiated a new CBA without major problems.
What Does This Mean Going Forward?
Zoom is unlikely to replace all face[1]to-face interaction, of course. While the threat—or actual initiation—of a strike could certainly change the dynamics of collective-bargaining negotiations (and might be better served by meeting in person), it’s not a given that Zoom couldn’t be an integral part of resolving such a situation. This is especially so when immediate availability is key— having to travel can create delays that hinder a resolution.
However, we fully expect clients to consider virtual options to cut costs. This could mean reducing the number of in - person meetings—certainly those that require out-of-town travel. Expenses incurred from airfare, car rental, hotel, travel time, and meals quickly add up. If the process is likely to entail time commitments measured in months, that’s also a key point in favor of virtual options. On the other hand, some things are simply better in the presence of others. Meeting your employees, their union representatives, or your lawyers to discuss significant issues or projects, or setting eyes at last on previously unfamiliar or unknown witnesses in a case, is enhanced when it happens in person.
Certainly, disciplinary meetings and terminations seem far better suited to a face-to-face. This is particularly true for coaching sessions, when the virtual option would seem to create a potential disconnect to getting the full breadth of your message across. It’s easy to hang up on someone and blame the proverbial “bad connection”; it’s nowhere near as easy to walk out of the office without creating a separate disciplinary issue.
Your litigation decisions may change as well. Deposing a plaintiff in person provides a better sense of that individual as a witness, as body language and mannerisms might be undetectable over Zoom. Trial attorneys are welcoming back in-person court proceedings, but many depositions, procedural conferences, and administrative hearings may remain remote, depending on jurisdictional preferences. The fact that witnesses can appear via Zoom might increase the likelihood that a party will take those depositions, especially witnesses who have left their employers and moved out of state.
The legal environment, like that of businesses of all kinds, has been altered significantly since the beginning of 2020. As the world fitfully reopens and we greet the “new normal” in all its guises, some traditional aspects of our lives, such as conducting litigation, have changed dramatically. We might miss in-person meetings, but we have to accept that our clients and colleagues have grown accustomed to working remotely, and that can save both time and money. Personally, we prefer in-person meetings in most circumstances. But we all want to do the best job we can for our clients, producing great results in a cost-efficient manner, and we’ve embraced Zoom as a good way to do just that.
Matt Lonergan is a partner in the Labor & Employment, Litigation and International & Cross Border practice groups. He has represented companies throughout the country in the areas of union organizing, collective bargaining negotiations, grievance and arbitration, employment discrimination litigation in both federal and state courts, the National Labor Relations Act, wrongful discharge, wage and hour law, and other employment-related areas. Matt is also a member of the Nashville, Tennessee (Labor Law Section), Texas and American (Labor and Employment Law Section) Bar Associations, and a Fellow of the Nashville Bar Association.
Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators, administrative law judges and federal and state court judges. She has tried more than 30 cases to verdict.
