Data, e-discovery and Covid-19 key topics at Relativity Fest 2021

January 25, 2022
The question of what to do with data was a major theme at Relativity Fest 2021 – from how to safely gather data to the necessity for legal professionals to upskill about dealing with data. Given that the conference was held virtually for the second year in a row, Covid-19 was top of mind for every speaker as well. Most panelists had something to say about the pandemic which has radically altered how businesses and the wider legal profession must now operate. In the popular eighth annual Judicial Panel session, judges from across the US and the UK unpacked the results of switching to virtual court proceedings during Covid-19. Nora Barry Fischer, senior US District Judge of the US District Court for the Western District of Pennsylvania, said hearings conducted on Zoom were surprisingly popular with defendants. “People often think of Zoom as impersonal, but that’s not true at all. Defendants say they enjoy seeing the judge more clearly and family and friends can also join the sessions. Also, Zoom makes it much easier for the press to attend our hearings. Judges can also make judgments available to a larger mix of people, since the public can dial in,” Fischer said. William Matthewman, federal magistrate judge for the US District Court for the Southern District of Florida, said the general success of virtual hearings was a “real eye opener” for him and he intends to use the technology even when the pandemic is over. “It has been an excellent tool for all types of cases and proceedings. Zoom has been a silver lining to the pandemic. It has forced the...

No Vaccine, No Work?

September 24, 2021
CNN in New York recently fired three employees who violated company policy by reporting for work unvaccinated against the Covid-19 virus. [1] CNN chief Jeff Zucker reportedly said the media outlet has a zero-tolerance policy on requiring employees reporting onsite to be vaccinated. In other news, United Airlines will also require its more than 67,000 US-based employees to be vaccinated by no later than October 25 of this year or risk termination. [2] Unlike gender or race, a person’s vaccination status is not presently a legally-protected characteristic or classification under US Federal or State laws. Yet, the prevailing sentiment in the US is that employers can legally make employment decisions based on the vaccination status of their employees. The Equal Employment Opportunity Commission (EEOC) of the US has, in fact, issued guidelines providing that businesses generally may require workers who report onsite to be vaccinated without running afoul of the country’s anti-discrimination laws. However, due consideration and reasonable accommodations must be afforded to employees who refuse a vaccine for religious or medical reasons. To address this conundrum, some States have already proposed legislation prohibiting discrimination in the workplace and elsewhere based on vaccination status. In contrast, the Philippine government, through the Department of Labour and Employment (DoLE), issued on March 12, Labour Advisory No. 03, Series of 2021 (Guidelines on the Administration of Covid-19 Vaccines in the Workplaces) proscribing the adoption and implementation of a “no vaccine, no work” policy. In the advisory, “covered establishments and employers shall endeavor to encourage their employees to get vaccinated. However, any employee refusing or failing to be vaccinated shall not be discriminated...

Financial Rehabilitation as a Way to Survive Covid-19

August 16, 2021
Following the various types of lockdown measures introduced to limit the spread of Covid-19, many corporations had to pause their work or continue only with limited capacity. Small companies especially took significant losses and many were forced to shut to staunch the financial bleeding. However, it is worth noting that the law has options to help save a distressed company. Republic Act No. 10142 (the Financial Rehabilitation and Insolvency Act of 2010, or FRIA) encourages struggling businesses – including sole proprietorships, partnerships, corporations and individual debtors – to undergo rehabilitation. The FRIA does not apply to banks, quasi-banks, insurance companies or pre-need companies, all of which are governed by different laws and regulations. Rehabilitation allows for the continuation of corporate activities as a business is restored to solvency (Wonder Book Corporation v. Philippine Bank of Communication, G.R. No. 187316, 2012). The process may be court-supervised (which may either be voluntary or involuntary, depending on the initiator), follow a pre-negotiated plan or use out-of-court or informal proceedings. Court-Supervised Rehabilitation If a business is unable to pay its obligations, an insolvent debtor may voluntarily begin a rehabilitation proceeding by filing a petition with the court. The party who can initiate the petition depends on the type of business. For instance, if the company is a sole proprietorship the party will be the owner. If it is a partnership, initiation will require agreement of the majority of the partners. And in stock corporations, the party will be a majority vote of the Board or trustees, authorized by at least a two-thirds vote of the outstanding capital stock (or of the members, in...

Thinking beyond the pandemic with Karishma Nair of Pinsent Mason’s Vario

August 16, 2021
IHC: WHAT IMPACT WILL THE COVID-19 PANDEMIC HAVE ON THE FLEXIBLE LEGAL SERVICES MARKET? Nair: The new way of working only reinforces what we have known for some time: that flexible working and productivity aren’t mutually exclusive! Clients are now much more open to consultants supporting them from other jurisdictions and, given the advances in communication technologies, teams can still collaborate without needing to be onsite and physically present. This opens a whole new world of opportunity for legal consultants and gives clients access to a much wider pool of talent. IHC: WHAT ARE THE PRIORITIES FOR IN-HOUSE COUNSEL AT THE MOMENT, AND HOW ARE YOU HELPING YOUR CLIENTS MEET THOSE OBJECTIVES? Nair: We are lucky to have the opportunity to speak with legal leaders across a range of industries to better understand their most pressing issues. Pinsent Masons’ flexible resourcing unit Vario is now comprised of Brook Graham (Pinsent Masons’ specialist Diversity & Inclusion consultancy), Client Consulting and Legal Project Management. This puts the firm in a unique position to speak to clients about matters beyond the more traditional remit of the legal team. Most seem to agree that, while we won’t soon see a return to the more buoyant market conditions of early 2019, we must accept our new environment and find ways to operate within those parameters. Some of those priorities are sector specific while others transcend industry lines. For example, because of the pandemic, there is a renewed focus on Health and Wellbeing along with ensuring employees feel well supported as they navigate the challenges of working from home or supporting sick family members. Several...

Thailand: Can You Require Your Employees to Vaccinate Against Covid-19?

May 10, 2021
Given the disruption suffered by many businesses due to the Covid-19 pandemic, many employers will be asking a very important question – can our company require all employees to vaccinate against Covid-19? What is at stake? Employers will be seeking to ensure the wellbeing of their employees and the safe and continuous operation of their business. This has to be balanced against the right of an employee to choose whether to take the vaccine. Although the risks are low, vaccines are not risk-free and employees may object to taking them on other grounds. The answer to this question is dependent on the principles of contract, legal obligations, constitutional protections, and labor law protections. The below takes a holistic view taking all these principles into consideration. Mandatory vaccines unlikely to be permitted under existing agreements Most companies in Thailand will have generic statements in their work rules, internal regulations, and/or employment agreements along the lines of “employees shall abide by any valid and conscientious direction of the supervisors, management, and the company.” It is exceptionally rare for any of these documents to explicitly state that the company has the right to request  employees to vaccinate. Therefore, the question is, can you still legally request the existing employees to vaccinate without any explicit assistance of these documents and given the current circumstance? As there is no clear Supreme Court decision precedent for this specific situation, we must therefore look at this from other perspectives. Firstly, as outlined above, there is no contractual stipulation in the employment agreement that will allow the company to request the employees to vaccinate. It is also...

The Employee’s Right to Receive or Refuse a Vaccine

April 28, 2021
A few weeks ago, Metro Manila marked the one-year anniversary of its first Covid-19 quarantine. Now, the National Capital Region and other nearby provinces – dubbed the “NCR Plus” – are back under the strictest quarantine regime. We can still vividly recall the deserted streets when the strictest quarantine was first imposed. Initially, only the businesses doing essential work could operate. Even then, not all employees could work due to safety reasons, not to mention the hardships from no public transportation. The country essentially came to a halt. Eventually, businesses and workers alike accepted the grim reality that everyone had to sacrifice. Thanks to the wonders of modern science, vaccines for Covd-19 came at breakneck speed. Distribution of vaccines started late last year and the rollout has now reached the Philippines. Businesses are feeling more optimistic and everyone is eager to rebound. At this early stage, though, it is interesting to note that, many individuals are nervous about being vaccinated. People are asking if employees can refuse the Covid-19 vaccine. On one hand, refusing the jab is a matter of personal choice and the Philippine Constitution and laws guarantee an individual’s right to freedom, especially about health matters. The state has the mandate to regulate relations between workers and employers in affording full protection to labour. Presently, an employer is merely required to provide for employee viral testing and maintain a safe work environment. Also, no law mandates the Covid-19 vaccination of employees in the workplace. On the contrary, the Department of Labour and Employment (DOLE) recently issued Labour Advisory No. 03, Series of 2021, on March 12 essentially...