Prepare To Be Flexible

During the pandemic, and even now during this post-pandemic phase of our lives, Fennemore’s Employment & Labor Law team became one of the busiest practice groups at the firm. At the heart of our efforts in the California market is Fennemore Dowling Aaron’s Mark Kruthers. Mark is a thought-leader on a diversity of L&E issues, and he’s been quoted in various national media outlets, including Forbes. From issues concerning our country’s burgeoning gig economy, to COVID mandates in the workplace, and new policies for companies dealing with the sea change of remote and hybrid working for their employees, Mark has the pulse of this dynamic sector of the law.

We recently had the pleasure of talking with Mark as he deftly juggled his caseload (working on a mediation brief), and the needs of his two daughters post Father’s Day – one with a dislocated shoulder, and the other dealing with having the catalytic convertor stolen from her car!

During the pandemic – and now post-pandemic – employment and labor issues have taken center stage, making you and your department one of the busiest at Fennemore Dowling Aaron. What advice would you give a business owner now looking to navigate our new abnormal?

Prepare to be flexible. Not only are businesses being required to deal with new customer/client and employee demands, but a company’s obligations under the law continue to change. Be careful when reading reports on what the CDC or the federal government recommends because state and local requirements could be more restrictive. That is the situation businesses in California are currently having to address.  What is required or makes sense today, may not be what is required or makes sense tomorrow. Businesses that recognize this and are prepared to adapt to the ever-changing landscape will have an advantage over their competitors. 

The gig economy – in California – and nationwide appears to be here to stay. What should employers know, as well as individuals who are looking at a “side-hustle” in order to make ends meet.

That is a tricky question because, in California, the “gig economy” concept generally refers to services provided by independent contractors and not employees. That is what led to California voters recently approving exceptions to California’s recently enacted independent contractor law (commonly known as AB5) to allow for Uber and Lyft drivers to be classified as independent contractors and not employees. California law makes it difficult for employers to prevent employees from taking second (or third) jobs. Accordingly, the “side hustle” has always been available. The risk now is for the businesses that are trying to profit off providing “side hustle” opportunities to individuals. 

In most cases, California will consider those individuals to be employees of the businesses and not independent contractors. As Uber and Lyft realized when California enacted AB5, a business model which relies on the work of independent contractors may not be sustainable if the independent contractors are ultimately determined to be employees.

What made you choose this intriguing niche in the legal profession? And what would you tell your younger self – or a 1L in law school contemplating a career in this area?

I did not expect to get into this area of the law while I was in law school. In fact, I do not think I ever took an employment law or labor relations class. I somewhat “fell” into this field based on projects I started handling during my first few years as an attorney.  Ultimately, I started working with a more senior attorney who handled only labor and employment law issues, and the scope of my practice narrowed to those areas of the law. As far as what I would tell my younger self or a 1L, it would be the same advice regardless of what practice area was being contemplated – do not lock yourself into a specific subject matter.  Law school does not teach you how to practice law or what it takes to be a successful attorney.  If you go into private practice, make sure you start off with a full-service law firm that represents clients in a large number of different industries. Spending your first few years handling projects in multiple specialties is the best way to figure out what you want to focus on going forward.

You always seem positive and upbeat in your work. What gives you the greatest satisfaction of being an attorney?

I enjoy the “preventative medicine” side of my practice. The most satisfaction I receive comes from working with an employer to resolve a situation before it becomes an actual problem. I would rather spend 15 minutes with a client working through how best to handle/document an employee termination than watch the client spend thousands of dollars defending against a wrongful termination claim. Unfortunately, there is very little employers in California can do to prevent being sued. However, there is a lot that can be done on the front end to make sure an employer is in the best position possible to defend against (and win) a future lawsuit.

Talk about your biggest failure. What did you learn? And how did you pick up the pieces and move on?

That is a difficult question to answer because I generally do not view things as “successes” or “failures.” To me, they are all just events that provide an opportunity to learn and grow. 

Yes, I may get upset and analyze everything I did wrong. However, that does not mean there was a “failure.” In fact, I often walk through the same analysis after events that most would say led to a “successful” outcome. 

The “failure” would be if I recognized that I did something wrong but then did the same thing again in a similar scenario. There are a number of situations in my life that, at the time, appeared to result in negative outcomes. Yet, in retrospect, they were actually positive occurrences that I was simply unable to recognize. Unfortunately, there are too many of those to discuss them all here, and it is too difficult to identify one as more important than the others.

Who is your hero – or the mentor/person who had made the most significant impact on your career?

It is impossible to select just one person.  I have been fortunate to work with a number of talented individuals that have made a significant impact on me. Some of them intentionally showed me how to do things the right way, while others unintentionally taught me how not to handle certain situations. I try to make it a point to learn something from everyone I have significant interaction with, so that leads to a lot of people having a significant impact on my career and life.

What your go-to Karaoke song?

I do not have one. Long ago, I entered into a plea deal with the “music police.” The terms of that deal prohibit me from singing in public.

What are you currently reading – or streaming during this post-pandemic phase of our lives.

I am a fan of historical fiction and alternate history novels/programs. I just finished watching the second season of “For All Mankind,” which covered both genres. The series deals with the United States and Soviet space programs and is based on the premise that the “space race” that started in the 1960s never ended and continued through the 1970s and 1980s. To support the premise, a number of key historical events had to have happened differently. I cannot summarize them all for you, but I can say we have a base on the Moon and Ted Kennedy was the 38th President of the United States.

As an avid traveler – where are you taking your family next? And will you be tailgating at the 49ers’ games again soon?

My wife and I will be going to Las Vegas in July for our 25^th wedding anniversary. After that, we will start the process of taking a number of short trips with our youngest daughter to visit various colleges she is interested in attending. We are definitely looking forward to the upcoming NFL season and the ability to return to tailgating at the 49ers’ games.

 

Here’s to Mark Kruthers and all of the amazing attorneys at our firm who work diligently on some of the most important issues of our times.

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