Discussion #4517

Legal Tips for Re-Opening

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As the pandemic has changed how the Pilates world operates, there are new important laws and regulations that must be addressed to ensure your business is safe and secure. We're here to make sure you are confident and legally protected, especially in these unprecedented times as studios prepare to re-open. Join Cory Sterling, head attorney and founder of Conscious Counsel, and Gia Calhoun for a legal webinar where he will cover the legal essentials you need for re-opening your studio.

Links and Resources

- Cory's Previous Webinar

- Pilates Checklist

- April Discount

- Consultation Booking Form

- The Yoga Law Book

What You'll Need: No props needed

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Apr 29, 2021
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(bright upbeat music) Hi, I'm Gia with "The Pilates Report". And today I'm really thrilled to have Cory Sterling here. He's going to be answering all of your legal questions about what to consider when reopening your studio. He is the lead attorney and founder of Conscious Counsel. Welcome, Cory, it's so great to have you back.

Hey, Gia, thank you so much for having me, I'm so happy to be here. And if you haven't seen Cory's discussion with John from last year, it's up on Pilates Anytime, and we'll have it linked to the video for this year when we have it available on the site. So we're gonna get straight into the questions 'cause I'm sure that all of the people attending will have a lot of questions for you as well. So first I just want to go over the difference between independent contractor and an employee. 'Cause I know you covered that last year, but it's always good to review and just make sure people know why it's important to know the difference.

For sure, happy to chat about that. The thing that I just have to say is like I still love Pilates. I remember last year on this call I was like just starting my Pilates journey. Amazing. I was just getting going at studio Tahoe in my little town.

And since then, I've only grown to appreciate Pilates more. And I don't know if instructors go through this as well, but I sort of my flexibility peaked, I was the most flexible I've ever been and then I didn't keep it up. But That's what happens. still stretching every day. And I'm into, like the new thing that I'm into, just so that everyone knows all this, 'cause I'm gonna talk about the law for a really long time.

But just so that, we're the same. It's all about mobility these days. I used to- Mobility is very important. I used to just focus on flexibility, and now it's, the Portuguese word is mobilidade. So it's like that's where I am, April 27th, 2021 in my Pilate's practice.

Just as an update, maybe that's going to be one of the questions. Some of the lessons were like "Hey, where is Cory in his Pilates practice?" Well, I remember last year people were really happy that you and John were promoting Pilates for men 'cause that's something we're trying to get more men to do Pilates 'cause there's a big stigma that it's just for women, but it's for everybody. Do you think that's increased? Do you think there've been more men who now practice Pilates? It's slowly increasing but we definitely can get more men doing it.

Cool. Any entrepreneur out there who's like has an existing Pilates business, just find a niche within male men's Pilates, target professional athletes or old people, and just niche down and find it, it's there. Because once people experience it, they'll love it and they'll just want to keep doing it. Exactly. Okay, now. Perfect segue into independent contractors and employees.

So let's take like a bird's eye view of what happens. You have a business and you are not the only person who provides services for the business. So you're either going to have employees or you're going to have contractors. The biggest implications of the distinction of choosing whether someone's a contractor or an employee is that if someone is an employee then automatically there are certain legal benefits that they are entitled to by virtue of being an employee. There will be different, depending on your jurisdiction, there will be an employment standards act, which will say anyone who is an employee will be, is entitled to X number of benefits, and if they become unemployed they'll be able to file for unemployment.

And they're allowed certain number of sick days and work days and all of these things. And then there are other people who are contractors, the whole idea being that a contractor is someone who operates and runs their own business. So in the most traditional sense of who and what a contractor is, you can think of your plumber if you have a plumber. If you do, I'm curious if you have a personal relationship with your plumber, just out of curiosity. But if you think about how a plumber is a contractor, they have their own business and they're providing one service for you.

So they come in, you let them know what the problem is, what service needs to be performed. They have their own equipment, they have their own uniform, they invoice separately. They make their own schedule, they'll let you know roughly when they're coming but it doesn't have to be that time. And if Mary the plumber is unable to make it, she's able to outsource this to someone else who can then provide the services, because this person runs their own business so they're allowed to outsource the providing of the service in and of itself. So if we go to like a Pilates example, the reason why it can be difficult to have contractors-only in Pilates is that we're a Pilates studio, we're an online Pilates studio, and we're hiring contractors to provide Pilates servers.

Now, because typically that's the majority of what we're trying to, what services we offer, we offer Pilates classes. So the first distinction is if someone's a contractor, they run their own business, they're not entitled to any sort of legal benefits or legal protections, and as such they should have much more freedom in operating their business. So there's some, it's like the same way you don't tell people plumber how to plumb. Maybe that works. In the same way that you wouldn't tell a plumber how to do their job, technically if you're a Pilates studio and you're hiring teachers who are contractors, you shouldn't be telling them how to provide the services.

It's more that you have a particular business, you're outsourcing part of your business to them. And so they have full control, they make their own schedule, they can use their own invoicing, they should be incentivized to make more money based on the hours they work or the number of clients that they work with, and then there's all these other distinctions. So why does it matter? The first reason why it matters is that it's possible that if you do not, if you call someone a contractor... So the thing is it's also cheaper for you to have contractors than it is for you to have employees.

Because when you have employees it's your responsibility to pay them, they don't have to invoice you. You have to pay them and also you have to deduct the relevant state and federal employment taxes, which you would not have to do otherwise if someone was a contractor, because contractors run their own business and thus are responsible for paying their own taxes. So the first big risk is the risk of potentially getting audited by misclassifying the workers. Another risk of, so that's like getting audited is the least cool thing around, it's not fun, it's really expensive. It can, the penalties, if you're a studio that's been in operation for years and you've always hired contractors but you've really treated them like employees, and one of those contractors gets upset and wants to file for unemployment or something like that, they could potentially tip your business off to the IRS or to another business bureau on a municipal or state level, which could mean that your business could get flagged and you could get audited.

And I've just seen clients pay up to hundreds of thousands of dollars to sort of fix that corrective problem. So the two things that I've just sort of shared, and I'll just pause to make sure that all of this lands and make sense, the two things are, firstly, the reason why this matters is because it has to do with the amount of control that you have over the way the services are being done. And that if someone is an employee they have certain legal benefits, whereas if they're a contractor, they run their own business. And the biggest, most important reason why this matters is that there are really significant and real penalties if you misclassify your workers. And like, I'll just pause there 'cause I don't want to get too ahead of myself.

Does all this make sense? Yes it does. And for the independent contractor, they would be in charge of their own marketing. So if a teacher wanted to rent space in a studio but they brought their own clients and they did their own marketing and everything was done through them, they just paid a rental fee, they would still be an independent contractor, correct? 'Cause they'd be in their own business.

For sure. And that's something that we see. Like California is the big jurisdiction where we see a lot of challenges around having contractors because of AB5 and then the modification to AB5. Which was basically a law that said if someone is performing the same service that is this main service of your business, at law, they have to be an employee they can't be a contractor, irrespective of how long they're working, how many hours they work. So, one really interesting thing about the distinction is that if someone's paying you to rent the space, it's impossible that that person is either a contractor or an employee.

Because- Because it's their own business. They operate their own business, and then there should be something like a space rental agreement that would be agreed to between the parties. Because if you think about it logically, someone cannot, I cannot pay you something and be a contractor working for you or an employee working for you if I'm paying you, if that makes any sense. Yeah, that makes total sense, great. Cool.

So is that helpful for the contractor-employee distinction? I think it is 'cause I know, especially 'cause I'm in California and I know it's the AB5 conversation has been a big deal here, but I know as more places start to implement laws like that, it'll start to affect more and more studios 'cause I've lived in other states too and I think most studios I've taught at I was considered a contractor but treated like an employee. So I think it's good to have people know the difference so that they can start to make any corrections that they need to before they can, before they get in trouble or get audited. And the tricky thing, like just to talk about, it being April 2021 and what's happened in the past year, the biggest things I've seen happen in the contractor-employee distinction is that when a lot of studios either have to shut or stop working with people, staff members wanted to file for unemployment, obviously, because there weren't any other jobs available or they, whatever, there's no opportunity. And so what would happen is an employee is allowed to file for unemployment insurance whereas a contractor would not be allowed to.

So I saw a whole bunch of, I saw a handful of instances with clients where they were a studio, they hired contractors, but then those contractors were like, "Hey well now I don't have any more work and I want to file for unemployment. So even though you called me a contractor, you were still treating me like an employee, and as such, I'm going to file for unemployment." And just like, just all these situations blow up. And the one thing that I'll just say that's really really important for everyone who's listening to know is like, have the appropriate legal structure in place so that if one of these issues that you may not even be aware of materializes, it doesn't derail you and your business and your energy and get you stressed out and worried and crying and all of that stuff. And instead you're like, "Okay well, this is the agreement you signed and this is how you're providing the services, therefore there's no conversation to be had." That's like, that's what we're going for. Great.

So for agreements between your employees or if you have a contractor, if you legitimately have a contractor, but we'll talk about employees generally, what kind of updates do studio owners need to make to their agreements between the employee and the studio? Do you mean if you're transitioning someone from a contractor to employee or just employee agreements in general? Just employee agreements in general since studios are starting to reopen. Cool, I'm going to answer that. The one thing I want to say is, Gia, I shared with you a link to a free Pilates legal checklist.

If we could just share that with everyone, 'cause I know that there's specific information on the contractor and employee distinction as well there. So that will just be like a really helpful guide that anyone can sort of follow. Yeah, we'll definitely share that. It'll be in the link to the description when the video is available on the site. So we'll have that available for everyone.

Perfect. So the things that you're gonna want to think about in reopening for employees, there's quite a few, but the first thing to know is that there are some instances and some states where the relationship is something that's called at-will employment, which basically means that like you have an agreement and someone can show up to work or not show up to work and if you don't, if you want to stop working with someone, you can terminate that agreement at will. And in the same way, if they want to stop working with you they can terminate that at will. But that being said, the real benefits of having an employment agreement and as we open up, I always say legal documents are used for storytelling. So what's going to happen is you're, it's a crazy world and things are constantly changing. There's a barrage of new rules and procedures that we have to follow.

And one of the best benefits I see from legal agreements of my clients using, especially in employment agreements now is having some form of like objective document that clearly states what expectations you have of your workers, how they're supposed to behave and in certain situations what they're supposed to do. And the reason why I say that is that safety is becoming so important and following safety rules. Like, obviously if you're not there at the studio and one of your employees is doing something and doesn't do something that you told them that they were supposed to do for hygienic or whatever other purposes, that falls back on you as a business owner, and that will be a negligence claim against you. But in your employment agreement you want to put things in to say like, "Hey, you understand this is the process of work that you have to follow and every time you have to do this." And if it means checking temperatures, if it means wiping mats, if it means setting the appropriate distance in mats, whatever it is, in the event that something happens and someone either gets injured or sick as a result of one of your staff facilitating the class, and you are deemed to be responsible, you're gonna want as much proof as possible to show that you were proactive and that you weren't negligent in the relationship. And you're like, "Hey, well, just so you know, we've recorded this Zoom meeting." That's like one tip I share with all my clients.

If you've got a team of employees and you're talking about types of behavior that you want to enforce, have it on a Zoom meeting and record that Zoom meeting in the event that you ever need to reference the fact that you discussed it or that you spoke about it. That's always good advice. And because it's going, the reason why you're going to want to use this is A, to hold them accountable in the event that one of your staff members is showing up short, or, B, in the event that there's an issue and you're going to need to demonstrate that you did not fall below the standard of care and that you went above and beyond to educate and work with your instructors. So that's just like the general answer. Specifically, in employment agreements the things that you'll want to think about are things like non-solicitations and non-competes, which are very very difficult true and truth, actually apply, they're not impossible.

You have a better chance to have a noncompete with an employee than you do with a contractor, but even still, it has to be, it's all about how reasonably it's framed. And I wouldn't hang your hat on the possibility of actually enforcing one, but I have a lot of clients who do want to include it. Other things in employment agreements should be about intellectual property rights for any videos that are created. So if you've got a membership database or evergreen content and you're paying your employees, you want to be really really specific in dealing with that. And then the most recent one, this will be my first use of the V-word, but the most recent issue that we've seen coming up with studios is some studios are mandating vaccinations for their staff members or their clients.

That was actually going to be my next question. So that's something that we've been working with a number of studios in helping them update their employment agreements to have vaccination provision or vaccination clauses included where they mandate some form of affirmation from the employee that they have in fact been vaccinated. So, 'cause I know we've checked with, we work with ADP to pay our employees with, like on the backend of the company, and we talked to them and they told us due to HIPAA regulations, it wasn't advised to ask employees about their vaccination plans. And obviously we can't terminate anyone if they do not plan to be vaccinated, at least for our company. But is that this case everywhere or is it just depend on the state or the location that you're in?

It would, the first thing you always want to do wherever you are is check your local rules. But this is what we've been seeing and the the trend that I've seen in the industry and sort of like the position that Conscious Counsel has taken. Firstly is like it's a super personal decision. And so it'll come from the top down from the business owner of what they feel is right. And I have no preference whatsoever.

I have clients who want agreement saying that all their clients and all of their employees have to be vaccinated, and then I have clients who want the complete opposite. So as a lawyer, the responsibility is to have the best interest of the client at bay and be loyal and dutiful to that, but then also like I don't judge, I don't really care what people's position are. That being said, the difference between, there is a way to work with it where you would not trigger trigger the relevant HIPAA provisions. The big thing, and this is why you technically should work with a lawyer who understands it. But like, you don't want to be asking someone for a record of their vaccination or for their vaccination passport, but instead you'd want to have an agreement where certain affirmations are made where someone is saying, "I promise that I have done A, B or C." Because you're not holding personal information if someone is agreeing, is affirming that something is done.

As opposed to saying like, "Hey, we need to see a copy of the vaccination, part of your personal medical history." You want to stay as far away from that as possible. The other position that we've taken as a law firm after speaking... We've got hundreds of clients all over the world. Technically, a business, if they wanted to, a business could mandate that all staff and even all clients have received vaccinations. The reason why is because it has to do with the public health concern.

So it's not a matter of discrimination. Discrimination is like excluding someone for a particular reason based on who they are or what they are or how they see themselves or some like how much, something along those lines. Whereas the equivalent of what we've come to at our firm is that the same way how you're allowed to refuse someone entry into a restaurant if they're not wearing shoes because it's a public health concern and it's putting other people at risk, the same policy has to go with the vaccinations. So does that make sense? I see.

Yeah, and that applies to contractors as well and clients. Yes, certainly. The thing that you want to be careful of, and this is why we've done so many revisions to service membership agreements for our clients, is that if someone has already paid for a service and then afterwards you're trying to go back and be like, "Well, if you're not vaccinating we're not letting you in." At that point you'd have to provide them with a refund. But if you're having people sign, excuse me, new agreements, and in doing so you're saying, "Hey, as you're clicking to be bound by this any future payments will be in accordance with this agreement, and you hear by affirm that you've been vaccinated and A, B, C, D, and all the other things that you want to include." And in that case, someone then has a choice to enter into that relationship or not. I see.

And then we're getting a question actually from Katrina. She wanted to know, should they have masks or no masks for vaccinated clients? Is that something you can require or do you have an opinion on what they should do? I think the same question with, the first thing that we want to do with all things COVID related always is look at what the rule relevant rules in our jurisdiction are. So in your municipality, Katrina, in your municipality or in your state, if there's a particular rule around what they say you should be doing, you're gonna want to follow.

For example, I know that Texas and California have different rules about what is acceptable outside. So the first, like, the first thing is follow the local rules. Because remember, if you're not following the rules then you can, it's easy for someone to say that you were negligent if they suffer any damages as a result. And then secondly, after you find out what the relevant local rules are, you have to decide what you think is important for yourself as a business owner. And that's like, if someone's been vaccinated, do you still want them wearing a mask?

I don't know. How do you feel about that? I think legally it's not such an incredibly legal question, I think it's more, A, of following local rules or at least not breaking whatever municipal level rules or state level rules there are, and then secondly, deciding what sort of environment and message you want to send from the top down. I hope that helps. Yeah, great.

So, speaking of rules and regulations, are there any new rules or laws that we should be aware of pertaining to studio owners? Are there any new rules? Yeah, there's not... New laws, yeah. The interesting thing about Pilates as an industry is like, there's not like the Pilates Studio Membership Act, which is a federal piece of legislation, which is like why, in some ways why my work is so interesting, because I'm advising all of these businesses, but it's not like there's specific rules that have bound.

But what I will say is the changes that we've seen taking place in the industry, we've seen a lot of changes around operating online businesses in terms of collecting personal information. So whether that's privacy policies and updating everything that you do for the collection of personal information, because as everyone's been shifting online more even as we prepare to reopen, and I'll talk about the reopening part of this in a second, like, there's, you have to be compliant with all of the relevant rules. So it's not like there aren't new rules, but I think it's more like this, people are operating in a new way, and as a result of operating in this new way you need to make sure that you're compliant. So just one example that's super, super relevant. Obviously having a waiver of liability that covers everything that you do online, in-person, and with pre-recorded materials.

Like it's not a new rule per se because the rules been the same, but now everyone, most studios will be a hybrid of being online plus saved videos that people can watch plus now in-person with COVID. So you want to make sure that your waivers are caught up. And I think for membership agreements, there's a lot of things around autopay memberships and having a document drafted a specific way. We had a lot of clients go through fighting credit card companies for charge backs, where someone would say, "Oh, well they shot or they took my annual membership but they're not offering in-person." And like, A, the membership agreement should address this, and then, B, it needs to be drafted in a specific way with initial boxes on each page and explicit mention of like having appropriate refund periods basically. So that's sort of like for how things were.

In terms of reopening, it's all about, A is about making sure your butt is covered with an appropriate waiver for like opening in a COVID environment. It's also about updating the type of, updating your services, updating your relationships and being able to have that flexibility to close if you need to close or to be at minimum capacity, whatever your capacity is, like 25%, 40%, whatever it is. You're gonna want to tell your clients how your business is run now, and you want to do that upfront, openly and honestly right from the start so that people aren't upset and you don't have to spend your time fixing problems around things like autopay membership, cancellations, and charge backs, or the possibility of getting sued. I hope, is that helpful? That is.

We have a couple of questions actually related to that topic. Katrina again asks, do you know about legal additions that are being added to liability insurance? And also, do you have any examples of liability insurance waivers that you can share with us for later? No. I wouldn't do that.

Waivers of liability are something that as a business that we sell, it's the document, it's a service that we offer, it's the service that we offer the most from all of our services. Just because it deals with so much in terms of liability, getting sued, peace of mind, and also making sure that if a problem comes up you can resolve it really quickly. What I can tell you in terms of insurance, and this is, it's a really great question, you're going to want to speak to your insurance provider and you're going to want to make sure that the way that you're operating and the way you're going to be operating is covered by your policy. What we've seen is a lot of confusion from our clients of whether or not the activities they want to do are covered. So, two quick examples.

I have a client in Texas who's doing Pilates in her home and going to her clients' homes to perform the services. So now the question is her, does her insurance cover her for practicing outside of a studio, specifically in her home or in her client's home? Like, that's a question that you really, really want to get answered, and that's something that your waiver of liability should address. Another thing that we've seen, and maybe this is less with Pilates because Pilates has the reformer, but we still have the magic circle, magic circle or magic ring. Either way. Got it.

I call it a magic circle. Like maybe you could take maybe you're offering classes or you're doing mat Pilates in the park. Does insurance cover you for practicing in the park? And as crazy as it might seem to everyone listening, things can happen in the park. People can step on glass, people can get hurt, people can fall on their head, they can, whatever things that you can think can happen do in fact happen, so you want to make sure that your waiver covers you for that and that your insurance covers you as well.

Great. We have another question from Terry. Should we update our release of liability with the COVID or vaccination clause? Yes, you definitely should. I don't think that, I don't really see, and if Terry feel free to respond in real time, I don't really see what vaccination clause would need to be included in a waiver of liability, but certainly COVID waivers are something that we've been drafting a ton of in the past year.

And so, and I'll explain why. The crux of a waiver of liability always is that it covers the specific activities and the risks of what you're doing. And as we're opening up again, the activities are different because now we're practicing Pilates in an environment where there's a communicable disease around, whereas when we were doing it online, that wasn't an issue because everyone was doing things from their own home. So you need, there's a new activity and there's a new risk, unfortunately, so your waiver of liability needs to capture that. Great.

There's been, there's a cool place here called the Pilates Pod, and I know of other studio owners that are starting to open up their spaces for independent practice where the client can just go in on their own to practice. What advice would you have for a studio or someone doing that to make sure they're covered? Cool. If you're, so what's absent is the actual instruction and the interpersonal interaction, I suppose. Yes. So you'd obviously, you'd still want to waiver about the use of the equipment because if something's not done properly you'd want to release yourself of liability, and 'cause you're still responsible, you're facilitating the activity for them by providing the equipment.

And then I think it's more, I think it would be more about like payment terms. Like, "Okay, you're paying, what is this grant me to? You're paying X number of dollars a week that means you get X number of hours. If someone wants to cancel, if someone wants a refund. What happens if people show up late and then they're taking someone else's spot?

Just sort of like general legal, quite like general relationship questions to address of letting people know like, "Hey, this is our system, this is our process, this is how it works. And you'll be given an access code or you'll meet someone here." If you want to ensure their health and safety, like you can introduce things on contact tracing or whatnot. But I just want to take, and so I hope that helps, like it's, to me it's sort of just, it's a logical question but this is the big difference about why it's important to use agreements. Reason why you want to be using customize industry specific agreements for your business is that let's say if we just go with Pilates Pod and we just have people coming in and we post the rules in the studio. We post the rules in the space and whatever's happening like, what if someone breaks the equipment?

What if they're acting, will they be responsible? The difference between signed agreements is like, you can hold someone legally accountable to having to keep their end of the deal where as opposed to if you're just posting signs or you send them an email, if there's like an email, it's like, "Hey, this how Pilates Pod works." And then something breaks and you have video footage of them breaking it or doing something really stupid. If you don't have that signed agreement, it's much much more difficult for you to enforce your rights. And so that's part of the reason why you, like a signed legal agreement means someone is making a legal promise that they will be held accountable to either behave or not behave in a certain way, and they have to accept legal responsibility because they've signed the agreement. That makes a lot of sense.

Do you recommend for people who are looking into joining a studio like that? For those people, should the studio have the rules or anything on the website or should they just see that when they actually do sign the waivers. Should they know ahead of time? It should be a checkout checkout page where people sign where it's like, hey, before coming to Pilates Pod... Or you accept payment, people get a credit for 10 classes or whatever the arrangement is.

Before they pay, you give them an opportunity to view the document, they agree to be bound to the document, and then you can send them, like you can send a follow up email, an automated follow-up email that has a copy of the agreement so that there's no issues around that. Great. I just want to let the attendees know I only have a few more questions that I specifically want to ask Cory, so if you do have questions, feel free to add them to the chat, 'cause then we're going to be opening up to the actual Q&A part of the discussion. Oh, who is this? I told you that, I told you one of my puppies would join This is Gringo.

No, this is Ada. Ada, ooh. Ada has silver eyes. So cute. Wonderful, love dogs.

My dog is over there. She was squeaking a toy right before we started. I think we should get her on the camera, I'm just going to throw that out there. I think- She's sleeping on the couch. I don't want to serve her, but if she wakes up and comes over, I'll get her in here.

My next question for you is, for teachers who are employees at a studio, if they don't agree with the requirements, like they want a little bit more safety protocols than the studio has deemed necessary, what do you recommend for them if they want to continue teaching there? Should they have their own kind of waiver or what could they do? I think it's the relationship there is mostly between the teacher and the studio owner. So I think they could have some form of... So at the end of the day, the studio owner is either gonna make the change or not, and I think it's all about how you communicate the problem or communicate what it is that your needs are.

So what I will say is like probably the studio owner would not be thrilled about the teacher using their own waiver of liability, I would just imagine that. I couldn't see them being too excited. So I think the biggest thing is, as a teacher if you don't feel safe in the environment, the first question is like, is the studio operating below the standard, unacceptable, reasonable standard? Of law it's always about reasonable standards. So for example, let's say we're in Tennessee.

We're in the state of Tennessee and we're in Memphis, and Memphis has a rule, the whole city of Memphis you have to wear a mask for everything that you're doing, no matter what, except for eating barbecue. I've never had barbecue in Memphis, but I would, I don't know if anyone here is from Tennessee or Memphis, but- I've never been, but I imagine it's really good. I'm just like I'm salivating a little bit as I think about it. So let's say the studio is like, "No, we're not, we're a Pilates studio but we don't believe in masks and I don't think that it's right." And then the teacher doesn't feel comfortable. If the studio is acting below the, like a reasonable standard, then I think they have some form of grounds to speak to the studio owners and say and come up with some reason.

But ultimately, I mean, it's difficult and it's tricky and the only solution in that relationship is gonna come from the owner itself. Like if you're a studio, you're not going to be like, "Well, I'm going to report your business." Because that person's not going to want to continue working with you if you reported the business to whoever. So what I always say whenever it comes to conflict resolution is like, have a think about who the one-on-one relationship is with. And in this case it's between you as an employee and the studio owner, and think about different tools that you could use to be able to get what you want if that's like more conservative safety measures. And I think the easiest one is just showing what everyone else is doing and that's why they're doing it.

Great. My last question is, what advice or recommendations do you have for studio owners who are planning to reopen to have them keep their peace of mind basically? I know obviously waivers and liability are important but do you have anything else that you'd want to add? I think the two things for peace of mind is like, and this, the first one isn't legal, but it's just something that I see a lot of my clients using. I think it's being prepared for contingency plans and being prepared for like what could possibly happen.

Because so much of the, like when we're in as business, we're thinking about being business owners here. As business owners it's like the shock of something that completely unpredictable happening and then you're scrambling and you're like, "Oh my God, how do I deal with this? What do I do?" So I think even having a plan that you share with your team, and you're like, "Okay, if..." I'm thinking about what the relevant risks are, like, "Okay if this materializes, this is how we're going to deal with it." And if certain client, if all of our clients are complaining about this, this is what our response is going to be. And I think that when you're able to preplan for that, it's really, really helpful. The other thing that I can say for peace of mind is like always remember as a Pilates, either studio, owner, or teacher, the biggest relationship you're going to have is with your clients, because your clients are the ones who are paying you and they're the ones that you need to keep coming back and to be satisfied to continue using the services.

And the better that you can communicate openly and honestly with them what they can expect from the relationship, the easier of a time you're going to have. And even if the more variants of things that will go wrong, so long as you've communicated openly and honestly, you've told people what to expect and you have a record of all of those communications, nothing that crazy is going to happen. Like you're going to observe, okay we reopened, doing things like feedbacks in the first couple of weeks are really important to hear what people are saying. "I like this, I didn't like this. I don't feel comfortable about this, whatever it is." But at the end of the day, if something happens and you can tell people like, "Hey we told you beforehand that this was going to happen and you agreed, you legally signed an agreement accepting that this would happen." Then it's okay.

And I think, a cool thing happening at least across the board with all of our clients is like everyone understands that we're all making all of this up as we go along. Like, it's very, very unprecedented experience and I think more often not, we see people excited to get back into studios and doing in-person activities. And I think so long as, talking about using law as a tool for storytelling, the more that we're able to tell people like, "Hey, this is why it's really important you sign this new agreement. We're trying our best, we want to stay open for you. It was really difficult working through the past 12 months, but we're here now, and this is the new relationship that we have." People want to be around other people may want to be practicing again.

And I think that if under that context, if you're reopening your community will have empathy and will have patients in working with you so long as you've communicated openly and honestly. Great, thank you. I'm just looking at the chat here. Terry does say there is really really good barbecue in Memphis, so you're not wrong about that. Katrina has another question.

Can a California studio owner be sued by a client for possibly catching COVID? She says we live in a very litigious world. Yes, we live in a litigious world. Can someone be sued by someone alleging they got COVID at the studio? Someone could try to Sue you under those premises, certainly like all of it would be about evidence and them being able to unequivocally pinpoint that in fact it was your studio where they contracted it.

And that's why, A, you want all of your agreements to be updated with COVID language, and, B, you want to be operating at the best health standards, evidenced in legal agreements. Let's say that situation happens, and firstly, someone signed a waiver, cool, this story's done for the most part. Now the only other question would be like, was it gross negligence? Did you go out of your way to really make a mistake and put this person in a position to catch COVID? And probably not.

If you could show that, if you've done all the things that I mentioned on this call, like you had a staff meeting, you have a video recording of that staff meeting, you have a membership agreement that's signed by everyone saying that they understand this is how they have to behave and this is what the process is, all of those things. And just to explain a little, Katrina, how the process works of actually getting sued, it starts with someone filing a complaint against you. So someone's going to say, "Okay, God forbid, I got COVID at your studio." Let's say they're either going to send you a demand letter themselves or they're going to hire a lawyer. Now the momentum of their case will be entirely based on what you're able to respond with. So they're gonna say, "Hey, I got COVID at your studio and it's all your fault and all of these terrible things about you, and this is...

I've been off work and my quality of living has changed, blah, blah, blah." Let's say you don't have appropriate legal documents that are professionally drafted, industry specific. Let's say you don't have any of that in place. They're going to send you a demand letter, and your response is going to be, "Oh no, we used the mask or we did this." Then they're just, it's like when a shark sees blood. Like, "Okay they don't have the agreements in place, this person wasn't operating on a professional level therefore full steam ahead, let's get them." As opposed to, in that instance if you've got legal documents that are properly drafted, everything, you can get your attorney who drafted the agreements to respond. "Hey, here's a copy of the waiver of liability.

It specifically mentioned COVID and the risks of COVID. Here's a signed copy of it. Firstly, it stops there. Secondly, these are all of the steps that we took to protect our clients. Thirdly, this is how we instructed our staff." And if someone receives that, it just it takes so much wind out of the sails of being able to bring a legal action.

That's really, as a lawyer, that's most of what I'm helping clients do, be in a position to respond to a problem. Thankfully with the hundreds of studios that we've worked with, we've never had anything go to litigation knocking on wood, and everything's been resolved before that. And that's really what this is about because it's not a regulated industry because everything's so unpredictable, you just want to have the documents in place that will help you. I hope that helps Katrina. That's very helpful.

So basically the takeaway is just the other side is probably gonna be looking for some kind of holes in your waiver so you want to make sure you're just covered completely for everything you can think of. Always. And when I wrote "The Yoga Law Book", of which we can also include a link in this. Yes, we'll definitely include that. When I wrote "The Yoga Law Book", I did all of this research into waivers of liability.

And what drives me crazy but I've learned to cope with, because I'm a breather, I breathe. Good. What I've learned to, I understand why people will use waivers of liability that they copied or that they find on the internet, but a waiver of liability is only as good as it is customized to your business and what you're actually doing. So for me as a lawyer, both when I was researching waivers and I saw when they apply to when they didn't apply, it's always about how clearly it was drafted and how specifically it was drafted towards a particular business using it. But also around waivers of liability, I've both, I've been in negotiations where I've defended a waiver of liability and where I've challenged the waiver of liability.

And I just wish that everyone could go through that experience also because you just see like a bad, using someone else's waiver of liability that's poorly drafted that they got from their second, their best friends, second cousin's dog. A good lawyer will look at that and they'll tear it apart in five seconds. And will just be like, "No, this is why it doesn't apply," and then it's like you don't have it. So it's something that it is an investment, but it's worthwhile and it provides you peace of mind and it protects all of your hard work. I remember last time you were here, I believe you said it was better to spend the money upfront with the new waiver instead of paying all the fees later on once you have to challenge it.

We call that, pay me now pay me later, which basically means Exactly. that what we see and the advice that I got as a young lawyer was the importance of, for small business owners investing in legal upfront and being proactive around the law. Because inevitably you will run into an issue, and when that happens, you're going to, you'll pay four to five times more than what the original cost was just to try to get out of a problem filled with stress instead of paying upfront, responding to the email right away, it's done, back to doing mermaid pose like it's over, we're here. Exactly. We have a question from Kim, and she says, "The CDC says that COVID is less likely to be caught through touching surfaces.

How stringent do we need to still be on cleaning our studios or has that lessened?" Of course we would still need to follow the local guidelines. If you remember. So what I don't have... Sorry, Kim, I'm picking up my other puppy. Oh, what is this one's name?

Her name is Lua, which means moon in Portuguese. Very nice, that's so cute. Kim that kiss from Lua was for you. So, okay, so the first thing always about any of these hygiene rules, the thing that you're gonna want to understand it's always going to come down to negligence. So, were you following a reasonable standard?

If there's, if wherever you live has particular rules where they say, "Okay, this is the standard, or this is what you have to do, or this is what you don't have to do." So as long as you're able to show that you're acting reasonably, and that you're not acting negligently, and that you communicate with people the appropriate risks of being there, then you're fine. There's, unfortunately, it's very very gray in the sense it's not a black or white answer where I'm like, "Oh, if you're talking about hygiene, it's ABC." It's more so a combination of you being comfortable with what you're doing, your community being properly appraised and communicated with about what they're getting into and what the risks are. And then, C, making sure that whatever you're doing is at a minimum at base industry standards. And I hope that helps. Great, thank you.

We still have time for a few more, everyone, but in the meantime, while we wait for a few more, Cory, can you tell us how, tell everyone how they can get in contact with you if they want to use your services for a waiver or any other legal services? Totally. So one thing I'm gonna share, I'm gonna send these in our Zoom chats. Great. The first is that for the month of April, we've done, we've decided to offer a sale on membership and service agreements.

Oh, wonderful. So, normally there's $778, we're selling them for 618. Each month we always have a discounted item. And this month has everyone was reopening, we just saw tons and tons and tons of people needing to revise their service agreements because the way that they're offering their services as they reopened are different. So we all like, basically each month we look at what's going on in the industry and we have a specialized, we have a special on a particular agreement.

So you can share that. And then also for anyone who's listening and thinks that getting legal documents is a smart investment, it's something that they're interested in, if they want to be proactive, they want to have all of the agreements in place and they want to be communicating openly and honestly, I'm happy to provide a free consultation. And that'll be the second link that I've just sent you right here. Perfect. So basically that's for people to sign up if they want to chat with me about coming up with a legal strategy and legal documents that they can get in place.

Great. And everyone, I'll make sure to include this in the description of the video once it's on the site. So you'll have access to all of these links that Cory is sending me. For those consultations, does that include, like if someone just wants to amend their current waiver, just add in a little bit or would you recommend doing a full redo? I can't, the biggest distinction is that I can't provide legal services until someone signs up as a client. I see.

So usually the consultation is for me to understand more about their business, what their needs are, and then coming up with a customized package for them. I will say that Perfect. in the first two years of my business, I would review, I reviewed a lot, a lot of waivers of liability, and then I just saw that how poorly so many of them were drafted that we usually just start from scratch. But just, if I feel like having like a throwback hangout chill for myself, I'll put on my morning jacket or the war on drugs, and I'm happy to review a waiver to see what's in there. But usually I look at it and it'll be 35 seconds, I'm like, "Okay, A, B, C is not here, or this wasn't done properly." But I'm always open to being pleasantly surprised.

Great. If we don't have any more questions, 'cause I know you're busy, Cory, I'll let you go. But do you have any last words for our attendees who are studio owners or teachers in the industry? I love Pilates. And I think what everyone's doing is really really wonderful.

What I've seen happening a lot lately, unfortunately, is like a lot of fear and doubt and uncertainty about reopening. And what I want everyone to know is that part of what we do at Conscious Counsel is providing you with turnkey solutions. That my expectation is not that my clients have to understand everything about the law, but it's like, "Give us 15 minutes of your time, answer a couple of questions through a type form, and we'll get you documents that protect you with all that you need." So that excuse of not feeling comfortable or being worried about getting sued, we have a remedy for all of those problems and we'd love to support you. The one thing that has been really important for me in this past year has just been continual practice. Continuing to practice either more like staying on the mat or making sure to stretch each day.

In all the craziness of everything going on, that's always been the grounding rooting answer for everything. And I know that I'm not, it's not just me who feels that way, I know all of your clients feel that particular way. And I also know that people are just itching so eagerly to get back into the studio and to be working with all of their teachers. So square away your legal, you don't have to worry about it. Be awesome, continue offering your services, give people that outlet to breathe and stretch and elongate and gain muscle and have that space on that for each day where they get to be with themselves, and that will make the world a better place.

Awesome, that's a wonderful way to end this. Thank you again, Cory, and thank you to everyone who's attended. This video will be available probably in the next few days on the site, and then we'll make sure, again, to add all the links. And if you have any questions, again, Cory's website is consciouscounsel.ca, is that correct? That's it.

And feel free to reach out to Cory too, and we'll have links to services so you can get a consultation if you need it. And again, just make sure you have your waivers updated and make sure you're covered, that's the big takeaway. So that way you can just do what you want to do and to just teach Pilates. Yeah, teach Pilates, teach more Pilates. Exactly, we've got to get more people doing Pilates, movement heals.

And Joseph Pilates said he wanted the whole world doing his method, so we're on our way. Cool, one day at a time, let's do it. Exactly. Thank you again, Cory. Thank you, everyone, we'll see you next time.

Cool. Thanks for having me. Love you guys, be great. Thank you. (bright upbeat music)

Comments

Thank you Gia for this discussion. It was well timed and very informative. Cory provided excellent recommendations.
I'm so glad you enjoyed this discussion, Teri S! The information he provided is so helpful for all of us in the Pilates industry!

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