We all know that employers do not receive “time off” from applicable employment laws during the holidays. To avoid unnecessary holiday headaches, be mindful of the following issues as you conduct your workplace holiday staffing and planning.
Comply with your Policies and Collective Bargaining Agreements
Remember to abide by the applicable holiday provisions of your policies, agreements, or collective bargaining agreements. Pay for unworked time on recognized holidays; how time worked on holidays is computed or paid; and eligibility requirements for receipt of holiday pay are often a matter of policy or contract. Breaching such provisions—or disparately enforcing them—can give rise to a claim, charge, or grievance.
Think Beyond your Holiday Policy—Comply with Wage Laws
Be mindful of wage payment laws when you are planning office closures to ensure that you do not run afoul of state requirements governing the time, frequency, and method of paying earned wages. Also, remember that time worked on a holiday should be counted as “hours worked” for purposes of overtime laws, regardless of whether you provide a holiday premium or other benefit. Further, be careful about making deductions from exempt employees’ salaries for time off around the holidays so as not to jeopardize the exempt status—a company closure for the holidays is not listed among the Department of Labor’s enumerated instances of proper reasons to make deductions under the salary basis rules of the Fair Labor Standards Act.
No Break from Meal and Rest Period Laws
Even if your employees are frantically setting up holiday displays or assisting eager consumers on Black Friday, provide meal and rest periods in accordance with state law. Many states require that employers provide meal and break periods, and the frequency and timing of such periods are often dependent upon the total number of hours worked in a day. For instance, Illinois employers must allow a meal break for employees working 7.5 continuous hours or longer within 5 hours of starting work; New York’s Department of Labor guidelines specify requirements for a “noonday” meal period between 11:00 a.m. and 2:00 p.m., with additional meal periods for shifts extending into specified evening hours.
Also, while bona fide meal breaks of a sufficient duration can generally be unpaid, beware that restrictions, duties, or parameters on such breaks might run afoul of your state’s law and can make a meal period compensable.
A “Blue” Christmas
If your business has operations in one of the few states that impose “Blue Law” requirements for business operations on holidays, then be aware of obligations or restrictions that might apply. For instance, if you operate in Massachusetts, then you might be required to obtain a local permit and/or be subject to extra pay or other standards for employees working on a holiday. In Rhode Island, you might be subject to an overtime pay rate on holidays or other requirements.
Be sure to check your state and local laws to confirm applicable standards.
Accommodate Observation of Holidays Due to Religious Beliefs
Finally, remember that Title VII of the Civil Rights Act of 1964 and many state or local laws require employers to reasonably accommodate employees’ sincerely held religious beliefs, unless doing so would cause an undue hardship. “Religion” can include not only traditional, organized religions such as Judaism, Islam, Christianity, Hinduism, and Buddhism, but also sincerely held religious beliefs that are new, uncommon, not part of a formal church or sect, or only held by a small number of people.
Thus, while your company may be closed on Christmas Day, you may need to allow an employee time off to celebrate a religious holiday that your company does not recognize. Businesses can accommodate in the form of time off, modifications to schedules, shift substitutions, job reassignments, or other modifications to workplace policies or practices.
Illinois: Transgender Locker Room Policy Eludes School District Facing Government Sanctions Under Title IX
Jackson Lewis P.C. © 2015
Breaking News: Refusing to Allow an Employee to Rescind His Or Her Voluntary Resignation Can Get You Sued
Here is the scenario. Your employee decides to voluntarily resign. She gives plenty of notice. Before her scheduled end date, the employee provides information relevant to a sexual harassment investigation involving her supervisor. Before the scheduled end date, the employee tries to rescind her employment. The supervisor refuses. Here’s the question: Is the refusal to allow the employee the opportunity to rescind her resignation an “adverse employment action” for purposes of a retaliation claim?
It could be, at least according to the Fifth Circuit Court of Appeals. A similar scenario played out in Porter v. Houma Terreboone Housing Authority. According to the court:
“Just as an at-will employer does not have to hire a given employee, an employer does not have to accept a given employee’s rescission. Failing to do so in either case because the employee has engaged in a protected activity is nonetheless an adverse employment action.”
This is something employers need to be aware of. Remember: thoroughly investigate all work place harassment claims. Also, separate the subject of the investigation from any decisional process regarding the employee’s employment. In a perfect world, the decision-maker would not have any knowledge regarding the employee’s “protected activity.”
In late October, the Food and Drug Administration (FDA), Centers for Disease Control and Prevention (CDC), along with state and local officials investigated an outbreak of E. coli infections linked to food served at a major fast-casual restaurant chain. Much of the underlying information documenting the outbreak has been derived from an advanced laboratory technique called “whole genome sequencing” (WGS). This is a fairly new instrument in the CDC toolbox. WGS reveals the complete DNA make-up of an organism, thereby enabling health officials to better understand variations both within and between potentially pathogenic species. Such information can then be compared with clinical isolates from sick patients, and, if they match, there may be a reliable link established between the illness and the pathogen. This new technique has the potential to define the scope of a foodborne illness outbreak more quickly and ideally will help to prevent additional cases. Traditionally, this analysis has been done via a process known as pulse-field gel electrophoresis (PFGE). But PFGE has a shortcoming in that it is unable to differentiate between related species of organisms, which can be critical when health officials are trying to delineate the specific source of the outbreak, and want to know whether to recall a product or not.
The FDA cites numerous examples of how it has used WGS: 1
To differentiate sources of contamination, even within the same outbreak;
To determine which ingredient in a multi-ingredient food harbored the pathogen associated with an illness outbreak;
To narrow the search for the source of a contaminated ingredient;
As a clue to the possible source of illnesses; and
To determine unexpected vectors for food contamination.
The use of techniques such as WGS reflects FDA’s shift toward a broader preventative-centric approach to food safety. This approach can be associated the Food Safety Modernization Act (FSMA), signed into law on January 4, 2011, which requires comprehensive, science-based preventive controls across the food supply.2 FSMA provides the FDA with new enforcement authorities designed to achieve higher rates of compliance with prevention-based and risk-based food safety standards, and to better respond to and contain problems when they do occur. Lastly, the law also gives the FDA important new tools to hold imported foods to the same standards as domestic foods and directs FDA to build an integrated national food safety system in partnership with state and local authorities.
WGS also has been employed in the context of recent illness outbreaks associated with products regulated by the Food Safety and Inspection Service (FSIS), which oversees the safety of meat and poultry. In some circumstances involving FSIS, the regulated industry has found itself on the receiving end of confusing scientific input, as regulatory recommendations based upon PFGE analysis were subsequently negated by WGS data.
A shift to WGS may allow health officials to more quickly and more precisely connect the dots during an outbreak, and use of this tool may also benefit the regulated community. The enhanced precision of WGS may provide the regulated community with a new ability to prevent being falsely labeled as the source of the outbreak. Under the prior testing regime, PFGE tests were often unable to differentiate between related species of organisms, and as a result, regulators were at times forced to cast an overly wide net to capture the source of an outbreak. The new WGS technique provides authorities with a more precise and accurate tool. But, as circumstances with FSIS suggest, companies may also encounter confusion over growing pains associated with the movement from one generation of technology to another. We will continue to monitor the development and use of new tools and techniques the FDA, FSIS, and other federal agencies are using to prevent and respond to food safety issues.
1 Food and Drug Administration, Examples of How FDA Has Used Whole Genome Sequencing of Foodborne Pathogens For Regulatory Purposes, (last visited Nov. 9, 2015).
2 FDA Food Safety and Modernization Act, Pub. L. No. 111-353, 124 Stat. 3885 (2001).
Landing pages — dedicated web pages that a visitor to your website, blog, social media post or e-newsletter is guided to after clicking on a link — are critical when it comes to converting those visitors into qualified leads.
If you have been directing traffic to the home page of your website, you are missing a big opportunity to capture more leads. Landing pages have been proven to more than double conversion rates when compared with website home pages. This is because they are created specifically for converting leads, featuring specialized content and offers that appeal to a targeted audience.
To make your landing pages pay, you need to know the basics about how to create a highly effective landing page. Here are 10 steps you need to take in developing landing pages for your law firm:
Have a singular goal. You want your landing page to do just one job for you — get the visitor to download that free report, sign up for a seminar, subscribe to your newsletter, etc. Don’t clutter them up with multiple offers. One page. One job.
Use a single, relevant visual. Choose an illustration or photo that is relevant to your offer.
No false endorsements. Don’t create false endorsements for your offer. Avoid cheesy endorsement copy that turns visitors off.
Use simple design. Keep your design simple with minimal, impactful copy that consists of a headline, subhead and bullet points that make the content easy to scan.
Quick load. Be sure your landing page loads quickly; you only have a few seconds for it to pop up or your visitor will lose interest and click off.
Compelling copy. The worse thing you can do is bore your visitor. Your copy needs to be readable, believable and lead the visitor quickly to your ultimate goal.
Eyes on the prize. Write and design your land page with your singular goal in mind. Do not clutter the content with irrelevant prose.
Inform and educate. Don’t waste the visitor’s time by not delivering anything of benefit. And don’t ask for too much information — a name and an email address should be sufficient.
Be truthful. If you have actual testimonials that would be appropriate, use them but be sure you are not making any false promises or guarantees.
Provide value. Make it clear what the value and benefits of redeeming your offer will provide to your visitor. If they are entrusting you with their information, you need to let them know it is a fair exchange for what you are providing with the offer.
© The Rainmaker Institute, All Rights Reserved
On September 24-25, Miami-Dade County held a P3 Institute entitled “The P3 Pipeline: A Forum for the Private Sector.” Among the topics discussed at the Institute was a measure currently before the Florida Legislature that, if enacted, will make the P3 procurement process easier for all parties involved.
Two bills, House Bill 97 and House Bill 95, have advanced to House committees and are moving through the legislative process. HB 97, known as “Public Records and Public Meetings,” is currently in the State Affairs Committee. HB 95, a companion bill known simply as “Public-Private Partnerships,” is in the Appropriations Committee. Approval by all required legislative committees is a necessary step before these bills can be introduced in the 2016 legislative session.
If it passes, HB 97 would exempt unsolicited P3 proposals by responsible public entities from public records and public meeting requirements for a specified time period. HB 95, a corollary bill, revises provisions regarding responsible public entities and unsolicited proposals for qualified projects. In doing so, HB 95 expands the list of entities authorized to conduct P3s to include state universities, special districts, school districts (rather than school boards), and institutions included in the state college system.
On a related note, the bills’ sponsor, Representative Greg Staube (R-Sarasota), has stated that several state legislators (without naming the legislators specifically) are discussing the possibility of a centralized state office that could offer Public Private Partnership procurement expertise to Florida counties. The office could be housed in an existing state agency, like the Department of Management Services or Enterprise Florida, to save money.
Whether the government can freeze all of a defendant’s assets before trial, even where those assets are not tainted by any connection to alleged federal offenses, thereby preventing a defendant from paying for his own defense, will be decided by the U.S. Supreme Court in Luis v. United States, No. 14-419.
The federal Mandatory Victims Restitution Act of 1996 (“MVRA”) requires that defendants convicted of crimes committed by “fraud or deceit” compensate victims for the full amount of the victims’ losses. Often, however, by the time there is a conviction, criminal defendants do not have any assets to satisfy those judgments. Seeking to address this problem, the United States has invoked the Fraud Injunction Act to freeze legitimate assets pre-conviction to pay a later judgment.
The Fraud Injunction Act statute authorizes a “restraining order” against assets when a person is “alienating or disposing of property, or intends to alienate or dispose of property” that is “obtained from” or “traceable to” certain federal offenses. In such cases, the statute permits a court to prohibit the use of tainted property “or property of equivalent value” before trial to ensure that sufficient assets are available to satisfy any judgment.
In 2012, the federal government charged Sila Luis with conspiracy to commit Medicare fraud – a scheme allegedly amounting to over $45 million, stemming from claims for home health services that were neither medically necessary nor actually performed. Using the Fraud Injunction Act, the federal government asked the district court to freeze all of Luis’s assets, including those that were not even allegedly obtained through fraud, totaling approximately $15 million. The district court agreed to impose the freeze. .
Luis then requested that the district court release her untainted assets so she may retain her lawyer. The district court denied the request, explaining that, because the government could locate “only a fraction of the assets” Medicare had paid Luis’s companies, her “untainted” assets also could be frozen. The district court likened Luis’s situation to that of a bank robber indicted for stealing $100,000; That is, if the robber has already spent the allegedly stolen money which he could not use to hire his preferred lawyer in any case, he also should not be able to spend a different $100,000 he “just happens” to have to hire the lawyer he wants.
Luis appealed the district court’s decision, arguing she was being deprived of her Fifth Amendment right to due process of law and her Sixth Amendment right to counsel of her choosing. The Court of Appeals for the Eleventh Circuit, in Atlanta, upheld the district court’s denial of her request to release her legitimate assets, stating that Luis’s arguments were foreclosed by the U.S. Supreme Court’s decision in Kaley v. United States (2014) and other decisions.
In Kaley, the Supreme Court held that when the government, following a grand jury indictment, restrains tainted assets needed to retain a lawyer, the Fifth and Sixth Amendments do not require a pretrial hearing at which the defendant can challenge a grand jury’s finding of probable cause.
Luis asked the Supreme Court to review the case. The Court agreed to do so and recently heard argument. A decision is expected by next June.
OSHA penalties are going up. EPA’s penalties are going up, too. However, while EPA penalties have been going up modestly every four years to take inflation into account, OSHA penalties have not increased in 25 years. Maximum OSHA penalties may jump as much as about 78 percent next year. For a provision quietly tucked away in budget legislation, this packs quite a punch.
The Legislative Change
On November 2, 2015, President Obama signed into law the Bipartisan Budget Act of 2015. Section 701 of that legislation is the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Adjustment Act). The 2015 Adjustment Act amends the Federal Civil Penalties Inflation Adjustment Act of 1990 to remove the OSHA exemption to the requirement that civil monetary penalties be periodically increased to account for inflation. The amendment also changed the frequency of the inflation increases from “once every 4 years” to “every year.”
In addition, the new law entitles OSHA to a single “catch up” penalty increase to account for the lack of periodic penalty increases, which “shall take effect no later than August 1, 2016.” OSHA is authorized to calculate this initial increase based on the percentage difference between the Consumer Price Index (CPI) in October 2015 and the CPI in October of the calendar year that the civil penalty was last adjusted under any different law. In this instance, because OSHA penalties have not been adjusted since 1990, the catch-up penalty increase will be based on the October 1990 CPI as compared to the October 2015 CPI.
Based on the October 2015 CPI, the percentage difference is expected to be about 78 percent. In the catch-up adjustment, $7,000 OSHA penalties could increase to as much as approximately $12,471, and $70,000 OSHA penalties could increase to as much as approximately $124,710. If OSHA rounds those numbers, the likely maximums would be $120,000 and $12,000.
Past Efforts to Raise Maximum OSHA Penalties
Under section 17 of the Occupational Safety and Health Act of 1970 (OSH Act), OSHA penalties for “willful” or “repeat” violations have a maximum civil penalty of $70,000 but not less than $5,000 for each willful violation. Penalties for “serious” violations have a maximum of $7,000 per violation. Those figures have remained static since 1990 despite repeated efforts to increase them.
For example, in 2009, a Senate bill and a House bill, both entitled the Protecting America’s Workers Act, would have amended section 17 of the OSH Act with one-time maximum civil penalty increases. The $70,000 “willful” violation maximum would have been increased to $120,000 but not less than $8,000 (up from $5,000). The penalties for “serious” violations would have increased from a maximum of $7,000 to a maximum of $12,000, and penalties for “serious” violations that result in employee fatalities would have been increased to a maximum of $50,000 but not less than $20,000 for employers with more than 25 employees. The proposed legislation did not pass either House of Congress. This year, updated versions of the Protecting America’s Workers Act were introduced which would make the same adjustments in penalties.
After more than 25 years and extensive legislative effort, OSHA penalties are poised for a significant initial increase, due to a provision added to an appropriations bill without hearings or debate.
Implications for State OSHAs
About half the states have their own enforcement programs under OSHA-approved state plans, even though they generally enforce OSHA’s standards. Thus, the statutory increase in federal OSHA’s maximum penalties will not directly impact state OSHA programs, whose maximum penalties are set by state law. However, this federal increase is expected to lead to state increases as well. Under section 18 of the OSH Act, state plans must be “at least as effective” as those of federal OSHA. Lower state maximum penalties are not likely to be seen as being “as effective” as federal maximums.
EPA Penalties Are Going Up Too
Under the Federal Civil Penalties Inflation Adjustment Act of 1990, EPA penalties have increased every four years. Between 1996 and 2013, four adjustments of EPA’s statutory civil payment amounts were implemented. Annual inflation adjustments will now be required. In recent years inflation has been low, so the next increase will likely be relatively modest.
 Bipartisan Budget Act of 2015, Pub. L. 114-74.
 Id at § 701. Prior to the amendment, Section 4(1) read: “by regulation adjust each civil monetary penalty provided by law within the jurisdiction of the Federal agency, except for any penalty (including any addition to tax and additional amount) under the Internal Revenue Code of 1986, the Tariff Act of 1930, the Occupational Safety and Health Act of 1970, or the Social Security Act, by the inflation adjustment described under section 5 of this Act[.]” H.R. 3019, 104th Cong. (1996).
 H.R. 3019, 104th Cong. (1996) (“The head of each agency shall, not later than 180 days after the date of enactment of the Debt Collection Improvement Act of 1996 [Apr. 26, 1996], and at least once every 4 years thereafter[.]”) (emphasis added).
 This initial catch-up adjustment may not exceed 150 percent of the amount of the civil monetary penalties as of the date that the 2015 Adjustment Act was enacted.
 The October 1990 CPI is 133.5 and the October 2015 CPI is 237.838. For more information on CPI figures and calculations, click here.
 29 U.S.C. § 666.
 In addition, civil penalties for OSHA were subsequently included in proposed mine safety legislation, which was similarly unsuccessful. See H.R. 5663; Beveridge & Diamond, P.C., OSHA Legislation Gets Boost from Mine Safety Bill (Aug. 17, 2010).
 29 U.S.C. § 666.
 As described in the most recent (2013) EPA notice raising maximum penalties, “EPA’s initial adjustment to each statutory civil penalty amount was published in the Federal Register on December 31, 1996 (61 FR 69360), and became effective on January 30, 1997 (‘the 1996 Rule’). EPA’s second adjustment to civil penalty amounts was published in the Federal Register on February 13, 2004 (69 FR 7121), and became effective on March 15, 2004 (‘the 2004 Rule’). EPA’s third adjustment to civil penalty amounts was published in the Federal Register on December 11, 2008 (73 FR 75340), as corrected in the Federal Register on January 7, 2009 (74 FR 626), and became effective on January 12, 2009 (‘the 2008 Rule’)”; and the fourth adjustment was published in the Federal Register on November 6, 2013. 78 Fed. Reg. 66643 (Nov. 6, 2013)
A downed Russian airliner, the tragic Paris attacks, the European refugee crisis, states closing their borders to Syrian nationals, Charlie Sheen’s HIV diagnosis. What do these all have in common? They are hot topics for discussion around the watercooler. And they also will bring out a multitude of opinions. What’s the problem? Opinions can be controversial and, to some, down right offensive. Healthy debate about how the United States should handle the war on terror could be construed as evidence of religious discrimination (in some cases). Discussion regarding Charlie Sheen’s HIV diagnosis can also quickly spiral out of control and later be construed as evidence of disability discrimination. It’s a problem and employers need to be aware of it.
So how can you protect yourself? Well, you certainly cannot stifle discussion about what is happening outside of the workplace. Nevertheless, employers are encouraged to step up, stay on top of what’s trending and put a stop to any discussion that could reasonably be construed as inconsistent with the Company’s EEO policies. You won’t be popular. But let’s face it: running a business is not about winning a popularity contest.
Want to stay on top of what’s trending? Create a Twitter account and keep apprised of the most popular hashtags. The amount of work is minimal and you’ll be tuned in to what topics are floating around the workplace.
More than six years after the U.S. Supreme Court’s decision in Carcieri v. Salazar, Sen. John Barrasso (R-Wyoming), the chairman of the Senate Committee on Indian Affairs, has introduced the “Interior Improvement Act” to fix the loophole created by the decision that denied some tribes rights under the Indian Reorganization Act of 1934 (IRA). The bill is not, however, the “clean” Carcieri fix that Indian Country had been seeking.
In 2009, the Carcieri court ruled that the IRA, which delegated authority to the Secretary of the Interior to place land in trust status for Indian tribes, applied only to tribes “under Federal jurisdiction” on the date of the IRA’s enactment. Under the IRA, land is to be placed into trust status only for “the purpose of providing land for Indians.” The act defined “Indian” to mean “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” The court held that any tribe not “under Federal jurisdiction” as of that date is ineligible to place land in trust.
Carcieri compelled the Secretary to conduct a deep inquiry into whether applicant tribes were “under Federal jurisdiction” in 1934 in anticipation of legal challenges to politically sensitive trust acquisitions, particularly those made for gaming purposes. But proving the requisite relationship between the federal government and the tribes is very difficult, as many tribes lack documentation of that relationship – largely due to the anti-tribal “allotment” policies that preceded the IRA’s enactment in 1934 and the termination policies that followed it in the 1950s.
After the Carcieri decision, tribes immediately pushed for a “clean” legislative fix from Congress – a bare amendment clarifying Interior’s authority to place in trust for all recognized tribes without limitation and retroactively affirming previous trust decisions. Opponents of off-reservation gaming, however, saw an opportunity to increase the input of local governments in trust acquisitions and even to seek a veto over federal trust acquisitions. Opposition from Indian tribes to a local veto has precluded a legislative fix repairing the damage done by the decision.
Barrasso’s bill affirms the Department’s past and present ability to accept land in trust for all federally recognized Indian tribes but, if passed, would not give local governments the veto power they sought. Instead, it would impose a new process on the Secretary in considering trust applications that increases the input sought from, and consideration given to, local governments affected by trust acquisitions.
First, the bill would require the Secretary to notify contiguous jurisdictions within 30 days of receiving an application to place land in trust and to make the tribal application publicly available on the Department of the Interior website. Those jurisdictions would have 30 days to provide comments. The Department’s current regulations already require notice and comment from the governments exercising jurisdiction over the trust acquisition, so this is a minor change.
Of much greater impact is the bill’s requirement that the Secretary give preferential treatment to those trust applications in which the tribe has entered into a “cooperative agreement” with local governments, defined in the bill as “contiguous jurisdictions.” Those applications would be expedited with a 30-day timeline for a decision approving or denying the application, or 60 days after the completion of NEPA review. This would be a drastic improvement over the current wait time, which can extend to months or even years. Relieving the Department of the requirement to conduct a Carcieri review would save considerable manpower. Those applications without cooperative agreements would still be eligible for approval but would not be expedited.
Many tribal applicants already enter intergovernmental agreements with local governments to mitigate the impacts of tribal development on trust land and pay for county-provided services that would ordinarily be paid for through property taxes, and it is now common for tribal-state Class III gaming compacts to include a requirement that tribes enter such agreements. Under Barrasso’s bill, provisions in cooperative agreements are undefined – the agreements “may include terms relating to mitigation, changes in land use, dispute resolution, fees, and other terms determined by the parties to be appropriate.” Some local jurisdictions likely will read those terms in the broadest sense possible and require the payment of “fees” as consideration for execution of a cooperative agreement.
If the tribe determined the demands of local governments to be too onerous, it would be free to submit an application without a cooperative agreement. In such cases, the Secretary, in approving an application, would be required to independently conduct a “determination of mitigation” that would consider anticipated economic impacts on contiguous jurisdictions, mitigation, and whether the local jurisdictions worked in good faith to reach a cooperative agreement.
The proposed legislation expressly provides for judicial review of final trust decisions. That judicial review is a certainty, because, while the bill does not expressly limit the Secretary’s discretion to place land in trust, it introduces numerous and ambiguous new factors that the Secretary would be required to consider in processing trust applications. Ambiguity invites litigation, and the bill would likely trade Carcieri-based legal challenges to trust acceptances for lawsuits alleging the Secretary’s failure to adequately consider these new factors.
We look at the latest trends, important court decisions, and new developments that could impact your work. This week’s topics …
(1) OSHA Fines Rise
OSHA fines are set to increase for the first time in 25 years. Under the new bipartisan budget bill, OSHA civil penalties will rise next year to reflect the difference between the Consumer Price Index in 1990 and in 2015—an increase of as much as 82%. After this “catch up” adjustment, the fines will keep pace with inflation moving forward.
(2) Supreme Court to Review ACA’s Contraception Opt-Out
The Affordable Care Act’s (ACA’s) birth control provisions are heading back to the U.S. Supreme Court. At issue is whether the ACA’s opt-out process violates the Religious Freedom Restoration Act. Under the opt-out, religious organizations do not have to pay for contraception, but other accommodations are made so that employees will still receive coverage. The high court will review a consolidation of seven cases to decide whether the opt-out “substantially burdens” religious freedom. Like last year’s landmark Hobby Lobby decision, this case addresses the extent to which corporations have the same rights as natural persons and how those rights affect a company’s legal obligations towards its employees. This is the latest case, but undoubtedly not the last one, on this topic.
(3) NLRB Finds That Chipotle Illegally Fired Worker for Discussing Wages
The National Labor Relations Board (NLRB) ruled that Chipotle illegally fired an employee for participating in minimum wage protests. The NLRB ruled that the firing by the chain was a violation of the National Labor Relations Act. Though the employee’s supervisor claimed he was fired for poor performance, the NLRB found that the firing was motivated by the employee’s participation in the protests and his discussion of pay with other employees. Other restaurants are facing similar charges from the NLRB arising from the “Show Me 15” protests.
(4) Wages for Off-the-Clock Security Screenings
Two federal class actions challenging off-the-clock security screenings reach different outcomes. Bath & Body Works recently agreed to settle a suit in California over unpaid overtime and off-the-clock security inspections. But a federal judge in the same state dismissed a similar class action against Apple in which retail workers claimed that they should be compensated for time spent having their bags checked. The judge concluded that the employees were not performing job duties and could avoid the screenings by not bringing a bag or cell phone to work.
(5) In-House Counsel Tip of the Week
Eugene Schlanger, a regulatory and compliance attorney, gives some advice on how to prepare for employment issues before they arise.
©2015 Epstein Becker & Green, P.C. All rights reserved.
On Nov. 6, 2015, the U.S. Supreme Court agreed to hear the appeals of several religious employers challenging the contraceptive mandate under the Patient Protection and Affordable Care Act (ACA). The court will consolidate seven cases, the most prominent of which was brought by the Little Sisters of the Poor, an order of Catholic nuns who dedicate their lives to helping the elderly poor. The other employers include several Catholic dioceses, a religious non-profit group and several Christian colleges.
The contraception mandate requires religious employers who object to providing contraceptive services to notify the government of their objection, which transfers the responsibility of providing those services to the employer’s insurer. The petitioners argue that this procedure violates the Religious Freedom Restoration Act because it effectively forces the employer’s health plan to cover services the employer finds objectionable. They argue that the government has less restrictive means available to provide these services.
The consolidation of these seven cases is particularly interesting because the employers have varied insurance arrangements. While some of the employers are insured by large insurance carriers, others are self-insured, or have “church plans” as defined by ERISA. It is unclear whether these different arrangements will affect the outcomes for the particular employers.
The court is expected to hear oral argument in the case in March 2016.
On October 29th, a record number of legal marketers attended LMA Capital’s half day program to discuss how to best influence the client experience. Part one discussed how marketers can address a few major concerns of clients: how the firm can add value to the representation, how a firm can build a strong client team to address issues like credit and succession planning, and how to grow client relationships through better scoping and budgeting. This part will wrap up the final three TED-style talks for the program.
Communication and Managing Expectations – Exceed Their Expectations Every Time: How to Communicate with Clients in Good Times and Bad
Mary Panetta, of Blank Rome LLP, took to the podium in her talk about managing client expectations. Understanding the goal of why you are at the table is crucial to understanding client’s expectations. Sometimes the goal of litigation isn’t always to win, sometimes it’s to acquire the client, or to settle. Ms. Panetta emphasized that it’s important to make no assumptions about what the clients goals are; always ask. If partners are not involved in connecting on a daily basis with the clients to find out what is going on at the company, the client is not going to feel like the firm understands their needs and they are not going to come back with return business. Another key point Ms. Panetta hit on is that it’s important to tell the truth about everything, including budgets. For the firm, it’s important to monitor the budget aggressively and if there is an issue or potential overage on the horizon, share the information with the client early and without alarm. Marketers can help the firm’s lawyers in the process as well by understanding what’s at stake and helping deliver the news to the client either by scripting a dialogue or being present when the call needs to be made. Clients are much more amenable to scope changes when they are appropriately notified and walked through what happened. Also, in this market, there is potential for the client to seek out other services that may cut into the work that the law firm does. Ms. Panetta advises firms to embrace these inevitable market disruptors and present them to your client as a collaborative process. This may be counterintuitive to the firm’s bottom line, however, partnering with a disruptor is a way the firm can bring value to the client and builds vast amounts of goodwill.
Affinity Group Initiatives – Developing Client Relationships Through Affinity Groups
When it comes to working with affinity groups in the firm, Dawn Afanador, of Gibbons P.C., reminded the audience that the groups are still client focused. The Women’s Initiative at her firm is focused on educating women and their clients, give back to the community and their client’s causes, mentor their women and their clients, and provide networking opportunities for women and their clients. Ms. Afanador has found that their women’s initiative to be one of their best client relationship building programs. Rather than focus on having bigger events with high attendance, her firm scaled back the size of the events and narrowly focused on areas of law that address their key client’s needs. The intimacy of the smaller programs, such as focused roundtables, succeeded in helping client engagement and presented opportunities for cross marketing. Firm groups also have an opportunity to help their clients with initiatives they may not be able to achieve on their own. For example, a company might want to get more involved in meaningful pro bono work, but has a small legal department and limited resources. The firm’s pro bono group would be able to collaborate with the client to help them further their pro bono initiative by providing them with support and training. Affinity groups can also add value to networking opportunities: people don’t have time to simply network anymore, so providing programs where your in-house team can learn something and network with others is invaluable. When starting an initiative, it’s important to have some small wins to generate excitement about the initiative. As the initiative grows, don’t be afraid to evolve the program based on client’s needs and feedback from folks internally.
Complacency and Responsiveness – Using Innovation to Motivate and Empower Attorneys and Connect with Clients
To round-out the TED-talks, Jennifer Castleberry of Davis Wright Tremaine LLP, discussed how her firm uses innovation to motivate and empower attorneys and connect with clients. Her firm has created an innovation initiative, DWT De Novo, that focuses on technology, process improvement and people. When they began the program in 2013, they started by first listening to the client’s pain points, which eventually led to the appointment of a chief innovation partner that promoted the initiative at all of their offices. On this roadshow, they worked with people in the firm to solicit their pain points so they can figure out how best to create an initiative that is focused on addressing everyone’s concerns. In response to these concerns, the firm was able to create several tools that are designed to help placate client concerns. For example, their team developed a template for attorneys to summarize, for the client, how the firm has added value, in some ways that aren’t apparent to them. Attorney’s customize this to their clients so they get a clear picture of their relationship with the firm. They also spent a lot of time listening to what client’s wanted in a client dashboard, and used their input to create a “dashboard of the future”. Their dashboard includes realtime matter tracking, financials, as well as curated pieces that are specific to the client using the dashboard. These tools were designed specifically to provide efficient, transparent, and cost-effective legal services for their clients.
Following the TED talks, the audience broke-out into discussion tables where each table was tasked with coming up with five action items specific to a particular TED talk, and we all came together in the end to share the action items. Firms should rally their teams to create their own action items so that they are able to better address the myriad of client concerns. Considering these major areas of concern, adding value, credit, succession planning, billing and budgets, communication, managing expectations, and responsiveness, is crucial to creating a positive client experience.
Copyright ©2015 National Law Forum, LLC
The LMA Capital group brought together a record number of legal marketers in the D.C. area on Wednesday, October 29th to discuss how best to positively influence the client experience and foster lasting relationships between their firms and clients. Tara Weintritt, partner at Wicker Park Group, kicked off the program by setting the scene for attendees. In the past, law firms focused on touting their experience and success in handling particular matters. However, Tara elaborated that smart, capable, intelligent lawyers are baseline characteristics. Clients want to know how you can help them and what it’s like to work with you. After speaking with over 1,500 in-house counsel, the folks at Wicker Park Group have been able to identify seven major areas of concern that are consistently at the forefront of these decision-makers’ minds: adding value, credit, succession planning, billing and budgets, communication, managing expectations, and responsiveness. Tara provided direct quotes from actual client interviews as an introduction to attendees, but six thought leaders in the legal marketing industry gave in-depth (but brief!) TED-style talks to really drill down to the heart of why these are concerns for clients, and what can be done to address these concerns.
Adding Value – Creating a Culture of Strategic Business Intelligence
Gina Lynch, of Paul, Weiss, Rifkind, Wharton & Garrison, kicked off the first TED talk. Clients want to know how you can add value to the relationship that does not show up on the billing report. This is where competitive intelligence teams are valuable in influencing the client experience. Firms must go above and beyond the requisite skills required for establishing the business relationship, which are thorough writing and analysis skills. The firm counterpart must demonstrate that he or she can understand the complex research. CI teams must fully understand the work the client does. Ms. Lynch elaborated, “they need to be able to talk like your client, act like your client”. It not enough to present a report to the client. They want to know how this is relevant to them, what their competitors are doing and what their long-term strategy might be. Ms. Lynch also advocates for the CI team to be outside of the marketing department so it can be involved in all aspects of the firm’s relationship with the client: intake/pitch, research, knowledge management and retention. This circles back to the notion that it’s critical to understand the work the client does. Finally, the relationship should be client-focused! This is a no-brainer as members of the team should be living in the client’s world so it can play offense when a problem comes up. If a CI team is strategically informed, it can spot opportunities for growth (or damage control) when a new situation arises.
Credit and Succession Planning – Creating Strong Client and Industry Teams for the Long Term
Ms. Weintritt, at the start, elaborated that a major concern clients have is not being involved in or more aware of transitions within the firm. Tara Derby, of Reed Smith LLP, in the next TED talk, discussed how to mitigate this concern, and ultimately develop a long-term, successful relationship with the client by creating strong client teams. A successful client team will be focused on leadership, collaboration, a proactive and intuitive approach, and strategic client engagement. There are two things that need to be accomplished in order to build a strong client team: 1) the right client relationship leader must be selected, and 2) he or she needs to work hand in hand with the key account manager, or client relationship driver. This leader needs to be organized, efficient, client-facing and engaging. It’s important that the correct leader and team be in place or else service provided to the client will be only mediocre. Teams are only effective when there is a high level of collaboration across the firm, but people that are part of the team need to make a positive impact on the client. Strong client teams are proactive, not reactive, and to do so requires the team to know the client’s needs, culture, and ultimately how they think. Clients will feel understood and listened too because the relationship is 100% centered around their needs.
Billing and Budgets – Doing Your Homework: Strengthening and Growing Client Relationships Through Better Scoping, Budgeting and Risk Assessment
Since the major shift if the legal industry a few years ago, clients have been more cost conscious. As Melissa Prince, of Ballard Spahr, elaborated in her TED talk, the quality of the work matters less than the value the work provides the client. In terms of cost-effectiveness, clients want transparency in the budgeting process and improved budget forecasting, more than the lowest cost. In terms of scoping, it’s important to develop the client relationship to understand the client’s goals and business objects. This means speaking to the client about their needs before the scoping process. The key thing is to put everything in writing: matter phases, tasks, expected deliverables, proposed timelines and deadlines, responsible time keepers, etc. It’s also key to identify assumptions, that is, to identify what is and what is not going to be included in the matter. In terms of budgeting, use historic financial data to identify ways to improve efficiency. The budget should also be documented in writing as specifically as possible. It should include metrics such as hours work, type of work, who will be completing the task, identifies different hourly rates, and outlines low and high estimates, as well as start and end dates. To preserve a positive client relationship, any overages that arise should be communicated as early as possible. Properly managing their expectations for the scope and budget of the representation will help improve the firm’s efficiency, but also deepen their relationship with the client.
Stay tuned for part 2 of LMA Capital’s Half Day Program.
Earlier this week, I wrote about an amicus curiae brief submitted by 19 law school professors Friedrichs v. Cal. Teachers Ass’n, a case now pending before the United States Supreme Court. In particular, I questioned whether these academics properly described the holding Finley v. Superior Court, 80 Cal. App. 4th 1152 (2000). The professors claimed that the case represented a “rare example” of a court holding that the business judgment rule is a defense to an attack on a corporate contribution. In fact, the reported holding in the case was that the business judgment rule was a defense to the decision of a special litigation committee.
The 19 law professors also incorrectly described the holding in another California case, Barnes v. State Farm Mut. Auto. Ins. Co., 16 Cal. App. 4th 365 (1993) (“claim by policyholder of mutual insurance company seeking to stop insurer from engaging in political activities dismissed because the decision was protected by the business judgment rule . . .”). Although the Court of Appeal did invoke the business judgment rule in Barnes, it did so in the context of the policyholder’s separate claim that the company was maintaining too large a surplus. The policyholder’s challenge to political expenditures was made on constitutional grounds and the Court of Appeal’s analysis of that claim did not involve the business judgment rule.
Even though the law professors erroneously cited Finley and Barnes, I do believe that courts should, and do, apply the business judgment rule to director decisions to make political and other contributions. In fact, the professors overlooked one California case in which the court expressly deferred to the business judgment of the directors. Marsili v. Pacific Gas & Elec. Co., 51 Cal. App. 3d 313 (1975) was a derivative suit challenging the propriety of a political contribution. Here’s what the Court of Appeal had to say:
Neither the court nor minority shareholders can substitute their judgment for that of the corporation “where its board has acted in good faith and used its best business judgment in behalf of the corporation.”
Quoting Olson v. Basin Oil Co., (1955) 136 Cal.App.2d 543, 559-560 (1955).
© 2010-2015 Allen Matkins Leck Gamble Mallory & Natsis LLP
The Department of State’s (“DOS”) December 2015 Visa Bulletin showed minor movements in the employment-based visa categories. The most significant movement was in the Indian EB-2 category which advanced by 10 months to June 1, 2007. All other employment-based categories showed slow advances by few weeks, except for Mainland China EB-3 and Other Worker categories that advanced by 10 weeks to April 15, 2012, and by 12 weeks to August 1, 2006, respectively. There was no movement in the Dates for Filing in the employment-based categories.
The December Visa Bulletin contained the following additional information:
The Bulletin advised about the upcoming scheduled expiration of the non-minister special immigrant program and the immigrant investor pilot program (“EB-5 Visas”) on December 11, 2015, unless Congress acts to extended these programs.
The Bulletin contained a prognosis of visa movement in the coming months. For the employment-based visa categories, possible movements are as follows:
EB-2 China: Little or no movement
EB-2 India: Up to eight months
EB-3 China: Rapid forward movement with possible “corrective” action as early as April, 2016
EB-3 India: Up to three weeks
EB-3 Philippines: Four to six weeks
EB-5 China: Slow forward movement
New 9 FAM-e. The Visa Bulletin announced that on November 18, 2015, the printed Volume 9 of the Foreign Affairs Manual will be replaced by the 9 FAM-e and as of that date the e-version will become the authoritative source for visa guidance. The new e-version overhauls language and organization of Volume 9 of the FAM, but does not alter the substance of the old printed version.
Final Action Dates for Employment-Based Preference Cases
Dates for Filing of Employment-Based Visa Applications
If you ain’t first, you’re last. Not so, say the Ford UAW workers whose bargaining committee recently reached a new tentative agreement with Ford. While Ford was the last to reach a tentative agreement with the UAW, if the membership ratifies the tentative agreement, the UAW workers at Ford stand to receive a better overall deal than their counterparts at Fiat Chrysler and GM. Highlights of the tentative agreement with Ford include:
Investment of $9 billion in the U.S. by Ford over the life of the agreement;
$8,500 ratification bonus along with a $1,500 profit-sharing prepayment;
Entry level employees can progress to the Tier 1 wage rates within 8 years; and
$70,000 retirement incentive for eligible employees.
As with the ratification process for Fiat Chrysler and GM, the UAW membership at Ford will now be asked to vote in the coming days to approve the tentative agreement. The fact that the Ford tentative agreement is already better than the tentative agreements with Fiat Chrysler and GM should aid in the ratification process. Additionally, the UAW has already seen firsthand what works and what does not when it comes to seeking ratification of a tentative agreement in the current automotive climate.
While the bargaining process at Ford seems to be headed in the right direction, GM is still waiting to announce the ratification of its tentative agreement with the UAW. Despite a majority of the hourly production workers supporting the tentative agreement, a majority of the skilled-trades workers voted “no.” Based on the UAW’s constitution, the UAW is required to meet with the skilled-trades members to hear their complaints. Those meetings began this week. We will have to wait and see if the UAW attempts to go back to the bargaining table based on the issues raised by the skilled-trades workers.
© 2015 Foley & Lardner LLP
As a legal marketer, the challenge of marketing your law firm versus individual attorneys is an ongoing struggle. We have all been in a meeting with a firm’s “rainmaker” who wants to place an ad or produce a handout that doesn’t look like the other materials the firm has produced. Instead, he wants his piece to be different and to “stand out” from the law firm’s brand.
As a marketer, this goes against all we know about brand consistency, including the use of a firm’s logo, fonts, colors and the overall messaging of the law firm.
Which Brand Comes First?
The issues related to law firm brands versus attorney brands parallel the age-old question: “Which came first: the chicken or the egg?” After all, a law firm cannot exist without attorneys. The fact is, most firms started out with one or two attorneys who had a growing reputation that the firm was built on. As more attorneys were added, the reputation of those attorneys enabled it to continue to grow. However, without a solid brand for the firm, relying on the reputations of the firm’s founders can damage an individual attorney’s ability to attract larger clients with needs that span practice areas.
The reality is that both the firm and its attorneys need to have a symbiotic relationship that balances the individual attorney’s brand and the overall firm brand. Both the marketing professional and the attorney need to relax their egos some and come to an agreeable understanding. Some issues can be averted with pre-planning and tweaking of the firm’s brand guidelines and marketing materials to allow for more flexibility while still maintaining a degree of consistency.
Competition is fierce in today’s legal market, so it’s important to have a strong firmwide brand that represents the sum of all the law firm’s parts, including its reputation in the marketplace, its core competencies, its key differentiators, and the experience of its attorneys and the support staff that keep all the wheels in motion. But what room is left to insert visual elements that represent the brand of an individual attorney?
Some brand guidelines are overly rigid, making it impossible to balance the firm’s brand with an attorney’s brand. If this is your case, consider taking a new look at how you can adjust these guidelines to allow for some additional flexibility.
Tweaking Your Guidelines
A firm’s identity is conveyed through its branding elements, such as:
The firm logo
The use of these items is a must to convey the relationship between the attorney and the firm. They create a very strong brand consistency and should be used as much as possible to create an immediate recognition of your firm and brand message. But there can and should be flexibility in their use that includes relocating the standard placement of the logo or use of a secondary color.
More flexibility can also be given to components like photo imagery and other graphic elements These will allow for more personalization of the piece while maintaining consistency across the core brand elements.
Finally, another way to add flexibility to your branding is to create a standard footer on all ads or printed materials that allow for greater personalization across the rest of the collateral.
Adding Flexibility to Your Website
The law firm’s website is an integral marketing and branding tool. It also should be flexible enough to allow attorneys and practice areas to promote themselves in a way that makes sense for their particular markets.
Can attorneys post a blog, upload video content or add photos that will market themselves or their practice areas without interfering with the law firm brand’s use across the site? If not, this is something that needs to be addressed the next time you go through a website revision.
Using Social Media for Your Personal Brand
If you’re looking to promote your personal brand, look no further than social media. Social media is the perfect brand builder for individual attorneys. Lawyers can share blog posts and post other relevant information pertinent to their practice areas.
Not all social channels may fit your personal brand, so enlist your firm’s marketing personnel to help you define what channels are the best fit for you. Remember to maintain consistency across all networks by using the same profile picture. In addition, some social channels work best if you post once or twice a week, while others may require more regular attention. And remember to know your firm’s guidelines as well as your respective state bar association’s rules on social media use. Some actions can be construed as “advertising” and thus are subject to association guidelines.
Law is a professional service. That means that a large part of the decision-making process that determines whether a client hires you or someone else is how much they connect with you as an individual. The way you shape this identity is by honing your personal brand. So attorneys and law firms need to take their brands seriously and figure out how to strike a balance between the firm’s image and that of its individual attorneys.
© Copyright 2008-2015, Jaffe Associates
In three weeks! Attend the 3rd Annual Bank & Capital Markets Tax Institute West – December 3-4 in San Diego
When: December 3-4, 2015
Where: The Westin San Diego, San Diego, California
In an industry that thrives on both coasts, we will continue to offer exceptional educational and networking opportunities to ALL of the hard-working banking and tax professionals across the country. Join us at the 2nd Annual Bank and Capital Markets Tax Institute WEST, where essential updates will be provided on key industry topics such as General Banking, Community Banking, GAAP, Tax and Regulatory Reporting, and much more.
The Bank Tax & Capital Markets Institute Conference – West will feature a full one-day program consisting of keynote presentation, deep-dive technical sessions, and peer exchange and networking time.
On November 3, the US Customs and Border Protection (CBP) commissioner announced the expansion of Global Entry to UK citizens. Global Entry, a CBP Trusted Traveler program, allows for expedited clearance of preapproved, low-risk travelers. As an added benefit, Global Entry members are also eligible to participate in the TSA Pre✓ expedited screening program.
The registration process is quite straightforward. UK citizens will apply through the UK Home Office’s website and pay a £42 processing fee. Successful applicants will receive an access code to enter when applying for Global Entry through CBP’s Global Online Enrollment System. The nonrefundable application fee for a five-year Global Entry membership is $100, and applications must be made online. Once an application is approved, a CBP officer will conduct a scheduled interview with the applicant and make a final eligibility determination. Although no traveler is guaranteed expedited screening, this expansion should facilitate travel for low-risk travelers from the UK significantly.
Similarly, US citizens are eligible to apply for the UK’s trusted traveler program, Registered Traveller. Members enrolled in Registered Traveller may use e-gates at airports in the UK. The service costs £70 to apply and an additional £50 a year thereafter. If an application is unsuccessful, the applicant will receive £50 back. To qualify for Registered Traveller, a US citizen must make four trips to the UK per year.
Copyright © 2015 by Morgan, Lewis & Bockius LLP. All Rights Reserved.
E-Verify has announced that effective Jan. 1, 2016, in compliance with the National Archives and Records Administration’s retention and disposal schedule, it will destroy all transaction records older than 10 years. Thus, all transaction records created prior to Dec. 31, 2005 will be destroyed. Further, E-Verify will delete, on an annual basis, all transaction records that are more than 10 years old.
E-Verify has created a new Historic Record Report that will include all transaction records over a 10-year period. If you wish to get the Historic Record Report, it must be downloaded before Dec. 31, 2015. To download the Report, please log into E-Verify where you will find instructions to download the Report.
It is always recommended as best practice to record the E-Verify case verification number on the related I-9 form. It is now also recommended that employers also retain the Historic Records Report with the Forms I-9.
Prior to the Act, covered out-patient department (“OPD”) services included services provided by facilities meeting the complex hospital-based rules, even if the facility was not physically-located on the campus of the hospital. Subject to the grandfather provision discussed below, the Act adds a specific exclusion to the definition of covered OPD services, making services furnished by an off-campus outpatient department of a hospital ineligible. The Act provides that a facility is “off-campus” if it is not within 250 yards of the hospital’s main buildings (including for this purpose, a “remote location of a hospital,” meaning a separate in-patient campus of the hospital, which is a helpful clarification in an otherwise problematic law). Facilities deemed “off-campus” are ineligible for Medicare reimbursement at the hospital outpatient rate.
The inclusion of a grandfather provision will mitigate some of the Act’s impact, as facilities currently treated as “hospital-based” will not be impacted by the change in law. Only facilities that are not billing as “hospital-based” as of the date of enactment will be ineligible for reimbursement at the hospital outpatient rate. It is unclear whether a conveyance of an off-campus grandfathered facility would eliminate the grandfathered status and the ability of the buyer to bill for the services as “hospital-based.” The Congressional Budget Office (“CBO”) forecasts that the government will reap significant cost savings from the lower rates that will apply; an October 28, 2015 analysis from the CBO projects that the change in reimbursement policy will provide $9.3 billion in relief by 2025.
© 2015 Proskauer Rose LLP.