Testing the Limits of Applicant Testing

The potential legal pitfalls of job applicant testing are illuminated by the National Law Review’s featured blogger Sarah L. Hinkle of Steptoe & Johnson PLLC.  Read on:  

Many employers believe that applicant testing – skills, personality, or honesty testing, for instance – is an easy way to screen out undesirable job candidates. Besides, all employers want highly skilled, easy to work with, honest, and sober employees … and what better way to rate a candidate than to subject him or her to a test, right? Not so fast! Applicant testing is fraught with potential legal pitfalls, and caution must always be exercised before engaging in any kind of applicant testing.Anchor

For example, while tests can be very effective tools for finding qualified applicants, employers must be aware that some tests or selection procedures can violate state and federal anti-discrimination laws. Worse, this can occur even if the employer does not intend to do so, such as when a “neutral” test or other selection procedure disproportionately excludes people in a particular group by race, gender, national origin, religion, disability, age, or any other protected classification, unless the employer can justify the test or procedure by showing that it is “job-related and consistent with business necessity.”

The seminal case examining the unintentional “disparate impact” discrimination found in some testing techniques is Griggs v. Duke Power Co., 401 U.S. 424 (1971). In Griggs, the employer instituted a requirement that applicants at a power plant must either have a high school diploma or pass a general intelligence test in order to be hired. The Court found that the requirement was discriminatory because the employer could not show that the requirement bore a “demonstrable relationship to successful performance of the jobs for which it was used.” The full text of Griggs, by the way, can be found at: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0401_0424_ZO.html

Keep in mind that pre-employment screening which merely has a discriminatory impact isn’t the only type of applicant testing employers need to be careful with. Certain other pre-employment testing may be found unlawful regardless of intent, such as requiring medical examinations of applicants before providing them a conditional offer of employment.

With due caution in mind, consider the following when deciding whether to begin using or continue using pre-employment testing procedures:

  1. Most obviously, but also most importantly, never use testing or any other selection procedure for the purpose of “weeding out” members of a protected class.
  2. Do not casually adopt testing procedures, and make sure decisions regarding testing are made at high levels of your company after consulting with counsel.
  3. Make sure that any tests or selection procedures that you use are valid and reliable. That is, make sure that the test actually measures components or characteristics that are necessary for the job position, that the test is truly useful in predicting success on the job, and that it yields consistent results. Do not assume that a test-maker vendor’s supporting documentation is entirely accurate – do your own investigation as well.
  4. Be vigilant as to changes in job requirements so that you know when you need to update test specifications or selection procedures.
  5. Accommodate people with disabilities by modifying the test or testing conditions or eliminating the testing requirement if necessary.
  6. Do not rely solely on tests for making decisions about candidates; use them as one component of your overall selection procedure.

If an employer remembers the above tips when evaluating current testing practices or when considering implementing new selection procedures, it will go a long way towards making sure the company gets a passing grade of its own.

© 2010 Steptoe & Johnson PLLC All Rights Reserved

About the Author – Sarah L. Hinkle:

Sarah Hinkle focuses her practice in the areas of labor and employment law.

304-262-3542 / www.steptoe-johnson.com

How Extensive Is Your Experience? Insights on Law Firm Website Text.

Sonny Cohen of Duo Consulting   provides some food for thought about the same old – same old law firm website text. From Last Week’s Business of Law at the National Law Review

It is common for law firm websites to speak about themselves with hyperbole.  Self-important adjectives litter the site content.  Firm’s with exceptional people are one-upped by those with truly exceptional people.  Knowledge is only valid if it isgenuine. Experience, it seems comes in a variety of flavors as well. Some firms havewide experience.  For others it is deep experience.  But the most common benchmark of experience is that it be extensive.  Does your firm claim extensive experience?

Now it’s not that I don’t believe it when I read of a professional’s extensive experience. It’s just that this really doesn’t tell me anything. Worse, it doesn’t tell me anything different from the next guy who also has extensive experience. In fact, I would argue, my baseline is extensive experience. Now tell me how you’re better.

If you Google the phrase “extensive experience” there are over 6 million website pages where this value is claimed.  Using the search tool on several law firm websites, I discovered an “extensive experience” ratio of about  35% – 50% (# of appearances of “extensive experience”/attorney). So making this claim doesn’t so much separate one professional from the pack as much as it defines the pack. (Check your firm’s ratio and let me know!)

But the problem with this “extensive experience” language is not merely that it is linguistic laziness. Rather, this laziness results in failing to detail the richness, complexity and detail which this phrase references. And in so not doing, opportunities are lost for using this missing content.  You won’t be found in a search engine because, frankly, nobody is looking for “extensive experience.” And you won’t be discovered in your site search because, well, almost half of all attorneys have the same vague amount of experience. And it is all extensive.

Yes, I understand that, often, considerable descriptive detail must be concealed for privacy considerations.  Yeah, so? Content developers (copywriters) simply have to work harder to anonymize those involved. But, with a little effort, it is possible and essential to provide sufficient detail to make the stories comprehensible and relevant – and content rich.

Go the extra mile to gather the detail that elicits that sense of extensive experience. Boil it down to 3 to 5 cogent bullet points of industry and matter relevance. And post it. Your site visitor will have a better experience. This will result in more web pages consumed and possibly a longer time on the site with more opportunity for engagement. And search engines will devour the details for their ranking algorithms.  And you know how I know this? I have extensive experience.

© 1999-2010 Duo Consulting

About the Author – Sonny Cohen:

Sonny works closely with Duo’s clients to develop their online business and marketing strategy. His tactical responsiblities include: Implementing and managing paid search engine campaigns;  Consulting on and implementing permission-based email; Providing strategic online marketing consultation to law firms and others using web analytics to help drive website and business performance and Conceputalizing and implementing social media marketing

Sonny has over 30 years of business management and marketing experience,  He was a Serial entrepreneur and business marketer as an Apple Computer reseller; Internet partner in the business consulting firm Friedman, Eisenstein, Raemer and Schwartz; Director of Business Development for startup Primecom, an online e-commerce application service provider; and Director of Marketing for NextPart, Inc..  312-529-3003 / www.duoconsulting.com

The Ten Commandments of Drafting a Social Networking Policy

The National Law Review’s featured Guest Bloggers this week are from Steptoe & Johnson PLLC. Vanessa L. Goddard provides some concrete do’s and don’ts for drafting a company Social Media policy.  Read on:

You’ve probably heard this “fact”: if Facebook was a country, it would be the fourth largest country in the world! Web 2.0 has infiltrated every aspect of our lives, including the workplace. As a result, most lawsuits in which employers become mired are fraught with electronic data issues. To guard against a wide range of legal claims, as well as reap the benefits of a global marketplace, many employers are instituting social networking policies. But, as with any policy, a social networking policy must be carefully drafted to meet your business needs. With that, I introduce to you the 10 Commandments of drafting a social networking policy:

NUMBER ONE: Thou shalt NOT use a sample policy pulled willy-nilly from the Internet.

While your search results will pull up dozens of fine looking policies, you won’t know who wrote them, the legal jurisdiction from which they hale, or the business interests the policy seeks to promote. Many times, a bad policy is worse than no policy at all.

NUMBER TWO: Thou SHALT work in harmony to craft a policy appropriate for your business.

If you decide that a social networking policy is appropriate for your business (and it may not be), the combined cooperation of your IT department, human resources, legal, and company decision-makers is necessary to formulate an effective policy.

NUMBER THREE: Thou SHALT know the risks and guard against them.

Employee use of social networking media can have wide-ranging legal ramifications for employers. Possible claims include: harassment, discrimination, defamation, invasion of privacy, and a variety of statutory violations.

NUMBER FOUR: Thou SHALT proclaim that the eye of the employer sees all.

Notify employees that they have no expectation of privacy in their use of company technology, that their activities should be work related only, and that their communications may be accessed at any time.

NUMBER FIVE: Thou shalt NOT take the name of the employer in vain.

The policy should require disclaimers be used indicating that the opinions stated therein are those of the employee and not the employer.

NUMBER SIX: Thou SHALT respect thy co-workers, customers, competitors, and employer.

Require employees to act respectfully in their social networking/blogging activities. Provide guidance on what is and what is not appropriate behavior.

NUMBER SEVEN: Thou shalt NOT steal or do other really bad things with your employer’s computer.

The policy should prohibit disclosure of confidential information, the use of legally-protected/copyrighted information, and the dissemination of personal information of co-workers.

NUMBER EIGHT: Thou SHALT know the consequences of thy actions.

Inform your employees that their social networking activities on the job are subject to all company policies and explain the consequences of violating your social networking policy.

NUMBER NINE: Thou SHALT spread the word throughout the masses.

Distribute the policy. Have your employees sign off on their receipt and understanding of the policy. Provide training on the policy.

NUMBER TEN: Thou shalt NOT commit random acts of destruction.

You MUST ensure that your litigation hold policy incorporates procedures and methodologies to capture and preserve social networking data in the event of litigation.

© 2010 Steptoe & Johnson PLLC All Rights Reserved

About the Author:

Vanessa Goddard’s primary focus is in the area of labor and employment law. She has been involved in representing clients in various employment cases, including sexual harassment, deliberate intent, age, race, and disability discrimination, wrongful discharge, and various other employment-related torts. She is admitted to various state and federal courts as well as the Third Circuit Court of Appeals and Fourth Circuit Court of Appeals.  304-598-8158 /www.steptoe-johnson.com

WordPress Search Spam

A helpful article for all Word Press Users out there from the National Law Review’s Business of Law weekly guest bloggers – Duo Consulting.  Scott Frazer of Duo goes over a Spam issue that impacted Duo’s Blog and provides a detailed solution on how they fixed the problem!

Our blog was recently affected by a rather clever little hack, and when I went searching for ways to remove it, I couldn’t find much. Here’s a brief writeup of what happened and how I fixed it.

Our Director of Internet Marketing Strategy, Sonny Cohen, spends some of his time searching Google and other search engines for keywords relative to our business. He began noticing that some of those results, while they would return pointers to our blog, were laced with keywords and links to various male enhancement drugs. When I searched our blog for these references, I couldn’t find anything.

Here’s what I was seeing when I would search our blog for the phrase “test”:

But here’s what Google was seeing when it did the same search:

You may notice that the URL in that is to a local file. There are two ways you can see what your site looks like to Google. One is to change the User Agent on your browser to match that of the Googlebot. The other is to use the Webmaster Tool’s “Fetch As Googlebot” lab utility. I used the latter, and saved the resulting report as an HTML file and then opened that file in Chrome.

So why is Google seeing different results than anyone else who visits my site and runs that query? Something different must be happening when Google visits. I started running through the execution path of WordPress. The first file that is accessed is index.php. All this file does is turn on a theming variable and load wp-blog-header.php. So I moved on to that file. It looked like this:

if ( !isset($wp_did_header) ) {
$wp_did_header = true;
require_once( dirname(__FILE__) . ‘/temp.php’ );
require_once( dirname(__FILE__) . ‘/wp-load.php’ );
require_once( ABSPATH . WPINC . ‘/template-loader.php’ );

temp.php? Never heard of it, let’s see what’s inside:

eval (gzinflate(base64_decode(
…snip for length…

Now that looks evil. Obfuscated code can’t be good. I decided to see what it does by replacing the “eval” with “print” and then I ran “php test.php” from that directory. The results are very long, but you can see them here.

Basically, the program tries to determine if we are a real person or a search engine bot by looking at things like our IP address and our user agent. If it determines we are human, it goes ahead and returns the standard header. If we’re a bot, it serves the content in “theme.html” which is identical to the second screenshot above.

So to clean things up, I removed the reference to temp.php from wp-blog-header.php, deleted the file temp.php and deleted the file theme.html.

© 1999-2010 Duo Consulting

About the Author – Scott Frazer:

Scott supervises Duo’s network facilities, monitoring hardware and software, analyzing problems and ensuring that the network is fully operational. He works closely with clients to identify, interpret and evaluate their system requirements. He also provides the front-line defense of the Duo network by planning, coordinating and implementing network security measures. An avid Mac user, Scott is nonetheless happy to keep Duo’s servers running on Windows Server 2003 and Ubuntu Linux.

Scott has been working in network administration with Internet companies for over ten years. He has experience designing and maintaining networks and server farms for high-traffic sites in both the hosting and e-commerce arenas. As the senior system administrator for MusicToday, an online ticketing, merchandise and fan club portal, he was responsible for the stability and security of large-volume e-commerce sites, including websites for the Rolling Stones, the Grateful Dead and the Dave Mathews Band. www.duoconsulting.com / 312-529-3006

Assessing Your Current Leases for Implementation of LEED®

Recently featured on the National Law Review as a featured blogger Hannah Dowd McPhelin of Pepper Hamilton LLP reviews some things to look for in your company’s leases as related to LEED  implementation. 

If you are the owner of a multi-tenant commercial building and you are considering implementing LEED or another green building rating system, consider these four aspects of your existing leases before making the leap.

First, what costs associated with new sustainability efforts can be shared with the tenants?  A threshold issue in your decision to implement new measures will likely be cost and whether any of the cost can be shared with tenants.  Take stock of what expenses are permitted to be passed through to tenants under the current leases.  In particular, consider the treatment of capital expenditures and similar “big ticket” items.  A lease may allow at least some of the cost (perhaps on an amortized basis) of capital expenditures that are energy saving devices to be shared.

Second, what latitude do you have to impose new operational procedures on the current tenants?  A common example of a new operational procedure is a recycling program.  A good rules and regulations provision will be helpful here because it may allow you to stretch the four corners of the lease a bit to add new sustainability measures and ensure tenants’ compliance.  If you are planning to pursue certification or recognition through LEED or another green building rating system, then this will be an important consideration as the tenants’ compliance and cooperation may mean the difference between achieving certification and not.

Third, where will sustainability defaults fit into your leases’ current defaults and remedies provisions?  With respect to sustainability measures that are law, it is often appropriate for you to mandate tenants’ compliance.  For those measures that are not yet law, consider whether your tenants have an obligation to comply under the leases and when noncompliance becomes a default.  It is likely that any noncompliance would be a covenant default, which may be subject to a longer notice and cure period.  Practically, consider what remedies you are willing to exercise for noncompliance with sustainability measures.

Fourth, which party will reap the benefits of any rebates, credits or other incentives that accrue due to the new sustainability efforts?  Often, a standard lease form will not address the allocation of these items.  It is often assumed that the landlord receives the benefit but consider your tenants’ contributions to your sustainability efforts and also consider that for tax purposes and otherwise each party may benefit more from certain incentives.

Finally, and perhaps most importantly, you must communicate with your tenants and they must buy in to this process.  It will make the implementation of sustainability measures infinitely easier if your tenants are on board and enthusiastic – involve them early and often so they can share in the success of your building’s transformation.

Copyright © 2010 Pepper Hamilton LLP

About the Author:

Ms. McPhelin is an associate with Pepper Hamilton LLP, resident in the Philadelphia office. Ms. McPhelin concentrates her practice in real estate matters and other business transactions, including the acquisition and sale of commercial real estate properties and leasing of office, retail, warehouse and industrial space, representing both landlords and tenants. She is a LEED® (Leadership in Energy and Environmental Design) Accredited Professional and a member of the firm’s Sustainability, CleanTech and Climate Change Team.  215-981-4597 /www.pepperlaw.com

Is Your Email Service Provider the Best?

This week’s Business of Law Guest Bloggers at the National Law Review are from Duo Consulting.  Sonny Cohen of Duo provides some good specifics on what to look for in an emailing service.

We recently received this question from a law firm marketer. I’ve edited it slightly for brevity and anonymity:

“Our email service is earning a big #fail at this point. We’ve used (Name Brand provider) with great success for small jobs and I’m talking with them about an enterprise solution. Do you have a provider you love (or a crappy one I should be warned away from)? What are the pros and cons of the systems you’ve used?”

The question, submitted to a listserv, engendered responses of affiliation with one ESP or another because they liked them, had no problems, or other good indications of service. But email delivery is more complex than you might first imagine and one size does not fit all. It is not (yet) a commodity. Personal recommendations of quality service or indications of being satisfied are a good start of an evaluation but an insufficient qualifier for engaging an email service provider. Like the acquisition of almost any service (legal or technical) it is important to understand requirements.

This is not intended to be comprehensive but merely to illustrate my point. Get this part and you might get there is more to the story. So let’s take a look at these simple factors:

  • What does your email subscriber base look like? gmail.com? or bigcompanyname.com?
  • How big a mailing would you execute at one time?
  • What is your mailing frequency?

If you send a lot of email frequently to corporate email addresses, the email reputation is critical to getting into the inbox of your subscriber. The better email service providers (ESPs) do 2 things. First, they manage the reputation of the email addresses from which they send the email (their IP addresses). The best ESPs offer you the opportunity to set up your own email address on their system. This will look something like email.lawfirm.com and email will come from something like sonny@email.lawfirm.com So while it still looks like your business, it is isolated from your domain (lawfirm.com) and from the email sending behavior or misbehavior of other clients of this ESP. Are you with me?

What happens if you send an email to a lot of people at the same domain such asxxxx@client.com where xxxx is lots of different people? When all these emails show up @client.com at one time, they look like spam. It may even look like an attack on the email server. The corporate email server receives these emails so you probably see these emails as being delivered. But they never make it into the inbox of the individual email recipients.

The better ESPs offer the capability to throttle the sending of emails so that they don’t look like a spam attack on an email server. It more closely resembles natural email commerce. Good commercial ESPs can afford to throttle the send of their emails. Spammers cannot because they’ve got way too much email to send. Are we getting esoteric yet?

ESPs are commercial companies and not a part of any website development company’s core competency. We have our favorites but we are not linked at the hip. Email services built into CRM systems such as Interaction, Salesforce, etc. are bulk mailers and do not have these deliverability features and a deliverability desk (personnel) focused on managing IP reputation. This doesn’t make them bad by any stretch. But it does affect deliverability performance.

Finally, the best ESPs are becoming messaging companies capable of delivering text messages and voice messages. If your communication strategy is to be first to market with targeted information, you may find that a text message alert system is a client service you haven’t yet considered. It is unlikely that your “economy” bulk email guy who is “friendly to deal with”  offers these extended and diversified contact capabilities. And maybe you don’t need it and never will.

Being able to track email performance is a common feature but it is not the test of a quality system. And these tools may not even provide accurate or complete information regarding the effectiveness of your email marketing campaigns. Even the best (i.e. more costly) ESPs come only close to precise. Third party firms like Return Path and Pivotal Veracity might provide this higher level of email evaluation and deliverability improvement.

Price is not always a guarantee that you will get better delivery services like what I’ve identified above. But a low price pretty much guarantees that you will not. For my part, I think reaching targeted contacts for a few pennies is a pretty good deal. If you are driven to cut that penny in half, you should at least know what you are getting and what you aren’t.

Whew! Hope this is helpful. Oh yeah, who do we use? ExactTarget. But remember. One size does not fit all. Think about your requirements.

Email open rate is only one indicator of email success

© 1999-2010 Duo Consulting

About the Author:

Sonny works closely with Duo’s clients to develop their online business and marketing strategy. His tactical responsiblities include: Implementing and managing paid search engine campaigns;  Consulting on and implementing permission-based email; Providing strategic online marketing consultation to law firms and others using web analytics to help drive website and business performance and Conceputalizing and implementing social media marketing.

312-529-3003 / www.duoconsulting.com

Renewable Energy Financial Incentives: Interested Parties Scramble for More Time

The National Law Review’s featured guest bloggers this week are from Pepper Hamilton LLP.  Jane C. Luxton provides a ‘heads up’ on important deadline which is quickly approaching.  Read on:  

When Congress passed the American Recovery and Reinvestment Act – familiarly known as the “stimulus bill” or “ARRA” – in 2009, it specified that funding would expire on September 30, 2011.  Any project not “shovel ready” by that date is out of luck, and application deadlines for available money fall due even earlier.  Renewable energy funding under ARRA comes principally under Department of Energy loan guarantee programs and Treasury Department grants in lieu of existing tax credits.

Originally, DOE established a cutoff date of August 30, 2010, for part 1 applications for the multi-billion dollar loan guarantee fund for commercial-scale renewable energy projects added under ARRA as Section 1705 of the Energy Policy Act of 2005.  Giving away all that money turned out to be harder than expected, however, and under pressure from critics, DOE recently extended its deadlines, but not by much.  It is possible further extensions will occur, but for now applications for renewable energy generation projects must be filed by October 5, and for proposals based on manufacture of renewable energy components, by November 30.  Further, DOE recently clarified that only large projects will qualify for manufacturing grants:  those totaling $75 million or more.  Details are available at  http://www1.eere.energy.gov/financing/.

Meanwhile, interested parties have secured bipartisan congressional support to extend the Treasury Department program that allows taxpayers to obtain cash grants in lieu of renewable energy tax credits, authorized under Section 1603 of ARRA.  Whether this support is sufficient to win passage in the waning pre-election days of a turbulent Congress is an open question.  Developers, investors, and other interested parties should monitor these developments closely.

While time may be growing short for the ARRA programs, other sources of federal and state incentive money remain available and continue to play a key role in promoting renewable energy deals.

Copyright © 2010 Pepper Hamilton LLP

About the Author:

Ms. Luxton is a partner in the Environmental Practice Group of Pepper Hamilton LLP, resident in the Washington office. She is chair of the firm’s Sustainability, CleanTech and Climate Change Team. Ms. Luxton has practiced for more than 20 years in the field of environmental law, and she is actively involved in climate change and renewable energy matters. 202-220-1437 / www.pepperlaw.com

ABA Investment Management Basics Boston Univ. Oct. 13 – 15

The National Law Review is proud to support – the American Bar Association Business Law Section, the ABA Center for Continuing Legal Education, and the Morin Center for Banking and Financial Law of Boston University School of Law present the 3rd presentation of a two-and-one-half day introduction to the regulation of investment companies (mutual funds) and functionally similar entities.

Attend This Program And Learn What You Need To Know About …
  • The structure of the investment management industry
  • The anatomy of an investment company “family” of funds
  • The regulatory scheme imposed on investment companies and related service providers
  • The mechanics of the two “40 Acts: Investment Company Act and Investment Advisors Act”
  • Modern governance standards for investment companies
  • Distribution of fund shares and the fiduciary and regulatory issues raised
  • Contrasting regulation of hedge funds and private equity funds
  • “Hot issues” in the industry

Who Should Attend This National Institute?

  • Lawyers at all levels of experience (including regulators) who are involved or expect to become involved in issues surrounding the investment company industry
  • Private practitioners who advise corporate clients on related matters
  • Consultants, accountants, and bank executives seeking a more comprehensive understanding of this changing industry


Mandatory continuing legal education (MCLE) accreditation has been requested from all states that require continuing legal education. 17.50 hours of CLE credit, including 1.00 hours of Ethics credit, have been requested from those states recognizing a 60-minute credit hour and 21.00 hours of CLE credit, including 1.00 hours of Ethics credit, have been requested from those states recognizing a 50-minute credit hour. For NY-licensed attorneys: This transitional CLE program has been approved for all NY-licensed attorneys in accordance with the requirements of the New York State CLE Board (17.50 including 1.00 

hours of Ethics total NY transitional MCLE credits).

For more information and to register go to the ABA CLE Website.

Considerations for Design Services Agreements for Projects Seeking LEED® or Similar Certification

The National Law Review’s featured guest bloggers this week are from Pepper Hamilton LLP.  Wendy Klein Keane outlines things that need to be considered for LEED® or similar certifications:  

If you are contemplating pursuing certification under the LEED (Leadership in Energy and Environmental Design) Green Building Rating System or another green building code or standard for a construction project, it is important that you integrate these objectives and requirements into your design services agreement. It is equally important that these issues be integrated into the construction services agreement(s) for the project as well, but those issues will be addressed in a future post. As a starting point, you should consider the following questions and ensure that they are covered by your design services agreement.

1) What kind/level of certification are you seeking for the project? While you may not know the precise level of certification that you will obtain, you should include a provision in the contract that identifies the governing standard that has been chosen (or is required) for the Project.

2) Does the agreement permit you to use the instruments of services to obtain that certification? You need to make certain that your agreement with the design professional permits the underlying design documents to be used to apply for and obtain certification, without constituting a breach of the contract or violation of copyright laws.

3) What additional scope of services will be required as a result of seeking LEED or similar certification? Obtaining LEED or similar certification is dependent on not just the design professional’s performance, but also a variety of other factors including the contractor’s performance, the budget, the documentation, and the institution responsible for the certification process. As a result, the agreements for the project should be carefully drafted to make sure that the required scope is correctly and completely allocated amongst the parties. There are currently only a few standard forms that address a design professional’s scope of services for a project seeking LEED or similar certification. One example is the American Institute of Architects (“AIA”) Document B214-2997 (Standard Form of Architect’s Services: LEED Certification) (http://www.aia.org/contractdocs/AIAS076745). Article 2 of the AIA-B214 includes services that could be provided by the design professional for projects seeking LEED certification. The B214 can be modified and made an exhibit to your design services agreement. Another example is the ConsensusDOCS 310, Green Building Addendum, (http://consensusdocs.org/catalog/300-series/), which is appropriate for use on any green building project. You could also review and integrate parts of the LEED Green Building Rating System or other relevant written codes or standards into the agreement. All of these sources are starting points only and must be evaluated and made suitable for your project.

4) How will achieving LEED or similar certification be guaranteed or incentivized in the agreement? Owners and design professionals should consider the risks and benefits of obtaining certification and develop contractual provisions to ensure that the desired certification is obtained. One way to encourage performance is through a liquidated damages provision where the design professional bears some financial responsibility if certification is not obtained due to his or her acts or omissions. Another possibility is to include a bonus payment tied to completing the application process or obtaining actual certification.

These questions touch on only a few considerations that can be integrated into your design services agreement to make certain that the necessary contractual framework is in place to successfully achieve the desired green certification for your project. The specific facts and goals of each project should be considered and included in the design services agreement for that  project.

Copyright © 2010 Pepper Hamilton LLP

About the Author:

Ms. Klein Keane is an associate in the Construction Practice Group of Pepper Hamilton LLP, resident in the Philadelphia office. She also is a member of the firm’s Sustainability, CleanTech and Climate Change Team. She is one of the few attorneys who passed the Green Building Certification Institute’s exam to qualify as a LEED® (Leadership in Energy and Environmental Design) Accredited Professional. Ms. Klein Keane has experience counseling clients through all phases of the construction process on both public and private projects, including contract drafting and negotiation, bidding, contract administration, and litigation and alternative dispute resolution proceedings.  www.pepperlaw.com / 215-981-4982

The Insider’s Guide to Event Organizers: 10 Questions You Can’t Afford Not to Ask Yourself

The Business of Law Guest Blogger this week at the National Law Review is Wendy Tyler of American Conference Institute who provides some valuable insight on what to look for in an Event / Conference Organizer:  

A traditional component of business to business marketing strategy is utilizing conferencing and trade show solutions. Ever an increasingly competitive business, the conferencing and trade show industry has witnessed significant market shifts as demand from attendees, exhibitors, speakers and sponsors have changed with the business climate. Marketing budgets remain closely scrutinized as decision makers need to justify their investments to a higher standard than ever before, which means the pre‐qualification process for an event is more vital than ever.

At any given moment, no less than two dozen event organizers simultaneously compete for your business.  With this volume it’s not uncommon to find yourself unable to fully vet each and every event opportunity that comes your way, and in return, it’s possible that valuable opportunities are being overlooked while poor opportunities may inadvertently be selected.

Evaluating an event opportunity starts with asking the right questions.  There are ten essential questions that every event purchaser should ask every conference or trade show organizer when reviewing an opportunity to participate at any level.   Each of these questions acts as a guidepost in effective qualification.   Naturally, the list of questions you might want to ask doesn’t end at ten; but these ten will help you narrow your event search and potential involvement.  Once you have these answers, any good event account manager should be able to guide you through your additional questions clearly and concisely discussing the marketing capabilities, overall event strategy, and brand development opportunities that may be available to you.

1.  How many total attendees do your events average?

This question will help you evaluate the size of the event so you can determine if the opportunity presented is for support of a conference or trade show. Due to the cyclical nature of live events, attendance does vary so it’s important that you ask what the high/low range of attendance has been so you can better assess the risk of an underperforming event.

2.  How many events do you produce a year?

This question will give you a good sense of the event organizer’s market penetration. The fewer events produced per year generally indicates that the organizer does not consider conferencing a major part of their business. For some purchasers this may not make a difference in their buying strategies but for others, there is a high degree of comfort knowing you are investing in a business whose primary business function is the delivery of the service you’ve procured.

3.  How many of your total attendees are feepaying delegates?

Quite often, event organizers lump all participants as “attendees” – this can include speakers, sponsors, exhibitors, guests, exhibit floor walkers and press. Paying delegates are the highest value prospects because they are investing money in the information presented at an event. Consequently, the greater number of paying attendees will lead to a greater quality of a pre-qualified audience for your needs – even at the sacrifice of quantity – and provide your organization with a better chance of meeting the right decision makers. The old adage “you get what you pay for” is never more apparent than here.

4.  When can you show me a list of attendees?

An event organizer should be able to show you a list of attending companies no less than two days prior to an event in order to substantiate the quality of the attendees. In some cases, and with certain levels of sponsorship, you may have the opportunity to receive an update on registered attendees several weeks prior to the event. The bottom line is that two days prior to a conference, any organizer that doesn’t release some information on the confirmed attendees may not have confidence in their event thus placing your investment in jeopardy.

5.  Does this list include speakers, guests, sponsors, etc.?

Similar to any purchase of significant value, it is important to carefully review what it is you will be investing your dollars in. A sample attendee list, even one from a related event is a great way to get a feel for the expected audience. As the event nears and you receive an attendee list, be sure to find out whom exactly is included. While speakers, guests and even other sponsors can represent strong business development opportunities for your organization, it is important to know where the attendees are coming from so you can plan accordingly, manage internal expectations and have better metrics for measuring your return on investment.

6.  Would you let me speak to a former speaker or attendee?

Similar to a “word of mouth” campaign, a great way to pre‐qualify a conference organizer is to speak with a former or current speaker, attendee or sponsor. This will provide your organization with an opportunity to get a first‐hand account of the event; and the organization you’re about to allocate marketing budget to.

7. How would you define your organization’s reputation?

It is important to determine how an organization defines its reputation. It is especially important to see if their self‐definition matches the definition offered by previous attendees, sponsors & speakers. An organizer should know how it is perceived in the marketplace, for better or for worse and be able to convey this to any potential client honestly and transparently.

8. What is your competitive advantage?

Similar to reputation, a company’s competitive advantage will help an event purchaser clearly define what they can expect from the organizer. This answer will also provide a purchaser with a benchmark for evaluation after the event concludes. For example, if an event organizer is known for attracting press, you will be able to judge your return on investment based on how much press your organization received.

9. How can you help my company with your go to market strategy?

As an event purchaser, it is important to challenge the organizer to provide a comprehensive solution to your business objectives as opposed to having them simply provide a “one size fits all” product. We live in agile times and most solution providers should provide custom solutions tailored to meet your specific needs. The exception to this rule is if you are working with a trade show organizer because the volume of sponsors and exhibitors sometimes prohibit high degrees of customization.

10. Can you explain your process of program development and speaker recruitment?

Program development and speaker recruitment are to an event organizer what research and development is to a pharmaceutical company. The process is as important as the product. Through greater understanding of where content is derived and speakers are recruited from, an event purchaser is provided the opportunity to evaluate the product in its entirety. With greater content and speakers comes a higher quality of attendee. Understand the source of the content and speakers and an event purchaser will be able to better judge the chances of meeting the right audience.

The questions provided above are intended to serve as guidelines for those evaluating event sponsorship and exhibition opportunities. The answers you receive are contingent upon a number of factors including the type of event, the product intelligence of the sales executive and the corporate culture of the organizer. As with the nature of live events, the ability to accurately predict a successful event experience is more art than science however; armed with these ten basic questions, you will be given every possible advantage in making the best decision for your company.


About the Author:

Ms. Tyler has been with American Conference Institute (ACI) since May 2005. Her responsibilities include managing the U.S. sales team, forging strategic alliances and identifying emerging growth sectors and topics. www.AmericanConference.com / 212-352-3220