Author: National Law Forum

A group of in-house attorneys developed the National Law Review on-line edition to create an easy to use resource to capture legal trends and news as they first start to emerge. We were looking for a better way to organize, vet and easily retrieve all the updates that were being sent to us on a daily basis.In the process, we’ve become one of the highest volume business law websites in the U.S. Today, the National Law Review’s seasoned editors screen and classify breaking news and analysis authored by recognized legal professionals and our own journalists. There is no log in to access the database and new articles are added hourly. The National Law Review revolutionized legal publication in 1888 and this cutting-edge tradition continues today.

Opening of the 13th Great-Idea China Sourcing & New Industrial Delegation to China

The National Law Review recently published an article by Lisa L. Mueller of Michael Best & Friedrich LLP regarding The New Industrial Delegation to China:

Today was the first day of the 13th Great-Idea China Sourcing & New Industrial Delegation (Delegation). The first stop: Shanghai.

Because this was my first time to China, I really did not know what to expect when my plane landed in Shanghai. All I really knew about China before leaving home is that from a geographical standpoint, it is an extremely large-sized country with an equally large population, and that many of the products that I rely on day in and day out in my life (my running shoes, many of my clothes, etc.) are made in China. Well, I was certainly not prepared for what I found when my plane landed in Shanghai. What struck me immediately was that Shanghai is absolutely enormous in a multitude of different ways. First, the sheer number of people who live and work in Shanghai is colossal. Since my arrival, I have heard that the number of residents in Shanghai to be anywhere from 20 to 23 million. Regardless of the actual number, I can tell you that there are simply people everywhere and they seem to be going in every direction. In fact, there are so many people in Shanghai that there is not enough room for people to walk on the sidewalks, so they frequently travel in the streets along with the buses, cars, mopeds, motorcycles and bicycles that make up traffic.

Second, the sheer number and size of free-standing skyscrapers in Shanghai is astonishing. Some of the more prominent skyscrapers include the Jin Mao Tower, the Shanghai World Financial Center, which is the tallest skyscraper in mainland China at the moment, the Oriental Pearl Tower and the Development Tower.

Third, the amount of new skyscrapers that are under construction is tremendous. There seems to be skyscrapers under construction no matter which direction you look in Shanghai. Based on the work done thus far, it appears that many of these skyscrapers are going to be just astronomical in size.

Fourth, the traffic in Shanghai is monstrous. Growing up on Long Island, NY, I thought I was used to the immense day-to-day traffic that has long been a staple in the New York Metropolitan area. NOTHING could prepare me for the mammoth traffic in Shanghai. Getting around by car, cab or bus is absolutely painful during what most people would consider “reasonable” waking hours during the day. I took a bike tour on Saturday and I can personally attest that this traffic makes biking a challenge when you have to traverse cars, buses, cabs, mopeds, motorcycles, bicycles and people crossing the streets. In fact, at times, the weaving in and out was better than any amusement park ride I’ve been on in years (and far less expensive).

Fifth, not surprisingly given the number of cars, buses and motorcycles that comprise the traffic in Shanghai, the pollution is gargantuan. It has taken my eyes and lungs a bit of time to adjust to the increased levels of pollution.

In addition to the enormity of China, I was also not prepared for what I have found in terms of the people of China. For the most part, the Chinese people are very friendly and warm. I have found them to be very hard-working and capitalistic. Unfortunately, given the large number people in China, there are far more people than jobs. In view of this, as part of China’s 12th Five-Year Plan for National Economic and Social Development, the Chinese government is trying to spread the benefits of economic growth to a higher number of Chinese citizens. The plan’s key themes involve rebalancing the economy, ameliorating social inequality and protecting the environment. Part of this plan involves changing the export-oriented economy of China from low-end manufacturing outsourcing to advanced manufacturing outsourcing and international service outsourcing. The three main sectors to be targeted by this plan are healthcare, energy and technology.

The Delegation is part of an international summit and forum that has come to China to learn more about the plan, to meet with local business leaders and politicians who will be instrumental in implementation and to foster cooperation and investment opportunities between China and other nations based on the plan of the International delegates. Some are venture capitalists or other types of investors, some are lawyers and others are technology specialists.

This evening, the delegation visited Hand Enterprise Solutions Company (Hand) for a presentation by Mr. Dean Chen, President. Hand was established in Shanghai in 2002 and was one of the first local enterprise resource planning (ERP) consulting firms in China. They currently have over 700 employees and an average growth rate of 30% in recent years. In 2002, IDC named Hand one of the “Top Consulting Companies” in the China IT Industry. Hand currently provides a variety of IT services ranging from traditional IT strategic consulting, business process optimization, ERP implementation service, as well as, mobile solutions and business intelligence. They have provided consulting services in a variety of industries such as machinery, electronics, automotive, pharmaceutical, chemicals, food and beverage, financial services, telecommunications and the Chinese aviation industry. Hand has about 400 customers in China, Japan, Europe and the US and has offices in Beijing and Guangzhou in China and in Tokyo, Japan.

Tomorrow morning the Delegation will tour the Zhangjiang Science and Technology Park in Shanghai before heading to Suzhou.

© MICHAEL BEST & FRIEDRICH LLP

2012 National Law Review Law Student Writing Competition

The National Law Review is pleased to announce their 2012 Law Student Writing Competition

The National Law Review (NLR) consolidates practice-oriented legal analysis from a variety of sources for easy access by lawyers, paralegals, law students, business executives, insurance professionals, accountants, compliance officers, human resource managers, and other professionals who wish to better understand specific legal issues relevant to their work.

The NLR Law Student Writing Competition offers law students the opportunity to submit articles for publication consideration on the NLR Web site.  No entry fee is required. Applicants can submit an unlimited number of entries each month.

  • Winning submissions will be published according to specified dates.
  • Entries will be judged and the top two to four articles chosen will be featured on the NLR homepage for a month.  Up to 5 runner-up entries will also be posted in the NLR searchable database each month.
  • Each winning article will be displayed accompanied by the student’s photo, biography, contact information, law school logo, and any copyright disclosure.
  • All winning articles will remain in the NLR database for two years (subject to earlier removal upon request of the law school).

In addition, the NLR sends links to targeted articles to specific professional groups via e-mail. The NLR also posts links to selected articles on the “Legal Issues” or “Research” sections of various professional organizations’ Web sites. (NLR, at its sole discretion, maydistribute any winning entry in such a manner, but does not make any such guarantees nor does NLR represent that this is part of the prize package.)

Congratulations to our 2012 and 2011 Law Student Writing Contest Winners

Winter 2012:

Fall 2011:

Why Students Should Submit Articles:

  • Students have the opportunity to publicly display their legal knowledge and skills.
  • The student’s photo, biography, and contact information will be posted with each article, allowing for professional recognition and exposure.
  • Winning articles are published alongside those written by respected attorneys from Am Law 200 and other prominent firms as well as from other respected professional associations.
  • Now more than ever, business development skills are expected from law firm associates earlier in their careers. NLR wants to give law students valuable experience generating consumer-friendly legal content of the sort which is included for publication in law firm client newsletters, law firm blogs, bar association journals and trade association publications.
  • Student postings will remain in the NLR online database for up to two years, easily accessed by potential employers.
  • For an example of  a contest winning student written article from Northwestern University, please click here or please review the winning submissions from Spring 2011.

Content Guidelines and Deadlines

Content Guidelines must be followed by all entrants to qualify. It is recommended that articles address the following monthly topic areas:

  • March Topic Feature:  Environmental and Energy, Insurance and Intellectual Property Law
  • March Submission Deadline:  Tuesday, February 21, 2012
  • May Topic Feature:     Tax, Bankruptcy and Restructuring and Healthcare Law
  • May Submission Deadline:  Monday, April 16, 2012

Articles covering current issues related to other areas of the law may also be submitted. Entries must be submitted via email to lawschools@natlawreview.com by 5:00 pm Central Standard Time on the dates indicated above.

Articles will be judged by NLR staff members on the basis of readability, clarity, organization, and timeliness. Tone should be authoritative, but not overly formal. Ideally, articles should be straightforward and practical, containinguseful information of interest to legal and business professionals. Judges reserve the right not to award any prizes if it is determined that no entries merit selection for publication by NLR. All judges’ decisions are final. All submissions are subject to the NLR’s Terms of Use.

Students are not required to transfer copyright ownership of their winning articles to the NLR. However, all articles submitted must be clearly identified with any applicable copyright or other proprietary notices. The NLR will accept articles previously published by another publication, provided the author has the authority to grant the right to publish it on the NLR site. Do not submit any material that infringes upon the intellectual property or privacy rights of any third party, including a third party’s unlicensed copyrighted work.

Manuscript Requirements

  • Format – HTML (preferred) or Microsoft® Word
  • Length – Articles should be no more than 5,500 words, including endnotes.
  • Endnotes and citations – Any citations should be in endnote form and listed at the end of the article. Unreported cases should include docket number and court. Authors are responsible for the accuracy and proper format of related cites. In general, follow the Bluebook. Limit the number of endnotes to only those most essential. Authors are responsible for accuracy of all quoted material.
  • Author Biography/Law School Information – Please submit the following:
    1. Full name of author (First Middle Last)
    2. Contact information for author, including e-mail address and phone number
    3. Author photo (recommended but optional) in JPEG format with a maximum file size of 1 MB and in RGB color format. Image size must be at least 150 x 200 pixels.
    4. A brief professional biography of the author, running approximately 100 words or 1,200 characters including spaces.
    5. The law school’s logo in JPEG format with a maximum file size of 1 MB and in RGB color format. Image size must be at least 300 pixels high or 300 pixels wide.
    6. The law school mailing address, main phone number, contact e-mail address, school Web site address, and a brief description of the law school, running no more than 125 words or 2,100 characters including spaces.

To enter, an applicant and any co-authors must be enrolled in an accredited law school within the fifty United States. Employees of The National Law Review are not eligible. Entries must include ALL information listed above to be considered and must be submitted to the National Law Review at lawschools@natlawreview.com. 

Any entry which does not meet the requirements and deadlines outlined herein will be disqualified from the competition. Winners will be notified via e-mail and/or telephone call at least one day prior to publication. Winners will be publicly announced on the NLR home page and via other media.  All prizes are contingent on recipient signing an Affidavit of Eligibility, Publicity Release and Liability Waiver. The National Law Review 2011 Law Student Writing Competition is sponsored by The National Law Forum, LLC, d/b/a The National Law Review, 4700 Gilbert, Suite 47 (#230), Western Springs, IL 60558, 708-357-3317. This contest is void where prohibited by law. All entries must be submitted in accordance with The National Law Review Contributor Guidelines per the terms of the contest rules. A list of winners may be obtained by writing to the address listed above. There is no fee to enter this contest.

Beer, wine and voter ID laws: Beer and Wine Wholesalers Among Those Behind Legislators Pushing Controversial New Election Rules.

Recently an article by Paul Abowd of the Center for Public Integrity regarding Voter ID Laws was published in The National Law Review:

Wholesalers among those behind legislators pushing controversial new election rules.

Some of America’s best known brands are dropping their membership in the American Legislative Exchange Council at least partly in response to controversy over the group’s backing of voter ID laws. Coca-Cola quit on April 4 and Pepsi, Kraft Foods, Intuit, McDonalds and the Bill and Melinda Gates Foundation followed them out after a coalition of left-wing groups launched pressure campaigns. Nine states have passed strict voter ID requirements just since 2011, which opponents say could result in millions being unable to cast ballots in November.

But there’s been little attention paid to one major ALEC-affiliated sector behind several state legislators pushing these measures: the beer and wine industry.

Major players in beer and wine sit on an ALEC task force that crafted and approved voter ID model legislation in 2009. The industry’s major trade associations — the National Beer Wholesalers Association and Wine and Spirits Wholesalers of America — are among them. Since 2007, the wholesalers have also pumped substantial cash into the campaigns of several ALEC politicians who have been authors or primary sponsors of voter ID bills in their states.

Founded in 1973, ALEC, a coalition of corporate America and almost exclusively Republican state lawmakers, had operated quietly and, by most accounts, effectively in pushing conservative, business-friendly laws including Arizona’s immigration law and the flurry of controversial “Stand Your Ground” laws that have been in the headlines since the February 26 shooting of Florida teen Trayvon Martin.

ALEC has a vast legislative agenda covering state budgets, education, health care, corrections, energy and environment, guided by free-enterprise and limited-government principles. It draws funding from hundreds of corporate members including Koch Industries, ExxonMobil, Pfizer, UPS, AT&T, and Walmart. Corporate membership costs between $7,000 and $25,000, according to the ALEC website. Two thousand state legislators pay $50 a year to be members.

ALEC has been the subject of increasing media attention since last summer, when hundreds of leaked documents shed unprecedented light on ALEC’s reach into state legislatures. The organization did not respond to calls for comment.

The course of voter ID

ALEC didn’t kick off the voter ID movement; a 2005 Indiana law co-authored by Republican Sen. Brandt Hershman, an ALEC member who has received nominal contributions from the state wine wholesalers association, seems to have started the trend. In early 2009, though, ALEC formed a committee within its Public Safety and Elections Task Force to focus on election fraud.

Sean Parnell, the former president of the Center for Competitive Politics, a conservative think tank, said legislators from a dozen states brought voter ID to ALEC in the spring of 2009, but he declined to identify them.

By summer 2009, the full Public Safety and Elections Task Force, including the beer and wine wholesalers, formally approved the voter ID model law before it filtered into dozens of legislatures nationwide — according to internal ALEC documentspublished by the Wisconsin-based investigative nonprofit Center for Media and Democracy.

The model legislation requires voters to show government-issued photo identification at the polls, or else sign an affidavit and cast a provisional ballot. Provisional voters must make a separate trip to provide county election officials with proof of identity by the Monday following an election if they want to ensure their vote is counted. By that time, critics say, most elections have been decided.

Since 2009, 12 states have passed voter ID laws with strict requirements for government-isued identification. Nine of those states have signed such laws just since 2011, and Virginia seems poised to become the tenth.

Conservative legislators tout the laws’ ability to stop voter fraud. ALEC argues that such fraud could be a serious problem, pointing to the nation’s messy voter registration rolls. The assertion is bolstered by a recent report from the Pew Center on the States, which says 1.8 million deceased Americans are still listed as voters and that 2.75 million people are registered to vote in more than one state.

But the laws have drawn rebuke from the U.S. Department of Justice and civil rights advocates, who say the requirements will disproportionately restrict access to the ballot for people of color, students, homeless and the elderly — groups that they say are less likely to possess government-issued identification.

A 2006 survey conducted for the Brennan Center for Democracy found that 25 percent of African Americans and 16 percent of Latinos do not possess state-issued photo IDs. Voter ID laws, together with restrictions on voter registration and early voting, the Brennan Center says, could affect 5 million Americans in 2012. Since December, the Justice Department has rejected voter ID laws in South Carolina and Texas, subject to review by the courts. Under the Voting Rights Act of 1965, changes to electoral laws in states with a history of voter discrimination must get federal approval.

The Justice Department said that, whether or not the new voter ID requirements in both those states had a “discriminatory purpose,” they would have “a discriminatory effect” on people of color.

Political players

The National Beer Wholesalers and Wine and Spirits Wholesalers of America are not strangers to power politics. The beer wholesalers are a trade association representing thousands of companies who deliver beer from breweries to bars. In twenty years, the association has played a substantial role in campaign finance, ranking 25th on a list of federal campaign cash “heavy hitters” compiled by the Center for Responsive Politics.

The wholesalers’ state-based affiliates have used their political leverage in efforts to contain beer and liquor taxes and fight large retailers like Costco Wholesale Corporation, which are competing for a share of the large distribution market.

So why would these industry players back a politically charged issue like voter ID? Formally, they don’t.

“The National Beer Wholesalers Association has no position on this issue,” said spokeswoman Kathleen Joyce, in an e-mail. The wine wholesalers had a similar response. “The task force’s sponsorship of voter ID laws and any other election activities is a mere coincidence, and we have never been involved in those areas,” said Jerry Brown, a spokesman for wine wholesalers.

Both organizations say their groups have been members of ALEC’s Public Safety and Elections task force to foster efforts aimed at preventing underage drinking. The task force has endorsed three pieces of legislation since 2006 seeking heightened penalties for those selling alcohol to underage consumers.

Not everyone is convinced. Among the skeptics is Edwin Bender, executive director of the National Institute on Money in State Politics. “If you see this happening in several states, that’s some indication that there’s a strategy there, especially if they’re giving money to ALEC members,” said Bender. Neither the beer or wine wholesalers would say how they voted when the ALEC Public Safety and Elections Task Force approved the model voter ID law.

Indeed, cash from the beer and wine wholesalers shows up repeatedly backing state legislators who are behind the voter ID measures. Since 2011, five ALEC-member legislators in Virginia, Texas, Tennessee, Kansas and South Carolina were primary sponsors of voter ID bills and relied in part on the flow of beer and wine money for their campaigns. In Wisconsin, 28 of the 48 legislators who introduced voter ID in 2011 are ALEC members, including one who was on the elections task force and received support from the beer industry.

The amounts of cash are modest in comparison to the millions already being spent on the presidential campaign, but are significant in the context of state legislative races, for which candidates usually raise less than $100,000.

Parade of states

In South Carolina, the Justice Department struck down a law sponsored by Rep. James Harrison, a member of the ALEC Public Safety and Elections task force and a recipient of at least $4,000 from beer and wine wholesaler associations since 2007. Harrison was also one of 13 sponsors of a successful 2007 bill that set up education programs for underage consumers of alcohol.

In Texas, Gov. Rick Perry decried the Justice Department’s decision to block a voter ID law introduced by ALEC member and Republican Sen. Troy Fraser. ProPublicaidentified more than $160,000 donated to Fraser between 2007 and 2010 by ALEC member corporations including Time Warner, AT&T, Bank of America. In addition, since 2007 the state-based beer wholesaler association has given Fraser $14,000 in campaign cash.

Fraser had no comment on his role in the law and support from the wholesaler.

In the Texas House, the story was similar. Four of the five representatives who were primary sponsors of a companion to Fraser’s Senate bill are ALEC members who received a total of $13,000 in beer industry support since 2007. Two of them — Reps. Aaron Pena and Larry W. Taylor — sat on the ALEC task force that approved voter ID model legislation. Pena received more than $3,800 and Taylor $2,500 from the beer wholesalers.

Pena says he doesn’t remember when ALEC approved the law, and denied the think tank’s role in shaping the Texas voter requirements. “None of my knowledge of this law comes from ALEC,” he said. “There is no connection.” Rep. Taylor did not return calls.

In Tennessee, longtime Sen. Bill Ketron sponsored a successful voter ID bill in 2011. Since 2007, he has drawn at least $35,000 in donations from ALEC members that approved the model voter ID bill, including $4,000 from the state wine wholesalers’ association.

According to Ketron spokeswoman Darlene Schlicher, the senator introduced voter ID following a high-profile voter fraud case involving a Democratic state legislator. Sen. Ophelia Ford narrowly won a 2005 special election to fill a seat left open by her brother. When her opponent challenged the result, an investigation found ballots had been cast by nonresidents, felons, and in the names of deceased voters. The state Senate voided the election in 2006.

Any connections between the voter ID laws and the beer and wine industry, says Schlicher, are “right out of left field.” Ketron was also one of six sponsors of 2009 legislation heightening penalties for underage drinking.

ALEC member Rep. Lance Kinzer sponsored voter ID in Kansas and has received nominal contributions from the wine wholesalers association. Wisconsin’s embattled law passed with heavy sponsorship from ALEC members in 2011, including that of Rep. Dan Knodl, who has received $1,500 since 2007 from the beer wholesalers association.

Wisconsin has some of the most restrictive ID requirements in the nation, disallowing student IDs and veteran IDs, says Wisconsin ACLU spokeswoman Stacey Harbaugh, whose organization is one of several groups suing to overturn the law. A state judge struck down the strict voter ID requirements in March.

Even though Wisconsin would provide free IDs to those with improper state-issued ID, residents have to show their birth certificate to obtain one, and obtaining a birth certificiate can itself cost time and money. “The free IDs aren’t really free,” says Harbaugh.

Virginia Republican Sen. Stephen Martin, ALEC’s state chairman, introduced voter ID legislation this year. Martin received at least $45,000 from ALEC private sector members from 2006 through 2009, and more than $5,300 from the state’s beer and wine wholesaler associations between 2006 and 2011. Martin did not return calls for comment.

One of three co-sponsors of the Martin bill was ALEC member Frank Ruff. His $40,000 in campaign contributions from ALEC corporations since 2006 included more than $3,000 from beer and wine wholesalers. Republican Lt. Gov. Bill Bolling broke the party-line tie in the Virginia Senate, sending the bill to Gov. Bob McDonnell’s desk. On April 10, McDonnell sent it back, calling on legislators to expand the acceptable forms of identification.

Shifting sands

Links to ALEC are becoming a potential liability for corporations, due to a pressure campaign by Color of Change. The progressive online advocacy organization devoted to strengthening the political voice of people of color says voter ID laws constitute a “modern-day poll tax” aimed at voters from minority groups.

“The hurdles involved in getting proper ID for many people can be expensive,” said Color of Change’s Executive Director Rashad Robinson in an interview.

Coca-Cola dropped its membership five hours after Robinson’s group launched its pressure campaign against the company.

Groups affiliated with ALEC’s voter ID measure, including the beer and wine wholesaler associations, should be aware that they are going to be featured targets, said Robinson.

ALEC Executive Director Ron Scheberle released a statement April 11 responding to the “intimidation campaign” against the group. “We are not and will not be defined by ideological special interests,” he said, “who would like to eliminate discourse that leads to economic vitality, jobs and fiscal stability for the states.”

Color of Change is aiming its latest effort at ALEC members Johnson & Johnson, State Farm and AT&T, which sponsored last year’s ALEC conference to the tune of $50,000. Other progressive groups are targeting pharmaceutical giants Pfizer and GlaxoSmithKline.

Robinson claims ALEC has long provided corporations a behind-the-scenes vehicle for their legislative agendas.

“When corporations are giving money to a group like ALEC, they shouldn’t get a free pass on ALEC’s policies,” said Robinson.

Beer and wine wholesalers behind legislators pushing controversial voter ID laws

A delivery man stacks cases of Guinness and Heineken beer in New York.Mark Lennihan/AP

Reprinted by Permission © 2012, The Center for Public Integrity®

NY City Bar White Collar Crime Institute

The National Law Review is pleased to bring you information about the inaugural White Collar Crime Institute, on Monday, May 14, 2012 from 9 a.m. to 5 p.m. in New York City, NY.

This excellent review of developments in criminal and regulatory enforcement has been organized by our White Collar Criminal Law Committee, chaired John F. Savarese of Wachtell Lipton Rosen & Katz. Our program will feature keynote addresses by Preet Bharara, United States Attorney for the Southern District of New York, and Eric Schneiderman, Attorney General of the State of New York. The panels on key legal and strategic issues will include senior government officials, federal judges, academics, general counsel of leading New York based corporations and financial institutions, and top practitioners in the field. We have crafted the program to maximize their value for white collar practitioners and corporate counsel.

Plenary sessions will focus on:
  • Providing perspectives of top general counsel concerning the challenges they confront in this new era of expanded corporate prosecutions
  • Discussions of the increasing importance of media coverage in these cases and its impact on prosecutorial decision-making.

Break-out sessions will address:

  • Techniques for winning trials
  • Ethical issues presented by white-collar corporate investigations
  • Trends in white-collar sentencing, and
  • The special challenges of handling cross-border investigations.

Organized Labor’s Big Day: Are You Ready?

The National Law Review recently published an article by R. Scott Summers of Dinsmore & Shohl LLP regarding Changes that Affect Private Sector Employers:

On April 30, 2012, just a few short weeks away, two critical changes that will affect just about every private sector employer are slated to go into effect. Whether your organization has a union, or is union-free, these changes could have important implications for your workplace policies and will affect the way you handle issues during union organizing campaigns.

As of April 30, 2012, most private sector employers1 – union and non-union – will be required to post a notice entitled “Employee Rights Under the National Labor Relations Act (NLRA).” The original effective date for posting this notice was January 31, 2012, but that date was pushed back until this spring. Among other things, the notice informs employees that they have the right to:

  • organize a union
  • discuss wages, benefits and other terms and conditions of employment with co-workers
  • strike and picket
  • choose not to participate in such activities.

The notice also lists examples of unlawful employer conduct and provides information about how to file unfair labor charges against an employer.

None of the various legal challenges to this controversial National Labor Relations Board (NLRB) posting rule have yet been effective. Earlier this month a U.S. District Court Judge upheld the NLRB’s rule requiring the posting. The Judge noted among other things, that the employers had not established that they would suffer irreparable harm if the posting requirement were allowed to take effect. This was particularly the case, according to the judge, in light of her prior order invalidating the portion of the NLRB’s rule that made the mere failure to post the notice an unfair labor practice. The Judge also noted that the public interest also favored denying the employers’ requested injunction because the notice was intended to increase employees’ awareness of their rights, which the judge observed was “undoubtedly in the public interest.”There is another legal challenge to the posting rule pending in a federal District Court in South Carolina, but no decision has been issued in that case and there is no reason to expect one will be issued before April 30.

The poster is available on the NLRB’s web site at www.nlrb.gov. Also, various businesses which offer reproductions of government-required employment postings have already developed products that incorporate the new NLRB posting.

In addition to the requirement of posting a notice of employee rights under the NLRA, the NLRB has recently confirmed its plan to launch a website designed to inform nonunion employees of their rights under the NLRA. The NLRB’s focus in launching the website is to reach and educate nonunion employees about their right to engage in protected, concerted activity under the NLRA. As a supplement to the website, the NLRB plans to distribute educational brochures containing examples of issues that have arisen in past and current cases before the NLRB. The brochures, which will be offered in English and Spanish, will be distributed through advocacy groups and other federal agencies, such as the Department of Labor.

Obviously these two initiatives taken in tandem may serve to push non-union workforces to consider unionization. Additionally, the increased awareness of the right to bring a complaint against an employer regardless of one’s union membership will certainly result is an increase in the number of complaints filed with the NLRB.

The other big change, also taking effect on April 30, 2012, is a new rule that will revamp aspects of the union election process. What will this mean for your business?

  1. elections will proceed quicker than ever before
  2. you will have fewer opportunities to raise challenges throughout the election process

These rules illustrate the importance of engaging in union prevention efforts long before organizing begins.

The rule, popularly referred to as the “quickie elections” rule, will change the process for contesting union petitions and limit employers’ opportunities to challenge certain aspects of the election process before a union election. The NLRB’s goal is to speed up the election process by mandating that certain election issues be dealt with after the union election. (See our Jan. 4, 2012 insightNLRB’s New “Ambush Elections” Rule).

Eliminating pre-election appeals, limiting decisions on critical issues until after the election, and speeding up the election process, could substantially reduce the amount of time an employer has to communicate with its employees before an election. In fact, the election “campaign period” could be reduced to just a few weeks. Under the current rules, elections are usually scheduled at least a month after a union petition is filed.

A recent study conducted by the Heritage Group’s labor policy expert James Sherk estimated that the new election rules will dramatically increase the rate of unionization. Sherk cites a Bloomberg Government analysis to observe that a majority of workplace union elections are decided by five or fewer votes. What’s more, “cutting the time between a request for an election and the ballot increases the chances union supporters will prevail,” according to the study. Unions win 87 percent of elections held 11 to 15 days after a request, a rate that falls to 58 percent when the vote takes place after 36 to 40 days, according to the researchers.

The 11 to 15 day timeframe is very close to what the new NLRB rule is expected to achieve. The ambush election rule will trim the time between an election request and the election itself to 10 days or so, a significant drop from the current average of 31 days.

“If a broader set of elections were to occur more quickly,” wrote Bloomberg analysts Jason Arvelo and Ian Hathaway, “the likely outcome would be more organizing drives, a higher success rate for unions and ultimately more union membership.”

Practical Impact for Employers
In the meantime, what is the practical impact of these new rules on employers? To be sure, the new rules will result in employees being more aware of the NLRB and how to file unfair labor practice charges. They will also result in quicker elections in cases with contested unit and eligibility issues. Quicker elections certainly mean less time to communicate with employees during the election period.

Unions often plan organizing drives before they actually request a workplace election, while employers, who may not be aware of the effort, are forced to make their case only during the period between an election request and the actual election. Hence, shortening that period of time is more prohibitive to an employer’s ability to make the case against unionization than a union’s ability to lobby for it. Employees will hear the other side of the story only from management. Employers, not union organizers, will explain that unions often do not achieve their promised wage increases, but they always take up to 2 percent of workers’ wages in dues. Employers will also point out patterns of union corruption and clauses in union constitutions that levy stiff fines against workers who stray from union rules. Employers are free to tell workers what the union organizers do not.

Savvy employers should have strong employee relations policies and programs in place long before a petition. Such programs should establish open communication channels, provide for employee recognition, and implement competitive wages and benefits among other things. Implementing this type of program will not only help avoid a unionization drive in the first instance, but also will help build employee trust and establish efficient lines of communication that could be vital during a shortened pre-election period.

Employers should also consider training managers about permissible and prohibited conduct under the NLRA and conducting their own education programs, advising employees of their rights under the NLRA, and reminding employees of internal complaint procedures available to them.

Conclusion
2012 is already shaping up to be another eventful year at the NLRB. In coming insights we will further comment on the areas discussed here, as well as several other noteworthy trends. These include, among other things, the Board’s continual focus on social media cases and changes to their General Counsel’s willingness to defer to the grievance and arbitration process in some cases. Finally, Chairman Pearce’s stated desire for the Board to become known as “the resource for people with workplace concerns that may have nothing to do with union activities” promises a continuation of the Board’s focus on protected concerted activity cases in the non-union context. As always, we will continue to monitor and analyze these changes and their implications for employers.
_______________

(1) Excluded from coverage under the National Labor Relations Act are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors.

© 2012 Dinsmore & Shohl LLP.

California Women Lawyers 2012 Annual Conference

The National Law Review is pleased to bring you information about the upcoming California Women Lawyers 2012 Annual Conference:

CWL’s 2012 Annual Conference

“Practicing Law in the 21st Century: Women Lawyers in Power Positions”,

California Women Lawyers 2012 Annual Conference

featuring Morning Speaker Patricia K. Gillette, Esq., Partner, Orrick, Herrington & Sutcliffe and

Keynote Luncheon Speaker Catherine Lacavera, Director of Litigation, Google, Inc.

Friday, April 20, 2012

Crowne Plaza Cabana Hotel

Palo Alto, California

The Growing Corporate Threat of Taxpayer Identity Theft Fraud

The National Law Review recently published an article by Latour “LT” Laffferty of Fowler White Boggs P.A. regarding Identity Theft:

Identity theft continues to be a growing problem nationwide, but particularly in Florida which continues to lead the nation per capita in reported incidents of identity theft according to the Federal Trade Commission (FTC), a national clearinghouse for consumer fraud complaints. Taxpayer identity theft fraud, a subset of identity theft in general, is the most prevalent form of identity theft according to the FTC which reported that tax-related identity theft incidents increased from 51,702 in 2008 to 248,357 in 2010. This is a dramatic increase from the 35,000 instances of employment-related identity theft cases reported in 2007.

Taxpayer identity theft fraud involves not only the theft of someone’s identity but also the filing of a fraudulent tax return using the victim’s social security number to receive a tax refund often totaling more than $9,000.00. The IRS identified and prevented the issuance of more than $14 billion in fraudulent refunds in 2011. A 2008 report issued by the Treasury Inspector General for Tax Administration (TIGTA), an IRS watchdog, stated that the prevention of taxpayer identity theft fraud is an employer’s issue involving the security of their systems and data. According to TIGTA, 938,664 of the 2.1 million fraudulent tax returns filed in 2011 involved identity theft and totaled $6.5 billion. The stolen information includes the person’s name, date of birth and social security number or Medicare beneficiary number.

The latest twist, however, is that your own employees are in on the crime as law enforcement agencies are reporting that employees at many businesses that compile personal information are misappropriating and selling the information to thieves who are filing fraudulent tax returns. The Centers for Medicare and Medicaid Services (CMS) issued a Fraud Alert in February 2012 warning healthcare providers that perpetrators are misappropriating the identities of Medicare beneficiaries from “employers, schools, hospitals, and prisons” but any businesses that store personal information are at risk from current or prospective employees. Recent law enforcement arrests report finding suspects with massive quantities of tax refunds and lists of prospective employers to apply for jobs with the specific intent to steal taxpayer identities from their databases.

The reality of this emerging threat is that perpetrators are actually targeting organizations for employment so that they can specifically breach their data security and commit identity theft and aid those committing tax refund fraud. These organizations have both a fiduciary and legal duty to safeguard that personal information, but also a legal duty to notify those consumers who they can reasonably identify that their personal information has been stolen.

©2002-2012 Fowler White Boggs P.A.

ICC Institute Masterclass for Arbitrators

The National Law Review is pleased to bring you information about the upcoming ICC Conference  Masterclass Arbitrators:

Join us for an intensive 2 1/2 day training for professionals interested in working as international arbitrators!

June 4-6, 2012 at ICC Headquarters in Paris.

More Wisconsin DNR Permit Streamlining: Piers, General Navigable Waterway Permits, and Environmental Permit Notice Procedures — Governor Walker Signs 2011 Wisconsin Act 167

On April 2, 2012, Governor Walker signed into law 2011 Wisconsin Act 167 (the Act), the latest legislative effort to streamline the Wisconsin Department of Natural Resources (DNR) permitting process. The Act’s primary focus is on the substance and procedures of navigable waterway permitting under Wis. Stat. ch. 30, especially piers, with additional revisions to the public notice procedures of the air, wastewater, solid and hazardous waste, and remedial action statutes.

The revisions made by the Act take effect on August 1, 2012 for all but a few of the pier provisions which are effective immediately upon publication (noted below).[1]

A. Chapter 30 Navigable Waterway Permitting

These amendments fall into four broad categories: piers, grading permit exemptions, general permits and individual permits.

1. Piers

The DNR’s regulation of piers on navigable waterways has been a matter of controversy and legislative attention for many years. Act 167 is the latest installment.

In 2004, Wisconsin enacted a major legislative reform package called the “Jobs Creation Act”, making significant revisions to the sections of Wis. Stat. ch. 30 that govern permits for activities affecting navigable waterways. The Jobs Creation Act formalized three permit categories: exemptions, general permits, and individual permits; and established related time frames, hearing and appeal procedures. To implement these legislative directives, the DNR embarked on a major rulemaking effort to adopt general permits and establish the criteria and procedures for issuance of individual permits. Significant revisions to the rule addressing piers, NR 326, were proposed but not enacted with the remainder of the rules due to public controversy over the proposed revisions. See our Client Alert on the Jobs Creation Act.

The DNR continued its efforts to revise and update NR 326 with respect to piers and pier standards, but to no avail. Ultimately, the Legislature stepped in and enacted 2007 Wisconsin Act 204, resolving the debate by exempting smaller piers from the need to obtain a permit and creating a cut-off date and pier registration process for larger piers. These larger piers could also be exempt from the permit requirement if they were placed before February 6, 2004 (i.e., they were “grandfathered”) and registered with the DNR by April 1, 2011. 2011 Wisconsin Act 25 subsequently extended the registration date to April 1, 2012.

Effective immediately,[2] Act 167 has eliminated the February 6, 2004 “grandfathering” date and the entire pier registration process for the larger piers.[3]The existing exemption for smaller piers is maintained with minor clarifying revisions to the language.

As a result of Act 167, the following piers are exempt from the requirement to obtain a permit:

  1. The pier meets the following criteria:

a. No more than 6’ wide and extends no further than to a point where the water is 3’ deep or deep enough to moor a boat;

b. No more than two boat slips for the first 50’ of riparian owner’s shoreline footage and no more than one boat slip for each additional 50’ of footage; and

c. A loading platform may be more than 6’ wide if the surface area of the platform is no more than 200 sq. ft.[4]

  1. The pier does not meet the criteria listed under sub. 1, but is an existing pier (i.e., was placed on the bed of the waterway before April 17, 2012[5]) regardless of whether or not it has been registered, UNLESS:

a. The DNR notified the riparian owner before April 17, 2012[6] that the pier is “detrimental to the public interest”; or

b. The pier “interferes with the riparian rights of other riparian owners.”[7]

Further, the DNR is prohibited from taking enforcement action against the riparian owner of any pier if the DNR issued either a permit or a written authorization for the pier and the pier is in compliance with that permit or authorization,[8] and a pier owner may relocate or reconfigure the pier so long as the pier is not enlarged.[9]

2. Grading permit exemption

Act 167 has also eliminated the need to obtain duplicative state permits to move dirt on the bank of a navigable waterway. Wis. Stat. s. 30.19 regulates grading activities on the waterway bank. Wis. Stat. ch. 283 regulates the management of stormwater from land disturbing activities (e.g., construction). Both of these provisions are directed at protecting water quality from dirt that is disturbed and can run off as a result of site work.

Effective August 1, 2012, land grading activity on the bank of a navigable waterway is exempt from the requirement to obtain a s. 30.19 permit if it is authorized by a stormwater discharge permit issued under s. 283.33. If the land grading is authorized by a county permit issued under its shoreland zoning ordinance, it is similarly exempt from the requirement to obtain an s. 30.19 grading permit from the DNR.[10]

3. General permits

If a regulated project or activity is not exempt from the requirement to obtain a permit, it must be authorized by either a general permit or an individual permit. General permits are written to cover any number of projects or activities that can meet a standardized set of criteria, whereas an individual permit is written specifically for that project. As a result, general permits are ultimately time savers. Changes made in Act 167 maximize the DNR’s authority to issue general permits under ch. 30 and streamline the process for doing so.

The Act maximizes the DNR’s authority to issue general permits by expanding the universe of activities for which the DNR can issue general permits to include any activity regulated under ch. 30.[11] The Act streamlines the process for doing so by exempting general permits from the definition of “rule”,[12] eliminating the lengthy and cumbersome procedure for adopting rules, and replacing that procedure with a public comment period and a newly-created legislative committee review process.[13]

Any general permit must contain requirements and conditions that assure the activity being authorized “will cause only minimal adverse environmental impacts, will not materially interfere with navigation, and will not have an adverse impact on the riparian property rights of adjacent riparian owners.”[14]

Once a general permit is issued, the process works like this: If you believe your activity meets the eligibility criteria you apply to the DNR for “coverage” under the general permit no less than 30 days before beginning the activity. If the DNR does not request more information or otherwise inform you that your activity does not qualify for the general permit within that 30-day period, the activity is considered authorized and you are legally free to proceed. The DNR may make one request for additional information during that 30-day time period; if the DNR does so, the time it takes you to provide that information is added to the 30 days the DNR has to respond to your application.[15]

Once issued, a general permit is valid for five years. Regardless of the expiration date of a general permit, an activity authorized under a general permit remains authorized for five years from the date of coverage or until it is complete, whichever occurs first. The DNR is authorized to renew, modify and revoke general permits following the same procedures used to issue the general permit initially.[16]

The net effect of these revisions is to invest the time initially in developing and issuing the general permits so that as many activities as possible can be authorized using these streamlined procedures. For activities that don’t meet the general permit criteria, an individual permit option remains available.

4. Individual permits

Act 167 makes a few revisions to the procedures for issuance of individual permits, also designed to tighten up the timelines. The primary revisions conform these procedures to the procedures included in the recently-enacted Wetlands Reform Bill (2011 Wisconsin Act 118) so that the procedures for navigable waterway permits issued under ch. 30 and for wetland water quality permits issued under ch. 281 are the same.

Here is how it all works:[17]

a. Within 30 days of receipt of the individual permit application, the DNR determines if the application is complete/incomplete:

  • If complete, THE DNR notifies the applicant and the date of that notification becomes the “date of closure”; the date of closure drives subsequent deadlines as described below.
  • If incomplete, the DNR notifies the applicant of the deficiency/ies within the same 30-day time period; the DNR is limited to one request for additional information within the same 30-day time period; within 10 days of receipt of the requested information, the DNR notifies the applicant if the application is complete/incomplete (if still incomplete, the DNR and applicant can agree to additional information the applicant will provide); the date of this second notification becomes the date of closure.
  • If the DNR fails to meet this 30-day or 10-day time period, the date of closure becomes the last day of either the 30-day or 10-day time period.

b. Within 15 days of the date of closure, the DNR issues the public notice of pending application.

  • The notice may include notice of a public hearing if the applicant requests it.
  • If not, any member of the public may request a public hearing within 20 days of issuance of the public notice; or with or without a request, the DNR may decide to hold a public hearing if it determines “there is significant public interest” to do so.
  • The DNR must issue a public notice of the hearing within 15 days of receipt of a hearing request or its own decision to hold a hearing; the public comment period closes 10 days after the hearing is held.

c. Within 20 days after the public comment period has ended if a hearing is held, or within 30 days after the public comment period has ended if no hearing is held, the DNR issues its decision to either issue or deny the permit.

d. If the DNR fails to comply with these time periods, the permit is considered to be issued and the activity may proceed, although the DNR may impose terms and conditions on the permit “that are consistent with the applicant’s basic proposal.”[18]

The DNR’s decision to issue or deny the permit is subject to challenge in either or both an administrative contested case hearing under ch. 30 and judicial review under ch. 227. The ch. 30 contested case procedures were significantly revamped in the Jobs Creation Act (2003 Wisconsin Act 118). Those procedures remain intact under Act 167[19] and are summarized in our Client Alert on the Jobs Creation Act.

B. Public Notice Procedures for Ch. 30 and Other Environmental Statutes

Act 167 also brings the DNR’s public notice procedures into the digital age by requiring the DNR to:

  1. Create an electronic notification system to provide public notice;[20]
  2. Post public notices on the DNR website;[21]
  3. Post on the DNR website any navigability determinations DNR makes – which may be relied upon;[22]
  4. Post (to the greatest extent possible) the current status of any application for a permit under chs. 30, 281 to 285, or 289 to 299, and any hearings scheduled on the application.[23]

Importantly, the Act also specifies that the date on which the DNR first posts the public notice on its website is the date the notice is considered to be issued, for purposes of permits to be issued under ch. 30,[24] Wisconsin Pollutant Discharge Elimination Systerm permits to be issued under ch. 283,[25] air construction and operation permits to be issued under ch. 285,[26] solid and hazardous waste facility approvals to be issued under chs. 289 and 291,[27] and remedial actions to be authorized under ch. 292.[28]

C. Other revisions

  1. Act 167 makes other revisions which address:
  2. Repair of boathouses[29]
  3. Expedited procedures for approval of low hazard dams[30]
  4. Bridge standards[31]
  5. Use of air dispersion modeling for minor source determination[32]

The DNR staff will use the time between now and August 1 to create application forms, internal procedures and guidance, and otherwise prepare to implement these statutory directives. For more information, please contact the author of this client alert.


[1] Section 131 of the Act provides that the Act is effective on the first day of the forth month after publication, with the exception of certain provisions involving piers which become effective the day after publication. Publication is expected to be April 16, 2012. Thus the majority of the Act will be effective August 1; those limited pier provisions are expected to be effective on April 17, 2012.

[2] See Endnote 1

[3] s. 30.12(1k)(b) as amended

[4] s. 30.12(1g)(f)

[5] See Endnote 1

[6] See Endnote 1

[7] s. 30.12(1k)(b)1m. and 2.

[8] s. 30.12(1k)(cm)

[9] s. 30.12(1k)(e)2.

[10] s. 30.19(1m)(f) and (g)

[11] s. 30.206(1)(am)

[12] s. 227.01(13)(rt)

[13] s. 30.206(5m)

[14] s. 30.206(1)(am)

[15] s. 30.206(3)(a)

[16] s. 30.206(1)(b)

[17] s. 30.208(2)-(4)

[18] s. 30.208(2)(d)

[19] s. 30.209

[20] s. 30.206(2b)(a)

[21] s. 30.206(2b)(a)

[22] s. 30.102(1)

[23] s. 30.102(2), 299.l7

[24] s. 30.206(2b), 30.208(5)(bm)

[25] s. 283.39(lm), 283.63(1)(a)

[26] s. 285.61(5)(c), 285.62(3)(c)

[27] s. 289.25(3), 289.41(1m)(g)1., 291.87(3)

[28] s. 292.31(3)(f)

[29] s. 30.121

[30] s. 31.12(5)

[31] s. 84.01(23)

[32] s. 285.63(11)

© MICHAEL BEST & FRIEDRICH LLP

Upcoming Spring 2012 CLE National Institutes

The National Law Review is pleased to bring you information about the ABA’s Upcoming Spring 2012 CLE National Institutes:

Learn and network at these in-person,full-day or multi-day seminars held live in various locations across the country that draw lawyers from across the nation.