Category: Administrative & Regulatory

Oh the Horror: No Work for Hire in Friday the 13th Screenplay

The US Court of Appeals for the Second Circuit affirmed a summary judgment grant, ruling that an author was an independent contractor when writing the screenplay for a horror film and entitled to authorship rights, and therefore entitled to exercise his copyright § 203 termination right. Horror Inc. v. Miller, Case No. 18-3123 (2d Cir. Sept. 30, 2021) (Carney, J.)

Victor Miller is an author who has written numerous novels, screenplays and teleplays. Sean Cunningham is a producer, director and writer of feature films and is the general partner of Manny Company. Miller and Cunningham were close friends who began working together around 1976 and collaborated on five motion pictures in their first five years working together. Miller was a member of the Writers Guild of America, East (WGA) and was a signatory of their Minimum Basic Agreement (MBA), which was the collective bargaining agreement at the time.

In 1979, the success of the horror film Halloween inspired Cunningham to produce a horror film. Cunningham reached out to Miller and they orally agreed that Miller would write the screenplay for their upcoming project. The two came to an agreement using the WGA standard form. Miller then began developing the screenplay and the two worked closely together in discussing ideas for the film. Miller picked his working hours but was responsible for completing drafts based on the production schedule of the film. Cunningham had no right to assign additional works to Miller beyond the screenplay.

The dispute concerns whether, for Copyright Act purposes, Miller was an employee or independent contractor of Manny Company, of which Cunningham was the general partner. Cunningham argued that he taught Miller the key elements of a successful horror film, that he gave significant contributions and that he had final authority over what ended up in the screenplay. Miller agreed that Cunningham gave notes but stated that Cunningham never dictated what he wrote. The parties agreed that Cunningham did provide the ideas for making the movie killings “personal,” that the killer remain masked and that they kill a major character early. Miller received “sole ‘written by’ credit” as the screenwriter.

Horror Inc. (successor to Georgetown Horror) financed the project and was given complete control over the screenplay and film. Manny assigned its rights in the film and screenplay to Horror, which registered the copyrights. In the registration, Horror was listed as the film’s work made for hire author with a credit given to Miller for the screenplay. The initial film was a huge hit and has spawned 11 sequels.

In 2016, Miller attempted to reclaim his copyright ownership by invoking his termination rights under 17 U.S.C. § 203 and served notices of termination to Manny and Horror. The two responded by suing Miller and seeking a declaration that the screenplay was a “work for hire,” and therefore Miller could not give a valid termination notice. The district court granted summary judgment to Miller, stating that Miller was the author as he did not prepare the screenplay as a work for hire and that Miller’s termination notice was not untimely. Manny and Horror appealed.

In its de novo review, the Second Circuit considered the district court’s determination as to whether Miller was an employee or an independent contractor based on its balancing of the 13 factors established by the Supreme Court in its 1987 ruling in Community for Creative Non-Violence v. Reid. Because a “work made for hire” is a statutory exception to the general rule of author ownership of a copyright, the party claiming the exception bears the burden of proving that the exception applies.

Manny and Horror argued that the screenplay was a work for hire as Miller was an employee under his WGA membership, that the district court erred for not considering the WGA collective bargaining agreement within the Reid factors and that the court incorrectly balanced the Reid factors by not giving more weight to Miller’s membership in the WGA or his collective bargaining agreement.

The Second Circuit found that Miller was not an employee, explaining that a finding of employment status for copyright claims is determined under copyright law and not labor law. The Court determined that Miller’s employment status under the National Labor Relations Act (NLRA) and the terms of his membership in the WGA do not remove the determination of employment status under the Copyright Act and principles of agency. The Court found that the district court correctly declined to consider NLRA arguments and was correct to focus on common law principles and the Reid factors.

After finding that the WGA membership was not dispositive, the Second Circuit determined that the WGA collective bargaining agreement should not be considered as an additional Reid factor. The Court found that although Miller’s WGA membership could play a role in how the relationship between the parties played out, membership itself would not alter the Reid factors analysis.

The Second Circuit approved the district court’s application of the Reid factors and its refusal to accord “great weight” to Miller’s union membership. Rather, the Court rejected the proposition that the WGA membership should be given “great weight,” explaining that the membership was not to be treated as a separate factor and that union membership was relevant only to the extent it played into the analysis of the Reid factors. Ultimately, the Court concluded that Miller was an independent contractor and had sufficiently rebutted the statutory presumption given to Georgetown’s copyright registration listing the work as for hire.

© 2021 McDermott Will & Emery

Article By Joshua Revilla of McDermott Will & Emery

For more articles on IP law, visit the NLR Intellectual Property section.

 

Consequences of Brexit: Not to Be Underestimated

After the fuel shortages, will there be a shortage of mineral water in UK restaurants…?

In July, the UK made it clear that no EU mineral waters can be exported to the UK from January 7, 2022, unless the UK authorities grant formal approval to do so in the coming months. (The decision does not apply to exports marketed exclusively in Northern Ireland). Brands such as Evian and San Pellegrino would be affected if the UK doesn’t give approval.

If no approval is passed in the UK, the EU will almost certainly hope to adopt an equivalent measure of non-recognition of the UK’s natural mineral waters previously marketed within the EU.

© 2021 Keller and Heckman LLP

Article By Food and Drug Law at Keller and Heckman

For more articles on Brexit, visit the NLRGlobal section.

Legal Implications of Blockchain in Supply Chain: What’s Law Got to Do With It?

Blockchain in Supply Chain: Article 6

The advent of new technology brings along with it the murkiness of how the American legal system will treat such technology.  Before the rise of blockchain for instance, businesses were uncertain how courts would treat electronic records and signatures until the federal legislature enacted the E-Sign Act on June 30, 2000.1 To provide even more clarity to businesses, the National Conference of Commissioners on Uniform State Laws drafted the Uniform Electronic Transactions Act (the “UETA”)2 to provide states with a framework to enact laws governing the enforceability of electronic records and signatures.  Now, almost every state in the U.S. has adopted some form of the UETA,3 and industry heavily relies on electronic contracting.

The legislative process has already begun for blockchain technology. Arizona and Tennessee both enacted laws stating that (1) a blockchain technology signature is considered an electronic signature, and (2) a blockchain technology record is considered an electronic record.  Further, these laws say that courts may not deny a contract legal validity because the contract contains a “smart contract” term.4  Other states are also attempting to adapt their current commercial laws to blockchain technologies.  Wyoming, for example, is breaking ground by addressing blockchain’s impact on the attachment, perfection, and priority rules of Article 9 of the Uniform Commercial Code.5  Similarly, Delaware and Maryland have amended their general corporation and limited liability company laws to permit the use of blockchain technologies for creating and maintaining company records with respect to equity interests.6

Beyond when and how legislatures and courts will solidify blockchain technology as a valid platform for contracting, there are other possible legal questions and ramifications for the use of blockchain in the supply chain. Some possible areas of legal considerations follow below.

Potential Modifications to Contract Terms in Supply Agreements

As companies begin to implement blockchain solutions, drafters should give thought as to what contract terms to adjust in supply agreements and other commercial contracts related to the use of blockchain in the supply chain.  Some potential modifications to consider follow:

Blockchain Governance

Parties to a supply agreement will need to decide whether a supply agreement should detail which transactions can (or must) occur on the blockchain, or whether the parties should set forth which transactions should occur on the blockchain in a separate agreement governing the implementation, governance, funding and maintenance of the supply chain blockchain. Flexibility will be important as blockchain technology continues to evolve and becomes more prevalent, so it may be most practical for both parties to execute an addendum listing transactions that the parties can agree to update.

Requirements on Suppliers and Sub-suppliers

A buyer may consider whether it would be beneficial to contractually require its suppliers to join the buyer’s supply chain blockchain.  A buyer could take this approach a step further and extend it to sub-suppliers as well. A contract could require both the supplier and its suppliers to join the buyer’s supply chain blockchain, which would provide the buyer a deeper visibility into its supply chain. For smaller suppliers and sub-suppliers, the ability to keep up and participate in this evolving area may present a challenge that impacts their ability to compete for certain business.

Confidentiality

With multiple member blockchains, the parties may want to explicitly state whether or not a receiving party adding certain confidential information of a disclosing party to the blockchain would be considered a permitted disclosure by the receiving party.  The parties must also consider the contract’s provisions on removal and return of confidential information at the end of a contract with the immutability of blockchain in mind.

Purchase Orders and Payment Terms

If a buyer must place purchase orders or releases through the blockchain system, the parties will need to revise the ordering mechanism of the contract to reflect this process.  Additionally, if the parties plan to handle payment by blockchain smart contracts, the parties will need to revise the traditional approach of invoicing after shipment and paying within a certain period to account for the terms of any smart contract.

Product Acceptance

If the buyer will make payment automatically via smart contract at the time of product acceptance, the supply agreement should be very precise as to when product acceptance occurs.

Indexing and Shipping Costs

Many supply chain contracts use some form of indexing for raw materials or other cost inputs to adjust pricing periodically. Blockchain has the potential to significantly streamline this process by allowing parties to modify contract pricing that is linked to an index faster and easier by using a smart contract to rewrite the new price to the ledger and automatically update payments via blockchain based on the new contract pricing. Although traditionally raw materials have been the focus of indexing provisions, given the recent massive fluctuations in freight and container costs, contracting parties can share risk for fluctuating shipping costs by indexing through blockchain technology as well.

Force Majeure

When drafting force majeure provisions, the parties may want to explicitly define whether issues with the blockchain such as smart contract malfunction or compromise of a party’s access to the blockchain would be considered a force majeure event that can be relied upon by a party to excuse from performance under the contract. In most cases, parties may want to align this issue with whether existing language covers IT system issues.  If such issues are included as force majeure events, the parties should consider adding a threshold requirement that a party cannot claim force majeure for issues resulting from the party’s own failure to maintain industry-appropriate protective measures.

Effect of Termination

In the event of termination of a supply agreement, the parties will want to explicitly set forth any requirements to unwind the blockchain or terminate the related smart contracts. Alternatively, the effect of termination provisions could point to a separately executed agreement specifically dedicated to blockchain governance which would cover the rights and responsibilities of the parties if the supply agreement dictates the parties must unwind the blockchain.

Conflicts

In the resolving conflicts section of the supply agreement, which provides the order of precedence of contract terms in the event of conflicting language, the parties should detail how to resolve a conflict between a coded smart contract or other blockchain terms and conditions and the text of the supply agreement.

Entire Agreement

When drafting the entire agreement section of a supply agreement, the parties will want to identify what, if any, terms and conditions set forth in the applicable blockchain network are part of the agreement between the parties and then provide that all other terms are not part of the agreement.

Service Level Credits

For logistics agreements, the parties may want to define key performance indicators (KPIs) or service level agreements (SLAs) based on data from the blockchain, because that data is considered trusted.  For instance, the parties could define processing time to receive inventory to a warehouse (i.e. “dock-to-stock” time) as the difference between the date and time of receipt of product at the warehouse and the date and time of stock of product in the warehouse, in each case, based on the data uploaded by any applicable IoT device to the supply chain blockchain.

Data Privacy Considerations for Blockchain

While blockchain is considered a highly secure means of data storage, paradoxically, some of blockchain’s other attributes (being decentralized and immutable), pose a compliance barrier with many data privacy regulations, such as the California Consumer Privacy Act of 2018 (Cal. Civ. Code § 1798.105) (“CCPA”) and the EU’s General Data Protection Regulation (“GDPR”).

Blockchain’s decentralized platform makes it tricky to determine which privacy laws apply.  The nature of a decentralized platform permits processing of an individual’s information in any number of locations around the world, because an individual’s personal data (such as a person’s full name, social security number, or email address) could be located on different nodes, each of which could exist in a different jurisdiction.  As each jurisdiction regulates the processing of personal data differently, attempting to manage the plethora of privacy laws, some of which may conflict with others, could be a daunting, if not impossible and cost-prohibitive effort.

The immutable nature of blockchain also poses a potential issue for data privacy.  For instance, Article 17 of the GDPR as well as the CCPA set forth the “right to be forgotten.”  The GDPR and CCPA require that processors of personal data erase the personal data of a person under certain circumstances, including if the person withdraws consent for the processing of their personal data.7

Because of the decentralized and immutable nature of blockchains, some potential approaches to handling personal data related to transactions on the blockchain are to store the personal data completely off the blockchain, or store only a hash of the personal data (a one-way mathematic function that represents the personal data, but from which the personal data cannot be determined) on the blockchain while storing the actual data on a private encrypted database.  Taking another approach, programmers could write smart contracts to allow for the revocation of access rights or deletion of information on the blockchain.8  Companies would have to customize any supply chain blockchain solution for data privacy compliance issues based on what personal data will be stored, what jurisdictions the data will be stored in, and the nature of the related blockchain concept.

Blockchain Hash Creation

Smart Contracts

Smart contracts are not necessarily contracts in the traditional sense.  Rather, a smart contract is a computer program stored on a blockchain that performs an action when triggered by an event. Smart contracts take the agreement of two adverse parties to the next level.  When two parties execute a traditional written agreement, they are promising to act in accordance in that agreement.  When two parties implement a smart contract, it is not a mere promise; they have already effected an outcome.

As previously discussed, certain states such as Arizona and Tennessee have laid the groundwork for courts to enforce smart contracts.  If blockchain continues to become more prevalent in business, the need for decisive regulations will pressure other states to follow suit and address smart contracts through legislation.

See Article 5 of this “Blockchain in Supply Chain” series for more information on smart contracts.

Antitrust Considerations for Blockchain

Blockchain provides an avenue for competitors to cooperate, particularly in a consortium or other permissioned structure.  As with any collaboration or joint venture among competitors, such collaboration raises potential antitrust risks and can create a slippery slope to claims of collusion and anticompetitive exclusionary conduct, among other anticompetitive practices.

For most blockchain collaborations among actual or potential competitors, the greatest practical antitrust risk involves collusion and implicates Section 1 of the Sherman Act.9  Section 1 prohibits agreements that unreasonably restrain trade, such as agreements among competitors to fix prices, rig bids or allocate customers or markets.  Oftentimes, courts can infer such anticompetitive agreements based on the exchange of competitively sensitive information among the participants.  Blockchain participants therefore must be mindful of the heightened antitrust risks that come into play should the blockchain arrangement involve the sharing of competitively sensitive information, such as pricing, costs, output or customer specific information.

To minimize this antitrust risk, particularly in a blockchain consortium involving competitors, participants should either avoid the exchange of competitively sensitive information altogether or narrowly tailor the information exchanged and adopt other appropriate safeguards where reasonable. Safeguards to consider include setting up permissions so that only intended recipients of data have access to a block of information and adopting read permission restrictions to prevent employees who have responsibility over pricing, marketing, strategy and competitively important strategic decisions from accessing competitively sensitive information shared on the blockchain.  Aggregating or anonymizing sensitive data or limiting the information exchange to historical information only (instead of current or future data) could also minimize the antitrust risks associated with any information exchange that is necessary to the blockchain arrangement. In any event, participants in a blockchain arrangement should be prepared to articulate why the participants need to exchange the specified type or level of information to achieve pro-competitive benefits of the blockchain arrangement.

Consortium blockchain participants may also face antitrust liability under Section 1 if they reach an agreement to exclude competitors from the blockchain collaboration where accessing a blockchain has become essential to doing business in a particular market or industry. Participants should document and consistently enforce well-defined and reasonable criteria for membership.  Participants should also exercise additional caution in restricting membership if development of the blockchain technology or any related applications involve standard-setting or the adoption of standard, essential patents, both of which present unique antitrust risks.

Relatedly, antitrust scrutiny may also extend to the way in which consortium members approve transactions.  Nodes (or members of the supply chain) validate transactions to be added to a blockchain in accordance with certain pre-determined validation rules.  Then, nodes only add transactions to a blockchain if the rules for adding a block to the blockchain are satisfied (“consensus”).  Antitrust risk can increase where these consensus mechanisms prioritize clearance of transactions by certain members or decline to validate transactions by particular parties without a legitimate and objective basis for doing so. Participants should ensure the validation and consensus mechanisms use objective criteria and that no single participant controls these processes.

In addition to the most prevalent antitrust risks highlighted above, participants should consider other potential antitrust complications when forming or participating in a collaboration with competitors to develop blockchain technology and related applications.  Participants should be mindful of these risks and consult antitrust counsel early in the process as they harness the benefits of blockchain technology to meet their supply chain needs.

1The Electronic Signatures in Global and National Commerce Act (E-Sign Act), FDIC Consumer Compliance Examination Manual – January 2014

2 Final Act, With Comments: Uniform Electronic Transactions Act (1999), Uniform Law Commission (last retrieved on September 8, 2021)

3 Uniform Electronic Transactions Act (UETA), Practical Law (last retrieved July 22, 2021)

4 ARS § 44-7061; TN Code § 47-10-202

5 Wyoming’s Digital Assets Amendments: Marked Out or Missed Out? A Review of Recent Amendments to Article 9 of the Wyoming UCC, American Bar Association (October 1, 2019)

6 Id.

7 Art. 17 GDPR and Cal. Civ. Code § 1798.105

8 GDPR & Blockchain: At the Intersection of Data Privacy and Technology, BDP (Iast retrieved July 22, 2021)

9 15 U.S.C. § 1

Co-authored by Vanessa L. Miller. Aaron K. Tantleff. Peter Vogel. Eugenia Wang. Kathleen E. Wegrzyn.

© 2021 Foley & Lardner LLP

Legal Marketing Budgets with Good2BSocial [PODCAST]

Rachel and Jessica meet with Guy Alvarez, founder and CEO of Good2BSocial, to review legal marketing budget changes since the beginning of the COVID-19 pandemic.

Please read on below for a transcript of our conversation, transcribed through artificial intelligence.

Rachel

Hello, and welcome to Legal News Reach, the official podcast for the National Law Review. Stay tuned for a discussion on the latest trends, legal marketing, SEO, law firm best practices, and more.

Rachel

So my name is Rachel, a web content specialist for the National Law Review.

Jessica

And my name is Jessica and I do about the same.

Rachel

In this episode, we’ll be taking a look at legal marketing budgeting post COVID-19, with Guy Alvarez, founder and CEO of Good2bSocial. Would you like to tell our listeners a little bit about yourself?

Guy

Sure, Rachel. So as you said, my name is Guy Alvarez. I am a former practicing attorney. And currently I am the founder and chief engagement officer at Good2bSocial. Good2bSocialis a digital marketing agency that specializes in the legal industry. And basically what we do is we help our clients, law firms, as well as legal vendors and others, to leverage digital technology to accomplish their business objectives.

Jessica

We’ve worked with you guys before just on various things. So this is great, we get to have you in here and talk to you today. I’m excited, I’m excited to get started. Some things that are on legal marketers’ mind at this point with the covid 19 pandemic, hopefully coming to a close, what is the way they can handle their marketing budget? How has the pandemic affected the budgeting?

Guy

A great question, Jessica. And that’s a question I get a lot from both small firms as well as large law firms. So obviously, what’s changed significantly with COVID is the inability to really see other people in person, right. So a lot of firms in the past have dedicated their marketing budget, a lot of it has gone into conferences, or trade shows, or live events. And obviously, for the most part, those things aren’t happening today. Or if they’re happening, they’re happening in a very limited way. Also, people don’t really like to travel or travel as much. So that’s also made an impact in terms of their marketing budget, from the business development side. A lot of budget in the past has gone to client entertainment, right? So lawyers taking out clients dinners, or sporting events or theater or things like that. And those things aren’t happening either. So what we’re seeing is really a shift in terms of budget from the real world into the virtual world. And as a result, we’re seeing law firms spend a lot of their budget on digital marketing, right ways that they can enhance their website, ways that they can communicate to their clients and prospects, their knowledge, their experience, and basically stay top of mind and develop strategic relationships. So we’ve seen a lot of investment into webinars, it looks like almost every law firm is doing webinars these days, law firms are spending money on and creating podcasts like this one. So we’re working with a lot of firms who have decided to create one or more podcasts and they want to put it out. And then also firms are spending money on online advertising. More and more firms are struggling to take a dip into online advertising, whether that is paid social media like LinkedIn, and Facebook and Instagram, as well as Google ads and other forms of online advertising.

Jess

How much in general should a law firm look to spend on their marketing budget?

Guy

Great question. Historically, we have seen firms spend somewhere between two to 3% of their overall marketing budget on marketing activities. What we’re seeing now is firms are investing more closer to five to 6%. And the reason for that is because beat they don’t have the ability to get in front of their clients in person. So they’re looking to spend money to get in front of their clients through digital means.

Jess

That seems kind of interesting, especially since it’s shifting to online versus in person. Is that normal that it would double even though it’s digital now instead of you know, the wining and dining that hadn’t before?

Guy

Unfortunately, I feel like a lot of firms don’t know what they’re doing. So they’re wasting a lot of money, right? They’re spending money on advertising online without really understanding how to do it. So I’ll give you a perfect example. A lot of firms, especially corporate law firms right now are experimenting with LinkedIn advertising because LinkedIn is a great way to get in front of a professional audience. If you go to LinkedIn or if you talk to the LinkedIn sales people, they’ll basically tell you to spend as much as you possibly can, so that you can reach your target audience. So let’s say, let’s say you’re trying to reach in House counsel in the state of California, right? Let’s say you have a firm, and you really want to reach in House Counsel, and you go to LinkedIn, and LinkedIn will give you a recommended budget of between, let’s say, eight, and $20 per click, you know, that’s what they want you to bid, right. And so if you talk to LinkedIn, they’ll say, Oh, well, in this case, you should fit the $20. That way, you can make sure that your ad is going to be seen by your target audience. But the reality is, it doesn’t really work that way. Sure, if you’re going to bid more money, there is a possibility that more people will see it. But that’s not necessarily the case, you could bid less money. And if you have a really good offer, or a really good ad or post, people aren’t going to click on it, and then more and more people aren’t going to see it. It’s the same as if like, let’s say you went to an art auction, right? And someone’s was auctioning a painting. And the auctioneer said, Okay, we’re going to start the auctioning at $1,000 for this painting. And you raise your hand and you say, you know, a million dollars? Well, why would you do that? What you don’t know yet, you know, maybe you put it in for $2,000 $3,000 $10,000. So that’s why firms are spending money, but they’re not spending it in a productive, efficient manner. And part of the reason for that is that they’re just not familiar with how paid LinkedIn or other forms of advertising online, really work. And so that’s why we’re seeing more and more money spent, but not necessarily the most efficient type of spending.

Jess

So this is kind of a good Segway into my next question that I had. So how do firms know how to spend for a new law firm versus an established one?  A new law firm probably isn’t going to have the necessary background and know how to spend their money wisely.

Guy

So there’s two ways that you can, you know, make sure that you’re doing the best you can. One is you can hire an agency like ours, who has experience and knowledge and knows what they’re doing and has done it a billion times. Or you can train your team, right? invest in training, invest in getting them up to speed, so that when, when they’re doing it, they know what they’re doing.

Jess

I’m not surprised to hear that from you. I’m sure how many people you work with,they need help knowing how to budget. And that’s great, because that’s what you guys are there for to help guide them through that.

Guy

Yeah, and they could spend a little bit of money with us managing it, but at the end of the day, they’re getting a much better bang for their buck, because they’re not wasting a ton of money. I’ll give you another example. I see a lot of law firms that are doing Google advertising. And Google advertising can be really expensive, right? But what they’re doing is when they create the ad, they’re linking their ad back to their websites. And that’s a big No, no, you don’t want to link an ad back to your website, you want to link the ad to a landing page, where the visitor really has the option of either filling out a form or picking up the phone. If you’re sending them back to your website, they might forget why they thought there, they might start to explore other things. And all of a sudden, you wasted a ton of money, and you’re not getting the results that you wanted. So that’s just another simple example, of firms not knowing how to spend their money and spending their money in a non efficient way.

Rachel

So to sort of go off of that, we’ve spoken a little bit about how law firms should allocate their budget, and how they can best use their marketing dollars. But I was wondering if you could talk a little bit about what are the most important areas to focus on right now in terms of legal marketing spend.

Guy

Or so as I said, a lot of the money that used to go to trade shows conferences, sponsorships, you know, it’s not being spent anymore, because, you know, people aren’t going to real world events. So from my perspective, the best way to spend money is to give your audience your target audience and it could be either existing clients or new potential clients is to communicate to them the knowledge and the experience that your firm and that your attorneys have. And that’s why content is so important. Right, a lot of firms I know are like, Oh, you know, we want to improve our search engine visibility, we want to, you know, but they don’t understand that the only way to do that is by creating really good, valuable content. That’s the number one priority. Same thing with social media, if you’re not creating client centric, valuable thought leadership content, you’re not going to have a very successful social media strategy. So really, the focus should be first and foremost, on creating that really great content. And the way to do that is to really understand what your audience is interested in. They’re not necessarily interested in your awards, or your new hires or your qualifications, sure, that matters to them down the road. But right now, what they’re most interested in is, what their business and the problems or issues that they’re facing. So the more that you can put yourself in the shoes of your clients or your prospects, and create content that’s going to be really valuable and interesting to them, the more you’re going to have success from a marketing perspective. So I think first and foremost, the investment should be around client centric, thought leadership content. That’s number one. Number two, is I think you need to invest in a way to measure everything you’re doing, right? If I’m spending a ton of money, and then I asked you, well, you know, how are you doing? What are you getting out of it? And you don’t have an answer, then how can you possibly improve on what you’re doing? So you need the tools and technology to properly measure the effectiveness of your legal marketing? expenditures. And a lot of firms don’t have that, right. Some firms might measure and say, Oh, yeah, we look at Google Analytics. And I said, Great, well, what do you do after that? What do you do with the data? We send it to our lawyers, okay. And then what happens? Nothing happens. So if all you’re doing is looking at data, and not analyzing it, and not coming out with some meaningful insights out of it, then you’re not really gaining much. So you need to invest in technology. And in people that understand what’s working, what’s not working, and what you can do to adapt or change so that you can get the results that you want.

Rachel

We talked a little bit about measuring ROI and measuring how these campaigns are performing. What metrics should they be paying attention to? And how can they really get started?

Guy

That’s a great, great question, right? A lot of times, I speak to marketers, and they’re really frustrated, cuz they say to me, God, you know, we just got, you know, 1000 new followers on LinkedIn, or we just got 20 new likes on Facebook, or we just improved our traffic, we’re getting now 2000 unique visitors to our website. But the lawyers don’t care, right. And the reason the lawyers don’t care is you need to be able to tie your metrics to actual business objectives, right? lawyers don’t care how many likes or follows or shares are bought, they don’t care. They care about, did we get any new business? Or were we mentioned in an article or publication, or you know that we get a new speaking opportunity? So you need to closely tie your digital metrics into real business objectives? In order to really be able to quantify, yes, we did this invested investment, and this is what resulted out of it. And I’ll give you another example. So as I said earlier, a lot of firms, especially over COVID, you know, have invested heavily on webinars, it looks like every firm was doing a webinar almost every day. But if you ask most of them, you know, what did you do after the webinar? How did you follow up, most of them may be sent out an email, thanking everyone. And that’s it. So now you spent all this time, effort and money in creating a webinar, and you did nothing to follow up. And so that is the types of things you need to do is make sure that you’re not only investing in the creation, but also measuring the execution afterwards and have a plan for how you’re going to be able to turn website or webinar visitors or registrations into potential clients.

Jess

That’s interesting. So that long game of follow up, is that one of the ways these firms can make sure that they’re getting the desired ROI Is that just one of the techniques? or What else could they implement?

Guy

Yeah, that that’s a very important technique, right? Because one of the things I tell law firms is, don’t think about it just because you weren’t you attend a webinar, it doesn’t necessarily mean you’re ready to hire someone, you know, you might just be interested in the topic, or maybe your boss has asked you about it, but they may not be ready to hire you. So you have to invest in the long term. And you got to make sure that okay, we did the way when it was about 100 registrations, and out of those 100 registrations 50 people showed up. So now you’re gonna have to have a strategy for those people that showed up, you should have a strategy for the people that didn’t show up. And what you want to do is you want to stay top of mind, so that when the timing is right, when they actually have the need, they’re going to be like, Oh, yes, this firm, that they continue to email me about this topic, they certainly know what they’re doing. Let me reach out to them. Right. So that is, that is definitely one of the ways to do that. The other thing is, you need to be able to repurpose your content, right? There is a process called cope, which talks about create once publish everywhere, right? What that means is for every piece of content you create, you should find a way to repurpose it. So if we’re doing this podcast right now, maybe we can take the transcript of the podcast and create a blog post. And maybe since we’re doing a podcast and a video, now we can chop up this video into little segments. And maybe out of that you can have, you know, 2030 different social media posts. So again, it’s really about how you’re investing in the content creation, find a way to repurpose it, because the other thing is, everyone likes to consume content in a different way. Some people like to read, some people like to listen to podcasts, other people like to watch videos, other people like to look at infographics. So you should be able to repurpose that content in as many different ways as possible, so that people can consume it in whatever way they choose to consume.

The follow up part seems to be just like an industry thing. I think they’re trying to pump out as much content, especially being new to webinars, I’m sure they’re just cranking those out doing a webinar series and not thinking about, well, how do we stay on people’s minds, the content is valuable, right, because the people go to the webinar to gain insight on that topic that they’re interested in. But once they leave, that has now no longer occupies the brain at that point,

Right, or they’ll make the mistake while they’re doing a webinar, but they don’t record it the right. And so just because you had 100 people show up, there’s a lot of value to that webinar. So you should take that webinar, you should post it to your website, you should email about it. I mean, again, it’s not just a one time thing. Every time you build content, it’s another asset that you can build on. So that eventually people will find you and hire you.

Jess

When these law firms that are having all these issues with their budgets, when they come to you guys and ask for your help to any firm that may listen to this episode with you guys on it, what do you want to tell them? like three things that your expertise, you know, is a tried and true? What would you want to say to them?

Guy

So that’s a really great question. You know, one of the things that we’re really different about other agencies and other companies like us, is we don’t take a cookie cutter approach to any of our clients, right? I have a lot of times prospective clients will call call me and say, okay, we need to, we need to do some SEO on our website, or we need to create a podcast, or we need to redesign our website. And I said, Okay, well tell me more about that. What Why do you want to do that? What are your what is the business objective, right? So just because they think of something that might not necessarily be the best way to accomplish what they’re trying to accomplish. So we start off with every one of our prospective clients, we start off by having them fill out a questionnaire, and then we do an audit of their digital properties to kind of see where they’re at, where their competitors are at, and what their business objectives are, and we don’t charge for that. That’s something that we do. And once we do that, then I have another conversation and I say, Okay, this is what we saw, this is what you told me, based upon that on that this is what we would like to do. And then we come up with a very specific strategy for them. That would enable them to accomplish their goals. And sometimes this gets frustrating for some clients or prospective clients are like, well, I just want to quote How much does it cost? And I’m like, I’m sorry, you I’m not just going to give you a call.  I need to understand more about what you’re trying to do, what your competitors are doing and where you’re at today. And, you know, that’s worked really well for us. So the one thing I would say is, if you come to us, you’re going to be treated as a unique, very distinct client. And we’re gonna develop a unique and intuitive strategy, just for you, that is going to be different from any other clients.

Jess

I think that’s definitely the biggest part of marketing. If you want to be different, you can’t do the same old tried and true, or maybe what used to work, you know, even with this post COVID environment, you got to change it up. And yeah, I’m glad you mentioned that every client’s needs are very specific. And budgeting is one of them. And I’m sure that changes how you approach marketing for them. So it’s interesting that you will look at all those metrics for free. And then you also have your own podcast, which is free for legal marketing, the legal marketing, 2.0 podcast. So you guys offer a lot of valuable insight for people. And that’s why we wanted to have you on this podcast so that if our clients or anybody else who listens knows that this is an option out there that they can use, because I think marketing is such a big thing, digitally, especially right now probably forever at this point.

Guy

Yeah, we’re big believers in in providing valuable information for free. You know, we publish a blog post every day, we do a weekly podcast, we do monthly webinars. We do other things. We publish free ebooks all the time. And the reason why is we want to educate our audience as much as possible, so that when they need someone, they may know a little bit about how to do it. But if they really want to do it, well, they’ll think of us first. And if they don’t, at least they get that really good information. And eventually that ends up helping them down the road to help sauce.

Rachel

So one thing that I was curious to get your point of view on is sort of the through line that we’re trying to focus our inaugural season our podcast on, which is sort of how legal marketing has both changed because of COVID. And also, where legal marketing is going post COVID are sort of in this weird Limbo state where we’re on the cusp of both things, going back to normal, or people starting to think about going back to normal. Also, things aren’t back to normal yet. So I was just curious, like, what have you seen change over the past year? And how do you see things changing more moving forward?

Guy

So it’s interesting, a couple of things. One is COVID has definitely accelerated the trend towards digital, there’s no question about that. So we were already starting to see that before COVID, more and more firms were investing in digital, you know, sprucing up their website, creating more content, blah, blah, blah. So that has definitely happened. It accelerated it to a point where a lot of CMOS and marketing directors that were complaining because they couldn’t get their attorneys to create content, all of a sudden, they were inundated by huge amounts of content, right? It was like they couldn’t put it out there quickly enough. You know, things settle down a little bit. So you’re starting to see less of that. But there’s still a ton of content that’s being created. And the problem is, you know, just throwing up a bunch of content and see what’s going to stick is really not a great strategy. So what I think is going to happen, what we’ve already started to see happen is firms are going to start to take a step back and say, wait a minute, it’s great that we’re creating content, but what’s the strategy behind it? You know, who do we really want to reach? We can’t market to everyone, right? So you got to really figure out like, what are the strengths of your firm? What are the markets that you really go out want to go after? What is your ideal client profile look like? You know, what are the types of companies that hire you, where you’re really profitable? And then so what they’re gonna start to look at is creating content and strip marketing strategies that focus on their ideal customer profiles, and then measuring everything that you do. So I think that’s really what’s going to ship is a focus on strategy, and narrowing that focus to your best potential client, and then creating strategies around those clients. So, you know, the only thing I would say is, you know, that’s the change into the digital world is, a lot of times I see firms get very stressed out about all these new technologies. And they want to make sure they don’t miss out on anything. And, you know, a few months back, everyone wanted to be on clubhouse/ Well, you know, clubhouse is a good new property, and there’s certainly value to it. But just because it’s out there doesn’t mean that you have to be on it, right. So I think the important thing is to really be measured in how you approach new technology and new channels. But most importantly, I think, if you’re going to improve your marketing, the one thing that I would recommend, is to focus in on your clients, and really gaining an understanding of what it is they really need. Right? That is the most valuable thing. And I don’t think that law firms spend enough time figuring that out, they don’t spend enough time doing research on their clients. Because if you talk to a client, they typically want three things. They want a firm that understands their industry, they want a firm that understands their business, and they want a firm that understands them, that individual that you’re dealing with. And the only way that you can do that is by spending some time doing research. And once you get that information, then you can create the nominal marketing strategies that really have an impact. So I think that’s something that firms are starting to realize. And I think that’s the right way to go. So if you’re a CMO at a firm, or marketing director of a firm, convince your lawyers to spend some time and some budget, really researching your existing clients, so that you can come up with strategies that are really going to make an impact.

Rachel

Great, thank you for giving that great takeaway. I think our listeners will be really interested to sort of really hone down on the direction that they should take their marketing, especially now that everything is going digital online, it’s more important than ever to have a strategy for that. So yeah, thank you for joining us today. That about wraps up our episode on legal marketing budgets, posts COVID-19. And Special thanks to Guy Alvarez with Good2bSocial for joining us.

Guy

Thank you, Jessica. And thank you, Rachel, it’s been a pleasure. And if any of your listeners want more information, go to good2bsocial.com. And check out our blog posts or podcasts, webinars, etc. Thank you.

Rachel

Thank you for listening to the National Law Review’s Legal News Reach podcast. Be sure to follow us on Apple podcasts, Spotify, or wherever you get your podcasts for more episodes. For the latest legal news, or if you’re interested in publishing and advertising with us, visit www.natlawreview.com We’ll be back soon with our next episode.

Copyright ©2021 National Law Forum, LLC

Article By Rachel Popa and Jessica Scheck of The National Law Review / The National Law Forum LLC

Click here for more episodes of Legal News Reach.

How Government Contractors Can Prepare for a Government Shutdown

The federal government’s funding is slated to deplete on September 30th, 2021. Congress is currently debating the legislation that will allow operations to continue beyond this date, but it remains to be seen whether or not the government will experience a temporary shutdown. Regardless, the Office of Management and Budget signaled for agencies to prepare for a gap in funding, and President Joe Biden’s White House is preparing for this outcome.

“Government shutdowns impact government contractors in significant ways. Work and payments suddenly stop, and contractors have to decide what to do with their skilled and knowledgeable workers, who suddenly have nothing to do for a company whose cash flow has taken a sudden hit,” said Guy Brenner, a partner in the labor and employment law department and head of the Government Contractor Compliance Group at Proskauer Rose LLP. “This is particularly difficult given that the length of the shutdown is difficult to predict.”

A government shutdown presents unique challenges, not only for federal agencies, but for government contractors and subcontractors as well. These challenges include (but are certainly not limited to) employee pay and overtime, unemployment benefits, the furloughing of employees and more. As a result, it’s important government contractors remain informed and prepare themselves for next steps, should the shutdown indeed take place.

What Do Government Contractors Need to Know About the Shutdown?

In years past, government shutdowns complicated pay and backordered work, and the ongoing COVID-19 pandemic adds another layer to the impending decision on September 30, 2021. With a possible shutdown approaching, government contractors should consider their options under their existing contracts. The looming possibility of a government shutdown creates an air of uncertainty, but workers can mitigate the effects with proper preparation. This includes provisions of the Worker Adjustment and Retraining Notification Act of 1988 (WARN Act) which impacts larger employers.

Typically under the WARN Act, employers must notify employees within 60 days of an upcoming large-scale layoff. The WARN Act applies if there is an “employment loss,” which includes a layoff exceeding six months, an employment termination or a 50 percent reduction in hours in each month over six months.

Another consideration for government contractors during a shutdown is furloughing employees. Often contract workers who are furloughed are not paid their owed wages until after the shutdown has ended and a spending agreement is made, sometimes taking many months before issuing the payments. In some instances, such as during the shutdown of 2018/2019, lawmakers may vote against paying contractors for their furloughed time.

Another complication begins when government contractors take a hit during the shutdown and require workers to use their paid time off (PTO) as compensation rather than back pay. And those with PTO still fare better than contractors who are considered non-essential and cannot rely on PTO. What are the options for those workers?

In addition to furlough and PTO, another potential option for government contractors and their employees during the shutdown is unemployment benefits. However, some furloughed employees may not be eligible for unemployment benefits. Government contractors should check state laws to determine eligibility. Government contractors can find additional resources from the U.S. Department of Labor, including fringe benefits, paid sick leave and pay requirements.

How Can Government Contractors Prepare for a Shutdown?

Despite the uncertainty, government contractors can prepare in advance for a government shutdown. E-Verify, the online system used by employers to check the employment eligibility of new hires, is run by the Department of Homeland Security and may be unavailable during a shutdown. To prepare for this, government contractors should complete I-9 paperwork as soon as possible if E-Verify is unavailable.

Another consideration for government contractors during a shutdown is employee benefits. Furloughed employees may have their benefits affected if a government shutdown happens for a long period of time. The longest government shutdown on record was for 34 days in 2018-2019, which was a partial shutdown, whereas the government is facing a full shutdown this time since the government hasn’t passed any funding bills.

If the government shuts down and employees’ hours are reduced, they may lose COBRA health plan coverage. If this happens, government contractors must send qualifying event notices to affected employees, and employees must be given the option to continue coverage under the plan for the duration of the furlough at the employee’s expense for the maximum COBRA continuation period.

If the government is shut down and employees are furloughed, government contractors should tell employees not to do any work. If employees work while furloughed, they must be paid a salary for the entire week. Aside from furlough, government contractors may also decide to allow employees to work a reduced number of hours, but the process needs to be analyzed carefully and managed tightly, due to requirements for exempt employees, salary requirements, local regulations for a reduction in compensation, as well as contractual obligations, overtime exemptions and any foreign work authorizations.

Government contractors should consider incorporating the cost impacts of a shutdown into their planning and allow for it in their contracts. Contractors should plan to establish a line of communication with contracting officers ahead of time to discuss what work might be halted just in case they are unavailable if the government shuts down. Additionally, small businesses that rely on government funding can also prepare by speaking with their bank before any upcoming funding deadlines to ensure they have the cash flow to stay afloat during the shutdown.

What are the Next Steps for Government Contractors?

Government contractors can start preparing now for a government shutdown by completing necessary I-9 paperwork, determining furlough and unemployment benefit eligibility, determining WARN Act eligibility as well as planning for COBRA coverage interruptions.

“When the government shuts down, contractors can feel sudden and serious economic and workflow impacts, and naturally want to react quickly. But doing so without careful thought and planning may only solve one problem while creating an even bigger and potentially more costly one,” Mr. Brenner said. “Wage and hour, immigration, benefits, unemployment insurance, and lay off laws are all issues contractors need to consider before taking action.”

Copyright ©2021 National Law Forum, LLC
For more articles on the government shutdown, visit the NLRGovernment Contracts, Maritime & Military Law section.

COBRA Premium Assistance Period Ends September 30, 2021

On September 30, 2021, the COBRA premium assistance period established by the American Rescue Plan Act (“ARPA”) will come to an end. ARPA requires, among other things, that employers provide 100 percent COBRA premium subsidies to assistance eligible individuals (“AEIs”) and their qualified beneficiaries, if they are eligible for COBRA during the six-month period beginning April 1, 2021 through September 30, 2021. Employers must notify all AEIs that their subsidy period is going to end by sending the Notice of Expiration of Premium Assistance at least 15 days, but no more than 45 days, before the expiration of the premium assistance. With the COBRA premium assistance period less than two weeks away, employers should have already sent their final Notices of Expiration. Employers that have not done so, however, should send the notices now.

©2021 Epstein Becker & Green, P.C. All rights reserved.

Article By Gretchen Harders and Jenna D. Russell of Epstein Becker & Green, P.C.

For more articles on COBRA assistance, visit the NLR Administrative & Regulatory section.

What Does Equal Pay Really Mean?

By now you’ve certainly heard of the U.S. women’s soccer team’s challenge to their pay arrangement. Back in the spring of 2019, the players sued the United States Soccer Federation (“USSF”) alleging they were unfairly compensated in comparison to the men’s soccer team–a dispute that has been going on since at least 2017. The federal court dismissed the pay claims on summary judgment, ruling that the women were not, in fact, paid less than the men per game played.

Recently the players appealed the federal court’s ruling to the 9th Circuit. In their opposition brief, the USSF argued that the women cannot challenge a payment schedule they expressly negotiated and agreed to via a collective bargaining agreement.

The case presents two very interesting and important issues on the fair pay landscape. The first question is whether an individual can challenge their pay as unequal when they expressly bargained for and negotiated that pay, especially where–as here–they had full knowledge of what employees of the opposite sex were paid.

The second issue is how much “market realities” (as the USSF has called them) are allowed to play a role in the Equal Pay Act analysis as a legitimate job-related factor other than gender (one of the statutory exceptions). For example, in 2018 and 2019, FIFA paid out $38 million to the winner of the men’s world cup, but only $4 million to the winner of the women’s world cup. That is, in the international market, the men’s soccer competitions (generally speaking, not just the U.S. men’s team specifically) sell more tickets and at higher prices, have more expensive sponsorship deals, and generate more revenue.

The USSF argues that because of the potential to generate more revenue from their competitions (even if they end up losing and failing to generate that revenue), the men stand to earn more in their contracts via win bonuses. In response, the women argue that they have, in fact, generated more revenue than the men’s team over the past few years, yet do not have the same bonus opportunities.

It will be interesting to watch how the 9th Circuit wrestles with these two issues, particularly as the result may have lasting impacts for individual employees making equal pay claims. For example, would pay transparency and negotiated salaries be a strong defense to later equal pay claims? Moreover, would revenue generation or even potential revenue generation be a strong defense even when actual performance suggests the lower-paid female employee is generating more revenue than the male employee?

The 9th Circuit will likely hear oral argument on the appeal in early 2022.

{ U.S. women’s soccer team players sought a collective-bargaining agreement that prioritized guaranteed salaries and benefits over potentially higher bonuses, and can’t now pursue “equal pay” claims based on a pay structure they rejected, the U.S. Soccer Federation argued . . . .

 https://www.wsj.com/articles/u-s-soccer-women-equal-pay-11632341799

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Get Poked or Get Canned – Can You Terminate an Employee for Refusing the Vaccine?

The answer is it depends.

Why is the employee refusing the vaccine?

For employers mandating the vaccine, an employee’s refusal to receive it because he or she simply does not want to be vaccinated is likely fair game for termination. Typically, however, an employee will seek a reasonable accommodation that enables him or her not to get the vaccine, raising an objection pursuant to the Americans with Disabilities Act (a medical issue) or Title VII (a sincerely held religious belief). Those scenarios require an employer to entertain the request by engaging in an interactive process to determine, primarily, whether there exists a way to provide the accommodation without creating an undue burden (or hardship) on the employer. The threshold for the hardship analysis is much higher for a medical reason than a religious reason. Keep in mind that you do not have to remove essential functions of a job or create a separate position as a reasonable accommodation.

What if you have a union or a federal contract?

The issue becomes even more complicated if a union is involved or the employer is a federal contractor. With a union, you must make sure you bargain appropriately before imposing a change in working conditions.

On the federal contract side, those employees will fall under a vaccine mandate starting October 15, just like federal employees. In the past months, vaccine requirements have differed from site to site depending on the particular government contracting agent. For example, if the site lets visitors (including contractor/subcontractor employees who perform their duties onsite) enter with masks or a negative test as an alternative to vaccination, the employer will in most cases need to provide the same accommodation. If the site takes a more stringent approach and does not allow masks and negative tests as an alternative, the employer may be able to deny such a request and terminate the employee instead. Before you terminate an employee, make sure to check for any vacancies in which you can provide the accommodation. If no such vacancies exist, the employer should allow the employee to exhaust available sick or PTO time, as well as FMLA leave, if his or her vaccine refusal is based on a medical issue. For a religious issue, the employee would not qualify for sick time, but the employer should allow that employee to exhaust available PTO prior to termination.

What about the OSHA Emergency Temporary Standard?

We expect OSHA to issue its Emergency Temporary Standard (ETS) soon, which will shed light on the analysis, but we do not yet know exactly what that guidance will be. We expect, however, that exceptions based on disability or religious requests for accommodation will be a part of the rules, and the ADA and Title VII analysis will be necessary.

As always, stay tuned for additional guidance after OSHA issues its ETS.

© 2021 Bradley Arant Boult Cummings LLP

Article By Anne Knox Averitt, Chuck Mataya and Anne R. Yuengert of Bradley Arant Boult Cummings LLP

For more articles on mandatory vaccines, visit the NLR Labor & Employment section.

Illinois Appellate Panel Splits the Difference for BIPA Statute of Limitations in Closely Watched Decision

Currently pending before the Seventh Circuit Court of Appeals is the important question of when a claim under the Illinois Biometric Information Privacy Act (“BIPA”) accrues.  Cothron v. White Castle, No. 20-3202 (7th Cir.)  In another litigation CPW previously identified, a panel for the Illinois Court of Appeals recently addressed whether BIPA claims are potentially subject to a one-, two-, or five-year statute of limitations.  Tims v. Black Horse Carriers, Inc., 2021 IL App (1st) 200563 (Sep. 17, 2021).  The answer is apparently “it depends,” based on the particular claims a plaintiff asserts under the statute.

The underlying facts of the case, as with many BIPA litigations, arose in the employer-employee context.  Plaintiff filed a putative class action Complaint in March 2019.  Plaintiff alleged that he worked for Defendant from June 2017 until January 2018. Plaintiff alleged that Defendant “scanned and was still scanning the fingerprints of all employees, including Plaintiff, and was using and had used fingerprint scanning in its employee timekeeping,” in violation of BIPA.

Count I of the Complaint alleged that Defendant violated Section 15(a) of BIPA by failing to institute, maintain, and adhere to a retention schedule for biometric data.  Count II of the alleged that Defendant violated BIPA Section 15(b) by failing to obtain an informed written consent and release before obtaining biometric data. Finally, Count III of the Complaint alleged that Defendant violated BIPA Section 15(d) by disclosing or disseminating biometric data without first obtaining consent.

Defendant subsequently moved to dismiss the Complaint in its entirety, asserting that Plaintiff’s Complaint was filed outside BIPA’s limitation period.  The motion noted that BIPA itself has no limitation provision and argued that the one-year limitation period for privacy actions under Illinois Code Section 13-201 applies to causes of action under the BIPA.

Plaintiff opposed, arguing that: (1) BIPA’s purpose is (in part) to prevent or deter security breaches regarding biometric data and therefore (2) in the absence of a limitation period expressly contained in BIPA itself, the five-year period in Illinois Code Section 13-205 for all civil actions not otherwise provided for should apply.  Plaintiff also argued that the one-year limitations period applied to actions only involving publication of information—which was not implicated for all claims under BIPA

The statute of limitations issue was eventually certified to a panel of the Illinois Court of Appeals.  The Court noted at the onset that Section 15 of BIPA “imposes various duties upon which an aggrieved person may bring an action” and “[t]hough all relate to protecting biometric data, each duty is separate and distinct.”

The Court ultimately found the publication-based distinction raised in the parties’ briefing a useful construct for categorizing claims under BIPA: “[a] plaintiff could therefore bring an action under the Act alleging violations of section 15(a), (b), and/or (e) without having to allege or prove that the defendant private entity published or disclosed any biometric data to any person or entity beyond or outside itself.  Stated another way, an action under section 15(a), (b), or (e) of the Act is not an action ‘for publication of matter violating the right of privacy.’” (quotation omitted).

The end result reached was that the Court held Section 13-201 (the one-year limitations period) governs BIPA actions under Section 15(c) and (d) while Section 13-205 (the five-year limitations period) governs BIPA actions under Sections 15(a), (b), and (e).

Although the shorter limitations period adopted for BIPA claims under Section 15(c) and 15(d) is a welcome ruling for defendants named in BIPA class actions, this ruling will have a limited impact on pending and future-filed BIPA cases.  This is because with the statute’s generous liquidated damages, class actions (even if defined depending on the claim asserted to include only a 1-year period) will still potentially bring a significant payoff for determined class counsel.  The bigger question—pending before the Seventh Circuit—is when BIPA claims accrue in the first place.  For more on this, stay tuned.  CPW will be there to keep you in the loop.

© Copyright 2021 Squire Patton Boggs (US) LLP

Article By Kristin L. Bryan of Squire Patton Boggs (US) LLP

For more on BIPA, visit the NLR Communications, Media & Internet section.

EAGLE Act Aims to Reform Employment-Based Green Cards, H-1B Visa Program, and Family-Sponsored Visas

Rep. Zoe Lofgren (D-Calif.), chair of the House Subcommittee on Immigration and Citizenship, and Rep. John Curtis (R-Utah) have introduced the Equal Access to Green Cards for Legal Employment (“EAGLE”) Act. Its reforms focus on employment-based green cards, the H-1B visa program, and family-sponsored visas.

The EAGLE Act

The proposed bill makes it harder for fraud to occur. The bill requires all H-1B job postings to be listed on the U.S. Department of Labor (“DOL”)‘s website for 30 days. Employers are prohibited from employing more than 50% of their workforce through H-1B jobs. The Act also requires employers to adjust wage requirements for H-1B jobs in a way that reflects changes in the cost of living throughout the United States.

The bill’s sponsors strongly feel that the proposed changes will reduce H-1B visa fraud, which will, in turn, allow American employers truly in need of foreign workforce to meet their demands better, even without increasing the H-1B visa cap.

The bill also proposes a remedy to the current green card backlogs. By phasing out per-country caps by 2032, the bill would prevent U.S. Citizenship and Immigration Services (“USCIS”) from being overwhelmed with an enormous number of backlogged applications.

Present Immigration System Requires Reforms

It is widely known that the immigration system has had many setbacks, and reform is long-awaited. The last major reform was in 1990. At least five presidents have channeled their efforts in proposing drastic immigration reforms, but some have seen little success.

The present immigration system has placed caps on many visa programs, restricting the number of visas issued. This restricts employers with an immediate need for workforce, as they cannot find enough workers to employ within the United States. Since the pandemic, the U.S. has seen acute labor shortages, causing employers to lobby for an increase in the employment-based visa cap.

Employment-based permanent resident visas are subject to a 7 percent per-country cap. India and China have the maximum number of skilled workers on employment-based visas, resulting in skilled workers from these countries waiting for decades for permanent residency. As a result, these skilled workers are often unable to immigrate to the United States.

“We are now seeing recruiters from outside America luring those with highest skills away from the U.S.,” Lofgren stated in a press release. Unlike the United States, many countries, like Canada and Australia, use merit-based immigration programs. In the merit-based immigration system, potential immigrants are scored based on language skills, educational degrees, and salary offers. Visas are offered to those who meet the minimum requirements.

Reforms to H-1B Visa Program

One of the most coveted visa programs employers use is the H-1B, an employment-based visa for immigrants in a specialty occupation. Each year, only 85,000 H-1B visas are issued, including 20,000 set aside for applicants with master’s degrees and PhDs from American universities. There are far more applicants each year than the numeric limit allows, so a lottery is held. The H-1B program is also criticized for fraud by employers, some of whom employ foreign workers and pay them less than they would pay equivalent American workers.

©2021 Norris McLaughlin P.A., All Rights Reserved

Article By Raymond G. Lahoud of Norris McLaughlin P.A.

For more articles on green cards, visit the NLR Labor & Employment section.