Category: Labor & Employment

NYC Issues Proposed Rules for Its Automated Employment Decision Tools Law

On Friday, September 23, 2022, the New York City Department of Consumer and Worker Protection (“DCWP”) released a Notice of Public Hearing and Opportunity to Comment on Proposed Rules related to its Automated Employment Decision Tool law (the “AEDT Law”), which goes into effect on January 1, 2023. As we previously wrote, the City passed the AEDT Law to regulate employers’ use of automated employment decision tools, with the aim of curbing bias in hiring and promotions; as written, however, it contains many ambiguities, which has left covered employers with open questions about compliance.

The proposed rules are intended to clarify the requirements for the use of automated employment decision tools within New York City, the definitions of key terms in the AEDT law, the notices to employees and applicants regarding the use of the tool, the bias audit for the tool, and the required published results of the bias audit.

The DCWP’s public hearing on the proposed rules and deadline for comments are October 24, 2022. Although the proposed rules may be modified prior to adoption, the following summarizes the key provisions.

“Substantially assist or replace discretionary decision making”

The AEDT Law applies to an automated decision tool that is used “to substantially assist or replace discretionary decision making.” It does not, however, specify the type of activities that constitute such conduct or what particular AI-powered employment tools are covered by the law.

The proposed rules attempt to provide guidance on this issue by defining “substantially assist or replace discretionary decision-making” as one of the following actions:

  1. relying solely on a simplified output (score, tag, classification, ranking, etc.), without considering other factors; or
  2. using a simplified output as one of a set of criteria where the output is weighted more than any other criterion in the set; or
  3. using a simplified output to overrule or modify conclusions derived from other factors including human decision-making.

“Bias Audit”

Pursuant to the AEDT Law, before using an automated employment decision tool, a covered employer or employment agency must subject the tool to a “bias audit” no more than one year prior to the use of the of the tool.  The law explains that “bias audit” means an “impartial evaluation by an independent auditor,” but does not otherwise specify who or what constitutes an “independent auditor” or what the “bias audit” must contain. The proposed rules address these gaps.

First, the proposed rules define “independent auditor” as “a person or group that is not involved in using or developing an [automated employment decision tool] that is responsible for conducting a bias audit of such [tool].” This definition does not specify that the auditor must be a separate legal entity from the creator or vendor of the tool and therefore suggests that it may be acceptable for the auditor to be employed by the organization using the tool, provided the auditor does not use and has not been involved in developing the tool.

Second, the proposed rules state that the required contents of a “bias audit” will depend on how the employer or employment agency uses the tool.

If the tool selects individuals to move forward in the hiring process or classifies individuals into groups, the “bias audit,” at a minimum, would need to:

  1. calculate the selection rate for each category;
  2. calculate the impact ratio for each category; and
  3. where the tool classifies candidates into groups, the bias audit must calculate the selection rate and impact ratio for each classification.

If the automated employment decision tool merely scores candidates, the “bias audit” at a minimum, would need to:

  1. calculate the average score for individuals in each category; and
  2. calculate the impact ratio for each category.

The preamble to the proposed rules makes clear that DCWP intends these calculations to be consistent with the Uniform Guidelines on Employee Selection Procedures (“UGESP”), 29 C.F.R. § 1607.4, and borrows concepts from the framework established by the UGESP in the definitions of “impact ratio” and “selection rate.”

Under the AEDT Law, upon completion of a bias audit, and prior to using the automated employment decision tool, covered employers and employment agencies must make the date and summary of the results of the bias audit publicly available on the careers or job section of their website in a clear and conspicuous manner. The proposed rules clarify that publication may be made via an active hyperlink to a website containing the required information, as long as the link is clearly identified as linking to the results of the bias audit. The required information must remain posted for at least six months after the covered employer or employment agency uses the tool for an employment decision.

Required Notices

The AEDT Law also specifies that employers and employment agencies must notify candidates for employment and employees who reside in New York City as follows:

  1. at least ten business days prior to using an automated decision tool, that such a tool will be used to assess or evaluate the candidate or employee, and allow the individual to request an alternative selection process or accommodation;
  2. at least ten business days prior to use, the job qualifications and characteristics that the tool will use in the assessment or evaluation; and
  3. if not disclosed on the employer or employment agency’s website, information about the type of data collected for the tool, the source of such data, and the employer or employment agency’s data retention policy shall be available upon written request by the individual and be provided within thirty days of the written request.

Covered employers and employment agencies have expressed concern about the practical and administrative difficulties of providing the above notices in the fast-paced environment of today’s recruiting and hiring.

In apparent response to these concerns, the proposed rules clarify that the employer or employment agency may provide the notices required by paragraphs (1) and (2) by:

  1. (a) in the case of candidates, including notice on the careers or jobs section of its website at least ten business days prior to the use of the tool, and (b) in the case of employees, including notice in a written policy or procedure that is provided to employees at least ten business days prior to use;
  2. including notice in a job posting at least ten days prior to using the tool; or
  3. (a) in the case of candidates, providing notice via U.S. mail or email at least ten business days prior to use of the tool; and (b) in the case of employees, providing written notice in person, via U.S. mail, or email at least ten business days prior to use.

In short, under the proposed rule, an employer or employment agency could comply with the AEDT Law by providing the required notice when first posting the job.

With respect to the notice requirement in paragraph (3), the proposed rules state that an employer or employment agency must provide notice to covered individuals by including notice on the careers or jobs section of its website, or by providing written notice in person, via U.S. mail, or by email within 30 days of receipt of a written request for such information. If notice is not posted on the website, the employer or agency must post instructions for how to make a written request for such information on its careers or job section of the website.

Finally, although the AEDT Law requires an employer or employment agency to allow covered individuals to request an alternative selection process, the proposed rules state that nothing requires an employer or employment agency to provide an alternative selection process.

Article By Adam S. Forman, Nathaniel M. Glasser, Robert J. O’Hara, Alexander J. Franchilli, and Ridhi D. Madia of Epstein Becker & Green, P.C.

For more labor and employment legal news, click here to visit the National Law Review.

©2022 Epstein Becker & Green, P.C. All rights reserved.

OSHA Expands Criteria for Severe Violator Enforcement Program

In an announcement that expands the criteria for entry into the Occupational Safety and Health Administration’s (OSHA) Severe Violator Enforcement Program, OSHA has signaled that it is making enforcement a priority and that employers with willful, repeat, and failure-to-abate violations will be subject to significant consequences.

Key Takeaways

  • On September 15, 2022, OSHA announced that it was expanding its criteria for entering employers into its Severe Violator Enforcement Program (“SVEP”). The updated SVEP directive is available here.
  • Previously, entry into the program was limited to cases involving fatalities, three or more hospitalizations, high-emphasis hazards, the potential release of a highly hazardous chemical, and enforcement actions classified as egregious.
  • Now, an employer can be entered into the program in cases involving two or more willful, repeat, or failure-to-abate violations, regardless of the hazard involved. They will continue to be subject to entry in the program in certain cases involving fatalities, three or more hospitalizations, and enforcement actions classified as egregious.
  • In light of this expansion, employers should review their compliance records and current health and safety practices and consider whether further actions are needed to mitigate enforcement risks.

Background

In 2010, OSHA created the Severe Violator Enforcement Program to “concentrate[] resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by willful, repeated, or failure-to-abate violations.” Under the original SVEP, OSHA would designate employers as “severe violators” if they were involved in an enforcement action:

  • Involving a fatality in which OSHA found one or more willful, repeat, or failure-to-abate violations;
  • Involving a catastrophe (three or more hospitalizations) in which OSHA found one or more willful, repeat, or failure-to-abate violations;
  • Involving a high-emphasis hazard in which OSHA found two or more high-gravity willful, repeat, or failure-to-abate violations;
  • Involving the potential release of a highly hazardous chemical in which OSHA found three or more high-gravity willful, repeat, or failure-to-abate violations; or
  • Classified by OSHA as “egregious.”

Employers entered into the SVEP were subject to consequences that included mandatory enhanced follow-up inspections, a nationwide inspection of related workplaces, negative publicity, enhanced settlement provisions, and the potential for federal court enforcement under Section 11(b) of the OSH Act.

Updated Criteria

Under the new criteria, employers will continue to be entered into the SVEP in enforcement actions involving a fatality or catastrophe in which OSHA found one or more willful, repeat, or failure-to-abate-violations and in enforcement actions classified as egregious.

In a departure from the original criteria, cases involving two or more high-gravity willful, repeat, or failure-to-abate violations will also be entered into the SVEP, regardless of whether they are linked to a certain hazard or standard. As a result of this change, OSHA expects that more employers will be entered into the SVEP.

Other Key Changes

In addition to expanding the criteria for entry into the SVEP, OSHA made key changes regarding follow-up inspections and removal from the SVEP.

  • Follow-up OSHA inspections must occur within one year, but not longer than two years after the final order. Previously, there was no required timeframe for conducting follow-up inspections.
  • Eligibility for removal will begin three years after the date an employer completes abatement. Previously, that period began running on the final order date.
  • If an employer implements an enhanced settlement agreement that includes the use of a safety and health management system that follows OSHA’s Recommended Practices for Safety and Health Programs, the employer can be eligible for removal after two years.

Implications

These changes signify that OSHA is prioritizing enforcement and intends to impose significant consequences on employers that repeatedly and/or willfully violate OSHA requirements. Employers should review their compliance records and current health and safety practices and evaluate whether additional action is needed to mitigate the risk for willful, repeat, or failure-to-abate violations and entry into the SVEP.

Article By Jayni A. Lanham and Mark N. Duvall of Beveridge & Diamond PC

For more labor and employment legal news, click here to visit the National Law Review.

© 2022 Beveridge & Diamond PC

NLRB’s Proposed New Joint Employer Rule: What to Do Now to Manage the Risk

On September 7, 2022, the National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking (NPRM) that would, if adopted, make it much easier for the NLRB to find a company to be a “joint employer” of persons directly employed by its contractors, vendors, suppliers and franchisees. The consequences of a joint employer finding are significant and can lead to: liability for unfair practices committed by the direct employer; a duty to bargain with a union representing the direct employer’s employees; exposure to liability for one’s own conduct that fails to take into account the indirect employer relationship and spread of a union from the direct employer’s employees to the indirect employer.

Joint-employer theory creates far more risk for employers than related doctrines such as single employer or alter ego because, unlike those theories, joint employer status does not require any common ownership or corporate control. Two companies operating entirely at arm’s length can be found joint employers.

The major proposed change relates to the degree of influence that an indirect employer must have to justify a finding of single employer status. Under the current NLRB standard, the indirect employer must actually exercise “immediate and direct” control over key terms of employment, normally limited to wages, benefits, hours and termination.

The proposed rule relaxes that standard in three key ways. First, it eliminates the actually exercise requirement and states that possession of even unused authority can be sufficient.

Second, it does away with the immediate and direct requirement so that influence exercised by the indirect employer through the direct employer can be used to support a finding.

Third, it expands, beyond the list enumerated in the current rule, the types of employment terms control of which will justify a finding of joint employer status. The Obama Board had adopted the currently proposed standard by an NLRB decision, Browning-Ferris Inds. 362 NLRB No. 186 (2015). However, that decision was overturned by the Trump Board’s adoption of the current rule, 85 FR 11184, codified at 29 CFR 103.40, (Feb. 26, 2020). The proposed rule seeks to reinstate Browning-Ferrisas the governing law.

Because Browning-Ferrisand the NPRM endorse pre-1984 NLRB decisions regarding joint employer status, those decisions provide guidance for how the new rule may be enforced. The NLRB and courts frequently relied on what authority was given to the alleged indirect employer in its agreement with the contractor or vendor. Clauses that required or allowed the indirect employer to approve hirings, terminations or wage adjustments to contractor employees usually resulted in finding joint employer status. In addition, cost-plus arrangements, particularly those that were terminable on short notice were often found to support a joint employer finding. Finally, clauses allowing the indirect employer to set work schedules, production rates, or requiring contractor employees to abide by the indirect employer’s work rules and other policies governing conduct also were found supportive of joint employer status.

The proposed rule is still subject to comment and revision, but it is likely to be adopted without significant change. The comment and review period, which closes on November 21, 2022, provides a window in which savvy employers can assess the risks to their organization when the Rule goes into effect. A key step is to examine existing contractual relationships with vendors to identify and modify those terms that may potentially support joint employer status, or, if modification is untenable, to manage the risk through indemnity agreements with the vendor.

Article By Ahmad Chehab and Robert T. Zielinski of Miller Canfield
© 2022 Miller, Canfield, Paddock and Stone PLC

Could Leagues and Teams be Joint Employers Before the NLRB?

The National Labor Relations Board (NLRB) has released a Notice of Proposed Rulemaking to change the standard for determining if two employers may be joint employers under the National Labor Relations Act (NLRA). The proposed rule, expected to become effective sometime in 2023, could make it more likely that professional and collegiate leagues would be found to be joint employers of any unionized professional players or collegiate student-athletes who play for teams that are members of those leagues.

As a joint employer of unionized players of member teams, a league could be jointly responsible for unfair labor practices committed by the teams or the team’s supervisors or managers (i.e., coaches and administrators), be required to participate in collective bargaining negotiations with the teams concerning the wages and other terms and conditions of employment of the players, and picketing directed at the league would be considered primary and therefore permissible (rather than secondary and subject to injunction).

Currently, the NLRB will find two or more employers to be joint employers if there is evidence that one employer has actually exercised direct and regular control over essential employment terms of another employer’s employees. An employer that merely reserves the right to exercise control or that has exercised control only indirectly will not be found to be a joint employer. The NLRB has proposed that the Browning Ferris standard be restored. Under the proposed rule, two or more employers will be found to be joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment.” Importantly – and the critical import of the proposed rule – the NLRB will consider both evidence that direct control has been exercised and that the right to control has been reserved (or exercised indirectly) over these essential terms and conditions of employment when reviewing two or more employers for status as joint employers.

Professional athletes are employees under Sec. 2(3) of the NLRA, of course. As for collegiate student-athletes, NLRB General Counsel Jennifer Abruzzo issued a memorandum, GC 21-08, announcing the intention to consider scholarship athletes at private colleges and universities to be employees because, as she wrote, they “perform services for their colleges and the NCAA, in return for compensation, and subject to their control.” Stating in summation “that this memo will notify the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA, that [she] will be taking that legal position in future investigations and litigation” under the NLRA, Abruzzo signaled that conferences, leagues, and the NCAA will face joint-employer analysis in an appropriate case.

The “essential terms and conditions of employment” will translate to the sports workplace in the nature of game, practice and meeting times, travel and accommodation standards, equipment and safety standards, conduct rules and disciplinary proceedings, the length of a season, the number of games and playoff terms, and numerous other areas. Professional leagues may already coordinate with their member teams on a number of employment terms for players. For collegiate conferences and leagues, this may be new. Under the current standard, a league could better insulate itself from the decisions made by its members’ coaches and administrators by not exercising direct involvement in those matters. Under the proposed rule, a league or conference that merely has the power (even if reserved and unexercised) to make decisions affecting the “work” conditions for student-athletes could be jointly liable along with the institution for decisions made solely by the institution’s agents.

Consequently, conferences and leagues should consider training managers on their responsibility under the NLRA to private sector employees. They should also consider the role they want to play in collective bargaining should any of the student-athletes at their member institutions unionize.

Article By Patrick L. Egan of Jackson Lewis P.C.

For more labor and employment legal news, click here to visit the National Law Review.

Jackson Lewis P.C. © 2022

DHS May Make Form I-9 Flexibility a Fixture

The Department of Homeland Security (DHS) announced it is considering changes to the Form I-9 documentation examination procedures. As human resources teams know, the remote workplace that became common during the COVID-19 pandemic made an already complicated I-9 process a logistical nightmare. With the U.S. government’s declaration of a national emergency due to the COVID-19 pandemic, DHS and Immigration and Customs Enforcement (ICE) announced certain flexibilities in March 2020 that suspended the requirement of in-person review of I-9 documents when a company was operating remotely due to COVID-19. Those flexibilities have been extended numerous times and are currently set to expire Oct. 31, 2022.

While DHS says it is considering making these temporary flexibilities permanent, the Notice of Proposed Rule Making (NPRM) published last month does not seek to do so. Instead, the NPRM seeks to validate the authority of the DHS secretary to enact flexibilities, offer alternative options, and/or implement a pilot program to evaluate existing and additional alternative I-9 procedures for some or all employers. DHS recognizes that more and more employers are utilizing telework and remote work for their employees and that requiring in-person review of I-9 documents is no longer consistent with work patterns of many businesses.

Some of the more notable possible changes to the I-9 process described in the NPRM include requiring employers to note on the Form I-9 which of the alternative procedures they used; requiring employers to retain copies of I-9 documents; requiring online training on fraudulent document and/or anti-discrimination training for employers who wish to utilize the alternative procedures; and limiting eligibility to use the alternative procedures to employers that utilize E-Verify, the government’s online employment verification system.

Comments to the NPRM are due on or before Oct. 17, 2022.

Article By Rebecca B. Schechter of Greenberg Traurig, LLP

For more immigration legal news, click here to visit the National Law Review.

©2022 Greenberg Traurig, LLP. All rights reserved.

DOT Proposes New Guidance For Medical Examiners To Address CBD Use By Commercial Motor Vehicle Drivers

The U.S. Department of Transportation, Federal Motor Carrier Safety Administration (FMCSA) published a proposed draft Medical Examiner’s Handbook (MEH), including updates to the Medical Advisory Criteria, in the Federal Register on August 16, 2022.  The FMCSA’s regulations provide the basic driver physical qualification standards for commercial motor vehicle (CMV) drivers, in 49 CFR 391.41 through 391.49. DOT Medical Examiners currently make physical qualification determinations on a case-by-case basis and may consider guidance to assist with making those determinations.

FMCSA stated that the goal of the updated MEH and related Medical Advisory Criteria is to provide information about regulatory requirements and guidance for Medical Examiners to consider when making physical qualification determinations in conjunction with established best medical practices. The revised Medical Advisory Criteria, in addition to being included in the MEH, would also be published in Appendix A to 49 CFR part 391. The final version of the criteria would be identical in both publications. FMCSA is proposing to update both the MEH and Medical Advisory Criteria and seeks public comment on these documents until September 30, 2022.  The draft MEH may be viewed here.

Use of CBD with 0.3% THC or Less Is Not Automatically Disqualifying

Under FMCSA regulation 49 CFR 391.41(b)(12)(i), CMV drivers are not permitted to be physically qualified when using Schedule I drugs under any circumstances. The federal Controlled Substances Act lists marijuana, including marijuana extracts containing greater than 0.3% delta-9-tetrahydrocannabinol (THC), as Schedule I drugs and substances. A driver who uses marijuana cannot be physically qualified even if marijuana is legal in the State where the driver resides for recreational or medical use.

However, under current federal law cannabidiol (CBD) products containing less than 0.3% THC are not considered Schedule I substances; therefore, their use by a CMV driver is not grounds to automatically preclude physical qualification of the driver under §391.41(b)(12)(i).

FMCSA emphasized that the U.S. Food and Drug Administration (FDA) does not currently determine or certify the levels of THC in products that contain CBD, so there is no federal oversight to ensure that the labels on CBD products that claim to contain less than 0.3% of THC are accurate. Therefore, drivers who use these products are doing so at their own risk.

FMCSA now proposes that each driver should be evaluated on a case-by-case basis and encourages Medical Examiners to take a comprehensive approach to medical certification and to consider any additional relevant health information or evaluations that may objectively support the medical certification decision. Medical Examiners may request that drivers obtain and provide the results of a non-DOT drug test during the medical certification process, if it is deemed to be helpful in determining whether a driver is using a prohibited substance, such as a CBD product that contains more than 0.3% THC.

This guidance does not impact FMCSA’s drug and alcohol testing regulations.  Use of a CBD product does not excuse a positive marijuana drug test result.

Use of Suboxone and Similar Drugs Is Not Automatically Disqualifying

FMCSA received a large number of inquiries related to Suboxone (a Schedule III drug under federal law, meaning that it has a lower potential for abuse than Schedule I and II drugs).  Treatment with Suboxone and other drugs that contain buprenorphine and naloxone, as well as methadone, are not identified in the FMCSA regulations as precluding medical certification for operating a CMV. FMCSA relies on the Medical Examiner to evaluate and determine whether a driver treated with Suboxone singularly or in combination with other medications should be issued a medical certificate. The Medical Examiner should obtain the opinion of the prescribing licensed medical practitioner who is familiar with the driver’s health history as to whether treatment with Suboxone will or will not adversely affect the driver’s ability to safely operate a CMV. The final medical certification determination, however, rests with the Medical Examiner who is familiar with the duties, responsibilities, and physical and mental demands of CMV driving and non-driving tasks.

Article By Kathryn J. Russo of Jackson Lewis P.C.

For more biotech, food, and drug legal news, click here to visit the National Law Review.

Jackson Lewis P.C. © 2022

Transforming Business: Exploring Pathways for Women to Join and Impact Corporate Boards

Womble Bond Dickinson hosted a “Transforming Business: Exploring Pathways for Women to Join and Impact Corporate Boards” panel discussion at the Post Oak Hotel in Houston. WBD Chair & CEO Betty Temple joined 50/50 Women on Boards Houston Founder & Chair Susan Knight (moderator), TechnipFMC Executive VP, Chief Legal Officer & Secretary Victoria Lazar and Duy-Loan Le, a Board of Directors member for Wolfspeed, National Instruments, Ballard Power Systems and Atomera and a retired Senior Fellow at Texas Instruments. The panelists also offered insights into how women can make a lasting impact on corporate boards, and this article is based on that discussion.

The issue of women on corporate boards is a classic glass-half-full/glass-half-empty conundrum.

On one hand, the percentage of women on corporate boards reached an all-time high in 2021, and female board representation has grown substantially in the past decade alone. On the other hand, women still make up only 27 percent of Russell 3000 company boards of directors, according to a recent report by 50/50 Women on Boards. Only nine percent of those companies have gender-balanced boards.

Women Representation on Corporate Boards

Percentage of Female Directors on S&P 500 Boards

2021: 30 percent
2020: 28 percent
2011: 16 percent

Percentage of Boards with Two or More Women Directors

2021: 96 percent
2011: 58 percent

Source: 2021 U.S. Spencer Stuart Board Index

Le said, “In the field of technology, especially in the boardroom, often I’m the only woman.” This was particularly true when she joined her first public board 20 years ago, she said, and while Le sees more women in corporate leadership today, she still feels as if she is in a predominantly male world.

Getting appointed to a corporate board—or even a civic or non-profit board—isn’t easy, particularly for women. But the pathway to board membership is clearer than ever for women, thanks in large part to the work of women who have blazed that trail.

Self-Assessment Key to Finding the Right Board

To those outside the boardroom, a board of directors may seem like a closed, secret society. But the panelists said that joining a corporate board actually is much more akin to applying for a job, albeit a job that isn’t publicly advertised.

“The first step on a board journey is to show interest in leadership,” Lazar said.

“It is a journey – it’s not something you can do overnight,” Temple said. Looking back, she said she would have changed her initial approach to board service, even though she was actively counseling public company boards as an attorney at the time.

“I would try to build a resume for a board with the strengths I have to be a fiduciary to a company. They want you to be strategic—to think about the business and where it is going. So you need to be thoughtful about how you can help,” Temple said. For example, if candidates have proven experience in finance, legal, human resources, communications or policy matters, they should showcase those skills.

Temple said, “Boards are looking for specific skillsets so you can be an asset on day one. It’s difficult to be a director-in-training.”

But first, she recommends candidates do a self-assessment of their areas of strength and experience, so they can find corporate boards that are the best fit.

“The key is not to spread the net too wide but focus on where you can have a real impact,” Temple said.

“The key is not to spread the net too wide but focus on where you can have a real impact.”

BETTY TEMPLE, CHAIR & CEO OF WOMBLE BOND DICKINSON

Knight said that board opportunities can include non-profit, advisory, private equity and private company boards, too. “The common thread is that you have a fiduciary responsibility,” she said.

While board members come from a variety of professional backgrounds, many are attorneys or have legal experience.

“There is a large population of potentially qualified board members who are attorneys. It’s a good time to be an attorney looking to serve on a board,” Lazar said. However, she cautioned that companies neither want nor need a “Second General Counsel” on the board. Attorneys have the skills and background to guide companies strategically and help them spot potential problems before they arise. This background is particularly valuable during a corporate restructuring, Lazar said. But lawyers on the board shouldn’t try to micromanage or second-guess the company’s in-house legal team.

She also said attorneys need to bring more than legal experience to the board room. Other skills and experiences are invaluable to board service and should not be ignored.

Finally, Le said building strong relationships is critical to being considered for board service. Candidates who demonstrate a selfless desire to help others are best positioned to earn the type of trust necessary to be selected.

“In all of my experiences, boards came to me – not because I’m better than anyone else, but because they know me,” she said. “Reach out, spread your wings and help other people without expecting anything in return. That’s how people come to know you and want you to be part of their team.”

“There is a large population of potentially qualified board members who are attorneys. It’s a good time to be an attorney looking to serve on a board.”

VICTORIA LAZAR, EXECUTIVE VP, CHIEF LEGAL OFFICER & SECRETARY OF TECHNIPFMC

Finding the Board that Fits

Women absolutely need to assess their personal skills, strengths and experience when they decide to pursue board membership. They also need to pay close attention to the companies they wish to serve and the other board members they would be serving with. The panelists said the first opportunity for board service may not always be the right opportunity.

“I needed to meet the people I was going to be serving with in person. Do we share the same values? Can I collaborate with them? The chemistry was very important,” Le said.

Lazar said networking is a great way to build the types of relationships that lead to board service.

“There are hundreds of ways to meet people who are in position to recommend you for a board,” she said. These include professional organizations, community and civic groups, economic development organizations, bar associations (for attorneys) and more. Getting involved in such organizations can offer valuable leadership opportunities, as well as the chance to get to know corporate board members.

“Work your network and work your resume, so when you have the opportunity, you have demonstrated leadership. Be ready when they tap you on the shoulder,” Temple said.

“Work your network and work your resume, so when you have the opportunity, you have demonstrated leadership. Be ready when they tap you on the shoulder.”

BETTY TEMPLE

What to Know about Board Service

Finding the right fit and getting on a corporate, civic or non-profit board is just the beginning. The panelists all have extensive experience with board service and shared some of their recommendations for finding success as a board member.

For example, Le said board members need to protect themselves from legal liability when they agree to become a board member.

“I’d never serve on a public board without directors and officers (D&O) insurance,” she said, noting that if board members exercise their best judgment and put the company’s interests first, they generally have nothing to worry about.

Temple also noted that board members need to be prepared to serve on committees. Public companies are required to have Audit, Compensation, and Corporate Governance/Nominating & Governance committees. Women who want to serve on boards should consider how their skillsets and experience can benefit those committees. For example, having a background in human resources or corporate compensation is great experience for serving on a compensation committee. Likewise, candidates with experience in ESG or diversity, equity and inclusion (DEI) may be a good fit for a corporate governance committee.

“Committees are a big part of board service, and it is a lot of work – and it’s not just the meetings. Before the meetings, we get hundreds of pages to review,” Le said. “The decisions you make are consequential. Your decisions impact individuals and their lives.”

Lazar also noted that private company boards can be far different from those at public companies. At public companies, the separation between the board of directors and corporate leadership is established by federal law. But at a privately held company, the barriers between board members and corporate leadership may be blurred. Board candidates at a private company need to investigate the boardroom dynamic up front before they agree to join.

Hiring a CEO

Hiring (and firing) a CEO is perhaps the most basic, fundamental role of a governing board. At the very least, it is one of the three core functions of the board, along with strategy and compliance.

Leadership transition can be smooth—such as when a well-liked CEO decides to retire, and the board has ample time to find a replacement and no shortage of good candidates.  But there are instances where the board and CEO part ways on contentious terms—Carly Fiorina’s 2005 ouster from Hewlett-Packard is one high-profile example of when a board and its corporate leader were completely unable to co-exist.

No matter the circumstances, board members must be prepared to deal with leadership transition at any time.

When somebody says, ‘We need to make a move,’ you have to be ready to voice an opinion and be an active participant in the process. It’s one of the most important and difficult decisions a board can make,” Lazar said.

“Sometimes, leadership isn’t about expertise—it’s about dealing with people.”

DUY-LOAN LE, BOARD OF DIRECTORS MEMBER FOR WOLFSPEED, NATIONAL INSTRUMENTS, BALLARD POWER SYSTEMS AND ATOMERA

Le has been in the boardroom during those difficult meetings. She said she experienced a situation where the board had to replace the CEO, who also was the company’s founder and largest shareholder and who initially did not want to leave.

This situation required interpersonal skills, not cold business logic. The CEO/Founder had given so much to the company, and he needed an exit strategy that wouldn’t humiliate him. Le was able to navigate that difficult path during their long, emotional phone call.

“It can be intense. If that situation hadn’t been navigated properly, it would’ve blown up in our face,” she said. “Sometimes, leadership isn’t about expertise—it’s about dealing with people.”

Whether women are looking to serve or are already in the boardroom, the panelists encouraged them to believe in themselves.

“Why wouldn’t you be qualified? Everyone has to do it for the first time,” Lazar said. “Focus on what you have and what you bring.”

“If you’ve been appointed to a public company board, then you’re there – you’ve got it. Just be a great board member and keep doing the right things,” Temple said.

“I remember the feeling the first time I walked into a board room. It was all white men, a generation older than me. But I thought, ‘I have an advantage.’ Because none of these men have lived the life I’ve lived. And what’s the worst that can happen – that they kick me off the board?” Le said. “From there, just do what Betty said and carry yourself with confidence. You are just as good as anyone in that room.”

For additional research and resources, go to the 50/50 Women on Boards website. 50/50 Women on Boards is dedicated to promoting gender balance and diversity on corporate boards.

Article By Elizabeth O. Temple of Womble Bond Dickinson (US) LLP

For more corporate and business legal news, click here to visit the National Law Review.

Copyright © 2022 Womble Bond Dickinson (US) LLP All Rights Reserved.

Top Legal Industry News Highlights for August 2022: Law Firm Expansion, Legal Awards and Recognition, and the Latest in Women in Law

Thank you for reading the latest edition of the National Law Review’s bi-weekly legal news roundup! In these last weeks of summer, we hope you are remaining safe and healthy. Read more below for updates on law firm hiring and expansion, industry awards and recognition, and spotlights on women in the field of law.

Law Firm Hiring and Expansion

Moore & Van Allen PLLC has added Julianne Farnsworth as counsel and as a member of the firm’s Litigation practice group. Presently based in the Charleston office, Ms. Farnsworth dedicates her practice to complex civil litigation, representing clients in areas such as business torts, environmental law, employment law, and other areas. She has practiced before state and federal courts across the U.S. and is additionally certified as a mediator in the state circuit and federal courts of South Carolina.

“We are pleased to welcome Julianne who has been a top litigator in the Charleston area for over 30 years,” said Trudy H. Robertson, co-managing member of the firm’s Charleston office. “Julianne’s experience and reputation will be valuable assets for servicing our litigation clients across the full spectrum of business areas and industries.”

Trey Baker, a former senior advisor for public engagement at the White House, has joined Barnes & Thornburg LLP as a partner in the Government Services and Finance Department. In his former role, Mr. Baker specialized in outreach to civil rights organizations and minority communities, focusing on criminal justice and law enforcement reform. He has also served for four years as the city manager for Grenada, Mississippi.

“Trey’s deep well of government experience and strong foundation in the D.C. market will prove invaluable to our clients – both locally and nationally,” said Roscoe Howard, managing partner of the firm’s Washington, D.C. office. “His passion for community engagement, evidenced by the breadth of his work at the local and federal level, brings a unique skill set to our talented group of legal professionals. We’re happy to have him.”

Honigman Law, LLP has advanced its recent growth efforts, announcing the launch of Honigman Law Israel, an Israeli subsidiary focusing its efforts on U.S. mergers and acquisitions, capital markets, venture capital, real estate, and more. For prospective candidates, the subsidiary offers the opportunity to continue practicing complex U.S. legal matters while located in Israel. The HLI team has already added its first five attorneys: Sam Katz, who practices in corporate and capital markets; Inbar Rauchwerger, who practices in mergers and acquisitions; Aviv Avnon, who practices in finance; David Snyder, who practices in tax law; and Rachel Rhodes, who practices in corporate and capital markets.

“We’re honored to bring on these five top-notch attorneys from some of the most prominent law firms in the U.S. and expect to bring in many more highly qualified individuals through this initiative,” said Honigman CEO and Chair David Foltyn. “We have continued to see incredible demand for our transactional counsel, which in turn requires that we continue to grow with the most talented lawyers. With HLI, we have created a win-win opportunity for A+ attorneys who want to reside in Israel for personal reasons but did not have a path to doing so, and for Honigman, which can deepen and expand the great talent we can devote to our clients.”

Much Shelist, P.C. has added three new attorneys: Jonathan Friedland, Jeremy Waitzman, and Hajar Jouglaf. Mr. Friedland joins the firm’s Restructuring & Creditors’ Rights group, and Mr. Waitzman and Mr. Jouglaf join the firm’s Corporate & Finance group. The trio has formerly worked together to represent businesses across the U.S., focusing their efforts on mergers and acquisitions, insolvency, and bankruptcy matters. Together, they counsel clients across many industries, including manufacturing, information technology, retail, and hospitality.

“Jonathan, Jeremy, and Hajar impressed us from the very beginning of our conversations,” said the firm’s Managing Partner Mitchell Roth. “They bring legal prowess and business savvy that will be immensely valuable to our clients, and they share our commitment to top-tier service.”

Steptoe & Johnson PLLC has added Jeffery D. Mulrooney as Of Counsel to the firm’s Business Department. Mr. Mulrooney has a great deal of experience managing intellectual property matters, with particular emphasis on patent, trademark, and copyright applications across all industries, including medical devices, material sciences, consumer products, and more. At the firm, he will focus his practice specifically on intellectual property and transactional matters.

“Jeffrey’s focus on copyright, trademark, and patent law is a great addition to our Pittsburgh office,” said Steptoe & Johnson CEO, Christopher L. Slaughter. “We are always looking for the best attorneys to meet our client’s needs and with the explosive growth in technology industries across our footprint, Jeffrey’s background will be a great asset to our clients and our firm.”

Industry Awards and Recognition

Two Romer Debbas partners, Michael R. Feldman and Alison L. Weisman, have been honored by Best Lawyers. The award is based on peer reviews and feedback and acknowledges attorneys at the beginning of their law careers for “upstanding professional standards and excellence in private practice.” Mr. Feldman and Ms. Weisman were specifically recognized as rising industry stars in the field of real estate law.

Michael Feldman is a partner and manager of the residential real estate department at Romer Debbas’ New York office. His practice focuses on residential and commercial real estate transactions. Alison Weisman is a partner in Romer Debbas’ commercial real estate department. She concentrates her practice on representing buyers, sellers, tenants, landlords, and developers in various real estate and lending transactions. She is also a trained mediator.

Greenberg Traurig was nominated by JUVE Verlag, a business law publisher based in Germany, as the Law Firm of the Year in the Labor and Employment category. The firm was nominated for its “positive, dynamic development over the past year.” The award ceremony will take place on Oct. 27 in Frankfurt where the winners will be announced.

197 attorneys at Ballard Spahr received 330 recognitions in this year’s The Best Lawyers in America guide. Of additional note, 58 Ballard Spahr attorneys have been featured in the Ones to Watch category, which is intended for lawyers at the beginning of their careers. Ballard Spahr attorneys also received 7 recognitions for Lawyers of The Year:

Best Lawyers uses annual surveys to assess lawyers in the field, asking attorneys to evaluate their peers based on professionalism, integrity, and legal skill. Lawyers of the Year receive the highest overall peer feedback for a given practice area and region.

Women in Law

Clifford Law Office partner Sarah F. King is scheduled to present “The Power of Visual Persuasion” at the Society of Women Trial Lawyers’ 2022 Fall Conference in Nashville, TN. A medical malpractice attorney based in Chicago, Ms. King will be sharing her insights on technological innovations and visual storytelling in virtual and physical courtrooms. She has previously presented at events such as the Michigan Association of Justice Medical Malpractice Seminar and the American Association for Justice Annual Convention, and is an active member of the Women’s Bar Association of Illinois and Illinois Trial Lawyers Association.

The Society of Women Trial Lawyers conference provides an opportunity for women practitioners across the U.S. to enhance their trial skillset while building valuable professional and personal connections. This year’s event will be at the Thompson Nashville Hotel on Thursday, October 6, 2022.

The Texas Diversity Council will recognize Foley & Lardner partner Michelle Ku as a 2022 Top Women Lawyers Award winner at a virtual ceremony on September 27, 2022. Ms. Ku is a business litigator known for taking on high stakes trials at the local, state, and federal levels, covering issues related to antitrust, government investigations, class actions, tax, and intellectual property. She and her fellow awardees were selected for their professional success, legal industry impact, integrity, and commitment to supporting other women in the field.

Alyson Brown of Hunton Andrews Kurth has been selected for the National Black Lawyers Top 40 Under 40 for the second year in a row. Inclusion on the list provides access to a national network of leading figures in the Black legal community and requires a reputation for professional excellence and leadership as determined through peer nominations and a third-party research process.

Ms. Brown is a Richmond, VA based employment attorney. At Hunton Andrews Kurth, she handles issues related to unfair workplace practices, labor law compliance, and employment litigation. In addition to her experience arguing before the National Labor Relations Board, Brown is a Program Committee Member of the Richmond Bar Association and Board Member of the Downtown Richmond YMCA. She has recently been listed on the 2022 Virginia Access to Justice Pro Bono Honor Roll.

Article By Chandler Ford, Shelby Garrett, and Crissonna Tennison of The National Law Review / The National Law Forum LLC

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Copyright ©2022 National Law Forum, LLC

DHS Proposes Rule Updating I-9 Verification Requirements

On August 18, 2022, the Department of Homeland Security (DHS) published a proposed rule in the Federal Register that would grant it broader authority to permit alternative document inspection procedures for I-9 document verification in lieu of the physical inspection requirement.

In response to the COVID-19 pandemic, DHS implemented temporary accommodations for remote I-9 document inspection in order to encourage social distancing and remote work. These accommodations have been extended several times, and currently remain in effect until October 31, 2022. While the proposed rule does not directly make these accommodations permanent, it does codify into the regulations the agency’s authority to set forth either temporary or permanent alternative document inspection procedures.

The proposed rule provides significant flexibility to DHS in determining whether, when, and how to implement alternative examination procedures. According to the proposed rule, DHS may implement new examination options as part of a limited pilot program, upon the agency’s determination that such alternative procedures would not diminish the security of the I-9 verification process, or as a temporary measure in response to a public health emergency.

The proposed rule also includes details about how DHS may implement future document inspection changes, including:

  • limiting implementation only to employers enrolled in E-Verify

  • updating document retention requirements

  • changing the Form I-9 to allow employers to clearly note the use of alternative examination procedures

Now that the proposed rule has been published in the Federal Register, the public will have a 60-day comment period to provide feedback on the proposal as well as comments on how DHS may use this additional authority to make I-9 document inspection easier for employers. After the public comment period closes, DHS will have the opportunity to review and analyze all comments provided and, should the agency decide to move forward with the regulation, proceed with publishing the final rule.

Article By Derek J. Maka of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more immigration legal news, click here to visit the National Law Review.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

School Law Update: CDC Adjusts Direction on Exposure Quarantine Requirements for Employees

CDC Adjusts Direction on Exposure Quarantine Requirements for Employees

On August 11, 2022, the CDC updated its COVID-19 guidance as the risk of severe illness, hospitalization, and death from COVID exposure has significantly declined. More specific guidance for school districts was issued by the CDC, which can be found here.

In addition, the Department of Public Instruction has published guidance entitled “COVID-19 Infection Control and Mitigation Measures for Wisconsin Schools 2022/2023,” which can be found here.

While we published a Legal Update on the recent CDC guidance changes last week, that Update primarily focused on the private sector. This Update is primarily focused on the impact the new CDC guidance will have on school districts and identifies some of the key changes.

The more significant mask guidance has been reduced. Guidance now indicates that if COVID-19 is at a high Community Level, universal indoor masking in schools is recommended. The CDC also recommends masking in health care settings such as the school nurse’s office. The updated CDC guidance makes significant changes to quarantine and isolation protocols. Asymptomatic (exposed) children and staff, regardless of where the exposure occurred or vaccination status, no longer need to quarantine. Students or staff who self-identify as close contacts may continue to attend school/work if they remain asymptomatic.

Students or staff who come to school with symptoms or develop symptoms while at school should be asked to wear a well-fitting mask or respirator while in the building and be sent home. If testing is unavailable at school, students and staff should also be encouraged to get tested. Symptomatic people who cannot wear a mask should be separated from others as much as possible; children should be supervised by a designated caregiver who is wearing a well-fitting mask or respirator until they leave school grounds but masking with a high quality mask is suggested for 10 days from exposure.

If the school provides COVID-19 testing, a symptomatic student or staff member may remain in school if they are tested immediately onsite, and that test is negative. Best practice would include wearing a mask, if possible, until symptoms are fully resolved. If the student is “too ill” to be in school (fever, severe cough, vomiting, diarrhea, etc.), they should be sent home regardless of COVID-19 test results. If the symptomatic student or staff cannot be tested immediately, they should be sent home and encouraged to use an at-home-test-kit or be referred to a testing site.

Students and staff who test positive for COVID-19 should isolate for at least 5 days. If they are asymptomatic, they may end isolation after Day 5 (return Day 6). If they had symptoms, they may return to school/work after Day 5 if:

  • they are fever-free for 24 hours (without the use of fever-reducing medication)

  • their symptoms are improving

If the individual still has a fever or other symptoms have not improved, they should continue to isolate until the symptoms improve. Once isolation has ended, people should wear a well-fitting mask or respirator around others through Day 10. Testing is not required to determine the end of isolation or mask use following COVID-19 infection.

Article By James R. Macy, Ryan P. Heiden, and Anthony S. Wachewicz III of von Briesen & Roper, s.c.

For more coronavirus legal news, click here to visit the National Law Review.

©2022 von Briesen & Roper, s.c