Category: Labor & Employment

How Law Firms Can Create & Communicate Successful DEI Initiatives

With law firms beginning to return to in person work following the COVID-19 pandemic, the legal industry is facing a number of challenges surrounding diversity and inclusion. As workers return to the office, law firms are embracing diversity, equity, and inclusion (DEI) initiatives to create more inclusive workplaces. However, simply creating a DEI initiative isn’t enough to truly spark change within a law firm.

To discuss these topics, GCC Portfolio hosted a webinar on DEI & E-relationship building  moderated by Deb Knupp, Managing Director at GrowthPlay, featuring panelists Tasneem Khokha, Managing Director at GrowthPlay and C.L. Nathanson, Founder and President of GCC Portfolio.

For law firms looking to create DEI initiatives, it’s important to understand the current state of DEI in the industry, how to engage employees when creating initiatives, and how to communicate these initiatives to clients.

What is the Current State of Diversity, Equity and Inclusion in Law Firms?

There are three key issues that are top of mind for law firms as people return to the office, including the impact of the pandemic on staff and attorneys of color, Ms. Khokha said.

“There is clearly a disproportionate impact of the pandemic on people of color. It’s very likely for firms that have diverse talent pools that their staff and attorneys of color will have been disproportionately affected,” Ms. Khokha said. Related to that, Ms. Khokha said firms must recognize how working from home during the pandemic disproportionately affected women and primary caregivers.

“The second thing I’m seeing is that firms over the last year have had to really get their arms around the impact of the racial upheaval in our country over the past year, and the particular impact of that on black and Asian American communities,” she said. “Thinking about that impact on the mental health and wellbeing of our colleagues is important as well.”

Even though law firms are facing challenges surrounding racial diversity in the workplace, the COVID-19 pandemic created opportunities for firms to approach talent development in new ways.

“Some of the old ways of thinking about face time in the office have been really challenged in the past year. We have some ways to think about talent development in a way that may be truly more equitable,” Ms. Khokha said. “On the one hand there are some real challenges. There are informal communities and structures within law firms that don’t always include diverse populations the same way they do majority counterparts.”

Ms. Khokha explained that even though working from home created new challenges for law firms during the COVID-19 pandemic, there are some new opportunities created by remote working as well.

“Firms are really thinking about what working from home has taught us about talent development and management,” Ms. Khokha said.

Even with the improvements remote work brought to talent development, it’s also important for firms to remember that not all employees will have the same experiences returning to in-person work.

“Returning to the office won’t be a one size fits all,” Ms. Knupp said. “People will be bringing different experiences. Setting the conditions for looking at the impact on professional development and some of those more informal relationship building channels will be critical things to see with fresh eyes and empathetic hearts.”

In addition to empathy, law firms must also consider how DEI may impact client relationships. Law firms that invest in DEI initiatives will not only see an impact on employee wellbeing, but on the firm’s bottom line and its relationship with clients as well.

“The business case for DEI is stronger than it ever has been,” Ms. Khokha said. “Diverse teams create better outcomes for clients as well as more employee engagement. Notwithstanding, the progress on DEI in the legal industry has been really incremental. Now more than ever, we’re all focused on DEI as a part of our businesses as a factor important to our success.”

How to Create Diversity, Equity and Inclusion Initiatives at Law Firms

Ms. Khokha said a pitfall for firms to avoid is undertaking a DEI initiative as a performative act rather than a strategic one.

When creating diversity initiatives, firms need to ground DEI efforts in a thorough assessment of where the firm is, and create goals around what the firm needs and the issues that need to be solved for. Firms also need to center DEI initiatives around the firm’s values to ensure they are long term solutions, and commit to allocating resources to support the initiative.

“When I see firms getting this right, a few things that I see [firms doing] is to commit the adequate resources. Too often we see firms investing in DEI efforts because there’s some impetus that creates a desire to engage in these efforts,” Ms. Khokha said. “And yet, if we don’t adequately commit the resources necessary to do that well, it’s likely our efforts won’t be strategic or sustainable.”

What Questions Should Law Firms Ask Themselves When Developing a Diversity, Equity and Inclusion Program?

Ms. Khokha said firms need to recognize the complexity surrounding DEI initiatives and address them in a multifaceted way. This includes thinking about the way firms communicate these initiatives, and ensuring they’re sustainable. Specifically, Ms. Khokha recommended firms ask themselves the following questions when developing a DEI strategy:

• Why is this important to us?

• Who are our key stakeholders?

• What are our key messages?

• How are we going to communicate this in a way that reflects our values and priorities?

“The best firms recognize that DEI is not something that simply stops with those who have a JD,” Ms. Knupp said. “You see stellar results when your firm has the capacity to embrace [diversity].”

How Can Firms Connect & Communicate DEI Initiatives to Employees?

When engaging employees through DEI, law firms need to recognize that DEI initiatives are an ongoing commitment rather than a one size fits all solution. Additionally, when recognizing diversity efforts at a firm, highlighting success through including diverse groups is important.

Specifically, Ms. Nathanson highlighted Barnes & Thornburg’s efforts to focus on diversity through its holiday card selection. The firm’s BTBlack Talent Resource Group commissioned two black artists to create an image for the holiday cards. The firm also established a nonprofit foundation funded by employee contributions to focus on social and racial justice issues, and raised over $300,000 this year so far.

“Talking about [DEI] and going in with total empathy to the group you’re speaking with and listening gives you the opportunities to hear what the differences are,” Ms. Nathanson said.

However, even when firms have successful DEI initiatives, there’s often a push and pull between law firms and their clients on the ability of DEI to support diverse lawyers, Ms. Kohkha said.

“We see effort after effort among law firms to increase diversity, to support their diverse lawyers, and we’re consistently seeing clients saying that law firms aren’t doing enough. The progress is too slow and incremental and they want to see more,” Ms. Khokha said.

To solve this, clear communication about DEI efforts is key between law firms and clients. Additionally, to engage employees, firms must create buy-in for the opportunities that exist, Ms. Khokha said.

“It’s so important to explain what [DEI] is,” Ms. Nathanson said. “It’s also bottom line improvement.”

Copyright ©2021 National Law Forum, LLC

The Biden Administration Takes Aim at Noncompete Clauses

Employers – in light of recent action by the Biden administration, it is time to review and evaluate restrictive covenants being used with your workforce. Courts, state legislatures, and the president are increasingly scrutinizing such covenants, including noncompete agreements.

President Joe Biden campaigned on a platform to eliminate and reduce barriers for employees seeking higher wages and better benefits. As part of this commitment, he promised to prohibit all noncompete agreements, except those essential to protecting a narrowly defined category of trade secrets. President Biden took a concrete step towards making good on this promise on July 9, 2021, by signing a sweeping executive order.

Noncompete provisions have become commonplace. According to data the Biden administration cites, approximately one-half of private-sector businesses require at least some segment of their workforce to execute noncompete agreements, affecting between 36 to 60 million workers in the United States. The Biden administration claims these agreements limit wage growth and hamper employee mobility.

In its wide-ranging executive order, the Biden administration signaled an aggressive approach to curtailing the use of noncompete agreements. The executive order declares “that a whole-of-government approach is necessary to address overconcentration, monopolization, and unfair competition in the American economy.” Of particular interest to many employers is the executive order’s directive to the Federal Trade Commission (FTC), which encourages the FTC to use its rulemaking authority to restrict and reduce — and even ban — certain types of non-compete agreements. Specifically, it provides that “the Chair of the FTC is encouraged to consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the FTC Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”

The executive order, which builds upon an executive order issued during President Obama’s final year in office, represents a potential sea change to the enforcement of noncompete agreements because it adds a layer of federal considerations to an already complex and ever-evolving array of state requirements.

To be clear, the July 9 executive order does not immediately change anything. The FTC must exercise its rulemaking authority under the FTC Act to accomplish its mission. It could be months or years before the FTC announces any specific rules. And challenges to the FTC’s authority will likely follow whatever rules the Commission ultimately promulgates.

The executive order also directs a newly created White House Competition Council to identify any potential legislative changes necessary to advance the policies outlined in the executive order. This may spur Congress to pass federal legislation in addition to anticipated agency rules. Beyond that, the Biden administration’s aggressive and prominent action on this front may inspire state legislatures across the country to evaluate their laws and potentially pass additional measures regulating enforceability of noncompete agreements. At bottom, this executive order represents an inflection point as the Biden administration aims to increase competition and wages by eliminating what it views as hindrances to achieving those goals.

While awaiting action by the FTC, employers should to take the time to scrutinize and evaluate the terms of restrictive covenants they use to ensure the restrictions are narrowly tailored. Such diligence may increase the likelihood of enforceability. In addition, employers should explicitly state the reasons for the restrictive covenants (e.g., protection of trade secrets, company goodwill, etc.). And, as always, employers need to also keep abreast of any state-law developments.

©2021 Greenberg Traurig, LLP. All rights reserved.
For more articles on noncompete clauses, visit the NLR Labor & Employment section.

District of Columbia Increases Minimum Wage to $15.20, and Tipped Minimum Wage to $5.05, Effective July 1, 2021

As we previously reported, starting in 2016 the District of Columbia by statute gradually increased its minimum wage to $15.00 per hour, and its tipped minimum to $5.00, effective July 1, 2020. However, included in the statute were provisions for subsequent increases of both these rates based on the annual average increase in the Consumer Price Index for All Urban consumers in the Washington Metropolitan Statistical Area. See D.C. Code §32-1003(a)(6) and (f)(2).  The D.C. Department of Employment Services (DOES) recently announced that pursuant to these provisions, effective July 1, 2021 the minimum wage for all employees will increase to $15.20 per hour, and the tipped minimum to $5.05. The same rate applied to the Living Wage Act covering various government contractors.

D.C. employers should make sure that their payroll systems are adjusted to reflect these new rates. They should also post the updated DOES poster available here.

©2021 Epstein Becker & Green, P.C. All rights reserved.
For more articles on minimum wage, visit the NLR Labor & Employment section.

How Law Firms Can Invest in Employee Wellbeing Through E-Relationship Building

The COVID-19 pandemic highlighted the need for an increased focus on mental health in the legal industry. In a recent webinar from GCC Portfolio, Renee Branson, a principal at RB Consulting and Executive Director at the Sexual Assault Resource Agency, Deborah Knupp, Managing Director at GrowthPlay and Lisa Buchanan, Director of Marketing and Creative Services at GCC Portfolio discussed the importance of mental health and E-relationship building at law firms.

The coronavirus pandemic provided an opportunity to speak about mental health in a way that allowed it to be destigmatized. Many in the industry were experiencing the same feelings of anxiety and depression. As a result, the legal industry recognized mental health was something that needed to be discussed.

To address the issue of mental health in the legal industry, law firms need to understand what the biggest issues are, how to address them, and how to get support from leadership to tackle those issues.

What are the Biggest Mental Health Issues in the Legal Industry?

With many in the legal industry beginning to return to the office, Ms. Branson said she’s seen higher levels of anxiety, guilt, and ambivalence among workers. These feelings manifest in social reluctance among employees, as well as an increased need for remote work flexibilities.

“What we have experienced really is a trauma,” Ms. Branson said. “First of all, frame it for what it is.”

Ms. Knupp said there is a phenomenon called the “shadow pandemic” emerging as a long term effect of the coronavirus pandemic. This shadow pandemic encompasses feelings of mortality, neurological disorders, and other mental health consequences of the COVID-19 pandemic that are expected to last for years.

“We’re going to see a broad expanse of different things,” Ms. Branson said. “For folks who had COVID, we still don’t know the long term neurological and mental health impacts of surviving that illness.”

For those who haven’t experienced COVID-19 firsthand, what the shadow pandemic could reveal are long term feelings of trauma. Ms. Branson said that once the pandemic subsides and people begin to feel a sense of security, they then begin to process the trauma they experienced during lockdown.

“That processing can take a short amount of time, or it can take years,” Ms. Branson said. “The way to keep that from feeling really overwhelming is to not add on really high expectations to yourself and others.”

Investing in mental health education for those in the legal industry is one way to help leadership be better coaches, issue spotters and counsel for their organizations and clients. This involves staying connected with clients to keep mental health issues a top priority. To achieve this, Ms. Branson said she utilizes what she calls a resilience library with six “books” that address mental health issues.

“One of those books is Connection,” she said. “When we feel disconnected from people and feel a lack of belonging and an inability to be authentic to ourselves, whatever burden we’re carrying feels twice as heavy. If they have a connection with someone that they can rely on, it helps ease [that burden].”

The law firms that are the most successful in addressing mental health issues are those that listen and adapt. Even though the coronavirus pandemic was a huge disruption, it also gave law firms the opportunity to adapt and examine their processes in order to better accommodate their employees’ needs.

“It’s really challenging right now because we do have this great ability to connect but also Zoom fatigue is real. We have to find new and different ways to stay connected…[especially] with small groups of folks, whether that’s done virtually or in person,” Ms. Branson said. “It’s about listening and being able to respond when you can.”

How Law Firms Can Connect Through E-Relationship Building

To tackle the issue of mental health during the pandemic, law firms need to be creative and innovative in the ways they reach out to employees. E-relationship building includes team-based activities, events, and communications. Ms. Buchanan said that one of the biggest changes GCC saw in the past year was law firms showing appreciation to their employees by acknowledging their hard work during challenging times.

With many feeling Zoom burnout, electronic and virtual communications are one way law firms are engaging with their employees and showing appreciation. These communications can be as simple as sending individual messages letting employees know they’re appreciated.

“It can be so impactful for a firm to say ‘thank you’ because we’re all having a rough time,” Ms. Buchanan said. “Little things can be so impactful… and make a huge difference in somebody’s life.”

Ms. Buchanan said the pandemic affected the way firms think in terms of focusing on small gestures instead of bigger initiatives. Investing in ways to give employees appreciation shows that the firm is focused on their wellbeing.

“I’m just blown away by the fact that our firms are so forward in being part of [mental health],” she said. “The law industry seems to be taking it and moving forward.”

How to Start Mental Health Initiatives at Law Firms

Even if employee mental health and wellbeing is top of mind for law firms, it can be a challenge to get leadership on board. One way to stress the importance of mental health initiatives is to highlight the impact poor mental health can have on productivity.

“Either spend a certain amount of time addressing feelings and mental health, or we’re going to spend a lot of time [addressing] inefficiencies and lack of productivity,” Ms. Branson said, quoting author and researcher Brené Brown. “These things really do have bottom line impacts.”

Ignoring mental health issues impacts both client relationships and a law firm’s finances. To deal with issues of decreased productivity, firms should focus on innovative ways to communicate with employees. Ms. Buchanan said firms who used GCC for holiday cards get input back from employees.

“Letting the firms be creative in the way that they want to portray who they are is the first thing,” Ms. Buchanan said. “It’s also a connection and letting their clients and people know ‘we see you.’ Just little touch points are really important.”

What Can Law Firms Do to Focus on Mental Health Moving Forward?

The coronavirus pandemic offered an opportunity for law firms to put an increased focus on mental health. Acknowledgement, education, acceptance, and understanding of mental health issues validates those who are struggling, and helps remove the stigma. By acknowledging mental health, firms will help improve their bottom line while also investing in their employees’ wellbeing.

“It starts at the top,” Ms. Buchanan said. “If you’ve got a leader in the firm that gets [mental health], you’ve got so many options.”

For law firms looking to prioritize their employees’ mental health, focusing on E-relationship building is a good place to start. With many firms still working remotely, Ms. Knupp emphasized that there hasn’t been a better time to reach out to employees and start an initiative.

“This is the time to let people know that you see them,” she said. “No matter what you do, be a kind human to humankind.”

Watch the full webinar here: GCC Presents Mental Health & E-Relationship Building

Copyright ©2021 National Law Forum, LLC
ARTICLE BY Rachel Popa of The National Law Review / The National Law Forum LLC
For more articles on the legal industry, visit the NLR Law Office Management section.

Top Legal Industry News for June 2021: Law Firm Hires, Pro-Bono, & Innovation

Summer is upon us and we’re back with another edition of the National Law Review’s legal industry news column. This week, we cover the latest law firm hiring, pro bono, and legal award recognition news. Read on for the latest updates:

Law Firm Hires & Moves

The Young Lawyers’ Section (YLS) of the Chicago Bar Association named Clifford Law Offices’ Tracy Brammeier as its next chair as well as an executive council at the YLS Annual Meeting held June 2, 2021.

Ms. Brammeier’s practice focuses on aviation, transportation, premises, and construction liability in addition to other areas of personal injury and wrongful death litigation. She also participated in the YLS Wills for Heroes project.

“For the last year, we have all worked to stay in touch with clients and colleagues, trying to adapt as we lost access to in-person meetings, hearings, and events,” said Ms. Brammeier. “As we figure out our ‘new normal’ in a post-COVID world, the YLS is more essential to its members than ever before by providing a consistent space for legal education and social engagement to sustain the community environment that is so important to our professional success and personal fulfillment.”

Steven M. Regan joined Steptoe & Johnson’s Business Department in its Pittsburgh office. Mr. Regan’s practice focuses on real estate, real estate development, and corporate transactions. Mr. Regan represents real estate investors in structuring real estate investments and executing acquisition and financing of projects in all asset classes.

“I am excited to welcome Steve to Steptoe & Johnson PLLC. He will be an asset to both our real estate and transactional teams,” said firm CEO Christopher L. Slaughter. “Veteran attorneys like Steve who know how to get positive results and build lasting relationships are a crucial part of our long-term effort to expand services to new and existing clients in the Pittsburgh market.”

Norris McLaughlin law firm hired new attorneys to join the Pennsylvania office’s litigation practice, as well as the addition of one summer associate. The new hires include:

  • Thomas H. Dinkelacker concentrates on municipal, land use, and real estate law and represents clients before zoning hearing boards, code appeal boards, governing bodies, and various Pennsylvania Courts.
  • Rebecca J. Grausam-Charamella focuses on complex litigation matters and represents a multitude of clients at jury trials, hearings, mediations, and arbitrations. She also served as a trial attorney for State Farm Insurance Company for eight years.
  • Andrew J. Shaw concentrates his practice on commercial litigation, and has a wide range of experience through all phases of litigation in both state and federal courts.
  • William R. Murphy III defends individuals involved in civil litigation for general liability matters. He also represents insurance carriers, and he has experience in insurance fraud and automobile accidents.
  • Rocco Beltrami will temporarily join as a summer associate to assist the attorneys while he is in law school at Villanova Charles Widger School of Law.

“We are excited to be growing in a way where we are continuously adding exceptional talent to our roster of great attorneys here at Norris McLaughlin,” said the Honorable Emil Giordano (Ret.), a member of the firm and co-chair of its Litigation Practice Group.

Manatt, Phelps and Phillips, LLP law firm announced the addition of Naeun Rim to their Los Angeles firm as a litigation partner. Ms. Rim represents clients at the intersection of civil litigation and white-collar defense matters across the health care, financial services, entertainment and technology industries.

Ms. Rim is also one of a few Asian American women to serve as trial counsel for a Fortune 150 company in one of California’s biggest environmental trials.

“Naeun will be a strong asset to what our clients view as a well-established litigation powerhouse,” Donna L. Wilson, Manatt’s CEO and managing partner said in the announcement.

Democracy Forward named lawyer Skye Perryman as its new President and Chief Executive Officer.  Ms. Perryman is a founding litigator of the organization. As president and CEO, Ms. Perryman will focus on confronting unlawful threats to democracy and social progress. She succeeds Anne Harkavy, the organization’s founding executive director.

“As we continue to see the basic values of our democracy under attack, Skye Perryman is the right leader at the right time for Democracy Forward,” said Marc Elias, head of the Political Law practice at Perkins Coie and chair of the board of Democracy Forward. “She is a successful litigator, effective strategist, and a coalition builder who is committed to taking on critical fights to advance social progress and democratic values. We are all thrilled to welcome Skye back to Democracy Forward to lead its next phase at a time when the stakes for our nation’s future could not be higher.”

Ms. Perryman most recently served as Chief Legal Officer and General Counsel of the American College of Obstetricians and Gynecologists, where she worked to enhance access and equity in women’s health care.

“We must use all tools at our disposal to fight for the promise of democracy at this crucial moment. It is an honor to be rejoining the team at Democracy Forward as we expand the scope and reach of our work.” said Ms. Perryman.

Law Firm Philanthropy and Pro Bono

Jackson Lewis P.C. partnered with The Association of Corporate Counsel’s Employment and Labor Law Network (ACC) to develop “RACE Talks: Realign Act Change Engage,”  a racial equity program that focuses on individual transformation and change to create a more racially just workplace and society. The RACE Talks program highlighted specific actions to advance social justice in society, and included podcasts, videos and articles.

Jackson Lewis’ Samia M. Kirmani led workplace bias sessions and facilitated live discussions with Michael D. Thomas and Tanya A. Bovée. Weldon H. Latham also added to the discussions.

“We were thrilled that ACC asked Jackson Lewis to create a program designed to advance racial justice,” said Ms. Bovée. “2020 was a racial awakening for many, and this was the perfect opportunity to focus on how individuals can transform and bring about positive change. We created this program with the goal that participants would step outside of their comfort zone, disrupt their own status quo, and think differently about race and the concept of bias.”

North Carolina’s Pro Bono Resource Center inducted four Ward and Smith law firm attorneys into the 2020 North Carolina Pro Bono Honor Society. Despite the challenges 2020 brought, Mary Cavanaugh, Chris Edwards, Paul Fanning and Lance Martin participated in a wide range of pro bono activities across the state.

“Many North Carolina attorneys recognized the needs brought about by COVID-19 and provided pro bono legal services to help ensure that ‘justice shall be administered without favor, denial, or delay,’ as is mandated by our state’s Constitution,” said North Carolina Supreme Court Chief Justice Paul Newby in the announcement.

Frost Brown Todd (FBT) is celebrating Juneteenth this year by providing the entirety of the ParentPreneur Foundation’s $10,000 Father’s Day grant awards, where ten dads of color will receive $1,000 a piece for their start-up businesses.

The ParentPreneur Foundation provides opportunities for black entrepreneurs who are in the start-up business to get a leg up and get started and strives to empower these parents to leave a good legacy for their children.

“The world of start-ups is a challenge no matter who you are, but that is especially true of Black entrepreneurs,” said Terrence Reeves, chair of FBT’s Venture Capital industry team. “Funding this grant is another example of how Frost Brown Todd’s venture capital services go beyond just providing legal support. Being part of this project at a time when the U.S. is celebrating Juneteenth makes it all that more special. We look forward to seeing the impact this grant program will make on the lives and livelihoods of the recipients.”

Legal Industry Awards & Recognition

The Globe and Mail named McCarthy Tétrault as a recipient of its first Report on Business Top 25 Best B2B Brands award. McCarthy Tétrault earned the top honor in the legal category out of 11 law firms.

The Best B2B Brands is a new research initiative from the Globe and Mail’s Report on Business Magazine with Ipsos. The list is based on 42 different evaluations related to culture, innovation and other initiatives from 406 Canadian executives who were surveyed in January and February of this year.

“This acknowledgement is a true testament to our firm’s core values of investing in our people, our clients and our communities,” said Dave Leonard, CEO at McCarthy Tétrault. “Our top priority has always been our clients’ sustained success, and we recognize that the best way to achieve this is to support a collaborative, inclusive and innovative culture that evolves with the pace of business.”

For the third year in a row, the Legal 500 United States 2021 ranked MoginRubin in the category of Antitrust and Civil Litigation/Class Actions: Plaintiff. The Legal 500 ranks practice areas nationally instead of by state.

The Legal 500 recognized the following MoginRubin attorneys:

Greenberg Traurig law firm received the Morgan Stanley Leadership in Excellence in Inclusion and Diversity award.  Bradford D. Kaufman, Greenberg Traurig co-president and the global chairman of Professional Development and Integration, accepted the award on behalf of the firm.

Greenberg Traurig invested $5 million over five years to address systemic racism and launched a Justice Action Initiative to target pro bono work in the areas of economic, social, and racial justice. The firm also joined in creating the Law Firm Anti-Racism Alliance.

“No company operates without the support of clients or customers. Leadership involves service and most professionals feel they have a responsibility to give back. Moving a diversity initiative from paper to impact takes intention,” Mr. Kaufman said. “I have had the privilege to represent Morgan Stanley during the past 35 years and therefore know the depth of its commitment to inclusion and diversity and it is truly inspirational.”

Chambers USA recognized Bracewell law firm in its 2021 rankings, giving the firm a Nationwide Band 1 ranking in Oil & Gas (Regulatory & Litigation) for the seventh consecutive year. Bracewell also ranked as a Band 1 firm in the Texas: Environment category for the fifth consecutive year.

Overall, Bracewell ranked with 89 other firms for excellence in representing clients in the real estate, technology, energy and infrastructure sectors. Additionally, Chambers ranked 50 percent of Bracewell’s partners as leaders in their practice areas.

Copyright ©2021 National Law Forum, LLC
For more articles on the legal industry, visit the NLRLaw Office Management section.

Mastering Remote Work: Does Returning to the Office Mean Bringing Pets to Work?

With so much of the workforce going remote this past year, there has been a huge shift in the way many people view pet ownership. In fact, the national pet adoption rate jumped more than 30% at the beginning of the pandemic, and animal rescue organizations reported an overall increase in adoptions of 30 – 50% in 2020. Not only has the spread of remote work helped match pets to homes, but we know that animals have been shown to reduce stress and provide much needed comfort and social support to many workers during the pandemic.

The shift to work-from-home has also opened our doors to our colleagues’ pets, whether meeting them on Zoom or hearing them interrupt conference calls. This has made it seem more normal to have your pet – or your colleagues’ pets – around during the work day.

With the potential for going back to the office seemingly closer, some offices are considering whether to go pet-friendly. Here are a few steps to consider before your office makes this decision:

  • Consider Your Workforce and your Workplace

    • Not every office will be the right place for pets, but it could be a perk your employees really appreciate (and could make it easier for employees to come back into the office). Consider if the office space allows for pets to stay in their own areas, out of the way of those who do not feel comfortable with animals around. Think about how easy your employees can take pets outside, or remove them from distracting other employees. Finally, take account of employee pet allergies, and determine what limitations would need to be in place.

  • Require Authorization

    • There should be a process for employees to receive authorization to bring their pet to work, and provide necessary information regarding their pet’s health and vaccine history. Any employee bringing a pet to work must agree to observe certain requirements or risk losing their pet-privileges.

  • Establish Guidelines

    • Employers need to determine what types of pets can come to work (e.g., dogs, cats, fish, etc.), and designate certain areas pet-friendly, and certain areas off-limits for animals. Strict cleaning guidelines should be in place to ensure the workplace remains clean and safe for all.

There are also legal concerns when addressing pets at work. Beyond a full pet-friendly policy, employers must remember that pets may need to be allowed as a reasonable accommodation for employees with disabilities. The Americans with Disabilities Act (ADA) requires service animals be allowed in all areas of public access, and employers are required to engage in the interactive process with employees if a pet may be an appropriate accommodation for a disability. The ADA generally requires service animals be allowed in an employer setting, if doing so will not create an undue hardship for the business. This is not the case for emotional support animals, however, which are not necessarily trained for a specific service, but simply to provide comfort and companionship. Either way, when faced with the question, employers should consider whether a pet would be an appropriate accommodation that enables an employee to perform the essential functions of his or her job.

© Polsinelli PC, Polsinelli LLP in California
For more articles on remote work, visit the NLRLabor & Employment section.

U.S. Department of Education Says Title IX Protects LGBTQ Students

Yesterday, the Office of Civil Rights (OCR) for the U.S. Department of Education released a new Notice of Interpretation clarifying the Department’s position that Title IX prohibits discrimination against gay and transgender students. The interpretation, applicable to both colleges and universities and K-12 institutions which accept federal funding, follows the U.S. Supreme Court’s holding in Bostock v. Clayton County that Title VII prohibits workplace discrimination based on sexual orientation or gender identity. OCR’s announcement is a departure from the previous administration’s position, which declined to extend Title IX’s protections to transgender students. While the Notice does not have the effect of law, it signals OCR’s intentions as it enforces Title IX going forward. “We just want to double down on our expectations,” said DOE Secretary Miguel A. Cardona. “Students cannot be discriminated against because of their sexual orientation or their gender identity.”

OCR’s Notice states that its interpretation is meant to align Title VII and Title IX, acknowledging that courts regularly rely on interpretations of Title VII to inform decisions based on Title IX. The interpretation also follows a March 2021 memorandum from the U.S. Department of Justice, which similarly interpreted the Bostock decision to apply to Title IX. OCR’s announcement has been welcomed by many schools, which had been forced to juggle conflicting Title IX and Title VII standards in the wake of the Bostock decision. Still others have questioned the interpretation’s impact, including schools in locations where the interpretation is in conflict with state or local law. And OCR’s Notice expressly acknowledges that the interpretation does not change the Title IX exemption for education institutions controlled by a religious organization to the extent that the law is not consistent with the organization’s religious tenets.

OCR’s announcement comes during the summer months—as many schools are updating their policies and procedures—and while many institutions anxiously await OCR’s announcement of further guidance and regulations related to Title IX, particularly regarding further guidance regarding the 2020 Title IX regulations. The interpretation also leaves open several key questions including, for example, its impact on single sex institutions or campus affinity groups or how broadly the department will define gender identity. But as schools prepare for the 2021 fall semester, administrators should be ready to address allegations of discrimination based on sexual orientation or gender identity as part of Title IX compliance efforts.

OCR’s Notice of Interpretation may be found in its entirety here.

Copyright © 2021 Womble Bond Dickinson (US) LLP All Rights Reserved.
For more articles on the OCR, visit the NLRCivil Rights section.

International Travel After the US Travel Ban is Lifted – What Visa Holders Can Expect

At some point this year, we expect that the United States will lift the travel ban that includes all of the Schengen countries, the United Kingdom, China, and others.  While there have been many rumors about when this will happen, the US government remains silent.

When the United States lifts the travel ban, US visa holders in the United States will have many questions about whether they can travel abroad, when they can return, and what impediments they may face.  The following FAQs address these questions.  We will update them as needed.

1. When the United States lifts the travel ban, will I still need a National Interest Exception?

Answer:  No.  If the travel ban is completely lifted and no other restrictions are put in its place, travel will return to pre-pandemic “normal.”  In other words, you will not require any special advance permission to fly directly to the United States from countries that were previously under the travel ban.  You will also not need to show that you are exempt because you have an immediate relative (spouse or child) who is a US citizen.

2. When the United States lifts the travel ban, will I need a Covid vaccination to return after international travel?

Answer:  Possibly. The travel ban may be lifted in phases, allowing first for travel of vaccinated individuals.

3. When the United States lifts the travel ban, will I need a negative Covid test to return after international travel?

Answer:  Possibly. That will be up to the CDC. As of early June 2021, a negative Covid test is required for all US-bound air passengers 2 years of age or older, regardless of where they are flying from. If the CDC decides to change this rule, it will be announced on the CDC website.

4. When the United States lifts the travel ban, can I leave the United States and travel to my home country to see my family and friends?

Answer:  As a US visa holder, you are always free to leave. The issue is when you can return, which may depend on whether you require a US visa in your passport that only US consulates can issue.  (See below.)

5. Will I need a US visa in my passport in order to return to the United States to resume my current nonimmigrant visa status?

Answer:  Except for Canadian passport holders (other than E visa holders), every employment-based nonimmigrant visa holder must have a valid, unexpired visa in their passport that matches their work-authorized status, as indicated on their USCIS approval notice (Forms I-797 or I-129S) in order to return to the United States.  Family members holding dependent status must also have valid, unexpired visas in their passports to return to the United States.

6. My current visa is unexpired and is in the same category as my approval notice.  Will I need a new visa to return to the United States after travel abroad?

Answer: As long as you return with your unexpired, valid visa and your approval notice before either expire, US Customs should admit you in the same visa status through the end date listed on the approval notice.  For example, if you have in your passport an unexpired H‑1B visa that references a prior employer’s name and your most recent H-1B approval notice is for a new employer with a longer expiration date than listed on the visa, the two documents together will allow a US Customs officer to admit you in H-1B status. The visa and the approval notice must be in the same visa classification, however.

7. My current visa has expired, but I have an approval notice extending my status in the same visa classification.  Do I need a new visa to return to the United States?

Answer:  Yes, you will need to use the new approval notice to obtain a new visa at a US consulate abroad.  Your family members will need new dependent visas as well.

8. The visa I used to enter the United States is in a different visa classification than the approval notice my employer obtained for me, which changed my visa classification.  Do I need a new visa in order to return to the United States?

Answer:  If the USCIS changed your status after you arrived in the United States, you will need a new visa in your passport in the same visa classification listed on the new approval notice.  For example, if you entered using an F‑1 student visa, and then a US company filed an H-1B change of status petition for you and approved by USCIS, you will need an H-1B visa in your passport to return following travel abroad.  Your family members will need new dependent visas as well.

9. I heard that if the USCIS extended my status and/or changed my status to a new visa classification, I can travel to Canada or Mexico and back without getting a new visa in my passport.  Is this true?

Answer: Yes, it is true, but only if you are visiting either of those countries for 30 days or less, you do not apply for a US visa while there, and you do not travel to another country in between departing from and returning to the United States.  This process is the “automatic revalidation of visa at port of entry”.  You should consult with an attorney before using this provision of law to make sure that it is still available when you plan to return and that you have the necessary documentation to return after your short trip.

10. I heard that scheduling visa appointments at US consulates has been very difficult during the pandemic and while the travel ban has been in place.  Once the United States lifts the travel ban, will it be easier to schedule visa appointments abroad?

Answer: Possibly, but probably not immediately. We expect lingering backlogs in visa appointments. While we do expect that US consulates will return to pre-COVID appointment scheduling, we do not expect it to happen very quickly.  When the United States lifts the travel ban, the consulates may not be operating at full staff.  Even those that will be fully staffed will not likely return immediately to pre-COVID scheduling, as there is still a risk of COVID transmission in many countries.  As the vaccine rollout becomes more widespread, US consulates are likely to make more appointments available.  For countries with rising COVID cases, appointments will remain hard to secure.  At this time, most US consulates are only scheduling emergency appointments, and those scheduling regular appointments are doing so for late 2021 and early- to mid-2022.

11. I have a visa appointment scheduled for early 2022.  If the consulate opens up more appointments, will my appointment be moved to an earlier date?

Answer:  It may depend on the specific consulate whether it will automatically move appointments to earlier dates, or whether it falls on the applicant to reschedule.  It is advisable to check the consulate’s website often to see if earlier appointments become available.  This may require checking daily.

12. What are the chances that I can secure an emergency appointment to obtain my visa?

ANSWER:  Low. At this time, US consulates are inundated with emergency appointment requests, most of which are denied.  Unless the emergency rises to a life-or-death situation, you can assume that you will not get one.  However, there is no harm in making the request.

13. Can I apply for a US visa at a US consulate in a country other than my home country?

ANSWER: Probably not. Because visa appointments are difficult to schedule, most US consulates are not entertaining visa applications from third-country nationals and are only granting visa appointments to local citizens or long-term residents.

14. Can I renew my visa while I am in the United States?

ANSWER:  Unfortunately no. The ability to apply to the State Department for “visa revalidation” ended after the tragic events of 9/11/2001.  Therefore, you must apply at a US consulate abroad.  There are rumors that the US may reinstate visa revalidation in the United States at some point to relieve the backlogs at US consulates, but we do not know if or when this could become a reality.

15. I have an unexpired B-1/B-2 visitor’s visa in my passport.  Can I use it to return to the United States to continue my employment?

ANSWER: No. You cannot use a B-1/B-2 visa (or any other nonimmigrant visa not related to your work-authorized approval notice) to enter the United States for employment.  Doing so would be visa and immigration fraud, and your US employer would be at risk for employing you when not authorized to do so.  You also should not use it to enter the United States intending to have your employer re-sponsor you for a work-authorized change of status, as you cannot enter as a visitor with the intention of changing status after arrival.

16. I have an unexpired ESTA (Visa Waiver) registration (or can obtain the registration). Can I use it to return to the United States to continue my employment?

ANSWER:   No. You cannot use ESTA to enter the United States for employment.  Doing so would be visa and immigration fraud, and your US employer would be at risk for employing you when not authorized to do so.  You also cannot apply to extend your ESTA visit or to change to a new status while you are in the United States.

17. Can I ask for Congressional assistance to schedule a visa appointment?

ANSWER: You can certainly reach out to your member of Congress for such assistance; however, it is unlikely that you will be successful, as Congressional offices are inundated with such requests.  If you have compelling facts, it may help, but unless you have a life-or-death situation, Congressional assistance is not likely to help.

18. If I depart the United States and cannot get a new visa, can I work from abroad until I can obtain the new visa to return to the United States?

ANSWER:  It depends on your company’s policies. Your employer may not allow you to perform your US position from abroad, as it may raise tax or other legal issues.  This is something you should discuss with your manager, human resources, and/or your global mobility department before making plans to depart.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.
ARTICLE BY Ian P. Band of Hunton Andrews Kurth
For more articles on international travel, visit the NLR Immigration section.

OSHA Issues COVID-19 Rules for Healthcare Employers Only

On June 10, 2021, Marty Walsh, Labor Secretary and acting assistant Secretary of Labor for Jim Frederick of Occupational Safety and Health Administration, announced the “emergency temporary standard,” or ETS, that identifies what employers must do to protect health care workers from COVID-19. The ETS is specifically tailored to employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care facilities where there are or may be COVID patients.

Some requirements under the ETS for health care employers are

  • to maintain social distancing protocols;
  • screen patients for COVID-19 symptoms;
  • screen employees for COVID-19 symptoms before each workday;
  • provide training to employees on their rights under the ETS;
  • install cleanable or disposable barriers for work stations;
  • ensure that employer-owned HVAC systems have a Minimum Efficiency Reporting Value of 13 or higher (if the system allows it), and
  • give employees time off to receive and recover from the COVID-19 vaccination.

Additionally, health care employers must develop and implement a COVID-19 plan (which must be in writing if there are more than 10 employees). The plan must identify a safety coordinator who is tasked with ensuring compliance, and it must identify policies and procedures to minimize the risk of transmission of COVID-19 to employees. However, there is a carve-out for certain workplaces where all employees are fully vaccinated and people who may have the virus are not allowed inside.

Notably, the ETS applies specifically to employers of health care workers. According to Walsh in his announcement, “OSHA has determined that a healthcare-specific safety requirement will make the biggest impact,” as those are the workers that are in contact with the virus on a day-to-day basis. Along with the ETS, OSHA issued voluntary guidelines to non-healthcare employers, such as meatpacking industries and high-volume retail facilities. OSHA also issued a flow-chart that helps employers identify whether the ETS applies to their workplace. The flow chart, and information regarding the ETS, can be found here.

The effective date of the ETS has not yet been determined. Generally, it will take effect the day it is published in the Federal Register, but that date has not been announced. Once it takes effect, applicable employers must comply with most of the ETS provisions within 14 days, and with provisions involving physical barriers, ventilation, and training, employers must comply within 30 days.

©2021 Roetzel & Andress

 

ARTICLE BY Amanda M. Connelly of Roetzel & Andress LPA
For more on OSHA rules, visit the NLRLabor & Employment section.

Form I-9 Requirement COVID-19 Flexibility Extended until August 31

U.S. Immigration and Customs Enforcement (ICE) has announced an extension of its interim policy that allows employers to inspect the Form I-9 requirement virtually through August 31, 2021. This flexibility was first issued by ICE in March 2020, due to the pandemic, and has been extended multiple times since.

COVID-19 Flexibility Extended

Form I-9 flexibility policy was set to expire on May 31, 2021. The policy applies only to employers and workplaces that are operating remotely. If the workplace is functioning even partially at the work location, the employer must implement an in-person verification process. Employers who meet the criteria for remote operation must diligently create cases for their new hires within three business days from the date of hire.

The announcement had no new information apart from that regarding the extension but encouraged employers to monitor the USCIS website for any latest guidance.

Form I-9 Requirement

Form I-9 is a mandatory form that employers must complete and maintain with its records, confirming the employment authorization of individuals hired for employment in the United States. Employers must verify the documents of the new hire within three days of hire, and both employee and employer must complete the form. The list of acceptable documents can be found on the last page of the form.

The Department of Homeland Security (DHS) inspects, either randomly or on tips or complaints, the records the employers maintain. The purpose of the audit is to ensure that the employers are following legal hiring practices. When an employee receives a Notice of Inspection (NOI) from the DHS about an upcoming audit, it is best to hire an attorney and have staff from Human Resources handle the audit. If the DHS finds discrepancies in the records, they issue a warning notice and provide time to correct the violations. If the violations are not rectified, the DHS issues a Notice of Intent to Fine; often the amount of the fine is huge.

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

ARTICLE BY Raymond G. Lahoud of Norris McLaughlin P.A.
For more articles on form I-9, visit the NLRImmigration section.