Category: Legal Employment

US Labor Department considers development of data tool to combat pay discrimination

Posted in the National Law Review on August 14, 2011 an article by U.S. Department of Labor regarding is considering the development of a new data tool to collect information on salaries, wages and other benefits paid to employees of federal contractors and subcontractors.

Public invited to comment during early stage of development

WASHINGTON — The U.S. Department of Labor’s Office of Federal Contract Compliance Programs is considering the development of a new data tool to collect information on salaries, wages and other benefits paid to employees of federal contractors and subcontractors. The tool would improve OFCCP’s ability to gather data that could be analyzed for indicators of discrimination, such as disparities faced by female and minority workers. To provide an opportunity for the public to submit feedback, the department published an advance notice of proposed rulemaking in the Aug. 10 edition of the Federal Register.

OFCCP enforces Executive Order 11246, which prohibits companies that do business with the federal government from discriminating in employment practices — including compensation — on the basis of sex, race, color, national origin or religion. Last year, the agency announced plans to create a compensation data tool in the department’s fall 2010 regulatory agenda. In addition to providing OFCCP investigators with insight into potential pay discrimination warranting further review, the proposed tool would provide a self-assessment element to help employers evaluate the effects of their compensation practices.

“Today, almost 50 years after the Equal Pay Act became law, the wage gap has narrowed, but not nearly enough,” said Secretary of Labor Hilda L. Solis. “The president and I are committed to ending pay discrimination once and for all.”

The Labor Department’s Bureau of Labor Statistics reports that in 2010 women were paid an average of 77 cents for every dollar paid to men. In addition to the gender gap, research has shown that race- and ethnicity-based pay gaps put workers of color, including men, at a disadvantage. Eliminating compensation-based discrimination is a top priority for OFCCP.

“Pay discrimination continues to plague women and people of color in the workforce,” said OFCCP Director Patricia A. Shiu, a member of the president’s National Equal Pay Enforcement Task Force. “This proposal is about gathering better data, which will allow us to focus our enforcement resources where they are most needed. We can’t truly solve this problem until we can see it, measure it and put dollar figures on it.”

The notice poses 15 questions for public response on the types of data that should be requested, the scope of information OFCCP should seek, how the data should be collected, how the data should be used, what the tool should look like, which contractors should be required to submit compensation data and how the tool might create potential burdens for small businesses. The proposal will be open to public response for 60 days, and the deadline for receiving comments is Oct. 11. To read the proposal or submit a comment, visit the federal e-rulemaking portal at http://www.regulations.gov.

In addition to Executive Order 11246, OFCCP’s legal authority exists under Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. As amended, these three laws hold those who do business with the federal government, both contractors and subcontractors, to the fair and reasonable standard that they not discriminate in employment on the basis of sex, race, color, religion, national origin, disability or status as a protected veteran. For general information, call OFCCP’s toll-free helpline at 800-397-6251. Additional information is also available at http://www.dol.gov/ofccp/.

© Copyright 2011 U.S. Department of Labor

Nondisclosure Agreements (NDAs): Not Just a “Standard Form.”

James M. Singer of Pepper Hamilton LLP is the featured guest blogger this week at the National Law Review.  James provides some great reminders about NDA’s Non-Disclosure Agreements. 

Many business transactions start with a nondisclosure agreement (NDA).  Often, one of the first deal points to be negotiated is whose “form” NDA will controls.  However, it’s common for both parties to overlook the fact that there is no “one-size-fits all” form NDA.

Before entering into an NDA, each party should examine the terms to ensure that the agreement makes sense for the party’s business.  Each party should ensure that the agreement adequately protects its own information, while not going so far as to subject the party to confidentiality procedures that can create issues down the road.

Issues to consider when entering into an NDA include:

  1. Nature of the disclosure: Are you more likely to be the discloser or the recipient of confidential information?  If your client will be a discloser, then a strong agreement may benefit the client. If you will only be the recipient, then you might seek a less stringent agreement.
  2. Duration of the confidentiality obligation: Some NDAs require information to be kept confidential forever. Others have a more limited term, such as 2 to 3 years.  A long term is valuable if the disclosure involves proprietary manufacturing processes, chemical compositions, or similar information.  However, if you are disclosing information that will become publicly known anyway — such as design details for a soon-to-be-sold product, or information that will be published in a patent application — then a term greater than 2 or 3 years may only benefit the other party.
  3. Consistency with corporate procedures: Each party should review the terms of the agreement to ensure that the agreement does impose obligations with which it cannot comply.  For example, if you need to disclose the information to contractors who aren’t employees, be sure that the agreement permits that.   I’ve also seen NDAs stating that all individuals who will have access to the information must sign a confidentiality agreement that specifically refers to  the NDA.  Will you require your employees to sign a new agreement that specifically refers to this agreement?  When faced with this type of obligation, consider whether or not you are prepared to comply.
  4. Purpose / Non-use clause: It’s standard for an NDA to prohibit the recipient from disclosing the information.  However, does it also restrict the recipient from internally using the information for its own benefit?  Does it clearly limit the purpose for which the recipient can use the information?  “Purpose” clauses are often filled in after all other terms are negotiated.  Parties should take care so that the purpose clause is as carefully drafted as any other clause.

These are just a few areas that parties should consider before signing a confidentiality agreement.  Rather than simply signing an ‘off the shelf” form, each party should carefully review the agreement with its attorneys to ensure that the document fits the business need.

Copyright © 2010 Pepper Hamilton LLP

About the Author:

James M. Singer is a partner in the Intellectual Property Practice Group of Pepper Hamilton LLP.  A registered patent attorney, Mr. Singer provides strategic counseling that helps businesses identify, acquire, license, protect and maximize the value of intangible assets.  Mr. Singer is the author and co-author of several publications, and he publishes IP Spotlight, a blog about topics relevant to the intersection of business and intellectual property law, at http://www.ipspotlight.com/. He also is a frequent public speaker on issues relating to technology and the law, and is recognized in Intellectual Asset Management (IAM) Licensing 250: The World’s Leading Patent and Technology Licensing Lawyers 2010. 412-454-5023 /www.pepperlaw.com

Law Firms' Diversity Progress Stalls in Recession

The National Law Review’s Business of Law guest blogger this week is Vera Djordjevich of Vault Inc. Vera describes the findings of a recent Vault / MCCA Minority Corporate Counsel Association  survey which show  how law firm’s efforts to diversify have slowed down dramatically during these challenging economic times.  Read On:      

Law firms had been making steady, if slow, progress in diversifying their ranks.  Recent data collected by Vault and the Minority Corporate Counsel Association (MCCA), however, suggests that some of the profession’s advances have come to a virtual standstill.

This spring, as part of the annual Law Firm Diversity Survey, more than 260 law firms, including many of the largest and most prestigious law firms in the country, completed a detailed questionnaire on their diversity initiatives, programs and demographics. The results have been released in the Law Firm Diversity Database.

The data reveals how the economic crisis has affected law firm hiring, promotion and retention as a whole, and particularly highlights its impact on attorneys of color. While everyone felt the recession, the survey data suggests that minorities were, as many have feared, disproportionately affected.

Among the survey’s major findings:

Law firm hiring declined across the board

While it’s clear that law firm jobs are far scarcer now than they were two or three years ago, the data shows just how dramatic the change has been. For example, the size of the 2L summer associate class dropped by some 20 percent since 2008. In addition, far fewer of those summer associates were offered permanent positions than in the past: whereas nearly 93 percent of 2Ls were offered jobs in 2007 and 87.83 percent received offers in 2008, just 72.85 percent of 2Ls received permanent offers in 2009. Law firms also cut back drastically on the recruitment of experienced attorneys, with lateral hiring falling by more than 40 percent from 2008 levels.

Minority recruitment fell

Law firms have been primarily relying on increased minority recruitment to diversify their populations. What’s particularly troubling about the latest survey data is that not only did the overall number of attorneys hired drop in 2009, but also the percentage of those attorneys representing racial/ethnic minorities fell.

In fact, recruitment of minority lawyers declined at all levels — from law students to lateral attorneys. Of all lawyers hired in 2009 (including starting associates as well as laterals), less than 20 percent (19.09 percent) were minorities; a considerable drop from 2008 (21.77 percent) and 2007 (21.46 percent). And the 2009 2L summer class had the lowest percentage of minority students of the last three years: 25.19 percent (compared to 25.66 percent in 2008 and 25.91 percent in 2007).

Looking at specific racial groups, the most notable decline in hiring was among African-American students. In 2007, 7.32 percent of 2L summer associates were African-American; in 2009, that percentage fell to 6.42 percent. The percentage of Asian American 2Ls also declined, from 12.83 percent in 2007 to 11.74 percent in 2009. Meanwhile, the number of Hispanic students and multiracial students (those who identify with two or more races) inched upward a few tenths of a percent.

Minority lawyers continue to leave in high numbers

Meanwhile, as the number of minority lawyers entering firms has decreased, the number of minority lawyers leaving firms has increased. This is especially striking with respect to minority women. At every level of associate, the percentage of minority women who left their firms (voluntarily or through layoffs) has increased by at least two percentage points since 2007. For example, of third-year associates who left in 2009, 16.64 percent were minority women (compared to 13.98 percent in 2008 and 14.36 percent in 2007). In 2007, 12.83 percent of fourth-year associates who left their firms were minority women; by 2009, that number had climbed to 15.46 percent.

Overall, minority men and women represent 20.79 percent of attorneys who left their firms in 2009 — even though they represent just 13.44 percent of the overall attorney population at these same firms. Moreover, for the first time in three years, the percentage of minority attorneys hired was lower than the percentage of minority attorneys who left. In other words, firms are losing their minority attorneys faster than they can replace them.

Retention becomes more critical as recruitment drops

Given the likelihood that law firm recruiting will not return to pre-recession levels any time soon, there’s a danger that even a one-time drop in minority recruitment could have a long-term impact on overall law firm populations. In order to fend off this risk, firms will need to put greater effort into retention and professional development. Retention has long been a problem among large law firms, but the new economic reality makes progress in this area critical. More effective mentoring and mentoring, better monitoring of attorneys’ progress, overcoming unconscious biases, and ensuring that all have equal access to significant opportunities will help law firms build, and maintain, a talented and diverse workforce.

© 2010 Vault.com Inc.

About the Author:

Vera Djordjevich is senior law editor at Vault.com, where one of her areas of focus is diversity in the legal profession. She oversees the research and publication of information about law firm diversity initiatives and metrics for the Vault/MCCA Law Firm Diversity Database. She also edits Vault.com’s content related to law practice in the UK and co-authors Vault’s law blog, which provides career news, advice and intelligence to the legal community. Prior to joining Vault, Ms. Djordjevich was an editor at American Lawyer Media and practiced law in a small litigation firm in New York. She has a law degree from New York University School of Law and a bachelor’s degree from Stanford University.  www.vault.com / 212-366-4212

National Law Review's Student Legal Writing Contest – October is Health Care Month!

Alert the Media!  The National Law Review is offering law students the opportunity to publish their work in the months of October & November. No entry fee is required.

  • Entries will be judged and the top two articles chosen will be featured in the NLR monthly magazine prominently displayed on the NLR home page. Up to 5 runner-up entries will also be posted in the NLR searchable database each month.
  • Each winning article will be displayed accompanied by the student’s photo, biography, contact information, law school logo, and any copyright disclosure.
  • All winning articles will remain in the NLR database for two years (subject to earlier removal upon request of the law school).
  • For more details go to NLR Writing Competition.

Why Students Should Submit Articles

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

The Submission Deadline for October is Monday September 27th!