Category: Uncategorized

Pennsylvania Liquor Control Board Tackles Wine Slushie Sales by Restaurant Licensees

Ever since beer distributors in Pennsylvania were permitted to sell growlers for off-premises consumption, which is loosely interpreted as a closed container by the Pa.L.C.B., there has been an influx of beer distributors installing slushie machines and selling malt beverage slushies. Now, are wine slushies fair game?

In a recent Legal Advisory Opinion from the Pa.L.C.B., a question was presented as to whether Pennsylvania restaurant licensees that hold an additional Wine Expanded Permit (“WEP”) can sell wine to go in a container with a sealed lid.

Specifically, the question related to whether a WEP permits the sale of wine slushies to go in a sealed container.

As a bit of background, a WEP can be obtained by any restaurant licensee in Pennsylvania and permits the sale of wine, or wine-based drinks, for off-premises consumption. The sales of wine cannot exceed 3,000 milliliters in a single transaction (typically 4 bottles of wine), similar to the 192-fluid ounce (two six-packs) limitation for off-premises beer sales by a restaurant licensee. The sale of wine and beer can occur during the same transaction so long as the respective volume limitations are met for each product. Interestingly, the statute authorizing the issuance of the WEP to restaurant licensees does not have any limitations on the sale of wine to go, other than that the sale prices must not be less than what the licensee paid for the product from the Pa.L.C.B.

Now that we have covered the law related to a WEP, what was the Pa.L.C.B.’s response to the question in the Legal Advisory Opinion?

The Pa.L.C.B. stated that, because there are no other limitations for a WEP other than selling 3,000 milliliters or less in a single transaction, a WEP holder can sell wine slushies to go in any container, and are not limited to sales of wine in the container it was purchased by the WEP holder. This would permit wine, or any other wine-based drinks without any other alcohol mixed in, to be poured in a cup with or without a lid and sold for off-premises consumption as long as the volume does not surpass 3,000 milliliters in a single transaction.

It is important to note, however, that your local municipality may have open container rules that the licensee or its consumers must follow. With the proliferation of malt beverage slushie sales at beer distributors, I have to imagine this is something the municipalities have dealt with and are aware of. As far as Pennsylvania state law, this legal opinion clearly permits WEP holders to serve wine or wine cocktails (without liquor) in “to go” containers.

Additionally, the Pennsylvania Liquor Code generally prohibits the fortification or adulteration of any liquor, which includes wine.

The Pa.L.C.B. will permit the mixing or infusing of liquor or wine, but such mixtures or infusions, which are mixed in large volumes, must be discarded at the end of the business day. The Pa.L.C.B. has issued numerous advisory opinions stating that adding ice or water to create malt beverage slushies in the slushie machine would be adulterating the original product, but it appears this Legal Advisory Opinion permits WEP holders to serve wine-based drinks for off-premises consumption. In fact, there have been previous opinions that Distributor licensees were not permitted to mix because they are not permitted to have on-premises sales, which restaurant licensees are permitted to do. Therefore, if a WEP holder must add ice or water to the slushie machine to freeze the wine to make wine slushies, it must be discarded daily at the end of the business day (11 p.m. for WEP sales). To the extent that the slushie, or wine cocktail, is a single-serve preparation, those products can be sold in any container for off-premises consumption to the extent permitted by local ordinance.

Finally, because slushie machines have been determined to be “dispensing systems” (like a malt beverage draft system) they must be cleaned in conformance with the Pennsylvania Liquor Code, which requires weekly cleaning depending on the system you are operating.

©2020 Norris McLaughlin P.A., All Rights Reserved

For more liquor licensing updates, see the National Law Review Biotech, Food & Drug law page.

U.S.- Iran Tensions Raise Concerns for International Travel

On January 4, 2020, U.S. Customs and Border Patrol (CBP) detained and questioned more than 60 individuals of Iranian descent at a Washington State border crossing as they attempted to return to the United States from Canada. According to news reports, CBP officers questioned a number of the travelers about their families, military backgrounds, and ties to Iran.

In response to concerns expressed by immigration advocates that CBP was singling Iranians out due to tensions between the United States and Iran, CBP issued a statement stating:

Social media posts that CBP is detaining Iranian-Americans and refusing their entry into the U.S. because of their country of origin are false. Reports that [Department of Homeland Security]/CBP has issued a related directive are also false.

According to CBP, processing times were slow due to staffing shortages and the volume of people seeking to enter the United States. News reports indicate that most of the travelers were released after being questioned and were admitted to the United States.

Moving Forward

The Department of Homeland Security (DHS) recently updated the National Terrorism Advisory System to warn against potential threats against the United States from Iran. In its January 4, 2020 Bulletin, DHS stated that while there are currently no credible threats, the agency will be working to detect and defend against potential threats and will enhance security measures as needed. Since it is unclear what these security measures may entail, out of an abundance of caution, individuals with Iranian heritage, including those who are U.S. citizens, may want to remain in the United States. Those who travel internationally may risk being subjected to additional scrutiny upon their return to the United States.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

For more U.S. Customs and Border Patrol updates, see the National Law Review Immigration Law section.

Can an Employer Implement a Nicotine-Free Hiring Policy?— It Depends on State Law (US)

Nicotine products are highly addictive and have been linked to a variety of serious health issues, including lung cancer and other respiratory illnesses.  In addition to the numerous health risks associated with nicotine use, there is also a causal connection between employee nicotine use and lower productivity in the workplace, as well as higher healthcare costs for employers.  In response to these issues, and in an effort to promote and empower a healthy workforce, more employers are enacting health-conscious workplace policies and anti-smoking/vaping initiatives.

In fact, over the last decade, employers—particularly hospitals and businesses in the medical field—have adopted anti-smoking/vaping policies in those states in which it is lawful to do so, with the goal of encouraging a more healthy work environment, as well as to increase worker productivity and reduce healthcare costs.  As the health risks associated with nicotine use become increasingly apparent (particularly with the recent wave of vaping-related illnesses), it is likely that more employers will consider their policies toward these important health issues. For example, on December 30, 2019, U-Haul International announced a new nicotine-free hiring policy that will go into effect in 21 states on February 1, 2020.  Although U-Haul subsidiaries operate in all 50 US states and 10 Canadian provinces, due to legal restrictions in some jurisdictions, the policy will be implemented only in the following 21 US states: Alabama, Alaska, Arizona, Arkansas, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa, Kansas, Maryland, Massachusetts, Michigan, Nebraska, Pennsylvania, Texas, Utah, Vermont, Virginia, and Washington.  Prospective employees in those states will see statements regarding the nicotine-free hiring policy on application materials and will be questioned about nicotine use. Further, to be considered for employment in states where nicotine testing is allowed, applicants will be required to consent to submit to nicotine screening in the future.  U-Haul employees hired prior to February 1, 2020 will not be affected by the new policy.

U-Haul will be the first major company in its field to refuse to hire applicants who are nicotine users, and the new policy has caused some to question whether companies which, like U-Haul, are deeply invested in the well-being of their employees, are allowed to enact such policies.  The answer to that question depends on the jurisdiction in which the company operates.  Nicotine users are not a “protected class” under any federal anti-discrimination law, and thus state law governs this issue.  In each of the 21 states in which U-Haul companies will implement its policy, there are no laws that protect the rights of nicotine-users or prohibit employers from declining to hire applicants due to their engaging in otherwise lawful conduct outside the workplace.  Therefore, a policy refusing to hire nicotine users is perfectly legal in those jurisdictions, and employers in those states are free to enact nicotine-free hiring policies if they so choose.

However, employers who are considering implementing such nicotine-free hiring policies should tread carefully.  The rest of the 29 states where U-Haul subsidiaries are not implementing its policy (and the District of Columbia) have various anti-discrimination or employee privacy laws preventing employers from enacting such policies.  These states provide varying degrees of protection to employees.  For example, some states broadly forbid employers from discriminating against applicants or employees based on the use of “lawful products” or for “lawful conduct,” whereas other state laws specifically protect an applicant’s or employee’s right to smoke or use other tobacco products.  Although these states are generally more employee-friendly in this context, in some of these jurisdictions, employers can require smokers to pay higher health insurance premiums, so long as the additional amount reflects the actual differential cost to the employer.  Further, employers can still regulate and limit an employee’s on-site smoking, and can typically offer financial incentives for employees who participate in wellness programs to help them quit smoking.

Given the state-specific nuances associated with this issue, employers thinking about implementing a nicotine-free hiring policy should consult with an attorney before implementing such a policy to ensure it may lawfully do so.

© Copyright 2020 Squire Patton Boggs (US) LLP

For more on employers’ healthy-workplace initiatives, see the National Law Review Labor & Employment law section.

Sustainability: Environmental, Social, and Governance (ESG)

Understanding the environmental, social, and governance (ESG) issues of today’s business world are key to understanding the discussion of sustainability and climate change (a sub-topic of each ESG and sustainability).  For example, a sustainable business that demonstrates strong ESG planning, will often include climate change risk management.

Today’s press informs that mounting pressure from the United Nations participants continues to build a focus on reducing greenhouse gas emissions.  The UN’s 25th Session of the Conference of the Parties (COP25) to the UN Framework Convention on Climate Change was held in Madrid from December 2 – 13.  The U.S. filed a notification of withdrawal from the Paris Agreement on November 4, 2019.  The U.S. State Department has announced it will continue to participate in ongoing climate change negotiations and meetings, such as COP25, to ensure a level playing filed that protects U.S. interests.  Also, the UN released its report noting the emissions gap they observe that demonstrates the difference between amounts of carbon dioxide emitted now and lower levels predicted as necessary to stop global warming.  The question being asked is whether there are missed opportunities to achieve GHG reduction goals.

Domestic and international companies are in the process of reviewing their ESG reports to assess last year’s accomplishments and in setting goals and action items for the new year of 2020 and beyond.  Climate change and other sustainability concerns like waste management are clearly on the minds of many.  There is no single formula for a well-developed ESG strategy and report, since each is as unique as the individual company about which the report speaks.  There are common ESG themes, however.  The UN Sustainability Goals provide a convenient list of well-refined issues against which a company (or individual) can assess their opportunities and vulnerabilities.  The goals set forth a number of environmental, social, and governance topics worthy of note to include: poverty, hunger, good health, education, gender equality, clean water, affordable and clean energy, decent work and economic growth, industry/innovation/infrastructure, reduced inequality, sustainable cities/communities, responsible consumption and production, climate action, life below water, peace and justice, and partnership to achieve the goal.  These are the types of issues to consider when exploring ESG and sustainability.  Consultation of the Global Reporting Initiative (GRI) and the Sustainability Accounting Standards Board (SASB) can also assist.  Keep in mind that there is no one gold standard metric against which to measure ESG ratings or accomplishments.  The reason for that is simple, each company has a different complement of skills, talents, and opportunities or stated differently, ESG risks and solutions.

If you were to review a few ESG reports found on corporate websites, it will become apparent the differences and unique qualities of each reporting company.  Geographic locations of operations can define the ESG goals.  If operating in major metropolitan cities as opposed to emerging countries, the corporate responsibilities are quite varied.  If manufacturing consumer products, packaging is an attractive target for reduction in waste.  However, if manufacturing items used in the value chain, perhaps an ESG goal is managed through energy consumption during manufacturing or delivery of products.  If providing medical services, the ESG goals can be energy, water, supply chain, waste, etc.  Just as each of us possess capabilities and assets we can use to invest in our future, the same is true for companies.  We must acknowledge the unique accomplishments and actively invite the benefits gained from a collective effort.

The final item listed by the UN Sustainability goals is partnership, meaning the efforts and benefits should be shared.  We all must work together to achieve the change we need.  All contributions must be welcomed to build the sense of common good.

© Steptoe & Johnson PLLC. All Rights Reserved.

For more on global sustainability efforts, see the National Law Review Environmental, Energy & Resources Law section.

Legal Marketing and SEO Trends for 2020 Part 2: Dwell Time, EAT and Law Firm Branding

John McDougall discussed creating Deep Content, LSI (Latent Semantic Indexing) and topic clusters with us yesterday, detailing how these SEO concepts present great opportunities for law firms who are looking to position their attorneys as subject matter experts.  John explained how Google’s recent algorithm changes such as BERT, which is designed to help users find true topic experts, provide a bounty of opportunities for legal marketers who properly position their lawyers’ expertise to achieve top search results. Today John is going into more detail on the concepts of webpage dwell time, expertise, authority and trustworthiness (EAT), and law firm branding.

NLR:  In your book, you talk about the intersection of “dwell time” and the idea of the “long click” as ways Google is using AI (Artificial Intelligence) to try to figure out the relationship between the search term and the webpage that term led the user to.  Do you see any other areas AI will impact SEO on the horizon?  

JM:  Google has been modifying its search engine, to improve its ability to understand complex queries for some time.

Hummingbird in 2013 was a rebuild of their main “engine” partially in response to there being more searches via voice.

RankBrain in 2015 added more machine learning to improve Hummingbird even further (for searches they had never seen before and complex long-tail queries). They said it was the 3rd most important factor with content and links.

Now with BERT in 2019/2020, they can already understand the intent of a search much better.

Considering they keep increasing the ability to provide relevant results that match the searcher’s intent, I would assume it will change SEO, yet again…

I would expect writing tools to get much more robust. This might be based on “big data” from social profiles, and through analyzing massive volumes of the world’s information written by experts that can be given to a writer/attorney on a silver platter. That might help in one part of SEO.

It is exciting to watch as long as you can stay nimble, follow the “algorithm weather channel” and adjust quickly when new updates are released.

NLR:  Another core theme of your book is the role of brands, and the idea of EAT, or expertise, authority, and trustworthiness. How do these ideas enter into a keyword strategy for law firms?

JM:  As an expert in a particular field of law, you should be associated with certain keywords which show you are a thought leader in that topical area. With SEO being MUCH more competitive and complex than ever, you may need to be more realistic and pick keywords that better match what you can write about comprehensively.

This can also affect the design of law firm websites and brand positioning. If you have fifty practice areas on your home page, you might consider featuring ones where you will be doing extensive writing and SEO work.

NLR:  Can you explain the idea behind the Eric Schmidt quote: “Brands are how you sort out the cesspool,” which you discuss in your book?

JM:  There are “black hat” SEO people that are the cesspool. They do sketchy things to try and trick Google into “liking” websites. Those tactics used to work on small law firm’s websites that did not deserve rankings. Thankfully, using brand signals like how many times people search for your brand and mention/link to your brand, Google is better able to rank sites that have a real-world value beyond SEO tactics.  The book, Content Marketing and SEO for Law Firms, offers several examples of brand signals and how they apply in a law firm context.

NLR:  What audience did you write your book for and who do you think will be the best audience for your January 15th webinar? 

JM:  Anyone trying to improve their law firm website and marketing will benefit greatly from Content Marketing and SEO for Law Firms, but firms that take action on it will get the most out of it. These content and SEO actions can be small to start but the key is to be consistent.

The content marketing and SEO guide is primarily written for law firm marketers, but it’s also for attorneys because they need to have an idea of how marketing strategy can directly affect the growth of their firm. The sections the attorneys should consider as “must-reads” are marked with a gavel icon.

This webinar will have enough insight on strategy that both law firm marketers and attorneys/department heads should attend.

 

Thanks, John for your time and insight.  For those who haven’t had the opportunity to hear John speak at various legal marketing events or read his previous publications to gain insight from his 20+ years of experience, the following webinar and his new book are great opportunities to get actionable advice on how to build an SEO roadmap for legal marketers in 2020:

Register for the January 15th complimentary webinar:  How to Develop an Effective Law Firm Content Marketing and SEO Action Plan for 2020.

Receive a sample chapter of John’s new book: Content Marketing and SEO for Law Firms.

 

Copyright ©2020 National Law Forum, LLC

ARTICLE BY Jennifer Schaller of The National Law Review / The National Law Forum LLC.
Read more about marketing for law firms in the Law Office Management section of the National Law Review.

Health Law Section Report – September-December 2019

  • On September 16, 2019, at 51 N.J.R. 1462(a), the Department of Human Services, Division of Medical Assistance and Health Services, published an adoption of a correction to an error in the text of the definition of “nurse delegation” in the definitions set forth in N.J.A.C. 10:60-1.2. During the comment period, Disability Rights New Jersey (DRNJ) submitted a comment pertaining to the definition of nurse delegation. As part of the comment, DRNJ requested DMAHS to add “pursuant to N.J.A.C. 13:37-6.2” after “selected nursing tasks” to clarify what selected nursing tasks referred to (see Comment 16). DMAHS agreed to the change; however, in making the addition upon adoption, DMAHS inadvertently added the cross-reference as “N.J.A.C. 10:37-6.2.” The adoption corrects the error and inputs pursuant to N.J.A.C. 13:37-6.2.
  • On October 7, 2019, at 51 N.J.R. 1493(a), the Department of Human Services, Division of Medical Assistance and Health Services, published a rule proposal for a new chapter, N.J.A.C. 10:52B, to implement The County Option Hospital Fee Pilot Program. The purpose of the pilot program is to increase financial resources through the Medicaid/NJ FamilyCare program to support local hospitals in providing necessary services to low-income residents. The pilot program shall be in effect for a period of five years from April 30, 2019 and will end on April 30, 2024.
  • On October 7, 2019, at 51 N.J.R 1514(a), the Department of Law and Public Safety, Division of Consumer Affairs, Board of Medical Examiners, adopted an amendment to the athletic trainer continuing legal education requirement at N.J.A.C. 13:35-10.21, to require one credit in topics concerning prescription opioid drugs, including the risks and signs of opioid abuse, addiction, and diversion, commencing with the biennial renewal period beginning on February 1, 2019.
  • On October 7, 2019, at 51 N.J.R 1546(a), the Commissioner of the Department of Health published a notice of petition for rulemaking submitted by the New Jersey Hospital Association to make certain amendments to N.J.A.C. 8:43G Hospital Licensing Standards, Subchapter 14 Infection Control, N.J.A.C. 8:43G-14.9, Sepsis protocols, as recommended by CMS and the Surviving Sepsis Campaign, known as Sepsis-1.
  • On October 21, 2019 at 51 N.J.R. 1568(a), the Department of Law and Public Safety, Division of Consumer Affairs, Board of Physical Therapy Examiners, published a proposal to amend rules for supervision of licensed physical therapy assistants to clarify the record keeping regulations (N.J.A.C. 13:39A-7.2 and 7.3) in a manner that in the event patient records are maintained on computer recordkeeping systems that do not permit a supervising licensed physical therapist to sign a licensed physical therapist assistant’s notes, the supervising licensed physical therapist will be able to enter a separate note in the record indicating that he or she reviewed the licensed physical therapist assistant’s notes or the plan of care with the physical therapist assistant. This is meant to avoid a de facto dual signature requirement.
  • On November 4, 2019 at 51 N.J.R. 1597(a), the Department of Law and Public Safety, Division of Consumer Affairs, Board of Medical Examiners proposed amendments to its existing rules concerning graduate medical education programs in order to update the eligibility requirements for graduates of international medical schools who seek licensure or authorization to engage in the practice of medicine as residents. The proposed amendments would replace outdated restrictions on graduates of international medical schools pursuing licensure or authorization in New Jersey and allow the Board to rely on recognized accrediting bodies for international medical schools that adhere to standards substantially similar to the bodies that accredit domestic medical schools. By expanding eligibility, the proposed amendments may positively affect the supply of physicians practicing in the State. The proposal seeks to amend N.J.A.C. 13:35-1.5, 3.11, and 3.11A.
  • On November 4, 2019 at 51 N.J.R. 1600(a) the Department of Law and Public Safety, Division of Consumer Affairs, Audiology and Speech-Language Pathology Advisory Committee (Committee) proposes new rules to effectuate the provisions of the telemedicine and telehealth statute for licensed audiologists and/or speech-language pathologists. The proposed new rules would be codified at N.J.A.C. 13:44C-11.
  • On November 18, 2019, at 51 N.J.R. 1638(a), the Department of Law and Public Safety, Division of Consumer Affairs, State Board of Dentistry, proposed amendments, repeals, and new rules to: 1) implement new laws; 2) update rules, terminology, citations, website addresses, and the names of the licensure examinations; and 3) clarify and codify current standards of practice and licensure and registration requirements. The rulemaking reflects updates related to statutory changes, additions to enhance the safety of patients receiving dental services and those working in the profession, and identifies continuing education courses that must be completed in each renewal period. In response to adverse incident reports and news articles from across the country, the Board is proposing amendments to the sedation rules to enhance the safety of patients receiving dental services. Because the Board is seeing incidents of trained individuals achieving a deeper level of sedation than intended, the Board wants to provide more guidance to the regulated community as to what is expected so as to enhance patient safety. See N.J.A.C. 13:30. Comments due January 17, 2020.
  • On November 18, 2019, at 51 N.J.R. 1664(a), the Department of Law and Public Safety, Division of Consumer Affairs, State Acupuncture Examining Board (Board) proposed to amend N.J.A.C. 13:35-9.20 to require licensed acupuncturists to hold current certification in cardiopulmonary resuscitation (CPR), first aid, and the use of an automated external defibrillator (AED) as part of continuing education required to renew licensure. The certification must be from the American Heart Association, or a substantially similar course approved by the American Red Cross, National Safety Council, Coyne First Aid, Inc., American Safety and Health Institute, EMP International Inc., or EMS Safety Services Inc. In recognition of the hours required to obtain the certification, the Board proposes to reduce the number of required continuing education hours from 30 to 26. The Board is changing the total credits that could be obtained by certain methods to reflect that half of the total required hours will be 13 rather than 15. The Board also proposes to allow licensees who complete more than the continuing education hours required to renew licensure to apply those additional hours to the immediately succeeding biennial license renewal period. See N.J.A.C. 13:35-9.20.
  • On November 18, 2019, at 51 N.J.R. 1666(a), the Department of Law and Public Safety, Division of Consumer Affairs, Board of Massage and Bodywork Therapy proposed amendments that would require applicants for licensure and licensed massage and bodywork therapists to physically attend CPR, first aid, and use of an automated external defibrillator (AED) courses, would require licensed massage and bodywork therapists to complete continuing education in laws and rules pertinent to the practice of massage and bodywork therapy, and would end recognition of continuing education courses provided by schools, colleges, or universities. See N.J.A.C. 13:37A-2.1, 2.2, 2.3, 4.1, and 4.2.
  • On November 18, 2019, at 51 N.J.R. 1674(a), the Department of Law and Public Safety, Division of Consumer Affairs, State Board Of Marriage And Family Therapy Examiners, Art Therapists Advisory Committee adopted new rules at N.J.A.C. 13:34D requiring licensure of art therapists and providing rules governing licensed art therapists. The new rules require licensed art therapists to preserve the confidentiality of information obtained from a client in the course of professional treatment unless disclosure is required by Federal law and requires an art therapist whose client has explicitly waived the art therapist-client confidentiality privilege to release client information to a third-party payor whose benefit plan is qualified under the Federal Employee Retirement Income Security Act (ERISA). In addition, the new regulations provide that failure to comply with Federal laws related to the practice of art therapy will be deemed professional misconduct. See N.J.A.C. 13:34D.
  • On November 18, 2019, 51 N.J.R. 1688(a), the Department of Law and Public Safety, Division of Consumer Affairs, Board of Massage and Bodywork Therapy readopted rules with amendments, adopted repeals and new rules regarding licensure, reinstatement and reporting of misconduct, record keeping and business registration. See N.J.A.C. 3:37A.
  • On November 18, 2019, 51 N.J.R. 1691(a), the Department of Law and Public Safety, Division of Consumer Affairs, Orthotics and Prosthetics Board adopted a new rule regarding the abandonment of license applications due to incomplete information on the application or a one year lapse in submission of information requested by the Board. See N.J.A.C. 13:44H-3.5A.
  • On November 18, 2019, 51 N.J.R. 1691(b), the Department of Law and Public Safety, Division of Consumer Affairs, Orthotics and Prosthetics Board adopted a new rule to implement the telemedicine statute and to permit the use of telemedicine and telehealth by licensed orthotist, orthotist assistant, pedorthist, prosthetist, prosthetist assistant, prosthetist-orthotist, or prosthetist-orthotist assistant. See N.J.A.C. 13:44H-11.
  • On December 2, 2019, at 51 N.J.R. 1761(a), the Department of Law and Public Safety, Division of Consumer Affairs, State Board Of Marriage And Family Therapy Examiners, Alcohol & Drug Counselor Committee adopted amendments to the rules regarding who may provide clinical supervision to interns and counselors. See N.J.A.C. 13:34C-6.2, 6.2A, and 6.3.
  • On December 2, 2019, at 51 N.J.R. 1806(a), the Commissioner of the Department of Health published a notice of action on rulemaking by announcing that more time is required for deliberating on the adoption of new sepsis protocols for hospitals, as proposed on October 7, 2019 at 51 N.J.R 1546(a).
  • On December 16, 2019, at 51 N.J.R. 1841(a), the Department of Law and Public Safety, Division of Consumer Affairs, State Board of Physical Therapy Examiners proposed an amendment and new rule recognizing the provisions of the Compact privileges that would require physical therapists and physical therapist assistants working in New Jersey, under Compact privileges, to comply with Board rules, except for those governing credentialing of applicants, license renewal, and continuing education. The proposed amendment and new rule require those seeking to work in New Jersey, pursuant to Compact privileges, to pass the State jurisprudence examination and to pay the Compact privilege fee ($40).
  • On December 16, 2019, at 51 N.J.R. 1849(ab), the Department of Law and Public Safety, Division of Consumer Affairs, State Board of Medical Examiners adopted amendments to the rules regarding continuing medical education that would permit up to 10 hours volunteer medical service to uninsured low income patients to count towards the required CME requirement. See N.J.A.C. 13:35-6.15.

© 2020 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

For more health care developments in New Jersey and other states, see the National Law Review Health Law & Managed Care section.

 

Escalated Tension with Iran Heightens Cybersecurity Threat Despite Military De-Escalation

The recent conflict between the United States and Iran has heightened America’s long-time concern of an imminent, potentially lethal Iranian cyber-attack on critical infrastructure in America.   Below, is the latest information including the United States Government’s analysis on the current standing of these threats as of January 8, 2020. 

CISA Alert

The U.S. Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) issued Alert (AA20-006A) in light of “Iran’s historic use of cyber offensive activities to retaliate against perceived harm.”  In general, CISA’s Alert recommends two courses of action in the face of potential threats from Iranian actors: vulnerability mitigation and incident preparation.  The Alert specifically instructs organizations to increase awareness and vigilance, confirm reporting processes and exercise organizational response plans to prepare for a potential cyber incident.  CISA also suggests ensuring facilities are appropriately staffed with well-trained security personnel who are privy to the tactics of Iranian cyber-attacks.  Lastly, CISA recommends disabling unnecessary computer ports, monitoring network, and email traffic, patching externally facing equipment, and ensuring that backups are up to date.

Iranian Threat Profile

CISA asserts that Iranian cyber actors continually improve their offensive cyber capabilities. These actors are also increasingly willing to engage in destructive, kinetic, and even lethal cyber-attacks.  In the recent past, such threats have included disruptive cyber operations against strategic targets, including energy and telecommunications organizations. There has also been an increased interest in industrial control systems (such as SCADA) and operational technology (OT).  Refer to CISA’s Alert and the Agency’s “Increased Geopolitical Tensions and Threats” publication for specific Iranian advanced persistent threats to the nation’s cybersecurity.

Imminence of an Iranian Cyber-attack

While CISA urges vigilance and heightened prudence as it pertains to cybersecurity, DHS has been clear that there is “no information indicating a specific, credible threat to the Homeland.”  Nevertheless, the same National Terrorism Advisory System Bulletin publication (dated January 4, 2020) warns that Iran maintains a robust cyber program. This program can carry out attacks with varying degrees of disruption against U.S. critical infrastructure. The bulletin further states that “an attack in the homeland may come with little to no warning.”  There is also a concern that homegrown violent extremists could capitalize on the heightened tensions to launch individual attacks.  With the ongoing tension, it is unlikely that the imminence of an Iranian cyber-attack will dissipate in the near term.

Implications

It is vital for businesses, especially those deemed critical infrastructure, to stay apprised of new advances on these matters.  Given that the Alert calls for organizations to take heightened preventative measures, it is imperative that critical infrastructure entities revisit their cybersecurity protocols and practices and adjust them accordingly.  A deeper understanding of the organizational vulnerabilities in relation to this particular threat will be imperative.

© 2020 Van Ness Feldman LLP

For more on cybersecurity, see the Communications, Media & Internet section of the National Law Review.

Illinois House Bill Requires Corporations to Report to Secretary of State

House Bill 3394, approved by the Governor on August 27, 2019 and effective immediately (Public Act 100-589), amends the Business Corporation Act of 1983 (“BCA”) to add new Section 8.12 and amend Section 14.05.

New BCA Section 8.12 provides that domestic and foreign corporations, as soon as possible but not later than January 1, 2021, to report to the Secretary of State, on its Annual Report:

  1. Whether the corporation is a publicly held domestic or foreign corporation with its principal executive office located in Illinois
  2. Data on specific qualifications, skills and experience that the corporation considers for its board of directors, nominees for the board of directors and executive officers
  3. Whether each member of the corporation’s board of directors self-identifies as a minority person and, if so, which race or ethnicity to which the member belongs
  4. Other information

New BCA Section 8.12 also requires the Secretary to State to make the information public and report the information to the University of Illinois which is to review the reported information and publish, on its website, a report that provides aggregate data on the demographic characteristics of the boards of directors and executive officers of corporations filing an annual report for the preceding year along with an individualized rating (establish by the University of Illinois assessing the representation of women and minorities on corporate boards)  for each such corporation. The University of Illinois’ is also required to identify strategies for promoting diversity and inclusion among boards of directors and corporate executive officers.

BCA Section 14.05 as amended adds new Sections 14.05(k) and 14.05(l).  New BCA Section 14.05(k) requires each corporation or foreign corporation to state on its Annual Report whether the corporation has outstanding shares listed on a major United States stock exchange and is thereby subject to the reporting requirements of new BCA Section 8.12.  New BCA Section 14.05(l) requires corporations subject to new BCA Section 8.12 to provide the information required by new BCA Section 8.12.

It is our understanding that Form 14.05, Illinois Annual Report, is currently being amended to reflect these changes.

© Horwood Marcus & Berk Chartered 2020. All Rights Reserved.

For more on corporate reporting requirements, see the National Law Review Corporate & Business Organizations law page.

SEO for Law Firms in 2020 with John McDougall, Part 1: How to Hit a Moving Target with Bounce Rate, LSI Keywords, and Deep Content

SEO is a moving topic–especially for law firms who also deal with frequently changing legal developments.  To help legal marketers stay on top of the moving targets of SEO, litigation, and regulatory changes, we spoke with John McDougall of McDougall Interactive. Mr. McDougall has recently authored Content Marketing and SEO for Law Firms and will be holding a free webinar on January 15th to discuss the most vital SEO changes legal marketers should keep in mind for 2020.

The following is the first installment of a two-part series on law firm SEO trends and best practices for 2020:

NLR:  What SEO changes do you think provide the most opportunities for savvy legal marketers?

JM:  Google is looking for experts and experts naturally use language that Google’s latest algorithms can pick up on. With the recent BERT update, Google improved its understanding of natural language, and they describe BERT as their “biggest leap forward in the past five years.”

NLR:  Yes, and law firms are always trying to position their attorneys as experts, as the go-to leaders and experts in their particular area of legal expertise.  Can you discuss some strategies for legal marketing professionals who work with attorneys, and how they can help attorneys write with SEO in mind, or translate their content so it is more SEO friendly?

JM:  It helps if attorneys and ghostwriters who write for law firms use keyword tools like Ubersuggest and SEMrush, but they are just a starting point. They also need to write conversationally and with the user in mind, rather than overly fixating on the search engines.

Writing longer in-depth content that is not too stiff and has been corrected for grammar and spelling issues will outrank a very long page that has been robotically stuffed with keywords. Using a tool like Grammarly can help with the basics.

NLR:  In your book, you discuss the need to add related keywords, or LSI and topic clusters.  Can you explain and provide examples of how related keywords, topical clusters or LSI apply to legal marketing?

JM: LSI (Latent Semantic Indexing) Keywords are conceptually related terms that search engines use to deeply understand the content on a webpage.

Example: If you want to rank for “how to file a trademark”, you can use Google auto suggest to find related terms. As you type into your browser bar, you see something like this:

image1

Google and other search engines used to figure out a page’s topic based 100% on the keywords they found on the page.   In 2020, Google is more focused on figuring out a page’s overall topic. SEMrush has a great tool (see below) that builds a mind map when you give it what topic you want to write about.

NLR:  You highlighted bounce rate as a critical metric; however, how do law firm websites balance design and lowering the bounce rate while simultaneously  providing readers with the specific information they’re looking for (like a change in the minimum wage rate or a relatively straightforward answer to a legal question, like when a law goes into effect, etc.) How do you make law firm website pages stickier?

JM:  It is ok if some pages, like a minimum wage rate change page, have a high bounce rate. Google is smart enough to know the goal of the page. With that said, law firm marketers would be wise to monitor the bounce rate of at least their most visited pages.

image2
Using related keywords and related sub topics is essential for covering a topic deeply.
Image from the SEMRush mindmap tool.

Any webpage can be improved by making it load faster, have a clearer value proposition, a better headline, better writing in general, higher quality images and links to other related pages. Usersthink.com, Usertesting.com, and Hotjar.com are a few of the tools I will discuss on the webinar for increasing stickiness and conversions.

NLR:  You discuss creating deep content—what does that mean?  How long should an article or blog post be – should pages be 500 words, for example?  

JM:  If you search for how to file a trademark, many of the top ten results are well over 1,000 words. Gerben Law has a nice page on trademarks that is about 1,500 words. Not all your content has to be that long but if the top 5 results for your topic are 1,000 plus words, you may need to test increasing your webpages’ depth.

NLR:  Many lawyers view law firm websites as a sales tool, but you discuss how to “use the opportunity to focus on your user’s needs, as opposed to your own sales pitch.” What does that look like in execution? Can you give us an example?  Aren’t all effective webpages supposed to have some sort of ‘call to action’?

JM: The Gerben trademark page gives information away fairly freely and deeply (using related keywords and subtopics) but it also has a subtle call to action at the end: If you are unsure about how to file a trademark, our trademark attorneys are happy to talk with you about the services we offer.

Create marketing that people will love and engage with and you are on the right track.

 

Thanks, John and we look forward to part two of the series on law firm SEO trends and best practices for 2020 tomorrow: Legal Marketing and SEO Trends for 2020 Part 2: Dwell Time, EAT and Law Firm Branding.  Additionally, how law firm branding plays a key role in connecting Google’s algorithm changes with an effective strategy of positioning a law firm’s attorneys as the go-to experts in their field.

Register for the January 15th complimentary webinar:  How to Develop an Effective Law Firm Content Marketing and SEO Action Plan for 2020.

Receive a sample chapter of John’s new book Content Marketing and SEO for Law Firms.

 

Copyright ©2020 National Law Forum, LLC

ARTICLE BY Jennifer Schaller of  The National Law Review / The National Law Forum LLC.
More on marketing for law firms in the Law Office Management section of the National Law Review.

How an Entire Class of Prison Guard Trainees Could Have Been Saved by a Simple Bystander Intervention Program

In December 2019, an entire class of West Virginia prison guard trainees was reportedly fired for giving the Nazi salute in their graduation photo.

The incident is not only a chilling display of a detestable symbol of genocide. It is also a crystal-clear example of the problem of the passive bystander. But modern training methods, based on current research on the science of bystandership, can help prevent such abuses before they occur. Such programs are being successfully adopted by law enforcement agencies and other organizations around the country.

What happened in West Virginia: Several news outlets have published the November graduation photo showing a class of over 30 prison guard cadets displaying the Nazi salute. According to published reports, the gesture was one cadet’s idea of a tribute to the group’s training officer. An internal investigation of the incident found that the training officer, Karrie Byrd, “saw nothing wrong with the gesture and allowed it to continue.” Several class members objected to the gesture, but went along out of fear of retaliation. Two other instructors saw the gesture and spoke out, thinking their duty to object was fulfilled. A corrections department Captain, Annette Daniels-Watts, reportedly recognized that the picture would cause the Department embarrassment, but allowed the photo to be printed and distributed with graduation materials. The Department’s subsequent internal investigation concluded that the entire class (and several of the instructors) should be fired. Acting on the recommendation, West Virginia Governor Jim Justice fired the entire class on New Year’s Eve.

Multiple opportunities to intervene: As goes the adage often attributed to Edmund Burke, the only thing necessary for the triumph of evil is that good people do nothing. We don’t know if there were any actual Nazis in the West Virginia cadet class, but it is safe to assume not all were. Many participants in the incident had opportunities to intervene, but none did. The instigator of the incident reportedly said he was honoring the instructor with the gesture. To classmates who objected, he assured them that since there was no racial motivation behind it, the gesture was acceptable. Two other instructors witnessed the gesture being made during training exercises and informed the class of the inappropriateness of the gesture. Those instructors reportedly thought their comments stopped the inappropriate behavior. Yet multiple instructors later saw the graduation photograph and did nothing to stop its publication. And the Captain in charge of cadet basic training, when shown the photograph by a secretary responsible for assembling the graduation materials, reportedly told the secretary, “oh, I should just pull it, but since you have them all already printed you might as well go ahead and stuff them into the packets.” At each of these moments, a bystander could have helped stop the activity. But the bystanders didn’t have the tools they needed to act effectively.

Inhibitors to action: Why do people fail to effectively intervene against a behavior they know is wrong? We all do it. The answer is that the tactics and strategies for successful intervention are not innate. We need to be trained to overcome factors that inhibit action in the face of bad behavior. The West Virginia investigation report concludes as follows:

  1. There is “no dispute” that the gesture and photograph were highly offensive.
  2. The investigation did not reveal any overt motivation or intent of discrimination “towards any racial, religious, or ethnic group.”
  3. Rather, the report identifies the factors behind the incident as “poor judgment, ignorance, peer pressure, and fear of reprisal.”

All the factors identified in the report are well-documented inhibitors to active bystandership. Importantly, good peer intervention techniques are proven to address such inhibitors. The program instituted by the New Orleans Police Department is one such program. The program is known as “Ethical Policing is Courageous,” or EPIC. It was implemented by the men and women of the NOPD with the support and guidance of several outside experts, including the Department’s judicially-appointed monitors. Since then, the EPIC program has been brought to other municipal police departments, and at least one university police department.

In law enforcement organizations, one of the main inhibitors to intervention is peer pressure, particularly when officers fear ostracism or retaliation from fellow officers. This effect is sometimes referred to as the “blue wall of silence.” That wall of silence is rooted in the value of protecting fellow officers from harm, but becomes pernicious when it suppresses intervention against bad acts.

Some corrective actions may miss the mark. According to some reports, West Virginia plans to begin training its corrections department staff about the Holocaust as a result of the cadet graduation photo incident. Surely a better understanding of the Holocaust would help the cadets see that the Nazi gesture is offensive. But it might not be a complete solution. It doesn’t address the inhibitors to intervention that are present in all such situations, and which are especially pervasive in law enforcement environments.

Active bystandership makes us all better. Good peer intervention training programs work precisely because they can break the wall of silence. For example, the EPIC program ties positive, early intervention to the value of protecting fellow officers. Instead of relying on ethics training, discipline, or negative reinforcement, the program emphasizes that stepping in to prevent misconduct can help save a fellow officer’s life, safety, or career. Intervention skills are taught as a learnable skill, on the same level as learning to operate the radio, use a firearm, or apply handcuffs. When active intervention skills become pervasive, problems can be prevented before a crisis occurs. The EPIC program has garnered positive reviews from many quarters.

The West Virginia government has rightly been praised for its transparent and thorough response to this incident, but crisis management is difficult and traumatic. If objectionable behavior can be stopped earlier, the need for an expensive crisis response can be avoided. More importantly, officers can learn to be better through the intervention of a peer. Aronie reports that “many officers will recount with gratitude” throughout their careers the story of a partner or sergeant who prevented a mistake or misconduct through active and early intervention.

Peer intervention can help prevent officer misconduct, but it can also have other positive effects, including to increase the effectiveness of enforcement methods, improve officer and inmate safety, increase community engagement, and prevent excessive use of force. There are some indications that it may also help reduce officer suicides. More broadly, active bystandership has the potential to make us all better in the face of evil. Ervin Staub is a prominent scholar of the psychology of peace and violence. In the preface to his book on bystander intervention, The Roots of Goodness and Resistance to Evil, Staub recounts stories of bystanders who resisted the Nazi persecution of Jews during WWII. In some cases, resistance changed the behavior of the perpetrators, and lives were saved. Among the lives saved were those of Staub and his family, who were protected by Christian bystanders in Hungary in the summer of 1944.

In the end, not all offensive conduct can be stopped. But we can do better with proper awareness, and we will be better for it. The West Virginia incident provides an excellent example of how better intervention could have helped a whole community. As New Orleans civil rights attorney Mary Howell has said, Staub’s work on peer intervention challenges us “to think about how to be better people and how to not be silent.”

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.

See the National Law Review Civil Rights law page for similar topics.