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The hippy ethos that birthed early management of the internet is beginning to look quaint. Even as a military project, the core internet concept was a decentralized network of unlimited nodes that could reroute itself around danger and destruction. No one could control it because no one could truly manage it. And that was the primary feature, not a bug.
Well, not anymore.
I suppose it shouldn’t surprise us that the forces insisting on dominating their societies are generally opposed to an open internet where all information can be free. Dictators gonna dictate.
Beginning July 17, 2019, the government of Kazakhstan began intercepting all HTTPS internet traffic inside its borders. Local Kazakh ISPs must force their users to install a government-issued certificate into all devices to allow local government agents to decrypt users’ HTTPS traffic, examine its content, re-encrypt with a government certificate and send it on to its intended destination. This is the electronic equivalent of opening every envelope, photocopying the material inside, stuffing that material in a government envelope and (sometimes) sending it to the expected recipient. Except with web sites.
According to ZDNet, the Kazakh government, unsurprisingly, said the measure was “aimed at enhancing the protection of citizens, government bodies and private companies from hacker attacks, Internet fraudsters and other types of cyber threats.” As Robin Hood could have told you, the Sheriff’s actions taken to protect travelers and control brigands can easily result in government control of all traffic and information, especially when that was the plan all along. Security Boulevard reports that “Since Wednesday, all internet users in Kazakhstan have been redirected to a page instructing users to download and install the new certificate.
This is not the first time that Kazakhstan has attempted to force its citizens to install root certificate, and in 2015 the Kazakhs even applied with Mozilla to have Kazakh root certificate included in Firefox (Mozilla politely declined).
Despite creative technical solutions, we all know that Kazakhstan is not alone in restricting the internet access of its citizens. For one (gargantuan) example, China’s population of 800 million has deeply restricted internet access, and, according to the Washington Post, the Chinese citizenry can’t access Google, Facebook, YouTube or the New York Times, among many, many, many others. The Great Firewall of China, which involves legislation, government monitoring action, technology limitations and cooperation from internet and telecommunications companies. China recently clamped down on WhatsApp and VPNs, which had returned a modicum of control and privacy to the people. And China has taken these efforts two steps beyond nearly anyone else in the world by building a culture of investigation and shame, where its citizens could find their pictures on local billboard for boorish traffic or internet behavior, or in jail for questioning the ruling party on the internet. All this is well documented.
23 countries in Asia and 7 in Africa restrict torrents, pornography, political media and social media. The only two European nations that have the same restrictions are Turkey and Belarus. Politicians in the U.S. and Europe had hoped that the internet would serve as a force for freedom, knowledge and unlimited communications. Countries like Russia, Cuba and Nigeria also see the internet’s potential, but they prefer to throttle the net to choke off this potential threat to their one-party rule governments.
For these countries, there is no such thing as private. They think of privacy in context – you may keep thoughts or actions private from companies, but not the government. On the micro level, it reminds me of family dynamics –When your teenagers talk about privacy, they mean keeping information private from the adults in their lives, not friends, strangers, or even companies. Controlling governments sing the song of privacy, as long as information is not kept from them, it can be hidden from others.
The promise of Internet freedom is slipping further away from more people each year as dictators and real life versions of movie villains figure out how to use the technology for surveillance of everyday people and how to limit access to “dangerous” ideas of liberty. ICANN, the internet control organization set up by the U.S. two decades ago, has proven itself bloated and ineffective to protect the interests of private internet users. In fact, it would be surprising if the current leaders of ICANN even felt that such protections were within its purview.
The internet is truly a global phenomenon, but it is managed at local levels, leaving certain populations vulnerable to spying and manipulation by their own governments. Those running the system seem to have resigned themselves to allowing national governments to greatly restrict the human rights of their own citizens.
A tool can be used in many different ways. A hammer can help build a beautiful home or can be the implement of torture and murder. The internet can be a tool for freedom of thought and expression, where everyone has a publishing and communication platform. Or it can be a tool for repression. We have come to accept more of the latter than I believed possible.
Post Script —
Also, after a harrowing last 2-5 years where freedom to speak on the internet (and social media) has exploded into horrible real-life consequences, large and small, even the most libertarian and laissez faire of First World residents is slapping the screen to find some way to moderate the flow of ignorance, evil, insanity, inanity and stupidity. This is the other side of the story and fodder for a different post.
And it is also probably time to run an updated discussion of ICANN and its role in internet management. We heard a great deal about internet leadership in 2016, but not so much lately. Stay Tuned.
While more than three-fourths of those surveyed also said that they believed their company “fostered an inclusive workplace,” many reported experiencing or witnessing bias (defined as “an unfair prejudice or judgment in favor or against a person or group based on preconceived notions”) in the workplace. In fact, 64% said that they “had experienced bias in their workplaces during the last year” and “also felt they had witnessed bias at work” in the same time frame. A sizable number of respondents—including 56% of LGBT respondents, 54% of respondents with disabilities and 53% of those with military status—also said they had experienced bias at least once a month.
Listening to those who say they have witnessed or experienced bias is especially important. When asked to more specifically categorize the bias they experienced and/or witnessed in the past year, 83% said that the bias in those incidents was indirect and subtle (also called “microaggression”), and therefore less easily identified and addressed. Also, the study found that those employees who belonged to certain communities were more likely to report witnessing bias against those communities than those outside them. For example, 48% of Hispanic respondents, 60% of Asian respondents, and 63% of African American respondents reported witnessing bias based on race or ethnicity, as opposed to only 34% of White, non-Hispanic respondents. Additionally, 40% of LGBT respondents reported witnessing bias based on sexuality, compared to only 23% of straight respondents.
While inclusion initiatives have not eliminated bias, Deloitte stresses that these programs are important and should remain. As Risk Management previously reported in the article “The Benefits of Diversity & Inclusion Initiatives,” not only can fostering diversity and inclusion be beneficial for workers of all backgrounds, it can also encourage employees to share ideas for innovations that can help the company, keep employees from leaving, and insulate the company from accusations of discrimination and reputational damage.
But building a more diverse workforce is only the first step, and does not guarantee that diverse voices are heard or that bias will not occur. Clearly, encouraging inclusion is not enough and more can be done to curtail workplace bias. And employees seeing or experiencing bias at work has serious ramifications for businesses. According to the survey, bias may impact productivity—68% of respondents experiencing or witnessing bias stated that bias negatively affected their productivity, and 70% say bias “has negatively impacted how engaged they feel at work.”
Deloitte says that modeling inclusion and anti-bias behavior in the workplace is essential, stressing the concept of “allyship,” which includes, “supporting others even if your personal identity is not impacted by a specific challenge or is not called upon in a specific situation.” This would include employees or managers listening to their colleagues when they express concerns about bias and addressing incidents of bias when they occur, even if that bias is not apparent to them or directly affecting them or their identity specifically.
According to the survey, 73% of respondents reported feeling comfortable talking about workplace bias, but “when faced with bias, nearly one in three said they ignored bias that they witnessed or experienced.” If businesses foster workplaces where people feel comfortable listening to and engaging honestly with colleagues of different backgrounds, create opportunities for diversity on teams and projects, and most importantly, address bias whenever it occurs, they can move towards a healthier, more productive work environment.
Risk Management Magazine and Risk Management Monitor. Copyright 2019 Risk and Insurance Management Society, Inc. All rights reserved.
The new Prime Minister of the UK, Boris Johnson, has taken up office following his decisive (66% : 34%) victory in the contest among Conservative Party members who were presented with a choice between him and the Foreign Secretary, Jeremy Hunt. He promised during the campaign to take the UK out of the EU by 31 October (when the extension to the Article 50 Brexit process expires) “do or die”. In his first speech as PM, he again underlined his determination that the UK should leave the EU by 31 October. He said that his intention was that this should be with a new deal – “no deal” was a remote possibility which would only happen if the EU refused to negotiate. But it was right to intensify preparations for “no deal”, which could be lubricated by retaining the £39 billion financial settlement previously agreed with the EU.
So the starting gun for the next phase of Brexit has fired.
What Does the Campaign Tell Us About the Approach to Brexit?
The Conservative leadership election campaign happened in two parts. The first, among MPs, whittled the long list of candidates down to two. Perhaps conscious of the broad spread of opinion among Conservative MPs, both final candidates took a nuanced line during that phase, stressing their desire to leave the EU with a (revised) deal. In the second phase, which involved selection between the two by the broader membership of the Conservative Party (roughly 160,000 people), the tone hardened notably. Polling suggests that a majority of the Conservative Party membership puts delivering Brexit ahead of the economy, the survival of the union of the UK and even the survival of the Conservative Party itself (polling after Theresa May’s European Parliament elections suggests that two thirds of party members voted for another party in those elections, with nearly 60% voting for Nigel Farage’s Brexit Party). Only averting the prospect of a Jeremy Corbyn-led Labour Government is apparently a higher priority for Conservative Party members. Responding to this sentiment, the position of both candidates became harder through the second phase of the campaign. While both favoured leaving with a deal, both were clear that the threat of a “no deal” exit must be real in order to stimulate further negotiations with the EU. Both, therefore, also favoured ramping up “no deal” preparations. In the end, the main difference between the two candidates was that Jeremy Hunt could countenance a “short” further delay to Brexit if that was necessary to secure a deal from the EU, whereas Boris Johnson promised that the UK would leave the EU on 31 October “come what may, do or die”. Significantly, in one of the last public hustings during the campaign, Boris Johnson also ruled out making changes to the Irish border backstop in the Withdrawal Agreement. His approach to how to deliver Brexit could be summarised as: deliver on citizens’ rights straight away, have a “standstill” on trade (not clear how this differs from the transitional period in the Withdrawal Agreement – it would certainly involve zero tariffs on both sides, but unclear whether it would involve regulatory alignment (see trade negotiations section below), still less continued jurisdiction of the European Court of Justice), resolve the Irish border through a comprehensive trade agreement and create “constructive ambiguity” about whether/when the UK would accept the €39 billion exit settlement in the Withdrawal Agreement – presumably making it contingent on the trade agreement. Boris Johnson called for optimism and determination to secure this outcome.
What Do the Key Ministerial Appointments Tell Us About Brexit?
In appointing his Cabinet, Boris Johnson has made far-reaching changes which shift the profile of government decisively towards pro-Brexit. All ministers were required to subscribe to keeping the possibility of “no deal” Brexit open. The principal portfolios concerning Brexit are all held by people who are either comfortable with, or even favour, a “no deal” Brexit. This looks like – and is no doubt intended to be seen in Brussels as – a government fully committed to a “no deal” Brexit, if necessary. Perhaps the most interesting appointment was, however, not of a minister at all, but of Dominic Cummings, campaign director for Vote Leave in the 2016 referendum, as a senior adviser. Taken together, this looks like a team both strongly committed to delivering Brexit and ready for a public campaign (election or referendum), if necessary.
What Happens Next?
The new Prime Minister effectively has more than five weeks’ respite from Parliamentary scrutiny, as Parliament starts its summer recess and returns on 3 September. This gives him time to consolidate his team, articulate his strategy (including boosting preparations for a “no deal” Brexit), and explore the possibilities for further negotiation with the EU. But even within his own party, on both pro-Leave and pro-Remain sides, he is, in effect, on probation.
The Parliamentary arithmetic has not changed significantly from that faced by Theresa May, but by carrying out such a substantial eviction of Mrs May’s ministers, Boris Johnson is likely to have increased the number of opponents to his Brexit policies on the Conservative back benches. They now also have an important figurehead in former Chancellor Philip Hammond. The Prime Minister has no majority without the support of the 10 Northern Ireland Democratic Unionist Party (DUP) MPs. And, within the Conservative Party, the hard Brexit supporting European Research Group (ERG) is now balanced by an anti “no deal” faction bolstered by ministers who resigned because they could not support his approach to Brexit or were sacked by him. Technically, the government’s majority, including the 10 DUP MPs, is down to two (three including one MP under criminal investigation). A by-election on 1 August is likely to reduce that by one. If the PM tries to push through a deal based on the existing Withdrawal Agreement (with changes to the accompanying Political Declaration about the future relationship, to which the EU has said it is open), he risks losing the DUP and some ERG from his majority. If his policy becomes “no deal”, he risks losing the more pro-European faction. In either case, he lacks a majority to deliver the result. The two big questions are whether Parliament (which has a substantial anti “no deal” majority) can find a way to erect a legal barrier to a “no deal” Brexit and, if not, how many Conservative MPs would really vote against their own party in a confidence vote to force either a change of direction or a fresh election – several have already indicated that they would do so if necessary. All of which points to the same Parliamentary deadlock Theresa May faced returning in September. So, unless the PM can come up with a renegotiated deal which the DUP and ERG would accept, the only way out of the deadlock would be to go back to the people. Mr Johnson’s strong opposition to a further referendum would make that a politically difficult choice. Current polling suggests that an election before Brexit is delivered would be a high risk strategy for the Conservatives.
As one influential commentator put it, the strategy may be to try for a new deal and see if the EU blinks. If they do not, go for “no deal” and see if Parliament blinks. If it does not, hold an election or referendum – an election is probably higher risk, but can be done more quickly and does not involve going back on strongly expressed views of the Brexiteers, including Mr Johnson.
What About the Europeans?
The debate about Brexit over the Conservative Party leadership campaign has been an entirely Brit-on-Brit affair, with reference to the EU position, but no engagement with it. European leaders’ reactions to Boris Johnson becoming Prime Minister have been polite, but also uncompromising, showing no willingness to re-open the Withdrawal Agreement. Michel Barnier looked forward to working with the Johnson Government to facilitate the ratification of the Withdrawal Agreement – signalling that negotiation is possible about the accompanying Political Declaration on the future relationship, and possibly other complementary accords, but not the Withdrawal Agreement itself. If the EU sticks to this position – and the EU team follows the UK Parliamentary arithmetic closely, so they know how much resistance there will be to “no deal” – the prospects for finding an agreed way forward look slim.
So “No Deal”, Then?
In April, we assessed the possibility of a “no deal” Brexit as very low. It has clearly now increased and, with a Cabinet committed to “no deal” if there is not a new deal, there are a number of ways in which it could come about. But Parliament’s majority against “no deal” remains, and there remain a number of obstacles to “no deal” in Parliament and in the economic analysis of the impact of “no deal” Brexit if the UK and EU are not able to agree on tariff-free trade using GATT XXIV. While some form of political process – such as an election – looks more likely than moving straight to “no deal” if the EU talks fail to yield a result, companies should certainly now put in place “no deal” contingency arrangements.
Free Trade Agreements
There are three interlinked free trade agreements (FTAs) in play: EU-US, EU-UK and UK-US. During the leadership campaign Boris Johnson spoke about making very rapid progress on the UK-US FTA (at one stage suggesting having a limited agreement in place by 31 October), but also about finding the long-term solution to the Irish border issue in the UK-EU FTA. In practice, it is likely that the UK-EU FTA has to come before the UK-US FTA, not least because the more the UK aligns to US regulatory standards through a UK-US FTA, the harder the solution to the Irish border issue will be – nowhere more so than in agriculture. The UK-EU FTA also has a unique character, in that the two parties start from a position of zero tariffs and complete regulatory alignment and the negotiation will, therefore, be about how far and in what respects to diverge. Both the EU-US and UK-US FTAs will have to address some highly charged political issues (agriculture, public procurement (in particular healthcare) and climate change); it could be argued that the UK would secure a better result on these issues by allowing the EU to find a politically workable way forward with the US first.
In an illustration of the complex interaction in the trade policy approach, the UK government has not been able to roll-over the EU-Canada FTA (CETA) into a bilateral UK-Canada FTA. This is because the Canadian government has analysed the impact for Canadian businesses of the UK moving to the interim “no deal” tariff policy published by the UK earlier this year – 87% of imported goods would be tariff-free to prevent harm to consumers – and concluded that the impact would be small. UK exporters to Canada would, however, face full Canadian WTO tariffs, rendering trade in some sectors unviable.
However the order of negotiations takes place, the three FTAs are effectively interlinked, and it will be important to ensure, for example, that something desirable in the UK-US FTA is not rendered more difficult to achieve by something agreed within the UK-EU FTA.
The Chicago City Council passed the Chicago Fair Workweek Ordinance on July 23, regarding advance scheduling notice for certain employees in certain industries, including healthcare, hotels, restaurants, and retail, among others. Chicago Mayor Lori Lightfoot has already indicated that she will sign the new ordinance in short order, describing it as the most expansive worker scheduling policy in the country, including the first in the country to cover healthcare employers.
The ordinance, which goes into effect in July 2020, imposes significant administrative requirements relative to the employer/employee relationship. Chicago employers should consider familiarizing themselves with them now in order to avoid penalties in 2020.
Details and Penalties of the New Ordinance
The ordinance will require covered employers operating in the City of Chicago to provide employees with 10 days advance notice of scheduled work, generally beginning on July 1, 2020. After June 30, 2022, the period of required advance notice of the work schedule will increase to 14 days. The work schedule must be posted in a conspicuous location at the workplace, or must be emailed upon the request of the employee.
In addition, the ordinance provides a carve-out for smaller employers, only applies to employees who earn less than $50,000 annually or $26.00 per hour or less, and does not apply to independent contractors or day and seasonal laborers.
Employers generally covered by the law are those who have 100 or more employees (in total, not just in Chicago), or 250 or more employees in the case of nonprofit entities. Restaurants covered by the ordinance are those with more than 30 locations and at least 250 total employees (and franchisees with four or more locations). Of the total employee count, for the employer to be governed by the law, at least 50 of their employees must be “covered” employees.
If employers make changes inconsistent with the requirements of the ordinance, the employees must receive compensation. The amount of compensation will depend on the nature of the scheduling change.
Right to Decline Work Scheduled
Employees under the ordinance have the right to decline any work scheduled that does not comply with the required advance notice period. Further, if an employer alters an employee’s schedule after the deadline, depending on the particular circumstances, the employer may be required to pay the employee an additional hour for each altered shift. The ordinance also prohibits retaliation against the employee for exercising rights conferred by the scheduling ordinance.
A number of exceptions do apply. For example, schedule changes caused by power outages, blizzards, a mutually agreed-upon shift trade, or a schedule change that is mutually agreed upon by the employer and employee and confirmed in writing.
The Chicago Department of Business Affairs and Consumer Protection has been tasked with enforcing this new ordinance. Employers who violate this law will be subject to a fine of between $300 and $500 for each offense. The law also establishes a process by which an employee may initiate a civil action under the law, beginning with a written complaint to the department.
Many, including state regulators, are closely watching the U.S. Food and Drug Administration (FDA) as it works through the challenges associated with regulating cannabidiol (CBD) products. Under the Federal Food, Drug and Cosmetic Act (FD&C Act), CBD cannot lawfully be added to a food or marketed as a dietary supplement; however, industry has been pressuring the Agency to create a pathway for the lawful use of CBD in food and dietary supplements through either an exception by regulation to the FD&C Act or through a nonenforcement policy.
As previously reported on this blog, FDA held a public meeting on May 31, 2019 to obtain scientific data and information about the safety of FDA-regulated products containing cannabis or cannabis-derived compounds. The Agency has made clear that outstanding questions related to the safety of CBD products must first be addressed before a regulatory framework can be established for lawfully marketing foods and dietary supplements containing CBD.
In response to FDA’s request for safety data and information, on July 16, 2019, a coalition of 37 Attorneys Generals submitted a letter to FDA, urging the Agency to cooperate with the states to protect consumer from false advertising and potential harms to their health from products containing cannabis or cannabis-derived compounds, including CBD. The letter also urged the Agency to develop ongoing assessments of potential risk and benefits of these products, including how they interact with other dietary or pharmaceutical products. Ultimately, the letter requests that FDA “ensure that states maintain a role as regulators in this emerging market.”
This week marked the conclusion of the first prosecution under the Criminal Law Amendment (Intimate Images) Act 2018 (WA). Mitchell Joseph Brindley, 24 years old, pleaded guilty to posting ten intimate images of the woman he dated. The images were taken with the woman’s consent whilst they were in a relationship. When it ended, Mr Brindley created fake Instagram accounts under her name and posted the images without her consent.
Non-consensual intimate image dissemination is colloquially known as ‘revenge porn’. A study in 2017 found that 20% of Australians between the ages of 16-49 years had a picture or video of themselves shared without their consent.
A global movement has emerged to counter the surge of ‘revenge porn’.
All Australian states and territories (except Tasmania) have implemented intimate image legislation. The WA Act amends the WA Criminal Code by creating a new offence relating to the non-consensual distribution of intimate images, empowering courts to make an order requiring a person to remove the images, and ensuring that existing threat offences apply.
Mr Brindley was this week given a 12-month intensive supervision order. The Magistrate found that the case fell in the least severe of the four categories of image-based abuse, being relationship retribution. More severe cases involve “sextortion”, “voyeurism” and “sexploitation”. The Magistrate said that if Mr Brindley’s crime had been motivated by sexual gratification or to obtain money, he would have received a jail term.
In April, videos emerged of NRL players engaging in sexual acts with women. Although the case involving player Tyrone May is ongoing, it will be interesting to see the outcome of any sentence, particularly if a jail term is sought.
Overall, 92% of cable/streaming shows showed cigarette/e-cigarette use. Netflix had “nearly triple the number of tobacco instances (866) compared to the prior year (299).” The multi-year study showed Stranger Things alone had “262 tobacco depictions in its second season, up from 182 in the first season.” This is significant because the Surgeon General warns that high levels of exposure to such visuals doubles the risk of smoking initiation. Considering 61% of young adults report online streaming channels as their primary means of program viewing, Netflix’s move away from e-cigarette representations could significantly impact this generation’s vaping epidemic.
Netflix will also limit cigarette depictions to adult usage. According to the CNN report, Netflix will only feature adult portrayals if “it’s essential to the creative vision of the artist or because it’s character-defining (historically or culturally important).”
The study did not specify how many of these depictions were related to the Juul vape device — which recently had a meteoric rise in use and captured over 70% of the e-cigarette market in the last two years. Juul has been accused of designing products and ads that appeal to youth and placing these ads in channels most populated by young adults and teens.
Bracewell LLP announced they added two public finance partners, Bill Mahomes and E. Steve Bolden II. The men have been practicing together for the past ten years, and they both have extensive experience in public finance projects. Bracewell Managing Partner, Gregory M. Bopp says, “Bill and Steve are exceptional public finance lawyers. They have a strong public finance practice in Dallas and across Texas that will deepen the capabilities of our nationally-recognized team.”
Mahomes has experience in public infrastructure projects and P3s, and has served on the board of directors of the Dallas/Fort Worth International Airport and the Texas Turnpike Authority, giving his advice the heft of on the ground experience. Bolden, along with his public finance work, also practices in corporate and securities law; specifically, experience in mergers and acquisitions in public and private companies. In terms of his public finance practice, he focuses on bond counsel, disclosure counsel and underwriters’ counsel matters.
Alan M. Brunswick
Mitchell Silberberg & Knupp announced that Alan M. Brunswick will join the firm as a partner in the Los Angeles office. Brunswick has established a practice representing clients in labor relations matters, specifically in the media and entertainment industry. His experience spans wrongful termination, employment discrimination, wage and hour as well as ERISA disputes in union and non-union settings. Before moving to law firms, Brunswick was the former Vice President and in-house counsel for the Association of Motion Picture & Television Producers. Kevin Gaut, chairman of MSK, praises Brunswick’s reputation for creativity and intelligence, and he says, “Adding Alan to our team of sophisticated entertainment industry labor attorneys only strengthens MSK’s standing as a go-to firm for companies facing tough negotiations.”
Perkins Coie announced their Labor & Employment practice added three new partners—Richard B. Hankins and Brennan W. Bolt to their Dallas office, and Seth H. Borden to the Washington DC office. All three bring experience in labor relations advising, and have experience working with corporations and in working with the NLRB.
Hankins has over twenty years of experience working with companies on a wide range of labor relations issues; with specific emphasis on working with companies on labor relations strategies during acquisitions and divestitures, as well as plant reorganizations. Additionally, Hankins has experience before the NLRB and the US Circuit Courts of Appeals, arguing cases in over 15 regions of the NLRB. Borden has built his career on helping organizations navigate labor relations strategies, including helping to negotiate collective bargaining agreements and labor arbitrations. He has specific expertise in social media and other communications technologies and how they integrate into labor law. Brennan works with employers, providing counsel on unfair labor practice proceedings, collective bargaining, strikes and boycotts. He has litigated on the employer side on Title VII, the ADA, FMLA, FLSA, trade secrets and non-compete claims. Ann Marie Painter, Chair of the Perkins Coie Labor & Employment practice calls the addition of the attorneys a “valuable resource.” She says, “When it comes to the labor and employment space, this group has a stellar and nationally recognized reputation as the go-to team for some of the world’s largest companies. They have successfully handled large-scale ‘bet-the-company’ labor cases, but can also nimbly aid employers of all sizes with their day-to-day labor issues.”
Additionally, Perkins Coie announced that Joydeep Dasmunshi has joined the Mergers & Acquisitions (M&A) practice as a partner in the Chicago office. Dasmunshi has focused on middle-market M&A transactions, and his record includes a $4.25 billion airline acquisition, a $1.75 billion sale of a global valuation, corporate finance and governance-related advisor company to a private equity firm two years ago, and work with various middle-market portfolio companies in technology, media, financial services and healthcare.
Pallavi Banerjee, PhD
Pallavi Banerjee, Ph.D. joins Womble Bond Dickinson as a Science Advisor in the firm’s Boston office. A former fellow with Boston Children’s Hospital and Harvard Medical School, Banerjee’s background in cell biology, cancer biology and immunology assists life sciences clients develop their patent portfolios. She has experience working with biotech companies and universities on IP due diligence and drafting and prosecution of patent applications with the USPTO. Her research on cellular and molecular mechanisms of diseases and how to identify therapeutic targets using in vitro and in vivo mechanisms have been published in the Journal of Biological Chemistry, Cancer Research, Cancer Letters, and International Immunology.
Venable recently announced that Paul C. Levin has joined the firm as a partner in the Real Estate Practice. Levin has experience at all levels of the real estate transaction process, and he has worked on some of the most recognizable projects in the Bay Area. Levin is a LEED Green Associate and is a member of the U.S. Green Building Council, Northern California chapter. Additionally, he has experience with P3 projects. He will be working in Venable’s Baltimore and San Francisco offices. Levin is excited about his bicoastal work with Venable, saying, “The firm’s deep practice and stellar reputation will allow me to continue to grow as a deal lawyer. I am thankful to have the opportunity to continue to build my Bay Area practice while returning to my hometown to expand my East Coast deal flow.”
Law Firm Recognition and Accolades
John Allen, of Varnum, was recently appointed to the Ethics and Professionalism Standing Committee of the Tort Trial and Insurances Practice Section of the American Bar Association. Allen, who focuses his practice on business and commercial litigation, has served this committee devoted to consideration and understanding of issues on attorneys maintaining professional independence, at several points throughout his career. Along with being certified as a civil trial advocate by the National Board of Trial Advocacy, he is also a certified arbitrator and mediator.
Carmen Cole
Labor and Employment Attorney Carmen Cole, with Polsinelli, was recently appointed to the Board of Directors of Public Counsel. Public Counsel is a non-profit dedicated to providing legal services to individuals, families, veterans and immigrants who live below the poverty level and do not have access to legal representation. In order to address civil rights and systemic issues facing this population, the group works with volunteers from major law firms and corporations.
Cole, a Principal in Polsinelli’s LA and SF office, says, “Public Counsel plays a critical role ensuring that individuals in underserved communities within the Los Angeles area have access to quality legal representation,” said Cole. “I am honored and humbled to be a part of this mission. As someone from an environment where statistically it would have been more likely for me to have become a client of Public Counsel rather than a member of its Board of Directors, this appointment will provide an opportunity to pay it forward. This is a great way to give back to the Los Angeles community.”
Cole has a long list of community volunteer and leadership roles. She has been active with the California Minority Counsel Program; she has worked hard to make the legal industry more accessible to women and minorities. Cole has also contributed her time in raising awareness and funds for the African American Chamber of Commerce’s (GLAAC) Education Fund & Foundation program.
For the sixth year in a row, Davis Wright Tremaine was named one of the country’s Best Law Firms for Women by Working Mother magazine in conjunction with the ABA Journal. This accolade recognizes the firm’s success in retaining and recruiting women attorneys, the firm’s family-friendly policies and the resulting high number of women in leadership roles. Women comprise 27% of the equity partners at Davis Wright Tremaine. The magazine highlighted the firm’s Mentoring Circles program, which was recently revamped and now helps support over 100 women attorneys at all levels in the firm.
Labor and Employment law firm, Jackson Lewis was also one of the 60 firms recognized by Working Mother magazine as a “Best Law Firm for Women.” Firm Co-Chairs Kevin G. Lauri and William J. Anthony say they are pleased with the firm’s designation by the magazine, and they “consider it to be a direct result of the firm’s inclusive culture together with our commitment to fostering the promotion of women throughout every level of the firm.”
Meredith Borgas, editor-in-chief of Working Mother, says she hopes the magazine’s accolade highlights best practices for law firms and encourages others in the industry to follow suit. She says, “It’s heartening to see the progress women lawyers are making at firms committed to fully utilizing these attorneys’ abilities. The war for talent is increasing incentives for law firms to invest in retaining women lawyers, which is why we’re seeing more women’s initiatives and parental-support groups.”
Dan Wolf
Dan Wolf, an Associate with Gilbert LLP, was recently honored with the Making Justice Real Pro Bono Award by the Legal Aid Society of the District of Columbia. Wolf has an outstanding record in pro bono achievement, having worked with clients referred from Legal Aid and leading pro bono efforts at his firm; which he has done since he joined Gilbert in 2012. Wolf has worked with pro bono clients on consumer law matters, rental housing and public benefits, and he has recruited colleagues to take on these matters as well. Scott Gilbert, the founder and Chairman of Gilbert LLP, says Wolf “sets an example for the firm. We are both very proud and quite fortunate to have Dan as a colleague.”
Legal Industry Tech, Tools &
Thomson Reuters recently announced Westlaw Edge Quick Check, designed to harness AI technology to streamline and supercharge legal research. Quick Check allows Westlaw users to go over documents with citations to ensure everything is covered and no major points were missed. By uploading a document into Quick Check, users can have the text analyzed and Quick Check will identify the legal issues at hand, offering recommendations of relevant to the issues in the document that are not cited. Users can filter results based on previous reviews, and additional indicators are assigned based on established categories. Quick check is integrated with KeyCite to catch cases that are bad law, to ensure the results are accurate. Additionally, QuickCheck can be used to identify weakness in briefs, highlighting citations that are invalidated or overturned, and can find citations that were passed over but are relevant.
Khalid Al-Kofahi, vice president of Research & Development at Thomson Reuters says:
We’ve built Westlaw Edge Quick Check to be very sophisticated in terms of selecting which language and citations to extract from motions and briefs, and it executes several search strategies, sifts through primary and secondary law results, follows citation networks, and finds and filters by Key Numbers, courts and other data attributes. In doing so, it often considers hundreds of thousands of possibilities – far more than any researcher could go through, even if he or she had all day to do it – yet it returns a concise report of relevant material that might have been missed in a traditional research process.
Wilson Allen, a software and technical services provider for professional services law firms, and ClearlyRated, a client satisfaction, service quality research provider, have teamed up to help law firms take client experience data to distill actionable insights for business development. Norm Mullock, Vice President of Strategy at Wilson Allen, says, “After experiencing the ClearlyRated client survey program first-hand, it became clear that real-time insight into client experience would be a pivotal improvement for the firms that we work with.”
This partnership will allow law firms to maximize the data available in both client feedback and business analytics to provide the tools needed for data-driven decision making. The companies have launched an API Integration that pairs the ClearlyRated Client’s Service program with business intelligence tools in order to ensure those data points are available for business planning. Eric Gregg, ClearlyRated’s CEO, says, “The client experience is important to all professional services businesses, but it is also a prime opportunity for law firms to differentiate from the competition. Our partnership with Wilson Allen will ensure that the law firms we serve have access to measurable insight on the client experience in a way that supplements business intelligence and informs strategies for growth.”
With the need for efficiency ever-present in legal operations, LawLytics, the leading website platform for small law firms, and PracticePanther, the cloud-basedpractice management system, have partnered to provide customers of both forms with native integration between their platforms. By simply embedding some code, a law firm’s web leads and client forms can be linked to their PracticePanther account, simplifying the process of integrating new clients, setting up billing and matter management. Instructions, with screenshots, are available and this process can be implemented with just a few clicks.
A hot-button issue in California is whether an employer is required to pay for or reimburse an employee for shoes that are required as a condition of employment. A recent ruling by the California Court of Appeal highlights the complexity of the issue and lack of concrete guidance on a critical question: whether California workplace safety law requires an employer to pay for nonspecialty safety shoes, such as generic steel-toe boots, that the employer allows the employee to wear off the jobsite.
An employer’s failure to properly pay for or reimburse for the shoes it requires its employees to wear as a condition of employment can expose the employer to civil liability and/or regulatory enforcement by California’s Division of Occupational Safety and Health (Cal/OSHA). Indeed, there has been a dramatic uptick in both civil class action claims against employers and regulatory enforcement by Cal/OSHA alleging failure to pay for or reimburse for the cost of shoes required as a condition of employment. These difficult scenarios range from generic waterproof shoes requirements in food processing plants to nonspecific requirements for work boots to be worn on construction sites.
In Townley v. BJ’s Restaurants, Inc., No. C086672 (June 4, 2019), the California Court of Appeal ruled that under California Labor Code section 2802 and the Industrial Welfare Commission’s Wage Order No. 5 applicable to the restaurant industry, BJ’s Restaurants was not required to pay for the cost of the slip-resistant shoes that it required its employees to wear as a condition of employment. In so holding, the court relied on Wage Order No. 5, which provides that a restaurant employer must pay for its employees’ work apparel only if it is a “uniform” or if it qualifies as certain protective apparel regulated by Cal/OSHA or the federal Occupational Safety and Health Administration (OSHA).
Section 2802 provides that employers are required to reimburse their employees for “necessary expenditures … incurred by the employee[s] in direct consequence of the discharge of [their] duties.” Thus, if slip-resistant shoes were part of a uniform or apparel regulated by Cal/OSHA or OSHA, then pursuant to section 2802, BJ’s Restaurants would have been required to reimburse its employees for the cost of the shoes. The court relied on a California Division of Labor Standards Enforcement (DLSE) opinion letter to find that the plaintiff had not demonstrated that the slip-resistant shoes constituted a “uniform” within the meaning of the Wage Order No. 5:
The definition and [DLSE] enforcement policy is sufficiently flexible to allow the employer to specify basic wardrobe items which are usual and generally usable in the occupation, such as white shirts, dark pants and black shoes and belts, all of unspecified design, without requiring the employer to furnish such items. If a required black or white uniform or accessory does not meet the test of being generally usable in the occupation the emplolyee [sic] may not be required to pay for it.
The court found that because the plaintiff did not argue that the slip-resistant shoes were part of a “uniform” or were not usual and generally usable in the restaurant occupation, the employer was not required to reimburse the plaintiff for the slip-resistant shoes under Labor Code section 2802.
However, even though the court held as such, given that the plaintiff had not attempted to characterize the shoes as apparel regulated by Cal/OSHA or OSHA, the court did not reach the issue of whether the employer could be obligated to pay for the slip-resistant shoes under Cal/OSHA or OSHA. This unanswered question is bad news for California employers, as it is unsettled whether an employer is required to pay for nonspecialty protective shoes required as a condition of employment, such as generic work boots. It remains unsettled because there is a conflict between Cal/OSHA and OSHA regulations regarding generic nonspecialty protective shoes.
Shoes as Personal Protective Equipment
Under federal OSHA regulations, which were amended in 2008, an employer is required to provide personal protective equipment, including certain specialty protective shoes, at no cost to the employee. However, the federal OSHA regulations also contain an exemption that does not require the employer to pay for generic nonspecialty shoes, such as steel-toe boots, which the employer permits to be worn off the jobsite. Further, a 2011 OSHA directive interpreted this regulation as not requiring employers to “pay for non-specialty shoes that offer some slip-resistant characteristics, but are otherwise ordinary clothing in nature.”
Consistent with the federal OSHA regulations, Cal/OSHA regulations provide that “[a]ppropriate foot protection shall be required for employees who are exposed to foot injuries from electrical hazards, hot, corrosive, poisonous substances, falling objects, crushing or penetrating actions, which may cause injuries or who are required to work in abnormally wet locations.” Also consistent with federal law, California law generally provides that, if protective equipment is required by Cal/OSHA, the employer is responsible for the cost of the protective equipment.
However, California law significantly diverges from federal law when it comes to nonspecialty safety shoes that can be worn off the jobsite. Under Cal/OSHA, there is no corresponding provision that specifically exempts employers from paying for the cost of generic nonspecialty safety shoes, such as steel-toe boots. Indeed, in 2012, the California Occupational Safety and Health Standards Board proposed the adoption of a regulation similar to the federal regulation, which exempted employers from paying for the cost of nonspecialty safety footwear. The proposed regulation initially contained exceptions despite the California Occupational Safety and Health Standards Board’s having noted that “existing case law requiring employers to pay for [personal protective equipment] is more effective than the federal standard, because California enforces the employer’s duty to pay for safety devices and safeguards without the exceptions provided in the federal standard.” The regulation was ultimately not adopted. Consistent therewith, Cal/OSHA has taken the stance that if an employer requires shoes for safety purposes, whether specialty or nonspecialty, the employer must pay for the cost of those shoes.
In contrast, California employers have argued that the federal OSHA regulation exempting employers from paying for the cost of generic nonspecialty safety shoes should control in California. Indeed, in Townley, the trial court originally granted BJ’s Restaurant’s motion for summary judgment finding that the federal OSHA regulation exempting employers from paying for the cost of nonspecialty safety shoes controlled in California because California did not adopt a Cal/OSHA regulation requiring employers to reimburse employees for the cost of such shoes—and thus, BJ’s Restaurants was not required to reimburse for the cost of the slip-resistant shoe. However, as noted above, the California Court of Appeal did not reach the issue of the applicability of Cal/OSHA and OSHA to these types of situations.
Key Takeaways
What does this all mean for California employers? The short answer is that, if an employer requires employees to wear shoes with safety characteristics as a condition of employment, it may want to assess whether it is required to reimburse employees for the cost of the shoes. An employer’s failure to pay for or reimburse an employee for the cost of shoes could expose the employer to potential civil claims or regulatory enforcement by Cal/OSHA.
Self-driving cars are inherently presented with a challenge—communicating with their surroundings. However, Drive.ai has attempted to address that challenge by equipping its self-driving cars with external communication panels that convey a variety of messages for drivers, pedestrians, cyclists and everyone else on the road. Drive.ai CEO Bijit Halder said, “Our external communication panels are intended to mimic what an interaction with a human drive would look like. Normally you’d make eye contact, wave someone along, or otherwise signal your intentions. With [these] panels everyone on the road is kept in the loop of the car’s intentions, ensuring maximum comfort and trust, even for people interacting with a self-driving car for the first time.” To help the company build its platform, one of the company’s founders recorded herself driving around normally and analyzed all the interactions she had with other drivers, including eye contact and hand motions.
Specifically, the panel uses lidar sensors, cameras, and radar to determine if any pedestrians are in or near a crosswalk as it approaches the crosswalk. If the vehicle detects that pedestrian’s path, the car begins to slow down and displays the message “Stopping for you.” Once the vehicle comes to a complete stop, it displays the message “Waiting for you.” When there are no more pedestrians are detected, the vehicle will display the message “Going now, please wait” to let other pedestrians to wait to cross.
Drive.ai continues to conduct research to determine the best means of communication including the best location for such communications, which is currently right above the wheels based on its previous studies. Halder said, “The more you can effectively communicate how a self-driving car will act, the more confidence the public will have in the technology, and that trust will lead to adoption on a broader scale.”
This partnership will allow law firms to maximize the data available in both client feedback and business analytics to provide the tools needed for data-driven decision making. The companies have launched an API Integration that pairs the ClearlyRated Client’s Service program with business intelligence tools in order to ensure those data points are available for business planning. Eric Gregg, ClearlyRated’s CEO, says, “The client experience is important to all professional services businesses, but it is also a prime opportunity for law firms to differentiate from the competition. Our partnership with Wilson Allen will ensure that the law firms we serve have access to measurable insight on the client experience in a way that supplements business intelligence and informs strategies for growth.”
