The Spooky Consequences of Halloween Celebrations in the Workplace

There is no greater Halloween horror for employers than a workplace celebration that creates legal risks such as inappropriate costumes or safety hazards, among other issues. Thus, there are many considerations when planning an office celebration for this spooky holiday. If you are a manufacturer hosting an office Halloween party, consider following these three tricks to make the best out of your workplace treat.

1. Provide Guidance on Expectations

First and foremost, manufacturers should be transparent about expectations surrounding employee participation including costumes. With regard to costumes, when crafting guidance, manufacturers should consider both civility as well as safety, especially if the employees will be permitted to wear their costumes during the workday. For example, employees should understand what costumes or outfits do and do not meet manufacturing floor safety guidelines. Employees should also be expressly reminded that costumes must conform to all employer policies including anti-harassment, discrimination and respect policies and that costumes, outfits or accessories that violate such policies will not be tolerated.

This election year in particular, some employees may don political costumes. The free speech rights under the First Amendment of the U.S. Constitution do not apply to employees working for private manufacturers. Thus, private manufacturers can generally establish rules that, for example, prohibit costumes that support (or criticize) a political candidate or party. That said, manufacturers should be aware that several states have laws regulating when employers can lawfully discipline employees for political activity; further, there are state and federal laws that may be implicated with regard to employees expressing political views. If manufacturers are considering disciplining an employee for a political costume, they should first consult with legal counsel.

2. Prioritize Safety

There are more safety hazards at workplace Halloween parties than the cavity causing candy. This is especially true if the celebration is being held on the manufacturer’s shop floor. Manufacturers should ensure that all of the decorations in the workplace comply with the fire and safety codes set forth by local governments and by OSHA. Manufacturers should also avoid activities that inherently involve risks and could result in workplace injuries, such as pumpkin carving contests.

Lastly, manufacturers should carefully consider whether to serve alcohol. If the celebration is being held on the shop floor, it is highly recommended that alcohol is not served, especially if heavy machinery is accessible. For celebrations held elsewhere, manufactures should consider taking steps to ensure alcohol is consumed in moderation and is not central to the party, and follow best practices for serving alcohol; when considering tips for limiting alcohol consumption or its impact on employees, employers should consider only serving beer and wine, serving a meal (as compared to light appetizers), limiting the amount of alcohol served by, for example, using a drink ticket system, using bartenders to serve alcohol, serving non-alcoholic options; among other practices. In some circumstances, manufacturers may be legally responsible for the conduct of their intoxicated employees.

3. Make it Optional

Workplace celebrations are a great way to boost employee morale and help foster employee relationships. That said, these celebrations should generally be optional. Manufacturers should keep in mind that employees may not want to attend a Halloween party for various reasons, including, for example, their religious practices and beliefs; therefore, ensuring that the party is optional may support all employees including those that do and do not celebrate Halloween.

If attendance is mandatory, there may be implications from a workers’ compensation perspective if there are any injuries or illnesses. Further, manufacturers should pay the employees for their time pursuant to the Fair Labor Standards Act (FLSA) and applicable state laws regardless of whether the celebration was held outside of normal working-hours. Requiring non-exempt employees to attend unpaid celebrations can expose the manufacturer to wage and hour claims in the future.

Copyright © 2024 Robinson & Cole LLP. All rights reserved.

by: Abby M. Warren, Madison C. Picard of Robinson & Cole LLP

For more news on Workplace Halloween Party Considerations, visit the NLR Labor & Employment section.

Revisions to HSR Form Released

On October 7, 2024, the Federal Trade Commission (FTC), with the concurrence of the U.S. Department of Justice (DOJ), released its long-awaited final rule related to the revision of the Hart-Scott-Rodino (HSR) premerger notification form (the “Final Rule”).

The Final Rule will be effective 90 days after its publication in the Federal Register. The FTC and DOJ state that the revisions are intended to close the perceived gaps in current information provided in the HSR process, such as the disclosure of entities and individuals within the acquiring person; identification of potential labor market effects; identification of acquisitions that create a risk of foreclosure; identification of actions that may involve innovation effects, future market entry, or nascent competitive threats; and disclosure of roll-up or serial acquisition strategies.

The Final Rule dictates the use of two separate forms: one for the acquiring entity and one for the entity to be acquired. Each party will have to designate a “deal team lead” whose files must be searched for 4(c) and 4(d) documents, even if the deal team lead is not an officer or director. In addition, the acquiring entity must provide details not previously requested, including an organization chart, a list of officers and directors, a description of the ownership structure of the entity, and information on the transaction rationale.

While the information requested in the Final Rule is more limited than what was included in the original proposed rule, there are substantial changes that parties should expect to add significant time and cost to the filing process.

©2024 Epstein Becker & Green, P.C. All rights reserved.
For more on Hart-Scott-Rodino, visit the NLR Antitrust Trade Regulation section.

Unitary Executive Theory Surfaces in Court: District Court Rules Qui Tam Provisions of the False Claims Act Unconstitutional

On September 30, 2024, the United States District Court for the Middle District of Florida ruled that filing claims on behalf of the government under qui tam provisions of the False Claims Act (FCA) is unconstitutional in United States of America ex rel. Clarissa Zafirov v. Florida Medical Associates, LLC, et al. The ruling, made by Judge Kathryn Mizelle, a 33-year-old Trump-appointee, declares that False Claims Act whistleblowers undermine executive power by filing qui tam lawsuits.

The Zafirov decision follows a recent dissent by Supreme Court Justice Clarence Thomas in which he questioned the constitutionality of the FCA’s qui tam provisions. It also follows a political movement pushing the Unitary Executive Theory in the United States judicial courts.

This controversial decision mischaracterizes the qui tam provisions of the FCA and will likely be appealed to the Eleventh Circuit. Should the ruling stand, however, it and other similar challenges to the constitutionality of the FCA’s qui tam provisions will cripple what has been America’s number 1 anti-fraud law. Since the False Claims Act was modernized in 1986, qui tam whistleblower cases have allowed the government to recover more than $52 billion from fraudsters, over $5 billion of which came in cases where the government chose not to intervene.

Applying the ‘Unitary Executive’ Theory to Paint Whistleblowers as ‘Self-Selected Private Bounty Hunters’

Originally passed during the Civil War, the False Claims Act contains qui tam provisions enabling whistleblowers, also known as ‘relators’, to report government contracting fraud and work directly with government investigators. Once the whistleblower brings forward the suit, the government may intervene and continue to prosecute the litigation as the plaintiff. However, in the interest of accountability, the qui tam provision of the FCA permits the whistleblower to pursue a case even if the United States declines prosecution. Whistleblowers who file successful qui tam lawsuits are eligible to receive up to 30% of recovered damages.

The question of the constitutionality of the False Claims Act’s qui tam provisions was notably raised in a dissent by Justice Clarence Thomas in the 2023 Supreme Court case U.S., ex rel. Polansky v. Executive Health Resources. While Polansky discussed the issue of a relator pursuing a lawsuit after the government declines to intervene, Thomas raised a separate issue of constitutionality in his dissent. He stated that “there are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation.” In a one-paragraph concurrence, Justice Brett Kavanaugh, joined by Justice Amy Coney Barrett, invited challenges to the constitutionality of the FCA’s qui tam provisions, writing that “In my view, the Court should consider the competing arguments on the Article II issue in an appropriate case.”

Judge Mizelle, a former clerk of Justice Thomas, drew heavily upon Justice Thomas’ dissent in her decision. Echoing Thomas’ dissent in Polansky, JudgeMizelle concluded that the qui tam provision “directly defies the Appointments Clause by permitting unaccountable, unsworn, private actors to exercise core executive power [litigating on behalf of the government] with substantial consequences to members of the public.” The District Court thus agreed with the defendants that the FCA’s qui tam provisions indeed violates the Appointments Clause of Article II of the Constitution.

The Zafirov ruling relies upon the ‘unitary executive theory,’ a constitutional law theory that states the President of the United States has sole authority over the executive branch and that power cannot be limited by Congress.

According to then-Assistant Attorney General William Barr’s 1989 Memo Constitutionality of the Qui TamProvision of the False Claims Act, which repeatedly cited by both the judgment and the U.S. Chamber of Commerce amicus brief, the move to enable private citizens to file on behalf of the government represents a breach of the separation of powers allowing “Congress to circumvent the Executive’s check.” Barr rebrands whistleblowers as “private bounty hunters” and claims that the 1986 amendments which reincorporated the FCA’s qui tam provisions was a tactic by Congress to override presidential powers. Barr maintains that “only a unitary executive” that is, “only the President” can “take care that the laws be faithfully executed.”

In a dissent in the 1988 Supreme Court case Morrison v Olsen, Justice Antonin Scalia interpreted the ‘Unitary Executive’ to have unchecked authority to appoint and remove executive officials, claiming that the firing of an independent counsel without cause falls within the limitless power of the President over the executive.

The Middle District of Florida ruling draws on Scalia’s rationale arguing that the right to pursue a qui tam case denies the President the executive authority of appointment of the relator. Under the FCA, however, whistleblowers are granted certain rights. For example, the executive must guarantee a whistleblower the “right to continue as a party” with or without the United States intervening and wait for the relator’s approval before settling the action.

The court agrees with the defendants’ argument that the FCA therefore “den[ies] the President necessary removal authority and sufficient supervisory control over [the relator].”

The court contends that the physician-turned-whistleblower Zafirov was “an improperly appointed officer” in violation of the Appointments Clause and the Take Care and Vest Clause of the Article. According to the ruling, by filing a qui tam against Medicare fraud, Zafirov was granted “core executive power” without any “proper appointment under the Constitution.”

A Mischaracterization of Qui Tam Whistleblowing

Judge Mizelle’s decision in United States ex rel. Zafirov v. Fla. Med. Assocs. first mischaracterizes the FCA’s qui tam as a breach of presidential power instead of as a provision that strengthens checks and balances. Second, the court ignores case law outlining government prerogatives over relators such that they are not menacing to the core Executive powers.

The revived qui tam provision of 1986 was a legislative move to improve government accountability over fraud—neither expanding Congressional oversight nor the size of government—by mobilizing private citizens rather than public agents. The Florida court wrongfully elevates the status of a relator to an ‘officer’ responsible to the government. A citizen pursuing a claim on behalf of the government is not and does not pretend to be an extension of the Executive Office and, therefore not subject to administrative appointment procedure. Rather the relator is a private person, and the government is a third party to the case. The Vt. Agency of Natural Res. v. United States ex rel. Stevens majority opinion also written by Justice Scalia discussing whether relators have judicial standing under Article III, qualifies that the relator is on “partial assignment of the Government’s damages claim.” A ‘partial assignee’—to which only some rights are transferred—may “assert the injury suffered by the assignor” (the U.S.) so long as the harm done is sufficient. Scalia reiterates the ‘representational standing’ of relators and makes no remarks on its challenge to the Unitary Executive. Judge Mizelle’s reliance on Morrison v Olsen to claim that like an independent counsel, a relator should also qualify as an officer ignores the Stevens Supreme Court ruling distinguishing relators as a type of assignee.

Mizelle also raises that relators seem to enjoy unbridled authority over the Executive by initiating a qui tam suit without government intervention. While Mizelle points to 31 U.S.C. § 3730 (c) to demonstrate the unchecked power of the relator, she neglects the numerous limitations specified in § 3730 (c)(2), including the broad power of the government to dismiss the qui tam action after intervening notwithstanding any objections from the relator. She frames the government intervention as “the government’s ability to pursue a parallel action and to exert limited control [which] does not lessen a relator’s unchecked civil enforcement authority to initiate.” In truth, the statute and years of judicial history maintain the government’s absolute discretion over whether to intervene in or completely stop the case by dismissing the action.

Contrary to Judge Mizelle’s belief, relators are not free from potential government intervention even when independently pursuing the case. On the contrary, relators are not able to independently pursue any binding action on the government unimpeded by the government. While Zafirov independently pursued the claim for five years, the government could have intervened and then dismissed the claim at any time. If the government intervenes, underlined in 31 U.S.C. § 3730 (c)(2), the government is empowered to settle the action with the defendant notwithstanding any objections from the relator and to restrict their participation in the course of the litigation. The fact that the government may choose not to intervene at one point does not divest them of their ability to intervene later and exercise significant authority over the relator.

Implications: Crippling the False Claims Act

Judge Mizelle’s decision seeks to end the historic success of the qui tam provision of the FCA by declaring the government’s most effective mechanism of detecting fraud as unconstitutional. While the decision does not invalidate the FCA nationally, this case could be the first step in a series of appeals that may elevate the issue to the Supreme Court.

The government’s largest obstacle to fighting white-collar crime such as fraud is detection. The diffuse and indirect nature of fraud requires those with insider knowledge to assist the government in pursuing corruption. In terms of the effectiveness of the qui tam provision, between 1987 and 2022, the Department of Justice Civil Fraud Division recovered $22.1 billion without the help of whistleblowers versus $50.3 billion with the help of whistleblower lawsuits. Since the 1986 amendments to the FCA, whistleblowers have been the direct source of approximately 70% of civil fraud recoveries by the federal government. From the Medicare billing fraud committed in Florida Medical Associates to Russian money laundering, the United States may lose its most effective tool to fight fraud fraud if the qui tam provisions of the FCA are ruled unconstitutional.

Copyright Kohn, Kohn & Colapinto, LLP 2024. All Rights Reserved.
For more on Whistleblowers, visit the NLR Criminal Law Business Crimes section.

October 2024 Legal News: Law Firm News and Industry Expansion, Industry Awards and Recognition, and DEI

Thank you for reading the National Law Review’s legal news roundup, highlighting the latest law firm news! As October comes to an end, legal industry news continues to be a hot topic. Please read below for the latest in law firm news and industry expansion, legal industry awards and recognition, and DEI in the legal field.

Law Firm News and Industry Expansion

Caleb Griscom joined Varnum‘s Birmingham office’s Corporate Practice Team as counsel. Mr. Griscom brings his experience in corporate transactional matters, including mergers & acquisitions, equity and asset purchases, sale-leasebacks and cross-border transactions.

“We are thrilled to have Caleb join our team,” said Seth Ashby, leader of Varnum’s Corporate Practice Team. “His private equity and transactional experience will be a tremendous asset to our clients and growing practice.”

Mr. Griscom earned his Juris Doctor from Stanford Law School and his Bachelor of Science in Economics from the United States Naval Academy. Prior to practicing law, Mr. Griscom served as a Logistics Officer in the United States Marine Corps, where he received the Navy and Marine Corps Commendation Medal.

Dino Wu has joined Barnes & Thornburg’s New York office as a partner in its Corporate Department. Mr. Wu represents sell-side and buy-side clients, such as hedge funds, mutual funds, corporations, banks and swap dealers in negotiating trading agreements for derivatives and other financial products. He advises clients on a wide range of agreements, including those involving derivatives, futures and options, crypto and other digital assets.

“Dino’s depth of experience with numerous financial products and trading agreements – not to mention his extensive background handling a wide spectrum of regulatory and compliance issues – make him a fantastic addition to our team,” said Jahan Sharifi, Corporate Department chair. “Our financial services and asset management clients will benefit immensely from his insightful and innovative approach as they navigate complex transactions.”

Nima Mohebbi joined Sidley as a partner in the firm’s Commercial Litigation and Disputes practice in Greater Los Angeles. Mr. Mohebbi specializes in bet-the-company litigation with a focus on the entertainment/sports/media space and the evolving intersection between entertainment content development and technology, including in gaming, blockchain and digital assets, and artificial intelligence.

“We are thrilled that Nima is joining Sidley. He has significant trial experience and a number of high-profile wins for his client. He joins several other recent Sidley lateral hires who have national litigation practices and extensive trial experience,” said Angela Zambrano, global co-leader of Sidley’s Litigation practice and Executive committee member. “His proficiency in disputes related to the digital economy, including artificial intelligence, data, digital assets, and online platforms will be helpful in serving the needs of our clients in the technology, entertainment, fintech, sports, and digital media sectors.”

Legal Industry Awards and Recognition

Bradley Arant Boult Cummings LLP announced that Christopher C. Puri, counsel in the firm’s Nashville office, received the Elizabeth Jacobs Distinguished Service Award from AgeWell Middle Tennessee at the 32nd Annual Sage Awards Ceremony & Fundraiser.

AgeWell serves to aid collaborative solutions for the elderly, with the Distinguished Service Award recognizing volunteers who have given their time, talents and abilities to further the organization’s mission. Mr. Puri, a member of Bradley’s health care practice group, served as a member of AgeWell’s board for nine years, including as president and vice president. He helped guide the organization through the COVID-19 pandemic and positioned AgeWell as a leading advocate and thought leader.

Mr. Puri’s nationally recognized practice advises senior housing providers and long-term care, handling the full array of legal issues. He has helped develop policy at the state and national levels.

Eighteen Bracewell LLP lawyers were honored by Lawdragon in its 2025 500 Leading Dealmakers in America guide. The list spotlights the leading lawyers around the country who ““create multi-billion-dollar mergers and other deals that change the course of industries and practices.”

The Bracewell lawyers included in the list are:

Moore & Van Allen PLLC (MVA) announced that bankruptcy, corporate and financial services team members were recognized for advisory roles in the acquisition of Noble House Home Furnishings by GigaCloud Technology, which won The M&A Advisor’s Cross Border Deal of the Year Award in the $50-100 million category.

GigaCloud, a global B2B ecommerce solutions provider, was represented by the following MVA attorneys:

The honorees were recognized at the 15th Annual International M&A Awards, which was held as part The M&A Advisor’s 2024 Leadership in Dealmaking Summit. They were selected by a panel of industry expert independent judges.

“The International M&A Awards celebrate the power of global collaboration and the pursuit of valuable opportunities,” said The M&A Advisor Founder and CEO Roger Aguinaldo. “In a world shaped by geopolitics and fueled by technological innovation, these awards honor the remarkable achievements of experts who transcend borders to unlock exceptional value.”

DEI

Womble Bond Dickinson LLP {WBD) launched their second Art & Diversity exhibition following the success of the first. The new series is titled “In Between World—Exploring Cultural Hybridity” and features 31 works of art by four Houston artists.

Carolina Borja, Tiffany Lee, Kaima Marie and Michel Muylle bring their unique perspectives on topics such as climate change and preservation to resilience and hope in a celebration of diversity and heritage.

“We believe that art offers a unique opportunity to connect with our clients on a personal level and foster meaningful conversations. Our presence at this exhibition demonstrates our commitment to engaging with the community and showcasing our firm’s dedication to creativity and culture,” said Jeffrey Whittle, managing partner of the firm’s Houston office.

The program was established by WBD in 2023 to give diverse artists in Houston a platform to show their work and engage with the local community.

“Art awakens us to feel things that matter, and it is a lens that helps us see these important topics through other people’s eyes. We are proud to participate in the Art & Diversity program, and we hope the exhibit inspires visitors to our Houston office.” said Lisa Moyles, DEI partner and chair of the firm’s DEI Steering Committee.

Katten Partner and Litigation Department Co-Chair David Crichlow was honored in Crain’s New York Business 2024 Notable Black Leaders list. Crain’s 2024 list honored 100 individuals who “are celebrated for their success and advancement, spanning industries from law and finance to nonprofits and the arts.”

Mr. Crichlow’s was celebrated for his work on an arbitration matter between two global gas companies, resulting in the largest recovery of his career. He is also noted for his work as a board member of the Lawyers’ Committee for Civil Rights Under Law.

Copyright ©2024 National Law Forum, LLC
For more Law Firm News, visit the NLR Law Office Management section.

Federal District Court in Florida Holds FCA’s Qui Tam Provisions Unconstitutional

In the Supreme Court’s 2022 decision in United States ex rel. Polansky v. Executive Health Resources, Inc., three justices expressed concern that the False Claims Act’s qui tam provisions violate Article II of the Constitution and called for a case presenting that question. Justice Clarence Thomas penned a dissent explaining that private relators wield significant executive authority yet are not appointed as “Officers of the United States” under Article II. Justice Brett Kavanaugh and Justice Amy Coney Barrett, concurring in the main opinion, agreed with Justice Thomas that this constitutional issue should be considered in an appropriate case.

Earlier this year, several defendants in a non-intervened qui tam lawsuit in the Middle District of Florida took up the challenge. The qui tam, styled United States ex rel. Zafirov v. Florida Medical Associates, LLC et al., involves allegations of Medicare Advantage coding fraud. After several years of litigation, the defendants moved for judgment on the pleadings, arguing the relator’s qui tam action was unconstitutional, citing Justice Thomas’s dissent in Polansky.

The defendants’ motion prompted a statement of interest from the United States and participation as amici by the U.S. Chamber of Commerce and the Anti-Fraud Coalition. The Court also asked for supplemental briefs on Founding-era historical evidence regarding federal qui tam enforcement.

On September 30, 2024, Judge Kathryn Kimball Mizelle granted the defendants’ motion, agreeing the relator was unconstitutionally appointed and dismissing her complaint. Judge Mizelle, who clerked for Justice Thomas, held a private FCA relator exercises significant authority that is constitutionally reserved to the executive branch, including the right to bring an enforcement action on behalf of the United States and recover money for the U.S. Treasury. In doing so, a relator chooses which claims to prosecute, which theories to raise, which defendants to sue, and which arguments to make on appeal, resulting in precedent that binds the United States. Yet, a relator is not appointed by the president, a department head, or a court of law under Article II, making the qui tam device unconstitutional.

Judge Mizelle distinguished historical qui tam statutes, which were largely abandoned early in our nation’s history, on the ground that few gave a relator the level of authority the FCA does. And while the FCA itself dates back to the Civil War, the statute largely remained dormant (aside from a flurry of use in the 1930s and 40s) until the 1986 amendments set off a new wave of qui tam litigation.

The ruling is significant for the future of the FCA. As Judge Mizelle’s opinion explains, most FCA actions are brought by relators as opposed to the government itself. If the decision is upheld on appeal, a number of outcomes are possible. If the FCA is to continue as a significant source of revenue generation for the government, the DOJ must devote more resources to bringing FCA actions directly. Congress may also consider amending the FCA’s qui tam provisions to limit relators’ authority to conduct FCA litigation, thereby maintaining the statute as a viable avenue for whistleblowing.

One thing is almost certain, however. FCA defendants across the country will likely raise similar arguments in light of Judge Mizelle’s ruling. Whether in Zafirov or another case, it appears the Supreme Court will get to decide the constitutionality of the FCA’s qui tam provisions sooner rather than later.

© 2024 Bradley Arant Boult Cummings LLP
For more on Qui Tam Provisions, visit the NLR Criminal Law Business Crimes section.

Supreme Court Declines to Hear “Willfulness” Case

On Monday, October 7, 2024, the U.S. Supreme Court declined to consider a petition for certiorari in United States ex rel. Hart v. McKesson Corp., Case No. 23-1293, where relator, Adam Hart (“Relator”), sought review of a Second Circuit decision upholding the dismissal of Relator’s complaint against pharmaceutical distributor, McKesson Corporation (“McKesson”).

The case involved allegations that McKesson violated the Anti-Kickback Statute (“AKS”), which prohibits offering, paying, soliciting, or receiving remuneration to induce the purchase of goods and services paid for by a federal health program. Relator, a former McKesson employee, filed a qui tam action, claiming McKesson provided valuable business management tools—valued at over $150,000—to oncology practices at no cost, in order to induce them to purchase oncology pharmaceuticals from McKesson.

The Second Circuit dismissed Relator’s federal claims, reasoning that the allegations failed to meet the mens rea (intent) element under the AKS. The Court held that, to act willfully under the AKS, a defendant must know that its conduct is unlawful, either under the AKS or other law. Since Relator’s allegations did not plausibly suggest McKesson acted with knowledge of illegality, his federal False Claims Act claims based on the federal AKS were dismissed.

The Supreme Court’s refusal to hear Relator’s case preserves the existing circuit split regarding the interpretation of “willfulness” under the AKS. The Second Circuit, along with the Eleventh Circuit, has adopted the view that the AKS is violated when a defendant intends to violate a legal standard. This contrasts with the Fifth Circuit, which interprets the mens rea element to prohibit acts done knowingly and willfully, as opposed to by mistake or accident, and the Eight Circuit, which requires intent to commit an act known to be wrongful, but not necessarily known to be unlawful.

As it stands, the unresolved split among the circuits on this critical issue remains, and providers should be mindful that, at least in the Second and Eleventh Circuits, the stricter interpretation of “willfulness” under the AKS will continue to apply.

© Polsinelli PC, Polsinelli LLP in California
For more news on Anti-Kickback Litigation, visit the NLR Health Law & Managed Care section.

Ten Social Media and Content Ideas for Law Firms to Give Back This November

November is a perfect time to reflect, show gratitude, and give back because it encourages us to pause and appreciate the people and opportunities that have shaped our year. It’s an ideal moment to acknowledge those who’ve made a difference and to find meaningful ways to give back to the community.

For law firms, this season offers a special chance to not only spotlight your pro bono work, charitable initiatives and community service but also connect with followers on a deeper, more meaningful level. It’s about more than just sharing what your firm has done—it’s about inspiring others and showing the real impact of your efforts.

To make the most of this season of giving on social media, focus on content that aligns with the values of gratitude and generosity, while highlighting how your firm is making a difference. Here are some creative ideas to help your law firm stand out this November and beyond.

1. Spotlight Your Pro Bono Work with Personal Stories

Pro bono work is often one of the most meaningful ways a law firm gives back to the community. However, instead of just listing the number of pro bono hours completed or the organizations you’ve helped, humanize your content by telling personal stories from the lawyers who have contributed to these efforts.

Actionable Tip: Create a series of posts that focus on individual lawyers and the pro bono cases they’ve handled. Instead of vague descriptions, dive into what inspired the lawyer to take on the case, the challenges faced and the impact it had on the individual or community served. Pair each post with a high-quality photo of the lawyer or team involved to give it a personal touch. A quote from the lawyer about what the experience meant to them adds an extra layer of connection.

Example Post: For associate Jennifer Lee, taking on pro bono cases is more than just part of her job – it’s her way of giving back to the community in which she grew up. Jennifer recently helped a local non-profit secure affordable housing for low-income families, ensuring a roof over their heads for years to come. ‘To know that I played a small part in securing a future for these families is incredibly rewarding” she says.

2. Host a ‘Gratitude Week’ on Social Media

Thanksgiving isn’t just about turkey – it’s about gratitude. Use the week leading up to Thanksgiving to post daily about the things for which your firm is grateful. This could range from thanking clients for their trust to showing appreciation for your hardworking staff and giving a shoutout to the community partners and service providers you’ve worked with throughout the year.

Actionable Tip: Create a ‘Gratitude Week’ campaign where each day, your firm highlights something or someone for whom you’re thankful. Use real-life examples of client success stories, employee recognition and your firm’s milestones. Make sure to tie these posts back to your firm’s values and the relationships you’ve built.

Example Post: This #GratitudeWeek, we want to thank our incredible clients for their trust and partnership over the years. It’s because of your belief in us that we’re able to continue doing meaningful work in our community. Here’s to many more shared successes together!

3. Community Service Initiatives: Go Beyond the Office

Many firms participate in community service, but how often is it shared in a way that resonates with clients and potential clients on social media? During November, consider highlighting the volunteer work your team is doing, not just within the firm but outside of it – whether it’s serving at local food banks, participating in charity runs or supporting legal aid programs.

Actionable Tip: Take photos and videos of your team in action and use them to create visually engaging posts. Be sure to highlight why the firm chose to participate in the specific initiative and the positive outcomes. Consider creating an Instagram Story that chronicles the day of volunteering, offering a behind-the-scenes look at your firm’s involvement in the community.

Example Post: Today, members of our firm traded in their suits for aprons as we spent the morning serving meals at the local shelter. It’s a small way for us to give back to a community that has given us so much.

4. Client Appreciation: Personalized Thanks

November is an ideal time to publicly thank clients and partners for their trust and collaboration. Rather than generic messages, make it personal. Identify key clients you’ve worked closely with over the year and create posts that express genuine gratitude for the relationship you’ve built together.

Actionable Tip: Feature key clients (with their permission) in your posts and mention specific projects or deals you’ve worked on together. If the relationship spans several years, briefly touch on how it’s grown and what makes the partnership special. Including a photo of your team with the client adds a more personal touch.

Example Post: This Thanksgiving, we want to give a special thanks to our long-standing client, XYZ Corporation, for trusting us with their legal needs for over XX years. Our partnership has been a rewarding one, and we look forward to continuing our work together in the future. #ClientAppreciation #GivingThanks

5. Employee-Led Charity Drive: Showcase Your Team’s Efforts

Encourage your firm’s employees to participate in a November charity drive, including collecting food for a local food bank, gathering winter clothing for shelters or raising funds for a specific cause. Document the progress of the drive on social media to engage your audience and inspire others to give back as well.

Actionable Tip: Create a dedicated hashtag for your charity drive and encourage your team to post their contributions or experiences on their own social media platforms, using the hashtag. Share updates on your firm’s official accounts, showcasing both individual and collective efforts. At the end of the month, share the results of the drive, thanking everyone who participated and emphasizing the impact made.

Example Post: Our firm is having a November charity drive to support local families in need this holiday season. From now until Thanksgiving, we’ll be collecting non-perishable food items and winter clothing for donation. Thank you to everyone who’s already participated—let’s keep it going!

6. Employee “Give Thanks” Campaign

Encourage employees to share who they’re thankful for in their professional or personal lives and why. This approach humanizes your firm, builds community and emphasizes the importance of gratitude in both personal and professional relationships.

Actionable Tip: Ask employees to submit short quotes or stories expressing thanks to someone who has made a positive impact on their career or life. These posts can be shared throughout November, featuring the employee, their story, and the person they’re thanking (if appropriate). It’s a great way to celebrate meaningful connections.

Example Post: This Thanksgiving, I’m grateful for [Name], who has been an incredible mentor throughout my career. Their guidance and support have helped me grow both personally and professionally. #GiveThanks #GratitudeInAction #MentorshipMatters

7. Create a ‘Giving Back’ Campaign

A campaign that highlights your firm’s charitable efforts can inspire others while promoting your firm’s values. Instead of focusing on just video content, consider a series of posts that recap all the ways your firm has given back throughout the year, using images, stories and quotes from your employees.

Actionable Tip: Collect photos, quotes and stories from your pro bono work, community service initiatives, and charity partnerships. Create a series of posts featuring employee spotlights, quotes about why giving back matters, and highlights from key events. This approach allows you to showcase your firm’s impact in an authentic and engaging way across all social channels.

Example Post: It’s been an incredible year of giving back at [Firm Name], and we’re so proud of the difference we’ve made. From our pro bono cases to community service efforts, here’s a look back at the impact we’ve had together.

8. Pro Bono and Volunteer Pledge Challenge

Challenge your firm’s attorneys and staff to pledge a certain number of pro bono or volunteer hours during November. Turn this into a public commitment by sharing the pledges on social media, encouraging others to join in.

Actionable Tip: Create a branded graphic to share on social media where employees can submit their volunteer hours. Each week, share the progress of the firm’s collective volunteer hours and highlight individual contributions.

Example Post: “Our team has pledged over 500 hours of pro bono work and community service this month to give back to those who need it most. We’re proud of the commitment from our attorneys and staff to make a meaningful difference this November. #GivingBack #ProBonoPledge

9. Spotlight Pro Bono and Community Service Organizations

Showcasing the organizations your firm partners with is a great way to highlight the meaningful work being done while strengthening relationships with these groups. By sharing their missions and how your firm has contributed, you emphasize the impact of these partnerships and build credibility for your community efforts.

Actionable Tip: Dedicate posts to each organization your firm has supported through pro bono work or community service. Share a brief overview of their mission, the specific projects in which your firm has been involved and the positive outcomes. Include quotes or testimonials from the organizations themselves to further highlight the value of your partnership.

Example Post: We’re honored to work with [Organization Name] and support their mission to [brief description of their cause]. This year, our attorneys dedicated [number of hours] to help [project name or impact]. Thank you to [Organization Name] for letting us be a part of this important work!

10. Share a Photo Collage Highlighting Your Year of Giving Back

A photo collage is an excellent way to showcase your firm’s involvement in community service, pro bono work, and industry events throughout the year. This approach highlights your participation while giving well-deserved attention to the organizations you’ve supported, showing your firm’s commitment to making a positive impact.

Actionable Tip: Collect photos from various events your firm has supported over the past year, including volunteering efforts, pro bono projects, and industry-related activities. Create a collage or a series of posts that capture these moments, with captions that highlight the organizations and the meaningful work being done. This is a great way to visually engage your audience and reflect on your firm’s year of giving.

Example Post: We’ve had the privilege of supporting some incredible organizations this year. From pro bono cases to community service events, here’s a look at some of the highlights. We’re grateful for the chance to contribute to these important efforts.

Make Giving Part of Your Firm’s Culture

As your law firm embraces the spirit of giving this November, remember that these social media campaigns and content ideas are not just for the holidays, they can serve as the foundation of a year-round culture of giving. Whether it’s through pro bono work, community service or partnerships with local organizations, your firm’s commitment to giving back will resonate with your clients, employees and the community at large.

By turning these efforts into authentic, engaging social media content, you can showcase the values that define your firm while inspiring others to join in the spirit of giving.

Copyright © 2024, Stefanie M. Marrone. All Rights Reserved.

by: Stefanie M. Marrone of Stefanie Marrone Consulting

For more on Social Media Content, visit the NLR Law Office Management section.

NLRB General Counsel Takes Issue with “Stay-or-Pay” Employment Provisions

On October 7, 2024, the General Counsel (GC) for the National Labor Relations Board (NLRB) issued a 17-page memorandum urging the NLRB to find so-called “stay-or-pay” provisions unlawful and to impose harsh monetary penalties on employers that use such provisions.

On October 15, 2024, the U.S. Department of Labor (DOL) similarly announced that it will combat stay-or-pay clauses, among other provisions in employment agreements that the DOL describes as “coercive.”

What is a “stay-or-pay” provision?

A stay-or-pay provision is a requirement that an employee pay their employer for certain expenditures made for the employee’s benefit if the employee separates from employment within a specified period of time. Examples include training repayment agreement provisions (sometimes referred to as “TRAPs”), and provisions requiring employees to repay signing bonuses, moving expenses, or tuition reimbursement.

Why does the NLRB GC take issue with such provisions?

The GC’s latest memorandum is essentially an addendum to her prior memorandum criticizing non-compete covenants. In her view, stay-or-pay provisions violate the National Labor Relations Act (NLRA) because, as she interprets them, they are akin to non-compete covenants that unlawfully restrict employees from changing jobs.

We don’t have union employees. Does the NLRA even apply to our business?

Yes. Under Section 7 of the NLRA, employees in both unionized and nonunionized workforces have the right to join together in an effort to improve the terms and conditions of their employment. Specifically, Section 7 grants employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities.” Although certain types of workers, such as managers, supervisors, and independent contractors, are not entitled to such rights, Section 7 of the NLRA otherwise applies to all workers – whether unionized or not.

Do I really need to be concerned about the NLRB GC’s memorandum, and is it legally binding on my business?

The memorandum does not carry the force of a statute or regulation or case law. And it’s not even the stance of the NLRB. It’s essentially the NLRB GC’s guidance for the stance she is encouraging the NLRB to take with respect to these types of provisions.

That said, the memorandum is getting a lot of publicity in the press and online, which means employees who have heard about it may become skeptical about the enforceability and/or legality of their stay-or-pay provisions. This, in turn, may embolden employees to make a move, as they may be less fearful of their repayment obligations.

Will the NLRB GC’s memorandum apply prospectively, or will it also apply retroactively?

If the NLRB adopts the GC’s view, then yes, the memorandum would apply both to agreements entered into in the future, as well as to agreements already signed by employees and former employees. However, it affords employers a 60-day period from the date of the memorandum to “cure” any pre-existing stay-or-pay provisions before facing potential prosecution.

What are the potential consequences for my business if the NLRB adopts the GC’s view?

The GC expects employers to make employees whole, which may mean rescinding or rewriting the agreement or reimbursing former employees for sums repaid pursuant to their agreements. She goes further and suggests that an employer must compensate an employee if the employee can demonstrate that “(1) there was a vacancy available for a job with a better compensation package; (2) they were qualified for the job; and (3) they were discouraged from applying for or accepting the job because of the stay-or-pay provision.”

Is there any way the stay-or-pay provisions used by my business aren’t objectionable?

According to the GC, a stay-or-pay provision is reasonable if (a) it is entered into voluntarily in exchange for a benefit to the employee (as opposed to, for example, being a condition of employment), (b) the repayment amount is reasonable and specific, (c) the “stay” period is reasonable, and (d) it does not require repayment if the employee is terminated without cause.

We do use stay-or-pay provisions in our business. What should we do now?

Your course of action depends on your appetite for risk. At a minimum, we encourage you to consult with your company’s legal counsel to discuss the full import of the memorandum, risks, and options for your business, as there are a lot more details and nuances in those 17 pages than we can summarize here.

Going forward, some employers might consider alternatives to stay-or-pay provisions, such as stay bonuses (e.g., instead of paying a signing bonus and requiring recoupment if an employee leaves within two years following their date of hire, condition payment of the bonus on the employee staying for a period of two years.) Of course, the hitch with this approach is that it may impact the enforceability of non-compete or non-solicitation covenants in states that require up-front consideration to impose such covenants for at-will employees.

Notably, the GC’s 60-day moratorium takes us to December 6, which is a full month following Election Day. By now, employers are familiar with the makeup of the NLRB changing depending on the party occupying the White House, and if there is a shift in political power come November, that may result in a newly constituted NLRB with new policy preferences. With that in mind, some employers may opt to use a wait-and-see approach before making any changes – whether to existing agreements or retention strategies going forward.

 
© 2024 Much Shelist, P.C.
For more on Stay-or-Pay, visit the NLR Labor Employment section.

Mental Health Parity and Addiction Equity Act Final Rules (“Final Rules”) Are Released: Plans and Issuers Must Prepare for January 1, 2025 Effective Date (US)

The long-awaited Final Rules amending the Mental Health Parity and Addiction Equity Act (“MHPAEA”) were released on September 9, 2024, with the bulk of the requirements going into effect on January 1, 2025. As we previously reported here, in August 2023, the Departments of Labor, Health and Human Services (“HHS”) and Treasury (together, the “Departments”) published proposed rules further regulating insurance coverage for treatment for mental health and substance use disorders. Although the Final Rules appear less burdensome than the proposed rules, they do impose significant changes to the obligations of group health plans and health insurance issuers with a short time to achieve compliance. The key provisions are summarized below.

Key Changes in the Final Rules

The Final Rules’ stated intent is to “strengthen consumer protections consistent with MHPAEA’s fundamental purpose,” which includes reducing burdens on access to benefits for individuals in group health plans or with group or individual health insurance coverage seeking treatment for mental health and substance use disorders (“MH/SUD”) as compared to accessing benefits for the treatment of medical/surgical (“M/S”) conditions.

The Final Rules purport to achieve that goal through four key changes to the MHPAEA:

  • Mandating content requirements for performing a comparative analysis of the design and application of each non-quantitative treatment limitation (“NQTL”) applicable to MH/SUD benefits.
  • Setting forth design and application requirements and relevant data evaluation requirements to ensure compliance with NQTL rules.
  • Increasing scrutiny of network adequacy for MH/SUD benefits.
  • Introducing core treatment coverage requirements to the meaningful benefit standard.

Comparative Analysis Content Requirements

Since 2021, insurance plans and issuers offering plans that cover both M/S and MH/SUD benefits and impose NQTLs on MH/SUD benefits must have a written comparative analysis demonstrating that the factors used to apply an NQTL to MH/SUD benefits are comparable to and applied no more stringently than those used to apply that same NQTL to M/S benefits, as set forth in the 2021 Consolidated Appropriations Act (“CAA”). The Final Rules expand upon the NQTL analysis required by the CAA and include six specific content elements:

  1. a description of the NQTL;
  2. identification and definition of the factors and evidentiary standards used to design or apply the NQTL;
  3. a description of how factors are used in the design or application of the NQTL;
  4. a demonstration of comparability and stringency, as written;
  5. a demonstration of comparability and stringency, in operation, including the required data, evaluation of that data, explanation of any material differences in access, and description of reasonable actions taken to address such differences; and
  6. findings and conclusions.

Upon request, plans and issuers must provide written comparative analyses to U.S. regulators, plan beneficiaries, participants, or enrollees who have received an adverse benefit determination related to MH/SUD benefits, and participants and beneficiaries in plans governed by ERISA at any time. Plans and issuers only have 10 business days to respond to a request from the relevant Secretary to review its comparative analyses and, if an initial determination of noncompliance is made, the plan or issuer only has 45 calendar days to respond with specific actions it will take to bring the plan into compliance and provide additional comparative analyses that demonstrate compliance. Upon a final determination of noncompliance, notice must be given to all participants, beneficiaries, and enrollees within seven business days after the relevant Secretary’s determination.

Demonstrating Compliance with NQTL Rules

The Final Rules also require that a NQTL applicable to MH/SUD benefits in a classification is no more restrictive than the predominant NQTL applied to M/S benefits in the same classification. In order to ensure compliance with NQTL rules, plans and issuers must satisfy two sets of requirements: (1) the design and application requirements, and (2) the relevant data evaluation requirements. For example, under the design and application requirements, a plan cannot reimburse non-physician providers of MH/SUD services by reducing the rates for physician providers of MH/SUD services unless it applies the same reduction to non-physician providers of M/S services from the rate for physician providers of such services. Under the relevant data evaluation requirements, to compare the impact of NQTLs related to network composition on access to MH/SUD versus M/S benefits, a plan should evaluate metrics relating to the time and distance from plan participants and beneficiaries to network providers, the number of network providers accepting new patients, provider reimbursement rates, and in-network and out-of-network utilization rates.

Design and Application

Plans and issuers must examine the factors used to design and apply an NQTL to MH/SUD benefits to ensure such factors are comparable to those used with respect to M/S benefits in the same classification. The Final Rules also prohibit using information that discriminates against MH/SUD benefits as compared to M/S benefits, meaning information that systematically disfavors or was specifically designed to disfavor access to MH/SUD benefits. Appropriate information and other factors to use in designing and applying an NQTL to MH/SUD benefits include generally recognized independent professional medical or clinical standards.

Relevant Data Evaluation

The relevant data evaluation requirement means plans and issuers must collect and evaluate data to ensure, in operation, that an NQTL applicable to MH/SUD benefits is not more restrictive than the NQTL applied to M/S benefits in the same classification. The Final Rules anticipate that the relevant data for any given NQTL will depend on the facts and circumstances and provide flexibility for plans to determine what should be collected and evaluated. Examples of relevant data provided in the Final Rules include the number and percentage of claim denials, utilization rates, and network adequacy rates.

Network Adequacy

The Final Rules demonstrate the Departments’ increased scrutiny of network adequacy issues for MH/SUD benefits. For NQTLs related to network composition standards, a plan or issuer must collect data to assess the NQTLs’ aggregate impact on access to MH/SUD benefits and M/S benefits. By way of example, suppose the evaluated data suggests that an NQTL contributes to a material difference in access to MH/SUD benefits compared to M/S benefits. In that case, plans and issuers must act to address any material differences in access. The Final Rules provide examples of reasonable compliance actions, including increased recruiting efforts for MH/SUD providers, expanding telehealth options under the plan, and ensuring that provider directories are accurate and reliable. A plan must document the actions that it takes to address differences in access to in-network MH/SUD providers as compared to in-network M/S providers.

Meaningful Benefit Standard

The Final Rules require plans to provide “meaningful” benefits for MH/SUD disorders in every classification in which the plan provides M/S benefits. Benefits are “meaningful,” for MHPAEA purposes, when they cover core treatments for that condition, meaning a standard treatment or course of treatment, therapy, service, or intervention indicated by generally recognized independent standards of current medical practice.

The Final Rules provide examples to demonstrate the application of the meaningful benefits standard. In one example, a plan covers the full range of outpatient treatments (including core treatments) and treatment settings for M/S benefits when provided on an out-of-network basis. The same plan covers outpatient, out-of-network developmental screenings for a mental health condition but excludes all other benefits, such as therapeutic intervention, for outpatient treatment when provided on an out-of-network basis. The Departments view therapeutic intervention, however, as a core treatment for the mental health condition under generally recognized independent standards of current medical practice. Per the Final Rules, the Departments interpret such exclusion as a violation because the plan does not cover a core treatment for the mental health disorder in the outpatient, out-of-network classification. Since the plan’s coverage for M/S benefits includes a core treatment in the classification, the Final Rules opine that the plan fails to provide meaningful benefits for treatment of the mental health disorder.

Effective Dates

The new requirements of the Final Rules will go into effect on different dates. Plans and issuers have until January 1, 2026, to comply with the meaningful benefits standard, the prohibition on discriminatory factors and evidentiary standards, the relevant data evaluation requirements, and the related requirements in the provisions for comparative analyses. During this time, plans and issuers should assess whether their mental health provider networks are adequate, and also consider expanding the scope of MH/SUD benefits across classifications to meet new parity requirements.

The other requirements, including most of the new requirements affecting comparative analyses, go into effect on January 1, 2025. Accordingly, plans and issuers should the time remaining this year to develop a plan to prepare NQTL comparative analyses within the three-month compliance period, and have processes in place to quickly address any material changes to benefit design in the future.

© Copyright 2024 Squire Patton Boggs (US) LLP
For more on MHPAEA, visit the NLR Health Law Managed Care section.

FTC Social Media Staff Report Suggests Enforcement Direction and Expectations

The FTC’s staff report summarizes how it views the operations of social media and video streaming companies. Of particular interest is the insight it gives into potential enforcement focus in the coming months, and into 2025. Of particular concern for the FTC in the report, issued last month, were the following:

  1. The high volume of information collected from users, including in ways they may not expect;
  2. Companies relying on advertising revenue that was based on use of that information;
  3. Use of AI over which the FTC felt users did not have control; and
  4. A gap in protection of teens (who are not subject to COPPA).

As part of its report, the FTC recommended changes in how social media companies collect and use personal information. Those recommendations stretched over five pages of the report and fell into four categories. Namely:

  1. Minimizing what information is collected to that which is needed to provide the company’s services. This recommendation also folded in concepts of data deletion and limits on information sharing.
  2. Putting guardrails around targeted digital advertising. Especially, the FTC indicated, if the targeting is based on use of sensitive personal information.
  3. Providing users with information about how automated decisions are being made. This would include not just transparency, the FTC indicated, but also having “more stringent testing and monitoring standards.”
  4. Using COPPA as a baseline in interactions with not only children under 13, but also as a model for interacting with teens.

The FTC also signaled in the report its support of federal privacy legislation that would (a) limit “surveillance” of users and (b) give consumers the type of rights that we are seeing passed at a state level.

Putting it into Practice: While this report was directed at social media companies, the FTC recommendations can be helpful for all entities. They signal the types of safeguards and restrictions that the agency is beginning to expect when companies are using large amounts of personal data, especially that of children and/or within automated decision-making tools like AI.

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Copyright © 2024, Sheppard Mullin Richter & Hampton LLP.
For more on Social Media, visit the NLR Communications Media Internet section.