The National Law Forum

NLRB Paves the Way for Graduate Student Unions

The March 15, 2021 Federal Register contained an unwelcome surprise for private colleges and universities. The National Labor Relations Board (NLRB) announced that it is withdrawing a proposed rule published last September that, if adopted, would have classified graduate students who are compensated in connection with their studies as non-employees.

The history behind the Board’s proposed “graduate student rule” is well-known. In a 2016 case captioned Columbia University, 346 NLRB No. 90, the Board ruled that graduate students are employees and therefore have the right to organize and bargain collectively. Obviously, this was a case of great significance in the higher education community.

By proposing the “graduate student rule” in September 2020, the Board sought to give blanket protection to private colleges and universities. Had the rule been adopted, these institutions could still have voluntarily recognized and bargained with graduate student unions. But, since the graduate students would have been non-employees, the colleges and universities would not have had a duty to recognize and bargain with graduate student unions.

With the rule withdrawal, the stage is set for graduate student unions

It is reasonable to expect that the withdrawal of the “graduate student rule” will reinvigorate the movement among graduate students to unionize. Indeed, graduate students at Northwestern University have already issued a statement that they expect this development to bolster their organizing efforts.

The consequences of this shift in the Board’s approach regarding higher education are potentially far-reaching. Where the duty to bargain exists, the right to strike also exists (unless the union bargains that right away at the table). The prospect of the “graduate student rule” being adopted acted like a brake on graduate students’ bargaining expectations. Now they can be much more confident. For instance, graduate students at Columbia University who are planning to strike have lauded the decision to withdraw the “graduate student rule” and commented that it could not have come at a more opportune time.

Prepare now

Lastly, the withdrawal of the “graduate student rule” is expected to be just the first of many changes, both regulatory and legislative, aimed at strengthening unions’ ability to organize. Whether or not they are aware of this, many colleges and universities have an urgent need to assess management policies and practices, as well as campus culture, in order to prepare for possible organizing efforts.

ARTICLE BY John R. Merinar, Jr. of Steptoe & Johnson PLLC

For more articles on the NLRB, visit the NLR Labor & Employment section.

Credential Your Law Practice

Everyone wants to go with a winner, right? This sentiment is true when it comes to the legal industry. Attorneys and small law firms will do themselves a service by investing in law practice credentialing. Law firm credentials are not only accolades and awards that make you feel great about your work, but they also provide clients, peers, and businesses with insight into how well you operate.

Credentials Are Powerful

As of 2019, 84 percent of people trust online reviews and referrals as much as they would trust a referral from a close friend or family member. This number is staggering and did not change even through the COVID-19 pandemic. People are more risk-averse than ever, which means that you should give them every reason to hire you.

In law firm marketing, you can become more credible in a specific niche because of law firm credentials. However, it does take some attention and work to achieve these awards. Consistency and planning will help you obtain accolades and stand out amongst the competition with awards and credentials earned by you and your firm.

Credentialing Sources

There are several ways that small law firms and attorneys can obtain credentials. From attorney ranking sites to speaking and presentations, lawyers should put themselves out there. Remember, if people do not know that you are interested in nominations, they will not know to ask you or give you credit.

Follow my tips below for credentialing resources:

Attorney Ranking Sites

Attorney ranking sites are just one of many opportunities available to attorneys who want more credentials. These sources may also help you gain greater local visibility to potential clients.

Credentialing sources that you will want to consider include:

Martindale-Hubbell
Avvo ratings
Super Lawyers
Best Lawyers in America
Chambers USA
Local, national, and specialty bars
Civic leadership organizations
Non-profit organizations
Other niche credentialing sites

These accolades provide the social proof and legitimacy that they need to move forward with your services. Get recognized more often and stand out from the crowd by pursuing these types of credentials and awards.

It is also worth mentioning that attorney ranking and vetting sites tend to occupy the top 3 spots in search results. You should list yourself on these sites for this reason as well. Plus, it will help you obtain a large number of backlinks from highly ranked sites.

Publishing Opportunities

Aside from website badges and on-page listings, you can also obtain credentials through writing opportunities. After all, lawyers are excellent candidates for writing well-thought-out articles that provide value to readers regarding a specific law area. However, it is essential to remember that publication writing is different from legal writing.

Types of publications that you should consider include:

Bar associations
Legal groups
Newspapers
Blogs
Your website
Magazines
Independent interviews

In article writing, you must consider your target audience’s needs and write in a way that makes sense for their knowledge, intent, publication medium, and other considerations. Consider having your work featured in a legal magazine or publication to add additional credentials to your CV or resume, and always incorporate your law firm’s brand voice.

Speaking and Presentations

Speaking opportunities are another great way to get your name out there while building your list of credentials. Law firm marketing goes beyond digital efforts, making public speaking an excellent channel for your offline strategies. If you are capitalizing on writing credentials, you can easily score speaking engagements.

The speaking opportunities depend upon your specific practice area. However, you could use the following opportunities in general:

Seminars
Webinars
Chamber of Commerce meetings
Industry organizations
College presentations
Law school lectures

These credentialing opportunities are perfect for connecting more meaningfully with an engaged audience in real-time. They also help you become a thought leader in your practice areas. This thought leadership will enhance your efforts further.

Credential Placement

Where many law firms fall short is the promotion of credentials after obtaining them. The award or vetting site will not do all of the work for you, which means that you need to put in some effort on your firm’s part to maximize their benefits. It can be expensive and time-consuming to promote accolades and recognitions, so ensure that when promoting your credentials, you are investing efficiently. You can promote your credentials in the following ways:

Placing badges on your website
Updating your CV or resume
Updating marketing materials and brochures
Press releases
Blog posts
Social media posts
In-office placement
Email marketing

There are several rules and guidelines that apply to the use of logos, slogans, and brand names that are owned by attorney credentialing, vetting, and award sites. When you win them, review independent guidelines from each publisher to ensure you are not misusing their copywritten and trademarked materials. Doing so can result in embarrassing communications or forfeiture of your award.

Final Thoughts and Considerations

Law practice credentials can provide a tremendous amount of value to lawyers and law firms. The opportunities are available. Now, you and your team just need to go out there and pursue them. Consider investigating opportunities on attorney credentialing websites, but do not forgo the opportunities available through writing and speaking gigs.

Continuously update your credentials and display them in your legal marketing materials as appropriate. Be careful not to violate the intellectual property rights of publishers when doing so. This strategy can avoid uncomfortable attorney-advertising violations.

As there are significant advantages to be gleaned from credentialing your law practice, make sure you are not leaving any prospects on the table.

ARTICLE BY Meranda M. Vieyra of Denver Legal Marketing

For more articles on the legal industry, visit the NLR Law Office Management section.

Larry King Will Contest — Key Takeaways

The press has made much of the handwritten will that Larry King executed in the months before he died and in which he purports to change his prior will executed in 2015 to leave his estate equally between his children. The facts pertaining to the King estate dispute are explained in more detail in this article from the Los Angeles Times.

The family dispute over the King estate highlights issues that sometimes arise when an elderly Testator/Testatrix makes changes late in life after becoming weakened physically and perhaps mentally as a result of age and disease. Here are four key takeaways:

The handwritten will is likely to be probated. King’s handwritten will was witnessed by two witnesses and therefore, potentially satisfies the requirements of section 6110 of the California Probate Code. California was likely King’s state of domicile at the time of his death. However, even if King’s will does not satisfy the requirements of section 6110, it appears to satisfy the requirements of section 6111 of the California Probate Code for a holographic will. Although the requirements vary from state to state, a holographic will is generally a will in the testator’s handwriting that may or may not be witnessed. Holographic wills are permitted and can be admitted to probate in 26 states including California. Some states will allow a holographic will to be admitted to probate if the will was executed in another state and was valid in such other state. Even other states will only accept holographic wills when made by members of the armed forces under certain circumstances.
The dispute over King’s will is just the tip of the iceberg. The bulk of King’s assets were titled in the name(s) of his revocable trust(s) and will be conveyed through those trust(s), which he apparently did not seek to revoke or amend in his own hand (or otherwise) before he passed away. In fact, according to news reports, the probate estate to be conveyed according to the terms of the will is only $2 million, as compared to his nonprobate estate (i.e., the revocable trust(s) and other assets passing outside of probate) estimated by TMZ to be worth $144 million (other reports indicate his net worth was $50 million). One of the advantages of passing assets by trust, rather than by will, is that the administration is not subject to the probate process. This helps to prevent the trust agreement from becoming a matter of public record and having to file an inventory of its assets with the court which is not the case with a will. This element of privacy offered by trusts can be a big deal for wealthy individuals, particularly celebrities like King. Also, note that keeping the makeup of the assets private only works if title to the assets are transferred from the testator to the trust during the testator’s lifetime. It appears in King’s case that $2m of his assets did not make into trust.
Any pre- and/or post-nuptial agreements will be important in how King’s estate will be distributed ultimately. News reports indicate that King did not have a prenuptial agreement with Shawn Southwick King (“Southwick”), who was his 7th wife in 8 marriages. Although the couple was married for 22 years, they separated in 2019 and King had filed for divorce. They had not yet reached a financial settlement. Because California is a community property state, Southwick will likely have a claim to 50% of the assets the couple acquired during their lengthy marriage, regardless of any changes King made to his will. It is unclear whether the parties executed one or more post-nuptial agreements. King and Southwick reportedly were separated in 2010 after tabloids reported King had a relationship with Southwick’s sister. Reports indicate the couple then executed a post-nuptial agreement declaring all of King’s $144 million in assets (even those acquired before his marriage to Southwick) to be community property. Southwick reportedly filed for divorce in 2010, and King sought to have the post-nup nullified. The couple subsequently reconciled for a time and King reportedly updated his estate plan in 2015. It seems likely his 2015 estate plan would have addressed the status of the marital assets.
Setting aside the will on the basis of undue influence will be challenging. Southwick is alleging that King was unduly influenced by his son, Larry King, Jr., who is 59 years old and a resident of Florida. Larry, Jr. is King’s oldest child, but apparently the two did not have a relationship for most of Larry, Jr.’s life. Nonetheless, King reportedly transferred over $250,000 to Larry, Jr. in the final years of his life, and Southwick is seeking to set aside those transfers, in part, on the basis of undue influence. Southwick claims that when King executed his will in October 2019, King was “highly susceptible” to outside influences and had “questionable mental capacity” due to various physical health issues. Under California law, undue influence is defined as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” Typically, proving that a Testator’s “free will” was overcome is a difficult task. Southwick will be particularly challenged by the length of time that transpired between King’s execution of his will and his death.

The King will contest is likely to continue for some time, with the next hearing scheduled to take place later this month. Whether the probate court dispute will be expanded to other litigation between Southwick and Larry, Jr. remains to be seen.

See Robert Brunson’s three-part interview with psychiatrist Linda Austin for more insights into mental health and undue influence

ARTICLE BY Robert H. Brunson and Maurice D. Holloway of Nelson Mullins

For more articles on estate law, visit the NLR Estates & Trusts section.

Why All Publicly Held Corporations Do Not File Corporate Disclosure Statements

California’s female and underrepresented communities quota requirements apply to “publicly-held corporations”. California’s Corporate Disclosure Statement requirement applies to “publicly-traded corporations”. California’s Secretary of State’s website describes publicly held corporations as a “subset of publicly traded corporations”. This is not strictly accurate. See Some Differences Between “Publicly Held” and “Publicly Traded” Corporations.

Moreover, not ever foreign corporation meeting the definition of a “publicly held corporation” is required to file a Corporate Disclosure Statement pursuant to California Corporations Code Section 2117.1. Why? A foreign publicly held corporation is required to file a Corporate Disclosure Statement only if it has registered to transact intrastate business pursuant to Section 2117. Some publicly-held corporations do not transact intrastate business in California. They may, for example, simply be holding companies. Under Section 191(b) a foreign corporation is not be considered to be transacting intrastate business merely because its subsidiary transacts intrastate business or merely because of its status as, among other things, a shareholder of a domestic corporation or a foreign corporation transacting intrastate business.

A Day To Be Wary?

Today is, of course, the Ides of March. The word “ides” is derived from the Latin word for the 15th of the month in March, May, July and October and the 13th in the other months. The Latin word is derived from the still older Etruscan word meaning to divide. The 15th is roughly the dividing day of the month. The assassination of Julius Caesar in 44 BCE made the date famous.

According to the Greek historian Plutarch, a seer warned Julius Caesar of this day while Caesar was on his way to the Senate:

ὥς τις αὐτῷ μάντις ἡμέρᾳ Μαρτίου μηνὸς, ἣν Εἰδοὺς Ῥωμαῖοι καλοῦσι, προείποι μέγαν φυλάττεσθαι κίνδυνον ἐλθούσης δὲ τῆς ἡμέρας προϊὼν

(“A seer was telling Caesar on this day of the month of March, which is called the Ides by the Romans (Εἰδοὺς in Greek), a great danger was coming . . . “)

Fifteen centuries after Plutarch wrote these lines, William Shakespeare incorporated the seer’s warning into his play, Julius Caesar:

Soothsayer. Beware the ides of March.

Caesar. What man is that?

Brutus. A soothsayer bids you beware the ides of March.

In Thornton Wilder’s historical novel, The Ides of March, Caesar exclaims: “I govern innumerable men but must acknowledge that I am governed by birds and thunderclaps”. The story, of course, ends with Caesar’s assassination and a different kind of “March madness”.

ARTICLE BY Keith Paul Bishop of Allen Matkins Leck Gamble Mallory & Natsis LLP

For more articles on California corporate law, visit the NLR Corporate & Business Organizations section.

Novel Issues, Limited Budget & Time? Local Law Research Streamlined and Amplified with Lexis+™ Litigation Analytics

State and Local government attorneys are frequently tasked with handling unique and niche issues, and often need to work on short time frames and with limited budgets. Many are turning to the Lexis+™ legal research service to slim down research and strategy preparation for their civil and criminal caseload—leveraging an efficient workflow by combining previously discrete or unavailable tools on one platform.

In 2021, LexisNexis added Litigation Analytics into the Lexis+ ecosystem of integrated legal research and analytics solutions. Litigation Analytics is powered by Lex Machina® and CourtLink® and highlights trends involving individual judges, courts, attorneys and law firms—now combined into one online package together with Legal Research, Practical Guidance and Brief Analysis.

Litigation Analytics helps ensure state and municipal government lawyers are on equal footing with their big-law opponents when it comes to civil litigation matters. Government attorneys now have the same novel tools and insight as their opponents do to inform their strategy and arguments and achieve the intended outcomes for their community and citizenry.

Lexis+ for State & Local Practitioners

Designed as an end-to-end product, the Lexis+ suite of tools helps attorneys focus and quickly pull together a game plan informed by insightful visual displays. The platform helps streamline legal research to answer legal questions and resolve issues via a simplified search experience.

Lexis+ includes:

Legal Research, a searchable comprehensive collection of case law, legal analysis and secondary resources from 119 billion documents and news sources, designed to unearth quickly the most relevant results.
Practical Guidance with practice notes, checklists, annotated forms, industry specific insight and other drafting tools developed by over 1,500 experienced practitioners from 99 of the Am Law 100 firms. By harnessing the institutional knowledge and processes of large law firms in 20+ practice areas, state and municipal attorneys gain a leg up when tackling the wide array of tasks crossing their desks daily.
Litigation Analytics to transform the challenge of going at it blind or relying on word of mouth by displaying overarching trends on the behavior of judges, courts, and attorneys, including caseload information, experience with certain types of cases, timeframes and awarded damages.
Brief Analysis, delivering targeted recommendations based on Shepard’s® citation patterns with core legal issues to keep the writer on point, focusing on the most persuasive arguments and helping to quickly locate the most relevant materials for better results.
- Search Term Maps highlight key search terms and cut research time by visually revealing search term patterns in lengthy documents.
- Shepard’s® At Risk takes analysis to the next level, by identifying cases underpinning legal arguments that were negatively treated in specific jurisdictions, and are at a risk of being overruled, so legal arguments are based on the best authority possible.
- Code Compare allows legal pros to look at two versions of a statute next to each other, helping visualize statutory changes over time.

“State and local attorneys who are adopting the Lexis+ service—especially those serving cities and counties—tell us they find the practical guidance features especially impactful to them,” states Teresa Harmon, Vice President, LexisNexis State and Local Government. “In addressing the unique questions directly related to their local area, they need to get up to speed quickly. For local government offices, a service like Lexis+ can help ground and educate attorneys on specialized topics or a specific area of law so they can confidently tackle a novel matter more quickly.”

Game Changer: Litigation Analytics Added to Lexis+

Large law firms often pool their knowledge and practitioners with years of experience in a particular jurisdiction to attain vast knowledge around judges and courts—and this can put state and local government lawyers at a disadvantage. For the wide variety of cases headed their way, government legal professionals need a way to quickly gain visibility into the same data-informed litigation intelligence leveraged by their commercial opponents.

Litigation Analytics enhances the Lexis+ ecosystem, giving attorneys the unprecedented ability to gain big-picture insights from data extracted from millions of underlying court documents from Federal District Courts, Federal District Judges, State Trial Courts, State Trial Court Judges, Opposing or Outside Counsel and Law Firms. This becomes very useful to state attorneys general offices, DAs, and municipal attorneys in developing civil litigation strategies that create positive community and regional outcomes.

“Many state and local attorneys face a large volume of litigation matters and are looking to add more efficiency into their daily workflow,” says Harmon. “The ability to quickly gain the insight into litigation timelines and anticipated damages is tremendously valuable to advising key administrators and elected officials, and formulating strategies for all the cases that come through the door.”

Litigation Analytics is powered by Lex Machina analytics and the Lexis® CourtLink online docket service. As Lex Machina® State Court analytics continues to grow, new content additions are automatically included in Lexis+ subscriptions. Currently, Litigation Analytics has access to some of the larger state jurisdictions in the U.S. including Los Angeles County, Houston and New York. Lex Machina, based in Silicon Valley, is part of LexisNexis.

Litigation Analytics is included at no added cost in the Lexis+ dashboard. Litigation Analytics’ broad stroke insights complement the Legal Research, Practical Guidance and Brief Analysis capabilities. Per Harmon, “Litigation analytics rounds out the overall research workflow—and since it’s an integral part of the Lexis+ search interface with the click of a button, you get everything in one place for the resources to complete tasks, make more informed decisions and reduce the probability of risk in your civil as well as criminal litigation.”

Litigation Analytics in Practice for State and Local Matters – No Longer Rely on Word of Mouth

Litigation Analytics provides overarching data analysis providing big-picture insight into trends and behaviors of regionalized courts and individual judges. This helps attorneys focus on the important factors in a case, preparing them for emerging issues and streamlining preparation so they can learn and prepare based on past behavior. Organized information on the experience of specific judges presiding over your motion and the history of cases previously before the relevant court provides invaluable insight on what to expect and how much detail is needed on certain topics.

The Courts and Judges Comparator in Litigation Analytics also provides data on specific judges’ caseloads, typical duration of cases, and damages awarded. For a government legal department with limited resources at its command, this information on milestones and when to expect judges to rule on a motion is invaluable in stretching resources.

Based on the information provided by Litigation Analytics, attorneys can derive an understanding of the experience level of the judge with the matter before them. Harmon says, “With the insight from judge analytics, you can draft a more compelling argument that will better resonate with your judge, and improve your likelihood of success.”

Litigation Analytics also includes a Counsel Comparator, which provides a side-by-side comparison of up to four law firms’ experience data, so you have a strong familiarity of who you’re arguing against by comparing case experience, pending and closed cases, total filings, timing, damages and prominent clients and parties.

User Experience in Lexis+ Litigation Analytics

Based on customers’ input, it was important to create both a streamlined experience and one that was highly intuitive. The design and layout of Litigation Analytics is well thought out and incorporates past usage patterns and feedback from extensive interviews with legal professionals and attorneys. “We use search data visualization to make it a more welcoming experience for new analytics users, to make sure it is a user-friendly interface,” says Harmon.

“Through elegant design that uses relational points to show connections between information, and the use of side-by-side placement to facilitate comparison, we’re providing a modern user experience with a streamlined display requiring virtually no learning curve for the user. This brings unprecedented simplicity to legal search, strategy, insights and guidance.”

Learn more about Lexis+ Litigation Analytics.

ARTICLE BY Eilene Spear and Jennifer Schaller of The National Law Review / The National Law Forum LLC

For more articles on the legal industry, visit the NLR Law Office Management secction.

Lawsuit Seeks to Overturn Trump’s SUNSET Rule

On March 9, 2021, the Center for Science in the Public Interest, Democracy Forward Foundation, American Lung Association, and other groups filed a lawsuit in the U.S. District Court for the Northern District of California against the U.S. Department of Health and Human Services (HHS) challenging the Agency’s “Securing Updated and Necessary Statutory Evaluations Timely” Rule (“SUNSET Rule”).

The SUNSET Rule mandates HHS to assess its regulations every ten years to determine whether they are subject to review under the Regulatory Flexibility Act (RFA). If a given regulation is subject to the RFA, HHS must review the regulation to determine whether the regulation is still needed and whether it is having appropriate impacts. Regulations will expire if the Agency does not assess and (if required) review them in a timely manner. The complaint alleges that the rule exceeds the Agency’s authority and is arbitrary and capricious, as it obligates HHS to review regulations at a pace that the Agency will not be able to achieve, which will result in the elimination of regulations that structure the plaintiffs’ operations and businesses, delineate their obligations and rights, or protect their members and the populations they serve.

By way of background, the Trump Administration released notice of the proposed SUNSET rule the day after the 2020 election and scheduled it to take effect on March 22, 2021. The lawsuit alleges that the Trump administration rushed the rule and did not provide the public with enough time to comment.

The Biden White House has called for a regulatory freeze on any last-minute regulations approved by the Trump Administration. As a result, HHS has delayed several Agency rules so far. Plaintiffs filed the lawsuit against HHS, as the Agency has not yet issued a stay in response to the White House’s announcement. It is unclear whether the SUNSET Rule will be impacted by the Biden Administration’s regulatory freeze before it takes effect on March 22, 2021.

ARTICLE BY Food and Drug Law at Keller and Heckman

For more articles on SUNSET rule lawsuits, visit the NLR Health Law & Managed Care section.

Biden Administration Takes Aim at Advancing Gender Equity and Equality – Complementing Several Renewable Energy Private Sector Initiatives

On International Women’s Day, US President Joe Biden signed an Executive Order establishing the White House Gender Policy Council. The council, which was formerly called the White House Council on Women and Girls under the Obama administration, seeks to advance the equality of opportunity while simultaneously combating systematic biases and discrimination against women. The council plans to do this by coordinating federal government efforts to increase economic support, promote gender equity in leadership, prevent all forms of gender-based violence and bolster initiatives to empower women, both domestically and internationally. Although the election of Kamala Harris as the first female vice president in American history disrupted gender norms, the revival of this council serves as a salient reminder that there is still much to do to combat systemic biases and advance gender equality.

The federal government is not alone in its endeavor to combating gender inequity. Renewable energy has proven to be an industry where there is significant potential to break institutional biases. The renewable energy workforce, for example, comprises 32% women, whereas the larger energy sector workforce only employs 22% women. Although this is a notable start, these numbers illustrate that there is still progress to be made in achieving gender equality across industries and that these goals should be prioritized moving forward.

The renewable energy industry has several initiatives prioritizing gender equality that should continue to be lauded and supported. One such program is the Women of Renewable Industries and Sustainable Energy (WRISE) program, which supports the educational, professional development and advancement of women in the renewable energy sector with the aspiration of combating systemic inequities. The Women in Renewable Energy (WIRE) Network is a network of women working in renewable energy and combating existing structural gender inequities that could be exacerbated by the consequences of climate change. The Clean Energy Council’s Women in Renewables initiative serves as a platform to champion women working in renewable energy as they advance to become leaders of industry. Other notable programs and initiatives include:

Powered by Women, which consults with renewable energy companies on how they can sustainably build growth and close gender gaps at their respective organizations.
The Clean Energy Trust, a nonprofit supporting female or minority-owned startups aspiring to innovate in the realm of clean energy and sustainability.
The American Solar Energy Society, which is recognizing women who have contributed extraordinary developments to the technological developments or wide-spread advancement of solar energy.
The Department of Energy, which has sought to recruit more women into the clean energy field and recognize accomplished women for their contributions and leadership through the US Clean Energy Education & Empowerment (C3E) Initiative.
The Solar Energy Industries Association, which has developed the Diversity Best Practices Guide for the Solar Industry, aims to build a diverse workforce by providing guidance to companies as they navigate diversity and inclusion efforts.

The establishment of the Gender Policy Council displays a commitment by the United States to ensure that gender equality efforts are at the forefront of decision-making domestically and abroad, across multiple industries. In addition to naming two co-chairs, the council will comprise leaders from several agencies, including the secretary of energy, secretary of transportation, administrator of the Environmental Protection Agency and the chair of the Equal Employment Opportunity Commission. The array of individuals selected for the council will directly impact the renewable energy industry, as many of these offices are working in tandem to promote clean energy initiatives.

These efforts across industries and governments illustrate the promise and impact that the renewable energy sector has on empowering women. Only by advocating for the empowerment of all women, can we secure a safer, more renewable-energy-powered planet.

ARTICLE BY Carl J. Fleming and Elle Hayes of

McDermott Will & Emery

For more articles on the Biden administration, visit the NLR Environmental, Energy & Resources section.

Marijuana Legalization Update: Early 2021 Legislative Developments

In November 2020, voters in five states (Arizona, Mississippi, Montana, New Jersey, and South Dakota) voted in favor of legalizing medical and/or recreational marijuana. Since then, there have been several developments within the marijuana legalization world that employers may want to keep an eye on as they move forward in 2021.

While the COVID-19 pandemic brought a halt to many state legislative efforts to legalize marijuana in 2020, many of those efforts have been renewed in 2021, and some states have begun to consider marijuana legalization for the first time. Also, while Mississippi and South Dakota voters approved marijuana legalization measures in November 2020, subsequent developments have emerged that may impact those approvals.

Employers new to marijuana legalization laws may want to be aware of the two broad categories of medical marijuana laws: (1) laws with express protections within the language of the statutes for medical marijuana cardholders (i.e., “antidiscrimination” provisions) and (2) laws without express protections for medical marijuana cardholders. Employers should also be aware that irrespective of whether a medical marijuana law contains an antidiscrimination provision, they should be mindful of the potential disability and accommodation issues inherently at play when dealing with medical marijuana cardholders.

Importantly, while recreational marijuana laws are becoming more common, they typically do not contain employment protections for recreational marijuana users—although New Jersey recently deviated from this approach.

Employers may also want to keep in mind that legislation tends to evolve as bills work their way through the legislative process, and many of the bills discussed in this article are still in committee or other preliminary stages.

Medical Marijuana Legislation

Alabama

Senate Bill 46 would legalize marijuana for medicinal purposes in Alabama. The bill, which is the same as prior legislation introduced in 2020, does not contain any employment protections for medical marijuana cardholders.

Florida

Senate Bill 692 and House Bill 335 would amend the existing Florida Compassionate Medical Cannabis Act to include a provision prohibiting public employers from taking adverse employment action against medical marijuana cardholders. The proposed legislation would permit a public employer to discipline an employee if the employer is able to show that the “lawful use of medical marijuana use is impairing the employee’s ability to perform his or her job responsibilities.” Importantly, this prohibition would not extend to private employers. This development follows failed efforts in 2020 to amend the Florida Compassionate Medical Cannabis Act to prohibit private employers from discriminating against medical marijuana cardholders.

Hawaii

Senate Bill 64 would amend the existing Hawaii Medical Marijuana Act to include protections for medical marijuana cardholders.

Idaho

The Idaho Senate recently voted in favor of an anti-drug constitutional amendment, Senate Joint Resolution 101. The proposed amendment to the Idaho Constitution would make the use of all psychoactive drugs, including marijuana, illegal. In response, the Idaho House Health & Welfare Committee voted to introduce the Sergeant Kitzhaber Medical Cannabis Act, a medical marijuana legalization bill. The proposed act does not contain any employment protections for medical marijuana cardholders.

Kansas

Kansas Governor Laura Kelly recently announced a proposal to legalize marijuana for medicinal purposes. Relatedly, both the Kansas Senate Commerce Committee and House Federal and State Affairs Committee have introduced medical marijuana legalization bills. The proposed bills, Senate Bill 92 and House Bill 2184, do not contain any employment protections for medical marijuana cardholders.

Kentucky

House Bill 136 and Senate Bill 92 would legalize marijuana for medicinal purposes in Kentucky. House Bill 136 is a renewed bill that is the same as prior legislation introduced in 2020. Neither bill contains any employment protections for medical marijuana cardholders. Recent news reports, however, have indicated that there is a strong likelihood that these bills will not pass this legislative session.

Maryland

Senate Bill 504 would amend the existing Maryland medical marijuana law to include protections for medical marijuana cardholders. House Bill 683 would add medical marijuana to the list of medical treatments that can be provided to injured employees under the state’s workers’ compensation laws.

Mississippi

Since voters approved Initiative Measure 65 during the November 2020 election legal challenges have arisen related to the constitutionality of the initiative. The Supreme Court of Mississippi will hear oral arguments on this issue in April 2021. Perhaps in response to these challenges, Senate Bill 2765 would serve as an alternative or parallel to the medical marijuana program authorized by Initiative Measure 65. Senate Bill 2765, which passed the Mississippi State Senate on February 12, 2021, does not contain any employment protections for medical marijuana cardholders.

Nebraska

Legislative Bill 474 would legalize marijuana for medicinal purposes in Nebraska. The bill does not contain any employment protections for medical marijuana cardholders.

South Carolina

House Bill 3361 and Senate Bill 150 represent alternative bills that would each serve to legalize marijuana for medicinal purposes in South Carolina. Neither bill contains any employment protections for medical marijuana cardholders.

South Dakota

In November 2020, South Dakota voters approved Initiated Measure 26, which would establish a medical marijuana program in South Dakota. Governor Kristi Noem recently announced a plan to delay the implementation of Initiative Measure 26, which was originally scheduled to take effect in July 2021, until July 1, 2022. The South Dakota legislature subsequently introduced House Bill 1100, which reflected Governor Noem’s efforts to delay implementation of South Dakota’s medical marijuana program.

Virginia

House Bill 1862 would prohibit an employer from taking adverse employment action against a medical marijuana cardholder based on the individual’s lawful use of medical cannabis. Notably, Virginia does not have a typical medical marijuana law or program in place but instead has a limited medical marijuana program allowing individuals to use cannabis oils and products with less than 10 mg of tetrahydrocannabinol (THC).

Recreational Marijuana Legislation

Connecticut

Senate Bill 5853 and Senate Bill 888 would legalize marijuana for recreational use in Connecticut. Governor Ned Lamont has also been a vocal proponent for legalization of marijuana for recreational use.

Florida

House Bill 343 and Senate Bill 710 would legalize marijuana for recreational use in Florida.

Hawaii

Hawaii lawmakers are currently considering several alternative bills (such as Senate Bill 767) to legalize marijuana for recreational use in Hawaii.

Maryland

House Bill 32 would legalize marijuana for recreational use in Maryland.

Minnesota

House Bill 600 and Senate Bill 757 would legalize marijuana for recreational use in Minnesota.

Nebraska

Legislative Bill 546 would legalize marijuana for recreational use in Nebraska.

New Jersey

On February 22, 2021, New Jersey Governor Phil Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA), legalizing marijuana for adult recreational use in New Jersey and prohibiting employers from taking adverse action against employees solely because they use marijuana.

New Mexico

New Mexico lawmakers are currently considering several alternative bills (such as House Bill 12) to legalize marijuana for recreational use in New Mexico.

New York

Senate Bill 854 would legalize marijuana for recreational use in New York. Governor Andrew Cuomo has also been a vocal proponent of the legalization of marijuana for recreational use.

North Dakota

House Bill 1420 would legalize marijuana for recreational use in North Dakota.

Oklahoma

House Bill 1961 would place the issue of marijuana legalization for recreational use on the 2022 Oklahoma election ballot.

Virginia

On February 27, 2021, the Virginia General Assembly approved legislation that would legalize the sale and possession of recreational marijuana for adult recreational use beginning on January 1, 2024. Governor Ralph Northam has not yet signed the legislation and may propose amendments that would speed up the effective date of the proposed law.

Other States

Legislation to decriminalize the possession of small amounts of marijuana is also pending in several states. These laws should be viewed differently than typical recreational marijuana legalization laws.

Key Takeaways

Employers across the country may want to closely monitor state marijuana legalization efforts. Marijuana legalization continues to be a quickly moving area of the law, and employers following these developments should expect marijuana legalization efforts to continue in the years to come.

ARTICLE BY M. Tae Phillips of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more articles on marijuana legalization, visit the NLR Biotech, Food, Drug section.

American Rescue Plan Act of 2021: COBRA Subsidy, Pension Funding, and Other Employee Benefit Changes

The American Rescue Plan Act of 2021 (ARPA) is the latest federal COVID-19 relief bill, which the President signed into law March 11, 2021. ARPA includes new COBRA continuation coverage election, notice, and subsidy requirements; pension plan funding relief; and some cost-saving benefit opportunities employees may be able to leverage. Some of these changes are required and could take effect as early as April 1, 2021, requiring immediate action by employers (or their insurers or administrators). Other provisions are optional, enabling employers to weigh the costs and benefits in considering their implementation. This is the first of a series of articles addressing the important employee benefit changes under ARPA, including employer tax credits, executive compensation changes, and multiemployer funding relief.

COBRA Premium Subsidies: Fulfilling a commitment of the Biden Administration, ARPA includes COBRA subsidy provisions aimed at making health insurance coverage accessible and affordable. Bearing a striking resemblance to the American Recovery and Reinvestment Act of 2009, ARPA creates a 6-month subsidy period (April 1 to September 30, 2021) during which certain “assistance eligible individuals” (AEI) may qualify for a 100% subsidy for COBRA coverage. Qualifying AEI would pay no cost for monthly COBRA premiums for medical, dental, or vision coverage if the individual is eligible for COBRA coverage during the subsidy period. The subsidy period does not extend the maximum COBRA coverage period. ARPA simply suspends the AEI’s obligation to make COBRA premium payments for up to 6 months.

These rules are not optional for employer sponsored group health plans. All group health plans subject to COBRA, except health flexible spending accounts (FSA), must provide this subsidized coverage.

The employer, plan (in the case of a multiemployer plan), or insurer (for fully insured coverage), has an obligation to provide subsidized COBRA coverage and pay or incur the AEI’s COBRA premium cost. But that entity may recover the cost of the coverage from the federal government by claiming a credit against its quarterly Medicare payroll tax liability. The credit can be advanced and is refundable, meaning the entity could claim a refund if the subsidy paid exceeds the taxes due.

Only those qualified beneficiaries who trigger COBRA continuation coverage because of an involuntary termination of employment or a reduction in hours and whose current COBRA continuation coverage period would cover some or all of the subsidy period are considered AEI, but only if they elect COBRA coverage. Individuals who qualify for COBRA because of voluntary termination, retirement, or death would not be considered AEI.

ARPA also creates an extended COBRA election period for AEI so even AEI who previously declined COBRA coverage, or whose coverage was terminated because of nonpayment of premiums, may enroll and receive the subsidized coverage for the length of the subsidy period. This provision in particular will require careful administration to ensure compliance, given the previous COBRA deadline extensions and the recent re-starting of the clock, which we discuss here and here. ARPA does not change the fact that COBRA continuation coverage still can end because of other group health coverage, Medicare eligibility, and other circumstances.

ARPA imposes new notice requirements on group health plans, which provide AEI with the information they need to enroll in subsidized coverage. There is a required notice of the availability of the subsidy, a notice of the extended election period for COBRA coverage, and a notice of the expiration of the subsidy. The U.S. Department of Labor will issue model notices that plan administrators may use.

Group health plans may, but are not required to, allow AEI to enroll in different coverage options available from the employer, subject to certain conditions. If offered, the notices would need to describe this option.

Affordable Care Act Premium Tax Credit Expansion: Following the coverage theme noted above, ARPA also expands eligibility for Premium Tax Credits (PTCs) under Internal Revenue Code Section 36B. These PTCs, which are part of the Affordable Care Act (ACA), make securing coverage through the Healthcare Marketplace or other state exchange more affordable. Generally, the changes temporarily eliminate the phaseout of eligibility for households over 400% of the federal poverty level, reduce the contributions eligible households must make toward the premium cost, suspend the recapture of excess credits previously provided, and consider anyone who receives unemployment compensation during any week in 2021 as eligible.

For employers, this may mean more “full-time” employees claim the PTCs, which correspondingly may lead to greater scrutiny of employers’ ACA compliance by the IRS and a shift in employer group health plan enrollment. This may increase the pool of individuals who qualify for subsidized coverage, a key trigger for employer shared responsibility penalties under the ACA. We recommend employers review and confirm their ACA compliance and reporting regularly to understand penalty risk and exposure, especially because of this change.

Increase in Dependent Care Assistance: For the 2021 calendar year only, ARPA increases from $5,000 to $10,500 (from $2,500 to $5,250 in the case of a separate return filed by a married individual) the maximum amount that can be excluded from income under Section 129 of the tax code for qualifying dependent care expenses. Employers who sponsor dependent care flexible spending arrangements may amend their plans on or before the last day of the plan year to allow their eligible employees to benefit from this increased limit. Fiscal plan year sponsors will need to consider how to implement the relief given their plan year limits, noting that the increased contribution limit ends on December 31, 2021. The Consolidated Appropriations Act, 2021, discussed here, permits employers to amend their Section 125 plans to permit mid-year election changes when the same normally would not be permitted. That relief will need to be implemented in tandem with any increased limits allowed under ARPA. For employers who decide not to increase the dependent care flexible spending account limit for 2021, employees still may qualify for the child and dependent care tax credit that was substantially enhanced and made refundable for 2021.

Pension Plan Funding Stabilization: For employers who sponsor single employer defined benefit plans, ARPA provides several avenues to stabilize funding, including implementing 15-year (up from 7) amortization periods, fresh start rules, and an increase in interest rates used for minimum funding determinations. These changes should reduce the minimum required contribution amounts, but would need to be weighed against the cost of obtaining an updated valuation, among other considerations. Employers with these plans should consult with their plan actuaries. As previously discussed, ARPA also includes long-awaited multiemployer funding relief.

If 2020 taught us anything, it is to be flexible and prepared for change. Just three months into the 2021 calendar year, we now have the second substantial piece of legislation affecting the employee benefits area under our belts, and imminent implementation guidance. This underscores how substantially the COVID-19 pandemic continues to change the value-proposition for employer provided benefits.

ARTICLE BY Suzanne G. Odom, Kellie M. Thomas, Joy Napier-Joyce and Brian M. Johnston of Jackson Lewis P.C.

For more articles on the American Rescue Plan, visit the NLR Labor & Employment section.

Expectations for Offshore Wind Under the Biden Administration

President Joe Biden’s arrival at the White House in January was, as customary for any new executive branch leader, met by outsized expectations on the part of supporters and detractors alike. Among the countless areas of public policy set to be affected by the new administration, perhaps no one issue is more anticipated to be in play than energy and environmental policy.

The heightened set of expectations around energy policy began with the campaign, when Team Biden consistently placed climate change issues among its leading priorities — a trend that noticeably continued with Cabinet picks, as nominees for agencies from Defense to Transportation to Treasury cited climate considerations as key factors affecting their respective portfolios. On January 27, 2021, shortly after taking office, the Biden administration released a series of executive actions that included a stated goal of reaching a “carbon pollution-free power sector by 2035.”

Perhaps no single industry would be more critical to the realization of this far-reaching carbon-free goal than offshore wind, which has emerged in the United States over the past several years as a potentially game-changing source of clean energy generation, based on its earlier-moving success in Europe and elsewhere. In fact, along the country’s populous coastal areas, where fifty three percent of US residents reside, offshore wind presents the most viable option to build up renewable energy resources in the foreseeable future.

The industry’s significant upside potential has not been overlooked by the Biden energy team. The same late January set of Executive Orders arrived with a pledge to “identify steps that can be taken to double renewable energy production from offshore wind by 2030.” Energy wonks were quick to note that exactly zero megawatts of wind power are currently generated in US federal waters, where the Department of the Interior (DOI) exerts jurisdiction, making the double production pledge either poorly conceived or remarkably easy to accomplish, depending upon your point of view.

In reality, a significant amount of offshore wind power development is underway in US federal waters today. Some 10 projects with a potential 8000 MWs of output are currently in the pipeline along the east coast, all in need of federal approvals to continue forward. On the US West Coast, significant groundwork at the state and federal levels has been underway for years as part of a concerted push to launch a large-scale offshore wind industry utilizing floating turbine technology already deployed in Europe — a necessity on the West Coast given the sharp drop-off of the continental shelf just a few miles offshore.

Looking forward, here’s what we expect to see from a Biden administration federal policy apparatus that seems determined to maximize the potential of offshore wind in short order:

Federal Permitting: Furthest along in the pipeline, the fate of the 800 MW Vineyard Wind project off the coast of Massachusetts has been widely watched over the past few years. Viewed by many as a bellwether for DOI’s approach to assessing the impacts of offshore wind development, the project appeared to lose momentum in the course of its National Environmental Policy Act (NEPA) review process, unexpectedly finding itself subject to a Supplemental Environmental Impact Statement (SEIS) that would assess “cumulative impacts that could result from the incremental impact of the Proposed Action … combined with past, present, or reasonably foreseeable activities, including other future offshore wind activities.” DOI’s move, based on a lofty forecast of 22 GWs of offshore wind along the East Coast in 10 years, confirmed to many that agency leaders deliberately sought to slow industry growth, even as optimists countered that a successful expanded review process would better insulate the promising industry from future litigation.

The Biden administration has quickly moved to turn the page on Vineyard Wind, announcing a restart of the project’s SEIS (pulled in the waning days of the last administration for fear of a negative outcome) timed to coincide with the debut of newly minted Bureau of Ocean Energy Management (BOEM) head Amanda Lefton, who stated that “robust and timely” permitting would again become regular order. Indeed, only a month later, BOEM followed up by issuing the final EIS for Vineyard Wind. Developers in dire need of predictability should take heart at this early demonstration of timeliness — yet patience will continue to be required as a thinly staffed BOEM makes its way through the significant permit backlog.

Leasing: Beyond timeliness in permitting, the other key federal ingredient needed to instill predictability in the US offshore wind industry involved the issuance of new wind lease areas. For all the aggressive state-level renewables targets that have seeded enthusiasm in offshore wind, little can be done unless the federal government decides to hold lease sales, another action that appeared to be placed on the back burner during the last administration. Currently, developers are eyeing pending lease sales for significant additional acreage in the vicinity of the New York Bight and along the coast of California, both along the central coast at Morro Bay and further north offshore Humboldt County. Under a Biden administration intent on quickly ramping up offshore wind, creating a predictable path forward for development is an obvious priority. Look for release of a predictable, long-range leasing plan for both pending and future offshore wind lease areas as a means to restore investor confidence.

Inter-agency Cooperation: The aforementioned “all-of-government” approach to advancing renewables development stands to find real meaning in relation to offshore wind — starting at the Commerce Department, where the National Oceanic and Atmospheric Administration (NOAA) is housed. The jurisdiction of NOAA’s National Marine Fisheries Service gives the agency significant ongoing contact with commercial fisheries interests, many of whom are skeptical about offshore wind development, allowing it to play an important role in interfacing with fisheries and related stakeholder interests. The Department of Energy (DOE) has a significant role to play in advancing the industry’s future; backing research into new offshore wind technologies suited to US-specific conditions could bolster the potential manufacturing and supply chain benefits linked to the new industry. Finally, the Department of Defense (DOD) has significant say over the early planning process surrounding future wind lease area offerings; its ability to reach agreement on siting decisions in a timely manner is key to an efficient leasing process. Look for empowered climate policy leaders within the White House to enforce cooperation among these and other agencies to help streamline development.

ARTICLE BY George D. Felcyn of Bracewell LLP

For more articles on environmental law, visit the NLR Environmental, Energy & Resources section.

With the rule withdrawal, the stage is set for graduate student unions

Prepare now

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Credentials Are Powerful

Credentialing Sources

Attorney Ranking Sites

Publishing Opportunities

Speaking and Presentations

Credential Placement

Final Thoughts and Considerations

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A Day To Be Wary?

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Lexis+ for State & Local Practitioners

Lexis+ includes:

Game Changer: Litigation Analytics Added to Lexis+

Litigation Analytics in Practice for State and Local Matters – No Longer Rely on Word of Mouth

User Experience in Lexis+ Litigation Analytics

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Medical Marijuana Legislation

Alabama

Florida

Hawaii

Idaho

Kansas

Kentucky

Maryland

Mississippi

Nebraska

South Carolina

South Dakota

Virginia

Recreational Marijuana Legislation

Connecticut

Florida

Hawaii

Maryland

Minnesota

Nebraska

New Jersey

New Mexico

New York

North Dakota

Oklahoma

Virginia

Other States

Key Takeaways

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