IP Addresses Constitute Personal Data According to Court of Justice of European Union

IP AddressesIn a decision dated 19 October 2016, the Court of Justice of the European Union (CJEU) has provided much needed clarification on a long-standing issue in EU data protection law.

A German politician brought an action concerning websites operated by the Federal Republic of Germany that stored personal data, including IP addresses, on logfiles for two weeks.  The question before the CJEU was – are IP addresses personal data?  According to Article 2(a) of EU Directive 95/46 “personal data” is any information relating to an identified or identifiable natural person. An identifiable person is one who can be identified, directly or indirectly from the data.

The CJEU ruled that dynamic IP addresses constitute personal data for an online media service provider (here the Federal Republic of Germany) that makes a website accessible.

A dynamic IP address means that the computer’s IP address is newly assigned each time the website is visited.  Unlike static IP addresses, it is not possible for dynamic IP addresses, using only files which are accessible to the public, to create an identifiable link between the user’s computer and the physical connection to the internet provider’s network . Hence, the data included in a dynamic IP address does not enable the online media service provider to identify the user.

However, according to the CJEU, a dynamic IP address will be personal data if the additional data necessary to identify the user of a website is stored by the user’s internet service provider. The website provider only needs to have the legal means which enables him to identify the user. Legal means are, for example cyber attacks and does not have to be applicable for the specific case.

This decision has significant practical implications for all website providers, because the storing of user information by internet service providers falls under data protection laws. Ultimately, the website provider needs the consent of the user to store the dynamic IP address. This will also apply after the General Data Protection Regulation (GDPR) comes into force in May 2018, because Article 2 of Directive 95/46 is incorporated in almost the same words in Article 4 (1) of the GDPR.

ARTICLE BY Annette Demmel & Christina Schattauer of Squire Patton Boggs (US) LLP

© Copyright 2016 Squire Patton Boggs (US) LLP

NAWL Celebrates the Twelfth Anniversary of its General Counsel Institute®

Although the legal landscape continues to rapidly evolve, many obstacles still remain for women striving to advance their careers. Identifying opportunities, even ones that may seem unconventional, and seizing upon such opportunities, provides pathways to success that may not have been visible in the past. On November 3-4, the National Association of Women Lawyers’ General Counsel Institute expands on this concept with a program entitled, Pathways to Success: Embracing Opportunities with Agility and Creativity.

For twelve years, the General Counsel Institute (“GCI”) has provided an incomparable outlet for women who serve as in-house counsel across the country to discuss pertinent issues that affect their companies. Whether learning and discussing substantive legal matters or attending workshops that focus on professional development, GCI ensures that attendees are gaining insight and knowledge throughout the two-day conference.

But what really makes GCI unique is the inclusive atmosphere of the conference. Attendees range from General Counsel from Fortune 500 companies to in-house counsel for smaller boutique companies, all intermingling and providing valuable insight in a relaxed, friendly, and collaborative setting. The approachability of the speakers, as well as the attendees and organizers, encourages everyone to excitedly anticipate the conference each year.

The mission of National Association of Women Lawyers (“NAWL”) is to provide leadership, a collective voice, and essential resources to advance women in the legal profession and advocate for the equality of women under the law. NAWL was founded in 1899 by a group of eighteen (18) women lawyers in New York City and originally called The Women Lawyer’s Club (“Club”). In 1915, women’s suffrage became the first major project undertaken by the Club. Three-time Club President, Olive Scott Gabriel, argued for women’s voting rights across the country. Four years later, Congress passed the 19th Amendment to the United States Constitution, prohibiting any United States citizen from being denied the right to vote on the basis of sex. The Club’s membership mobilized to work for ratification by the states. It also worked consistently on social legislation – including child labor laws, minimum wage, divorce and marriage laws, the right for a woman to keep her name after marriage, and the right for women to serve on juries. In 1923, due to increasing nationwide membership, the Club became the National Association of Women Lawyers. That same year, it held its first national convention in Minneapolis with Chief Justice William Howard Taft.

In 1935, NAWL became one of the first national organizations to endorse the Equal Rights Amendment (“ERA”), first introduced to Congress in 1922. The ERA became one of NAWL’s highest priorities for the next several decades. In 1943, NAWL became an affiliated organization of the American Bar Association. It led the creation of opportunities for women to serve in the military and had more than 150 of its members serving in the Woman’s Army Corp., Women Accepted for Voluntary Emergency Service, and the Marine Corp.’s Women’s Reserve. In 1952,

NAWL drafted the Uniform Divorce Bill, calling it “the greatest project NAWL has ever undertaken.” In 1972, Congress passed the ERA and NAWL members embraced this victory by seeking ratification of the amendment by the states – a feat that would take until March 22, 1984 when Mississippi ratified it. In 1985, NAWL began granting membership to male applicants.

Two decades later, the then Immediate Past President of NAWL, Stephanie Scharf, now a partner at Scharf Banks Marmor LLC, founded the General Counsel Institute (“GCI”). Scharf targeted the meeting to senior corporate counsel who had the goal of advancing to the role of chief legal officer. She recognized the need for in-house attorneys to build top-tier professional and management skills in a supportive and interactive learning environment and to learn from experienced officers and directors about the points of pressure and success for general counsels. Together with NAWL President Lorraine Koc, then General Counsel and EEO Officer at Deb Shops, Inc. (now Senior Counsel at SugarHouse Casino) and NAWL President Elect, Cathy Fleming, then a partner at Edwards and Angell, LLP (now a partner at Fleming.Ruvoldt PPLC), Scharf quickly formed a planning committee which consisted of themselves, as a well as Carole Basri, then adjunct professor at University of Pennsylvania School of Law (now adjunct professor at Fordham University School of Law), Caroline K. Cheng, then Management Principal and Associate General Counsel at Deloitte LLP (now General Counsel at PricewaterhouseCooper LLP), Dorian Denburg, then Chief Rights-of-Way Counsel for BellSouth Corporation (now Executive Director- Senior Legal Counsel for AT&T Services, Inc.), Michelle Speller-Thurman, then a partner at Jenner & Block (now Division Counsel at Abbott Laboratories), and Betty-Lynn White (now an Adjunct and Area Chair for the University of Phoenix and Adjunct Professor at Albertus Magnus College). The Committee arranged plenary and workshop sessions to foster frank discussions about what it takes to be promoted and provide the means to improve skills and knowledge in a collegial atmosphere. They developed an innovative CLE program with opportunities to learn and network with other senior legal and business professionals and featured speakers Peter Harvey, then Attorney General of New Jersey, Catherine R. Kinney, then Co-Chief Operating Officer of the New York Stock Exchange, and Carol Robles-Román, Deputy Mayor, New York City. GCI met with rave reviews!

This year’s GCI will feature keynote speeches from accomplished General Counsel and business leaders who will focus on discussing their successful career paths, as well as providing advice and tips on how attendees can do the same. Keynote speakers will include:

  • Teresa Wynn Roseborough, Executive Vice President, General Counsel and Corporate Secretary, The Home Depot U.S.A., Inc.

  • Monique Svazlian Tallon, CEO & Founder, Highest Path Consulting

  • H. Gwen Marcus, Executive Vice President, General Counsel, Showtime Networks Inc.

  • Lauren Stiller Rikleen, President, Rikleen Institute for Strategic Leadership

  • Karen Hough, Founder & CEO, ImprovEdge, LLC

Through programs like GCI, NAWL has been empowering women in the legal profession and cultivating a diverse membership dedicated to equality, mutual support, and collective success.

For further information and to register for GCI 12, go to www.nawl.org/GCI12.

ARTICLE BY Eman Ahmed-Fakhry of National Association of Women Lawyers
Copyright ®, 2016 National Association of Women Lawyers

Learn about Leadership Development and Legal Marketing, November 14-15

Join LMA and Lead Star™ for the inaugural leadership development experience for the legal marketing industry. The program incorporates current research with experiential activities, providing legal marketing professionals with a unique perspective on their personal leadership style and tendencies.

LMA Leadership Development

When: November 15-16, 2016
Where: LMA Headquarters, 330 N. Wabash Ave., Chicago, IL 60611

Learn more about the value of your leadership experience with Lead StarLeadstar LMA Leadership Development and prepare for take-away benefits including:
  • A personal assessment of leadership style and its impact on their ability to achieve results
  • Individual leadership coaching sessions to support implementation of lessons
  • Access to online learning resources and social exchange with cohort participants
  • Development of a Personal Action Plan to guide participants in achieving next-level success
  • And much more!

OFAC Allows Joint Medical Research with Cuba

OFAC Medical ResearchThe Department of the Treasury, Office of Foreign Assets Control (OFAC), has modified the Cuban Assets Control Regulations (CACR) (31 C.F.R. Part 515) to allow joint medical research between persons subject to U.S. jurisdiction and Cuban nationals. In the context of the CACR, a “person subject to U.S. jurisdiction” includes any non-U.S. entity owned or controlled by a U.S. person or company directly or indirectly.

It is important to note that the focus of this rule is the development and sale of Cuban origin pharmaceutical products into the United Sates and not the sale of U.S. origin products into Cuba. The changes published today have no impact on the sale of U.S. origin pharmaceutical products into Cuba, and the modified rules do not eliminate the need for sales into Cuba to be licensed by the U.S. Department of Commerce and/or the Department of the Treasury.

As a result of this rule change, effective October 17, 2016, U.S. pharmaceutical companies and their foreign subsidiaries, as well as U.S. nationals, are authorized to engage in various types of transactions “incident to obtaining approval from the U.S. Food and Drug Administration (FDA) of Cuban origin pharmaceuticals, including discovery and development, pre-clinical research, clinical research, regulatory review, regulatory approval and licensing, regulatory post-market activities, and the importation into the United States of Cuban-origin pharmaceuticals,” as well as the “marketing, sale, or other distribution in the United States of FDA-approved Cuban-origin pharmaceuticals, including the importation into the United States of Cuban-origin pharmaceuticals.”

In its most recent Portfolio of Opportunities for Foreign Investment, Cuba identified the biotechnology and pharmaceutical sector, where BioCubaFarma has been producing vaccines and drug products for years, as one of the targets of foreign investment through strategic partnerships. Specifically, the Cuban government stated that it was promoting joint R&D projects, distribution and representation arrangements and technology transfer arrangements that complemented domestic projects in the sector. This week’s changes to the CACR will facilitate participation in these types of investments and activities in Cuba by U.S. companies.

ARTICLE BY Joan Koenig & Mollie D. Sitkowski of Drinker Biddle & Reath LLP

©2016 Drinker Biddle & Reath LLP. All Rights Reserved

DHS to Issue New I-9 Form Following Recent Penalties

i-9 violations, visaJust when employers were becoming more comfortable with the complex and lengthy Form I-9, Employment Eligibility Verification that was issued in 2013, the federal government has decided to turn up the heat. First, the Department of Homeland Security (DHS) and the U.S. Department of Justice recently increased the penalties for I-9 violations. Second, DHS has announced that it will soon issue a new version of the Form I-9. These actions bring significant changes for employers.

Under the new fine schedule, employers face penalties such as the following:

  • I-9 paperwork violations:  $216 – $2,156 per Form I-9

  • Knowingly employing unauthorized alien (first offense):  $539 – $4,313 per violation

  • Knowingly employing unauthorized alien (second offense):  $4,313 – $10,781 per violation

  • Knowingly employing unauthorized alien (third or more offenses):  $6,469 – $21,563 per violation

  • E-verify employers – failure to inform DHS of continuing employment following final nonconfirmation:  $751 – $1,502 per violation

The DOJ also increased the penalties for document abuse and discriminatory practices in addressing I-9 issues. Document abuse usually occurs when an employer asks for specific documents or for more or different documents after the employee has already presented qualifying I-9 documents. This violates the I-9 rules, which require that the employer allow the employee to choose which document or documents to present from the I-9 List of Acceptable Documents. The employer then must review what is presented to confirm whether the document or documents meet the verification requirements.

Unfair immigration-related employment practices may occur when an employer treats job applicants and/or new hires differently based upon their immigration status while implementing I-9 procedures or addressing I-9 issues.

Penalties for document abuse and unfair immigration-related employment practices are now as follows:

  • Document abuse:  $178 – $1,782 per violation

  • Unfair immigration-related employment practices (first offense):  $445 –$3,563 per violation

  • Unfair immigration-related employment practices (second offense):  $3,563 – $8,908 per violation

  • Unfair immigration-related employment practices (third or more offenses):  $5,345 – $17,816 per violation

These new fine levels are effective as of August 1, 2016. During I-9 inspections, DHS’s Immigration and Customs Enforcement and DOJ’s Office of Special Counsel will apply these new penalties to violations that occurred after November 2, 2015.  The increased penalties are a reminder of why I-9 compliance is so important.  Employers should review their I-9 procedures and conduct periodic internal audits to best defend against the risk of I-9 penalties.  For additional tips to achieve better I-9 compliance, as well as for updates on the government’s enforcement activities, please see our prior posts.

As to DHS’s announcement of yet another version of the I-9 form, there have been more than 10 different versions in the nearly 30 years during which the I-9 has been required. DHS expects to issue the newest version of the Form I-9 on or before November 22, 2016. DHS will allow employers to continue using the current version (issued in 2013) through January 21, 2017. Employers should use this two-month period to review and gain an understanding of the new Form I-9 before transitioning to it.

ARTICLE BY Anita M. Sorensen of Foley & Lardner LLP

© 2016 Foley & Lardner LLP

Employers Must Continually Navigate a Minimum Wage Patchwork Across America

minimum wagePerhaps in response to protests brought by employees and their advocates in recent years, states, counties, and cities across America have been increasing their minimum wage in piecemeal fashion. Few employers are fortunate enough to need worry about only one minimum wage—the federal minimum wage that is the floor below which employers may not go (unless an employer is not covered under the FLSA). Most large employers that operate in multiple states must now navigate a minimum-wage patchwork in which the hourly rate vaminimum wageries from state to state and, sometimes, between counties and cities.

Although the federal minimum wage is $7.25 per hour, 29 states and the District of Columbia have a minimum wage greater than the federal minimum wage. And those states are consistently increasing their minimum wage—New Jersey just passed legislation increasing its minimum wage from $8.38 per hour to $8.44 per hour, effective January 1, 2017, which is also when the Montana minimum wage will go from $8.05 to $8.15 per hour.

California is arguably the most difficult minimum-wage patchwork for employers to navigate. From a present minimum wage of $10 per hour, the California minimum wage will increase one dollar per hour each year until it reaches $15 per hour in 2022. But those increases also result in increasing the minimum salary that must be paid to employees who qualify for most overtime exemptions in California. Because most exempt employees in California must make at least twice the minimum wage on an annual basis, the current minimum salary for exempt employees who work for employers having more than 25 employees will increase from the present minimum of $41,600 per year to a minimum of $62,400 by 2022. (However, if the DOL’s rule goes into effect on December 1, 2016, requiring a new minimum salary of $47,476, then that will be the new floor below which employers may not pay their employees on a salary basis.)

In addition to minimum-wage increases on a statewide level, numerous California cities and counties have passed ordinances increasing their own minimum wages. From San Diego to Berkeley, the minimum wage in many cities has increased quicker than the state minimum wage. California’s minimum wage is presently $10.00 per hour. Employers in Santa Clara and Palo Alto, however, must pay their employees at least $11.00 per hour. Employees across the bay in Oakland must be paid at least $12.25 per hour. San Diego employers must pay their employees $10.50 per hour, as do Santa Monica employers that employ more than 25 employees.

California cities are not the only ones that have increased their minimum wage faster than their resident states. Employers in Albuquerque have had an $8.50 minimum wage since 2013, greater than the $7.50 required under New Mexico law. Similarly, Chicago has a $10.50 minimum wage, although Illinois mandates only $8.25. Seattle businesses that employ less than 500 persons must pay their employees $12.00 per hour, but Washington has a minimum wage of only $9.47.

ARTICLE BY Kevin Sullivan of Epstein Becker & Green, P.C.

©2016 Epstein Becker & Green, P.C. All rights reserved.

Predictive Scheduling: An Expanding Trend Impacting the Food Service, Hospitality, and Retail Industries

general calendar, predictive schedulingOn September 19, 2016,[1] Seattle became the second local jurisdiction to enact a “predictive scheduling” or “secure scheduling”[2] ordinance that allows the jurisdiction to restrict how retailers and restaurants schedule their employees.  The federal Department of Labor is also analyzing whether existing wage and hour laws can be applied to address this issue and other state and local legislation similarly is being considered.  These laws attempt to provide predictability to workers’ schedules by, among other matters, requiring employers to give workers two weeks’ notice of work schedules, pay employees for schedule changes or cancelled shifts, and provide predictability pay for on-call employees not called into work.  These measures and proposals currently are targeted largely to the food service, hospitality, and retail industries, although in some jurisdictions the concept has been expanded to target all employers.

What is driving these often union-motivated legislative efforts?  Businesses do not need the same number of workers on a consistent basis.  Many businesses schedule workers weekly, and worker schedules may vary significantly from week to week.  Some workers are on-call, with no schedule and no guarantee of shifts.  Thus, the hours for which an employee is scheduled to work or that the employee actually works may increase or decrease substantially.

As a result, some workers complain that erratic scheduling practices:

  • Make it difficult to plan for family care, school, and other jobs;

  • Make it difficult to predict income;

  • Allow some employers to coerce employees to take unscheduled shifts; and

  • Do not give workers enough rest time between closing and opening shifts.

In addition to these general worker complaints, certain themes appear to be driving legislative efforts.  These include:

  • The impact of scheduling on low income workers and caregivers;

  • The belief that part-time scheduling may be more burdensome for women than men;

  • An increase of nonunion workers who are not protected by collective bargaining; and

  • The belief that many part-time workers are “involuntary” part-timers.

What may be included in proposed legislation:

  • Two weeks’ notice of work schedules or notice to change in work schedules;

  • “Predictability pay” to employees for schedule changes, additional shifts, or cancelled shifts;

  • “Predictability pay” for on-call employees who are not called into work;

  • Requirement to offer additional hours to part-time employees before hiring additional employees;

  • Good faith estimate of hours at time of hire;

  • Right to request flexible work arrangements;

  • Some ordinances require the jurisdiction to accommodate workers’ other obligations and needs, such as school, caregiving, transportation or housing changes, or another job unless the employer has a “bona fide” reason not to grant such an accommodation;

  • Minimum hours before shifts;

  • Part-time employees’ hourly rate equal to that of full-time employees;

  • Part-time employees’ eligibility for the same paid and unpaid time off (prorated) as full-time employees;

  • Right to decline additional, unscheduled shifts with no adverse consequences;

  • Agency processes; and/or

  • Private rights of action.

This employee-friendly trend presents significant challenges to at least employers in the hospitality and retail industries where flexibility in scheduling is vital to business operations due to large numbers of part-time employees, high employee turnover rates, and constantly fluctuating customer demands, all of which can change month-to-month, week-to-week, or even day-to-day based on factors such as the weather, season, traffic or holidays.  Imagine a venue where the work demands are based on whether a sports team makes the playoffs.  Scheduling needs would not be anticipated in a timely way to give the notice required under this kind of legislation, but the game would still need to be staffed at a great cost to these businesses if these harsh laws go into effect.  Many employers and industry groups have actively campaigned against these efforts arguing that such scheduling measures would unnecessarily burden their businesses by removing needed flexibility, increasing costs, and unreasonably interfering in relationships with employees — many of whom specifically entered the industry for the scheduling flexibility it provides.

New Scheduling Practices Take Hold

In November 2014, San Francisco became the first U.S. jurisdiction to pass predictive scheduling legislation, the “Predictable Scheduling and Fair Treatment for Formula Retail Employees Ordinance,” implemented as part of the city’s larger “Retail Workers’ Bill of Rights” aimed at chain stores and restaurants.  The ordinance applies to “Formula Retail Establishments” — chain stores with at least 40 locations worldwide and 20 or more employees (including corporate officers) in San Francisco.  The expansive legislation requires that, among other things, employers give new workers written good faith estimates of their expected hours and schedules, provide two weeks’ advance notice to employees of their schedules, pay employees for schedule changes and cancelled on-call shifts, and offer extra hours to current part-time employees before hiring new employees or utilizing a staffing agency.

Not long after San Francisco’s Ordinance went into effect, the New York State Attorney General issued information request letters to 15 large retail chains regarding their respective scheduling practices.  In September 2016, the New York City mayor promised to introduce a predictive scheduling proposal to the city council that would regulate scheduling practices for more than 65,000 New Yorkers employed by the city’s fast food chains.  Under the mayor’s proposal, fast food restaurant chains would be required to set shifts for each employee at least two weeks in advance and prominently post the schedules.  If an employer were to change a worker’s hours on short notice for any reason, the employee would be entitled to extra compensation.  Washington, D.C. looked into predictive scheduling earlier in 2016, but the bill was tabled indefinitely in June.

Seattle’s Secure Scheduling Ordinance
Seattle became the latest city to pass predictive scheduling legislation with a unanimous vote on the Secure Scheduling Ordinance.[3]  The legislation extends to retail and fast food service establishments with more than 500 employees worldwide and full service restaurants with more than 500 employees and 40 full-service restaurant locations worldwide.[4]  The ordinance mirrors the San Francisco ordinance in many ways but imposes additional onerous requirements upon employers.  The key provisions include:

  • A good faith estimate of workers’ hours must be provided to new and existing employees.  The estimate must be updated annually or whenever it is subject to substantial change.  While the estimate is not binding, the employer must initiate an interactive process with the employee to discuss any significant change from the good faith estimate and, if applicable, explain the bona fide business reason for the change.[5]

  • Employers must give employees their schedules 14 days in advance.[6]  Employees have a right to decline any shift added to their schedule within the two-week notice period.  If an employer alters the work schedule, it must timely notify the employee in person or by telephone, email, text, or similar means.[7]  Where an employer adds hours to an employee’s shift or changes the start or end time of a shift, the employee must be paid for one additional hour of “predictability pay.”[8]  If an employee is scheduled for a shift and sent home early or an on-call shift is cancelled, the employee must be paid for half of the hours not worked.[9]

  • Employees have the right to request input into their schedule.  An employee may make a scheduling request and the employer must engage in a timely, interactive process to discuss the request.[10]  The employer must have a “bona fide business reason” for denying requests related to an employee’s serious health condition, changes in transportation or housing, caregiving, education, or second job responsibilities or conflicts.[11]

  • If the gap between a closing and opening shift is fewer than 10 hours, an employee is entitled to be paid time-and-a-half for the difference (addressing so-called “clopenings”).

  • If new additional hours become available, the “access to hours” measure requires that employers give notice and offer those hours to qualified current employees before hiring additional staff.[12]

The Seattle ordinance also imposes notice and record-keeping requirements on employers and prohibits retaliation against employees who exercise their rights under its provisions.  In addition to various penalties which may be imposed upon employers, any person (not just employees) aggrieved by an employer’s scheduling practices is provided with a private cause of action against the business.[13]

The most significant and troubling difference between the Seattle ordinance and other predictive scheduling measures is the required interactive process for employee scheduling requests.  This requirement undoubtedly will prove to be burdensome for employers.  This process will be markedly different from the “interactive process” employers engage in with regard to requests for reasonable accommodation of a disability.  Human resources personnel and managers will likely face scores of requests from multiple employees with minimal guidance as to how those competing requests should be handled.  The ordinance requires that employers give preferential treatment to requests related to transportation and childcare needs, second jobs, or career-related educational or training courses.  However, it is unclear how employers should prioritize competing employee requests for those “major life events.”  Further, an employer’s ability to deny an accommodation request for such events is limited to the existence of “bona fide business reasons,” which are defined narrowly.  The ordinance provides examples, for instance: “significant ability to meet customer needs,” an “insufficiency of work” during the shift requested, or a significant inability to reorganize work.

Pending Legislation

As the predictive scheduling movement continues to gain momentum, legislation is pending at the state level in California, Connecticut, Illinois, Indiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, and Rhode Island, as well as on the federal level.  These proposals are similar to those enacted in San Francisco and Seattle.

California

In February 2015, state legislators in California introduced the “Fair Schedule and Pay Equity Act.”  The act would apply to food and general retail establishment employers with 500 or more California-based employees.  The bill would require two weeks’ advance notice of schedules for employees with additional pay provided for changes within that period but would allow for an exception for changes to a schedule requested by a worker herself.

Connecticut

Only a week after the California bill was introduced, Connecticut’s “Act Concerning Predictable Scheduling” was proposed by legislators.  The act would apply to all employers in the state, not just retail or food establishments.  If passed, the bill would require 21 days advance notice of scheduled work hours and an hour of additional pay for each changed shift if the change is made more than 24 hours before an employee is scheduled to work.  For changes made within that 24-hour time frame, the employee would be entitled to four hours of extra pay at the regular rate in addition to pay for hours worked.

Illinois

In March 2015, Illinois representatives followed Connecticut’s lead by introducing House Bill 3554, which would also apply to all employers doing business in the state.  The bill would empower employees to request changes to their time on call, number of required hours or location of work, amount of notice given to employees for schedules and assignments and changes in hours.  Employers would be required to engage with employees in a “good faith interactive process” to work through the requests and in the event of a denial, the employer would have to state the reason in writing and consider alternatives to employee proposals.

New York

While Mayor de Blasio has yet to present his proposal to the city, New York’s assembly and senate have had identical bills pending since early 2015.  Both the assembly’s A3055 and senate’s S2414 would apply to all employers and, similar to Illinois’s bill, would provide employees with a forum to make requests for flexible working arrangements free from retaliation and with the requirement that their employer seriously consider their requests and provide a timely decision on the matter.  An amendment to New York state labor law limiting on-call shifts was introduced as well but has since been withdrawn.

Oregon

Introduced in early 2015 and recently amended, House Bill 3337 and Senate Bill 888 would require employers to engage in an interactive process to respond to employee scheduling change requests.  It would also go a step further than other proposed state legislation by mandating that requests made because of a worker’s second job, serious health condition, caregiving responsibilities, or participation in a training program would have to be granted unless the employer can provide a bona fide business reason for denial.  The proposed bills also would require three weeks’ advance notice of work schedules with additional pay for schedule changes and prohibit employers from requiring employees to work nonscheduled shifts without their written consent, or even to require their employee to find a replacement for that shift.  The bills would also limit the use of on-call shifts, providing the employee with a mandatory four hours of additional pay for any shift for which the worker is required to contact the employer or be available to be contacted by the employer at any time within 72 hours of the potential shift to determine whether they will be needed.  Finally, the Oregon bills would eliminate “split shifts” or any schedule in which the employee would need to work one or more nonconsecutive shifts in a 24-hour period.

Tips for Employers

Employers, especially those in the retail and hospitality industries, should educate themselves about and prepare themselves for the legal and practical challenges that changes in the scheduling law will present to their businesses.  Proactive employers will individually or through industry groups try to influence legislation before it is passed.  And, when local jurisdictions adopt such measures, employers, such as those with operations in Seattle, will have to closely monitor developments including forthcoming implementing regulations.

Employers should consider aligning themselves against potential or already proposed legislation in the localities in which they do business and actively lobby decision-makers.  Employers can find helpful resources for doing so in the “Restrictive Scheduling Toolkit” that the National Retail Federation has created for that purpose.

Additionally, employers in all industries should recognize that even if legislators do not take action on behalf of workers in their state, predictive scheduling can become an employee relations issue that labor activists may utilize as a call to unionization in an effort to achieve the same effect through collective bargaining.  For this reason, a number of nationwide retailers have already chosen to phase out on-call scheduling in the wake of the publicity following New York’s Attorney General inquiry last year.  While it is possible that no other attorneys general will follow that lead, retail and service industry employers should closely monitor developments to ensure their scheduling practices do not pose a risk of legal challenge.  But, proactive employers will recognize that some jurisdictions may be quick to follow New York’s approach.

If you are in a jurisdiction that has adopted predictive scheduling, it is important to consult with legal counsel about compliance as these are new laws that are still developing and the uncertainties surrounding these issues will present compliance challenges.

ARTICLE BY April Boyer, Suzanne J. Thomas & Yamilet Hurtado of K & L Gates
Copyright 2016 K & L Gates

[1] Seattle’s ordinance becomes effective on July 1, 2017.

[2] Employers have referred to such measures by terms such as “restrictive scheduling,” signaling their discomfort with the terms of such legislation.

[3] Seattle, Wash. Mun. Code ch. 14.22.

[4] Id. ch. 14.22.020.A.

[5] Id. ch. 14.22.025.

[6] Id. ch. 14.22.040.

[7] Id. ch. 14.22.045.

[8] Id. ch. 14.22.050.A.1.

[9] Id. ch. 14.22.050.A.2.

[10] Id. ch. 14.22.030.

[11] Id. ch. 14.22.030.B.2.  A bona fide business reason is not required if the request is unrelated to a “major life event.”  Id. ch. 14.22.030.B.1.

[12] Id. ch. 14.22.055.

[13] Id. ch. 14.22.125.

Attend NAWL’s General Counsel Institute – Pathways to Success

NAWL Logo General Counsel InstituteSuccessful people share common characteristics that drive them on their road to success, including keeping a positive mindset and being comfortable taking on new challenges. No matter what your definition of success is, the National Association of Women Lawyers’ Twelfth General Counsel Institute offers a roadmap for getting to where you want to go.

 

When: November 3-4, 2016

Where: Crowne Plaza Times Square Manhattan, NYC

Register today!

In today’s ever changing legal landscape, we invite you to advance your career by securing success through agility and creativity. Gain insight into the hottest topics in the law. Acquire knowledge or enhance your proficiency about the most talked about labor and employment matters. Take a deep dive into today’s regulatory and compliance issues. Tap into technology and embrace the challenges and changes that accompany this ever-evolving area of the law.

At GCI 12, you will be asked to think outside the box and blaze your own trail of success by articulating your own vision, laying your own foundation, and growing both personally and professionally. Through powerful stories, substantive legal workshops, and GCI’s unique open exchange of ideas, GCI 12 will empower you to embrace opportunities with agility and creativity and gain leadership skills and business acumen on your pathway to success.

Legal Marketing: Finding Internal Champions and Other Blogging Strategies that Work

Blogging StrategiesDoes your law firm have one or more blogs? Chances are, one in four of you will nod yes. According to the most recent ABA Legal Technology Survey, about 26 percent of law firms currently have blogs, continuing a rising trend over the past few years. And of those lawyers who blog, an average of 40 percent have been able to attribute new clients as a result of that activity.

The ABA Journal wrote in April this year about an October 2015 LexisNexis survey concerning law firms and marketing. The survey indicated that “a majority of firms said they are planning to increase their investment in blogging and content marketing this year. According to LexisNexis, of the roughly 400 law firms that responded to the survey, 57 percent said they anticipated doing more blogging as a means of generating business.”

With all signs pointing to the fact that blogging is an effective element of a comprehensive business development strategy, what is holding your firm back?

Jacqueline Madarang, senior marketing technology manager at Bradley, provided many tips and recommendations for making the most of a law firm blog at the Legal Marketing Association Southeastern Chapter annual conference in September. She should know, since the firm has launched five blogs under her deliberate and effective guidance in the past two years.

“There are certain action items that must be done before we will even consider launching a new blog,” said Madarang. “We have a long checklist. It includes a lot of behind-the-scene commitments, such as that attorneys who request a blog have to seek their practice group leader’s approval and also meet with us. They must commit to writing at least two blog posts a month and they have to find at least two editors for the blog. They also are required to submit at least five blog posts before we will launch the blog, and we create a timeline on a calendar of blog development and content development that we follow.”

Find Your Internal Champion

“We have found that the attorney who requests to develop a blog becomes our internal champion in making the blog successful. After the practice group leader supports the effort, we have another champion. We work hard to earn their trust, we seek press and other coverage and awareness of the blog when it goes live, we show them results of their posts, we look to get their content repurposed through media interviews or published as bylined articles, and we always provide them with the support they need to keep it going,” said Madarang.

“We felt even greater success after large Fortune 100 companies (not clients, yet!) emailed our bloggers and complimented them when they were mentioned in our blogs; when Forbes reporters reached out directly to our attorneys because of a blog post; when reporters who followed cases our attorneys blog about asked about status of cases; and when we opened new matters from blog posts.”

“Our internal champions have become helpful advocates who have furthered our own PR within the firm about blogging and the successes we are having,” Madarang said.

Why Do a Blog?

Madarang poses this question to the attorneys to develop a strategy with defined goals and objectives. Some motivations include:

  • Build online visibility to help drive business development

  • Raise their profiles as thought leaders in the industry

  • Become a go-to resource in the area/industry

  • Boost their Google search engine ranking results

She said the firm’s marketing department has to complement and work cooperatively with the attorneys.

“They have to work together,” Madarang said. “The attorneys are the ones writing about the legal topic, but marketing provides the platform and provides all the marketing, social media and technical support.”

What Should I Write About?

“This is a frequent barrier for producing quality blog content,” noted Madarang. She offers these helpful tips for generating topics:

  • Write about topics you are passionate about. If you’re bored by it, your readers will be, too.

  • Talk to clients. What are they asking you about – what do they want to know?

  • Look at analytics. What are people searching for in the firm’s website, search engines and blogs?

  • Identify trending topics. Keep on top of current events and listen at conferences you attend.

  • Repurpose content. Repackage topics you are delivering in other formats, such as presentations.

Bradley Blogging Bootcamp 

One of the most important pre-launch activities that Madarang has instituted at Bradley is required attendance to the Bradley Blogging Writing Bootcamp.

“During this bootcamp, we coach the attorneys on how to write an effective blog. We teach them to write to a specific audience and be more conversational, to find their own style,” said Madarang. “We coach them on how to craft titles, how to hook in a reader with an opening paragraph, how to make their blog posts more digestible and readable without any legalese, how to include the appropriate keywords and how to focus on the key issues. This has been an extremely successful approach that the attorneys have learned from and appreciate. They are committed and want the blog to be a hit, and we provide them with the tools and consistent strategies they need to help them.”

Post-Launch Activity

Once the blog launches, Madarang pays close attention to the results and fine-tunes with the attorneys as needed.

“We have several ways we extend the life of a blog post, whenever possible,” she said.

 Her tactics include:

  • Measure success and show ROI. Look at the analytics and share with the bloggers to help them understand their performance. Create infographics to help them visualize how their results have translated into ROI.

  • Repurpose and reuse. Use blog posts for PR opportunities; publish on LinkedIn, JD Supra, National Law Review, Lexology and/or Mondaq; and share on social media.

  • Celebrate! Create fun awards for the attorneys with the most-read or most-shared posts or for those who wrote most often and opened new client matters as a result. Recognition is a motivator.

Developing and maintaining a law firm blog requires a deep commitment from the attorneys who are going to have to write regularly, as well as from the firm to support that effort from A to Z. Bradley’s blogs have become a well-read fixture under Madarang’s organized strategies, and these tips should provide aspiring law firm bloggers with a foundation for their own success.

ARTICLE BY Vivian Hood of Jaffe

© Copyright 2008-2016, Jaffe Associates

Business Development for Attorneys w/ Barry Gardiner [PODCAST]

New Jersey tax lawyer Barry Gardiner has built his business from the ground up and provides other lawyers with tips and tools to build relationships and engage in effective business development for attorneys in this podcast with legal marketing guru John McDougall.

John McDougall: Hi, I’m John McDougall and welcome to the Legal Marketing Review Show on National Law Review. Today my guest is Barry Gardiner, founding partner of the Barry Gardiner Law Firm in New Jersey and New York. Welcome, Barry.

Barry Gardiner: Hi, how are you?

Getting Started as an Attorney

John: Yes, very good. How did you get started as an attorney?

Barry: How did I get started as an attorney? That’s a long story John. My senior year in college, my college roommate said to me, on a Monday or Tuesday, “What are you going to do after you graduate?” I said, “I have no idea.” He said, “Well, I’m taking the” — they called them the law boards in those days — “on Saturday morning. Why don’t you go?” So I went, and I took the boards, and I did well and eventually decided to go to law school and went to Rutgers Law School. After I graduated, I took a job with, believe it or not, a negligence firm in New Jersey where I tried a lot of negligence cases for about a year-and-a-half, which I really didn’t like because it was only a question of who went through the stop sign or who didn’t go through the red light and who did and everybody lied, and that was no fun.

I decided since I was a business major in college with the Bucknell University in Pennsylvania to go into tax law, which I decided I had an aptitude for and then something which I enjoyed. I decided to take a New York bar because that’s where all of the good tax work seemed to be with sophisticated companies, Fortune 500 companies, et cetera. What I did was I took a job with an accounting firm in their tax department for a year and enrolled in NYU Law School for a Masters in Taxation, which is one of the better law schools from that program in the country. I did that at night for three years, and then I took a job with a law firm in Manhattan and became a partner there after two or three years. We had about a 20 man tax firm; it was a tax boutique and we represented a lot of wealthy, high-net-worth individuals. A senior partner in our firm had a client who was a chairman of the board of that 10 or 12 interlocking public companies.

I began to do that kind of work and did a lot of public company work for these companies and their subsidiaries, which included everything — international transactions, mergers and acquisitions from a tax standpoint, planning everything, and I was a partner there for about 13 years. Then in the mid ‘90s, we had some downturns because of the economy and a couple of partners left and the firm started to fall apart a little bit. I decided to take my clients, and I had some at that point, not a lot but some, and start an individual practice of my own in Northern New Jersey which is where I lived.

John: About what year was that roughly?

Barry: ’92, around ’92 I’d say.

Branching Out into a Solo Practice

John: How did you learn to get your clients through that though? That sounds it’s a very daunting task, and you’re going out on your own.

Barry: It was a daunting task, and I had a daughter at that time who was starting college, and it was a little bit scary. But because of the nature of the tax work that I did, I had a number of relationships that I had established with CPA firms, life insurance agents who were selling insurance in connection with estate planning, which is something I was also doing and I basically took those connections that I had and built on those. I had several very strong relationships where I began to get most of their work. That’s basically the way I started my firm. It’s very unusual if you look around — whether it’s in New Jersey, in New York or wherever — for somebody who does the kind of work that I do, which is pretty highly sophisticated tax planning [work for corporations] as well as individuals who are out on their own. Most of the work, at the level that I do, is pretty much done by larger firms; anywhere from 50 to 100, or 300 lawyers where they have tax departments. But what happened was I began to work with these networking connections that I had and was able to build on those. Then what happens after several years, maybe three or four years, a lot of that work becomes sub-generating — in other words, through referrals and other clients who are coming in through your existing clients. At the same time, what I was doing was building additional relationships with other CPA firms, financial planners, and life insurance agencies. I had a number and still have a number of very good connections with MassMutual agencies, Security Mutual agencies, et cetera. That’s basically the way it got built.

Important Aspects of Legal Business Development

John: What would you say is the most important aspect of business development?

Barry: I think for somebody who’s in a smaller firm, I found that a lot of larger firms don’t do personal service and attention to their clients, which clients seem to resent substantially. I’ve always sort of made it a number one point to [offer personal service]. For example, if I get a telephone call from a client, and I can’t take it, I’ll always return that call at the end of the day. Or if the call comes in at the end of the day, by noon the next day, unless am tied up in meetings or something, and if I am, I’ll then have my secretary get back to the client and let them know, or let them tell us what’s a good time to get back to them, which clients appreciate.

It’s like if you go to a doctor, and you leave a message for the doctor, you don’t want to wait 24 hours or have to call the doctor back, you want him to call you back, because that basically shows that he cares. I want my clients to know that I care about them, rather than their just being a number, which many of them feel left out with these larger firms. Because all these larger firms have big clients, and in many cases, [they’re] smaller guy. When I say, ‘small,’ I’m not talking about a guy who is worth a small amount of money, but somebody in the relative scale who’s not worth what these big Fortune 500 companies are worth, or even wealthy clients who are worth $25 million and up. Everybody wants to feel important, and I’ve always tried to do that, whether the client is worth $100,000 or $50 million, it doesn’t matter. I don’t know if that answers your question.

How to Begin Building Client Relationships

John: Well, yes. It answers part of it. That’s a great way to build relationships and build on relationships with clients. What about first getting the client? How do you get relationships to begin with? Or how do you build relationships through networking or other ways that then turn into clients that you can then service with more attention to detail than a larger firm? How do you plan to see to get those new relationships?

Barry: Well, again, through other professionals, CPAs, financial planners, [and] other attorneys who don’t do this kind of work. I may call one, for example, in a matrimonial matter, or a commercial real estate matter, or litigation [matter] to basically get out there and meet people. I’m not one to join organizations like the Chamber of Commerce, or other organizations.

You are all here for the same reason, you are all here to get business, and that never really appealed to me. But I think the best client is a client who appreciates your work [and] who is going to give your name and number to a friend or a family member when they have a need, and they’re looking for somebody doing basically what you’re doing. Most of the clients I have are clients that I’ve kept for 15, 20, 25 years. I’ve lost very few clients. I actually, at this point have about 400 original wills, which I have at a safe deposit box at a Local Banking Institution, where I’m holding those wills for clients who may have copies which I’ve given them for their own reference.

John: Yes, that’s a great testament to many years of building those relationships. It sounds like in your line of work, you have to start, if you want to build a firm through business development, as opposed to internet leads and other types of sales marketing tactics. In your case, it’s a lot of building network partners or referral partners, as you mentioned. Then, when you get clients, turning those clients into very happy customers where you’re servicing them with a great level of attention and hand holding. That level of service turns them into referral partners of their own but those are the retail, those are the actual clients as opposed to an insurance company or a financial planner.

Barry: Correct. I think if you look at a lot of lawyers, I’m taking the liberty to say this, are unhappy in what they’re doing. They find it very stressful, very time-consuming, and this is the reason that a lot of lawyers have matrimonial problems, drinking problems, et cetera. Because, when they go to work every day, they are arguing an adversarial all day long. They’re arguing with other lawyers.

John: For a living. Right.

Barry: It takes its toll on you. Doing what I’m doing, I have been blessed because I don’t have that. The work that I do is basically with clients who come in with huge problems, who need to sort through those and come out at the end of the day with a plan, or a solution to what they’re doing. It’s a service to the clients, rather than an adversarial thing with other lawyers where unbearably, everybody is fighting with one another trying to get the better hand. I think it probably shows on the kind of work that you’re doing that you go to work every day, and you’re pretty enthusiastic about it. For example, the 400 wills that I have in the vault, eventually those are going to turn into an estate. Unfortunately, people die and families need help. It’s very rare unless somebody has moved away for example, to Florida; that while you’re holding an original will, they’re not going to ask you to handle the estate.

There are clients who move, and I don’t even know they may have moved out of state. I’ve had some clients that moved to places like Costa Rica, and those clients you lose basically because you’re geographically separated. But for the most part, once you have a will, you’re representing the family, and the family stays with you if they have confidence in you. You’ll wind up helping them through all of the intricacies that go into administering an estate, and getting everybody what they deserve, and paying in the littlest in estate taxes as possible. It’s one good aspect of doing the kind of work that I do I think.

Lead Regeneration for Estate Planning

John: Interesting. If you want to do lead regeneration for estate planning, one of the ways to do it is to get the wills first?

Barry: Right, but I’ll always ask a client, “Do you want me to hold the will, so you don’t have to worry about it?” A lot of clients want to hold it because they just feel like they need to control it somehow and not lose sight of it. In which case, I’ll either put in a safe deposit box, or in a fireproof safe in their home. But I would say, most clients — maybe 70-30, want you to hold it for them. Once they do it, it’s done, and they forget about it until something terrible may happen in the family. What I try and do also is every couple of years when the tax law changes [contact the families]; [for example] Federal Estate Tax exemption has gone up from $600,000 to $5.4 million per person since I think was the end of Bill Clinton’s term or the beginning of George W. Bush’s term.

John: That’s quite a change.

Barry: That’s quite a change, and it does require a lot of different planning because there are ways to take advantage of those exemptions. That’s a whole story for another day. What I’ll do is send out letters to clients periodically every couple of years telling them the importance of coming in at least for a review update to make sure that they’ve taken full advantage of the tax laws.

John: That goes right back into keeping that relationship strong as opposed to just throw that will in a safe deposit box and forget it. You’re going to dust it off and make sure that your clients are aware of the potential changes and keep in touch.

Barry: I’m going to try and dust it off. A lot of clients get the letter, and they read it and then they put it in a desk drawer somewhere they don’t follow up through. There’s nothing I can do about that. I can only make the initial reproach to them.

Business Development System

John: Well, you’ve focused on relationships and then what about a system? Do you have a business development system or process, certain times a day or a week that you set aside to do new business to keep growing your firm?

Barry: No, I don’t do that. At this point it grows itself.  What I will do is I will basically make one stage several times a month with professionals who I want to stay in touch with and just to keep the contact. I want to be friends with all of my professional contacts; I just don’t want to be unprofessional. One of the things I always do, I always tell my clients not to call me Mr. Gardiner, to call me Barry. I have very few clients that call me Mr. Gardiner. I want it to be personal, and I usually call clients by first name, and I think it makes a big difference. There’s nothing that somebody likes more than to be called by their first name.

About 30 years ago, I took that Dale Carnegie course and one of the big things they said is that, “Everybody wants to feel important, and the way they feel most important is if you remember their name.”

John: Right, yes.

Barry: This is seen if you haven’t seen in two years where you met once or twice, and you remember their name, you are telling them that, “You are important to me.” I always try and do that.

John: Yes, now that’s great.

Barry: By the way . . ..

John: Yes, go ahead.

Barry: I forgot your first name, what’s your first name?

John: [laughs] Reginald.

Barry: John McDougall.

John: John McDougall. My father owned an advertising agency, and he always taught me, “It’s all about building relationships to grow your agency,” and it’s amazing. What you’re describing is very similar to his process. He would take people out sailing. My uncle who owned the agency with him would take people out golfing, and he wanted to get to know people. But you’re an attorney that’s just getting into the internet more; you’ve had a website for a long time, but you’re just starting to get a little deeper into it. Well, what a testament to building your business with very little help from the internet. You’ve had a website to give you some leads but hasn’t been the focus. But it’s hats off to you for using essentially regular lunch dates, talking on a first name basis with all of your customers and even just doing a few of those a month, you’re able to have enough business. Well, you’re in great shape. That’s pretty amazing. Those old school new business development tactics are just tried and true. Now you’re adding the internet to that [and that] is certainly a good thing. But what about other tips for maybe especially younger attorneys trying to do new business development?

Business Development for Younger Attorneys

Barry: Well, it’s very tough. When I was with my firm in New York, starting as an associate and then becoming a partner, I didn’t really have to develop new business because we had so much work, especially from the public companies that I mentioned before, that there was really no need. There was one rainmaker in the firm, and he developed most of the business with these public companies. The other guys in the firm, really we didn’t have to do it. When I went out on my own, after the firm, and by the way, that firm eventually did dissolve, it splintered, and the guys went in different directions. But when I went out on my own, I had to start from scratch. I did have some clients that I took with me, but fortunately I did have some of these professional relationships also.

I would say that it depends where the young attorney goes. If he does go to a bigger firm, it’s always good to develop personal relationships that can lead to business, because if and when he ever leaves, you don’t want to leave yourself out in the cold completely, you want to have some business to fall back on. If you do go out on your own to start with, you should have some business, maybe family business to get you going and then just start to develop as many professional relationships as you can with people who may be helpful to you in whatever field you’re in.

John: That’s amazing. It’s relationships [that are] number one. Again, I go back to my father teaching me to grow my own agency after working for him in the ‘90s and leaving McDougall Associate Advertising in 1995 and starting my own firm. I had to just hustle and go build it up. It’s all about relationships, as what he would always say, and basically, your foundational strategy is, “Build those relationships.” I love the first name tip, and I’ve read some Dale Carnegie work, [it’s] amazing stuff and that stuck with me as well. Remember people’s first name and there’s something in it about calling a person by their name that’s just a bonding experience.

Barry: You could go to the best law schools in the country, you could go to Harvard, you could go to Yale, but that doesn’t mean you’re going to be a successful lawyer. If you’re going to work with people, people have to feel comfortable with you. They don’t want some genius who doesn’t know how to relate to them, who they can’t talk to on a one-on-one basis in a very comfortable way. It’s making people feel comfortable in your own presence, and maybe you’ve got to feel comfortable in your own skin and take what you learn in your personal life and bring it into your practice and treat clients like people, not like numbers or dollar signs.

John: Those are great tips, Barry; great new business and business development ideas and tips. How can people get in touch with you?

Barry: I have a website, bgardinerlaw.com. My telephone number is 201-678-1323.

John: That sounds great and great speaking to you today, Barry.

Barry: You too, John, and be well.

John: Yes, likewise. Check out legalmarketingreview.com, as well as National Law Review at natlawreview.comfor more information and interviews on legal marketing. I’m John McDougall and thanks for listening.

ARTICLE BY John McDougall of McDougall Interactive

© Copyright 2016 McDougall Interactive