The National Law Forum

A New Regulatory Paradigm For The SEC Following the Election?

Many are speculating on the future of federal securities regulation as a result of the election of Donald J. Trump and the concomitant Republican control of both houses of Congress. Broc Romanek, for example, asks whether Michael S. Piwowar will become the SEC’s next Chairman. Broc notes that Commissioner Piwowar is an economist, not a lawyer. Since the SEC is concerned with financial regulation, a background in economics should be a strong plus.

Since I’ve already seen signs of holiday decorating in the stores, I’ve drawn up my own short wish list for whomever takes the helm of the SEC.

The SEC should fundamentally change its approach to evaluating regulations. When considering the adoption of any new substantive regulation, the fundamental question must always be “Why is this regulation necessary?” A regulation isn’t necessary simply because someone thinks it is a good idea or constitutes a perceived “best practice”. A regulation is necessary only when it can be demonstrated that there is some market impediment that can only be removed by government intervention. It seems that regulations are too often adopted in reverse. It is tantamount to a doctor, knowing that a drug has proved beneficial in some cases, prescribes it to her patients without first making a diagnosis. If a market impediment exists, then the regulatory effort should be directed at removing the impediment not imposing additional requirements.

The SEC should ask Congress to repeal Section 16(b) liability. When Congress enacted Section 16 more than four score years ago, it was recognized that it was a “crude rule of thumb”. Given the rapidity of modern trading, the arbitrary six month period seems positively quaint. The calculation of profits under the rule can be bizarre. In some cases, persons are liable even when they recognized no overall economic profit. Congress enacted the rule to deter insider trading, but many persons who are guilty of trading on the basis of material non-public information aren’t even subject to the rule. In practice, the rule has become an economic boon to a few lawyers and a technical trap for many. At eighty plus years, Section 16(b) has had a good run, but now is time for it to leave the stage.

The SEC should abandon and repudiate its attempts to co-opt attorneys. Attorneys are their clients’ advisers and advocates. They are not gatekeepers as the SEC has on occasion supposed. The SEC should amend its attorney conduct (Part 205) rules to eliminate the purported ability of lawyers to disclose client confidences to the SEC. See Conflicting Currents: The Obligation to Maintain Inviolate Client Confidences and the New SEC Attorney Conduct Rules, 32 Pep. L. Rev. 89 (2004) and this post. The SEC should also amend its whistleblower rules to eliminate the possibility of attorneys obtaining whistleblower awards. See SEC Condemns Breach Of Client Confidences While Offering Possible Bounties For Breaches.

Allow companies to pick their reporting periods. There has been much debate about whether publicly traded companies suffer from short-termism. Although short-termism may have multiple causes, the SEC’s rigid requirement of quarterly financial information pressures companies to focus on short-term results. Why not let companies pick their own reporting periods? This will allow companies to telegraph to the market whether they are focused on short-term or long-term performance. To those who say that this is a bad idea, I say why not let the market decide? If investors think that semi-annual or annual reporting is inadequate, then companies making those choices will be undervalued and will incur higher costs of capital. Some companies might even elect to report more frequently than every quarter (e.g., bi-monthly). The beauty of this approach is that it is transparent and allows the market to achieve equilibrium at the optimal time for each issuer.

Allow companies to decide whether they will be subject to routine SEC review. It is hard to assess the efficacy of SEC staff review of filings. I’m sure that the SEC believes that staff review improves disclosure and that may well be the case. One way to test that position, is to allow companies to elect whether to have their filings be subject to SEC staff review. These elections would be public. Investors could then decide whether SEC review reduces risk through enhanced disclosure (because companies will do a better job because they know they are subject to review and/or because the staff’s comments result in improved disclosure). The efficacy of review should be reflected in differences in the cost of capital.

Readers will note that repeal of the Dodd-Frank Act is not on my wish list. That is the subject of this blog by Cydney Posner at Cooley LLP. As a final note, this is my personal wish list and it does not necessarily represent the wish list of my firm, partners, or any my firm’s clients.

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

Post-Election Outlook for Higher Education

American higher education confronts a starkly different reality today in the aftermath of an election that yielded both a Republican administration and a Congress with Republican majorities in the House and Senate. While the full impact may take years to assess, a preliminary review suggests some results are likely in the near term, including:

Dramatic changes in Department of Education enforcement actions based on departmental guidance;
Less government support for public institutions as Republicans seek to constrain both state and federal spending;
Less support for the concept of free community college;
Substantial changes in the manner in which federal student aid is administered;
Added scrutiny of institutions with large endowments;
Greater pressure for lower tuition.

In the long term, the federal regulatory environment will stabilize, and institutions can adapt to the new environment in which they will operate. For now, institutions facing enforcement actions based on departmental guidance should consider the likely impact of the election on enforcement actions based on departmental guidance. A new set of policy makers will soon be ensconced at the Department of Education, and their priorities can be expected to be quite different. Those changes in priorities will be quickly reflected in changes in guidance documents, and the revised guidance documents could either be helpful or harmful to institutions currently subject to enforcement actions.

ARTICLE BY James H. Newberry Jr.
© Steptoe & Johnson PLLC. All Rights Reserved.

Arizona Voters Approve Paid Sick Leave for Employees and Minimum Wage Increase

The election results are in, and President-elect Donald Trump’s victory over Secretary Hillary Clinton has the nation abuzz and undoubtedly will for the foreseeable future. However, the Presidential race was not the only notable race or measure on the ballot. Although the dust hasn’t quite settled from last night’s historic vote, there a number of approved ballot measures that employers will need to understand and prepare for immediately.

Specifically, in Arizona, the Minimum Wage and Paid Sick Time Off Initiative, also known as Proposition 206, passed by a 59% to 41% margin. The paid sick time component of the law will go into effect July 1, 2017, while the minimum wage increase begins in just a few months by raising the Arizona minimum wage to $10.00 per hour effective January 1, 2017.

The first component of the new Arizona law inserts Article 8.1 entitled “Earned Paid Sick Time” into Section 5, Title 23, Chapter 2 of the Arizona Revised Statutes. The new paid sick time law applies to covered employers regardless of the number of employees; a covered employer with at least one Arizona employee is obligated to comply with the law. Accrued paid sick time may be used for the employee for his or her own mental or physical illness, injury or health condition; or to care for a family member’s – as the term family member is defined under the statute – mental or physical illness, injury or health condition. Here are the major points of emphasis:

All employees will accrue paid sick time at a minimum rate of one hour for every 30 hours worked for the employer.

Employees of an employer with 15 more employees may cap maximum annual accrual of paid sick time at 40 hours, while smaller employers may cap the maximum annual accrual at 24 hours.

Employees who are exempt under the Fair Labor Standards Act of 1938 (“FLSA”) will be assumed to work 40 hours in each work week for purposes of calculating paid sick time accrual, unless their normal work week is less than 40 hours, in which case earned paid sick time accrues based on actual hours worked.

Unused earned paid sick time must be carried forward to the following year consistent with the accrual limits of the statute. Employers may forego this requirement by following a procedure specified in the statute.

A 90-day probationary period for new employees may apply to the use, but not accrual, of paid sick time.

The new law includes specific employee protections making it unlawful for an employer to retaliate or discriminate against an employee for exercise of his or her use of paid sick time.

Further complicating the new law will be the statutory provision allowing employers to do away with the accrual method in favor of simply providing an employee at the beginning of the year all earned paid sick time that an employee is expected to accrue during the year. (This provision brings Arizona’s law relatively on par with neighboring California’s paid sick time law.) The new Arizona law contains other provisions explaining issues such as an employer’s ability to pay its employees for earned, unused paid sick time rather than carrying it forward to the next year; notice required by the employee for use of paid sick time; and the employer’s ability to request documentation to verify proper use of paid sick time. Notably, the law does not require the payment of accrued but unused paid sick time upon termination of employment.

Employers should note that the provisions of the new paid sick time law are minimum requirements, and nothing in the new law prevents an employer from establishing a more generous policy or continuing one already in place.

The second component of the new Arizona law adjusts Arizona Revised Statute § 23-363 to require a gradual increase of Arizona’s minimum wage beginning this coming January. Arizona’s new minimum wage will be $10.00 per hour effective January 1, 2017. Thereafter, the minimum wage will be raised to $10.50 effective January 1, 2018, $11.00 effective January 1, 2019, and $12.00 per hour effective January 1, 2021. Beginning in 2021, the minimum wage will continue to be adjusted annually based on Arizona’s cost of living. Employers with employees who customarily and regularly receive tips as part of their income may continue to pay employees $3.00 less than the minimum wage in accordance with Arizona’s minimum wage act if the employer can prove the employee is earning at or beyond the minimum wage after tips are counted.

Arizona’s passing of Proposition 206 continued a national trend of answering demands for paid sick time and increasing the minimum wage. Maine and Colorado also agreed to raise the minimum wage, while Washington voters approved of both a minimum wage increase and to provide paid sick leave for employees in similar fashion to Arizona’s measure.

Arizona employers are encouraged to reach out to local employment attorneys for additional guidance or as questions may arise.

ARTICLE BY Daniel B. Pasternak of Squire Patton Boggs (US) LLP

President-Elect Trump’s Impact on Affordable Care Act

For years, the Republican-controlled Congress has vowed to repeal or significantly scale back President Obama’s landmark legislation – the Patient Protection and Affordable Care Act (the “ACA”). During his campaign, President-elect Donald Trump repeatedly promised that he would “immediately repeal and replace” the ACA upon taking office. Assuming Trump follows through on his promise, the ACA’s days are likely to be numbered, at least in its current form. The scope of such repeal remains uncertain, however. Trump has indicated that the ACA cannot simply be repealed – it must be replaced. To date, he has not provided the details of any alternative to the ACA.

Under the current House proposal, the ACA’s individual and employer mandates would be repealed outright. Although the controversial excise tax on high-cost health care (i.e., the so-called “Cadillac Tax”) would also be repealed, the proposal would put a cap on the deduction that employers can take for the cost of healthcare provided to employees. It is also expected that the proposed alternative would give tax credits to individuals without employer-provided health coverage and expand the tax benefits associated with health savings accounts. Certain popular aspects of the ACA, such as the prohibition of preexisting condition exclusions, dependent coverage through age 26 and Medicaid expansion, would remain in place. Democrats are likely to strongly oppose the House proposal. There probably will be little that Democrats will be able to do, however, to stop the repeal/replacement of the ACA facing Trump and a Republican-controlled Congress.

ARTICLE BY Paul M Hamburger of Proskauer Rose LLP

President Donald J. Trump – What Lies Ahead for Privacy, Cybersecurity, e-Communication?

Following a brutal campaign – one laced with Wikileaks’ email dumps, confidential Clinton emails left unprotected, flurries of Twitter and other social media activity – it will be interesting to see how a Trump Administration will address the serious issues of privacy, cybersecurity and electronic communications, including in social media.

Mr. Trump had not been too specific with many of his positions while campaigning, so it is difficult to have a sense of where his administration might focus. But, one place to look is his campaign website where the now President-elect outlined a vision, summarized as follows:

Order an immediate review of all U.S. cyber defenses and vulnerabilities by individuals from the military, law enforcement, and the private sector, the “Cyber Review Team.”
The Cyber Review Team will provide specific recommendations for safeguarding with the best defense technologies tailored to the likely threats.
The Cyber Review Team will establish detailed protocols and mandatory cyber awareness training for all government employees.
Instruct the U.S. Department of Justice to coordinate responses to cyber threats.
Develop the offensive cyber capabilities we need to deter attacks by both state and non-state actors and, if necessary, to respond appropriately.

There is nothing new here as these positions appear generally to continue the work of prior administrations in the area of cybersecurity. Perhaps insight into President-elect Trump’s direction in these areas will be influenced by his campaign experiences.

Should we expect a tightening of cybersecurity requirements through new statutes and regulations?

Mr. Trump has expressed a desire to reduce regulation, not increase it. However, political party hackings and unfavorable email dumps from Wikileaks, coupled with continued data breaches affecting private and public sector entities, may prompt his administration and Congress to do more. Politics aside, cybersecurity clearly is a top national security threat, and it is having a significant impact on private sector risk management strategies and individual security. Some additional regulation may be coming.

An important question for many, especially for organizations that have suffered a multi-state data breach, is whether we will see a federal data breach notification standard, one that would “trump” the current patchwork of state laws. With Republicans in control of the executive and legislative branches, at least for the next two years, and considering the past legislative activity in this area, a federal law on data breach notification that supersedes state law does not seem likely.

Should we expect an expansion of privacy rights or other protections for electronic communication such as email or social media communication?

Again, much has been made of the disclosure of private email during the campaign, and President-elect Trump is famous (or infamous) for his use of social media, particularly his Twitter account. For some time, however, many have expressed concern that federal laws such as the Electronic Communications Privacy Act and the Stored Communications Act are in need of significant updates to address new technologies and usage, while others continue to have questions about the application of the Communications Decency Act. We also have seen an increase in scrutiny over the content of electronic communications by the National Labor Relations Board, and more than twenty states have passed laws concerning the privacy of social media and online personal accounts. Meanwhile, the emergence of Big Data, artificial intelligence, IoT, cognitive computing and other technologies continue to spur significant privacy questions about the collection and use of data.

While there may be a tightening of the rules concerning how certain federal employees handle work emails, based on what we have seen, it does not appear at this point that a Trump Administration will make these issues a priority for the private sector.

We’ll just have to wait and see.

ARTICLE BY Joseph J. Lazzarotti of Jackson Lewis P.C.

Corporate Law on Election Day: Hairsplitting The Polls

In recognition of today’s election, today’s post is about polls, poles and Poles.

The General Corporation Law uses the word “poll” exactly once – in describing the duties of the inspectors of election at meetings of shareholders. Section 707(b) of the Corporations Code provides that the inspector(s) must determine, among other things, “when the polls shall close”. Oddly, the statute makes no mention of determining when the polls open. In contrast, Section 231 of the Delaware General Corporation Law does not require the inspectors to determine either the opening or closing times of the polls. The statute requires only that the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting be announced at the meeting.

But what exactly is a “poll”? The word itself is derived from a word referring to hair. Thus, Ophelia in her madness and grief sings of her late father:

He never will come again.

His beard was as white as snow,

All flaxen was his poll.

He is gone, he is gone,

And we cast away moan.

Hamlet, Act IV, Scene 5. Metonymically, “poll” was used to refer to a person’s head. Eventually, a counting of heads became known as a “poll” and the process of counting became “polling”.

Some readers may recall that the word “poll” also appears in the word “deed poll”. As explained by Sir William Blackstone, this use of “poll” reflects its original tonsorial meaning:

A deed made by one party only is not indented, but polled or shaved quite even; and is therefore called a deed-poll, or a single deed.

Commentaries on the Laws of England, Book II, Ch. 20.

Poll has at least three homophones, each with its own etymologic origins. When referring to a stake in the ground, “pole” can be traced to the Latin word, palus, which has the same meaning. Greek, however, is the source of “pole” when it is used to refer to the top of the world (e.g., the South Pole). The Greek word, πόλος, refers to an axis on which something turns. Finally, the people of Poland are not surprisingly known as “Poles”. In this case, the Polish word Polanie is the source. It translates as the people of the field.

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

UK Employee Classification: Uber Drivers Uber Happy

As you may have seen from the extensive press coverage, the UK Employment Tribunal has delivered its much anticipated judgment in Aslam and Farrar v Uber. The case was about whether Uber drivers are self-employed contractors, or are “workers” with rights to minimum wage, statutory holidays, sick pay and breaks, amongst other workers’ rights.

In Depth

A “worker” is someone who has entered into a contract to personally do work for, or provide services to, a third party. This contract can be implied and does not have to be in writing. If that third party is a customer of the individual’s business undertaking, however, then that individual is self-employed.

Determining the status of the relationship between businesses and those they engage involves the Employment Tribunal looking beyond the terms and conditions in place between the parties to the reality of the relationship. The Tribunal will look at a number of factors to determine the true status of the relationship, but what really matters is the Tribunal’s view of how much control the business exerts over the individual, and whether or not that tips the balance away from the individual truly having the autonomy of being self-employed.

Uber’s Position

Uber said that it did not have the necessary control over drivers because

It is just a “platform” (through the Uber app) that links fare-paying customers to Uber drivers, rather than a transportation business.
Once linked, the Uber driver uses his/her own vehicle to take the customer to the requested destination.
There is no obligation on the drivers to work and drivers are not performance managed or subject to disciplinary procedures, although they do receive a “rating” from customers at the end of the journey.
Uber does not “pay” the drivers. The drivers receive the fare paid by the customer (collected by Uber through the platform), after the deduction of Uber’s service fee. The service fee to Uber is taken as payment for the use of the app.
The drivers pay for the vehicle, the expenses associated with running that vehicle and their own taxi licenses.
It is the end-user (Uber’s customers) who contract with the drivers; they engage the drivers as self-employed contractors.
The drivers accept their self-employed status for tax purposes.
The drivers are permitted to work for other organisations, including direct competitors of Uber; they are not required to work exclusively for Uber.

The Employment Tribunal’s Decision

The Tribunal was not persuaded by Uber’s arguments nor, in relation to some aspects, Uber’s perspective on how its business operated. The Tribunal found that Uber was, indeed, running a transportation business through which the drivers provided skilled labour, from which Uber profited. The key factors were

That the drivers can only use the Uber app on Uber’s terms.
Uber interviews and “recruits” the drivers.
Uber handles customer complaints and often compensates customers following these complaints. Uber’s findings in respect of customer complaints are not always shared with the driver.
Uber accepts liability for losses, e.g., refunds to passengers, which would usually fall to a driver who was genuinely self-employed.
Uber does pay the drivers.
Uber’s ratings system (whereby the customer would rate the driver following the completion of a journey), is essentially a performance management procedure that could result in the driver being disconnected from the app.
Fares are fixed by Uber.
The language used by Uber in its PR communications is inconsistent with their argument that the drivers are self-employed.

What’s Next?

Uber has confirmed to customers and the press that it will be appealing the decision. In order to get an appeal off the ground, however, Uber will need to identify an error of law in the Tribunal’s judgment, or show that it had reached a decision which no reasonable tribunal could have reached on the facts.

How Does This Affect My Business

The analysis of an individual’s employment status will depend on the facts of each individual case. The Uber judgment therefore does not necessarily mean that all companies within the gig economy, or who engage self-employed contractors, must now give these individuals workers’ rights.

It does, however, serve as a useful reminder to review your workforce, consultancy/contractor agreements and other documents/communications and processes. Keep in mind, however, that were there to be a dispute over the status of the working relationship, a tribunal or HMRC would look beyond the contractual documents to the true relationship of the parties.

ARTICLE BY Katie L. Clark & Paul McGrath of McDermott Will & Emery

Non-Competes Call to Action, Transgender Bathrooms, Texas Court Blocks Blacklisting Rule: Employment Law This Week November 7, 2016 [VIDEO]

White House Issues Call to Action on Non-Competes

Our top story: The White House issues a call to action. The administration is calling on states to combat what it describes as the “gross overuse of non-compete clauses today.” The statement recommends legislation banning non-competes for certain categories of workers and prohibiting courts from narrowing overly broad agreements. New York Attorney General Eric Schneiderman answered the call immediately, announcing that he would introduce relevant legislation in 2017.

“President Obama’s call to action encouraged states to take action to do three things. One, to ban non-competes for certain types of employees, such as low-wage earners; two, to increase transparency in the way that employers communicated with employees about non-competes; and three, to incentivize employers to write non-competes that are enforceable. … It used to be that non-competes were subject to scrutiny in the courtroom, but now we’re seeing that scrutiny also in the media and in the political arena. … With scrutiny of non-competes occurring in additional fora, it’s important for employers to review their non-competes, both to make sure that they are enforceable and to make sure that they’re administered to appropriate levels of employees.”

High Court Will Hear Transgender Bathroom Case

The Supreme Court will examine the definition of “sex discrimination.” The High Court has agreed to hear a case involving a transgender student and his use of the boys’ bathroom at school. The legal issue at the center of the case is the interpretation of regulations implementing Title IX, which bans sex discrimination in schools. The Department of Education has put out guidance interpreting “sex discrimination” to include claims based on gender identity, and the Fourth Circuit deferred to that interpretation in this case. This case could have implications for other laws that prohibit sex discrimination, including Title VII of the Civil Rights Act.

Texas Court Blocks Fair Pay and Safe Workplaces Regulations

Federal contractors get a reprieve from the “blacklisting” rule. A Texas federal court issued a temporary nationwide injunction on portions of the Fair Pay and Safe Workplaces rule. The executive order includes controversial disclosure requirements for government contractors and restrictions on arbitration. The district court ruled that the prohibition on certain arbitration agreements conflicted with the Federal Arbitration Act, and the reporting requirements could allow contractors to be disqualified from obtaining contracts without due process.

New York City Council Passes First Freelancer Wage Protection Law

The New York City Council has passed the nation’s first legislation bolstering protections for freelancers. The “Freelance Isn’t Free” Act, which passed unanimously, implements penalties for employers who do not pay freelance workers within 30 days of services rendered. In addition, the Act requires a written contract for freelance work worth $800 or more. The contract must include an itemized accounting of the work to be performed and the rate of pay. Mayor Bill de Blasio is expected to sign the bill.

Tip of the Week

Brian Chevlin, Senior Vice President and General Counsel for Pernod Ricard USA, is here with some advice on how to build a committed legal team through a culture of appreciation.

ARTICLE BY

George Carroll Whipple, III

Epstein Becker & Green, P.C.

Impact of Presidential Election on Key United States Supreme Court Cases

America’s next President will potentially have the authority to nominate more than one United States Supreme Court Justice before the end of his or her presidency. Notably, during the final debate, this subject of Supreme Court appointments by the President Elect was one of the six topics for discussion and was identified as one of the top issues among voters. Employers should take note because the Supreme Court may hear several cases in the upcoming term that could have significant implications for employers across the country with respect to (1) the enforceability of class action waivers, (2) pre-suit obligations of the Equal Employment Opportunity Commission (“EEOC”) in discrimination complaints, and (3) the issue of transgender rights.

(1) The Enforceability of Class Action Waivers in Arbitration Agreements

Following the Court’s ruling in 2011 in ATT Mobility LLC v. Concepcion¹, where the Court in a 5-4 decision held that the Federal Arbitration Act preempted California from refusing to enforce class action waivers in consumer contracts, many employers have utilized waivers in arbitration agreements as a method of avoiding, or reducing, the risks of class or collective actions by employees alleging employment-related claims such as wage-and-hour violations and unlawful discrimination.

However, the safe haven apparently created under Concepcion has been under attack and led to inconsistent federal circuit court rulings applying its holding. Now, the Supreme Court has the opportunity to reconcile a split in the federal circuits regarding the enforceability of class action waivers in arbitration agreements. Because former Justice Scalia authored the Concepcion opinion, his replacement could impact its holding.

(2) EEOC Obligations with Respect to Discrimination Complaints

Recent discrimination cases have challenged aspects of the EEOC’s pre-suit obligations to investigate and attempt to conciliate discrimination charges before filing a lawsuit. Many judicial opinions have cited MachMining LLC v. EEOC², a case in which the Supreme Court held that the EEOC’s statutory obligation to attempt conciliation with an employer as a prerequisite to a Title VII suit is subject to judicial review—although the scope of that review is narrow—and also established that form letters announcing the initiation and conclusion of the conciliation process alone do not satisfy the statutory obligation to attempt to facilitate conciliation with the employer.

In October 2016, the Supreme Court denied certification in EEOC v. Sterling Jewelers Inc.³, a matter of first impression in which the Second Circuit cited MachMining LLC v. EEOC in a decision permitting the EEOC to pursue a nationwide sex discrimination lawsuit on behalf of female retail store employees. Sterling Jewelers Inc.⁴ established that while a court may review whether the EEOC conducted an investigation into a formal charge of discrimination as a prerequisite for bringing an enforcement action under Title VII, it may not review the sufficiency of the agency’s investigation.

The case to watch is The Geo Grp. v. EEOC⁵, which is being docketed for review by the Supreme Court. The Ninth Circuit cited MachMining⁶ in a decision that allows the EEOC to litigate 19 sex discrimination claims despite the fact that the agency did not identify the alleged victims until after filing the lawsuit on the basis that MachMining⁷ permits the identification of a class of people as an alternative to identifying the individual alleged victims.

While many believe that the 2015 MachMining opinion could have potentially reversed the Ninth Circuit’s holding in Geo Grp., the Court (with a newly appointed Justice) could possibly walk back the limited judicial review permitted by the previous Court or establish a broader scope of judicial discretion in determining whether or not an attempt of conciliation with an employer took place in order to satisfy the EEOC’s statutory requirement under Title VII.

(3) Transgender Rights

In August, the Supreme Court stayed the Fourth Circuit Court of Appeals ruling in Gloucester Cnty. Sch. Bd. v G.G.⁸, keeping Grimm, an individual who was born a female, but identifies as a male, from using the boys’ restroom at school, while it decided whether it would take the case. On Friday, October 28, the Supreme Court announced it would in fact take up the issue. The Court’s holding on whether the U.S. Department of Education’s interpretation of the word “sex” is appropriate, as it relates to Title IX discrimination cases, could have wide ranging impact on litigation involving H.B. 2 from North Carolina and employers as they address transgender issues in the workplace.

ARTICLE BY Marc D. Katz, Isabel Crosby & Jason R. Regas of Andrews Kurth Kenyon

_{1. ATT Mobility LLC v. Concepcion, 563 U.S. 333 (2011).}

_{2. MachMining LLC v. EEOC, 135 S. Ct. 1645, 126 FEP Cases 1521 (2015).}

_{3. Sterling Jewelers Inc. v. E.E.O.C., No. 15-1329; EEOC v. Sterling Jewelers Inc., 801 F.3d 96 (2nd Cir. 2016).}

_{4. Id.}

_{5. The Geo Grp. v. EEOC, No. 16-302; Arizona ex rel. Horne v. Geo Group, Inc., 816 F.3d 1189 (9th Cir. 2016).}

_{6. MachMining LLC v. EEOC, supra.}

_{7. Id. at 1648.}

_{8. 136 S. Ct. 2442 (2016) (per curiam).}

Power of Communication in Legal Marketing – The Medium Does Change the Message Part 1

Today’s business environment offers more methods of communication than ever before. However, more choices does not equal clarity or effectiveness, and in some ways, with the many mediums available communicating effectively requires a thoughtful understanding of the medium being used and how to best stay on message within that medium. Lee Broekman of Organic Communication and Judith Gordon of LeaderESQ presented at the LMA Tech¹ conference in San Francisco, focusing on empowering communication by understanding the medium at play.

Communication can be a major challenge for attorneys, yet it is a critical part of a lawyer’s job. Gordon says,

To put it simply, lawyers ‘speak for’ their clients. Whether in transactional matters or litigation, lawyers are conduits of their clients’ intentions. To fully and accurately represent another—the essence of a lawyer’s work—understanding the fundamentals of communication is essential. Key communication skills—such as the ability to listen, understand, and then accurately present a client’s position to third parties in negotiations or litigation—are essential to a successful practice, and the smooth running of our legal system.

Broekman agrees, saying: “The lawyers I coach are highly skilled at managing cases and deals, but behind those cases and deals are clients and colleagues. Managing people and relationships is an entirely different skill set—lawyers who want to be successful have to put care into connecting with people who have different perspectives and preferences.”

The four main channels of communication are Person, Print, Phone and Panel. Each channel has strengths and weaknesses in particular situations, and understanding the nature of the message can help determine which channel is the most appropriate.

The first channel is Person—and that is what it sounds like—the fewer and fewer face-to-face meetings, when everyone puts away their phones and looks each other in the eye across a desk or table. This is the best medium for sensitive issues; even though some of the conversations can be difficult. Broekman says, “Whenever the issue is sensitive, when a possible conflict is anticipated or a misunderstanding is to be expected —we should have a face-to-face or side-by-side conversation.” Gordon points out that sensitive matters are best handled in person, because of the way humans process information: “Much of the information we glean from others is visual and auditory—facial expression, tone of voice and body language. When we remove that layer of information, our brains ‘fill in the blanks’ by superimposing our own judgment, which can be devastating.” When the matter is sensitive or misunderstandings are anticipated, walking down the hall or getting on a plane is worth the effort–and when that’s not possible, a videoconference is a reasonable alternative to try and prevent misunderstandings.

Many times, these face to face meetings can be challenging-and the desire to avoid the awkward, sometimes painful conversation can be tempting. With so many alternative ways of delivering bad news, it’s important to remember that it can help avoid confusion and drawn out conflict by having tough conversations across a desk without a screen as a buffer. Broekman points out, “Our instinct is to hide behind the screens of our computers or smartphones, but typing or texting instead of talking could lead to bigger problems and drawn out conflict.”

The second channel, print, is any medium where the written word is paramount—emails, texts, letters, etc. This is a channel where misunderstandings tend to cluster around tone—as you are “speaking” to readers, not listeners—who cannot see your face or hear your voice. With this in mind, Gordon says, “direct communication is best. Write each sentence so that it is able to stand alone. A good rule of thumb is to stick to one message per sentence. The ‘one message per sentence’ rule heightens clarity and lessens ambiguity. Gordon adds, “It’s also a good idea to avoid sarcasm or innuendo in print, and allow the power of the written word to speak for itself without relying on inference.”

To be clear in print, sometimes it’s helpful to overcompensate with your words to ensure your audience picks up what you are putting down. Broekman says, “Sometimes it’s helpful to ‘massage your message’ with gentle words such as ‘will you please?’ when making a request, ‘yes, and’ when responding, and ‘yet’ when wanting to suggest that something is not quite done.” Using the tools at your disposal to convey tone is an important step to take. While smiley face emojis are appropriate when planning post-work drinks, they are not always professional and appropriate. Broekman also suggests, “writing feeling behind our statements in parenthesis may be effective.” For anyone who has misinterpreted all caps as anger, this is a tip that might resonate.

In Part Two, we will examine the Phone and Panel mediums of communication and how to negotiate those streams.

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

_{¹ Broekman and Gordon spoke at the Legal Marketing Technology Conference on October 6th in San Francisco. Their session was entitled Webinars, Podcasts and Mobile (Oh My!) The Medium Does Change the Message. The LMA Tech conference is the largest conference dedicated to technologies that law firms use to identify, attract and support clients.}

The National Law Forum

A New Regulatory Paradigm For The SEC Following the Election?

Like this:

Post-Election Outlook for Higher Education

Like this:

Arizona Voters Approve Paid Sick Leave for Employees and Minimum Wage Increase

Like this:

President-Elect Trump’s Impact on Affordable Care Act

Like this:

President Donald J. Trump – What Lies Ahead for Privacy, Cybersecurity, e-Communication?

Like this:

Corporate Law on Election Day: Hairsplitting The Polls

Like this: