Lawsuits Against Overtime Rule, Voluntary Wellness Program, ADA: Employment Law This Week – October 3, 2016 [VIDEO]

Employment, DOL, Overtime RuleStates, Businesses File Lawsuits Against Overtime Rule

Our top story: The U.S. Department of Labor (DOL) is facing a fight over its new overtime rule. Effective December 1, the new overtime rule will raise the minimum salary threshold required for white-collar exemptions under the Fair Labor Standards Act to $913 per week, more than doubling the current threshold. But Texas and Nevada are leading 21 states in a lawsuit challenging the DOL’s updated rule, and more than 50 business groups, including the National Retail Federation and the U.S. Chamber of Commerce, have brought a separate challenge. At the same time, the U.S. House of Representatives voted to delay the effective date of the new regulation by six months. These challenges are based on concerns that the new salary threshold would mean a big increase in costs for employers and oversteps the DOL’s authority. Kristopher Reichardt, from Epstein Becker Green, has more.

“This was obviously a coordinated effort to attack the new overtime regulations on multiple fronts. Both suits take slightly different paths to achieve the same objective. . . . The Eastern District of Texas, a conservative jurisdiction, is somewhat known for moving its docket along quickly, which is important to any challenge, since the new rules take effect in just two months, despite some congressional attempts to delay the rule until June 1 of next year. . . . Employers should absolutely continue to prepare for the overtime rule going into effect on December 1. It’s unlikely that these lawsuits would delay or stop these rules. Employers should expect that they will go into effect.”

Court Finds That Voluntary Wellness Program Does Not Violate the ADA

An employer’s voluntary wellness program survives an Equal Employment Opportunity Commission (EEOC) challenge. A lighting manufacturer in Wisconsin requires an anonymous health risk assessment in order to participate in its health plan. The EEOC filed suit against the company, claiming that the program violated restrictions in the Americans with Disabilities Act (ADA). The district court found that the program did not violate the ADA. But perhaps more importantly, the court deferred to the EEOC’s regulation stating that wellness programs are not covered by the ADA’s “safe harbor” and can violate the ADA if the exams are not voluntary.

Truthful Statements Protected Under NLRA, Even if Disparaging

Technically truthful statements are protected under the National Labor Relations Act (NLRA), even if they’re disparaging. A group of DirecTV technicians were fired after appearing on a local news station discussing a new company pay incentive. The incentive was tied to convincing customers to let DirecTV use landlines to track viewing habits. A split D.C. Circuit affirmed a National Labor Relations Board ruling in favor of the employees, finding that the technicians’ comments were based in truth and thus fell under the protection of the NLRA. Therefore, the company must reinstate the technicians.

Tip of the Week

To celebrate Global Diversity Awareness Month, we’re bringing you a diversity-focused “Tip of the Week” each episode in October. With us this week is William A. Keyes, IV, President of the Institute for Responsible Citizenship, with some advice on growing a diverse culture by demanding excellence.

“One of the things I notice is that the brightest young African-American men are often ignored when it comes to great opportunities. Now, you probably find that surprising, but that’s been my observation. . . . So, my argument is that for a top-tier company that is saying that it’s committed to attracting top talent of color, if you’re going to do that, you should really commit to it, state that commitment, and settle for nothing less. Having done that, you really take care of your retention problems, because you bring in people who are really talented. You set a high bar for them, high standards for achievement that you expect for them to meet, they do so. Not only do you retain them, but you create a culture that is attractive to other people who also want to pursue excellence.

ARTICLE BY George Carroll Whipple, III of Epstein Becker & Green, P.C.

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

The New Wild West: Considerations for Commercial Landlords and Tenants in the Era of Open and Concealed Carry of Firearms

concealed carryIn a retail setting like a grocery store, it might be shocking for the average customer to see an individual openly carrying a rifle slung over his shoulder. While the gun-toting patron might be shopping for cantaloupe and exercising his open-carry rights, other customers might panic and call 911 to report a “man with a gun.”

Gun ownership laws continue to evolve nationwide and many states have expanded legal open carry laws in recent years. Currently, only a handful of states prohibit open carry of a firearm in any form. “Open carry” is generally characterized as carrying a gun in public where others can see it in plain sight. Every state, including the District of Columbia, allows the carry of concealed firearms in some regulated form. “Concealed carry” is usually defined as carrying a firearm where the casual observer cannot see it.

While most proprietors expect a person carrying a gun onto the property to have benign intentions, accidents (including accidental discharges) do happen. Furthermore, mass shootings and other incidents involving firearms continue to be an unfortunate part of reality in today’s society. Landlords and tenants of retail properties should be aware that bodily injury or death caused by a weapon wielded by an employee or invitee on the property can leave a business open to lawsuits under various theories of liability. Consequently, it is important for landlords and tenants to be aware of the implications of allowing or prohibiting firearms on their property, and the resulting liability that might come from gaps in insurance coverage, or firearms policy decisions.

What options do commercial landlords and tenants have to address the risk of liability?

  • Check your state, city, and municipal laws regarding concealed and open carry

    • Some state laws allow private businesses to ban guns from their premises, but not every jurisdiction permits private owners to ban guns from their property.

    • Some state laws may address liability. For example, Wisconsin law states that a property owner or occupier is immune from liability arising from the decision to allow firearms on the property. By inference, banning weapons from the premises may give rise to a standard of care where the owner or occupier has a duty to enforce the ban.

  • Evaluate the business occupying the premises and requirements under state law

    • For example, bar owners or places where alcohol is served will likely have an affirmative duty under state law to ban firearms from their premises.

  • Engage in a dialogue with your landlord/tenant and property manager about firearms policy

    • Consider making this a part of the lease, or amending the lease as to who can decide what is allowed on the premises (especially if seeking to ban concealed weapons.)

    • Discuss how any policy will be enforced.

    • Address insurance provisions for tenants regarding exceptions in coverage for firearms incidents.

  • Review any signage requirements under state, city, and municipal law

    • States may require certain dimensions, language and placement for signs notifying patrons of firearms prohibitions on the property.

      • For example, in Texas the sign text must be in English and Spanish.

  • Talk to your insurance carrier

    • Do not assume that you are currently covered for incidents relating to firearms.

      • Firearms are commonly excluded from commercial general liability policies.

      • Discuss the impact of allowing or prohibiting guns on the premises with your insurance carrier.

      • Consider purchasing additional gun liability coverage.

Regardless of personal position, commercial landlords and tenants must be aware of the state and local firearms laws that apply to their property. The intersection between premises liability and firearms statutes continues to develop, and sound risk management calls for review of current policies and insurance coverage to help mitigate any existing gaps in coverage.

ARTICLE BY Chris A. Jenny, William R. West & Brittany Finlayson of von Briesen & Roper, S.C.

©2016 von Briesen & Roper, s.c

Final Rules Released for Federal Contractor Paid Sick Leave and New EEO-1 Report

EEOC EEO-1 reportThursday was a busy day, with the announcement of two long-awaited final rules from the EEOC and the US Department of Labor (“DOL”). The EEOC released the final version of the revised EEO-1 form, and the DOL released the final paid sick leave rule for federal contractors. (And, as we reported yesterday, the US House of Representatives also passed a bill earlier this week that would delay implementation of the Department of Labor’s new overtime rule.)

EEO-1 Pay Data Rule

Following a revised proposal in July, the EEOC has announced the final revised version of the EEO-1 form, which will require employers to report employee pay data beginning with the 2017 report. The 2017 report will be the first to include the new information. The deadline to file the 2017 report is March 31, 2018, giving employers six additional months to prepare their report. The report for 2016 (which is not affected by this new rule) is still due today, September 30, 2016.

Paid Sick Leave

Not to be left out, the DOL also announced the final regulation on paid sick leave for federal contractors. The rule was first announced in President Obama’s September 2015 executive order and proposed rules were announced in February 2016. The final rule will go into effect for new solicitations issued on or after January 1, 2017, and will require employers to provide one hour of paid sick leave for every 30 hours of work, up to a total of 56 hours of paid sick leave per year. The rule will apply to employees of covered federal contractors who work “on” or “in connection with” a covered government contract.

ARTICLE BY Christina A. Pate of Squire Patton Boggs (US) LLP

© Copyright 2016 Squire Patton Boggs (US) LLP

Supreme Court Set to Settle Dispute over Washington Redskins Trademark Registration

Football Washington Redskins TrademarkThere has been another twist in the story of the long battle by Native American interest groups to obtain revocation of the U.S. registration of the infamous Washington Redskins trademark. This is another step in the 20-year journey that began with the initial challenges to the team name.

On Thursday, September 29, 2016, the U.S. Supreme Court granted certiorari to review the Federal Court’s ruling in the case of Lee v Tam. That case involved a rock band called “The Slants”. The leader of the band, Simon Tam, appealed the denial by the U.S. Patent and Trademark Office of the band’s request for trademark registration of the band’s name. The US PTO had denied the band’s application on the grounds that it was offensive to Asian-Americans.

The Federal Circuit Court sided with the band and overturned the US PTO’s ruling. The Court stated that the government “cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks.” This decision is summarized in more detail in our prior blog posts on that ruling.

The ruling by the Federal Circuit Court was particularly important to Native Americans and tribes because it was contrary to the prior ruling by the Fourth Circuit Court in a case challenging the Washington Redskins trademark. In that case, Pro-Football, Inc. v Amanda Blackhorse, et al, the Court had sided with the US PTO on the same issue. The Court found that the Redskins trademark was disparaging and invalidated its federal trademark registration.

That case is still pending. Thus, the ruling by the Supreme Court on the validity of the US PTO ruling in Lee v Tam will have important consequences (indeed, it will most likely be decisive) for the Pro-Football case.

The Supreme Court, as in almost all actions granting certiorari review, did not state any reasons for its action, but it is typical for the Supreme Court to accept cases involving issues of national impact when there has been a split in the lower courts. It is good to see that the high court appreciates the importance of this controversial matter, and we will all have to wait and see what the result will be.

ARTICLE BY Fred Schubkegel of Varnum LLP

© 2016 Varnum LLP

Iron Man Composer Battles Tech Giant Sony and Ghostface Killah

copyright infringementThe US Court of Appeals for the Second Circuit ruled in favor of the composer of the 1960s Iron Man theme song, finding material facts in dispute as to whether the song was commissioned as a work for hire. Jack Urbont v. Sony Music Entertainment, Case No. 15-1778-cv (2d Cir., July 29, 2016) (Hall, J).

In 1966, Jack Urbont wrote the theme songs for various characters in the “Marvel Super Heroes” television show, including Iron Man. In 2000, hip hop artist Dennis Coles (known as Ghostface Killah), Sony and Razor Sharp Records produced and released the album “Supreme Clientele” featuring the Iron Man theme song on two tracks, prompting Urbont’s June 2011 copyright infringement lawsuit against Sony, Razor Sharp Records and Ghostface Killah. At trial, the district court found that the defendants had standing to challenge Urbont’s ownership of the copyright under the “work for hire” doctrine, and granted the defendants’ motion for summary judgment on standing, finding that the Iron Man song was a “work for hire” composed at Marvel’s instance and expense, and that Urbont had not presented evidence of an ownership agreement with Marvel sufficient to overcome the presumption that the work was for hire. Urbont appealed.

Third-Party Standing to Assert Right to Hire Defense

On appeal, Urbont cited the US Court of Appeals for the Ninth Circuit’s 2010 holding in Jules Jordan Video v. 144942 Canada,which rejected third-party standing under the work for hire doctrine. The Second Circuit rejected Urbont’s argument, explaining that in that case both potential owners of the copyright were parties to the lawsuit, neither of which disputed ownership. Here, Marvel was not a party to the suit, and a plaintiff in a copyright infringement suit bears the burden of proving ownership of the copyright when ownership is challenged either by an employer or a third party. Citing Island Software & Computer Serv. v. Microsoft, the Court explained that Sony, a third party to an alleged employer-employee relationship, did have standing to raise the “work for hire” defense to try to refute Urbont’s alleged ownership of the copyright.

The Copyright Act Claim

Under the Copyright Act, an employer is considered an “author” of a copyrightable work in the case of works made for hire. Citing to its 2013 case Marvel Characters v. Kirby, the Second Circuit explained that absent an agreement to the contrary, a work is made for hire when it is “made at the hiring party’s ‘instance and expense,’” i.e., when the employer induces the creation of the work and has the right to direct and supervise the manner in which the work is carried out.

In reversing, the Second Circuit credited the district court’s reliance on evidence supporting the assertion that the song was a work for hire developed at Marvel’s instance, including that Urbont had not previously been familiar with the Marvel superheroes and had created the work from material given to him by Stan Lee, who had the right to accept or reject his song. However, the Court concluded that Urbont’s evidence that he retained all creative control over the project and that Lee was not permitted to modify the work, coupled with his testimony that he approached Lee, not the other way around, weighed against finding that the work was created at Marvel’s instance.

As for the expense factor, Urbont claimed that he created the song with his own tools and resources, including renting a recording studio, supported his assertion that it was he, not Marvel, who bore the risk of the work’s success. Although the $3,000 payment Urbont received weighed in favor of a finding that the work was created at Marvel’s expense, Urbont’s testimony that he also received royalties undermined such a conclusion. The Second Circuit explained that while a hiring party’s payment of a specific sum in exchange for an independent contractor’s work satisfies the “expense” requirement, the payment of royalties weighs against finding a “work for hire” relationship. The Court thus found that a genuine issue of material fact remained as to whether the Iron Man composition was a work for hire created at Marvel’s instance and expense.

Finally, the Second Circuit found that the district court erred in concluding that Urbont failed to produce evidence to rebut the presumption that Marvel owned the work, noting that on summary judgment, the district court was required to accept Urbont’s testimony in support of his position.  The Court reversed and remanded the case back to the district court.

ARTICLE BY Andrea Coronado of McDermott Will & Emery

© 2016 McDermott Will & Emery

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.

Leadstar 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!

Labor Department Announces Procedural Changes to H-2B Visa Program

H2-B VisaIn an effort to further streamline the H-2B application process and make it less burdensome for employers, the Department of Labor has announced procedural changes to reduce the amount of documentation to demonstrate “temporary need.”

To get approval to hire H-2B workers, an employer must establish that the need for H-2B workers is temporary in nature, i.e., “limited to one year or less, but in the case of a one-time event could last up to 3 years.’’ The temporary need must be a one-time occurrence, seasonal, peak load, or intermittent. The DOL H-2B regulations envisage a two-part application process: (1) the agency adjudicates whether the employer has a temporary need through the employer registration process and (2) adjudicates the employer’s actual application to hire H-2B workers. However, as the DOL has not implemented the registration requirements of its regulations, the agency is adjudicating the employer’s temporary need during its review of the actual H-2B labor application.

Employers must complete Form ETA-9142B, Section B, which requires a statement on the nature of the temporary need, duration of employment, number of workers sought, and standard of need. The employer must demonstrate the scope and basis of the temporary need to enable the certifying officer (“CO”) to determine whether the job offer meets the statutory and regulatory standards for temporary need. However, without a registration process, many employers have had to submit additional documentation, such as summarized monthly payroll records, monthly invoices, and executed work contracts with the Form ETA-9142B, to demonstrate temporary need. For recurrent users of the H-2B visa program who receive H-2B labor certification for year-to-year, based on their business cycle, the statement and information on temporary need does not change.

DOL has concluded, “The additional documentation submitted by many employers, which is substantially similar from year-to-year for the same employer or a particular industry, creates an unnecessary burden for employers as well as the CO, who must review all documents submitted with each application.”

The agency announced that, effective September 1, 2016,

To reduce paperwork and streamline the adjudication of temporary need, effectively immediately, an employer need not submit additional documentation at the time of filing the Form ETA-9142B to justify its temporary need. It may satisfy this filing requirement more simply by completing Section B “Temporary Need Information,” Field 9 “Statement of Temporary Need” of the Form ETA-9142B. This written statement should clearly explain the nature of the employer’s business or operations, why the job opportunity and number of workers being requested for certification reflect a temporary need, and how the request for the services or labor to be performed meets one of the four DHS regulatory standards of temporary need chosen under Section B, Field 8 of the Form ETA-9142B. Other documentation or evidence demonstrating temporary need is not required to be filed with the H-2B application. Instead, it must be retained by the employer and provided to the Chicago NPC in the event a Notice of Deficiency (NOD) is issued by the CO. The Form ETA-9142B filing continues to include in Appendix B, a declaration, to be signed under penalty of perjury, to confirm the employer’s temporary need under the H-2B visa classification (Appendix B, Section B.1.).

DOL clarified that its certifying officer would review the employer’s statement of temporary need and recent filing history to determine whether “the nature of the employer’s temporary need on the current application meets the standard for temporary need under the regulations. If the job offer has changed or is unclear, or other employer information about the nature of its need requires further explanation, a NOD requesting an additional explanation or supporting documentation will be issued.”

ARTICLE BY Otieno B. Ombok of Jackson Lewis P.C.

Jackson Lewis P.C. © 2016

Lemon Laws: Potentially a Sour Future for Manufacturers of Autonomous Vehicles

lemon lawsLemon laws have existed for several decades to protect consumers from permanently defected vehicles. Though they may vary state to state, lemon laws generally require manufacturers to replace or reimburse consumers for vehicles that have either undergone three to four unsuccessful repairs within two to four years or were out of use due to repairs for more than 30 days within the shorter of one year or warranty. Additionally, courts have generally required that the defect under repair is the same defect each time. In other words, repairs for a transmission, power steering, brakes, and suspension cannot be grouped together to satisfy the limit.

New technology often brings new challenges to the legal arena, and autonomous vehicles are taking center stage. Autonomous vehicles present a unique scenario regarding the applicability of lemon laws. Unlike hardware, software updates are frequent, and even major software updates can occur several times a year. Current semi-autonomous vehicles, like Tesla’s, have received updates that have significantly affected vehicle functionality. When first released, Tesla vehicles were traditional, albeit all-electric, cars, but after an over-the-air update (OTA), Tesla has given certain vehicle models the ability to utilize an “autopilot” feature. The autopilot feature allows the driver to release control of the vehicle in certain conditions, and the vehicle can, among other things, switch lanes, brake, and change speeds. Consumer demand and a shifting automotive landscape indicate that autonomous vehicle technology will continue to gain traction.

It would not be surprising if the lemon laws of the future hold manufacturers of semi-autonomous and autonomous vehicles to more stringent standards.

Automotive repair has traditionally involved taking a vehicle to a mechanic for issues with “hardware.” Yet, unsurprisingly, the laws have not anticipated the impact software has upon the functionality of such vehicles. Say, for example, a Tesla or other similarly-equipped vehicle with similar semi-autonomous or autonomous features, has a consistent and specific software bug that requires more than four updates to fix in over a two-year period. There is a line-drawing problem, which forces the industry and legislators to grapple with several questions. What constitutes a repair? Is the vehicle subject to replacement or reimbursement from the manufacturer? If the software bugs exist on the entire platform of vehicles, are all of the vehicles subject to recall, or is the public expected to wait for a software fix to come in an OTA update?

Recently, in late June, Tesla seemed to answer such a question. The company settled a claim with an individual over issues he had with his newly purchased Model X SUV. At the beginning of the Model X’s rollout, it was plagued with several issues involving its falcon-winged doors and auto-parking software features. Given his frustration, the individual filed a lemon law claim against Tesla, after which Tesla agreed to repurchase his $160,000 vehicle. Yet, around the same time the company settled the lemon law claims, it rolled out an OTA software update that fixed the issues. So, it might be the case that companies are not expecting consumers to wait for an OTA software update if they are willing to repurchase vehicles, even with a remedy via update in the works.

While the recently-settled Tesla claim involved luxury features, the company has been subject to investigations involving at least two fatalities in connection with its autopilot feature. These circumstances are clearly far more troubling, and they help illustrate the importance of ensuring that autonomous vehicles are performing safely.

Autonomous and semi-autonomous vehicle manufactures are taking control away from drivers, and it is currently unclear what role lemon laws should play in the presence of such circumstances. It may be necessary for legislatures to revisit existing lemon laws to include non-traditional repairs such as OTA software updates to incentivize better care on the part of manufacturers. Ultimately, it would not be surprising if the lemon laws of the future hold manufacturers of semi-autonomous and autonomous vehicles to more stringent standards.

ARTICLE BY Fermin M. Mendez of Varnum LLP
This article was co-written by Paul Albarran, a summer associate at Varnum in 2016. Paul is currently a student at University of Notre Dame Law School.
© 2016 Varnum LLP

Register Today for Next Week’s LMA Legal Marketing Tech Conference West – October 5 & 6, 2016

The Legal Marketing Technology Conference is the largest conference dedicated to technologies that law firm professionals use to identify, attract and support clients.

Legal Marketing Technology Conference LMA tech west

Register today!

Join us for the full day conference on October 6, and the half day pre-conferences on October 5. Our pre-conferences include: Technology Workshops and a Lead Marketers’ Summit.

Agenda highlights:

  • Leading Law Firms through a Competitive Revolution (Keynote: Roland Vogl, CodeEx: The Stanford Center for Legal Informatics)
  • How CLOC is Changing Legal Service Delivery Models
  • How Law Firms Can Use Video to Reach New Clients
  • Data Visualization for Law Firms
  • Bringing your CRM Data, Legal Expertise and Pricing Data Together: The Future of Effective Legal Sales
  • Creating Efficiencies Through Marketing Automation: Principles & Practices
  • Dynamic Content via Deep Personalization – the next stage in email marketing
  • Using Livestreaming Video to Tell Your Story, Build Relationships, and Attract Clients
  • Blockchain ID and The Changing Face of Digital Identity

Spearheading Technological Change and Innovation: The Role of the Legal Marketer

Technology is changing the landscape of the legal worldLaw firm technology client service, and making it possible for law firms to achieve new heights in terms of client service, transparency, and making smart, data driven choices.  Roland Vogl, Executive Director of Stanford Program in Law, Science and Technology (LST), will be the keynote speaker at the LMA Technology Conference in San Francisco in October.

Vogl says, “Currently, technology is coming to the law from all sides.  It’s making the law more efficient for all stakeholders, it’s giving lawyers a better understanding of what’s relevant for a particular case, and they can use new technologies to be more empirical and data-driven about their decision making.  It gives lawyers a way to make internal processes more efficient, and deliver their services to their clients more efficiently.”  There is a lot of potential with technology in the law, however, the road is not sunshine and roses.  Significant challenges must be faced down to reap the rewards of technology in law firms, and Vogl believes legal marketing professionals are uniquely positioned to advocate and strategize for the appropriate technologies for their law firms.

He elaborates, “It’s challenging for law firms to figure out what technologies to embrace. Firms need to determine what they need, what their clients need, and how to use technology to add value in the most efficient way.”  Many attorneys are not interested in solving this problem, as Vogl points out: “Lawyers don’t really want to run businesses, they want to practice law. The best way to package or bundle or make their legal expertise available and accessible to create a data informed work product is not a lawyer’s priority.”

Vogl thinks that Legal Marketers are the ones who can help bring firms up to date technologically. Legal marketers, according to Vogl, are the “internal evangelizers of the firm.”  He says, “The legal marketer works as a liaison between the client and the law firm, and knows what the client expects.  Legal marketers can help identify which technologies law firms should use based on their knowledge of  what clients want.”  Additionally, legal marketers can serve as “tech scouts” in order to keep the lawyers in the firm aware of how the industry is changing.  Vogl says, “Marketers can keep the lawyers in the firm informed about how the practice is changing and how technology is driving that change, and what the law firm can do, adjustments the law firm can make to try and modernize their practice.”  Finally, part of the job of a legal marketer is to differentiate the firm from other firms.  One way firms can define themselves is on how they use technology.  Vogl says, “a way to differentiate to the outside world is whether a firm is a modern firm that uses modern project management tools.”

Making these changes can be an intense process, because in many instances firms are not only adopting new technologies, but also new work procedures.  Vogl says, “The partnership structure makes it very hard to embrace new technologies and new business models and work processes.”

In some ways, creating the environment that’s conducive to change is like nurturing a grassroots movement; it can take time to win hearts and minds in the notoriously conservative law firm environment.  To take on this challenge Vogl suggests a team committed to change.  He says, “It’s important to create a task force, a group of lawyers who see the importance of change–working in conjunction with the marketers–to create a catalyst for change and facilitate conversations within the firm.”  In many ways, the need for change is a constant conversation where early adopters need to campaign and get other members of the firm to see the wisdom of their view.  Vogl says, “you have to bring other lawyers along to get critical mass to push the changes through.”

Another way to pursue change, once the firm leadership is on board, is to use the firm’s structure by practice group as an advantage.  Vogl suggests having individual practice groups adopt new technologies and procedures first to demonstrate their benefits. Firm-wide change is difficult, so starting with one practice group can make the change more palatable. Vogl says, “To create firm-wide change, you need to market the change internally to the firm.  Do events, create materials, educate the rest of the firm about how it works, and how it has worked for early adopters, and celebrate successes.”  A final piece of the puzzle for the marketer comes after the change has been implemented.  Once the firm has made the changes and is delivering what the client wants, Vogl suggests the marketer “project those changes to the outside world to make a compelling story for other, prospective clients.”

Even though the road towards embracing technology is convoluted, and there are many challenges ahead, the potential is exciting.  Vogl suggests firms and marketers “Think big, but start small” as they advocate for change in their law firms.

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

Copyright ©2016 National Law Forum, LLC

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