Auto Industry Record Breaking Sales Close Out 2015

The automotive industry ended 2015 with a bang, breaking the record with nearly 17.5 million sales of cars and light trucks. This tops the previous record of 17.35 million cars in 2000. In all, American consumers spent $570 billion on new cars. This is a significant comeback from the low of 10.4 million cars consumers purchased in 2009.

business people connecting

Trucks, SUVs, and crossover vehicles had the strongest overall sales in 2015, with an increase in 13% over 2014. The Ford F-150 remained the top selling vehicle in the US. The industry also saw a significant increase in leasing, totaling 29% of new retail sales. Merely 10 years ago, leases accounted for only 16.6% of new retail sales.

As we previously noted on the blog, low fuel prices and easier access to credit, among other factors, drove sales over the past year. Gas prices should remain low in the near term, and although interest rates are slowly increasing, analysts expect a continued upward trend with 2016 predicted to be another record year in the auto industry.

© 2015 Foley & Lardner LLP

Coaching Tips for Partners and CMOs

“I tried coaching that associate but it didn’t work.”

“Well,” I asked, “What did you say to him?”
“I told him to stop annoying the clients, but he keeps doing it.”

Unfortunately, both supervising lawyers and leading a law firm are far more complicated than simply telling people what to do. When facing an environment of change and uncertainty, or even when helping a single associate overcome some professional hurdle, coaching can be an invaluable strategy. With its increasing popularity, the word “coaching” is often used colloquially as a proxy for giving advice, providing direction, consulting, and other activities. Whereas, professional coaching organizations define it as helping people explore and discover answers for themselves. Have you ever repeated the same wisdom or advice to someone a dozen times but they just didn’t get it?  It is frustrating, isn’t it?  You have something valuable to contribute, but it just isn’t getting through.  Most people give up at this stage, thinking that they have done everything they can, and dismissing the person as “hopeless” or “impossible.” Obviously, one’s ability to manage such situations improves with training and experience; but even a basic understanding of coaching principles can make a huge difference in your effectiveness in circumstances where your usual approaches simply are not working.  Here are some tips to consider when coaching associates and partners.

The Relationship is the Foundation

Your ability to be effective with someone is directly proportional to the strength of your relationship.  If you don’t like them, don’t try to coach them. You can be the most brilliant and knowledgeable person in the world, but if you don’t like the person or if you suspect that he or she don’t like or respect you, game over. That lawyer won’t listen to anything you have to say. You might think, “I’m really good at hiding my opinions,” but people are far more perceptive than we imagine.  Unless you have an Academy Award for acting, don’t even try.  What you can do, however, and what does make a difference, is to make a concerted effort to improve your relationship. Go to lunch. Find shared interests, talk about family, look for common values and beliefs, etc. Once you have established a rapport, you are in a position to initiate much more meaningful discussions.

What if the person is too busy and doesn’t seem interested in taking time for lunch? Building a relationship in this situation is very similar to the challenge law firm lawyers face when approaching corporate counsel. No one has time for trivial conversation. People are busy and may not be inclined to talk about their weekends. Nonetheless, they will appreciate anything you can do to actually help them. In such circumstances, making a key introduction or sending them an article related to their practice areas, for example, are substantive ways to generate a more positive relationship with someone, even if there have been tensions or disagreements in the past.  In turn, this paves the way for more in-depth conversations and the opportunity to offer coaching or guidance.

See Their Greatness

In the world of coaching, we start with the premise that, as human beings, we all have wonderful qualities that are part of the fabric of who we are, such as integrity, generosity, caring, creativity, humor, commitment, joy, among many others. These essential characteristics are different from person to person.  On the other hand, human beings also have a less delightful side, the part that comes out when we are stressed or just trying to survive in the world.  In your role as a coach, your job is to focus on the positive and help people to act in alignment with that side of themselves.  For example, a lawyer may be angry, frustrated or recalcitrant; but those traits may be manifesting in reaction to a deep level of commitment. Lawyers who genuinely care about doing a great job for clients or creating a supportive and collegial work environment may become angry or upset when their goals and commitments are stymied. To coach such a person effectively, you should appreciate and acknowledge that he or she is, fundamentally, a caring, committed person (rather than focusing on the fact that, in the moment, he or she may be acting like a jerk).

Ask, Don’t Tell

As smart, capable human beings, we tend to look at other people’s problems and see simple solutions. Yet, think back for a minute to a time when you were stuck, really stuck. This could be when you were trying to decide whether to leave a job or a relationship, or perhaps when trying to achieve a seemingly impossible goal. Lots of people gave you advice, and it probably didn’t make much difference.  Still, maybe you got lucky, and there was someone in your life, a friend, a relative, a coach, who asked you questions and helped you to figure out what you needed to move forward.

This principle of asking rather than telling applies at all stages of coaching. Just because you see a problem doesn’t mean the person wants to talk about it. If you saw an obese person, you wouldn’t automatically assume that he or she were ready to dive in and discuss a weight loss program. It’s the same with coaching. Everyone has issues that they are working on, or that they know to be obstacles, but which they don’t necessarily wish to discuss. To coach effectively, you need to work with whatever the person wants to talk about or whatever seems most important to them. As the conversation develops, you can look for opportunities to bring up what you see as their opportunity for growth.  For example, an associate may mention that he is frustrated that he can never seem to leave work early enough to see his children before they go to bed. Maybe you think that he should be more organized or delegate more. Clearly, there is a relationship between these respective agendas. Once you start looking for it, there are usually ways to connect the concerns of the person you are coaching with whatever issue you would like them to address.

Motivation is Key

The lawyers you work with are smart and capable; or, if they are not, you will want to rethink your hiring and firing practices. Therefore, if your attorneys are not making progress with something critically important for their careers, like business development or improving an important skill, then there may be a lack of true motivation. This is tricky because even the lawyers themselves may not be clear about their own desires. I had a client recently who was of counsel and hired me because she wanted to become a partner. She wanted to make more money, have more independence, and gain more status.  We came up with a great business development plan. It was aligned with her skills, talents and interests; and it inspired her. Nevertheless, it soon became clear that she wasn’t making much progress. When we examined the situation more closely it became evident that she didn’t really want to become a partner.  Although, theoretically she liked the idea, when she really thought about the partners’ lives, from her perspective, they did not look appealing. The partners worked even longer hours, spent all their social time with clients, and had even “less of a life” than my client. Once her true feelings became clear, she realized she would prefer to work elsewhere and is now employed in the federal government. Another client with similar concerns about becoming a partner decided to stay at her firm, but with the understanding that she is creating a version of partnership that works for her, rather than emulating the life and work choices exemplified by her colleagues. Of course, it is unlikely that your lawyers will confess to you if they have mixed feeling about partnership or practicing law. However, it is useful for you to recognize, as someone trying to encourage, mentor or coach them, that one reason for resistance or lack of progress could be that they are ambivalent about their present career trajectory.

Accept Emotions

Lawyers often think that work should be separate from emotions, and that we should be objective and professional at all times. Yet, in reality, people get frustrated and scream at colleagues, burst into tears, wake up in the middle of the night worried about cases, careers, status, and work relationships.  To dismiss the emotional component is like ignoring the wind’s impact on a sailboat. Thus, in order to coach effectively, one must always consider the emotions under surface of any presenting issue.

I spoke at a legal marketing conference recently and asked participants to brainstorm about how to coach lawyers who are having trouble with follow-up. One group said they would delegate the organizational aspect to the lawyer’s assistant. When I asked what they would do if the lawyer still didn’t take the follow-up actions, one person responded, “This is why I think all firms should have an in-house psychologist.” While many, no-doubt, would echo her frustration, there are more practical alternatives. If a lawyer is behaving in a way that seems irrational, it generally is not because he or she is crazy or stupid. Rather, that lawyer is just like every other human being on the planet in that fear, anger or upset may occasionally divert him or her from making the best choices.

Consequently, when people are acting irrationally, it is very likely that fear or other emotions under the surface may be getting in the way.  While some individuals may need serious psychological interventions, for most lawyers, simply having a chance to talk about and acknowledge fear or upset makes a huge difference in their ability to move past it. If you are serious about coaching, it is important to accept individuals’ emotions just as they are. Telling someone that his or her feelings are irrational or illogical will be counterproductive. Emotions are not rational. But, on the plus side, they are also temporary. If given attention in a meaningful and appropriate way, people can move from fear to purposeful action much faster than you might think possible.

Trying to coach your associates and partners may seem daunting or frustrating, at times.  Yet, the effort is well worth it. When your best associate stops eyeing the door and reengages with the firm; two key partners resolve a conflict that has been creating tension in the firm for months; or that one attorney finally gets proactive about developing clients it will become clear just how useful and effective this approach can be.

Article By Anna H. Rappaport of Excelleration, LLC

© 2008-2016 Anna Rappaport. All Rights Reserved

Exercise Care When Terminating Employee Who Holds H-1B Status

If an employer doesn’t follow certain requirements when it terminates an employee holding an H-1B visa, then the employer could be surprised to learn that employee wasn’t properly terminated, and the obligation to pay that employee wages and benefits continues despite the attempted termination. As background, Department of Labor (DOL) regulations at 20 CFR §655.731 provide guidance regarding wage obligations relating to H-1B (“specialty occupation”) employees.  Employers are required to pay to H-1B visa holders the higher of the prevailing wage for the occupation, or the actual wage for the position, as confirmed in the Labor Condition Application (LCA) that the employer must file during the H-1B petition process.

This wage obligation even applies to H-1B nonimmigrants who have been “benched” or are no longer actively working for the employer.  When an employer terminates an H-1B employee prior to the expiration date of the employee’s H-1B status, DOL considers this action to be a form of benching the employee UNLESS/UNTIL the employer has taken the following steps to effectuate a “bona fide” termination:

STEP 1 – The employer must notify the USCIS that the relationship has been terminated (USCIS will then cancel the petition); and

STEP 2 – The employer must provide the employee with offer of payment for return transportation abroad [for these purposes, the term “abroad” is defined in 8 CFR 214.2(h)(4)(iii)(E) as the foreign national’s last place of foreign residence].

Although not required by regulation, it is also advisable for the employer to withdraw the underlying Labor Condition Application (LCA), as long as the terminated employee is the only employee who has been covered by that particular LCA.

Failure to take Steps 1 and 2 above may result in DOL’s requiring the employer to pay back wages commencing on the date of attempted dismissal and continuing until the date upon which DOL determines that the termination has been perfected.

Note that these regulations do not apply to an H-1B employee who has voluntarily terminated his/her employment prior to the H-1B expiration date. Termination by the employer launches these stringent requirements.  In reality, many terminated H-1B employees are able fairly quickly to secure new employment and to transfer their H-1B sponsorship to the new employer; however, these two simple steps should shield the original H-1B sponsor from potential back-pay obligations.Article By

ARTICLE by Nancy M. Lawrence of Odin, Feldman & Pittleman, P.C.

2016 H-1B Filing Season Is Here

Now is the time for employers to assess their FY2017 H-1B needs and to start preparing their petitions for submission on April 1.

On April 1, 2016, US Citizenship and Immigration Services (USCIS) will begin accepting cap-subject H-1B petitions for fiscal year 2017 with an employment start date of October 1, 2016. We recommend that employers send all H-1B petitions subject to the FY2017 cap to USCIS on March 31 so that USCIS receives them on April 1. USCIS will reject any cap-subject H-1B petition that it receives before April 1.

USCIS has a quota of 65,000 cap-subject H-1B visas each fiscal year. A separate allotment of 20,000 H-1B visas is available to foreign nationals who hold a master’s degree or other advanced degree from a US institution of higher education. As indicated in the table below, demand for H-1B visas has fluctuated in past years. A few years ago, it took months to reach the cap; recently, in 2014 and 2015, the cap was reached within the first few days of filing. Although it is not possible to predict with complete accuracy what the demand for H-1B visas will be this year, an improving economy and an increasing demand for qualified workers, especially in the information technology industry, strongly suggest that demand will be high and that the cap will be reached again very early this year, possibly within a week of April 1. Employers should therefore submit their cap-subject H-1B petitions as early as possible.

Year    

Date H-1B Cap Reached

2009 (FY2010)

December 21, 2009

2010 (FY2011)

January 26, 2011

2011 (FY2012)

November 22, 2011

2012 (FY2013)

June 11, 2012

2013 (FY2014)

April 5, 2013

2014 (FY2015)

April 7, 2014

2015 (FY2016)

April 7, 2015

By law, 6,800 of the 65,000 H-1B visas are allocated as H-1B1 visas to nationals of Chile and Singapore.

Only petitions filed on behalf of foreign nationals who have not previously been counted against the H-1B cap in the last six years are subject to this year’s H-1B cap. Accordingly, most H-1B change of employer petitions are not subject to the cap. H-1B petitions for foreign nationals employed by institutions of higher education, nonprofit research organizations, or for employment at governmental research organizations are not subject to the cap.

How This Affects You

Employers should review the immigration status of their current and potential foreign national employees and identify any individuals for whom H-1B status would be beneficial. These individuals include the following:

  • Recent graduates employed in F-1 status and candidates abroad who are subject to the annual H-1B cap

  • Candidates in some other nonimmigrant status (e.g., L-1B) who are approaching the maximum limits of their status and would benefit from a change of status to H-1B

  • Candidates in another nonimmigrant status who work for a different employer and would require an H-1B visa to change jobs

  • Candidates in TN, E, or H-1B1 status for whom an employer is considering pursuing permanent residence

Note that if the limit on H-1B visa numbers is reached on any one of the first five business days of the cap season, all petitions that USCIS receives between Friday, April 1 and close of business on Thursday, April 7 will still be accepted, but their selection for adjudication will be subject to USCIS conducting a lottery among them. USCIS has held a lottery for the last three years, and it is likely that it will do so again this year.

Copyright © 2015 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Microbead Mortality re: Cosmetics and Personal Care Products

Federal government bans microbeads.

  • Microbeads are tiny beads of plastic added to cosmetics and personal care products to serve an abrasive or exfoliating function. For years, environmental groups have expressed concerns that microbeads pollute waterways and pose harm to aquatic life because their small size allows them to pass through wastewater treatment systems in significant quantities.  In response to these concerns, several states enacted microbead bans, and many other states have been considering similar legislation.

  • In late December 2015, Congress passed the Microbead-Free Waters Act of 2015, which amends the Federal Food, Drug, and Cosmetic Act to ban the manufacturing and distribution of rinse-off cosmetics (including toothpastes) that contain intentionally added plastic microbeads.  The manufacturing ban will take effect on July 1, 2017, while the ban on distribution will take effect on July 1, 2018.  The effective dates are delayed by an additional year for microbeads in rinse-off cosmetics that are also nonprescription drugs.

  • The federal ban is supported by environmental groups and the plastics industry alike, and it puts an end to years of debate and the increasing development of a patchwork of state and local restrictions in this area.

© 2015 Keller and Heckman LLP

Serious Games Require Serious Attention to Marketing Statements

BrainLumos Labs recently paid $2 million to the Federal Trade Commission to settle claims that it deceived consumers about its brain training application’s ability to increase cognitive function. According to the FTC,  the company alleged that its app, called Lumosity, provided many beneficial effects including the ability to improve users’ school and work performance, delay the onset of age-related cognitive disorders and help restore brain function lost as a result of brain trauma and other health conditions.

According to the FTC, the company did not have sufficient scientific data to back up the claims made in its ads. The FTC also claimed that the company did not disclose that it solicited consumer testimonials about the effectiveness of the product via a contest that offered users the chance to win iPads and other prizes.

In a prepared statement, the company stood by the scientific basis for its brain-training methods and asserted that the settlement was a result of its marketing language that has since been discontinued.

The use of games for “good” causes, such as education, health and training is known as “serious games.” The potential for these types of games to help people in a variety of ways is immense. The number of these games is growing rapidly.

Makers of these games must be mindful not to overreach in the claims of what these games can do. The FTC has been active in policing unsupported claims by app makers.

Additionally, the FTC has been enforcing its endorsement guidelines which require disclosure when a company provides some compensation or financial incentive for endorsements or testimonials. Here, the fact that users had a chance to win valuable prizes in exchange for providing testimonials apparently was not disclosed.

Serious games and other apps have tremendous opportunity to provide beneficial results. However, it is important for makers of these games and apps to understand and comply with the various legal issues that are relevant to these offerings. It is advisable to seek legal review of all serious games and apps and their marketing plan before they are released to identify potential legal issues.

Happy New Year: Looking Back and Looking Ahead at EEOC’s Strategic Plan

EEOCSealIn December 2012, the EEOC adopted its Strategic Enforcement Plan for Fiscal Years 2013-2016 (the “SEP”), in which it highlighted the agency’s enforcement priorities for the coming three years.  Now two years into the plan, the EEOC continues to refine its strategic enforcement efforts and employers are responding to them.

The EEOC’s SEP identified six priorities:

  1. Eliminating Barriers in Recruitment and Hiring.

  2. Protecting Immigrant, Migrant and Other Vulnerable Workers.

  3. Addressing Emerging and Developing Issues.

  4. Enforcing Equal Pay Laws.

  5. Preserving Access to the Legal System.

  6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach.

In 2015, the EEOC continued its effort to pursue these stated priorities through systemic investigations and litigation arising from those investigations, despite a mixed record of success in the courts.  For example:

  • Background Check Litigation: Despite some notable setbacks, such as the Fourth Circuit’s affirmance of summary judgment against the EEOC and scathing rebuke of its litigation conduct in EEOC v. Freeman, the EEOC has continued to pursue cases involving background checks in furtherance of its stated priority of eliminating barriers in hiring.

  • Pregnancy and Disability Discrimination: Following the United States Supreme Court’s decision in Young v. UPS, the EEOC reissued its pregnancy discrimination guidance, noting that the “Court explained that employer policies that are not intended to discriminate on the basis of pregnancy may still violate the Pregnancy Discrimination Act if the policy imposes significant burdens on pregnant employees without a sufficiently strong justification.”  The EEOC also noted that the ADAAA does not require an impairment to “last a particular length of time to be considered substantially limiting,” thereby potentially including pregnancy.  The EEOC filed numerous ADA lawsuits in 2015, particularly focusing on reasonable accommodation issues.

  • Equal Pay: Although the EEOC continues to assert its pronounced attention to alleged violations of the Equal Pay Act, it has not expended litigation resources commensurate with its statements.  The EEOC may well monitor developments in equal pay protection under state law (e.g., California’s Equal Pay Act, effective January 1, 2016) to assess the value of its own litigation efforts.

  • Sexual Orientation or Gender Identity Discrimination: In an effort to address “emerging and developing issues,” the EEOC continues to include sexual orientation or gender identity discrimination in its definition of discrimination based on sex.  In its August 2015 fact sheet, the EEOC identified numerous private sector lawsuits initiated by the EEOC or in which the EEOC filed amicus briefs, addressing LGBT-discrimination-related issues.

The EEOC appears poised in 2016 to continue pursuing the SEP aggressively through the use of systemic investigations.  Employers can expect the EEOC to seek to expand investigations of individual charges, particularly in substantive areas aligning with the SEP.  Although the United States Supreme Court ruled in Mach Mining, LLC v. EEOC (2015) that the EEOC’s pre-suit obligation to attempt to conciliate alleged unlawful workplace practices is subject to judicial review, the EEOC will continue to test the limits of judicial review of EEOC’s investigations and attempts to conciliate.  As the new year begins, employers must remain vigilant when challenging failures by the EEOC to conciliate or properly investigate charges and pay particular attention to charges alleging disability, pregnancy and sexual orientation or gender identity discrimination.

© Polsinelli PC, Polsinelli LLP in California

Legal Executive Institute 23rd Annual Marketing Partner Forum – January 20-22 Orlando

Join Thomson Reuters’ Legal Executive Institute this month as Marketing Partner Forum heads to Orlando for a three day summit on transformative value in law firm profitability and business development. Set against the Tuscan luxury of the Loews Portofino Bay Hotel, Marketing Partner Forum will welcome law firm marketing partners, rainmakers, practice group heads, business development leaders and esteemed corporate counsel for a dynamic and vibrant conference designed for the industry’s elite.

For more information and to register, call 1-800-308-1700.

Why You Should Attend

  • Hear from venerable thought leaders both within and outside of the legal industry.
  • Network with colleagues and enjoy the family-friendly adventure of Universal Orlando®.
  • Broaden your horizons through a number of interactive seminars that ask participants to collaborate.
  • Participate in a number of compelling sessions designed for law firm partnership.
  • Interact with clients and network for new business.
  • Focus on global business development and the impact of “glocalization” on legal services.
  • Depart the event with practical takeaways to share with peers and firm leadership.

Who Should Attend

  • Law Firm Partners
  • Managing Partners
  • Marketing Partners
  • Practice Group Heads
  • Chief Marketing Officers
  • Senior Business Development Professionals

New Year, New Wages : Minimum Wage Rates Around the States

After ringing in 2016, employers may want to skip the eggnog and check their wages to make sure they are properly paying their employees.  On Jan. 1, the minimum wage rates in 14 states went up and all are higher than the federal minimum wage.  These states and rate increases include:

Alaska

$9.75 per hour

Arkansas

$8.00 per hour

California

$10.00 per hour

Connecticut

$9.60 per hour

Hawaii

$8.50 per hour

Massachusetts

$10.00 per hour

Michigan

$8.50 per hour

Nebraska

$9.00 per hour

New York

$9.00 per hour

Rhode Island

$9.60 per hour

Vermont

$9.60 per hour

West Virginia

$8.75 per hour

The minimum wage rates in both Colorado and South Dakota will increase due to a cost of living adjustment tied to inflation.  For 2016, Colorado’s minimum wage is $8.31 per hour and South Dakota’s minimum wage now is $8.55 per hour.

Other notable minimum wage increases that will occur throughout 2016 include:

District of Columbia

$11.50 per hour, effective July 1, 2016

Maryland

$8.75 per hour, effective July 1, 2016

Minnesota

$9.50 per hour for large employers, effective August 1, 2016

$7.75 per hour for small employers, effective August 1, 2016

Finally, for employers who have federal service contracts, the minimum wage for employees has increased to $10.15 per hour.  These employers should pay close attention to the hourly rates in effect for the applicable contract as some rates will be higher than the minimum wage rate.

© 2015 BARNES & THORNBURG LLP

Year End Brings Major Changes to US Visa Waiver Program

Included in the 2016 Consolidated Appropriations Act (HR 2029), signed into law on December 18, 2015, were significant changes to the Visa Waiver Program (VWP). These changes will require “e-passports” of all VWP travelers and additional security standards. This follows “enhancements” to the program announced by the Obama Administration at the end of November.

The VWP permits visa-free travel for 20 million visitors per year to the United States for citizens of 38 program partner countries around the world. VWP visitors are admitted to the US as tourists or business visitors for 90 days. VWP countries include those in Western Europe, Australia, Chile, Japan, New Zealand, Singapore, South Korea and Taiwan. Every prospective VWP traveler undergoes counterterrorism screening and must receive approval through DHS’ Electronic System for Travel Authorization (ESTA).

The Consolidated Appropriations Act imposes new restrictions to VWP eligibility for certain individuals who:

  1. Have been present in Iraq, Syria, Iran or Sudan (or other countries designated by the Secretary of Department of Homeland Security (DHS) as supporting terrorism or countries “of concern” as designated by the Secretary) at any time on or after March 1, 2011. The law exempts those performing military service in the Armed Forces of VWP countries or those who carry out official duties in a full-time capacity in the employment of a VWP country government. DHS may also wave exclusion from the VWP program if it would be in the law enforcement or national security interest of the US.

  2. The Act also excludes VWP individuals who are nationals of Iraq, Syria, Iran or Sudan.

  3. All participating VWP countries must issue electronic- and machine-readable passports.

These new restrictions are more expansive than may be apparent and could result in unintended consequences for not only nationals of VWP countries, but US citizens, as well. It is important to note, nationality typically depends on the laws of the designated country. For example, an individual born in Iran but holding German nationality and a German passport may now be excluded from the VWP even if they have not visited Iran for many years and does not possess an Iranian passport.

As the impact of these changes play out over the next several weeks and months, we could see retaliation by VWP countries that restrict visa waiver travel for certain US citizens. Stay tuned and Happy New Year.

 © Copyright 2015 Squire Patton Boggs (US) LLP