Lawdragon: Celebrating Ten Years Of Captivating Legal Journalism

For ten years, legal media company Lawdragon has been telling great stories about the law and lawyering.  Lawdragon embraced the power of the internet early on, creating content open to all who were interested in stories about the law.  Lawdragon has shown their commitment to high-quality legal journalism by crafting feature stories, a popular Question and Answer series, and an annual Lawdragon 500 Leading Lawyers in America devoted to attorneys, what they do, and what is possible with a law degree.

Lawdragon was founded by Katrina Dewey as a platform to tell stories about lawyers and lawyering.  Dewey began her career as a lawyer, but in her words, “I quickly discovered that I wanted to write about lawyers instead of practicing the law myself.”  She left her law firm associate job and “I did what I could to get hired as the lowliest journalist at the Daily Journal in California.” The “lowly” journalist position became Editor in 1996, a move that  Dewey describes as “a huge and lucky break.”   In 2005, with a desire to work more in the emerging online journalism market, Dewey founded Lawdragon. Daily Journal reporter John Ryan joined her and continues to serve as the company’s editor-in-chief.

Looking back at the first issue, Dewey describes the publication process as like  “giving birth.”  They wanted to kick off  the magazine in an edgy, interesting way, and one of the first stories was on the idea of term limits for Supreme Court justices.  Dewey remembers, “the week after we shipped our first issue, Justice Rehnquist passed away.”  Another memory of the beginning was Hurricane Katrina.  That disaster hit the same weekend the first publication went out, and it lingered as a sort of ghost each time Lawdragon has published an article that showcased the aftermath of the storm and the various legal issues that followed afterwards.  Looking back, Dewey describes the early days by saying, “we saw ourselves as an intrepid band of journalists, taking on larger lawyer outlets that were a little slow on the digital uptake.”  And that has been part of Lawdragon’s success.  Dewey saw the writing on the wall about how the media landscape was changing–and she wanted to create a place for features and profiles of lawyers with a company that had “digital in its DNA.” After ten years, the company has grown into a marketing and branding platform packed with fascinating tales of the law, using the power of the internet to allow anyone who is interested access to their stories. In fact, the content had become so popular among firms and lawyers that Lawdragon created a new “Lawdragon Press” division that provides paid content, marketing and branding services for firms.

Along those lines, when asked to describe Lawdragon’s audience, Dewey says, “We write for everyone who can read and has an interest in the law.”  The goal is to create intelligent, wide-ranging, eclectic content that shows what an attorney can do with a law degree.   Dewey says, “The goal is to write stories that everyone can access, but are still interesting enough to appeal to attorneys.”

And true to the mission, reading Lawdragon provides perspective on just how far-reaching a law degree can be.  With features on everyone from David Tolbert, President of the International Center for Transitional Justice, Adam Streisand of Sheppard Mullin, who litigated the trial that paved the way for the sale of the LA Clippers to Jodi Westbrook Flowers at Motley Rice, who has worked for over a decade for the victims of the September 11 attacks against  the financiers and and supporters of Al Qaeda, the subject matter is an abject lesson on just what the law can accomplish.

“We’ve tried to cast a wide net on our coverage of interesting lawyers and legal matters, which is why we’ve done original reporting on justice issues in places like South Africa, former Yugoslavia, Rwanda, The Hague and most recently Guantanamo Bay,” Ryan said.

One essential element of Lawdragon’s philosophy is an unwavering optimism about high-quality articles and reporting.  Dewey says, “We are optimists about good content; we believe there is a place for good content in the world.”  With an intrinsic belief that the law has the power to change people’s lives, right wrongs, and inspire as well as an understanding that lawyers who practice law have compelling reasons to do so, over the ten years of its existence Lawdragon has demonstrated a commitment to showcasing those stories.  Dewey says, “We are about the power of story, generally.  We want to show the individual stories of these attorneys who are advocates of the law, who all have their own perspective and ways of contributing to justice. ”

A natural outgrowth of that philosophy is the Lawdragon 500 Leading Lawyers.  This feature  highlights some of the most captivating attorneys and the work they do across the nation. While the Lawdragon 500 is probably the best known element of the publication, it is not a ranking system.  Through a careful process balancing editorial research by Lawdragon staff, law firm submissions, and an open online nominations form, the 500 are carefully curated, but not ranked.  Instead, the guide is a way for Lawdragon to showcase attorneys and their perspectives, how they contribute to justice, and how they use the law as a tool to advocate.

As a result of the commitment to quality content and great stories, Lawdragon articles have strong SEO content and can be a great platform for the attorneys who are featured. One thing Lawdragon provides for the attorneys that are featured is objective, third party, independent recognition of their skills and reputation.  Additionally, Lawdragon publishes an annual print publication, giving attorneys and their clients something to hold, beautiful pictures to see, and amazing articles to read. As Carlton Dyce of Lawdragon points out, “Our print publication is great for attorneys to have in their offices, handy for their clients to read while they are waiting.  It’s a great way to showcase the attorney they are about to see.”  ​

The tenth edition of the Lawdragon 500 will be released soon, an exciting milestone for the company.  Over the years and after many compelling stories, Lawdragon remains excited about its core mission–telling stories of lawyers and lawyering. With millions of lawyers doing captivating work in many fields there is no shortage of stories, and Lawdragon remains committed to telling them.

Article by Eilene Spear of the National Law Review
Copyright ©2015 National Law Forum, LLC

CMS’s Top 7 Changes to Stark Law

On November 16, 2015, the Department of Health and Human Services, Centers for Medicare and Medicaid Services, issued a final rule revising, clarifying, and adding exceptions to the Physician Self-referral Law (“Stark”) in order to (1) accommodate delivery and payment system reform; (2) reduce burdens; and (3) ensure and facilitate compliance. These changes include two new exceptions, clarifications adding additional explanations to existing policies, and revisions to existing definitions and exceptions.

Below are the top 7 changes providers and physicians should note:

  1. New “assistance to compensate a nonphysician practitioner (NPP)” exception: allows remuneration from a hospital, federally qualified health center, or rural health clinic to a physician to recruit a NPP, where substantially all (i.e., 75%) of the services furnished by the NPP to the patients of the physician’s practice are for primary care services or mental health care services. Please note this exception applies to the following NPPs: (1) physician assistants; (2) nurse practitioners; (3) clinical nurse specialists; (4) certified nurse midwives; (5) clinical social workers; and (6) clinical psychologists.

  2. New “timeshare arrangements” exception: this exception covers “use” arrangements only, which includes the use of premises, equipment (excluding advanced imaging equipment, radiation therapy equipment, and (most) clinical or pathology laboratory equipment), personnel, items, supplies, or services. Traditional office space leases and arrangements conveying a possessory leasehold interest in office space are not covered under this exception. Compensation for such arrangements must be carefully structured, as percentage compensation and per-unit services fees (i.e., “per-use” and “per-patient” rates) are prohibited but hourly or half day rates are acceptable.

  3. Clarification on the writing requirement: exceptions containing a writing requirement for certain compensation arrangements use “arrangement” and “agreement” interchangeably. The rule now clarifies that this requirement only requires an arrangement be set out in writing. Although CMS recommends having one signed written contract that satisfies every requirement of the exception, the preamble clarifies that this requirement may also be satisfied through a collection of documents that relate to one another and to the exact arrangement.

  4. Clarification on the 1-year term requirement for office space rental, equipment rental, and personal service arrangements exceptions: the final rule clarifies the arrangement itself must have a duration of at least one year, but a formal “term” provision in a contract is not required. Instead, the duration requirement can be shown through contemporaneous documents establishing the arrangement lasted for at least one year. However, if the arrangement was terminated during the first year, the parties must be able to show they did not enter into a new arrangement for the same space, equipment, or services during the first year.

  5. Clarification regarding “split bill” arrangements: “split bill” arrangements do not involve remuneration between physicians and designated health services (DHS) entities, for items or services such as examination rooms, nursing personnel, and supplies, “because the physician and DSH entity do not provide items, services, or other benefits to one another.” 80 Fed. Reg. 70,886, 71,321 (Nov. 16, 2015). However, outpatient departments billing a payor in one single bill will establish a compensation arrangement and must fit under an exception.

  6. Revision to “temporary noncompliance with signature” requirement: prior to this final rule, parties who inadvertently failed to comply with the signature requirement had 90 days to comply and others had 30 days. Now, there is a blanket 90 day period to comply with this requirement, regardless of whether the failure to obtain a signature was inadvertent or not.

  7. Indefinite holdover provisions: expired arrangements under the office space and equipment rental exceptions and the personal service arrangements exception can be “heldover” indefinitely rather than for only six months, provided the arrangement: (1) satisfies all of the requirements at the time of expiration; (2) continues on the same terms and conditions; and (3) continues to satisfy all of the requirements during the holdover. Current arrangements in a valid holdover under the current six month holdover provisions on January 1, 2016 may qualify for an indefinite holdover.

Article By

Bryna S. Hummel
Robert D. Nauman
John E. Wyand
Squire Patton Boggs (US) LLP

© Copyright 2015 Squire Patton Boggs (US) LLP

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

Join Thomson Reuters’ Legal Executive Institute next January 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

Hacking Health Care: When Cybersecurity Can Mean Life or Death

cybersecurityMillions of Americans rely on implantable medical devices to stay alive. These battery-operated devices communicate through wireless transmissions — and can be hacked like any other wireless device. For example, a wireless pacemaker regulates a person’s heartbeat and records the heart’s activity, and then transmits this information to doctors who can reprogram the pacemaker. The interconnectivity between medical devices and clinical systems leaves wireless medical devices vulnerable to security breaches.

Cybersecurity no longer just applies to computer networks and financial data; modern implantable medical devices have the same vulnerability and also require cybersecurity. In fact, in a span of six months, hackers attempted to log into MRI and defibrillator machines over ten thousand times and attempted to download malware approximately 300 times. Had these hackers been successful, they could have accessed patients’ personal information or reprogrammed the defibrillators to deliver deadly jolts of electricity to patients’ hearts.

The government is already taking action. In 2014, the U.S. Food and Drug Administration (FDA) responded to these threats with guidance on how medical device manufacturers could improve the safety of implantable medical devices. The FDA advised manufacturers that their failure to develop cybersecurity controls could lead to repercussions including “compromised device functionality, loss of data (medical or personal) availability or integrity, or exposure of other connected devices or networks to security threats. This in turn may have the potential to result in patient illness, injury, or death.”

[I]n a span of six months, hackers attempted to log into MRI and defibrillator machines . . .

Further, as manufacturers well know, when a device malfunctions and causes bodily injury, consumers typically allege product liability claims. Patients whose devices are hacked could raise claims for design defects and failure to warn of the risk of cyber-vulnerabilities. These potential victims likely never considered their life-saving medical devices could be used as a weapon. For most people, the idea that someone would attack a medical device seems unfathomable.

So, what motivates attacks on implanted medical devices? According to Dr. William Maisel, “[m]otivation for such actions might include the acquisition of private information for financial gain or competitive advantage; damage to a device manufacturer’s reputation; sabotage by a disgruntled employee, dissatisfied customer or terrorist to inflict financial or personal injury; or simply the satisfaction of the attacker’s ego.” Medical data can be worth ten times as much as a credit card number. Added to that, the medical device market was a $25.2 billion industry in 2012 and is expected to be a $33.6 billion industry by 2018. That’s a vast market of potential victims.

Article By Amy M. Rubenstein & Brittany Robbins of Schiff Hardin LLP
© 2015 Schiff Hardin LLP

Cal/OSHA Proposes Workplace Violence Prevention Standards in Health Care

California’s Division of Occupational Safety and Health (“Cal/OSHA”) has made the Golden State the first in the nation to propose standards specifically aimed at protecting health care workers against workplace violence.

According to the U.S. Bureau of Labor Statistics, the rate of injuries and illnesses from violence in the health care industry is more than three times greater than that for all private industries. Supporters of California’s proposed standards argue that these statistics indicate workplace violence is a serious occupational hazard for health care workers, warranting the need for hospitals and other healthcare facilities to develop and implement a workplace violence prevention plan.

The federal Occupational Safety and Health Administration provides guidance and training materials to combat workplace violence in the healthcare industry, but it has no specific regulations in place. Instead, it relies on the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, to cite employers for hazards involving workplace violence.

In California, as a result of petitions to the Occupational Safety and Health Standards Board by two health care worker unions, and subsequent advisory committee meetings held by the Cal/OSHA, the state passed legislation in September 2014, requiring that standards be issued to address Workplace Violence Prevention in Health Care. The Board recently released the proposed standards to the public for comment. A public hearing on the proposal is scheduled for December 17, 2015. The new standards must be adopted by July 1, 2016.

In the proposed standards, workplace violence “is defined as any act of violence or threat of violence that occurs at the work site,” including “the threat or use of physical force against an employee that results in, or has a high likelihood of resulting in injury, psychological trauma,” or an “incident involving the threat or use of a firearm or other dangerous weapon.” In all instances, under the proposed standards, it is immaterial whether the employee sustains an injury. The definition encompasses four types of violent encounters, whether committed by: (1) someone with “no legitimate business;” (2) a person who is the beneficiary of the services provided; (3) a current or past employee; or (4) someone who “has a personal relationship with an employee.”

The proposed regulations apply to hospitals and other health care facilities, such as outpatient medical offices and clinics; home health care and home-based hospice; paramedic and emergency medical services; field operations (e.g., mobile clinics); drug treatment programs; and, ancillary health care operations.

The cornerstones of the proposed regulations address:

  1. Establishing a workplace violence prevention plan that includes active employee involvement;
  2. Identifying and evaluating environmental risk factors, such as employees working in isolated locations, poor illumination or blocked visibility, lack of physical barriers and escape routes, obstacles and impediments to accessing alarm systems and storage of high-value items, currency or pharmaceuticals;
  3. Identifying and evaluating patient-specific workplace violence risk factors by utilizing assessment tools, decision trees, or algorithms;
  4. Correcting hazards related to workplace violence in a timely manner and implementing corrective measures, such as: providing line of sight or other communication in all areas in which patients may be present; configuring spaces so that employees have access to doors and alarms; removing or fastening furnishings and other objects so they cannot be used as weapons; creating a security plan for prevention of the transport of unauthorized firearms and other weapons in the facility; maintaining sufficient staffing; and maintaining an alarm system;
  5. Providing specific training and education to all health care workers who provide direct care to patients at least annually;
  6. Setting up a system to respond to and investigate violent incidents and situations or the risk of violent incidents and situations;
  7. Assessing annually the program and making improvements to help prevent workplace violence; and
  8. Making and retaining records for five years of any violent incident against a hospital employee, regardless of whether an injury was sustained.

The proposed regulations also require that a covered healthcare facility report violent incidents to Cal/OSHA. If the incident results in injury, involves the use of a firearm or other dangerous weapon, or presents an urgent or emergent threat to the welfare, health or safety of hospital personnel, the healthcare facility must report the incident to Cal/OSHA within 24 hours. All other incidents of violence must be reported to Cal/OSHA within 72 hours.

Starting in 2017, Cal/OSHA will post a report on its website containing information regarding the total number of workplace violence reports and which specific healthcare facilities filed reports, the outcome of any related inspection or investigation, the citations levied against a facility based on a violent incident and any recommendations by Cal/OSHA on the prevention of violent incidents.

Article By Nickole C. Winnett of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

UK Holiday Pay Inactivity – Inertia or Strategy?

We were in the hallowed legal portals of Farringdon’s Bleeding Heart Restaurant last week for a client dinner on the still vexed issue of holiday pay. “Hallowed legal portals”, because so far as I know, no other restaurant has been cited so frequently in the employment law reports as just the only place to go for a decent spot of covenant-busting and a little post-prandial breach of fiduciary duties.  They also do a very good coffee.

We had to open with an acknowledgement – that despite the absolute nature of my recollection, Peter O’Toole had not said in the film Lawrence of Arabia that “doing nothing was generally best”. Apparently it was Anthony Quayle.  Pressing on despite this setback, our dinner guests considered with the kind contribution of a senior member of the Engineering Employers Federation’s Employment Policy Team whether doing nothing could really remain a sensible holiday pay position at this stage, a full year after the EAT’s decision in Bear Scotland.

Despite the breadth of sectors represented, including retail, financial services, recruitment and advertising, there was a remarkable commonality of view. While it was of course sensible to be providing behind the scenes for some possible accrued holiday pay liability, none of our guest organisations had yet sought any negotiation or reached any agreement with staff representatives (unionised or not) about the inclusion of overtime or commissions in holiday pay calculations.   Despite this inaction, only one of our attendees had had a Tribunal claim on the point.  This is a function perhaps of the relatively limited quantum of most holiday pay claims per individual, a sum which will often be less than the Tribunal fees incurred in making the claim in the first place.

We floated the proposition that an employee’s entitlement to an allowance for commission or overtime in his holiday pay should depend upon his being able to show (at least on a balance of probabilities) that he would have earned that extra money had he not been on leave, i.e. that he had suffered some actual loss. Most of our attendees seemed willing to take that loss as a given based on recent average overtime or commissions rates. Where such extra earnings are pretty regular and pretty consistent, that might well be a sensible approach.  However, the financial services attendee, being from a sector which pays fewer but larger supplementary sums above salary, could see some mileage in this argument.  If such a lumpy payment fell within the reference period for the holiday pay calculation, it could seriously distort the figure and turn it into a number wholly unconnected with what the employee would actually have earned had he not been on leave.  None of the cases or commentaries have yet mentioned this possibility (apart from the most throw-away line in the Acas Guidance http://www.acas.org.uk/holidaypay). Nonetheless, it will surely gain new legs as an idea if and when the Government confronts the reality of drafting legislation to define a “normal pay” formula which works equally well over the myriad different shapes and sizes of supplementary payment arrangements in the UK market.

Might some clarity on this be derived from Mr Cameron’s impending begging session in Europe? His original podium-thumping was about procuring material changes to the Working Time Directive as applicable to the UK, but his formal overture was watered down to a gripe about lessening employer red tape.  The collective view around our table was that the EU will listen politely to Mr C and give him nothing.  The more cynical among our guests (that is to say, all of them) considered that he would then introduce some “clarificatory” amendments to the Working Time Regulations which would make little or no actual impact on employers but could be presented to a puzzled electorate as an indication of the merits of his tough stance in Europe.

I asked our guests at the outset of the dinner what they wanted from it. Almost exclusively it was reassurance that they were not alone or acting foolishly in doing nothing about holiday pay at this stage.  In cases where there are no unions, no pressing reputational issues and no easy means of determining what supplement to holiday pay would be appropriate anyway, it was reassurance which we were happy to give.

Article By David Whincup of Squire Patton Boggs (US) LLP

© Copyright 2015 Squire Patton Boggs (US) LLP

Thanksgiving Treat: Executive Branch Gift Rules in for Rewrite

As the nation looks forward to giving thanks with family and friends, the Office of Government Ethics (OGE) will be proposing revisions to regulations that specify when employees of the federal executive branch must say, “No, thanks.” These changes are only proposals at this time and have not yet taken effect. Many of the changes are intended to make the rules more readable, but there are a number of important revisions, including:

  • Written authorization required for all widely attended gatherings (WAGs). The WAG rule allows for free attendance at certain events and is one of the most commonly used exceptions to the gift rules. OGE’s proposal would require written authorization for all WAGs, not just when the person extending the invitation has interests that could be substantially affected by the employee. The OGE believes “certain technologies . . . such as the Internet and mobile devices” make this change practicable, and the authorization would not need to be detailed.

  • A new provision discourages acceptance of permissible gifts. OGE added a new provision designed to encourage government employees to consider whether, even if a gift is permissible, acceptance of the gift could negatively “affect the perceived integrity of the employee or the credibility and legitimacy of the agency’s programs.” The new provision includes a number of factors to consider in making this judgment call, such as whether those with views different from the donor are also provided access to the government.

  • Alcohol is not a “modest item of food or refreshment.” A new example would clarify that the exclusion to the definition of “gift” for “modest items of food and refreshment” does not allow for the acceptance of alcoholic beverages.

  • Store gift cards of $20 or less are ok; prepaid cards are not. A rule that permits employees to accept gifts of $20 or less would be clarified to allow for gift cards to a particular store (the OGE example discusses a gift card “to a national coffee chain”). Cards without such restrictions, such as prepaid debit cards, are still prohibited as the functional equivalent of cash.

  • Receptions Hosted by Former Employer. The changes would allow a government employee to attend receptions hosted by a former employer, if the government employee is not given special treatment.

  • Unsolicited informational materials are ok; approval required if they exceed $100. Recognizing that some informational material, such as books, may be useful but expensive, the OGE would allow unsolicited informational material of up to $100 in value; if the value exceeds $100, approval would be required. Entertainment and art are not allowed.

  • “Free attendance” could include meals outside a group context. The OGE recognized that, when employees present at an event, a meal is often held just with the presenters. This revision would allow government employees to participate in those meals.

Comments on the proposed rule must be submitted within 60 days of the publication of the rule in the Federal Register—which is expected to occur on November 27.

Article By Kevin Glandon of Covington & Burling LLP
© 2015 Covington & Burling LLP

U.S. Department of Education Issues New Guidance on Incentive Compensation Regulations

On Friday, November 27, 2015, the U.S. Department of Education (the “Department”) will publish guidance in the Federal Register regarding its October 29, 2010 changes to the incentive compensation regulations at 34 C.F.R. § 668.14(b)(22) that took legal effect July 1, 2011. Those revised regulations removed a “safe harbor” that had previously permitted certain graduation-based or completion-based compensation, and further indicated that the Department interpreted its revised regulations to ban such forms of compensation to persons covered by the Higher Education Act’s incentive compensation prohibition.

In light of the federal court decision and subsequent order in APSCU v. Duncan, 70 F. Supp. 3d 446 (D.D.C. 2014), the Department states that it has now reconsidered its interpretation of the statutory prohibition and (subject to the caveats described below) that it does not interpret its July 1, 2011 regulations to proscribe compensation for admissions and recruiting personnel that is based upon students’ graduation from, or completion of, educational programs. Correspondingly, the Department also announced that it will not view references in its regulations to enrollment activities that may occur “through completion” by a student of an educational program as prohibiting graduation-based or completion-based compensation to admissions and recruiting personnel.

Importantly, the Department’s notice explicitly reserves its right to take enforcement action against institutions if compensation labeled as graduation-based or completion-based compensation is merely “a guise for enrollment-based compensation,” which remains prohibited. In assessing the legality of any compensation structure, the Department says it “will focus on the substance of the structure rather than on the label given the structure by an institution.” Thus, the Department further states that while compensation based on students’ graduation from, or completion of, educational programs is not per se prohibited, institutions are still prohibited from providing compensation that is based directly or indirectly, in any part, upon success in securing enrollments (as such activities are broadly defined in the Department’s regulations) even if one or more other permissible factors are also considered.

In this same notice, the Department also responds to the federal court’s order with respect to potential impacts of the regulations, as revised effective July 1, 2011, on the recruitment and enrollment of minority students. The Department acknowledges that its regulations could negatively affect outreach and enrollment generally, as well as student outreach that is specifically targeted at promoting diversity, which could result in fewer minority students recruited and enrolled. However, it states, neither the Higher Education Act nor any information presented by commenters to the regulations when proposed provide a basis for treating a recruitment program directed at minority students differently than an institution’s general or other specific recruitment programs.

A full copy of the Department’s Federal Register guidance is available here.

Article By John R. Przypyszny & Jonathan D. Tarnow of Drinker Biddle & Reath LLP

©2015 Drinker Biddle & Reath LLP. All Rights Reserved

The Viral Spiral: How An Employee’s Facebook Post Dragged Her Employer Into A Social Media Controversy

Instances of deplorable racism have sparked recent protests on the University of Missouri’s campus. Not surprisingly, these protests have received a significant amount of media attention. On Nov. 13, 2015, however, the world’s attention shifted to the horrific terrorist attacks in Paris. We have since been inundated with 24-hour news coverage on developments related to the war on terror.

Following the Paris attacks, the Washington Times released a story explaining how University of Missouri protestors had taken to Twitter to express disappointment with the fact that this tragedy was directing media attention away from their cause. College student Emily Faz, an employee of Wild Wing Café, apparently found this development unsettling. So what did she do? Faz took to Facebook to disseminate her opinion regarding the Washington Times article. Here is the content of her post:

I’m just going to leave this here. I swear if I see this B* at Southern, I’ll make you regret even knowing what a movement or a hashtag is, and you’ll walk away with your tail tucked. This whole black lives matter movement is misguided and out of hand. Maybe no one likes or takes y’all seriously because no one can see past your egotistical B*******. Some people might just look past it, but fair warning I’m am (sic) not one. All lives matter, that has always been the case, and you are part of the problem if you think other wise (sic).

Faz’s controversial post didn’t just go viral: it created a social media firestorm. Thousands of individuals took to Facebook and Twitter to condemn Faz’s commentary. Despite the criticism, a large number of supporters rushed to Faz’s defense. Many supporters claimed Faz was the target of a social media “witch hunt.” In their subjective view, Faz had done nothing more than share her opinion on a controversial subject. Nevertheless, she was being made the target of a significant amount of online harassment.

The ongoing debate intensified when the Internet turned its attention to Wild Wing Café. The business started receiving messages calling for Faz’s termination. The attention also unquestionably disrupted the company’s business operations.

What happened next? Rumors started to circulate that Wild Wing Café had terminated Faz’s employment. So Faz’s supporters took to Twitter to protest the company’s decision. The rumor was incorrect. The company did not terminate Faz’s employment and ultimately issued a statement to set the story straight.

Will Faz remain employed by Wild Wing Café? We don’t know. And that is not really the focus of this blog post. The issue we would like employers to focus on is this: A controversial Facebook post sparked a social media frenzy that unquestionably impacted this employer’s day-to-day operations.

The Big Picture

Faz’s Facebook post provides a vivid example of how an employee’s social media activity can have a very real impact in the workplace. This raises an important question: What should an employer do if an employee’s social media post goes viral and negatively impacts business operations?

Well, for starters, avoid the knee jerk reaction. Take a step back and evaluate the content of the post. For example, does it violate the company’s EEO policy? Does it provide evidence of a discriminatory animus? Examining social media content from this angle is critical to making an informed decision.

Additionally, consider whether the National Labor Relations Act (NLRA) will have an impact on your analysis. The NLRA provides some protection to employees engaging in social media activity when the content amounts to “protected concerted activity.” This occurs when two or more employees take action for their mutual aid or protection regarding the terms and conditions of employment (e.g., wages, hours, safety, etc.). For example, a social media controversy created by a group of employees complaining about wages may fall within the scope of “protected concerted activity.” As such, examining the social media content from this angle is also critical to making an informed decision.

Moreover, if an employer is leaning towards termination, evaluate whether the company may be setting itself up for a lawsuit. For example, has the company allowed controversial posts in the past? Will the employee be able to point to similarly situated individuals who received more favorable treatment? This is yet another angle an employer will have to consider in order to formulate a game plan.

What’s the bottom line? It’s all about assessing risk. And properly assessing risk will involve a careful analysis of the facts specific to each case. Employers are therefore encouraged to involve outside counsel when navigating this minefield.

One final note: We’ve repeatedly emphasized that it is critical for employers to monitor what is trending on the Internet. The debate regarding Faz’s social media activity only serves to underscore this point. To be sure, keeping up on what is trending probably won’t stop a controversial social media post from going viral,but it may provide an employer with more lead time to formulate a game plan.

Article By Peter T. Tschanz of Barnes & Thornburg LLP
© 2015 BARNES & THORNBURG LLP

It’s (Not) Academic: Cybersecurity Is a Must for Universities and Academic Medical Centers

Cutting-edge research institutions need cutting-edge cybersecurity to protect their IP and critical personal and financial data.  Universities hold vast repositories of valuable information, including student healthcare information, patient information from academic medical centers, and financial and personal data from applicants, donors, students, faculty, and staff.  So it’s no surprise hackers have been targeting universities lately—in fact, at least eight American universities (including Harvard, UC Berkeley, University of Maryland, and Indiana University) have announced cyber intrusions over the past two years.

With the cost of a data breach averaging $3.8 million,[1] universities cannot afford to pretend cybercrime won’t happen to them.  For institutions with health records, the financial costs can be even greater (as high as $360 per record!), due to the high value of health records on the internet’s black market, the “Dark Web.”

But, the dollars may not mean as much as the bad PR—having your institution’s name in national headlines, risking research funding from governments or corporate partners, losing protected and sensitive IP, fielding calls from angry donors, students, and parents whose personal information has been compromised, and defending multiple civil suits—all because the institution failed to assess its cyber liability.  (See additional information on assessing cyber liability).

For major research institutions holding valuable IP, health records, and grants for sensitive research, having a cybersecurity prevention and remediation plan is more than just a good idea, it’s an absolute must.  And these cybersecurity measures must extend beyond mere “compliance.”  The Federal Government will continue to create cybersecurity regulations, but their regulations never will keep up with the risks.  A university’s administration answers to the Federal Government, to its Board, to its donors, to the media, to its students and faculty, and to the general public. None of these constituencies will be calmed by minimal compliance with outdated regulations.

Instead, universities can address their cybersecurity risks with some initial measures to prevent intrusions and to minimize the damage if a hacker does get through:

  • Protections against Insider Threats: Attacks by insiders accounted for more than 50% of the cyberattacks in 2014. To help mitigate these threats, create an insider threat team and build a holistic approach to security—include staff from IT and technology, legal, physical security, and human resources. Emphasize training of employees, faculty, and administrators in basic cybersecurity awareness to instill habits that will better protect the institution.

  • Enhance Network Security Policies and Procedures: Implement security precautions to make a hack more difficult. For example: create enhanced protocols to prevent unauthorized access to devices and systems, including multi-factor authentication; provide broad and frequent updates to computers on-campus and for computers that regularly access campus networks; and prevent access to compromised sites by incorporating controls into your network.

  • Cyber Intrusion Testing: Work with a vendor to test the institution’s current cybersecurity vulnerabilities and get advice on how to reduce those vulnerabilities.

  • Corrective Action Plan: —one that includes disclosure and mitigation efforts. Importantly, if an institution holds government contracts or grants, follow the required disclosure protocols for cyber intrusion (note that agencies may differ in their disclosure and mitigation requirements).

  • Cyber Insurance: —particularly those with academic medical centers and/or sensitive research programs—should ensure their policies are large enough to cover a worst-case scenario.While a comprehensive cybersecurity plan will require additional systematic and long-term efforts, taking these steps will at least keep an institution off of a hacker’s list of “low-hanging fruit.”

Article By Christine R. Couvillon of Sheppard, Mullin, Richter & Hampton LLP

Copyright © 2015, Sheppard Mullin Richter & Hampton LLP.

[1] Ponemon Institute, Cost of Data Breach Study (2015).  Note this average does not include mega-breaches like those experienced by Home Depot, Target, or Sony Pictures.