|Chapter President's Letter
By Blake Gibson, Managing Division Counsel and Vice President, Black Knight Financial Services
Dear Fellow ACC North Florida Members:
It is hard to believe that my one-year term as President has already come to an end! It was a fast 12 months. I have enjoyed this opportunity, and I look forward to watching the Chapter continue to grow. I am proud of the Board’s efforts this year to bring about two key improvements to the Chapter: (1) the hiring of Allison Rodrigues as our first Executive Director; and (2) the creation of the Community Outreach Committee designed to help our members engage with and serve the local community. We also had some great events this year thanks to our dedicated and enthusiastic Sponsors.
This is the time of year where we have our Sponsorship application cycle, host our Chapter Annual Meeting, and nominate/appoint our new Board. This time of year, we generally receive a spike in questions about how we operate. The Board has asked that I take this letter to help explain how our members can get more engaged and join the Board, and how the Chapter works in general.
How Our Board Works
Our Board is currently composed of 9 Directors and 4 Officers (President, Vice-President/President-Elect, Secretary, and Treasurer). The Board meets monthly for 90+ minutes (rotating each quarter between a telephone meeting, a lunch meeting, and an after business hours meeting). We also conduct a substantial portion of Board business via email.
Additionally, each Board member serves on at least one Committee. We have 5 main Committees: our Sponsorship/Programs Committee (charged with maintaining our sponsor relations and planning our programs), our Membership Committee (charged with driving additional value to our members and connecting with new members), our Governance Committee (charged with maintaining our bylaws and handling our annual nomination process), our Communication Committee (charged with coordinating our quarterly newsletter and other Chapter communications) and our Community Outreach Committee (charged with finding opportunities for our members to give back to the community). Each Committee is chaired by a Board member, and is composed of generally 2-4 Board members and several non-Board chapter members.
One of the primary criteria we look at when we select new Board members is their level of involvement with the Chapter through these committees. If you are interested in joining the Board, this is the best way to get your feet wet and get familiar with how we operate. If you are interested in getting engaged with a Committee, please reach out to me or one of our Board members and we will get you plugged in.
How Our Chapter Works
The Mission Statement of the Association of Corporate Counsel is as follows:
The ACC is a global bar association that promotes the common professional and business interests of in-house counsel who work for corporations, associations and other private-sector organizations through information, education, networking opportunities and advocacy initiatives.
The primary way we execute on this vision at the Chapter level is by providing events to our members. We generally plan to have roughly 12-16 events a year. These events are predominately hosted by our Sponsors. We currently have two levels of Sponsorship: Gold and Platinum. Gold Sponsors have many privileges including demonstrating their firm’s depth and skills by writing articles for this newsletter, and having their firm or entity’s name prominently displayed throughout our publications and websites. Platinum Sponsors have all of the Gold Sponsor privileges but also host a networking event and a CLE event (or a combined networking and CLE event if they prefer). Each Sponsor pays a sponsorship fee and completely fund the events they host. We have a limited number of Platinum Sponsorship opportunities, so we work with prospective sponsors through an annual application process. The sponsorship fees and a portion of the annual membership of local ACC members are the two primary ways we fund our chapter.
As an aside, I would be remiss to not take this opportunity to stress something very important to the Chapter: when a Sponsor hosts an event, prompt and accurate RSVPs are imperative so that they can make sure their event facilities and food are sufficient. When people fail to RSVP, it hurts the Sponsors which in turn hurts the Chapter. Additionally, and worse, is those who have RSVP’d fail to show up for the event. We all have last minute items come up, but notifying us at least a week ahead of an anticipated no-show will help the Sponsors tremendously and help them avoid unnecessary expenses. We have recently rolled out a few initiatives to assist our members with reminders, by having more frequent event notices, and by using a new RSVP tool with a calendar reminder option. We would really appreciate our members RSVP’ing early and communicating change of plans with us.
Hopefully, the above helped answer basic questions you may have about the Chapter and how we operate. We would love to hear from you if you have additional questions or would like to discuss a particular function or role.
I would like to end my term by again thanking the Board of Directors for their hard work and dedication. It has been a great year thanks to them. This is a dynamic group of individuals whom I am privileged to call friends. If you are interested in serving on a committee or getting more involved with the Chapter, please do not hesitate to drop me an email or give me a call. We’d love to have your contribution.
President, ACC North Florida Chapter
Managing Division Counsel & Vice President
Black Knight Financial Services
|Upcoming Events & Past Events Recap
By Rodolfo Rivera, ACC North Florida Board Member
1) The ACC Annual Meeting in 2016 will be held in San Francisco Oct 16-19. The call for programs is now open. 2016 ACC Annual Meeting Home Page
2) SAVE THE DATE: Holiday Party and CLE, December 1, 2016, sponsored by Jackson Lewis. More info ...
Please be sure to check our Chapter page for other upcoming events by clicking here.
Past Event Recap:
The ACC's community outreach committee has been developing a mentoring program headed up by Monique Brown. On September 28, 12 new mentors went through training and will be paired up with a local high school student for the remainder of the school year! This is a program we hope to be involved in every year from here on!
|New OSHA Rule Requires Employers to Update Postings and Policies
By: Michael G. Prendergast and Lindsay Dennis Swiger (Holland & Knight LLP)
A new rule issued by the Occupational Safety and Health Administration (OSHA) became effective beginning August 10, 2016. The rule makes three primary changes to existing OSHA regulations.
New Notice Posting Requirement
The first part of the new rule requires that employers provide notice to their employees concerning the right of employees to report work-related injuries and illnesses to their employer or OSHA, and that employers are not to discourage or retaliate against an employee who reports an injury or illness. OSHA issued a new poster in 2015 that satisfies the new rule’s requirements. Employers may use this OSHA poster to fulfill the notice obligations under the new rule. Employers can find a copy of the poster at www.osha.gov/publications/poster. While this provision became effective August 10, 2016, OSHA has delayed its enforcement until November 1, 2016.
Clarification and Enhanced Enforcement of Anti-Retaliation Provisions
OSHA has also clarified already-existing anti-retaliation provisions in the law prohibiting employers from discriminating against or otherwise discouraging employees from reporting work-related illnesses or injuries. Employers must now establish and communicate procedures for employees to report work-related illnesses and injuries which are “reasonable” and will not “deter or discourage employees from reporting.”
Of particular interest, the explanatory preamble accompanying the new rule raises concerns regarding employee drug-testing and certain safety incentive plans. Specifically, OSHA takes the position that policies requiring post-accident drug testing and practices providing monetary incentives to employees based on the absence or low occurrence of work-related illnesses or injuries may discourage employees from reporting such events in violation of the new rule. Employers with such policies or practices should seek legal advice to determine if they need to be revised.
Previously, enforcement of OSHA’s anti-retaliation provision required employees to file a retaliation claim under section 11(c) of the Occupational Safety and Health Act within 30 days of the alleged retaliatory act. While this remains an option for employees, OSHA has indicated the amended regulations now allow its compliance officers to issue citations to employers that they believe have retaliated against employees for reporting workplace injuries or unsafe employment practices. OSHA compliance officers can issue citations up to six months from the date of the alleged violation.
While this provision of the new rule also became effective August 10, 2016, OSHA has likewise delayed its enforcement until November 1, 2016.
New Electronic Submission Requirement for Certain Employers
The third component of the new rule concerns employers’ recordkeeping and reporting obligations. While OSHA has long required employers to keep records concerning work-related illnesses and injuries on OSHA-prescribed forms, the new rule requires many employers to report this information to OSHA electronically via a portal to be created on OSHA’s website. OSHA will then post some of the data publicly on OSHA’s website.
The new electronic reporting requirements will be phased in over two years. Establishments with 250 or more employees in industries covered by the recordkeeping regulation must electronically submit information from their 2016 Form 300A by July 1, 2017. These same employers will be required to electronically submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019, the information must be submitted electronically by March 2.
Establishments with 20-249 employees in certain “high-risk industries” must electronically submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019, the information must be submitted electronically by March 2. Employers can check the OSHA website (www.osha.gov/recordkeeping/finalrule) to see if their organization is one of the “high-risk industries.”
The website also includes resources providing further guidance on the new rule. The electronic submission requirements do not change an employer’s obligation to complete and retain injury and illness records.
Michael G. Prendergast is a partner and Lindsay Dennis Swiger is an Associate at Holland & Knight LLP
|The importance of I-9 Compliance due to the immigrant-related civil fine increases as of August 1, 2016
By Michelle A. White (Littler Mendelson P.C.)
The U.S. Departments of Homeland Security (DHS), Labor (DOL) and Justice (DOJ) have increased the civil fines for employers that commit immigration-related offenses, such as unfair employment or discrimination practices, H-1B and H-2B program violations, and Form I-9 and E-Verify violations. The new penalties, which went into effect on August 1, 2016, apply to violations that occurred after November 2, 2015.
Implications to Employers:
The largest increase to the civil fines is in the area of I-9 violations where the fines for paperwork violations (i.e. fines for mistakes or omissions on Form I-9) have increased by 96% from $110-$1,100 per violation to $216-$2,156 per violation. This increase is indicative of government’s continued focus on demanding that employers comply with federal immigration laws. This is in congruence with the increased number of I-9 audits over the past five years. As such, employers should ensure that they have an I-9 compliance policy in place and that they are regularly conducting self-audits of their I-9s. In some circumstances, paperwork violations can be corrected once discovered during a self-audit. Correcting Form I-9 prior to an audit demonstrates good faith and can help mitigate the severity of the I-9 violation fine.
Additional relevant fine increases include the following:
Penalty for violations before 11/2/15
Increased Penalty for violations after 11/2/15
Knowingly hiring or employing unauthorized
aliens – first offense (per individual)
I-9 Paperwork Error
Unfair immigration-related employment practices,
first order (per individual)
Unfair immigration-related employment practices,
document abuse (per individual)
Willful H-1B violations pertaining to
wages/working conditions, notification, labor condition application
specificity, recruitment, or discrimination against an employee (per violation)
A Brief History of ICE I-9 Statistics
Between 2007 and 2013, Notices of Inspection went from 250 to 3,127, and in 2004 there were only four notices. This underscores ICE’s increased emphasis on worksite enforcement. According to ICE, its 2013 “Fiscal Year Accomplishments” include: 3,127 Notices of Inspections resulting in $15,808,365 in administrative penalties; 452 criminal arrests tied to worksite enforcement investigations, 179 of whom were owners, managers, supervisors, or human resources employees and federal contract “debarment” of 277 businesses and individuals.
Although in recent years the number of I-9 audits has decreased, the penalties have increased, thus indicating the continued importance of I-9 compliance.
I-9 Practice Pointers on completing form I-9
Additional practice pointers to help ensure compliance:
1. When Must the I-9 Be Completed:
- Section 1 is to be completed by the employee on the first day they report to work (Day 1).
- Section 2 must be completed by the HR Representative on the same day that the employee reports to work.
- Section 3 must be completed by the expiration date of the employee’s work permit.
2. Section 1 – Problem Areas/Human Resources Role:
- The last two of the three boxes:
1. A __________ = this is the number on the Alien Registration Card or Employment Authorization Card (EAD)
2. Alien Authorized to work until __/__/__
(Alien # or Admission # ________) = expiration date of work permission and the number either on the EAD card or on the I-94 card
- Make sure the employee signs and dates the form. If not, the employer assumes liability for false statements in Section 1.
- HR’s role in Section 1 is to review it for completeness, not to verify the information.
3. Section 2 – Problem Areas/Human Resources Role:
- Establish the identity of the employee.
- Verify employment eligibility of the employee.
- All List A, B and C Documents must be unexpired.
- If documents appear to be genuine, you must accept them, unless you have knowledge to the contrary.
- However, if you have knowledge that they are not valid, you must contact your attorney.
4. Section 3 – Problem Areas/Reminders
- When you have a rehire or reverification, Section 3 of the existing I-9 must be completed.
- If current I-9’s Section 3 is already filled in, complete a new I-9.
- On reverification you will not be confirming a List B document.
- You will keep employee hard copies together.
- List A Documents that must be reverified: Foreign passport with I-551 stamp or Form I-94 indicating unexpired employment authorization; Temporary Resident Card (Form I-688); Employment Authorization Card (Form I-688A, I-688B or I-766.
- List B Documents that must not be reverified: Native American tribal document, Canadian driver’s license, school record or report card, clinic, doctor, or hospital record, daycare or nursery school record.
- List C Documents that must be reverified: Employment Authorization Document issued by DHS/USCIS (time limited and other than a List A document).
5. Important Reminders for the Current Form I-9:
- Requires that all documents presented during the verification process be unexpired.
- Eliminates List A identity and employment authorization documentation Forms I-688, I-688A, and I-688B (Temporary Resident Card and outdated Employment Authorization Cards).
- Adds foreign passports containing certain machine-readable immigrant visas to List A.
6. How to Make an Amendment to Form I-9
- Line through the erroneous information in a nondestructive manner.
- Write the new information in the adjacent margin and initial and date the change.
- Never use correction fluid or blackened-out information.
7. Practical Advice for HR Representatives
- Do not ask for any documents to substantiate Section 1.
- Do not ask for any specific documents for Section 2.
- It is the employee election as to which documents to provide
- Review documents produced for Section 2 against Section 1, and give employee a chance to correct Section 1, if necessary.
- Accept any document specified in List A, List B or List C, provided that it appears to be genuine and to relate to the employee.
- Make sure documents offered are on List A, List B or List C.
- Please review the expiration date and create a tickler to conduct reverification prior to expiration date for documents that need to be reverified.
8. The Receipt Rule: Under the receipt rule, an individual may present a “receipt” in lieu of a listed document to complete Section 2 of the I-9 Form. The receipt is valid for a temporary period. There are three different documents that qualify as receipts under the rule. The type of receipt that an employee may present is a receipt for the application for a replacement document when the document has been lost, stolen, or damaged. The receipt is valid for 90 days, after which the individual must present the replacement document to complete the I-9 Form. Note that this rule does not apply to individuals who present receipts for new documents following the expiration of their previously held document.
9. Retaining I-9s: I-9s for terminated employees may be destroyed three years from the date of hire or one year from the date of termination, whichever is later.
Michelle A. White is an immigration attorney in Littler’s Miami Office. She may be reached at email@example.com.
|The Cautionary eDiscovery Tale Beneath the FBI’s Clinton Email Probe
By David M. Stein (Adams & Reese LLP.)
Buried beneath the politically-charged headlines of recent weeks regarding Secretary Hillary Clinton’s emails lies a cautionary tale on a subject a surprising number of lawyers and their clients give little thought: eDiscovery. From an initial document set of over 60,000 emails residing on Secretary Clinton’s private servers, her legal team was tasked with identifying “work-related” emails for production to the State Department. Despite producing approximately 30,000 emails, FBI investigators subsequently identified several thousand additional work-related e-mails that should have been included. On these missing emails, the FBI concluded that Clinton’s lawyers relied on subject line and keyword searches in lieu of reviewing all the content of the 60,000 emails. While it is unclear what ramifications, if any, will arise for the lawyers involved in Secretary Clinton’s email production, in a civil setting such oversights could have significant consequences.
Before the advent of digital documents and computer-assisted review, lawyers performing a relevancy or privilege review had to read each page of each document—a task that, based on the volume of documents, could take up to several months at considerable cost. While the option of reviewing every document collected remains an option in the digital age, newer tools are available that, when used correctly, significantly increase review efficiency while reducing review time and costs.
The “keyword” (aka Boolean) search Clinton’s lawyers used is one of the oldest and most common forms of technology assisted review. One or more words are input into software that retrieves documents containing those words or phrases. Some keyword search tools also include advanced features for recognizing and retrieving word derivatives (e.g., plural, past tense, etc.). While the FBI report infers that Clinton’s legal team used only keyword searches, many other advanced options of technology assisted review are available:
Concept Search: A concept search is more advanced than a keyword search, and includes an algorithm that analyzes variables such as proximity and frequency of words or phrases. This tool typically retrieves more documents than a keyword search because it identifies conceptually related documents, whether or not they contain the original keyword(s).
Discussion Threading: Discussion threading algorithms dynamically link related documents (usually email messages) into chronological “threads” representing entire discussions. This simplifies the process of identifying participants to a conversation and provides further insight into the substance of the conversation. Many email programs, such as the Mail app on iPhones, include a variation of this tool.
Clustering: Clustering algorithms automatically organize a large collection of documents into different topic groupings. This can be done automatically when a collection of documents is input into the tool, thereby giving the user an idea of how the document set is organized.
Find Similar: This tool automatically retrieves other documents related to a particular document, which provides full context for the document under review.
Predictive Coding: Predictive coding software “learns” to segregate desired data/information from a larger set. The user reviews a small (relative to the total document set) data set and “teaches” the software which documents in the review set are desirable (e.g., privileged, relevant, responsive, etc.). The tool then applies what it learned to the entire document set to identify desired documents.
No matter which analytic tool (or combination of tools) is selected, defensibility is paramount. That is, if challenged in court, a party must not only be able to explain why it selected the tool(s) it used, but also be able to demonstrate that the tool(s) actually worked. In the FBI’s review of Secretary Clinton’s emails, defensibility did not play a role, but in a civil case the inability to defend the effectiveness of your client’s document review methodologies can lead to significant discovery sanctions.
Even a simple keyword search may be subject to significant scrutiny. As demonstrated by the FBI findings, merely selecting a “best guess” list of keywords is insufficient. In addition to cooperation, whether between opposing parties or between a client and his/her legal team, to establish a defensible process, courts have ruled that some quality control is necessary. For example, selected search terms can be tested against a random subset of the data to be searched, and that subset reviewed to verify that the search terms successfully identified the relevant documents therein.
The need for such attention to detail, and documentation thereof, will only increase as it is estimated that the volume of data managed by IT professionals will increase fifty-fold from 2011 to 2020. Whichever tools are used for eDiscovery, great care must be taken in their selection, application, and verification to ensure a defensible product should the review process come under judicial scrutiny. A judge’s ruling that the selected tools and methods used to identify and produce discoverable information lacks defensibility can result in significant monetary fines, or even adversely affect the outcome of the case.
David M. Stein is a partner at Adams & Reese LLP
|Trademark Searches - A Cost Saving Measure Often Ignored
By: Crystal Broughan, Esq. (Marks Gray, P.A.)
The first step in a trademark strategy for the adoption and protection of a new mark is the search process. Often, clients do not want to spend the money on a search or ask for a scaled down search process. This article addresses the need for a comprehensive search while also addressing budgetary constraints.
Importance of a Trademark Search
When a company or entrepreneur decides to change their logo or create a new product line that needs a name and logo, they will task their marketing department or a branding consultant to develop the new name and logo. As the branding process is narrowed down to a select few choices, the person in charge of the development should make sure that trademark searches are conducted on the proposed new names and logos before any final decisions are made.
A comprehensive trademark search will reveal the following:
1) If any other individuals or entities hold a trademark registration for a similar trademark in any other state or with the United States Patent and Trademark Office (U.S.P.T.O.);
2) If any other companies are using similar trademarks for the same type of products or services in the United States;
3) If any other individuals or entities own a domain name that includes the word mark; and
4) If any other entities are using similar trademarks for the same type of products or services in other countries.
USPTO and the DuPont Factor Test
The new trademark and logo cannot be registered with the USPTO if someone already owns an identical or similar trademark registration in the same class of products or services. The USPTO uses a thirteen factor test known as the Du Pont factor when reviewing a trademark registration to determine if there is likelihood of confusion under Section 2(d) of the Lanham Act:
1) The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression;
2) the similarity or dissimilarity and nature of the goods or services as described in an application or registration or in connection with which a mark is in use;
3) the similarity or dissimilarity of established, likely-to-continue trade channels;
4) the conditions under which, and buyers to whom, sales are made, that is, “impulse” vs. careful, sophisticated purchasing;
5) the fame of the prior mark;
6) the number and nature of similar marks in use on similar goods or services;
7) the nature and extent of any actual confusion;
8) the length of time during, and the conditions under which, there has been concurrent use without evidence of actual confusion;
9) the variety of goods on which a mark is or is not used;
10) the market interface between the two marks
11) the extent to which trademark owner has a right to exclude others from use of its mark;
12) the extent of potential confusion, that is, whether de Minimis or substantial; and
13) any other established fact probative of the effect of use.
In re E.I. du Ponte de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (C.C.P.A. 1973). Not all of these factors are applicable in every case but they should always be considered when conducting a trademark search for a new trademark or service mark.
Complete Trademark Search
A complete trademark search is going to include searches of registrations in all states of the U.S., the top internet search engines and domain names to determine if anyone is using the mark in commerce. This is extremely important since the first to use a mark in commerce is more important than the first to register with the USPTO. You may file a trademark registration with the USPTO and during the 30 day publication period someone else may file a Notice of Opposition to the registration of your mark because they were using the same mark in commerce before you started using the mark. You would then have to either fight the Notice of Opposition before the Trademark Trial and Appeal Board or agree to stop using your mark.
You might actually obtain a certificate of registration from the USPTO for your trademark and within the next five years someone files a Petition for Cancellation of your registration based on the petitioner having priority in the marketplace with their mark. Once again, you would have to either fight the Petition to Cancel before the Trademark Trial and Appeal Board or agree to stop using your mark.
If your company plans to sell their products or services in other countries in the future, it is wise to conduct a trademark search for use of your mark in other countries. Waiting until you are selling the goods and services in another country to learn that another company is using the same or a similar mark for the same or similar goods or services is financially foolish. By the time your trademark is being used in commerce to market your goods and services in the U.S. or another country you will have spent thousands of dollars to develop and promote the trademark. Better to find out early in the process that others are using the same or a similar trademark.
Budget Considerations and Types of Searches
The company needs to budget sufficient funds to conduct a proper trademark search. When determining how much should be spent on a trademark search, a company needs to balance the cost of search with the risks of not searching. Sometimes it is wise to bring in the finance department to assess the risk based on long term use versus the temporary use of a mark (seasonal). There needs to be a discussion on the importance of the mark to the company’s business and whether or not a word mark search is sufficient or if a logo search also necessary.
Preliminary searches of Federal and State Trademarks are usually conducted in-house or by the company’s trademark counsel. A preliminary search includes government data bases, proprietary databases, and the Internet.
Comprehensive searches in the United States are typically conducted by an outside vendor. The search will include Federal applications and registrations, state registrations, multiple internet search engine searches, domain name searches, and comprehensive searches in other countries. The comprehensive search will include searches by different classes (i.e. Class 25 for clothing, Class 30 coffee, Class 11 coffee roasters, Class 21 coffee mugs, Class 43 coffee shops). A formal report is presented that includes the types of searches conducted, results of each search and a recommendation.
An effective search and clearance of a trademark is at the heart of a brand development strategy. Spending money up front on a comprehensive search may help prevent a company from spending thousands of dollars on a new brand and then having to change their entire brand strategy because another company is already using the trademark and has priority in the marketplace.
Crystal Broughan is an Intellectual Property Attorney and Shareholder at Mark Gray, P.A. Her practice focuses primarily on intellectual property matters such as trademark, patent and copyright infringement cases. She prepares and files trademark and copyright applications, licensing agreements, non-compete and non-disclosure agreements for a wide variety of clients. In addition, she represents clients before the Trademark Trials and Appeals Board on trademark disputes. For more information on her Intellectual Property practice email firstname.lastname@example.org.
|How In-House Counsel Can Maintain Professional Marketability
By Sharon A. McLaughlin, Esq. (Special Counsel)
When it comes to your career, personal and professional circumstances frequently change and may impact your career path and choices. That’s why it’s important for you to maintain professional marketability since you never know when you could be entertaining new career opportunities. There are some very basic and attainable ways that you, as in-house counsel, can establish and maintain professional marketability.
Have you heard the expression, “it’s not what you know, it’s who you know”? When it comes to professional opportunities and advancement, tapping into your professional and personal network can be incredibly valuable. While building our network isn’t always at the top of our list of priorities, it’s one of the most effective tools to enhance and benefit your career. It’s about meeting people, making connections, expanding your sphere of influence and creating and cultivating relationships and friendships.
One way to approach networking is to identify local organizations with which you’d like to get involved. There are numerous lawyers’ organizations in local communities throughout the country that are created by and for lawyers that share common backgrounds and interests – e.g., young lawyers, alumni lawyers, women lawyers, lawyers in the same minority group (race, religion, etc.) or ethnicity. In addition, there are many non-professional organizations that serve causes or areas in which you may have an interest – e.g., art, science, charitable causes, local parks and conservatories, museums, wine and food, etc.
Joining these organizations and attending their social and/or professional events allows individuals with similar backgrounds and interests, to meet, network and collaborate. They provide a forum to exchange ideas, knowledge, experience and initiatives relevant to the individual members.
Networking is one of the best investments of time that you can make for your career. At the very least, you may even make new friends and have fun doing it.
Though many of us might break into a cold sweat just thinking about it, public speaking can be a fun and exciting experience. It can also be a great way to boost your reputation and professional marketability.
Start by tapping into the professional organizations with which you’re involved. Organizations are often seeking subject-matter experts to volunteer their time to speak at their events. It’s an honor to be invited, but it’s also greatly appreciated when you reach out and volunteer. If you are involved in professional organizations, let them know that you would be happy to speak about a topic within your area of expertise or volunteer to be on a panel.
The benefit is three-fold – you are providing a valued benefit to a group in which you’re involved and care about; you are developing an important professional skill; and you are further branding yourself as a subject-matter expert and creating professional marketability.
Articles / Blogs
Similar to public speaking, many professional organizations publish newsletters and often seek content from members. Let it be known to the organizations in which you’re involved that you’re available to write and publish occasional articles. In addition, more and more attorneys are authoring and reading professional blogs – they are an excellent source of news, information and trends in the market.
Writing articles in your area of expertise or contributing articles or comments to industry blogs and forums are a great way to enhance your reputation as an expert and increase your marketability.
If you’re not on LinkedIn, you definitely should be. LinkedIn is a leading recruiting tool and social networking platform for business professionals. It encompasses professional profiles and information for millions of individuals and companies all over the world. Its users include attorneys at all levels, including General Counsels, and companies of all sizes, including startups and the Fortune 100.
LinkedIn is popularly known as an online “networking” tool. In this regard, it allows individuals to search and view other users’ profiles (depending on an individual user’s privacy settings), connect and correspond. It also allows users to share updates, post articles and photos and create / join groups and forums to exchange ideas and information on various topics of interest.
With its increase in users and popularity, it now also serves as a great hiring tool and has a recruiting function that allows employers and recruiters to advertise jobs and search and contact prospective candidates. It also allows individuals to search for and apply to job postings.
Regardless of your purpose in using LinkedIn, it’s an excellent way to maintain professional marketability by just simply creating a detailed user profile. It’s only effective, however, if you ensure that your profile is up-to-date and contains sufficient detail and information to make you professionally “marketable.”
Twitter is an online networking and microblogging site that enables millions of users around the globe to send and read short messages called “tweets.” While Twitter is widely known as a social networking site, more and more attorneys are realizing that it’s a valuable source of information, trends and news as well as a professional networking and marketing tool.
In addition to the dissemination of news and information, Twitter enables individuals to tailor their profiles to provide professional and personal information about themselves. This includes branding oneself as a subject-matter expert in a particular practice area through carefully crafted profiles and expert-matter tweets.
Users can also strategically “follow” and “re-tweet” other individuals and organizations in the legal industry (e.g., General Counsels, professional blogs, legal publications, companies and more), which often prompts them to follow you back. It’s a way to get on their radar and share information. Some legal blogs and news publications will even reach out to their followers on Twitter for quotes, which could further increase one’s visibility on Twitter as an expert in an area of practice.
Finally, a subtle importance about being on Twitter is that it implies that you’re social media savvy. In the current business environment, this is a hugely important and an attractive, and often necessary, quality for many employers.
Finally, it’s important to keep you resume current and up-to-date. You never know when you will need to submit your resume for consideration. It can often be very last minute. You could get a call from a recruiter, friend or professional acquaintance about an excellent career opportunity. Or, you could learn that your company is in the process of being acquired or undergoing internal reorganization.
Whatever the case, circumstances often change and put you in a situation where you need to be proactive and act quickly. It takes no time at all for you to update your resume once or twice a year with accomplishments, updated roles and positions, publications, etc.
Sharon A. McLaughlin, Esq. is a Regional Search Director with Parker + Lynch Legal, the attorney search division of Special Counsel, in Houston, TX (www.parkerlynch.com).
|Defending Your Database from Disgruntled Employees
By Jennifer Shoaf Richardson (Jackson Lewis P.C.)
An ounce of prevention is worth a pound of cure when it comes to dealing with the possibility a former employee may start a competing enterprise using her former employer’s database or other confidential information. Implementing proactive policies to protect proprietary information before the situation arises is well worth the resources, time, and effort. Unauthorized access to a proprietary database or information by former employees is an issue that plagues companies large and small, who would be wise to invest in strategies for both prevention and reaction. This article identifies what constitutes a database breach and suggests some preventive policies and plans of action in the event of a breach.
What is Unauthorized Access?
Congress has sought to assist employers in protecting trade secrets through passage of the Defend Trade Secrets Act of 2016, the Computer Fraud and Abuse Act, and the Economic Espionage Act, by providing civil remedies for the theft of proprietary information, but courts continue to grapple with questions surrounding what constitutes a trade secret and implementation of these laws. The Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (“CFAA”), states, “[w]hoever…knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value . . . shall be punished.” This provision also provides for civil liability.
Courts have held it is not “exceeding authorized access” when an employee who is authorized to access a database uses information in an unauthorized way. See United States v. Nosal (“Nosal I”), 676 F.3d 854 (9th Cir. 2012) (en banc). However, it is a violation of the CFAA to use a complicit current employee’s login information to access a database and obtain information from the database of a former employer. United States v. Nosal, No. 14-10037 (9th Cir. July 5, 2016) (“Nosal II”). In Nosal II, the former employee used his former secretary’s login information to access his former company’s database in order to take the information it contained and start his own executive search firm. Florida’s federal courts are also considering whether a former employee violates the CFAA by improperly accessing email accounts after separation.
Cases such as Nosal II also provide guidance on when a customer list or database is a trade secret. While information concerning the names and contact information for potential executives was publicly available, the database also contained decades of historical data, which was not so easily found. Additionally, the database was not merely a list. It was designed to run an algorithm that could narrow down the list to the most relevant potential recruits. Companies should keep this in mind in evaluating the value of their proprietary information and whether there will be a legal remedy for any breach.
Keeping these remedies in mind, companies can create plans to protect valuable assets in databases before and after separation of employees.
While every situation is unique, it is best to have a policy or plan in place in the event of termination of separation of an employee who had access to the company database or other proprietary information. It is important to remember that sometimes an employee will leave on his or her own terms, and there will be little warning or opportunity to come up with solutions on the spot.
1. Include terms in the employment agreement specifying that unauthorized access to the database after termination of employment is a violation of the agreement, but leave a carveout for whistleblower activity.
Pursuant to the Defense of Trade Secrets Act of 2016, failure to leave a carveout or exception for whistleblower activity could void this clause of an agreement.
2. Institute periodic and regular backup of the database or protected information.
This will substantiate any claim made later regarding lost business, customers, or information that held value for the company.
3. Keep a physical inventory of all devices given to employees used to access protected information.
When the moment of departure comes, all devices can be easily collected or wiped of proprietary information in a timely fashion.
4. Create a plan of action in the event of an employee’s departure, whether it is voluntary or a termination, that can be implemented quickly.
This plan should include closing accounts, changing passwords, notifying current employees, and collecting company-owned devices. The plan should also note which employees and departments need to be involved to successfully follow the designed course of action.
A clear reaction plan for after the termination of separation of an employee can make the difference in recovering from a breach or preventing it, and suffering a loss and being unable to be made whole again in legal proceedings. After the departure of a disgruntled employee, a company should do at least the following to ensure preservation of its causes of action and prevention of loss:
1. Ensure the revocation of computer access is unequivocal.
Prevent the former employee from claiming he or she was still allowed to access the database. If the former employee must access the database to assist his or her replacement, then make the parameters of that access clear.
2. Reiterate with current employees the consequences of sharing access to confidential information with the former employee.
Doing so will give the company a basis for discipline of the current employee if he or she violates this restriction. It will also give the company the ability to commence a civil action.
3. Preserve proof of damages.
This means preserving equipment, including phones, devices, and computers used by the departing employee in case forensic testing is required. It also means keeping an accurate record of the database or other information as of the date of the employee’s departure. Failure to preserve evidence could lead to a spoliation claim and sanctions.
The unexpected departure of a previously trusted employee or even the expected departure of a trusted employee can lead to costly loss of proprietary information that is the heart of the value of a company. It is worth the investment of time and resources to protect that information by giving the situation some forethought and activating a plan of action when the situation arises. If the worst does happen, know that there are civil remedies and causes of action to recover losses to the company.
Jennifer Shoaf Richardson is an Associate with Jackson Lewis, P.C., practicing primarily from the Jacksonville office. Ms. Richardson represents employers in workplace law by assisting with implementation of best practices and strategies to prevent risk and defending if employment issues result in litigation or administrative proceedings.