• The definition of “Discrimination” was expanded to include “actual or perceived” members of a protected class;
• The definition of “working environment” is no longer limited to the physical location to which an employee is assigned to perform services for an employer;
• The definition of “employer” was expanded to include any entity that employs one or more persons (instead of the previous 15-employee requirement);
• The definition of an “employee” was expanded to include non-employees, including independent contractors, vendors and others performing services for the benefit of the employer; and
• The amendments enacted into law the Illinois Supreme Court holding that employers are responsible for the acts of “nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take corrective measures.”  

1. an explanation of sexual harassment consistent with this Act;
2. examples of conduct that constitutes unlawful sexual harassment;
3. a summary of relevant federal and State statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
4. a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.

• Total number of settlements involving the employer in the preceding year related to a claim of unlawful discrimination that (a) occurred at the workplace; or (b) involved the acts of an employee whether at work or not;
• Breakdown of the total number of settlements by type of claim: (a) sexual harassment or gender discrimination, (b) race, color or national origin, (c) religion, (d) age, (e) disability, (f) military status, (g) gender discrimination, (h) other;
• Total number of adverse judgment or administrative rulings;
• Equitable relief ordered against the employer with respect to the covered claims;
• Breakdown of the total number of adverse rulings by type of claim (a) sexual harassment or gender discrimination, (b) race, color or national origin, (c) religion, (d) age, (e) disability, (f) military status, (g) gender discrimination, (h) other.

1. report any good faith allegation of unlawful employment practices to any appropriate federal, State, or local government agency enforcing discrimination laws;
2. report any good faith allegation of criminal conduct to any appropriate federal, State, or local official;
3. participate in a proceeding with any appropriate federal, State, or local government agency enforcing discrimination laws;
4. make any truthful statements or disclosures required by law, regulation, subpoena, or legal process; and
5. request or receive confidential legal advice.

1. confidentiality is negotiated by both Parties and both Parties are bound by it;
2. employee is advised to have its own counsel;
3. specific consideration is given to the employee for the confidentiality provision;
4. prospective claims are not released; and
5. the employee is given adequate time to review (e.g., 21-days) and rescind the separation agreement (e.g., 7-days).

Walker Lawrence
Associate, Levin Ginsburg

This time of year is always a good time to consider the value of an ALA membership, along with strategies to ensure our respective firms understand what ALA membership contributes to their success (and ours!).  It’s worth the effort to remember – and remind – both ourselves and our firms that membership in ALA gives us:

• The ability to remain aware of everything that is going on in the legal industry, such as best practices, new technology, why we need it, what problems are being faced, trends, staffing issues…
• Access to 50+ chapter educational and networking activities – and that’s just this year.  There’s something for everyone, and our Chapter events are included in the cost of your dues…
• Subscriptions to The Administrator’s Advantage newsletter and national’s Legal Management magazine that offer timely articles on an array of topics affecting our firms…
• Online communities and our listserves that provide answers to our questions practically instantly…
• Ready access to peers in Chicago and around the world to help guide us.  We can contact anyone from ALA at any time and ask a question, seek advice or commiserate… 
• Instant feedback on who is using what product or service – ask an ALA member for their insights…
• Connections with our colleagues that provide us with the ability to reflect and re-energize outside of work…
• Business partners who are ready to support us and our firms with information regarding their products and services…
• Opportunities for volunteer leadership that provides us with added experience and exposure to new people, leadership training and organizational dividends that pay off in our careers…
• Chapter and national websites that provide us with information and tools we can use to manage our firms…
• The Annual Conference & Expo that features nearly 100 educational sessions focusing on legal industry trends and developments, unparalleled networking opportunities and a 3-day expo…
• Specialized conferences planned by national that will enhance your legal management intelligence…

We know that you will return from a meeting, event or conference with new information and ideas to implement.  Share those with your management team and firm leadership so they know the value that you have gained from being a part of ALA. 

We have a busy and high-value March in store and hope you will make plans to attend one or all of our planned events!  Check out the website to find out more about our Small/Mid-Size/Local Office Group’s Winter Business Partner Fair, Annual Charity Event and Law Firm Leaders Event. 

Further your connections with our legal community, learn about products and services offered by our Business Partners, and benefit from cutting edge education! 

Laura T. Sears, CLM
Gould & Ratner LLP
312-899-1660
president@alachicago.org

Why are newsletters/e-blasts so effective?

Many lawyers seek the latest fad in marketing, hoping to gain an edge on the competition.  Others sink huge amounts in SEO campaigns and pay-per-click, paying for any leads that come their way. Often those leads are of low quality and take an inordinate amount of personnel time to handle.

However, despite many other online digital marketing options, newsletters/e-blasts continue to generate quality business opportunities.  In fact, seasoned marketing experts rank newsletters/e-blasts as one of the most effective techniques for imaging/awareness building, new client acquisition, and client retention.  Why?

• Targeting: With newsletters/e-blasts, you can build a database of your known contacts including current and past clients, business contacts and other referral sources, and prospective clients who may need your services. This can be highly effective vs. “shotgun marketing” which is spending huge amounts of money to immerse the marketplace with your message, wasting your money on the majority of those contacted who have no need for your services.

• Lower cost vs. many other digital options: Advertising, especially in print or on TV, can be very expensive. Newsletters/e-blasts are one of the least expensive methods to directly reach your audience.

• Image building/name recognition and market positioning: You know that your services are great, but is your firm one of those that says “We’re the best kept secret in town”? Newsletters/e-blasts can be a highly effective tool to overcome that problem. Commit to doing it regularly and you’ll build top-of-mind awareness.

• Build trust, relationships and referrals: Newsletters/e-blasts are a great method to consistently demonstrate your expertise, show your commitment to the targeted market, showcase your talent, introduce new services, announce accomplishments and recognize new personnel and promotions. All of this goes toward further establishing your referral network, encouraging repeat business, and expanding your client base.

• Content marketing: A proven method of communicating valuable information is through newsletters/e-blasts. If you provide quality information that is useful to your audience, they are more likely to read it – and to read the next issue and those thereafter.

• Systematic method of contact: If you want a system to regularly reach your target market, with key messages that will impact, newsletters/e-blasts are a great tool.

• Connecting with your contacts: Statistics show that people open emails from their known contacts. Knowing this fact, you can keep your firm’s name in front of your audience – and they’ll be more likely to remember you when a need for your services arises.

• Immediate impression: Over 90% of business owners and individual consumers check their email at least once a day, most doing it several times a day. This means that your newsletters/e-blasts will have an opportunity to gain a quick review and potential response

_______________________________________________________________

Ken W. Brown, M.B.A

The Specialists in Law Firm Marketing

• Professional Headshots: We can all agree that first impressions matter, but as times change and we do so much more of our work virtually through email and phone calls than in person, sometimes the first and even the only time you will "meet" someone is through their photo. Think about how many people you work with closely over email, such as vendors, clients, or fellow ALA members, whom you have never actually met in person. Your only interaction with them visually could be the avatar of their face that pops up in their email or on their Linkedln profile. Now imagine that this is a potential client's experience with your law firm. They're on your website for the first time or reading a blurb about a founding partner in a local magazine or blog. You're going to need a photo of that attorney that in only 1/10th of a second can portray knowledge, experience, confidence, and warmth. A personal first impression that leaves a viewer feeling like they have met this attorney in the real world. 
• Group Photos: Just like a headshot doesn't only show the world what your clients look like, photos of practice groups are a way to portray stability and assurance. A great group photo shows the firm's strength as a team and its solidarity. To a client, it's a great visual message that they're not getting the knowledge and experience of just one person, but that a whole team of professionals. 
• Action Shots: Photos of attorneys in action are also a great visual representation of what your firm does for its clients. Peppering your website with images of your attorneys conferencing with each other around a boardroom table, pleading a case in a trial, or researching and analyzing documents will plant the seeds of service in a client's mind, helping them picture your people working hard for them. 

• Specialty: Does the photographer specialize in headshots? And do they have experience with corporate headshots for large groups? Sometimes photographers are known for wearing many hats and accepting any gig that keeps them shooting. Some can shift from one photography category to the next pretty seamlessly, but others have trouble, so make sure your photographer has experience specifically in headshots for companies and that they can prove their experience in their portfolio. If all you see are photos of weddings on their website, be careful of trusting them with corporate or commercial photography; they may not have done much of this. 
• Skill: Check the photographer's portfolio. Do the headshots in their portfolio reflect skill in posing and coaching so that everyone looks their best and most relaxed? Make sure their portfolio shows both consistency in skill and a range of looks to prove that they have listened to each client’s needs and crafted an image for their use that flatters them best. 
• Licensing: Sometimes staff headshots and corporate portraits can fall under a "commercial photography" category. Talk to your photographer before your session to make sure your shoot includes licensing to use the photos however you need. Standard copyright law assigns the copyright to the photographer, so a license needs to be prepared in order for you to use, publish, or alter the photos after they've been taken. Ask your photographer what the license would include and make sure there are no hidden fees for you to use, publish, and place the images in marketing pieces, or if there is a fee, that it is reasonable and understood beforehand.
• Organization: When putting together a group headshot, the hardest parts are scheduling time slots for each individual, finding and prepping a room for the photos, and figuring out how to get the people who can't be there on that day also photographed. Ask your photographer if they will help you make a schedule for the day, so each person is photographed quickly and easily, and keep workday disruption is at a minimum. And does your photographer have a plan for getting matching photos for stragglers, people who call in sick on photo day, or when you add new staff in the months and years ahead? 
• Personality: Talk to your head shot photographer before booking them and introducing them to your staff. Make sure they're friendly, professional, and can put people at ease, because their interaction with the photographer will show on their faces in their photos. We've actually heard a surprising number of stories from clients who switched to us from past photographers because they didn't present themselves professionally or they made people feel uncomfortable in one way or another. 
• Price: Don't be surprised or discouraged if you find a wide range in photography pricing while you're researching photographers for your project. Photographers price their services on a lot of factors, including their own costs, skill level, time, and availability. There isn't much of a set industry standard or rulebook for pricing, so just make sure all of the options in the package are spelled out ahead of time, and ask how the pricing will change if you add or remove people from the shoot or change the scope of the project.
  

Michelle Kaffko
Organic Headshots

Michelle Kaffko is the founder of Organic Headshots, a Chicago photo studio, and has been a portrait and commercial photographer for 15 years

Organic Headshots is a Chicago photo studio specializing in staff headshots, corporate portraits, and professional marketing images since 2005. 

www.organicheadshots.com

Can you afford to waste time and money?  Far from it.  So why put your dollars into futile marketing efforts?  You know that you must market or watch your firm die, but isn’t there a better way than just “staying busy” in marketing?

We believe that far too many firms jump into the marketing process without a clear vision and understanding of what they want to achieve and how they are going to accomplish it.  This can translate into many thousands of dollars wasted on advertising, inadequate website design, ineffective seminars, fruitless public relations campaigns, etc.  What is needed?  A PLAN, A PLAN! 

Strategic Marketing Plans: Basic Steps

There is truth in the statement “Failing to plan is planning to fail.”  A Strategic Marketing Plan involves several steps, including:

• Do a “situation analysis.” Before launching into new marketing programs, take time to analyze your issues and challenges. Look at the factors causing your firm to seek new marketing initiatives.  Are your current market segments profitable?  If your previous marketing and sales efforts have been ineffective, why?  Do you need to diversify?  Is the firm in danger of collapsing without new business?

• Select appropriate marketing techniques. Since marketing is based upon the needs and wants of your market, a single approach will not work for everyone.  While this seems obvious, too many firms fall prey to the latest fads in marketing, instead of carefully determining what will be suitable for their targeted market.  For example, a SEO (search engine optimization) campaign may be a great revenue generator for one type of firm but an abysmal failure for another.  An experienced marketing professional can help you to choose what is best.

• Identify your most profitable markets. Far too many firms lack a clear definition of their target market.  For example, don’t say that all of Orange County is your target market.  You must be more precise.  With over 100,000 businesses and 3.2 million people in Orange County alone, most firms cannot truly serve nor market to all of Orange County.  Consider criteria such as industry, location, service needs, fee threshold, etc.

• Establish realistic goals. Develop reasonable objectives for revenue growth, profitability, market share penetration, increased image, etc.

• Implement your program professionally! Don’t make the mistake of choosing the right tool (e.g., seminars) but then employing it in a useless manner (i.e., cheap, low budget).  Always maintain the same high quality in your marketing as you deliver in your service or product.  Make sure that you have an adequate amount of human and financial resources to support achieving these objectives.

Kevin W. Brown, M.B.A.

President of The Specialists in Law Firm Marketing™

Prior to starting his own firm, he was Director of Marketing for Deloitte in Orange County.  His firm specializes in marketing for small to mid-size law firms across California and the country.

Need Help?

With the increasing number of competitors in your market, it is more important than ever to have a plan of attack, i.e., a Strategic Marketing Plan.  Now is a great time to plan for success in the New Year. The Specialists in Law Firm Marketing’s “Strategic Marketing Plans” are aimed at helping our clients improve their marketing success.  Through our unique process, clients are able to be improve the effectiveness of their marketing efforts, while appropriately managing the use of human and financial resources.  Our goal is to help you work smarter, not harder. Contact Kevin Brown Marketing & Consulting to discuss your marketing needs. Click here to learn more about our marketing strategy services.

As I head to work on the Blue line, I can’t help but think, “Holy crap, it’s Tuesday, I’m so glad I can wear jeans today.”

My office recently switched to a, “Dress For Your Day” dress policy. It states that office attire can be more casual now, keeping in mind that it’s still an office and not the gym, but jeans can be worn every day. Dress For Your Day doesn’t necessarily mean wearing jeans every day. If you know you have clients coming in, if there’s a Big Dog in town, or if you need to represent the firm at an event, then business attire is expected (and we can temporarily suspend the policy office-wide if needed, of course). But how often does that happen? In an office our size, not much. Clients rarely come into the office anymore (and, frankly, a lot of them are relieved when they find out we’re a casual office) and when they do, they’re most likely only in the conference rooms/reception area. They’re not walking back to the attorney offices any longer like they did a long time ago. Also, as attorneys are working from home more  and more, or spending a significant amount of time traveling, the client presence in the actual office has decreased significantly.

Basically, office work isn’t necessarily happening in the office like it used to. So why dress for it? People work better when they’re comfortable. Some may equate casual dress with a casual attitude which will lead to a casual work ethic. My office has experienced none of that. We tried it out starting the summer of 2019, to see how it would go. We stressed that if we had to spend any Admin time on enforcing the policy that it would be revoked. At the end of the summer, when we addressed switching back, we realized that not only did we not have any issues, but the office was running perfectly and people were really happy. Also, we saw that people don’t always wear jeans. Except for when it is freezing out, we find that a significant number of people still wear business/business casual attire. However, just having the choice has had such a relaxing effect on the office.

This has also been an effective recruiting tool as well. Many lawyers and staff coming in are pleasantly surprised to learn that we have a more casual dress policy. Working at a law firm is stressful enough; this added touch conveys that you don’t have to dress seriously to work seriously. In fact, it’s easier to concentrate on work when you’re not worried about if your pants are too wrinkly and short or that your shoes are uncomfortable but they look so good with this dress. People are more productive when they’re able to focus.

Of course, different approaches work for different offices. Your office may see a steady stream of clients. Your office may have one significant client who recoils at the idea of paying the hourly rates that they pay and they expect people to dress the part. Or you’re just waiting for that one lawyer to retire who has old-fashioned ideas and still enough clout to enforce them. Maybe dip your toe in the water. If you’re interested in seeing if it’ll work, start with the last two weeks of the year, that’s an easy one since the office is usually half-staffed anyway. It’s an easy (and cheap) morale booster, that’s for sure.

The only downside I’ve found to this policy is that before we implemented it, I was starting to build up my closet a bit and I was getting on board with spending more money and time buying “work” clothes. (Getting into middle management will do that to a person.) If you know me, you know I’ve always prioritized comfort over style. I’m not a sloppy dresser, but you won’t hear me complain that my feet hurt. I was really embracing wearing dresses every day (they always have pockets). I was also getting used to spending ten minutes in the shower trying to decide what I would wear and if I had to steam it really quick or if I remembered to hang it up (we all have that chair in our bedroom, mine’s a bench). But now, when I go shopping, I’ll spend more money on nice jeans or a nicer sweater, knowing that I can wear it with those nice jeans to work or out with friends. And I spend that extra ten minutes in the shower practicing my Grammy acceptance speeches. Thank you for everything, mom.

All of this has resulted in me being less anxious about work. It’s interesting that something as basic as what I wear could have such an effect on me, but it’s true. Again, with the caveat that I’ve never been a fashion icon, this wasn’t a difficult jump for me. I’m not stressed in the morning about what to wear and I’m not thinking about how I look. My job can be physical – I’m running around a lot and moving things if needed, and putting my feet up on my desk is a stretch. I used to waste at least an hour a day saying thank you to all the compliments on my outfits; now I can go about my day in peace and just get my work done. I highly recommend it.

___________________________________________________________________

Kat Denk
Bryan Cave Leighton Paisner
312-602-5035
kat.denk@bcplaw.com

The corporate legal world is highly competitive, with thousands of law firms competing for the work from a lot of the same organizations. As a result, law firms must not be complacent. In this day and age, law firms are touting innovative solutions and products to meet the needs of clients in an effort to offer differentiating factors that could possibly give them a competitive edge. From the Internet of Things to blockchain to bots, from design thinking to AI, these innovative buzz words are now commonplace in the legal industry – but will they impact how clients purchase legal services? And furthermore, what is marketing’s role in the innovation process?

Bottom-line: mastering client service and embracing innovation are how firms will succeed against disruptive technologies and will beat their competition. This requires a combination of:

• Intrapreneurs – Individual forward-thinking attorneys that listen to their clients’ needs and create small, innovative solutions that are highly advantageous to clients.

• Marketing Professionals – An integrated network throughout the firm that also serves as the front line to clients. This group is the best mechanism to communicate broadly to attorneys about changes occurring in the market, while also promoting each intrapreneur’s success internally and externally, organically generating demand for change. 

What about Marketing’s role? Implementing the following strategies will help promote a firm’s innovative client offerings.

• Branding – Does your firm have a subsidiary in order to create and license proprietary technology solutions? Does it have its own logo and brand? Consider working with your in-house risk management team to set one up if you plan on launching new technologies. From there, make sure all offerings under this umbrella are branded including website content, email and social media graphics, event materials, collateral, etc.

• Website – Add a dedicated page to Innovation on your website. Be as specific as you can about your offerings and how they lead clients to victory. Include specific case studies, infographics, statistics, client testimonials and thought leadership pieces. Check the page monthly to keep it fresh. Search engines love new webpage content.

• Email Marketing – Have you built a targeted distribution list of clients and prospective clients that would be interested in any new innovative offerings? Solicit contacts from attorney intrapreneurs as a start and build from there.

• Internal Communications – Is there a page for Innovation on your intranet? Consider housing important “how to,” best practices and processes documents there and spotlight innovative ideas on the homepage. Include innovation-related successes in internal newsletters.   

• Blog – If you have a dedicated group of attorneys focused on developing innovative offerings for clients, prospects, start-ups, etc., a blog site might be a good consumable medium to explore. Frequent thought leadership can build the trust of clients and establish your attorneys and firm as a go-to resource. Be sure to link from your website to the blog and vice versa.

• Media Relations – Learn which media outlets in your area focus on innovation and entrepreneurship and offer to meet an innovation-focused writer for coffee to explain what your firm is doing in the area of innovation and who your firm’s intrapreneurs are. Follow and strike up a relationship with local start-up organizations; they often have newsletters that are looking for content. Search out innovation-focused events in your city and introduce yourself to reporters who cover them.

Law firms MUST stay relevant and the collaboration between innovation and marketing is KEY.

__________________________________________________________________

Stephanie Dorssom
Husch Blackwell
314.345.6646
 stephanie.dorssom@huschblackwell.com

Stephanie Dorssom is a marketing and communications professional that oversees and executes the development, production and maintenance of electronic and web-based communications. She is currently employed by Husch Blackwell LLP, a full service corporate law firm with 700 + attorneys located in 18 cities across the United States. Stephanie guides attorney business development and marketing efforts by making strategic recommendations to increase the online profile of the firm and individual attorneys. She routinely provides her firm’s attorneys with social media training and coaching by giving presentations at department meetings and by working with them individually. Stephanie is a Certified Social Marketing Professional through Hootsuite Academy. 

In Law, and every other profession, the firms with the strongest brands charge higher rates and generate greater profits. If you want to credibly charge more per hour, you must convince the market that your work is worth more. That is, you must either:

        (a) Start doing objectively better legal work than you’re doing now, or

        (b) Convince clients that your current work is worth paying more for.

The obvious problem is that it’s nearly impossible to do (a) and very few firms know how to do (b).

 What Separates the Leading Law Firms is: The Brand. 

In “Confessions of an Advertising Man,” advertising pioneer David Ogilvy said: 

“There isn’t any significant difference between the various brands of whiskey, or cigarettes, or beer.  They are all about the same. And so are the cake mixes and the detergents, and the margarines…  The manufacturer who dedicates his advertising to building the most sharply defined personality for his brand will get the largest share of the market at the highest profit.”

Clients tend to feel the same way about their law firms: “They’re all about the same.” And when services are similar, their pricing must be too. What separates similar-looking services and products is the brand. Studies show that the strongest brands in every industry lead the pack. Is Marlboro the world’s best-selling cigarette brand because they actually taste better than their competitors? Of course not. But people still pay extra for the red-and-white box. Why? The Marlboro brand.

 Building a strong brand is the single best investment a firm can make in its future fortunes.

After decades focusing their marketing departments on MarCom activities, savvy law firms in the 2010s started adding more business-development professionals. Now it’s time to move to the next level and add in-house branding expertise as well. Here’s how the pieces fit together:

• Marketing creates the opportunity, it tells prospects that you’re out there, it builds awareness and name recognition and helps add you to the short list.

•  Business–development activities help you get selected off the short list.

• Branding lets you charge more for it. A brand isn’t a logo or website. It’s your marketplace reputation. It’s the perception of value you create, the expectation clients have for the services you provide. A brand defines and sells the organization’s culture to its own personnel. IBM’s brand is why “no one ever got fired for buying” them. It’s the same for most of the AmLaw 50 firms.

Case in Point: Skadden’s dominance was created by Joe Flom’s branding brilliance

 Joseph Flom was the historic leader of Skadden Arps Slate Meager & Flom and was largely responsible for Skadden’s remarkable growth in size, stature, and revenue in the 1980s and ‘90s. Flom candidly admitted that he’d helped build the powerful Skadden brand proactively and strategically. In the early 1990s, he was an in-house marketer at Winston & Strawn.  Most major law firms at that time still considered marketing to be distasteful and beneath them. The widespread perception was that only mediocre firms would be so weak or mercenary as to proactively market their lawyers’ services or hire marketing professionals.

But Flom had seen an enormous opportunity and secretly hired 20 full-time in-house public relations professionals to broadcast the Skadden brand to the media.  Skadden quickly gained omnipresence―their deals were regularly written about in every major legal and business publication. They seemed to be absolutely everywhere.

Skadden quickly became the world’s best-known law firm, the first global law firm brand, the first firm with $1 billion in revenue.  Sure, they were great lawyers, but so were innumerable other top NYC firms that few executives outside of Manhattan had heard of. Flom was a visionary, possibly the most strategic marketer in the history of the legal profession. Skadden built their brand thoughtfully and intentionally. So can your firm.

 It’s time for law firms to hire Chief Branding Officers, like their corporate counterparts.

Nearly all major law firms today have a skilled Chief Marketing Officer (CMO) or Marketing Director. Some also have separate, independent Chief Business Development Officers (CBDO) or combined CMBDOs. In my 30 years’ experience, only a small handful of these skilled professionals deeply understand branding. It’s just outside of their skillset. Today’s big-firm marketers are mostly department administrators, attending meetings, managing the team, helping set priorities, and generally keeping things running smoothly―it’s a critical function. Very few of them know how to create and grow a true brand or have the time to do so. This is an enormous missed opportunity for firms looking to lock in their reputations or raise their rates.

 The brand is the reason that the top firms get to charge more money.

A brand is what persuades nervous clients to pay much more per hour for big firm work they could get at similar (some would say superior) quality at smaller firms. “No one ever got fired for hiring Skadden.” Or Kirkland & Ellis. Or JonesDay. Or the other top brands, whether large or small firms.

 Case Study: BCLP.

Do you know what “BCLP” is? Consider the recent merger of two quality firms, US-based Bryan Cave and UK-based Berwin Leighton Paisner, now called “BCLP” for Bryan Cave Leighton Paisner.  This new 1400-lawyer global BCLP firm is building its brand from scratch. The most-common naming convention would be to select the biggest or best-known of the merger partners, or the one with the name that worked best in multiple languages (here that would have been Bryan Cave) and call themselves “Bryan Cave Leighton” or “Bryan Cave Leighton Paisner” with the plan to gradually lapse to simply “Bryan Cave,” a short, simple, memorable, and easy-to-spell name that should work in languages worldwide. 

Of course, as easy as these decisions are in theory, they can be difficult emotionally and politically. Although I have no inside knowledge of the BCLP naming negotiations, I’ve been involved in at least 50 of these discussions in other firms worldwide. The decisions are commonly made to salve the professionals’ egos rather than select what’s in the long-term strategic interest of the larger organization or its critical brand. 

Some early indications suggest that the combined firm will primarily use “BCLP,” rather than the firms’ actual names. If true, the new “BCLP” firm could be starting at a disadvantage. Nine-hundred-lawyer Bryan Cave was founded in 1873, with 25 pre-merger offices. Berwin Leighton Paisner’s 675 lawyers worked from 14 offices in 11 countries, dating to 1970, with its constituent parts dating back as far as 1932.  That’s a lot of boots on the ground pushing out those firms’ names to global buyers of big-firm legal services.

However, the “BCLP” letters have no legacy, no reputation. Few high-powered executives in 2019 were bellowing, “Get me BCLP!” For credibility in new-business meetings, the firm’s lawyers must say e.g., “We’re the old Bryan Cave firm.” So, someone needs to build the BCLP brand, and fast. Someone must be singularly focused on persuading the marketplace that “BCLP” lawyers are worth US $1000+ (~885 Euros) per hour. And that’s not what most CMOs do. They’re pulled in too many other important directions and rarely have that expertise. Every leading firm could benefit by having someone fiercely dedicated to figuring out what their unique story is, how it’s different. What makes it better than its competitors. And how to tell that story persuasively to the marketplace day after day. Month after month. Year after year.

That’s simply not a skillset most CMOs possess. A leading legal CMO-headhunter recently told me that law firms don’t understand the value of their brand and they’re not hiring for that skill. That’s such a missed opportunity―a skilled Chief Branding Officer can have more impact on a firm’s profitability than nearly every other C-level position.

 Imagine the growth in revenue and profitability if every single lawyer was perceived by its buyers to provide significantly more value? How much more profitable would a firm be if it could raise every lawyer’s rates by $25 or $100 or more per hour? How much stronger would it be if it could attract the top laterals and recruits?  Firms with the strongest brands can do that. 

Big firms need their own Joe Flom, someone purely focused on making the firm a must-use entity.  Someone must be in charge of persuading the best laterals that their fortunes would be greatly enhanced if they left the high-quality firm where they’re currently working to join this new organization. Someone must convince the marketplace that their professionals are worth paying a sizable premium for.

That’s what a skilled CBO can help accomplish. The major corporations understand this and are desperately focused on building and maintaining their brand. It’s why people pay extra for fungible Marlboro cigarettes or Nike shoes, or drink Coke rather than Pepsi regardless of objective taste tests. And it’s why “no one ever got fired for buying Skadden.” 

____________________________________________________________________

Ross Fishman

Fishman Marketing

ross@fishmanmarketing.com

Among the main concerns I hear with clients and prospective clients in regard to social media are, “How do we know if we’re doing the right things? What should we measure? How do we know if we’re winning’?”

Above all else, I’ve found one strategy that works with EVERY client, and I’ll share that strategy with you shortly. First though, a little background on where this comes from.

When I was just out of college, I had the good fortune to be hired by IBM. Big Blue describes its three core values as:

• Dedication to every client’s success;

• Innovation that matters, for our company and for the world; and

• Trust and personal responsibility in all relationships.

My time at IBM taught me that if you have core values — that are written and accepted by fellow IBMers — you’d better live those values. Putting clients first, innovating for the sake of mankind, and trust in all relationships all sound like great aspirations, but I saw them in action every day in our company. In sum, these three core values were both genuine and authentic.

As a result of that experience, I’ve held IBM and its research in the highest regard. I know the quality of its data is both world class and, more importantly, something from which we can learn and take action. Check out this recent IBM study of 4,800 CxOs (CEO, CFO, COO, CIO, CMO, etc.):

IBM posed this question: “What is your biggest barrier to an integrated digital-physical strategy?”

The overwhelming response? Sixty-three percent said they lack a cohesive social media plan. What does this tell us? Determining where social media fits in your existing business is really hard. What you say (messaging), where you say it (platform), and how often you share (frequency) are all factors — amongst others — that determine your success. Without a plan, though, how do you know what success really looks like?

Going a step further, if you observe a company actually doing social media well (i.e., large follower counts and high engagement on posts), it may be a little tough to determine why it’s actually working. Should you simply emulate what they’re doing? What if the techniques they’re using are not appropriate for your target audience?

There’s one strategy you can implement today that will make things dramatically easier for you; however, like IBM, be genuine and authentic in all things social media.

Most of the emerging social media platforms (like Instagram Stories and Facebook Live) can be summed up in one simple word: unproduced. Instead of content that is highly edited or refined by a graphic designer, users are typically uploading photos or videos directly from their phones with very little concern for lighting, sound quality, or finishing touches.

If any editing is done whatsoever, it will consist of simple captions, a filter to emphasize feeling or highlight a particular location, or even drawings on the screen.

What does the rise of these emerging platforms and techniques tell us? People using these social media platforms desire simple, raw content. They value authenticity first, production-quality second. They want to see if you really are who you say you are.

As an example, I personally advocate that businesspeople like me consider exercising and producing content (writing articles, etc.) first thing in the morning. Before the workday begins, and before things get too hectic, you can create a Personal Branding Power Hour to begin your day on a fantastically productive note.

To support my assertions, I provide proof on social media documenting how I actually do these things myself. I take a quick snapshot or video with my phone, share the proof with my audience, and get back to work. 

Every one of us with a smartphone currently owns our own media company. At any time, we can show the world what’s going on around us, and our audience can share in our experiences. As both an individual and as a representation of your business, what are you sharing with the world?

Do you highlight your outstanding customer service as a component of your business? Prove it. Show your audience that you’re practicing what you preach. Do you tout the quality of your products and production process? You don’t need a professional film crew to create a documentary. Use the smartphone in your pocket to provide proof now.

Regardless of what social media platforms you use, adopt a culture of genuine, transparent behavior. This mindset will position you as an outlier in the most positive sense possible, and you’ll engender trust with your target audience. When developing your social media strategy, start with this word: authentic.

__________________________________________________________________

Spencer X Smith is the founder of  AmpliPhi Social Media Strategies, and an instructor at the University of Wisconsin and Rutgers University in their Mini-MBA program. He was formerly a VP of Sales for two Fortune 100 companies. Spencer's been called a "Social Media Expert" by Forbes, and has spoken at over 250 events since 2015, including a presentation at the New York Stock Exchange in 2017. He’s also presented at 16 Association of Legal Administrators (ALA) and Legal Marketing Association (LMA) events, including the ALA Annual Conference. Spencer regularly writes columns for Marketing The Law Firm and the American Bar Association, and his book ROTOMA: The ROI of Social Media 'Top of Mind' is an Amazon bestseller.

AmpliPhi Social Media Strategies, Founder

 I work for: Savills

My title is: Vice Chairman, Director, Chief Diversity Officer

The company's product or service is: Tenant Rep.

The company has/is: A global tenant rep firm focused on the occupier of office space.

Before becoming a business partner to the legal market, I was: In college 😊 

I entered the legal market because: Law firms are a big part of our practice and appreciate the firm’s no-conflict platform.  

I have a degree in: Communications and Economics.

I support ALA because: I’d like to get to know more about the challenges law firms are facing; and to become a resource for administrators.

To be successful in the legal market, one has to: Know how to build consensus.

The thing I like best about being a business partner to the legal market is: They tend to understand negotiating.

The best advice I have received is: Never make assumptions

The best advice I would give to someone just entering the legal market is: There is usually more than one decision maker, and you should endeavor to understand the objectives of each.

I try to motivate myself and/or my staff by: Not focusing too far into the future, just doing the best we can do for that day. 

Three things I do well are: 1) Communicate, 2) Negotiate and 3) Maintain a sense of calm.

While I love my current job, my dream job would be: Investigative Journalist

The last good book I read was: Range

The last good movie I saw was: 1917

The last vacation I took was: Morocco

In my free time, I: Like to invest in start-ups, ride my new Peloton, play with my daughter’s dog and read.

In recognition of Larry Fujara’s 33 years of outstanding service to the chapter (and counting!), we presented him with the first ever ALA Chicago Lifetime Achievement Award at the November Bi-Monthly Luncheon.  The Board of Directors created this award as a way to recognize chapter members whose commitment to professionalism, dedication to the advancement of the legal management profession, and record of long-term service set the standard for all who aspire to achievement, excellence and success.  It was obvious to all of us that Larry should be the first recipient of this award, which was well earned over more than three decades of exceptional work advancing our profession through mentoring and counseling of others, and by developing new and novel approaches in educational programming and knowledge sharing.  

Larry has a long and distinguished record of service and leadership in the Chapter in a number of different positions and capacities over an extended period of time.  Larry Fujara first joined both the ALA Chicago Chapter and the Law Office Managers Association of Chicago (LOMAC) back in 1987.  

• In 1988/89, he helped organize the first Chicago Vendor Expo held in Katten Muchin’s conference rooms.  This event has continued ever since, and is now known as the Bi-Annual Conference.

• In 1989, Larry put together the first annual Chicago Salary Survey.  He has served continually on the Salary Survey Committee since its founding in 1989.

• In 1990, as President of LOMAC, Larry collaborated with Bruce Weisseg (President of ALA Chicago) to merge the two organizations.  This combination established healthy financial resources and a critical mass of member enthusiasm for the Chicago Chapter that served as the foundation for our sustained success over the past thirty years.

• In 2002, Larry served as President of ALA Chicago and has been on the Board almost continually through March of this year, with only two short breaks, and has frequently been a member of the Board’s Financial Reserve Committee.

• He helped formed our Midsize Law Firm group, the first of the many networking groups that now form the basis of much of our member engagement.

Larry Fujara has continually been a source of innovation and creativity throughout his 32 years in the chapter.  He has played a key role in wide range of successful initiatives. Here are some recent examples:

• The Pop-up Education Sessions, which we put together quickly around fast moving topics of the moment like the MeToo Movement and GDPR.

• Incorporating business partners more fully into our educational programming, such as our Real Estate Law Office Tours.

• Panel presentations by law firm and business partner experts, such as our Financial Analytics Panel.

• And our wildly successful 40th Anniversary Dinner!

Over the years, Larry has made a priority of appreciating and enjoying the company of his fellow chapter members and business partners.  Whether it is sharing a laugh over a drink or answering a question about a work issue, he always makes you feel important. Through those countless personal connections and social interactions Larry has helped forge our incredible ALA Chicago community.

Larry has been an inspiration to us all - his sustained and energetic commitment to excellence and innovation is legendary!  We all look forward to many more years of creativity, collaboration and celebration with Larry!

When I was incoming Chapter President in the Spring of 2001, my President’s Message included this story:

On a recent Monday morning, my ten-year-old son suddenly remembered a homework assignment that was due that day.  His Sunday marathon of completing his fourth grade homework was not quite complete. He was to create an animal or insect out of things from our backyard.  He chose to make a butterfly. At 6:30 a.m., we found ourselves foraging outside for the right materials to form a body, wings, and antennae. By 7:30, the butterfly was complete, Jeff had been dropped off at school, and I was on the train….  How great that the two of us worked together – Jeff collecting his materials and carefully gluing them to the paper; me giving advice, watching the clock, holding down different butterfly “parts” while the glue dried as he went on to the next “part.”  

People working together to complete a project under pressure and a time deadline.  Where have we experienced that before – every day at work perhaps? Whether we are assisting and supporting our children, peers, staff or our firms’ attorneys…helping them complete an assignment…collecting information…putting together a proposal…implementing a change…getting through the day…we rely on all of our resources to collect all of the different “parts.”  

A key resource that I have certainly mined – and you should, too – is ALA.  Whether it is building relationships with members of our Chapter or members around the country, I know that there is someone (or many someones) I can contact with a question, problem or, yes, when I just want to vent.  Tap into the great knowledge, experience, and support that your fellow members can provide! Our networking opportunities, combined with the high caliber education that we have access to, are unparalleled in our industry and are indispensable to our success as law firm leaders.

Membership renewal time is here - keep those benefits coming.  ALA Chicago’s 2020-2021 membership renewal process is in full swing – renew prior to December 31 to save $25 off our regular membership of $100.  This low membership fee includes access to all of our education, networking events, list serves, and newsletter. Remember our current membership year ends on March 31, 2020, and many opportunities for education and networking still remain.  

Be sure to renew your national membership with ALA prior to December 31 to take advantage of the wide range of benefits, connections, and educational offerings.  Also, be sure to register for the national ALA Conference in May in Salt Lake City. It is the premiere event of our association and you will not want to miss it.  Our Chapter still has some conference scholarships to award in the new year!

Want to gain more from your membership?  Volunteer! Our Nominating Committee is seeking members who are interested in serving on committees that support our Chapter’s programs and initiatives.  Be sure to contact Mike Motyka, Past President and Chair of the Nominating Committee, if you are interested. Your partnership with ALA will be more gratifying and meaningful as a result of becoming involved.  Many opportunities exist for micro volunteering; we know your time is valuable!  

I should close the loop on Jeff, who will be thrilled to learn of his mention.  He is now 28 and no longer has last minute school projects.  Jeff will be traveling this Christmas to meet his two-week-old niece, Jane – our first grandchild.  

My best wishes to all for a very happy holiday season and a joyous and healthy 2020!

Laura T. Sears, CLM
Gould & Ratner LLP
312-899-1660
president@alachicago.org

It is a snowy January day in Chicago, recreational marijuana is now legal, and one of your employee’s, Mary Jane, is sleeping at her desk, with a strong scent of marijuana emitting from her sweater. How can an Illinois employer prepare to address Mary Jane’s conduct this January?

The Illinois Cannabis Regulation and Tax Act (the “Cannabis Act”) dedicates an entire section, Section 10-50, to things that employers can do under the Cannabis Act to protect itself and address an employee’s at work impairment, including:

An employer may still have “reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis on the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.”

An employer can still discipline or terminate an employee for violating an employer’s workplace drug policy or employment policies.

An employer can discipline an employee based on a good faith belief that an employee is under the influence or impaired. The Cannabis Act identifies a number of symptoms an employer can consider to support its good faith belief of impairment. However, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

Using the express protections set forth in Section 10-50 as a guide, employers can consider the following action items to prepare for the effective date of the Cannabis Act and build support to take a cannabis based disciplinary action against Mary Jane.

First, the Cannabis Act highlights the importance of Illinois employers having a written workplace drug policy in place as of the effective date of the Cannabis Act. Companies without a policy will find it more difficult to defend against a claim of violation of the Illinois Right to Privacy in the Workplace Act (the “Right to Privacy Act”), should the company want to take action against an employee suspected of drug use on the job.

The Cannabis Act amends the Right to Privacy Act, which prohibits employers from restricting employee use of “lawful products” away from work, by incorporating employer workplace protections set forth in Section 10-50 of the Cannabis Act as exceptions to the Right to Privacy Act. The proper interpretation of this amendment to the Right to Privacy Act should be that even if an employee ingests marijuana legally in Illinois while off-duty, but the employer has a drug-free workplace policy and an employee tests positive for marijuana in her system, the Cannabis Act should allow an employer to terminate that employee without violating the law.  Indeed, during debate on the bill, a sponsor of the Cannabis Act acknowledged that the purpose of incorporating Section 10-50 of the Cannabis Act as an exception to the Right to Privacy Act was to allow employers who provide a zero tolerance or drug free workplace policy to implement and enforce their policy without fear of violating the Right to Privacy Act. Companies without workplace drug policies in place will be unable to rely on a violation of company policy as a reason for disciplinary action, but instead may be limited to disciplining the employee for having a “good faith belief” that the employee was impaired or under the influence at work.

Second, an employer seeking to take disciplinary action based on a “good faith belief” that an employee is impaired or under the influence on the job must provide the employee with a reasonable opportunity to contest the basis of the determination.  As evidence that a reasonable opportunity was provided, employers should establish a written procedure for employees to be able to contest a cannabis-based disciplinary determination and communicate this procedure to its employees.

Third, employers should train supervisors on marijuana-related impairment signs and procedures to follow as a result. The Cannabis Act provides specific symptoms to look for when making a determination that an employee is “impaired” or “under the influence” of marijuana. The symptoms include the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment or machinery, disregard for the employee’s own safety or the safety of others, involvement in any accident resulting in serious damage to equipment or property, disruption of a production or manufacturing process, and carelessness that results in any injury to the employee or others. Supervisors should be trained on how to recognize, properly document and promptly report the signs of impairment due to suspected marijuana use. This training will be very helpful in establishing that an employer had a “good faith belief” that Mary Jane was impaired on the job and therefore that discipline was warranted and lawful.  This training should also include reminders that company policy must be applied in a nondiscriminatory manner.

Fourth, employers should review and update their reasonable accommodation policies, as employers may need to engage in an interactive process and make an effort to accommodate an employee’s off-duty use of medical marijuana. Recent rulings in federal and state courts outside of Illinois have found that the use of medical marijuana may be a reasonable accommodation under the state’s anti-discrimination statute for an employee, when the use is outside of working hours and does not adversely affect safety or job performance. Illinois previously enacted the Compassionate Use of Medical Cannabis Pilot Program Act and the Opioid Alternative Pilot Program, both of which allow patients diagnosed with specified medical conditions to possess and use medical marijuana. Section 10-50 of the Cannabis Act specifically states that nothing in the Act shall be construed to diminish protection afforded by the Compassionate Use of Medical Cannabis Pilot Program Act or the Opioid Alternative Pilot Program. Thus, if Mary Jane contests her employer’s impairment determination by informing her manager that she has a medical marijuana card for her Crohn’s disease, her employer may need to engage in the interactive process with Mary Jane, prior to taking a disciplinary action.

In sum, an Illinois employer seeking to protect a cannabis-based disciplinary action should do what a reasonable employer should do under the Cannabis Act. That is, promulgate a reasonable workplace drug policy, enforce it in a non-discriminatory manner, train its staff, maintain an effective system for employees to contest a cannabis-based impairment decision, and communicate these policies to its employees.
__________________________________________

Kathleen A. Barrett is an Associate in the Employment, Labor & Workforce Management practice, in the Chicago office of Epstein Becker Green. She advises and trains employers and industry stakeholders on compliance with recreational and medical marijuana (cannabis) laws recently passed in many states, including workplace drug policies, disciplinary action policies, and accommodations.

Kathleen Barrett
Epstein Becker Green
312-499-1419
kbarrett@ebglaw.com

Flex time, not face time

It used to be that ambitious legal professionals were expected to spend long hours in the office to demonstrate their commitment to their work. Today, more attorneys and paralegals are seeking flexible hours, including working from home or the local coffee shop. While they’re still logging in long hours, this generation of legal professionals doesn’t feel the need to be tethered to a physical desk in the office.

In a recent survey by our company, nearly 6 in 10 lawyers (58%) cited flexible scheduling as the top policy to help them strengthen work-life balance. Remote work arrangements ranked second in the survey, with 57% of the response. Nearly 7 in 10 respondents (68%) said that the number of lawyers at their law firms/companies who work remotely has significantly or somewhat increased in the last 12 months.  

As the number of legal professionals who telecommute increases, many employers are reducing the physical size of their offices, reconfiguring workspaces and becoming more creative with design. Traditional office space is being reduced in many cases in favor of more open work areas that enhance collaboration and teamwork.

Encouraging balance, improving job satisfaction

Work-life balance perks also are playing a more significant role in retention. Employees consistently cite flexible scheduling, telecommuting and time-off policies as the top reasons to remain with an employer. Law firms and corporate legal departments can promote work-life balance in a variety of ways to improve employee productivity and job satisfaction. Here are seven tips:

1. Ask for employees’ input – Have legal team members complete a survey to identify work-life balance factors they consider most important. Request suggestions on changes they believe would enable them to more successfully manage career and personal priorities. And importantly, regularly include work-life balance issues as a topic in meetings and review sessions so you can adjust policies as needed. 

2. Recognize that work-life balance means different things to different people – Employees often have different perspectives regarding balancing career and personal goals. While many professionals value flexible work hours, others may consider the ability to work from home as their highest priority. With each individual, discuss what you can do to help support them in striking a good balance to address their needs. 

3. Embrace flexible work alternatives – Employees consistently rate flexible work arrangements as key to achieving work-life balance. Offer a range of flexible options – such as compressed work week, remote work opportunities, reduced hour requirements, job sharing, non-partner-track positions, flexible personal days and vacation time; also, be understanding and flexible when employees request time off to manage responsibilities outside of the office.

4. Encourage more efficient work practices – Arm your legal team members with tech resources that aid with routine tasks, increase collaboration and facilitate remote work arrangements.

5. Put a premium on healthy activities – Encourage employees to take short breaks; provide health and wellness resources to workers, such as access to fitness facilities or gym memberships or stress or time management training programs.

6. Manage burnout quickly – Recognize the warning signs of employee burnout, such as irritability, recurring sick days, decreased productivity or diminished quality of work. Immediately address the situation by encouraging the individual to take time off to refresh and implement changes to mitigate chances of future burnout. Also, consider alternative staffing solutions, such as hiring consultants or contract personnel to reduce workload pressures for the entire team. 

7. Walk the talk – Managers should model work-life balance behaviors. When you encourage employees to disconnect from work activities when out of the office, you need to do the same. When you take vacation time and totally unplug, it shows staff that it’s appropriate for them to do likewise. Lead by example and demonstrate that you value and respect employees’ personal time off.

These workplace trends reflect the need for the legal profession to remain nimble and responsive to client needs. As law firms and corporate legal departments realize, their future success depends largely on their ability to adapt to a changing business landscape.

______________________________________________________

Jamy J. Sullivan is executive director of Robert Half Legal, a premier legal staffing service specializing in the placement of attorneys, paralegals, legal administrators and other legal professionals with law firms and corporate legal departments. Based in Menlo Park, Calif., Robert Half Legal has offices in major North American and global markets and offers a full suite of legal staffing and consulting solutions.

Jamy J. Sullivan
Robert Half Legal

With the election of a new democratic governor in Illinois, 2019 saw significant legislative changes to the employment laws in the State.  This makes it difficult for many employers to keep up with all their obligations under the ever-evolving laws. Several significant new laws will go into effect on January 1, 2020 which will change the way employers operate.  Several important changes which apply to firms and companies of all sizes should be noted.

Illinois Workplace Transparency Act

On August 9, 2019, Governor J.B. Pritzker signed the Illinois Workplace Transparency Act (WTA) which amends multiple state laws that affect Illinois employers or employers whose employees work in Illinois. Below is a brief overview of the more significant provisions of this omnibus legislation.

Non-disclosure and disparagement provisions in employment agreements

The WTA bars agreements that prevent former, prospective, or current employees from reporting to federal, state or local authorities unlawful conduct, including criminal conduct and unlawful employment practices, such as sexual harassment, discrimination, and retaliation.  Additionally, the WTA bars the use of unilateral non-disparagement and non-disclosure agreements that demand confidentiality relating to discrimination, harassment and retaliation as void and against public policy. 

The WTA permits, however, parties to enter into mutual agreements that “include provisions that would otherwise be unilateral and against public policy” only if the agreement: (1) Is in writing; (2) Demonstrates equal, actual, knowing, and bargained for consideration from both parties; and (3) Acknowledges the employee’s right to report good faith allegations of unlawful employment practices and criminal conduct to authorities, to participate in proceedings with enforcement agencies, to make truthful disclosures required by law, and to request and receive legal advice. 

Arbitration agreements related to employment

The WTA bars any unilateral agreement that attempts to waive, arbitrate or diminish the right to pursue existing or future claims of harassment, discrimination or retaliation under federal or state law.   The Illinois Uniform Arbitration Act was similarly amended to require arbitration agreements to comply with the provisions of the WTA to be enforceable, with exceptions for hospitals and health care providers.

It should be noted, however, that the lack of clarity in arbitration law over the meaning of the terms substantive and procedural rights as well as difficulties reconciling the arbitration provisions of the WTA with the Federal Arbitration Act will result in litigation to determine the extent to which the WTA’s arbitration provisions are enforceable. 

Non-disclosure and disparagement provisions in settlement or termination agreements

Settlement or termination agreements with unilateral provisions barring disclosure of harassment, discrimination and retaliation are prohibited. However, the parties may agree mutually in writing to a confidentiality provision in a settlement or termination agreement regarding unlawful employment practices so long as the following conditions are met:

• The agreement is mutually agreed to by both parties and is the documented preference of the current, former or prospective employee;

• The agreement applies only to claims arising before the execution of the settlement or termination agreement;

• The agreement is supported by valid bargained for consideration;

• No waiver of unlawful employment practices exists for events that occur after the execution of the agreement;

• The agreement provides the current, former or prospective employee 21 days to consider the agreement and to consult an attorney prior to execution; and

• The agreement is not effective until the expiration of a seven-day revocation period.

Current, former and prospective employees who successfully challenge the validity and enforceability of an agreement under the WTA are entitled to costs and attorney’s fees. 

The Illinois Human Rights Act

The WTA makes several changes to the Illinois Human Rights Act (Act).

The WTA significantly extends a cause of action for harassment to cover unwelcome conduct based on an individual’s “actual or perceived”  race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, sexual orientation, pregnancy, unfavorable discharge from military services or citizenship status that substantially interferes with work performance or creates an intimidating hostile or offensive working environment. Additionally, the definition of work environment protects the employee beyond the physical location to which the employee is assigned to work. 

The WTA extends the protections against harassment to non-employees. Employers will be held liable to non-employees and employees for harassment by non-managerial, non-supervisory employees to the extent the employer is aware of the harassment and fails to take corrective action.

The WTA also places a new obligation on employers to institute annual mandatory sexual harassment prevention training for virtually all employees who work in the State of Illinois. The training program must either use a model sexual harassment prevention training program developed by the Illinois Department of Human Rights (Department) or another program equivalent to the Department’s program. Failure to institute the mandatory training program subjects the employer to civil penalties.

Lastly, beginning on July 1, 2020, the WTA places a new obligation on employers to disclose annually to the Department any final, non-appealable, adverse judgment or administrative ruling against it in the preceding year for any discrimination, harassment or retaliation actionable under the Act in favor of an employee or nonemployee to whom the employer owes a duty under the Act. Additionally, the Department may also require an employer which is a party in an investigation by the Department to disclose the total number of settlements the employer has entered into for up to the past 5 years regarding an alleged act of sexual harassment or unlawful discrimination by category of protected characteristics. The employers are barred from disclosing the names of the victims. Data submitted by the employer is exempt from disclosure under FOIA. Employers that fail to comply with the disclosure requirements are subject to civil penalties. The mandatory disclosure requirement includes a sunset provision repealing the disclosure obligation as of January 1, 2030.

Victim Economic Security and Safety Act (VESSA)

VESSA, a law which helps victims of domestic and sexual violence, was expanded to include gender violence. Gender violence is defined as violent or aggressive acts that are committed at least in part on the basis of a person’s actual or perceived gender or sex and that constitute a criminal offense. This includes coverage of electronic communications on social media, website or application. 

The Illinois Cannabis Regulation and Tax Act

In addition to the significant changes put in place by the omnibus WTA legislation, on January 1, 2020 the Illinois Cannabis Regulation and Tax Act (the “Act”) will go into effect.  The Act will legalize the recreational use of marijuana in Illinois. While medical marijuana use has been legal in Illinois for several years, the legalization of recreational use will bring about many challenges for employers.

Under the Act, employers may not discipline or terminate employees for a positive marijuana drug test unless the employee is intoxicated on the job.  Employees who are fired or disciplined for off-duty use may sue their former employer for lost wages and legal fees under the Illinois Right to Privacy in the Workplace Act.  

The problem for Illinois employers at this time is that there are currently no tests available which will show whether an employee is intoxicated by marijuana at the time of testing.  Current tests can detect marijuana in a person’s system going back almost a month. This puts Illinois employers in a difficult position. Until new testing is developed, or the law is changed or developed through case law, employers will have to tread carefully when terminating employees for a positive marijuana drug test.

_______________________________________________

Anne Mayette, Attorney at Husch Blackwell, concentrates her practice on matters involving business and commercial litigation, with a specific focus on commercial lease disputes and employment law.  Anne has significant experience with employment law, including unpaid wages, minimum wage and overtime violations, FMLA, ERISA, employment contracts, breach of contract, shareholder derivative actions, and employment discrimination claims under Title VII, ADEA and ADA.

Anne Mayette

Husch Blackwell

312-341-9844

anne.mayette@huschblackwell.com

My name is: John Kampas

I work for: EMPIST LLC

My title is: Founder & CEO 

The company's product or service is: Providing businesses with IT & digital solutions.

The company has/is: A Managed Services Provider (MSP) with a full web development and digital marketing team.  

Before becoming a business partner to the legal market, I was: EMPIST has always been a part of the legal market. It continues to be one of the biggest verticals we work in. One of the reasons our headquarters is based in Chicago is to be present within the legal industry hub. Beyond the legal industry, we work with several professional service firms such as insurance, finance, property management, non-profits, and associations.

I entered the legal market because: We entered the legal market because we saw a high demand for technology there. In the legal market today, there is a dependence on the use of technology to provide quality services and a need for IT outsourcing to help legal professionals do their job.

I have a degree in: Management Information Systems (MIS) from Loyola University Chicago.

I support ALA because: Partnering with the ALA connects us to a great network of legal administrators, some of whom we work with regularly. Our partnership has also given us more insight into what our legal clients are struggling with most in the tech space. 

To be successful in the legal market, one has to: Be innovative with their services to align with the high demands of the legal market. Especially when it comes to compliance, Document Management Systems (DMS), and cybersecurity.  

The thing I like best about being a business partner to the legal market is: The ability to be involved in an industry that is adopting tech at a rapid pace. The legal industry is primed and ready for a tech overhaul and it’s very exciting to be a part of that.

The best advice I have received is: “Family first”. It’s easy to get caught up in the little things, but ultimately nothing is more important than family. I’ve tried to apply this mentality to running EMPIST, as well. We are one big family, and that’s priority number one.

The best advice I would give to someone just entering the legal market is: Get involved with the community. The legal industry is very driven by word of mouth and referrals, so the best thing you can do is get connected and attend events.

I try to motivate myself and/or my staff by: Trusting my team to make the right decisions and take care of business. I believe people thrive when they feel they are trusted. Micromanaging is the worst thing you can do when trying to motivate a team.

Three things I do well are: Cooking, basketball, and educating on technology.

While I love my current job, my dream job would be: Working at EMPIST is my dream job. It's been so rewarding to watch this company grow, and I'm excited to continue to watch it expand in the years to come. If I had to pick another job, I've always thought being an astronaut would be an interesting occupation.

The last good book I read was: Traction: Get a Grip on Your Business (By: Gino Wickman) 

The last good movie I saw was: Rocky IV. 

The last vacation I took was: In Greece to celebrate an employee’s wedding.  

In my free time, I: Enjoy spending time with family and friends and playing/watching basketball. 

My name is: Larry Fujara

I work for:  Pattishall, McAuliffe

The firm & practice is:  Trademarks, Copyright,
Advertising Law both Litigation and Transactional

My title is:  Executive Director CFO/COO

Before becoming an Administrator:  I was an Assistant Controller and Foreign Operations Director
for a global marketing consulting firm.

I have been working in the legal field for: 33 years

I joined ALA Chicago Chapter because:  There was no such organization for consulting firm administration but I had always wished there was so upon joining a law firm and hearing about the ALA, I was quick to join.

To be successful in legal administration:

1) Listen
2) Be confident in your decisions and not afraid to make the unpopular call (after fully exploring the options)
3) Be friendly to all

The thing I like best about being an Executive Director is:  Having a seat at the table and influencing the strategy and direction of the organization.

One of the challenges of being in legal administration is:  Gaining and maintaining the trust of all your constituents (attorneys and staff).

The best advice I've ever received is:  Never get bored or complacent in your role. It's easier to just change jobs than to reinvent yourself regularly. So take the harder role and keep reinventing yourself.

The best advice I would give to someone who is just entering the legal management field is:  As Aaron Burr says in HAMILTON, "talk less, smile more" until you understand the underlying relations in place in your organization.

I try to motivate my staff by:  Leading by example.

If I weren't an Executive Director, I would:  Be a legal industry consultant.

The last good book I read was:  Actually my third re-read over the past decade, THE SECRET by Rhonda Byrne (powerful stuff!)

The last good movie I saw was:  Cars 3 (I'm a Pixar fan).

The last vacation I took was:  A long weekend in Maine and a week in the California desert enjoying the sunshine and mountains.  Aruba is next!

The one appointment I never miss is:  Chicago ALA Salary Survey Committee meetings (over 30 years now).

In my free time, I enjoy:  travel, golf, landscaping, spending time outdoors and following the Blackhawks.

Like Chicago, the city of Seattle was also leveled by a great 19th century fire. In 1889, an assistant in a woodworking shop was heating glue over a gasoline fire when the glue boiled over and spilled onto the turpentine and wood chip covered floor. 

You can imagine what happened next.

Nearly every building was made of wood, the city had a barely-existent fire department, and the weather was breezy and dry. After just over 12 hours, 25 city blocks had burnt to the ground. 

Such is life in the 19th century. Fortunately, the people of Seattle weren’t stuck with a cow to blame.   

In the rush to rebuild the city, Seattle’s population doubled and the new town, replete with modern brick buildings, would sit several feet higher than the original. The fire also led the city to abandon its all-volunteer fire department in favor of a professional one and took control over the water supply. 

Voila, no more catastrophic fires. 

With my ALA Chicago chapter scholarship, I was afforded the opportunity to visit 21st century Seattle to attend the ALA Master Class: Leadership for Legal Management Professionals from Oct. 21 through 23. The class’s aim was to give firm leaders more tools to handle the myriad law industry changes, the personnel they must bring through those changes, and the stress that all of that combined can put on a person. The two-day workshop offered two tracks for attendees to develop these skills: Change Agent and Soft Skill. I chose the Change Agent track because I felt it was the most pressing issue as law firms adjust to a rapidly changing technological landscape vis-à-vis client demands. 

First, Debbie Foster of Affinity Consulting kicked off the event with a trenchant lesson on mindful leadership complete with a group breathing exercise— (relearning how to breathe was crucial to her talk)—and an inspirational country rock song to close. These somewhat awkward bits aside, Foster nailed it when she talked about how patience and empathy are key to being a mindful leader. “Connect with people, know their stories, talk about what’s on their cubicle walls,” Foster said. “We need to pay attention.” When you start with empathy, you begin to listen—and that will eventually lead you to the truth. 

Another valuable insight from Foster’s talk was rekindling the practice of simply doing one thing at a time. We’re so often busy spinning plates that we forget to accurately and delicately handle what’s in front of us, leading to unforced errors, ticked off attorneys, disengaged employees, or lost time. And what does all that lead to? More plates to spin. 

All of this, however, can be mitigated by being mindful of how you show up. Whether to the office, a party, or just home to your family, becoming mindful, grateful, and taking a pause to reflect when you arrive is paramount to your effectiveness as a leader. Judging by my fellow attendees in the room, it seems like we all had the tendency to forget this once and a while. We can be excused; sometimes it seems like every little problem is thrown at our feet. 

After this pep session, a group of us followed Foster to her talk on Cultivating an Innovative Organization. Jumping off from her mindfulness lesson, Foster took a deeper dive into the steps needed to bring a firm from ground zero to innovative acceptance. To start an innovation moment, Foster pointed out, you need to pick a project that matters, especially since non-lawyer led innovation is prohibitively more difficult.  “A technology solution is a great way to launch a new innovation project,” Foster emphasized. 

A wonderful tool for cultivating innovation is a “friction” list. That is to say, we should be documenting and becoming sharply aware of all the problems, pressure points, and nagging inefficiencies that we see in our firms and formulating plans to address them. Workplace friction, whether personnel or workflow related, tells us that something is wrong and that innovation is needed to improve balance. 

The next day, Amy Gwin talked about how to create an Aligned and Inspired Organizational Culture and how culture, the beliefs and behaviors of your people, is really the firm’s “operating system.” Culture, she said, is a strategic imperative and is as important as any other organizational strategy. 

Judy Hissong of Nesso Strategies then picked up the Agent Change volley to dissect Strategic Change Management, a session focused on honing in cultural change in order to manifest meaningful change within the firm. The bulk of the session focused on dealing with the recalcitrant people with whom we’re all too familiar. Getting your people to that transformative state takes cunning and guile and there are four quadrants to go through to get there: Deny, Resist, Explore, and Commit. “Whenever you hear someone say, ‘remember the good old days?’, you know that’s a person in Deny,” Hissong asserted.

One of the underlying themes of the Master Class was that the nature of cultivating innovation and change in firms is often fraught with obstacles, hindrances, and doubts. While the tools to handle these headwinds are available, the most important thing is a leader’s mindset. Getting to the right mindset means learning to be present and facing the difficulties that lie ahead. Such is the so-called Stockdale Paradox—where confronting reality is the only viable means to successfully changing it. In the class’s closing session Hissong related such a paradox she faced by telling us a story about the time she was playing competitive volleyball for the United States. She wasn’t sure where she fit in, she felt outclassed by her teammates, and she had to watch her team struggle to start the tournament. Yet, by maintaining a positive attitude, accepting where she was, and coercing her teammates to confront some unhappy truths, the team was able to turn things around and start winning. “Your job is to better the ball that’s hit to you,” Hissong said.  

When the people of Seattle had to rebuild, they had to face some harsh truths. No longer could they build everything out of pines and firs; they shifted to the more labor-intensive brick and mortar. The fire department was professionalized.  Private water suppliers were abandoned in favor of a municipally-owned water system to ensure enough water pressure ran through pipes and hydrants. They knew what they had to do, they had the people and resources to do it, and used good civic planning to bring it to fruition. Now the Emerald City stands as a world-class metropolis on the cutting edge of tech, aviation, e-commerce and, of course, coffee. 

Similarly cultivating change in business requires the combination of vision, skills, incentives, resources, and good planning to make it a viable success. This is the Knoster Model for Managing Complex Change that Hissong shared with us.  Sometimes, a good crisis--or “fire”, as they say--pushes us to lead and innovate for nothing else than self-preservation. But crises aren’t fun, and the stresses multiply when we’re being reactive rather than proactive. As firm leaders we’re asked to better the ball that’s played to us, no matter how errant, lazy, or lousy. All of that’s out of our control. What matters is how we show up and identify the problems, the friction, that holds our firms back and risks our growth and optimization. 

The art is to figure this out before things get out of hand. Otherwise, you’re just waiting for the hot glue to boil over.  

Phil Crivellone
Howard and Howard Attorneys, PLLC
pcrivellone@howardandhoward.com

“They took my whole paycheck and I know why (why man) / Yeah hey cause I got high/ Because I got high/ Because I got high”

- Afroman, Because I Got High. T-Bones Records, 2000.

Since June 25, 2019, the date that Governor J.B. Pritzker of Illinois signed into law the Illinois Cannabis Regulation and Tax Act, I have been conducting a decidedly unscientific and informal survey of whether employers have said anything about the impending legalization of marijuana for recreational use in Illinois.  The Illinois Cannabis Act becomes effective January 1, 2020 and allows adults 21 or older to possess up to 30 grams of marijuana flower and five grams of marijuana concentrate for personal consumption.  The Act also contains explicit “protections” for employers, including that they may continue to have “reasonable drug free workplace policies” and that they may discipline an employee if they have a “good faith belief” that the employee was impaired at work.

None of the people I have asked has said that their employer has addressed how they will handle the issue of cannabis in the workplace.  Come 2020, when recreational marijuana becomes legal in Illinois (medicinal marijuana has been legal since 2013 in the Land of Lincoln), it is reasonable to expect that more of an employer’s Illinois workforce will at least try marijuana.  Law-abiding citizens who were afraid to try weed before because it was illegal will feel more emboldened to try it once it becomes legal.  Most employees will have the common sense not to be stoned at work, just like they know they cannot be drunk at work.  But employees may wonder if, instead of a glass of wine at lunch, can they take just one hit of hooch at lunch, or a bite of an edible, not because they want to get high, but because it was a stressful morning and they think (or know) that marijuana will calm the nerves.

There’s an elephant in the room, and her name is Mary Jane, or weed, or pot, or ganja, or reefer – whatever you want to call it.  As of the writing of this article, Illinois employers will be four and a half months away from legalization in Illinois.  As we get closer and closer to the effective date of the Illinois Cannabis Act, the pressure will build to say something. Employees will be wondering how their boss will deal with suspected marijuana use in the workplace.  They may not say so out loud because they don’t want to be thought a stoner (think Cheech & Chong).

Regardless, should you address the elephant in the room?  I say yes and recommend that companies with Illinois employees publicly announce to everyone at the company, even those employees of the company who don’t work in Illinois (some may travel to Illinois for a meeting), what company policy is on marijuana in the workplace

First, while the old legal maxim says that possession is nine-tenths of the law, in the employment law space, notice is nine-tenths of the law.  If an employer provides notice to its workforce of what company policy or procedure (whether formal or informal) is, that employer is in a much more defensible position when the employer takes disciplinary action for violation of company policy or procedure than the employer who has not provided notice.

The Illinois Cannabis Act defines when an employer may consider an employee to be impaired or under the influence and allows an employer to discipline an employee based on a good faith belief that an employee is under the influence or impaired. However, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

Although the statute does not specifically say so, an Illinois court is likely to consider “good faith belief” to be an affirmative defense for which the employer has the burden of proof.  In order to meet that burden of proof, employers with Illinois employees will want to have a written policy and procedure to follow to demonstrate that it provided the employee with a “reasonable opportunity” to contest the decision.

Will a court conclude that an employer did not have a good faith belief of impairment when it did not have a written procedure allowing the employee an opportunity to contest the decision?  It comes down to fairness.  Due process. If the employer provided the employee with notice of how to contest a decision and the employee did not avail herself of that opportunity, a court is more likely to conclude that the employer had a good faith belief that the employee was stoned at work and, therefore, that the discipline was lawful under the Illinois Cannabis Act.

Second, when Afroman sang that his company took his whole paycheck because he was high, he did not specify in the song whether he was non-exempt or exempt under the Fair Labor Standards Act, the federal law that governs minimum wage and overtime pay.  Non-exempt generally refers to employees who are paid by the hour and are overtime eligible. Exempt generally refers to employees who are paid on a salary basis and are not overtime eligible. It is lawful under the FLSA to dock a non-exempt employee’s pay provided that the docking does not drive that employee’s pay under the minimum wage for the week.

Afroman, if he were non-exempt, would likely have a claim for violating the FLSA if his whole paycheck really was docked, because that would mean he got paid nothing for the week and therefore, the minimum wage he received for that week was below the current $7.25/hour required under the FLSA.  I would not recommend docking a non-exempt employee’s whole paycheck for violating company policy on marijuana in the workplace.  Regardless, your company should let its non-exempt employees know that violating the company’s marijuana policy could result in a disciplinary docking of pay.

For exempt employees who are paid on a salary basis, the FLSA regulations provide that “[d]eductions from pay of exempt employees may be made for unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct roles.  Such suspensions must be imposed pursuant to a written policy applicable to all employees.”  29 C.F.R. § 541.602(b)(5).  If, after January 1, 2020, employers want to be able to dock an exempt employee’s pay for violating a workplace policy on marijuana, it needs to have “a written policy applicable to all employees.”  The FLSA regulations indicate the wisdom of disseminating a written policy on marijuana in the workplace that contains a procedure to follow if an employee wants to contest disciplinary action for violating the company’s policy on marijuana in the workplace. In other words, the FLSA also says address the elephant in the room.

James Oh
Epstein Becker Green
312-499-1470
joh@ebglaw.com

On August 9, 2019, Illinois Governor J.B. Pritzker signed into law a sweeping piece of legislation, SB 75, enacted as Public Act 101-0221 (“SB 75”). Among other measures, SB 75 (i) imposes a sexual harassment training requirement on all employers with employees working in Illinois, (ii) places tight restrictions on the use of mandatory arbitration agreements and non-disclosure clauses in employment contracts and settlement agreements, (iii) significantly expands the rights of certain non-employees under the Illinois Human Rights Act (“IHRA”), (iv) imposes a reporting requirement on employers with respect to certain sexual harassment and discrimination rulings and judgments, and (v) extends job-protected leave to victims of gender violence. These provisions become effective January 1, 2020, except for the reporting requirement, which goes into effect on July 1, 2020.

The Sexual Harassment Training Mandate

Among other provisions (discussed below), SB 75 amends the IHRA to require employers with any employees working in Illinois to provide annual interactive sexual harassment prevention training to their employees using either a model program that will be provided by the Illinois Department of Human Rights (“IDHR”) or a program of the employers’ choosing that meets or exceeds the criteria set forth in the IHRA, as reflected in the IDHR model training.

SB 75 expressly requires that the mandatory training (i) be interactive, (ii) explain and provide examples of sexual harassment, (iii) summarize relevant federal and state law and remedies available to victims of sexual harassment, and (iv) describe the employer’s responsibilities under applicable law. SB 75 permits online as well as in-person training but does not mandate a minimum duration for the training. Employers in the restaurant and bar industry must also supplement the mandatory training with a program—either their own or a supplement to be created by the IDHR—addressing harassment issues specific to the industry.

Restrictions on Mandatory Arbitration Agreements and Non-Disclosure Provisions in Certain Employment Agreements and Settlements

SB 75 incorporates the legislative bill that was originally the stand-alone Workplace Transparency Act (“WTA”). The WTA does not completely bar arbitration and nondisclosure agreements (“NDAs”) in the employment context, but it does decree that such agreements may not be unilaterally imposed on a current, former, or prospective employee who has raised a discrimination, harassment, or retaliation claim. Specifically, to be enforceable, an arbitration agreement must (i) be in writing; (ii) demonstrate actual, knowing, and bargained for consideration from both parties; and (iii) acknowledge the employee’s right to report good-faith allegations to federal, state, or local agencies; participate in agency proceedings; and obtain confidential legal advice.

Further, the WTA still permits employers to use NDAs and confidentiality provisions in settlement and termination agreements pertaining to discrimination, harassment, and retaliation claims, but only if all of the following conditions are met: (i) the NDA or confidentiality clause is the documented preference of the current, former, or prospective employee; (ii) the employer notifies the individual that he or she has the right to have an attorney or representative review the agreement; (iii) the provision is the result of valid, bargained-for consideration; and (iv) the agreement does not waive any claims that accrue after the agreement is executed.

In addition, the individual must be allowed 21 days to review the NDA/confidentiality agreement, and an additional seven days to revoke the agreement after execution. The employer cannot enforce the agreement until the seven-day revocation period has elapsed, unless the individual has voluntarily waived the right to revoke.

If an employer fails to meet all of these requirements, the NDA may be deemed void as against public policy. Notably, however, employers are permitted to require certain individuals to agree to confidentiality—for example, persons with access to confidential personnel information and individuals who are subject to a privilege obligation recognized by law, such as attorneys.

New Rights for Non-Employees and Protections Based on “Perceived” Status

In addition to creating the training requirement discussed earlier, SB 75 significantly broadens the scope of the IHRA in other ways. First, it expands the definition of “unlawful discrimination” to include discrimination and harassment based on an individual’s actual or perceived sex, race, or other protected status. Permitting individuals to bring discrimination and harassment claims based on perceived, as well as actual, status as a member of a protected class is an expansion of the anti-discrimination statute that could significantly increase an employer’s exposure to claims under the IHRA.

Second, SB 75 creates a private right of action for contract employees—i.e., individuals who are “directly performing services for the employer pursuant to a contract with that employer”—to bring harassment claims. Currently, contract employees, such as consultants, do not have legal recourse against harassment under the IHRA.

Employers should note that the expansion of the IHRA to non-employees and to discrimination based on perceived status relies on the same definition of “employer” as set forth in Section 2-101 of the IHRA—i.e., any person or company employing 15 or more employees within Illinois during 20 or more calendar weeks. However, a bill that would change the IHRA’s definition of “employer” to any person employing one or more employees during 20 or more calendar weeks is currently awaiting Governor Pritzker’s signature. Thus, if that bill is signed into law, SB 75 would allow these expanded private rights of action against virtually all Illinois employers, starting July 1, 2020.

In contrast to this expansion of individuals’ rights under the IHRA, SB 75 clarifies that an employer is responsible for harassment by its non-managerial and non-supervisory employees “only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”

Annual Disclosure of Sexual Harassment and Discrimination Claims

Beginning July 1, 2020, employers with one or more employees in Illinois must annually disclose to the IDHR all final and non-appealable adverse judgments and non-appealable administrative rulings involving sexual harassment and other discrimination claims brought by employees and nonemployees (contractors or consultants). The disclosures must specify the total number of adverse judgments or administrative rulings (broken down by protected categories) during the preceding year, and whether any equitable relief was ordered against the employer. Employers do not have to disclose settlements entered into during the preceding year that relate to sexual harassment or unlawful discrimination, but the IDHR may request this information when investigating a charge.

Job-Protected Leave for Victims of Domestic, Sexual, or Gender Violence

As of January 1, 2020, SB 75 expands the protections of the Victims Economic Security and Safety Act (“VESSA”) granted to victims of sexual and domestic violence to victims of gender violence. “Gender violence” is defined as “one or more acts of violence or aggression,” or “a physical intrusion or physical invasion of a sexual nature under coercive conditions,” or the threat of either kinds of conduct, which constitutes a criminal offense, regardless of whether the acts resulted in criminal charges, prosecution, or conviction.

Accordingly, employees who have suffered (or have a family member who has suffered) domestic violence, sexual violence, or gender violence may be entitled to take job-protected leave to:

1. seek medical attention to recover from physical or psychological injuries caused by the domestic violence, sexual violence, or gender violence;

1. obtain services from a victim services organization;

2. obtain psychological or other counseling;

3. participate in safety planning, temporarily or permanently relocate, or take other actions to protect their safety; or

4. seek legal assistance or remedies to ensure their own or a family or household member’s safety.

What Employers Should Do Now

Employers with employees and/or contractors in Illinois should do the following:

• Given SB 75’s aggressive timetable for mandatory training, immediately review your sexual harassment training program to ensure compliance with SB 75’s mandates, including the requirements that the training be interactive and that employees be advised of their rights under federal and state law. If you have not previously provided sexual harassment training to your employees, immediately consider developing or purchasing an anti-harassment training program or waiting until the IHRA releases its model program.

• Review and revise, as necessary, employment and settlement agreements to conform to SB 75’s substantive restrictions and procedural requirements concerning arbitration and NDA/confidentiality provisions with respect to discrimination, harassment, and retaliation claims.

• Revise VESSA policies to reflect the expansion of the law permitting leave for gender violence.

• Implement a system to track relevant administrative rulings and adverse judgments in preparation for the IHRA’s disclosure requirements.

We will continue to provide updates on any significant developments regarding the implementation of SB 75.

****

For more information about this Advisory, please contact:

Susan Gross Sholinsky  Epstein Becker Green  212-351-4789 sgross@ebglaw.com	Michelle G. Marks Epstein Becker Green 312-499-1440 mgmarks@ebglaw.com	Amardeep K. Bharj  Epstein Becker Green 312-499-1411 abharj@ebglaw.com

This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company.

About Epstein Becker Green

Epstein Becker & Green, P.C., is a national law firm with a primary focus on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. Founded in 1973 as an industry-focused firm, Epstein Becker Green has decades of experience serving clients in health care, financial services, retail, hospitality, and technology, among other industries, representing entities from startups to Fortune 100 companies. Operating in locations throughout the United States and supporting domestic and multinational clients, the firm’s attorneys are committed to uncompromising client service and legal excellence. For more information, visit www.ebglaw.com.

On August 9, 2019, Illinois Governor Pritzker signed legislation amending the state’s current medical marijuana pilot program. The Compassionate Use of Medical Cannabis Program Act (the “Medical Cannabis Act”) makes the medical marijuana program, which was initially enacted as a pilot program in 2013, permanent and expands the qualifying medical conditions for a medical marijuana card to include at least 12 new conditions, including chronic pain, irritable bowel syndrome, migraines, osteoarthritis, and ulcerative colitis. The Medical Cannabis Act also provides easier access to a medical marijuana card by expanding the range of medical professionals who can certify eligibility of applicants to the program. In addition to physicians, advanced practice registered nurses or licensed physician assistants can diagnose and certify an individual’s eligibility for the medical marijuana program. The amendments to the medical marijuana pilot program are effective immediately.

The Medical Cannabis Act continues to protect the status of a registered medical marijuana cardholder and prohibits an employer from discriminating against a cardholder based on his or her status as a registered qualifying patient of medical marijuana. However, employers may continue to take into account an employee’s medical marijuana cardholder status, if failing to do so would force the employer to violate federal law, such as the Department of Transportation regulations or the provisions of the Drug Free Workplace Act.

The Medical Cannabis Act does not change the express workplace protections previously included in the state’s medical marijuana pilot program. Employers should be able to continue to enforce zero-tolerance or drug free workplace policies, discipline a cardholder for violating a workplace drug policy, and discipline an employee based on a good faith belief that an employee is impaired at work. Similar to Illinois’ recreational marijuana law (the Cannabis Regulation and Tax Act) which takes effect January 1, 2020, if an employer disciplines a marijuana cardholder based on its good faith belief of impairment, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

However, employers should be aware that they may need to engage in an interactive process to determine whether they are able to accommodate an employee’s off-duty use of medical marijuana. Recent rulings in federal and state courts outside of Illinois have found that, depending on the language of the state’s anti-discrimination or medical marijuana statutes, the use of medical marijuana may be a reasonable accommodation for an employee, when the use occurs outside of working hours and does not adversely affect safety or job performance.  The Illinois Human Rights Act prohibits employment practices that discriminate on the basis of a person’s actual or perceived disability, if the disability is unrelated to the person’s ability to perform the job in question. Thus, for example, if an employee contests his employer’s impairment determination by informing his manager that he has a medical marijuana card for migraines, his employer may need to engage in the interactive process prior to taking a disciplinary action.

By legalizing recreational marijuana use and expanding the medical marijuana program, marijuana use in Illinois is likely to become more prevalent, and employers can expect an increase in marijuana-related issues to infiltrate the workplace.   Accordingly, Illinois employers should take steps now to ensure they are ready to address marijuana-related issues in the workplace. Some actions for employers to consider include:

1. Review and update workplace drug policies to ensure employees are on notice of prohibited workplace conduct and the disciplinary action and process for violating the policy. The policy should include a written procedure for employees to be able to contest a cannabis-based disciplinary determination. In addition, for employment policies that cover employees in multiple states, consider whether to include state-specific information relating to Illinois’ medical and recreational marijuana laws effect on Illinois-based employees. Similar information may be required to tailor specific language for employees in other states that have their own recreational and/or medical cannabis regulations to ensure that employees clearly understand the state-specific cannabis regulations and the Company’s workplace drug policies.

2. Review and update reasonable accommodation policies, as employers may need to engage in an interactive process and make an effort to accommodate an employee’s off-duty use of medical marijuana.

1. Train supervisors on how to recognize, properly document and promptly report the signs of suspected marijuana impairment. Illinois’ medical and recreational marijuana laws provide specific symptoms to look for when making a determination that an employee is “impaired” or “under the influence” of marijuana,  including  the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment or machinery, disregard for the employee’s own safety or the safety of others, involvement in any accident resulting in serious damage to equipment or property, disruption of a production or manufacturing process, and carelessness that results in any injury to the employee or others. This training will help establish that an employer had a “good faith belief” that the employee was impaired on the job and therefore that discipline was warranted and lawful. This training should also include reminders that company policy must be applied in a nondiscriminatory manner.

___________________________________________

Please contact James Oh and Kathleen Barrett if you would like to discuss assistance in preparing your workplace for handling marijuana-related issues in Illinois or elsewhere.

Tags: cannabis, cannabis law, Cannabis Regulation and Tax Act, Compassionate Use Medical Cannabis Act, Department of Transportation, Discrimination, Drug-Free Workplace Act, Epstein Becker Green, Illinois, Illinois Governor Pritzker, Illinois Human Rights Act, James Oh, Kathleen Barrett, marijuana cardholder, marijuana cardholders, Medical Cannabis Act, Medical Cannabis Law, medical marijuana, medical marijuana pilot program, Recreational marijuana, workplace drug policy

James Oh Epstein Becker Green 312-499-1470 joh@ebglaw.com	Kathleen Barrett Epstein Becker Green 312-499-1419 kbarrett@ebglaw.com

The day started with members connecting with our Business Partners for coffee to learn about the latest products and services offered to us and our firms. Coffee Connections was followed by a powerful session by Dr. Sharon Meit Abrahams, “Using Your Power: How to be More Assertive”. To officially open the conference, we heard from keynote speaker Julie Morgenstern and her commanding session, “Making Work, Work: Counter-Intuitive Keys to Productivity”.

The afternoon started with a fun-filled Business Partner Networking Session, in a speed-dating format, and in 90 minutes we had the opportunity to meet many of our Business Partners and learn more about them and their companies. After all that fun, attendees had the opportunity to gain more knowledge at one of two outstanding sessions: “Practical Innovations”, which offered excellent ideas that can be implemented at our firms with very little cost or effort, and “Employment Law Update”, which included cannabis laws, sexual harassment training laws and other hot topics law firms are facing.

To wrap up the conference, we again heard from Julie Morgenstern who gave her final thoughts during, “You've Attended the Conference...Now Make Work, Work”. We officially closed out the conference with a social and networking cocktail reception at Boleo, on the rooftop of the Kimpton Gray.

Lastly, but certainly not least – ALA Chicago is proud of its members’ and Business Partners’ support at this year’s Community Outreach that benefited Bridge to Success and Loom. We received an overwhelming response for both organizations, which is truly a representation of the commitment and generosity of our members! 

All and all, the conference was an immense success, and I am honored and humbled to have been one of the thirty-six remarkable volunteers who worked tirelessly to bring this event to life. And a big Thank You to Suzie Florez and her entire committee!

Now, sit back and enjoy another fantastic issue with engaging articles focused on finance, and some lighthearted Halloween fun!

Happy Reading!

Betsy

Law Firm Phishing Scam Alert

Law firms are frequently targeted by fraudsters in internet phishing scams. You may have heard about recent schemes in the news, including those that involve a “new client” and the firm’s receipt of counterfeit cashier’s checks. In many instances, these scams have resulted in substantial losses to the firms.

The following is a description of two common schemes targeting law firms. In the most common scheme, the email requests the attorney’s representation in order to collect on the debt, and advises the attorney that the debtor has been notified that the prospective client has hired an attorney in the U.S.

A recent variation of the scheme involves an ex-wife "on assignment" overseas, who claims to be pursuing a collection of divorce settlement monies from her ex-husband in the U.S.

The schemes usually work as follows:

An attorney receives unsolicited email correspondence, typically from a business or individual located overseas, seeking legal representation. The prospective client claims to be owed a significant sum of money from a business that is located in the same city or state as the attorney.

Once the attorney has formally agreed to represent the client, the fraudster sends the attorney a cashier’s check drawn on a U.S. bank, accompanied by a letter purportedly from the U.S. business, stating that the check represents a payment to satisfy the debt owed to the attorney’s overseas client.

The fraudster then emails the attorney, directing him or her to deposit the check and wire transfers the proceeds (less the attorney’s fees) to unrelated third parties.

The counterfeit cashier’s check is subsequently returned, unpaid, to the attorney’s bank. The account is debited the amount of the counterfeit check and any overdraft is the responsibility of the attorney. Attempts to recover funds wire transferred to the third parties are almost always unsuccessful.

If you should receive this type of solicitation, we recommend you consider taking the following steps:

• Conduct as much due diligence as possible on potential clients – particularly those who correspond solely via email and are located overseas.
• Request documentation that adequately identifies the parties involved, and the reason for the debt.
• Independently verify the business’s telephone number and location.
• If the debtor is a local business, contact the company to confirm the debt.
• Be wary of demands to deposit check and quickly wire the funds out of the account. Fraudsters rely on the attorney’s good standing with their bank to provide immediate funds availability.
• Contact the bank that issued the cashier’s check to determine if the item is authentic.
• Contact your banker for guidance if you suspect part or all of the transaction may be fraudulent.

Cybersecurity Attack Alert

Cybersecurity attacks continue to increase in frequency and sophistication. Fraudsters are attacking businesses through compromised emails and social engineering. It is imperative to authenticate requests received via email or other electronic methods before acting upon any such instructions, particularly those directing the movement of funds. Authentication may include verbal or other method of confirming the legitimacy of the email directly with the sender through a previously established phone number. Banks have seen an increase in compromised emails where fraudsters pose as executives (e.g., president, controller, treasurer, CFO, etc.), vendors and employees. In this type of attack, it appears that an executive requested a wire, a vendor changed their wire remittance instructions, or an employee changed their banking instructions for payroll so that a fraudulent transaction is initiated and approved in an online banking system (e.g., Business NetBanking).

To help you be aware of these threats, we wanted to share these typical characteristics:

• Fraudulent email requests are often well-worded and may be based on previous legitimate emails.
• The email address may look identical to your legit counterpart so do not let this fool you. Make sure to contact the individual directly with a phone number you have on file.
• Phrases “code to admin” or “urgent wire transfer” are common.
• Email may provide an alternate phone number, advise that the sender is traveling, or otherwise unavailable to discuss verbally but can be reached through email.
• Fraudulent request amounts are similar to normal business transaction amounts.

To better detect these types of schemes and protect your business:

• Establish internal communication procedures (e.g., verbal authentication), to verify transaction requests, particularly any requests to a new beneficiary as well as employee requests.
• Do not confirm a request using information contained in the email which you are trying to validate.
• Authenticate all wire remittance change requests from vendors via a phone call to a known contact or known number.
• Be suspicious of requests that pressure you take action quickly, are to foreign beneficiaries that are not consistent with historical requests, or to a beneficiary name different from the vendor.

Check Fraud Alert

Fraudsters continue to become more intelligent when it comes to check fraud, so much so that the standard Positive Pay service may not have the ability to catch the fraudster in action. For example, if a fraudster gets a hold of a company’s check written out to pay a vendor, they have the ability to remove the Payee name from the check using chemicals and place their name on the check instead. As such, standard Positive Pay services will not stop this fraudulent activity from occurring as Positive Pay only allows cross checking between the date, amount and signature fields on the check. As a result, we recommend you consult your bank about Payee Positive Pay. This service will also cross check the payee field on a check.

Megan Zande  CIBC Bank megan.zande@cibc.com	Kristen Freund CIBC Bank kristen.freund@cibc.com

My name is: Jeremy Beam.     

I work for: Rippe & Kingston Systems.

My title is: Business Development Director.

The company's product or service is: Law firm Enterprise Resource Planning (ERP) system providing financial, forecasting, practice management and business intelligence solutions.

The company has/is: Rippe & Kingston is a preeminent player in the ERP market for mid-sized firms. With more than 40 years in the market, Rippe & Kingston understands the needs and mindset of law firms. Its accounting and practice management suites afford peace-of-mind and significant efficiencies through automating the administrative and routine, giving lawyers more time to practice law and finance staff more time to focus on the strategic.

Before becoming a business partner to the legal market, I was: Branch Rental Manager for Enterprise Rent a Car.

I entered the legal market because: I wanted a new challenge and I felt that the legal industry and Rippe & Kingston would offer me that.

I have a degree in: Criminal Justice and Political Science from Muskingum College.

I support ALA because: I enjoy the relationships that I have gained during my time as a business partner.

To be successful in the legal market, one has to: Have great relationships.  This will lead to you getting opportunities not only with your contact but with their friends.

The thing I like best about being a business partner to the legal market is: The events we get to participate in.  I have had the opportunity to do many fun and fulfilling things as a BP. 

The best advice I have received is: Work harder than everyone else in the room.

The best advice I would give to someone just entering the legal market is: Be patient, every law firm is different, and the victory is worth the wait.

I try to motivate myself and/or my staff by: Setting short and long term goals.  I find this to be very important.

Three things I do well are: I am a good listener which helps me identify what our system can do to help our prospects.  I am good at managing myself, at least in my work life.  My wife manages our home life.  I am pretty good at sarcasm.  A well-placed quip can really take a demo to the next level.

While I love my current job, my dream job would be: Working for the Atlanta Braves in their front office in some capacity.

The last good book I read was: Little Blue Truck’s Halloween – My 3 year old and I are really into the Little Blue Truck Series.

The last good movie I saw was: Avengers Endgame.  I thought it was done very well.

The last vacation I took was: Vero Beach, FL.

In my free time, I: Enjoy golfing though I am not very good at it.

My name is:  Michael Lazenby I work for: Scott D. Pollock & Associates, P.C. The firm & practice is: Immigration Law. My title is:  Firm Administrator. Before becoming an Administrator: I worked in Human Resources at an options trading firm. I have been working in the legal field: Over 13 years. I have a degree in: Business Management from North Park University.

I joined ALA Chicago Chapter: To lean on the experience and knowledge of others in the Chapter.

To be successful in legal administration: You must have high levels of organization and patience.

The thing I like best about being a Firm Administrator is:  Having a direct influence on the firm’s performance and profitability.

One of the challenges of being in legal administration is:  The need to constantly switch gears to and from many diverse projects and tasks.

The best advice I've ever received is:  Be yourself.

The best advice I would give to someone who is just entering the legal management field is:  Listen more than you speak.

I try to motivate my staff by:  Making sure that they know that I genuinely care for them on a personal level.

If I weren't a Firm Administrator, I would:  Be coaching basketball.

The last good book I read was:  Counter Culture by David Platt.

The last good movie I saw was:  The Farewell.

The last vacation I took was:  London earlier this month.

The one appointment I never miss is:  Dinner with my wife.

In my free time, I enjoy:  Reading and working out.