The Sheraton Grand at Wild Horse Pass will be the site for the 2016 State Bar of Arizona Convention.

The Sheraton Grand at Wild Horse Pass will be the site for the 2016 State Bar of Arizona Convention.

 Today, I’ll offer a few more in a series of posts describing legal seminars at the upcoming State Bar Convention. (All the detail is here. And the complete Convention brochure is here.)

What follows are questions I asked seminar chairs, followed by their responses.

Today, I share the responses of chairs for all-day programs on Friday, June 17.

Click on the seminar title to read more detail as published in the Convention brochure. (Note: Not all seminar chairs responded.)

8:45 a.m. – 5:15p.m.

F-55: Bankruptcy

Chair: Krystal Ahart

F-55 Krystal Ahart

Krystal Ahart

Who should attend?

All bankruptcy practitioners should attend this day-long event, which will cover a broad range of consumer & commercial topics, including student loans and real property issues, healthcare bankruptcies, and disgorgement of fees. Student loan issues, both in and out of bankruptcy, are quickly becoming a hot topic item, and attendees will get to hear from “THE Student Loan Lawyer,” Joshua Cohen, who is a true expert in his field. A case law update will also be included, as well as an hour of ethics in the form of a debate\hearing.

F-56: Labor & Employment Law: The Present State and the Future

Co-chairs: Kathryn Hackett King, Magdalena Osborn, Jennifer Phillips

Who should attend this seminar?

Both in-house and private practitioners who routinely deal with labor and employment law issues.

What is the one main takeaway a lawyer will gain by attending this seminar?

A record-number of legal seminars are on offer at the 2016 State Bar of Arizona Convention.

A record-number of legal seminars are on offer at the 2016 State Bar of Arizona Convention.

Labor and employment law is constantly developing due to new administrative regulations, state and federal legislative action, the Supreme Court’s input, and of course, new judicial rules and procedures. This seminar educates attendees about some of biggest changes, and how they affect our day-to-day practice.

How is this seminar timely? (That is: Why do attorneys need to learn more about this topic right now? What’s going on now in the world or in law practice that makes this topic important?)

The “the rules of the game” in labor and employment law change from one day to the next. Staying up-to-date on these changes is the key to providing quality legal services.

What is the most common misconception about this issue? In other words, what do lawyers think they know, but don’t?

Some legal changes have a grace period allowing people time to adjust—others do not. It would be a mistake to “wait and see” before working with clients to ensure compliance.

 

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Hot and Not law practice areasIs your law practice on the leading edge; or is it bringing up the rear? A preview of an annual assessment of burgeoning law practice areas is out, and it may be helpful to track your own path.

I always enjoy these annual articles by Bob Denney, who writes a “what’s hot” assessment. (Let’s admit it right now; the what’s hot trope is an awkward one, but no need to go on about it.)

His full piece will not be out for months, when he describes his predictions for 2016. But we get a preview here.

As you can see, Denney identifies labor & employment and elder law as on an upward trajectory. But litigation and bankruptcy are not faring as well.

You also can see his predictions from last December here. How’d he do?

What’s working in your own law office? Are there any niche areas that are growing faster than you would have expected? I’d like to hear about them. Write to me at arizona.attorney@azbar.org.

What’s Hot and What’s Not In The Legal Profession Hot_tamales

OK, I give in to the “hotness” analogy: What’s hot and what’s not in the legal profession?

Dr. David Weil, Director of the Wage & Hour Division of the U.S. Department of Labor, speaks at the University of Arizona Medical School, Phoenix, April 1, 2015. On stage are Wage and Hour Division Phoenix District Director Eric Murray (at left) and Attorney Matt Meaker, who was also the event coordinator (Photo courtesy of the DOL Wage and Hour Division.)

Dr. David Weil, Director of the Wage & Hour Division of the U.S. Department of Labor, speaks at the University of Arizona Medical School, Phoenix, April 1, 2015. On stage are Wage and Hour Division Phoenix District Director Eric Murray (at left) and Attorney Matt Meaker, who was also the event coordinator (Photo courtesy of the DOL Wage and Hour Division.)

A recent visit to Arizona by a federal official was made possible by attorneys and others concerned about employee misclassification. The result was a day of speaking events and community meetings for Dr. David Weil, Director of the Wage & Hour Division of the U.S. Department of Labor.

It’s hard to overestimate the economic and other problems that misclassification causes.

At an April 1 event, Wage and Hour Division Phoenix District Director Eric Murray said that fully one-half of his office’s time is taken up with the issue. It affects: individual workers who may be underpaid, state and other agencies that get artificially lower revenue because of the errors, and businesses that may be forced into difficult decisions regarding compliance.

Wage and Hour Division Phoenix District Director Eric Murray speaks at employee misclassification event, April 1, 2015.

Wage and Hour Division Phoenix District Director Eric Murray speaks at employee misclassification event, April 1, 2015.

That constellation of problems led lawyers like Matt Meaker to form the Employee Misclassification Compliance Assistance Program (EMCAP) Working Group. He is the group’s Chair, and he took the lead on bringing the issue to the attention of the federal agency.

The subject generates much passion, Meaker said at the April 1 event. But it is not an easy subject to confront.

“Good guys want to compete on a level playing field,” Meaker told a roomful of employment lawyers, contractors and their representatives, and others. “They want to be good stewards of industry.”

Attorney Matt Meaker speaks at employee misclassification event, April 1, 2015.

Attorney Matt Meaker speaks at employee misclassification event, April 1, 2015.

And so a working group created a pilot program that became EMCAP. It allows “candid talks about business decisions, not just legal issues.”

The keynote speaker at the University of Arizona auditorium in downtown Phoenix was Dr. David Weil. In public remarks and a half-hour interview afterward, he explored the landscape of misclassification, its roots and future possible solutions.

Highlighting the politically fraught nature of his position, Weil was the first Senate-confirmed Wage and Hour Administrator in a decade. As he did in his confirmation hearings (introduced by Sen. Elizabeth Warren), he spoke in Phoenix at length on misclassification.

A portion of his confirmation hearing is below; his remarks on misclassification begin at 2:40 (though Senator Warren’s intro is worth watching too):

Given that political landscape, it’s not surprising that Weil comes from a business school (at Boston University). In Phoenix, he described his business bona fides and said he was “proud of his decades in a business school.” And he described the mission of the Department of Labor as twofold: to understand that business is a fundamental part of our economy, and to protect workers.

But on the elevator-pitch version of the DOL’s mission, Weil is crystal-clear: “Our job is to make sure people get a fair day’s pay for a fair day’s work.”

The reality of the department’s resources complicates that vision considerably. Weil discussed the strategic thinking that must go into enforcement decisions. As DOL staffers gaze at a landscape with 7.3 million workplaces, they have become adept at reviewing data to identify red flags. They also look closely at industries that have had traditional problems with misclassification—construction, janitorial, hospitals, restaurants, and logistics, to name a few.

Weil used the title of his book The Fissured Workplace to explain more deeply the challenging predicaments presented by an evolving economy. As companies have decided to focus on “core competencies” and shed “ancillary” activities, efficiencies have increased, even as the number of people on the payroll has decreased.

But what happens to those ancillary functions and all the people who used to do them? Often, they remain, but are now employed by a third-party entity, ostensibly more adept at that particular function.

That kind of outsourcing and subcontracting is not new, Weil admits. But what is new is the stringent and detailed standards that the large brands impose on those third-party firms and their many employees. The larger companies need to ensure a consistent delivery of all their brand elements, and so they often control non-employees’ work lives down to the granular level. And they have new and developing technologies that allow the larger brands to monitor every moment in the lives of their products and the workers.

So … are those workers employees, or not? Often, the larger brands rely on a strategy that says “not.”

Weil and we may sympathize with the challenge faced by those companies. A branded cellphone must work exactly the same, wherever it was manufactured. A person checking into a chain hotel expects a nearly identical level of customer experience, whether they are in Dubuque or Dallas. But some companies may be crossing the misclassification line.

The challenge may be just as great for companies that are not in violation. As they view their industry’s landscape, what if they find they cannot compete without certain questionable strategies?

That, said Weil, is where groups like EMCAP come in. Yes, DOL enforcement must be vigorous, and collaborations with state departments of labor must be robust. But business buy-in and self-regulation are vital.

Wage and Hour Division Administrator Dr. David Weil speaking with American Subcontractors Association of Arizona CEO Carol Floco (at left) and Attorney Julie Pace. (Photo courtesy Wage and Hour Division.)

Wage and Hour Division Administrator Dr. David Weil speaking with American Subcontractors Association of Arizona CEO Carol Floco (at left) and Attorney Julie Pace. (Photo courtesy Wage and Hour Division.)

Via EMCAP and similar approaches nationwide, employers may gather and use dialogue and other methods to curtail bad practices.

“When you hear from a peer, a fellow employer,” said Weil, “that is incredibly powerful.”

He cites the Florida citrus industry as an example of successful self-policing. He said that when the DOL shared data about which subcontractors were regularly violative in misclassification and in regard to worker rights, larger producers asked for a copy of their maps. Pointing to the red dots indicating poor performers, some industry leaders said, “We don’t want to do business with the red bubbles.”

And that altered toolbox of strategies is just fine with the Wage & Hour Director.

“We’re not into a game of gotcha,” said Weil, “but compliance.”

Though enforcement is still a tool, he said, the primary focus must be “thinking creatively about changing business decisions.”

My unedited follow-up interview with Dr. David Weil is here:

 

And more background on EMCAP is here. We may follow up with Matt Meaker and his partner Helen Holden on the committee’s progress.

State Bar of Arizona SBA_Logo_Color

Here is some great news about a monthly State Bar event in which lawyers volunteer their time. Thanks for the news to Alberto Rodriguez.

The State Bar of Arizona, azcentral.com and 12 News hosted the Lawyers on Call public service program on Tuesday, March 11. Volunteers answered viewers’ calls regarding their employment and labor issues.

Eight volunteer attorneys participated:

  • Denise Blommel
  • Richard Galvan
  • Richard Klauer
  • Stephanie Leach
  • Leah Lewandowski
  • Dawn Sauer
  • Paul Sheston
  • Sandra Shoupe-Gorga

The attorneys answered 83 calls on employment and labor law. An additional 34 consumers were assisted via social media, which means a total of 117 people were helped.

Here is a sample of the consumer questions:

  • Since Arizona is a right-to-work state, what does that mean to me and my issue?
  • Can employers harass and discriminate against its employees?
  • When are you covered by workers’ compensation?
  • I haven’t been paid overtime wages. How do I go about getting them paid?
  • I was fired for reasons I believe to be unfair; what can I do?

Several questions regarding employment discrimination were asked, including in the areas of age, pregnancy, ethnicity and disabilities.

AZBAR labor and employment lawyers on call 03-11-14

Volunteer Arizona labor and employment lawyers answer consumer questions, March 11, 2014.

The azcentral.com and 12 News teams were successful in adding a social media component to the phone bank. Thirty-four consumers asked their questions via the 12 News Facebook page, and attorney Stephanie Leach responded with her recommendations/advice.

Four of the eight attorneys were first-time volunteers.

Next month, volunteer lawyers will answer consumers’ family law questions on Tuesday, April 8.