Is “Diverse” Hiring Really What You Want?

What does diversity mean to you?

Diversity is defined as “The fact or quality of being different; having a variety.” It can only be applied to a group of things or people in order to highlight the presence or absence or difference or variety.

The reality is that a roomful of black women is no more diverse than a roomful of white men. And yet, we tend to describe programs as being aimed at “diverse attorneys” and state that we would really like to make a “diversity hire” in this position. But when you stop to think about it, what do we really mean?

If a program is for diverse attorneys, it must be for all attorneys and hopefully the group will represent a large variety of people. Is that really what we mean? No, it isn’t. What we mean is that the program is for attorneys who are underrepresented or marginalized in the field of law. Why not say that? Or better yet, let’s actively state what we mean. Is the program really aimed at women and people of color? Then let’s just say so. Let’s not seek a diversity hire; let’s seek to create a diverse workforce. Or we can talk about diversifying our employees.

Thought provoking and to the point.  As lawyers, we know language matters.  Perhaps it is time to change ours.  Read more here: Is “Diverse” Really What You Mean? — NWSidebar.

The Ups and Downs of Staffing Your Law Firm

If your practice is growing and you have more work than you can reasonably handle, it may be time to hire staff.  Oddly, what seems like a natural progression can also be stressful.  Among other things, you may be wondering:

  • Can I really afford to hire someone?
  • Should this person be a contractor or an employee?
  • How can I best use my staff person?
  • What issues do I need to be aware of when hiring?
  • What if I have to fire my employee?

Let’s tackle these one at a time.

Can I afford to hire someone?

More often than not, the answer is a resounding yes!

  • The typical Oregon lawyer can net a profit of $91 every time his or her highly paid paralegal bills one hour of time to a client.
  • If a highly paid paralegal bills just under 13 hours during the course of a 40 hour week, the lawyer paying the paralegal will break even.
  • If the same paralegal bills 15 hours per week for the entire month, the lawyer will earn a profit of $1,260.84 after the paralegal’s salary and benefits are paid.
  • In the meanwhile, the lawyer has successfully shifted 60 hours of billable work and approximately 100 hours of nonbillable work to an employee: paper filing, efiling, scanning documents, calendaring, running conflict checks, billing clients, banking, running errands, opening files, closing files, and answering the phone.

See this post for the details and mathematical breakdown.

Should this person be a contractor or employee?

While it is tempting to treat legal staff, a contract lawyer, or any kind of help as an independent contractor, you may find yourself regretting this decision later.  It is almost impossible to go wrong classifying someone as your employee.  In fact, I don’t know how you can.  But bad outcomes abound if you label someone an independent contractor when they aren’t under Oregon law.  So before you go down this path, please read Mission Impossible? Working as an Independent Contractor in Oregon and Are Contract Lawyers Automatically Independent Contractors?  And this is critical, please review Lisa Brown, “Independent Contractors or Employees?” In Brief (April 2016), available on the PLF website at Practice Management > Publications > In Brief.

How can I best use my staff person?

Other than avoiding the unauthorized practice of law, there aren’t any limitations on the type of tasks you choose to delegate to a staff person.  However, there are some things to avoid.  Check out these posts: Six Mistakes Lawyers Make with Staff, Part I and Six Mistakes Lawyers Make with Staff, Part II.  Also review the staffing resources available on the PLF website.  Select Practice Management, then Forms, and choose the “Staff” category.  For specific tips, Google “how to best use a legal secretary” or how to best use a paralegal.”

What issues do I need to be aware of when hiring?

On May 28, 2015, the Professional Liability Fund held a CLE on how to hire with confidence.  The program is available at no charge on the PLF website.  Select CLE, then Past CLE, and look for Employment Practices for Lawyers: Hiring with Confidence and Avoiding Trouble at Termination.  Download the materials or checkout the highlights here.  One resource you should take advantage of: the Technical Assistance Support Line through the Oregon Bureau of Labor and Industries (BOLI).  Also see:

What if I have to fire my employee?

The CLE referenced above has you covered.  For the key takeaways on avoiding trouble at termination, check out this blog post.  Also see the “Checklist for Departing Staff,” available on the PLF website.  Select Practice Management, then Forms, and choose the “Staff” category.

Parting Thoughts

While it is more than possible to regret hiring a specific person, I’ve never met anyone who regretted the decision to add staff.  Once you hire an employee, you will probably wonder, how did I ever get along without help?

[All Rights Reserved Beverly Michaelis 2016]

Calling All Lawyers Who Advise Businesses

This post is for any lawyer who gives business advice.imagesCA6NS7E8

You may consider yourself a business lawyer, employment law practitioner, corporate lawyer, commercial law specialist, or debtor/creditor/collections expert. If your clients process writs of garnishment, read up!

Garnishments represent an area of potential liability for several reasons: employee or account holder misidentification, honoring a writ that has expired, or failure to include identifying information with the payment.  The Professional Liability Fund has witnessed all three errors.

Believe it or not businesses who are garnishees frequently issue payments with blank check stubs and no attached documentation. While privacy or identity theft concerns may impose limitations on the amount of identifying information provided, it is crucial that the garnishor be able to identify the debtor and match payments received to the proper account. Otherwise your client’s check is useless. Furthermore, the identifying information cannot be cryptic. For example, a partial home address for the debtor with no other information (debtor’s name, account number, TIN, circuit court case number).

This is not just an issue for the garnishors who are trying to process payments. Your garnishee clients need to maintain a proper audit trail. Check stubs and related accounting entries should carefully detail the identity of the debtor and any other information needed to substantiate funds withheld.

For those who are skeptical, this problem is rampant. And it isn’t an issue limited to small Mom and Pop businesses who don’t know how to properly respond to garnishments. Large banks and employers regularly send off checks to garnishors with little or no identifying information that can be linked to a debtor. Please advise your clients to keep proper records and include sufficient information to identify the account holder or employee whose funds are being garnished.

A side note for those of you who are garnishors or who represent garnishors: Many lawyers who handle collections send calculation sheets to their garnishees. Your calculation sheets should contain appropriate identifying information.  Instruct garnishees to return the calculation sheets with their payment and track garnishee names in your collection system to aid in processing and matching payments.

All Rights Reserved Beverly Michaelis (2013)

Social Media Bill Passes Oregon Senate

Today the Oregon Senate passed HB 2654B which would forbid employers from demanding access to potential employee’s social media accounts. Read the full story at KATU. Maryland started the trend, which has spread to other jurisdictions. Twenty eight states are entertaining similar legislation.

For a related discussion, see this post.

Can You Screen Employees Using Facebook?

Today’s post from the ABA Journal Law News Now reports on a study claiming that Facebook posts can predict job performance. I have no doubt this is true – to some extent.  However, employers should be exceedingly wary about using Facebook or similar methods to screen potential employees.  Here are timely reminders about what employers can and cannot do when using the Internet as a hiring/screening tool:

Excerpted from Digging the Dirt: Digital Tips for Employers and Job Seekers by Tamara Russell of Barran Liebman:

Potential Equal Employment Opportunity Liability

“If an employer Googles an applicant’s name or reviews an applicant’s Facebook public profile, the employer could technically be “interviewing” that applicant.  An Internet search, for example, could reveal that an applicant is on a cancer survivor’s Web site, or pictures of the applicant wearing a burqa – both of which place the applicant in protected class categories.  If an unsuccessful applicant learns about that Internet search, the applicant might argue that the employer based its decision (either consciously or unconsciously) with a discriminatory bias.”

Genetic Information Nondiscrimination Act (GINA)

Currently, employers are liable for acquiring genetic information about an employee unless the information is commercially and publicly available.  (The Internet fits within this definition.)  However, final regulations have yet to be adopted, and it is possible the EEOC will exclude personal Web sites or social networking sites if password protected.

Criminal Background Checks

“If an employer Googles a candidate and discovers on a newspaper’s Web site that a candidate has a criminal background, the employer must be mindful of the civil rights laws that may be implicated if the candidate is disqualified from employment for that reason.”  (See Ms. Russell’s discussion of the recent case, EEOC v. Freeman, in the original article.)

Credit Check Reports

Effective July 1, 2010, Oregon law prohibits employers from using or obtaining a job candidate’s credit history for employment purposes.  Limited exceptions apply.  “An employer who conducts Internet searches on a candidate, discovers information about an applicant’s credit history, and refuses to hire that personal because of the results of that search may violate this new law.”  (And other civil rights laws discussed in the article.)

Bankruptcy and Civil Court Filings

Federal law prohibits employers from discriminating against an applicant based on the applicant’s bankruptcy history.  Oregon laws provide additional protections for certain civil and administrative filings.

Stored Communications Act

Federal law “makes it illegal for any person to intentionally access stored communications without authorization.”  The only exception?  If the user authorizes access.  “Any time an employer accesses a restricted Web site to look into the activities of an applicant or an employee, it must do so with the full and free consent of someone who already has access to that site.  Getting that consent in writing is a good idea.”

Fair Credit Reporting Act

Employers who use third-party services to run background checks must follow FCRA notice and disclosure requirements.  “Whether an employer implicates FCRA when it does an Internet search on a candidate apparently has not yet been tested in the courts.  It seems unlikely, however; Google and Facebook would not likely fall within the statute’s definition of a ‘consumer reporting agency.’”

Will the Real Beverly Michaelis Please Stand Up

As Ms. Russell points out, the final trap to using the Internet as a screening device may be the search itself.  Unless a searcher is precise and careful, it is easy to bring up multiple instances of a candidate’s name.  For example, I like to think of my name as relatively unique, however there is a public profile for a “Beverly Michaelis” on Facebook (not me) and I have received at least two Google Alerts informing me that “Beverly Michaelis” died.  (I’m happy to report this Beverly Michaelis is alive and well.)

Ms. Russell concludes with some final words of wisdom – both to employers and prospective candidates.  Her article is well worth reading.  For tips on hiring (and screening) potential job candidates, see Know Who You Hire.

Shortly before I first blogged about Ms. Russell’s article, I attended Ethical Traps in Cyberspace, a presentation at the 2010 ABA Annual Meeting.  Here are some further tips from that CLE, which touch on related areas of using the Internet to “dig dirt,” including discovery and social media policies in law firms:

Discovery

  • Beware of “friending” witnesses on social networking sites in preparation for litigation.  Such contact may be deceptive if the purpose or nature of the connection is not made clear.  The same may hold true if the lawyer asks a third party to make the contact.  See Philadelphia Bar Association Professional Guidance Committee Opinion 2009-02 (March 2009).
  • If an individual communicates with his or her lawyer using a work computer, the communications may or may not be protected by attorney-client privilege: Scott v. Beth Israel Med. Ctr (no privilege in using work computer); Stengart v. Loving Care Agency, Inc. (e-mails sent via personal Yahoo! account on company laptop protected by attorney-client privilege.)
  • Serving a subpoena duces tecum on social media Web sites to obtain personal information of users is not permitted under the Stored Communications Act, 18 USC § 2701(a)(1).  Crispin v. Audigier.  Lawyers seeking social media content should rely on traditional discovery methods directed to the specific parties involved.
  • Employers are specifically prohibited from obtaining unauthorized access to their employees’ password-protected Web sites under the SCA.  See Konop v. Hawaiian Airlines, Inc. and Pietrylo v. Hillstone Restaurant Group.
  • The Internet Archive can be used to retrieve old Web pages.

Counseling Clients

  • Ask potential clients and witnesses about their use of social media; review social media content as needed.
  • Caution clients about posting anything related to their case, particularly content that may reflect on their character or credibility.  It may be best for the client to discontinue use of social media altogether.
  • Warn your client that opposing counsel or someone connected to opposing counsel may attempt to independently access the client’s profile or “friend” the client.  Even if this does not occur, social network postings may be within the scope of a traditional discovery request.
  • Be sensitive to spoliation of evidence issues, for example: if a client changes a pre-existing social network page, is this equivalent to altering a “document?”  What about changing privacy settings or deactivating or removing an account altogether?  Would the result be different if the profile was preserved before it was removed or changed?

Social Media Policies

  • Provide guidance on both employer-sanctioned and personal use of social media, in particular how personal use may affect the employer or the employee’s professional standing.
  • Remind employees that anonymity on the Web doesn’t exist.
  • All employees should respect the intellectual property of others and avoid posting content that is defamatory or inappropriate.  Using social media to “fire back,” harass, or negatively engage others can come back to haunt the employee and employer.
  • Additionally, lawyers and legal support staff should follow ethical parameters: protect client confidentiality, avoid giving legal advice, and use disclaimers as needed.
  • Social media policies should be drafted to encompass emerging technology and reviewed regularly.
  • PolicyTool is a good place to start if you need to craft a social media policy.

Internet Marketing for Lawyers

  • Good judgment is essential when using social media.
  • Marketing via the Internet should comply with ethical rules regarding advertising, solicitation, and the unauthorized practice of law:
    • Real-time electronic contact is specifically prohibited by ABA Model Rule 7.3(a).
    • Web sites and blogs should specifically state the jurisdictional limits of the attorney’s practice to avoid UPL issues.
    • Content should be current, accurate, and subject to substantiation.
    • Content should not create false expectations.
  • Jurisdictions vary.  Know the rules of your specific state(s).

Facebook and MySpace

  • Review your privacy settings, checking all sections and subsections.  Perform this review on a regular basis, as social media providers change settings frequently.
  • As with any Web site, use strong passwords or better yet, a pass phrase, and change it from time-to-time.
  • Take control of what “friends” or “friends of friends” may post about you, especially when tagging you in photographs.
  • Limit use of games or third party applications that access your personal profile.
  • “Friending” judges before whom you appear is probably best avoided.  In Florida, judges are specifically prohibited from “friending” lawyers who appear before them to avoid the appearance of impropriety: Florida Supreme Court Judicial Ethics Advisory Committee Opinion Based on: Florida Canon 2B.

LinkedIn

  • Use of LinkedIn’s “specialties” may be problematic.  Research your jurisdiction.  If necessary, use a disclaimer or leave this area of your profile blank.
  • Also proceed cautiously with regard to client recommendations.  Since all LinkedIn recommendations must be approved by the user, use this opportunity to correct any content that may run afoul of the rules.  For example, it may be necessary to ask the client to add disclaiming language or delete content that constitutes an inappropriate comparison.
My thanks to John Lichtenberger, @AdvertisingLaw, for his tweet this morning alerting me to the ABA Journal post.  If you’re on Twitter, please follow John for informative posts focusing on advertising law, social media, marketing. client relations, and breaking news affecting the legal profession.