Sixth Circuit Clarifies When Statute of Limitations Commences in False Claims Act Whistleblower Retaliation Cases

On January 10, 2022, the Sixth Circuit held in El-Khalil v. Oakwood Healthcare, Inc., 2022 WL 92565 (6th Cir. Jan 10, 2022) that the statute of limitations period for a False Claims Act whistleblower retaliation case commences when the whistleblower is first informed of the retaliatory adverse employment action.

El-Khalil’s False Claims Act Whistleblower Retaliation Claim

While working as a podiatrist at Oakwood Healthcare, El-Khalil saw  employees submit fraudulent Medicare claims, which he reported to the federal government. In 2015, Oakwood’s Medical Executive Committee (MEC) rejected El-Khalil’s application to renew his staff privileges.  After commencing a series of administrative appeals, El-Khalil found himself before Oakwood’s Joint Conference Committee (JCC) on September 22, 2016. The JCC, which had the authority to issue a final, non-appealable decision, voted to affirm the denial of El-Khalil’s staff privileges.  On September 27, 2016, the JCC sent El-Khalil written notice of its decision.

Three years later, on September 27, 2019, El-Khalil sued Oakwood for retaliation under the False Claims Act whistleblower retaliation law.  Oakwood moved for summary dismissal on the basis that the claim was not timely filed in that the JCC’s decision became final when it voted on September 22, 2016 and therefore the filing on September 27, 2019 was outside of the 3-year statute of limitations. The district court granted Oakwood’s motion and El-Khalil appealed.

Sixth Circuit Denies Relief

In affirming the district court, the Sixth Circuit held that the text of the FCA anti-retaliation provision (providing that an action “may not be brought more than 3 years after the date when the retaliation occurred”) is unequivocal that the limitations period commences when the retaliation actually happened. It adopts “the standard rule” that the limitations period begins when the plaintiff “can file suit and obtain relief,” not when the plaintiff discovers the retaliation. The retaliation occurred on September 22 when the JCC voted to affirm the denial of El-Khalil’s staff privileges, and the JCC’s September 27 letter merely memorialized an already final decision.

In addition, the Sixth Circuit held that the False Claims Act’s whistleblower protection provision does not contain a notice provision. As soon as Oakwood “discriminated against” El-Khalil “because of” his FCA-protected conduct, he had a ripe “cause of action triggering the limitations period.” The court noted that if an FCA retaliation plaintiff could show that the employer concealed from the whistleblower the decision to take an adverse action, the whistleblower might be able to avail themself of equitable tolling to halt the ticking of the limitations clock.

Implications for Whistleblowers

Some whistleblower retaliation claims have a short statute of limitations and therefore it is critical to promptly determine when the statute of limitations starts to run.  For most whistleblower retaliation claims that are adjudicated at the U.S. Department of Labor, the clock for filing a complaint begins to tick when the complainant receives unequivocal notice of the adverse action.  Udofot v. NASA/Goddard Space Center, ARB No. 10-027, ALJ No. 2009-CAA-7 (ARB Dec. 20, 2011).  If a notice of termination is ambiguous, the statute of limitations may start to run upon the effective date of the termination as opposed to the notice date.  Certain circumstances may justify equitable modification, such as where:

  1. the employer actively misleads or conceals information such that the employee is prevented from making out a prima facie case;
  2. some extraordinary event prevents the employee from filing on time;
  3. the employee timely files the complaint, but with the wrong agency or forum; or
  4. the employer’s own acts or omissions induce the employee to reasonably forego filing within the limitations period.

See Turin v. AmTrust Financial Svcs., Inc., ARB No. 11-062, ALJ No. 2010-SOX-018 (ARB March 29, 2013).

When assessing the statute of limitations for whistleblower retaliation claims, it is also critical to calculate the deadline to timely file a claim for each discrete adverse action or each act of retaliation.  However, in an action alleging a hostile work environment, retaliatory acts outside the statute of limitations period are actionable where there is an ongoing hostile work environment and at least one of the acts occurred within the statute of limitations period.  And when filing a retaliation claim, the whistleblower should consider pleading untimely acts of retaliation because such facts are relevant background evidence in support of a timely claim.

Article By Jason Zuckerman of Zuckerman Law

For more whistleblower and business crimes legal news, click here to visit the National Law Review.

© 2022 Zuckerman Law

January 2022 Legal News Roundup: Law Firm Moves, Hiring & Recognition

Happy 2022 to all of our readers! We hope you all had a safe and healthy New Year. Read on for more legal industry updates.

Recent Law Firm Moves and Hiring

Van Ness Feldman law firm elected three new partners in their Seattle office:

“Clara, Steven, and Chris have distinguished themselves not only through their professional accomplishments, but by their relationships with clients and colleagues. They reinforce the firm’s collaborative culture,” said Van Ness Feldman Seattle Managing Partner Tadas Kisielius.

Stubbs, Alderton & Markiles (SA&M)  have expanded their firm with the additions of Apparel and Fashion lawyer Mark Brutzkus and litigator Nick Rozansky to their office in Southern California.

Mr. Brutzkus represents consumer product companies in various e-commerce and sourcing issues, and has advised apparel, textile and consumer product clients during various stages of the corporate process.

“SA&M is an excellent platform for me to expand my consumer product practice, particularly because the Firm has unparalleled experience working with venture-backed emerging growth, middle-market public, large technology, and entertainment and digital media companies, as well as investors, venture capital funds, investment bankers, and underwriters. More and more of my clients are asking for ancillary practice areas and specialized attorneys who can help with long term, holistic goals,” said Mr. Brutzkus.

Mr. Rozansky advises corporate clients on various issues including litigation matters, risk avoidance, IP protection, and more. When necessary, Mr. Rozansky handles more high-stakes cases such as infringement issues, contract cases and shareholder disputes.

“This move provides my clients with much needed corporate and M&A expertise, and greatly expands my litigation capacity by joining three renowned litigation partners and several extremely capable litigation associates,” said Mr. Rozansky.

“Mark and Nick share the values that make up our unique and coveted culture at Stubbs Alderton, and we look forward to Mark and Nick making immediate and lasting contributions to our Firm,” said Scott Alderton, SA&M’s Managing Partner.

Gilbert LLP elected Heather Frazier to the firm’s partnership, effective January 1, 2022. Ms. Frazier focuses on insurance recovery in mass-tort proceedings, complex alternative dispute resolution, and other matters. Ms. Frazier has been with Gilbert since 2015.

“I am thrilled to join the partnership at Gilbert alongside the most innovative and dynamic lawyers I have had the fortune to know. I look forward to continuing to contribute to the firm’s growth and unique culture in this new role and assisting our clients in resolving the unresolvable,” said Ms. Frazier.

“In her time with us, Heather has established herself not only as an excellent lawyer, but also as an outstanding Gilbert citizen. She has been a true asset to all of us, serving our clients and our community with talent, dedication and tenacity.  We look forward to a long, exciting and mutually satisfying relationship with our newest partner,” said firm founder Scott Gilbert.

Bernstein Shur law firm announced the election of four attorneys to shareholder:

“This is an outstanding group of lawyers. They’ve each shown impressive dedication not only to their clients but also to our local communities and the legal profession. I’m confident they will continue to use their deep knowledge and skills to deliver high-quality legal counsel to help our clients meet their business goals,” said Bernstein Shur CEO Joan Fortin.

Legal Industry Recognition and Awards

Polsinelli’s intellectual property department recently ranked in three of Patexia Inc.’s reports: ANDA Litigation Intelligence Report, IPR Intelligence Report and CAFC Intelligence Report.

The firm received multiple awards, including ranking among the Best Performing and Most Active Law Firms in several categories in Patexia Inc.’s 2021 ANDA Litigation Intelligence Report. Polsinelli also ranked among the Best Performing and Most Active Law Firms, which evaluated 243 law firms and 1,471 attorneys on activity and performance within the Hatch-Waxman/ANDA space.

“Our team continues to work hard and provide excellent client service, which is on display as we continue to rank highly in Patexia’s various reports,” said our Intellectual Property Department Chair Pat Woolley. “As one of the nation’s largest IP practices, our commitment to focusing on our clients’ businesses and service needs has again enabled us to earn recognition as one of the best performing firms.”

Dinsmore earned a diversity award from Crain’s Cleveland Business in its issue recognizing seven “notable businesses championing diversity and inclusion.” Dinsmore recently earned Mansfield Rule 4.0 Certification Plus for the 2021 iteration of the diverse leadership hiring initiative.

The firm also launched a  Pre-Law Minority Program to help students of color at four Kentucky universities, as well as creating a fellowship with Procter & Gamble and the Ohio Innocence Project at Cincinnati Law for a recent diverse law school graduate to gain experience in civil rights litigation and policy.

Everyone has a customer in the business world, and the customer population is becoming more diverse,” partner Richik Sarkar told Crain’s. “Look around your company. If everyone seems the same, especially in leadership, you’ll have a problem serving your customer, and if you don’t take steps to understand your customers, you’ll face failure sooner rather than later.”

Six Wiggin and Dana attorneys are included on the Best Lawyers in America® 2022 Family Law Edition.

They include the following partners:

And one associate is included on the Best Lawyers 2022 “Ones to Watch” list:

Chief Justice Stuart Rabner and the Supreme Court of New Jersey appointed Stark & Stark Shareholder Bhaveen Jani to the Supreme Court of New Jersey to the Supreme Court Committee on the Unauthorized Practice of Law.

“I am honored to have just been appointed to an important Supreme Court Committee where I will be able to protect the people in New Jersey and the legal profession from the unauthorized practice of law,” said Bhaveen. “Great responsibility comes with being an attorney, especially for our clients and the community, and this committee will work to protect those we serve.”

Mr. Jani’s three year term began January 1, 2022, and will end on December 31, 2024. Mr. Jani is part of a number of professional organizations in New Jersey, which qualified him for the position. These organizations include the New Jersey State Bar Association, the South Asian Bar Association of New Jersey, the New Jersey Association for Justice, the American Association for Justice, the Hunterdon County Bar Association and the Mercer County Bar Association.

The committee performs three major functions, including supplying advisory opinions, inquiry into complaints and investigation of the unauthorized practice of law.

Shumaker attorney Melanie Griffin was appointed by Florida Governor Ron DeSantis as the Secretary of the Florida Department of Business and Professional Regulation (DBPR). Ms. Griffin has advised businesses in a variety of commercial law issues and also has substantial employment law and trust and estate experience as well. Ms. Griffin has been recognized by many organizations over the years for her outstanding leadership efforts.

“I’m so pleased for Melanie to have this opportunity to service the citizens of the state of Florida,” said Ron Christaldi, Shumaker’s Tampa Managing Partner and President of Shumaker Advisors Florida. “With her depth of experience and her understanding of the business community, she will be an excellent leader of this important state agency.”

Shelli Erffmeyer and Renee Stallions, employees at Varnum LLP, were recently named Unsung Legal Heroes by Michigan Lawyers Weekly. The publication’s award recognizes non-attorney legal professionals who frequently surpass expectations and go above and beyond in their roles. Ms. Erffmeyer, a legal assistant supporting Varnum’s Litigation practice group, has been noted for her outstanding initiative and dedication, especially through the ongoing COVID-19 pandemic. Ms. Stallions, a senior systems applications analyst in the firm’s Information Technology Department, has been noted for her considerable flexibility and work ethic, ensuring Varnum’s technology continues to operate efficiently across all offices.

“Both Shelli and Renee are very deserving of this recognition. Their exemplary service and commitment to the firm was especially appreciated this past year throughout the challenges of the pandemic,” said Scott Hill, Varnum Executive Partner. “As we congratulate Shelli and Renee, we are once again reminded of the vital role of our support staff. Their contributions are critical to the success of our firm.”

Much Shelist, P.C. has announced its new membership in the Law Firm Antiracism Alliance (LFAA). The LFAA, which seeks racial equality and systemic change in the law, helps to coordinate allied law firms in order to enact change that benefits underserved and oppressed communities. Previously, Much has assisted the LFAA in filing an amicus brief before the Supreme Court, which argues that the Court should consider the retroactive application of Ramos v. Louisiana (which holds that non-unanimous jury verdicts are unconstitutional).

“We’re proud to join the nearly 300 Alliance firms working together to address systemic racism in the law,” said Steve Blonder, chair of the firm’s social responsibility initiative, Much Community. “It’s our privilege and our responsibility to continue working for the rights of marginalized people.”

Copyright ©2022 National Law Forum, LLC

Article By Hanna Taylor,  Rachel Popa and Chandler Ford of The National Law Review / The National Law Forum LLC

For more articles on the legal industry, visit the NLR Law Office Management section.

U.S. Supreme Court Lifts Preliminary Injunctions on Healthcare Worker Vaccine Mandate

On January 13, 2022, the United States Supreme Court upheld the Centers for Medicare & Medicaid Services (“CMS”) Interim Final Rule (the “Rule”) in a 5-4 decision, staying the preliminary injunctions issued for 24 states by the District Courts for the Eastern District of Missouri and the Western District of Louisiana.  Therefore, the CMS vaccine mandate is in full effect for all states except Texas, which was not part of the cases before the Court.  The Rule requires nearly all workers at Medicare- and Medicaid-certified facilities—whether medical personnel, volunteers, janitorial staff, or even contractors who service the facilities—to be fully vaccinated against COVID-19 unless they qualify for a medical or religious exemption.

The Court based its holding on two main points.  First, the Court held that Congress clearly authorized CMS to put conditions on funding it provides to the Medicare and Medicaid certified facilities.  The Court opined that perhaps CMS’s “most basic” function is to ensure that regulated facilities protect the health and safety of their patients, noting that Medicare and Medicaid patients are often some of the most vulnerable to infection and death from COVID-19.  Because CMS determined that a vaccine mandate is necessary to protect patient health and safety, the Court held the mandate “fits neatly within the language of the [authorizing] statute.”  The Court acknowledged that CMS has never required vaccinations in the past, but attributed this in part to the fact that states typically already require necessary vaccinations like hepatitis B, influenza, and measles for healthcare workers.

Second, the Court held that the mandate is not arbitrary and capricious, and cautioned the district courts that their role is merely to make sure an agency acts within the “zone of reasonableness.”  The Court found the administrative record sufficient to explain CMS’s rationale for the mandate and also accepted that getting the vaccine mandate in place ahead of winter and flu season satisfied the “good cause” standard for skipping the notice and comment period.

Healthcare employers subject to the Rule should immediately start implementing vaccine requirements if they have not already.  It is anticipated that in all states but Texas, CMS will likely begin enforcement of the vaccine mandate in approximately 30 days.  On December 28, 2021, CMS released guidance to state surveyors with enforcement standards to use starting 30 days from the memo, though at the time the memo only applied to the 25 states that were not enjoined.  Healthcare employers should also keep in mind that this is not the end of the road: the Court’s holding only means that the CMS vaccine mandate is in force while the 5th and 8th Circuits complete their review of the underlying state challenges to the mandate.  While the Supreme Court’s opinion sends a strong message that lower courts should uphold the mandate, there is no guarantee they will do so.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size-fits-all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Article By Keeley A. McCarty and Ashley T. Hirano of Sheppard, Mullin, Richter & Hampton LLP

For more health law legal news, click here to visit the National Law Review.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.

7 Tips to Avoid Employer Mandate Assessments and Penalties under the Affordable Care Act

As we discussed in a prior article, it is now more important than ever for employers to ensure they fully and accurately complete IRS Forms 1094-C and 1095-C — forms required to be filed and/or furnished to employees under the Affordable Care Act. A failure to do so can lead to eye-popping proposed employer shared responsibility payment (ESRP) assessments, as well as information reporting penalties.

To avoid such costly mistakes, employers should keep the following seven tips in mind when completing or reviewing Forms 1094-C and 1095-C:

Form 1094-C

  1. Be very sure that the “Yes” box is checked on Line 23, column (a) to state that minimum essential coverage was offered for all 12 months.

This is far and away the single most important data entry on both forms. The box should always be checked for an employer who provides minimum essential health coverage to all full-time employees in accordance with the Affordable Care Act (ACA). Failing to check this box may result in an automatic ESRP assessment of up to $2,700 per full-time employee for 2021. The amount is adjusted annually.

  1. Know when to check the box on Line 22 for “Qualifying Offer Method.”

If an employer is eligible to use the Qualifying Offer Method, it should check this box only if it is reporting offers of coverage on Forms 1095-C using code 1A.

Form 1095-C

  1. Conduct a coding audit and know where to prioritize.

Each of the below tips and other points of review for Forms 1095-C should be addressed prior to the furnishing and filing of the forms. Only by reviewing and understanding the codes can an employer have confidence that it will avoid an ESRP assessment or accuracy-related information return penalties. Of course, depending on the number of employees, reviewing the coding for all employees may be impracticable. Thus, employers should prioritize the following situations for review:

  • Forms for employees who were hired, terminated, or who experienced a change in status during the year;
  • Forms where code 1H is reported; and
  • Forms for employees who are more likely to be eligible for the premium tax credit (e.g., employees earning less than $51,040 in 2021).
  1. Review for “red flag” coding combinations on lines 14 and 16.

The following code combinations are triggers for an ESRP assessment and should never be used by an employer who provides minimum essential health coverage to all full-time employees: 1H/__, 1H/2C, 1H/2F, 1H/2G, and 1H/2H. All of these code combinations report that no offer of coverage was provided but fail to state a valid reason for why an ESRP should not apply. Where no offer of coverage is made, only one of the following code combinations should be used: 1H/2A, 1H/2B or 1H/2D.

  1. Review for incomplete coding on lines 14 and 16.

For employers who are not using the Qualifying Offer Method, both code series (series 1 and series 2) on lines 14 and 16 should always be completed for all months on the Forms 1095-C of all full-time employees. However, if an employer is using the Qualifying Offer Method, then it will be acceptable in many instances to use only code 1A and to leave the series 2 code blank.

  1. Make sure the safe harbor code reported on line 16 actually applies.

In more recent years, the IRS has begun scrutinizing the series 2 safe harbor codes reported by employers on line 16. For example, the IRS will automatically reject an employer’s use of code 2G, the federal poverty line safe harbor, if the monthly employee required contribution reported on the Form 1095-C exceeds $104.53 for a month in 2021.

  1. Ensure the waiting period is coded correctly on lines 14 and 16.

If an employee is in a waiting period on any day of a month, the month should be coded as 1H/2D to signify that the employee is in a limited non-assessment period. This code can only be used for up to four consecutive months for each period of employment. If an employee was terminated and rehired in the same year, the employer should determine whether the waiting period and code 1H/2D can be applied again under the rules for determining periods of employment.

© 2022 Bradley Arant Boult Cummings LLP

SCOTUS Cert Recap: Civil Procedure, Bankruptcy, And Worker’s Comp

This week, the U.S. Supreme Court granted three of the cert. petitions it considered at its first conference of the new year.

The Court agreed to hear issues involving: 1) the grounds for relief from a final judgment under Federal Rule of Civil Procedure 60(b)(1), 2) the limits on Congress’ authority to apply different bankruptcy rules to different parts of the country, and 3) the scope of states’ authority to apply their workers’ compensation laws to federal facilities.

Such issues are not the most high-profile the Court will address this term, as underscored by the absence of cert-stage amicus briefs in all three of the cases (though this is less uncommon than one might think; by our calculations, about 40 percent of the cert. petitions granted for plenary review last term lacked cert-stage amicus briefs). For governmental entities, bankruptcy practitioners, and federal court civil litigators, however, the cases are worth noting and following.

Rule 60(b) Motions for Relief from Final Judgment

In Kemp v. United States, the Court finally agreed to resolve what the cert. petition characterizes as a 50-year circuit split on whether the “mistake” prong of Rule 60(b)(1) authorizes relief based on a district court’s legal error. Rule 60(b) sets out six categories of reasons why a district court may relieve a party from a final judgment, including “mistake, inadvertence, surprise, or excusable neglect” under 60(b)(1) and “any other reason that justifies relief” under 60(b)(6). The lower courts agree that 60(b)(1) and 60(b)(6) authorize relief for at least some legal errors, but disagree about which of those provisions does so.

And that seemingly picayune distinction can matter. The Federal Rules require all 60(b) motions to be made “within a reasonable time” but set a hard one-year time limit for relief sought on 60(b)(1) grounds. This means that if Rule 60(b)(1) does not encompass legal errors, motions alleging legal errors would fall under Rule 60(b)(6) and would not need to meet the bright-line one-year rule – though such motions would then be subject to the Supreme Court’s additional requirement that 60(b)(6) motions establish “extraordinary circumstances” justifying relief. Accordingly, the question in this case can mean the difference between a timely and untimely 60(b) motion, and civil litigators should be on the lookout for the Court’s answer.

Congress’ Authority to Adopt “Uniform” Bankruptcy Rules

The Court will also take up Siegel v. Fitzgerald, where it will consider the meaning of the Constitution’s Bankruptcy Clause, which authorizes Congress to establish “uniform Laws on the subject of Bankruptcies throughout the United States.” The petitioner in this case contends that Congress violated this “uniformity” requirement by dividing the nation’s bankruptcy courts into two slightly different categories. Most operate under the U.S. Trustee program, while six (all in North Carolina and Alabama) operate under the Bankruptcy Administrator program.

In 2017, Congress increased the quarterly fees paid by debtors in large Chapter 11 bankruptcies from $30,000 to $250,000, and while this increase was immediately applicable to all pending and future cases in Trustee districts, it was imposed in Administrator districts nine months later, and then only to future cases. In Siegel the Court will decide whether this difference renders the 2017 statute unconstitutionally “non-uniform” (and, if the Court concludes it is unconstitutional, there will be a further difficult question to tackle concerning how such a defect should be remedied). Notably, even the respondent (who is represented by the U.S. Solicitor General) urged the Court to take this case, observing that though Congress eliminated the difference in 2020, the question presented in this case could affect the status of approximately $324 million in quarterly fees imposed nationwide under the 2017 statute.

In light of such figures, bankruptcy professionals across the country – especially those with cases subject to the 2017 statute – will likely have a strong interest in what the Court will say.

Limits on States’ Application of Workers’ Compensation Laws to Federal Facilities

In United States v. Washington, the Court agreed to hear the federal government’s challenge to a Washington workers’ compensation law that applies exclusively to contractors at a federally owned nuclear-waste cleanup site. Under longstanding principles of intergovernmental immunity, state regulation of federal facilities is generally permissible only where such regulation is clearly authorized by Congress. And the federal government contends that the relevant statute here – which allows states to regulate workers’ compensation at federal facilities “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State” – does not permit states to single out federal facilities for unique treatment. The state of Washington, meanwhile, counters that states routinely apply different rules to different employers, and it argues that the federal statute simply authorizes such context-sensitive regulation at private and federal facilities alike.

The dispute accordingly consists of competing interpretations of a narrow federal statute (40 U.S.C. § 3172(a)), and it is therefore difficult to see how the case could have much broader significance outside the workers’ compensation context. Contractors working at federal facilities, however, may be interested to see whether the Supreme Court opens the door for future challenges to state workers’ compensation laws.

© 2022 BARNES & THORNBURG LLP

Article By Kian Hudson of Barnes & Thornburg LLP

For more articles on SCOTUS, visit the NLR Litigation / Trial Practice section.

U.S. Supreme Court Shoots Down COVID-19 Shot-or-Test Rule

The U.S. Supreme Court has blocked the Occupational Safety and Health Administration’s emergency “vaccine-or-test” rule mandating private employers with 100 or more employees to institute a policy requiring their employees to be vaccinated against COVID-19 or undergo weekly testing.

The Court ruled 6-3 to block the vaccine-or-test rule on the basis that OSHA had exceeded its authority in enacting the emergency rule. The Court described the rule as “a significant encroachment into the lives—and health—of a vast number of employees.” Had the rule not been rejected by the nation’s highest court, it would have required roughly 84 million workers to be fully vaccinated against COVID-19 or submit to weekly testing and wear a mask at work. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.

While blocking the vaccine-or-test rule for large private employers, the Court ruled 5-4 to allow a separate rule to take effect which mandates the COVID-19 vaccine for workers in nursing homes, hospitals, and other facilities that receive Medicare and Medicaid payments from the federal government. The Court reasoned that the regulation serves to protect patients and ensure that healthcare providers take steps to avoid transmitting a dangerous virus to their patients. The Court noted: “It would be the very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19.” Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett dissented.

©2022 Roetzel & Andress
For more articles on SCOTUS, visit the NLRLitigation / Trial Practice section.

Let’s Eat Grandma = Let’s Eat, Grandma?

To the possible dismay of grammar purists, a federal court recently found that an insurance policy provision meant the same thing whether or not it included a comma before a key phrase. After poking fun at insurance policies (“long been the butt of jokes”), the court recognized that they can “provide fodder for scores of attorneys, grammarians, and logophiles” like when “the placement (or omission) of one comma can make the difference.” This case is an example.

The policy covered Constantin for claims related to “services directed toward expertise in banking finance, accounting, risk and systems analysis, design and implementation, asset recovery and strategy planning for financial institutions.” Constantin sought coverage for an underlying litigation that involved “services directed toward expertise in . . . accounting.” But that litigation did not involve services “for financial institutions.”

So the question was whether “for financial institutions” applied just to the service immediately preceding it or to all services identified in the provision, including accounting services. The court found that it modified the entire series, explaining that “while commas at the end of a series can avoid ambiguity, the use of such commas is discretionary.”

Bottom line: While a comma can save grandma’s life, it couldn’t save coverage here.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.

Article By Patrick M. McDermott and Casey L. Coffey of Hunton Andrews Kurth

For more articles on insurance, visit the NLR Insurance Reinsurance & Surety section.

How Does SEO Help Law Firms? 10 Benefits

How Does SEO Help Law Firms?

Search Engine Optimization (SEO) is one of the most effective marketing strategies for law firms. Think about it: What better way to reach potential clients than in Google?

After all, people use Google to search for lawyers and legal service providers in their area – more than any other platform. SEO empowers law firms to rank high in the search results and attract clients who are already looking for services like theirs.

But SEO doesn’t just help law firms attract new clients. There are many benefits to adopting a law firm SEO strategy.

1. Organic Traffic

SEO is first and foremost focused on improving a website’s Google rankings and driving organic traffic. Most often, the goal is to rank high, consistently, in Search and earn organic visitors for the long term.

Lawyers can optimize their website for the search terms (“keywords”) people are using to search for their services. For example, if you are a family lawyer in Denver, you can attempt to rank for “denver family lawyer,” “family lawyer in denver,” “family law attorney denver” and the like.

Organic (unpaid) marketing is great because it doesn’t require a hefty ad spend in order to yield results. You can adopt your own SEO strategies to rank your website or choose to hire an SEO professional to aid the process.

2. Improved User Experience

Believe it or not, SEO is not just about pleasing the Google gods. In actuality, your goal should be to provide the best website experience, content, and information to your prospective visitors. Google’s algorithm serves to rank content that best matches what users are searching for.

SEO necessarily improves user experience (UX) because UX is included in Google’s known ranking factors. The speed, interactivity, and accessibility of your website are all important in terms of pleasing visitors and letting Google know your website is optimized.

A great UX keeps users on your website for longer and encourages them to “opt in” (contact you) rather than going to your competitors.

3. Faster Website Speed

Google assesses a website’s Core Web Vitals in order to determine that a website is fast and that its content is easily rendered to users. In other words, it wants to ensure that when users land on your site, it doesn’t take decades for your content to load.

Slow website speed can be a huge deterrent to potential clients. If your website takes too long, they are likely to go elsewhere. Also, slow website speed often means you have “heavy” images and code on your site, which can essentially glitch out or fail to load when users interact with them.

An effective SEO strategy works to improve your website’s Core Web Vitals across the board so you’re sure to provide a fast, user-friendly website experience to your visitors.

4. Better Content Marketing

The success of your SEO is largely driven by content. The content on your web pages and on your blog posts work to attract the right kinds of users to your site, improve your site’s authority, and so much more.

When you care about SEO, you care about your content, and in turn, create better content for users and for search engines. Better content not only ranks higher in Search, but it is more readily shared by users. Plus, your written content is often what ultimately convinces people to hire you.

5. Earned Links and Authority

Backlinks (links from other websites) are essentially votes of confidence from outside sites that your website is informative, factual, and valuable to users. Every SEO strategy aims to earn these authority-boosting links to show Google your website is legit.

Earned authority can improve your website’s appearance in search. At the same time, links from other websites can drive additional traffic to your website. Blogging, content marketing, and outreach are just a few ways law firms can earn backlinks for SEO.

6. Referral Traffic

Referral traffic is traffic that comes in via outside links or from other websites. SEO can help drive referral traffic to your site, because other sites begin to notice your content and want to link to it.

At the same time, most law firms adopt a localized SEO strategy that involves submitting their business information to local directories. These directories can then send more visitors (and leads) to your website.

Also, publishing expert-level content can grab the attention of other blogs and publications, which may then choose to feature you. Then, you can get this referral traffic via interviews, podcasts, and guest posts.

7. More Phone Calls

Law firm SEO often requires a localized strategy in order to target users in a specific service area. To do this, law firms can produce geo-specific content on their websites, submit to local directories, and even create a Google My Business listing.

Local SEO helps law firms get noticed in local search. With local listings, law firms can share their business contact information to drive more phone calls and leads.

In short, visitors don’t even need to visit your website if they are able to find your phone number directly from Google!

8. Improved Client Intake

Website optimization makes it far easier to collect lead information and file it away for better client intake. By including contact forms and contact information on your website, you can generate more digital leads and save this information to your client management system.

If you are strictly relying on phone calls, you’re likely missing out on a ton of potential leads. Contact forms, chat bots, and opt-ins make it easier than ever to gather lead information in real-time. You can even automate text messaging or email follow-up to reach potential clients faster.

9. Local and Foot Traffic

Local SEO also makes it easier for potential clients to find your physical office. You’re able to post your address and other business information so people can visit you in person, without ever having to go to your website.

Localization also sends geo-specific “cues” to Google telling it where your business exists and the areas it serves. If you have this information, it makes it more likely you will appear in the right local search results for the right audience. This is especially true if you work in a competitive market, but your competitors have not implemented SEO.

10. Reviews and Ratings

Reviews and SEO present a “chicken and the egg” situation; great reviews influence SEO, and SEO helps law firms earn reviews. There’s no way to go wrong!

Positive client reviews indicate to Google (and users) that your law firm is trustworthy, real (important!), and highly revered. SEO, in turn, encourages law firms to reach out and generate more positive reviews so they can improve their rankings.

Think those 5-star ratings don’t matter for Search? Think again! Not only do potential clients want to see those shining reviews, but Google values your business’s reputation as well. So don’t forget about reviews when it comes to your SEO.

SEO helps put your law firm on the map

SEO helps law firms beyond just traffic and lead generation; it provides a well-rounded marketing strategy that improves your business’s overall digital presence. And a better digital presence means more opportunities to attract new legal clients!

Every law firm should adopt SEO in order to improve user experience, website speed, content, and local visibility. This is one of the best ways to drive sustainable, organic traffic and put your website on the (Google) map.

Copyright 2022 © Hennessey Digital

Article By Jason Hennessey of Hennessey Digital

For more articles on SEO, visit the NLR Law Office Management section.

Episode 9 – Mental Health and Relationships in the Legal Industry with GrowthPlay [PODCAST]

Rachel and Jessica discuss the new focus on mental health and connection within the legal industry. Deb Knupp from GrowthPlay joins with her expertise and shares how GrowthPlay encourages law firms to get away from transactional practices and instead work toward positive talent and client experiences.

We’ve included a transcript of our conversation below, transcribed by artificial intelligence. The transcript has been lightly edited for style, clarity, and readability.

 

 

INTRO  00:02

Hello, and welcome to Legal News Reach, the official podcast for The National Law Review. Stay tuned for a discussion on the latest trends in legal marketing, SEO, law firm best practices and more.

Rachel  00:15

I’m Rachel.

Jessica  00:17

And I’m Jessica. And we’re the Co-hosts for The National Law Review’s Legal News Reach podcast.

Rachel  00:23

In this episode, we’re excited to talk to Deb Knupp, Managing Director for GrowthPlay. Deb, would you like to introduce yourself?

Deb Knupp  00:28

Well, I would. And thank you all so much for having me. And I have the good fortune of working in a business growth play. And we are a consulting firm that really uses a research and data driven approach to help our clients accelerate revenue, really amplify and elevate talent, and do so all in the context of creating exceptional client experiences. And so I principally work with law firms, we’ve we’ve served more than 50% of the am law 200. And we’re coming upon our 400 Law Firm engagement over the last 20 years. So it’s been a great ride, and what an honor it is to get to be with you guys today.

Rachel  01:11

Well, it’s an honor for you to join us. I’m sure all that expertise will be really useful to our listeners here. So one of the main focuses we wanted to really dial in on here are a lot of the opportunities created by the pandemic and where the legal industry goes from here. I think a lot of times people talk about the challenges of COVID-19. I think less often we talk about, you know, sort of the great opportunities that this pandemic created for the industry. So what do you think will be the greatest lessons learned that could propel the legal industry forward into the best version of itself,

Deb Knupp  01:43

You’ve heard, sometimes people say, you know, let’s not waste a good pandemic, and not get the lessons that we want to learn. And I think that the experience in the legal industry, and really what occurred in March of 2020, like it was across the world really required a certain level of crisis response, and how to navigate and abate fear, and then very quickly engage in what I think will be a pandemic word for the ages pivot to an approach that really allows business to continue and clients to be served. And when you look at some of the more significant things that I think law firms gained or are gaining, having responding to the pandemic is first, I think we obliterated the myth that you have to practice law only in the confines of bricks and mortar. I think that the the idea of having remote work or having a capacity to perform billable work at a quality level, at a responsiveness level, I think for many years pre pandemic, it was often assumed that the quality and the value is going to be achieved when it was done live and in the context of a building. And what I love now is that we have not only seen the continuity of excellence, and responsiveness and value continue to be generated over the last 20 months, I think there’s a lot of evidence to support that maybe we’ve seen an improvement in quality and responsiveness and engagement with clients. So I think in many respects, I think we’ve added another dimension into professional services and billable work delivery, that has the capacity to continue to drive even more value for clients and be incredibly valuable to talent. I think the second thing that the pandemic has certainly taught us is how critical it is to have systems for collaboration and communication. Again, if you look at the light switch, you know, immediately there was a grand exposure of how on networks, many organizations were in keeping connections with both internal relationships and client connectedness. And so again, I think that the heavy investments that were both necessary to remain in business and now I think are vital tools for ongoing connectedness and collaboration, I think we’re going to see a real benefit for the comfort and how we connect with clients. And even looking at us right now, as we’re connecting on a platform, you know, zoom and other virtual and web based platforms, I think there’s a lot of value in building greater depth of intimacy and relationships, greater access, for communication and connectedness. And I think the facilitation of utilizing platforms. Modernizing, if you will, the practice of law through the utility of technology, I think we got a grand, you know, drinking from a firehose kind of moment, to sort of prove that concept. I think the last thing and I think this is an important thing for us to continue to pay attention to, is there’s never been a place in time, at least in my lifetime, where I’ve seen the playing field absolutely levelled when it comes to the integration of work, and a person’s personal life and how we were all universally disrupted. In this space where our human connectedness and the desires and wants and needs for human flourishing, we really saw a reset,

Rachel  05:10

As you sort of alluded to, many law firms have done pretty well. And they perform well financially this past year. So what do you think will be the most important growth priorities for firms as well as sustain that growth long term?

Deb Knupp  05:24

Well, I think first and foremost, to sustain growth is not to believe that a blip is, is going to be consistent. If you’ve seen an inflection in your practice or growth in your practice, and just making the assumption that the volume of work the demand for work, sometimes what we see in times of prosperity is you are tempted to put a lot of investment in things because you anticipate that that pipeline in that workflow is going to have continuity, I think it’s really important to discern what financial growth have you experienced based on pent up demand, that will have a shelf life that will sort of run a course, and then re establish sort of what a new normal level of demand and interests are, and where we have seen innovation drive new lines of revenue, new ways to engage with clients in productive billable work, and really pour your attention into those kinds of services. As a good example, I think law firms have certainly gotten a lot more creative, on how to think about the advisory part or the counseling aspect of the practice of law versus maybe the transactional or dispute related parts of practice of law. So I think our ability to widen the purview of the advisory services, quality Council, and deliverables for which clients are delighted to invest in pay, I think we’re going to see a real opportunity for that kind of prioritization.

Rachel  06:50

So how are firms paying attention to the intersection of client experience and talent experience? And who’s driving that growth?

Deb Knupp  06:57

Well, I think we can say confidently, that those two things are inextricably linked, right. There’s no win, particularly in professional services. And more specifically, within a law firm, I think what we have absolutely gleaned certainly in the last 20 months, but as we even look beyond is that you cannot give away what you don’t possess. And I think that when we look at, if you’ve got an engaged workforce, if you’ve got talent, that loves the work that feels meaning and purpose in their work, they feel like they’re a part of something where their identity into something greater than their own individual practice or own individual contribution. If you’ve got a workforce that is really tuned in to that experience, it absolutely allows you to give a much higher, more high value, a premium way of really elevating what it feels like to be a client. When you are a person who feels invested in you have greater abundance to feel a capacity to invest in others. And so when you look at the intersection of the great resignation, you look at that talent shortages that are certainly come into play. When you look at some of the trend data around associate recruiting and retention, I think it’s incredibly important that law firms continue to see that that has as much to do with billable work and client development and business development, as you may be putting in trying to engage clients and invest in clients and, and do work for clients. And so I think there’s a great level of intersection. And I think law firms that are that are faring really well and will continue to stay in growth are putting as much attention in the talent experience. As we might have seen historically, pre pandemic, a lot of firms really investing what it means to create an unparalleled client experience. So I think these two things are very synonymous and going hand in hand. And I suspect that firms that win in the future will continue to see them as not disparate, but absolutely interdependent as we look ahead.

Jessica  08:58

That’s so great that you mentioned putting that extra energy and work into your clients. And I think that also is going to translate to your workers. Of course, a lot of firms right now are doing the diversity, equity, inclusion or DEI initiatives. They’re just trying to grow their practice to be better and connect with their clients in that way. So what are you seeing as far as DEI? What’s working well, what’s not working? I’d like to get your perspective on that.

Deb Knupp  09:24

I’ll start with just maybe some of the more daunting statistics, I think we have to really pay attention to some of the larger trend lines when you look at the research and data that comes out of, you know, reputable institutions that are looking at, you know, minority corporate counsel and how we’re seeing, you know, business demand and how firms are faring in responding to client or outside counsel, inside in house counsel, looking for their outside counsel to really match and meet diversity expectations. We have not yet fully seen a connectedness play itself out where numbers are increasing retentions increasing the mix of diverse counsel and serving and meeting client demands. We have not seen the lift in performance as of yet. And so the question really becomes, well, why not? Like what what’s missing here? I saw a recent statistic HBr consulting, does an annual law department survey. And as they look at all of the criteria, that out that in house law departments are looking for from their outside counsel, the single biggest jump in prioritization that they saw from their 2020 survey was a 14% increase in dei being a priority for selection and retention of preferred counsel. So demand is there. In house law departments, clients are saying, we want more diversity, equity inclusion, intersections with our firms, we want that and to see it at a double digit of growth and prioritization, I think that if you’re if you’re an outside counsel or private practice, we need to pay attention to this. At the same time, how we show up, though, in response to that, I think is where the innovation, ingenuity and creativity really have to come into play. And so when I think about firms that are doing really well, number one, I think they’re changing the question. The question that underscores a lot of dei initiatives right now is how do we get more women and lawyers of color to equity partnership, and that has been the brass ring of standards. When we think about retention, when we think about growth, it is all been predicated on, we know we’re being successful when we have more women, more lawyers of color in the equity partnership ranks or in the leadership ranks of a particular law firm. And while that is certainly a key indicator of success, if your firm is a destination firm, where lawyers of color and women and and LGBTQ attorneys can thrive. And that’s not the only metric. And in some cases, the desirability of being an equity partner in a law firm may not be the only destination that you might see your diverse talent wanting to move towards. So firms I think are doing well are widening the question, which is to say, what are all the paths of participation that would be desirable to retain the best and brightest diverse talent? What would have to be true about our firm and making those paths available? One path is ownership equity partnership. And are there other pads? Are there other designs of work structure, profile roles, structure compensation structures, that would really allow people who would be considered under the umbrella of diversity for them to want to work, not just based on one singular metric? And I think if we can begin to widen the question to say, What would have to be true about our firm, we’re diverse talent wants to do their best work, I think you’re gonna see a lot more innovation, a lot more adjustments in role design, I think our whole construct of associates and income partners and equity partnership and counsel, I think we’re going to see a shuffling of new jobs to emerge. I think what we think of is full time and flex time, I think we’re gonna see some radical transformations of that, I think how people get compensated, what it means to, you know, be available for various aspects of client service. I’m already starting to see firms start to address that. And I think those are incredibly positive things. I think the last thing that I’d say, again, where there’s still need, but I can tell you that firms are starting to invest in it, I think, a big reason why we’re seeing so much exit and again, pandemic is certainly revealed, you know, a big part of the great resignation has disproportionately impacted women. And I think when you look at the division of labor, and the realities of what it looks like to be a woman at work, who also is a parent or is caring for elderly parents or has a senior parent level of dependent care, we have seen this the statistics are highlighting is there is disparity, there is a significant amount of difference. And so I believe that law firms are really any organizations who can look at the data and say we acknowledge the data, and then design for things where again, not withstanding workforce availability or workforce, job designing in order to really meet the demand. So that resignation is not the only option. I think firms are going to have to start looking at different ways that we can attract and retain on a season of life basis, where people can move in and out of work velocity based on the other demands for time, whether that’s child care, elder care, but I think there’s also other demands on time, you know, based on academic interest or a desire to step away and maybe work in house be in business for a year or two and then returned to private practice. I think this will not only be useful across the entire workforce, regardless of diversity, I do think this is going to have a unique positive benefit. When we apply this in spaces where we’re navigating the retention and growth of individuals who would be considered diverse.

Jessica  15:19

I’m so glad you mentioned all of that, because so much of this labor shortage… I mean, I think a lot of these issues we’re covering today is why this is happening, you know, firms are finally -and I would actually argue any workplace- is finally spending that extra time if they can to put, you know, DEI initiatives as part of their brand, or as part of their firm skeleton, basically, their foundation, and even just taking care of employees differently. I mean, I think for so long companies weren’t really thinking about how can we take care of our employees mental health or, you know, work-life balance, and now that’s such a big focus. And I think it’s for the better in, especially in the legal industry? What are you seeing law firms do in their culture that can benefit or has benefited health and mental health in the workplace.

Deb Knupp  16:12

So first, when it comes to the great work that law firms are doing, I want to I want to highlight something that’s so important. In fact, there was a great research statistic that BTi consulting published is that the the large percentage of clients that have absolutely no idea what your law firm is doing in this space of Dei, and also in the space of employee health and well being. And so I think it’s critical to understand that when if you are a firm that is leaning into these things, and doing a lot to invest, and try to sort and to figure out and to and to be creative and having the freedom to redesign and re reimagine. I think it’s really important that where you were doing that not only making that known to your clients, certainly from a promotion and reputation building, I think it’s also really important to invite your clients into that conversation. I can say that right now, some of the best exchanges that I’m watching is that law firms aren’t trying to design these responses in a vacuum, but they are opening it up to be resourcing benchmarks and best practices from their their clients and other companies and other industries. So that we don’t have to go it alone. So let me just start there by responding and saying, Look, this is a place where there’s a lot of hard stuff going on. So your ability to not make it visible to your clients and also to invite others in. That’s that’s PERS response. More specifically, though, just on the on the construct of the mental health. So when you think about the shadow pandemic, and some of the things that experts are citing, and this is really at the risk of being my namesake of Debbie downer, I’m going to tell you that we need to wake up to this, because I don’t know that we’re talking about this enough, is that many mental health experts are suggesting that the cost and consequence for depression, anxiety, addiction, suicide, that the cost and consequence will be far greater and loss of life, and loss of productivity that we will see the crisis peak in 2024, that there is predictions that more people may lose their lives related to trauma coming out of the pandemic than the people who actually died from COVID-19. Now, if that doesn’t start to get our attention, we got to tile in and say, look, it’s like a tsunami that’s looming out there. And the question is, what are we doing right now? Because even if our own cultures, our own people aren’t a part of that statistic, where they aren’t struggling with trauma with mental health conditions with suicide, the probability that they have a plus one relationship in their life is almost assured that if it is not happening to your talent who works at your firm, I want you to examine how many of them are parents or aunts or nephew or aunts or uncles or grandparents to children between the ages of 18 to 24. At one point during the pandemic 25% of people aged 18 to 24 25%, one in four, contemplated or acted upon suicide. Think about one in four people between the ages of 18 and 24. How many people work at your law firms or your places of business, that have relationships with people in that age, not the least of which thinking about the impact of those incoming first years, who are just just a little older than this particular demographic. Consider this other difficult statistic. When you look at the rise of eating disorders, and the rise of anxiety and depression in diagnosable mental health conditions. Children between In the ages of 14 and 18, saw 300 to 400% increases in these diagnoses. And that doesn’t even take into account all of the other kinds of things that have been looming out there. With regards to social media and the impact of bullying, isolation and various other comparative data that really frightens me and as a parent of three teenage girls, I have to tell you, I’m paying attention to these things. So when a law firm can step back and say, Look, while this may not be happening today, we may not have people right now for whom this is an active issue. If we look ahead to the year 2024, what would we be doing today, in anticipation that this will become a thing for our firm or for our clients, and their plus ones. So my counsel or my recommendation to every managing partner and leader and law firms that I get to work with is to first of all acknowledge that we’re not separated from this. And in many respects, given the nature of billable work and the pressures to Bill and to be productive, that in some cases can exasperate these particular issues at a project at a pretty high clip and high calling. So I think that cultures that are going to be doing really well and addressing this are starting to understand that while we guess our EAP, or employee assistance programs, for access to mental health care, is something that is a baseline table stakes of employee benefits or or talent benefits, that’s a great place to start. I think that we also have to create more opportunities and access to creating conditions so people know how to be with people in suffering, that we that we master the communication techniques that you often learn in therapies, like the technique of validation, how do you hold space for people while they’re suffering? How do you not relegate someone into shame and isolation when they’re struggling with alcohol or drug addiction, or they have someone in their life that is, so I think it’s not only making sure that we have the care and support leaves of absence opportunities for people to have space and flexibility. I think we also have to create cultures that create the destigmatizing. One of my maybe my most compelling experiences during the pandemic, around this particular issue was a law firm that we work with Will the managing partner, in an effort to address the mental health conditions of the team, he himself created communication and visibility to a lifelong battle and struggle that he had had with depression, anxiety, and suicide, and how he made that visible and how he connected Himself to those sets of conditions as a role model. And as a way of saying, Look, you can look upon himself and say he’s the managing partner of a law firm. He’s one of the most successful people’s people in, in this ecosystem, and yet, his willingness to make visible his own journey, and how he’s navigating, and how he continues to create care around this. It’s that kind of courage that I think will allow us all to navigate the shadow pandemic with more grace, more compassion, more empathy, and as a result, more lives will be saved.

Jessica  23:08

I think that’s such a good thing that that attorney did, because mental health in particular, and you know, even in a regular work place, it’s such a silent I guess, the silent visitor, if you will, of people who work it even in a physical office, let alone remote work or hybrid, where you don’t even you already don’t really hear it or see it. But then you have people working remote, it’s harder to reach those people in general. You know, is there a way? What are some specific things firms can do up front to prevent some problems from starting in the first place? Are there any, you know, tactics that specific firm members have used Besides sharing their story? Because that’s a very good, I think, connective way to connect with people.

Deb Knupp  23:55

Absolutely. So I think it’s so in addition to I think creating systems for visibility and messaging, where courageous people can put a face against things that maybe are stigmatized, I think that that’s just as a general sense. Where you have willingness or courageous people who want to be advocates in this space and creating pathways for those stories to be told or those those messages to be shared. I think that that’s that’s a strong value, and will often fall under the umbrella of sort of firm communications. I think a secondary, as I’ve already mentioned, is I think taking a fresh look at your benefits programs and really understanding you know, is there parity and access to mental health coverage and and what does that look like with regards to essential priorities in the benefits plane designs, and how you can come alongside folks who may be struggling in getting proper care. In large part because of financial scenarios. I’ve seen more firms establish what I’d consider most like benevolence related funding such that that people anonymously can or to the firm I’m anonymous, but people can tap into hardship in a way that allows coverage if their benefits plans run out, or if there are not places where that kind of financial reinforcement can be made available. And I think that can be true not only in mental health, but that’s also when you’re navigating home insecurity, you know, food insecurity, and other conditions. So I think those are certainly places to look. I think, additionally, the advent of new benefits. One of my favorite things that I got exposed to during the pandemic, is an organization called home thrive and they they provide elder care, concierge services for eldercare, I think a growing area of depression and anxiety isn’t isn’t a person who is aging parents. The isolation, the shame, the struggle, and knowing how to navigate where parent, your child becomes parent, and how do you navigate that there’s an entire Benefits Service that brings that kind of elder care, concierge service and really helping provide resources to people like me, who have to navigate caring for an aging parent or an aging loved one. And so I think at looking innovatively and how to do that, we saw a lot of that in the childcare space. So again, I think that additions of things like elder care another arena, I’m also noticing a lot of firms are creating, for lack of another sermon, the construct of resource groups, where people can come together around particular areas of affinity, where they may be navigating particular challenges or struggles. So again, when you look at individuals coming together around affinity, where their struggles with maybe diversity related resource grouping, I think is something that’s a little bit more popular and prevalent, certainly has been seen in major corporations, I think law firms are starting to build that into their larger affinity related programming. But I think there’s also resource groups when you can bring community together when it’s navigating, you know, parenting teenage children, or working with seniors and navigating elder care and how to navigate that, or how you navigate some of the challenges that may come with the stability of marriage or, or family dynamics. I think firms that this understand that we need to be our whole self, to our workplaces. And then we need to really examine how we can create space and safety for people to leverage connectedness and community. In some ways, it makes them even more loyal, more connected to your place of work. Because these kinds of extra things are made available to care for the whole person.

Rachel  27:25

I’m so glad we’re talking about mental health today, because I think it’s often important to destigmatize it, I think the more people talk about, especially their own struggles, and they’re not ashamed to find help, but I feel like it’s often like almost an invisible disease. Like if people don’t talk about it, then people don’t know about it. And they feel alone. And I think talking about struggles and ways that companies can really help their employees think is really helpful. So one of the other topics we wanted to touch on a little bit today was more relationship building. So creating and maintaining relationships, legal industry. So what are some ways that law firms, legal marketers can create authentic relationships with clients?

Deb Knupp  28:04

Well, I like to think of this as a starting point, Rachel is that we got to recognize that there’s a very fine line in stalking someone and staying connected to them. And they’re really the distinction that we often say is really in the in the zone of how welcomed is the effort to stay connected, how welcomed is it by the receiver, in wanting to be engaged with you as a firm. And so when we look at legal marketing techniques, and how to frame a client centered, or an other centered approach, to having authentic reasons to stay connected, we find really simply that it can fall under a construct that we call it growth, like the three ends. And the three ends are almost failsafe when you think about these three ends from the receivers perspective. So if you think authentic reasons to connect with a client, or potential client or referral source, you need to have one of these three things in place. So in number one, is invitations. A great way to stay connected to your clients is invite them to things that they would find beneficial, inviting them to be a part of activities, conversations, education scenarios, inviting them to things that lift them up, allow them to, to flourish, to be smarter to be stronger in ways that are welcomed. And so if you want to build a relationship with a client and you want to stay in front of them, one you need to understand what are the kinds of things that your clients like to do? What are the kinds of things that they are aspiring to grow and learn, personally and professionally so that when you are orienting the end of invitations, that you have far more readiness to activate the end of an invitation in a way that will increase the odds that not only will it be received, but it will received and will feel like a relationship investment. Think the second end is the end of introduction. There’s no better way to really cultivate relationships with your clients and potential clients, other than when you’re introducing them to people that they actually want to meet. Now, this the underscoring, is actually want to meet. This is not about ambush introductions, where you decide that two people need to meet and grab coffee or have a conversation. This is though the permission based in of introductions, when you can ask clients, you know, the kinds of people the kinds of service providers the kinds of help that they’re looking for, again, professionally, personally, maybe within the law firm, maybe outside and larger professional services, when you can facilitate the ends of introductions, that a client would actually welcome and find valuable in their network, there’s a real value and it will feel like a relationship investment. The final end of the three ends is insight or information sharing. And so once again, if you can create an inventory of insights, that allow your clients to be smarter your clients to be lifted your clients to have benchmarks, or you can seek insights, meaning the inquiry of voice of the client research, that exchange of insights and information, again, as long as it’s welcomed, and it’s on point with something that the receiver would like to receive. When you do that, and you dial in with that kind of sharing or inquiry. Again, it feels like a relationship investment. So I think the answer in any kind of ongoing sustainable relationship investment is to pay attention to the three ends, and making sure again, that they’re tailored to the receivers. perception of value.

Rachel  31:33

I wonder if you could also talk about what some of the key like, x-factors are in terms of like legal marketing at law firms.

Deb Knupp 31:40

We know we’ve talked a little bit already about talent experience and client experience, which are often referred to as sort of CX, which would be an x-factor for client experience when TX or EX is sometimes you see it for employee experience or talent experience. And so I think those are two that we need to be paying attention to. And really, again, at the intersection of how those things are informed, I can tell you that there are a few other x-factors that I think are really important to examine and integrate. When we look at things like brand experience, when you think about what it feels like to be in your ecosystem, on your website, receiving your your press releases, you know, being on your news feeds, and your newsletters, and hearing about the things that you’re promoting the accolades, the awards, the causes, the charity things, the pro bono things you’re doing. All of those things sort of underpin this construct of a brand experience, where you can not only engage brand experience, for the purposes of getting more recognition, you actually can look at your BX brand experience in giving more inspiration to others. Of course, I would be remissed a growth play, we often look at the RX, which we refer to as the revenue experience, or the sales experiences it might be in recognizing that when you’re engaging in your go to market strategies, in the name of business development, that the revenue experience doesn’t have to feel like an exercise of trying to strong arm or manipulate somebody to give you something, you actually can have that experience feel like an act of service. And when you design and plan for when you leverage all of your business generating to leave the prospect or that or that referral source in a better space, utilizing the three ends that I mentioned earlier. And investing in that prospect or referral source, the revenue experience not only will allow you to get revenue, it will also allow you to give that value of wisdom in a way that will leave a mark. And finally, when we look at revenue experience, it is about getting revenue, it’s about getting the sale, but it’s also about giving the deposit of wisdom. So you can look at the interplay of those 4x factors, I think you begin to see brand new avenues and channels that could lead to generating opportunities overall for growth.

Rachel  33:53

How does that then play into some of these, you know, G3 selling strategies that we’ve spoken about, that legal marketers can focus on? Well, when you look at the construct of getting things, I think I get strategy, which is one of the G’s, and clearly is something that needs to be paid attention to. And we’ve got to always be replenishing our pipeline to look for that net new opportunity to bring the client in. So I get Strategy is a strategy of prospecting, referral, generating, pursuing targeting, engaging until such time as there’s billable work. I think that the other two G’s or something just to highlight quickly, I think there’s also a real strong importance on your growth strategy. A lot of law firms talk about the benefit of cross selling, but yet not always as impactful or effective. So when you think about the strategy of grow, for purposes of cross selling, we need to be looking at that strategy with a keen eye because the cost of sell is considerably lower. And we’ve got to look at the infrastructure around cross selling or growth of an existing client to make sure we’re not falling into the impediments or traps of how do you recognize people are incentivized or create collaboration in a way that’s really in service to clients. Think the last few years the guard strategy, this is probably the area that gets most overlooked. And I think the pandemic really brought to life, how important existing clients are, and how important it is to love on your existing clients. And so guard strategies really are all about not taking an existing client for granted. You may have a very large market share or be the law firm, to a particular client and have all of their legal spend. The question though, is what are you doing to protect that? How are you re originating that work? How are you investing in protecting that client relationship and looking for new innovation, new value, and new ways to really build loyalty, so that there’s inoculation against competition? Because I can say that when clients shift law firms, it’s not usually only because they’re unhappy about the legal service, or they’re unhappy about the rates, a lot of times they leave, or they look to get new counsel, because they’re being ignored, or taken for granted. So G three is about getting, it’s about growing, and it’s about guarding. And when we can look at the revenue strategies that go with those three things. I think there’s real power and lifting many people to contribute positively affect revenue that would come from any one of his three G’s.  Excellent. We’ve had a great conversation today on mental health and well-being in the egal industry. So thank you to Deb Knupp from GrowthPlay for joining us today.

OUTRO  36:32

Thank you for listening to The National Law Review’s Legal News Reach podcast. Be sure to follow us on Apple podcasts, Spotify, or wherever you get your podcasts for more episodes for the latest legal news. If you’re interested in publishing and advertising with us, visit www dot NAT law review.com. We’ll be back soon with our next episode.

For more Legal Reach Podcasts, please see here.

What Should Your COVID-19 Vaccination/Test Policy Contain?

Every employer who employs at least 100 employees is anxiously awaiting the decision from the United States Supreme Court on OSHA’s Vaccination and Testing Emergency Temporary Standard (ETS). One thing that cannot be avoided is having a policy in place/ready to go given that the January 10, 2022 enforcement date from OSHA is here.

Specifically, the ETS requires employers to have a written policy on COVID-19 vaccinations. Employers are able to decide whether to have a policy that mandates vaccinations for employees. Such a policy must address the following:

  1. The requirements to be vaccinated against COVID-19,
  2. Exclusions for medical reasons/accommodations based on disabilities and/or religious beliefs,
  3. Information required to be submitted regarding the employee’s vaccination status and how to provide the information to the employer,
  4. Paid time for vaccination purposes (up to four hours of leave for each dose that is not deducted from the employee’s leave bank) and sick leave for the vaccine’s side effects of up to 2 days (which can be deducted from the employee’s leave bank, if leave is available),
  5. Obligations to notify the employer of a positive test result and removal COVID-19 positive employees from the workplace, and
  6. Discipline for failure to comply with the policy.

For employers who choose not to mandate vaccines, they still have to have a policy that provides for the information above but allows employees to choose to submit to weekly COVID-19 testing and wear a face covering. Notably, of course, the weekly testing obligation for those who are not vaccinated is not in effect until February 9, 2022. However, if the ETS survives Supreme Court scrutiny (oral arguments were held last Friday, January 7, 2021), employees who report to the workplace weekly must submit to testing once every 7 days or within 7 days of reporting to the workplace if they do not work in person weekly.

The policy should inform employees of the testing obligation and that employees cannot both self-administer and self-read a test unless at least one step is observed by the employer or an authorized telehealth proctor.

With no guarantee as to how and when the Supreme Court will rule and given these enforcement dates, it is past time for employers to be developing their policies, collecting vaccination information, and informing employees who are not fully vaccinated, that they will be required to wear face coverings (and that weekly testing will begin in February).

© 2022 Foley & Lardner LLP

Article By Carrie Hoffman of Foley & Lardner LLP

For more articles on vaccination, visit the NLR Coronavirus News section.