December 13, 2018

Archives for August 24, 2011

CBA 2010 Economic Survey Results: Colorado Law Practice Economics

Over a period of three weeks during June 2011, the Colorado Bar Association (CBA) conducted a survey of the Colorado legal community related to the economics of law practice in the state. Survey questions pertained to activity in 2010 and were based on questions asked in previous CBA economic surveys that also had been created, in part, by the CBA Law Practice Management Department. The survey was sent to all CBA members.

The CBA is grateful to the 1,771 members who participated in the 2011 survey. The CBA invites members to review the entire report, which can be viewed here.

Design of the Economic Survey

The CBA Economic Survey was divided into two parts. The first part studied incomes and work statistics of responding attorneys. The second part sought practice information from practice administrators and those who may not carry that title but who manage the day-to-day operations of smaller practices.

The survey tracked attorney income by location, practice size, type of practice, years in practice, and age of member. This summary generally discusses survey results in these categories. Also, because the CBA was able to factor in data from two previous economic surveys, it was possible to compare information over an eleven-year period.

Attorney Income

Attorney income has increased since 2007 in all except one of the eleven practice locations. Metropolitan Denver (excluding downtown Denver) had a slight decrease in income (.3%); all other geographical areas in Colorado show an increase of annual income (ranging between 1.7% and 5.8%). The greatest increases in income occurred in Pueblo, El Paso, Larimer, and Weld Counties. Attorneys in downtown Denver recorded the highest income.

Practice and Work Habit Trends

Working trends were tracked in some detail. Again, data that had been collected in three surveys (and eleven years) were studied. The following trends occurred over the eleven-year time frame:

  • hours worked are up—not for everyone, but for enough firms to affect the average
  • hours billed are down—showing a significant decrease since the last survey
  • pro bono hours are up across the board
  • full-time and part-time nature of the work force is unchanged
  • the pay gender gap has narrowed and is partially explained by wide differences in years in practice between men and women
  • there is little employee pay growth; compression is evident
  • charged rates have not changed significantly
  • hourly billing still is the most common practice, with one-third of responding firms offering contingency billing
  • age of the work force has not changed significantly, but rate of new employees entering the work force exceeds retirement rates
  • marketing practices vary by firm size, but developing referrals is the most important initiative, and firms of all sizes are focusing on this
  • credit card payments are accepted among large firms (36.9% of all firms report accepting them).

Financial Results and Trends

Firms of all sizes report good profits: 72.2% (of the firms) report an increase in profit (of 5% or more) in calendar year 2010 over calendar year 2009.

  • 41% of firms report that business has increased “during the last two months,” and only 15% report diminished business during this period
  • 56% of firms report that they have undertaken some cost-cutting, but only 7% report payroll cuts
  • non-attorney labor was pegged between 13% and 16%; some larger firms are driving down attorney labor costs by investing in support personnel to keep attorneys doing legal work
  • receivables do not appear to be a significant problem, but smaller firms are taking longer to collect—21% of receivables are collected over ninety days
  • realization rates vary with firm size, but generally are good.

Conclusion

Attorney incomes are growing, firms are showing a good level of profitability, and revenues are either staying the same or showing recent growth. Overall, the statistics in this study paint a very positive picture of the economics of law practice in Colorado. The CBA is pleased to provide this information to its members.

Reproduced by permission. ©2011 Colorado Bar Association, 40 The Colorado Lawyer 25 (September 2011). All rights reserved.

James H. Rohrer is with The Loyalty Partners, Evergreen—cbasurvey@theloyaltypartners.com. The CBA Economic Survey was supervised by the CBA Law Practice Management and Risk Management Department—reban@cobar.org, and the CBA Communications and Marketing Department—hclark@cobar.org.

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

More Guidance from the NLRB on Social Media: When Must Employers Not Fire an Employee for an Offensive Facebook Post?

In a recent blog post, we addressed three Advice Memos issued by the National Labor Relations Board’s (NLRB or the “Board”) Division of Advice, which provided useful guidance on the types of social media conduct that do not enjoy protection under the National Labor Relations Act (NLRA). On August 18, 2011, not long after the publication of those Advice Memos, the NLRB’s General Counsel issued a lengthy memorandum to all Regional Directors that summarizes the Board’s resolution of more than one dozen “social media cases,” including the three cases discussed in our prior blog post. As a contrast to that post, this post will focus on the cases in the August 18, 2011, Memorandum where the General Counsel found that an employer’s discharge of an employee violated the NLRA. The August 18, 2011, Memorandum also provides useful guidance on social media policies, which are addressed below as well.

When Not to Fire an Employee Based on a Social Media Post

The August 18, 2011, Memorandum summarizes four cases that concluded that the employer’s discipline violated the NLRA. In a nutshell, these cases involved the termination of one or more employees based on the following social media conduct:

  • While preparing for a meeting with management, an employee asked coworkers on her Facebook page for their reaction to another employee’s complaints about work quality and staffing levels at the employer;
  • An employee complained on her Facebook page about her supervisor’s refusal to permit a union representative to assist her in responding to a customer complaint about the employee;
  • A salesmen at a car dealership criticized on his Facebook page the dealership’s handling of a sales event intended to promote a new car model and posted mildly mocking photographs that included his coworkers;
  • Employees posted on Facebook about the employer’s failure to withhold state income taxes, resulting in the employees’ receiving payment demands from state tax authorities.

In all of these cases, employees posted on their own Facebook page, on their own time, and using their own equipment.

When viewed as a group, these cases have a common thread that provides substantial insight into how the Board analyzes social media cases. Most importantly, the subject matter of each of these posts related to the terms and conditions of employment, the exercise of rights conferred by the NLRA, or other matters traditionally considered “protected activity” under the Boards’ precedent. The topics included: (a) preparation for a discussion with management about employees’ job performance and the employer’s staffing levels; (b) the right in a unionized workplace to union representation during an investigatory interview by the employer; (c) conduct by the employer (a sales event) that could have an impact on employees’ compensation (their sales commissions); and (d) the employer’s administration of income tax withholdings.

Of equal significance, in each of these situations, the General Counsel concluded that employees were collaborating, otherwise known as “concerted activity.” In the first case, the employee was seeking assistance from coworkers in preparation for a discussion with management. In the second case, the employee was discussing supervisory actions with coworkers who were her Facebook friends. In the third case, the employee was expressing the sentiment of his coworkers about the sales event. In the fourth case, employees were sharing concerns about the employer’s failure to withhold state income taxes. None of these cases could be said to involve individual gripes.

While the fulcrum of these cases is the General Counsel’s determination that the disciplined employees were discussing protected subject matters and doing so in concert with their coworkers, there is one other common thread that can help employers weigh risks when deciding whether an employee’s social media post justifies discipline. In each of the cases, the offending Facebook post was either the culmination of an on-going dispute with the employer or the continuation of a pre-existing conversation among employees. In contrast to these fact patterns, the Facebook posts discussed in our previous blog entry and upon which the Division of Advice relied to justify discipline were relatively spontaneous and had no real history behind them.

Profanity Generally Will Not Justify Discipline for Protected Concerted Activity

According to the General Counsel, the offending Facebook posts in these cases included “swearing and/or sarcasm,” use of a “short-hand expletive,” and references to management personnel as an “asshole” and a “scumbag.” Nonetheless, in each case, the General Counsel concluded that the employer’s termination violated the NLRA.

The General Counsel’s analysis in these cases seems to give employees a license to curse. In finding that an employee did not lose the NLRA’s protections after calling her supervisor a “scumbag,” the General Counsel relied on the following facts: (a) “the Facebook posts did not interrupt the work of any employee because they occurred outside the workplace and during nonworking time;” (b) “the comments were made during an online employee discussion on supervisory action;” (c) “the name-calling was not accompanied by verbal or physical threats;” (d) “the Board has found more egregious name-calling protected;” and (e) “the employee’s Facebook postings were provoked by the supervisor’s unlawful” conduct.

In social media cases, the first three or four factors listed above typically will be present. Thus, the Board effectively is telling employers that they must have a thicker skin when it comes to employees’ raunchy social media posts.

Disclaimers and Carefully Crafted Policies Are Critical

Throughout the August 18, 2011, Memorandum, the General Counsel identified social media policy provisions that the General Counsel deemed overbroad and in violation of the NLRA. At first blush, these determinations are portentous for employers because employers routinely include the challenged provisions in their social media policy. However, the August 18, 2011, Memorandum suggests — at least implicitly — how employers can retain these commonly used policy provisions without running afoul of the NLRA.

The list of policy provisions found to be overbroad is lengthy but worthy of repetition. The list includes the following:

  1. Inappropriate Discussions: Prohibition against “inappropriate discussions about the company, management, and/or coworkers;”
  2. Defamation: Prohibition on any social media post that “constitutes embarrassment, harassment or defamation of the [company] or of any [company] employee, officer, board member, representative, or staff member;”
  3. Disparagement: Prohibition against “employees making disparaging comments when discussing the company or the employee’s superiors, coworkers and/or competitors;”
  4. Privacy: Prohibition on “revealing, including through the use of photographs, personal information regarding coworkers, company clients, partners, or customers without their consent;”
  5. Confidentiality: Prohibition on “disclosing inappropriate or sensitive information about the Employer;”
  6. Contact Information: Prohibition on “using the company name, address, or [related] information on [employees’] personal profiles;”
  7. Logo: Prohibition on using “the Employer’s logos and photographs of the Employer’s store, brand, or product, without written authorization;”
  8. Photographs: Prohibition against “employees posting pictures of themselves in any media . . . which depict the Company in any way, including company uniform [or] corporate logo.”

Removing all of the prohibitions described above would eviscerate most social media policies. Fortunately, such drastic action does not appear to be necessary.

In finding these rules unlawful, the General Counsel emphasized not only their overbreadth (i.e., “the [rules] utilized broad terms that would commonly apply to protected criticism of . . . terms and conditions of employment”), but also that “the rule[s] contained no limiting language to inform employees that [the rules] did not apply to Section 7 activity.” This italicized language suggests that the rules quoted above will not violate the NLRA as long as the policy contains a disclaimer which explicitly informs employees that the policy will not be construed or applied in a manner that improperly interferes with employees’ rights under Section 7 of the NLRA.

The General Counsel also provided some guidance for policy drafting by rejecting challenges to several other policy provisions. One upheld policy, for example, provided that “no employee could ever be pressured to ‘friend’ or otherwise connect with a coworker via social media.” The General Counsel reasoned that this policy was “sufficiently specific,” “clearly applied only to harassing conduct,” and could not be read to prohibit employees from friending for purposes of engaging in activity protected under the NLRA.

In a second example, the General Counsel approved of a policy that required employees to “maintain confidentiality about sensitive information” and to direct all media inquiries to the company’s public affairs office after stating that the employee was not authorized to comment. The General Counsel determined that this policy did not violate the NLRA because it was intended only “to ensure a consistent, controlled company message,” was not a blanket prohibition on all contact between employees and the media, and “did not convey the impression that employees could not speak out on the terms and conditions of their employment.”

These examples suggest that an employer can increase the likelihood that its social media policy will survive the NLRB’s scrutiny if the policy emphasizes the legitimate purposes that it seeks to achieve, such as protecting the employer’s good will and brand reputation. In addition, restrictions in the policy on employees’ social media conduct should, where practicable, be narrowly tailored to meet those legitimate objectives.

© 2011 Littler Mendelson.  All Rights Reserved.

Philip L. Gordon is the Chair of Littler Mendelson’s Privacy and Data Protection Practice Group. He has years of experience litigating privacy-based claims and counseling clients on all aspects of workplace privacy. He blogs at Littler’s Workplace Privacy Counsel, where this post originally appeared on August 22, 2011.

Teddy Snyder: Get Out of the Office!

Social media is great, but it’s no excuse to sit at your desk and think you have completed your networking outreach. Meeting people in person is still the best way to connect. Real-time conversations allow you to gently probe for information about any potential need for your services, and your charm will come through in a way you just can’t achieve online.

Get Out There and Connect with Your Next Client

  • Identify where to do your networking. It might be at a professional event. Personally, I prefer to spend my networking time with potential clients at their industry’s events rather than with lawyers who are potential referral sources. But this should be an individual choice based on your practice area and where your business traditionally comes from. On the other hand, breaking with tradition might get you where you want to be. Maybe participating in a charity will have you hobnobbing with the right folks while working for a greater good. What about an alumni event—at various education levels right down to grade school? If no one else is getting the old gang together, maybe you should. The point is to get with people and let them know who you are and what you do.
  • Joining is not enough. Getting your name on a membership list isn’t marketing. Sitting in the back of a meeting or quietly eating your chicken breast dinner won’t get you there, either. Once you choose an organization, make the commitment to be active. Go to meetings regularly and get on the board.
  • Maximize the opportunity to mingle. While some events are specifically labeled as mixers, walk around before and after all the events you attend to meet people. After dessert is served (but not during any speeches), feel free to table-hop.
  • Put your nametag  to work. Wear your nametag on your right side so it is easily visible as you shake hands. If the type is small, write your first name in large letters. If you prefer a nickname to the name on the badge, write it on there. One networker makes a point to carry markers just for this purpose. Add your company name or perhaps your city if that would be helpful to the particular setting.
  • Introduce yourself. If people are standing in clusters, look for a group of three. It’s easier to join an odd-numbered group of people than an even-numbered one. Start with “Hi.” Introduce yourself and stick out your hand for a handshake.
  • Exchange business cards. After you’ve chatted for a while, if it seems appropriate, suggest swapping business cards, or ask if you may offer yours. When you are given a business card, be sure to write the date and event where you met on the back, and jot down any issues that came up during your conversation. If you offered to send something, say a copy of an article on a topic important to them, write that down as well—and make sure you fulfill your promise.
  • Keep the conversation going. Ideally, you will have a system to save and follow up on those promising business cards. Invite the person to join your LinkedIn network. Add their email address to your electronic newsletter distribution list. Diary a follow-up date to call the contact to get together.

Every networking contact you make is the first step toward another attorney-client relationship. So put down the mouse, step away from your computer and get out there!

Theda C. Snyder is an attorney and structured settlement broker with Ringler Associates. Teddy is a frequent speaker and has written four books on law practice management. More tips on networking can be found in her book, Women Rainmakers’ Best Marketing Tips, 3rd Edition (ABA, 2010). She also contributes to the Attorney at Work blog, where this post originally appeared on August 15, 2011.

Justice Martinez of Colorado Supreme Court to Be Named Denver’s Manager of Safety

According to The Denver Post, Colorado Supreme Court Justice Alex Martinez is expected to be named as Denver’s Manger of Safety today.

Justice Martinez is expected to resign his seat on the bench when he assumes the role of overseeing police and fire in the city.

Click here to read the breaking news article from The Denver Post.

Tenth Circuit: Defendant’s Continuing Cycle of Supervised Release Revocation Followed by Imprisonment Is Not Endless, Despite His Feelings Otherwise

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hernandez on Tuesday, August 23, 2011.

The Tenth Circuit affirmed the district court’s sentence. Petitioner was convicted of possessing an unregistered firearm. Part of his sentence included supervised release. When he violated his release, he spent more time in jail, followed by another supervised release violation, more time in jail, and another violation resulting in a final sentence of eighteen months (no longer followed by supervised release). Petitioner challenges his latest prison sentence, alleging that it exceeds the authority granted to the district court by 18 U.S.C. § 3583(e)(3).

The Court disagreed with Petitioner’s reading of the statute. His current term of imprisonment falls below the two-year maximum and he is not entitled to “time served” consideration because the language provides that the two-year sentence may be imposed “on any such revocation” of supervised release. Also, despite Petitioner’s claims to the contrary, safeguards are in place to prevent defendants like him from being trapped in endless cycles of imprisonment and release, even when their continued pattern of revocation makes them feel otherwise.

Tenth Circuit: Review of Health Insurance Coverage Denial Was Insufficient as it Did Not Review Evidence of Whether the Plan Allowance Was Correctly Calculated

The Tenth Circuit Court of Appeals issued its opinion in Weight Loss Healthcare Centers of America, Inc. v. Office of Personnel Management on Tuesday, August 23, 2011.

The Tenth Circuit reversed and remanded the district court’s decision. Petitioner performed surgery for a federal employee who was covered by a Standard Option health insurance plan administered by Blue Cross Blue Shield of Kansas City. Petitioner had no contractual arrangement with Blue Cross as either a preferred provider or a participating provider. Nevertheless, the patient had outpatient laparoscopic surgery at Petitioner’s office to insert an adjustable gastric band that would help him better control his weight. Although the patient obtained preauthorization from Blue Cross for the surgery, there is no indication in the record that he requested or received information about his out-of-pocket costs. Blue Cross only covered $1,610 for the procedure, and billed the patient the remainder of the $56,000 bill. Petitioner acted on behalf of the patient throughout the resulting dispute over coverage and payment.

When the matter was appealed, Respondent determined that Blue Cross’s interpretation of the patient’s plan was correct and that the insurance company had paid the proper amount. The Tenth Circuit agreed that Respondent’s interpretation of the insurance plan is entitled to deference because of its intimate and extensive involvement in the negotiation and interpretation of federal health insurance plans. Also, the Court determine that Respondent reasonably interpreted the plan language. However, the Court found that Respondent’s decision was arbitrary and capricious for failing to explain why it accepted Blue Cross’s allowance figure as correct; Respondent neither reviewed the evidence that would show whether Blue Cross had correctly calculated the plan allowance, nor explained why such review was unnecessary. The decision was therefore reversed and remanded for further proceedings to allow for additional investigation and explanation.

Tenth Circuit: District Court’s Limitation of Budget for Appointed Counsel’s Sentencing Investigation Not Appealable; Requested Amounts Not Reasonably Necessary

The Tenth Circuit Court of Appeals issued its opinion in Rojem v. Workman on Tuesday, August 23, 2011.

The Tenth Circuit dismissed the appeal for lack of jurisdiction. Petitioner attempts to challenge his death sentence in federal court after the state courts denied him relief in several rounds of post-conviction proceedings. The district court appointed him counsel to help him prepare his application. While Petitioner requested the court to pay for his counsel’s work on habeas issues, an extensive pre-petition investigation, and guilt-phase issues, the magistrate limited the budget to compensation for work on penalty-stage claims and minimal review of the record for background and history.  The district court affirmed, and so did the Tenth Circuit. “Because this appeal, at its core, challenges the district court’s decision regarding how much compensation to award counsel,” the Tenth Circuit does not have jurisdiction over the matter; the district court’s Criminal Justice Act fee determination is not an appealable order because the requested amounts were not reasonably necessary for the matter then before the court (issues surrounding Petitioner’s third sentencing).

Tenth Circuit: Unpublished Opinions, 8/23/11