Littler, the world’s largest employment and labor law practice representing management, has released the results of its COVID-19 Vaccine Employer Survey Report completed by more than 1,800 in-house lawyers, human resources professionals and C-suite executives across the United States.

The survey finds most employers unlikely to mandate COVID-19 vaccination for a variety of reasons, mainly centered around company culture and employee relations issues. Instead, most are focused on efforts to encourage vaccination, as well as on continuing remote work and maintaining safety protocols in the workplace, even when vaccines become more widely available.

Mandatory Vaccination

Less than 1 percent of respondents currently mandate vaccination for all employees, and only 6 percent say they plan to once vaccines are readily available and/or the U.S. Food and Drug Administration grants full approval. Nearly half (48 percent) have already decided against requiring immunizations in their workplaces. While it is feasible that vaccine mandates will become more common in the coming months as 43 percent said they were still considering the possibility of such a policy (43 percent), employers cited a plethora of worries about requiring vaccinations.

Top concerns around a mandate are fundamentally linked to employee relations issues: 79 percent cited resistance from employees who are not in a protected category but refuse or oppose vaccination generally, while 67 percent are concerned about a mandate’s impact on employee morale and company culture. Legal and administrative concerns added to the hesitancy: 64 percent are worried about legal liability should an employee experience an adverse reaction, and 47 percent about administrative difficulties with implementing mandates.

Encouraging Vaccination

Despite the hesitancy around mandating vaccinations, the survey suggests employers are focused on encouraging employees to get the vaccine – only 6 percent plan not to. Nearly 90 percent of respondents said they would provide information to employees (such as the benefits of vaccination and how to get vaccinated) and 37 percent said they would offer vaccine administration at their own facility to increase convenience.

Employers highlighted other avenues of encouragement, such as offering paid time off to receive the vaccine or recover from its side effects (33 percent) and providing incentives to employees, such as cash awards or other monetary benefits (11 percent). The latter option in particular is one many employers are likely considering, but the low percentage of those currently planning to offer such incentives likely reflects the complicated issues involved in administering such a policy – including employee benefits and wage and hour issues.

Remote Work Policies and Return-to-Work Considerations

For employers that elect not to mandate vaccinations – and even for those who do – there will inevitably become a split in the workforce among those who have and have not been vaccinated. It follows that 72 percent of respondents expressed at least some concern about providing reasonable accommodations to those who cannot or who refuse to get vaccinated.

This concern may explain why most respondents appear to be decoupling remote work policies from vaccinations. In reflecting on their plans to bring remote workers back to the physical workplace, just 7 percent said they would bring only vaccinated employees back once vaccines are widely available, and only 6 percent said they would bring all employees back (and keep unvaccinated employees separate). What’s more, 49 percent are extending remote work at least into the summer and 37 percent are allowing employees who wish to work on-site to do so on a voluntary basis.

Respondents identified a wide-range of COVID-19-related precautions they plan to keep in place even after vaccines are readily available, including encouraging or requiring wearing face masks (81 percent), modifying physical workplaces to maintain distance between workers (66 percent), limiting or restricting employee contact in common areas (62 percent), increasing frequency and depth of cleaning (56 percent), and conducting employee temperature or symptom screenings (50 percent).

Workplace Testing

Providing access to COVID-19 testing is another way to keep employees safe in the workplace: 36 percent of respondents are either currently providing testing, planning to test or considering it. While 49 percent said they do not plan to, this is likely mainly a reaction to the high cost and myriad legal issues raised by testing, including employee privacy and information security issues.

Download the Littler COVID-19 Vaccine Employer Survey Report.

“Waterton, a national real estate investor and operator, today announced the hiring of William Aguiar as associate general counsel in Chicago,” released Waterton in RE Journals.

“As a seasoned legal professional, Aguiar brings over 20 years of legal and operations experience to the firm. In his role, Aguiar will work closely with Waterton’s general counsel and legal team, providing legal leadership and strategic advice to management and assisting with all corporate legal and regulatory matters. This includes matters pertaining to risk management and mitigation, insurance, litigation, closing transactions, human resources, operations management and compliance.”

Read the article.

“Wigdor said Friday that Christine Hogan is joining the employment plaintiffs firm as a partner in New York from Littler Mendelson, where she worked defending employers for more than decade,” reports Chinekwu Osakwe in Westlaw Today.

“As a Littler partner, Hogan represented large companies and organizations in individual and class action litigation involving discrimination, harassment and wage and hour claims, with a clientele that has included The American Museum of Natural History, United Parcel Service Inc, Uber Technologies Inc and Walgreens Co.”

“But she said the pandemic gave her a chance to reevaluate her career, and she decided to make a change.”

Read the article.

“For nearly a year, the world has battled a pandemic defined as Coronavirus-19 or COVID-19. This virus has caused enormous damage worldwide in terms of human life, health, and economic devastation. This destruction has been acutely felt here in the United States, with the death of hundreds of thousands of Americans and the long-term illness of millions, as well as severe economic loss due to factors beyond the control of those who have been affected,” writes RBR-TVBR in their Washington Beat.

“The COVID-19 pandemic also has had a significant effect on the U.S. legal system.”

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“The Corporate Transparency Act (CTA) became a law on January 1, 2021, and it has significant implications for many new and existing United States and foreign business entities,” report Matthew J. Ertman and Max Brunner in The National Law Review.

“The law will impose completely new, time-consuming and expensive compliance requirements on normal small business enterprises, even though it is expressly targeted to combat “money laundering, the financing of terrorism, proliferation financing, serious tax fraud, human and drug trafficking, counterfeiting, piracy, securities fraud, financial fraud, and acts of foreign corruption …” There are significant penalties, including fines and imprisonment, for willful failures to report according to the CTA. This article provides an executive summary of what you need to know to be ready for the CTA.”

Read the article.

“Goodwin Procter LLP suffered a data breach after a vendor that it uses for large file transfers was hacked, according to an internal memo obtained by news outlets,” reports Lawyer Monthly in their Legal News.

“The memo, circulated on Tuesday by managing partner Mark Battencourt, said Goodwin was notified of the security issue on 22 January and immediately stopped using the service. The firm also retained the services of a third-party forensic expert an launched an investigation into the breach.”

“‘Our investigation revealed a small percentage of our clients may have experienced unauthorized access to or acquisition of confidential material’ on 20 January, Battencourt said in the memo. ‘Clients whose data may have been directly impacted as a result of this matter have been notified, and we have also communicated the security incident to all firm clients.'”

“The investigation also revealed that ‘only a few Goodwin employees were affected’ by a breach, all of whom had also been notified. The memo added that none of the firm’s resources appeared to have been impacted other than the file transfer service.”

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“Fundamental law of physics that most of us learn in junior high says that work requires energy. It explains why the number of people employed in the society and the gross domestic product (GDP) they produce, strongly correlate with the rate of the energy consumption. Both numbers — people employed and the energy consumed — drop during a recession but go up during an economic boom,” opines Eugene M. Chudnovsky in The Hill’s Opinion.

“As we are facing negative consequences of climate change due to carbon emissions, the Biden administration has launched an effort to quickly replace some of the fossil fuel industry that currently provides 80 percent of the U.S. energy supply with renewable energy, such as solar and wind. This effort must be welcome because fossil fuels, besides their effect on climate, are a limited resource that will be exhausted by the end of the century if we keep using it at the current growing rate.”

Read the article.

“January 2021 may well be remembered in the independent contractor area of law as the ‘not so fast’ month. The Fifth Circuit Court of Appeals told lower courts ‘not so fast’ when it comes to certifying collective actions,” writes Richard Reibstein Esq. in Locke Lord’s Independent Contract Misclassification & Comlpiance blog.

“That appellate court imposed a new and more rigorous standard that plaintiffs will have to meet to attain certification of their collective actions under the Fair Labor Standards Act. GrubHub and other companies that engage couriers to deliver food from restaurants have generally succeeded in compelling arbitration of courier claims for independent contractor misclassification. These companies have avoided application of the arbitration exemption in the Federal Arbitration Act for interstate transportation workers. As we reported here on September 18, 2020, the United States Court of Appeals for the Seventh Circuit held that couriers providing deliveries for customers of GrubHub were not involved in interstate commerce. But only last week, as reported below, a Massachusetts court essentially said, ‘not so fast,’ reaching the opposite conclusion when it held that couriers providing deliveries to GrubHub customers of pre-packaged and non-food items originating outside of Massachusetts (such as soft drinks, chips, toilet paper, cleaning products, and flowers) were exempt from arbitration under the interstate transportation worker exemption. This area of the law is evolving with new arguments by plaintiffs’ class action lawyers seeking to circumvent arbitration agreements.”

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“One of the key activities of the American Law Institute (ALI) has been the researching, writing, and publication of Restatements. According to the ALI’s website, the basic idea was that the ALI ‘should address uncertainty in the law through a restatement of basic legal subjects that would tell judges and lawyers what the law was.’ This self-appointed task has a huge influence on the development of the law in the United States, and indeed around the world, mostly for the better. Restatements can and often do reduce uncertainty and eliminate unnecessary complexity and obfuscation. The ALI also holds itself out ‘promote those changes which will tend better to adapt the laws to the needs of life.’ The ALI has thus characterized its Restatements as having a “critical and constructive” goal as well as a clarifying and simplifying function,” writes Nathan A. Schachtman in his blog.

“This ambiguity in its mission statement makes ALI Restatement provisions occasionally controversial on occasion. Controversy can arise from the ALI’s addressing factual situations ‘not yet discussed by courts or dealt with by legislatures….’ Perhaps more disconcerting, however, are situations that have been addressed by courts and legislatures at length, but where the ALI attempts to impose its policy judgments in place of those that carry the imprimatur of a majority of jurisdictions in the United States.”

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Bradley Arant Boult Cummings LLP is pleased to announce that Christopher C. Lam, managing partner of the firm’s Charlotte office, has been elected as a Fellow of the American Bar Foundation (ABF).

The ABF Fellows is a global honorary society that recognizes attorneys, judges, law faculty and legal scholars whose public and private careers have demonstrated outstanding dedication to the highest principles of the legal profession and to the welfare of their communities. Membership in the Fellows is limited to one percent (1%) of lawyers licensed to practice in each jurisdiction. Members are nominated by their peers and elected by the ABF board. The Fellows support the research of the ABF and sponsor seminars and events of direct relevance to the legal profession. The independent, nonprofit ABF seeks to advance the understanding and improvement of law through research projects on the most pressing issues facing the legal system in the United States and the world.

In his litigation practice, Lam helps clients protect their business interests in disputes related to contracts, business torts, product liability, earn-outs, trade secrets, non-competes, LLCs and partnerships, defamation, and private equity investments. His clients include individuals, start-up businesses, middle market companies, and public corporations and he is lead North America product liability counsel for a Fortune 200 manufacturer. He also regularly counsels clients in business issues and contract drafting and negotiation.

Lam is a leader in several professional and civic organizations. He currently serves as chair of the 2021 Charlotte Access to Justice Campaign. He is the immediate past president of the Mecklenburg County Bar and is a past co-chair of the North Carolina Bar Association’s Administration of Justice Committee. He also is a past chair of the Business Litigation Committee of the International Association of Defense Counsel, an invitation-only, peer-reviewed organization of approximately 2,500 attorneys from more than 50 countries around the world. In addition, he serves on the Board of Visitors for Duke University’s Sanford School of Public Policy and is a trustee of the North Carolina Humanities Council.

Austin attorney Jennifer Ferri and San Antonio attorney Erica Benites Giese were elected partners at Jackson Walker LLP on Feb. 5.

Ferri’s practice focuses on electric power industry transactions and regulatory matters. Giese, a former federal prosecutor, is in the white-collar and government investigations section of Jackson Walker’s San Antonio office.

Ferri advises utilities, developers, investors, lenders and large power consumers on transactions in electric power markets and on state and federal electric regulatory issues. Before joining Jackson Walker three years ago, she served as in-house counsel for one of the country’s largest municipal electric utilities.

Ferri received her J.D., with honors, from the University of Texas School of Law and her B.A., cum laude, from Williams College.

Giese advises clients in civil and white-collar criminal probes and litigation, qui tam complaints and fraud cases involving healthcare, bank and wire transactions, government contracts and immigration worksite enforcement actions. She previously served as assistant U.S. Attorney in the Western District of Texas.

Giese volunteers with the Hispanic National Bar Association as Deputy Region XII President.

She earned her J.D. from St. Mary’s University School of Law, M.S. from Texas State University, and B.A. from The University of Texas at Austin.

Global law firm Hogan Lovells successfully represented the Major League Baseball (MLB) franchise Baltimore Orioles in a salary arbitration against outfielder Anthony Santander.

A three-person arbitration panel ruled in favor of the Orioles, awarding Santander a 2021 salary of US$2.1 million, as opposed to the US$2.475 million requested by the player. Santander was named an American League Gold Glove finalist in Right Field in 2020.

The Orioles were represented by Hogan Lovells Washington, D.C., associate Jimmy McEntee. Prior to starting his private practice career at Hogan Lovells, McEntee interned in MLB’s Labor Relations Department. He has previously assisted the Los Angeles Dodgers and Minnesota Twins in other salary arbitration cases, and is currently representing an MLB team in a separate salary arbitration matter.

“Cummins Inc. (NYSE: CMI) announced today that Chief Administrative Officer (CAO) Marya Rose will be retiring, effective April 2021, after more than 20 years in leadership positions with the company. Vice President and General Counsel, Sharon Barner, will succeed Rose,” posts Cummins in their Newsroom.

“In the CAO role, Barner will lead several of Cummins’ largest global groups, including communications, marketing, government relations, compliance, facilities, security, Cummins’ global shared services organization and legal. These functions comprise more than 2000 employees.”

Read the article.

“Global consultancy firm McKinsey & Company has agreed to pay $573 to settle claims by more than 40 US states related to its role in the nation’s opioid epidemic,” report Michael Forsythe and Walt Bogdanich in The New York Times.

“Sources familiar with the matter said that McKinsey’s settlement is with 43 states, the District of Columbia and three territories. Several attorney generals said they planned to make announcements on the opioid epidemic on Thursday, coinciding with the filing of the settlement.”

“$478 million of the settlement must be paid within 60 days, according to the New York Times. In total, the settlement will exceed any profits the firm made from its opioid-related work with pharmaceutical companies.”

“The company will not admit wrongdoing as part of the deal.”

Read the article.

“Amazon will pay $61.7 million to settle allegations by the Federal Trade Commission that it failed to pay Flex delivery drivers the full amount of tips received from customers,” reports Annie Palmer in CNBC’s Tech.

“The commission voted 4-0 in favor of the settlement, which was announced Tuesday. In the complaint, the FTC alleges that Amazon in 2016 shifted from paying drivers the promised rate of $18 to $25 per hour, plus tips, to paying drivers a lower hourly rate.”

“Amazon ‘intentionally failed’ to notify drivers of this change and used the tips to make up the difference between the promised rate and the new lower hourly rate, according to the FTC.”

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“A Lancaster County lawyer, who was the longtime Akron borough solicitor, is facing charges following alleged threats to kill his wife and government officials living near Washington, D.C. and Virginia,” reports Andrew Forgotch in ABC27’s Local News.

“Kenelm Shirk, 71, was stopped by Pennsylvania State Police at the Sheetz near Shippensburg on January 21st.”

“Police in Cornwall, where Shirk lives, started looking for him after his wife called to report that her husband had threatened her life and was planning to attack government officials in the nation’s capital.”

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Bradley Arant Boult Cummings LLP is pleased to announce that nine attorneys in the firm’s Nashville office have been recognized by the Tennessee Supreme Court as 2020 “Attorneys for Justice.” The firm’s honorees are Kimberly M. Ingram, Alexandra C. Lynn, Erin Malone-Smolla, Casey L. Miller, Peter C. Sales, Edmund S. Sauer, Jeffrey W. Sheehan, Fritz Spainhour, David K. Taylor.

This marks the seventh consecutive year that the Tennessee Supreme Court has recognized “Attorneys for Justice,” which the court defines as lawyers who work a minimum of 50 pro bono hours annually to provide legal services to those who cannot afford the costs. The goal of the recognition program is to increase statewide pro bono work to 50 percent participation.

Attorneys in Bradley’s Nashville office are actively involved in a number of pro bono efforts, including the newly launched Black-Owned Small Business and Nonprofit Legal Clinic, which provides accessible and affordable business-oriented legal services to Black-owned small businesses and nonprofits in the Nashville area. In 2020, attorneys and staff from across all of the firm’s offices performed more than 13,000 hours of pro bono service valued at more than $5.3 million.

William M. McSwain has joined Duane Morris LLP as a partner in the firm’s Trial Practice Group in its Philadelphia office. McSwain served as the U.S. Attorney for the Eastern District of Pennsylvania from April 2018 until he stepped down on January 22, 2021.

As U.S. Attorney, McSwain served as the chief federal law enforcement officer responsible for all federal criminal prosecutions and civil litigation involving the United States in the Eastern District of Pennsylvania, which is one of the nation’s most populous districts, with nearly 6 million people residing within its nine counties. McSwain supervised a staff of approximately 300, including more than 140 Assistant U.S. Attorneys, at offices in Philadelphia and Allentown.

During McSwain’s tenure, the U.S. Attorney’s Office dramatically increased its productivity across the board. For example, it logged a 40 percent increase in its criminal indictments, with significant increases across all subject areas in the Criminal Division, including economic crime, government fraud, corruption, violent crime, narcotics and national security. The Civil Division opened a record number of False Claims Act investigations, which are designed to recover money on behalf of the U.S. government and taxpayers when they have been victims of fraud. The Civil Division also achieved a record number of affirmative civil enforcement resolutions, and recovered hundreds of millions of dollars from companies and individuals that were under investigation for allegedly committing fraud against the United States.

McSwain’s efforts as U.S. Attorney included a specific emphasis on white collar enforcement. For example, he spearheaded the creation of two new white collar units: a regional Health Care Fraud Strike Force, in conjunction with the Fraud Section at the U.S. Department of Justice, in order to pursue criminal penalties against those who defraud U.S. government health care programs, and an Affirmative Civil Enforcement Strike Force designed to focus on and expedite complex affirmative civil enforcement cases. McSwain strengthened and expanded his office’s relationship with financial regulators, such as the SEC’s Philadelphia Regional Office and the Pennsylvania Department of Banking. He also served on the White Collar Subcommittee of the Attorney General’s Advisory Committee. This renewed emphasis on white collar matters helped the U.S. Attorney’s Office to obtain hundreds of millions of dollars in penalties and criminal convictions for health care fraud, securities fraud, insider trading, tax fraud, Ponzi schemes, embezzlement and other forms of financial fraud.

An accomplished trial lawyer and appellate oral advocate, McSwain most recently served as lead counsel in United States v. Safehouse, in which he challenged Philadelphia’s plan to be the first city in the country to open supervised heroin injection sites. He personally argued and won the case in the U.S. Court of Appeals for the Third Circuit, which ruled that such sites would violate the federal Controlled Substances Act. Prior to his appointment as U.S. Attorney, McSwain was a partner at Drinker Biddle & Reath LLP (now Faegre Drinker Biddle & Reath LLP), focusing on white collar criminal matters and complex business litigation. He served as an Assistant U.S. Attorney in the Criminal Division of the U.S. Attorney’s Office for the Eastern District of Pennsylvania from 2003 to 2006. He began his legal career by clerking for the Honorable Marjorie O. Rendell, U.S. Circuit Judge of the U.S. Court of Appeals for the Third Circuit.

McSwain is a graduate of Harvard Law School (J.D., 2000), where he was editor of the Harvard Law Review, and Yale University (B.A., cum laude, 1991). He is an adjunct lecturer in law at the University of Pennsylvania Law School. Prior to law school, he served as an infantry officer and scout/sniper platoon commander in the U.S. Marine Corps.

Brightflag, the AI-powered legal spend management and matter management platform, today announced new reporting features that provide corporate legal departments with a simple, standardized solution for evaluating the qualitative performance of outside counsel. When combined with existing reports on quantitative metrics like blended hourly rate, this additional context offers in-house legal teams a more nuanced perspective when assessing the value and deciding the future direction of a law firm relationship.

According to the Association of Corporate Counsel’s 2020 Legal Operations Maturity Benchmarking Report, 40% of corporate legal departments classify the maturity of their external resource management strategy as “early stage.” Fewer than 10% have integrated the associated metrics into a dashboard report made accessible to their general counsel.

For each matter managed on the Brightflag platform, designated matter leads can now rate the associated vendor(s) across five qualitative criteria: Communication, quality of advice, business alignment, budget adherence, and overall recommendation. Ratings are then instantly added to dashboard reports, where legal department leaders can compare vendors across one or more metrics as they weigh critical resourcing decisions.

Learn more about the design and impact of Brightflag’s newest reporting features.

-Estimated 10,000 Navy and Marine Corps Veterans Wrongfully Denied Military Disability Retirement-

On February 2, 2021, the National Veterans Legal Services Program (NVLSP) and Perkins Coie LLP, filed a class action complaint in the United States District Court for the District of Columbia, on behalf of Oscar D. Torres and former members of the U.S. Navy and Marine Corps who were wrongfully denied military disability retirement. The lawsuit challenges the Navy’s use of the “Properly Referred Policy” to deny military disability retirement to Torres and other similarly situated servicemembers. A Sailor or Marine who is retired for disability is entitled to monthly retirement payments and military medical care (“Tricare”) for the servicemember, his or her spouse, and the servicemember’s children while they remain dependents.

At the time of Torres’s referral into the Navy’s Disability Evaluation System (DES), the Navy Council of Review Boards followed the “Properly Referred Policy.” That policy, which has since been revoked by the Navy, explicitly barred the Navy Physical Evaluation Board (PEB) from considering the disabling impact of any condition not “properly referred” to the PEB by listing it on the form used to initiate the DES process.

The lawsuit claims that the “Properly Referred Policy” violated the legal obligation of the Navy, under statutory law and Department of Defense instructions, to consider all medical conditions, including their combined effect, in making fitness determinations, not just those the Navy deemed “properly referred” on a particular form.

Torres served on active duty and in the reserves of the U. S. Marine Corps from August 29, 2007 until January 27, 2018, when he was honorably discharged from the military due to disability. The rigors of military service left Torres with disabling conditions of the back, shoulder, wrist, fingers and knees, ankles and hips as well as sleep apnea. He was referred into the Disability Evaluation System (DES) for review of these injuries. Yet, the Navy Physical Examination Board (PEB) deemed only his back condition and his sleep apnea to be “properly referred.” As a result, the PEB failed to consider whether Torres’ shoulder, wrist, finger, knee, ankle and hip issues rendered him unfit for continued military service. Torres was denied a military disability retirement and provided only a one-time lump sum disability severance payment. The lawsuit argues that the Navy’s failure to consider all of Torres’ medical conditions pursuant to the Navy’s unlawful “Properly Referred Policy” was arbitrary, capricious, unsupported by substantial evidence, and contrary to law.

The “Properly Referred Policy” was enforced from September 12, 2016, until June 11, 2018. It is estimated that 10,000 U.S. Navy and Marine Corps veterans were wrongfully denied military disability retirement as a result of this unlawful policy.

The Navy’s “Properly Referred Policy” was an outlier among the military branches. The Army, Air Force, and Coast Guard each have military disability evaluation procedures, but none of these other branches had a policy restricting the conditions that can be considered when making a fitness for duty determination like those contained in the Navy’s “Properly Referred Policy.”

Notably, the suit explains that “For years, the Program Manager for the Navy Disability Evaluation System Counsel Program decried the policy as ‘wrong’ and ‘contrary to both law and regulation.’”

In the lawsuit, NVLSP and Perkins Coie LLP represent Torres and a putative class of thousands of other veterans, who, like him were illegally denied military disability retirement due to the challenged Navy policy. They ask the Court to order new disability evaluation proceedings in which the Navy should consider all of the class members’ medical conditions, not just the subset of all the conditions that the Navy previously deemed “properly referred.”

If you are a Navy or Marine Corps veteran who was denied a medical retirement as a result of the “Properly Referred Policy,” NVLSP encourages you to email properlyreferred@nvlsp.org to learn more about this case.