July 2017 Print

PRESIDENT'S REPORT

WORKING WITH A DIVERSITY CONSULTANT
By: Andrea D. Everage, MHR, PHR, SHRM-CP

 

On July 21st I had the opportunity to participate in a Diversity & Inclusion workshop in Tulsa, Oklahoma, developed by the Exceptional Leaders’ Lab, with Tracy Spears.  (Those attending the 2016 Morning in the East Bay will remember Tracy as a featured speaker).   The Diversity & Inclusion Workshop covered the following topics:

  • Unconscious Bias & How to Spot It
  • How Unconscious Bias Affects Workplace Diversity & Inclusion
  • Why People Do What They Do (And how it can be influenced by bias.)
  • How Temperament Fluency Impacts Your Influence with Others
  • Understanding Interaction Styles
  • How to Talk About Diversity and Inclusion Without Offending
  • How to Reduce the Effect of Unconscious Bias in Your Hiring Process / Being Hired
  • Diversity & Inclusion Interactive Exercises 

My topic, One Law Firm’s Road to Diversity & Inclusion, fell under the second bullet point on how unconscious bias affects workplace diversity and inclusion.  For many years I worked in the mid-west for a firm which had numerous lawyers consistently voted “Super Lawyers,” or “Best Lawyers,” and it was highly rated on Martindale Hubble.

Rather than recruiting from out of state my firm performed on-campus interviews for first and second year law students at the University of Oklahoma College of Law, Tulsa University College of Law, and Oklahoma City University School of Law.

The firm’s recruiters identified a female, non-white candidate from one of these law schools whom they considered extremely bright and of particular interest.  They enthusiastically extended an offer for a summer associate position.  The candidate asked around about the firm’s reputation to determine if it was worth her time – meaning whether she might have a future there, long-term. She concluded working at this firm during the summer might provide great training; however, she was doubtful it would be a good fit long-term. Why?  There were no attorneys of color, few female partners and no ethnically diverse attorneys in her age group.  She questioned whether she would be a long-term fit or if she would just be a novelty.

Increasingly, clients were asking the firm about its diversity metrics such as male to female ratio in leadership positions and the ethnic make-up of attorneys who would be assigned to their matter.  They even wanted to know whether any of its vendors were minority owned businesses. This was one of the primary indicators the firm needed to begin a D&I initiative.  The secondary driver was when the firm learned law students considered it part of the Good Old Boys’ Club.  For Millennials that type of structure was no longer acceptable.  Even the American Bar Association had formalized its Call to Action which put legs under its initiative to intentionally diversify the legal field, and to play catch up to corporate America in what it had long known – diversity matters. An inclusive environment matters.

Previously, the firm had no “problem” with diversity and inclusion because there was very little “surface” diversity, and no real need for those in the C-Suite to be inclusive. 

“At no time does the diversity process belong to the consultant; leadership must come from those within the organization who carry out the vision of a more inclusive operation. The most appropriate role for a consultant is as a facilitator who works collaboratively with the organization to its diversity goals.”  - Mission Works

The issue with this firm was not that it was intentionally exclusive – The problem was that it was not intentionally inclusive. Its unconscious bias led it to keep fishing from the same pond where all of the fish looked the same.  However, the firm understood there was a shifting wind and that it must literally change or die.

 The firm installed a D&I Committee, drawing across all employee categories, and utilizing its limited (surface) diversity pool.  It hired a consultant to help keep it on course, and to limit its myopic tendencies.  Most importantly, it committed time, talent and resources to the initiative, and remained mindful it was training for a marathon, not a sprint.

If your firm or corporation is considering initiating or revamping its efforts around diversity and inclusion do your homework, get buy-in and commitment early on, and hire the right consultant.  They’re worth their weight in gold.

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WELCOME NEW MEMBERS

Ernestine Tayabas-Kim
Firm Administrator
Renne Sloan Holtxman Sakai, LLP
1220 Seventh Street, Suite 300
Berkeley, CA  94710

HELEN MIRANDA 
Accounting Department Manager
Miller Starr Regalia
1331 North California Blvd., 5TH Floor
Walnut Creek, 94596

Ginger Wilson
Chief Operating Officer
Wendel, Rosen, Black & Dean LLP
1111 Broadway, 24th Floor
Oakland, CA  94607

Jennifer Murov
Administrative Operations Manager
Morrison & Foerster
425 Market Street, 32nd Floor
San Francisco, CA  94105

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BOARD RETREAT

EBALA Board Retreat 2017 

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MEMBER INSIGHTS

TIME TO RE-ENERGIZE
BY: KARIN WIBORN, EXECUTIVE DIRECTOR, ARCHER NORRIS
RACHEL ESTES, HUMAN RESOURCES DIRECTOR, ARCHER NORRIS

As leaders in our law firms, we recognize the need for continued education and growth in our respective fields.  Memberships in ALA and our East Bay Chapter are key to providing these educational opportunities, and we recently benefited greatly from the opportunities provided by ALA and EBALA.

In 2008, we attended the ALA conference in Austin, Texas, and we had the pleasure of participating in a session led by Michael Nash of Nash Consulting.  We were very impressed with Michael’s presentation, and we later engaged him as a speaker for EBALA’s 2011 Morning in the East Bay Educational Conference.  Michael’s two session track, “Creating Trust and Respect in the Workplace” and “Building a Work Team Based on Trust and Respect,” was a hit with all attendees! 

EBALA invited Michael back for its 2014 Morning in the East Bay Educational Conference.  This time, Michael led attendees through two sessions on “Excellence in Management: Creating a Positive and Professional Workplace Environment.”  We came away from this program realizing our management team would benefit from a workshop with Michael.  In October 2014, we engaged Michael’s services for a full day where we focused on our management styles, corrective performance conversations, and the importance of engaging in “one-on-one” conversations with our employees.

Over the past year, our firm experienced a number of significant changes and we felt the need to re-focus our management team.  We reached out to Michael Nash again to obtain his recommendations on a program that would address some of the issues we were experiencing.  We presented the idea of Michael’s educational program to the firm’s new Managing Partner, and we were thrilled when he and the Management Committee supported our request for a two day management team workshop, “Managing with Mind and Heart.” 

Michael led our team of nine members through three key concepts impacting “leadership mindset” – the impact of morale; understanding adaptive skills; and managing “power differential.”  Our team did a lot of work over the two days, learning more about these key concepts, practicing receiving and giving feedback, addressing how we can eliminate workplace “triangulation,” and discussing how we will work together toward effective and productive meetings, both as a group and with each other. 

ALA and EBALA provide many opportunities to learn from experienced management consultants, and participation in several programs with Michael Nash contributed to our growth as leaders and led to the opportunity to share Michael’s training with our management team. Carve out the time to participate in ALA and EBALA programs!  While we are all extremely busy and it is sometimes challenging to justify the time, we ultimately derive great benefit and re-energize as leaders.  

If you would like more information regarding Michael Nash and his programs, check out www.nashconsulting.com

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ALA CONFERENCE ARTICLE

ALA ANNUAL CONFERENCE: DENVER, COLORADO
By: Chris Carvalho 

I was the lucky winner of free admission to the 2017 ALA’s Annual Conference and Expo in Denver. Despite the short notice letting me know that no one above me on the list could make the conference, I cleared my schedule to take advantage of the opportunity. I usually only attend the ALA conference every 5-6 years because the topics are often similar year over year, and I normally have to balance attending it with others like ILTA. However, I have been in the Legal Administration business for over 20 years and am a firm believer that attending conferences and networking with other colleagues is critical to keep my firm protected and relevant in the industry.

I regularly attend the technology conferences because of how quickly everything is changing in our business, and because of the criticality of keeping our systems secure and updated. However, I found the ALA conference this year filled with equally valuable content and topics that I could take back to my firm. Honestly, some of the speakers left me a little less enthused, but overall I attended a good mix of sessions which provided resources and, more importantly, inspiration. Here is a sampling of my experience and takeaways.

I started the conference with the EBALA, Golden Gate and Silicon Valley Mixer on Sunday before the welcome reception.  I may have been the only EBALA member, presenting a great opportunity to step out of my normal network and spend time with GG and SV chapter members. This is where I met several people whom I stayed connected with throughout the conference.

I filled my days with a variety of sessions that peeked my interest. My role is a little unique compared to some of my colleagues because I manage HR, Technology and Accounting, so I am often looking for a mix of topics that could help in any one of these areas. Here are four that I found most informative.

Office 365 and the Cloud: What You Need to Know About Ethics and Security

I usually get most of my technology information at ILTA, so I wasn’t sure if this session was going to offer anything new. I was pleasantly surprised because the session at ALA focused more on the ethics and legality of the Cloud instead of system specifications and considerations. This was an interesting perspective since I need to consider all sides of adopting this movement. Overall, it reinforced the undeniable trend toward the Cloud, and all that comes with this move.

Strength-Based Leadership: The 10-80-10 Principle

As a manager, I am often challenged with personnel issues, and the difficulties behind flexing management styles based on the individual. This session provided a unique perspective around just this.  Normally 10% will buy in to the situation right away and become the “cheerleaders” of the group. 80% will usually go with the flow, while the final 10% are often the skeptics and naysayers. The point was not to worry about this last 10%. Once in motion on a process, change, or situation, why spend energy on the negative ones who most likely are not going to change their tune. Focus on the top 10% who are very enthusiastic, and who often infect the 80% to follow suit. I also would like to mention that the speaker, Sunjay Nath, was very engaging and used personal experiences, humor, and sleight of hand to describe and demonstrate many of these principles.

Ally or Adversary? The 3 Secrets to Cultivating Strategic Relationships

What stuck with me from this workshop was the dynamic and interaction between the two speakers, Eric Spenser and Kelley Coyle Wyngarden. He was humorous and a little self-deprecating, while she “played it straight” and serious. Together they showed how colleagues can feed off each other in a positive way. The point of the workshop was to help determine on first contact if someone is your adversary or ally, and stressing the importance of nurturing relationships. We also did a group exercise where we were told to pick someone and see how quickly you find common ground. It had to do with how firms operate and how the person next to you may have ways to solve a problem differently and can add value because of their history and perspective.

General Session -- Gray Area Thinking: Understanding Diverse Humans and Welcoming Transgender Attorneys, Coworkers and Clients

Ellen Krug was the most inspiring and interesting speaker of the week. I say this, not because of the attention-grabbing session topic, but instead because of her delivery and candor. Immediately you sense this when she empathizes with the unease and possible confusion of the audience by describing herself as a woman walking out but with a “dude’s” voice. The topic, though described as being about issues of transgender individuals in law firms, felt more about acceptance and regarding those with observable differences simply as humans. She used examples of things outside of transgender diversity to highlight the humanness in everyone. I left the session contemplating some of the main concepts, like the four commonalities that connect all humans, and whether I would consider myself tolerant, excepting, or the “party host” when it comes to diversity. Overall, this was the most prominent speaker and session.

Other notable sessions from my time in Denver include:

  • Generational Marketing: Strategies and Tactics for Engaging Different Generations
  • Social Media, Digital Marketing Mechanics and More
  • Design Opportunities for the Next Generation of Law Firms

Another takeaway from the conference was my rising interest in getting my CLM. Pro tip: Make sure to sign in at the sessions to record attendance and get the credits. Unfortunately, I did not do this.

Thank you to EBALA and ALA for the opportunity to attend the annual conference.

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EMPLOYMENT LAW UPDATE

Flat Sum Bonuses & Regular Rate of Pay
BY: Chad Greeson, Partner, Archer Norris

Do you have hourly California employees that receive a “flat sum bonus” (i.e., a bonus of a fixed amount) and who also work overtime?  If so, what rate do you use to calculate their overtime wages?  If you are simply multiplying the employee’s base hourly rate by 1.5 to calculate the overtime rate, you may not be complying with federal or California law.

Under federal law, you calculate the regular rate of pay by dividing all of the employee’s compensation including any bonuses for the week by the number of hours worked.  Under California law, the proper method for calculating regular rate of pay is more nuanced and depends on the type of employee and the nature of the bonus. 

As one example, the correct formula for calculating the regular rate of pay for an hourly California employee who receives a flat sum bonus (e.g., an attendance bonus) and who also works overtime has not been resolved.  This issue is presently pending before the California Supreme Court in Alvarado v. Dart Container Corp. of California (Cal. 2016) 369 P.3d 553, 201 Cal.Rptr.3d 884; S232607.) 

In Alvarado, an employer used the federal formula to calculate the regular rate of pay for an employee who received a flat sum bonus and who also worked overtime.  The employee argued that he was underpaid and that the method set forth in California’s Division of Labor Standards Enforcement (“DLSE”) Manual should apply.  (Alvarado v. Dart Container Corp. of California (2016) 243 Cal.App.4th, 1200, 1204-06, review granted, depublished by Alvarado v. Dart Container Corp. of California (Cal. 2016) 201 Cal.Rptr.3d 884; S232607.) 

Under the DLSE Manual’s formula, you calculate the regular rate of pay on a flat sum bonus by dividing the weekly pay including any flat sum bonus (numerator) by no more than 40 hours per week (denominator).  (DLSE Manual §§ 49.2.4.2, 49.2.4.3.)  Since the DLSE’s formula restricts the denominator to 40 hours, it results in a higher regular rate of pay to the employee than the federal method.  A higher rate of regular pay yields a higher overtime rate and more overtime pay than the federal formula. 

Until the Supreme Court decides Alvarado, the most conservative approach in California is to apply the DLSE’s formula for calculating the regular rate of pay on flat sum bonuses.  The failure to properly pay overtime wages in California can result in an avalanche of wage and hour claims including but not limited to failure to provide complete and accurate wage statements, failure to timely pay all wages earned at separation of employment, unfair business practices, and civil penalties under the Private Attorneys General Act (“PAGA”). 

If you have questions or would like assistance with determining the regular rate of pay for your employees, please feel free to contact us directly.    

925.930.6600
www.archernorris.com

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BUSINESS PARTNER ARTICLE

Ransomware – A Global Wake-Up Call
By: CINTHIA MOTLEY, Esq., Co-chair of Sedgwick LLP’s Cybersecurity and Privacy Practice Group
Originally published in Cybersecurity Today. Reprinted with permission.

U.S. Regulator Warns of “Evidence” of Global Cyber Assault Occurring Inside the U.S. and Steps Your Company Should Take Against a Ransomware Attack 

On Friday, May 12, 2017, Laura Wolf, Critical Infrastructure Protection Lead of the Department of Health and Human Services (HHS) issued a notification stating that:

HHS is aware of a significant cyber security issue in the UK and other international locations affecting hospitals and healthcare information systems. We are also aware that there is evidence of this attack occurring inside the United States. We are working with our partners across government and in the private sector to develop a better understanding of the threat and to provide additional information on measures to protect your systems. We advise that you continue to exercise cyber security best practices – particularly with respect to email.

This alert comes in the heels of Friday’s global ransomware attack that has spread in nearly 100 countries. The attacks are being blamed on malware called WCry, WannaCry or Wana Decryptor.

So what measures can your company take to protect itself in the event of a ransomware attack?

If a company is infected with ransomware, they face two hard choices: either pay ransom to unknown criminals or try to restore its systems, if possible. With either option a company faces risks.  Thus, prevention and pre-breach planning are key, including taking the following steps:

Update systems and software with current patches: Ransomware spreads easily when it encounters unpatched or outdated software. The HHS has noted that the WannaCry ransomware may be exploiting a vulnerability in Server Message Block 1.0 (SMBv1). Microsoft also just released an emergency security patch update for all its unsupported versions of Windows, including Windows XP, Vista, Windows 8, Server 2003 and 2008 Editions. In addition, keeping computer and antivirus up to date adds another layer of defense that could help stop malware.

Refresh, Review, Retrain: To protect your company from a ransomware attack properly train employees on cybersecurity.  Authorized users can expose a company the most when it comes to cybersecurity risks.  This includes employees who are vulnerable to social engineering and phishing attacks. Thus, train employees to identify phishing attacks and perform proper authentication of third parties before providing them with data or access to the network.

Data Access Controls: Granting users access to data and systems minimally necessary to do their jobs and closely monitoring access controls can help contain the spread of initial infections.

Implement Data Loss Prevention (DLP) and Intrusion Detection Systems: Quickly identifying potential infections with intrusion detection systems can allow a company to rapidly isolate infected servers and/or endpoints (computers), also preventing the spread of initial infections. Using data loss prevention tools companies can enforce protection policies, and administrators can secure sensitive business data and prevent illegal access to data.

Implement Regular and Offsite Data Backups: In the event of a ransomware attack, decryption keys are not always provided even when ransoms are paid. Backups stored on the same infected server are often encrypted along with the encrypted data. Thus, regular data backups that are continually tested to ensure they can be restored if needed are important to help a company recover its data, resume operations and avoid paying a ransom demand.  It is equally important that backups be stored offsite.

Implement, practice and update incident response and business continuity plans: Having a tested incident response plan will help an organization quickly respond to a security incident.  While many organizations have information security procedures in place, it is important that those plans and procedures be reviewed to address a potential ransomware attack.  Similarly, perhaps the biggest impact of a ransomware attack is the down time an organization may face, even causing business functions to come to halt.  Thus, it is critically important that companies update their business continuity plans to specifically address ransomware.

Quickly deploy incident response team and protect privilege: Quick incident response team deployment is essential when faced with a ransomware attack. This should include having legal, forensic and public relations consultants, as well as law enforcement contacts identified before a security incident occurs. Top level awareness is equally important as crisis management decisions will need to be made quickly, such as: whether the ransom demand will be paid and, if so, who should negotiate the ransom payment; how and when to notify law enforcement; as well as any internal or external communication necessary. As these decisions may greatly impact a company’s business, financial and legal obligations, it is critically important that in-house or outside legal counsel be involved from the outset to advise and guide the organization, including in the retention of outside consultants. This is the best measure to help protect attorney-client privilege as company executive are forced to navigate quickly through important decisions for the organization.

In short, being proactive is often easier and less costly than a reactive approach.  Cyber risks present a fast evolving landscape. Data loss through cybercrime and internal risks represent increasing business exposures. Prevention is key to mitigation in this area and a better option than facing a breach unprepared.  An entity that knows those risks and controls the data that flows within and outside its walls can best remain competitive in their marketplace.  Using this knowledge a company can most efficiently protect sensitive data and quickly respond to security incidents.

AHERN Insurance Brokerage is one of the largest full-service insurance brokerage firms in the country specializing in the insurance needs of law firms, with over 5,000 law firm clients.

For more information on how AHERN can assist your firm, please contact:
Stephen T. Lowe | Executive Vice President

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MEMBERSHIP ANNIVERSARIES

Jim Therien is celebrating his 30th anniversary as a member of EBALA! 

"There was a book some years ago called Good to Great. I would just say it somewhat applies to the networking and the people you get to know through EBALA and ALA over the years.  We spend many hours in our professions, sometimes too many, and such organizations as EBALA provide us the opportunity to not only learn from a pertinent seminar but to expand our thoughts and understandings through others sharing the same or similar professional journey." - Jim Therien 

Congratulations, Jim! 

Jim Therien and Tina Riehl 

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COMMUNITY SERVICE

Please save the date and join us for our annual coastal clean up! 

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EAST BAY CHAPTER BOOK CLUB

 

The East Bay Chapters
is excited to announce our 

next book selection
"11/22/63"
by: Stephen King

On November 22, 1963, three shots rang out in Dallas, President Kennedy died, and the world changed. What if you could change it back? Stephen King's heart-stoppingly dramatic novel is about a man who travels back in time to prevent the JFK assassination - a thousand page tour de force.

King sweeps readers back in time to another moment - a real life moment - when everything went wrong: the JFK assassination. And he introduces readers to a character who has the power to change the course of history.

Jake Epping is a thirty-five-year-old high school English teacher in Lisbon Falls, Maine, who makes extra money teaching adults in the GED program. He receives an essay from one of the students - a gruesome, harrowing first person story about the night 50 years ago when Harry Dunning's father came home and killed his mother, his sister, and his brother with a hammer. Harry escaped with a smashed leg, as evidenced by his crooked walk.

Not much later, Jake's friend Al, who runs the local diner, divulges a secret: his storeroom is a portal to 1958. He enlists Jake on an insane - and insanely possible - mission to try to prevent the Kennedy assassination. So begins Jake's new life as George Amberson and his new world of Elvis and JFK, of big American cars and sock hops, of a troubled loner named Lee Harvey Oswald and a beautiful high school librarian named Sadie Dunhill, who becomes the love of Jake's life - a life that transgresses all the normal rules of time.

A tribute to a simpler era and a devastating exercise in escalating suspense, 11/22/63 is Stephen King at his epic best. (Review by BookBrowse)         

We will be meeting on Tuesday, August 29, 2017 at 5:30 p.m. at Archer Norris, 2033 N. Main Street, Suite 800, Walnut Creek, for our group book discussion. Karin Wiborn has graciously offered to host. I hope you can join your fellow EBALA members for this fun and enjoyable night.

If there is a book you would like The East Bay Chapters to consider in the future, please let Tina Riehl know. Her email is: triehl@briscoelaw.net

Our book club is open to all members.
Please join us at any time.

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EAST BAY CHAPTER - CALENDAR OF EVENTS

LMA BAY: PRODUCTIVITY IMPROVEMENT IS INDUSTRY BLIND

August 10, 2017
11:30 AM to 1:30 PM

Archer Norris
2033 N. Main Street, Suite 800
Walnut Creek, CA 94596

Leveraging Best Practices and Proven Techniques for Better Project Management

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SUMMER SOCIAL COCKTAILS & APPETIZERS

August 24, 2017
5:00 PM to 7:00 PM

Metro Lafayette
3524 M. Diablo Blvd.
Lafayette, CA 94549

Celebrate Summer!

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EAST BAY CHAPTER BOOK CLUB

August 29, 2017
5:30 PM to 7:00 PM

Archer Norris
2033 N. Main Street, Suite 800
Walnut Creek, CA 94596

Next Book Selection: "11/22/63" by Stephen King

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EBALA BOARD MEETING TUESDAY, SEPTEMBER 19, 2017

September 19, 2017
12:30 PM to 1:30 PM

Buchman Provine Brothers Smith LLP
2033 N. Main Street, Suite 720
Walnut Creek, CA 94596

Board Meeting 9/19/17

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2018 MORNING IN THE EAST BAY EDUCATIONAL CONFERENCE

January 26, 2018
7:30 AM to 12:30 PM

Lafayette Park Hotel, Independence Room 
3287 Mt. Diablo Blvd.
Lafayette, CA 94549

SAVE THE DATE

READ MORE    REGISTER NOW

 

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