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CMCP Diversity Matters Summer 2016 Newsletter

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Summer 2016


CMCP Diversity Matters

CMCP Diversity Matters eNewsletter – Summer 2016 Issue

2016 eNewsletter Committee Members

Cassandra Mougin (Co-Chair) Shareholder Pettit Kohn Ingrassia & Lutz, PC

Michael Chung

(Co-Chair) Counsel Davis Wright Tremaine LLP

Of Counsel Willenken Wilson Loh & Delgado LLP

Kim Hassan

Gagandeep Kaur

Noah Perez-Silverman

Kelly Perigoe

David Shimkin

Associate Reed Smith LLP

Associate Caldwell Leslie & Proctor, PC

Jonathan Turner

Partner Mitchell Silberberg & Knupp LLP

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Karen A. Henry

Senior Regulatory Counsel Southern California Gas Company

Associate Caldwell Leslie & Proctor, PC

Member Cozen O’Connor

Raffi Zerounian

Counsel Hanson Bridgett LLP


Summer 2016 Newsletter

Table of Contents

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Update regarding Uber Drivers – Litigation over Employment Status averted by Settlement

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Using the New Defend Trade Secrets Act to Protect Confidential Business Information

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California’s No Aid Clause and Religious Endorsement: Davies v. County of Los Angeles

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California Fair Pay Act's Anticipated Effect on Litigation

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Attorney Spotlight On: Julio Avalos, Chief Business Officer and General Counsel of GitHub

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Meet Your CMCP Board Members - Attorney Spotlight: Audra Ibarra – Counsel at California Appellate Law Group

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Event Recap: The CMCP Board Speaks: How Connections Really Work

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Diversity Calendar Mark Your Calendars for Upcoming Diversity Events

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Event Recap: In Trying Times, CMCP Event Highlights Formation and Role of Bias

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Event Recap: Lateral Hiring: How-to-Guide for Successful Transition, Integration and Growth

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Business Development Series: Be yourself. Everyone else is taken.

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CMCP Diversity Matters

Update regarding Uber Drivers –

Litigation Over Employment Status Averted by Settlement By: Jonathan M. Turner, Partner, Mitchell Silberberg & Knupp LLP

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he Fall 2015 issue of our newsletter included an article about Uber, and how it classifies drivers providing services using its online “service on demand” platform. As reported in that article, the California Labor Commissioner’s Office, following an administrative hearing in Berwick v. Uber Technologies, Inc., rejected Uber’s position that the drivers were independent contractors, and found instead that they are employees. Although Uber appealed the case to the California Superior Court1, the question argued before the court was not whether the plaintiff was an employee but whether an agreement she signed with Uber required her to submit her dispute to arbitration. The trial court decided that question against Uber, and the matter is now pending before a First District Appellate Court.2 The Berwick case was one of many closely watched cases on the issue of the employment

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status of Uber drivers. Just this past April, a settlement was reached in O’Connor, et al. v. Uber Technologies, Inc., a class action case in which plaintiffs similarly alleged that Uber had misclassified them as independent contractors. The settlement agreement, which was submitted for approval to the federal district court in San Francisco,3 averted a trial that was scheduled to go forward in June. Under the agreement, Uber will pay $100 million to settle independent contractor misclassification claims in California and Massachusetts. In addition, Uber has agreed to make the following changes to the terms and conditions under which persons provide driver services using Uber’s platform: •

Uber will no longer be able to “deactivate” drivers (i.e., remove drivers from Uber’s platform) at will; instead, drivers may only be terminated for sufficient cause. Also, drivers will receive warnings in most instances and will be provided

an opportunity to correct any issues prior to deactivation. •

Drivers will not be subject to deactivation for low or negative ratings from customers.

Uber will institute internal appeal panels, made of “highly rated” drivers, so that drivers who believe they have been unjustly terminated may bring their concerns to a panel of their peers.

Drivers who are not satisfied with the result of these internal appeals can bring their claims to a neutral arbitrator, at Uber's expense, to determine if there was sufficient cause for the deactivation.

Uber will institute an internal escalation process for disputes regarding drivers’ pay.

Uber will facilitate and recognize the formation of a Driver Association, which will


Summer 2016 Newsletter

have leaders elected by fellow Uber drivers, who will be able to bring drivers' concerns to Uber management, which will engage in good faith about the driver concerns. •

Uber will make clear to riders that tips are not included in Uber's fares. Drivers will be permitted to put small signs in their cars stating that "tips are not included, they are not required, but they would be appreciated."4 (It remains unclear under the settlement agreement whether the passengers will be able to tip via the Uber application.)

Further details regarding the settlement are available by accessing the following “Uber Lawsuit” link: http://uberlawsuit. com/. If the settlement in O’Connor is approved by the court, it will leave unresolved by any court whether Uber drivers are employees or independent contractors. And, there is one component of the settlement that potentially conflicts with the federal labor policy under the National Labor Relations Act (“NLRA”).5 Under the NLRA, employees have a federally protected right to vote on the question of whether they desire to be represented by a labor organization to bargain on their behalf over wages, hours and “other terms and conditions of employment.”6 The National Labor Relations Board (“NLRB”) is the federal agency vested with

exclusive jurisdiction to process “bargaining unit” petitions filed by employees who wish to initiate that voting process.7 The “Drivers Association” that has been established under the terms of the O’Connor settlement appears to bear characteristics of a labor organization,8 so there is an argument that the settlement agreement has conferred “bargaining representative” status on the Drivers Association without the opportunity for Uber drivers to vote on that issue under the procedures administered by the NLRB. Of course, the merits of this argument will turn on the very question that was presented in O’Connor and mooted by the settlement – whether Uber drivers are employees or independent contractors. The O’Connor case has caused many similarly situated companies to look carefully at the economic consequences of taking the independent contractor/employee issue on in the courts, and instead to classify their workers as employees with all the protections that accompany that classification. We will continue to monitor developments in this and other similar cases.

1 Uber Technologies, Inc. v. Berwick, 15-546378, Superior Court of California, County of San Francisco. 2 Berwick v. Uber Technologies, Inc., A146460, (California Court of Appeal, 1st District). 3 O’Connor v. Uber Technologies, Inc., 13-cv03826, U.S. District Court, Northern District of California (San Francisco). 4 Further details regarding the settlement are available by accessing the following “Uber Lawsuit” link: http://uberlawsuit.com/ . It remains unclear whether the passengers will be able to tip via the Uber application. 5 29 U.S.C. sections 151, et seq. 6 29 U.S.C. sections 157, 159. 7 Kindred Nursing Ctrs. E., LLC v. NLRB, 727 F.3d 552, 558-59 (6th Cir. 2013) (the NLRB has exclusive jurisdiction to make bargaining unit determinations subject only to judicial review in the court of appeals). 8 The NLRA defines a labor organization broadly as “any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work.” 29 U.S.C. § 152(5). See Electromation Inc., 309 N.L.R.B. No. 163 (1992), aff'd, Electromation Inc. v. NLRB, 35 F.3d 1148 (7th Cir. 1994).

Jonathan M. Turner is a partner through his professional corporation at Mitchell Silberberg & Knupp LLP in Los Angeles. Jonathan represents management in all aspects of labor and employment law. For more information about Jonathan, click here..

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CMCP Diversity Matters

CMCP Diversity Matters eNewsletter – Summer 2016 Issue

Using the New Defend Trade Secrets Act to Protect Confidential Business Information By: Amir A. Amini and Amber Grayhorse, Senior Counsels, Sanchez & Amador LLP

This is a follow-up article to “The New Federal Trade Secret Act and What It Means to Your Business”, written by Amir Amini, and published in the NAMWOLF newsletter, July 2016 issue.

On May 11, 2016, President Obama signed into law the first federal trade secret law, the “Defend Trade Secrets Act of 2016” (DTSA), which is similar to the Uniform Trade Secret Act that many states have adopted, but also broadens available venue and remedies to protect trade secrets. (See “The New Federal Trade Secret Act and What It Means to Your Business,” published by NAMWOLF). With this expansion, now is a good time to reassess what you can do to protect your company’s trade secrets. Implementing the following best practices will help to safeguard against trade secret misappropriation, as well as ensure you have the most available remedies available in the unfortunate event of misappropriation.

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Best Practice No. 1: Kn ow what a trade secret is. Their definition varies from state to state. But in its most elementary sense, a trade secret is a company's valuable information, not known by others, that the company reasonably tries to keep confidential. The most common examples are customer and supplier lists, marketing strategies, secret recipes, software, and formulas. To confirm what you believe to be a “trade secret” is indeed a legally protectable trade secret, you should review your state's trade secret laws and the DTSA. Best Practice No. 2: Inventory your trade secrets. Maintaining and periodically updating your trade secret inventory lists is essential to protecting your trade secrets from disclosure. Having counsel directly involved in the inventory process can help safeguard

against potential discoverability issues in future lawsuits. Best Practice No. 3: Keep trade secrets secret. Although an obvious practice, many companies unfortunately fail to implement this critical step and therefore lose trade secret protection. Common ways to maintain the secrecy of your trade secrets include: marking trade secret information with “confidential and proprietary”; limiting access to only those employee who must see the trade secrets; requiring a password to access the information; implementing policies regarding storage and disposal of trade secret information; and keeping trade secrets locked in separate cabinets. Best Practice No. 4: Use and update written confidentiality agreements. Have all employees


Summer 2016 Newsletter

and independent contractors or consultants execute confidentiality agreements that define your company's trade secrets and explain the limitations on use of those trade secrets along with the penalties for violating the agreement. Include the same in personnel manuals. Depending on the jurisdiction, you may also consider having certain employees execute a non-compete or non-solicitation agreement (with limited exceptions, such agreements are not valid in California). If you make confidential information available to any third-parties (i.e., customers, suppliers, or business partners), require them first to sign non-disclosure agreements and limit their access to the greatest practicable extent. Be sure to update your confidentiality agreements as new laws that impact trade secrets become effective. For example, to preserve all available remedies under the DTSA, you must update your confidentiality agreements to provide employees, contractors, and consultants notice of the DTSA's whistleblower and employee immunity provisions. Best Practice No. 5: Train employees and independent contractors regarding your trade secrets. Training should be given to all new employees, and periodically for other employees. Training should discuss what the company considers to be trade secrets and the company's policies to maintain the secrecy of that information. We recommend documenting each training with signed acknowledgments, participation lists and/or certifications.

Best Practice No. 6: Hold thorough exit interviews. Require exiting personnel to acknowledge in writing they have returned all confidential information in their possession (including any on personal electronic devices), and will continue to protect confidential information. If there is a non-compete or non­solicitation agreement in place, you may consider contacting the new employer and providing them with a copy of the employee's confidentiality agreement; but you should consult with an employment attorney before doing so. Best Practice No. 7: Immediately protect your trade secrets for each employee separation. Promptly terminate a departing employee's passwords and access to any building or location where proprietary information is kept. Ensure all personnel with access to your trade secrets take necessary steps to protect the information upon an employee's separation. In particularly sensitive situations, you may wish to have technology specialists look for suspicious downloads or file copying by the departing employee, but only after consulting with employment counsel familiar with privacy laws. Best Practice No. 8: Create a misappropriation plan. Establish procedures with HR to ensure quick access to necessary information. Establish procedures with the IT department to make sure that a departing employee's hard drives and emails are preserved and passwords are revoked. Having a strong relationship with counsel helps

when seeking quick court relief, such as a temporary restraining order, for any misappropriation. In the unfortunate event that a departing employee takes your trade secrets, you have many legal remedies. For instance, you can seek a court order to return, destroy or prevent use of your trade secret materials. Under the DTSA, you can also seek a seizure order to recover your trade secrets prior to giving notice of a lawsuit. You may also be able to recover monetary damages and attorneys' fees in appropriate circumstances. You should always consult counsel if you have any questions, want to update policies, procedures or agreements, or are concerned about misappropriation.

Amir A. Amini is Senior Counsel with Sanchez & Amador, LLP, with offices in Los Angeles and Oakland, California. Amir leads the firm’s business and real estate litigation team. His practice focuses on complex business litigation, including commercial contracts, fraud, defamation, unfair competition, and intellectual property disputes. For more info on Amir, click here.

Amber M. Grayhorse, Senior Counsel with Sanchez & Amador, LLP, has defended and counseled private and public employers for more than a decade. Her practice focuses on employment and complex business litigation involving a variety of claims, including harassment, discrimination, retaliation, employment torts, breach of contract, and related business torts. For more info on Amber, click here.

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CMCP Diversity Matters

California’s No Aid Clause and Religious Endorsement: Davies v. County of Los Angeles By: Arwen J. Johnson, Shareholder and Kimberly M. Singer, Associate Caldwell, Leslie & Proctor, PC

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n April 6, 2016, several local religious leaders and scholars obtained a permanent injunction against the County of Los Angeles, which had approved a measure in 2014 altering the official County Seal to include a Christian cross. Davies, et al. v. County of Los Angeles, et al., Case No. 2:14-cv00907-CAS-FFM (C.D. Cal. Apr. 6, 2016). The arguments presented in this widely-publicized case concerned a fundamental principle upon which both our federal and state constitutions are based: the separation of church and state, and when the actions of state or local government fail to respect that barrier. This article highlights the following aspect of the Court's ruling in Davies: the importance of the California Constitution's "No Aid Clause" in cases challenging government endorsement of religion, and how the framework used to analyze that clause differs from that under the federal "Establishment Clause." In Davies, the Court was asked to determine whether adding a depiction of a cross to the official County Seal violated the California and United States Constitutions. In 1957, the County Board of Supervisors adopted a new official seal for the County of Los Angeles which depicted, among other items, a cross above an image of the Hollywood Bowl (the “1957 Seal”). The

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1957 Seal served as the official County seal until 2004, when the ACLU sent a letter to County officials arguing that the presence of the cross on the 1957 Seal reflected an impermissible endorsement of Christianity. Following an emotional (and religiously-charged) debate, conducted over a series of public Board meetings, a divided Board voted to replace the depiction of the cross and Hollywood Bowl on the 1957 Seal with a depiction of the eastern façade of the San Gabriel Mission, without any cross atop its roof (the “2004 Seal”). At the time, the actual San Gabriel Mission’s eastern façade was not adorned by a cross. In 2009, a cross was placed atop the eastern façade of the actual San Gabriel Mission. Four years later, on December 31, 2013, two members of the five-member Board introduced a motion


Summer 2016 Newsletter

to add a cross atop the depiction of the Mission on the 2004 Seal, for the stated purpose of rendering the Seal “artistically, aesthetically and architecturally correct.” A divided Board ultimately voted on January 7, 2014 to approve the motion and add the cross—the only change it made to the Seal (the “2014 Seal”). The Board’s decision prompted a group of religious leaders and scholars who objected to the inclusion of a cross on the seal to seek an injunction in federal court to stop the County from implementing the 2014 Seal. Following a bench trial, the Honorable Christina A. Snyder of the Central District of California ruled in a 55-page opinion that the County’s addition of the cross to the 2014 Seal violated the No Aid Clause of the California Constitution and the Establishment Clause of the First Amendment to the United States Constitution.1 California’s No Aid Clause provides that “[n] either the Legislature, nor any county . . . shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose.” Cal. Const. art. XVI, § 5 (emphasis added). By comparison, the federal Establishment Clause prohibits the government from making any law “respecting an establishment of religion” or undertaking any act that unduly favors one religion over another. U.S. Const. amend. I. Both clauses are premised on the same basic theory: that the government should not promote or favor one religion over another—or over no religion—and that there should be a separation of church and state in this country. As the Davies opinion confirms, however, courts use vastly different frameworks to analyze each clause, which can have a significant bearing on the outcome of the case. Many are familiar with the so-called “Lemon” test for analyzing whether a government action violates the federal Establishment Clause:

Does the action: (1) lack a secular legislative purpose, (2) have the principal or primary effect of advancing or inhibiting religion, or (3) foster an excessive entanglement with religion? See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). The Lemon test is to be conducted through the vantage point of the so-called “objective observer,” and allows the Court to take into account traditional external signs that show up in the text, legislative history, and implementation of the statute or other comparable official act. See McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 862, 866 (2005). The Lemon test requires, however, a deference to the government’s articulation of its stated secular purpose, as long as an “objective observer” would find that purpose to be genuine, and not merely secondary to a religious objective. Id. at 862, 864, 865. By contrast, California’s No Aid Clause broadly prohibits the government from: (1) granting any benefit, in any form, (2) to any sectarian purpose, (3) regardless of any secular purpose offered by the government, (4) unless the benefit is made available on an equal basis to those with sectarian and secular objectives, and can therefore be characterized as indirect, remote, or incidental. See Paulson v. City of San Diego, 294 F.3d 1125, 1130 (9th Cir. 2002) (en banc). It “does not mirror or derive from any part of the federal Constitution.” Fox v. City of Los Angeles, 22 Cal.3d 792, 801 (1978) (Bird, C.J., concurring). Thus, even a government action that has a secular purpose can violate the No Aid Clause if it also has a direct, immediate, and substantial effect of promoting a sectarian purpose. Id. at 1130; see also Hewitt v. Joyner, 940 F.2d 1561, 1571 (9th Cir. 1991); Los Angeles Cnty. v. Hollinger, 221 Cal.App.2d 154, 158 (1963). “Sectarian purpose” merely connotes a religious use, as opposed to a subjective state of mind. Paulson, 294 F.3d at 1130, n.5. Continued on next page…

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CMCP Diversity Matters

CMCP Diversity Matters eNewsletter – Summer 2016 Issue

The Davies opinion provides a helpful illustration of how the differences between the two clauses can matter. To hold that the County’s decision to add a cross to the seal violated the No Aid Clause, the Court needed only to consider the evidence that the County had used public funds to add the cross to the 2014 Seal; the cross is the preeminent symbol of Christianity; the decision to add the cross—the only change to the 2014 Seal—came only ten years after the County had replaced the 1957 Seal, at significant expense, to avoid furthering a sectarian purpose; and the County’s seal carries an aura of prestige, authority, and approval that is not indirect, remote, or incidental. Significantly, the Court did not need to evaluate whether the County’s stated secular purpose for adding the cross to the seal was genuine. See Frohliger v. Richardson, 63 Cal.App.209, 217 (1923). Nor was the Court bound by the “objective observer” standard applicable to federal Establishment Clause claims. See Sedlock v. Baird, 235 Cal. App.4th 874, 889 n.30 (2015); Barnes-Wallace v. City of San Diego, 704 F.3d 1067, 1083-84 (9th Cir. 2012). The Court’s federal Establishment Clause analysis in Davies, on the other hand, required a much more in-depth examination of the validity of the County’s proffered secular purpose for adding the cross to the seal and what a reasonable “objective observer” would understand about the County’s actions. Indeed, the Court considered evidence about the accuracy of the other images on the seal; whether any constituents were confused by the depiction of the San Gabriel Mission without a cross on the 2004 Seal; the size of the cross on the 2014 Seal; and the significance of statements made by the Board and members of the public during Board meetings in both 2004 and 2014—evidence that the Court did not need to consider in conducting its analysis under the No Aid Clause. The Court also had to determine what evidence in the record would, or would not,

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have been available to an “objective observer” under the McCreary standard. While the Court in Davies ultimately concluded that the County’s addition of the cross to the 2014 Seal violated both the state and federal Constitutions, the No Aid Clause offered a more direct path to that result. Because the No Aid Clause does not require an examination of the genuineness of the government’s stated purpose for its actions, nor a determination as to what an “objective observer” would perceive the purpose or effect of those actions to be, it places fewer restrictions on the court and offers a streamlined route to plaintiffs in California seeking to challenge potentially unconstitutional governmental endorsements of religion. These distinctions have the potential to make the difference between being able to prove that a government’s actions impermissibly endorse one religion above others—or above no religion—or having to defer to the government’s stated secular purpose. For residents of counties like Los Angeles, which comprises adherents of hundreds of faiths as well as non-believers, the No Aid Clause provides some additional comfort that the separation of church and state will continue to be honored.

1 The Court also ruled that the County had violated the No Preference Clause of the California Constitution, which it construed as coterminous with the federal Establishment Clause. Arwen Johnson is a Shareholder at Caldwell, Leslie & Proctor, PC. For more info on Arwen, click here.

Kimberly Singer is an Associate at Caldwell, Leslie & Proctor, PC. For more info on Kimberly, click here.


Summer 2016 Newsletter

CFPA’s Anticipated Effect on Litigation By: Jonathan M. Turner, Partner, Mitchell Silberberg & Knupp LLP

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n our Winter 2015 E-Newsletter, we discussed the California Fair Pay Act (“CFPA”), which became effective January 1 of this year. That article summarized the CFPA and how it amends section 1197.5 of the California Labor Code. Section 1197.5, which was enacted in 1949, prohibits employers from paying employees “less than employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” In this article we discuss the CFPA’s anticipated effect on litigation.

During the sixty-plus years following the enactment of section 1197.5, there has been surprisingly little case authority discussing the rights of employees and obligations of employers under that statute. One possible reason for this is that aggrieved parties typically sue under the federal Equal Pay Act, Title VII, or the California Fair Employment and Housing Act, all of which afford similar rights to employees seeking to recover for alleged gender-based discrimination in compensation.1 However, the CFPA could become a more popular statute for gender wage discrimination plaintiffs because it, in many ways, makes

it easier for them to prove their case. This is because the CFPA reduces the evidentiary burden on employees seeking to recover for alleged gender-based wage discrimination, and increases the burden on employers attempting to defend against such claims. The enumerated defenses under the CFPA, which were discussed at length in our last article, likely will become fertile ground for litigation, because each defense must be applied “reasonably” in order to succeed, and each such defense relied on “must account for the entire wage differential.” Even where an employer can

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CMCP Diversity Matters

CMCP Diversity Matters eNewsletter – Summer 2016 Issue

establish that the wage disparity is “reasonably” attributed to factors other than sex, such as training, education, or experience, the CFPA requires the factors, to not be based on or derived from a sexbased differential in compensation, and that each factor be “job related,” and justified by “an overriding legitimate business purpose such that the factor … effectively fulfills the [asserted] business purpose.” So, when adjudicating claims under the CFPA, the courts will probably not be so quick to recognize defenses that have been successfully raised in federal EPA cases wherein employers relied on prior salary and experience when setting compensation for new employees.2

therefore, an employer who interferes with that right commits an unfair labor practice under the NLRA.4

Years ago, the U.S. Supreme Court ruled that when an activity is arguably subject to protection under the NLRA, or is prohibited under the NLRA, “the states as well as the federal courts must defer to the exclusive competence of the [NLRB] if the danger of state interference with National labor policy is to be averted.”5 This ruling, which has become known as the “Garmon Preemption” doctrine, essentially requires that state courts refrain from adjudicating cases where the underlying claims would constitute an unfair labor practice under the NLRA.6 One question that undoubtedly Here, it would appear that the needs to be resolved is whether portion of the CFPA that prohibits the CFPA provision prohibiting employers from retaliating against employers from retaliating against employees who discuss wages employees who discuss their wages falls squarely within the Garmon with other employees can be Preemption doctrine. It remains legally enforced without interfering to be seen whether this portion of with the exclusive jurisdiction of the CFPA ultimately will be deemed the National Labor Relations Board unenforceable, at least in cases (“NLRB”). The NLRB is the federal where the affected employees are agency charged with administering covered under the NLRA.7 and enforcing federal labor policy under the National Labor Relations Act (“NLRA”). Under the NLRA, 1 Green v. Par Pools, Inc. (2003) 111 Cal.App.4th employees have the right to form, 620, 623. join or assist unions, to organize for 2 See for example Irby v. Bittick, 44 F.3d 949, 955-956 (11th Cir. 1995) (employer relied on purposes of collective bargaining, the “any factor other than sex” defense – court and to engage in other “concerted held that an EPA defendant may successfully raise this affirmative defense if he proves activities for mutual aid and that he relied on prior salary and experience protection.”3 The rights conferred in setting a new employee’s salary); Kouba v. Allstate Insurance Co., 691 F.2d 873, 876 under the NLRA include the right (9th Cir. 1982) (defendant set compensation for employees to discuss the of new insurance agents on basis of ability, subject of wages in the workplace; experience and salary. Court held that a factor

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used to effectuate some non-gender based business policy is not prohibited under the EPA “simply because a wage differential results” between the sexes); Stanley v. University of Southern California, 178 F.3d 1069 (9th Cir. 1999) (court agreed with EEOC that superior experience, education, and ability may justify pay disparities if distinctions based on these criteria are not gender based). 3 29 U.S.C. section 157. 4 Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1372-1373. 5 See The Retail Property Trust v. United Brotherhood of Carpenters and Joiners of America, 768 F.3d 938, 951-952 (9th Cir. 2014), quoting San Diego Building Trades Council v. J.S. Garmon, 359 U.S. 236, at 295 (1959). 6 See Walmart Stores, Inc., et al., v. UFCW, et. Al. (2016) 2016 Cal. App. LEXIS 530. 7 The Supreme Court recognized a “local interest” exception to preemption under Garmon. The local interest exception applies where the conduct sought to be regulated by the state is only of “peripheral concern of the [NLRA],” or “touches on interests so deeply rooted in local feeling and responsibility[.]” See Sears, Roebuck & Co. v. Carpenters (1978) 436 U.S. 180. The conduct in question in this article – the sharing of wage information among employees – is the type of conduct that clearly is protected under the NLRA, and likely would be considered to be of only peripheral concern of the NLRA, and not touch on interests that are deeply rooted in local feeling and responsibility. The cases where the local interest exception commonly arises involve attempts to enforce state laws regulating violence, breach of peace, trespass and other unlawful conduct occurring in the course of a labor dispute or controversy. See discussion in Walmart Stores, Inc. v. UFCW, supra.

Jonathan M. Turner is a partner through his professional corporation at Mitchell Silberberg & Knupp LLP in Los Angeles. Jonathan represents management in all aspects of labor and employment law. For more information about Jonathan, click here.


Summer 2016 Newsletter

ATTORNEY SPOTLIGHT ON

JULIO AVALOS, Chief Business Officer and General Counsel of GitHub By: Raffi V. Zerounian, Counsel, Hanson Bridgett LLP

Julio Avalos walked onto campus at Columbia Law School as a firstgeneration student of color with no practical understanding of the profession. The only lawyer he had ever met was a man who occasionally hired his father to do odd jobs or handyman work. “I’d hold the ladder while my dad put up a ceiling fan,” Julio remembers, “or else help dig for landscaping work. All I knew was that he had a fancy house and smoked cigars.” A decade after graduating from Columbia Law School, Julio is now Chief Business Officer and General Counsel of GitHub, a groundbreaking technology startup and maker of one of the most important tools in contemporary software development. Although Julio humbly attributes some of his success to being in the right place at the right time, his trajectory is an impressive example of someone who remained true to himself and his community, passion, and voice. Julio has served on GitHub’s executive team since 2012 and now oversees the company’s operational departments, including the Legal, People Operations (HR & Talent Acquisition), Finance, and Internal Communications teams. Looking back to his first day of law

school, this is not necessarily where he expected to be professionally. On his first day of orientation at Columbia Law School, Julio felt disoriented and “apart from” most of his Ivy League classmates. It was similar to something he had experienced long before, on his first day of kindergarten. On that day, Julio, the first son of Guatemalan immigrants, had showed up with a Wonder bread and refried bean sandwich and slipped between English and Spanish when speaking to his classmates. “I don’t think that I realized it was possible to not be bilingual,” Julio recalls. He went home

wondering why some of his classmates laughed when he spoke. That night, he recorded himself talking on a tape recorder and played it back to try to figure out what was so funny about his voice. He thought he sounded just fine. When he was eight years old, his family moved from New York to Florida. Julio always liked and gravitated towards school, and excelled in his studies. He received a scholarship to attend the University of Florida. Continued on next page…

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CMCP Diversity Matters eNewsletter – Summer 2016 Issue

His parents encouraged him to be a Business major, but, Julio opted to follow his passion instead (a trend throughout his life) and enrolled to study English and Philosophy. “All I wanted was to read and write and talk about reading and writing,” Julio says. “I wasn’t preoccupied with grades or what I wanted to be when I grew up.” As graduation neared, however, the school's administration alerted Julio that he was at top of his class, with perfect grades. Julio started to think more seriously about next steps. To him, the most natural next step would have been to continue to pursue the focus of his undergraduate studies and obtain a PhD in Philosophy or Literary Theory. In Julio’s family, however, as with many immigrant families, a career in law or medicine was viewed as the pinnacle of both professional and personal success. Although he was not sure what lawyers actually did, he decided it would not hurt to apply to law school. But still torn, he opted to apply to one and only one law school. If he did not get in, he would reassess and pursue his doctorate. He knew he wanted to get back to New York and had a general sense of the "Ivy League.” He did some online research; Columbia was the only school that checked both boxes. Columbia Law School also happened to have some of the top Critical Race Theory faculty in the country, and Julio recognized names like Patricia Williams and Kendall Thomas from his undergraduate theoretical work on race, gender, and law. Julio applied to Columbia Law School, was admitted, and quickly enrolled.

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Julio did not love law school. He did not recognize himself in the work or his peers. His classmates were the children of governors, diplomats, and CEOs. Most had spent the summer or years before law school traveling or working abroad. Julio went straight from college to law school, and in college he spent his summer months working the night shift at Target, helping to unload freight. He was a first generation American of Latino heritage whose mother taught English as a second language to Hispanic and Haitian immigrants and whose father was a handyman without a high school education. Even so, Julio eventually found work he enjoyed and thrived— child advocacy with an immigration component, copyright, trademark law, and race theory with Professor Kendall Thomas. He spent a very brief time with the school’s Journal of Gender and Law— “the only journal that seemed to be doing any interesting, hard, critical or theoretical work”—but stopped when he learned that in the law school journal system, students typically do not work on their own content, but are rather responsible for editing and publishing that of the professors. He opted to work on extending his undergraduate honors thesis instead, a psychoanalytic study of the works of Mark Twain. It was published by Johns Hopkins University as Julio began his second year in law school. In addition to being a product of public schools and the first member of his family to run the gamut of high school, SATs, and college applications, Julio went into law school knowing little of the student debt that would

accumulate. He quickly understood that he would need to get a job at a corporate law firm to sustain himself after graduation. After his second year, Julio was a summer associate at a vaunted white-shoe New York corporate law firm. The experience was eye opening. “I still didn’t know what I wanted to do, but at least I knew that I didn’t want to do that,” says Julio. After graduating in 2006, Julio took an offer with the New York office of Orrick Herrington & Sutcliffe. A year later, Julio moved to Orrick’s Menlo Park office to be closer to his girlfriend (now wife), who was clerking for the Ninth Circuit, and who he had met on their first day at Columbia Law School. Orrick partner Neel Chatterjee recruited Julio to work on cutting edge intellectual property issues, and Julio credits him with helping to direct and form his career. This type of work—which focused on a mission of pulling the world together through technology— was interesting, and presented fewer moral and ethical complications than traditional big firm clients. Eventually, Neel staffed Julio on a case for a new firm client known at the time as "TheFacebook.com." Julio’s practice became focused on copyright, trademark, and internet matters and he spent nearly five years working primarily on Facebook cases and investigations. Julio's career grew as Facebook matured and as the complexity of the issues facing the company expanded, both domestically and internationally. Suddenly he was litigating not


Summer 2016 Newsletter

only intellectual property issues, but precedent-setting privacy, cybergovernance, and general commercial issues. Working with Facebook was Julio's first experience with a mission-based approach to work, and he fell in love with it. Facebook’s novel approach to running a company, its open office space plan, and the role lawyers play when working with a technology startup was a new and exhilarating experience. He had been bitten by the tech "bug." Although Julio understood and enjoyed the positive attributes of law firm life, he realized that his passion was working with people and within a business. He enjoyed having an intimate understanding of the client and its business, needs, and culture. He also liked the more tangible and practical aspects of the in-house role, and being able to look at a legal practice differently. In 2011, Julio had an opportunity to go in-house at Yelp, before the company's initial public offering. “I went from doing litigation to almost anything but,” he says. Julio counseled Yelp on employment matters, marketing issues, and had his first experiences with contract drafting and commercial negotiations. It was at Yelp that Julio noticed that many of the company’s engineers were wearing GitHub shirts or had GitHub stickers on their laptops. He was intrigued. Company-branded swag is a constant in the tech and startup industries, and used as almost

tribal identifiers by the employees who work there. Wearing and identifying with a different company’s brand is unusual. After learning more about the company, Julio was introduced to GitHub's founders, who, he learned, had never had a company attorney despite having already established an international presence and almost cultish buzz in the tech industry. This eventually turned into a job offer, and Julio was hired as GitHub's first in-house lawyer in 2012, the same year the company raised $100M, the thenlargest Series A round of funding in technology history. GitHub is a social tool that allows users to collaborate on the development of software in a manner that fosters collaboration, transparency, and community. Since its founding in 2008, GitHub has been named among the most innovative companies in the world. Julio felt at home at GitHub culturally, which, like its product, has an environment that focuses not only upon high-quality work product, but also collaboration, empathy, and community. When Julio joined GitHub, it had under 100 employees, nearly all of whom were building GitHub the company on GitHub the product. To Julio, that meant that GitHub Legal should be built on top of GitHub as well. It also meant that it was important to view himself not as a lawyer who happened to work at GitHub, but rather a GitHub employee who happened to be a lawyer. To Julio, doing so means that things like values, culture, mission and vision of the company get baked into the decision-making process in a

way that would not otherwise be the case with lawyers who generally view themselves and their work as either fungible, or else somehow separate from the companies that employ them. Julio soon crafted a bespoke and radical view of the legal function at GitHub. Under his leadership, GitHub lawyers treat the law as code, and approach legal issues as bugs in that code. Through that lens, something seemingly specifically and “obviously legal” and thus “Legal’s problem” becomes anything but. Take a patent lawsuit, for instance. The suit is predicated on technology that lawyers did not create and usually do not understand, and which requires an engineer and other employees within a company to explain and defend. Borrowing from his earlier philosophical and theoretical work, Julio saw how even the language around lawyers and legal work reinforced the idea that they were somehow separate and apart from the company’s within which they sit. One “escalates” an issue to Legal, for instance, rather than move laterally, or collaboratively to one’s peers. By using the GitHub tool and becoming a part of the software development process in much the same way as their technical colleagues, Julio created a proactive legal team that is able to learn and discuss potential legal issues before they become “legal problems.” Continued on next page…

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CMCP Diversity Matters eNewsletter – Summer 2016 Issue

GitHub's legal employees provide opinions on a real-time basis in a non-invasive, organic way, as part of the product’s development process. This organic approach helps to blunt a company’s legal department from being perceived as “blockers,” and provides greater job satisfaction to lawyers and “clients” alike. GitHub has grown to approximately 600 global employees today, with a legal team of 10. Julio’s views on diversity in the legal profession are similarly innovative. For a profession that not only prides but believes itself to have a sort of monopoly on objective, analytical thinking, he finds it curious that seemingly such little thinking and attention is given to the practice of law itself. Although typical law firm diversity initiatives focus on recruiting attorneys from diverse backgrounds, Julio feels they will continue to have only limited and superficial success without a deeper, sustained examination of the environments within which these attorneys are expected to work, thrive and develop their careers. He notes that the legal industry has generally ignored scholarship involving the intersection of race and law, and that as a result, deeply problematic and systemic elements of the profession that ultimately lead to anxiety and attrition among attorneys from diverse backgrounds are treated as neutral, natural, and obvious. This might be reflected in hierarchical firm structures, communication styles, language, and even definitions of success. When making hiring

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decisions, Julio not only focuses on work quality and the recruit's socalled legal acumen, but also on their ability to collaborate, empathize, communicate, and to think creatively not only about their work, but on the very nature of their vocation. Julio has bold ideas about how to improve the role of attorneys. He believes that the profession should borrow from open source models in improving the transparency and organizational context of corporate legal functions, much like what he has implemented at GitHub. It should be possible, for instance, to “open source” corporate policies, to “crowdsource” and make them visible to a larger group of individuals—within or outside the company itself—in order to “debug” and catch legal issues before a lawsuit or a complaint arises. Not only would risk be mitigated, real cost and time efficiencies would be gained by creating industry-wide “sharing cultures” where startups, emerging and mature companies alike would be able to borrow one another’s basic work rather than constantly reinventing the wheel and duplicating work that has already been done thousands of times over. An open source legal function might also serve to increase diversity in the legal field. Through an open source model, such a GitHub, site developers may develop an online portfolio of work that makes them employable. In this regard, GitHub is a social network. Developers receive recognition if their code is merged into a large open source project.

They develop followers, as on Twitter or Instagram. Developers often find work because of their profile on GitHub, and it has become the de facto tool for technical recruiters to find software developers. Julio believes that this paradigm can be applied to the legal community in ways that would potentially increase access to legal services, increase competition, break the dependency on mega-firms, and drive down the overall cost of legal services for clients and law firms alike. Moreover, a more diverse community of attorneys will have an opportunity to propose tweaks to the language of “open source” legal and corporate projects or policies, which would help them make a name for themselves in the legal community. This may result in employers finding legal talent outside of the typical avenues such as top law schools and large firms, which may not pull from very diverse pools of attorneys. Although many view the practice of law as neutral and objective, in Julio's opinion, it is not. According to Julio, legal work—its nature, style, and its practice—is the product of what is ultimately an incredibly narrow perspective that, through the profession’s own informal application of stare decisis, has been handed down to contemporary practitioners since the Romans or Anglo Saxons. Litigators assume that they should be arguing and yelling at one another, making “colorable” or “tenable” arguments that they otherwise would recognize as specious or just shy of bad faith, for no reason other than


Summer 2016 Newsletter

that it seems a natural and obvious way of practicing so-called zealous advocacy. Julio believes that lawyers should be thinking about a legal practice that is more empathetic and collaborative, which develops a true sense of community, vocation, profession, and professionalism. Julio notes that in almost no other field is there so clearly recognized a need for reform among both its practitioners and their clients and yet seemingly no way of engaging or even thinking about what such reform might look like. Julio argues that there is an almost perfect overlap between work that lawyers hate doing, clients hate paying for, and that technology or community dynamics might actually solve. And yet he remains positive and believes that a more diverse group of attorneys—particularly among so-called “millennials"—that will and should be encouraged to bring their personal, cultural, and societal values and experiences into the profession so as to move the legal profession into the twenty-first century. Julio humbly describes his career trajectory as somewhat haphazard and one that lacked intentionality. He never set out to be a tech lawyer or to try to invent alternate paradigms of legal or corporate practice. In tech and as an attorney, Julio has benefitted from a strong work ethic and a fundamental respect for work that he does believe has some origin in not only the Latin culture, but in the immigrant experience more generally. He was taught to find pride and a sense of purpose in vocation in whatever one does, installing ceiling fans, unloading freight on the

graveyard shift, or writing briefs for a marquee client. His advice for law students: law school is a poor indicator of what the actual practice of law is going to be. Law students should stick with law school regardless of whether they enjoy it. Since the practice of law may well go in any number of different directions, students can craft a career that suits their strengths and passion and do well to remember what those strengths and passions are. To attorneys of diverse backgrounds: Julio encourages finding and trusting your voice and passion. Julio believes that he has been served well, ironically, by his lack of context for the industries with which he has worked. When in doubt, Julio pulled from his own sense of morals, ethics, and values, and trusted that doing so would lead him to the right answers. Julio also believes that networking and developing personal connections is important for junior lawyers and law students.

On the personal front, Julio is married to a classmate from Columbia Law School who is a partner at a boutique litigation firm in San Francisco. Together, they have three kids under the age of seven. Julio's hobbies include time with family, lots of yoga, discovering new music, and, as always, plenty of reading and writing. Raffi Zerounian practices at Hanson Bridgett LLP in San Francisco. Raffi specializes in intellectual property and commercial litigation, with an emphasis on trademark and copyright litigation and prosecution. For more info on Raffi, click here.

Like many before him, former Executive Director Marci Rubin introduced Julio to CMCP. Although Julio was not involved with CMCP at the time, he received an email about helping to find Marci’s replacement. Julio volunteered to help Marci with the effort, and she roped him into the organization. Shortly thereafter, GitHub became a CMCP member, and Julio spoke at the CMCP 26th Annual Business Conference in Los Angeles last year.

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CMCP Diversity Matters eNewsletter – Summer 2016 Issue

MEET CMCP BOARD MEMBERS MEETYOUR YOURNEW CMCP BOARD MEMBERS

ATTORNEY SPOTLIGHT ON

AUDRA IBARRA – Counsel at California Appellate Law Group By: Tanya Eliason, Trademark and Business Law Counsel, Eliason Legal Solutions

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hat is a brilliant young woman with acting dreams from a family with extremely high academic expectations to do when she grows up? Become a rock star trial lawyer turned superstar appellate attorney, of course! At least, that’s what Audra Ibarra did. Audra is a Midwestern girl who grew up in Minneapolis, Minnesota as the daughter of a professor at the University of Minnesota. She says she inherited both her strong family values and her passion for public service from her parents. Lucky for all of us in California, she attended University of California, Berkeley (“Cal”). Cal is a family school of sorts, her father, mother and siblings all went there. For law school, Audra set off for the East Coast, receiving her J.D. from New York University. Although she loved living in New York, she chose to return and settle in the Bay Area. Unsurprisingly, with an academic for a father, education was very important in Audra’s family. She irreverently chalks up some of that emphasis on education to being Asian – She is a proud FilipinoAmerican. It was assumed that she would not just obtain a bachelor’s degree, but also earn a graduate

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degree. Audra, however, had other thoughts; she desperately wanted to be an actor. Ultimately, she realized that law, particularly, being a trial lawyer, could be the perfect compromise between her acting dreams and her family’s insistence on a more academic graduate education. She enjoys the theatrics and public speaking aspects of trial work. Today, she remains the only attorney in the family – her brother is an M.D. and her sister has four non-law related master’s degrees. Audra spent well over a decade as a prosecutor, including more than seven years as an Assistant U.S. Attorney (“AUSA”) in the Criminal Division of the U.S. Attorney’s Offices in San Francisco and San Diego. She absolutely loved being a lawyer in public service, especially an AUSA. She says it was an honor representing the United States and everyone in it. Despite that, Audra chose to not only go solo in late 2010, but to focus on appellate practice as well. She ultimately joined forces with the boutique firm California Appellate Law Group. Her appellate practice involves oral argument, brief writing, and lots of client counseling, including risk analysis regarding the likelihood of success on appeal. Admittedly, she misses the excitement of being a trial lawyer. Her


Summer 2016 Newsletter

decision to have a small private appellate practice was informed by the importance of her family. For her being a trial lawyer would be too rigid to allow her to spend enough time with her children. In her appellate practice, she has the required flexibility to juggle kids while continuing to develop her career and engage with her peers. Of course, flexibility doesn’t mean Audra works less, it only means she can work at odd hours to accommodate her children’s schedules. Audra’s family is her one and only hobby. In fact, the only structured non-professional extracurricular activity she participates in is taekwondo with the kids. She pushes herself tremendously hard to not miss family or professional opportunities. A deep belief in public service drives Audra to remain very active in several community service and professional organizations, despite her career and family demands. Somehow she manages to not only participate in, but also join boards and committees of various organizations, including three-year stints on both the State Bar’s Judicial Nominees Evaluation Commission and its standing Committee on Appellate Courts, as well as longer tenures on the boards of both California Women Lawyers (“CWL”) and CMCP among others. Additionally, she’s written numerous articles, particularly for San Francisco Attorney magazine, the Daily Journal, The Recorder and State Bar publications. Throughout her career, Audra has received many awards and recognition, but she remains most proud of the Director’s Award from the Executive Office of United States Attorneys, a national award which she received many years ago for successfully prosecuting a high profile international child molester. It is important to her to always be working to make the world a better place. It is that sense of purpose and meaning that compelled her to give her all during her tenure as an AUSA. Audra admits missing that feeling of being part of something bigger in her work life. She strives to retain that sense of purpose through her community service and by taking on important public policy cases in the United States Supreme Court, California Supreme Court and Ninth Circuit in her appellate practice and as chair of the CWL Amicus Committee.

Audra advises newer attorneys to get actively involved in organizations and community groups as soon as they can; she wishes she had done so earlier in her career. However, in the beginning she worked non-stop only participating in community activities through her job. For example, at the U.S. Attorney’s Office in San Francisco her extracurricular community service focused on leadership, anti-gang, anti-violence and anti-drug programs and camps for at-risk kids. She awarded and administered grants to low income communities and managed leadership programs and camps involving children from those communities. Now she understands that participating in extracurricular activities outside the office is not only good for socializing and networking, but also engaging with others can lead to unexpected breakthroughs, as one never knows when inspiration will strike. It’s a great way to learn about other sectors of the legal profession and improve the community at large. Audra was encouraged to get involved with both CMCP and CWL by her friend, mentor, and former colleague, Kevin Fong, around the time she launched her appellate practice in late 2010. Kevin knew that she wanted to help women and minorities reach their full potential within the profession. As a former CMCP board member and current CMCP Diversity Leader Hall of Fame member, Kevin assured her that her goals dovetailed perfectly with CMCP’s mission. Audra loves the passion shared by everyone involved with CMCP, from members to staff to leadership. She has a distinct sense that everyone really believes in the organization’s goal of cultivating diversity and giving underrepresented groups the chance to have their dream careers within the law. In discussing what she hopes to accomplish as a CMCP board member, Audra invoked a sentiment often espoused by former Executive Director, Marci Rubin: to make it so there is no longer a need for CMCP because diversity and inclusion have become the norm. Audra is inspired by her fellow board members who (like her) spread the message to all the Continued on next page…

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CMCP Diversity Matters eNewsletter – Summer 2016 Issue

organizations they are a part of. She is particularly inspired by Craig Holden who served as the State Bar president last year and encouraged her to become a member of the California Judicial Council. She was recently appointed to the Council and her three-year term begins in September. She says she is grateful and honored to have the opportunity to serve the bench, bar and public in that way. We all wish her a successful and productive term.

Tanya Eliason is a Trademark and Business Law Counsel to Entrepreneurs and Small Businesses at Eliason Legal Solutions in Oakland, CA. She can be reached at 510-761-5219 or tanya@eliasonlegalsolutions.com. For more info about Tanya, click here.

The CMCP Board Speaks: How Connections Really Work On June 30, 2016, CMCP presented an interactive program on networking and relationships, sponsored by Norton Rose Fulbright US LLP. Attendees ranging from new lawyers to veteran law firm partners participated in small groups led by CMCP Board members in which they discussed networking tips and best practices, as well as developing and maintaining relationships. One participant commented, “We made new connections, learned a few things and had a good time. I particularly liked the summaries of the table meetings. It was a good experience for the junior lawyers in that group. It very much showed the value that CMCP provides each time that it creates an opportunity for new attorneys to speak to a potential client or to a group. The more we can provide feedback, the better.” Following the formal program, there was plenty of time for networking and putting into practice some new tips gained from the program. In the words of a participant, “Kudos to CMCP for a fresh, interactive approach.” Look for more useful and exciting programs from CMCP as we go forward!

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Summer 2016 Newsletter

Diversity Calendar August 4, 2016

August 9, 2016

August 11, 2016

BALIF/ABA Joint Happy Hour

West LA Summer Mixer

BALIF/ABA Jillian's at the Metreon - SF

South Asian Bar Association of Southern California

In-House Counsel Network "Whiskey & Bites"

The Phoenix - Los Angeles

Villa Blanca - Beverly Hills

August 11, 2016

August 18, 2016

August 20, 2016

Annual End of Summer Mixer

ForAllCalifornians Diversity & Wine

Joint BAR BQ with AABA/FBANC/KABANC

The Hispanic Bar Association of Orange County

California Bar Foundation

AABA/FBANC/KABANC

Klinedinst PC - San Diego

Crissy Field (Tables near Warming Hut) - SF

September 8, 2016

September 10, 2016

September 15, 2016

CLE Program: “Bias and the Bench”

CABL Northern California Meet and Greet Reception

Justice & Diversity Center's Annual Gala

JAMS - Orange

The California Association of Black Lawyers

Bently Reserve Banking Hall - SF

September 16, 2016

September 22, 2016

September 29, 2016

BWL 41st Annual Installation and Awards Dinner

41st OCWLA Gala

42nd Annual Dinner and Silent Auction

Orange County Women Lawyers Association

California Women Lawyers

6:00pm - 8:00pm

6:00pm - 9:00pm

Hector's On Broadway - Santa Ana

5:30pm - 7:30pm

Orange County Asian American Bar Association

TBD

Black Women Lawyers Association of Los Angeles

5:30pm - 8:00pm

5:00pm - 7:00pm

2:00pm - 4:00pm

6:30pm - 8:30pm

California Women Lawyers

10:00am - 4:00pm

6:00pm - 9:00pm BASF

Provided after RSVP - Hayward

5:00pm - 9:00pm

5:30pm - 9:00pm

The Resort At Pelican Hill - Newport Coast

Marriott Marquis and San Diego Marina San Diego

September 30, 2016

October 7, 2016

October 14, 2016

CABL Annual Reception

Annual Dinner & Gala

41st Anniversary Celebration

The California Association of Black Lawyers

San Diego La Raza Lawyers Association

Asian Pacific Islander Legal Outreach

The US Grant Hotel - San Diego

San Francisco Design Center - SF

Loews Hollywood Hotel - Los Angeles

6:30pm - 8:30pm

Marriott Marquis and San Diego Marina San Diego

5:00pm - 7:00pm

6:00pm - 9:00pm

October 14-15, 2016

November 1, 2016

10th Annual Conference – VABNAC ANNUAL SCHOLARSHIP DINNER

Annual Dia de Los Muertos Mixer

Vietnamese American Bar Association of Northern California

Hispanic Bar Association of Orange County

Friday - Saturday

Dynasty Restaurant- Grand Century Mall - San Jose

5:30pm - 7:30pm

TBD

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CMCP Diversity Matters eNewsletter – Summer 2016 Issue

In Trying Times, CMCP Event Highlights Formation and Role of Bias By: Michael Chung, Of Counsel, Willenken Wilson Loh & Delgado LLP

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n June 14, 2016, CMCP, in conjunction with the Western Justice Center and Seyfarth Shaw, presented a play entitled Horizon Line, which explored how bias and prejudice are formed and can lead people onto a path of destructive behavior. The play was especially timely given recent events and the highly polarized times we currently live in. Horizon Line tells the story of Danny Curtis, a white teenager who is lured into engaging in increasingly racist and hostile behavior by his older brother and how this behavior negatively affects his family, friends and community. Since all the characters were played by one actor, members of the audience were forced to confront the actions and behaviors of the different characters without focusing on their race or gender. The play was also interactive as a discussion preceded the play in which members of the audience were asked about their earliest memories of bias and prejudice. The Western Justice Center is a non-profit organization that is dedicated to building a more civil, peaceful society where differences are valued. It fulfills its mission by designing and implementing creative programs that change the way people think about and respond to differences and conflict. The event was hosted and sponsored by Seyfarth Shaw LLP in their Los Angeles office. Michael Chung, Of Counsel, Willenken Wilson Loh & Delgado LLP. He can be reached at michaelchung@willenken.com or 213-694-3697.

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Lateral Hiring: How-to-Guide for Successful Transition, Integration and Growth By: Gagandeep Kaur, Associate, Reed Smith LLP

On July 13, 2016, Holland & Knight LLP and CMCP sponsored and presented a panel in San Francisco on lateral hiring and law firm diversity. The message throughout the evening was – take control of, manage and invest in your own career. The “How-to-Guide for Successful Transition, Integration and Growth” panelists included three minority attorneys at different stages of their careers and a legal recruiting professional, all who had experiences with lateral hiring: Stacey H. Wang, a Partner at Holland & Knight LLP; Kyong M. Kim, an Associate at Holland & Knight LLP; Carmen Kelley, a Lateral Recruiting Manager at Morrison & Foerster LLP; and Nioura Foad Ghazni, an Associate at Osborn McDerby LLP. The Panel was moderated by Robert White, the Executive Director of CMCP.


Summer 2016 Newsletter

The panelists shared their perspectives on particular issues that impact attorneys considering a lateral move, as discussed in detail below. Panelists provided practical advice on: • • • •

Whether and when attorneys should think about a lateral move. How to position yourself to be an attractive candidate for a lateral move. How to build your brand and network. What actions law firms need to take to successfully integrate laterals.

The panelists noted that in Big Law third-year attorneys are most attractive candidates for a lateral hire. However, these firms have a “sweet range” of third to sixth year attorneys because they can leverage attorneys’ prior training but still “shake” the attorney into what they want him or her to be. Nioura provided insight into small firms' lateral hiring – small law firms look for diverse experiences and skill sets rather than the number of years of practice.

In order to make a lateral move, the attorney needs to be intentional and proactive. Kyong recommended looking at job postings early on, conducting research on the legal markets and firms of interest, seeking informational interviews to understand the types of experiences or skill sets the law firms are looking for and then using your current job, continuing legal education classes and other opportunities to gain those experiences and skills. All panelists encouraged attorneys considering a lateral move to be able to tell their story during the interview – - to explain their prior experiences and lateral moves, their decision to change practice areas, their interest in the hiring firm, and their objectives behind the lateral move. All panelists stressed the importance of networking, building relationships and leadership experiences within the attorney's current firm and in the community. Hiring law firms look at these qualities to determine the lateral’s value add to and potential to succeed in the hiring firm. Lateral applicants who have sponsors making phone calls on their behalf

are more likely to get an interview and a job offer. Lateral applicants who have built and maintained a relationship with recruiters or attorneys at the hiring firm are more likely to be more successful during the interview process. According to the panelists, law firms need to have a rigorous integration process for their laterals and remember that integration takes anywhere from 12 to 18 months. According to Carmen, integration means helping the lateral connect with attorneys and other influential individuals within and outside the firm, become acquainted with resources available in the firm, and join affinity and other support groups in the firm. Integration is more than the administrative aspect of hiring a lateral or the on-boarding orientation of an attorney. Panelists also encouraged lateral hires to take responsibility for their integration into the hiring firm in order to ensure a successful transition into the new job and law firm.

Gagandeep Kaur is an associate in Reed Smith’s San Francisco office. She works on a variety of transactional and litigation matters involving real estate, energy and natural resources, healthcare, and financial services. For more info on Gagan, click here.

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CMCP Diversity Matters eNewsletter – Summer 2016 Issue

Business Development Series:

Be yourself. Everyone else is taken. By: Martha Sullivan, Principal, Thornton Marketing

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n case you’ve ever been worried about being different from everyone else in your law firm or company, I’ll encourage you to follow Oscar Wilde’s advice. You really can’t be anyone but yourself, and isn’t this the point of having diversity and inclusion initiatives? Isn’t this also the point about business development? Clients hire you because they trust you, and they know when you’re not being true to yourself. I was talking to a former female client recently who said she experienced too much stress during her first few years of practice because she was trying to be like the men in her firm. She said, “Once I stopped trying to be someone else, my clients told me how much they liked working with me, compared to other lawyers.” Several years ago, I wrote a blawg about “The Perfect Lawyer.” I had a coaching client who was reluctant to engage in business development until she became that person. When I asked about her definition of perfection, she said it was “a tall white guy in a suit.” Given that she was a height-challenged Hispanic woman, the chances were pretty slim that she was going to make that transformation. More importantly, she had so much more to offer just by being herself. She attracted clients who appreciated her life experiences and her perspective. Clients have never asked her to become someone else. At the CMCP "Lateral Hires" event on July 13, many of the attendees were associates who are learning how to navigate the politics of their firms. During the panel discussion, some of them talked about their employment interviews and how they evaluated a firm’s stated commitment to diversity versus the reality they observed. It should not be a surprise that they chose firms that had diverse partners who shared their own success stories, and assured the associates that they would have a path to partnership.

How Being Yourself Contributes to Your Firm Maybe you think it would be risky to express yourself fully. Unless you are in a supportive environment, it may seem safer to keep hidden any aspects of your personality or experience that seem different from the perceived cultural norm. But it is exactly those differences that contribute to a more effective workplace.

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We know that all law firms have intelligent lawyers, but we may not fully recognize the contribution that diverse lawyers can make. In the book, “The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies,” author Scott Page says: “Diverse thinkers (defined as those with different educational backgrounds, experience levels, and /or racial, gender, and ethnic identities) are markedly better at solving problems than teams selected for their intellectual ability. The diverse team’s collective intelligence, he found, is generally significantly greater than a team whose individual members are uniformly “smart”. There is no question that the women and diverse lawyers I’ve met and worked with are incredibly smart. When they are truly included in teams who can listen to them, they bring fresh perspectives and more creative solutions. From a business development perspective, they are connected to different, and more diverse, networks that allow them to attract clients that a firm wouldn’t have access to otherwise. I haven’t seen more recent figures, but a study of the Am Law 200 firms in 2009 showed that: “A firm ranked in the top quarter of the diversity rankings will generate more than $100,000 of additional profit per partner than a peer firm of the same size in the same city, with the same hours and leverage but a diversity ranking in the bottom quarter of firms.” Imagine how much difference it would make to have significantly more diversity in that top quarter of the rankings.

Actions to Take As you consider your individual business development efforts, I’ll encourage you to express yourself in the following ways: • • • •

Take advantage of being a member of CMCP. Every event offers helpful career advice, as well as introductions to amazing lawyers. Regularly update your bio and your LinkedIn profile to include your personal interests and your accomplishments. Practice talking about your interests at networking events. Join an association that is meaningful to you, where you can connect with people who share your interests.

Martha Sullivan is a business development coach for attorneys and other professional service providers. She is certified as a professional coach and has more than 25 years of experience in marketing and business development. For more info about Martha, click here.

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CMCP Diversity Matters

CMCP Diversity Matters Summer 2016 Newsletter

MINORITY

Summer 2016

© Copyright 2016 California Minority Counsel Program 465 California Street, Suite 635 San Francisco, CA 94104 Tel: 415-782-8990 Email: newsletter@cmcp.org Web: http://www.cmcp.org 16

CMCP Diversity Matters - Summer 2016  

California Minority Counsel Program Diversity Matters eNewsletter Summer 2016 Issue

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