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CMCP Diversity Matters Spring 2017 Newsletter

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Spring 2017


Spring 2017 Newsletter

2017 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

Gagandeep B. Kaur

Sweta Patel

Kelly Perigoe

David A. Shimkin

Julia Y. Trankiem

Partner Klein, Hockel, Iezza & Patel P.C.

Member Cozen O’Connor

Jonathan M. Turner Partner Mitchell Silberberg & Knupp LLP

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Karen A. Henry

Associate Reed Smith LLP

Associate Caldwell Leslie & Proctor, PC

Partner Reed Smith LLP

Raffi Zerounian

Partner Hanson Bridgett LLP


CMCP Diversity Matters Table of Contents

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Letter From The Executive Director: It’s Not Just Business

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Attorney Spotlight Lindbergh Porter

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Fate Of Enjoined White Collar Overtime Rule Still Undecided

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An Overview of Ban the Box Laws in California

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What’s in a Name? A Battle for a Transgender Immigrant’s Rights

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The LCLD Fellows Program: Building Relationships and Leadership Skills

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Demystifying Business Development, for Associates and Beyond

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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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Spring 2017 Newsletter

LETTER FROM THE EXECUTIVE DIRECTOR: It’s Not Just Business Dear CMCP Community, Greetings! It’s spring, the sun is out, the rain has backed off, and summer vacations are on the horizon. For CMCP it’s a period for growth and high energy: planning for the 2017 Annual Business Conference is already underway, we are thrilled to offer quality events and programs in each of our regions, Los Angeles, San Francisco, Orange County, San Diego and Silicon Valley, with more on the drawing board. Robert White CMCP Executive Director

Get out from behind your desk and come to a CMCP program! With the support of member firms that have offered to host programs we have a rich offering in store including “Get Your Swagger On” in Los Angeles (presentation and business development skills), “Getting to Helpful” in Orange County (working with in-house counsel) and “Mind the Gap” in San Francisco (wage disparities under California employment law). Stay tuned for more programs in the works including one on high-stakes presentations in San Francisco given by an acting coach, a networking mixer in San Diego, and it would be great to see you as we greet the new CMCP Ambassadors on April 18th in Palo Alto. Hopefully you’ve seen the video generously produced for CMCP pro bono by a team at Allen Matkins, available on CMCP’s website. They did a great job interviewing attorneys across CMCP’s membership, and what comes across more than anything is how consistent the interviewees were in describing the sense of community they felt. In these fractious times that sense of community and shared values in the CMCP community is even more important. CMCP’s strength and longevity don’t come just from its impressive list of corporate and law firm members. It comes from the authenticity of the personal relationships that have formed under its mantle of advancing diversity in the legal profession. I talked with a friend, also a Golden State Warriors fan, about some news about the team: they had traded a popular player, not a star but someone who was liked in the locker room, and popular with fans. The players

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CMCP Diversity Matters interviewed were philosophical. Trades are part of business as usual for a professional athlete. The coach expressed regret about having to make tough decisions. All were muted, eyes downcast. As we talked about what it must be like for the team, my friend captured it succinctly – “the league is about business, the team is about family.” As CMCP members go about our business of servicing our internal and external clients and developing practices and business relationships with each other, we’ve been remarkably successful in maintaining a culture of collaboration and shared values on the necessity of diversity and equal opportunity. Thanks and congratulations to all of you who make CMCP special. In the coming months you will see and hear more about CMCP’s evolving role in connecting and helping legal departments and law firms work together and independently on diversifying the legal field. Some of that work will emphasize the business advantages of involvement with CMCP and the business case for diversity as we develop more metrics of diversity at work. But to paraphrase the words of Mike Moye, General Counsel of Alameda Health Systems, as we prepared for a GC panel at the 2016 Annual Business Conference – “let’s not forget about supporting diversity simply because it’s the right thing to do regardless of the business case.” For many of the professionals in our community, including those who wanted a new direction in political leadership, these are challenging times. Speaking for myself, the last few months have been hard, mentally and emotionally, as the communities I care about and in some cases which I’ve come from are confronted with changes and threatened changes in law and policy affecting immigration, education, civil rights, privacy, healthcare and support of legal services, to name just some areas, that will have long-term and in my opinion destructive impact. I know others feel the same because I’ve spoken with attorneys who say so – and that they are not comfortable talking at work about how they are impacted personally. And so they and we are silent, which is its own burden. I salute and thank those firms in the CMCP community that have supported the work of the ACLU (notably Keker Van Nest), provided research for amicus briefs to protect constitutional rights, contributed to legal services nonprofits, and encouraged their attorneys to do increased amounts of pro bono work to help populations at risk. Kudos to the many individuals, such as the panel for our program on the impact of the new administration in February (Aileen Casanave at Jiff Inc., Paul Henderson at the SF Mayor’s Office, Warrington Parker at Orrick, and Wilson White at Google), who have found ways to talk about both personal and professional connection to the issues and practical, Continued on next page…

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Spring 2017 Newsletter

constructive ways to effect change and protect communities. Kudos to Miriam Kim at Munger Tolles & Olson and President of Asian American Bar Association of the Greater Bay Area for bringing Khizr Khan and wonderful speakers at the AABA Annual Dinner to “Stand Up for Justice,” and to the many other diversity and community leaders who have been doing great work. I am proud to have all of them in the CMCP family. We are faced with a real opportunity right now to find ways to continue to effectively represent our internal and external clients without compromising our commitment to creating a more just society. The call for making the legal profession more inclusive and fair has become even more urgent. As counsel, we are advisors that bring a view beyond profitability; we can point out human consequences, positioning the client to proceed both with minimal or well-understood risk of litigation and in alignment with principles of corporate social responsibility. It’s been well documented that diverse teams are more creative problemsolvers than homogeneous teams and our efforts to build diverse legal teams help business. Let’s go from being the least diverse profession in the country to one that serves as a role model and a tool that makes businesses better. Finally, counsel have more influence when they speak with the moral authority that comes from acting fairly and with integrity in their own affairs. There is a huge opportunity in the business and legal communities right now for a different kind of leadership, a socially conscious and moral leadership that transcends the business case for diversity and embraces responsibility for our obligations as community members, professionals, and as human beings, to work for a more just society. That leadership needs to take place at all levels, not just at the helms of firms and legal departments; your active involvement in community service, pro bono and diversity efforts, matters. Let us as a community work across our political differences and keep our eyes on the prize: a profession we can be proud of where each individual has equal opportunity and access for growth. I look forward to our work together, Robert

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CMCP Diversity Matters

ATTORNEY SPOTLIGHT ON

LINDBERGH PORTER, Chairperson of the Board, Littler Mendelson P.C. By: Gagandeep B. Kaur, Associate, Reed Smith LLP

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indbergh Porter began his career at Littler Mendelson, a premier employment and labor law firm, as a summer associate. At that time, he did not plan to stay at Littler for more than three decades and become the Chairperson of Littler’s Board of Directors. However, one tether to the community after another kept Lindbergh at Littler and in California. Lindbergh grew up in rural Holmes County, Mississippi, a small farming community of 3000 inhabitants. He attended segregated K-12 schools as various efforts to desegregate schools only started to reach rural Mississippi when Lindbergh was getting ready to graduate from high school and attend the University of Illinois Champaign-Urbana. In this environment, Lindbergh recalls his parents were undoubtedly his role models. He viewed his father as someone who “could do anything, who could fix anything, who could make anything right.” His mother was “a real independent thinker, planned things and thought three, four steps ahead.” Together his parents provided him and his sibling the security and safe environment they needed. During his first or second year at the University of Illinois, Lindbergh decided to go to law school.

He noted “this was 1968, close to the height of the student movement protests regarding Vietnam, obviously the civil rights movement, the assassination of Dr. King and Bobby Kennedy. Those were the things that were searing to someone who was 17 or 18 years old.” These events shifted Lindbergh’s attention from math courses and becoming an engineer to social science, political science, history and economic courses and of course, law school. Even when Lindbergh was pursuing his undergraduate degree, he stayed involved and in touch with home – Mississippi. He continued to go home during the breaks and participated in a program promoting adult education. After graduating from the University of Illinois, as planned, Lindbergh returned to Mississippi to be close to his family and attend Ole Miss Law School. However, at the last Continued on next page…

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minute Lindbergh decided to move to California, where he attended business school and got married before attending the University of San Francisco, School of Law. Lindbergh approached law school with a level of practicality – it was a means to an end. Therefore, he did not focus on the negatives of being in law school. He recalls “whatever occurred in law school, however tough it got or seemed to have been, I knew it was necessary for me to get where I wanted to go. I didn’t have any doubt that I’d become a lawyer and so being in law school was just part of that.” Nevertheless, Lindbergh’s innate interest in diversity and inclusion issues resulted in Lindbergh becoming involved in battles with the law school administration to do more and faster to admit minority and women students, and hire diverse faculty. Lindbergh’s involvement to push the needle on diversity and inclusion continued during his tenure at Littler through his involvement in Littler’s diversity and inclusion program and hiring committee. Between his second and third year of law school, Lindbergh clerked at Littler and joined the firm as a first-year associate after he graduated from law school. He chose Littler because it offered immediate opportunities to get into court, try cases, prepare witnesses and learn pre-trial discovery. When asked to describe his interest in Labor and Employment law, Lindbergh notes over time, “the cases, the people and the dynamics of human relations capture you” and keep you engaged in the practice. Nevertheless, the practice of law came with its challenges for Lindbergh including dealing with clients, opposing counsel, and judges who were not accustomed to working with a lawyer of color and questioned his competency. Lindbergh recalls “you would go into a room and the client is there and the judge assumes that the client’s the lawyer and that you’re the client or you’re some other relationship. Or going to a deposition and the opposing counsel assumed that I was a paralegal. And I didn’t say anything. I just said, ok, fine. Let’s swear the witness

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in. I’ll just ask questions until the real lawyer comes.” In addition to mastering the lawyering skills, Lindbergh noted that as a lawyer of color you had to be thoughtful and strategic about addressing some of the stereotypes and presumptions that were prevalent about minority and women attorneys, and take charge of your own career and success. Aside from a six to seven year break to work at Allen Matkins, Lindbergh spent his entire career at Littler. Lindbergh says there are a number of reasons that kept him at Littler. He respects his colleagues and their work and overtime, he became friends with his colleagues and got to know their families and children. Littler has provided him an opportunity to design his own practice and the support he needed for his community engagements. Lindbergh notes “I was not expecting to be elected Chair. But I was prepared for it and so I stepped into the role and I become the Chair.” Lindbergh looks forward to using this opportunity to expand Littler’s presence on the international front and continue his commitment to advancing lawyers of color and women in the legal industry. As the Chair, he expects to have more direct involvement in Littler’s diversity and inclusion program – to look at statistics, see what is being accomplished and make suggestions on where Littler can make improvements. He would like to expand and export Littler’s multiyear Career Advocacy Program (CAP) model to other firms. For the past five or six years, CAP has been pairing advocates, senior attorneys who are wellregarded in their practice area and are known for their business acumen with protégées, attorneys who are have been at Littler for some time and exhibited promising potential to become shareholders. In addition, each protégé has a champion, another attorney at a law firm or a general counsel from one of Littler’s clients. In addition to the annual meeting of protégées, champions and advocates, each champion makes time to get to know his or her protégé and focus on a number of discussion topics such as practice development, alternative careers,


CMCP Diversity Matters eNewsletter – Spring 2017 Issue

CMCP Diversity Matters

career advocacy and business development. While CAP is time-consuming and requires resources, Lindbergh states it very important for the firm and the profession. To that end, Littler makes an effort to recognize those who contribute to CAP. When it comes to advancing diversity and inclusion efforts, Lindbergh notes that it takes a “menu of things” on the part of a law firm. It includes diversity and inclusion programs; the leadership’s involvement in the hiring committee and diversity programs; accountability for recruiting; hiring and retaining diverse talent; funding for programs; involvement by everyone in diversity and women's leadership programs; and recognition of those who are contributing to the firm’s efforts. Lindbergh notes that CMCP is a great resource for law firms and institutions interested in advancing diversity. It is a one-stop shop for learning about programs, initiatives, and connecting with minority, women and LGBQT attorneys. For clients interested in promoting diversity and inclusion, Lindbergh’s advice is to have minority and women attorneys interact with law firms, hire and evaluate law firms based on the firm’s efforts to promote diversity, require regular reporting on attorneys who are working on the client’s matters, systematically follow-up with the attorneys working on the matters, and ultimately vote with your feet. His advice to young attorneys is to do good work and seize whatever opportunity that comes your way. He is firm believer that if you decide what you want to do and go for it, regardless of what somebody says, then people will help you reach your goal.

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

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Spring 2017 Newsletter

Fate Of Enjoined White Collar Overtime Rule Still Undecided: Unlikely To Defend Obama Administration Rule, The Trump Administration Stalls By: Jonathan M. Turner and Stephen A. Rossi, Attorneys, Mitchell Silberberg & Knupp, LLP

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nder the Fair Labor Standards Act (“FLSA”), minimum wage and overtime requirements do not apply to any employee covered by the “white collar” exemption. To be considered a white collar worker under that exemption, the FLSA requires the employee to be employed in a bona fide executive, administrative, or professional capacity. Although the FLSA does not set a minimum white collar salary level, the Department of Labor (“DOL”) previously issued regulations requiring, among other things, that an employee meet a minimum salary threshold to qualify for the exemption. In a well-publicized move designed to boost employee earnings, the Obama administration promulgated a new regulation, which would have increased the minimum salary threshold from $23,660 to $47,892, effective December 1, 2016. The new regulation also would have increased the minimum annual salary for “highly compensated employees,” from $100,000 to $134,000, and would have increased both salary thresholds every 3 years beginning in January 2020.

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The new rule was expected to have a significant impact on businesses across the county. Approximately 4 million workers would have become eligible for overtime overnight. As such, many companies increased the salaries paid to white collar employees prior to the December 1st effective date . For example, Walmart increased manager salaries to $48,500 across the country. In a case that was closely followed by employers across the nation, several states joined together and filed suit to block the rule. Just days before the effective date of the new rule, on November 22, 2016, the U.S. District Court for the Eastern District of Texas preliminarily enjoined the new rule, reasoning that the FLSA clearly and unambiguously exempts workers employed in an executive, administrative, or professional capacity regardless of their salary. In other words, Congress defined the white collar exemption with regard to the duties performed by the workers, not their salary level. Accordingly, the Court held that the FLSA did not empower the DOL to create the new salary requirement. The Court


CMCP Diversity Matters

issued a preliminary nationwide injunction against the rule. Following the Court’s decision, the Obama administration’s DOL appealed to the Fifth Circuit Court of Appeal. The DOL requested and received an expedited briefing schedule, but it ran out of time to get a ruling before Donald Trump’s inauguration. The DOL’s reply brief was still outstanding at the time of Trump’s inauguration. Since taking power, the Trump administration has stalled while it considers its options. First, on inauguration day, the President issued a memorandum ordering the heads of all agencies to delay the effective date of regulations that had not yet taken effect for sixty days. Five days later, the DOL requested and later received an extension to file its reply brief. It later received another extension, so its brief is currently due on May 1, 2017.

Although the Trump administration has not announced its intentions, the general consensus seems to be that the new administration will not defend the regulation as written. Beyond that is anyone’s guess, especially since there is no DOL Secretary to date. President Trump’s first nominee for DOL Secretary, Andrew Puzder, a fast-food executive who had spoken out against the new rule, withdrew from consideration after he lost Republican support. The President’s new nominee, Alexander Acosta, is a former member of the National Labor Relations Board and U.S. attorney for the Southern District of Florida. Unlike Puzder, Acosta has support from both the industry and labor communities, so he likely has a better chance of confirmation. He appeared before the Senate on March 22, 2017, which is scheduled to vote on his confirmation soon (most likely before this article is published).

Continued on next page…

1 See State of Nevada, et al. v. U.S. Dep’t of Labor, et al., Case No. 4:16-CV-00731 (E.D. Tex., November 22, 2016)

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Spring 2017 Newsletter

Unfortunately for employers and their advisors, it is difficult to predict how Acosta would handle the preliminary injunction on the new salary requirement. Neither he nor President Trump have made any definitive public statements regarding the issue. When Acosta appeared before the Senate, he was noncommittal about the white collar overtime rule. He opined that it was “unfortunate” that the rule has not been updated in over a decade, but his reasoning suggested he thought it was unfortunate because failing to update dollar amounts in a rule can place “stress on the system” when they are belatedly updated. It is hard to read between the lines, but Acosta’s comments suggest that he recognizes an increase in the minimum salary level is at least logically, if not legally, appropriate. Assuming the Trump administration chooses not to fully defend the Obama administration’s new rule, it could withdraw its appeal and let the District Court’s ruling stand. Alternatively, the DOL may settle with the state plaintiffs and attempt to promulgate a new rule with a lower salary requirement. However, if the District Court’s reasoning is correct, then any DOL white collar overtime regulation containing a salary threshold is subject to challenge. Although some employers, like Walmart, have announced that they are keeping their higher salary levels despite the current injunction, others are likely still trying to decide what to pay their white collar workers given the uncertainty around this issue. Interested parties should continue to follow Acosta’s confirmation process to hopefully get a better glimpse into his plans for the white collar overtime rule. The legal information provided in this article is general in nature and should not be construed as advice applicable to any particular individual, entity or situation. Except as otherwise noted, the views expressed in this article are those of the author(s). This article may be considered a solicitation for certain purposes.

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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. Stephen A. Rossi is an associate at Mitchell Silberberg & Knupp LLP in Los Angeles. Stephen represents employers in all aspects of labor and employment law. He has extensive experience in drafting summary judgment briefs, appellate briefs and settlement agreements. For more information about Stephen, click here.


CMCP Diversity Matters eNewsletter – Spring 2017 Issue

CMCP Diversity Matters

AN OVERVIEW OF

BAN THE BOX LAWS IN CALIFORNIA By: Sonya D. Goodwin, Associate, and Julia Y. Trankiem, Partner, Reed Smith LLP

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ndividuals with criminal records unquestionably have a more difficult time obtaining gainful employment than individuals without criminal records. In fact, in a 2007 study, only approximately 40 percent of employers in four major metropolitan areas reported that they would “definitely” or “probably” hire applicants with a criminal history.1 In the same study, which also looked at the rates of

“call backs” or job offers for applicants with different demographics, job offers for whites with criminal records fall by about half, and are reduced by that much or more for black ex-convicts.2 As a result, an increasing number of states, cities, and counties across the country are enacting what is widely known as “Ban the Box” laws, which are intended to provide a fair chance to job applicants with criminal histories so that their qualifications for a position are considered first and without the stigma of their criminal records. This has the effect of easing hiring barriers and creating a more level playing field in competing for jobs. Indeed, proponents and opponents of “Ban the Box” legislation have hotly debated whether prospective employers’ consideration of applicants’ criminal histories disparately impacts applicants in certain demographics. While the scope of “Ban the Box” laws vary, at a bare minimum, these laws prohibit employers from inquiring about an applicant’s criminal history until after the initial interview (and sometimes delay this inquiry until even later in the hiring process). Continued on next page…

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I. California California enacted its first “Ban the Box” law in 2010, when then-Governor Arnold Schwarzenegger ordered certain questions regarding conviction history removed from the State of California’s employment application. Effective July 1, 2014, California Labor Code Section 432.9 extended the prohibition to all state and local agencies, with an exception for those agencies required by law to conduct a criminal history background check. Under Labor Code Section 432.9, state and local agencies are permitted to inquire about criminal conviction history after “determin[ing] the applicant meets the minimum employment qualifications” – thereby affecting only when – and not whether – public employers may consider criminal conviction history in making employment decisions. Notably, this language leaves the door open for employers to decide, after the application is submitted, when this qualification is met. Labor Code Section 432.7 goes further to preclude both public and private employers from seeking information, or basing a condition of employment on: (1) any arrests that did not result in a criminal conviction; (2) information concerning a referral to or participation in a pretrial or post-trial diversion program; (3) information concerning a conviction that has been dismissed or sealed; or (4) information concerning any type of juvenile proceeding. Section 432.7 does, however, allow employers to seek information concerning arrests that are still pending (“unresolved arrests”). And San Francisco and Los Angeles have gone even further than California state law to prohibit private employers from including questions about criminal history on job applications.

II. San Francisco’s Fair Chance Ordinance The San Francisco Fair Chance Ordinance (enacted in 2014) prohibits all public and private employers with applicants or employees for positions within the City and County of San Francisco and with at least

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20 employees, regardless of location, from seeking information from job applicants or employees at any time concerning (1) an arrest not leading to a conviction; (2) participation in a diversion or deferral of judgment program; (3) a conviction that has been dismissed; (4) information concerning any type of juvenile proceeding; (5) a conviction that is more than seven years old; or (6) anything other than a felony or misdemeanor. Additionally, employers are not allowed to conduct a background check or ask an applicant for their conviction history or information regarding unresolved arrests until after the first interview. And when making a decision based on an applicant’s or employee’s conviction history, an employer may only consider convictions that are directly and specifically related to the job, and must take into account how much time has passed since the conviction or unresolved arrest, as well as evidence of inaccuracy, rehabilitation, or other mitigating factors. The ordinance requires all employers to include the following language in all job postings: “The Employer will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of this Article.” Employers also must post a notice at the workplace with a description of the prohibitions and requirements set forth in the ordinance, which can be obtained from the Office of Labor Standards Enforcement.

III. Los Angeles’ Fair Chance Initiative for Hiring (Ban the Box) The “Los Angeles Fair Chance Initiative for Hiring (Ban the Box)” went into effect on January 22, 2017. This law is more expansive than its California and San Francisco counterparts insofar as it applies to all private employers with 10 or more employees who are located in or perform work in the City of Los Angeles. However, Los Angeles’s Ban the Box law does not apply to public employers and only extends the protection to applicants (broadly construed to include any individual who submits an application or other documentation for employment, whether for full-time work, part-time work, temporary or seasonal


CMCP Diversity Matters work, work through a temporary agency, etc.) and not to employees. The Los Angeles ordinance also differs from the San Francisco ordinance in that it requires employers to wait until after it makes a conditional offer of employment before inquiring into the applicant’s criminal history. “Criminal History” is more narrowly defined under the Los Angeles ordinance as compared to the San Francisco ordinance, as it is limited to a conviction of a felony or misdemeanor that has led to probation, fine, imprisonment, or parole. This means that under Los Angeles’s Fair Chance Initiative for Hiring, employers generally may not ask any question on a job application about an applicant’s criminal history, ask about an applicant’s criminal history during a job interview, or independently search for criminal conviction information or run a criminal background check before making a conditional employment offer – but still may ask applicants about unresolved arrests. There are some limited exceptions to the prohibition on asking about criminal history, including when an employer is required by law to run a criminal background check, when the position sought requires the possession or use of a gun, when the law prohibits a person who has been convicted of a crime from holding the position sought, or when the employer is prohibited by law from hiring an applicant who has been convicted of a crime.

IV. Conclusion While these laws are well-intended, recent studies confirm that there have been negative impacts on minorities, namely black and Hispanic men, when applying for jobs since the Ban the Box laws went into effect. In one of the studies, for example, thousands of fake job applications were submitted before and after the laws went into effect in New York and New Jersey, randomly assigning race (black or white) and criminal history to each application. The study found that before the Ban the Box laws went into effect, white applicants received seven percent more callbacks than similar black applicants, but after the laws went into effect that gap increased to 45 percent.4 In another study, the authors found that Ban the Box laws decreased the probability of being employed by 5.1% for young, low-skilled black men, and by 2.9% for young, low-skilled Hispanic men.5 Although these studies are not conclusive, they may cause lawmakers to rethink how to make the Ban the Box laws more effective in the future. But one thing is certain, these laws are here to stay, and there are more like them to come. As such, employers should exercise caution in relying upon information about convictions when making any employment decisions, Continued on next page…

Similar to the San Francisco ordinance, the Los Angeles ordinance requires all employers who withdraw a conditional offer of employment on the basis of the applicant’s criminal history to perform a written assessment linking the specific aspects of the applicant’s criminal history with the job duties of the position being sought. The written assessment should also take into account the factors established by the U.S. Equal Employment Opportunity Commission (including conducting an individualized assessment), among others.3

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including hiring, promotion, or termination. In addition, employers must remain vigilant about staying apprised of the ever-changing laws and keeping their managers and Human Resources personnel up-to-date on applicable laws to ensure appropriate compliance – not least of which because a violation of any of these laws comes with a monetary fine (ranging from $50 to $2,000, depending on the jurisdiction and occurrences).

Sonya D. Goodwin is an associate at Reed Smith LLP in Los Angeles. Sonya counsels clients on a wide range of labor and employment matters, including, but not limited to, wage and hour class actions, FEHA claims, and whistleblower claims in federal and state court, as well as arbitration. For more information about Sonya, click here. Julia Y. Trankiem is a partner at Reed Smith LLP in Los Angeles. Julia's practice focuses on the representation of management in a broad range of labor, employment, and employee benefits matters under state and federal law. For more information about Julia, click here.

** If you have any questions or would like the most up-to-date information regarding the status of the Ban the Box laws in cities and states where you do business, you may contact the authors of this post, Julia Y. Trankiem at jtrankiem@reedsmith.com and Sonya D. Goodwin at sgoodwin@reedsmith.com.

1 Harry J. Holzer, Collateral Costs: The Effects of Incarceration on the Employment and Earnings of Young Workers, Georgetown Univ.,

Urban Institute and IZA, DP No. 3118, 14 (Oct. 2007). 2 Ibid. 3 The EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, updated in April 2012, provides guidance on proper and improper disqualification of an employee or applicant based on his or her criminal record. The different factors that the EEOC sets forth in its guideline to assess whether a criminal exclusion is “job related and consistent with business necessity” include: (1) “the nature and gravity of the offense or conduct”; (2) “the time that has passed since the offense or conduct and/or completion of the sentence”; (3) “the nature of the job held or sought”; and (4) an individualized assessment to allow the individual to explain why he should not be excluded based on his criminal history. The EEOC provides further guidance on the individualized assessment, namely, (1) “[t]he facts or circumstances surrounding the offense or conduct,” (2) “[t]he number of offenses for which the individual was convicted,” (3) “[o]lder age at the time of conviction,” (4) “[e] vidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct,” (5) “[t]he length and consistency of employment history before and after the offense or conduct,” (6) “ [r]ehabilitation efforts, e.g., education/training,” (7) “[e]mployment or character references and any other information regarding fitness for the particular position,” and (8) “[w]hether the individual is bonded under a federal, state, or local bonding program.” 4 Amanda Agan and Sonja Starr, Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment, U. of Mich. Law & Econ Research Paper No. 16-012, at 4 (June 14, 2016). 5 Jennifer L. Doleac and Benjamin Hansen, Does ‘Ban the Box’ Help or Hurt Low-Skilled Workers? Statistical Discrimination and Employment Outcomes When Criminal Histories Are Hidden, 62 Research Briefs in Economic Policy, Oct. 2016, at 2.

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CMCP Diversity Matters eNewsletter – Spring 2017 Issue

CMCP Diversity Matters

What’s in a name? A battle for a transgender immigrant’s rights

By: Noah Perez-Silverman, Associate, Caldwell Leslie & Proctor, PC

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hile the United States continues to grapple with transgender rights—including the right to restroom access—transgender individuals across the globe often face severe persecution and torture on account of their gender identity. One difficulty transgender people encounter both domestically and abroad concerns the ability to ensure that their official documents bear the chosen names that match their gender. When trans immigrants seek to have their cases heard in U.S. immigration courts, it is important—but not always easy—to ensure that orders affecting their rights include both the name they were given at birth and the name that corresponds with their gender. The significance of this issue is exemplified by a case recently handled by Albert Giang, Noah PérezSilverman, and FeiFei Jiang, of CMCP member firm Caldwell Leslie & Proctor. Their client, Elena,* is a transgender woman who immigrated from Mexico after facing horrific abuse on account of her gender

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Spring 2017 Newsletter

identity—she was brutally gang-raped, beaten, thrown over a cliff, and left for dead by local police officers in Mexico. After fleeing Mexico to the United States, she applied for deferral of removal under the Convention Against Torture (CAT). At the merits hearing, however, the immigration judge showed little regard for the plight of transgender individuals, going so far as refusing to let the Caldwell Leslie team refer to their own client using feminine pronouns. In addition, the judge refused to correct the client’s name on the official file to either Elena’s true birth name (Elena, like many immigrants detained by authorities, initially gave a made-up name) or to Elena’s preferred female name. Not surprisingly, the immigration judge denied relief, holding that although the treatment Elena endured in Mexico rose to the level of torture, she was not entitled to relief because the torture was not state-sponsored. The immigration judge incorrectly assumed that although Elena’s abuse occurred at the hands of the police, these were simply rogue police officers, and the treatment was not condoned by the entire Mexican government. After the Board of Immigration Appeals (BIA) affirmed this erroneous decision, the Caldwell Leslie team appealed Elena’s case to the Ninth Circuit. There, after receiving a powerful opening brief explaining the various errors below, the government voluntarily agreed to a stipulated remand and acknowledged that a CAT applicant need show only that “a public official”—and not the entire foreign government— inflicted or acquiesced in torture. On remand, Caldwell Leslie persuaded the BIA to reverse its earlier decision, hold that Elena was entitled to CAT relief, and remand to the immigration court to effectuate the order. The battle was won, but not yet the war. For immigrants who receive deferral of removal under the CAT, the court order granting them relief is the only official documentation they get indicating that they are legally authorized to remain in the country. Unless Elena’s legal team could get the immigration judge to correct the name on the file (and on the resulting order), the years of work would have yielded a pyrrhic victory. If Elena’s order permitting her to remain in the

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U.S. contained only a made-up name, then she would have no way to prove to any future immigration officials that she was a legal resident. Before the immigration court—and a different immigration judge—the Caldwell Leslie team argued successfully that the order should include not only Elena’s true birth name, but also her preferred female name. Obtaining an official name change remains a challenge even for U.S.-born trans people, depending on what government authority has the ability to grant or withhold that relief. But for critical documents for trans clients—whether immigration papers or a bankruptcy discharge—it is always worthwhile to attempt to obtain an order reflecting both the client’s birth name and the client’s chosen name of preference, even if the client has not yet effectuated a legal name change. *Not the client’s real name.

Noah Pérez-Silverman is an attorney at Caldwell Leslie’s Los Angeles office. Noah has handled complex privilege issues, supervised voluminous electronic discovery projects, and helped obtain terminating sanctions against an adversary for litigation misconduct. For more information about Noah, click here.


CMCP Diversity Matters eNewsletter – Spring 2017 Issue

CMCP Diversity Matters

THE LCLD FELLOWS PROGRAM:

BUILDING RELATIONSHIPS AND LEADERSHIP SKILLS By: David A. Shimkin, Member, Cozen O’Connor

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finished my term as Cozen O’Connor’s Fellow in the Leadership Counsel on Legal Diversity in March of 2017. The mission of this prestige program is to unite attorneys who work in firms and in corporate counsel offices for the purposes of networking, personal and career development, and the promotion of diversity within our profession. Firms and corporations that are members of LCLD select one fellow per year to represent them in the program, and the selection process within those organizations is often very competitive. The LCLD Fellows Program affords its participants key opportunities for networking and creative development. Various sponsor organizations host events at their corporate headquarters to allow fellows to meet their staff and attorneys, and observe how the businesses are run. Among the choices offered to fellows was the opportunity to visit Walmart in Bentonville, Arkansas, PNC in Pittsburgh, Honeywell in New Jersey, and The Home Depot in Atlanta. I chose Home Depot, and was impressed by the integration between the legal and non-legal staff at this home furnishings giant. For

example, all lawyers at Home Depot, which we visited at its Georgia plant, are required to spend a certain amount of time per year as a sales associate in a store. They also wear the aprons. Home Depot emphasized that their sales associates are the most important people in the company, and Home Depot’s actions seemed to back this up. As you might imagine, the opportunity to meet with attorneys from the biggest and most respected companies in the country is invaluable. But I also found the career development aspect of the program to be just as fulfilling. Fellows attend a total of three meetings where they interact with each other and attend personal and career development group sessions. One session I found particularly interesting was on how to become more resilient and resourceful. Using

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Spring 2017 Newsletter

the analogy of Mars from the movie “The Martian”, the speaker expertly emphasized the importance of adapting to challenges and not panicking when events don’t unfold as we expect them, and they rarely do. But what also stuck with me was a speaker who talked about bringing one’s true self to work, and how that can be a sticky issue for diverse attorneys. For example, when and under what circumstances is it acceptable to bring in photos of your family to work? What if you are gay and you want to post a picture on your desk of your significant other? Similarly, many of us come at the law, and at life, from different perspectives, depending on our life experiences. To the extent that those experiences and viewpoints are different than our colleagues, and can often be a delicate dance when we want to be ourselves yet not be seen as “the other.” One of the best things about the Fellows Program is the Accountability Partner. Each fellow is coupled with an accountability partner to participate with during the three fellowship meetings. Even more important, in my view, was the opportunity to meet and share experiences with my accountability partner who is with a major social media company.

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Participating in the Fellowship Program was a truly fulfilling experience. I now graduate to being a Fellowship alumnus, and will participate in the various alumni conferences and events, including one that is coming in June in New York City.

David A. Shimkin practices in the Commercial Litigation Group at Cozen O’Connor in Los Angeles. His litigation practice includes complex commercial matters, with a focus on representing clients in the hospitality, health care, construction, and real estate fields. For more information about David, click here.


CMCP Diversity Matters Business Development Series:

Demystifying Business Development, for Associates and Beyond By: Martha Sullivan, Principal, Thornton Marketing

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very year, I have the opportunity to meet new associates, either at networking events or when I present workshops at law firms or bar associations. Not surprisingly, each new class of associates has similar questions about business development. Even though many law firms provide some level of training on business development, many associates aren’t convinced that they have the necessary skills to succeed and they don’t have confidence that their peers will ever be able to send matters to them. From my perspective, the fact that you completed law school and passed the bar

indicates that you are perfectly capable of mastering the skills you need to build your own book of business. Below are the most common questions I’m asked and brief answers to them.

I’m not like my firm’s managing partner. Is it okay to be myself? Yes. In fact, it’s critically important for you to be fully yourself. Clients and colleagues can tell when you are not being authentic. Ultimately, clients hire you because they have a relationship with you and they

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Spring 2017 Newsletter

trust you. When you take the time to discover common interests with anyone you meet, you will have a much stronger connection, and a better long-term working relationship.

with potential clients and referral sources, one of your priorities, now and throughout your career, should be to continually expand your network and maintain those relationships.

How can I find time for business development?

Are there any shortcuts to being successful at business development?

I’ll quote David Maister on this topic. “What you do with your billable hours determines your current compensation, but what you do with your nonbillable time determines your future.” It may be difficult to imagine that future if your only focus is making your hours. It’s important to get out of your office, meet new people, and develop interests outside of work. I highly recommend that you find an association that is meaningful to you and become an active participant. CMCP is a particularly good model for an association that sponsors relevant programs, provides opportunities for associates to join committees, and offers frequent networking events.

If only it were that simple. Persistence and patience are both required, as well as a well thought out marketing plan. It will take time for you to develop the relationships that will lead to work, and to build a network of contacts that can connect you to opportunities. You will also need to increase your visibility in the communities that are important to your practice.

What’s the best use of my time as an associate? First, become the best lawyer you can be. Ask for feedback and take advantage of whatever training your firm offers. Second, understand that you can use the same business development skills internally that you will eventually use externally. The partners in your firm are your potential clients right now. Do your research and identify the partners who are doing the kind of work that interests you. Attend events at your firm or find a way to introduce yourself to those partners and express your interest in working for them.

I don’t know any clients who can hire me now. Your current network probably consists of your college and law school friends, and associates who work for other law firms. All of you are at the beginning of long careers that will be full of changes. I can safely predict that you will be amazed to see where your friends end up ten or twenty years from now. In order to connect

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Practice, practice, practice As with any skill, it takes a lot of practice to achieve a level of competence. Whether you are learning to play tennis or play the piano, it is more effective to practice for 15 minutes a day, rather than three hours once a week. You will be more likely to find time to schedule follow up calls or tasks if you only have to commit to 15 minutes at a time.

Where can I find more information? Many of these topics are covered in more depth in my previous blawgs. You can find them at http://www.cmcp.org/?blawg_bizdev or at my website: www.thorntonmarketing.com.

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.


CMCP Diversity Matters

THE CMCP BOARD SPEAKS:

HOW CONNECTIONS REALLY WORK By: Gagandeep B. Kaur, Associate, Reed Smith LLP

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n March 9, 2017, CMCP presented an interactive program on networking and relationship – the CMCP Board Speaks. The formal program started with networking and was followed by more networking to practice the tips learned during the event.

The program provided an opportunity for attendees to hear from CMCP’s distinguished board members about networking and building relationships, participate in small groups and hear about best practices, and eventually practice those networking skills. Each small group, consisting of at least one CMCP board member and 2-3 attendees, shared the networking and relationship building tips and best practices they discussed with the large group including:

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Spring 2017 Newsletter

• Bring business cards. Bring your business cards to a networking event to exchange with other participants. For future follow-up, on the back of the business card jot down something specific and memorable about the person whose business card you receive.

you can rely on to assist your client with all of its business needs. To that end, create and maintain a diverse and comprehensive network.

• Set a goal for each networking event. At each networking event do not just spend time with your friends and colleagues. Set a goal of meeting at least 2 to 3 new people.

• Don’t sell yourself or your firm short. Keep in mind that you are an expert in your practice area but your firm has other experts, so learn what your firm and colleagues do to accurately speak about your and your firm’s capabilities. This will allow you to maintain your credibility while promoting your firm and colleagues.

• Network with other attorneys. Some of your best referrals will likely come from your colleagues and other attorneys who have clients with a range of needs.

• Be patient. Allow each relationship time to build and grow organically. It takes multiple meetings and sometimes years for a relationship to become a long lasting one.

• Know your networking style. Your time is limited so participate in networking and business development activities that you enjoy and are passionate about – one-onone meetings, conferences, small gatherings, fundraising for an organization, etc. • Know your client and its business. You are building a network to not only grow your book of business but also to have a network of attorneys and other professionals who

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Thank you to Littler Mendelson P.C. and Greenberg Traurig, LLP for sponsoring The CMCP Board Speaks event. Gagandeep B. Kaur is an associate at Reed Smith LLP in San Francisco. She works on a variety of transactional and litigation matters involving real estate, energy and natural resources, healthcare, and financial services. For more info about Gagan, click here.


CMCP Diversity Matters eNewsletter – Spring 2017 Issue

CMCP Diversity Matters

DIVERSITY CALENDAR April 19, 2017

April 20, 2017

April 21, 2017

April 25, 2017

OCAABA - Annual Installation DinnerCelebrating Service

San Francisco Out & Proud Corporate Counsel Award Reception

Annual Banquet & Awards Reception AALASC

Women Judges Reception

6:00pm

Orange County Asian American Bar Association Hilton Orange County Costa Mesa

6:00pm - 8:00pm

The National LGBT Bar Association

6:00pm - 10:00pm

Arab American Lawyers Association of Southern California

5:30pm - 7:30pm

Orange County Women Lawyers Association Whittier Law School (Room 1) - Costa Mesa

Slide - San Francisco

The Millennium Biltmore Hotel - Los Angeles

April 26, 2017

April 27, 2017

April 27, 2017

April 27-30, 2017

Roadmap to Victory: Lessons from Winning at Trial

Cocktails & Couture

Fireside Chat with Honorable Rupa Goswami

Orange County Korean American Bar Association

Weston Wear - San Francisco

2017 CABL Conference & 40th Anniversary Celebration

6:00pm - 7:30pm

6:00pm - 8:00pm

Queen's Bench Bar Association

UCI School of Law - Irvine

6:00pm - 8:00pm

South Asian Bar Association of Northern California

All Day

Cooley - San Francisco

California Association of Black Lawyers Marina Del Rey Marriott Marina Del Rey

May 4, 2017

May 11, 2017

May 13, 2017

May 16, 2017

OCHBA: Cinco De Mayo Mixer

CHBA Judicial Reception

The Hispanic Bar Association of Orange County

Charles Houston Bar Association

IABA-OC Seventh Annual Fundraiser & Gala

Lessons of the WWII Mass Incarceration of Japanese Americans

TBD

TBD

5:30am - 7:30pm

6:00pm - 8:00pm

5:30 pm - 10:00pm

Iranian American Bar Association - Orange County Pacific Avalon Yacht Charters Newport Beach

5:30pm - 7:30pm

Asian American Bar Association of the Greater Bay Area Ceremonial Courtroom, Phillip Burton Federal Building - San Francisco

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CMCP Diversity Matters

Spring 2017 Newsletter

Spring 2017 Newsletter

MINORITY

Spring 2017

© Copyright 2017 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 - Spring 2017  

California Minority Counsel Program Diversity Matters eNewsletter Spring 2017 Issue

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