Legal Service Awards
Night Light Tulsa OBA Award Recognition
A Message from
In this Issue
Matt Farris 2016-2017 TCBA President
4 Pro Bono Legal Service Awards
Guide to Changes in the Overtime Laws Stefan Mecke
Employment Law Committee
Bridging a community service gap, under a bridge
5 Family Law CLE
6 VP's Corner - Ann Keele
8 Negotiating in Shifting Sand Joseph H. Paulk 9 Santa Brings a Law Suit 10 Building Update 12 OBA Award Recognitions 14 Committee & Section Updates Section Chairs 25 Estate Planning CLE 26 5 Security Measures You SHOULD Be Taking 28 Grapevine 31 Classifieds
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A Message from the President
Matthew S. Farris
Wrapping Up 2016 I concluded last month’s comments by welcoming the start of the holiday season and by wishing you a Happy Thanksgiving with the hope that TLM readers could spend some quality time with their loved ones over this past weekend. Now that the November festivities are complete, most TLM readers will likely enter full ‘holiday mode’ in December by wrapping up the year (and possibly some gifts) with a hectic work schedule while juggling various holiday commitments as we say goodbye to 2016. As 2016 comes to an end, it seems appropriate to take stock of the state of the Tulsa County Bar Association. It is strong. Admittedly, my position on the state of the TCBA comes from an insider’s perspective. However, it is clear that those outside of our association are noticing TCBA members’ outstanding achievements and the important services they provide to the bar and Jody, Julie and Milly - who engage in and manage the to our larger community. association’s services and offerings. Because of you, we have a strong, vibrant bar association that other Indeed, during the recent OBA annual meeting held in bar associations respect and admire. The Outstanding Oklahoma City on November 2-4, the TCBA received County Bar Association Award is a well-deserved the 2016 Outstanding County Bar Association Award. honor, and the beautiful plaque from the OBA is The OBA commented in its program that the TCBA “is proudly displayed at the bar center (right next to last one of the premier legal service and education groups in year’s award).1 Remember to check them out the next the county” and was being recognized “for its continued time you visit the bar center. commitment to the community and its members.” It should be noted that 2016 is the second consecutive Speaking of visiting the bar center, this is a high-traffic year our association has received this award from time of year. TCBA members have already begun the OBA – repeat winners are uncommon – and it presenting excellent CLE offerings for those who need was a pleasure to be on hand to witness OBA President a few more (or all) of their requisite CLE credits. On Garvin Isaacs present the award to TCBA Past President Zach Smith. 1 I want to congratulate the following TCBA members for the honors It goes without saying (but I am going to say it anyway), that this recognition is only possible because the TCBA members and staff continue to dedicate their time and talents for the betterment of our association. As such, on behalf of the Tulsa County Bar Association, thank you to all TCBA members – and to Kevin, Bethany, 2 Tulsa Lawyer
and awards bestowed upon them at the OBA Annual Meeting: (1) Kim
Hayes was elected as OBA President-Elect; (2) Phil Feist received the Earl Sneed Award honoring his contribution to continuing legal education; and (3) John Woodard received the Neil E. Bogan Profession-
alism Award honoring and recognizing conduct, honesty, integrity, and
courtesy that best represents the highest standards of the legal profession.
November 10, Judge Nightingale, Dave Guten, Travis Barnett and Amy Hart presented 2016 Updates on Veterans Law, while the bar center also scheduled November CLEs on Bankruptcy, Indian Law, Energy/ Mineral Law, Immigration Law, and an Oklahoma Supreme Court Review 2016 moderated by Jason McVicker and Michael F. Smith. In December, there are no less than thirteen (13) CLE events scheduled at the bar center. Please reference the CLE Winter Schedule printed in this publication and appearing on the TCBA website so you may attend one or more of these CLE offerings before the end of the year and keep the OBA ‘CLE Grinch’ off of your back.
I could continue updating you on the great work of our members but, hopefully, in this brief space I have articulated to TLM readers that the state of the TCBA is indeed strong as we move toward 2017. We are always striving to improve as an organization to better serve our members but, judging by the recent recognition from the OBA and the ongoing work of our committees and sections, the TCBA is doing more than a few things well.
Finally, I made these and other updates to over thirty (30) TCBA Past Presidents at a luncheon held at the bar center on November 17. Obviously, TCBA Past Presidents are invested in and care about the well-being In addition the hefty CLE schedule, TCBA committees of the association, and it was nice to report encouraging and sections are extremely active as we close out news. Happy Holidays to you and yours. 2016. By way of brief examples, Ashely Webb and the Community Outreach Committee (COC) recently partnered with Lawyers Fighting Hunger to raise funds Sincerely, to support its Live Local, Give Local event (which fed 750 families over the Thanksgiving holiday), and is currently conducting the ever-popular Santa Brings a Law Suit professional clothing drive.2 Ann Keele, TCBA Vice President and the chair of the Children Matthew S. Farris and the Law Committee, is spearheading the 2016 2016-2017 TCBA President TCBA Holiday Challenge. Building on the success of last year’s challenge, participants pool resources to ‘adopt’ a family in need in order to provide certain items requested by the families over the holiday.3 Finally, Kathleen Pence and the Mentoring Committee is working in conjunction with the TCBA Directors at Large and the University of Tulsa College of Law Alumni Board of Directors to create a student liaison program aimed at providing selected TU law students with an avenue to actively and meaningfully participate in the governance of and programs offered by TCBA committees and sections. This is a promising joint project between the TCBA and the College of Law. More details will follow. My sincere thanks go out to Ashley, Ann, and Kathleen and their committees for the impactful work underway in our community. 2 The Santa Brings a Law Suit drive runs through December 16 and
drop off locations include the bar center (1446 South Boston) and Riggs, Abney, Neal, Turpen, Orbison & Lewis law firm (502 W. 6th Street)
3 You may still participate in the 2016 TCBA Holiday Challenge by mak-
ing tax deductible donation to the Tulsa County Bar Foundation, or TCBF, through December 9 – note “Holiday Challenge” on your payment.
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Tulsa County Bar Association
Pro Bono Legal Service Awards
Presented for exemplary volunteer service to the Court Assistance Project (CAP).Â On behalf of the Tulsa County Bar, in honor and recognition of their personal commitment to Pro Bono Legal Service representation for the indigent; portrayal of the highest ethical professionalism ideals and professional leadership; and substantial
accomplishments. This award is a reflection of the upmost gratitude for their dedication to the expansion of access to justice, and their tireless work to advocate of behalf of the most vulnerable individuals.
Kate Hunter John P. Kerr - Legal Aid Services of Oklahoma Michael F. McCann - Micael F. McCann, PLLC Allison Osborne - Crowe & Dunlevy Michael R. Pacewicz - Crowe & Dunlevy Igor Petrovich James J. Proszek - Hall, Estill, Hardwick, Gable, Golden & Nelson, PC Craig L. Rainey Jason L. Riddle Malcolm E. Rosser, IV Gwen Savitz Nathalie M. Schaefer - Eller & Detrich Amy Sellars Heidi L. Shadid - Eller & Detrich Andrew Shank - Eller & Detrich Mary Alexandra Shipley - Crowe & Dunlevy Steven W. Soule - Hall, Estill, Hardwick, Gable, Golden & Nelson, PC Joshua Tietsort - Eller & Detrich Kimberly Moore - Legal Aid Services of Oklahoma Deborah Howard, Paralegal Elizabeth H. Nellis, ACP - Legal Aid Services of Oklahoma Cassandra Oliver, ACP Kenya Sinclair, Paralegal
The Bar Center will be closed December 26th & 27th for Christmas and January 2, 2017 for New Year's
Enjoy your holidays! 4 Tulsa Lawyer
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VP's Corner Ann Keele, 2016-2017 2016 is nearly over, and I can’t believe how this year has flown by. I’m betting that we are all gearing up for holiday parties and some much needed time off. As we work on wrapping up cases and think of business purchases that should be made before the year ends to maximize tax deductions, please consider making charitable contributions to finish your 2016 on a high note.
Fell Family Team Leader: Melissa Fell
Adjunct Settlement Judges Team Leader: Truman Rucker
Monroe Family Team Leader: Stanley D. Monroe Conner & Winters Team Leader: Gary Betow
Community Outreach Team Leader: Ashley Webb
Remember, the 2016 Holiday Challenge to benefit Litigation Section families in need through Family and Children’s Team Leaders: Shane Henry and Aaron Bundy Services is in full swing now through December 9. Family Law Section Here are the generous teams who have already Team Leader: Maren Lively signed up for the 2016 Holiday Challenge: Employment Law Section Team Leader: Stefan Mecke Greenough Family Team Leader: Hon. Kelly Greenough Thank you to all of the participants for your kind Children & the Law Committee Team Leader: Ann Keele Paralegal Section Team Leader: Debra Baker
Littleton Legal PLLC Team Leader: Brittany Littleton McAfee & Taft Team Leader: Pam Mappin
After Fx Spa & Salon Team Leader: Bailey Leclair
hearts and willingness to help! Let’s all give these folks a congratulatory fist bump (or at least a smile) for being good people when we see them.
As you can see we have outstanding participation so far, but we need your help to finish strong. Please send your tax deductible donations payable to TCBF and note “Holiday Challenge” on your payment. Monetary donations will be accepted through December 9, 2016 at the TCBA Center located at 1446 S. Boston, Tulsa, OK 74119. Please help us make this holiday season merrier for children in the Tulsa area. Your donation will help
Advertising Rates available at www.tulsabar.com or contact Jody at the Bar Center. 918-584-5243 Ext. 240 firstname.lastname@example.org
provide much needed items, like clothing, diapers, and toys, to families who would otherwise go without this holiday season. Now is your chance to make a real difference, so please send your tax deductible donation today! Moreover, I wanted to recognize another very worthy endeavor. Kudos to Hugh Robert of Sherwood, McCormick, and Robert for his great success in the Lawyers Fighting Hunger project. The Tulsa area generated over $30,000.00 from Tulsa area lawyers and businesses to provide food to low income families to be able to prepare a full Thanksgiving meal at home. More than 750 Tulsa area families received over 20 food items each (a turkey and all the sides, plus pie). That is quite an impressive accomplishment. Congratulations and we look forward to the next Lawyers Fighting Hunger event coming this Spring! I’m encouraged by the generosity of our members. Thank you for your willingness to help others, and to make a positive difference in our community. Servant leadership changes lives. I wish you all a very joyous, peaceful, and blessed holiday season. Merry Christmas and Happy New Year to you and your family!
Young Lawyers Bowling
2016 TCBA Holiday Challenge Benefitting families in need through Family and Children’s Services Donations are tax-deductible Make checks to TCBF and note “Holiday Challenge” on your payment Cash donations - accepted through
December 9, 2016 at the Bar Center
1446 S. Boston, Tulsa, OK 74119
YLD's Bowling League will officially start January 2017 on Thursday nights at 6:30 p.m. The exact starting date is TBA. Teams of 4 that are interested in signing up need to contact Natalie Sears at email@example.com or Brenna Wiebe at firstname.lastname@example.org. Tulsa Lawyer 7
Negotiating in Shifting Sand
By Joseph H. Paulk, President, Dispute Resolution Consultants, Inc Legal stability and predictability are the bedrock of what people mean by the “rule of law.” In its absence, citizens cannot manage their legal affairs effectively. In our common law legal system, legal stability and predictability are furthered by judicial adherence to precedence and stare decisis. If a result is predictable, settlement is easier. It makes little sense in continuing to litigate if it won’t change the result. When people know what to expect, they can conform their behavior to the prevailing norms. Today more than any other time in the last half century, we as advocates, advisers, and problems solvers for our clients are often perplexed as to how to advise our clients as to the state of the law that governs their case. Our legislative branch is pumping out enormous changes and additions to our “settled” areas of law both substantively and procedurally at an unprecedented rate. Simultaneously, our Supreme Court is reviewing these changes, when properly brought before them, and often invalidating them. We, as advisers and counsellors of our clients’ legal positions, are often left trying to read tea leaves. Clients hate to hear, “I'm not sure”. Our clients, whether individuals or businesses, want concrete answers so they can evaluate their risks. Further politicizing the judicial review process is certainly not the solution nor is turning our appellate judges into politicians. So how do we confidently proceed to suggest solutions in matters that are currently before our appellate courts or certain to be challenged in the near future? This frustrating position is not unusual as cases are accepted for review by our appellate courts regularly. The difference is the sheer volume and dramatic significance of the laws and judicial 8 Tulsa Lawyer
decisions which must be reviewed. Advising clients of what affect clearly poorly written laws might have is clearly fraught with concerns. Certainly, there are many uncomfortable conversations between attorneys and their clients daily throughout Oklahoma based upon the d r a m a t i c differences of new laws to the old and what the ultimate appellate conclusion could mean to their case. In the negotiation/mediation world, several parties and insurers are hedging their bets and compromising on such issues as non-pecuniary caps, paid versus incurred medical expenses, workers c ompensation changes, and many other issues of admissibility of evidence. On the other hand, some cases are being dismissed without prejudice and refilling within 1 year with the hope that the appellate courts will clarify issues in their client’s favor. While we all understand that a level of uncertainty is always present, what we are facing today is unprecedented. Many disputing parties in the past 24 months have taken pragmatic approaches in settlement. We cannot “wait and see” until all potential appellate legal challenges are decided upon recently passed laws. What we can do is consider compromising our certainty as to the validity of the legal challenges. The current legislature is colliding with our Oklahoma Constitution constantly. The answer is not amending our Constitution to allow those with unlimited amounts of money to control judicial selection of our highest court. This will further confuse the job we do daily. In summary, we are tasked daily to provide opinions to our clients without predicting legal outcomes with absolute certainty. Negotiating without the bedrock of legal precedent is challenging. It is frustrating to advise our clients that their legal position “depends” on both legal AND political considerations. Negotiating with certainty in our careers has always been a dream. Largely an unattainable dream. Today’s environment of uncertainty differs mostly in the sheer volume of changes and challenges being undertaken simultaneously.
Santa Brings a Law Suit The clothing drive annually provides business attire to men and women in need so they may make the best possible impression during a critical job interview or their first day of work. The legal community is particularly well “suited” for this task as so many of us wear professional attire every day. If you have professional or business casual clothes for men or women – suits, dresses, skirts, blouses, dress pants and shirts, ties, belts, shoes, etc. – please begin to put them aside for the benefit of needy and deserving Tulsans.
Your generosity is greatly appreciated (and tax deductible.) Tax receipts are available upon request when you drop off your donations. Let’s have a wonderful holiday season, and build on the past success of this drive by cleaning out our closets and helping Tulsans get back to work! Ashley R. Webb, Community Outreach Committee Chair, Tulsa County Bar Foundation MONDAY, NOVEMBER 14, 2016 Riggs, Abney, Neal, Turpen, Orbison & Lewis, Inc. through DECEMBER 16, 2016 Clothing can be dropped off at the locations listed Drop-Off Locations: during regular business hours. All items should be clean, on hangers and ready to wear. At the conclusion TULSA COUNTY BAR - 1446 South Boston of this year’s drive, the TCBF’s Community Outreach RIGGS, ABNEY, NEAL, TURPEN, ORBISON & LEWIS, Committee will deliver the clothing to Tulsa area INC. - 502 W 6th St charitable organizations, including the Salvation Army, John 3:16 Mission, and Women in Recovery, who truly ALLISON FIRM - 4812 E 81st St., Ste 301 appreciate and utilize your donation of professional HALL ESTILL - 320 S Boston, Ste 200 attire to better our community.
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OKLAHOMA BAR ASSOCIATION AWARD RECOGNITIONS Earl Sneed Award Philip Feist
Posthumously Judge Carlos Chapelle Accepted by Danny Williams
OBA Neil Bogan AwardJohn Woodard 12 Tulsa Lawyer
OBA Liberty Bell Ali M. Mauere
The 2016 recipient of the Liberty Bell Award is Ali M. Maurer. For the past four years, Sgt. Maurer has led the Financial Crimes Unit of Tulsa Police Department. Her unit investigates elder crimes and through her leadership has offered seniors an outreach event that enhances awareness of the many services available to them in the community. Carmen Brown-Hill, a detective in the FCU, and Martin A. Frey, Professor Emeritus at The University of Tulsa, accepted the Liberty Bell Award on behalf of Sgt. Maurer. Detective Brown-Hill is also Lt. Col. in the Oklahoma National Guard and Professor Frey, a member of the Oklahoma Bar Association, is a volunteer with the Tulsa Police Department and assigned to Sgt. Maurerâ&#x20AC;&#x2122;s unit.
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TCBA Committee & Section News
At no cost to lawyers or former clients, this Committee resolves disputes involving the amount or reasonableness of attorney fees and/or costs charged or to be charged by the lawyer for professional services for the benefit of the former client. The arguments of the lawyer and former client are received by an Investigator selected by and from the Committee members. The Investigator interviews the parties and summarizes their positions and presents those positions to the Committee in a closed hearing that is not open to the public or the parties. Committee decisions are made by majority vote of a quorum of at least 12 persons including both attorneys and non-attorneys. Decisions of the Committee are binding upon the parties and may be enforced by subsequent court action. This Committee does not resolve client grievances.
IF YOU LOVE ANIMALS... Find out what the TCBA Animal Law Committee is all about! Committee Chair - Laurie Phillips
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Fee Arb Committee meetings are scheduled at 4:30 p.m. on the following dates: November 3 December 1 January 5 February 2 March 2
April 6 May 4 June 1 July 6 August 3
For more information, contact Committee Chairperson, Tamera A. Childers of Tamera A. Childers, PLLC, 918-574-8990 email@example.com. ADR/Mediation Ron Gore
Fee Arbitration Committee News
Corporate Criminal Law Employment Law Energy & MineraLaw
Paul Thomas Vacant Marvin Lizama Stephan Mecke Bill Searcy Anita Anthony
Donna De Simone
Philip D. Hixon David Sobel
Catherine Coulter Juvenile Law
Ivan Orndorff Kim Jantz
Aaron D. Bundy
M. Shane Henry
Steven L. Oakley
TCBA Litigation Section The TCBA Litigation Section enjoyed speaker Jeremy Jennings, CPA/ABV presentation “A Trial Lawyers Guide to Working with your Financial Expert” during the October meeting. The Litigation Section was founded by trial lawyers for trial lawyers of all practice areas with a goal of improving as advocates. Please join us for our next meeting in January 2017.
your calendars and join us!
December - no meeting Wednesday - January 25th, 2017 Thursday February 23rd, 2017 ThursdayMarch 30th, 2017 Thursday - April 27th, 2017 Wednesday - May 24th, 2017 Thursday June 29th, 2017 Wednesday - July 26th, 2017 August - no meeting
Aaron D. Bundy & M. Shane Henry TCBA Litigation Section Co-Chairs
When is the first day of winter 2016?
December 21, 2016 Tulsa Lawyer 15
Stop by, call or visit us on the web!
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Night Light Tulsa By Michael P. Taubman
Bridging a community service gap, under a bridge
When November and December hit the radar, you see an increased interest in the Season of Giving. People don't have just a season of need, for some people it's a day to day struggle to figure out how to feed themselves, their child and even their only companion, whose four legs and fur walk the miles between the oases of community services. Have you ever stopped to think about how you spend your Thursday night(s)? This season, I ask Tulsa attorneys, legal staff, and firms to consider making a commitment to spend at least one Thursday night from 6:30 to 9:00 p.m. with their friends, co-workers and family in a dead end, under a bridge at 202 North Maybelle Avenue. Before you open an App to look up that address, it's, essentially, behind David L. Moss Corrections Center. On Thursday nights, this forgotten corner just outside of the IDL redevelopment trend becomes an oasis for some Tulsans. You'll find a community here, built from the vision of two spectacular women, Anisa Jackson and Sarah Grounds. Anisa and Sarah knew each other before coming together to pursue this passion to serve, having met previously through their children and church activities. Before they began, Anisa taught middle school, and Sarah was a nurse; however, they shared a desire to help those in need. While on a mission trip in Portland, OR in 2013, Anisa said she "took part in program called Night Strike, which performs similar services for people in need." Sarah and her husband, Jason, also learned about Night Strike watching a profile of service organizations back 18 Tulsa Lawyer
in Tulsa. When Anisa and Sarah got back together, they knew they'd found an outlet for their calling to serve, and Night Light Tulsa took shape on their living room floors and in church meeting rooms. They started like most charitable organizations by finding a neglected area of Tulsa. They met their first guests, not clients, there under the bridge over a dead end street. "We think it's important that the people we serve are treated with dignity and respect, so we want them to feel like a guest when they come" said Sarah. What started as a passion of two women and their families grew significantly during the last three years. The demands of seeking donations and preparing for Thursday nights led both of them to quit their jobs. Now, Anisa and Sarah serve in the trenches on Thursday nights and daily as officers of the 501(c)(3) non-profit corporation they formed, City Lights Foundation of Oklahoma. Presently, they serve in an uncompensated capacity in order to keep the lionâ&#x20AC;&#x2122;s share of revenue and grant money they've raised and received going toward the needs of their guests in the Night Light community. Early turnout on a Thursday night saw around 30 guests, who were perplexed why these two women and some friends were down here, at night, handing out food, talking with and helping the people who lived in and around the space under the bridge. A Thursday night experience with Night Light now sees around 250 guests, walking there, pushing strollers, riding up on bicycles, and piling family and friends into whatever transportation is available. Anisa, Sarah, the volunteers and the guests
convene this community on every Thursday night, except for 3 times in 3 years. In 2014, Night Light Tulsa received a proclamation from the City of Tulsa for their service to the homeless and lower income communities. My family and I served this past summer on a warm Thursday in July. The experiences our family shared with the guests that night while working our different stations imparted a gift to each of us. My son and I manned our stations on the food lines, back to back. I looked over my shoulder several times to see him engaging in conversation with guests. My daughter leapt at the chance to work the foot washing station, and I saw her and my wife laughing with the guests at their station as they cleaned the tired, aching feet of guests who'd walked far to find a little peace, comfort, safety and a warm meal. "Each station is used to build relationships and restore dignity and hope" said Sarah.
Among the stations, Tulsa attorneys are there too. I spoke with Karen Grundy and Sara Schmook about their experiences. "Night Light presents volunteers with a unique opportunity to serve Tulsa's underserved" said Grundy. Comparing her experience with other social service organizations, Schmook said, "I volunteered at the Tulsa Day Center for the Homeless in the past, and I annually volunteer with my church to hand out food during the Thanksgiving season. Under the bridge with Night Light Tulsa, it's a different experience for me, and it's an excellent opportunity to connect with Tulsa's most vulnerable citizens and learn about some of their needs." Asked what she found most rewarding about her experience, Schmook stated that "these recipients are truly grateful for a smile, a kind word and respectful treatment as you offer them material items they need, and it has given me a new perspective on cleaning out
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our closets and being aware of the condition and quality of the clothing, coats and blankets that we are passing on to those who will actually use them. Likewise, Grundy stated that "[she] started volunteering last summer, and it has been very impactful to see how our actions can assist others in our community." Night Light Tulsa occurs every Thursday night from 6:30pm-9:00pm. Volunteers provide services to Tulsa's homeless and lower income families. The experience begins at 6:30 with an orientation to go over the rules and expectations for Night Light. Volunteers are broken into smaller units, such as preparing/serving food, a foot washing station, a clothing station, a team to hand out basic needs to the guests and their 4-legged companions, and a social team whose job is to interact and talk with guests, sharing a meal and conversation like any of us would do with our friends, co-workers and families. At the end of the evening, volunteers rejoin the group to clean up and put the tables and chairs back into the used yellow panel truck, leaving this dark corner a little brighter with spirits lifted.
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I encourage all members of the TCBA to spend at least one Thursday night with Night Light Tulsa. If you, your family, friends or firm want to sponsor a Thursday night, it costs around $650.00 to feed the Night Light community, but the ROI you'll receive is substantially greater. Contact Anisa Jackson and Sarah Grounds at Night Light Tulsa / City Lights Foundation of Oklahoma, Inc. by calling (918) 991-9599 to set up a Thursday night to take part in this experience, and check out their Facebook page and the website at http://www. nightlighttulsa.org for more information.
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A Lawyer’s Guide to Recent Overtime Law Changes By Stefan Mecke, TCBA Employment Law Section Co-Chair Many of you have been fielding questions from clients and social contacts relating to the Department of Labor’s new overtime rules that are intended to (i) adjust minimal labor standards and (ii) ensure a hard day’s work lead’s to a fair day’s pay for workers throughout the United States. In fact, due to the media attention given to the new DOL regulations, my young son Mead (pictured) attended Halloween festivities as a donut in an effort to draw attention to the plight of many Dunkin Donuts workers currently embroiled in class action lawsuits against their employers, arguing among other things, that they were not properly paid overtime.
and employees to make contracts for wages in return for work is part of the liberty protected by the due process clause and concluded that the state of New York could not interfere with such contracts.
The DOL’s FLSA - A Historical Perspective
Interestingly, the West Coast Hotel decision prompted many commentators at the time to dub the decision “A switch in time that saved the nine,” since 103 days earlier, President Roosevelt had announced a courtpacking plan that would have enabled the President to add six more Supreme Court Justices to the bench. After the judicial decision-making shift, the court-packing scheme became unnecessary. In 1938, Congress was in a position to enact the Fair Labor Standards Act of 1938, which set minimum wage (25 cents per hour) and maximum hours (44 per week) for U.S. workers and the Supreme Court had no trouble validating the Act.
The Fair Labor Standards Act was implemented in 1938 after a tumultuous battle for worker pay rights between President Roosevelt and the U.S. Supreme Court. First, in Adkins v. Children’s Hospital of D.C., 261 U.S. 525 (1923), the Court delayed relief for workers by upholding a statute protecting minimum wage that the Court felt would dangerously extend the police power of the state and, thus, found it unconstitutional. The Court considered the statute to be mere “price-fixing” and concluded that the statute’s implementation procedures were overly vague and not adequate in regulating the character or method of wage payments, or the conditions and hours of labor which would be indicative of regulations intended to protect the public welfare in a legitimate way. Second, in Morehead v. New York, 298 U.S. 587 (1936), the Court snubbed workers again by finding a New York minimum wage law unconstitutional. The law, which allowed the state labor commission to fix wages in relation to the class of service rendered, was in violation of the 14th Amendment’s right to due process. Specifically, the Court argued that the right of employers TulsaLawyer Lawyer 2222Tulsa
Third, in West Coast Hotel v. Parrish, 300 U.S. 379 (1937), the Supreme Court reversed its earlier decision relating to employee pay rights (as well as other socioeconomic legislation the court had earlier rejected), and revisited the doctrine of freedom of contract. In doing so, the court provided that the legislature was entitled to adopt measures to reduce the evils of the “sweating system,” the exploiting of workers at wages so low as to be insufficient to meet the bare cost of living, thus making their very helplessness the occasion of a most injurious competition. Elsie Parish, who had been employed as a chambermaid at the Cascadian Hotel, was awarded back-pay in the amount of $216.19.
Time to Make the Donuts (With Unpaid Overtime?) More recently, the Department of Labor has become concerned that the American dream of a fair day’s pay for a hard day’s work has diminished for many families. See Department of Labor: Overtime for White Collar Workers – Overview and Summary of Final Rule. A cornerstone of this promise is that employees should be paid more if they work more than 40 hours per week. The DOL’s position is that too many workers have been left working long hours for no additional pay, taking them away from families and civic life, without extra compensation.
Some of the goals associated with the new
overtime regulations cited in the final rule include: (i) Overtime at a Glance improved work-life balance by giving workers more time with their families and personal/civic pursuits, (ii) increased • Salary Threshold (Test #1) – The new rule increases employment through the hiring of additional workers and a the salary threshold for white collar exemptions decrease in unemployment numbers, (iii) improved worker (Executive, Administrative, and Professional) to $47,476 health due to the additional downtime that is expected to be from $23,660. It will also increase the threshold for provided to employees, and (iv) increased productivity due Highly Compensated Executives (HCEs) to $134,004 to improved employee morale and reduction in turnover. from $100,000. The DOL also specifically referenced the “Millennial” generation (workers under the age of 35) and cited the goal • Salary Basis Test (Test #2) – There is no change in the of helping this particular generation enter the middle class. salary basis test which requires employees to be paid a pre-determined fixed salary regardless of the “quality The “white collar exemption” was originally meant or quantity” of work. for highly-paid workers with better benefits, job security and opportunities for advancement. Unfortunately, when • Duties Test (Test #3) – There is no change in the duties left unchanged, the salary threshold has been eroded by test incorporated into the final rule. Employees who inflation every year. The exemption has only been updated perform Executive, Administrative, and Professional once since 1970, in 2004, when it was set too low according duties are exempt from the DOL’s overtime requireto the DOL. An example of this concern is the plight of the ments. Certain computer professionals, lawyers, Dunkin Donuts workers in Boston and New York that have doctors, teachers and administrators in academia are taken up class action lawsuits against their employers for also specifically excluded from the requirements of the their failure to properly pay overtime in accordance with salary & duties tests. provisions of the FLSA. • Automatic Updates – The final rule provides for an au In Marzuq et al. v. Cadete Enterprises Inc. et al., tomatic update of the Salary thresholds every three (3) Case No. 1:11-cv-10244, in the United States Court for years. In January 2020, the $47,476 threshold is anticithe District of Massachusetts, the Overtime wage claims pated to increase to over $51,000 in order to equal the of Dunkin Donuts managers have been allowed to proceed salary of the 40th percentile of full-time salaried workto trial. These managers were classified as “salary/ ers in the US census region with the lowest income. overtime exempt” and expected to work no less than 48 hours over six days. In determining whether or not the • Incentives and Bonuses – For the first time, employers classification is appropriate, the courts are considering the will be able to include “non-discretionary” bonuses, relative importance of (i) management responsibilities, incentive pay, and commissions of up to 10 percent of the threshold (up to $4,747 per year). (ii) amount of time spent on exempt work; and (iii) the managers’ freedom from direct supervision. Similarly, in a recent May, 2016 filing, Padilla et al. v. Ruby Foods, • Catch-Up Payments – If the incentive pay provided by the employer fails to reach the $47,476 threshold for Inc. et al., Case No. 1:16-cv-04936, approximately 100 a particular quarter, an employer is enabled to make Chicago based employees are suing their Dunkin Donuts quarterly “catch-up” payments under the regulations. franchise owners over an alleged failure to pay overtime. One of the complaints alleges that the franchise owners frequently deducted time from their recorded work hours See Fair Labor Standards Act, 29 U.S.C.A. §201, et seq., 29 when the employees started working before their scheduled C.F.R. parts 510 to 794. shift or remained at work past their scheduled shift. Furthermore, the franchise owners instructed managers to change the clock-in-time and clock-out-time records in the Continued on page 24... store’s computer database to make it appear as though the employees worked fewer hours than they actually did. Tulsa Lawyer 23
Some of the challenges faced by employers seeking to implement these new regulations with employees includes the following: • The rule change is causing employers to be more efficient with time in order to reduce or eliminate overtime. • Incentive pay, such as Bonuses and commissions, may need to be reduced and standard wages increased due to the 10% limitation for “non-discretionary” incentive payments. • Employees accustomed to receiving a salary will need to be re-classified to hourly/overtime-eligible which will cause a negative impact on employee morale.
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The TCBA Employment Law Section invites you to join us at meetings and to join in on the discussions. Whether you are interested in staying current on employment related issues and laws impacting employees within your own legal practice or those impacting your Stefan Mecke employer clients, we welcome Barber & Bartz you. Our section is focused on providing a fun and interesting forum for plaintiff’s attorneys representing employees, defense or in-house counsel representing employers, and anyone interested in becoming more knowledgeable about employment related issues and laws.
Tulsa Lawyer 25
The 5 Security Measures You Should Be Taking By John Barkett, Partner, Shook Hardy & Bacon LLP and Dr. Gavin W. Manes, CEO, Avansic
Simple passwords are ill-advised. Have a password with at least 8 characters that is “complex”; i.e. combination of numbers, letters, and special characters. A 4-digit PIN or screen lock technology may not be enough to protect your client’s or firm’s information. And no password should be shared with your spouse, children, assistant, or others. But you may ask “what do I do with my children who are clamoring to watch a video on my tablet”? Set up a guest account. Some mobile devices allow multiple Introduction user accounts where you can have access to email, and Security is at the top of everyone’s mind. This is doubly your children may be allowed access to watch videos or true for legal professionals given the sensitivity and go to gaming sites. importance of the electronic information they may possess. Encrypt Your Mobile Computer If you take a laptop outside of your office, you need to In 2012, the American Bar Association Model Rules encrypt it using a tool like BitLocker. That way, if the of Professional Conduct were amended to address the computer is stolen or lost, the data is generally secure. risks associated with technology. Specifically, Model The use of BitLocker also means that data leaving a law Rule 1.6(c) was added: “A lawyer shall make reasonable firm is encrypted, which is a security best practice. efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information The process of BitLockering a computer takes a few relating to the representation of a client.” Twelve hours and once complete, you need to enter an additional states (Arizona, Connecticut, Delaware, Illinois, Iowa, password every time you turn on your computer. The New Hampshire, New Mexico, North Dakota, Oregon, password should be complex, at least 8 characters with a Pennsylvania, Virginia, and West Virginia) have combination of letters, numbers, and special characters. already incorporated Model Rule 1.6(c) into their Rules of Professional Conduct (RPC). Other states can be This type of encryption and password protection is expected to follow. stronger than your regular computer password; if the Knowing that security is important is a good first step towards making information more secure and to comply with the RPC. But knowing isn’t enough, acting on that knowledge is required. Especially for those not technically inclined, here are some things you should do and, more importantly, should be able to do.
hard drive is removed from the computer, a person cannot simply bypass the password and access the data.
Don’t Forget Physical Security Even after you’ve encrypted your hard drive, you should still practice physical security when on the road. Use the hotel safe, take your devices with you, and don’t write the password on a sticky note and put it in your laptop Have a Password on Your Mobile Devices This applies for cell phones, tablets, or any other bag. The common sense test should always be applied. mobile device that may store firm or client data (such as email) because once a device is unlocked, a plethora If your devices aren’t encrypted as a matter of course, of information is available. This includes the possibility you should employ other physical security measures of searching through all email, not just the information to ensure that data does not leave your office. This includes restricting access to your firm’s offices, locking on the device. 26 Tulsa Lawyer
computers when not in use, and making sure security procedures are in place for any file or email servers. An area of oversight is leased equipment, including computers, copiers, or other devices with electronically stored information, because once the lease is up those devices might go somewhere outside your office. Accept That More Security = Less Convenience Changing this mindset is the most important step in securing information. Information workflows are more difficult and time consuming when they are secure. Integrate security into your daily work and learn to live with the fact that computer access, file use, and file management will take longer than before. Understanding the reason behind security and mitigating the substantial risks posed by insecure actions should be sufficient motivation for change even apart from RPC 1.6(c). Be Careful with the Cloud The cloud is a wonderful digital filing cabinet in most cases – cheap or free email, seemingly unlimited video and picture storage – and we can choose where we place this information, including on a public cloud. However, choosing to place client and firm data in the cloud may undermine the security principles of clients or the firm and may be inconsistent with rules of professional conduct.
There are private cloud services appropriate for firms and their clients’ data, but services-agreement terms should be carefully scrutinized for third-party access, and data-destruction and data-retention policies and procedures. (Note that most cloud providers will not certify that data is destroyed once deleted which can make it difficult to enter into protective orders with a data destruction requirement, or handle HIPAA data). Conclusion For large law firms, there are likely a set of security principles and procedures already in place; it’s just a matter of recognizing how important it is to follow them. For smaller firms that may not have dedicated IT staff, establishing good security habits is even more important. Local counsel for a large case may be targeted as the “weak link” in the information chain. In practice, security is making an individual judgment about the level of security required for information that is being transmitted or stored electronically. Good judgment may require a change in your habits, and may be mildly inconvenient, but it is necessary to meet professional obligations and minimize the likelihood you will have to face the consequences of a security lapse.
Grapevine News Grant T. Lloyd is pleased to announce the formation of Lloyd Legal PLLC. Mr. Lloyd concentrates his practice in civil litigation, real estate, estates and trusts, and family law. His mediation practice brings local services to previously unreached rural Northeast Oklahoma. He graduated from Oklahoma State University in 2004 with a Bachelor of Arts degree in Psychology and received his Juris Doctorate in 2007 from the University of Tulsa College of Law. A certified mediator, Mr. Lloyd is a member of both the Oklahoma and Arkansas Bars, and admitted to practice in the United States District Court for all Oklahoma federal districts, as well as the 10th Circuit. He was named a “Rising Star” by Super Lawyers in 2013, 2014, and 2015 and was awarded the title of “Outstanding Young Lawyer 2013-2014” by the Tulsa County Bar Association. Since his career began, Mr. Lloyd has been an active member of the Tulsa County Bar Association and Tulsa County Bar Foundation. In addition to his many committee memberships, he has formerly chaired the Membership Services Committee, Community Outreach Committee, and co-chaired the Mentoring Committee. He is a member of the Oklahoma Bar Association and Oklahoma Bar Foundation. He is a former board member of Mental Health Association Oklahoma. Lloyd Legal is located at 525 S. Main St., Ste. 1130 in Tulsa and 104 S. Muskogee Ave. in Tahlequah. For more information or to contact Mr. Lloyd please call (918) 809-5855, email him at firstname.lastname@example.org, or visit www.lloyd.legal. Barrow & Grimm, P.C. announces that Best Lawyers® has named Robert B. Sartin as the 2017 “Lawyer of the Year” in Tulsa in the legal practice specialty of Health Care Law. Only a single lawyer in each specialty in each market is honored as “Lawyer of the Year.” The Firm is also pleased to announce the addition of two new associate attorneys. John S. Wolfe will 28 Tulsa Lawyer
have a transactional practice focused on tax planning and will advise businesses and individuals on a variety of tax matters including business transactions and estate planning. Mr. Wolfe graduated from the University of Oklahoma College of Law in 2014. While in law school, he served as a note editor of the American Indian Law Review. Upon law graduating from law school, he earned a master’s degree in tax law from Northwestern University in 2015. Prior to joining Barrow & Grimm, Mr. Wolfe practiced in the areas of state and local taxation and mergers and acquisitions at a Big Four accounting firm. Sheridan R. Lindley will have a civil litigation practice involving the resolution of a broad range of complex commercial and business disputes in both state and federal courts and in arbitration proceedings. Ms. Lindley graduated with honors from the University of Oklahoma College of Law in 2016. While in law school, she was a member of the Phi Alpha Delta Law Fraternity and the Phi Delta Phi Legal Honor Society. She was the recipient of the T. Ray Phillips III Memorial Scholarship, the Richard R. Downer Memorial Scholarship, and the Academic Achievement Award for the Spring 2016 Evidence course. Melissa F. Cornell of Cornell Law Firm is pleased to announce that she was recently named a Super Lawyer® by the Thomson Reuters lawyer rating service. Prior to being named to this list, from 2008-2014, Melissa was selected to the Rising Stars list. These two lists are comprised of attorneys who pass a patented multiphase process that includes nominations, an independent research evaluation of candidates and peer reviews by practice area. The lawyers named to this list have also attained a high degree of peer recognition and professional achievement. In addition, Melissa recently spoke at the NBI program titled, “Advanced Issues in Family and Divorce
Law.” This was a two-day practical course on a wide variety of family law issues. Melissa’s presentation was titled, “View of Thorny Custody Issues” wherein she addressed such issues as determining custody factors, creative custody arrangements, orders of protection and how they relate to custody, child testimony and relocation. Melissa focuses her practice solely on familylaw issues such as divorce, prenuptial agreements, custody issues, child support, adoption, appeals, and modifications. She also provides lower cost mediation services for attorneys and their clients and is frequently appointed as Guardian ad Litem in cases. She may be contacted at Cornell Law Firm. www.clftulsa.com, (918) 574-8901 or e-mail email@example.com. Cornell Law Firm is located at 2504 E. 21st Street, Suite A, Tulsa, Oklahoma.
Crowe & Dunlevy recently announced the addition of three attorneys to provide enhanced service and experience to its clients. Joshua D. Burns and Gregory S. Luster are in the firm’s Oklahoma City office, and Shawn M. Dellegar’s office is in Tulsa. With nearly a decade of experience in complex commercial litigation, Burns is a member of the firm’s Banking & Financial Institutions, Bankruptcy & Creditor’s Rights, Energy, Environment & Natural Resources, Healthcare and Litigation & Trial Practice Groups. Burns graduated cum laude from the University of Michigan Law School after earning a Bachelor of Arts in psychology from Yale University. He is an active member of the Energy Bar Association and volunteers
TCBA DECEMBER 2016 CLE SCHEDULE
Tulsa Lawyer 29
for the National Immigrant Justice Center. Dellegar serves in the firm’s Intellectual Property Practice Group. Throughout the last decade, he has advised companies on complex intellectual property matters, including patents, trademarks, copyrights, global intellectual property strategies, portfolio management and more. Before becoming an attorney, he worked for an oil and gas publishing company and a global technology support company. Dellegar offers clients a unique perspective, stemming from his scientific research and technology backgrounds. Dellegar graduated with degrees in management information systems and chemistry from the University of Tulsa. He also graduated from the University of Tulsa College of Law, where he continues to serve on the alumni board and mentors students. He is an active member of and serves on the board of directors for the Intellectual Property Law Section of the Oklahoma Bar Association. Luster is a member of the firm’s Corporate & Securities and Energy, Environment & Natural Resources Practice Groups. His practice includes mergers and acquisitions, real estate transactions, aircraft transactions, securities, oil and gas issues, environmental matters and more. Luster graduated from the University of Oklahoma College of Law with distinction after obtaining a bachelor’s degree in political science from Oklahoma State University.
College of Law. In addition to earning her J.D., with honors, Carr also graduated summa cum laude from Oral Roberts University with a bachelor’s in International Business and Spanish. Ruth “Ruthie” E. Stevens joins Hall Estill’s Tulsa office, where she will primarily practice in the firm’s Corporate/Commercial law practice area. Stevens graduated from University of Oklahoma College of Law, with highest honors, in 2016 and also graduated summa cum laude in 2013 from the University of Oklahoma with her bachelor’s in Political Science. While in law school, Stevens was named the Ruby Vale Corporate Law Moot Court National Champion in 2015 and served as assistant articles editor for the Oklahoma Law Review. Carson K. Glass, who will practice in the litigation area, joined Hall Estill’s Tulsa office after graduating from the University of Texas School of Law in 2016. While in law school she served as Symposium Associate for the Texas Journal of Oil, Gas & Energy. Glass also graduated magna cum laude from University of South Carolina with a bachelor’s in Finance and International Business. Lindsay N. Kistler, who will be working on Hall Estill’s Oklahoma City litigation team, graduated from the University of Oklahoma College of Law in 2016, with honors. While in law school, she served as Editor-in-Chief for the Oklahoma Law Review and received the Outstanding 3L Award from Hall Estill announces the addition of Cassia the Oklahoma Bar Association. Kistler C. Carr, Ruth E. Stevens and Carson K. Glass as as- received her bachelor’s in Political Science from the Unisociates to the firm’s Tulsa office, as well as Lindsay N. versity of Oklahoma in 2012. Kistler to the firm’s Oklahoma City office. “We are very pleased with our recent associate Please join event chair, Fred Dorwart of hires,” said Mike Cooke, managing partner for Hall Frederic Dorwart Lawyers, on Tuesday, December 13, Estill. “Cassia, Ruth, Carson and Lindsay each come 2016 from 7:30 – 9:00 a.m. at the Summit Club for City from very different backgrounds, yet Year Tulsa’s Inaugural Legal Community Breakfast the common thread is their remarkable event.Our goal is to provide attendees with information talent as young attorneys.” about the drop-out challenges facing our community. Cassia C. Carr will serve as part You will hear from a powerful, impactful AmeriCorps of Hall Estill’s litigation practice in its member who is currently serving in one of Tulsa’s pubTulsa office. Prior to joining Hall Estill, lic schools.There is no cost for individuals to attend and Carr served as editor of the Tulsa Law breakfast is included.For more information, please conReview and president of the Women’s tact City Year Development Director, Sharon Catalano Law Caucus at the University of Tulsa at 918-986-1944 or firstname.lastname@example.org. 30 Tulsa Lawyer
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Tulsa County Bar Association 1446 S. Boston Ave. Tulsa, OK 74119
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