spring 2015 - Williams Kastner

SPRING 2015

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contents Spring 2015

C O V ER STORY 20

Internet Background Checks: Is It Worth the Risk?

By Sharon Peters and Emma Pelkey

Technology and social media has changed the way employers screen job applicants. But, beware! This article shares some invaluable information about significant risks that employers need to understand before they turn on their computer and pick up their mouse. F E ATURES

20 O ut and About

18

Five Ways to Plug Those Pesky Time Leaks 12 in Your Day 14

16

The Wellness Imperative: Boost Your Metabolism!

By Bethanne Kronick

Meet Your 2015-2016 Board! Managing Partner Event

This piece is a teaser for our Spring Social speaker! Bethanne Kronick helps us examine the time wasters unwittingly devour chunks of our day and render us less effective. A little conscious thought will help us be more productive and focused on those things most important to us.

18

By Dr. Lindsey Nelson

This article launches a series of columns from Dr. Nelson about fitness, eating right and what you can do to be healthier. Since metabolism is the engine that runs the machine, this piece provides a great place to start.

16 SPRING 2015

D E PA RT M E N T S 5 6 8 10 27 34

President’s Message Editor’s Notebook Member Spotlight Business Partner Spotlight Section Meetings Calendar

LEGAL MANAGEMENT NEWS 3

Vol. 12, No.41 • SPRING 2105 Post Office Box 40669 • Portland, Oregon 97240 www.oregonala.org Editor Sheila Benson, Kell, Alterman & Runstein, LLP, 503-222-3531 • [email protected] BOARD OF DIRECTORS SECTION CO-CHAIRS PRESIDENT FINANCIAL MANAGEMENT

Gloria Martin – Cosgrave Vergeer Kester LLP Brenda Obern – Sussman Shank LLP 503-323-9000 • [email protected] Anita Swartout – Miller Nash LLP PRESIDENT-ELECT HUMAN RESOURCES

Kathee Nelson – Williams Kastner Jennifer Blakeley – Miller Nash LLP 503-228-7967 • [email protected] SYSTEMS/TECHNOLOGY SECRETARY

Deb Irinaga – Radler White Parks & Alexander Claudia Horner – Gleaves Swearingen Potter & Scott LLP Andrew Self – Cable Huston 541-686-8833 • [email protected] TREASURER

Brenda Obern – Sussman Shank LLP 503-243-1636 • [email protected]

Sustainability

Kyle Sele – K&L Gates

EDUCATION DIRECTOR

Denise Doherty – Cosgrave Vergeer Kester, LLP 2014-15 Region 5 Leadership Team 503-323-9000 • [email protected] REGION 5 DIRECTOR April Campbell MEMBERSHIP DIRECTOR 206-359-3766 • [email protected] Julie Taylor – Harrang Long Gary Rudnick P.C. 541-485-0220 • [email protected] Regional Representatives: Claudia Horner RESOURCE SERVICES DIRECTOR 541-686-8833 • [email protected] Elise Brickner-Schulz – Miller Nash Graham & Dunn LLP 503-224-5858 • [email protected] Lori Hughes Legal Management News Director 503-205-2310 • [email protected] Virginia Zingg – Farleigh Wada Witt 503-228-6044 • [email protected] Laura McCambley 403-232-1765 • [email protected] Communications Director

Shannon Silveira – K&L Gates LLP At-Large Director 503-226-5760 • [email protected] Katie Bryant, CLM 480-461-5345 • [email protected] Business Partner Director

Matthew Masini – Rizzo Mattingly Bosworth 503-935-5080 • [email protected] Webmaster

Ed Cunningham – Samuels Yoelin Kantor, LLP 503-226-2966 • [email protected] Past President

Joanne Austin – Gordon & Rees LLP 503-382-3874 • [email protected]

PUBLICATION CONSULTANT

Kim McLaughlin Designs 503-659-5959 • [email protected] Legal Management News is published quarterly by the Association of Legal Administrators — Oregon Chapter, Post Office Box 40669, Portland, Oregon 97240. All statements of opinion and of supposed fact are published on the authority of the writer under whose name they appear and are not to be construed as the views of ALA — Oregon Chapter, ALA, or its members. The acceptance of advertising for publication in Legal Management News should not be construed as endorsement by ALA — Oregon Chapter of the advertiser or of the product or service being advertised. The magazine is circulated to chapter members, magazine subscribers, ALA national and regional officers, regional chapter presidents, newsletter editors of other chapters, and Oregon lawyers who have subscribed. Subscription to Legal Management News is a benefit of membership in ALA — Oregon Chapter. The annual subscription rate for nonmembers is $50. The magazine welcomes articles, letters, suggestions, and comments. Reprint requests should be directed to the editor. Companies interested in advertising should contact the sponsorship director. No part of this publication may be reproduced, reprinted, stored in a retrieval system, or transmitted in any form or by any means—electronic, mechanical, photocopying, recording, or otherwise—without the prior written permission of the editor and the author. 4 LEGAL MANAGEMENT NEWS

4 LEGAL MANAGEMENT NEWS

SPRING 2015

President’s Message

Joanne Austin

It’s About Time

M

ilestone events have a way of inviting introspection. As I settle in to write my last “presidential message,” I can’t help but think about the kaleidoscope of events that have marked the past few months of my life and try to put them into some sort of perspective. So I’m going to begin by asking your pre-emptive

love, and want to savor and prolong a particular experience, time seems to pass way too quickly. But if we are doing something we dread doing, time seems to last an eternity! There’s no way to win this battle. During these drives, I often listen to my iTunes playlists and have been struck (often humorously) by how many songs are about time. I’d Is time really on our side? venture to say that next to songs I think the answer is yes... about love, songs about time come in a close second. We sing forgiveness, because I may well venture about it quizzically (“Does Anybody into what might be viewed as selfReally Know What Time It Is?”), indulgent philosophizing. about its repetition (“Time After During the past few months as Time”), about its urgency (“Time Has I’ve struggled to acclimate to a new Come Today”), about preserving it job at a new firm, I’ve also been trying (“Time in a Bottle”), about the desire to balance a personal struggle that I for a re-do (“If I Could Turn Back suspect many of you have experienced Time”), and about whether the passage or are perhaps currently experiencing of time is in our favor (“Time Is On -- the care of an aging, ailing parOur Side”-- one of my favorite Stones ent. During weekends when I haven’t tunes). been working, I have often made the six-hour round-trip drive to Redmond, where my mother lived. It’s a drive I enjoy, marked by stunningly beautiful changes in landscape. During these long drives, I have thought a lot about time -- our perception of and relationship to it, how we measure it, spend it, waste it, long for it, regret it and (foolishly) attempt to control it. Sometimes we think there’s never enough of it, that things are ‘taking forever,” and at other times, it is completely ephemeral -- gone in an instant. Yet time is a constant, measurable quantity -- every second is the same, every minute takes sixty seconds, and every hour consists of the same number of minutes. What changes is only our perception of time. If we are doing something we really

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I wonder if our fascination with time is really about the recognition (and perhaps fear) of our own mortality. When we measure the length of our time in this life on earth, it often seems fleeting. Is time really on our side? I think the answer is yes -- but only if we resist the urge to get too far ahead of ourselves and stay present in each moment. (I know, I know, this is a lovely concept, and much harder to actually practice successfully!) But when I remember this practice, it truly does change my perception of time and I am not worried (OK, less worried) about what comes next. The truth is, no matter what our respective fates have in store for us, we likely will want more time. How will you spend it? Ten days ago (as I write this), my mother died. She ran out of time. It was her time to go. It was my privilege to be there with two of my sisters when she drew her last breath. It was heartbreakingly lovely and sad at the same time. I won’t need to be making that drive nearly as often now. In my mother’s last couple of months, her dementia progressed rapidly. Time was of no consequence to her. Her perception was similar to that of a small child’s -- everything in the future was described as happening “tomorrow” and everything in the past happened “yesterday.” Now, my time with her in my life will consist of memories. It is OK; that is as it should be. But I’m still left thinking a lot about time. I hope I will use it well. I hope the LMN same for you too. Joanne Austin is Office Administrator at Gordon & Rees LLP. She can be reached at 503 382-3874 or [email protected].


Editor’s Notebook

Sheila Benson

Taking Stock of 2014

T

his is my final issue as editor of Legal Management News! It has been a privilege to serve the Oregon Chapter as LMN editor for these past two years. Not surprisingly, this role has provided me with many opportunities to learn and grow as a professional. I owe a debt of thanks to many people that help each issue come to life. Legal Management News authors come from many different industries

that serve legal professionals. From IT to firm management, they continually provide valuable and timely information to members to help them stay abreast of current trends and issues. Our authors tell me time and time again how much they enjoy writing articles and working with legal administrators. I know the feeling is reciprocated by our members. Another big shout-out goes to our business partners! Without their

Those of you that have taken the opportunity to write for LMN know the thrill of being a “published author.” Those of you that haven’t…. please step right up.

support our Chapter would not be the vibrant organization that it is today. As I’m sure you’ve noted, each issue supplies a business partner spotlight that focuses not just on the products and services that the business partner offers, but on the person that provides them. The business partner spotlight feature really helps us to get to know the person behind the product or service. They are a great group of people that help both us and our firms. Many thanks also go to the LMN Advisory Board. This fine group of members works to select topics and bring you a host of great articles each month. When you see Lori Hughes, Virginia Zingg, Matthew Masini, Doug Swayne, Ashley Whittaker, Bob Caldwell, Denise Doherty, Gloria Martin, Ed Cunningham or Kathee Nelson at the next ALA luncheon be sure to give them a pat on the back for all of their efforts in bringing you a great publication! And finally…thanks to you! Your feedback and suggestions keep LMN a current and vital newsletter. Those of you that have taken the opportunity to write for LMN know the thrill of being a “published author”. Those of you that haven’t….please step right up. It is a lot of fun to contribute! Beginning with the summer issue, Virginia Zingg will assume the role of editor. She is a seasoned ALA member and big contributor to our local Chapter. Virginia is an idea person, so look forward to some great issues in the coming months from your new LMN editor! LMN Sheila Benson is Director of Administration at Kell, Alterman & Runstein, L.L.P. She can be reached at 503 248-1879 or newsletter@ oregonala.org.


SPRING 2015

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Member Spotlight In each issue of this publication, we introduce a member of our chapter and give them the “spotlight.” Take a moment to get aquainted with other ALA - Oregon Chapter members– learning how they joined the ranks of law firm administration, what their passion is, and where they see themselves in the future. If you would like to nominate a chapter member to be included in an upcoming Member Spotlight, contact Ashley Whittaker at communications@ oregonala.org for more information.


Like least about the job: Terminating employees.

Julie M. Albright

Firm Administrator Thenell Law Group, P.C.

My position entails: I am the Firm Administrator for a small, but rapidly growing law firm in Portland, Oregon, that specializes in first and third party insurance defense, as well as representation of public servants. We established our firm three years ago and recently opened a branch in Seattle, Washington. I am responsible for employee relations, acquiring new talent, negotiating with vendors, invoicing, and managing the office. My business philosophy: To encourage growth, personal responsibility, and ownership. A law firm cannot be effective without every member taking ownership of their tasks and seeing those tasks through to completion.

The best professional advice I have received is: Show up, every day, and give it your best effort. If you do this every working day of your career, you will advance and new opportunities will be presented to you. I started out as a legal secretary 25 years ago and never dreamed I would be in the challenging position I am in today. The most interesting job I have had (other than my current one) was: Managing a bookstore in Houston, Texas. If I weren’t doing this, I would love to: Travel the world. In my spare time: Read, walk, cook, enjoy films, try new restaurants, camp, and travel. Activities (other than work) that I’m involved with: Writing online reviews for restaurants and hotels, coin collecting, and involvement in our neighborhood homeowners’ associations. My plans for the next 10 years: Ticking items off my long bucket list, travelling, excelling in my field, and continuing to grow our firm, of which I am very proud. LMN

My professional goal(s): To grow my professional network, to continue to expand the firm, and earn my CLM certification. Like best about the job: The day-today challenges that force me to learn something new every day.

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SPRING 2015


Business Partner Spotlight The Oregon Chapter of the Association of Legal Administrators is made up of an exemplary cadre of members. The Chapter itself offers a myriad of programs to enhance our members’ knowledge of legal administration and to allow members to network and build lasting business and personal relationships. The offerings provided by the Chapter are supported, in part, by your membership dues, but our largest support comes from Randy Wood the business partners Vice President of Sales who participate each Solutions YES year in our Sponsorship Solutions YES was formed in March Program.

2011 and opened its doors for business three months later in June. I joined the company in December 2011 to head up the sales team. My wife, Barbara and I have been married for 29 year’s, we have 2 daughters and a son. We enjoy our free time together on the Oregon coast, planning trips in our RV and


traveling. I enjoy golfing, a variety of different sports, reading and fishing. I have over 30 years of experience in the copier industry in the greater Portland area, working with legal accounts, major accounts, government agencies and smaller privately owned companies My fellow partners at Solutions YES bring over 100 years of business and industry experience to our company. While Solutions YES may be a new company, it is comprised of many quality individuals with extensive industry experience. SPRING 2015

We are a local company based in the Portland area, meaning all decisions are made locally. This provides great flexibility to create customized solutions to meet our customers’ unique needs. We feel strongly about identifying reciprocal business relationships which presents opportunities for all of us to contribute and support the local business environment. As we approach four years of serving customers from Seattle to Southern Oregon and from Central Oregon to the coast, we have nearly 1,000 customers and 30 employees.

we maintain a culture that’s fully committed to exceptional customer service. Following our third fiscal year in 2013, we were recognized by the Portland Business Journal as the 4th fastest growing private company in Oregon. Our growth continued to skyrocket during 2014 as we became more recognizable in the marketplace and numerous satisfied customers passed on wonderful referral opportunities. While we’ve entered into business relationships with several legal

The legal environment requires greater sophistication than merely copying or printing In our first year of eligibility in 2013, we were very pleased to be named one of the 100 Best Companies to Work For in Oregon. In late 2014, we learned we were honored with this distinction again. It is paramount to Solutions YES that

ships and to introduce the exceptional Solutions YES experience to many firms that are presently unaware of our service level and capabilities. The legal environment requires greater sophistication than merely copying or printing, so we’ve partnered with companies like Copitrak, Drivve and PaperCut to ensure we address workflow solutions that bring time and cost savings to the legal marketplace. LMN Randy Wood of Solutions Yes can be reached at (503) 597-0937 or randy.wood@solutionsyes. com.

firms of our own accord, we felt it was important to explore other avenues to expand our ability to serve this vital segment. So we joined ALA nearly two years ago. I am representing Solutions YES and have already participated in numerous ALA activities. It is my goal to form lasting relation-

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Meet your 2015-2016 ALA—Oregon Chapter

Gloria Martin

Kathee Nelson

Brenda Obern

President

President-Elect

Treasurer

Position/Firm: Director of Human Resources – Cosgrave Vergeer Kester LLP Years in legal industry: 10 Years in ALA: 8 Previous jobs: Payroll & Benefits Manager, Catlin Gabel School; Self-Employed Business Consultant; Controller, Kerrits Activewear. Favorite quotation: : “Choose to be optimistic. It feels better.” – Dalai Lama

Position/Firm: Office Administrator – Williams Kastner Years in legal industry: 30+ Years in ALA: 8 Previous jobs: Legal Assistant, Paralegal, Office Manager, Collection Specialist Favorite quotation: “Worry does not empty tomorrow of its sorrow; it empties today of its strength.” – Corrie Ten Boom

Position/Firm: Accounting Manager, Sussman Shankr Years in legal industry: 27 Years in ALA: 12 Previous jobs: Controller, Office Manager, law firm Collections Manager; and a few side jobs, model, modeling instructor, swim instructor. Favorite quotation: “Self confidence is the most attractive quality a person can have. How can anyone see how awesome you are if you can’t see it yourself?”– By Unknown

Denise Doherty

Julie Taylor

Education Director Position/Firm: Executive Director, Cosgrave Vergeer Kester, LLP Years in legal industry: 15 Years in ALA: 12 Previous jobs: CFO at regional home furnishings chain; Project Officer, regional multi-family home developer Favorite quotation:: “Clean out a corner of your mind and creativity will instantly fill it.” – Dee Hock


Virginia Zingg, CLM

Membership Director

Legal Management News Editor

Position/Firm: Eugene Office & Benefits Manager – Harrang Long Gary Rudnick P.C. Years in legal industry: 28 Years in ALA: 3 Previous jobs: Legal Secretary/Assistant, Help Desk/Trainer, Research Analyst, Bookkeeper Favorite quotation:“All our dreams can come true, if we have the courage to pursue them.” - Walt Disney

Position/Firm: Human Resources Manager, Farleigh Wada Witt Years in legal industry: 12 Years in ALA: 8 Previous jobs: Director of Secretarial Services, Schwabe Williamson & Wyatt; Operations Manager, Sedgwick Claims Management Services Favorite quotation: “ “Unless someone like you cares a whole awful lot, nothing is going to get better. It’s not. – Dr. Seuss

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Officers and Board of Directors

Shannon Silveira Communications Director Position/Firm: Administrative Manager, K&L Gates LLP Years in legal industry: 9 Years in ALA: 1 Previous jobs: Before legal, I worked in finance for a company that managed jingle singers Favorite quotation: “In the middle of difficulty lies opportunity” – Albert Einstein

Elise Brickner-Schulz Resource Services Director Position/Firm: Director of Legal Support Services, Miller Nash Graham & Dunn, LLP Years in legal industry: 28 Years in ALA: 2 Previous jobs: Social worker Favorite quotation: “Imagination is more important than knowledge. For knowledge is limited to all we now know and understand, while imagination embraces the entire world, and all there ever will be to know and understand.” – Albert Einstein

Claudia Horner Secretary

Ed Cunningham

Position/Firm: Director of Administration - Gleaves Swearingen LLP Years in legal industry: 31 Years in ALA: 24 Previous jobs: Elementary school teacher Favorite quotation: “Try not to become a man of success but rather try to become a man of value.” – Albert Einstein

Position/Firm: Executive Director, Samuels Yoelin Kantor LLP Years in legal industry: 21 Years in ALA: 19 Previous jobs: IT Manager, Customer Service Rep, Technical Support Rep, Quality Assurance Technician Favorite quotation: “Don’t aim for success if you want it; just do what you love and believe in, and it will come naturally.” – David Frost

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Webmaster

Matthew Masini Sponsorship Director Position/Firm: Executive Director, Rizzo Mattingly Bosworth, PC Years in legal industry: 11 Years in ALA: 7 Previous jobs: Radio DJ, Emergency Food Pantry Manager, Legal Assistant, Chief of Administrative Services Favorite quotation: “Life is what happens to you when you’re busy making other plans.” – John Lennon

Joanne Austin Past President Position/Firm: Office Administrator, Gordon & Rees, LLP Years in legal industry: 32 Years in ALA: 18 Previous jobs: Director of Paralegal Programs; Paralegal Manager; Paralegal Favorite quotation: “A bird doesn’t sing because it has an answer, it sings because it has a song.” – Maya Angelou


I

s leadership learned or inherent? Is it a science or an art? These questions and many more were addressed at the entertaining and informative annual Managing Partner event on February 12th. Our speaker, Vanessa Van Edwards, is a known expert in the area of behavioral investigation and a published author on the topic. Her talk explored the fundamentals of how a leader thinks, how to make a powerful first impression and the science of influence when networking, in client meetings, marketing or in the courtroom. In short, there was something for everyone to glean about how their behavior affects and influences others. The elegant Arlington Club in downtown Portland provided cocktails and hors d’oeuvres to fuel the networking and lively conversation stimulated by the presentation. It was an opportunity for managing partners, business partners and administrators to mingle and practice the techniques presented. Another great event brought to the Chapter with the help of our wonderful business partners and Chapter leadership team! LMN


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SPRING 2015


By Dr. Lindsey Nelson In an effort to consider all aspects of work/life balance, the Oregon Chapter is proud to introduce a new feature column about physical and mental wellness. We start with some good advice about how to boost your metabolism.


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Boost Your Metabolism Even the best diet and exercise plan can get stalled. If you’ve reached a plateau, here are a few ideas to boost your metabolism:

1: 2:

Incorporate light weights into your routine two times per week to help burn calories throughout the day.

Add quick burst of exercise or interval training to shake up your metabolism. If you really want a sweat drenching workout try an interval training class.

3:

Consider fish oil supplements. They help balance blood sugar, reduce inflammation, and are purported to regulate leptin (satiety hormone).

4:

Cut out evening snacks. This will increase your chances for a good night’s sleep and help regulate leptin levels.

5:

Enjoy tea time. Green tea increases thermogenesis, which is the body’s process of creating heat and burning calories.

6:

Don’t skip meals. Studies show that eating healthy small snacks/meals every two hours balances blood sugar. Balanced blood sugar prevents insulin spikes which can cause weight gain. Eating too few calories slows down metabolism since the body, unsure of when it is going to get its next meal, goes into storage mode in order to conserve energy.

7:

Make sure your small snacks/meals include a healthy protein. Protein takes longer to digest, making you feel fuller and keeping your blood sugar balanced.

8:

Avoid processed foods, which are high in sugar and trans-fats. They can affect insulin production causing slower metabolism and weight gain.

9: 10:

Water, water, water. Dehydration slows down all body functions, especially metabolism.

Fiber, fiber, fiber. It gives you a feeling of fullness and uses more energy to digest, Fiber also keeps you regular, but that is another column.

11:

Add ginger and peppers (sweet or spicy) to your diet. They add flavor to your food and are also considered thermogenic. Live well, Dr. Lindsey Nelson.

LMN

Dr. Lindsey Nelson graduated magna cum laude from the University of Oregon with degrees in Exercise and Movement Science and Biology. Her post graduate doctoral degree is from the National College of Naturopathic Medicine. For over 15 years, Dr. Nelson has been providing guidance and advice to her patients on issues like hormone balance and nutritional, sleep and energy support. She is currently on staff at the Multnomah Athletic Club. She can be reached at [email protected] or 503.517.2341. www.drlindseynelson.com

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By Bethanne Kronick Like an open window in winter can suck the warm air out of your home, time leaks in our routines can sabotage productivity efforts at work. Here are a few common ones and some strategies to replace them with positive alternatives.

Time Leak #1 - Social Media & The Internet. The internet is a wonderful glorious thing, kind of like mint chocolate chip ice cream. But we all know, too much of a good thing and suddenly, it can become very bad for us. Time spent on surfing the web or on social media sites can be major time leaks in our day that keep us from important projects. If you struggle in this area, try setting some boundaries by limiting yourself to checking social media and email three times per day or use a timer to keep track of time you are spending on non-work related sites. Struggling with your will power to truly unplug? Try the program Freedom that allows you to disconnect from the internet for set periods of time (http://macfreedom.com/ - program works on Macs and PCs). While you’re offline, keep your focus by making a list as you think of tasks you need to do online when your “unplugged” time is finished. Time Leak #2 - Multitasking. Once celebrated as a necessary skill, modern science has demonstrated that our accuracy and efficiency truly suffer when we try to multitask. The same two projects that would have taken 30 minutes had we done them one at a time, might end up taking up to twice as long when we are trying to do them at once. Add up those minutes over the span of a month and you can lose a significant amount of time if you don’t address this leak. Take steps to intentionally work on one project or task at a time. Time Leak #3 - Interruptions. Many of us work in busy environments and a significant challenge can be the interruptions from co-workers, clients and vendors who need attention (either in person, on the phone or through email). To ensure you can plug the time leaks that come from a busy environment, use strategies like turning off your email notifiers, shutting your door, forwarding calls to voicemail and blocking your schedule for priority projects. SPRING 2015

Time Leak #4 - Poor Planning. Not having a plan for the day means you’ll likely spend more time reacting and less time being intentional about where you are investing your efforts. This can be a major source of time leaking out of your schedule. Suddenly, it’s the end of the day and you wonder where it went! Invest a few minutes at the end of each day creating a plan for the next day. What are the three “must do” activities or projects that are the highest priority for your attention? Place the list (digital or paper) where you will see it first thing the next day. Time Leak #5 - Extended Socializing at Work. People are important and building relationships with our co-workers is vital to having a positive work environment. However, the time we spend catching up on our favorite reality TV shows in the hallway can really add up. Watch out for time leaks in some of your extended, non-work related conversations. Instead, consider taking a walk with a coworker at lunch or meeting at the gym after work to catch up on families and favorite past times so you can focus on work projects during work hours. You wouldn’t want to invest your resources trying to air condition the outside of your house on a hot day. (Imagine that bill!) Making sure you are plugging your time leaks will ensure you have the time resources left to invest in the things that are important to you. Please mark your calendars to attend Bethanne’s presentation at the Spring Social on April 30th at the RiverPlace Hotel. See www.oregonala.org for details. Bethanne Kronick is passionate about helping people find productivity, balance and well-being in the workplace and life. Learn more about her company SIMPLIFY! at www.simplifynw.com. LEGAL MANAGEMENT NEWS 19

By Sharon Peters and Emma Pelkey


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The Internet has changed how employers evaluate applicants. Traditionally employers screened applicants by finding typos on resumes; today, employers can screen applicants by using Google, Facebook, Twitter, LinkedIn, and other social media sites and search engines. A 2010 study by Microsoft Corporation revealed that nearly 80 percent of employers hiring and recruiting used the Internet to screen applicants. The same study found that 70 percent of employers rejected applicants based on information obtained from the Internet. This article focuses on three types of background checks – background checks performed by a consumer reporting agency, formal background checks performed by an employer, and basic trolling of the web. This article will explore why employers conduct background searches, explain the federal and state laws regulating background searches, and evaluate whether employers should screen applicants online and if so, whether employers should use that information in making hiring decisions. Why Conduct Background Searches? A major reason employers conduct background searches is to prevent exposure to negligent hiring claims for failing to investigate candidates. Other reasons include employers’ concerns about workplace violence and theft. As a practical matter, employers also want to ensure that applicants will be a good fit and avoid the added expense and time of finding a replacement. Opponents argue that when employers use background searches, they can end up making rash decisions based on assumptions, often resulting in discrimination against minorities. This creates a cycle of unemployment with no escape. Opponents also argue that data collected can be unreliable either because it is inaccurate, old, taken out of context, or just a small piece of the applicant’s story. Is Screening Applicants Online Worth the Risk? The Internet provides employers a quick, convenient, and free way to find out what applicants left off their resumes. Information previously unobtainable is just a few clicks away. However, employers should proceed with caution. There are significant risks that employers need to understand before they snoop on applicants. 1. Discrimination Claims One of the most significant risks that employers face when searching applicants online is exposure to discrimination claims for violating federal and state laws. At the federal level, Title VII prohibits employers from SPRING 2015

discriminating against applicants by refusing to hire them “because of” a protected class, including race, color, religion, sex, or national origin. In the context of an Internet search, a review of social media is risky because it often provides protected class information, which employers are not legally allowed to consider when hiring. To illustrate, consider Facebook. An employer could inadvertently discover an applicant was a member of a protected class by viewing the “About” section. This section provides personal information regarding gender, relationship status (whether they are interested in men, women, or both), religion, political beliefs, place of birth, and languages spoken. An employer also could discover protected class information by reviewing the applicant’s pictures, events the applicant attends, whether the applicant likes certain books or movies, the applicant’s status updates, or postings by the applicant or the applicant’s friends or family. If an employer subsequently decides not to hire the applicant, the employer risks discrimination claims. Employers also risk claims for disability discrimination under the Americans with Disabilities Act (ADA) and age discrimination under the Age Discrimination in Employment Act (ADEA). For example, an employer might view an applicant’s Twitter posts and discover the applicant suffers from a serious disease. If the employer decided not to hire the applicant, based on a fear that the disease might impact the applicant’s productivity, this would violate the ADA. Even if the information was not used to make the hiring decision, the fact that the employer accessed the information could infer an improper motive. Additionally, employers risk discrimination claims under Oregon state laws. Oregon prohibits employment discrimination on the same basis as Title VII, the ADA, and the ADEA, plus discrimination based on marital status, genetic information, expunged juvenile record, age over 18, and use of the workers’ compensation system. 2. Privacy Claims Privacy claims present another risk for employers. This is LEGAL MANAGEMENT NEWS 21

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a weaker argument given that most information online is publicly available, which destroys any legitimate reasonable expectation of privacy. Also, many social media accounts now give applicants the option to make their social media accounts private. However, some employers have begun asking applicants for their usernames and passwords to access private social media accounts, leading many to ask is this legal? At the federal level, there is no clear answer. The practice potentially violates computer protection statutes like the Stored Communication Act (SCA) and the Computer Fraud and Abuse Act (CFAA). The SCA prohibits intentional access to electronic information or intentionally exceeding authorization. The CFAA prohibits intentional access to a computer without authorization to obtain information. Oregon has banned the practice. Under Oregon law, it is unlawful for an employer to: (1) require or request an applicant to disclose their password to a social media account; (2) compel an applicant to add the employer to a contact list on the account (e.g., adding the employer as a LinkedIn “connection” or a Facebook “friend”); (3) compel an applicant to access their password-protected social media in the presence of an employer; or (4) fail or refuse to hire an applicant based on any of the reasons listed above. 3. Unreliable Another risk for employers is that the Internet is unreliable. Websites may be outdated. Information could be taken out of context. Information could be posted by a third party or a hacker. Information could be untruthful or defamatory. Pictures may be photo-shopped. Bottom line, proceed with caution. 4. Fair Credit Reporting Act When an employer obtains background information about an applicant from an outside third party, known as a “consumer reporting agency,” to make employment related decisions, the employer must comply with the Fair Credit Reporting Act (FCRA). The consumer reporting agency may provide two different reports. A consumer report typically contains a credit report, criminal records, employment history, residential history, educational history, military history, driving records, and some medical records. An investigative consumer report goes a step further and can include interviews of neighbors, family, and former employers. However, if an employer hires a third party to conduct an Internet search of applicants, does the FCRA still apply? The Federal Trade Commission has decided it does. Recently many employers have contracted with third parties like Social Intelligence to provide formal social media background checks. These companies must follow the SPRING 2015

FCRA. For employers who conduct their own searches, there is no requirement to comply; however, all employers should comply to be safe. To comply with the FCRA, an employer must follow four steps: 1. Notice and Disclosure. An employer must obtain the applicant’s written consent and provide a clear and conspicuous notice disclosing that a background report may be requested in making a hiring decision. The notice must be in writing and in a stand-alone format (i.e., it cannot be hidden in an application). The notice can be on the same form as the request for written consent. Employers who use investigative reports have additional obligations. These obligations include providing written notice that an employer may request or has requested an investigative consumer report, and including a statement that the applicant has a right to request additional disclosures and a summary of the scope and substance of the report. 2. Certification of Compliance. Before obtaining a report, the employer must provide a certification of compliance to the consumer reporting agency that states: (1) the purpose and intent of the report, (2) the employer will not use the report for any other purpose, (3) the employer has provided

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notice and disclosure to the applicant, (4) the employer will provide a copy of the summary of consumer rights to the applicant, and (5) the employer will not violate any federal or state law. 3. Pre-Adverse Action Protocol. If an employer intends not hire the applicant based on information in a report, the employer must give the applicant: (1) a notice that includes a copy of the consumer report the employer relied on to make its decision; and (2) a copy of A Summary of Your Rights Under the Fair Credit Reporting Act. Giving the notice in advance gives the applicant an opportunity to review the report and tell employers if it is correct. 4. Adverse Action Protocol. If an employer does not hire an applicant based on information in a report, the employer must give the applicant a notice of that fact – orally, in writing, or electronically. An adverse action notice tells applicants about their rights to see information being reported about them and to correct inaccurate information. The notice must include: (1) the name, address, and phone number of the consumer reporting company that supplied the report; (2) a statement that the company which supplied the report did not make the decision to take the unfavorable action and cannot give specific reasons for it; and (3) a notice of the applicant’s right to dispute the accuracy or completeness of any information the consumer reporting company

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• Focus on relevant job-related skills. The screening should only focus on relevant, job-related skills. Create a list of important characteristics or criteria you are looking for. • Information must be publicly available. You may not ask 5. Oregon’s Job Applicant Fairness Act the applicant for their username or password, or gain access by Employers also risk violating Oregon’s Job Applicant Fairadding the applicant as a contact or faking your identity. ness Act by screening applicants online. Under the Act, • Make sure you have the right applicant. Avoid confusing employers are prohibited from obtaining or using credit an applicant with another person that has the same name. history of applicants in considering whether to hire them. • Keep records. Document everything carefully and mainThere are exceptions, however. Credit checks are permitted for federally insured banks and credit unions, businesses tain records. Print out the social media sites you have reLMN required by law to consider an applicant’s credit history, and viewed. police and other public safety officers. The law also permits credit checks if the applicant’s credit history is “substanSharon Peters is a member in the Portland office of Williams Kastner. Her practice emphasizes employtially job-related.” An applicant’s credit history is substanment litigation, workplace investigations, and employtially job-related when an essential function of the position ment practices advice and consultation. She can be “requires access to financial information not customarily reached at [email protected] or 503-9446913. provided in a retail transaction that is not a loan or extension of credit.” To rely on this exception, an employer must provide an applicant written notice explaining the reason for using credit history information. furnished, and to get an additional free report from the company if the individual asks for it within 60 days.

10 Best Practice Tips Employers must weigh the risks and benefits of whether to screen applicants online. If an employer decides the benefits outweigh the risks, protocols must be implemented. Below are 10 best practice tips. • Follow the FCRA. Be sure to comply with the FCRA if you are using another party to conduct your background investigation. Even if the FCRA does not apply because you are not using a third party, it is a good idea to provide the applicant with notice that publicly available information may be viewed and considered. • Adopt uniform guidelines. Treat all applicants the same by screening them identically. If one applicant is screened, other applicants must be screened to the same extent. If you review one applicant’s Facebook page, do the same for other applicants. • Identify the scope. Determine what information is off limits. Consider only viewing the applicant’s LinkedIn profile to limit exposure to protected activity information that could lead to discrimination claims. • Non-decision maker should do the search. Have someone not making the hiring decision conduct the search. Any references to protected activity should be redacted before the results are given to the decision maker. • Verify harmful information. Not everything on the Internet is reliable or accurate. If you find harmful information, give the applicant an opportunity to explain. • Determine when during the hiring process to search. One approach is to interview before searching to avoid inadvertently asking questions about information obtained online. Another approach is to search after a job offer is extended. This allows you to rely on an applicant’s resume and cover letter as the basis for the hiring decision, and confirm opinions and verify facts later. SPRING 2015

Emma Pelkey is an associate in the Portland office of Williams Kastner. She can be reached at epelkey@ williamskastner.com or 503-944-6947.

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n December I helped out with another great ALA Community Connection event at the Oregon Food Bank. This was my third food bank event with the ALA and I look forward to the next. If you have not attended this event, I highly encourage you to join in for the next one. From the kids to the elders, everyone embraces the moment to help others in our community. As an individual who has just crossed the mid-century line in life, I enjoy the opportunity to see both the excitement of kids helping others and the pleasure of the elders sharing the moment with the kids. Each time I participate, I am amazed at how many meals we can create and how many families we can help with less than two hours of our personal time. The December ALA Community Connection event brought the opportunity to sort onions and potatoes resourced from local farmers in the Pacific Northwest. Our first task was to fill netted bags with 4 to 5 onions and our second task was just as easy—except this time we were working with potatoes. These simple tasks help Oregon Food Bank complete the labor intensive task of food preparation for distribution. After our shift ends it’s off to Kennedy School for pizza and beer, a reward for a job well done and an opportunity to share experiences with newly found friends. The Oregon Food Bank is an amazing place that provides food for a lot of families in need; and the food bank needs the help of organizations, like ALA, to get the job done. Thank you to ALA Oregon Chapter members, business partners and their families and friends who recently joined together at the Oregon Food Bank for a short evening filled with fun and food! Doug Miller Spacesaver Specialists, Inc. 503-924-4109 [email protected]


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Section Meetings

Sustainability Section Meeting

What’s in Your Paper? By Virginia Zingg, CLM, Co-Chair

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he Sustainability Section meeting was held on February 18th at the lovely new offices of K & L Gates. Several firms were in attendance with representatives from the departments that manage supplies and order paper. The presentation was via WebEx, put on by the Law Firm Sustainability Network, followed by a discussion about what various firms are doing as far as using recycled paper products. The name of the presentation was “What’s in Your Paper?” and was presented by the Environmental Paper Network and Forest Ethics. The topic of a global paper

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vision for the paper industry, consumers, retailers, governments, investors and other organizations identified not only being responsible to the environment, but reducing consumption, promoting fair access to paper and doing so with transparency and integrity. Knowing what steps are involved helps make ethical choices in paper purchases. There are various levels in the steps of the “environmental fiber attributes” that are related to the fiber and certification of processing paper. It includes what is in the contents, where it came from, and the process for bleaching. The environmentally superior paper that is labeled


“100%” has a minimum of 50% post-consumer recycled content, if the paper contains virgin tree fiber that is not from controversial sources. The bleaching must be processed free from chlorine. To help make decisions regarding the best paper to use and how to evaluate what that is, they suggested using a paper calculator. This can be found at the website www. environmentalpaper.org. Forest Ethics identifies four ways your firm can participate in the Global Paper Vision. 1. Understand paper buy/usage through an internal audit. 2. Use tools at the website listed above to buy more recycled, alternative fiber, 100% certified paper. 3. Avoid greenwash paper. Know and understand the certifications for paper. Not all certifications are equal. 4. Adopt and implement an environmental leadership policy. The discussion at our meeting that followed the presentation revealed that many firms currently use 100% recycled paper. Firms are also looking at other paper products and considering their recycling properties. It seems that we are all looking for options to help reduce the amount of paper we use and find ways to lessen the environmental impact of our use of so much paper! LMN

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SPRING 2015

Section Meetings

Human Resources Section Meeting

Keeping Up with FMLA (and OFLA/OFMLA) By Marie Porter

T

o keep up with the Federal Family Leave Act (FMLA), we must also consider other leaves employers are subject to. If you have 25 or more employees, the Oregon Family Leave Act (OFLA) and Oregon Military Family Leave Act (OMFLA) apply to you. And if you have 50 or more employees, you are also subject to FMLA. With some notable exceptions, these leave acts entitle employees to 12 weeks off within any one-year period. OFLA provides an additional 12 weeks for any OFLA purpose to women taking pregnancy disability leave. OFLA also provides an additional 12 weeks to parents who have taken 12 weeks of parental leave, if needed to care for a child with a non-serious health condition requiring home care. FMLA states that an employee returning from leave is entitled to his or her former job or an equivalent job. OFLA states that an employee returning from leave is entitled to the former job, or to an available equivalent job if the former job has been eliminated. Employers covered under both OFLA and FMLA must allow an employee to return to the former job, if that job still exists. To qualify for leave benefits under OFLA/ OFMLA, employees must have worked at least 180 calendar days and an average of 25 hours a week (except

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for parental leave, when no weekly average is required). To qualify for leave benefits under FMLA, employees must have worked at least 12 months (not necessarily consecutive), and have worked at least 1,250 hours during the 12-month period immediately preceding the leave. Also, the employer must have 50 employees within a 75-mile radius of the employee’s worksite. So what’s been going on with recent FMLA cases and what does this mean for employers? In Hill v. Walker, an employee took leave 20 days before her 12 months of employment. Because the employee had not yet been employed for 12 months, the leave was not protected under FMLA. In Saulsberry v. Fed. Ex. Corp., an employee took paid time off during the 12 months before the leave. The leave was not FMLA protected as the employee did not work 1,250 hours in the 12 months preceding the leave. As employers, we are not required to provide FMLA leave to employees that have not met the eligibility requirements. The U.S. Supreme Court recently invalidated the Defense of Marriage Act and the FMLA definition of spouse is now based on whether the marriage is legal in the state in which the employee resides. Additionally, the Department of Labor has a proposed rule to define spouse based on where the couple was married. Employees in same sex marriages that reside in Oregon or were married in Oregon are entitled to FMLA leave. In Gienapp v. Harbor LEGAL MANAGEMENT NEWS 29

Crest, the court held that FMLA applied to an employee’s care of grandchildren even though grandchildren are not defined as “immediate family members” under FMLA. In this case, the employee’s daughter was ill and the employee’s care of grandchildren had the effect of also caring for her daughter. In Ballard v. Chi. Park Dist., the court held that an employee who provided regular assistance to her mother for self-care, hygiene, and nutritional needs qualified for FMLA leave to take her mother on a “bucket list” vacation. Employers must be careful in reviewing leave requests and consider underlying factors that may be relevant to FMLA. In favor of employers, in Malloy v. U.S. Postal Service, the court held that an employer has no duty to reinstate an employee after FMLA leave if the employee would have been terminated without taking the leave. And in CarreroOjeda v. Autoridad de Energia Electrica, the court held that an employer may terminate an employee during FMLA leave as long as the reason for termination is unrelated to FMLA leave rights. Employers should document reasons for termination. And how about what’s been going on with recent OFLA cases and their impact to employers? In Baumgarner v. Community Services, Inc., the court’s interpretation of OFLA held that an employee could not recover lost wages under an adverse employment action for any period prior to the adverse action. Employers are only liable for lost wages after the adverse action.

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In Sanders v. Newport, the appellate court overturned the trial court’s decision and held that the employee did not need to prove a lack of reasonable cause for reinstatement, and that the burden of proof rests with the employer to defend its decision by proving a legitimate reason for denying reinstatement. In situations concerning a denial of reinstatement, employers should maintain good records that show reasons for the denial. In Shepard v. City of Portland, the court held that changing an employee’s job responsibilities because an employee took OFLA leave may be an adverse employment action that subjects the employer to liability if the leave was a negative factor in the decision. Employers should not consider an employee’s OFLA leave in adverse employment actions and document reasons for the actions. And lastly, in Titus v. City of Prairie City, the court held that an employer who claimed it was not subject to OFLA requirements due to not having the requisite number of employees was in fact subject to them. The city had volunteer firefighters who were given nominal compensation and the court considered them to be employees. Employers must consider workers who may only be paid nominally as employees under OFLA. In summary, these cases are interesting developments for employers. We must tread lightly when dealing with statutory leaves and consider many factors before, during, and after them. Consistent with human resources best practices, we must be careful in our documentation of leaves and reasons for any adverse employment actions. I hope you will find the information shared in this article to be helpful as you maneuver through today’s fun world of FMLA and OFLA/OMFLA. LMN Marie Porter is am ALA member and formerly at Bullivant Houser Bailey PC, and she can be reached at [email protected].

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This year is like any other, we have plenty of seasoned ALA veterans celebrating anniversaries and new members joining. Don’t forget to welcome new members when you see them at the next ALA event.

New Members Jonathan Walker, IT Manager, Ball Janik, LLP Laurie Suran, Office Manager, Mersereau Shannon, LLP Jack Keller, IT Manager, Landye Bennett Blumstein, LLP

ALA Anniversaries Joan Brambani Ed Cunningham Jacque Curtiss Brenda Obern Anita Swartout

20 years 15 years 5 years 10 years 5 years LEGAL MANAGEMENT NEWS 31

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Special Thanks to our 2015 Business Partners Platinum Sponsor

Copiers Northwest Gold Sponsors

Cushman & Wakefield LexisNexis

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Silver Sponsors

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Bronze Sponsors

ABA Retirement Funds Accesss Archive Systems EC Purchasing GNSA

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Partners and In-Kind Sponsors

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ALA – OREGON CALENDAR OF UPCOMING EVENTS April

May

22

Wednesday

Hunan Lunch

Chapter Networking Event

TBD

30

Thursday 4:30 p.m. to 7:00 p.m.

Spring Social

Live Simply, Simply Live Presentation by Bethanne Kronick

RiverPlace Hotel

17 - 22

Sunday Wednesday

ALA Conference & Expo

Music City Center, Nashville, TN

Please see the ALA –Oregon website for a complete list of upcoming events. http://www.oregonala.org/

Accomplishments & Moves Congratulations to Jenn Blakeley for earning her SHRM-SCP certification! Human resources professionals may obtain the SHRM certification after demonstrating the knowledge and experience of human resources work by successfully participating in the strict evaluation and exam process. Earning the SHRM certificate takes months of in-depth human resources training and studies before testing can be attempted. The certification is maintained by earning CEUs, or “continued educational credits,” throughout the remainder of this certification honor. Way to go, Jenn! More good news from Kyle Sele who recently accepted a position at Dunn Carney as Director of Finance & Systems. Congratulations, Kyle!


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