April Connor

Workday Lawsuit - Impacts coming into view. The Court's Preliminary Ruling includes this ominous legal position: "Workday does qualify as an agent because its tools are alleged to perform a traditional hiring function of rejecting candidates at the screening stage and recommending who to advance to subsequent stages, through the use of artificial intelligence and machine learning." From my layperson's perspective, this is a the key finding thus far in the early stages of this case and requires the attention of every Human Resources and Talent Acquisition department that leverage AI and ML based software tool utilized in their HR tech stacks. Legal outside opinion has been offered by many Law Firms including this powerful read out by the legal minds over at Seyfarth: "In light of the decision and the EEOC’s support of the plaintiff's theory of liability, employers using AI-powered hiring tools should review their processes to ensure they can clearly articulate the role these tools play in their hiring decisions. They should also be prepared to demonstrate that their use of these tools does not result in disparate impacts on protected groups." The net of all this is to to serve notice to all existing and planned implementations of AI-based applications. By including "Employers" in the initial findings, that potentially extends the liability in the case to the Enterprise. That should give pause to every contemplated AI/ML strategy and may even cause the unplugging of some already in place applications. This may be a highly disruptive force at a very critical moment in HR. And should be taken very seriously.

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Chaz Billington did an amazing job breaking down the latest FTC non-compete rule: Key takeaways from his summary: - Non-solicits and non-disclosures are still okay. - Executives can still have non-competes. - Employers must notify employees before enforcing non-competes. - Violations come with civil penalties. - Rule kicks in 120 days after publication. #FTC #noncompete #business #employmentlaw

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This week, the FTC issued a final rule that bans noncompete clauses in employee contracts, including making existing noncompetes unenforceable (with some exceptions for senior execs).* Whether it actually will come to pass is unknown... there is a strong lobby opposing the measure, which means it's likely to be challenged in court. The FTC estimates that new business formation will increase by almost 3% annually from this rule, among other economic benefits. Curious how my fellow small business owners feel about this... thoughts? My two cents... noncompetes with employees without significant compensation and a fair time frame / geographic location limitation are inherently unfair, considering it would prohibit someone from working in their chosen profession. So how do you protect yourself as an employer? Make sure you have STRONG nonsolitication and confidentiality / NDA / trade secret clauses in your employee agreements. It might be a good time to review your standard contract and make sure you're actually protected. Happy to help if you need it. *Note, many states have established caselaw that makes employee noncompetes unenforceable, but this rule would more directly confront the issue. https://lnkd.in/gZKBuWCb

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Lateral partner hiring has changed precipitously since the crazy days of the 2020-2024 market. Now, law firms are much more careful about just who it is that they are inviting into their midst. The whole process takes about 25% longer than in the past and is about 25% more complex and more "intrusive", all in an effort to determine if the partner candidate IS who they say they are and DOES have the client relationships they claim to have, and IS NOT bringing any unwanted baggage with them. Do you blame the firm's for being cautious? The cost of a mistake is HUGE! #lateralpartners #lateralrecruiting

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This week's battle: NDAs. Are they an actual agreement to be negotiated? Or can you just glance at them, sign, and not worry about it? I'm guessing a lot of people are going to chime in with the various template NDAs attempting to become industry standards as they way to thread the needle between these two sides. But in my mind - even those people fall into 2 distinct camps. Those who believe they are a great common starting point and can be customized. And those who believe they are entirely sufficient for almost any context and should not be changed. Or it's not worth the time to negotiate them. All because they subscribe to the theory that spending time on NDAs is a waste of time, because no one gets sued over them. Given that I've had a few Contract Trap posts about NDAs, you can probably guess where I fall. I don't negotiate them to the ends of the earth, but I definitely work to understand the specific information at issue and the likely risks, and try to make changes to mitigate those risks. Where do you come down on this? #NDAs #contracts #inhousecounsel

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Labor & Employment Attorney Network, below are my current & upcoming 2025 opportunities. Reach out to have a confidential chat & learn more- [email protected] #hiring #laborandemployment #amlaw100 #amlaw200 #attorneys #associate #partner #counsel #hybrid #remote

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Want to attract legal talent? Flip the Script. Forget endless interviews. Forget posting job openings listing your requirements and then sitting back and waiting for top talent to respond. You need to be proactive. You need to focus on what's in it for THEM. • What skills will they gain working at your firm? • Who will mentor and guide them? • What high-profile cases will they work on? WHO will they become IF they work for YOU? You need to turn your firm into a talent magnet. When I speak with an attorney, I ask them, who are the 2-3 firms you'd love to work for. Depending on the practice area, the same firms get mentioned again and again. Why? Because they've developed a reputation as being first in class BEFORE they need to attract talent. If you wait until you have an opening, you're too late. 𝗕𝗲 𝗨𝗻𝗰𝗼𝗺𝗺𝗼𝗻ᵀᴹ

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With legal unemployment still at a record low, firms are competing for the same “big fish in a small pond” talent to keep up with clients’ increasingly dynamic demands. In response, many firms are turning to hiring solutions that allow them the flexibility to source the right talent with the right skills at the right time. Win the competition for legal talent with the right partner. Contact us today to get started.  #legalunemployment #legaltalent #LHH #RecruitmentSolutions

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I hope you all had a wonderful and restful weekend. Figured I'd start this week with some interesting market intel on AmLaw 100 profitability: 🔹 Total Gross Revenue of AmLaw 100 firms is $139,720,251,209 (increased by about 9 billion since 2023) 🔹 Highest Grossing Firm-Kirkland & Ellis 🔹 Firms with the highest increase in PEP were Susman Godfrey, Quinn Emmanuel, Norton Rose, Cravath, & Akin 🔹 Total Number of Lawyers at AmLaw 100-115,043 (1.8% increase since 2022) 🔹 Firm with the highest profit margin is Susman Godfrey, funnily enough this firm also has the fewest lawyers. The average lawyers bills about 2018 hours here. 🔹 Firm with the highest compensation for all partners is Wachtell (approx. $8M)+ and lowest is Gordon Rees (approx. $415K). 🔹 Firms with the highest clocked billable hours are DLA (6.3M ), White & Case (4.5M), Greenberg Traurig (4.3M), Hogan Lovells (3.9M), & Holland & Knight (3.2M). 🔹 The lawyer with the most billable hours was at Cozen O'Connor and billed a whopping 3,792 hours! Wow! Follow: Rhea Bagaria, Esq. for everything law, legal trends, recruiting. Let's connect! #RecruitWithRhea

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Back by popular demand, let's revisit Friday's post about what state's laws apply to a remote worker's employment claims. 🔗https://lnkd.in/eNuuAYQR Perhaps you were told that if your business has remote employees in another state, then that state's law would apply to employment claims they may have against the company. It depends. I want to emphasize again that this is not legal advice, and your mileage may vary depending on the state and the facts and circumstances of the claim. However, the "state of employment" test guides this determination regarding NJ discrimination and whistleblower claims. Here are some considerations: 1️⃣ Location of Employment: The primary consideration is where the employee physically works. If the employee works in a state other than New Jersey, that state's law will generally apply. 2️⃣ Employer's Location: While the location of the employer's headquarters is relevant, it is not determinative. The key factor is where the employee performs their job duties. 3️⃣ Employee's Residence: The employee's residence in New Jersey cannot trigger the application of New Jersey laws if the employment is based in another state. 4️⃣ Remote Work: The fact that an employee works remotely from New Jersey does not necessarily make New Jersey the state of employment. Courts look at where the employer is located and where the employee's work is directed. 5️⃣ Nature of the Claims: The specific nature of the claims and the alleged misconduct are considered. If the claims arise from conduct in the state of employment, that state's law will apply. 6️⃣ Business Conducted in New Jersey: Conducting business in New Jersey or having clients in New Jersey does not change the state of employment if the employee's primary work location is in another state. 7️⃣ Choice-of-Law Provisions: Specific agreements, such as confidentiality agreements, may contain choice-of-law provisions. However, these provisions do not necessarily extend to general employment claims unless explicitly stated. While this test is NJ-specific, the public policy considerations may extend beyond the Garden State. Courts have noted that applying the law of the "state of employment" ensures uniformity and predictability in employment relationships, allows employers to rely on a consistent set of legal and workplace standards, avoids the complexity and burden of navigating multiple legal regimes, increased administrative costs and legal uncertainty, and accommodates employee mobility. Additionally, the state where employment occurs has a significant interest in regulating the terms and conditions of employment within its borders, including protecting workers' rights and ensuring fair labor practices without penalizing employers for hiring employees who reside in different states. If you really want to geek out on the "state of employment" test, I've linked the parties' briefs in the comments. #TheEmployerHandbook #employmentlaw #humanresources

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You know summer is here when a federal court opinion is full of song lyrics related to ice cream and color photos of various flavors. Worth a read. You can tell the judge found a lot of (Good) Humor in the topic. The crux of the case is that plaintiff felt mislead when purchasing Pistachio ice cream from Cold Stone Creamery and later discovered it had no pistachio in it. The court considered whetehr it was fair for the consumer to expect Pistachio Ice Cream to have actual pistachio in it. Some arguments: 1. Cold Stone pointed out that their ingredient list was available online. The court found that unconvincing because the ice cream is being sold in-person. 2. Lots of competitors offering pistachio ice cream actually have pistachio on their ingredient list, thus consumers might expect the same at Cold Stone. The court found a bit of merit in the argument, but weighted it less. In passing, the plaintiff took a dig at Thrifty's Ice Cream and called it "a less premium brand than Cold Stone Creamery." I disagree. Thrifty has good ice cream. Cold Stone has poor quality ice cream. 3. A survey of 400 consumers revealed that 85% expected pistachio to be an ingredient in pistachio ice cream. The court found this to be sufficiently compelling evidence to prevent dismissal of the case. The result: the case will move forward. Some other important learnings. 1. Just because the food does not contain the ingredients you expected, your implied claims of merchantability will fail (in NY) if the food is still edible: "“Where the sale of a food or beverage is concerned, courts have ruled that the product need only be fit for human consumption to be of merchantable quality.”" 2. There is an entire line of cases in NY called "The SDNY Vanilla Cases," litigating about "disaffected purchasers of vanilla products that were derived from substances other than vanilla bean." 2. In the dictionary, "pistachio" is also an adjective - however it refer to the "green colour of the kernel of the pistachio nut," rather than the nut itself.

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Pro Tip: Announcing that you have been using a particular business name since 1969 is not persuasive when someone else has been using it since 1950 and filed a federal trademark on it in 1959. Especially when the senior mark holder operates 1000 locations in 16 states. Yes, it's the case of Whataburger v. What-a-Burger # 13 (of North Carolina). In the complaint it is revealed that the parties reached a limited co-existence agreement a few years ago. Given Whataburger's seniority, one wonders why. My guess is that the junior use made some type of laches argument that wasn't convenient to litigate at the time. Apparently the co-existence agreement contained a provision that the license of the name would be void if the agreement was breached. Whataburger argues that a breach of the co-existence agreement has now occurred. This means that now Whataburger has a breach of contract claim to augment its Lanham Act claim. Thus, even if laches is raised as a defense, on prior violations, the breach of contract is quite recent and Whataburger will not be found to have slept on its rights. Moreover, I imagine that the co-existence agreement contained various recitals wherein the junior user of the mark was required to agree that the senior mark holder was the true owner of the mark and the junior user's rights were limited to that of the license from the senior holder -- analogous to a Confession of Judgment kept in a backpocket. It's important to remember that settling litigation is not enough - - you should always aim to do it in a manner that sets you up to prevail more easily if there is a subsequent breach.

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“…Shift shock refers to the experience new employees face when they realize that the job they signed up for doesn’t match what was promised during the hiring process…. …How to prevent shift shock The key to preventing shift shock is transparency and communication. It’s about setting clear expectations from the start and ensuring that new hires know exactly what they’re signing up for. Here are a few strategies that can help: Be honest during the recruitment process: It’s tempting to paint the job in the best possible light, but honesty is always the best policy. Be upfront about the challenges of the role and the realities of your workplace. If there are tough days, don’t shy away from mentioning them. Candidates appreciate transparency, and it helps build trust right from the start. Offer realistic job previews: Give candidates a glimpse into what their day-to-day will look like. This can be as simple as having them shadow a team member or setting up casual chats with people already in the role. It’s all about giving them an accurate sense of what they’re stepping into. Clarify company culture: During the interview process, talk about the real culture of your company. Are things fast-paced? Do people work independently or collaborate closely? Being open about the working environment helps ensure a better fit. Improve your onboarding process: Onboarding isn’t just about paperwork. It’s also about setting new hires up for success. Make sure your onboarding is comprehensive and gives new hires the time they need to get comfortable in their role. Pairing them with a mentor or buddy can also make the transition smoother.”

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#jobseekers MUST read this entire series by regular columnist Dan Binstock, a top #legalrecruiter who is offering up a four-part series on blunt advice from #toplawfirms on #legalrecruiters. Really, a MUST READ!!

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