Friday, April 29, 2011

New Philadelphia Law Restricts Criminal Records Inquiry On Employment Applications

New Philadelphia Law Restricts Criminal
Records Inquiry On Employment Applications

On April 13, 2011, Philadelphia Mayor Michael A. Nutter signed
the Fair Criminal Screening Standards Ordinance, which will
change both the application and screening processes for entities
with employees working in Philadelphia. This ordinance will become
effective on July 12, 2011.
The new law establishes limits and requirements for the screening of
criminal records by certain Philadelphia employers, and will likely change
both the application and screening processes of many employers.
This law generally prohibits unfair discrimination against persons
previously arrested or convicted of one or more criminal offenses which
are not then pending against the person. The City of Philadelphia passed
this law in the hopes that it will help qualified ex-criminal offenders obtain
access to employment opportunities, reduce recidivism, increase public
safety and stabilize city neighborhoods.
General Requirements of the Screening Standards
The new law will preclude city agencies and private employers
employing ten or more persons within the City of Philadelphia from the
following actions when seeking to fill a job:
• making any inquiry regarding criminal convictions before and
during the application process and initial interview process, or
from requiring that applicants disclose such information;1 or
• inquiring about an individual’s arrests that did not result in
convictions, unless such inquiry is required or permitted by
another law.
It is expected that employers will be able to ask about criminal
convictions and conduct a criminal background check once the initial
interview is conducted. Employers are required to abide by the following
standards when making a criminal background inquiry:
• determine an applicant’s initial qualification for a position prior
to conducting a criminal record check;
• consider the bearing, if any, that the criminal offenses for which
a person was previously convicted will have on his or her
fitness or ability to perform one or more of the duties
and responsibilities of the position in question, as well as
the elapsed time between the offenses and the potential
employment, and the seriousness of the offenses;
• notify the applicant of any potential adverse employment
action resulting from a criminal check, including specifying the
part of the record check concerning the city or the county
agency; and
• provide the applicant or the current employee an opportunity
to present information rebutting the accuracy or relevance of
the criminal record report, and to claim violation of this law.
Advice To Employers
Employers who will be subject to the requirements of this law should
review their employment applications used for employees in Philadelphia,
as well as in cities with similar laws, to ensure that applications provided
to applicants prior to or during initial interviews do not include questions
about criminal convictions.
You should also begin the process of educating your hiring managers,
human resources and recruiting professionals, including professionals
located outside Philadelphia who recruit for, and supervise, jobs that will
be filled in Philadelphia, regarding this new law to ensure that the
recruiting and interviewing processes comports with it.

For more information visit our website at or
contact any attorney in the Philadelphia office of Fisher & Phillips
at 610.230.2150.

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By Steven K. Ludwig

APRIL 2011

Q. What’s worse for an employer than having an employee involved in a serious auto accident caused by
distracted driving related to texting on the job?
A. Coping with the liability and then being fined by the Occupational Safety and Health Administration
(OSHA) for having failed to adopt and communicate a policy to educate employees of the risks and
prohibit certain activities that result in distracted driving.

Since the leading cause of worker fatalities is motor vehicle crashes, OSHA has announced a Distracted
Driving Initiative and is intent upon flexing its muscles against unfortunate employers that have not modified their policies before being caught in OSHA’s dragnet.
Employers must prohibit any work policy or practice that requires or encourages workers to text while driving, according to OSHA. In OSHA’s view, employer that provide financial or other incentives that encourage workers to text while driving – or organize work so that doing so is a practical necessity – violate the law. In OSHA’s view, an employer that fails to provide a safe workplace free of the recognized hazard of texting while driving exposes itself to enforcement action.

If OSHA receives a credible complaint, it will investigate and issue citations and penalties to end the
practice. So it would be prudent for employers to update or issue a cell phone/electronic device usage policy to get ahead of this juggernaut.

* A word to the wise, in text lingo.

For more information about the information in this alert, please contact Steven K. Ludwig at 215.299.2164 or or any member of Fox Rothschild’s Labor & Employment Department.

This publication is intended for general information purposes only. It does not constitute legal advice. The reader should consult with knowledgeable legal counsel to determine how applicable laws apply
to specific facts and situations. This publication is based on the most current information at the time it was written. Since it is possible that the laws or other circumstances may have changed since publication, please call us to discuss any action you may be considering as a result of reading this publication.

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New Disability Discrimination Regulations Impact on New Jersey Employers

New Disability Discrimination Regulations Impact on New Jersey Employers
By: Beth Lincow Cole

While recent federal changes involving the Americans with Disabilities Act have attracted a great
deal of attention in employment circles, New Jersey employers should also be aware how the
changes will impact them.
Additionally, the New Jersey Division of Civil Rights has proposed an amendment to its
disability discrimination regulations that the New Jersey Division on Civil Rights says are
consistent with the federal changes.
The proposed regulations contain several provisions that could impact New Jersey employers, as
outlined below:
Public Hazard Defense: The proposed regulations appear to significantly restrict the availability
of this defense. Under current law, an employer can choose not to hire an applicant with a
disability or terminate an employee who poses a hazard to the employee or others in the
workplace. The new regulations will require the employer to explore reasonable
accommodations before doing so as it includes the language “where the hazard cannot be
eliminated or reduced by reasonable accommodation.”
Undue Hardship Definition: While the amended laws would still allow employers to consider
cost when determining whether accommodating a disabled individual would cause “undue
hardship,” the new regulations would require employers to consider available resources that may
offset the cost, including tax credits or outside funding.
Language Regarding Pre-Existing Condition Coverage: The last change is largely semantic. To
avoid confusion or possible contradiction with respect to coverage of pre-existing conditions
mandated by recent health care reform, the language allowing employers to offer medical
coverage excluding pre-existing conditions is deleted. In its place, the proposed language states
that employers may offer medical insurance that limits coverage for certain procedures or
treatments, “as long as these activities are not being used as a subterfuge to evade the purposes of
the subchapter.”
The official public comment period on the amended disability regulations expired on March 19,
2011. Employers are advised to stay tuned to this blog for information regarding the status of the
legislation in the coming months.

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Can Employees Be Criminally Prosecuted for Violating Their Employer’s Computer Policies?

Can Employees Be Criminally Prosecuted for Violating Their Employer’s Computer Policies?
BY: Nick Akerman

In California, Washington, Oregon, Alaska, Montana, Arizona, Nevada and Idaho – states
covered by the 9th Circuit Court of Appeals -- the answer as of yesterday is an emphatic “YES.”
In U.S. v. Nosal, 2011 WL 1585600 (9th Cir. April 28, 2011) the court clarified its decision in
LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1131 (9th Cir. 2009) which up until now was
considered to be a bar to using the Computer Fraud and Abuse Act (“CFAA”), the federal
computer crime statute, against employees who stole their employer’s computer data. This case
places the 9th Circuit in sync with the other Circuit Courts that permit the CFAA to be used
against employees who steal data from the company computers.

The CFAA, while primarily a criminal statute, permits victims of computer crime, including
companies, to bring civil actions for damages and injunctive relief based on violations of the
statute. Title 18, U.S.C. §1030. A key element in proving either a civil or criminal violation of
the CFAA is that the employee accessed the company computer “without authorization” or
“exceed [ed] authorized access.” Brekka has been cited for the simplistic proposition that
employees have permission to access the company computers and, thus, by definition cannot
access the company computers without authorization.

David Nosal, a Korn/Ferry executive, was indicted for stealing confidential data from the
company computers prior to joining a competitor. Nosal had allegedly recruited “three
Korn/Ferry employees to help him start a competing business.” Id. at *2. According to the
Indictment, these employees, “using their user accounts to access the Korn/Ferry computer
system” “transferred to Nosal source lists, names, and contact information from the ‘Searcher’
database – a ‘highly confidential and proprietary database of executives and companies’ – which
was considered by Korn/Ferry ‘to be one of the most comprehensive databases of executive
candidates in the world.’” Id.

The district court had originally upheld the CFAA counts against Nosal based on precedent in
other Circuits but changed its decision and dismissed the counts after the Brekka decision. The
government appealed, relying on Korn/Ferry’s computer policies that restricted the scope of
employees’ access to the company computers including one that “restricted the use and
disclosure of all such information, except for legitimate Korn/Ferry business.” Id. The
government argued that based on these policies, Nosal had exceeded authorized access.
The court agreed with the government, citing the statutory definition of ‘exceeds authorized
access” which means “to access a computer with authorization and to use such access to obtain
or alter information in the computer that the accesser is not entitled so to obtain or alter.” The
court held that the word “so” in the statutory definition “refers to an accesser who is not entitled
to access information in a certain manner. Id. at *4. Thus, the court held that “an employee
‘exceeds authorized access’ under §1030 when he or she violates the employer’s computer
access restrictions – including use restrictions.” Id.

Nosal distinguished its prior decision in Brekka on the facts -- “[b]ecause LVRC [the employer]
had not notified Brekka of any restrictions on his access to the computer, Brekka had no way to
know whether – or when – his access would have become unauthorized.” Id at *6. The key
difference was the Korn/Ferry computer policies. The court concluded “as long as an employee
has some permission to use the computer for some purpose, that employee accesses the computer
with authorization even if the employee acts with a fraudulent intent.” Id. Thus, “as long as the
employee has knowledge of the employer’s limitations on that authorization, the employee
‘exceeds authorized access’ when the employee violates those limitations.” The court
emphasized, “[i]t is as simple as that.” Id.

Finally, the court directly responded to Nosal’s argument that its decision “will make criminals
out of millions of employees who might use their work computers for personal use, for example
to access their personal email accounts or to check the latest college basketball scores.” Id. at *7.
The court pointed out that the CFAA “does not criminalize the mere violation of an employer’s
use restrictions.” Id. Rather, the employee must evince an intent to defraud and take something
of value. Thus, there must be more than “[s]imply using a work computer in a manner that
violates an employer’s use restrictions.” Id.

This case is all about instituting clear and conspicuous computer use policies. (“Korn/Ferry
employees were subject to a computer use policy that placed clear and conspicuous restrictions
on the employee’s access to the system in general and to the Searcher database in particular” Id).
The major take away from the Nosal decision is that every company that is serious about
protecting its computer data should have comprehensive computer policies that clearly spell out
the scope of their employees’ authorization to access the company computers. It is no longer a
viable option to do nothing.

Nick Akerman (212) 415-9217
Nick is a partner in the New York office of Dorsey & Whitney.
For additional articles like this one or to watch my one hour CLE seminar video go to:

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HR Help Wanted Job boards are seeing increases in HR postings over the past year. Searches for HR jobs are up by one-third, compared to last year when HR professionals were hit hard by the recession. The hike may not only be good news for HR, but it could also be a sign that the overall job market has turned a corner.
By Jared Shelly

As a profession, HR seems to be emerging from the recession quite nicely.
Job postings for HR and recruiting positions were up 34 percent year-over-year in March and job-seeker clicks on those ads increased by 51 percent, according to, which aggregates employment ads from a variety of online job boards and company websites.
That's quite a change from the past few years, when HR was hit hard during the recession. In fact, more than 25 percent of HR leaders reported a reduction in HR staff during the recession, according to a study by the Harvard Business Review Analytic Services and Unum, an employee benefits provider.
Indeed began keeping tabson HR jobs in March because it "is responsible for an organization's workforce planning" and "provides a unique early indicator for the broader job market," according the company's blog.

HR's status has actually gotten a lift since the recession, according to Future of HR, a research study by John Boudreau and Edward E. Lawler III, professors at the University of Southern California's Marshall School of Business in Los Angeles.

It finds that 25 percent of managers said the power and status of the HR function increased since the recession, while just 7 percent said it decreased and 68 percent said it stayed the same. Nearly one-third (29 percent) said HR plays a more strategic role now, while just 3 percent said it plays a decreased role in strategy since the recession. Twenty-six percent said the effectiveness of the HR function has increased, while just 14 percent said it decreased.

Speaking at the Human Resource People and Strategy conference in April, Lawler said that businesses that could "tie talent management and talent development to the needs and business strategies [have emerged] more powerful in the organization [after the recession]. Those who couldn't, lost power."
Boudreau says he's seen more students hired into HR jobs recently, as well as an uptick in colleagues moving from consulting roles into permanent HR roles.

Recruiting and training jobs, in particular, were cut during the recession, leading many organizations to shift to shared services or outsourcing, he says. HR functions have become "lean and mean." "It'll be interesting to see if [those jobs return and] that translates into a proportional increase in HR positions," or if HR staffing remains at current levels, he says. One thing is for sure: "They probably wouldn't hire a lot of permanent HR folks if they weren't thinking there was a lasting reason to have them." The demand for HR staff is also indicative of an uptick in hiring as well as an improving economy, says John Challenger, CEO of Chicago-based global outplacement and executive-coaching firm Challenger, Gray and Christmas.
"The fact that they're hiring more of these HR people is a sign they're in the midst of, and are preparing for, more hiring to come," he says. But, these days, companies are being careful to only hire as needed.
"Companies are not hiring in advance of what they need ... ," says Challenger. "This jump in [HR] jobs is a real sign of [business] need -- in many ways [it's] a real harbinger of what's coming."
The economic outlook as a whole has been brighter, as more than 200,000 private-sector jobs were added in both February and March, according to the Bureau of Labor Statistics.

"That number is the Holy Grail," says Challenger. "I think for a company, when you see those numbers, you're much more focused on recruiting, talent management, staffing, etc. It feels like the jobless recovery aftermath of the recession is over."HR hiring at the executive level is also up, says Hal Johnson, chairman of human resources for Korn/Ferry, noting the Los Angeles-based retained-search firm has experienced seven straight positive quarters, "The search business is booming ... ," says Johnson. "HR is definitely a part of that." Johnson agrees that the increased demand for HR staff shows that companies are optimistic about the economy. "It's not only hiring," he says. "[Companies are] expanding. They're hopeful that the recession is over somehow. They're funding new projects. They're opening in China."
Another reason more HR professionals are needed is to plan for a workplace change that seemed to have moved to the back burner once the recession began: baby boomers retirements.
"A lot of people who delayed decisions about retirement, who had really been sticking it out ... are now at a place where they're leaving the workforce," says Johnson. Company leaders are once again focusing on preparing for that eventuality: "Is the pipeline full? Do we have the people to grow in the future? If not, what are we doing to identify them and grow them?" he says. "That puts pressure on the HR function."

April 27, 2011
Copyright 2011© LRP Publications

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Thursday, April 21, 2011

Generation-i: Responsible. Social. Entitled?

Generation-i: Responsible. Social. Entitled?
BY: Aman Singh Das
Posted on Friday, April 15, 2011

"Baby boomers have done a great job of raising kids who are social, want work/life balance, care for their community and have a sense of responsibility. But they also feel entitled and expect their employers to communicate with them and listen to them."
That was Thomson Reuters' Manager of Community Relations Martha Field at the recently concluded Charities@Work conference in Chicago.

Let's say you work at a company with over 1,000 employees. Can you confidently say that everyone you work with is persistently engaged on the latest innovation across departments and management hierarchies?

In a millennium that promises to test our business survival skills like no other, the challenges ahead for HR, talent management, and community relations can feel endless and mind-numbing—especially when generational change at the management level is factored in.

According to a diverse panel of executives at the Charities@Work conference, however, these quandaries need some perspective and a dose of realism.

The panelists were Martha Field, manager of community relations with Thomson Reuters, Gretchen Korf, director of finance and social responsibility with UnitedHealth, Mary MacDonald, director of business development and managing director of EarthShare, and Jillian Walsh, director of corporate giving and community relations with Zurich in North America.

After offering insights on some specific organizational successes, the panelists identified five distinct challenges that promise to test every skill, and ounce of willpower to keep your team committed, motivated and energized.

1. Technology
Whether you are a millennial, a Gen-Y or a Gen-I, technology has been a part of your life like no demographic before you. You’re the high-touch people, the harder-to-engage-in-person crowd. (I don’t blame you; I'd rather text too.)

Can we expect a future devoid of spreadsheets, detailed project briefs, and time-consuming expense statements? With several startups already using the iPad to take care of these tasks, it seems imminent that larger organizations will succumb to the temptation of technology, especially as generations change hands at senior management levels.

2. Social Media
We are constantly connected. The tools available are endless and many more continue to pop up every week. Welcome to the age of 24x7 connectivity.

But what does this mean for the traditional office work culture? How can management ensure employees are consistently engaged, involved and empowered to work for the business' growth when there are distractions aplenty and the distinction between personal and professional continues to diminish.

Of course many companies are responding by imposing strict social media policies. Others are hesitant and most are unclear. Facebook and Twitter have offered uncharted territory for organizations who are used to functioning under regulation and a black-and-white canvas of right vs. wrong.

Enter the millennials who use social media in every small decision, personal or professional. They use these networks to engage, advocate and protest. This generation tweets and likes each other to efficiently crowd-source, innovate and solve. The regimented traditional workplace with limited access to the world outside their company's immediate operating territory just won't cut it for much longer.

And for those of you in HR, ethics, talent management, legal and compliance, this is going to mean adapting or losing out in the battle for the most talented jobseekers.

3. Globalization
How many times have you heard the phrase "We are a global company?"

Today that doesn’t necessarily mean the organization has employees outside the U.S. In fact, many companies with a global footprint operate virtually beyond this country's borders, making our interdependence across regions, demographics, and interests, much more crucial for survival.

4. Climate Change
While the panelists didn’t add much here, the message is pretty clear. If you still belong to the camp that believes global warming—or cooling—is a hoax, you're hurting yourself. The changes in the environment coupled with an almost continual cycle of natural disasters are already forcing new immigration patterns and a re-analysis of business obligations.

In the context of organizational competency then, these changes are sparking new concerns about job security, safety and business sustainability. Just three weeks ago, Goldman Sachs bankers in Tokyo were told they could move to southern Japan where radiation levels posed less risk, but that if they did so, they'd no longer have a job. Needless to say, the news was not welcomed by the staff, with several leaving the city despite the ultimatum.

5. Recession
The last three years have left everyone—save perhaps some of the investment bankers on Wall Street—a bit more cynical about life and work. What do we value most in our jobs, where is the meaning, the purpose? How can we make sure we learn from the mistakes of 2008?

Answers to many of those questions remain unclear.

Charles Ferguson, director of Oscar-nominated Inside Job recently told Dealbook, "The problem is that in finance people can get enormously wealthy by causing enormous damage to many other people. And that hasn't been stopped." Ferguson also said that he wouldn’t be surprised if there was another financial crisis in the next 10 years.

What has this meant for students, the unemployed and recent graduates? A new, value-based approach to job hunting—something that was less of a priority in recent years.

Or as CSRwire's CEO Joe Sibilia recently put it during a panel discussion we co-presented: "What we are witnessing is a shift in consciousness. And it's here to stay."

About the Author
Aman Singh Das is the Corporate Responsibility Editor at She is a New York University alum and previously wrote for The Wall Street Journal. Her area of work includes corporate diversity practices and sustainability, and how they translate into recruitment and strategic development at Fortune 1000 companies.

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Gender vs. Pay: 10 Worst Industries for Women

Gender vs. Pay: 10 Worst Industries for Women
BY: Aman Singh Das
Posted on Monday, April 18, 2011 10:44:50 PM GMT

Guess which companies continue to disfavor women in pay equity?

In a new study by 24/7 Wall Street, an online financial content provider, it turns out industries that have been the most sought-after by college graduates for a long time now, are the worst when it comes to gender and pay equity.

Compiled by data from the Bureau of Labor Statistics, the Department of Labor, the Census Bureau, as well as Catalyst and The Institute for Women’s Policy Research, the list is worrying.

The list's bottom eight, while troubling, isn't the surprising portion of the list:

10. Retail (Women’s Median Weekly Earnings: $504 / Men’s Median Weekly Earnings: $634)
9. Wholesale ($648 / $817)
8. Public Administration ($783 / $998)
7. Information ($756 / $997)
6. Utilities ($780 / $1,029)
5. Durable Goods ($655 / $875)
4. Nondurable goods ($577 / $782)
3. Health care and social assistance ($648 / $902)
The real worry begins when we reach the top two or the worst industries for median salaries by gender.

2. Professional and technical services
This sector includes accounting firms, law firms and technology companies. Notwithstanding that 57 percent of college graduates are women, men not only continue to outnumber women in these sectors, they also continue to make significantly higher salaries. In fact, women only make 65.9 percent of what their male colleagues take home.

According to 24/7 Wall Street:

• Women’s Median Weekly Earnings: $872
• Men’s Median Weekly Earnings: $1,324

1. Finance and insurance
Needless to say, this sector includes banking, credit card companies, insurance giants, investment banks and private equity. The worst offenders when it comes to gender equity in pay, women earn 62.2 percent of what their male counterparts make.

• Women’s Median Weekly Earnings: $738
• Men’s Median Weekly Earnings: $1,186
Earlier this year, I discussed The Sponsor Effect, a new study by the Center for Work/Life Policy that stressed the need for active career sponsorships for women in the workplace. Identifying the lack of movement among women between the marzipan layer and top management, the study emphasized that what women lack is advocacy from their peers and superiors.

Now this data serves the same headline, i.e., we have a problem. We have the data. We have the studies. We even have vocal advocates like 85 Broads and the Center who are working to raise the ante and address this disparity in all its forms (pay, leadership opportunities, etc.).

But do we have the solution?

About the Author

Aman Singh Das is the Corporate Responsibility Editor at She is a New York University alum and previously wrote for The Wall Street Journal. Her area of work includes corporate diversity practices and sustainability, and how they translate into recruitment and strategic development at Fortune 1000 companies.

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What is happening within Healthcare/Life Sciences right now in terms of hiring?

BlueSteps: What is happening within Healthcare/Life Sciences right now in terms of hiring?
Luis: The Life Sciences sector is driven by R&D and innovation. This means there are always segments where new drugs, devices or systems to fight disease or improve health are being developed. Those segments then require management talent, generally with previous experience in the field, because Healthcare is a heavily regulated market
Stacey: At the very senior level, we saw only a modest
decrease in hiring in Life Sciences in 2010. Our clients have
communicated that in spite of the economy, these are such
critical senior-level roles that they cannot delay moving
forward on these types of hires. Private equity and venture
capital clients have also expressed similar sentiments as good
technologies continue to get funding. Some have admitted to
being more conservative than they typically are due to the
economy and competition for capital in their portfolio, but
their Limited Partners want their money put to work. Both January and February 2011 have been extremely busy for new search launches in Life Sciences for our firm.
Wayne: The Healthcare setting, as an essential industry, tends to be less volatile in demand than other industry sectors such as banking and technology. In Australia and New Zealand, demand is across
general management, clinical leadership, healthcare academia and life sciences, in the public, not-forprofit
and private health sectors. In South-East Asia, demand varies a little by geography and sector.
For example, Thailand typically imports people into hospital management positions rather than clinical
leadership. Private healthcare in Singapore looks for general management and clinical leaders, whereas
the public sector in Singapore is more interested in clinical and academic leaders.

“Our clients have communicated that in
spite of the economy, these are such
critical senior-level roles that they
cannot delay moving forward on these
types of hires”
Stacey Davenport
BlueSteps: What do you think is on the horizon for the rest of 2011?
Luis: All over Europe, pressure from the Governments to curb
down Healthcare costs will make it difficult for large
corporations to grow or hire external talent in 2011. Some of
the so-called “Big Pharma” in these crisis times find themselves
still oversized, considering the not so appealing pipelines of
future product launches. Executive search growth is coming
from mid-size and small groups on the rise.
Stacey: I expect to see continued optimism and hiring at the senior level for strong companies.
Wayne: Barring any major external shocks such as war or recession, we see a positive outlook for 2011.
Most economies in the region are expecting average or above-average growth rates, demographic
trends dictate increasing demand for quality healthcare with ageing populations, and people’s
expectations of the quality of both care and service continues to rise.
BlueSteps: How can a candidate best present him/herself to get noticed in today's marketplace?
Luis: Life Sciences is a very broad sector full of segments and niches: for one time it was
Gastrointestinal and Cardiovascular, then anti-infectives and anti-HIV, now Biotechnology products in
Transplantation, Onco-Haematology or orphan drugs. In many cases, the board executives need to
know one of those niches and their international opinion leaders very well to get credibility and funding. Candidates must be well-known and recognized in that particular market.
Stacey: A-player candidates are always in great demand
by clients. Keeping a successful track record, polished
resume, and polished presence for interviews is essential.
Maintaining a critical balance of self-confidence, humility
and self-awareness of your leadership style is key as
clients focus more and more on interpersonal fit over just
Wayne: People can, of course, maintain contact with potential employers and search groups in the
belief that it will help them remain ‘on the radar screen’ when a suitable opportunity arises. However,
a decent search firm will have a knowledge base and robust candidate tracking systems so they can
readily identify and contact suitable people as the need arises.

“Keeping a successful track record, polished
resume, and polished presence for interviews
is essential”
Stacey Davenport
“Executive search growth is coming from
mid-size and small groups on the rise”
Luis Truchado
Certainly, candidates with a stellar track record, integrity and
relationship/leadership skills will always be relatively rare, and in
high demand. Attending networking events can be worthwhile
and social media will probably increase in its relevance as well,
however the efficacy of social media at the executive level is still
a ‘work in progress’ to be tracked and trialed.
The best way to get noticed for senior level positions is to be a proven performer, have decent IQ and
EQ, and be an ethical person who can relate well with people, be that as a leader, a fellow team
member, or with other stakeholders.
BlueSteps: How do you grow your own network of candidates within this sector?
Luis: Specialist firms are focused every day in several
segments, but within the Healthcare field “cross
pollination” of successful candidates is often evident. Our
pool of candidates expands from Pharma to Biotech, from
Diagnostics to Devices, from Specialized Consultancies or
Academia into HIS or Business Intelligence, etc.
Stacey: We get over 100 resumes a day which we screen carefully, but even more important is
proactively reaching out to establish a relationship with as many executives with strong track records
that we can for future recruitment or networking.
Wayne: Firstly we employ the tried and true methods of executive
search, namely research and then proactively approaching potential
candidates. Secondly, we place a huge emphasis on communication and
maintaining relationships with candidates, so they tend to be both
receptive to our contact, as well as regularly referring other people to
us for assistance. Thirdly, we are experimenting with the best ways to
use social media to augment the traditional search process..
BlueSteps: What is your career background? How did you get into search?
Luis: I got a high degree in Pharmacy with specialization in Biochemistry. I did an MBA at the IE
Business School and a CESP at the Columbia Business School. I worked for Ciba-Geigy, now Novartis;
SK&F now GSK and Cesquisa/Cepsa. I was headhunted into search by two outstanding specialists:
EUROMEDICA partners John Fulford and Francis Rolland…19 years ago!
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Interviews with Executive 3 Search Consultants
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Stacey: I spent many years as a clinician and CEO in medicine and was recruited by Jack Groban to one
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Wayne My undergraduate degree was in the human/social science area. This led me into the public
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During this time, I strongly believed the future of search would either be with global or niche players
and that, those stuck in the middle (in classic Porter theory) would be squeezed out. With this in mind,
and a family to support, I took the risk to start Ccentric, a niche search firm, specializing in the
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Executive Career Strategies: Handling the “Velvet Coffin”

Executive Career Strategies: Handling the “Velvet Coffin”     By: May Busch    
Date: Wednesday, April 06, 2011    

In a recent discussion about career success, someone described the company in which they work as a “Velvet Coffin” by reputation.
On the one hand, it is a wonderful place to work, with excellent benefits, great brand recognition and truly nice people working on interesting projects (the “velvet” part).  Frankly, you would be lucky to get a job there.

On the other hand, opportunities for promotion are few and far between as people rarely leave, electing to stay on in the lovely environment (the “coffin” aspect).   Many move sideways for a long time.
Within the organization, it is widely believed that you have to leave to get promoted and advance in your career, with the possibility of reentering at a more senior level later on.

We concluded that there are three constructive ways for employees to approach this kind of workplace.
Enjoy it with your eyes wide open.  Consciously choose to stay on and accept that you are likely to be on a flatter career trajectory, and enjoy a pretty lovely work life.
Get creative about making the system work for you.  Find ways to be the exception to the rule by working the system and creating ways to expand your responsibilities.  Not easy to figure out, but perhaps worth the effort.
Treat it like a 2-3 year graduate school experience.  Use your time there to learn everything you can, get credentials, make contacts and build your network internally and externally.  Then be ready to move on to move up.
 The key is not to get caught in the alluring trap unless you want to.

A separate but interesting question is what would you do as senior management in an organization like this:
Are you attracting the real “go-getters” in your business, and if so, are you training them for others rather than retaining them for yourself?
Or does the “Velvet Coffin” work perfectly for your purposes and exactly in the way you envisioned?
BlueSteps Executive Guest Writer

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Tuesday, April 19, 2011

Just Opened a New Business: Don’t Forget Liability Insurance

Just Opened a New Business: Don’t Forget Liability Insurance
By Greg Yaghmai
You have made the bold decision to finally opening your own business. You hired a lawyer to
draw up the Inc or LLC documents. You filed them up with your state’s Secretary of the State.
Now your company is legally recognized and your are concentrating on running the business.
There is one thing you can’t forget about: liability insurance.
If you are open to the public, then you should have coverage for someone being injured on the
premises. Almost all leases require that the tenant maintain liability insurance. More
fundamentally, if someone files a lawsuit for being hurting on the premises then you will have
coverage for any judgment and legal fees. However, liability insurance typically doesn’t cover
business disputes over contracts with vendors or customers.
The premiums are worth the peace of mind and often are legally required. When clients come to
Rutledge & Yaghmai in the formation of a corporate entity, we stress the importance of acquiring
the proper type and amount of liability insurance.
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Avoiding Social Networking Land Mines For Employers

November 8, 2010
Avoiding Social Networking Land Mines For Employers

Authors: Esra Hudson | Rebecca L. Torrey
Manatt, Phelps & Phillips, LLP.

This week, Facebook is responding to another round of questions regarding a recent privacy breach, resulting in an inquiry by several members of Congress. That Congress has become involved highlights the fact that Facebook and other social media sites are much more than fun networking tools. As social media becomes part of the fabric of our society, both state and federal regulators increasingly are scrutinizing its use and abuse, including in the employment arena. As a result, there are several “land mines” for employers in the cyber-communication world, which may be avoided through careful planning and implementation of social media policies.

Land Mine No. 1: Deceptive Trade Practices. Employers may be surprised to learn that the use of social networking sites by their employees, even off-duty, may subject them to scrutiny by the Federal Trade Commission (“FTC”). The FTC recently issued revised Guides Concerning the Use of Endorsement Testimonials in Advertising. The revised guidelines note that social media and Internet postings by employees regarding their employers can constitute improper public testimonials in advertising. If employees fail to disclose their employment relationship, their postings may be deemed a deceptive or unfair trade practice.

Land Mine No. 2: Background Checks. Employers are increasingly relying on sites like LinkedIn and Twitter to check the backgrounds of applicants. By doing so, employers may obtain more information than they bargained for, including information that is not appropriate to consider in the application process, such as an applicant’s membership in a protected class (i.e., age, sexual orientation, religion, pregnancy status, etc.).

Land Mine No. 3: The Friendly Supervisor. For current employees, employers may have legitimate reasons for reviewing employees’ social media postings, such as monitoring employee disparagement of the company or public disclosures of confidential business information. This ostensibly justified snooping, however, can create problems. Some employers resort to guerilla tactics that raise serious privacy concerns, including accessing social networking pages through misrepresentations or “fake friending.” On the other hand, supervisors who openly “friend” subordinates may fare no better because the subordinates may claim they felt “coerced” to accept the request. These cyber-friendships typically involve the exchange of personal information, including membership in political or other organizations, medical condition information, knowledge of discriminatory remarks, etc. A supervisor’s awareness of such personal information can trigger the company’s duty to take action, or can trigger harassment, discrimination, retaliation and wrongful discharge claims from the subordinate. An added wrinkle is the concern that taking action against groups of employees who discuss the company on social networking sites may expose the employer to
claims under the National Labor Relations Act for retaliation for engaging in protected concerted activities.

Land Mine No. 4: References Through Social Media. Given the potential liability for negligent references on the one hand, or defamation on the other hand, many companies have implemented a “no reference” policy. Typically, such a policy provides that only the former employee’s title and dates of employment will be provided to prospective employers. Social media sites such as LinkedIn create an avenue to undermine these policies. Supervisors may also undermine these policies by “tweeting” about subordinates’ achievements or failures. Avoiding the Land Mines. The key to avoiding these and other social media land mines is: (1) a well thought out, written social media policy developed by a group or committee that evaluates the company’s needs, employees’ rights and liability issues, and the realistic social media use of its employees; (2) training of managers and subordinates regarding the policy; and (3) consistent adherence to the written policy.

Because of the many potential legal issues in this area, employers should consult with experienced employment counsel to assist them in the development of social media policies.

ATTORNEY ADVERTISING pursuant to New York DR 2-101(f) Albany | Los Angeles | New York | Orange County | Palo Alto | Sacramento | San Francisco | Washington, D.C. © 2010 Manatt, Phelps & Phillips, LLP. All rights reserved.

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New Women-Owned Small Business Regulations: What Do They Mean for Your Federal Contracting Business?

New Women-Owned Small Business Regulations: What
Do They Mean for Your Federal Contracting Business?
In 1994, Congress passed legislation establishing a goal that 5% of federal procurement dollars be spent
on women-owned small businesses (“WOSB”). Six years later, Congress added Section 8(m) to the
Small Business Act, authorizing contracting officers to restrict competitions for federal contracts to
WOSBs. But only recently has the Small Business Administration (“SBA”) issued a final rule
implementing the WOSB Program, after a decade of delays and multi-billion dollar annual shortfalls in
federal procurement contracts being awarded to WOSBs.
SBA’s final rule, which became effective on February 4, 2011, potentially could result in billions more
federal procurement dollars being awarded to WOSBs annually as federal agencies get more serious
about meeting their annual set-aside goals for WOSBs. An interim rule amending the Federal Acquisition
Regulations (“FAR”) to reflect changes made to the SBA regulations for the WOSB Program was
published on April 1, 2011.
Overview of WOSB Program
Businesses that qualify as WOSBs or Economically Disadvantaged Women-Owned Small Businesses
(“EDWOSBs”) will be eligible to compete for set-asides under the WOSB Program. In addition to
qualifying as a small business, a concern interested in the WOSB Program will have to meet certain
ownership and control requirements. Specifically, to qualify as a WOSB, the regulations provide that a
concern must not be less than “51 percent unconditionally and directly owned and controlled by one or
more women who are United States citizens.” 13 C.F.R. § 127.200. And for an EDWOSB, one or more of
these women must also be “economically disadvantaged.” Id.
The SBA regulations are structured to prevent abuses that have recently been exposed on other small
business programs. The WOSB and EDWOSB businesses must actually be owned, controlled and
managed by women and not be used as a “front” by a large or otherwise ineligible entity. The SBA
regulations explain each of the WOSB Program eligibility requirements in detail. For example, the
regulations provide that “control” means that the “management and daily business operations of the
concern must be controlled by one or more women” and that a woman must also “hold the highest officer
position in the concern and must have managerial experience of the extent and complexity needed to run
the concern.” 13 C.F.R. § 127.202(a)-(b). Familiarity with SBA's detailed explanations of the eligibility
requirements are critical for firms considering self-certification as a WOSB or EDWOSB for the purpose of
competing in a WOSB Program restricted competition.
The anticipated contract value for WOSB Program set-asides must not exceed $5 million dollars for a
procurement under a manufacturing North American Industry Classification System (“NAICS”) code or $3
million dollars under all other codes. 13 C.F.R. § 127.503. Additionally, set-asides will be limited to 83
specific NAICS codes that SBA has identified as eligible for restricted competition under the WOSB
Program. WOSBs will be eligible to compete for set-asides under 38 of the 83 NAICS codes, while
EDWOSBs will be eligible to compete in competitions under all of them.
Practitioner Tips
Small businesses considering their strategic options related to the WOSB Program should consider the
􀁺 Carefully review WOSB Program requirements and confirm eligibility.
SBA has recently become tougher in cracking down on contractors that misrepresent their status
in connection with contract awards. Notably, SBA has issued a Compliance Guide for the WOSB
Program that clearly warns contractors that misrepresentation of WOSB or EDWOSB status could
result in suspension, debarment, civil liability under the False Claims Act, and even criminal
penalties. Additionally, Section 1341 of the Small Business Jobs Act of 2010 provides for a
“presumption of loss to the United States based on the total amount expended...whenever it is
established that a business concern other than a small business concern willfully sought and
received the award by misrepresentation.” In light of these developments, contractors that
knowingly misrepresent their status do so at substantial risk.
􀁺 Encourage government customers to set-aside under the WOSB Program.
For years WOSBs have been unfairly short-changed by federal agencies failing to meet the 5%
procurement goal Congress established in 1994. Eligible WOSBs can play a role in correcting this
failure by educating and encouraging their government customers to exercise their discretion
favorably by setting aside procurements under the WOSB Program. This investment would help
WOSBs to win more awards in the federal procurement space.
􀁺 Watch for changes to the eligibility caps.
In 2010, the Fairness in Women-Owned Small Business Contracting Act of 2010 was introduced in
the Senate. This bill would have removed the $3 and $5 million dollar caps that currently apply to
WOSB Program awards. This legislation was not passed, but there is a lobbying effort still
underway to eliminate or raise the caps. Such a development would increase the universe of
potential contracts eligible for set-aside under the WOSB Program.
For more information about the new women-owned small business regulations and the options for your
government contracting business, please contact the authors of this alert or any of the attorneys in the
Government Contracts practice group.
If you have friends or colleagues who would find this alert useful, please invite them to subscribe at
1.888.VENABLE |

©2011 Venable LLP. This alert is published by the law firm Venable LLP. It is not intended to provide legal advice or opinion. Such advice
may only be given when related to specific fact situations that Venable has accepted an engagement as counsel to address.

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Friday, April 15, 2011

7 failures of leadership and what we should learn from them

7 failures of leadership and what we should learn from them | SmartBlog on Leadership
By Guest Blogger on March 22, 2011

“Success covers a multitude of blunders.” That was a famous quote from George
Bernard Shaw, and it has stuck with me throughout my career.
What it ultimately told me was, yes, I was going to fail — multiple times. But if I was truly determined
to overcome, or “cover” them, I absolutely needed to learn from every failure and leverage that
accumulated learning into success.
In so many ways, I’ve grown to appreciate my failures, as counterintuitive as that may seem.
Because I now know if I just let them go, without reflection, then they are doomed to be repeated.
There are seven failures that I believe bring the best improvement opportunities:

Failure to prioritize. Many a bad decision has come from our lack of perspective on the
importance of one thing over another. The key learning here is to fully grasp the concept of
“opportunity cost” — the cost of not doing something in favor of something else.
Failure to decide. If the buck is going to stop with us, then we need the courage to make
timely decisions, regardless of consensus or not having 100% of the information needed to
make them. We learn that more often than not, it’s better to “do something” then let fear and
inertia overtake us.
Failure to progress. When a target is reached, the bar must be raised. And when that target
is hit, it must be raised again. And again. Complacency is a state that has to be avoided, at all
costs, and the ultimate learning here is that continuous improvement is an essential focus of
any enterprise.
Failure to praise. Great talent needs to be nurtured and retained, in a manner that goes well
beyond the paychecks and bonuses. These lessons come hard, after the loss of individuals
who felt unappreciated and undervalued. We learn that humans need to hear these simple
words: “You did a great job.”
Failure to trust. When first taking on a leadership role, there’s always a strong “pull” to be
involved in every decision, or to want to “sign off” on literally every dollar spent or contract
signed. Until we learn that trust is an essential part of great leadership, we are doomed to
overwork and a huge misapplication of time and talent.
Failure to mediate. Every organization will have conflicts, whether it is person to person, or
department to department. Successful leaders learn that stepping into the breach to resolve
them, rather than standing back or ignoring them, can avoid bigger problems down the road
and build influence throughout an organization.
Failure to fire. Nobody likes to fire anybody. It’s one of the toughest things a leader will ever
do. But when you know in your gut it’s time to cut the cord, cut it. Don’t wait. Your gut will
usually be right. The failures here are a lesson to the heart — it can’t get in the way of these
decisions (but it certainly can come into play in the manner in which it is handled). hat-w e-should-learn-from-them/ April 16, 2011

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How to Find Out What Your Coworkers' Earn a Year

How to Find Out What Your Coworkers' Earn a Year

Knowing what the worker in the cubicle next to you earns on an annual basis is a blessing and a curse. It can be great to help you put your own career plan and negotiating strategy into persepctive; but it can also leave you feeling powerless and bitter, not a recipe for work happiness.

SalaryShare, a new website inspired by HackerNews, allows you to pool coworker salaries anonymously by setting up a secret link that is only available to people you choose. You'll need at least four participants to get the list revealed.

Well, it's not truly anonymous - your coworkers will know who set up the salary pool because you must circulate the link in order to get people to partake! But when the salaries are revealed, you will not know who is attached to each dollar amount. Each person who participates receives a private link to view the results.

For example if you are a freelance blogger, let us know how much you earn a year (only from blogging) by joining our salary pool.

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Thursday, April 14, 2011

The Interview Question— About Your ‘Weakness.’ Why It’s Asked and How to Answer It

The Interview Question— About Your ‘Weakness.’ Why It’s Asked and How to Answer It
Posted on Monday, April 11, 2011 6:08:05 PM GMT REPRINTED FROM: VAULT.COM

By Deborah Federico
The dreaded weakness question—the bane of every college student’s interview. I should know: As an undergraduate career counselor, I conduct plenty of mock interviews with students every semester, and they always flop and flounder on this question.
Admittedly, it is probably one of the most difficult questions to have to answer on interviews. The problem, I think, is that most students believe it to be a sign of weakness to admit they have a weakness. In one recent mock interview, I asked a student why it was so difficult for him to answer this question honestly. He replied, “Well, aren’t the interviewers screening out candidates based upon how bad their weakness is?” While I could definitely understand why he felt this way, I told him that this was not the case (unless you give a horribly horrendous weakness!) and proceeded to explain why interviewers ask this question and the appropriate way to answer it.

Interviewers ask this question for a number of reasons. To see if you can remain confident and positive when discussing a negative aspect of your life, for one. It’s also used to determine if you are mature enough to routinely reflect on areas of your life that offer room for professional growth. And often, the question is invoked to see if you will answer it honestly, without pretending like one of your strengths is actually a weakness. As in, “I’m such a perfectionist that I end up spending way too much time on my projects.” Or this, a clip from The Office, where Michael does exactly what you’re NOT supposed to do.
The typical way that many career experts say to answer this question is to state a true weakness, but then show how you’re working on overcoming that weakness. If the thought of stating your true weakness makes you break into a cold sweat, then consider my approach to answering this question. Reframe this question in your mind: “In which areas do I need to grow professionally, and how am I accomplishing that?” This is what interviewers are trying to evaluate with this question. And if you’re not growing professionally, then that is undoubtedly a weakness. As I always point out to students, every professional, no matter what level, needs to be continuously assessing themselves to find ways to improve in order to increase their chances of upward mobility and to remain competitive candidates in the job market.

Listed below are a few examples showing how your answer to this question can be changed from the weakness approach to the professional development approach.

Weakness approach: “My public speaking skills are not that great.”
Professional development approach: “Because my public speaking skills were not up to par, I enrolled in a Toastmaster’s course.” 

Weakness approach: “I tend to dominate team discussions and not listen to others’ opinions.”
Professional development approach: “Being an extrovert, I tend to get excited about sharing my ideas, but now I’m stepping back more to give everyone else a chance to speak before I present my opinions. I’ve realized from doing this that my teammates have a lot of great ideas to contribute.”

Weakness approach: “I tend to be really shy and don’t like to attend networking events.”
Professional development approach: “I am attending at least two networking events each semester so that I can improve my professional networking skills.”

One last point: Never state a really big weakness—that is, one that’s directly tied to the job’s responsibilities. For example, if an internship requires strong analytical skills, don’t say, “I hate working with numbers.” If the position requires strong customer service skills, don’t say, “I always lose my patience with people.” If the job involves a lot of writing, don’t say, “My writing skills aren’t the best, but I’m taking a creative writing course.” If writing is a major requirement for the position, you should possess that skill right now. If you’re finding that your true weakness is in direct opposition to the job requirements, then it might be time to pursue another career direction, or find a way to overcome that weakness through some form of professional development before you embark on your internship or job search.
Deborah Federico is an Assistant Director of Undergraduate Career Services in the School of Management at Boston University. Prior to her career in higher education, Deborah worked in the corporate world, primarily doing marketing and market research. She blogs about career advice here and her LinkedIn profile is here.

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Wednesday, April 13, 2011

Top 10 States for Highest AND Lowest Average Income

Oprah's Home State Leads Top 10 for Highest Average Income
REPRINTED FROM: Posted on Friday, April 8, 2011 1:35:41 PM GMT

Thinking of relocating for a better job opportunity?
Financial news site's new ranking should help. Using four factors—average wages, unemployment rate, state tax rate and cost of living—the list represents adjusted average income for each state, representing "how bad or good a living an average worker can make."

With the average across all states holding at a low $35,960, your way out of a slowly improving economy might lead to relocating. If so, use this list to help guide your decision toward a satisfying and meaningful career.

Quite coincidentally, while in Chicago earlier this week to speak on why corporate social responsibility matters for hiring and employee engagement, I heard outgoing Mayor Richard Daley speak on the need for volunteerism and corporate-backed community outreach. Emphasizing that it was the private sector's duty to give back to their communities and partner with nonprofits in making "Chicago a global city," Daley appealed to a crowded room of executives from many Fortune 1000 companies to "take up active mentoring of students and schools."

Now, President Obama and Oprah's home state takes top honors for having the highest average income.

The top 10 states with the highest average income:

Illinois: $41,987
Washington: $41,456
Texas: $41,427
Virginia: $41,120
Delaware: $39,105
Massachusetts: $38,665
Georgia: $38,228
Tennessee: $38,038
Colorado: $38,020
Minnesota: $37,722

Hawaii Leads 10 Worst States for Average Income
And now…the 10 worst states, courtesy

Hawaii: $22,108
Maine: $29,159
Montana: $29,496
California: $29,772
Vermont: $29,986
Oregon: $30,343
Rhode Island: $30,612
Mississippi: $30,953
West Virginia: $31,357
South Carolina: $31,627

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Specialist in: Executive Transformation/Career Change & Executive Coaching
We are not responsible for the outcome of any job search results or and publication errors which may occur. Please be aware that this is a free service intended to help job seekers. We wish you success in your search. Feel free to contact Executive Leadership, LLC. in order to find a Career Coach or an Executive Coach.
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Monday, April 11, 2011

Why Hiring Executive Leadership, LLC Specialists in Executive Coaching is a Good Career Decision

Coaching Urged for Women

Inadequate Career Development Holds Back Female Executives, McKinsey Says

Inadequate career development has kept women from reaching the top ranks of the corporate ladder, according to a report set to be released Tuesday by management consulting firm McKinsey & Co.
The report, which examines barriers to woman's advancement in corporations, is primarily based on a 2011 survey of 2,525 college-educated men and women, including 1,525 individuals employed by large companies, mainly in management.
Despite efforts by major companies, just a handful of women have ascended to the leadership pinnacle, the McKinsey report concluded. Only 11 chief executives of Fortune 500 companies are women, down from a peak of 15 in 2010, according to a spokeswoman for Catalyst Inc., a nonprofit woman's research group. There were two Fortune 500 female CEO's in 2000, up from one in 1995, Catalyst said in a 2000 report.
Journal Community
Similarly, the McKinsey study cited a 2010 Catalyst report that said 37% of lower-level and middle managers are female, while just 26% of vice presidents and other senior managers are women at Fortune 500 companies. McKinsey plans to release the results during a "Women in the Economy" conference sponsored by The Wall Street Journal in Palm Beach, Fla.
To crack the upper echelons of corporate America, McKinsey says companies must groom a deeper bench of female middle managers for advancement.
"By increasing the number of women who make it from middle management to the vice presidential level, corporations could vastly improve the odds for building diversity in top management," the report added. Even a 25% increase in the ranks of middle-management women reaching the next level "would significantly alter the shape of the pipeline," it said.
Joanna Barsh, a McKinsey senior partner who co-wrote the report, said companies need to spend more time coaching women and offering more leadership training and rotation through various management roles before their ambitions sour.
Ms. Barsh said the McKinsey study found that companies weren't "systematically watching these women at the middle management level and putting in programs that would help them develop and get over the next [promotion] hurdle."
The paucity of such assistance partly explains why woman's ambitions decline over time, said Ms. Barsh. "Barriers become insurmountable," especially for working mothers, she added.
Based on the survey, McKinsey researchers found that female ambition declines sharply at middle age. About 64% of women ages 45 to 54 years old expressed a desire to advance professionally, compared with 78% of the men in the same age range. The comparable figures were 92% and 98%, respectively, for women and men aged 23 to 34.
A female former senior executive for a major insurer who wasn't involved in McKinsey's research agreed with the recommendations. Businesses committed to gender diversity at the top shouldn't just give "lip service by having tokens," this executive said. They should be "actively grooming women, making sure they have mentors and actively promoting their careers."
As part of its research, McKinsey also analyzed the makeup of executive committees at Fortune 200 companies and found women make up just 15% of the top management panels.
These "women are doubly handicapped" because 62% occupy staff jobs "that rarely lead to a CEO role," the study said. In contrast, the report found that 65% of men on the executive committee hold line jobs, which typically involve profit and loss responsibility for an operation.
To remedy this situation, the McKinsey report proposed that businesses work harder to change the mind-sets limiting woman's opportunities, such as the popular notion that a woman can't juggle certain jobs and family duties. As further encouragement, the report said that the performance of top managers should be judged partly on their ability to groom and promote female talent.
"A diversity program by itself, no matter how comprehensive, is no match for entrenched beliefs that prevail," the report said.

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Friday, April 1, 2011

Legal Alert: EEOC Revises ADA Regulations

If you have any questions regarding this Alert, please contact 
The Authors, 
Tim Bland,, a partner in our Memphis office, and/or  
Dylan King,, an associate in our Memphis office, or the  
Ford & Harrison attorney with whom you usually work.
On March 25, 2011, the Equal Employment Opportunity Commission
(EEOC) issued its final revised Americans with Disabilities Act regulations,
implementing the changes brought about by the ADA Amendments Act of
2008 (the ADAAA). The final regulations become effective on May 24, 2011.
Like the ADAAA, the final regulations retain the basic definition of "disability"
as an impairment that substantially limits one or more major life activities, a
record of such an impairment, or being regarded as having such an
impairment. However, the final regulation modifies the terms underlying the
definition – "impairment," "major life activities," "substantially limits," etc. – in
favor of "broad coverage to the maximum extent permitted by the terms of
the ADA as amended." Furthermore, the stated goal of the final regulations
(like that of the ADAAA) is to limit "extensive analysis" into whether an
individual has a disability, and instead focus on whether employers have
"complied with their obligations and whether discrimination has occurred."

Several notable changes include:
• Adding the following activities to the non-exhaustive list of "major life
activities": eating; sleeping; walking; standing; sitting; reaching; lifting;
bending; reading; concentrating; thinking; communicating; and interacting
with others;
• In addition to supplementing the non-exhaustive list of "major life activities,"
the regulation redefines "major life activities" to include the "operation of a
major bodily function," such as digestive, neurological, respiratory,
cardiovascular, endocrine, musculoskeletal, and reproductive functions,
among others.
• The regulation provides nine new "rules of construction" to determine
whether an impairment "substantially limits" an individual in a major life
activity, including:
• The regulation explicitly states that the impairment does not have to
"prevent" or "significantly or severely restrict" the individual from performing
a major life activity. The impairment need only substantially limit "the ability
of an individual to perform a major life activity as compared to most people in
the general population";
• The effects of an impairment lasting or expected to last fewer than six
months can be substantially limiting under the new regulations;
• With the exception of eyeglasses or contact lenses, mitigating measures
such as medication, etc., cannot be considered when making a
determination of whether an impairment substantially limits a major life
• The regulation provides, as an example, a list of impairments that will
"virtually" always be disabilities, including: deafness; blindness; intellectual
disability; missing limbs; autism, cerebral palsy; diabetes; epilepsy; HIV
infection; multiple sclerosis, muscular dystrophy; and major depressive
disorder, bipolar disorder, post-traumatic stress disorder, obsessive
compulsive disorder, and schizophrenia.
• Although the EEOC had proposed altering the definition of the major life
activity of "working," the final regulation keeps the current definition intact
(i.e., "class of jobs or broad range of jobs"). The EEOC had also proposed
protections for individuals with "symptoms" of an impairment, but that
language was not included in the final regulation.

Employers' Bottom Line:
As expected, the final regulations further advance the ADAAA's goal of
expansive coverage and, as a result, a greater number of employees will be
covered under federal disability law. For this reason, and because the
ADAAA and final regulations call for courts to focus primarily on whether an
employer has met its obligations under the law (rather than whether an
employee is disabled), employers should reevaluate their hiring, attendance,
and other personnel policies and procedures to ensure compliance with the
final regulations.

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