Friday, November 21, 2014

DOL Propoes Drug Testing for Unemployme​nt Compensati​on Applicants


by Shannon Allen

The Employment and Training Administration (“ETA”) of the U.S. Department of Labor (“Department”), proposed a controversial new rule for the Federal-State Unemployment Compensation Program.  The purpose of the proposed regulation (§ 620.1) is to implement section 303(l)(A)(ii), Social Security Act (“SSA”), permitting the drug testing of Unemployment Compensation (“UC”) applicants for the use of controlled substances where suitable work (as defined under the State's UC law) is only available in an occupation for which drug testing is regularly conducted.

These proposed rules would implement the Middle Class Tax Relief and Job Creation Act of 2012 (“the Act”) amendments to the SSA and allow States to enact legislation that would permit State Unemployment Insurance (“UI”) agencies to conduct drug testing on UC applicants for whom suitable work is only available in an occupation that regularly conducts drug testing.  Under these situations, States may deny UC to an applicant who tests positive for drug use.  These two explicit situations are:

  • Where the applicant was terminated from employment with the applicant's most recent employer because of the unlawful use of a controlled substance. (Section 303(l)(1)(A)(i), SSA.); or 
  • Where the only available suitable work for an individual is in an occupation that regularly conducts drug testing.

For State UI program purposes, the Department’s Notice of proposed rulemaking (“NPRM”) seeks to define and regulate occupations that regularly conduct drug testing.

The Department asserts that the proposed regulations: will impact a very limited number of applicants for unemployment compensation benefits; do not have a substantial direct effect on the States or the relationship between the National Government and the States because drug testing authorized by the regulation is voluntary on the part of the State, not required; and do not adversely impact family well-being as discussed under section 654 of the Treasury and General Government Appropriations Act of 1999.

The Department seeks comment on the proposed regulations and specifically encourages comments on methods to refresh the list of occupations that regularly drug test. Comments must be submitted in writing on or before December 8, 2014.  Interested parties may submit comments, identified by Regulatory Information Number (RIN) 1205-AB63, by only one of the following methods:

  • Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the Web site instructions for submitting comments; OR 
  • Mail and hand delivery/courier: Written comments, disk, and CD-ROM submissions may be mailed to Adele Gagliardi, Administrator, Office of Policy Development and Research, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-5641, Washington, DC 20210.

Friday, November 7, 2014

DOJ Proposes Rule to Aid Hearing or Vision Impaired Moviegoers


by Elisabeth Ulmer

The Department of Justice (“DOJ”) seeks comment on a notice of proposed rulemaking (NPRM) to amend Title III of the Americans with Disabilities Act of 1990 (“ADA”) with respect to the exhibition of movies with closed captioning and audio description.  First, this regulation would explicitly require theaters to exhibit such movies “at all times and for all showings” whenever a version with these features has been produced.  Second, the regulation would require theaters to “have a certain number of individual closed captioning and audio description devices” available for people with hearing or vision limitations.  The DOJ is considering a six-month compliance date for digital movie screens and a four-year compliance date for analog (film) movie screens.

Title III of the ADA guarantees effective communication for persons with disabilities.  Covered entities, such as movie theaters, must take “such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently…because of the absence of auxiliary aids and services,” unless these entities demonstrate a fundamental alteration or undue burden. 42 U.S.C. 12182(b)(2)(A)(iii).  Under the ADA, this obligation should be met across the United States, but although a large number of motion pictures from the major domestic movie studios include closed captioning and audio description, in some jurisdictions these versions are not made available.

The DOJ has observed that people who are deaf or hard of hearing or blind or have low vision accordingly “still cannot fully take part in movie-going outings with family or friends” and are deprived “of the opportunity to meaningfully participate in an important aspect of American culture.”  Moreover, Americans with limited hearing or vision “represent an ever-increasing proportion of the population.”  Given the current shift from analog to digital cinema systems, showing movies with closed captioning and audio description is also now both easier and less expensive.  For all of these reasons, the DOJ believes that its proposed amendments are “necessary in order to achieve the goals and promise of the ADA.”

Under the proposed regulation, if a movie has been produced and distributed with closed captioning and audio description, theaters must procure and show this version.  Theaters will not be obligated to create their own captioning or audio descriptions and thus may show movies that have not been produced with these features.  The proposed regulation also would require theaters to have a certain number of individual captioning devices and audio description devices available upon request.  This number will be ”based upon the number of seats in the movie theater itself and can be shared among the screens in the theater,” and theater staff must be capable of operating these devices and instructing patrons on their use.  Finally, theaters should provide notice as to which movies are available with captions and audio description.

The DOJ particularly seeks comment on the following two options regarding analog movie screens. Option 1 would be to adopt a four-year compliance date, which would allow theaters with analog screens “to obtain the necessary resources to purchase the equipment to provide closed captioning and audio description.”  Alternatively, under Option 2, the DOJ would postpone applying the requirements of its proposed regulation to theaters with analog screens because the nature of analogs is fluctuating with the shift from analog to digital cinema systems.

All comments are due on December 1, 2014.  Interested parties are invited to submit comments by any of the following methods:

  • Online Filing: http://www.regulations.gov (Regulations.gov Docket ID: DOJ-CRT-126) 
  • Mail: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, P.O. Box 2885, Fairfax, VA 22031-0885 
  • Overnight, courier, or hand delivery: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 1425 New York Avenue NW., Suite 4039, Washington, DC 20005

All comments should be identified as RIN 1190-AA63.

Friday, October 31, 2014

Spotlight on ABA Academy’s Cybersecurity Core Curriculum


by Nina Hart

This year marks the inaugural season of the ABA Academy’s Cybersecurity Core Curriculum.  The Curriculum is a series of programs addressing the cybersecurity risks facing lawyers, best practices for prevention and incident response, and lawyers’ legal and ethical obligations to clients regarding data security.

The next event in this series, “Moving Target: Cybersecurity Legal Requirements and Liabilities,” will be held on November 19, 2014.  More details on how to register for this and other upcoming events may be found here.

Facing the Need to Improve Cybersecurity Awareness & Practices

Lawyers are uniquely vulnerable to cyber attacks.  Jill Rhodes and Vincent Polley, who were instrumental in the creation of the Core Curriculum, assert that despite this vulnerability most firms and organizations are unprepared to address the risk.  Rhodes states, “We believe that lawyers are at risk because they hold such sensitive client data.”  Being prepared is part of being a responsible attorney; attorneys are required to protect client data from any sort of disclosure.  “The question,” Rhodes says, “is how to do that?  Many lawyers use technology, but tend to be wary with respect to security matters—it can be overwhelming.  How do you educate the legal population about the importance of protecting client data in a way that is understandable to that population?”

Creating the Tools to Help Lawyers Understand & Address Cybersecurity Threats

Echoing Rhodes’ sentiments, Polley notes that there was an “obvious need” for resources that lawyers could access in order to improve their understanding of and ability to address the threat of cyber attacks. The issue was determining what those resources would be.  “It was with the creation of the Cybersecurity Legal Task Force that the stars were properly aligned,” Polley says.  “All the cognizant ABA Sections, coming together, and leveraging their experience and expertise” led to the creation of the ABA Cybersecurity Handbook, a guidebook for lawyers on how to address the threat of cyber attacks on law practices.  Since its release, the Handbook has been a bestseller.  Rhodes states, “What is so great about the book is that it draws on the expertise of attorneys from different types of firms and practices.  These experts did the writing, and the Curriculum tracks the topics in the book.”  The authors of the book, and editors Rhodes and Polley, are also instructors for the Core Curriculum.

Facing the Challenge of Preventing Cybersecurity Attacks

When lawyers consider how to prevent and address cyber attacks, there are many issues to keep in mind.  First, Polley warns, “perfect security is unachievable.  Firms need to take a searching inward look at their own capabilities (and risks), and expand their dialogue with clients to address cybersecurity issues (and re-address them as circumstances change) to develop an informed, shared understanding of the risks.”  Rhodes adds that an effective dialogue also requires that “lawyers and managing partners work well with their IT and security offices.  Security shouldn’t be left for ‘others’ to worry about.  It is everyone’s responsibility to manage data.” 

Rhodes also highlights a critical concern that is rarely discussed.  “We need to discuss what happens if a law firm or organization has a disclosure.  Often, we can manage the disclosure itself; that’s a question of paying for the damage.  The hardest piece to address occurs as soon as a disclosure hits the press: how should the firm or organization address reputational risks?  One of the reasons to focus on this is 1) cyber attacks are a significant risk, and 2) if a firm has not put in preventative measures how can it protect its reputation?”

Meet the Editors

Jill Rhodes is currently Vice President and Chief Information Security Officer for Trustmark Companies, and is experienced in providing education and training to lawyers.  Prior to joining Trustmark Companies, she spent twenty years working on national security and data security issues for a variety of government agencies including the Office of the Director of National Intelligence, Central Intelligence Agency, and Department of Homeland Security.

Vincent Polley has been involved in cybersecurity for over twenty years.  In the mid-1990s, he was responsible for IT policy/law at a multinational energy company, and worked with the company to respond to cyber attacks on client data that were orchestrated by various nation states.  Since 1997, he has been blogging on cybersecurity matters through www.knowconnect.com/MIRLN.

Friday, October 24, 2014

US Courts Seek Public Comment on Proposed Amendments to Court Rules


by Shannon Allen

The United States Courts (“USC”) announces public hearings of the Judicial Conference Advisory Committee and seeks comment on proposed amendments to the Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure.  The USC requested that these proposals be circulated to the bench, bar, and the public for comment.  The Advisory Committees on Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure have proposed  amendments to multiple rules and forms, including, but not limited to: Criminal Rules 4, 41, and 45. (See list of proposed amendments at: http://www.uscourts.gov/rulesandpolicies/rules/proposed-amendments.aspx.)

In particular, with regard to Criminal Rule 41, the proposed amendment “provides that in two specific circumstances a magistrate judge . . . has authority to issue a warrant” to utilize “remote access to search electronic storage media” and to “seize . . . electronically stored information even when that media . . . is . . . located outside of the district.” The first circumstance is where a “warrant sufficiently describes” the computer law enforcement wishes to search, but the computer is located in an unknown district; making it impossible to identify a physical location or judicial district for the computer.  (e.g. child pornography may be shared through proxy services created to conceal their true IP address.)  The second circumstance is where complex criminal activities utilize many computers in multiple districts at the same time. (e.g. a collection of compromised computers can operate as botnets to disseminate malware, invade privacy of users, and steal personal information.)  The Advisory Committee views Rule 41 in its current state as potentially hampering the investigation of serious federal crimes and proposes narrowly tailored amendments to address these two increasingly common venue circumstances. 

The proposed amendment changes the “territorial limitation that is presently imposed” by Rule 41(b) and states that a magistrate judge “with authority in any district where activities related to a crime may have occurred” may issue a warrant that meets the criteria in the proposed new paragraph.  The Committee proposes relaxing the venue requirements “when the district where the media or information is located has been concealed through technological means,” so long as investigators can satisfy the Fourth Amendment’s warrant requirements.  In addition, for restricted types of investigations, the proposed amendments would “eliminate the burden of attempting to secure multiple warrants in numerous districts.”  Finally, the proposed amendments change the notice requirements only requiring that when the “search is by remote access, reasonable efforts be made to provide notice to the person whose information was seized or whose property was searched.”

The USC seeks comment on these proposed amendments to the Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure.  Public hearings are scheduled to be held on the amendments to:

  • Appellate Rules and Forms in Phoenix, Arizona, on January 9, 2015, and in Washington, DC, on February 12, 2015; 
  • Bankruptcy Rules and Official Forms in Washington, DC, on January 23, 2015, and in Pasadena, California, on February 6, 2015; 
  • Civil Rules in Washington, DC, on October 31, 2014, and in Phoenix, Arizona, on January 9, 2015; and 
  • Criminal Rules in Washington, DC, on November 5, 2014, and in Nashville, Tennessee, on January 30, 2015.

Those wishing to testify should contact the Secretary at the address below in writing at least 30 days before the hearing.  

Jonathan C. Rose, Secretary
Committee on Rules of Practice and Procedure
Judicial Conference of the United States
Thurgood Marshall Federal Judiciary Building
One Columbus Circle NE., Suite 7-240
Washington, DC 20544
Telephone (202) 502-1820.

All written comments and suggestions with respect to the proposed amendments may be submitted on or after the opening of the period for public comment on August 15, 2014, but no later than February 17, 2015. Written comments must be submitted electronically, following the instructions provided at: http://www.uscourts.gov/rulesandpolicies/rules/proposed-amendments.aspx. In accordance with established procedures, all comments submitted are available for public inspection.