In-house counsel who work alongside and manage the human resources department within their companies may want to hire more job candidates who identify with a specific group on the diversity spectrum, but other candidates may see a preference and sue over affirmative action practices.

Lawyers tell Corporate Counsel that federal affirmative action law gets confusing for companies when they're strengthening their diversity and inclusion hiring, especially now amid the latest anti-Black racism protests. To ensure diversity and inclusion in the workforce, in-house counsel should take charge of analyzing the gaps in staffing.

"Unless a company conducts what is known as an 'underutilization' analysis to determine the availability of qualified minorities and women within a reasonable recruiting area, they should make clear that these are purely aspirational goals," said Esther Lander, a partner at Akin, Gump, Strauss, Hauer & Feld.

Under Title VII of the Civil Rights Act, private companies may engage in a voluntary affirmative action plan, but the plan must try to eliminate the imbalance in a traditionally segregated job, e.g. men dominating engineering roles in the tech industry. Instead of a company saying they just want to hire more women, particularly women of color, to reduce occupational segregation, it should use language that expands the applicant pool rather than shrinks it.

While many companies use HR metrics to inform hiring decisions, sometimes the legal department isn't as involved with breaking down these metrics. A new survey from XpertHR found of the 420 employers who responded, 70% say they pay attention to employee turnover as an HR metric, usually a measure of diversity and inclusion if employees belonging to a certain group keep leaving the company. The survey doesn't list legal as a partner in metrics analysis, but 28% of the 356 employers who examined at least one metric say operations helps with the analysis.

This could mean some HR and legal departments may not work together on the metrics that eventually contribute to the diversity and inclusion hiring initiatives. Or the collaboration may start when legal is alerted of an actual lawsuit or a threat of one.

But staffing metrics analysis between legal and HR may improve with the renewed interest in making sure the workforce is inclusive via recent partnerships such as the one with Association of Corporate Counsel and Society for Human Resource Management designed to help their chief legal officer and chief human resources officer members collaborate and examine workplace policies.

How is your legal department working with HR on overall hiring initiatives? Please let me know at [email protected].

SPONSORED BY ALM

Announcing Two Incredible Keynote Speakers for the Women, Influence & Power in Law Conference

WIPL is known for having some of the most engaging and energizing keynote speakers attend to share their thoughts, experiences, war stories and tips on effective leadership. And this year is no exception. This year, we are grateful to welcome two remarkable women come and inspire us: Tina Tchen, the President and CEO of the "Times Up" Legal Defense Fund and Paula Boggs, Founder of Boggs Media LLC and Former Executive Vice President, General Counsel and Secretary, Law and Corporate Affairs at Starbucks from 2002-2012. READ MORE

This is a big deal… The remedy that we achieved pertains to every person and company. It's huge. And it's just not that familiar to people, even some legal practitioners didn't realize how this worked.

- BIC general counsel and vice president Steve Burkhart talks to Corporate Counsel about how his company scored a legal victory by way of a general exclusion order from the U.S. International Trade Commission to stop the flow of counterfeit lighters from China into the U.S. market.

What's Happening

Talking About Race in the Workplace

Damien Atkins, GC of The Hershey Company, spoke with Corporate Counsel about driving change as an in-house leader during a time when anti-racism protests are taking place around the country.

One factor to promote diversity and inclusion goals in the legal department, he said, is to look at outside counsel and which partners get the credit for the matters.

"A lot of GCs, particularly if they didn't come out of the law firm setting, they don't know how law firms work from an economic standpoint. If you're going to advance the cause you've got to actually figure out who gets billing credit," he said. "We need to learn this from partners."

How to Do More with Less: COVID-19 Edition

Jessica Nguyen, the first CLO for Seattle-based Lexion, an artificial intelligence-powered contract management startup, wrote a recent LinkedIn post that generated hundreds of reactions and dozens of comments about having to do more with less during the COVID-19 pandemic.

Nguyen, a former Microsoft lawyer who also served as the first-ever GC for software company Avalara and compensation data firm PayScale, spoke with Corporate Counsel about how she deals with tight budgets, staff shortages and what she sees for the future of corporate legal departments.

"I feel like now executives are putting the foot on the neck, like, 'No, you have to do more with less. Our revenue projections have been cut by 80% or 60% and legal is a cost center,'" she said. "So legal and other operational departments get cut first or get pressure to do more with less first. During the pandemic, everyone's workload—and it may now involve a different kind of work—has doubled or tripled."

Frozen Visas Raise Risk and Compliance Questions

The Trump administration's decision to temporarily suspend H1-B and other work visas could include heavier workloads for legal departments along with more outsourcing to law firms and logistical challenges on top of the ones already created by COVID-19.

HR departments—many of which are responsible for handling matters pertaining to employees and immigration—likely aren't equipped to navigate some of the novel and highly specific questions raised by the new visa suspensions. So they will rely on legal departments for risk and compliance questions.

"Beyond the visa freeze, lawyers, including corporate legal departments, will be hit with new standards they haven't even had a chance to opine on once the administration issues rulemaking on H-1B and L-1 visas, since the administration is reported to be planning Interim Final Rules without the benefit of notice and comment," said Elizabeth Espin Stern, a partner in Mayer Brown's global mobility and migration practice.

Women, Influence & Power in Law Awards

Corporate Counsel's Women, Influence & Power in Law Awards awards deadline for submissions has been extended to July 15.

We are looking for general counsel and law firm partner applicants in the following categories:

Crisis Management: Industry – General Counsel Banking & Finance Insurance Transportation & Infrastructure Manufacturing & Chemicals Technology, Media & Telecom Retail & Consumer Goods

In-House & Law Firm Awards Innovative Leadership Thought Leadership Collaborative Leadership Women's Legal Awards General Counsel of the Year/Managing Partner of the Year Lifetime Achievement

If you know a general counsel or law firm partner who qualifies for a WIPL award, then please apply here.

Does Force Majeure Apply?

COVID-19 as a Trigger for Force Majeure: A Global Survey is a collaboration between ALM editors and McDermott Will & Emery lawyers Lisa Richman, Shawn Helms, Jason Krieser and Matthew Cin.

The authors developed the survey as a simple Q&A that allows companies and legal professionals to quickly access guidance for key questions across multiple jurisdictions, including globally. The ALM team designed the title to ensure easy access to answers as well as to the precedent underlying the guidance.

The publication, online and in ebook format, covers 10 countries and 16 U.S. jurisdictions, including California, New York, Illinois, Florida, Georgia, Pennsylvania, Massachusetts, New Jersey, Texas and D.C. The international sections help readers assess contractual obligations in Belgium, Canada, China, Germany, France, India, Italy, Japan, Mexico and the U.K.

The ebook can be purchased at Law Journal Press.

On the Move

Willie Hernandez, formerly of IBM, Amazon.com and Hewlett Packard, has joined Facebook as director and associate GC of product. He leads the legal team for Facebook's core app. Most recently the former vice president and deputy general counsel for Hewlett Packard Enterprise, Hernandez made the announcement on Facebook.

Federal Communications Commission named Ashley Boizelle as acting GC. She will serve the term from July 13 to Sept. 4 while GC Thomas M. Johnson Jr. is on paternity leave. Boizelle joined the FCC as deputy GC for administrative law and has served as deputy GC for litigation since last year.