We have reason to be sanguine about the prospects for 2021. Yet, we unfortunately still need to contend with a lot of the lingering problems from 2020. Issues like the global pandemic, economic downturn, continued pressure on the climate, and corporate consolidation still loom large on the horizon.
While those complicated issues are the sign of our times, those issues may help you focus your in-house career. Indeed, knowledge of the current trends points you to what might be most important to in-house employers now and in the next few years.
Remember, Economics 101 tells us that you want to make sure that buyers want to buy what you are selling. When translated into your search for an in-house position, that principle means that you want to make sure that you have a skill set that is marketable to employers. Accordingly, focusing your abilities and experience on the issues that are currently facing American businesses today will help you maximize your attractiveness for in-house counsel positions.
In this article, we want to give you a nudge in the right direction by discussing five current trends that are impacting American companies, both large and small. With your finger on the pulse of these issues, employers will be motivated to “buy what you are selling.”
Trend #1: The Battle Over Gig-Workers Is Heating Up
Even before the pandemic, the “gig economy” was beginning to thrive. Many workers were opting to become their own boss by taking on freelance (i.e., “gig”) work or side jobs to make extra money. In addition, more people were turning their freelance jobs into full-time vocations, cutting the cord with the “regular” job world altogether.
That trend, as you might expect, has only increased since the pandemic has hit. The historically high unemployment rate has forced many workers into the “gig economy” out of necessity. As a consequence, the battle of how employers should classify gig workers has heated up.
The central question here is whether gig workers are “employees” who are eligible for benefits such as health and retirement benefits, and unemployment; or whether they are “independent contractors” who are not eligible for those employee benefits. You may likely be aware that this battle has been driven largely by the ride-sharing industry. Companies like Uber and Lyft have been lobbying hard to be able to continue to classify their drivers as independent contractors. Yet, the gig worker issue pervades all industries to varying degrees.
What does this issue mean for your in-house aspirations? If you want to work in-house, then you need to know that this issue may come across your desk. You need to be aware that California’s Proposition 22 and a draft regulation from the Department of Labor lean in a pro-business direction, yet gig workers seeking employee benefits are gaining significant traction in the courts. If you are conversant on this issue, you will be sure to impress in your next in-house interview.
Trend #2: A Focus on Anti-Trust Issues
All you need to do is open the newspaper to any day in 2020 and you will know that tech giants like Amazon, Facebook, Apple, and Google have been under intense scrutiny. Being deemed “gatekeepers to the internet” by Congress, those companies are being cited for certain anti-trust practices involving data privacy. Moreover, the companies have been gobbling up other smaller companies as a way to neutralize competitive threats.
The scrutiny does not stop at the water’s edge. The antitrust regulator in Germany, the German Federal Cartel Office, recently ordered Facebook to stop the way in which it tracks users’ internet browsing and smartphone apps. The U.S Government is poised to follow Germany’s lead on Big Tech’s potential to misuse consumer data.
Overall, this anti-trust push against Big Tech will spill over to any corporation that is perceived as having a dominant position in the marketplace. As a future in-house counsel, you will need to know that proposed acquisitions, marketing strategies, and use of consumer data can negatively impact a company’s bottom line if it draws government scrutiny or litigation.
Trend #3: Climate Change Litigation
Increased weather extremes, rising oceans, and the repairs to infrastructure needed to adapt have driven a remarkable number of lawsuits recently, largely focused on the oil industry. While courts are beginning to struggle with procedural issues of standing and venue, the notion of major climate-change-related lawsuits is a threat that is only getting bigger.
As we settle into 2021, climate-change litigation will likely increase and involve not only the oil industry, but all of the stakeholders tied to the oil and gas industry. These cases are complex. They often involve cases over several jurisdictions, with many litigants, and various legal claims.
Having a handle on the kind of challenges climate-change litigation presents will be an asset to any in-house counsel seeking to represent U.S. corporations large and small.
Trend #4: Force Majeure and Breaking Contracts
The pandemic dramatically shut down travel and other public events, leaving a host of people essentially saying, “I want my money back.” You should not be surprised to learn that all types of contracts for events ranging from white water rafting trips to weddings are now the subject of litigation . . . lots of it.
Most boilerplate agreements for season passes, or college tuition, or the event space for your child’s sweet sixteen birthday were cancelled throughout 2020 because of the pandemic. That meant that the force majeure clause in the relevant contracts became the focal point of any dispute.
As in-house counsel for any company, you need to be attuned to the fact that a boilerplate agreement for your organization needs to be reexamined to make sure that they contemplate an event like the pandemic moving forward.
Trend #5: Time to Brush Up on Chapter 15 Bankruptcies
You likely know about Chapter 11 (reorganization) and Chapter 7 (liquidation) bankruptcies. But, what do you know about Chapter 15?
A fairly new form of bankruptcy resulting from the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act amendments, Chapter 15 allows a foreign representative of a business to simultaneously file a supplementary bankruptcy in the United States. Compared to 2019, Chapter 15 bankruptcies were up an incredible 68 percent in 2020.
While there is evidence that this trend is only temporary, you would be wise to be aware of this type of foreign-company bankruptcy restructuring. It could be the kind of information in an interview that will set you apart from your competition.
You want to distinguish yourself from others when looking for that next in-house role. Aligning your practice area development with long term business needs is one component of successful career planning. Thus, being in tune with the trends impacting U.S. companies and how you have secured the practice area expertise would be a strong arrow in your quiver when interviewing for that next in-house career opportunity.