A Revolutionary New Software Product Benefits Employment Law Practitioners And Their Clients

Friday, June 1, 2007 - 01:00

Editor: Would each of you tell our readers something about your background and professional experience?

Weitzman: I began my career at Proskauer as a labor and employment attorney immediately upon graduation from Cornell Law School and have been at the firm my entire professional career, having spent 21 years in the New York office and the last 13 years in the Boca Raton office. Because I have written and spoken extensively on the ADA and the FMLA, my work on the FMLA/ ADA DecisionMaker Software project was a natural fit.

Rolnick: I practiced with Constangy, Brooks & Smith LLP in Atlanta for over 34 years, dealing primarily in designing compliance programs to reduce clients' exposure. I retired as a senior partner in the firm to pursue this dream of providing software solutions for complex employment law issues. I believe compliance is good for employers because it uncovers inefficiencies in the HR function that lower profits. A manual checklist addressing all variables contained in our software would be at least 50 pages long - an unmanageable morass of questions. The thought of missing an item is daunting! DecisionMaker Software undertakes a thorough examination of each and every situation, eliminating this fear. Decisions become more solid, more fully analyzed and well documented. Our compliance solution to the single most complex area of employment law helps employers make correct decisions while supplying them with the technology to document everything that has been done, a critical element in litigation prevention. The use of technology is an idea whose time has come.

Editor: How did the two of you come together on this effort?

Rolnick: No firm has a finer reputation for high-quality legal work and ethical standards than Proskauer. Their labor and employment practice is the envy of the bar. I approached Allan Weitzman as a potential business partner. After witnessing the groundbreaking nature of our software, Proskauer agreed to jointly promote the FMLA/ADA DecisionMaker. It is a new venture for them and an important relationship for us. Proskauer's review and editing of the program initially and on an ongoing basis ensures high standards. Proskauer will develop updates so that our subscribers are kept up to date with key changes in the law. The Proskauer name on the entry screen connotes the high quality and accuracy that DecisionMaker brings to the marketplace.

Weitzman: Our decision to team up with DecisionMaker resulted from the confluence of three factors. First, with considerable success, Proskauer had previously worked with another technology-based company known as WeComply to develop and market an antidiscrimination and harassment training program. Second, as a Department, the Labor and Employment partners had discussed pursuing other opportunities for ancillary business ventures that mesh well with our client-oriented goals and our standards of excellence. Third, when Alan gave me a demonstration of the product, my reaction was "wow." As an employment litigator, what could be better than having your client email you a complete file showing every step in the decision making process? We have reviewed and edited all of the forms in the program with an eye towards either avoiding or prevailing in litigation. One client's reaction to this program is that we have made the FMLA and ADA process infallible.

Editor: Would you give a brief summary of the FMLA and ADA?

Weitzman: The FMLA is a law that gives eligible employees who work for covered employers an opportunity to take up to 12 weeks a year of leave with a guaranteed right to return to the same or equivalent jobs with their healthcare benefits being continued by the employer during that leave to the same extent they were paid while they were working. The ADA is a law that prohibits discrimination against employees with disabilities. The law also requires employers to provide reasonable accommodations to employees with disabilities in order to allow them to perform their jobs' essential functions, unless the reasonable accommodation would create an undue hardship for the employer.

Editor: Will the software adversely affect lawyers' businesses?

Rolnick: No, as each key legal issue arises, the user is strongly advised to consult with counsel. The lawyer's critical role in the compliance process has been enhanced, not diminished. The built-in email function of the software allows the user to send the entire file to counsel with everything organized so that counsel can laser in on the legal issues presented. This saves lawyer-time, which translates to cost savings to the employer. An organized file allows counsel to concentrate on solving the legal problems.

Editor: What is the impact on the human resource function?

Rolnick: We included HR best practices based on our years of practice. We will update it as subscribers look to us for further improvements. HR efficiency will be improved by the controls built into the program, one example being the instant recall feature. Today, all HR people using manual systems face the need to conduct time-consuming file searches. The software does that automatically by clicking on the employee's name, resulting in hours of HR efforts saved. Between the dollars saved and the more efficient use of counsel's time, the annual subscription cost will be recouped within a matter of weeks.

Editor: What is the audience for this product?

Rolnick: Today, there are over 270,000 employers in the U.S. covered by the FMLA. There is a lower threshold for ADA coverage. Conservatively, the typical employer will need at least five subscriptions since ADA and FMLA compliance is usually done on a location basis. That places the potential marketplace at 1.3 million subscriptions.

Editor: Are there varying costs depending on the number of subscribers per company?

Rolnick: The cost is standard. The introductory price is $1,000 per seat as that is defined. This is an annual cost. When we make changes and improvements, they are automatically sent out and subscribers can refresh their program at no extra charge.

Weitzman: There is also no charge when Proskauer decides that there has been a significant development in the law, sends an alert to subscribers telling them about the change, and makes any corresponding modification in the program.

Editor: Are there similar products on the market?

Rolnick: There is no competition because this software is unique. There has never been software that addresses the front-end decision-making process on FMLA/ADA matters. There are existing programs on the market limited to back-end record-keeping.

Editor: How will the product be marketed?

Rolnick: It is promoted by our channel business partners. Proskauer, as the legal channel, was first. We are talking to the leading EPLI carrier and would like to add a major benefits provider and a major accounting firm. We will add an HR software sales specialist and an Internet marketing firm.

Editor: Could you take us through a typical employer's use of this software?

Rolnick: Everything begins with a triggering event. That would be an FMLA, ADA or light-duty workers' compensation situation. The software will guide the user through a series of straightforward yes/no questions in a process that leads to the right result. By asking a simple set of questions, providing all forms, giving detailed instructions concerning where everything is to be filed and fully documenting a file through every step in the analysis, the software becomes a one-stop shop.

Weitzman: Using a hypothetical, if a supervisor comes into the Human Resources office and says that he has an employee who just hurt his back on the job and the employee needs 12 weeks' leave to recover, the HR professional will open the employee's file and will be prompted to answer questions. The answers will generate more questions, such as whether the employee has been with the company more than a year, whether the employee has worked 1,250 hours in the last year, and whether there are 50 employees within a 75-mile radius - proceeding down the path to determine whether the employee is eligible for FMLA leave. If so, the system has a form for the HR professional to provisionally designate FMLA leave, a form that the employee is asked to give to his doctor to prepare the medical certification, and a HIPAA form. The HR professional just clicks on the forms and is instructed where to send them and where to file them. That is all documented so that if I am litigating a case, this will all be sent to me electronically.

Editor: Are you offering a trial subscription?

Rolnick: Anyone can download the software for a free evaluation period lasting through June 30, 2007. They can go to www.proskauer.com to the firm's Practice Areas page and then to "Labor and Employment." They can click on the "Try It" button. It is an automatic install with help desk support available if needed. After July 1, 2007, it will be available for subscription at the introductory price of $1,000 per subscription.

Editor: The product is auditable. Would you take us through the auditing process?

Rolnick: Anyone accessing the software with a registered ID number is able to recap who did what and when and what forms were generated. Each series of questions and answers ends with the user certifying the accuracy of that Decision Set. This typically occurs when the user is waiting for medical certification, a factual development or the return of a form. The analysis proceeds based upon the users' applying the facts and the company's lawful leave policy to reach the correct result every time! There is a system of controls built into the software to prevent the user from skipping a step in the analysis or generating the wrong form. The forms are standardized, having been edited by Proskauer. They are only generated when the user is in that specific fact situation. I analogize FMLA and ADA compliance to peeling an onion - done a step at a time by following the software's lead.

Weitzman: At the end of each decision-making step in the process, the user is asked to review the decision and finalize it. Once that decision is finalized, none of the answers that were previously given can be changed to create facts that were not considered at the time decisions were made.

Editor: Is it possible to tailor the software and the forms for an individual company's needs?

Rolnick: The software can be networked or customized for the company's needs at additional cost.

Editor: Would you comment on the degree to which technology has penetrated the legal profession?

Rolnick: Lawyers use LexisNexis or Westlaw for research to garner information. Our software changes the paradigm of how employment law compliance will be conducted in the future. One day we will look back and wonder how we ever managed compliance any other way.

Please email the interviewees at aweitzman@proskauer.com or Alan Rolnick at jbratl@comcast.net with questions about this interview.