Careers

Diversity

With 17 offices, from New York to Los Angeles and Seattle to Orlando, we live and work in communities all over the U.S., collaborating across locations, disciplines and even borders. Our experienced, highly ranked lawyers serve businesses wherever they are and wherever they want to go.

Offices

About Us

Pages

Professionals

Thought leadership: blogs, podcasts, videos, publications, events and news

Insights

Services

Pro Bono

Am Law 100 firm with practices in Business, Digital Assets and Data Management, Intellectual Property, Labor & Employment, Litigation and Tax.

Home | BakerHostetler

Randal Shaheen Quoted in National Law Journal on FTC’s Regulatory Approach

Peter Roskam Comments on Political Climate in National Law Journal

ADventures in Law

Dark Patterns Go International: FTC and International Consumer Protection Networks Conduct Sweep of ‘Deceptive Design Practices’ Related to Subscription Services, Privacy

Jeff Paravano, Michelle Hervey, Nick Mowbray Speak to Tax Club of Cleveland

<figure class="wp-block-image alignright size-large is-resized"><img decoding="async" src="https://www.adventures-in-law.com/wp-content/uploads/sites/33/2021/10/people-and-digital-concept-GettyImages-1093674926_cropped-650x366.jpg" alt="" class="wp-image-5566" width="428"/></figure>



A recent survey of FTC employees put forward some interesting numbers. In 2020, FTC staff were asked if their senior leaders “maintain high standards of honesty and integrity” <a href="https://www.opm.gov/fevs/reports/data-reports/data-reports/report-by-agency/2020/2020-agency-report.pdf">and 87 percent answered positively</a>. In November 2021, the same staff were asked the same question and the positive responses <a href="https://www.opm.gov/fevs/reports/data-reports/data-reports/report-by-agency/2021/2021-agency-report.pdf">dropped by 34 points to 53 percent</a>. When staff were asked whether they have a high level of respect for senior leaders, positive responses dropped by 35 points. Do senior leaders inspire motivation and commitment? Down from 80 percent to 42 percent. Not a rousing vote of confidence. We are here to break this down for you – in particular, what it means for companies appearing before the FTC.



For those who aren’t familiar with the Federal Employee Viewpoint Survey (FEVS), it is a large, annual survey of the federal workforce. For at least the past decade, the FTC has ranked <a href="https://bestplacestowork.org/rankings/?view=overall&size=mid&category=leadership&">exceedingly high</a> in job satisfaction and views of senior leadership for medium-sized agencies, regardless of the party in charge. The agency is often number one or number two in most key categories. At this time, survey results from other agencies have not been published, so we do not yet know the rankings. But a review of the raw data looks quite troubling, and pretty much guarantees that the overall ranking of the FTC among agencies will plummet. There is quite simply no way to polish this thing.



Although FEVS results reveal a stunning drop in FTC employees’ overall views of agency senior leadership, not all results dropped. Indeed, employees’ views of their immediate and division supervisors actually remained quite impressive and stable.



As alluded to above, this is an agency that has scored exceedingly high for many years, regardless of whether Democrats or Republicans ran the place. Questions should be asked about what is going on that may be contributing to this sudden and dramatic change in staff perception of agency leadership. These are not the sorts of modest deviations that you may expect to see from year to year.



So what does this mean for companies that are in the FTC’s crosshairs, that are wanting to engage with the agency, or that want to keep informed on agency developments? Certainly, the current chasm that appears to exist between staff and senior leadership suggests that interactions with the agency will be more challenging. The seeming lack of cohesion at the agency may mean that senior leadership might be less inclined to adopt staff recommendations, and that can certainly create difficulties when you are engaging with staff.



Another thing to be mindful of is that opportunities to hear directly from staff have decreased significantly. Although some of the commissioners have been speaking publicly, different rules apply for staff, and there are unfortunate limitations being placed on staff members’ ability to speak publicly. Other sources – such as this blog, perhaps – have to substitute for hearing things directly from staff.



And finally, there has been a good deal of talk about the brain drain that is going on at the agency – and we continue to see departures of highly talented senior FTC staffers, at rates that I can anecdotally tell you are also unprecedented. That isn’t great for the agency, but a lot of companies are now benefiting from being able to hire talented senior FTC staff, and that includes tech companies, streaming platforms and fintech companies, among others.



So what exactly is happening here, and how did we get here? Well, at the outset, I would be remiss if I didn’t mention a <a href="https://www.politico.com/newsletters/west-wing-playbook/2022/04/05/trouble-inside-the-kingdom-of-khan-00023056">recent Politico article</a> that contained concerning allegations about one of the members of the agency’s senior leadership and their questionable approach to leadership. I would also take a close look at an important <a href="https://www.ftc.gov/system/files/documents/public_statements/1598399/ftc_2021_fall_forum_wilson_final_the_neo_brandeisian_revolution_unforced_errors_and_the_diminution.pdf">speech that Commissioner Christine Wilson delivered in November 2021</a>, which was coincidentally right around the time that the survey data was being collected from agency staff. For those who might not know, Commissioner Wilson has a long and storied history at the FTC and has always been a fierce advocate for staff. In addition to her current tenure as a commissioner, she was the chief of staff for former Chairman Muris and even did a stint at the agency when she was in law school. In her speech, she raised a lot of concerns about recent FTC policy changes – but she also focused a great deal on leadership problems at the agency.



In her speech, she describes one mistake leadership is making as “shunning the agency’s actual experts,” which she makes clear are the agency’s “dedicated staff.” She bluntly states that “current leadership has sidelined and disdained our staff.” One of the things Commissioner Wilson cites is the fact that as soon as Chair Khan took over, her chief of staff issued a broad speech and event moratorium which required FTC staff to <a href="https://www.politico.com/news/2021/07/06/ftc-staffers-public-appearances-498386">cancel all future public appearances</a>. And since then, for almost 10 months now, FTC staff have indeed made very few public appearances, despite outreach to consumers and business being a vital part of the agency’s mission. Commissioner Wilson noted that “[w]hen staff participate in external events, it enhances their expertise and job satisfaction while educating stakeholders about our agenda. But this win-win scenario now violates the rules.” I worked for nine different chairs and acting chairs during my 23-year FTC tenure, and none of them ever imposed any such broad prohibition on staff participating in outreach. What does it signal to staff if your first action as leader is to forbid them from speaking publicly about the agency? Indeed, I attended a recent event held by the American Bar Association that illustrates this: In every year past, panels featured FTC staff speaking to hundreds of practitioners about the agency’s priorities and initiatives, but this year, virtually no FTC staff were permitted to speak at the event, while staff from the Department of Justice did appear.



Commissioner Wilson ends the speech by noting that she “speak[s] for the dedicated FTC staff. They have been through transitions, and they will do what is asked. They deserve respect, not disdain.” If you haven’t read her whole speech, I suggest you do so. The strong tone of the speech is unusual for an FTC commissioner, but I believe it reflects strongly held policy views as well as deep concern for FTC staff. And that concern appears on point, particularly five months later when we are now seeing utterly dismal survey results.



I filled out many of these surveys over my years at the agency. Staff takes these surveys seriously, as it is their opportunity to make their voices heard. I personally know how talented and dedicated career FTC staff are, and I know that prior administrations, on both sides of the aisle, have appreciated and embraced staff members’ talents and experience. Hopefully these results will be a wake-up call and a strong reminder to current and future FTC leadership that the agency’s strength lies with its career staff – that they should be a priority and not sidelined. Results like this should be met with action, not excuses. FTC staff has sent a strong message and it is incumbent upon senior leadership to act accordingly and demonstrate their admiration for career staff and for the 100-year-old-plus institution through actions and not just words.

core/freeform

Compliance concept with icons, virtual screen, businessman touching button

Washington, D.C.

Partner

Daniel Kaufman

Advertising, Marketing and Digital Media

Digital Assets and Data Management

What’s Going on at the FTC? New Employee Survey Raises Issues If You Are Engaging with the Agency

Related Services

Featured Insights