Employment Rights and Responsibilities Spring 2014 Newsletter | ABA Section of Labor & Employment Law

ABA Section of Labor and Employment Law

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Employment Rights and Responsibilities Committee News

Issue: Spring 2014

Looking Back with Dick Moon and Joe Golden

Our committee set itself apart early in its history by its camaraderie and inclusiveness. The culture reflects the early members. We asked Dick Moon and Joe Golden to give their recollections of the early days:

Dear John:

You asked about some reminisces of how the Committee got started and how it has evolved. I would say long, long ago, before the redwoods were tall, before Joe Golden's beard was white, there was the notion that the doctrine of employment at will should not stand. Out of the Midwest came old-time liberals bringing novel notions that principles such as mutuality, the statute of frauds and freedom of contract, should all fall by the wayside. Initial success was achieved until that resolute, absolutely conservative, state of New York, held that employment at will meant just what it said, either party could end the employment relationship for any non-illegal reason.

Unfortunately (or maybe not), the number of illegal reasons has expanded dramatically, and now, the issue of employment at will is merely a footnote in history to the much broader issues of retaliation and whistleblower claims. We now have cat's paw and retaliation theories traveling out years beyond the employment relationship. While defense lawyers of the early '80s believed that they were fighting the most important battle, the evolution of employment law, to which the ERR Committee has been the most critical group of attorneys in the United States, has been unimaginable. Victories in court, sustaining common sense, have been swiftly set aside by legislation. Now, in many states, because age discrimination is open-ended, there is absolutely no one that is not in a protected category. And as we all know, if it were not that more than half the population needs some sort of eye correction, wearing contacts or eyeglasses would also be a disability.

Class actions have been made the top 1% of the plaintiffs' bar the wealthiest attorneys in history, causing enormous income inequality. No wonder they balk at arbitration, the allegedly fast and inexpensive way to achieve dispute resolutions.

While as a management attorney trying to defend the interests of employers, I groan at the magnitude and variety of claims now being brought, it is just proof of my old maxim, "shoot 'em, don't fire 'em, wrongful death is both easier to defend and cheaper than wrongful discharge."

Through all this, the Committee has remained not only vibrant, but also amicable. While each side may occasionally be totally exasperated, if not perplexed, beyond belief by the other's actions, ERR has remained a place where we can discuss each other's nuttiness without rancor (or at least not much). And it has certainly been a terrific place to make lifelong friends regardless of their professional persuasion. The educational opportunities will continue to be immense, the fun terrific, and the camaraderie wonderful.

Sincerely yours,

Richard G. Moon

John:

I was first introduced to this committee by Professor Steve Mazurak from the University of Detroit-Mercy Law School. Cindy and I attended a Michigan State Bar dinner and sat with Steve's group. He told me about the first committee meeting in Denver, Colorado, and the soon-to-be-held Second Annual in Washington, DC. So I went.

We sat around in a horseshoe-shaped auditorium, mostly men with suits and ties. Dick Moon wore red suspenders. We have been friends ever since.

The only other Plaintiff's employment lawyer from Michigan was my good friend Chuck Gottlieb, who's work in Toussaint v Blue Cross/Blue Shield got the national ball rolling on exceptions to employment at will. At the end of the meeting, Steve Pepe, the management co-chair asked if anyone was interested in forming a trial practice subcommittee. I became the Plaintiff co-chair of the subcommittee along with some young kid from Philadelphia as management co-chair. Alan Gross and I are close friends to this day. The most important discussion of the day came after the program was over. Lloyd Loomis wondered out loud why we were meeting in suits and ties in Washington, DC, without our wives, girlfriends, etc. He suggested warmer climates and a much more casual atmosphere. That vote took 20 seconds and as history shows, has been followed to the letter ever since. It was Ted St. Antoine who deserves credit for making the hierarchy of the committee truly ecumenical. He lobbied for a Plaintiff's co-chair at a time when employment law was still in its infancy, and in the ABA unions spoke for workers. That struggle would continue for years.

Joe Golden

CONTENTS: Opening Page | Donna's Employment Law Predictions for 2014 | 2014 for Employers: Elections and More | Remember No Intent Necessary!

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