LEL Flash | Issue: February 2014

FLASH header

Flash Co-Chairs: Jeremy J Glenn, Meckler Bulger et al | Monique R. Gougisha, Ogletree Deakins | Amy F. Shulman, Broach & Stulberg LLP | Jennifer R. Spector, National Labor Relations Board

Issue: February 2014

Comments from the Chair

On the Road

During the Committee Midwinter Meeting season, I am traveling to a wide range of our vibrant and highly substantive Standing Committees and note the different committee cultures and the manner in which the material we study is presented. Our Committees vary from the ADR in Labor and Employment Law to Workers' Compensation, and many of them are seeing record attendance. They are presenting well balanced programs and promoting the diversity of our profession.

February was a very active month, with Midwinter Meetings for Employee Benefits Committee in New Orleans, Federal Labor Standards Legislation Committee in Miami Beach, Federal Sector Labor and Employment Law Committee in Washington, D.C. and ADR in Labor and Employment Law in Fort Lauderdale. This edition of the FLASH will cover the highlights of the Employee Benefits Committee ("EBC") meeting, and the others will be featured in forthcoming editions.

The Employee Benefits Committee recognized ERISA's 40th anniversary at a reception in a New Orleans loft amid the haunting and rather loud music of Rockin' Dopsie, Jr. and The Zydeco Twisters, a highly regarded band that has played at the White House, which critics have hailed as one of Zydeco's most cherished symbols, and have said "a party seems to break out whenever and wherever he and the band show up." And that is exactly what happened on the night of Thursday, February 6, when the Midwinter Meeting attendees and their guests showed up to celebrate, with a delicious almond birthday cake with white frosting, the 40th anniversary of the passage of ERISA, that very technical, complicated and important piece of legislation that most non-members of the Committee do not understand. Members of EBC worked on the drafting of the legislation and have helped educate legions of benefits lawyers by writing the major treatise in this area, Employee Benefits Law, now in its third edition.

In addition to the cake and the party, the co-chairs invited Judge Edith Jones of the Fifth Circuit to speak about her long time work on the court, the way in which she approaches the cases, tips for oral argument and ERISA in general.

Her observations about oral argument were instructive. She suggested lawyers' bad habits are:

  • Use of an iPad in oral argument. One lawyer recently spent 45 seconds scrolling through his iPpad in search of an answer or citation, and at first, she thought he was just looking down until she noticed his fingers scrolling on the device. He was voiceless while he was scrolling and was not keeping track of the twenty minutes allotted for the argument.
  • Use of jargon that the court does not understand.
  • Not starting the argument with your key points because the court already knows the facts, even though the panel members may not have read the record. They are well prepared before the argument and stating the facts uses up the precise time for the argument.
  • Lawyers are not always well prepared and do not have real knowledge of the record or the law. She admitted that even if the lawyer is not well informed about the case, the court decides it on the basis of the facts, but stated, "It is a shame that lawyers are not well prepared."

It was no surprise to hear her say that in this very difficult area of the law, "we have a lot of ignorance," and that is why a very good brief is essential. She cautioned the brief writers to observe the court's page limits. She said. "If you can't meet the page limits, you are making a mistake."

Working from a cold record in a case in which summary judgment was granted creates challenges for the court, which is why she appreciates oral argument in ERISA cases. The medical jargon and the more egregious factual situations can be better explained in oral argument, and the court is grateful when it has a chance to be better informed as a result of oral argument.

She acknowledged the very high level of deference given to the plan administrators in plan denial cases but noted the members of the court are ignorant about the dynamics of basic plan administration. She said that the judges assume it is an orderly process similar to claims adjudication in Social Security cases. Accordingly, she believes it would be helpful to know the background of the plan administrators, i.e., do they have college degrees and what is their level of experience in resolving healthcare claims. She believes that she can understand more about a case if she is aware of this kind of background information.

Two other highlights of the meeting were the diversity lunch and the presentation by Phyllis Borzi, the Assistant Secretary of Labor--Employee Benefits Security Administration, which oversees 707,000 private sector retirement plans and the welfare benefit plans for approximately 141 million Americans. Phyllis is one of the few presidential nominees to have been unanimously confirmed by the U.S. Senate. She spoke about the issues that are coming up in her agency and the conflict of interest rule that is still being considered. She noted that there has been an extraordinary public process for consideration of the rule. There have been a lot of good comments, multiple days of public hearings, a reopened comment period and the posting of the public hearing transcripts on the Department's website. A lot of the opposition from the business community was described by her as the Peter, Paul and Mary defense in that these kinds of activities sought to be regulated have been going on for 10,000 years. She thinks that this does not mean that the violations can keep on continuing.

The diversity lunch featured a discussion about how Ms. Borzi led from the top of her agency with the appointments of diverse employees and set the tone for promoting diversity in her entire agency. At the lunch, one of the committee members spoke eloquently about the basic reason to encourage a diverse work force. He rose to speak after the attendees completed their small group meetings, where they spoke about the need for diversity. This unidentified member stated, "We need to teach others in the institution as to the value of diversity. We are all problem solvers and we want people to know that their uniqueness contributes value to the organization."

The Section is trying to lead from the top with a renewed commitment to selecting diverse speakers for the November Annual Section Conference, which will take place in Los Angeles, a city with a large diverse population served by diverse lawyers, who we hope will attracted to participate on our panels.

Our Occupational Safety and Health Law, Railway and Airline Labor Law, Employment Rights and Responsibilities, Ethics and Professional Responsibility and Equal Employment Opportunity Committees will be meeting at four different sites in the second, third and fourth weeks of March.

Occupational Safety and Health Law ("OSH Law")

Among the pressing issues to be covered at this Midwinter Meeting are the following:

  • a wide range of developments in OSHA's enforcement programs and initiatives including: the use of the General Duty Clause in recent developments and OSHA's continued effort to obtain "enterprise-wide" relief under the provisions of the Act; the continued use of press releases prior to any adjudication of a citation and guidance from OSHA regarding who may serve as an employee representative during inspections.
  • A panel discussion on the use of temporary workers and whether staffing agencies who use such workers are complying with the Act.
  • Federal oversight of the state OSHA programs.
  • Presentations from the Assistant Secretary of OSHA and Joseph M. Woodward of the Office of the Solicitor of Labor on the activities of their respective offices.

Railway and Airline Labor Law ("RLA")

Highlights of the program will include an overview of the effects of the Affordable Care Act on railroad and airline employees; a review of ethical issues relating to RLA proceedings and an overview of current hot topic including whistleblower laws, new hours of service rules, application of state FMLA laws to carriers, who has right to bring grievances under the RLA, video cameras in locomotive cabs, and more;

Employment Rights and Responsibilities ("ERR")

The panels for this program will cover a number of the important issues confronting workers in union and nonunion workplaces and related litigation issues: They are: preserving claims on appeals, internal investigation of employees, value of summary judgment, compelled arbitration of employee claims and class action waivers, implicit bias, immigration reform, fitness for duty and workplace safety under the ADA and FMLA, retaliation claims under Title VII, handling whistleblowing claims, family responsibility discrimination claims, healthcare reform, employee privacy issues with electronic devices, employee misclassification, covenants not to compete, off-duty misconduct, DOMA and same sex marriage issues, and disciplining employees for off-duty misconduct.

Ethics and Professional Responsibility

The meeting of our Ethics Committee will be held in conjunction with the ERR Committee and will feature the following topics: representing multiple clients, multi-jurisdictional practice, working with a pro se plaintiff, ethics of individual employment and class action disputes, and atypical fee agreements.

National Conference on Equal Employment Opportunity Law ("EEO")

Top officials of the EEOC, DOL and DOJ will talk about the topical issues involving government litigation, recent court decisions involving their agencies, and the strategic plans.

  • In addition various panels will feature:
  • Views from the EEOC District Offices on the implementation of the EEOC Systemic Program
  • Retaliation and whistleblowing
  • Class actions after Dukes and Comcast
  • Age discrimination
  • Arbitration and class action waivers
  • Immigrant workers and national origin discrimination
  • Supreme Court review
  • OFCCP and pay discrimination
  • Legal implications of wellness programs
  • ADAAA
  • Pay equity

As always is the case with the Section's standing committees, these will be well balanced and highly professional programs. We hope you attend them with safe travels.


Joel D'Alba
Chair, ABA Section of Labor and Employment Law

Three Important New Updates Now Available!

Age Discrimination in Employment Law, with 2013 Cumulative Supplement

Age Discrimination in Employment Law arms practitioners with winning strategies and detailed analysis of this litigious area of employment law and presents guidance on issues such as persons protected under the ADEA; persons against whom a charge can be filed; retaliation, hiring, and promotion; mandatory retirement; reductions in force; constructive discharge; special issues for unions and apprenticeship programs; disparate treatment; collective bargaining agreements and union obligations; litigation strategies; and more.

The 2013 Cumulative Supplement includes updates on case law developments through June 30, 2013, including appellate court decisions analyzing the types of direct and circumstantial evidence most commonly cited to affirm or reverse motions for summary judgment; federal court decisions discussing the fine line between ageist remarks that can lead to liability and non-actionable stray comments, in the context of discharge, layoffs, and succession planning; and federal court cases that explore whether state law age discrimination claims will be analyzed in conformity with, or more generously than, the Supreme Court's interpretation of the ADEA "but for" causation in Gross v. FBL Financial Services, Inc.

This treatise is published in cooperation with the Federal Labor Standards Legislation Committee.

Employment at Will: A State-by-State Survey, with 2013 Supplement

This survey provides a comprehensive analysis of the employment at will doctrine, inventorying the many exceptions recognized by the courts on a state-by-state basis.

The 2013 Supplement updates the main volume with information on two additional torts for each state: self-defamation/compelled self-publication and false imprisonment. The 2013 Supplement also discusses new state law developments, including an amendment to the California Fair Employment and Housing Act prohibiting employers from considering religious dress practices and/or religious grooming practices when making employment decisions, including hiring and termination; additional cases involving claims of public policy exceptions from the at will doctrine in Connecticut, Illinois, Iowa, and Massachusetts; the prohibition on the termination of an employee due to gender identity in Massachusetts; and additional decisions involving implied-in-fact contracts in Kansas.

This treatise is published in cooperation with the Employment Rights and Responsibilities Committee.

Wage and Hour Laws: A State-by-State Survey, Second Edition, with 2013 Cumulative Supplement

This treatise provides analyses of state statutes and the regulations, wage orders, and court cases interpreting and applying the laws. This treatise covers all 50 states, plus the District of Columbia and Puerto Rico, jurisdiction by jurisdiction, and addresses such state wage and hour law issues as minimum wage and overtime; timing, place, and manner of payment to employees; mandatory payments in addition to overtime; prohibitions on hours worked and mandatory leave; enforcement and remedies; special litigation issues; common law wage and hour actions; attorneys' fees litigation; liens specific to unpaid wages; and defenses unique to state wage and hour litigation.

The 2013 Cumulative Supplement addresses new state wage and hour law developments, including a California Court of Appeals holding that the minimum wage attaches to and must be paid for each separate hour of work; a federal court holding that the fluctuating workweek method of computing overtime is not allowed under the Pennsylvania Minimum Wage Act; in Connecticut, an agreement that an employee's right to a commission ceases upon termination is held to be void as against public policy; a federal court holding that the Indiana Wage Payment laws regarding timely payment of wages apply to federal employees; and the imposing of significant statutory obligations in Massachusetts specific to temporary staffing companies.

This treatise is published in cooperation with the Federal Labor Standards Legislation Committee.

For a complete listing of Section titles and discounted prices and to order, visit the Bloomberg BNA book division website.

Section members are entitled to significant discounts on this and other Section treatises published by ABA/Bloomberg BNA, including the following best-selling editions: Covenants Not to Compete: A State-by-State Survey, Ninth Edition and Employee Duty of Loyalty: A State-by-State Survey, Fifth Edition.

Online Publications

Be sure to check ABA Journal of Labor and Employment Law and Labor and Employment Law News archives for more news and reports. The current issue is always on top.

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Roadmap to Compliance with the Employer Shared Responsibility Provisions under the Affordable Care Act

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Road to Understanding and Dealing with Claims and Suits that Can Be Brought under the Affordable Care Act

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Employment Law for Law Firms: Best Practices for Law Firms as Employers

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