Section of Labor and Employment Law | 321 North Clark Street | Chicago, IL 60654-7598 | Phone: (312) 988-5813 | Fax: (312) 988-5814 |

Issue: May 2011

Comments from the Chair

With the closing of the 2011 Committee Midwinter Meeting season, I would like to point out to our members that Continuing Legal Education (for our own members as well for non-member practitioners) is, in my mind, probably the primary function of our Section. The publication of expert and balanced treatises, in 27 separate publications, is a close second. The budgets for the past two years and the tentative budget for 2012 show that just about sixty per cent of our revenues and expenses are related to providing CLE. This includes our Annual Conference, committee midwinter meetings, our programming at the Annual ABA meeting, and various webinars held throughout the year on new cases and hot topics. Our next major event is the ABA Annual Meeting, August 4-7 in Toronto, Canada. ABA Annual Meeting registration information can be found elsewhere in this issue.

While it is true that we have had less CLE Programming at the ABA Annual Meeting than in prior years since we started holding our own Annual Conference, the programs we have put on have been uniformly excellent and will be again this year. The CLE Committee through Samantha Grant and the Annual Meeting Co-chairs Eric Tate, Stanley Gosch, Beth Terell, and Lisa Kohn have been hard at work on developing a great program for Toronto which takes advantage of the Canadian venue in terms of some speakers and topics. We were pleased that one of our programs was again selected by the ABA to be Showcase Program at the Annual Meeting. Entitled "Investigating and Forgetting on the Web", this Showcase will deal with issues facing all of us.

Gordy Krischer

Chair, ABA Section of Labor and Employment Law

Special Feature

EEOC's New ADAAA Regulations: Something for Everyone?

By Louis Lopez and Daniel Vail


On March 25, 2011, the U.S. Equal Employment Opportunity Commission (EEOC or Commission) published its much-anticipated final regulations under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA or Act), along with a newly-revised "appendix" interpreting and explaining these new rules. See 76 Fed. Reg. 16978 - 17,017 (Mar. 25, 2011). Hailed by business and labor alike as a model of legislative cooperation and compromise, the ADAAA was the product of extensive negotiations involving a broad spectrum of employer groups and disability rights advocates and ultimately had overwhelming bipartisan support. Like the legislation, the final regulations and the revised appendix also are a bipartisan product, having been approved by members of both political parties represented on the Commission. Further, the new rules and appendix contain provisions that should satisfy both the defense and plaintiff bars.

Since the Americans with Disabilities Act (ADA) was first enacted in 1990, "disability" for these purposes has been defined as (1) a "physical or mental impairment" that "substantially limits" a "major life activity"; (2) a "record of" such an impairment; and/or (3) being "regarded as" having such an impairment. In passing the ADAAA, Congress found that certain Supreme Court decisions had construed this definition too restrictively, and that the EEOC's original ADA regulations had expressed too high a standard for coverage. Accordingly, the express purposes of the ADAAA include "convey[ing] that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis" and "express[ing] Congress' expectation that the [EEOC] will revise . . . its current regulations . . . to be consistent with this Act . . . ." See ADAAA §§ 2(b)(5), (6).

Ethics Corner

New York State Bar Association Tackles Ethics of Cloud Computing

As more and more practices shift to cloud computing, lawyers are left to grapple with the application of the ethics rules to advancing technology. The New York State Bar Association's Committee on Professional Ethics ("NYSBA Committee") published an opinion outlining the ethical considerations for attorneys who hire third-party providers to store electronic client files. N.Y. State Bar Assoc. Comm. on Prof'l Ethics, Opinion No. 842 (2010). The NYSBA Committee concluded that, just as an attorney may hire a third party to store hard-copies of client files, so too may an attorney use an online storage system, provided the attorney exercises reasonable care to ensure that confidential information will remain secure.

The NYSBA Committee's holding is consistent with New York Rules of Professional Conduct Rule 1.6(a), which requires that, subject to certain exceptions, "a lawyer shall not knowingly reveal confidential information . . . or use such information to the disadvantage of a client or for the advantage of a lawyer or third person ." Rule 1.6(c) requires that an attorney exercise "reasonable care" to ensure that third-parties who provide services for the attorney do not divulge or use confidential information.

LEL Hot Topic

Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834, Argued October 13, 2011, Decided March 22, 2011


Kasten v. Saint-Gobain Plastics Corporation sheds light on the scope of FLSA's anti-retaliation provision. The case involved an employee who alleged that he was discharged as a result of oral complaints to his employer about the placement of its timeclocks. Overturning the Seventh Circuit's judgment that oral complaints are not protected, the Supreme Court held that oral complaints are covered by the FLSA's anti-retaliation provision when they provide the employer with fair notice under an objective standard.

ABA 2011 Annual Meeting

Join the American Bar Association for the 2011 Annual Meeting in Toronto, Canada, where we'll leverage the strengths of lawyers just like you from around the country and around the world.

  • August 4-9, 2011
  • Network with peers to make new professional contacts
  • Earn up to a year's worth of CLE
  • Learn from leading legal experts

Register today.

Visit or call (312) 988-5871.

Labor & Employment Law programming at the 2011 ABA Annual Meeting

Save the Dates: Committee Midwinter Meetings 2012

2011 Committee Midwinter Meeting is just about wrapped up for this year, but it's never too soon to save the dates for the 2012 Committee Midwinter Meeting on your calendar! As usual, the ABA Section's Midwinter Meetings will be loaded with substantive programs on hot topics, current developments and recent decisions, presented by experts in their respective fields. All committee Midwinter Meetings are eligible for CLE credit; some fulfill a year's requirement in many states.

Section Treatises: New Editions & Updates

Now available: The new 2010 Cumulative Supplement to the classic ABA/BNA treatise, Trade Secrets: A State-by-State Survey, Third Edition, an in-depth analysis of each state's statutory and common law protection of trade secrets. This treatise is written by BNA Books' State-by-State Survey series author Brian M. Malsberger. Arnold H. Pedowitz and Robert A. Blackstone are Board of Review Associate Editors, from the Employment Rights and Responsibilities Committee. An essential companion volume to the Committee's other comprehensive State-by-State Surveys published by BNA Books, this treatise provides authoritative, in-depth analysis of each state's statutory and common law protection of trade secrets and other confidential business information, both within and outside the employment context.

Section Newsletter

Published quarterly, the Newsletter contains information on current Section projects, recent development and decisions, upcoming educational opportunities, new books, and other news that is of interest to Section members.

Issue: Winter 2011
4th Annual Section Conference Issue
Volume 39 | No. 2

Featured Article
Implementation of Health Care Reform Law Remains Priority| by: David L. Johnson and Sara Anne Thomas




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American Bar Association Section of Labor and Employment Law
321 N Clark | Chicago, IL 60654 | (312) 988-5813