LEL Flash | Issue: November/December 2013

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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: November/December 2013

Comments from the Chair

"The Section has succeeded again ..."

I am pleased to report that the Seventh Annual Section Conference received rave reviews from all quarters and constituencies of the Section. Over 1,300 members attended and were not disappointed with the CLE programs they attended, the social networking at both the Thursday night Second Line that led for many blocks from the Hilton to the Loews and ended in the Diversity Reception in a large piazza next to the hotel and the Friday House of Blues reception. Imagine a long line of lawyers walking . . . [ More ]

Special Feature

A Step in the Right Direction: Final Rules Published for Affirmative Action and Anti-Discrimination Obligations for Federal Contractors in the Employment of Veterans and Individuals with Disabilities

For far too long, veterans and individuals with disabilities have lagged behind others when it comes to employment and compensation. U.S. Bureau of Labor Statistics (BLS) data show that post-9/11 veterans (about 2.6 million through 2012) are unemployed at a rate of 9.9 percent, compared with 7.9 percent for non-veterans. For male post-9/11 veterans age 18 to 24, that number jumps to 20 percent, compared with 16.4 percent for male non-veterans in that same age group. Furthermore, post-9/11 veterans who are employed make less than . . . [ More ]


Recent Developments in Pregnancy Discrimination

In May 2013, the 5th Circuit clarified the definition of "related medical condition" for purposes of the Pregnancy Discrimination Act. The Equal Employment Opportunity Commission (EEOC) brought action against Houston Funding II, Ltd ("Houston Funding") on behalf of a female former employee, Donnicia Venters ("Venters"), alleging the employer unlawfully discharged Venters because she was lactating and wanted to express milk at work. EEOC v. Houston Funding II, Ltd., 717 F.3d 425 (5th Cir. 2013).

In December 2008, Venters took a leave of absence to give birth. At the time that she took leave, Venters and her supervisor did not specify a return date. Shortly after giving birth, she communicated to her employer that she would return as soon as her doctor released her.
During her leave, which lasted longer than anticipated because of complications . . . [ More ]



Diversity in the Legal Profession Committee Sees Positive Impact of United States v. Windsor

The Supreme Court's decision in United States v. Windsor, 133 S. Ct. 2635 (2013), is a boon for workplace diversity, as it allows employers to attract, retain and secure a talented workforce. Pre-Windsor, section three ("Section 3") of the Defense of Marriage Act ("DOMA") completely prohibited federal recognition of same-sex marriage. The sweeping scope of Section 3 forced employers to develop separate and often unequal systems for providing benefits to their employees with same-sex spouses. Several employers, including many represented in the ABA LEL Section, wanted to foster inclusion and avoid the administrative morass of a dual benefits regime, and attempted to equalize the landscape by following best practices suggested by LGBT rights organizations. However, DOMA made it impossible . . . [ More ]


Section News

2013 Frances Perkins Award Given to Global Freedom Center

The American Bar Association Labor & Employment Law Section's Frances Perkins Award recognizes individuals and organizations who demonstrate a significant commitment to providing pro bono legal services to people of limited means. For the last year, the American Bar Association, including our Labor & Employment Section, has focused attention on combating human trafficking. The ABA is promoting public awareness of human trafficking through media campaigns, videos on what lawyers can do, and public events focusing on the legal response to trafficking. This year's recipient of the Frances Perkins Award, the Global Freedom Center, is not only a worthy recipient, but one that supports the ABA's 2013 initiative.

The Global Freedom Center increases identification and prevention of human trafficking (both labor and sex trafficking) by training various stakeholders positioned but not yet taking action. Among those targeted by the Center's training are attorneys in a range of sectors for the purposes of providing pro bono legal representation. With the assistance of the Global Freedom Network, private sector pro bono attorneys represent trafficked persons in civil litigation, access to immigration relief, and as laws continue to expand post-conviction relief for victims incorrectly treated as perpetrators. The Center also trains non-profit legal service attorneys to expand their ability to identify and represent trafficked persons in the same areas.

The Executive Director of the Global Freedom Center, Kavitha Sreeharsha, graciously accepted the 2013 Frances Perkins Award at the Annual Section Conference in November 2013. Kavitha spoke to more than 100 attendees at the pro bono luncheon about the origins of the Global Freedom Center, the prevalence of human trafficking, and opportunities for lawyers to become involved in efforts to end the practice in all its various forms. If you are interested in learning more about the Global Freedom Center, please visit the website.

Information on past Frances Perkins Award recipients, the requirements for consideration, and the nomination process, may be found on the American Bar Association website. Nominations for this year's Frances Perkins Award will be accepted until June 2014.

Annual Conference Testimonials by First-Time Attendees

The Annual Section Conference continues to attract many first-time attendees. Numbers for first-time attendees at Annual Section Conference were up from 464 in 2012 to 515 in 2013. Here are some comments shared with us by two of those lawyers:

"I had the pleasure of attending the American Bar Association's Labor and Employment Conference last week, and I can state without hesitation it was the most informative conference I have been to thus far in my legal career. As a first time attendee, I appreciated that I was able to confer one-on-one with respected attorneys working throughout the country who practice in similar areas as I do, and I was able to participate in the mentor program and gain first-hand knowledge of how to get more involved in the ABA and advance my career. Each panel speaker and moderator provided me with a wealth of knowledge and differing perspectives on how to face complex legal issues. For instance, the meeting concerning employer's use of background checks provided me with invaluable insights from experienced attorneys, including an attorney with the EEOC, concerning this "hot topic" and how to better advise my clients. I have not only started making plans to attend next year's conference, but I have also sent e-mails to my peers encouraging them to get more active in this section of the ABA."--Krissy C. Nobile, Phelps Dunbar LLP

"The conference was extremely helpful and I will highly recommend it to others. While the wide range of topics offered something for everyone, the boot camp programs were particularly useful. The mentoring program for first time attendees was a bonus as well."--Timothy D. Gronewald, Howard & Howard


The Section of Labor & Employment Law consists of eighteen standing committees whose membership is drawn from lawyers across the country. These are truly vibrant, working committees. Serving as a co-chair in leading these standing committees requires a commitment to furtherance of the Section goals of inclusion, professionalism and substantive education. All committees have open enrollment, with the only prerequisite being Section membership.

Use this link to download an Adobe document with a complete listing of Standing Committee Co-Chairs for 2014.

Participate in the Diversity Speaker Database

The ABA Section of Labor & Employment Law has prepared this "Speaker, Moderator, Editor and Author Database" as a resource for Section members involved in planning and selecting individuals to participate in the Section's CLE programs, meetings, conferences and publications. The Section encourages members to join the Database. It should be noted that inclusion on this Database will not guarantee that any individual will be asked to speak or write. Moreover, a person need not be listed in this Database in order to be invited to participate as a speaker, moderator, author or member of any Section program or activity. This Database will not be published but rather will be utilized by the Section internally as a resource. Thank you for considering joining the Database.

Important New Treatise Updates!

Occupational Safety and Health Law, Third Edition

This authoritative resource on the Occupational Safety and Health Act (OSH Act) and accompanying regulations examines employer obligations to protect employees from occupational hazards, and provides clear analysis of how the law works--and how it affects clients. It examines every aspect of workplace safety and health law, including recordkeeping and reporting, the general duty clause, penalties, union participation and appeals.

The new Third Edition of Occupational Safety and Health Law references key decisions and developments in occupational safety and health law since 2008, emphasizing the principles of law as set out by the Occupational Safety and Health Review Commission, Mine Safety and Health Review Commission and the courts. The Third Edition discusses topics such as penalties and other enforcement prerogatives, along with agency pronouncements and interpretations issued through mid 2013. The treatise analyzes the Mine Safety and Health Act, workers' compensation laws and whistleblower protection statutes. It also examines growth in the contingent workforce, updates and/or changes in the enforcement and interpretation of standards and the general duty clause by the courts and the Commission, as well as agency perspectives and interpretations of employee walkaround rights and safety incentive programs.

This treatise is published in cooperation with the Occupational Safety and Health Law Committee.

The Fair Labor Standards Act, Second Edition, with 2013 Cumulative Supplement

The Fair Labor Standards Act, Second Edition is a reference of first resort for advising clients, analyzing fact patterns and litigating cases. It contains discussion of collective action litigation brought under the FLSA by individual private plaintiffs; "hybrid" actions involving both state law and federal law claims; and elements of enforcement actions and litigation brought by the Secretary of Labor.

The 2013 Cumulative Supplement contains important updates, including analysis of the Supreme Court's decision in Genesis HealthCare Corp. v. Symczyk; recent cases addressing employee versus independent contractor status; developments in case law on joint employer status and individual liability of owners and corporate officers; recent litigation over the compensability of preparatory and concluding work tasks; case law developments on calculating overtime pay when employees have been misclassified as exempt; new case law involving who may participate in valid tip pool arrangements; and developments in FLSA retaliation law, including cases addressing who can sue and be sued under the FLSA's anti-retaliation provisions and a survey of district court decisions interpreting Kasten v. Saint-Gobain Performance Plastics Corp.

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

International Labor and Employment Laws, Volume I and Volume II

International Labor and Employment Laws, Volumes I and II offer information on labor and employment laws of many countries around the world, as well as chapters on general topics of interest to practitioners involved in international matters.

The 2013 Cumulative Supplement to Volume I covers major economies of the world, plus specific topics of interest, including litigation of international employment disputes, compensation of internationally mobile executives and negotiation and drafting of expatriate employment agreements. It includes a new chapter entitled Impact of International Human Rights Law on Labor and Employment Law and provides updates on a new inter-professional agreement in France entered into January 11, 2013, between trade unions and employers' representatives that introduces new rights for employees in terms of employment security, health and education; limited duration employment agreements in Germany with reasonable cause provisions that are subjected to closer additional judicial scrutiny; information on Australia and Belgium added to the Social Networking and the Global Workforce chapter; and a discussion of information on domestic discovery for foreign cases added to the chapter on Litigation of International Employment Disputes.

The new Fourth Edition of Volume II covers European Union, Africa, Asia, the Middle East, Oceania and South America, with new chapters on Indonesia and Nigeria. It provides updates on the application of provident fund schemes to expatriates in India; amendments to the Fair Work Act in Australia at the end of 2012, including changes to laws dealing with enterprise agreements and bargaining, new provisions regarding costs and new time limitations for unfair dismissal and general protections claims; a new Trade Union Law in Vietnam that took effect in January 2013 and a new Labor Code that took effect in May 2013; the Law on Work Health and Security in Turkey enacted in June 2012 to bring Turkish legislation in line with the EU Workplace Health and Safety Directive and International Labour Organization Conventions.

The volumes are published in cooperation with the International Labor and Employment Law 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 new editions: Covenants Not to Compete: A State-by-State Survey, Ninth Edition and Employee Duty of Loyalty: A State-by-State Survey, Fifth Edition.

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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