LEL Flash | Issue: October 2013

FLASH header

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

Issue: October 2013

Comments from the Chair

With the government shutdown at the beginning of October and attempts to defund or repeal the Affordable Care Act ("ACA"), the importance of the Section's plenary program on the ACA becomes quite evident. When the program planners first considered the Seventh Annual Conference schedule, the consensus was that with this statute taking effect on January 1, 2014, there would be a number of issues to consider. Now that the issues of immediate repeal and defunding have passed, for now, the debates of the last few weeks highlight issues for further discussion and possible amendments to the statute. That is why the plenary session along with four other panel discussions related to the ACA should be of great interest to those of you attending the Conference.

One session will deal with collective bargaining in the private sector over healthcare benefits in the context of healthcare exchanges. The specific issues to be discussed will deal with collective bargaining considerations, the impact of grand-fathering, the new definition of full-time employees, mandated plan changes, penalties, the "Cadillac" tax and tips on collective bargaining negotiations. Allison Beck, Deputy Director of the Federal Mediation and Conciliation Service ("FMCS"), will be the moderator of that panel.

A panel will discuss the potential litigation issues concerning corporate restructuring designed to avoid the "pay or play" obligations, including the diminishing of employee weekly hours to less than 30 and/or decreasing the number of employees to less than 50, companies' compliance with coverage obligations and mandates, whistleblower protections and court decisions addressing challenges to Independent Review of Organization decisions. Howard Shapiro, a veteran employee benefits lawyer and former Section Chair, will lead the discussion.

Issues for insurers, plan sponsors and administrators dealing with plan changes, maintaining grandfathered status, external reviews with Independent Review Organizations and the use of retiree plans to eliminate ACA will be the highlights of a session led by George H. Bostick of the U.S. Department of the Treasury.

The final panel discussion in this very important area will involve a group of public sector lawyers discussing ramifications of this Act for public employers and employees, including changes in healthcare benefits to be considered and the bargaining obligations that public employers may have in attempting to comply with and implement the Act's requirements.

The wisdom of having four separate panel discussions in conjunction with the plenary should be attributed to the very hardworking and diligent co-chairs and vice chairs who planned this Conference. They are union & employee lawyers Richard Rosenblatt, Yona Rozen and Gregg M. Corwin; employer lawyers Julie A. Totten, J. Lindsay Johnston, George L. Washington, Jr., Joe Torres and Bernie Siebert; employee lawyers David Borgen, Roberta Steele and Virginia "Ginger" L. Hardwick; and government lawyer, Karen Neilsen (NLRB). Former Conference co-chairs who provided their experience and able assistance in these discussions are Jonathan Ben-Asher and Angie Davis. The Council Liaisons and senior advisers to this group are Barbara J. D'Aquila, a management employment lawyer, and Bill Lurye, a union lawyer; their experience in planning several prior Conferences and CLE events was invaluable. Additional wisdom was provided by the members of the Section's Strategic Planning Committee consisting of Stewart Manela, Joyce Margulies, Wayne Outten and Rick Seymour. Incredibly able staff assistance was provided by Brad Hoffman, Meaghan Daly and Christopher Meacham of the Section's office. The countless hours and days they all worked together is really a key to the success of this program.

Each track area--of which there are eleven--was developed and planned by 84 Track Coordinators representing all of the constituencies of the Section. Their names are listed on the third page of the program guide that you have been sent and also will receive when you register at the Conference. These Track Coordinators are responsible for identifying the topics, writing descriptions of the programs, vetting and selecting speakers, and then helping to plan each of the panel discussions along with the moderators. The work they did is nothing short of phenomenal and is a great tribute to the ability of Section members from diverse law practices to work together to create a first-class, professional educational program for labor and employment lawyers. These Track Coordinators helped select the 316 speakers who will be attending the Conference and participating in the panel discussions on such a wide variety of topics, including alternative dispute resolution, discrimination and retaliation, employee benefits, ethical practices and technological issues in managing labor and employment law practices, immigration law, international law, labor management relations in both the private and public sectors, litigation, wage and hour matters, workplace problems and solutions, and matters of special interest, such as whistleblower claims, OSHA and settlement strategies in cases involving reimbursement of Medicare and Medicaid claims.

This is a very special Conference prepared at the highest level. I urge you to attend. It has been the highest honor and privilege to work with these people because I know how much they have given of their personal practices to assure the success of this Conference. When you see them in New Orleans, it would be appropriate for you to congratulate them on their wonderful efforts and dedication to our profession.

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

Annual Section Conference News

Plans for Using Social Media at Conference

One of the greatest benefits of attending professional conferences and meetings is the opportunity to network with people in the labor and employment law field. No amount of technology can take the place of face-to-face interactions, but it has enhanced our abilities to network in a multitude of ways. More and more we're finding that free Wifi is no longer an option but an essential part of conference services. The Section ensures that such services are available in Conference session rooms so attendees are able to bring a variety of devices, from smartphones to laptops, to enhance their experience and engage other colleagues, even when separated by different rooms where sessions are being held.

The Social Media Subcommittee of the Section's Marketing Committee has created a handout that will be available at the Information Desk, providing guidance on how best to use Twitter and Facebook while at the Conference. Twitter and Facebook have been adapted by savvy users to be more than social networking tools, facilitating the sharing of information and insights among people attending different sessions. Panel moderators have provided us with short announcements about their sessions that will be shared via Twitter and Facebook over the course of Conference.

As we did last year, we are providing an app for mobile devices that provide a variety of useful tools for maximizing your Conference experience. More than half of last year's attendees downloaded the app the first day of Conference after seeing what colleagues were doing with it. The Section Conference Mobile App provides up-to-the-minute information about the programs and events taking place in New Orleans. You can scan through sessions and create your own daily schedules for use with your mobile device or to download and print. Other functions will allow users to:

  • View lists of attendees and speakers as well as exhibitors and sponsors.
  • Watch for alerts during Conference to stay informed of last-minute changes.
  • Access the Section Twitter, Facebook, and LinkedIn pages automatically using the "Social" button.
  • Use built-in guides to find the best places to visit in New Orleans.
  • Take surveys to help evaluate the Conference and help with planning for the future.

Those of you who have previously attended Conference know the value of gathering together so many experts in one place and sharing knowledge. The members of the Marketing Committee and Social Media Subcommittee encourage attendees to take this opportunity to learn how to use these powerful tools to reach out and promote the Annual Section Conference. Take photos of fellow attendees enjoying themselves and the various sights of the City of New Orleans and share via Twitter, Facebook, or Instagram (most mobile devices have dedicated apps for these services). Check out full instructions in our "Snap and Post" document.

The one simple request we make is that you use the following hashtag with whatever social media service with which you are most comfortable: #abalel

Example: EEO Commissioner says that strategic plan implementation continues to progress #abalel

If you are a social media power user, please be sure to get an "I Tweet" ribbon at the Registration Desk at Conference. If you would like to start using social media, you can get help from attendees with the black "I Tweet" ribbon. For ribbons or for help, you can find the Section's Technology Manager, Donavan Vicha, at the Welcome Reception and Committee Expo at 6 p.m., Wednesday night, in Grand Ballroom ABC at the Social Media booth, or at the Cybernet Cafe during each day of Conference.

More Conference Program Highlights

Don't miss out on the 7th Annual Labor & Employment Law Conference

Online registration is closed, but there's still time to register for the 7th Annual Labor & Employment Law Conference. Preview the program guide to find out what makes this Conference so valuable to new, experienced, and seasoned practitioners in the field. Complete a registration form and email or fax to 312-988-5814. After 3 p.m. on Friday, November 1, the option to fax will end. After that option is gone, you can still bring a completed form to the registration desk in New Orleans.


Three Treatise Updates Coming Soon!

Employee Benefits Law, Third Edition, Fall 2013 Cumulative Supplement

The new Fall 2013 Cumulative Supplement provides updates on the Supreme Court's 2013 holding in US Airways, Inc. v. McCutchen; regulatory guidance on the Patient Protection and Affordable Care Act, including the 2013 final rule issued by the Department of Health and Human Services; lower court decisions addressing the availability of extra-record discovery and the existence and effect of conflicts of interest in the context of benefit claims following the Supreme Court's 2008 decision Glenn; and the effect of The American Taxpayer Relief Act of 2012 on employee benefits such as adoption assistance programs, employer-provided child care and qualified transportation benefits.

The Third Edition main volume offers detailed, careful analysis of ERISA Titles I and IV; rules of tax qualification, deductibility and other key tax issues; preemption, with regard to ERISA and medical malpractice and related claims; and benefits claims. The treatise discusses important cases such as CIGNA Corp. v. Amara, Conkright v. Frommert, Hardt v. Reliance Standard Life Insurance Co. and Metropolitan Life Insurance Co. v. Glenn and provides coverage of the 2010 health care reform acts.

This treatise is published in cooperation with the Employee Benefits Committee.

The Family and Medical Leave Act, 2013 Cumulative Supplement

The new 2013 Cumulative Supplement analyzes and explains statutory and regulatory changes to the Family and Medical Leave Act. The Supplement discusses the rule to implement the 2009 amendments to military leave and other provisions of the Act; varying approaches of the courts to caring for family members, including adult children; cases regarding substance abuse; cases regarding the interplay between the FMLA and employer policies regarding notice, certification and fitness-for-duty certifications; cases regarding how much notice an employee is required to provide where the employer has some knowledge of the employee's condition; mixed motive cases after the Supreme Court decision in Gross v. FBL Financial Services, Inc.; and the effect of the Supreme Court's decision in Coleman v. Court of Appeals of Maryland on state sovereign immunity and the self-care provision.

The Family and Medical Leave Act main volume focuses on the responsibilities of employees and employers under the Act, as reflected in the statute, regulations and case law; regulations promulgated by the Department of Labor (DOL); how DOL opinion letters have interpreted FMLA provisions; case law under the FMLA; and how FMLA leave rights are coordinated with other legal rights of employees.

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

Employee Duty of Loyalty: A State-by- State Survey, Fifth Edition

Employee Duty of Loyalty: A State-by- State Survey, Fifth Edition details, by state, the recognition and understanding of this body of law, including prohibited and permitted conduct; litigation issues; and the availability of injunctive relief, damages and defenses. The treatise provides updated analysis of conduct that breaches and conduct that does not breach the employee duty of loyalty. The new edition includes Finding Lists of questions by state and detailed chapter contents, appendices containing relevant Restatement excerpts, quotations from the case law and cross-references to other titles in the State-by-State Survey Series.

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

For a complete listing of Section titles and discounted prices and to order, visit The BNA Books Website.

Section members are entitled to significant discounts on this and other Section treatises published by ABA/Bloomberg BNA, including the following recent new editions: Employment Discrimination Law, Fifth Edition and Elkouri & Elkouri: How Arbitration Works, Seventh Edition.

Ethics Tip of the Month

CareerAdvice LIVE!

Hear practical tips from legal career experts in ABA's new monthly webinar, CareerAdvice Live!--free to ABA members. You'll hear specific recommendations and have the chance to submit your questions. Read more.

Interviewing Wisely in a Challenging Market

1 pm ET, Friday, November 8
With today's tight job market, you may feel that every interview takes on a larger-than-life urgency. But white-knuckle interviewing won't help you convert an interview into an offer. This program includes advice on how to effectively communicate your value to a potential employer and turn pointed questions into opportunities to shine. Don't miss this chance to have a law firm hiring partner and a legal search professional coach you on how to interview wisely and well. Learn more and register.

Ask an Experienced Lawyer YLD Initiative

The Young Lawyers Division is pleased to introduce its newest member service initiative--Ask an Experienced Lawyer. The goal of this program is to establish a resource directory of experienced lawyers in every state and from a broad spectrum of practice areas that are willing to provide one-time advice to a young lawyer in need of some assistance.

We need the sections, divisions and forums to make this program a success. I am asking that you consider sending information about this initiative to your members. For those who are willing to be listed in our Ask An Experienced Lawyer directory, we have prepared a very short survey to compile the information we need.

If any of your members are interested in participating in this initiative, please have them complete this short survey by November 15, 2013. It should only take about 2 minutes.


Your e-mail address will only be used within the ABA and its entities. We do not sell or rent e-mail addresses to anyone outside the ABA.

Update your profile | Manage your email preferences | Unsubscribe | Privacy Policy | Contact Us

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