LEL Flash | Issue: April 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: April 2014

Comments from the Chair

Road Trip Coming to an End

In the last week of March, I attended a star-studded event at the National Conference on Equal Employment Opportunity Law at which the principal theme was the celebration of the 50th anniversary of the enactment of Title VII. The EEO Committee's co-chairs, Eric D. Reicin, Employer; Justin M. Swartz, Employee; and Melissa S. Woods, Union and Employee; pulled out all the stops for this annual meeting of the Equal Employment Opportunity Committee. The Committee members concentrate on all aspects of equal employment opportunity law under federal and state law in both private and public employment, including: employment discrimination on the basis of race, color, national origin, religion, sex, age, and disability; the interface with equal employment opportunities issues with collective bargaining under the National Labor Relations Act; use and validation of selection employment devices; affirmative action under Presidential Executive Orders11246 and 11375; procedures and remedies in class action employment discrimination suits; and liaison with the U.S. Equal Employment Opportunity Commission, the Office of Federal Contract Compliance Programs and the U.S. Department of Justice. The principal publication of . . . [ more ]

Special Feature

NLRB Regional Director Asserts Jurisdiction over College Athletes

On March 26, 2014, the NLRB Regional Director in Chicago issued a Decision and Direction of Election ordering that an election be held on April 25, 2014 to determine whether or not scholarship student athletes at Northwestern University desire to be represented for collective bargaining purposes by College Athletes' Players Association (CAPA). The decision marks the first time in the NLRB's 79 year history that an election for collective bargaining has been ordered among individuals previously thought of as "student athletes" rather than employees. Due to the significance of the Regional Director's decision, there has been considerable discussion regarding whether or not student athletes at Division I schools are "students" or employees subject to collective bargaining. On April 24, 2014, the NLRB in Washington granted Northwestern's Request for Review of the Regional Director's decision indicating that it would issue subsequently a supplemental Order setting dates for . . . [ more ]


Workplace Bullying Institute Releases 2014 Workplace Bullying Survey Results: Employer's Perspective

In February 2014, the Workplace Bullying Institute issued the comprehensive results and analysis of its Workplace Bullying Survey. This 2014 survey is the third national survey conducted by the Workplace Bullying Institute and based on responses to an online survey of 1,000 adults in the United States. When conducting the 2014 survey, the Workplace Bullying Institute asked the participants/interviewees to consider only "the most serious forms of bullying" when answering the survey questions.

These survey results shine a harsh light on what the Institute refers to as the "prevalence and awareness" of workplace bullying. According to the survey, 27% of Americans have suffered abusive conduct at work and another 21% have witnessed bullying in the workplace. Seventy-two percent of the participants are "aware that workplace bullying happens"--specifically, this number represents the sum of those with direct and vicarious experiences with workplace bullying combined with individuals who . . . [ more ]


Ethics Corner

Recent ABA Opinion OK's Investigating Jurors' Social Media Presence

The American Bar Association's Standing Committee on Ethics and Professional Responsibility is the latest ethics committee to address the issue of whether attorneys may investigate jurors' and potential jurors' social media presence on sites like Facebook, Twitter, and LinkedIn. In ABA Formal Opinion 466 (April 24, 2014), the committee answered the question in the affirmative.

Under ABA Model Rules of Professional Conduct Rule 3.5(b), a lawyer may not communicate with jurors (or potential jurors, collectively "jurors") leading up to or in the course of trial, unless authorized by law or court order. However, with the development of technology, attorneys have struggled to determine whether viewing a juror's social media . . . [ more ]

Hot Topic

U.S. Supreme Court Extends SOX's Whistleblower Protection to Employees of Publicly Traded Company's Contractors

This Hot Topic was prepared by the ABA Section of Labor and Employment Law, Employment Rights and Responsibilities (ERR) Committee, with the assistance of Lloyd Chinn of Proskauer Rose LLP in New York, New York, representing employers in employment matters, Gerard Waites of O'Donoghue & O'Donoghue LLP in Washington, D.C., representing Unions and employees and Jason Zuckerman of Zuckerman Law in Washington, D.C., representing employees in employment matters. It was published separately in March 2014.

On March 4, 2014, the United States Supreme Court decided Lawson v. FMR LLC, holding that SOX's whistleblower protection extends to employees of a publicly traded company's contractors and subcontractors. Lawson v. FMR LLC, 571 U.S. __ (2014). Notably, this is the first time the Supreme Court has decided a case under Section 806 of the Sarbanes-Oxley Act of 2002 ("SOX").

Read the full text here.

Section News

Leadership Development Program

Applications for the Section's Leadership Development Program are due Monday, May 12, 2014. Recent graduates rave about the outstanding opportunities the Program provides:

"The LDP provides invaluable professional training for working in groups, working in a large organization, and self-presentation that I have been able to apply not only to the ABA, but also in my own job and volunteer work. Through the LDP I met many ABA peers from all over the country, connected with Section leadership, and gained an understanding of how the Section works." Elana Hollo, Class of 2011

"Participating in the LDP and later serving as a co-chair of the LDP Committee were both great experiences for me. I've had the opportunity to work, and become friends, with attorneys from all constituencies. Lessons learned in the LDP have been extremely beneficial in my other leadership positions within the Section." Eunice Washington, Class of 2009

"On an ongoing basis, the LDP expands my skills, my opportunities and my relationships; it is a wonderful experience which benefits all Members." Kelly Lawson, Class of 2011

"I was interested in being part of LDP because I thought the experience would allow me to meet people and become more active in the Section. It was all those things but what surprised me is I learned valuable skills and insights that have benefited my legal practice. I highly recommend it to anyone that is interested in becoming more effective in their legal practice or the Section." T. Scott Kelly, Class of 2009

The Section encourages applications from active members, as well as members who have been active in other bar organizations and wish become more involved with the Section. Recently, Section member and LDP alumna Kelly Rowland interviewed the Leadership Development Program Committee Co-Chairs, and they provided valuable insight into the application process and the Program. Her interview appears on the jump.

Committee Spotlight

Federal Labor Standards Legislation

The Federal Labor Standards Legislation Committee (FLSL) is often mistakenly referred to as the "FLSA committee." This inadvertent mix-up of acronyms is not entirely unwarranted, though, as the committee membership has increased dramatically in recent years with the proliferation of litigation and enforcement under the Fair Labor Standards Act and other wage and hour laws. In truth, the FLSL committee has jurisdiction over several federal statutes that play an important role in the lives of employment lawyers. FLSL committee members gather annually to discuss, learn and share sophisticated practice tips and recent developments in the law under the FLSA and other statutes administered, or formerly administered, by the United States Department of Labor such as the ADEA, the FMLA, the Equal Pay Act; the Davis-Bacon, Walsh-Healy, and Service Contract Acts; Sarbanes-Oxley, USERRA, the WARN Act; and the Employee Polygraph Protection Act of 1988.

With a robust representation from the management, union and employee constituencies, plus an impressive number of regular attendees from the Government, neutrals and the Judiciary, FLSL meeting attendees enjoy lively discussion and passionate debates. In addition to a content-rich mid-winter meeting in a sunny destination that rotates from west coast to east coast each year, the FLSL committee actively engages its membership throughout the year. The FLSL committee members publish an impressive number of books, many of which are essential parts of the employment lawyer's resource library. Too name just a few: The Fair Labor Standards Act, The Family and Medical Leave Act, The Uniformed Services Employment and Reemployment Rights Act, Wage and Hour Laws: A State-by-State Survey, and the Age Discrimination in Employment Law treatises and annual supplements flow from the pens of FLSL members and volunteers.

It is truly a working committee dedicated to educating lawyers, and the FLSL offers countless ways to get involved with writing, editing and contributing to the publications. The FLSL committee members are also active speakers at the Section's annual CLE conference, which would not be complete without panels ranging from "wage-hour bootcamp" to sophisticated discussions of collective and class actions and judicial or DOL review of compromise settlements. The FLSL committee values diversity and inclusion as represented by its recent ability to feature diversity consultants as speakers at the midwinter meetings who provided guidance on furthering diversity within professional networks and identified useful tools for creating inclusive workplace practices at law firms.

If you desire informative content, friendly relations with all sides of the practice, and the development of a national network, the FLSL committee offers all those benefits and welcomes you to join and participate. Please visit the committee webpage for more information.

Jeremy J. Glenn, Meckler Bulger Tilson Marick & Pearson, LLP

Three Important New Updates Now Available!

Occupational Safety and Health Law, Third Edition

This 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 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.

Covenants Not to Compete: A State-by-State Survey, Ninth Edition

This three-volume treatise delivers the information practitioners need to analyze, draft, and litigate covenants not to compete and other restrictive covenants in the employment, partnership, franchise, license and sale-of-business contexts. Courts all across the U.S. have resolved a number of questions of first impression that have a substantial and direct bearing on the enforceability of covenants not to compete. Covenants Not to Compete discusses these decisions and identifies issues with significant splits of authority across the states. Additional Topics at the end of relevant chapters address make-or-break issues, including context characterization: distributorship versus sale of business; effect of giving up competing business; grace periods to cure breach not presumed; and effect of reemployment by same employer.

The Ninth Edition offers important updates including expanded discussions of temporal and geographic limits of enforceable covenants not to compete; assignability of noncompetition covenants; consideration required to support a covenant executed well after the commencement of employment; protectable interests; and remedies available for covenant breach, including injunctive relief and damages.

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

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

This volume 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.

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 titles: Tortious Interference in the Employment Context: A State-by-State Survey, Third Edition and Employee Duty of Loyalty: A State-by-State Survey, Fifth Edition.

Upcoming Webinars

April 29
HIPAA Compliance: Are You Ready if a Breach Occurs Privacy, Security, HITECH, Record Retention and Preparedness for a Compliance Audit

April 30
Americans with Disabilities Act (ADA) Essentials

May 7
Advanced Title VII Issues: Current Trends in Disparate Impact Claims

May 14
OSHA Essentials

May 20
Health and Welfare Plan Basics--Complying with ERISA and the ACA

May 28
Counseling, Investigation, and Negotiation

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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