LEL Flash | Issue: January 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: January 2014

Comments from the Chair

Section Committee Midwinter Meetings offer excellent opportunities to concentrate on specific areas of labor and employment law. This year's State and Local Bargaining and Employment Law Committee Midwinter Meeting was exceptional in the quality of papers and in a special presentation on the Detroit bankruptcy case. The ability to have a substantial block of time for the subject of that nature demonstrates the real strength of our Midwinter Meeting programs. The Annual Section Conference held each year in November has over 320 speakers and a large number of tracks to be covered. In the Public Sector alone, last year there were four panel presentations and not enough time to concentrate on one particular subject like the Detroit bankruptcy, which is the largest municipal bankruptcy case filed in the history of the United States.

The presentation at this year's State and Local Government Bargaining and Employment Law Committee Midwinter Meeting was by Richard G. Mack, Jr., the lawyer who is representing AFSCME in bankruptcy court. This is a story that he has been living for a couple of years, although he is not a bankruptcy attorney. He used this opportunity, using his own words, to vent about the process, issues and . . . [ more ]

Special Feature

The EEOC: Looking Back on 2013, What to Expect in 2014

In December, 2013, the U.S. Equal Employment Opportunity Commission released its Performance and Accountability Report for fiscal year 2013. The last year was filled with challenges for the agency, from financial constraints due to sequestration, a 40-hour furlough that affected all staff, to a two-week-long government shutdown. Despite these challenges, the agency secured a record $372 million in monetary relief for victims of employment discrimination through its administrative enforcement procedures, including mediation and conciliation. This is the highest level of monetary relief ever obtained by the agency through the administrative enforcement process. The agency also obtained $39 million in monetary relief through its litigation program, and resolved 209 merits lawsuits. Trial attorneys at the EEOC won . . . [ more ]

Section News

Washington University Wins the Tenth Anniversary Trial Advocacy Competition

On January 25-26, 2014 in San Francisco, California, the Section concluded its Tenth Annual Law Student Trial Advocacy Competition. The team from Washington University prevailed over a team from Villanova University in the final round. Last fall, Washington University had won the Chicago Regional Competition and Villanova had been victorious in New York. Once again, the Honorable Bernice B. Donald served as the judge for the final trial. Judge Donald has been a great friend and mentor to the trial advocacy program.The winning team from Washington University with their coach, Judge David Mason.

The preliminary rounds of the competition took place during October and November in seven regional cities: New York; Washington; Miami; Chicago; Dallas; Los Angeles and San Francisco. The competition has become very popular with a number of the schools that participate returning to the competition each year. (At right: The winning team from Washington University with their coach, Judge David Mason.)

The competition could not go forward without a great deal of input from Section members. This year the competition hosted 104 teams in a series of mock trials presenting and defending a claim of disability discrimination under the Americans with Disabilities Act. The regional rounds of the competition called upon more than 450 evaluators and judges in the seven regional cities who spent half a day or more at the program itself. The winners of each regional competition along with an at-large team were all invited to participate in the final competition. The winners in each region included Golden Gate University (San Francisco), Tulane (Dallas), Emory (Miami), Loyola (Los Angeles), Villanova (New York), William and Mary (Washington) and Washington University (Chicago).

The competition provides participants with a real-life view of the practice of labor and employment law. The fact pattern was based on a set of facts that had been litigated by a member of the Section. This year, the fact pattern tackled the timely issue of alcoholism as a disability. The teams were provided with exhibits and excerpted transcripts modified from the actual deposition testimony.

National Co-Chair Kathy Dickson who practices in San Francisco did a wonderful job of recruiting volunteers to serve as judges and evaluators. A reception was held on Saturday evening for all participants and generally made everyone feel most welcome. Section Chair-Elect Joyce Margulies made remarks at the reception congratulating all of the participants on their successes and encouraging them to consider labor and employment as a practice area. Judge Donald also made remarks stressing the value of the legal profession and the responsibilities that the students will face as practitioners.

The Section's Trial Advocacy Competition Co-Chairs Susan Eisenberg, Jason Marsili and Kathy Dickson are looking forward to the Eleventh Annual program in the fall. Work will begin shortly on a new case file and the committee is looking for a fact pattern and materials on which to base the next competition file. The specific dates for each of the programs should be decided within the next 90 days and information concerning the program should be available on the Section website. This is a fun way to volunteer and connect with judges and attorneys in your community. We hope to see you next year at the regional competition near you. The Committee extends our sincere thanks to all those who participated in the program this year.

For more information on the Competition, contact the Section office.

Midwinter Meeting Season Is Here and Registration is Open!

The Section’s Midwinter Meetings provide the perfect opportunity to get in-depth overviews on areas of labor and employment law that are important to you.  Attending a Midwinter Meeting will allow you to learn from and network with the top practitioners in the arena.

View meeting details on our website and register today.


Three Important New Updates Now Available!

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

This respected and authoritative 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: A State-by-State Survey 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.

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

The Fifth Edition of Employee Duty of Loyalty: A State-by-State Survey provides up-to-date analysis, by state, of conduct that breaches and conduct that does not breach the employee duty of loyalty. Extensive discussions of state law, broken out by category of employee--from "mere employees" to "officers and directors"--show the reader how the duty of loyalty is applied depending on the level of responsibility an employee has within an organization. This easy-to-scan, question-and-answer reference is the premier resource available on how each state addresses the employee duty of loyalty.

This two-volume treatise also explores various other critical issues in employment law, including: whether a cause of action for breach of the employee duty of loyalty has been recognized; what damages are available for breach of the employee duty of loyalty; commentators' reactions to the formulation of the employee duty of loyalty in the Restatement of Employment Law; and whether a claim for breach of the employee duty of loyalty is preempted by the Uniform Trade Secrets Act.

Trade Secrets: A State-by-State Survey, Fourth Edition, with 2013 Supplement

Trade Secrets: A State-by-State Survey, Fourth Edition includes expanded discussion of types of information granted or denied trade secret protection under the various state trade secrets acts and the availability of injunctive relief and damages. It addresses several issues as "Additional Topics," including amendments to complaint, consolidation, conspiracy, conversion, declaratory judgments, default judgments, directed verdicts, evidence (circumstantial), first-filed rule, forum selection clauses, gist of the action doctrine, interrogatories, supplemental jurisdiction, litigation privilege, ownership versus possession, questions of law and sanctions. The treatise offers important cross-references to other titles in the ABA/Bloomberg BNA State-by-State Survey Series.

Each state chapter addresses a state's definition of trade secret; courts' interpretations under the statute, Uniform Trade Secrets Act, or common law; policy considerations recognized by courts; evidence establishing the elements of a trade secret and of a misappropriation claim; courts' justifications for denial of protection; types of information granted trade secret protection; types of relief granted for the misappropriation of trade secrets; level of protection for proprietary information; and references to law review articles/other publications.

The new 2013 Cumulative Supplement provides detailed analysis on availability of protective orders and the inevitable disclosure doctrine.

All three treatises are 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 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: Tortious Interference in the Employment Context: A State-by-State Survey, Third Edition and Wage and Hour Laws: A State-by-State Survey, Second Edition, both with 2013 Cumulative Supplements.

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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