LEL Flash | Issue: April 2017

FLASH header

Flash Co-Chairs: Esther Lander, Akin Gump LLP, Employer | John Ho, Cozen O'Connor, Employer | Lisa M. Gomez, Cohen Weiss and Simon LLP, Union & Employee
Jennifer L. Liu, Liu Law PC, Employee | John Henderson, U.S. EEO Commission, Employee

Issue: April 2017

Comments from the Chair

Gail Golman Holtzman

What a Journey! Our Section's Incredible Midwinter Meetings

In my last Chair column, "FOMO? No Worries--Time to Register," I wrote about our wonderful past Midwinter Meetings and those that were still available for registration. Since my last column, our leadership representatives had the great pleasure of attending additional meetings. Our Section's 15 Standing Committees began offering their Midwinter Meetings in January, and the meetings are now winding down with the International Labor and Employment Law Committee, hosting the final meeting in Dublin, Ireland May 7-11. Attorneys from all over the world will join our Section to attend the meeting to address global labor and employment law issues.

I want to share with you an overview of the amazing work of our Standing Committees and the various Administrative Committees that . . . [ more ]

Special Feature

Seventh Circuit Sets Up Sexual Orientation Split for SCOTUS

By now you have certainly heard of the landmark en banc opinion recently handed down by the Seventh Circuit in Hively v. Ivy Tech Community College. On April 4 the Seventh Circuit reversed its own precedent and became the first federal appellate court to rule that Title VII prohibits discrimination based on sexual orientation. With this ruling the Seventh Circuit has not only created a split with nearly every other federal appellate court, but directly pits the ideology of one of the circuit's most prolific and respected jurists, Richard Posner, against that of the newly minted Supreme Court justice Neal Gorsuch.

By way of background, Kimberly Hively was an adjunct professor at Ivy Tech Community College located in Valparaiso, Indiana. In 2014 Hively sued pro se pursuant to Title VII, alleging she was passed over for several full-time professor positions and her adjunct contract was not renewed, all because . . . [ more ]


Puerto Rico's New Path to Recovery: Open for Business

On November 19th, 1493, the second voyage of Christopher Columbus forever changed the political, social and economic landscape for the island of Puerto Rico, the smallest of the three Major Antilles along Cuba and Hispaniola in the Caribbean. After 400 years of Spanish rule and the Spanish American War, Puerto Rico then became a territory of the United States in 1898 and Puerto Ricans became United States Citizens since 1917 by an Act of the United States Congress.

During the 1950's and 1960's a combination of major geopolitical considerations, federal tax incentives, strategic military deliberations, major investments from the United States government and enterprises plus a major local political realignment created a dynamic economy in the island that was identified as the "Miracle of the Caribbean" as published by TIME magazine's cover and article in 1958.

Puerto Rico transformed into an industrial based economy from a mostly agricultural based system and for many decades, the economy flourished albeit many political and governmental structural deficits and limitations. [ more ]

Sanctions Rule for Electronic Discovery Helps but Maybe Also Hurts

In response to courts imposing significant sanctions due to the destruction or negligent handling of electronically stored information in discovery, in December 2015 the Rules Committee made changes to Rule 37 to specifically address spoliation of ESI. In doing so, the Rule may have the unintended consequence of imposing significantly harsher penalties for the destruction of a hard copy of a document as opposed to the destruction of the electronic file used to create the hard copy. This article explores that concept through examples of the court's treatment of Rule 37 issues before and after the rules change.

The general sanctions scheme for tangible documents and other items remains unchanged. Under Rule 37(a)(3)(B)(iv) a party may seek a motion to compel discovery responses and production if "[the opposing] party fails to produce documents or fails to respond that inspection will be permitted- or fails to permit inspection- as requested under Rule 34." If a party seeks to oppose a motion to compel a tangible item, it may do . . . [ more ]

Member Spotlight

Final "Midwinter" Meeting

The ABA International Labor & Employment Law Committee will hold its 2017 Midyear Meeting in Dublin, Ireland from May 7 to 11, 2017 at The Westbury Hotel. The Committee co-chairs have developed an exciting and informative agenda for Dublin that will include many distinguished labor and employment lawyers from the EU, Canada and the USA. We will begin with a look at the employment and labor law landscape of Ireland led by our active International LEL Committee members joined by a number of excellent outside speakers including The Honorable Mary Laffoy, Justice of the Supreme Court of Ireland. We will then turn to our showcase discussion about how the Trump Administration will likely impact labor and employment law in the United States and globally and how Brexit will cast its shadow on the UK and the EU. For our Trump administration discussion, we are fortunate to have two leading officials of the last administration, David Lopez, former EEOC General Counsel and Patricia Smith, former Solicitor of Labor, give their predictions as to what's ahead. The second day will focus on globalization's impact on labor and employment law with three panels. The first panel examines how responsible business conduct is enforced utilizing laws like the U.K. Anti-Slavery Act, The U.S. Trafficking Victims Protection Act, OECD Multinational Guidelines and voluntary agreements like the Bangladesh Accord. The second panel will focus on how multinational corporations decide where to manufacture, assemble, design and service products in an environment where this administration is actively urging U.S. multinationals to bring more of their manufacturing back to the United States. The last panel will focus on the Administration's efforts to limit both immigration and travel to the USA from certain predominantly Muslim countries and how these efforts and will impact on employment laws in the U.S. and the EU. Our third day will address cross border comparisons of new laws and initiatives on Equal Pay, the legal challenges to the "Gig" economy around the world and a deeper dive into how Brexit and other laws are impacting where the work will be done. The last day will once again feature "industry" panels. This year, we will focus on technology, pharma and health care, and energy and infrastructure.

In addition to our government and former government speakers and a bevy of lawyers associated with law firms active on our Committee, our speakers will also include in-house labor and employment law counsel from leading multi-national companies (including Facebook, United Technologies, Seagate Technology, BP America and Pfizer), in-house counsel from major trade unions (including UNISON, GNB, SEIU, IAMAW, Steelworkers and Irish Nurses & Midwives), and international human rights organizations (including Doctors Without Borders, Bangladesh Accord, ELEVATE, and Workers Rights Consortium).

In keeping with our very well received tradition, we have arranged several optional tours and activities to highlight our host city, including a musical pub crawl and a separate literary pub crawl. Two of our active committee Ireland-based firms, Matheson and Mason, Hayes & Curran that have provided significant assistance in the preparation of our agenda and securing speakers will host cocktail receptions on separate nights. Our gala dinner is being graciously sponsored by Innangard and CC Solicitors. Many other sponsors have contributed to this program and will be recognized at the conference and in our materials.

Upcoming Section Webinars

May 11, 1:00-2:30pm Eastern
Class Action Waivers and Arbitration Agreements

May 23, 1:00-2:30pm Eastern
Dealing with Employee Off-Duty Conduct: What happens in Vegas often doesn't stay in Vegas

Connect with the Section--Write for the FLASH!

The ABA Labor and Employment Section's FLASH is a monthly electronic publication sent to all Section members that provides members with a concise update via email about Section activities and developments in our area of practice. A dedicated group of Section members serve as co-chairs of the LEL FLASH, and they welcome articles from Section members on substantive issues for publication in the FLASH. If you have an idea for a proposed article, please contact Donavan Vicha of the ABA at Donavan.Vicha@americanbar.org. Alternatively, please feel free to contact any of the FLASH co-chairs listed above. We welcome your input!


Updates Available Now!

Elkouri & Elkouri: How Arbitration Works, Eighth Edition

Elkouri & Elkouri: How Arbitration Works is the most comprehensive and authoritative treatise available on this subject. The reference of first resort, it has been cited and relied upon by advocates, arbitrators, and judges more than any other arbitration book published.
Highlights of the Eighth Edition include:

  • Discussion of cost savings and online dispute resolution
  • Revised analysis of the burden of proof in discipline cases
  • Same sex marriage and sexual orientation discrimination
  • Discussion of Supreme Court case on retiree health insurance
  • A new section focusing on the on-duty misconduct of police officers

The new Eighth Edition also covers arbitrators' consideration of external law in labor arbitration; legislation and litigation developing standards for evidentiary privilege as it relates to union shop stewards; arbitrators' views on threats and violence; the continued viability of the plain meaning rule; the unauthorized practice of law in labor arbitration; and discussion of state and local government arbitration and interest arbitration.

Wage and Hour Laws: A State-by-State Survey, Third Edition

Wage and Hour Laws: A State-by-State Survey, Third Edition is the complete guide to each state's wage and hour laws. It covers state laws, regulations, wage orders, and court decisions, and provides analysis to help practitioners interpret and apply each state's requirements. Its state-by-state analysis includes: minimum wage and overtime; timing, place, and manner of payment to employees; mandatory payments in addition to overtime; prohibitions on hours worked and mandatory leave; enforcement and remedies; defenses; damages; attorneys' fees litigation; liens specific to unpaid wages; forum; availability of class actions; exemptions; the procedural mechanisms for enforcing violations on a class-wide basis; and more.

The Third Edition updates the two-volume set with the timely addition of new sections on fluctuating workweeks, gap time pay, the treatment of mandatory service charges in the payment of tipped employees, Portal to Portal acts, mandatory paid sick leave laws, and the varying state laws defining joint employment and independent contractors.

ADR in Employment Law, 2017 Supplement

ADR in Employment Law is an essential resource for any employment lawyer. This text takes a neutral approach in covering every aspect of employment-related ADR, from class arbitration and mediation to internal corporate dispute resolution and ADR in the global setting. The 2017 Supplement captures recent developments including:

  • Challenges to class action waivers under the National Labor Relations Act
  • The scope of an arbitrator's authority to fashion remedial measures
  • Tools available to employees' counsel to defeat motions to compel
  • Convincing a court to vacate an arbitration award
  • Circumstances leading to a finding of unconscionability
  • Ethical concerns and how courts have addressed them
  • Disclosures required of arbitrators, and consequences when they are inadequate or misleading

Access fully integrated Labor & Employment resources on Bloomberg Law

The Labor & Employment Practice Center on Bloomberg Law® offers fully integrated analysis, commentary, practice tools, news, case law, and other primary sources to give you a comprehensive, nuanced understanding of critical issues in specific labor and employment practice areas: employment law, labor law, government employees, immigration law, executive compensation, and trade secrets law. Bloomberg Law® makes it easy to search arbitration decisions, dockets, and cases, and stay on top of the latest industry issues with unlimited access to the acclaimed Daily Labor Report® and more than 50 treatises including Covenants Not to Compete: A State-by-State Survey and Elkouri & Elkouri: How Arbitration Works.

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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.

For past issues of LEL FLASH, check our online archives.



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