LEL Flash | Issue: February-March 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: February-March 2017

Comments from the Chair

Gail Golman Holtzman

FOMO? No Worries--Time to Register

It's that wonderful time of year for our Section---Midwinter Meeting season! Our Section's 15 Standing Committees began offering their Midwinter Meetings in January, and the Meetings are continuing through May. No need for FOMO (fear of missing out)! You have time to register and attend these outstanding Midwinter Meetings. [ more ]

Special Feature

Diversity Programs: Maximizing Benefits and Minimizing Risks

This article focuses on some of the key issues currently facing implementation of employer diversity programs, offering guidance on how to create and operate such programs while assessing their legal risks. The cases and legal strategies described below are meant to be instructive in understanding some of the conflicts facing employers who must attempt to balance fundamental fairness to employees and applicants on the one hand, while engaging in voluntary diversity programs on the other. [ more ]

Committee News

Member Services Committee: The Committee Formerly Known as Marketing

Everyone knows the artist formerly known as Prince--who sadly passed away too young last year. Not everyone, however, knows the Member Services Committee or the committee formerly known as Marketing. Please allow this article to be your introduction, or, if you already know us, we invite you to take our relationship to the next level.

Who We Are

The Member Services Committee is one of the Section's many Administrative Committees. The name was changed from the Marketing Committee just this year to better align the name of the Committee with its mission--which is to be a resource for ... [ more ]

Midwinter Meeting Previews

The ABA Employment Rights and Responsibilities (ERR) Committee cordially invites you to attend its Midwinter Meeting which is being held from Tuesday, March 21 to Saturday, March 25 at the Westin Resort in Puerto Vallarta, Mexico. The ERR Committee has created an exciting program offering a variety of panels covering the latest developments in labor and employment law, providing the perspectives of all constituencies: management, employee, union, government, in-house corporate counsel, academics and neutrals. ERR is delighted that the ABA Ethics and Professional Responsibilities (EPR) Committee will also join us for programming in Puerto Vallarta from March 24-25, and the EPR Committee's excellent ethics programming is available to ERR Midwinter Meeting registrants for no additional charge. In addition to this year's cutting edge programming and outstanding continuing legal education, you will also have the opportunity to join your ERR and EPR colleagues for a number of networking and social events, including but not limited to a sunset cruise, dine-around at some of Puerto Vallarta's best restaurants, and a dinner dance on Friday, March 24. Please follow this link and review the ERR 2017 Midwinter Meeting brochure to see the complete program line-up. The ERR and EPR Committees hope to see you in Puerto Vallarta!

Don't Miss Out--Join Us at the ABA National Symposium on Technology in Labor and Employment Law

This year's workforce "tech think tank" committee meeting will be held April 5-7 in Washington D.C. and promises to be another amazing event. As in years' past, experienced speakers will discuss cutting-edge legal developments and offer practical insights into the ever-evolving impact of workforce technologies from the employer, employee, government agency, and union perspectives. Panel topics include how artificial intelligence is transforming the workplace, the future of the gig economy, innovative technologies for use at trial, the rise of wearable and smart technologies, benefits and risks of using workforce analytic tools, and many more.

Register now!


Midwinter Meeting of the Ethics and Professional Responsibility Committee, March 23-25, 2017, Puerto Vallarta, Mexico.

Equal Employment Opportunity Committee, March 29 to April 1, in New Orleans, Louisiana.

International Labor and Employment Law Committee, May 7 to 11, in Dublin, Ireland.

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!

Age Discrimination in Employment Law, Second Edition, 2016 Supplement

Age Discrimination in Employment Law is the practitioner's complete resource for bringing and defending age discrimination claims. This book covers essential information such as who is protected under the Age Discrimination in Employment Act, retaliation, hiring, and promotion, litigation strategies, reductions in force, and more.

The 2016 Supplementupdates the treatise with highlights including:

  • Discussion of the allocation of proof in disparate treatment discharge cases
  • Possible impact of the EEOC's proposed guidance on retaliation
  • Case of first impression expanding adverse impact/disparate impact claims to protect job applicants
  • Analysis of contexts in which "stray remarks" may be evaluated as evidence giving rise to an inference of discrimination
  • Evaluation of whether a plaintiff's "belief" that employer was targeting older employees without supporting evidence can create a material issue of fact preventing summary judgment

Covenants Not to Compete: A State-by-State Survey, Tenth Edition, 2016 Supplement

Comprehensive in scope, yet easy to use, Covenants Not to Compete is a respected and authoritative three volume treatise that delivers the information that practitioners need to analyze, draft, and confidently litigate covenants not to compete and other restrictive covenants in the employment, partnership, franchise, license, and sale-of-business contexts.

Representative updates covered in the 2016 Supplement include:

  • How an overly broad confidentiality covenant may be treated as a noncompetition covenant under Arizona law
  • The anticipatory repudiation of covenants under California law
  • The statutorily permitted scope of new, amended, or renewed noncompetes that may be executed by Connecticut physicians
  • The impact of a new Hawaii statute prohibiting noncompetes for any employee of a technology business
  • The adequacy of continued employment as consideration for execution of an afterthought covenant under Illinois law

New Fourth Edition!

The Railway Labor Act, Fourth Edition

Analyzing representation disputes, major disputes, statutory disputes, and collective bargaining issues, this unique volume helps characterize the nature of a union-management dispute and identify how to pursue party interests. It includes vital background on the federal labor law of railways and airlines, including references to more than 1,200 cases and the text of the RLA and the National Mediation Board (NMB) Rules and Manual.

Topics covered in The Railway Labor Act, Fourth Edition include:

  • Scope of the Railway Labor Act
  • Selecting a bargaining representative
  • Judicial protection of employee rights under the RLA
  • Negotiation and enforcement of collective bargaining agreements

Published in collaboration with the Section's Railway and Airline Labor Law Committee.

Employment at Will: A State-by-State Survey, 2016 Cumulative Supplement

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. Request your trial today.

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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