LEL Flash | Issue: January 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: January 2017

Comments from the Chair

Reflections on Martin Luther King Jr. Day

As I write my Chair Column on Martin Luther King, Jr. Day, I reflect on the legacy of this incredible leader and his impact on the work of labor and employment attorneys in our Section. President Lyndon B. Johnson on July 2, 1964, signed the Civil Rights Act of 1964 with at least 75 pens, one of which was handed to civil rights leaders including Martin Luther King Jr., as well as Rosa Parks and civil rights activist and NAACP leader Roy Wilkins.

Dr. King's "I Have a Dream" speech in 1963, in front of the Lincoln Memorial inspired millions. Some of Dr. King's other quotes also provide inspiration and great lessons for all, including the following:

"Our lives begin to end the day we become silent about things that matter."

"Life's most persistent and urgent question is, 'What are you doing for others?"

"The time is always right to do what is right."

"We must learn to live together as brothers or perish together as fools."

[ more ]

Special Feature

Taken for Granted--IRS Determination Letters Exit Stage Left?

Not at all. There is nothing discrete about this exit. In fact, this exit leaves a lot of open questions and the need for additional guidance from the Treasury. By way of background, an IRS determination letter program is one in which a plan sponsor of an individually-designed plan (either defined benefit or defined contribution) seeks continuing tax-qualification status such that, amongst other things, all plan contributions and investment returns are tax-deferred until paid out.

Tax qualified plans have been enjoying the comfort of obtaining an IRS Determination Letter every 5 years. However, due to tight budgets and lack of available personnel, the IRS has revamped the determination letter (DL) program such that effective February 1, 2017 (the last round of 5-year DLs ends 1/31/17), with few exceptions that won't be discussed here, only newly formed and terminating plans can apply for a DL. For some, the DL program may have been viewed as a business expense begrudgingly undertaken by Plan Sponsors. For most, however, the DL facilitated numerous transactions and business undertakings. In fact, several attorneys . . . [ more ]


Member Spotlight: Evan Hudson-PlushEvan Hudson-Plush

I am a partner at Cohen, Weiss and Simon LLP and exclusively represent unions and employees. I have been practicing law for almost a decade, but am new to the Section, having joined in 2015.

Tell us about your practice.

I represent unions and employees in all aspects of labor and employment law, including in litigation in federal and state courts, before the NLRB, and in arbitration hearings. I also provide unions with legal and strategic advice on organizing drives, corporate campaigns, and internal union affairs, and currently specialize in the representation of unions in the entertainment industry. I also lead the Firm’s wage and hour practice, representing employees in individual and class action lawsuits seeking to recover unpaid minimum and overtime wages.

What motivated you to become an employment lawyer?

I went to law school so that I could become a lawyer that represents workers. Before law school, I worked for three years in a job where I saw the significant negative impact large corporate transactions could have upon employees in the workplace, and this motivated me to want spend my career advocating for workers’ rights.

What is your favorite way to spend your spare time?

I have three young children--a 6-year old, a 3-year old, and a 6-month old--and my favorite way to spend my time is going on adventures (e.g., on hikes, day trips) with my family.

What is your favorite book (or movie, or TV show, or series, or blog).

TV show: The Wire.

Midwinter Meeting Previews

Meet the FLASH Committee


It is that time of year when the ABA President-Elect makes approximately 700 appointments to ABA Standing Committees, Special Committees, Commissions, and other entities and initiatives. Section Chair-Elect Don Slesnick has compiled this list of positions that may be of particular interest to our membership (self-nominations are appropriate):

  • Annual Meeting Program Planning Committee
  • Continuing Legal Education Committee
  • Commission on Disability Rights
  • Ethics and Professional Responsibility Committee
  • Governmental Affairs Committee
  • Center for Human Rights
  • Commission on Immigration
  • Professionalism Committee
  • Center for Racial & Ethnic Diversity
  • Commission of Women in the Profession
  • Commission on Sexual Orientation & Gender Identity

For more information, go to the ABA Website for the Office of the President.

Connect with the Section--Write for the FLASH!

The ABA Labor and Employment Section's FLASH is a monthly electronic publication sent to all 20,000 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. Alternatively, please feel free to contact any of the FLASH co-chairs listed above. We welcome your input!

Updates Available Now!

The Developing Labor Law: The Board, the Courts, and the National Labor Relations Act, Sixth Edition, 2016 Cumulative Supplement

For more than 40 years, practitioners have relied on The Developing Labor Law: The Board, the Courts, and the National Labor Relations Act to keep them current on U.S. labor law. This treatise, written by distinguished members of the ABA Section of Labor and Employment Law representing management, labor, and neutrals, is the essential research tool for labor and employment law practitioners. The 2016 Cumulative Supplement:

  • Addresses significant decisions reversing NLRB precedent
  • Discusses recent NLRB social media cases
  • Analyzes issues such as right of access to employer property, the line between valid and invalid work rules, and limitations on employee discussions of ongoing employer investigations of employee misconduct
  • Reviews the Board's decision in Babcock & Wilcox with respect to deferral of arbitration
  • Discusses Board policy in Murphy Oil USA with respect to employer mandatory arbitration agreements
  • Discusses the Board's Final Rule regarding representation hearings

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.

How to Take a Case Before the NLRB, Ninth Edition

Now in its Ninth Edition and trusted for over 50 years, How to Take a Case Before the NLRB is the go-to reference for expert guidance on the Board's complex procedures. The treatise is the most comprehensive analysis of NLRB procedures available, indispensable for attorneys representing employers and unions alike. Highlights covered in the new Ninth Edition include:

  • New Representation Case Rules, including changes to petitions, representation hearings, timing of elections, and other vitally important procedures
  • Impact of judicial decisions concerning recess appointments to the Board, the Board's rule-making authority, and the quorum required for Board decisions
  • Significant changes in filing requirements and procedures due to electronic filing and updated information of the Board's website and app
  • New procedures for using Electronic Signatures in Organizing
  • New procedures for deferral of charges to arbitration
  • Latest developments in the scope of bargaining units
  • Revised standards for determining joint employer status

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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