Volume 32, Number 3, Spring 2017

The Editor's Page
By Paige Haughton
The outgoing student Editor-in-Chief reflects on the education she and her fellow student editors gained this past year that would not have been possible without the contributions of the authors, the ABA, the hard work of the Journal staff and student editors, and the dedication of the Faculty Co-Editors. Working on the Journal, she says, helped the student editors deepen their understanding of an issue they have only briefly discussed in the classroom by showing them how it affects labor and employment law practice on a daily basis.

The Supreme Court’s Application of “Ordinary Contract Principles” to the Issue of the Duration of Retiree Healthcare Benefits: Perpetuating the Interpretation/Gap-Filling Quagmire
By Robert A. Hillman
The author critiques the Supreme Court’s application of “ordinary contract principles” in M & G Polymers USA, L.L.C. v. Tackett, arguing that instead of abandoning the Yard-Man principles, the Court should have treated them as probative, along with other evidence concerning the duration of healthcare benefits. He asserts that the Court failed to consider relevant facts established in the lower court’s record, relied on contract principles too general and abstract to be useful, and should have filled the contract’s gap itself. He predicts that, because the Court failed to apply ordinary contract principles properly, future litigation is inevitable.

Recent Developments in Class Certification and Decertification After Dukes as the Supreme Court’s Composition Changes
By Grace E. Speights and Michael S. Burkhardt
Walmart Stores, Inc. v. Dukes and Comcast Corp. v. Behrend unquestionably changed class certification in employment discrimination litigation, but lower courts’ application of the holdings has been inconsistent. The authors review lower court decisions applying and distinguishing Dukes and Comcast and advise management attorneys how best to use pre-discovery motions to dismiss, strategic discovery planning, statistical and expert evidence, and arbitration agreements to increase their chances of defeating class certification.

The NLRB’s Successorship Doctrine, Perfectly Clear Successors, Executive Order 13495, and Worker Retention Laws: What the Trump Administration Has Inherited
By Kenneth A. Jenero
The author discusses the shift in successorship law during the Obama administration, asserting that recent National Labor Relations Board (NLRB) decisions, Executive Order 13495, and the application of state and local “worker retention” statutes have made it virtually impossible in certain circumstances for a successor employer to avoid inheriting a predecessor’s collective bargaining obligation. He also examines a line of NLRB decisions that narrowed the ability of successor employers lawfully to set initial terms and conditions of employment and predicts how a future Republican-appointed Board majority will alter successorship law.

Sarbanes-Oxley, Dodd-Frank, Retaliation, and Reward: Representing Clients in the Age of the Whistleblower
By Daniel J. Hurson
The author relies on his experience as a whistleblower plaintiffs’ lawyer to provide a practical guide detailing how to manage a potential whistleblower case. Through a hypothetical client’s story, he discusses whether and when a client should report violations internally, become a Dodd-Frank whistleblower, or file a Sarbanes-Oxley or Dodd-Frank retaliation claim, and highlights the most important factors attorneys should consider when making these determinations.

When Are Employers’ Unilateral Changes Prohibited? A Look at E.I. DuPont, Minteq, and Graymont: A Management Perspective on the Need for a Uniform Standard
By Jamie R. Adams
The author discusses employers’ frustration in determining whether they can lawfully make unilateral changes under a negotiated management rights clause. She advises employers that because the NLRB applies a “clear and unmistakable waiver” approach, and some circuit courts use a “contract coverage” standard, employers must determine which standard applies in their jurisdiction before making unilateral changes. She also stresses that a uniform standard is necessary because parties’ outcomes currently depend more heavily on litigation tactics than the parties’ negotiations.

Attorney Misconduct on Social Media: Recognizing the Danger and Avoiding Pitfalls
By Robert C. Nagle and Pamela Chandran
The authors explain how attorneys’ social media use may violate the ABA Model Rules on communication with represented and unrepresented parties and caution attorneys to use care to avoid spoliation of electronic evidence. They also discuss how advertising on social media may violate ethical constraints and provide acceptable advertising examples to help attorneys navigate these nuanced rules.

Keeping Mothers in the Workplace: Shifting from McDonnell Douglas to Protect Employees Who Use FMLA Leave
By Chelsey Jonason
Most courts rely on the McDonnell Douglas burden-shifting framework when analyzing retaliation-for-taking-leave claims under the Family and Medical Leave Act. Arguing that this test inadequately protects employees, the author, a 2017 graduate of the University of Minnesota Law School, recommends that courts instead apply the negative factor test because it better protects employees by destigmatizing family leave and is more consistent with the FMLA’s policy and administrative interpretations.