Issue: Fall 2018

Volume 33, Number 3 - Fall 2018

The Editors’ Page
Stephen F. Befort & Laura J. Cooper

This is the last issue that the University of Minnesota Law School faculty and students will edit.  We have been privileged to be the Journal’s editorial home for the past nine years.  Our law school’s rich labor and employment curriculum enabled our students to contribute knowledge and precision to their Journal work.  The Journal, in turn, provided unique educational opportunities as students wrote Notes on cutting-edge issues and learned about the law from the best lawyers in the field, our Journal authors.  For us as professors, this opportunity to collaborate so closely with students in this endeavor has been immeasurably rewarding.

The good news is that the Journal is moving to an excellent home at the Saint Louis University School of Law.  SLU, as it is known colloquially, has an exceptionally strong labor and employment law curriculum, capped by the Wefel Center for Employment Law.  Most significantly, the Journal will be edited by three Faculty Co-Editors who bring a rich diversity of skills and experience:       Matt Bodie, Marcia L. McCormick, and Miriam A. Cherry.

We are saddened that our retirements from law teaching have made necessary the end of our partnership with the ABA Section of Labor and Employment Law.  We are sincerely grateful for the many opportunities that partnership afforded.  We know that the Journal will be in good hands going forward.

Consent, Clarity, and Candor: The Ethics of Communication in Limited-Scope Representation
Pamela Cardullo Ortiz

Could lawyers and law firms broaden their client base by adopting a new practice strategy that would have the added social benefit of expanding access to justice for otherwise unrepresented employees and employers?  That’s the thesis of the author, Pamela Cardullo Ortiz, who is the Director of the Maryland Courts’ Access to Justice Department.  Her article addresses the beneficial potential of limited-scope client representation, while identifying its ethical risks and articulating best practices for communicating with clients, unrepresented opposing parties, opposing attorneys, and courts when engaging in task-limited legal representation.

Legal Traps Associated with Affinity Groups
Anne-Marie Vercruysse Welch, Emory D. Moore, Jr., Jennifer Kroll & Heidi Sharp

Anne-Marie Vercruysse Welch and Emory D. Moore, Jr., both management attorneys, write with two attorneys who represent employees, Jennifer Kroll and Heidi Sharp.  The four authors identify, and offer guidance for avoiding, the varied and sometimes surprising ways in which creation of affinity groups can give rise to employer liability under diverse legal regimes including anti-discrimination laws, the National Labor Relations Act (NLRA) (for private sector companies), and the U.S. Constitution (for public sector employers).

The Tension Between the NLRA, the EEOC, and Other Federal and State Employment Laws: The Union Perspective  
Manual Quinto-Pozos

The Tension Between the NLRA, the EEOC, and Other Federal and State Employment Laws: The Management Perspective
Ryan H. Vann & Melissa A. Logan

A company learns that an employee on a picket line used racist or other offensive language toward strike replacements who are members of a protected class under Title VII.  On the one hand, if the company fires the worker, it might be violating the NLRA’s protection for employees engaged in concerted activity for mutual aid and protection.  On the other hand, if it doesn’t discipline the employee, the company might be responsible for creating a hostile work environment, violating Title VII.  The essays, one from the perspective of an attorney representing unions, and the other from management-side attorneys, identify the circumstances that raise conflicts between the NLRA and various state and federal law, note the limited administrative agency guidance to attorneys about how to handle such conflicts, and offer practical ideas for navigating them in the face of uncertain law.

Protecting the Loyal Hard Worker: The Need for a Fair Analysis of Venue Clauses in ERISA Plans
Michelle Streifthau-Livizos

Annually, the ABA Section of Labor and Employment Law and The College of Labor and Employment Lawyers conduct the National Law Student Writing Competition.  The first-prize-winning essay from 2017 was written by Michelle Streifthau-Livizos, a 2018 Drexel University law graduate.  She describes Supreme Court precedent from other contexts that affords forum-selection clauses presumptive enforceability and argues why it should be inapplicable to venue clauses in ERISA plans in light of ERISA’s statutory language and purpose, as well as the particular circumstances of lawsuits brought by retirement plan participants.

Post-Arbitration Deferral of Unfair Labor Practices in the Public Sector: An Examination of State Approaches
Lauren N. Zenk

The National Labor Relations Board (NLRB) has long struggled for a consistent policy for determining when it should defer to an arbitration award when facts giving rise to an unfair labor practice charge were earlier the subject of arbitration.  While much has been written about the NLRB’s ever-changing approaches to arbitral deferral, little attention has been paid to the parallel issue of deferral under state collective bargaining laws that govern public sector employers and unions.  In this article, Lauren Zenk—a 2018 graduate of the University of Minnesota Law School and a Managing Editor of the ABA Journal of Labor & Employment Law—systematically collects, classifies, and analyzes state public sector deferral decisions and calls for states to reevaluate whether their deferral policies truly reflect their state interests.