Abstracts

Volume 33, Number 1, Spring 2018

The Editors’ Page
Stephen F. Befort & Laura J. Cooper
With this first issue of Volume 33, the University of Minnesota Law School begins its ninth, and what will be its last, year as the editorial home of the ABA Journal of Labor & Employment Law. Nearly a year ago, we, the Journal’s Faculty Co-Editors, notified the ABA Section of Labor and Employment Law that we would, with our coming retirements, have to relinquish this much-treasured collaborative work with our students, the Section, and our attorney-authors. The Section’s Editorial Board (comprised of Section members from various areas of practice and regions of the country) decided that this time of necessary transition would be an opportune moment to assess Section members’ opinions about the Journal. Should the Section continue to publish the Journal? Did the Journal, in its current form, serve their professional needs?

Mind the Gap: Pay Audits, Pay Transparency, and the Public Disclosure of Pay Data
Erin M. Connell & Kathryn G. Mantoan
Management attorneys Erin M. Connell and Kathryn G. Mantoan examine recent efforts by governments and private vi The Editors’ Page companies to improve pay equity. The authors describe legislative and administrative efforts to close the pay gap by the federal government, states, and municipalities. They analyze the recent trend of companies publicly disclosing pay data, whether in response to shareholder proposals, public pressure, or a sense of social responsibility. The authors describe the detailed process of performing pay audits and offer guidance on conducting audits while maintaining attorney-client privilege and work-product protection and highlight considerations for employers contemplating remedial action.

Big-Time College Athletes’ Status as Employees
Richard T. Karcher
Eastern Michigan University Associate Professor Richard T. Karcher argues that at least some college athletes are statutory employees. He discusses similarities between professional and college athletes in major sports programs, and analyzes National Labor Relations Board (NLRB) decisions on the rights of student assistants and college athletes to unionize, to conclude that students who participate in major college athletics programs in exchange for compensation in the form of scholarships are university employees. He further suggests that NLRB precedent supports finding college athletes to be “employees” under state workers’ compensation statutes and the Fair Labor Standards Act, as well.

Employment Practices Liability Insurance: A Guide to Policy Provisions and Challenging Issues for Insureds and Plaintiffs
Stephanie D. Gironda & Kimberly W. Geisler
Plaintiffs’ employment attorney Stephanie D. Gironda and management attorney Kimberly W. Geisler detail the rise and current prevalence of employment practices liability insurance (EPLI). The authors examine the typical provisions and structure of an EPLI policy and highlight issues important to understanding the basic contract. The authors bring their combined experience to show that employment lawyers on both sides of a dispute must understand the provisions of EPLI policies that will increasingly influence the course of litigation and settlement negotiations. Plaintiffs’ counsel must strategize to maximize insurance coverage. Defense counsel retained by EPLI insurers may face ethical conflicts when determining who the client is, who controls the defense, and who controls settlement.

Wearable Technology and Implications for the Americans with Disabilities Act, Genetic Information Nondiscrimination Act, and Health Privacy
Kevin J. Haskins
Management attorney Kevin J. Haskins takes a closer look at these new technologies and some potential legal pitfalls for employers who adopt them in the workplace. He explores some of the ways in which wearable technology might make a workplace safer by monitoring employees’ health. But he explains that, because wearable technology is so adept at collecting health information from users, it may reveal employees’ health conditions to employers in ways prohibited The Editors’ Page vii by the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and other health privacy laws.

The Impact of Smart and Wearable Technology on Trade Secret Protection and E-Discovery
Brian D. Hall
He discusses the potential productivity and efficiency benefits of using smart and wearable technology to measure employee performance, but warns that new technologies may enable trade secret disclosure and make it difficult for employers to comply with document retention obligations during discovery in litigation. With case law lagging behind the development of new technologies, he recommends employers rely on traditional approaches to trade secret protection and evidence preservation.

The Age Discrimination in Employment Act at 50: When Will It Become a “Real” Civil Rights Statute?
Laurie A. McCann
AARP in-house counsel Laurie A. McCann argues that the ADEA’s work is far from finished. She describes how hiring discrimination against older workers remains a problem, and how it has become more sophisticated in an increasingly online world. She explains that courts have limited the ADEA’s protections by requiring plaintiffs to meet a higher burden of proof in age discrimination suits than for other types of discrimination and by rejecting the disparate impact theory of liability for age discrimination. She contends, however, that age should not be singled out for less protection than other protected characteristics. She offers suggestions for improving upon the ADEA’s first fifty years, by working to combat harmful stereotypes, amending the ADEA, and advocating to limit or reverse precedent that narrowed ADEA protections.

Are Discretionary Demotions, Layoffs, and Terminations Valid Reemployment Positions for Returning Veterans?: Uncertain Applications of the Escalator Principle under the Uniformed Services Employment and Reemployment Rights Act
Jacob C. Harksen
He compares federal case law to argue that if the “escalator principle” under the Uniformed Services Employment and Reemployment Rights Act applies to discretionary promotions and to automatic terminations, it must also apply to discretionary demotions and terminations. To avoid unlawfully discriminating against veterans, however, employers are best advised not to demote or discharge veterans upon reemployment, except in rare circumstances.