June 16, 2020 Issue: June 2020

Chair's Column

STATUS OF THE SECTION IN THE ERA OF COVID-19

Hello to all of the readers of this eNewsletter and particularly those who like finding out the activities in which your Section is engaged. And allow me to congratulate the Editors of the FLASH for sending this edition during this very unusual Section year. It gives me even greater pleasure to write this column for the FLASH in that former Section Chair Stewart Manela and I were inspired to create an electronic newsletter in 2007 shortly after the Section held its first Annual Conference in Philadelphia. It was our intention that the FLASH would bring Section members the latest news from the courts, administrative agencies and the legislatures affecting the work of labor and employment lawyers across the country. We knew then and still believe that there is such continual ferment in our field that FLASH editors from the Section would be able to reach out to standing committee co-chairs and other committed practitioners for the latest news and analysis.

As many of you know, last November we held a very successful and exciting Annual Conference in New Orleans attended by 1,100 labor and employment attorneys where the Section took on 60+ issues confronted by union, management and government attorneys. Then in January the Section transitioned to its Midwinter Meeting season where its 13 standing committees focused more in-depth on issues particular to their field. But then March rolled around and our Section – like the rest of the legal community and the country as a whole – ground to a halt.

Since then, our world has gone through convulsive changes. Millions of our fellow workers are unemployed and worrying about when their next check will come. Others are working but in dangerous conditions that subject them to a heightened risk of contracting COVID-19, including meat packers in slaughter houses strung out in the Midwest, prison employees and prisoners across the country, and among all levels of medical personnel at hospitals and nursing homes from custodial staff, nurses, x-ray technicians and physicians. We have learned the inadequate capacity of our medical care infrastructure in many places to respond quickly and nimbly to a world-wide pandemic in which our country had a several month warning to ramp up a coordinated federal response to COVID-19 not hampered by the different and sometimes clashing responses from different states. And, while we may be fortunate enough through our National Center for Disease Control to persuade pharmaceutical companies to produce a successful vaccine by the turn of the year, we will be living in some anxiety now and over the next six months as to whether, like in 1918-1919, we will be faced with a big spike in COVID-19 cases just as we head into the fall and winter flu season.

During all of this, we have also learned how much greater the devastation of COVID-19 has been to the African American community. In 1964, at the height of Freedom Summer in Mississippi, a brave woman with a 4th grade education but with smarts way beyond book learning spoke to the Credentials Committee at the Democratic National Convention meeting in Atlantic City challenging the then all-white Mississippi Democratic Party from being seated at the Convention. Her name was Ms. Fannie Lou Hamer, and she spoke for millions of black folk both then, earlier than then and now as well when she said, “Gentlemen and ladies, I want you to know that we are sick and tired of being sick and tired.”

What Ms. Hamer, who had been so severely beaten two years earlier by police in the town of Winona, Mississippi that for the next 15 years of her all too short life she was forced to limp whenever she walked, said at the Convention spoke to the conditions then and now tor black people in the United States. She spoke for Emmitt Till, killed brutally by two white Klansmen in Money, Mississippi. She spoke for Mickey Schwerner, James Chaney and Andrew Goodman, murdered by the sheriff, deputy sheriff and their Klan buddies in Neshoba County, Mississippi. Ms. Hamer also spoke for the many black women and men more recently, such as Michael Brown in Ferguson, Missouri, Alberta Spruill in Harlem, New York, Philandro Castillo in Minneapolis, Minnesota, Sandra Bland in Waller County, Texas, Tamir Rice, in Cleveland, Ohio, Eric Garner in Staten Island, New York, Ahmaud Arbery in Brunswick, Georgia, Breonna Taylor in Louisville, Kentucky, and last but not least George Floyd in Minneapolis, Minneapolis, who have been killed by white police officers or had no action taken on their behalf by complicit prosecutors. Maybe, just maybe, Ms. Hamer and the thousands of black men and women who have been killed by those who “policed” them will get a break and instead of saying “I’m sick and tired of being sick and tired” can say, “Free at last, Free at last, Thank God almighty we are free at last.”

So how have we as a Section responded to these major events surrounding us from New York, to Louisville, to St. Louis, to Cleveland, to Chicago to Minneapolis, and to Oakland? Well, shortly after the meeting that I attended in Washington, D.C., the Section shut down the balance of its Midwinter Meetings including its EEOC Conference, its ERR Midwinter Meeting, its Technology and Employment Law Symposium, and its International Midyear Meeting typically attended by labor and employment lawyers from around the world. That is and was a loss. However, the Section did not stand still. Through our Webinar Committee, we have held many fee-generating and free webinars, several of which have focused directly on COVID-19that drew widely from our members and beyond the ABA such as “Practical Guidance on Addressing COVID-19 in the Workplace” (1,113 registrants), “Navigating the COVID-19 Crisis as a New or Young Labor and Employment Attorney” (82 Attendees) and “Using Videoconferencing in Labor and Employment Arbitration and Mediation” (412 Attendees). The Section has plans to host 7 more webinars dealing with “Key EEO Risks and Obligations in the COVID-19 Era” and the “Supreme Court Update / EEO Case Law Review” by the EEO Committee, “Global Migration During COVID-19” by the Immigration and Human Trafficking Committee and “Janus Revisited” by the State and Local Government Bargaining and Employment Law Committee. In addition, the Section is now hosting informal videoconferences with our State and Local Government Bargaining and Employment Law Committee, EEO Committee and International Labor and Employment Law Committee. Section members can learn about webinars and free videoconferences that the Section will be hosting on the Section webpage

Many of you may know of some law students still in school, or younger lawyers recently graduated from law school and just beginning to practice, or maybe even at your own firms. However, we also know that the present economic crisis has affected law practice in our field, as well as others. Some firms have cut back on their plans to hire summer clerks, there are fewer opportunities in government service, and many corporations are reducing their law departments. The Section has responded by informing new and often younger lawyers of pro bono opportunities where they may still get their skills out to the public. The Section’s Pro Bono and Community Outreach Committee has created a list of state-by-state online advice programs for people seeking help with civil legal matters, many of whom have been hurt by COVID-19-related problems. The Committee has identified two other initiatives that can engage attorneys who have been temporarily waylaid by the pandemic – participating in pro bono work for human trafficking victims through an organization called “ALIGHT” (Alliance to Lead Impact in Global Human Trafficking) and/or working with “Freedom Now”, which provides legal representation (writing of briefs, developing and vetting cases and assisting in targeted case strategy) before various international human rights complaint bodies such as the UN or the European Court of Human Rights to political prisoners around the world detained for exercising their fundamental human and political rights. The work described here may help lawyers new to the practice get their names and work out into the legal community, locally and beyond.

You may also be wondering, given the times in which we are living, what the Section will be doing with its programming both at the ABA Annual Meeting scheduled in Chicago at the end of July and its Annual Section Conference scheduled in Los Angeles in early November. Both the ABA Annual Meeting and Annual Section Conference have been affected by COVID-19 and have been cancelled as in-person events. But, wait! We will do some of the scheduled programs in videoconference format. Our ABA Annual Meeting Committee co-chairs have been working on a program to hold close to the ABA Annual Meeting, and the Annual Section Conference Planning Committee will be looking at its planned 70 programs, trimming them down and then considering ways we can turn a substantial portion of them into webinar programs.

One last note: your governance Council held its Spring Meeting on May 29 and 30. The Council devoted its second day to taking stock of where we are in light of the crisis COVID-19 has had on the world of labor and employment, education and health care, and the embedded crisis of how race and we as humans deal and live with each other in our country. For me, as Chair and having attended many Council Meetings, last Saturday’s meeting was unique in drawing us ever so slightly from our safety zones. All of us on the Council are committed to coming up with programming over the next year that will challenge all in the Section to be better lawyers but more importantly better people. In the meantime, keep washing your hands several times a day for 20 seconds each time, continue social distancing as you come out of your homes and join larger crowds, and continue keeping safe and healthy.

Chris Hexter