April 19, 2018 Issue: Spring 2018

Issue: Spring 2018

Editor: Lloyd W. (Chip) Aubry, Jr

A Word from the Editor. . .

The Committee recently concluded its 2018 Midwinter Meeting held February 21‑23 in Nassau, Bahamas. The meeting was highlighted by the presentations given by EEOC Commissioner Charlotte Burrows, former Acting Solicitor of Labor David Fortney and Paul Bland, Executive Director of Public Justice in Washington, DC. Of course, the hot topic of the meeting was the direction of the Trump Administration, which, at least at the DOL, is getting off to a slower start than expected. Many political positions at DOL are unfilled or unconfirmed. In particular, Cheryl Stanton, the President’s pick for Wage/Hour Administrator, had to be reappointed in January and still awaits confirmation by the full Senate.

Committee News

The location for the next Midwinter Meeting in 2019 has not yet been determined, but Committee leadership is looking at a place “west of the Mississippi” after the last two meetings were held in the Caribbean.

The Committee co-chairs are always looking for contributors to the five treatises that are published by the Committee. The Committee publishes treatises on the FLSA, State-by-State Wage and Hour Laws, the ADEA, FMLA and USERRA, each with ongoing work for the annual supplements or the publication of a new edition. Please contact one of the committee chairs if you are interested in working on one of these treatises.

Joe Tilson, Chair-Elect of the ABA Section of Labor and Employment Law, also encouraged members to write for the various ABA publications including the Section Newsletter (4 times/year), the FLASH (monthly e-newsletter), and Hot Topics (occasionally). He reported that the University of Minnesota Law School will no longer be overseeing the publication of the ABA Journal of Labor & Employment Law. The St. Louis University School of Law will be taking over and will be introducing some new concepts to the publication. These publications are distributed to over 13,000 attorneys in the Section.

He also encouraged members to attend the 12th Annual Section Conference, which will be held this year in San Francisco, CA, November 7-10, 2018 and include over 60 panels and attendance by over 1,200 attorneys.

Chair-Elect Tilson also pointed out that the Section provides many leadership opportunities for members wanting to serve on various Section committees including the Pro Bono and Community Outreach, Diversity and Inclusion in the Legal Profession and Leadership Development Program Committees. Appointments to the Committees are made in June and July, and anyone interested should contact Joe or one of the committee co-chairs. The Section is committed to diversity and inclusion among speakers and in leadership positions. In furtherance of those goals, the Section has a Section Development Fund that provides funds to subsidize new-to-the-profession lawyers’ attendance at the Section’s meetings for 3 years. Finally, he described the new ABA Trial Institute that has been developed to provide lawyers who have 8-15 years in practice with some hands-on jury trial experience.

Nassau Meeting

The Midwinter Meeting reports and papers can be found on the Committee’s website . The Subcommittee Reports this year include the following:

1.         Age Discrimination in Employment Act

2.         Equal Pay Act

3.         Fair Labor Standards Act

4.         Family and Medical Leave Act

5.         USERRA

6.         Wage and Hour Laws: A State-by-State Survey

7.         WARN & EPPA

The papers presented at the meeting include the following:

Update from the Arbitration Wars: What’s Left to Fight About?”

- Paul Bland

The U.S. Department of Labor: A Year into the Trump Administration

- David S. Fortney

Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Support of Plaintiff-Appellee and in Favor of Affirmance

- Hon. Charlotte Burrows

Brief of the U.S. Equal Employment Opportunity Commission as Amicus Curiae in Support of Rehearing En Banc

- Hon. Charlotte Burrows

Select Task Force on the Study of Harassment in the Workplace

- Hon. Charlotte Burrows

Promising Practices for Preventing Harassment

- Hon. Charlotte Burrows

FLSA Hot Topics

- Robert A. Boonin, Tracey Donesky, Ryan Hagerty, and Laura Ho

Courts Get Discovery Guidance for Federal Wage Cases

- Hon. Andrew J. Peck, Jay Carle, Amanda Farahany, and Eric Robinson

Initial Discovery Protocols for Fair Labor Standards Act Cases Not Pleaded as Collective Actions

- Hon. Andrew J. Peck, Jay Carle, Amanda Farahany, and Eric Robinson

FRCP Amendments

- Hon. Andrew J. Peck, Jay Carle, Amanda Farahany, and Eric Robinson

Fischer v. Forrest

- Hon. Andrew J. Peck, Jay Carle, Amanda Farahany, and Eric Robinson

Depositions in Wage and Hour Cases

- J. Derek Braziel, Megan Mechak, and Lisa (Lee) A. Schreter

New Developments in Pay Equity Law

- Gina K. Janeiro, Timothy Long, Diana Nobile, and David Schlesinger

Taking and Defending Key Depositions in Employment and Wage Hour Cases

- Gina K. Janeiro, Timothy Long, Diana Nobile, and David Schlesinger

New Developments in Pay Equity Law

- Gina K. Janeiro, Timothy Long, Diana Nobile, and David Schlesinger

I’ll Take the FMLA for $1,000

- Maria A. Audero and Sarah Faulman

ADEA

- Roxanna Sidiah Bell and Bernard Mazaheri

WARN and EPPA

- Matthew Disbrow and Matthew C. Helland

Hot Topics in Whistleblower Law

- Harry (Hal) Welford and Jacqueline M. Prats

Update on Ethical Issues in Fair Labor Standards Law

- Philip Monrad, Jack A. Raisner, and Jennifer Williams

Paul Bland, Executive Director of Public Justice in Washington, DC, led off the meeting on Wednesday afternoon with “An Update from the Arbitration Wars:  What’s Left to Fight About.” In response to his own question in the title, Mr. Bland essentially said “not much,” at least for now. He disagreed with Congress using the Congressional Review Act to overturn the Consumer Financial Protection Bureau’s regulations banning arbitration for certain financial instruments and services. On the other hand, he was pleased about the recent letter signed by all 50 state’s attorneys general suggesting a ban on arbitration when a claim for sexual harassment is presented. Bland noted that the 9th Circuit agreed with the NLRB’s D.R. Horton case invalidating class action waivers in arbitration agreement, but he was not overly optimistic about the Supreme Court’s review and ultimate decision in the trio of cases presently before the Court on that topic.

David Fortney, former Acting Solicitor of Labor during the Bush I Administration, reported on the current state of the Trump Administration especially at DOL. He noted that the Department would have been starkly different had Andrew Puzder been confirmed as Secretary rather than Alexander Acosta, the current Secretary of Labor. Puzder was a true advocate for the “deconstruction of the administrative state,” while Secretary Acosta has been touting the “rule of law” as his goal. Mr. Fortney pointed out that Cheryl Stanton is still awaiting floor action on her confirmation to be Wage and Hour Administrator. He suggested that these confirmations can only take place when the majority is convinced that all of its Senators will be there; otherwise, there is a chance a confirmation could be denied. He noted that Kate O’Scannlain has been confirmed as Solicitor of Labor, and opinion letters are back, including a procedure on the website for requesting an opinion . And, although the previous joint employment and the independent contractor Administrator Interpretations have been withdrawn, there have been complaints that, even so, not much has changed from an enforcement perspective. In early February, Senator Marco Rubio publicly complained that the Department was still using old guidance for enforcement and that needed to change.

With regard to the overtime regulation, he suggested that this time there could be a more fundamental change to the 541 regulations. The RFI issued by DOL sought information on a broad range of topics beyond just the appropriate level of the salary test regarding the white collar exemptions.

The Honorable Charlotte Burrows spoke on what is new at the EEOC. She said she had been traveling around the country and people were questioning now whether the principles of equality are still accepted by all, which she found very discouraging. She noted that the EEOC hasn’t had a General Counsel for over one year and that the EEOC is made up of two Obama appointees and one Republican, Acting Chair Victoria Lipnic. She pointed out that the EEOC’s report on sexual harassment now appears prescient during this “Weinstein” moment, that people need to show respect in the workforce, and that culture is ultimately what needs to change to correct the situation. The EEOC has prepared harassment guidance and last November sent it to the OMB for approval, which it is still awaiting.

The program also included the usual well-prepared presentations by Committee members on the subcommittee report topics. The hotel was a sprawling venue with myriad pools and beaches including a pool cave that included glass walls with sharks, turtles and stingrays in pools on the other side. If you have not yet been to one of these meetings, you really should consider attending. We are a very welcoming group, the meetings are informative, and we only meet until 1 p.m. in the afternoon.

See you next year.   Chip