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    June 02, 2023

    The Section

    Doug Dexter

    As our profession renews and recreates connections after the Covid-19 reset, our Section continues to reengage us with in-person meeting opportunities. You have responded enthusiastically with extraordinary attendance at our events, and strong sponsorship support. We look forward to continuing to support your professional development and connections.

    To that end, the Section’s Leadership Development Program (LDP) will convene on July 19–21 in Chicago. The LDP has enhanced the leadership skills and Section engagement of generations of lawyers. This year’s facilitator, Mindy Gulati, specializes in supporting inclusive leadership. Attendees will become more familiar with both the Section operation and leadership approaches that will support their practice growth.

    The Section is also conducting our 3rd Labor and Employment Law Trial Institute in Chicago on September 7–10, 2023. The Institute will again be in partnership with the National Employment Lawyers Council and IIT Chicago-Kent College of Law. Participants will receive three days of instruction on the nuances of trying a labor and employment case from expert faculty practitioners. The fourth day will feature mock trials conducted at the U.S. Courthouse.

    The content of our Midwinter Meetings continued to reflect the shared values and divergent topics encompassed within our Section. Meetings were consistently informed by the presence of senior government leaders, including NLRB General Counsel Abruzzo, DOL Solicitor Seema Nanda, and EEOC Chair Charlotte Burrows, among others. Each meeting examined varying approaches to improving diversity, equity and inclusion within our profession. State and Local Government Bargaining and Employment Law (SLG) and Railway and Airline Labor Law (RLA) attendees discussed ways to increase diversity in arbitration panels. The Employee Benefits Committee (EBC) discussed the experiences and rights of transgender lawyers. Employment Rights and Responsibilities (ERR) attendees discussed their experiences of micro-aggressions within law offices and courtrooms. The Federal Labor Standards Legislation (FLSL) Committee discussed the results of the ABA Model Diversity Survey. Equal Employment Opportunity (EEO) attendees heard the experiences of neurodivergent lawyers achieving academic and professional success.

    Mental health within our profession and workplaces was a theme in many meetings. An EEO panel noted the need for workplaces to address mental illness in a nation in which each year one in five adults suffer a diagnosable episode. The Workplace and Occupational Safety and Health Law (WOSH Law) Committee discussed the impact of the mental health crisis within the workplace as well as employer obligations and commitments to avoid exacerbation. ERR discussed the ethical obligations arising from experiencing and detecting mental health issues among lawyers.

    Other pandemic residual effects were also explored. The EBC discussed legislations intended to ameliorate the pandemic’s effect on retirement income security. WOSH Law discussed the pandemic’s lasting effects on workplace structures and regulatory enforcement. ERR discussed the lasting expansion of accommodations through remote work and leaves of absence. RLA discussed the lasting effect of pandemic adjustments withing the airline industry.

    Of course, meeting panels noted employee benefits being affected by other recent social influences. EBC, ERR and EEO panels discussed the Dobbs decision’s effect on benefits plan design and administration. The Technology Committee looked at emerging cryptocurrency investment options in retirement plans. Electronic monitoring in the workplace was discussed within many legal contexts. The Development of the Law Under the NLRA (DLL) and Practice & Procedure Under the NLRA (P&P) Committees discussed NLRB General Counsel Abruzzo’s advice memo on the topic. WOSH Law discussed the health and privacy effects of workplace automation and artificial intelligence. ERR debated tensions between productivity and privacy arising from worker monitoring. The Technology Committee explored various agencies’ efforts (in the absence of federal legislation) to scrutinizing workplace surveillance and the anticipated judicial review of those efforts. The Technology and EEO Committees devoted panels to the growing use and regulatory scrutiny of artificial intelligence in employee selection and assessment.

    Free speech was also a hot topic. SLG discussed public employees’ ability to exercise First Amendment rights. The Federal Sector Labor and Employment Law (FSLEL) Committee discussed evolving whistleblower protections for federal employees. EEO discussed the relationship between religious expression and political ideology, as well as workforce expectations of corporate social responsibility. DLL and P&P discussed intensified NLRB review of workplace rules and Weingarten rights of non-union employees. As innovations in union campaigns become more in the spotlights, DLL and P&P also heard from NLRB General Counsel Abruzzo regarding other new advice memoranda. The recent advice memo on captive audience speeches was hotly debated. GC Abruzzo also explained her policy approaches to remedies. ERR discussed the increased use of technology in union campaigns. SLG discussed the bargaining table priorities driven by inflationary times. The Technology Committee discussed unionization campaigns in the $186 million worldwide video gaming industry.

    Several committees discussed the continued evolution of mass actions. FLSL discussed equal pay claims, as well as multiple parallel arbitrations. ERR considered the use of experts in class and collective actions. EEO discussed increased workplace pay transparency requirements, discrimination class actions, and race-conscious affirmative action. The Technology Committee discussed workforce reductions in that industry.

    Ethics credits were offered in each meeting on a variety of topics. The EBC discussed the duties to avoid cybersecurity breaches. P&P discussed the ethical obligation to remain aware of technology innovation. DLL discussed ethical obligations in settlement negotiations, while WOSH Law focused on the need to obtain settlement approval. ERR discussed how to remain within ethical limits during a crisis. EEO used a mock deposition to define ethical boundaries in that context. Indeed, mock formats were used in other meetings as well. WOSH Law demonstrated mediation techniques. ERR demonstrated trauma-informed interview techniques. Activities outside the CLE fora included a pickleball doubles tournament (ERR) and food bank elbow grease (DLL). The Section will continue these dialogues throughout the year in webinars and at the Annual Section Conference in Seattle on November 8–11. We look forward to seeing you there.

    Doug Dexter

    Partner, Farella Braun + Martel LLP

    Doug Dexter is a partner with Farella Braun + Martel LLP based in San Francisco. He is the Chair of the ABA Section of Labor and Employment Law. Doug advises and represents businesses in managing their workforces consistent with the law and their cultural and business priorities.

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