LEL Flash | Issue: February 2012

FLASH header

Flash Co-Chairs: Elana Hollo, National Labor Relations Board | Katherine Huibonhoa, Paul Hastings LLP | Heather W. Martin, Balch & Bingham LLP | Amy F. Shulman, Broach & Stulberg LLP

Issue: February 2012

Comments from the Chair

Pass This On!

The ABA's e-mail travails (see below) are still continuing, so more than 40% of our members will not see this issue of the FLASH unless you forward it to them. Non-members who practice in our field may be equally interested.


To longtime Section supporter (co-chair of Federal Court Law Clerk Training Committee, former co-chair of CLE Committee, former Board of Governors liaison to the Section, presider over mock trials and frequent speaker) Hon. Bernice Donald (formerly U.S. District Judge for the Western District of Tennessee) for being sworn in in October 2011 as a Judge of the U.S. Court of Appeals for the Sixth Circuit.  See the stories at http://www.commercialappeal.com/news/2011/oct/20/bernice-donald-sworn-federal-appeals-court-judge/ and http://www.abajournal.com/news/article/bernice_donald_is_confirmed_for_a_seat_on_the_6th_us_circuit_court_of_appea/.

To Council Member-at-Large Cynthia Nance, for receiving the ABA Commission for Racial and Ethnic Diversity in the Profession's Spirit of Excellence Award. See the story at http://www.abanow.org/2012/02/six-lawyers-receive-spirit-of-excellence-awards/.

To employee Council Member Kelly Dermody, for becoming President of the Bar Association of San Francisco. See the story at

Rick Seymour

Chair, ABA Section of Labor and Employment Law

Special Feature

SMU Wins National Trial Advocacy Championship

It may not be the Super Bowl, but it is the Super Bowl of law student employment trial advocacy. Speaking of sports, not even the 28,000 runners in the Miami Marathon blocking easy courthouse entrance could keep these competitors from wowing judges, evaluators, family and friends with their incredible trial advocacy skills.


Current Status of Alabama's Immigration Law

In June 2011, the State of Alabama passed into law the Beason-Hammon Alabama Taxpayer and Citizen Protection Act (ATCPA), which has been said to be the toughest illegal immigration state law in the nation. At more than 70 pages, the Act is lengthy and complex. It has quickly become the subject of numerous Alabama Attorney General Opinions and court challenges, many of which remain unresolved to date.

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On the Ethics and Professionalism Horizon

The Section of Labor and Employment Law Ethics and Professional Responsibility Committee has a major role in coordinating Section ethics programs and projects, and other Section committees and individual members also make substantial contributions. For example, the Employee Benefits and Employment Rights & Responsibilities Committees each have standing ethics subcommittees that monitor developments in professional responsibility law and organize ethics programs relevant to their areas of labor and employment law, and most Section Committees conduct ethics programming at their Midwinter Meetings.

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Committee Report

Pro Bono Work Committee Program Report

The Pro Bono Work Committee honored the 2011 Frances Perkins Public Service Award winner, the law firm of Outten & Golden, at the Pro Bono luncheon in November. Outten & Golden received the award because of both their significant achievements and extraordinary commitment to pro bono. As firm Chair, Wayne Outten, stated at the luncheon, the firm’s culture is all about "doing good while doing well." Referred to as the "modified Robin Hood approach," the firm practices law at the highest level enabling its lawyers to make a good living, but also allows those lawyers to do work that promotes the public interest.

Technology Corner

Recent Cases Discuss Thorny Social Media Issues

Courts continue to wrestle with the thorny issues of how and to what extent traditional laws apply in the social media context.  While some courts seem to be embracing social media contacts and communications as protectable business interests and trade secrets, as the cases summarized below illustrate, whether information posted on social media is truly private remains an open question.  Employees and employers should expect the courts to continue to struggle with these issues, and should anticipate a wide range of results.

Hot Topic

UPDATE: NLRB Postpones Implementation of Final Rule Requiring Employers to Post NLRA Rights Poster until April 30, 2012

Unionized and non-unionized employers subject to NLRB jurisdiction now have until April 30, 2012 to post the NLRA rights poster described in the 'Hot Topic' presented in an earlier version of this newsletter. The NLRB decided to postpone implementation of the posting rule from January 31, 2012 until April 30, 2012 because of a request made by Judge Amy Berman Jackson of the United States District Court for the District of Columbia in connection with the now consolidated lawsuits brought by the National Association of Manufacturers and the National Right to Work Legal Defense and Education Foundation described in the following article.

Update on Section Midwinter Meetings

Please join us for an exciting Midwinter Meeting schedule in February, starting with the Employee Benefits Committee meeting February 15–18 in Coronado, California, featuring a presentation by Phyllis Borzi, Assistant Secretary of Labor, Employee Benefits Security Administration; a discussion with investment professionals who invest plan assets; and a range of panels reviewing developments in benefits law.

Then comes a series of meetings in Key West, beginning with the Federal Labor Standards Legislation Committee, February 22–24, to review developments in the dynamic area of wage and hour litigation.

After that, the Section's two great labor law committees continue their tradition of holding back-to-back meetings in a common city, permitting labor lawyers to attend both sessions. This year in Key West, the Committee on Development of the Law under the NLRA will meet Feb 26–29, followed by the meeting of the Committee on Practice and Procedure under the NLRA, February 29–March 3. Following another long tradition, the Chairman, members, and Acting General Counsel of the NLRB will participate.

Section Treatises Update

Now available: The 2011 Supplement to How to Take a Case Before the NLRB, Eighth Edition offers discussion of:

  • New and proposed NLRB Rules, including the notice posting requirement, the proposed election rules, and the recent decision of the Board in Specialty Healthcare and Rehabilitation Center of Mobile concerning non-acute healthcare bargaining units
  • The Board's decisions on election bar in cases of voluntary recognition and recognition of an incumbent union by a successor employer
  • Current requirements for filing and service of documents in NLRB proceedings
  • Recent Board election decisions concerning objections, challenged ballots, and election sites
  • Initiatives of the Acting General Counsel on deferral to arbitration policy, use of default provisions in settlement agreements, and requirements that settlements contain provisions to alleviate the negative tax and Social Security consequences of lump sum backpay payments

An update on significant developments in December 2011 after the Supplement went to press is available here.

Section members are entitled to significant discounts on this and other Section treatises published by Bloomberg BNA, including: the 2011 Cumulative Supplement to The Developing Labor Law: The Board, the Courts, and the National Labor Relations Act, Fifth Edition; the 2011 Supplement to The Fair Labor Standards Act, Second Edition; and the 2011 Cumulative Supplement to Labor Union Law and Regulation.

For a complete listing of Section titles and discounted prices, and to order, visit www.bna.com/bnabooks/abale.

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