The NLRB’s McLaren Macomb Decision Limiting Non-Disclosure and Confidentiality Agreements, and the Federal Trade Commission’s Current Rule Making Proposal to Ban Virtually All Non-Compete Agreements.
Panelists: Peter Sung Ohr, Deputy General Counsel, National Labor Relations Board
Yona Rozen, Associate General Counsel, AFL-CIO
John Hamlin, Marsh McLennan
Katherine E. Perrelli, Seyfarth Shaw
Amy Shulman, Outten & Golden
Moderator: Evan J. Spelfogel, Phillips Nizer LLP,
As employers, employees and unions anticipate and plan for returning to the office (or other work environments), they remain confronted with the threat of new variants of COVID and evolving laws and regulations relating to return to work. The panel discussed issues confronting employers, employees and unions during this tumultuous period, including increasing demands for vaccination, testing, medical exemptions and religious exemptions.
Nicholas Woodfield, Esq., The Employment Law Group
Yona Rozen, Associate General Counsel, AFL-CIO
Devjani H. Mishra, Esq., Shareholder, Littler Mendelson PC
Reginald Odom, Senior VP, Chief People Officer, Hospital for Special Surgery
William D. Frumkin, Esq., Frumkin & Hunter Law PC
In 2021, civility is under attack in the public square — and the effect is being felt in employment litigation, too, where high-stakes, emotional disputes unfold against an economic backdrop that has become increasingly fraught and polarized. Our system of laws relies on the professionalism and restraint of its practitioners, yet the boundaries of proper behavior are sometimes blurred. This webinar explored the use of civility as a tool to gain advantage in litigation, not just for the benefit of clients — though that is a key outcome — but also for the overall good of the courts and the legal profession. The distinguished panelists, federal judges at the appellate level, explored how the practice of civility and professionalism is explicitly favored under their local rules, as well as by general court custom. They shared their expectations for courtroom behavior, as well as the consequences, for lawyers and for clients, of violating norms. The result was a roadmap for attorneys who wish to reap the benefits of courtroom civility and to capitalize on the errors of opponents who disrespect judges and the forum in which they seek justice.
Honorable Albert Diaz, Judge, US Court of Appeals for the Fourth Circuit
Honorable Stephanie D. Thacker, Judge, US Court of Appeals for the Fourth Circuit
Michal Shinnar, Senior Counsel, Joseph Greenwald & Laake, PA
R. Scott Oswald, Managing Principal, The Employment Law Group, PC
The College of Labor and Employment Lawyers presented a unique online two-session briefing event featuring the policy and political leaders from four federal agencies, relevant and interesting to the College’s members nationwide. The two-session program features the leaders from the Equal Employment Opportunity Commission (EEOC) and Office of Federal Contract Compliance Programs (OFCCP) on May 18, followed the next day by key officials from the US Department of Labor (DOL) and the National Labor Relations Board (NLRB) on May 19. The government speakers will address significant developments as well as future plans and policies at their respective agencies, with reactions from panelists in a moderated discussion. The May 19th speakers include:
M. Patricia Smith, Senior Counselor to the Secretary of Labor, DOL
Peter Sung Ohr, Acting General Counsel, NLRB
Judy Conti, National Employment Law Project
Lawrence Z. Lorber, Seyfarth Shaw LLP
Mark Gaston Pearce, Workers’ Rights Institute, Georgetown Law
The College of Labor and Employment Lawyers presented a unique online two-session briefing event featuring the policy and political leaders from four federal agencies, relevant and interesting to the College’s members nationwide. The two-session program features the leaders from the Equal Employment Opportunity Commission (EEOC) and Office of Federal Contract Compliance Programs (OFCCP) on May 18, followed the next day by key officials from the US Department of Labor (DOL) and the National Labor Relations Board (NLRB) on May 19. The government speakers will address significant developments as well as future plans and policies at their respective agencies, with reactions from panelists in a moderated discussion. The May 18th speakers include:
Hon. Charlotte A. Burrows, Chair, EEOC
Jenny R. Yang, Director, OFCCP
David S. Fortney, Fortney & Scott, LLC
2020 was a year that was defined by anxiety and stress for most companies and for the workforce. We seemed to careen from one stressful crisis to another: a global pandemic that killed more than 500,000 in the U.S. alone; an economic collapse that left tens-of-millions of the most vulnerable unemployed and many businesses and industries struggling; social upheavals that put a spotlight on the harsh reality of racial inequality; and political turmoil that tested our democracy.
Most people would agree that the way we live, work, and play will never be the same. Countless questions are presented about the future of work, the workplace, and the workforce, including what old rules need to be broken, re-written, or discarded, as employers and employees alike try to adjust to a new environment?
This program examined and addressed such issues as:
Key Presenter: Jay Jamrog, Senior Vice President, Research, The Institute for Corporate Productivity (i4cp)
Discussion Facilitators: Wayne N. Outten, Partner, Outten & Golden LLP and Darrell S. Gray, Partner, Arent Fox LLP
In light of the recent EEOC Guidance concerning COVID-19 vaccinations in the workplace, the program panel looks at the legal issues from all sides, providing perspectives of employers, employees and unions. In addition, EEOC Commissioner Sonderling is a panel member. The panel explores these legal issues through a question and answer format, encouraging debate and leaving ample opportunity for audience interaction.
Moderator – Gwynne A. Wilcox | Partner, Levy Ratner
The impact of the Black Lives Matter movement has caused many employers to consider how to respond, including taking a more ambitious approach to diversity, equity, and inclusion programs and initiatives. Recent negative reactions to some of those potential programs and initiatives have complicated those efforts. This program discusses the challenges and legal issues employers (including law firms), employees and unions will confront in this dynamic environment when they seek to be proactive and take steps to facilitate effective and legally compliant programs and initiatives.
Moderator – Darrell S. Gay, Esq. | Partner, Arent Fox LLP
121020 Articles of Interest
121020 Ten Tips
121020 Visible Invisibility
121020 You Cant Change What You Cant Print
AME COL – 12.10.20 WEBINAR HANDOUT (RESOURCE DOC.)
Best Practices for Promoting DEI 12.4.20 v. 2 (003) (002)
CEO Action for DI Corporate Actions
This panel of distinguished and diverse judges, neutrals and practitioners explore how issues of diversity and inclusion impact the legal profession. The panel ask whether civility is enough and what can be done to impact the under representation of women, people of color, and LGBTQ+ professionals on partnership track at major law firms (Defense and Plaintiff), on the bench, and among the elite ranks of neutrals. The panel also explore how external events, such as civil rights and justice movements, impact the dialogue.
|Honorable William Bedsworth, California Court of Appeal for the Fourth District|
Honorable Fernando Olguin, US District Judge for the Central District of California
|Marta Fernandez, Esq., Jeffers Mangels Butler & Mitchell, LLP (CA)|
|Rene Mochkatel, Esq., Allred Maroko & Goldberg (CA)|
|Daniel L. Bonnett, Esq., Martin & Bonnett, PLLC (AZ)|
|Jesús E. Quiñonez, Esq., Legal Director, California Teachers’ Association (CA)|
|Angela Reddock-Wright, Esq., The Reddock Law Group (CA)|
|Moderator–||J. Bernard Alexander, III, Esq., Alexander Morrison + Fehr (CA)|
PDF_AJRW_DJ_Article-BLM__Mediating_Race_Claims_07242020Covid Pandemic_ U.S. Businesses Issue Gag Rules to Stop Workers From Talking – Bloomberg
Three federal judges from Washington DC speak about what they expect from the lawyers who appear before them, with a special focus on employment cases.
A panel of experienced practitioners address these latest critical considerations from every angle, with a view toward arming attendees with issue spotting, argument analysis and potential resolution suggestions, to enable them to thread the needle through the COVID-19 crisis facing clients.
Moderator – William D. Frumkin, Esq. | Arent Fox LLP
Six months into the COVID-19 pandemic, with many employees still working from home, teleworking is far more common than ever. Some employers are encouraging or permitting many employees to work remotely for the rest of 2020 (and beyond). There is a growing consensus that, as a result of this experience, remote work will remain far more common post-pandemic than it was pre-pandemic. In this webinar, panelists with diverse perspectives will explore the pluses and minuses, including specific legal pitfalls — such as in connection with reasonable accommodations, disparate impacts, and wage-and-hour issues — related to the increase in remote work.
Despite a surge in the number of employees working from home during the pandemic, many workplaces remain operational and a growing number of employers are ramping up their on-site operations or plan to reopen in the coming months. In this program, lawyers representing unions, employees, and employers will examine assorted legal issues and tactical challenges related to working on-site during COVID. This discussion will be relevant to those whose clients never left or face returning to the workplace and those who represent employers confronting the complexity of managing employees on-site during the pandemic.
Moderator – Darrell S. Gay, Esq. | Arent Fox LLP
Traditional labor lawyers representing unions and management address their interests and resolving disputes using virtual technology, while adapting to the COVID-pandemic world that we now face. You will hear the latest updates from the Federal Mediation and Conciliation Services on how virtual services are being provided, and from a highly experienced arbitrator addressing arbitration proceedings relating to traditional labor issues. Additionally, experienced practitioners representing parties in labor management negotiations and disputes who already have experience in using the new technologies will share the lessons they have learned. This exciting program will provide updates on the technologies and provide information and practice pointers for effectively representing your clients on a virtual basis in collective bargaining, mediation when needed to get to a collective bargaining agreement and arbitration of labor disputes.
This session examined the benefits and challenges of conducting and participating in virtual labor and employment arbitration during the pandemic. Practitioners from labor, management, plaintiff and defense who have actually participated in virtual arbitration spoke about their experiences. Discussion included, among other considerations, observations on the technology, factors influencing the decision to go virtual, client concerns and reactions, problems experienced and means of resolution.
Arbitrator Authority on hearings – Excerpts of NAA code and AAA rules
FMCS Guide to video arbitration 4-13-20
NAA/FMCS 4-2-20 Video Conferencing Power Point
Virtual Arbitration Hearing Order (Feliu)
Sample Case Schedule (LaRue)
This session examined the benefits and challenges of conducting and participating in virtual labor and employment mediations during the pandemic. Practitioners from labor, management, plaintiff and defense who have actually participated in virtual mediations spoke about their experiences. Discussion included, among other considerations, observations on the technology, factors influencing the decision to go virtual, client concerns and reactions, problems experienced and means of resolution.
Moderator – Evan Spelfogel, Esq. | Phillips Nizer LLP
Although depositions were conducted remotely on fairly rare occasions pre-pandemic, remote depositions are being conducted with increasing frequency during the pandemic and are likely to remain more prevalent in the “new normal” after social-distancing precautions end. U.S. Legal Support, one of the vendors that provides not only court reporters but also the technology to conduct remote depositions, began this webinar with a demonstration of how it runs such depositions. Following this demo, Fellow presenters from both the employee/union and management perspectives addressed the laws, rules, and procedures that apply to remote depositions and discussed their personal experiences in navigating the practical challenges posed by conducting remote depositions to ensure effective, efficient, and ethical results.
Moderator – Loren Gesinsky, Partner | Seyfarth Shaw LLP
The Regional program of the 4th, 5th and 11th Circuits was a joint College event on February 7-8, 2020 in St. Petersburg, FL, featuring discussions on topics of national interest. Four superb panels were assembled to address current topics.
Special thanks to the sponsoring firms: Bradley Arant, Burr & Forman LLP; Constangy, Brooks, Smith & Prophete, LLP; GrayRobinson PA, Jackson Lewis, Ogletree Deakins; Rod Tanner & Associates and Steptoe & Johnson PLLC!
Civility and Professionalism in the Courtroom
Three esteemed federal judges offered their thoughts and insights into practical topics such as how to be an effective advocate before the court, the difference between appellate and jury argument, the importance of preparedness, making the most of oral argument, and fidelity to the appellate record.
Honorable J. Michelle Childs – US District Court, District of South Carolina
Honorable James E. Graves, Jr. – US 5th Circuit Court of Appeals
Honorable Charles R. Wilson – US 11th Circuit Court of Appeals
Stetson Journal of Advocacy and the Law – Allen_2019
PRINCIPLES OF CIVILITY
CLEL 2020 Civility and Professionalism
The View from the Hill: A Legislative Update
Panelists discussed and debated pending proposals in Congress, including the Protecting the Right to Organize (PRO) Act, and talked about their prospects for adoption.
Fellow Randal K. Johnson (Seyfarth Shaw, Washington, DC)
Lynn Rhinehart (Economic Policy Institute, Washington, DC)
Handouts for Session on The View From the Hill
PRO ACT – Fact Sheet
Statement of L. Lorber
2020-02 College of Labor and Employment Lawyers_ Capitol Hill Update(61498529v1)
The NLRB in 2020
The National Labor Relations Board continued to experience change in 2019, as Peter B. Robb succeeded Richard F. Griffin for a four-year term as General Counsel which began on November 17, 2017. Mr. Robb provided his observations on the significant issues he has brought to the Board or may bring in the future.
Peter Robb (General Counsel, National Labor Relations Board, Washington, DC)
Advice Memo ADC LTD
Advice Memo Greektown Casino
GC Memo 18-04 Guidance on Handbook Rules Post_Boeing.pdf
GC Memo 19-03 Dubo Deferral
GC Memo 19-04 Unions’ Duty to Properly Notify Employees of their General Motors & Beck Rights and Dues Checkoff Revocations
NLRB Decision Apogee
NLRB Decision Boeing (Unit)
NLRB Decision Caesars
NLRB Decision Electrolux
NLRB Decision General Motors
NLRB Decision Johnson Controls, No. 10-CA-151843
NLRB Decision SuperShuttle
NLRB Decision UPMC
NLRB Decision Walmart (Boeing Interpretation, Union Insignia)
NLRB Decision Walmart (Intermittent Strikes)
NLRB Decision, UPS
NLRB Decision, Valley Hosp
The Intersection of Employment Law and Criminal Law
Practitioners provided guidance on how to identify and handle employee and employer criminal activity in the workplace, such as claims of employee theft or embezzlement, employees viewing pornography on employer’s devices and employer’s illegal activity such as fraud on the government, and focused on best practices and ethical considerations for addressing these issues.
Fellow Cynthia Sass (Sass Law Firm, Tampa, FL)
A. Brian Albritton (Phelps Dunbar, Tampa, FL)
Jo Ann Palchak (The Law Office of Jo Ann Palchak, PA, Tampa, FL)
Jason Pill (Phelps Dunbar, Tampa, FL)
Upjohn Company v. United States 449 U.S. 383 101 S.Ct. 677 66 L.Ed.2d 584 (1981)
Intersction of Employment Law and Criminal Law PPT
Guests experienced a fascinating journey of the past fifty years of Labor and Employment Law, with tour guides who are acclaimed veterans in the field, boasting almost 150 years of combined experience between them. Professor Cynthia Nance moderated the discussion as Ted St. Antoine, Chai Feldblum and Peter Hurtgen shared experiences and recollections gained in landmark cases, ground-breaking negotiations, and historic mediations which left an indelible mark on the field of labor and employment law and are still relevant today. Their enduring reputations are exceeded only by the scope of their achievements as trailblazers in the field of labor and employment law.
Ted St. Antoine
Moderator – Cynthia E. Nance
This panel of experienced judges, neutrals and practitioners will discuss the types of attorney conduct that rankles them the most in labor and employment law litigation and arbitration. In addition, they will address incivility, unethical conduct, implicit bias and other behaviors that discredit the legal profession and violate the ABA and California State Bar Rules of Professional Conduct, as well as the CLEL’s Principles of Civility and Professionalism. Strategies on how to identify and correct these issues will be included as well.
Judges: Hon. Rupert Byrdsong and Hon. William Highberger
Arbitrators: Hon. Judith Chirlin (Ret.) and Pamela Hemminger
Practitioners: Genie Harrison (E), Maria Rodriguez (M), Laurence Zakson (U)
Moderator: Nancy Abell.
Special thanks to sponsors Judicate West and Signature Resolution!
CLEL Agenda October 2 2019 Program
CLEL Bias 01 ABA Commission on Women Can’t Change What Can’t See
CLEL Bias 02 Calif Rules-of-Professional-Conduct 8.4.1
CLEL Bias 03 Judge Yvonne Gonzalez Rogers Admonition to Counsel_Redacted
CLEL Bias 04 Judge Koh’s Bench Trial Standing Order
CLEL Ethics 01 Judge Byrdsong Final Status Conference Order
CLEL Ethics 02 Motion in Limine Reeves v Hologram
CLEL Ethics 03 Motion in Limine Reeves v Hologram Opposition
CLEL Ethics 04 LaSalle v. Vogel
CLEL Ethics 05 LA County Bar Code of Civility Guidelines
CLEL Ethics 06 General Dynamics
CLEL Ethics 07 Fox Searchlight Pictures
CLEL Ethics 08 Chubb
CLEL Ethics 09 Clark
CLEL Ethics 10 County of San Bernardino PERB
CLEL Ethics 11 County of San Bernardino Ct of Appeal
CLEL Ethics 12 Order Denying Pltf’s Rule 16 Motion and Directing Status Statement
CLEL Ethics 13 Order to Show Cause re Referral to State Bar
CLEL Ethics 14 Cal State Op. 2009-176
CLEL Ethics 15 2015-194 Puffing in Negotiations
CLEL Ethics 16 ABA Formal Ethics Op. No. 06-439
4th and 11th Circuits Host Successful Regional Meeting in Historic Charleston. The weekend started with a dinner at the famous Galatoire’s Restaurant on Bourbon Street. An amazingly successful program was enjoyed by over sixty Fellows in Charleston, SC on February 2nd. Thank yous go to the Planning Committees of the 4th and 11th Circuits, and to all the speakers who graciously accepted our invitation to be a part of this event.
Friday evening’s reception at the South Carolina Historical was the perfect start to a weekend in the charming and historic southern city. Saturday morning’s judges’ panel featured three district court judges (Hon. Irene M. Keeley – USDC ND WV; Hon. Donald C. Coggins, Jr. – USDC, DSC.; Hon. R. David Proctor – USDC ND Ala.) who shared their insights and experiences on civility in the courtroom. Fellow Marty Malin and Fellow John Ring followed, sharing updates on legislative happenings and the NLRB. The final panel featured three speakers representing a variety of viewpoints on the #MeToo Movement. Adriane Malanos Belton (Mercedes Benz, Charleston, SC), Angela Gray (Gray Newell Thomas, Greensboro, NC) and Lucas Kaster (Nichols & Kaster, Minneapolis, MN), touched on topics from how the movement has impacted juror profiles and jury selection, to male victims alleging sexual harassment in the workplace to the importance of training and policy awareness. Fellows were extremely enthusiastic about a follow up program in 2020.
Special thanks to the sponsoring firms: Burr & Forman LLP; Constangy, Brooks, Smith & Prophete, LLP; The Employment Law Center, PLLC; Ogletree Deakins Nash Smoak & Stewart, PC; Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan; and Steptoe & Johnson PLLC!
Sexual Harassment Prevention Strategies for Employers
The Importance of Civility in the Sandbox
Recent Developments in Labor and Employment Law: Is the Law of the Workplace Drifting Rightward?
Knock It Off’: Judge Upbraids Reed Smith Partner Litigating Mueller Case
ATTENDEE CONTACT INFORMATION
SELECT TASK FORCE ON THE STUDY OF HARASSMENT IN THE WORKPLACE
DEFENDANT CONCORD MANAGEMENT AND CONSULTING LLC’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL DISCOVERY FROM THE UNITED STATES
DEFENDANT CONCORD MANAGEMENT AND CONSULTING LLC’S RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS THE INDICTMENT
#MeToo One Year Later: Progress in Catalyzing Change to End Workplace Harassment
#MeTooWhatNext: STRENGTHEN PROTECTIONS AGAINST WORKPLACE SEXUAL HARASSMENT
The 5th and 11th Circuit Regional Committees joined forces to offer Fellows and guest a unique programming opportunity over President’s Day Weekend in New Orleans, LA at the historic Le Pavillon Hotel. The weekend started with a dinner at the famous Galatoire’s Restaurant on Bourbon Street. The Saturday morning program featured outgoing NLRB Chair Phil Miscimarra sharing his thoughts on the time he spent as Chair and what’s ahead for the Board. Fellows Michael Green and Rod Tanner discussed Speech Protections and Black Lives Matter in the Workplace, sharing their perspectives on how, and if, the speech of the protesting worker should be protected. Professor William Corbett, the Frank L. Maraist Professor of Law and Wex S. Malone Professor of Law at Paul Herbert Law Center, Louisiana State University, addressed recent developments in labor and employment law. Over lunch, Honorary Fellow, and recently retired 7th Circuit Court of Appeals Judge, the Honorable Richard Posner, joined us to discuss his experiences as they relate to civility in the courtroom and his new venture – a pro bono law firm benefiting pro se litigants. The day ended with a cocktail reception on the rooftop terrace of Le Pavillon.
Speech Protections and Black Lives Matter in the Workplace
Through the Looking Glass – Protection of Controversial Employee Speech In and Outside the Workplace
Joint Employers, Medical Joints, and the Mark of the Beast: A Revelatory Year in Labor and Employment Law – Paper
Joint Employers, Medical Joints, and the Mark of the Beast: A Revelatory Year in Labor and Employment Law – PowerPoint
The NLRB’s New Year: Observations from the Former Chairman – Part 1
The NLRB’s New Year: Observations from the Former Chairman – Part 2
The NLRB’s New Year: Observations from the Former Chairman – Part 3
The NLRB’s New Year: Observations from the Former Chairman – Part 4
The NLRB’s New Year: Observations from the Former Chairman – Part 5
The NLRB’s New Year: Observations from the Former Chairman – Part 6
The NLRB’s New Year: Observations from the Former Chairman – Part 7
#MeToo: Navigating the New Landscape
Washington, DC area Fellows and invited guests gathered on June 8th to hear discussions on two timely topics – the changing world of the workplace and the future direction of labor relations. Fellow Hal Coxson moderated the first panel, “DOL, EEOC & State Laws,” which featured Seema Nanda, Executive VP & COO, Leadership Conference on Civil & Human Rights; Michael Eastman, Managing Counsel, NT Lakis, and VP, Public Policy, Equal Employment Advisory Council; Seth Harris, Harris Law; former Deputy Secretary & Acting Secretary of Labor; and Marc Freedman, Executive Director of Labor Law Policy, U.S. Chamber of Commerce.
Fellow John Higgins served as moderator for the second panel, “NLRB & Labor Management Relations,” with speakers Steven Greenhouse, retired labor and workplace writer, NY Times; author of The Big Squeeze: Tough Times for the American Worker; Lynn Rhinehart, General Counsel, AFL-CIO and Fellow Brian Hayes, Shareholder & Co-Chair, Traditional Labor Law Practice Group, Ogletree Deakins; former Member, NLRB.
Thanks to Ogletree Deakins for co-hosting this event at Joe’s Seafood Restaurant, which made the after program happy hour a big hit!
Following the success of its Seattle program on “Ethics in the Profession,” the 9th Circuit North Regional Planning Committee organized and presented a program on “Civility and the Elimination of Unprofessional Conduct Towards Women.” The program was held on April 27 in San Francisco at the offices of Davis Wright Tremaine LLP which also generously hosted a pre-program reception. The well-attended program was moderated by Fellow Judith Droz Keyes. Panelists were US District Court Judge Claudia Wilken, Alameda County Superior Court Judge Brad Seligman, Wendy Wen Yun Chang, a partner at Hinshaw & Culbertson and Lori Rifkin, a partner at Hadsell Stormer & Renick. The panelist’s insightful and pointed comments on this timely and important topic generated a high level of interest and discussion.
Discussion continued late into the evening at a dinner for Fellows following the program. Fifteen Fellows attended the lively and cordial dinner. It was a rare opportunity for Fellows to get together in an informal atmosphere and discuss issues of importance to the College and future projects.
The 5th Circuit Regional Committee planned their second stellar weekend program and all in attendance unanimously agreed that topics and speakers provided great content and opportunities for substantive discussion on these current matters, including a legislative update on the First 100 Days and a spirited debate on Gender Pay Disparity. Fellows also enjoyed an evening cocktail reception at the Garden District home of Fellow Lynne Stern, followed by dinner at the famous Gautreaux Restaurant. Sunday morning’s breakfast roundtable also allowed for Fellows to discuss future meetings and other interests to pursue. Special thanks to committee chair, Armin Moeller and committee members Barbara Wallace, Greg Guidry, Pat Maher, Rod Tanner, and Art Smith for their work in planning for this event.
The 11th Circuit Regional Committee held its 6th Annual Program Event at the beautiful Biltmore Hotel in Coral Gables on Saturday January 21, 2017. The event included a three part program featuring current issues that are relevant to all practitioners. This year’s topics included: A Legislative Update – The First 100 Days, Cyber Security Breaches and the Employer’s Liability and Gender Pay Disparity – OFCCP and the New Reporting Regulations.
The 5th Circuit Regional Program’s first event on March 19 and 20 proved to be a successful effort! Twenty-five Fellows gathered in New Orleans for what all agreed were four fantastic panels, a wonderful wine and cheese reception and exceptional company. Beginning Saturday afternoon, the first panel featured three 5th Circuit federal judges who engaged in lively discussion on civility in the courtroom with the guidance of moderator Fellow Arlene Steinfield. The Impact of Quick Election Rules was the focus of the second panel featuring Fellows Clyde Jacob and Yona Rozen, Professor Jeffery Hirsch (Associate Dean and Professor of Law; UNC School of Law) and moderated by Littler Mendelson Partner Tanja Thompson. Many thanks to Fellow Clyde Jacob and his wife Dabney for opening their exquisite home for the evening reception. The weather was lovely and the wine was flowing. Sunday morning roundtables were led by Fellows Malinda Gaul, Armin Moeller, Margie Harris and Marcel DeBruge on the logistics of ADA accommodations and the new federal rules on discovery. Special thanks to the meeting organizers Arlene Steinfield, Armin Moeller and Clyde Jacob for their hard work. Plans for a second event next year are already in the works!
Meeting materials and a full agenda are available below:
Handouts Cover Sheet
The Judges’ Perspective
NLRB Elections: Ambush or Anticlimax – Hirsch
Form NLRB 502
Materials on New R Case Rules
NLRB Representation Case-Procedures Fact Sheet
Danbury Hospital and AFT Connecticut
Form NLRB 5546
Form NLRB 5547
Petition Sample – Nursing Home
SOP Sample – Nursing Home
Petition Sample – Prime
SOP Sample – Prime
Logistics of ADA Accomodations
Brainstorming New Federal Rules on Discovery
Not even Winter Storm Jonas could stop the 11th Circuit Regional Programming Committee from pulling off another outstanding event at the beautiful Biltmore Hotel in Coral Gables during the weekend of January 22nd. Over 50 Fellows from the 11th Circuit, surrounding states, as well as members of the Board of Governors and associates from the Coral Gables firm of Sugarman and Susskind, enjoyed not only a great program on Saturday, but also a great night of casual dining and socializing on Friday evening at the home of Bill Bonn and Ruben Ceballos. Built in 1928, this one time home of former Senator and Congressman Claude Pepper provided a stunning setting for the traditional get together that kicks off the 11th Circuit program weekend.
With five of seven speakers coming from the Washington, DC area, we were extremely grateful that between perseverance by some and the tech savvy of others, four of those speakers either made it to Coral Gables, or participated in the panel discussions via video conferencing. Lynne Rhinehart, General Counsel for the AFL-CIO, along with Fellows Randel Johnson (US Chamber of Commerce) and Hal Coxson (Ogletree Deakins’ Washington DC office) engaged is a lively discussion of hot button topics and the current political climate in Washington DC. The second panel was led by Fellow Cynthia Sass and featured Eric Singleton, discussing the thought provoking subject of ADA compliance for websites. Finally, a little levity was injected into the morning when Debra Norwood challenged the Fellows to loosen up and laugh a little as she discussed brain health, mindfulness and laughter therapy.
A program agenda and materials from this program can be viewed below:
Key Labor, Employment, and Immigration, Regulatory Initiatives in the Obama Administration
Using the Procurement Process to Drive Policy: A Review of Labor and Employment Executive Orders in the Obama Administration
Website Accessibility for Individuals with Disabilities
Laughter Lawyer USA letter
New Tools for New Times
Laughter Lawyer USA on the Brain
On Tuesday evening, December 1, 2015, Fellows from the Second Circuit and Northern New Jersey convened for their semi-annual meeting to discuss “Equal Employment Opportunity: The Latest Judicial, Administrative and Legislative Developments.” The event was hosted by Fellow Kathleen M. McKenna and her Proskauer firm and moderated by Regional Program Chair for the College Evan J. Spelfogel of Epstein Becker & Green, P.C. Guest Speakers included Kevin Berry, New York District Director of the United States Equal Employment Opportunity Commission (EEOC); Helen Diane Foster, Commissioner of the New York State Division on Human Rights (NYSDHR); and Carmelyn P. Malalis, Chair and Commissioner of the New York City Commission on Human Rights (NYCCHR). The event also featured as panelists Fellows Wayne Outten of Outten & Golden, LLP and Jill Rosenberg of Orrick, Herrington & Sutcliffe, LLP. Approximately forty-five Fellows and guests attended the event, joined by several others attending by telephone call-in.
Proskauer’s New York office and Fellow Kathleen McKenna hosted the May 14th meeting of Fellows from the 2nd Circuit and Northern New Jersey. Fellow Evan Spelfogel of Epstein Becker & Green chaired and moderated the semi-annual meeting. Topics included Ethics in Labor and Employment Arbitration, and the National Labor Relations Board’s new Representation and Election Rules. Over sixty Fellows and friends attended in person while several others participated by telephone conference. Speakers on the ethics portion of the program, Cara Greene of Outten & Golden, John Gaal of Bond Schoeneck & King and former Assistant Dean of the Hofstra Law School Robert Douglas, walked attendees through the ethical minefields of arbitration and mediation. Topics included dealing with a client reluctant to tell the truth on the witness stand or to produce full and complete exhibits, as well as what the parties could or should say or withhold from the mediator in private caucuses. The NLRB portion of the program featured Metropolitan New York area NLRB Regional Directors: Karen Fernbach (Region 2, NY), David Leach (Region 22, Newark) and James Paulsen (Region 29, Brooklyn). Their remarks focused on how they intend to carry out the NLRB’s new Representation and Election Rules, and responded to a number of questions from attendees, including two past Presidents of the College and a former NLRB Member. Clearly, the new NLRB rules will present a significant challenge to employers, unions and their counsel. Thank you to the Proskauer firm for arranging dinner and 3.5 CLE credits, at no cost to participants.View materials from the 2nd Circuit Regional Meeting here.
The 11th Circuit Regional Programming Committee continues to organize outstanding opportunities for Fellows gather and garner new information and insights, and this year’s January 24th event was no exception. Taking place at the Biltmore Hotel in Coral Gables, almost fifty Fellows including Board members and Fellows from eight states, enjoyed a wonderful weekend which began with a reception at a historic Coral Gables home, circa 1926. Bill and Barbara Reese opened their home to over 60 people and College President Don Slesnick arranged for a tour of the Coral Gables Merrick House, the boyhood home of George Merrick, across the street. Mr. Merrick founded and developed Coral Gables which was incorporated in 1926.
http://coralgables.com/modules/showdocument.aspx?documentid=6885The Saturday morning program did not disappoint, and in fact, most felt it was the best program to date. Acclaimed attorney and author Lanny Davis presented his thoughts on Managing Crisis in the Business Organization. Mr. Davis has served as counsel to President Clinton in the Lewinsky investigation, Penn State in the Sandusky investigation, Martha Stewart, Charlie Rangel, Dan Snyder, Starbucks, Royal Caribbean, Whole Foods, and others. Fellow Hal Coxson joined Mr. Davis, who is also a regular contributor of political commentary on thehill.com, for a fascinating discussion of the mid-term elections impact on Capitol Hill and the 2016 primaries.The second panel featured five Fellows discussing three different topics:
Whistleblower Claims – Fellows Meg Campbell and Leslie Dent discussed the types of claims being brought, the current case law broadening the coverage of many of these laws and strategies in bringing and defending these claims.
Concerted Activity – Fellows Tom Brooks and Tim Palmer explored Section 29 USC 158(a)(1) of NLRA prohibiting interference with employee’s rights to engage in concerted activity and how current board opinions apply to social media, the drafting of employer policies, and how unions and employees are successfully using this claim.
Settlement Agreements – Fellow Cynthia Sass focused on strategies in negotiating these agreements and problematic language, including a discussion of the EEOC’s most recent position articulated in EEOC v. CVS ).
View materials from the 11th Circuit Regional Program
On November 12, 2014 upwards of eighty Fellows of the Second Circuit of the College of Labor and Employment Lawyers (“College”) and members of the American Bar Association Labor & Employment Law Section’s Committee on Practice & Procedure Under the National Labor Relations Act (“P&P Committee”) gathered at the law offices of Seyfarth Shaw in midtown Manhattan for a three hour program on recent labor cases and developments under the NLRA and in the courts. They were supplemented by a half a dozen others who participated by telephone call-in. Featured speakers were Karen Fernbach, David Leach and James Paulsen, the Regional Directors at all three NY Metropolitan Area National Labor Relations Board Regional Offices. Regional College Planning Chair Evan Spelfogel of Epstein Becker & Green chaired and moderated the program.Panelists included Regional P&P Committee Co-Chairs Jessica Drangel Ochs of Meyer Suozzi and Linda Carlozzi of Jackson Lewis, National P&P Committee Chair and Fellow Susan Davis of Cohen Weiss & Simon, and former NLRB Member and Fellow Marshall Babson of Seyfarth Shaw. Brooklyn NLRB Region 29 Director Jim Paulsen covered two new “Facebook” cases, Triple Play Sports Bar, 361 NLRB No. 31, and Richmond District Neighborhood Center, 361 NLRB No. 74, and two other recent cases, Jimmy John’s, 361 NLRB No,. 27 (applying Jefferson Standard and MasTec to a union’s poster and press release), and Fresh & Easy Neighborhood Market, 361 NLRB No. 8 (unlawful rule). He also discussed Barstow Community Hospital, 361 NLRB No. 34 (Board granted bargaining expenses to a union based on an employer’s bad bargaining for an initial contract). Newark, New Jersey NLRB Region 22 Director David Leach spoke on the Northwestern University Regional Director’s decision concerning student scholarship athletes and whether they are employees subject to union representation, and the Pacific Lutheran case from Region 19 that presents to the Board the Catholic Bishop issue. Manhattan NLRB Region 2 Director Karen Fernbach spoke on recent Board “small bargaining unit” cases involving application of Specialty Healthcare in the retail setting, more specifically the Macy’s and Neiman Marcus cases, and on the joint employer standard proposed by the NLRB General Counsel in Browning Ferris, and on franchisor/franchisee situations like McDonalds. She also discussed Murphy Oil, a case interpreting DR Horton involving whether an employer, by written agreement with employees, may bar employees from prosecuting or participating in class litigation and class arbitration.Ms. Davis supported the Obama Board and many of its recent decisions that appeared to management side lawyers to depart dramatically from years of prior precedent and/or to be “anti-management.” Former Board Member Babson observed that stare decisis no longer seemed to be a relevant concept at the Board, commented on amici briefs and oral arguments presented by various management groups to the U.S. Supreme Court, and provided fascinating insight into non confidential thinking and workings of the Board. Ms. Carlozzi and Ms. Drangel Ochs presented to the NLRB Regional Directors a series of questions and observations compiled by them from comments and matters raised at a meeting of their P&P Committee held just a few hours before the main College meeting. Their questions and the Regional Directors’ responses will form the basis for the P&P Committee’s Annual Meeting with the NLRB General Counsel and his staff, scheduled for next Spring.Fellow David Ross, a Seyfarth Shaw partner, and his staff hosted, handled all copying and binding of the program “books,” and arranged for dinner and 3.5 CLE credits, all at no cost to attendees. The next meeting of the Second Circuit of the College has been tentatively set for the second week in May, 2015, at Seyfarth. Click HERE for materials distributed at this meeting.
Sixty Fellows and their guests gathered at the midtown Manhattan offices of Jones Day for the semi-annual meeting on May 22, 2014. Through the hospitality of Fellow Willis Goldsmith and the Jones Day staff, a light supper was provided along with 3.5 CLE credits, at no cost to participants. Regional Program Chair Evan Spelfogel served as program moderator for the three part program on matters of grave concern to management, labor, and employee interests alike: (i) Whistle Blowing/Sarbanes Oxley; (ii) New York City Sick Leave Law; and (iii) Labor, Employment and Collective Bargaining implications of Obama Care- The Affordable Care Act (ACA).
View materials from the 2nd Circuit Regional Meeting
1. Whistle Blowing/Sarbanes Oxley:
In this in-depth and informative presentation, Panelists Jonathan Ben-Asher (Ritz Clark & Ben-Asher LLP), Frances H. Nicastro (Barclays), Jill L. Rosenberg (Orrick Herrington & Sutcliffe LLP), and Terri Wigger (U.S. Dept. of Labor, Assistant Regional Administrator for Region 2 OSHA Programs), provided an overview of SOX’s whistle blower protections, Dodd-Frank’s amendments to SOX protections, and Dodd-Frank’s anti-retaliation and bounty provisions. The presentation included the type of covered adverse actions, the “reasonable belief” standard, the types of predicate frauds covered by SOX, and the differences between SOX and Dodd-Frank protections. Panelists also reviewed recent developments in this area, including the Supreme Court’s decision in Lawson v. FMR, applying the protections of SOX Sec. 806 to privately held contractors, subcontractors and agents of public companies, as well as the tension between Dodd-Frank’s bounty provision and companies’ efforts to encourage internal reporting. Panelists also touched on practical questions such as how to establish a corporate culture that encourages internal reporting, when and how to investigate reports of fraud, how to treat whistle blowers during the course of the investigation, the types of complaints that OSHA will investigate, the investigative process generally, and recent enforcement and bounty statistics. Not only were the plaintiff and defense bars well represented on this panel, but the addition of corporate counsel and an agency representative to this engaging presentation added valuable perspectives on the practical implications of SOX and Dodd-Frank whistle blower protections and recent developments this area.
2. New York City Sick Leave Law – Update:
Presenter Gerald T. Hathaway (Mitchell, Siberberg & Knupp LLP) provided a brief but jam-packed presentation on the New York City Earned Sick Time Act that went into effect on April 1, 2014. Topics included employee rights to sick time, accrual and use of sick time, anti-retaliation protection, and remedies and penalties for violations under the Act. This presentation raised relevant practical issues and provided helpful guidance for practitioners watching the contours and ramifications of the Act unfold as employers implement or update their paid sick time policies.
3. Labor, Employment and Collective Bargaining Implications of Obama Care – The Affordable Care Act (ACA):
In this fascinating presentation, Presenters Bruce S. Levine (Cohen Weiss & Simon LLP), and Catherine E. Livingston (Jones Day), explored the collective bargaining challenges posed by the ACA. The presenters discussed the requirements for coverage under the ACA, including how employer size is determined, control group and seasonal employee issues, who must be offered coverage, the affordability and minimum value tests for coverage, services that must be covered under group health plan requirements, and when coverage must begin. Relevant practical issues raised included gaps in employee coverage upon termination, discrimination and retaliation concerns, and how group rates are calculated. Against this backdrop, the presenters went on to discuss pre-bargaining decisions and relevant considerations such as whether an employer should provide coverage at all, what benefits to offer, and applicable penalties for no coverage and inadequate coverage. The presentation also covered bargaining strategies related to the Cadillac Tax and tips on how to leverage the ACA’s requirements and costs during the bargaining process.
Panel – Aspiring to Civility Without Idealizing the Past: Civility and Professionalism in the Courtroom
Moderated by College Fellow Tom Brooks, the panel focused on issues of professionalism and civility in the courtroom, providing a unique insight into protocol and practice from the perspective of three federal court judges. Chief Judge Karon Bowdre, USDC for the Northern District of Alabama, Judge Jose E. Martinez, USDC for the Southern District of Florida, and Judge Steve C. Jones, USDC for the Northern District of Georgia will discuss their expectations of attorneys practicing before them and methods of handling challenges within the standards that legal professionals aspire, and will share their views on how they handled those difficult situations.
Program – Practicing in the Digital Age: From Social Media to E-Discovery
The second program featured Adam Sharp, President of E-Hounds, Inc. and an expert in Data Recovery, Data Analysis, Computer Forensics, Information Technology and E-Discovery, and focused on discovery in modern labor & employment litigation and the trend of popular social networking sites. Mr. Sharp took a look inside the treasure trove of discovery topics available, where to look for them, the use of experts, authentication and spoliation concerns.
View materials from the 11th Circuit Regional Program
The meeting included a presentation, panel discussion and question and answer period. The event was co-sponsored by the National Academy of Arbitrators in cooperation with the American Arbitration Association. One half of the program was titled “The Future of Workplace Arbitration.” The other half was an exploration of the United States Supreme Court’s recent class action arbitration decisions and their progeny. Click here to view the agenda from this meeting.
The meeting included a presentation by Hon. Richard Kramer, Hon. Donna Ryu, and Hon. John True titled “The Importance of Being Civil”. The discussion was moderated by Fellow Alan Berkowitz. The event was co-sponsored by the National Academy of Arbitrators Northern California Region. Click here to view materials from this meeting.
Panel 1 – Equal Opportunity Law & Regulatory Change: Disability Discrimination, Criminal Background Checks, and Other Recent Developments
Panel 2 – The National Labor Relations Board, Current Developments: Social Media, Proliferation of Small Bargaining Units, Pre-election Hearings and Expedited Elections, Class Action Waivers
Sixty Fellows and guests of the College of Labor & Employment Lawyers from New York, Connecticut and Northern New Jersey convened at the New York Office of Jones Day for their semi-annual dinner meeting. Evan J. Spelfogel, a Member of Epstein Becker & Green, P.C. and National Program Chair of the College, chaired the program which was moderated by Willis J. Goldsmith, Partner-In-Charge of the New York Office of Jones Day.The program commenced with a presentation by the Honorable Elizabeth Grossman, Regional Attorney for the New York District Office of the EEOC, concerning the EEOC’s recent guidance relating to the use of criminal arrest and conviction information by employers in employment decisions. Ms. Grossman discussed the reasons for the EEOC’s decision to issue new guidance concerning the use of conviction and arrest records, examples of permissible and impermissible uses of such information by employers, as well as best practice tips for employers to avoid disparate treatment and/or disparate impact claims relating to their use of criminal background information in employment decisions. Following Ms. Grossman’s presentation, a lengthy and animated discussion ensued regarding the practical implications and challenges to employers presented by the EEOC’s recent guidance.Next, Adam T. Klein, a Partner of Outten & Golden LLP, and Zachary D. Fasman, a Partner of Paul Hastings LLP, led a panel discussion concerning the arbitrability of class and collective claims and the validity of employee waivers of their right to assert class claims before arbitrators as well as in court. Class action arbitrability issues have been impacted the past several years, they noted, by decisions of the U.S. Supreme Court in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758 (2010), AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), and CompuCredit Corp. v. Greenwood, 132 S. Ct. 665 (2012). They discussed several questions left open by the holdings in those cases, as well as recent district court decisions applying the holdings in the employment context.Following that panel presentation, the Honorable Karen P. Fernbach, Regional Director of Region 2 of the NLRB, gave a presentation on employee use of social media (e.g., Facebook, Twitter, etc.). She discussed the types of comments made on social media sites that may qualify as protected, concerted activity under the NLRA and referenced case examples provided in two memoranda recently issued by the Acting General Counsel of the NLRB. These gave an overview of recent NLRB cases exploring social media issues. Ms. Ferbach provided examples of overly broad employer social media policies that were found to have restricted Section 7 rights, as well as an example of a well-crafted lawful social media policy.The Honorable James Paulsen, Regional Director of Region 29 of the NRLB, Larry Cary, a Partner of Cary Kane LLP, and Michael F. McGahan, a Member of Epstein Becker & Green, P.C., provided additional insight concerning the practical implications of monitoring social media usage in the workplace, and also followed up on the class action waiver issue as posited by the NLRB earlier this year in its T.R. Horton decision.Mr. Paulsen then gave a brief presentation concerning the Acting General Counsel’s proposed changes to the NLRB’s Collyer deferral policy that would eliminate a long standing Board practice of routine deferral to arbitration of Section 8(a)(1) and 8(a)(3) cases, and defer only where arbitration is expected to be completed within one year. Where routine defer would not be appropriate under the new policy, the Acting General Counsel proposes that Regional Directors determine whether the Region should complete the investigation or defer to arbitration based on any disadvantage to the Charging Party or to the Board’s ability to enforce the Act.Continuing past tradition, the meeting room facilities, the meal and 3.5 CLE credits were all provided without charge, for which we thank Jones Day. The Circuit’s next meeting has been tentatively scheduled for early November.
Written by Evan J. Spelfogel, With the Assistance of Joanne Alnajjar, Esq. of Jones Day
Two panel discussions dealt with recent developments in Wage-Hour Class Actions and related strategic considerations and an NLRB update of recent decisions, rulemaking activity and the picture for 2012. Click here to view materials from this meeting.
June 1, 2011 – 7th Circuit Regional Committee, presentation on developments concerning Wisconsin labor relations:
The presenters at this meeting were all veteran labor lawyers from the state of Wisconsin. Dan Nielsen is a mediator and arbitrator who works with the Wisconsin Labor Relations Commission, and he described the quite impressive history of labor relations legislation in the state of Wisconsin beginning with workers’ compensation in 1911, unemployment compensation in 1932 and employment discrimination in 1942. Wisconsin is the first state to enact the comprehensive labor relations law for public employees – 1959. In 2011, major portions of Wisconsin public sector labor laws were amended by removing collective bargaining rights for employees of the University of Wisconsin, limiting the terms of collective bargaining agreements, abolishing interest arbitration for all employees except police and firefighters and restraining bargaining only to matters of base salaries.The impact of these changes were discussed by Tim Hawks, a union lawyer from Milwaukee and Mark Vetter also based in Milwaukee, who presents public employers, including school districts. The discussion was moderated by Professor Martin H. Malin of the Chicago-Kent College of Law, himself an outstanding labor lawyer and author of a case book on public sector labor relations. This well-attended and highly educational program is one of several being conducted in various regions of the country by the regional committees that have been established in New York, Chicago, Atlanta and San Francisco. Other committees are now in formation, and the members of the Board of Governors sincerely hopes that College Fellows will take advantage of these opportunities. The College has also offered CLE credit to government lawyers in several very successful ethics and lawyer civility programs that have been conducted in Chicago and New York.
Click here to view papers.