February 16-17, 2018 – Joint Regional Program:
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.
Program AgendaSpeech 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
June 8, 2017 - DC Area Fellows Program:
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!
Program Materials
April 27, 2017 - 9th Circuit North Regional Program:
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.
Program Materials
Bookmark
CD Cover
April 1, 2017 - 5th Circuit Regional Program:
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.
Program Agenda
Labor Policy Recommendations
Legislative Updates
Trade Secrets
Pay Equity Data
January 21, 2017 - 11th Circuit Regional Program:
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.
Program Agenda
2017 Labor Policy Recommendations
Cybersecurity Breaches and the Employer's Liability
Developments in Pay Equity
March 19-20, 2016 - 5th Circuit Regional Program:
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:
Program Agenda
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
January 23, 2016 - 11th Circuit Regional Program:
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:
Program Agenda
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
December 1, 2015 - 2nd Circuit/Northern New Jersey Semi-Annual Regional Meeting:
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.
View a summary of the event and materials from the meeting.
May 14, 2015 - 2nd Circuit/Northern New Jersey Semi-Annual Regional Meeting:
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.
January 24, 2015 - 11th Circuit Regional Program:
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
Part I
Part II
Settlement Agreements
November 12, 2014 - 2nd Circuit/Northern New Jersey Semi-Annual Regional Meeting:
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.
May 22, 2014 - 2nd Circuit/Northern New Jersey Semi-Annual Regional 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
Agenda and Handouts
Whistleblower Panel Presentation
New York City Sick Leave Law Presentation
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.
February 1, 2014 - 11th Circuit Regional Program:
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
Agenda
ACT Code of Trial Conduct
Incivility in Legal Writing
November 13, 2013 - 2nd Circuit Regional Conference:
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.
Tab 1
Tab 2
Tab 3
Biographies
October 22, 2013 - 9th Circuit North Regional 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.
May 22, 2012 - 2nd Circuit Holds Semi-Annual Dinner 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
Click here for meeting materials, and here for the EEOC's criminal background check article.
November 9, 2011 - 2nd Circuit/Northern New Jersey Regional Program:
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.