file9281249337561Tomorrow, I’ll be part of a webinar produced by the American Bar Association on reasonable accommodations under the ADA.  You can still sign up here.

The topic page for the webinar gives a fairly concise summary:

A reasonable accommodation under the Americans with Disabilities Act (ADA) is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Leave can be a reasonable accommodation if it does not constitute an undue hardship on the employer. Our panel of experts will discuss what obligations employers have to provide leave as a reasonable accommodation under the ADA, in light of recent case law and the Equal Employment Opportunity Commission’s May 2016 guidance.

The other speakers on the panel are terrific. Lori Ecker is a Plaintiff’s attorney from Chicago; we’ve worked together in the past on ABA issues and she’ll bring a valuable perspective.  Shannon Rennert is a senior staff attorney with the EEOC who has been on top of these issues for years, even issuing letters on the subject.    Janine Martin moderates.

Among the particulars that we will discuss are such tricky topics such as “maximum leave” policies, and unpaid leave as a reasonable accommodation.  I hope you’ll join us.

abahod1As I have for over a decade now, I attended the American Bar Association’s Annual Meeting last week serving on the ABA’s House of Delegates – the organization’s main governing body.  My exact position is actually State Delegate — a position that nominally makes the lead delegate of Connecticut’s delegation, though in practice it’s much more democratic than that.

Among the items up for deliberation was a change to the model rules of professional conduct — the set of guidelines advanced by the ABA that are used as guides to set ethics rules in various states.

We considered a change to Model Rule 8.4 that would make it an ethical violation for a lawyer to discriminate or harass on the basis of various protected categories.  You can watch the debate here. 

The actual proposed rule went through several iterations as it was debated before the meeting.  The rule that was voted on changed the language to better match other rules by making it a violation to engage in conduct that the lawyer “knows or reasonably should know” is harassment or discrimination.

One of the issues, for example, that was discussed was whether the addition of a protected category of “socioeconomic status”.  In fact, during one of our caucuses, I asked one of the sponsors about the inclusion of this language. While he said that there was some mild disagreement about its inclusion, he noted that various states had already included it and pointed to an Indiana ethics matter from 2009 where it was used the basis for a grievance. He said to remove it now could send the wrong message.

Ultimately, the matter was approved nearly unanimously on a voice vote as any opposition to it melted away.

The model rule has a number of comments attached to it, the most interesting of which is that “The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of [the new model rule].”  On its face, that seems to suggest that caselaw in employment discrimination cases can help provide guidance — though there still remain open questions about how that might apply in a non-employment context.

But from my perspective, the rule is a step in the right direction.  Lawyers behaving badly — such as to opposing counsel — have no place in our profession and this new rule can hopefully make it clear that such behavior will not be tolerated.

dcvisitLast week, as part of my work with the American Bar Association, I had the opportunity to meet with all of Connecticut’s Representatives and Senators in Washington, D.C.  Most were available in person, while I met with senior staff in a few offices.

It was a truly rewarding experience. We talked about helping to ensure that legal services funding for the poor remains available and some other items that the ABA has been pushing on a national level both for lawyers and the general public.  You can learn more about #ABADay here.

Perhaps this sounds a bit corny, but I was struck by how earnest everyone was.  In the private meetings, each indicated a strong desire to get things accomplished and asked for help in doing so.  We talked about ways that bar leaders can work with their offices to push bi-partisan legal issues.

Those visits stand in stark contrast to the prevailing wisdom that nothing is happening in Washington or that the legislators are merely interested in their next term in office.  In talking with my ABA colleagues who made similar visits to other Congressional offices, most (but unfortunately not all) felt the same way.

congressOf course, all those positive feelings can’t overcome a simple fact: Congress is getting nothing done when it comes to employment laws.  Just think about how Congress and President Bush were able to come to terms on amendments to the Americans with Disabilities Act and you realize how paralyzed things have become.

Now, members of Congress hold hearings on things like the one today the changes to DOL’s proposed Persuader Rule, rather than working to pass a bill that might address some of those issues.

The Connecticut delegation isn’t immune to this either. Indeed, some of their proposals stand no likelihood of passage right now as well. Rep. Delauro has proposed the Paycheck Fairness Act which has 193 co-sponsors, but no real support among the Republican leadership.  She has also proposed the Healthy Families Act as well, though that bill has 140 co-sponsors.  Joe Courtney has sponsored a bill that would amend OSHA by expanding the law’s coverage.

But after my visit to D.C., I left knowing that there are still many people in D.C. who work on bills that receive no publicity but that can have an impact on Americans every day.

If you have the opportunity, I highly recommend visiting your representative or senator in D.C.  The offices are very accessible to the public and I have no doubt that they do listen to constituents who visit the offices personally.

My thanks to their offices for listening.

This post is not going to discuss, in my view, the NFL’s inadequate response over the years to domestic violence incidents by players in the league.  (If you want to listen to a full take down of the NFL, I recommend Slate’s The Gist podcast from yesterday.)

Rather, I want to talk today about how Connecticut employers can address domestic violence when such incidents have an impact on work.

  • As I talked about in August, the ABA adopted a Model Workplace Policy in Employer Responses to Domestic Violence.  It worth a look at for most employers. An “employer who does adopt it can illustrate that it takes the issues of domestic violence seriously and will encourage employees who are going through the process to speak up. As noted in the materials attached to the resolution, researchers have determined that victimization rates in the workplace are actually higher than in the general population.”\
  • Beyond that though, employers should have updated their policies to provide for the state-mandated domestic violence leave.  The law, which has been in place since 2010, provides for several items including the following: “It requires employers to allow family violence victims to take paid or unpaid leave (including compensatory time, vacation time, personal days, or other time off) during any calendar year in which the leave is reasonably necessary for the following reasons: 1.seek medical care or counseling for physical or psychological injury or disability, 2.obtain services from a victim services organization, 3.relocate due to the family violence, or 4.participate in any civil or criminal proceeding related to or resulting from such family violence.”  Unpaid leave is limited to 12 days per calendar year.
  • There are also plenty of online resources as well, including a toolkit designed to help address these issues further.  While such online resources need to be tailored to your workplace, it is a good place to start if you’re seeking more information.

Domestic violence isn’t just an issue for football players. It has an impact on employers all across the United States.  For employers that want to do something more, these resources are a good place to start.

Chief Justice Roberts also addressed ABA to discuss the Magna Carta’s 800th anniversary

One of the roles that I relish is being a member of the American Bar Assocation’s House of Delegates for several terms now.   The ABA adopts certain policies at its Annual Meeting and uses its bully-pulpit to try to get such policies enacted at the federal, state or local level.At this year’s meeting, which took place in Boston over the last few days, the House considered Resolution 112A. The resolution itself is fairly short but stated the following:

RESOLVED, That the American Bar Association adopts the Model Workplace Policy on Employer Responses to Domestic Violence, Sexual Violence, Dating Violence and Stalking (“Model Policy”), dated August 2014.

FURTHER RESOLVED, That the American Bar Association encourages all employers, public  and private, including governments, law schools and the legal profession, to enact formal policies on the workplace responses to domestic violence, dating violence, sexual violence, and/or stalking violence which address prevention and remedies, provide assistance to employees who experience violence, and which hold accountable employees who perpetrate violence.

In plain English, the ABA adopted a Model Workplace Policy that has been developed by several groups for use in workplaces.  You can find it here.

So why should employers care? Well, for one, Connecticut already has a law that requires all employers to provide for domestic violence leave.  Adopting a policy like the type advocated by the ABA, can help achieve compliance with that law and also further the employer’s interests of making sure employees return to work quickly and are productive while theer.

Is the policy required? No.  And there is no civil liability that is attached to either having or not having the policy.  But an employer who does adopt it can illustrate that it takes the issues of domestic violence seriously and will encourage employees who are going through the process to speak up. As noted in the materials attached to the resolution, researchers have determined that victimization rates in the workplace are actually higher than in the general population.

The policy itself is long and can certainly be modified to fit a particular employer.   I would not advocate a wholesale adoption of it, particularly if employers cannot meet all of its particulars — whether through staff size or other conditions.  Small employers in particular may have different needs as well. And notably, Connecticut employers should consider this in conjunction with any policy on domestic violence leave.

But the model policy is an important step in raising awareness of the issue to employers and I applaud the ABA for being a leader in this area.

If you’re interested in the policy itself, again you can find it at the third page of this link. 

As I’ve highlighted before, I’m fortunate to serve as a delegate to the American Bar Association House of Delegates, which meets twice a year.

I was less fortunate that the Midyear Meeting this year was in Chicago, which was even colder and snowier than Connecticut.

At Monday’s House meeting, there were several resolutions passed. The most interesting for employers, was the clunky-named “Model Principles of the ABA Model Business and Supplier Policies on Labor Trafficking & Child Labor”.

In doing so, the ABA urged business to adopt and implement their own business and supplier policies that are consistent with the principles.

Among the model principles:

Principle 1—The Business will Prohibit Labor Trafficking and Child Labor in its Operations.

Principle 2—The Business will Conduct a Risk Assessment of the Risk of Labor Trafficking and Child Labor and Continually Monitor Implementation of this Policy.

Principle 3—The Business should: (i) Train Relevant Employees, (ii) Engage in Continuous Improvement, and (iii) Maintain Effective Communications Mechanisms with its Suppliers. 

Principle 4—The Business will Devise a Remediation Policy and Plan that Addresses Remediation for Labor Trafficking or Child Labor in its Operations.

Now, I am under no illusion that this topic may seem dated to some.  But it actually is designed to tackle a current and significant issue.

Indeed, recent statistics show that there are nearly 21 million men, women & children who are subject to forced labor world-wide.  And child labor stands at nearly 168 million.  With globalization on the rise, these model principles can be used for businesses to help curb the use of children in making products, for example.

Businesses that adopt a form of these policies may be able to make sure that their supply chain is free from the use of child labor through monitoring, due diligence and verification.  Notably, the policies are not designed to be used as a basis for criminal or civil liability. Rather, these best practices are designed to make it easier for companies that want to highlight this issue, to implement practices that are consistent with that desire.

If this issue touches your company, you may want to take a look at this and see if it is of use to you.  Kudos to the ABA’s Business Law Section for taking the lead on this important topic.

With the holidays here, it’s time to say a quick thanks to all of you who have stuck with this blog for well over 6 years.

Earlier this month, the ABA Journal — the flagship publication of the American Bar Association — once again named this blog as one of the best law blogs in the country. It’s the fifth year in a row for the honor.

But even more special, this blog was among only 10 that have been added this year to the Blawg 100 Hall of Fame. According to the Journal, “. . . Daniel Schwartz consistently impresses us with concise and incisive analysis of the latest cases and issues to arise in employment law . . .”

“Wicked cool,” as we used to say growing up (and which I would say if I was a Boston employment blog.)

There was a round of voting for voters to choose which blog they liked the best, but that part of the contest always seemed a bit trivial to me.  I’ve held off on a blog post until the voting concluded because, well, after getting named to the “Hall of Fame” this year, I really didn’t need or want extra votes.

So where does this blog go from here? Cooperstown? Lifetime achievement awards? Disney World?

Well, for starters, I’m going to take a bit of time off on the blog until the new year. Of course, if I can’t resist writing you may see a blog post or two between now and then.

And after that? I’m in the early planning stages of a new chapter for this blog and the related (and growing) social media outlets.   My New Year’s Resolution is to try to create something that remains as fresh and vibrant as when we started in 2007.

So, stay tuned.  And thanks again.

Merry Christmas to those that celebrate and Happy New Year to everyone!

2009 was a fluke.

2010 had to have been a mistake.

2011 was the time they forgot to update their 2010 list.

So what about 2012? Well, could it be that this little blog from Connecticut actually deserves to be on the ABA Journal’s Blawg 100 as one of the best law blogs in the country?

I’d still shake my head.  Heck, even my mother-in-law seemed a little curious with my selection on the list.

But here we are for the fourth year in a row, appearing as one of just six employment law blogs mentioned.  Its crazy.

Now I could tell you to vote for this blog too (free registration is required), but honestly, I love reading Jon Hyman’s Ohio Employer Law Blog and Molly DiBianca’s Delaware Employment Law Blog too.  (And about 58 other blogs on the Blawg 100 list too for that matter). And big kudos to the other employment law attorneys who blog – Philip Miles, Donna Ballman, and Jeff Nowak.

Thank you for your continued support.

 

 

The American Bar Association’s Labor & Employment Law Annual Conference is going on right now in Atlanta, Georgia.  As I’ve recapped on this blog before (here, for example), there are some terrific programs and educational opportunities there. 

I wasn’t able to make it down this year, but due to the wonders of technology, I’ve been able to get a lot of the benefits of it without being there.

Why? Two reasons, which I hope you’ll find useful too.

First, and most importantly, all of the conference materials are available online. For free.  And to top it off, no ABA membership is required. 

It’s a great service and one that you ought to take advantage of. Why? Because there are some very good papers that you can download.  Here are some highlights:

These are terrific resources for the in-house lawyer in particular but human resources personnel may get a lot out of it as well.

Second, I also have been following the conference along on Twitter. How so? By doing a search for a hashtag (or keyword).  Do a search for “#abalel” and you will find dozens of tweets about things going on in the conference. You can also follow the ABA Labor & Employment Law Section at @abalel. 

 

As I mentioned in an earlier post, I had the opportunity to represent Connecticut as its State Delegate at the ABA House of Delegates meeting in Chicago on Monday and Tuesday.

While some of what we did will be of interest to lawyers only, the ABA presented its highest honor, the ABA Medal, to Morris Dees.

Many of you have probably never heard of him.  But you should.  Because the work that he and the group that he founded — the Southern Poverty Law Center — does has a direct impact on employers and employees alike.

I believe, at least in Connecticut, that the vast majority of employers now strive to treat their employees fairly.  (The “hate map” from the SPLC shows that there are still a few incidents even in Connecticut.) Indeed, in conversation after conversation with employers, I’ve heard the same refrain from employers: It’s hard to find good employees; I fired the employee because they couldn’t do the job, not because of their [fill in the protected characteristic here].

Dees reminds us, however, that discrimination and, worse, violence against individuals because of their race, or sexual orientation, still goes on unchecked in the United States every day.  But employers don’t have to be bystanders in what goes on. Indeed, employers can continue to lead by example to show that civil rights and business are not opposite ends of the spectrum.

One of the most inspiring parts of Dees’ speech was his discussion of the lessons he learned from one client. I can’t do the story justice, but I urge you to watch the short video. (His speech starts around the 5th minute.)