Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

As those who have been following my tweets know, I have been at the American Bar Association's House of Delegates and midyear meetings. There's lots of substance to these meetings and you can certainly follow along with the ABA Journal.

Among the topics discussed today, was the Paycheck Fairness Act now pending in Congress. If you are not familiar with it, you should be because by all accounts, it's moving front and center this year as an important piece of legislation for the Obama Administration and others.  Rep. Rosa DeLauro of Connecticut is the primary sponsor of the bill in the House of Representatives.

John Phillips reported on this recently. As a result, employers should take stock of their compliance programs and certainly begin a review (if it is not done regularly) of your current compensation procedures.

What does the bill do? John has a good summary but some of the key changes would be to revise the remedies for sex discrimination in the payment of wages by permitting uncapped punitive and compensatory damages and limit employers’ ability to defend against EPA claims. The bill would also prohibit an employer from retaliating against an employee who inquires about, discusses, or discloses his/her own wage or that of another employee unless the disclosing employee has access to that wage information as part of his/her essential job function. 

 

 

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Back in 2007, when I started this blog, the idea of being recognized as one of the best legal blogs in the country would have been a bit of wishful thinking.  After all, there are literally THOUSANDS of such blogs in existence. 

Flash Forward to 2009: The Connecticut Employment Law Blog has been named to the ABA Journal's Blawg 100.  What is the Blawg 100? According to the ABA (American Bar Association) Journal -- it represents "the best legal blogs as selected by the Journal's editors."

This list is literally a who's who in the legal world and contains many blogs that I routinely follow and which I highly recommend including the Wall St. Journal Law Blog, Above the Law, and SCOTUSBlog. 

So I am deeply humbled and honored to be on the list and thank various readers for submitting nominations to the ABA Journal for its review, including A Connecticut Law Blog author Ryan McKeen. 

The blog was named to the "Geo" category as having "all-around high-quality posts on topics mainly relevant to the people in their neck of the woods."

But now the fun begins. You, the reader, can vote for the "Best of the Best" blog at the ABA Journal site here.  Obviously, I hope you'll give this blog a vote or two (and tell others to do so).  Right now, the Tex Parte Blog has gotten off to a very early lead, but I'm sure it'll be no match for the power that a small state such as Connecticut can bring.

So, many thanks for your help in bringing this blog national attention and my thanks to my law firm for all its support. 

 

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Last year I attended and spoke at the Annual Meeting of the American Bar Association Labor & Employment Law Section.  Over the last few years, the meeting has developed into one of the premier conferences to keep up to date on labor and employment law.

This year's meeting is now going on in Washington, D.C. Although I'm unable to attend, the conference materials are now available for free download from the ABA's website.  It's a tremendous resource and I strongly recommend attorneys and in-house counsel take advantage of this terrific resource to stay current on some recent developments.  

There are several dozen of such articles so there's plenty of reference materials for everyone.

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Today was Day 1 of the ABA Presidential Summit on Diversity being held just outside Washington, DC. 

Recapping such a conference in a blog post is impossible; I won't even begin to try.  But I thought I would pass along some thoughts from the conference's Twitter feed.

So, in response to the question on "Why Have Diversity In Your Law Firm and Company?", here were some thoughts from the speakers:

• For one, in order to understand and engaged with diverse clients
• For another reason, some clients, like Wal-Mart, are also demanding it
• Because research proves that a broader team with perspective comes up with better answers
• Because minorities will become the majority by 2050; there is a business case and economic imperative to do so
• For litigators, if you have broad perspective you can better convince a jury and understand their perspective

Time and again, speakers weren't hesitant to say that there is a legitimate business rationale for having diversity being a top priority.  

What company was singled out by some for their successes and their advancement of a more inclusive workforce? In other words, what company has recognized the business case for diversity? Wal-Mart.  

The company continues to be held out as a model for their push to their suppliers and law firms to make diversity not only a priority, but a way of doing business. (You can read about their significant efforts at their website here.) And yet there are some who continue to claim that Wal-Mart is unfriendly to workers.  Go figure.  

But beyond the "Why", we also discussed the "how". In an upcoming post, I'll recap some of the suggestions.  

Day 2 starts early on Saturday. You can continue to follow along at search.twitter.com and enter the term "#abadiv".  Or, if you'd like, you can view all the conference materials online at the conference's home page.  

 

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I'll be attending the ABA Presidential Summit on Diversity the next two days in Washington, DC and using Twitter to report on the highlights.  

It's an important topic for employers and lawfirms: What are the next steps we can take to move beyond the current discussion on diversity?  It's a working summit, so we'll be rolling up the sleeves to address these issues.

You can follow along a variety of ways: Go to search.twitter.com and search for "abadiv"; you'll get all the highlights. Or, you can go to my Twitter feed at twitter.com/danielschwartz (or @danielschwartz if you're already on Twitter).  

I'll provide some recaps each day on information relevant to employers so check back later.  

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Over the next few days, I'll be filing posts about the ABA Labor & Employment Law Conference held in Denver from September 10-13 (my plans to post live ran afoul of some firewalls that labelled my site a "weapons" site. Who knew?)

With the unemployment rate at its highest levels in several years, it was no surprise that the program on layoffs and reductions in force was crowded. Some attorneys no doubt have had to deal with this issue before, particular in the recession early this decade. But since then, employers have become more sophisticated and the issues have become a little thornier to address.

As speaker Donald R.  Livington, a partner at Akin Gump Strauss Hauer & Feld LLP and former EEOC General Counsel, pointed out, many employers know about giving employees 45 days to consider separation agreements arising out of layoffs. So, the task that in-house counsel need to focus on are the “other” issues that are trickier to spot.

Fortunately, he highlighted a few issues to be on the look out for. I’ve covered several of these before during prior posts (available here and here):

 

• Think like a plaintiff’s lawyer. Find thd potential claims beforehand to fix issues from becoming problems.
• Determine if the company can articulate a clear business rationale for the RIF. If you can’t do it, you need to figure it. And check to see if there is documentation supporting this rationale.  
• Analyze the rationale to see if it has any hint of bias. And don’t just think about discrimination laws, but think about ERISA laws as well that prevent employers from firing employees to prevent them from obtaining certain benefits.

But the single most important way for employers to avoid litigation is to have a separation agreement and release that’s enforceable. And for that, having a lawyer review your standard agreement may be time and money well spent.

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As I mentioned earlier this week, I am now out in Denver for the ABA Labor & Employment Section Annual Conference. But I’ll let you in on a little secret – you don’t have to be out in Denver to get some of the benefits of the conference.

The ABA has posted the conference materials online for review here. Some will find certain materials more useful than others.  The program on Top Ten Issues in Discrimination matters has some input from the EEOC as well. 

 

For employers, there are some very good materials on both an “in-house counsel” track and counseling track. I’ve been sitting in on a few today and will report back some of the highlights over the next three days (I’ve been having trouble with internet firewalls so the “live-blogging” will be a little more like “tape-delayed”).

 

And for those out in Denver, I will be moderating and speaking on a panel presentation this Saturday on How to Grow Your Labor & Employment Practice. The materials for that presentation should be up shortly (if they aren’t already by the time you read this). Please feel free to come up and introduce yourself at the presentation.

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The American Bar Association Labor & Employment Law Section's Annual Conference on Labor & Employment Law begins Wednesday in Denver, Colorado.  Last year's conference in Philadelphia was a big success and given what the ABA has planned for this year, I expect things to be bigger and better than ever.  To give you some perspective, over 1250 people attended last year's conference and you can check out my post from that event here.

The four-day conference is chock-full of notable programs on topics as varied as:

• Employment Class-Action Arbitrations;
• Neutrality Agreements, Card Checks and Voluntary Recognition;
• Use and Misuse of Screening Devices for Employment;
• USERRA;
• Sex, Sexual Orientation, Sex Stereotyping, Gender Nonconformity and Transgender Claims.

Of course, my favorite program is on Saturday morning entitled How to Grow Your Labor & Employment Practice.  I may be a bit biased, however, since I will be speaking and moderating the discussion. We'll talk about the new ways of networking and marketing, along with the good "old-fashioned" techniques that are still very effective.  We have a fairly diverse panel so it promises to be a lively presentation and discussion.

For those going to Denver, feel free to drop me a line at dschwartz at pullcom.com and I'd be happy to catch up with you there.  Or feel free to drop a comment here at the blog to let us know. 

I will try to "live-blog" from the event with some of the highlights as I see them so stay tuned for updates.

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A few weeks ago, a report came out blasting the hiring procedures that existed at the Department of Justice in prior years.  Because this is not a political blog, I left it for others to comment on it, such as The Word on Employment Law. 

But the basic gist of the report was that there were several instances where DOJ staffers improperly included political considerations in the hiring decisions of career staffers.  While there are definitely some political positions at the DOJ, there are also many nonpolitical career positions. 

Of course, for other companies, the issue may be something related -- considering age in hiring decisions, or gender, or even physical disabilities.

Earlier today, I had the opportunity to hear from the current United States Attorney General Michael Mukasey directly at the ABA House of Delegates meeting in New York.  What was striking to me was not his comments about the decision not to prosecute the staff people responsible for the faulty hiring decisions, but his comments laying bare the breakdowns in supervision that occurred at the Department.  In essence, supervisors failed to supervise. (The full text of his speech is available here and a cell picture to get a flavor of the scene is attached):

Some people at the Department deviated from that strict standard, and the institution failed to stop them.

I want to stress that last point because there is no denying it: the system failed. The active wrong-doing detailed in the two joint reports was not systemic in that only a few people were directly implicated in it. But the failure was systemic in that the system – the institution – failed to check the behavior of those who did wrong. There was a failure of supervision by senior officials in the Department. And there was a failure on the part of some employees to cry foul when they were aware, or should have been aware, of problems.

.... I am confident that the supervisors working under me know that they are expected to live up to their titles – to supervise – and that they have primary responsibility to ensure that hiring in their divisions and other units is lawful and is proper. I am also confident that, if problems were to recur and anyone in the Department became aware of them, those people would promptly alert more senior officials in the Department, up to and including me if necessary.

To me, Mukasey's comments are a prime illustration that no matter what policies or procedures a company (or here, a government agency) has, those policies are worthless without supervisors willing to implement them. 

Don't believe that this happens within your organization? Take a look at your annual performance review process.  If your organization is like most, the reviews are often-watered down as supervisors fail to do what is needed -- supervise.  

When the failure occurs at the Department of Justice, it shows that these types of failures can occur anywhere.  Only through diligence of senior executives and dedicated human resources staff, can these failures be minimized.  Giving supervisors the tools to supervise can help your organization avoid the problems of the type at the Department of Justice.

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As I indicated on Friday, I'm currently attending the American Bar Association Annual Meeting in New York City.  Lots of interesting and noteworthy programs for lawyers and in-house counsel of all types. 

During today and Tuesday, the policy-making body of the ABA -- known as the House of Delegates -- has been debating issues of importance to lawyers.  For in-house counsel and those dealing with employment law issues, the HOD considered an important model rule regarding the registration of in-house counsel.  The Model Rule passed overwhelmingly by a voice-vote today, a measure that I had an opportunity to speak to the House of Delegates about.

The ABA Journal reported on the passage of the measure here, and you can find the language that was revised and passed regarding the measure here.

A Model Rule is a proposal advanced by the bar association that is designed to allow other states to copy in adopting their own rules.  In essence, it's like a "best practices" for states.  However, in practice, "model" rules are often modified in one way or another and they may or may not be passed at all by certain states.

Connecticut, as readers may recall, already has an in-house counsel registration rule that went into effect just last month.  So, in the short term, this new ABA Model Rule isn't likely to have any significant effect in Connecticut -- though other states may see more of an impact.

However, longer term, it's likely that some of ideas in the model rules -- such as pro bono work by in-house counsel - will be debated and discussed.  Thus, for in-house counsel in Connecticut, the future is just beginning on the in-house counsel registration rules.

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In representing clients, I have, on occasion, had a client make a honest inquiry about the federal laws regarding age discrimination. Their question is something along the lines of: If discriminating against age is against the law, why can law firms insist on mandatory retirement policies?

The simple response is that partners at law firms have, historically, been viewed as owners/employers, rather than employees. But that view has been challenged in recent years by the EEOC's lawsuit against Sidley Austin LLP -- a case that settled in October 2007 for $27.5 million.  But it's always struck me how this rule is perceived as creating two different sets of rules -- one for lawyers and one for everyone else.

Business New Haven, a niche business publication in Connecticut (which is republished on Conntact.com), has an article in this week's issue about this very topic and how law firms in Connecticut are addressing this situation:

Connecticut law firms are practicing what the American Bar Association (ABA) has been preaching since last summer about retirement rules for partners.

And many have been doing it far longer than that, according to area attorneys.

In August 2007, the ABA's House of Delegates, its policy-making body, approved a resolution encouraging law firms to jettison mandatory age-based retirement policies for partners and "instead evaluate senior partners individually in accordance with their attributes and interests and the firm's generally accepted performance criteria."

The resolution deemed mandatory retirement policies "inconsistent with accepted employment practices, against public policy and not in the best interest of either law firms or their clients.

I spoke to the reporter in the case as part of her research into the subject a few weeks ago.  In the article, I discuss the effect that the ABA policy will have on mandatory retirement practices in general.

As I said there, I don't expect the ABA resolution to have any dramatic impact on law firms immediately. But the trend over the years has been to discourage such policies and focus instead on performance.  As society's concept of what is "old" continues to change, so too do law firm's concepts of what they need to do for succession planning and overall performance. 

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If your labor & employment attorney isn't returning phone calls over the next few days, odds are he or she is at the first annual ABA Labor  & Employment conference in Philadelphia.  I arrived this afternoon and discovered that over 1250 of my closest colleagues are here as well.

I had the opportunity to chat at the welcome reception tonight with NLRB Board Member Peter Schaumber.  Knowing him only by Board decisions, I found him a pleasure to talk with.  Regardless of political affiliation, you have to appreciate that he's charming, affable and has a breadth of knowledge on a variety of subjects. Too often, lawyers tend to depersonalize judges -- forgetting that behind each decision is a real person making difficult decisions. 

One item he mentioned was that the NLRB was actually holding a rare oral argument on one of its cases on Friday in Philadelphia. He was looking forward to it.  Thus, if you're at the conference, or in Philadelphia, it's worth a visit. The WorkPlace Prof prepared a thumbnail sketch of the case a short time ago. 
 
For practitioners and those interested in the subject, the conference has posted their program materials -- free of charge -- on the ABA website.  It's easily over 1000 pages worth of materials.  It's a treasure trove of information about cases, strategy, law and the like.  It's helpful not only to employer and employee lawyers, but to in-house counsel as well.

If you're at the conference, drop me an e-mail at daschwartz@ebglaw.com and perhaps we'll have an opportunity to meet in person. 

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