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.
As I said back then, the company asked the Court to review three questions:
Did the Board unlawfully shift the burden of proof from the General Counsel by holding that it would find the Company acted for an independent unlawful purpose unless the Company proved that it had a legitimate reason for not disclosing its hiring plans to the Union?
Did the Board err when it disregarded as hearsay the testimony of a witness as to why the Company did not inform the union of its staffing plans and required the Company to produce actual evidence of the Union's potential for disruption?
Did the Board err when it found that the Company hired permanent replacements for an independent unlawful purpose?
So what's happened since then? Well, the NLRB (after several extensions of time) finally filed a brief opposing the employer's request to have the Supreme Court grant certiorari (and basically to hear the case on the underlying merits).
The NLRB's brief is available for download here. The NLRB arguments are what you would expect -- that this case doesn't present any novel issues of law or conflict with decisions from other circuits.
If you were at the Holiday Inn in Waterbury yesterday, you had the opportunity to see a microcosm of what's going on in today's workplaces and economy.
But if you look carefully at the video (particularly about the 1:20-1:40 mark of the report, you can see a banner in the background from a seminar and conference that was also occurring at the hotel yesterday. It reads: CBIA Supervisors' Conference.
What was the conference? Well, the all-day conference was designed to give supervisors' practical skills to help them become more effective managers. (And, in full disclosure, the conference was sponsored by my firm, Pullman & Comley, LLC). But an underlying theme of the day was how to manage in difficult economic times.
The lunch-time speaker spoke eloquently about how managers and supervisors -- even at healthy companies -- must understand the stresses that are being placed on all workers, even the ones with relatively secure jobs. Employees are worried about layoffs or their families' financial well-being, in levels not seen in a generation. (Just think about all of the job fair applicants who have families and friends that are concerned about them.) As a result, fear, anxiety, lack of loyalty and uncertainty are all feelings that are circulating in the workplace.
What are some practical solutions suggested by the speaker? Most of the suggestions are good business practices anyways, but they are certainly worth repeating now: Build trust; communicate often; pay attention to high potential employees; recognize success; and including employees in decision-making (i.e. cost saving ideas). And inexpensive rewards -- even a letter of thanks by the company's President -- may make a difference in today's workplaces.
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.
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.
For employers in Connecticut, this isn't exactly the best of times. But it isn't the worst of times either. That seemed to be the message of a variety of economists at a conference I attended yesterday sponsored by the Connecticut Business & Industry Association.
In fact, a CBIA survey released yesterday (and sponsored by Blum Shapiro) found that a slight majority of Connecticut businesses responding expect growth over the next year but that executives were neither "overly positive nor negative about business conditions for their companies". Several economists pointed out at the conference that Connecticut has fared better than the rest of the nation over the last year and that the state is much better off than the recession of the early 90s when nearly 160,000 jobs were lost in the state.
The mixed messages were discussed both at the conference and can be found in the survey too. For every number that was raised as a positive, another number could be found as a negative. For example, 67% of employers added new jobs last year, but 61% of employers are also coping with workforce shortages.
As a result, the survey concludes that "to stay productive and competitive, employers may need to try new approaches to recruiting employees and developing and retaining incumbents."
A representative from AT&T at the meeting suggested that one option may be telecommuting and he relayed the fact that AT&T is going to have nearly 2000 employees off the roads soon with telecommuting. But for other employers, other solutions are going to need to be explored. Working with legal counsel can ensure that these options don't create more problems than they solve (such as overtime issues, etc) but these types of issues are also going to require more than just legal advice. As always, the businesses that can adapt quickly to these changes are the ones that are most likely to succeed in the long run.
t 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.
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