When the ABA last visited Toronto in the 1990s for its annual meeting, cell phones and the Internet weren’t in heavy rotation. What a difference a decade makes. And, except for the mobile service providers who likely made thousands of dollars, it was a lot harder to connect than I anticipated. That, combined with a few days off, led to the blog taking a needed break.
While the blog took a break, the news did not. This morning’s post addresses a few items that passed the ABA’s House of Delegates (the association’s main governing body) last week. Long-time readers may recall that I serve as a delegate from Connecticut and even tweeted the events on both my normal Twitter feed (@danielschwartz) and the official House of Delegates feed (@abahod).
There were a few items that were discussed that related to the labor & employment law area.
First, the House passed Resolution 120, which urged Congress to amend “the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA” or “the Act”), 38 U.S.C. §§ 4301–4335, by adding provisions to require employers to provide certain reasonable accommodations for returning veterans with combat injuries that may not manifest themselves until after a return to work.” The Resolution also asked that USERRA be amended to allow for compensatory damages and attorneys fees (consistent with other federal employment laws). You can read the whole resolution here.
The resolution was on the consent calendar, though one of the provisions is certainly notable because it also takes the position that USERRA should be amended to prohibit certain arbitration agreements between the employer and employee regarding USERRA claims. The primer on this provision recalls Garrett v. Circuit City Stores, Inc, a 2006 case out of the Fifth Circuit which upheld such provisions. While a bill was introduced into Congress in 2009 to cover these items, a similar bill has not yet been introduced in this session. Thus, it is unlikely that the House of Delegates’ action last week will have any notable effect on this area of law.
The House also passed amended resolution 124, which urged the President, Congress, and the Equal Employment Opportunity Commission (“EEOC”) to adopt measures to provide that employment discrimination hearings conducted by the EEOC be subject to the formal adjudication requirements of the Administrative Procedure Act (5 U.S.C. sections 554, 556, and 557).
Why is this important? According to the summary of the resolution:
This Resolution is intended to encourage reform of the EEOC administrative hearings program in order to protect the public interest in independent, impartial, and responsible decision-making in the administrative adjudication process. … Currently the administrative process at the EEOC is not governed by the APA. Its Administrative Judges are not guaranteed independence, but instead report through the District Director in their geographical area, who is not a judge and often not a lawyer.
Under the APA, the EEOC would demonstrate respect for the adjudication program and staff by operating within the normal reporting structure including supervisory judges and a chief judge and the expected level of adequate support staff. By adopting APA procedures for its administrative hearings, EEOC would demonstrate a greater commitment to a fair, professional administrative hearings process.
Given the budgetary issues facing all federal agencies, it is not likely that this resolution will be adopted anytime soon. But with the ABA on record supporting these reforms, it may be that the EEOC will consider this in the upcoming years as something worthy of adoption.