american bar association

The American Bar Association (ABA) holds its Midyear Meeting later this week in Vancouver (Canada!) and the House of Delegates is scheduled to debate several resolutions of interest to employers and employment lawyers.

As readers of this blog, you happen to “know” the Connecticut State Delegate (me!), coordinating a delegation of several esteemed lawyers from Connecticut.

Thus, if you have any questions or concerns about the resolutions, please e-mail me this week at dschwartz@goodwin.com.

Or feel free to add a comment below.

You can review all the resolutions here but the few that I would pay attention to are as follows:

  • Resolution 116A supports an interpretation of Title VII of the Civil Rights Act of 1964 that defines sex discrimination by covered employers to include discrimination on the basis of sexual orientation and gender identity.
  • Resolution 117 urges courts to recognize that service in the United States Armed Forces should not be restricted and that individuals should not be discriminated against on the basis of sexual orientation or gender identity.
  • Resolution 302 tackles the wave of sexual harassment allegations that have been making headlines every day.  In doing so, it would urge “all employers, and specifically all employers in the legal profession, to adopt and enforce policies and procedures that prohibit, prevent, and promptly redress harassment and retaliation based on sex (including gender, gender identity, and sexual orientation) and the intersection of sex and other protected classes.”  The resolution contains a list of suggestions for employers to follow.

The ABA’s resolutions set the policies for the organization to follow.  Thus, the debates that flow from these are more than just theoretical, they help set the path for the ABA to follow. Attorneys should take note and follow the goings on. I’ll have an update for you in an upcoming blog post as well.

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.

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.

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. 

 

The American Bar Association submitted a letter today to the U.S. Department of Labor to express its “serious concerns” over a proposed rule that would “substantially narrow” the longstanding interpretation of what lawyer activities constitute “advice” to employer clients.

Currently, most work from attorneys is exempt from the substantial reporting requirements in federal law that require “persuaders” (or, for ease of understanding, those brought in during a union campaign to help persuade employees to vote against unionization) to report their activities.

You can download the entire letter here.

The ABA’s position here is important because on many labor & employment matters, it abstains because there is typically not a consensus between management-side and employee-side attorneys.  This issue, however, touches all attorneys and is necessary, in the ABA’s words , to defend “the confidential client-lawyer relationship” and would impose an “unjustified and intrusive burden on lawyers and law firms and their clients”.

The rule is still in its proposed stage, but the ABA’s input here could be quite important for another reason as well.  The ABA’s involvement in the “red flag” rules was crucial to getting that rule overturned. Time will tell if the ABA’s involvement here will have a similar impact.

Seth Borden of Labor Relations Today had a good recap of these proposed rules back in July.

 

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.

ABA House Meeting in Toronto

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.

On Friday, the White House announced a new partnership with the ABA designed to help workers whose complaints aren’t resolved by the U.S. Department of Labor find a lawyer through an ABA-approved lawyer referral service.  

According to the ABA Journal article explaining the program

[B]eginning on Dec. 13, workers with unresolved complaints under the Fair Labor Standards Act or the Family Medical Leave Act will be told of another option. They will get a letter explaining their rights and offering a toll-free number that can link them to ABA-approved lawyer referral programs in their geographic area.

Referral programs that are ABA-approved comply with the association’s model ethics rules. They require consumer safeguards such as verification of bar membership, proof of malpractice insurance or financial responsibility, and screening to make sure lawyers have sufficient experience in the subject matter. And clients can’t be charged any additional money for participating in the service.

ABA President Stephen N. Zack calls the project “a win-win for everyone.”

“As lawyers, it’s at the core of our beliefs that people with serious legal needs should be able to readily find good representation,” Zack says in a statement forwarded to the ABA Journal. “The Department of Labor is setting up a creative, compassionate method for helping some of those who come to them with likely claims under the Federal Labor Standards Act or Family and Medical Leave Act. Providing a connection to a lawyer who’s already undergone vetting is a terrific idea that will help people in need. We’re pleased that the ABA’s Legal Referral project is the administration’s lead partner in this."

This seems to be a win-win type partnership not only for the USDOL and the ABA, but also a win for employers and employees alike.  Any employer that has dealt with a pro se litigant (i.e. someone representing his or her self) can understand how expensive it is to litigate such cases. Having a competent and qualified counsel to represent individuals should, in the long run, help employers solve any thorny issues that arise. 

And for employees, it provides another outlet to allow them to find counsel to take cases that might otherwise be left unresolved. 

Kudos to the ABA for giving its members a source of business and also providing a service as well. I’m looking forward to hearing more details about this program and how it will be implemented in states like Connecticut where many lawyer referral programs are run through the local bar associations.  

 

The American Bar Association’s Labor & Employment Law Section kicks off its annual conference tomorrow in Chicago and, by all accounts, it appears its going to be bigger and better than ever.

Over 1300 people have registered for the conference, and the programming looks first-rate, with NLRB Chair Wilma Liebman, AFL-CIO President Richard Trumka, and various USDOL officials among the presenters.  The ABA’s press release sums up the highlights. 

But just because you can’t make it, doesn’t mean you can’t advantage of the conference or follow what’s going on. Indeed, there are a variety of different ways you can do so:

If you’re going, drop me a note and I’d enjoy meeting you in person; I’ll be assisting in capacities.  Look for updates all week from the program both here and online.