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.

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. 

Five years is a long time.

In the time span of the Internet, it might as well be a lifetime.

And Justice For All

So, after five years of doing this blog on nearly a daily (ok, business daily) basis, it’s time for a change.

Now, I’m not retiring like other bloggers have.  But it’s time to recognize that the world of reporting on employment law has changed so much since I started the blog in September 2007.  

Back when I started, there were a handful of us.  Now, there are dozens of employment law blogs chasing the same nugget of news; a few are great, some are good, and many others are just chasing Google’s SEO approval.

Five years ago, the news competition was a printed Daily Labor Report by BNA and, well, not much else.  A lawyer who blogged could often be the first to report on a case simply because there was no one else out there.

Even then, given the slowness of the news cycle, there was time for a bit of analysis.  Twitter wasn’t heavily used and Facebook was still mainly for college kids. (I didn’t even reference social networking’s impact on employment law until 2008.)

Now, Twitter demands an immediate post on what is happening THIS MINUTE.  And Facebook has turned into key part of people’s lives.  And don’t get me started on the rapid rise in the use of smartphones. 

(For more on this phenomenon, see this article in The New York Times).

I was reminded of this last fall when I was on vacation and the Connecticut Supreme Court came out with a decision on how many Connecticut-based employees a company needed to have before being covered by Connecticut’s FMLA.

I got an e-mail from a friend and lawyer letting me know about this and hoping I would blog about it.  And there I was, feeling compelled to update the blog about it — while waiting on line at Disney World, using my smart phone.

A lawyer practicing at a (great, if I may say so) mid-size Connecticut-based law firm is not a news reporter.  We have clients to care for, for one reason. 

And family is another reason. One of my loyal readers — my mother-in-law — has been ill of late and life requires some changes to meet her (and the rest of my family’s) needs.  

So, it’s time for a change.  Here are a few things you will see this year (at least if I can hold my resolutions down):

  • 2-3 posts a week, scheduled to come out around mid-morning.  I still need to play around with the days but you’ll start to see more of a regular pattern soon.
  • The posts will continue to have a primary focus on items of interest for Connecticut employers, recognizing that some stories of national significance have a local impact too. But the ordinary NLRB decison from Arkansas is just not something this blog can or should cover.
  • The posts will still try to answer the most important question for employers: How does this thing (a court decision, a new bill) impact employers? 
  • In place of additional posts, particularly on breaking news, I will be making more use of this blog’s Facebook page.   Facebook has taken a more prominent role for businesses and its time to move it into a more central position to keeping updated.  This blog will not chase the search engines for approval simply by having meaningless breaking news posts.
  • In addition, if you haven’t been following me on Twitter, now’s a good time. There’s already 3200 (!) of you doing so, but the more the merrier.  I tend to send Twitter updates a few times a day, mainly on Connecticut or employment law-related stories.  (But Red Sox fans be warned: Come baseball season, you may also see a Yankees post mixed in, in the evening or weekends.)
  • If you like something a little more different, we can also connect on Google+.  I’m planning on starting some employment law Hangouts later this month.  Watch for more details later this month.  You may also see a few more videos and webinars in place of posts too.
  • And finally, if you’re still a little tentative about social networks, we can always connect on LinkedIn.  (And if that is too much, well, then there’s always just the blog.)

Each of these outlets provides a more efficient way for you to keep updated on the information you’ve gleaned from this blog.   Put another way, this blog will serve as a home base for more analysis and leave the breaking news for the social media platforms. 

Change is never easy, but hopefully these changes will bring you the information you need for your business in a more direct way without having to rely on longer-form blog posts each day. 

Let me know what you think in the comments. Suggestions are always welcome.  Criticism is accepted too.

Happy New Year.

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.