Eugene Volokh's article Correcting Students' Usage Errors Without Making Errors of Our Own, 58 J.L.E. 533 (2008) reminds those of us who have been teaching or practicing for some time of something we probably learned early on when commenting on the writing of a student or new lawyer:  there is a difference between an actual usage error and a manner of writing that most lawyers prefer.  For example, as a new professor,  I was surprised to find that many students use "can not" rather than "cannot," when, throughout my life, English teachers had impressed upon me that only the latter was correct.  (In fact, my spell-checker is marking "can not" incorrect now!)  Nowadays I do point out errors to my students, but, more importantly, I talk to them about their audience.  Volokh uses the example of how most attorneys prefer "judgment" to "judgement."  By focusing on what trained legal readers expect, I avoid misrepresenting a spelling or usage as incorrect when it may be permissible.  But I also find that such a focus has the added benefits of making the students feel welcomed into a certain tradition of writing and keeping them more engaged.  So remember, next time you pick up your pen or pencil to edit a student or new lawyer's work, try to comment on the acceptability rather than the correctness of the writing.

We had another interesting and productive day at the Warns Institute today.

The day began with Jeff Calabrese's somewhat depressing but engagingly presented overview of the state of national  and Kentucky of unemployment insurance.   He noted that the Kentucky fund is bankrupt  and concluded with thoughts about what types of measure the state can take to repay federal loans and refinance the fund: cutting benefits, raising unemployment taxes on employers, and implementing a tax on employees.

Next, James Fogle discussed Kentucky workers compensation.  He discussed an interesting case where a teacher was injured while volunteering as the sponsor of the Beta Club.  The Supreme Court upheld the unemployment board's decision that she was entitled to benefits.

Next, Professor Ann McGinley gave a talk that was one of the highlights of the day.  She updated us on the ADA amendments.  Her recommendations to employers include the following:  err on the side of granting accommodations; provide more training and education to insure retaliation and harassment do not rise as a result of perceived special treatment; do not refuse an accommodation, including working at home, if others have received the accommodation; and be aware that more leave than granted under the FMLA may be required as an accommodation.

The other highlight of the day was John Higgins's NLRB update.  He updated us on the cases waiting to be decided by the full board including two types not previously discussed in the Board's recent public interview.  In one, the Board will decide whether an undocumented worker who did not submit false papers and was hired by an employer who knew the worker was undocumented is entitled to back pay.  The others are bannering cases where the issue is whether bannering a neutral to pressure the neutral to cease doing business with another company violates the secondary boycott provisions.  He also updated us on a significant issue now pending before the General Counsel: whether to issue a complaint on a charge alleging that a pre-dispute agreement to arbitrate cases and to waive class arbitration violates employees' Section 7 rights.    

Next Professor Marty Malin spoke on his upcoming article, the Paradox of Public Sector Labor Law.  His practical advice for public sector employers and unions in Kentucky was two-fold.  First, forget the law and try to work out systems that foster employee participation in decision making, and, second, draft and implement legislation that creates a different model, than the NLRA model, for public sector representation.

Bonnie Glantz Fatel and Paul A. Friedman gave a fabulous presentation on bankruptcy for labor and employment lawyers.  They explained complex concepts in a way we could all understand.  And as one bankruptcy judge told Paul at some point, in bankruptcy ERISA means the Every Ridiculous Plan Since Adam.

Carolyn Wheeler shared the EEOC's perspective and her insightful thoughts about the interplay of litigation, court decisions, and legislation.  She cautioned that despite the recent changes to the ADA, pleading rules may still prove perilous for some.  She queried why the courts readily accept a claim that an employer discriminated against an employee because of the race of those with whom the employee associated (Barrett v. Whirlpool, 6th Cir.)  but they do not use an equivalent associational justification to accept a claim of retaliation based on association (Thompson v. North American Stainless, 6th Cir.).   She stated her belief that as a practical matter Gross v. FBL Fin. Servs., Inc.  probably doesn't considerably harm employees because they prefer not to have to bring a mixed motive claim anyhow. 

The day concluded with Hans Schmidt's useful reminder about the Model Rules of Professional Responsibility that bear on multiple representation issues.  He pointed out that each jurisdiction has its own rules.  Be sure to double check Kentucky's new rules, effective July 15, because some that he discussed, including 4.3 on unrepresented persons, do differ from the Model Rules.

 

 

The day began with David Leightty's review of Kentucky employment law.  When I was teaching labor law, we were wondering about the rules governing the racetracks in Kentucky since the NLRA declines jurisdiction over tracks.  I learned from the talk that Kentucky has an equivalent protection to Section 7 that applies to the tracks.  Mr. Leightty also discussed an interesting case dealing with a provision, KRS 336.700(2), that prohibits waiver of  "a right or benefit as a condition of employment."  McGown v. Gray Ky. TV, Inc., 2008 Ky. App. LEXIS 342 (Ky. App. 2008) (motion for discretionary review pending).

Next Professor Ken Dau-Schmidt gave the Supreme Court review.  Notable in light of his extensive experience with law and economics, he stated he could find no underlying empirical rationale that explains all the cases this term!  He discussed an interesting (at least to those who will be teaching trusts and estates and employment next year) ERISA case, Kennedy v. Plan Adm'r, 129 S. Ct. 865 (Jan. 26, 2009).  In this case, the court found that a plan administrator acted properly by paying out benefits to a designated beneficiary, even when a divorce decree purported to divest that beneficiary of the benefits.

The session on the Obama legislative agenda focused on the EFCA.  Ross Eisenbrey gave a detailed statistical presentation documenting the recent growth in income inequality, stating that it is "a rise in inequality more dramatic than anything since the gilded age."  Bill Luyre addressed the pros of the act, and Bob Covington made a valiant attempt to raise the cons of the act.  (Yes, I support passage of employee the act.) 

Professor Cynthia Estlund's keynote lecture was a highlight of the day, definitely living up to my  expectations.  We are all looking forward to reading her forthcoming book on Regoverning the Workplace in an Era of Self-Regulation.  Her theme: "No self-regulation without representation."

Next Victoria Lipnic provided a helpful and detailed review of the new FMLA regulations.  She also provided a heads up as to legislation that may be in the works to extend the applicability of the leave's availability to anyone with a deployed family member, not just someone in the guard or reserve, and to clarify that the caregiving provision for veterans would apply for five years after the individual suffered the injury.

Another highlight of the day was Professor Mark Rothstein's talk on GINA.  He posed the question whether GINA was a "foot in the door" or the "one bite in the apple" that means passage of more comprehensive and effective legislation will not be forthcoming soon.  He also noted the need for new technology that would permit health care providers to easily separate out categories of medical information appropriate for disclosure.

The day concluded with Professor Robert Hillman's talk on lawyers leaving firms.  He noted that when a law partnership breaks up, it is often more acrimonious than a typical divorce because there is more money and more ego on the line. 

 

 

 

 

 

Yesterday, I had the pleasure of speaking as part of the Kentucky Legislative Research Commission's CLE seminar at the House Chamber in the Capitol Building.

Attached here are the slides of the first presentation on "Ex Parte Communication and Confidentiality Issues with Organizational Clients," and the related article.

Also attached here are the slides of the second presentation on "Effective Strategies in Arbitration."  You can download a copy of the related article. 

If you are representing clients dealing with workplace privacy issues, you may be interested in Lisa Smith-Butler's article, Workplace Privacy:  We'll Be Watching You, 35 Ohio N.U. L. Rev. 53 (2009). 

For those representing an employee who "believes an employer has gone too far and invaded his or her privacy," the article provides a checklist. While the list neglects to include some of the sources of law mentioned in the article, such as the National Labor Relations Act or a collective bargaining agreement, and could be added to, with for instance state laws similar to the Electronic Communications Privacy Act, it provides a good starting point. 

The article also provides recommendations for best practices which may be helpful to attorneys representing employers.

 

Are you providing advice to employers on maintaining the personal information of employees, such as social security, license, account, or credit card numbers?  Or are you advising employees who have lost personal information because of a breach of an employer's system?  If so, you may find Joseph J. Lazzarotti's, The Emergence of State Data Privacy and Security Laws Affecting Employers, 25 Hofstra Lab. & Emp. L.J. 483 (2008) helpful.  Lazzarotti outlines the laws governing maintenance of personal information.  He also outlines the notice requirements that apply in many states when there is a breach of an employer's system of maintaining personal information. 

 

 

 

 

If you are advising someone who is applying for a job or an employer who is selecting among applicants, Robert Sprague's article Rethinking Information Privacy in an Age of Online Transparency, 25 Hofstra Lab. & Emp. L.J. 395 (2008) may be of interest.  Sprague provides an overview of the law relating to employer's use of information available on the Internet to select employees. 

His thesis is that privacy has been defined too narrowly to encompass only secret information or conduct.  He comments that "[n]ew forms of communication allow others to view what are intended to be at least somewhat private conversations.  Protecting these conversations requires an attitudinal shift towards acceptance of the idea that just because a few people have access to information does not mean it is no longer private." 

He proposes reforming applicable laws to "prohibit employers from using publicly-available personal information that could be obtained through an Internet search in their hiring decisions."  Alternatively, he recommends passing statutes that would requires employers to inform an applicant before obtaining information from the Internet, to inform the applicant if such information about the applicant was used in deciding not to hire the applicant, and to provide the applicant a copy of the information used.

 

If you are advising a company on employee relations issues and the company is working with foreign companies, William Herbert's article Workplace Electronic Privacy Protections Abroad:  The Whole Wide World is Watching, 19 U. Fla. J.L. & Pub. Pol'y 379 (2008) might be a helpful resource.  The article provides a comprehensive overview of the governing frameworks on workplace privacy in the European Union, the United Kingdom, France, and Canada. 

Additionally, for those of us interested in reforming workplace privacy laws in the United States, the article provides some food for thought. 

European laws offer protections from monitoring of employees' communications and activities.  A Privacy Directive issued by the European Parliament and the Council of the European Union "imposes numerous obligations on Member States."

Under the Directive, each member state must establish "an independent governmental entity, known as a supervisory authority, to ensure compliance with the national legislation enacted consistent with the Privacy Directive."  These entities have the "following administrative responsibilities and duties:"

A.      To hear and resolve claims . . .

B.      Investigative powers including the power to access the data at issue and to collect information necessary to engage in supervisory duties;

C.      To issue opinions with respect to the handling of data . . . to order the blocking erasure or destruction of data;

D.      To commence legal proceedings . . .  [and]

E.      To prepare regular reports regarding their activities.

In addition to the national entities, the Directive establishes a Working Party, an advisory body that issues opinions interpreting the Privacy Directive.  A 2002 Working Party working document advises that use of an employer's "communication devices" or facilities does not, on its own, destroy an employee's "legitimate expectation of privacy at the workplace."    

In 2005, the Working Party issued an opinion on the use of employee location data.  The opinion states that employers should monitor employees' location only when they have a specific need to do so, such as when people or goods are transported by the employee or when the employer aims to improve resource distribution.  "[T]he opinion emphasizes that it would be inappropriate for an employer to collect location data for periods when an employee is not working and recommends that all vehicles with tracing equipment should enable an employee to switch off the location function."

Another Working Party opinion issued in 2001 requires the employee's consent to an employer "processing sensitive data that reveals an employee's race, ethnicity, religion, political opinions, philosophical beliefs, union membership, health, or sex life."  Consent must be given by "free choice" and a subsequent withdrawal of consent must be without detriment to the employee.  (The Council of Europe's Convention for the Protection of Individuals with Regard to the Automatic Processing of Personal Data also "contains restrictions on the gathering of personal data that reveals racial origin, political opinions, religious and other beliefs, as well as personal data concerning health or sexual life and criminal convictions.  Automatic data collection with respect to these topics is prohibited unless a subject country has enacted domestic law that provides sufficient safeguards.") 

Moreover, the practice of consulting with worker representatives before establishing a monitoring policy is repeatedly cited in European documents.  The United Kingdom ("UK") extends the idea of consultation with employees beyond the union setting.  The UK's Information Commissioner's Office recommends "that before implementing a monitoring system, an employer should conduct an adverse impact assessment for the purposes of establishing a balanced program that factors in both the employer's business needs and the employee privacy interests."  Part of this assessment includes consideration of "whether there has been consultation with the union or the employees themselves." 

 

 

 

The Kentucky Supreme Court has approved modifications to the Kentucky Rules of Professional Conduct, which will be effective July 15, 2009.  Included are the modifications to the rules discussed in the footnotes of my paper, Legal Ethics in the Employment Law Context:  Who is the Client?  The paper discusses the rules that govern confidentiality and ex parte communications, Rules 1.6, 1.13, 4.2 and 4.3.

A lot has been said about the Supreme Court's decision in 14 Penn Plaza v. Pyett, which came down on April Fools day.  And I have little to add.  (The Court held that "a provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate claims arising under the Age Discrimination in Employment Act" is enforceable.) 

I will offer a practical tip for labor lawyers:  do not let your clients who wish to clearly waive employees' rights to file statutory discrimination claims in court use the language used by the parties in 14 Penn Plaza.  There are two good reasons not to use the language.

First, the Court did not actually hold that the language clearly and unmistakably waived the employees' right to go to court; the Court merely assumed that it did.  The Court stated, "Finally, respondents offer a series of arguments contending that the particular CBA [Collective Bargaining Agreement] at issue here does not clearly and unmistakably require them to arbitrate their ADEA [Age Discrimination in Employment Act] claims.  But respondents did not raise these contract-based arguments in the District Court or the Court of Appeals."

Second, from a grammatical standpoint, the language may unmistakably waive the right to go to court for statutory discrimination claims, but it is certainly not clear.  Here is the language the Court quotes: 

§30 NO DISCRIMINATION.  There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York  State Human Rights Law, the New York City Human Rights Code, . . . or any other similar laws, rules, or regulations.  All such claims shall be subject to the grievance and arbitration procedures (Article V and VI) as the sole and exclusive remedy for violations.  Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.

The term "claims made pursuant to" modifies the word "discrimination," or perhaps the word "characteristic."  Since when are claims a form of discrimination?  Since when are they a characteristic? 

Adding to the lack of clarity, the term "claims" is used three times with potentially different connotations: "claims made pursuant to," "all such claims" and "claims of discrimination."  Does "all such claims" refer to claims brought pursuant to the listed statutes or to all claims of discrimination brought under the contractual no discrimination clause?  What about "claims of discrimination"?  Should arbitrators apply appropriate law to all discrimination claims or only to those brought pursuant to the listed statutes?

In addition to a practical tip, I offer a seemingly more theoretical thought.  The Justices frame the issue as one about waiving individual rights, either to a forum or of a substantive nature.  But might the great difficulty in resolving what to do about union waivers of employees' right to go to court with statutory discrimination claims have something to do with the nature of a public law right that protects minority groups, not individuals?   As I discussed in my prior post on Emporium Capwell under the current labor law framework, workplace conflicts between groups raise seemingly intractable issues. 

So I agree with all the bloggers who have stated the Court really punted on the most relevant and difficult issue: whether a union's grievance and arbitration process is the appropriate dispute resolution method for statutory, as opposed to contractual, discrimination claims.  (I attest from personal experience that grievance arbitration typically involves no discovery except information requests and that subpoenas of witnesses are sometimes virtually unenforceable.)

And, I also agree that the best solution might be to make pre-dispute waivers of employees' right to go to court for statutory employment claims unenforceable across the board, whether entered into by an individual, minority group, or union.