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.