Ariana R. Levinson's blog

Workplace Privacy Laws Abroad

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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." 

 

 

 

Modifications to Kentucky Rules of Professional Conduct

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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.

Drafting Clear Contracts and Abrogating Individual Rights

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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.

 

 

Employee Free Choice Act

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Two students, Allison Currey and Dustin Bell, and I have an op-ed on the Employee Free Choice Act in the Courier-Journal today.

 

Moot Court and "Mock Judicial Readings"

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"Practice makes perfect."  This week my students will practice their oral arguments with moot court board members, with me, and with classmates.  Like many students across the nation, they will do so to prepare for their appellate oral argument in front of three practitioner judges.  These practitioners, like many others across the nation, volunteer their time to help the students, with whom the practitioners may someday work, hone their oral advocacy skills. 

And students are not alone in practicing to prepare for an oral presentation.  Appellate attorneys across the nation routinely hold moot court to prepare for oral argument.  Trial attorneys spend large sums to practice in front of arbitrators.

Most of these students and attorneys realize, however, that their written work product is often as, if not more, important than their oral advocacy.  Why then do we not hold "mock judicial readings"?  This is the question Bryan Garner poses in his essay, Debriefing Your Briefs (adapted from Winning Brief (2d ed. 2004)). 

He offers an innovative method to test a brief, and it could certainly be adapted to test other types of legal writing.  You hire five attorneys for two hours of time to meet in a "focus group" about a week before the brief is due.  A neutral moderator should run the focus group while the brief writer observes.  The attorneys play "the role of appellate judges."  They first read a final version of the appellant's brief for fifteen minutes.  The moderator and the attorneys then discuss the brief and the attorney's impressions of the case for fifteen minutes.  They read the appellant's brief for ten more minutes, and discuss for ten more minutes.  The same process is repeated with a final version of the appellee's brief.  (If you represent the appellant, you will have to prepare an appellee's brief to test your own brief by this method.)  The neutral moderator then asks "each participant to say how he or she would vote in the case and to explain why."

What a great idea!  I encourage practitioners to use the method. 

Moreover, we should extend the method to the classroom.  Just as practitioners volunteer to judge moot court, they could volunteer to judge "mock judicial readings."  A seminar in which a "mock judicial reading" was integrated would make a great upper level writing course.

 

 

Register for Warns Labor and Employment Law Institute

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As I mentioned previously, this year's Warns Institute will be held June 18 & 19.  Cynthia Estlund will give the Carl A. Warns, Jr. Lecture.  Other confirmed speakers include: David Leightty, Ken Dau-Schmidt, Mark Rothstein, Robert Hillman, James Fogle, Tom Williams, Ann McGinley, Marty Malin, Vickie Lipnic, Barry Kearny, Bonnie Glantz Fatell, Paul Friedman, Carolyn Wheeler, and Charles Powell.

 

Click here to register. 

"Blogging While Publicly Employed"

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I enjoyed spending the day at the Louisville Law Review Symposium on Free Speech and the Challenge of Advancing Technology.  The speakers were great and raised a range of timely and important topics. 

One presentation would be of particular interest to those who practice labor and employment law.  (And so, of course, was the highlight of the Symposium for me.)  Paul Secunda presented his article Blogging While (Publicly) Employed:  Some First Amendment Implications.  He discussed a case of particular interest to those of us here in Kentucky, Nickolas v. Fletcher, 2007 WL 1035012 (E.D. Ky. 2007), a suit challenging the state of Kentucky's prohibition on state employees accessing blogs from state-owned computers.

Please Support or Attend the Annual Charity Auction

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The Student Bar Foundation will host its Annual Charity Auction on March 11th, 2009 from 5:00-8:00. We will have a live and silent auction, drinks, entertainment and hors d'oeuvres to raise money for legal, public service fellowships.

We are currently soliciting donations and would love to have your donated items or in kind donations (dinner with a Professor, law books, hornbooks, etc.) as well as your participation at the event! Please contact Andrea Vetter at anhubb01@gwise.louisville.edu if you have a donation, or any questions.

The Student Bar Foundation is the charitable giving arm of the Student Bar Association. This student run organization helps raise money and distribute funds for student fellowships or travel stipends for law-related public service work with a focus on delivery of legal services to the poor and indigent, law related public education and improvement of the judiciary, the legal profession, and citizen access to the justice system.

Since its inception in 2002, the Student Bar Foundation has distributed funds to students completing public service work at the Legal Aid Societies in Louisville, New Orleans and Cincinnati, the Louisville Center for Women and Families, Whitman Walker Clinic in Washington D.C., and even a project in Rwanda where a student interned with the Gacaca courts that prosecute cases from the genocide. In 2008, the Student Bar Foundation gave $5,000 for the opening of the law school clinic.

Thank you!

Andrea Vetter

Legal Writing Tip - Write and Edit Just a Little Bit

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To those interested in improving their writing, Bryan Garner recommends not only just a little bit of reading but also just a little bit of writing and just a little bit of editing.  Two of his especially innovative and useful ideas are to keep a daily journal and to form a writing group.

In the essay The Benefits of Keeping a Daily Journal (adapted from Student Lawyer (Sept. 2004), Garner suggests that you will dramatically improve your writing if you spend ten minutes each day writing a factual description of some of the day's events.  He states,

You may think that a journal like this is simply too far removed from "legal" writing to do you much good.  Don't make this mistake.  In chronicling your daily routine, you'll be drawing on your powers of description and analysis.  The better you become at it, the better you'll become at writing legal memos, client letters, briefs, and even contracts.  You'll be developing deftness with the written word.

In the article Why You Should Start a Writing Group (adapted from Student Lawyer (Jan. 2006)), Garner recommends to new lawyers that they spend ninety minutes once a month meeting to edit each others' writing.  Four lawyers should spend approximately five minutes reading another young lawyer's writing.  The four lawyers then spend approximately another five minutes providing verbal feedback to the writer.  They also provide the writer written comments.  The same approximately ten-minute process is then followed for the writing of each other lawyer.

Garner concludes, "You'll see in almost every session how a piece of writing can be analyzed on many levels.  And you'll begin to analyze on those levels yourself." 

 

 

Warns Conference - Save the Date - not only to earn CLE but to hear some great speakers

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As I mentioned before, the Warns Conference will be June 18 & 19.  The confirmed key note speaker is Cynthia Estlund.  I have had the privilege of hearing Professor Estlund speak twice before, and this will be a talk you do not want to miss.  She will be discussing workplace self-governance.

 

Also confirmed are several other engaging speakers.  Carolyn Wheeler will give the EEOC update; Jim Fogle will discuss recent developments in Kentucky workers' compensation, and David Leighty will discuss other recent Kentucky cases; Ann McGinley will update us on the ADA amendments; Marty Malin will speak about public sector employment; and Mark Rothstein will discuss GINA.

 

I will post again when registration is open with instructions on how to register and will provide a further update on confirmed speakers at that point.