Regional Meeting Papers

May 22, 2012 - Second Circuit Holds Semi-Annual Dinner Meeting:

Panel 1 - Equal Opportunity Law & Regulatory Change: Disability Discrimination, Criminal Background Checks, and Other Recent Developments

Panel 2 - The National Labor Relations Board, Current Developments: Social Media, Proliferation of Small Bargaining Units, Pre-election Hearings and Expedited Elections, Class Action Waivers

Sixty Fellows and guests of the College of Labor & Employment Lawyers from New York, Connecticut and Northern New Jersey convened at the New York Office of Jones Day for their semi-annual dinner meeting. Evan J. Spelfogel, a Member of Epstein Becker & Green, P.C. and National Program Chair of the College, chaired the program which was moderated by Willis J. Goldsmith, Partner-In-Charge of the New York Office of Jones Day.

The program commenced with a presentation by the Honorable Elizabeth Grossman, Regional Attorney for the New York District Office of the EEOC, concerning the EEOC’s recent guidance relating to the use of criminal arrest and conviction information by employers in employment decisions. Ms. Grossman discussed the reasons for the EEOC’s decision to issue new guidance concerning the use of conviction and arrest records, examples of permissible and impermissible uses of such information by employers, as well as best practice tips for employers to avoid disparate treatment and/or disparate impact claims relating to their use of criminal background information in employment decisions. Following Ms. Grossman’s presentation, a lengthy and animated discussion ensued regarding the practical implications and challenges to employers presented by the EEOC’s recent guidance.

Next, Adam T. Klein, a Partner of Outten & Golden LLP, and Zachary D. Fasman, a Partner of Paul Hastings LLP, led a panel discussion concerning the arbitrability of class and collective claims and the validity of employee waivers of their right to assert class claims before arbitrators as well as in court. Class action arbitrability issues have been impacted the past several years, they noted, by decisions of the U.S. Supreme Court in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758 (2010), AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), and CompuCredit Corp. v. Greenwood, 132 S. Ct. 665 (2012). They discussed several questions left open by the holdings in those cases, as well as recent district court decisions applying the holdings in the employment context.

Following that panel presentation, the Honorable Karen P. Fernbach, Regional Director of Region 2 of the NLRB, gave a presentation on employee use of social media (e.g., Facebook, Twitter, etc.). She discussed the types of comments made on social media sites that may qualify as protected, concerted activity under the NLRA and referenced case examples provided in two memoranda recently issued by the Acting General Counsel of the NLRB. These gave an overview of recent NLRB cases exploring social media issues. Ms. Ferbach provided examples of overly broad employer social media policies that were found to have restricted Section 7 rights, as well as an example of a well-crafted lawful social media policy.

The Honorable James Paulsen, Regional Director of Region 29 of the NRLB, Larry Cary, a Partner of Cary Kane LLP, and Michael F. McGahan, a Member of Epstein Becker & Green, P.C., provided additional insight concerning the practical implications of monitoring social media usage in the workplace, and also followed up on the class action waiver issue as posited by the NLRB earlier this year in its T.R. Horton decision.

Mr. Paulsen then gave a brief presentation concerning the Acting General Counsel’s proposed changes to the NLRB’s Collyer deferral policy that would eliminate a long standing Board practice of routine deferral to arbitration of Section 8(a)(1) and 8(a)(3) cases, and defer only where arbitration is expected to be completed within one year. Where routine defer would not be appropriate under the new policy, the Acting General Counsel proposes that Regional Directors determine whether the Region should complete the investigation or defer to arbitration based on any disadvantage to the Charging Party or to the Board’s ability to enforce the Act.

Continuing past tradition, the meeting room facilities, the meal and 3.5 CLE credits were all provided without charge, for which we thank Jones Day. The Circuit’s next meeting has been tentatively scheduled for early November.

Written by Evan J. Spelfogel, With the Assistance of Joanne Alnajjar, Esq. of Jones Day

Click here for meeting materials, and here for the EEOC's criminal background check article.

November 9, 2011 - 2nd Circuit/Northern New Jersey Regional Program:

Two panel discussions dealt with recent developments in Wage-Hour Class Actions and related strategic considerations and an NLRB update of recent decisions, rulemaking activity and the picture for 2012. Click here to view materials from this meeting.

June 1, 2011 - 7th Circuit Regional Committee, presentation on developments concerning Wisconsin labor relations:

The presenters at this meeting were all veteran labor lawyers from the state of Wisconsin. Dan Nielsen is a mediator and arbitrator who works with the Wisconsin Labor Relations Commission, and he described the quite impressive history of labor relations legislation in the state of Wisconsin beginning with workers’ compensation in 1911, unemployment compensation in 1932 and employment discrimination in 1942. Wisconsin is the first state to enact the comprehensive labor relations law for public employees - 1959. In 2011, major portions of Wisconsin public sector labor laws were amended by removing collective bargaining rights for employees of the University of Wisconsin, limiting the terms of collective bargaining agreements, abolishing interest arbitration for all employees except police and firefighters and restraining bargaining only to matters of base salaries.

The impact of these changes were discussed by Tim Hawks, a union lawyer from Milwaukee and Mark Vetter also based in Milwaukee, who presents public employers, including school districts. The discussion was moderated by Professor Martin H. Malin of the Chicago-Kent College of Law, himself an outstanding labor lawyer and author of a case book on public sector labor relations. This well-attended and highly educational program is one of several being conducted in various regions of the country by the regional committees that have been established in New York, Chicago, Atlanta and San Francisco. Other committees are now in formation, and the members of the Board of Governors sincerely hopes that College Fellows will take advantage of these opportunities. The College has also offered CLE credit to government lawyers in several very successful ethics and lawyer civility programs that have been conducted in Chicago and New York.

Click here to view papers.