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Labor & Employment Law

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Subcommittees

  • Discrimination & Disability Law
  • Pro Bono Outreach
  • State Employment Law
  • Union Activity & Individual Employee Rights

Fifth Annual Executive Branch Review Conference

The Relationship between Congress and the Executive Branch
Ronald A. Cass, Neil Eggleston, Todd F. Gaziano, Sally Greenberg, Kathleen Grillo, Lisa Heinzerling, Grace Koh, Michael S. Lee, Abbott (Tad) Lipsky, James C. Miller, David M. McIntosh, Mike J. Rogers, David C. Vladeck, Adam J. White, Benjamin Wittes, M. Edward Whelan May 17, 2017

The Fifth Annual Executive Branch Review Conference will examine the changing and often convoluted relationship between the legislative and the executive branches in the United States government. This daylong conference will feature plenary panels, addresses, and breakout panels on topics such as “The Unitary Executive,” “Chevron Deference,” and “Congressional Oversight of Voting Rights.”

The Conference will begin with an opening address by Senator Mike Lee.

Can You Recruit on Campus? - Podcast

Labor & Employment Law Practice Group Podcast
Eric Dreiband April 10, 2017

Are college job fairs and recruiting doomed as discriminatory activities?  In February, a District Court in California ruled that job applicants could maintain a disparate impact claim under the Age Discrimination in Employment Act (ADEA) challenging the practice of recruiting entry-level workers mostly through a program available only to recent college graduates. But last October, the Eleventh Circuit affirmed en banc the dismissal of a case brought by an over-40 job seeker who alleged that the company engaged in age discrimination by using screening guidelines describing the “targeted candidate” as someone “2-3 years out of college” who “adjusts easily to changes,” and suggesting to avoid “applicants in sales for 8-10 years.” The two cases are Rabin v. PricewaterhouseCoopers LLP, --- F.Supp.3d ----, 2017 WL 661354  (N.D.Cal., 2017) and Villarreal v. R.J. Reynolds Tobacco, 839 F.3d 958 (11th Cir. 2016) Petition for Certiorari Filed (NO. 16-971), Feb 02, 2017.

Eric S. Dreiband, a partner in the Washington office of Jones Day and former General Counsel of the Equal Employment Opportunity Commission, shared his thoughts on these cases and took listener questions.

Featuring:

  • Eric S. Dreiband, Partner, Jones Day

Can You Recruit on Campus?

Labor & Employment Law Practice Group Teleforum
Eric Dreiband April 07, 2017

Are college job fairs and recruiting doomed as discriminatory activities?  In February, a District Court in California ruled that job applicants could maintain a disparate impact claim under the Age Discrimination in Employment Act (ADEA) challenging the practice of recruiting entry-level workers mostly through a program available only to recent college graduates.  But last October, the Eleventh Circuit affirmed en banc the dismissal of a case brought by an over-40 job seeker who alleged that the company engaged in age discrimination by using screening guidelines describing the “targeted candidate” as someone “2-3 years out of college” who “adjusts easily to changes,” and suggesting to avoid “applicants in sales for 8-10 years.” The two cases are Rabin v. PricewaterhouseCoopers LLP, --- F.Supp.3d ----, 2017 WL 661354  (N.D.Cal., 2017) and Villarreal v. R.J. Reynolds Tobacco, 839 F.3d 958 (11th Cir. 2016) Petition for Certiorari Filed (NO. 16-971), Feb 02, 2017.

Eric S. Dreiband, a partner in the Washington office of Jones Day and former General Counsel of the Equal Employment Opportunity Commission, will share his thoughts on these cases and take listener questions.

Featuring:

  • Eric S. Dreiband, Partner, Jones Day

Courthouse Steps: Microsoft v. Baker

Litigation Practice Group Teleforum
Cory L. Andrews March 22, 2017

On March 21, 2017, the Supreme Court will hear oral argument in Microsoft v. Baker. The case involves a class action lawsuit against the Microsoft Company by plaintiffs who alleged that during games on their Xbox video game console, the game disc would come loose and scratch the internal components of the device, permanently damaging the Xbox. Since only .4% of Xbox consoles experienced this issue, the district court determined that "a class action suit could not be certified and individuals in the suit would have to come forward on their own." The named plaintiffs voluntarily dismissed their claims with prejudice. The case was then appealed to the U.S. Court of Appeals for the Ninth Circuit where the court overturned the lower court's decision and held that the district court misapplied the law and abused its discretion in removing the class action allegations.

As Microsoft v. Baker comes before the Supreme Court, the major question is whether or not appellate courts have the jurisdiction to review a class action suit after the plaintiffs voluntarily dismiss their claims with prejudice.

Featuring:

  • Cory L. Andrews, Senior Litigation Counsel, Washington Legal Foundation

Courthouse Steps: McLane v. EEOC - Podcast

Labor & Employment Law Practice Group Podcast
Karen Harned February 23, 2017

In McLane v. EEOC the Supreme Court is being asked to resolve a circuit split regarding appellate court standard of review of district court decisions to quash or enforce an EEOC subpoena.

Damiana Ochoa worked for McLane Company, a supply chain company. After returning from maternity leave, Ms. Ochoa was required to take a “physical abilities” test, which she failed three times. Subsequently, she was fired and Ms. Oschoa brought a gender discrimination claim against McLane. The district court denied part of one of the subpoenas EEOC issued to McLane. The 9th Circuit reversed, reviewing the district court’s decision to limit the scope of the EEOC subpoena “de novo,” which is contrary to the deferential review eight other appellate courts follow. The Supreme Court has been asked to resolve this circuit court split.

Karen Harned, Executive Director of the National Federation of Independent Business Small Business Legal Center, attended oral argument and joined us to provide her impressions of argument, examine the case, and explore potential impacts of the upcoming decision on employers, employees, and the EEOC during this Courthouse Steps Teleforum conference call.

Featuring:

  • Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center

 

Courthouse Steps: McLane v. EEOC

Labor & Employment Law Practice Group Teleforum
Karen Harned February 21, 2017

In McLane v. EEOC the Supreme Court is being asked to resolve a circuit split regarding appellate court standard of review of district court decisions to quash or enforce an EEOC subpoena.

Damiana Ochoa worked for McLane Company, a supply chain company.  After returning from maternity leave, Ms. Ochoa was required to take a “physical abilities” test, which she failed three times.  Subsequently, she was fired and Ms. Oschoa brought a gender discrimination claim against McLane. The district court denied part of one of the subpoenas EEOC issued to McLane.  The 9th Circuit reversed, reviewing the district court’s decision to limit the scope of the EEOC subpoena “de novo,” which is contrary to the deferential review eight other appellate courts follow.  The Supreme Court has been asked to resolve this circuit court split.

Karen Harned, Executive Director of the National Federation of Independent Business Small Business Legal Center, attended oral argument and will join us to provide her impressions of argument, examine the case, and explore potential impacts of the upcoming decision on employers, employees, and the EEOC during this Courthouse Steps Teleforum conference call.

Featuring:

  • Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center

Labor Issues in the Sharing Economy

Short video on the Sharing Economy
February 09, 2017

The sharing economy is changing the nature of work, yet it doesn’t fit clearly within laws governing labor and employment. In this short documentary, policy experts, lawyers, and sharing economy workers weigh in on the debate over "contractors v. employees" and what kind of protections workers need in this new economy.

Statewide vs. Local Right to Work Laws - Podcast

Labor and Employment Law Practice Group Podcast
Andrew R. Kloster, James Sherk, Ariana R. Levinson, Raymond J. LaJeunesse January 06, 2017

In 1957, an article in the Stanford Law Review asked the question: can counties and cities pass right to work ordinances under the Taft-Hartley Amendments to the National Labor Relations Act? The law explicitly allowed states to prohibit "agency-shop" contracts, but did not clearly address subdivisions of states. This question of federal preemption was addressed by courts only three times in more than fifty years. In that time, twenty-six states have passed statewide right to work laws. But recently, Hardin County in Kentucky passed, and the federal Court of Appeals for the Sixth Circuit upheld, a local right-to-work ordinance. Consequently, this sleeper issue may be hugely important in "purple" states across the country.Our panel of labor law and federalism experts talked about the law and politics of local right to work laws.

Featuring:

  • Mr. Andrew R. Kloster, Attorney, Washington, DC
  • Mr. James Sherk, Research Fellow in Labor Economics, The Heritage Foundation
  • Prof. Ariana R. Levinson, Professor of Law, University of Louisville Brandeis School of Law
  • Moderator: Mr. Raymond J. LaJeunesse Jr., Vice President & Legal Director, National Right to Work Legal Defense Foundation

 

Statewide vs. Local Right to Work Laws

Labor and Employment Law Practice Group Teleforum
Andrew R. Kloster, Raymond J. LaJeunesse, Ariana R. Levinson, James Sherk January 06, 2017

In 1957, an article in the Stanford Law Review asked the question: can counties and cities pass right to work ordinances under the Taft-Hartley Amendments to the National Labor Relations Act? The law explicitly allowed states to prohibit "agency-shop" contracts, but did not clearly address subdivisions of states. This question of federal preemption was addressed by courts only three times in more than fifty years. In that time, twenty-six states have passed statewide right to work laws. But recently, Hardin County in Kentucky passed, and the federal Court of Appeals for the Sixth Circuit upheld, a local right-to-work ordinance. Consequently, this sleeper issue may be hugely important in "purple" states across the country. Join our panel of labor law and federalism experts to talk about the law and politics of local right to work laws.

Featuring:

  • Mr. Andrew R. Kloster, Attorney, Washington, DC
  • Mr. James Sherk, Research Fellow in Labor Economics, The Heritage Foundation
  • Prof. Ariana R. Levinson, Professor of Law, University of Louisville Brandeis School of Law
  • Moderator: Mr. Raymond J. LaJeunesse Jr., Vice President & Legal Director, National Right to Work Legal Defense Foundation

The Future of Labor Law under the New Administration - Podcast

Labor & Employment Law Practice Group Podcast
David Fortney, Brent Garren, John S. Irving December 16, 2016

2016 was a big year for labor and employment law. In Friedrichs v. California Teachers Association, a deadlocked Supreme Court allowed a lower court ruling to stand, denying a First Amendment challenge to mandatory union dues. Meanwhile, President Obama’s Department of Labor released a new overtime regulation which would more than double the maximum salary required for exemption from overtime pay. The implementation of the regulation was halted just a few days before going into effect by a nationwide injunction by a federal district court judge.

With 2017 ahead and the general election behind, our experts discussed the future of labor law under the Trump administration.

Featuring:

  • Mr. David S. Fortney, Co-founder,Fortney & Scott, LLC
  • Brent Garren, Deputy General Counsel, Local 32 BJ, Service Employees International Union
  • John S. Irving, Of Counsel, Kirkland & Ellis LLP