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American Bar Association



California's New E-Competence Rule

By Lisa Sherman and Benjamin Rose

Even carefully crafted legal hold and preservation letters to custodian employees are insufficient defenses where relevant evidence goes missing.

What the DOL's Proposed Changes to the White-Collar Exemption Rule May Mean for Employers

By Sonya Kwon and Jeremy Guinta

The proposed changes may cost employers billions of dollars.

Implementing the "Interactive Process" in the ADA Context

By Wendi D. Barish

The ADA puts people to the test when it comes to determining and explaining an appropriate reasonable accommodation for a disabled employee.

Covenant Conundrum

By Charles Diamond and Edward McDonough

Economic analysis brings new insights into familiar problems such as employee covenants not to compete.

The Economic Realities of Employment Class Actions

By Lisa Sherman

An uncensored look for employees and employers alike.

An Update on Supreme Court Labor and Employment Cases

By Damien Munsinger

A brief breakdown of the top decisions and cases granted certiorari that all labor and employment lawyers should be aware of.

Regular Rate: Navigating Risk Areas and Complexities

By Jeremy Guinta and Angela Sabbe

Examining errors frequently made by employers and litigators in calculating an employee's regular rate.

Three Strategies to Becoming a Legal Rainmaker

By Steve Fretzin

Advice from a seasoned lawyer.

Settling Claims under the FLSA: Is Court or DOL Approval Always Required?

By Gregory J. Northen

Whether a settlement agreement must be approved by a court or the DOL is a point of confusion that has been debated in several recent cases.

TMI: Avoiding the Dangers of Using Social Media to Recruit Employees

By Jeana Goosmann and Emilee Gehling

Unwary employers could be caught in unexpected litigation when using social-media sources to recruit and vet potential employees.

California Employment Law: No Place for the Wanderer

By James C. Eschen

The Golden State's law is generally more friendly to employees than federal law is.

Batson Challenges at Work: Jury Selection in the Realm of Employment Law

By Ikedi O. Onyemaobim

Employing effective strategies for eliminating jurors is essential.

The Impact of Medical Marijuana in the Workplace

By Sarah C. Matt

Medical-marijuana laws are reaching new highs.

Understanding Workplace-Bullying Legislation

By Randi Melnick

Twenty-six states have introduced anti-bullying bills that seek to prohibit mistreatment in the workplace.

Technology and Employee Privacy Concerns: The Current State of Uncertainty

By Teresa D. Teare and Colin P. Glynn

BYOD policies raise a host of issues that both employers and employees should consider.

Obtaining Witnesses' Statements in Internal Investigations of Misconduct

By Gerald Morales

What to do when an employee witness does not want to get involved.

Hacking, Wiretapping, and Other Misdeeds as "Protected Activity"

By Kevin J. O'Connor

Decisions to discipline or fire employees engaged in such activity should be made only with the assistance of qualified legal counsel.

Requests for Accommodation: Implementing the ADA's Interactive Process

By Kathleen M.W. Schoen

Communication, creativity, and effort are essential.

Withstanding Legal Scrutiny in Employer-Conducted Background Checks

By John F. Lomax Jr. and Jennifer R. Phillips

It's a good idea to revisit your forms and polices to ensure compliance.

When Can an Employee Quit and Still Sue for Wrongful Discharge?

By R. Scott Oswald and Nicholas Woodfield

The constructive-discharge doctrine has been a boon to employees, helping to keep employers honest. But it is not a panacea.

Social Media: Protecting Trade Secrets and Proprietary Information

By Paul Cowie, Bram Hanono, and Dorna Moini

A robust BYOD policy can save you a lot of trouble.

$300,000 Sanctions Award in Title VII Case Reignites Rule 3.7 Discussion

By Lorene F. Schaefer

A cautionary tale for employers who use investigation counsel as defense counsel.

The Continued Relevance of the NLRA to Non-Union Workplaces

By Michael C. Duff

All employees have rights under the act, not just unions.

Responsibly Handling FMLA Intermittent-Leave Requests

By Don Davis

Failing to treat leave requests with due care can result in litigation that proves far more costly than the leave itself.

Implementing the Interactive Process under the ADA

By Tiffani L. McDonough

Providing a reasonable accommodation to a qualified individual with a disability is considered one of the most important statutory requirements of the ADA.

Recent Developments in Religious Accommodation in the Workplace

By Tamara R. Jones and Elizabeth A. Erickson

Claims of failure to accommodate a sincerely held religious belief are on the rise.

Watch This? Video Interviewing and the Employment Lawyer

By James O'Reilly

Video screening may save you from having to defend an EEO claim.

Are Volunteers Considered Employees under the FMLA?

By John S. Austin

The Sixth Circuit thinks so.

The Keys to a Healthy Corporate Wellness Program

By Joseph A. Kroeger and Matt P. Milner

Many sophisticated employers believe that wellness programs can reap benefits for a company and its employees.

Terminating an "Irresistible" Employee

By Christopher Carcich and Carly Skarbnik Meredith

The "my wife made me do it" defense comes into play in an Iowa court.

Enemy of the People: Pleading the First Amendment Retaliation Claim

By Christopher A. Tinari and Michael R. Miller

Understand fact patterns before engaging in a lengthy and expensive discovery process.

Website Accessibility and the Americans with Disabilities Act

By Joseph J. Lynett and John A. Snyder

How the ADA applies to websites of "places of public accommodation" and state and local government.

Implementing an Effective Workforce Reduction

By Teresa D. Teare and Bryan M. O'Keefe

The legal ramifications are complicated and require a nuanced understanding of the law.

Bad-Faith Conciliation and Dilatory Tactics in Agency Settlement Negotiations

By Cynthia Ozger-Pascu

Courts are no longer willing to afford absolute deference to the government's position.

Litigating Front-Pay Claims in Employment Discrimination Cases

By Kevin J. O'Connor

Front-pay claims can constitute a substantial portion of a jury's award.

Learning to Love Direct Examination

By Sara E. Kropf

Make this moment count.

EEOC Issues Final Rule on Disparate Impact and RFOAs

By James C. Bailey

The rule codifies Supreme Court holdings and offers guidance on applying the defense.

Piling On: Admission of "Me Too" Evidence

By Kevin J. O'Connor

Be wary of testimony from co-employees.

Harsh Rulings Against H-1B Employers For LCA Violations

By Anthony F. Siliato and Scott R. Malyk

Willful violations and even careless mistakes can result in the award of back pay to the foreign-national worker.

MLR in Group Markets: Will Many Plan Participants Receive Rebates?

By Wayne Jacobsen, Melissa Hulke, and Sonya Kwon

Recent data show $700 million will be going to only a small percentage of participants.

Tales from the Great White North: Terminations in Canada

By Karen M. Sargeant

"At will" employment is unheard of above the 49th parallel.

MLR Rebates: Do Employers Bear the Distribution Burden?

By Wayne Jacobsen, Melissa Hulke, Sonya Kwon

An omission from the August 2012 regulations has effectively shifted the burden of distribution from insurance issuers to employers in the small and large group markets.

SEC Shuts Door on FINRA Collective Action Arbitration

By Todd M. Church

Whatever doubt may have remained regarding whether “collective action” employment claims may be subject to arbitration by FINRA has now been extinguished.

Employee Theft Claims under the CFAA: The Latest Chapter

By Kevin J. O'Connor

The Nosal decision substantially increases the odds that the U.S. Supreme Court will weigh in on critical issues of statutory construction in the near term.

Technological Advances in Employment Eligibility Verification

By Michael J. Lehet

E-Verify and SSNVS are among the tools employers are using to determine authorization to work in the United States.

How Far May a State Labor Law Reach?

By William A. Munoz and Kerri L. Ruzicka

A recent decision may create a minefield for employers when it comes to nonresident employees performing work in California.

Lessons Learned from Johnson v. City of Memphis

By Katie Kiernan Marble

Avoiding discrimination and correcting past discrimination in promotional processes is an ongoing challenge.

When Can a Former Employee Challenge a Restrictive Covenant?

By Michael J. Miles

The question of how to deal with a potentially invalid or overbroad restrictive covenant is a difficult one.

The NLRB and Social Media: A Work in Progress

By Anthony M. Rainone and Jason Watson

Employers need to draft clearly defined social-media policies.

Post-Dukes: Employment Class and Collective Action Decisions

By John A. Ybarra and Michael A. Wilder

Courts are now reviewing the merits of putative class claims when evaluating class certification motions and requiring plaintiffs to narrowly tailor their proposed class.

Misappropriating Data to Further a Claim—Theft or Protected Conduct?

By Kevin J. O'Connor

There is an increasing risk that an employee pursuing an employment claim will gain access to sensitive data and turn it over to counsel for use in the litigation.

A HIPAA Privacy Primer for Health-Related Employment Claims

By Laurie E. Martin

Parties and counsel on both sides of health-related employment claims must be familiar with the contours of HIPAA.

Could Employee Criminal Background Checks Violate Title VII?

By Holly J. Clemente

The issue of liability for employers who use background checks when making hiring decisions, and rights of employees who are denied for a conviction, remains unclear.

The ADA and Employer Websites

By Michael P. Goodwin

The growth of online recruiting and web-based job functions may pose barriers for individuals with disabilities, particularly individuals with visual impairments.

Supreme Court Rules in Favor of Employees in FLSA Complaint Case

By John A. Ybarra and Michael A. Wilder

The U.S. Supreme Court held that the statutory phrase "filed any complaint" includes oral as well as written complaints under the FLSA.

Shedding the Aura of Doom and Becoming a Likeable Lawyer

By Carol Dominguez Shay

This is a starting point to help you put down the scythe, shed the aura of doom that your clients may now sense, and turn yourself into a welcomed business asset.

City of Ontario v. Quon—The Supreme Court’s First Foray into Digital Privacy

By Cameron G. Shilling

One crucial lesson for businesses to learn from this case is they need well-conceived policies establishing employee expectations with respect to digital privacy in the workplace.

Fitness-For-Duty Exams Upheld

By Michael R. Lied

In two recent cases, federal appellate courts rejected legal challenges to fitness-for-duty examinations.

Quon Provides Guidance, but Not Answers

By Philip P. Gordon and William J. Simmons

The ruling provides useful guidance for employers assessing privacy rights in an ever-changing landscape of electronic devices and media.

DOL Applies FMLA Rights to Gay Parents and Others

By Jeff Nowak

The DOL issued an administrator’s interpretation clarifying the definitions of “son or daughter” and “in loco parentis” under FMLA.

Company Lawyers Unlawfully Intercepting Attorney/Client Emails

By Michael R. Lied

Employers need to make clear whether their electronic-communications policies cover private email or private use of social-networking sites.

Safe Harbors Shrinking for Pro Hac Vice Litigators

By Brian F. Toohey

State supreme courts and bar-governance organizations have or soon will have requirements in place that make pro hac vice admission harder.

A Changing Perspective: Transgender Discrimination under Title VII

By Daniel E. Harrell

Transgender discrimination has become increasingly visible in recent years based on an upsurge in interest, publicity, litigation, and proposed legislation related to the issue.

Reflections on the 30th Anniversary of In re Eimers

By Larry D. Smith

Eimers is an important benchmark in a longer journey. There are many challenges still facing gay attorneys.

The Impact of Gross: Is It Too Much to Stomach?

By Anthony M. Rainone

Gross v. FBL Financial Services, Inc., which held that the ADEA, unlike Title VII, does not provide a cause of action for mixed-motive age discrimination.

Hertz: Supreme Court Clears Road to Federal Courts

By John Ybarra, Amanda Wright, and Milton Castro

The Supreme Court ruled that a corporation’s principal place of business is not where most of its business is conducted, but where its so-called nerve center is located.

Court Approves Lower Base Rate Exchanged For Desired Shift

By Ann Bowden-Hollis

A recent FLSA decision from the Ninth Circuit should be of interest to labor and employment practitioners, especially in the healthcare industry.

Third Circuit Rejects “Puffery” Defense in FLSA Overtime Matter

By Neha Dalal

On February 2, 2010, the U.S. Court of Appeals for the Third Circuit ruled that a sales representative for a Johnson & Johnson subsidiary was not entitled to overtime pay.

President Obama Nominates Two to Federal Courts of Appeal

By Todd P. Photopulos

On February 24, 2010, President Obama nominated Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit.

ICE Audits on the Rise

By Todd P. Photopulos

U.S. ICE is increasing its planned audits nationwide, both for critical infrastructure-alerting business owners and H1B-sponsoring employers.

No ADA Violation for Termination of Chronically Absent Alcoholic

By Nicole Crawford

The Second Circuit held that chronic absenteeism, even if due to alcoholism, can render an employee not otherwise qualified under the ADA.

Airline Flight Crews Now Covered under the FMLA

By Robert C. Carpenter

The new act amends the FMLA to close a loophole that excluded airline flight crews from coverage under the FMLA because of the way flight crews’ hours are calculated.

Planning Furloughs to Minimize Risk

By Samuel Rosenberg

Governor Jon Corzine of New Jersey announced his intention to impose a furlough plan, under which all state workers would be temporarily laid off, one day per month.

No Compensatory/Punitive Damages, Jury Trial in Retaliation Claims

By Todd Sorensen

The Ninth Circuit ruled in Alvarado v. Cajun Operating Co. that ADA retaliation claims are limited to equitable relief.

Practical Advice to Address the Lilly Ledbetter Fair Pay Act

By Doug Darch

The LFPA has unleashed a tsunami of anxiety and defensive reactions over concerns about claims based on alleged long past discrimination in the workplace. Here are the facts.

Why Leveraging E-Discovery in Employment Proceedings Matters

By Michael Swarz

To put it mildly, electronic discovery (e-discovery) is a subject that has recently attracted a tremendous amount of consideration in both the corporate and legal sectors.

Tweet, Tweet, You’re Fired

By Patty A. Wise

Graphic designer Heather Armstrong was terminated for violating her company’s zero-tolerance policy for “negativity” in her anonymous blogging on dooce.com.

At Term’s End, Supreme Court Rewrites Employment Standards

By Lou Michels

In two recent cases, the U.S. Supreme Court has sharply redefined how certain types of employment discrimination lawsuits must proceed.

What Employers Need to Know about Conducting Background Checks

By Eva Shih Herrera

The scope of the Fair Credit Reporting Act (FCRA) has expanded to provide greater privacy protection to consumers.

Controlling Employees’ Use of Company Email Systems

By Gary L. Simpler and Teresa D. Teare

A split NLRB issued a 3–2 decision establishing that employers have the right to ban “non-job related solicitations” sent by employees on the company’s email system.

What Boundaries Have You Set for Your Own Social Media Use?

By Molly McDonough

Social networking is fairly new for lawyers, and there aren't many best practices for using the medium for client development and professional networking.

The Credit Crisis and WARN’s Business Circumstances Exception

By Timothy H. Savage and Ross H. Friedman

Thousands of employees from powerhouse firms have lost their jobs, as have thousands more from other firms and companies associated with mortgage lending and construction.

Lilly Ledbetter: A New Chapter in Wage-Discrimination Litigation

By Alison N. Davis

Ledbetter believed that over the course of her employment, she was paid less than male coworkers because of poor performance evaluations based upon her sex.

Employee Witnesses in Internal Investigations Safe from Retaliation

By Darryl G. McCallum

The Supreme Court held that employees who simply respond to questions during an employer’s internal investigation are protected from retaliation.

U.S. Department of Labor Issues New FMLA Regulations

Darryl McCallum

The DOL finalized its regulations concerning the Family and Medical Leave Act, which revise the existing regulations concerning the FMLA.

ADA Amendments Set to Take Effect on January 1, 2009

By Darryl McCallum

In September 2008, Congress passed the ADAAA, making it much easier for individuals to establish that they are "disabled" under the ADA. The ADAAA takes effect January 1, 2009.

New Regulations for E-Verify for Contractors and Subcontractors

By Darryl McCallum

Pursuant to this new rule, federal contractors and subcontractors will be required to use the E-Verify system beginning January 15, 2009.

Statutes And Recent Developments In National Origin Discrimination

By Paulo B. McKeeby

This paper will briefly address issues in the context of a summary of the statutes that prohibit national origin discrimination and an overview of recent trends and developments.

Practical Tips for Avoiding SOX Whistle-Blower Liability

By Mark Robertson and Ryan Rutledge

ive practical tips for practitioners to assess the viability of a potential retaliation claim.

Effectively Responding to an EEOC Charge

By Brian Koji

Helpful tips when responding to an EEOC charge.