26th Annual Employment Law Update Seminar Materials

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This comprehensive, stand-alone publication is direct from a May 2017 seminar.

Detailed explanation, in-depth analysis, and practical advice for both management and plaintiffs’ counsel in a number of today’s hot employment topics. Plus, an annual case law update and ethics.

Copyright © 2017 Virginia Law Foundation. All rights reserved.

LEGAL ETHICS ISSUES IN EMPLOYMENT LAW
Carla D. Brown
John E. Davidson
Thomas P. Murphy

Introduction

I. Implicit Bias as an Ethical Issue

II. Leave to Withdraw as Counsel

III. When the Lawyer is Asked to Agree to Certain Settlement Terms
       A. “Approved as to Form” - Boilerplate or Boiling Caldron?
       B. Can an Employer Even “Suggest” That the Claimant’s Lawyer
       Never Sue the Company Again?
       C. Insisting Upon Confidentiality on the Part of the Lawyers

IV. When Ethics and Whistleblowing Intersect

V. The Use of Testers in Employment and Housing Discrimination Cases

VI. Internal Investigations: An Ethical Minefield

VII. Ex Parte Contact With a Company’s Employees

ANNUAL UPDATE ON EMPLOYMENT LAW
John M. Bredehoft
Zachary A. Kitts

CONDUCTING WORKPLACE COMPLAINT INVESTIGATIONS
Elizabeth A. Lalik

I. Importance of Employment Investigations

II. When an Investigation is Necessary

III. International Considerations

IV. Who Should Conduct the Investigation

V. Understanding the Investigator’s Role

VI. Overview of Best Practices

VII. How the Investigation Should Be Conducted
       A. Make Sure You Understand the Nature of the Complaint at the
       Outset of the Investigation
       B. Handling Employees During the Investigation
       C. Plan the Investigation
       D. Witness Interviews
       E. Collect and Preserve the Evidence
       F. Carefully Review the Evidence
       G. Documenting the Results of the Investigation
       H. Concluding the Investigation

CONDUCTING EFFECTIVE INVESTIGATIONS OF WORKPLACE ISSUES
Karen Michael

HOW TO PICK AND PROSECUTE THE BEST EMPLOYMENT LAW CASES:
FROM THE PLAINTIFF LAWYERS’ PERSPECTIVE
Lisa Bertini
Harris D. Butler, III
John C. Cook

A. Marketing Your Practice

B. Selecting Your Clients

C. Selecting Your Cases

D. Fee Agreements

E. Representing Clients at the EEOC Stage

F. State or Federal Court and Why?

G. Settlement

H. Withdrawing from Representation

I. Litigating the Case from a Time and Business Perspective

J. Trying the Case

“I’M NOT CRAZY, I’M JUST A LITTLE UNWELL”
ADDRESSING MENTAL AND PSYCHOLOGICAL DISORDERS
IN THE WORKPLACE
Edward Lee Isler
Thomas E. Strelka

I. Overview of the ADA: Addressing Mental Health Issues
       A. Background
       B. Increase in ADA Litigation in Recent Years

II. What is Considered a Mental or Psychiatric Disability?
       A. Relevant Statutes and Regulations Regarding Mental
       Disabilities
       B. Recent Court Decisions Concerning What Constitutes a Mental
       Disability

III. Employee “Regarded As” Disabled
       A. The ADAAA Expands the Definition of “Regarded As”
       Disabled
       B. Employers’ Use of Employee Assistance Programs (EAP)

IV. Evaluating Mental Disabilities in the Workplace
       A. Does the Employee Have a Mental Impairment?
       B. Is the Employee a “Qualified Individual?”
       C. Is the Employee Entitled to a Reasonable Accommodation?
       D. Engaging in the Interactive Process

V. Possible Accommodations for Employees With Mental and Emotional
Disorders
       A. Job Restructuring
       B. Leave of Absence
       C. “Less Stressful” Work Environment
       D. Reassignment
       E. Additional Time to Accomplish Tasks

COUNSELING AND REPRESENTING EMPLOYEES WITH MENTAL,
EMOTIONAL, OR PSYCHOLOGICAL DISORDERS
Thomas E. Strelka

I. Depression and Anxiety Are Disabilities

II. Depression: Don’t Be Afraid of the Word
       A. “Merely Feeling Crummy” Is Not a Disability
       B. Managing Workload Accommodations
       C. Employees: Your Doctor Is Your Friend!
       D. Likely Unreasonable Accommodations
       E. Plaintiff’s Attorney Perspective: Depression as a Weapon

SMORGASBORD O’ EMPLOYMENT LAW TOPICS
Christine M. Burke
Christy E. Kiely
Teresa Burke Wright

Topic 1 - Employee Drug Testing in the Era of Marijuana Legalization

I. Overview of States’ Marijuana Laws
       A. Where is Marijuana Legal?
       B. The Law in Virginia and Surrounding Jurisdictions

II. Employers’ Ability to Regulate Marijuana Use
       A. Do Marijuana Legalization Laws Address Employment?
       B. What Do the Courts Say?

Topic 2 - Issues Relating to Employees in the Military

I. What Laws Govern Employees in the Military?
       A. Federal Laws
       B. State Laws

II. Key Provisions of USERRA
       A. Coverage and Scope
       B. Protection from Discrimination and Retaliation
       C. Reemployment Rights
       D. Employee Notice and Period of Service
       E. Benefits/Status During Leave and Upon Reemployment
       F. Protection Against Discharge
       G. Litigating a USERRA Case

III. Key Provisions of FMLA Military-Related Leave Obligations
       A. Qualifying Exigency Leave
       B. Military Caregiver Leave

Topic 3 - NLRA for the Non-Union Employer

I. Introduction
       A. Section 7 of the NLRA
       B. How Section 7's Principles Affect Handbook Policies/Rules
       C. A Word About Disclaimers

II. Specific Policies/Rules
       A. Confidentiality - Generally
       B. Confidentiality of Investigations
       C. Handbook Disclosure Provisions
       D. Solicitation/Distribution
       E. Speaking to the Media
       F. At-Will Employment Policies and At-Will Acknowledgments
       G. Recordings
       H. Harassment
       I. On-Duty Conduct
       J. Communications System
       K. Social Media
       L. Union Free Rules
       M. Handbook Receipts and Acknowledgments
       N. Bulletin Boards
       O. Conflict of Interest
       P. Speaking With Law Enforcement or Government Agencies

Topic 4 - What to Expect from Trump-Era NLRB

Topic 5 - Issues Facing Government Contractors

A. Updated Sex Discrimination Guidelines

B. Continued Focus on Pay Equity

C. Resources

PREGNANCY DISCRIMINATION ACT
J. Thomas Spiggle

RELIGIOUS ACCOMMODATION AFTER ABERCROMBIE & FITCH
Sarah Belger

I. Background of Supreme Court Cases Before Abercrombie & Fitch

II. Analysis of EEOC v. Abercrombie & Fitch, 135 S. Ct. 2028 (2015)
       A. Background of Case
       B. Holding
       C. Justice Alito’s Concurring Opinion
       D. Justice Thomas’s Dissent
       E. Post Abercrombie Hypothetical

III. EEOC Guidance
       A. Grooming and Attire Policies
       B. Religious Discrimination Against Muslims

IV. Cases After Abercrombie & Fitch
       A. Abeles vs. Metropolitan Washington Airports Authority
       B. EEOC v. Triangle Catering, LLC
       C. Roy v. Board of Community College Trustees of Montgomery
       Community College
       D. EEOC v. CONSOL Energy Inc.
       E. Akwei v. Burwell
       F. Johnson v. UPS, Inc.
       G. Rayyan v. VDOT
       H. Nobach v. Woodland Village Nursing Center, Inc.
       I. EEOC v. Saint Vincent Health Center
       J. EEOC v. Akebono Brake Corp.

Authors

Carla D. Brown

John E. Davidson

Thomas P. Murphy

John M. Bredehoft

Zachary A. Kitts

Elizabeth A. Lalik

Karen Michael

Lisa Bertini

Harris D. Butler, III

John C. Cook

Edward Lee Isler

Thomas E. Strelka

Christine M. Burke

Christy E. Kiely

Teresa Burke Wright

J. Thomas Spiggle

Sarah Belger