Thursday, April 1, 2010

Significant Impressions from the Last Row of the LACBA Symposium

Old habits die hard I guess. I have always preferred the last row. Despite the fact that I teach seminars for a living and always appreciate the wide-eyed, enthusiastic attention of the people who sit in the front row of my own programs, I always seem to want to sit in the very last row when I am attending someone else’s program. Saving the self-analysis for a later date, yesterday, I spent the entire day in the last row of various employment law Symposium sessions given by the Labor & Employment Group of the Los Angeles County Bar Association. Some of the significant impressions that I made include:

1) Plaintiffs’ lawyers had more to be pleased about last year than defense counsel.
After listening to the first panel discuss the recent developments in statutory and case law from the year 2009 and early 2010, most of those cases had holdings that expanded employee’s rights to the dismay of employers. A typical repartee between the panelists, Gina Browne, Esq. (plaintiffs’ counsel) and Tracey Kennedy, Esq. (defense counsel) was “I love this case,” - “I hate this case,” respectively, as they discussed each holding. For example, when discussing A.M v. Albertsons, LLC 178 Cal. App. 4th 455 (2009) Browne cheered the court’s finding - that an employer’s failure to accommodate an employee’s disability on a single occasion did not preclude a case under the Americans with Disabilities Act and the California Fair Employment and Housing Act - while Kennedy look dismayed. Clearly, the fact that an employer, 9 times out of 10, accommodated an employee’s special needs did not impress the California Court of Appeal when the single refusal to allow an employee to go to the bathroom as a part of her reasonable accommodation led to an award of$200,000 dollars. This happy/sad banter set the tone for this rest of the case law discussions.

2) Employee privacy challenges are still a tremendous threat to employers as the impact of technology and social media have provided a new, somewhat legally, untested dimension to the issue. All employment lawyers’ eyes and ears are on what the California Supreme Court will do when it hears Quon v. Arch Wireless Operating Co. on April 19, 2010. Although all the panelists agreed that employers need “policies” to protect their client/employers from liability, the issue of how specific and what to include in the policies seemed to be less clear. The concern was over whether a “kitchen sink” policy will sufficiently protect the company in this day and age and whether it is even practical in 2010 when the expectation of privacy over personal/ professional devices, such as iphones or flash drives is so unclear. The panelists also discouraged the use of social media websites for recruiting purposes in light of the potential for claims against the employer made by rejected applicants. As discussed in my previous blog, Elvis Has Left the Building, this is an attitude that I do not necessarily agree with, as I think it is outdated and not "proactive".

3) Competition among “neutrals” is stiff.
The program designed for attorneys who mediate, arbitrate or act as neutral investigators was packed. Most likely, this is a commentary on the recessionary economy. Certainly, some attorneys are looking for new ways to augment their income by becoming “neutrals.” I was personally grateful for the time the panelists devoted to ineffective marketing strategies. That saved me a bundle on advertising costs alone. It also made me grateful for the investment made in my website and blog as one panelist, Apalla Chopra, Esq. specifically stated that she “likes a good website.”

4) The program was thorough and it is impossible in one day to cover every topic (and please everyone).
Nevertheless, items that I was surprised that the program did not include were 1) a discussion of future legal trends in the practice of labor and employment law, such as the increase in wage and hour class action filings, 2) a discussion of the recent Healthcare Reform Act and how it will impact employer’s responsibilities towards employees, 3) an honest discussion of the impact that the recession has had on labor and employment law on the whole and 4) time for questions. Of course, I was not able to attend all the sessions, so perhaps these topics were covered in portions of the Symposium I did not get to see..from the last row.

Did you also attend? What were your impressions?

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