Workplace Prof Blog

New ABA Work for Practitioners: Discovery from Current and Former Employees

Discovery from Current and Former Employees by Susan J. Becker

PC 310347
Publication Date:  2005
ISBN:  1-59031-485-95
381 pgs
$75 LT members; $85 regular price

Book Description: Discovery becomes especially complex when a corporation, partnership, association or similar organization is a party to a dispute. Counsel often cast a wide discovery net to include current and former employees who possess critical information and documentation. The role of these employees presents myriad legal, ethical and practical concerns. This unique guide helps practitioners navigate the complex rules and guidelines governing discovery of employees, whether they are current or former employees of of a client or an adversary.

Focusing solely on current and former employees, the book is divided into three major sections: (1) informal discovery, with primary focus on ex parte interviews of current and former employees; (2) formal discovery, including new mandatory disclosure rules as well as traditional tools such as interrogatories, depositions, and subpoenas; and (3) appropriate breadth of employee discovery in light of constraints imposed by attorney-client privilege, work product doctrine, trade secret protection, private law and other privileges.

The book provides a summary of relevant legal authorities, including case law and ethics rules, that support various positions and perspectives on recurring issues related to discovery of current or former employees. Each section of the book also includes “best practices” to help lawyers negotiate this ever-changing area of discovery.

- Joe Hodnicki

DOL Solicits Nominations for 2006 ERISA Advisory Council

From the Press Release:

The U.S. Department of Labor is soliciting nominations to fill five three-year vacancies on the Advisory Council on Employee Welfare and Pension Benefit Plans, known as the ERISA Advisory Council. The deadline for receipt of nominations is Oct. 1, 2005.

Established by the Employee Retirement Income Security Act (ERISA), the bipartisan council consists of 15 members appointed by the Secretary of Labor to represent specified groups and fields that are involved in the employee benefits world. The council meets four times a year and makes recommendations to the U.S. Secretary of Labor regarding functions carried out under ERISA.

Nominations are being accepted for one vacancy each to the groups/fields representing employers, employee organizations, corporate trust, investment management, and the general public.

Interested persons or organizations may nominate qualified persons for membership. Recommendations must be submitted by letter, resolution or petition and signed by the person or, in the case of a nomination by an organization, by the group's representative making the recommendation. The nomination should briefly describe the candidate's qualifications, the group or field the candidate is being nominated for, the candidate's contact information, availability to serve, and the candidate's political party affiliation. ERISA mandates that no more than eight members of the council may represent one political party.

Nominations should be submitted to Larry Good, Executive Secretary ERISA Advisory Council, Room N-5623, U.S. Department of Labor, 200 Constitution Ave., N.W., Washington, DC 20210

A Quick Look at ArbitrationLaw Online

According to the publisher, "ArbitrationLaw Online™ is your complete up-to-the-minute research resource for information and commentary. [It] contains the finest collection of commentary and analysis on all facets of international commercial arbitration and dispute resolution.. [It] contains the finest collection of commentary and analysis on United States arbitration and ADR available online.  [It] Is updated with new and revised material on a daily basis. [And] the database currently provides over 50,000 pages of fully searchable materials, 35,000 pages of it commentary and analysis."

Cost starts at $995 for single location, 1-5 user license.

Maybe the service is all that it says it is if you more patience than I have. I found it virtually unusable, in part, because it's architecture is circa 1995 as is its document display. I'm not sure I would use this service even if it was provided free.

- Joe Hodnicki, reprinted from Law Librarian Blog.

WARN Claims Restated Against Secured Lender

BNA is reporting on a Sixth Circuit ruling that reinstated former employees' Worker Adjustment and Retraining Notification Act (WARN) claims against a group of lenders that allegedly took over the management of a failing Ohio manufacturing company before it laid off its workers and closed its plant without providing any notice (Smith v. Ajax Magnathermic Corp., 6th Cir., No. 04-3348, unpublished opinion 7/26/05).

According to the BNA report, the appeals court applied the standard developed by three other circuits, which have held that a secured lender might be liable under the WARN Act if the lender becomes involved in operational decisionmaking and assumes responsibility for overall management of the business.

- Joe Hodnicki

The El Monte Raid Ten Years After

Robert Scheer is reporting that the two California officials who led the El Monte raid that freed "scores of Tai slave workers" from a garment factory a decade ago, Victoria Bradshaw and Jose Millan, will be marking the occasion by conducting raids throughout the state of California to enforce labor laws all too often ignored to increase profits.

Joe Hodnicki

Hispanic Women at Work

Hispanic Women at Work is NCLR's first statistical brief to examine the employment status of the nearly 20 million Latinas living in the U.S. The brief shows the significant contributions that Latina workers are making, not only to the financial growth and security of their households, but also to the U.S. economy."

Source: The National Council of La Raza (NCLR)

- Joe Hodnicki. Thanks to Ron Jones (U Cincinnati) for the tip.

Schwarzenegger Pushes Labor Law Enforcement

To "shut down the underground economy," Governor Arnold Schwarzenegger has announced a new multiagency effort to enforce state labor laws namely, the Economic and Employment Enforcement Coalition. The Coalition also has as its objective the enforcement of state tax laws.

Read more about it the Mercury News.

CAFTA One Step Closer to Reality

Yesterday, the US-Central American Free Trade Agreement (CAFTA) was signed into law, making it the first official trade pact between the US and Central America. El Salvador, Honduras and Guatemala have already ratified the agreement, which will go into effect as soon as a date is agreed upon. The remaining three countries, Nicaragua, the Dominican Republicand Costa Rica have two years to approve the pact.

- Joe Hodnicki

Waiver of FMLA Rights Barred

BNA is reporting on a decision in the Fourth Circuit that upholds DOL regulation barring waiver of employee's FMLA rights. See Taylor v. Progress Energy Inc., 4th Cir., No. 04-1525, July 20, 2005.

Lawsuit Alleges ADA Violations At Oklahoma State Stadium

KTUL-TV is reporting that an Oklahoma State University graduate alleges in a federal lawsuit that the school's football stadium violates the Americans with Disabilities Act.

- Joe Hodnicki

EEOC Addresses Cancer in the Workplace Under ADA

Recently the EEOC issued its fourth Q & A on the ADA's application to specific diseases. This one covers persons with cancer in the workplace. The new publication is available on EEOC's web site at http://www.eeoc.gov/facts/cancer.html.

MSHA Proposes Rule to Reduce Miners’ Exposure to Asbestos

The U.S. Mine Safety and Health Administration (MSHA) has issued a proposed rule that would reduce by 20 times miners' permissible exposure limit (PEL) to asbestos. The rule would lower the current exposure limit for eight-hour work shifts from two fibers per cubic centimeter to 0.1 fibers per cubic centimeter. The proposed rule would affect miners at all metal and nonmetal mines, surface coal mines, and surface areas of underground coal mines in the United States.

- Joe Hodnicki

SHRM Conference Presentations

An old friend, Bill Schurgin (Seyfarth Shaw) and several of his colleagues have made their 2005 SHRM Annual Conference presentations available:

• Camile A. Olson and William P. Schurgin (Seyfarth Shaw) presented The Fair Labor Standards Act Revised: One Year Later-Lessons Learned

• Stacy D. Shartin (Seyfarth, Shaw) presented Sarbanes-Oxley for the Human Resources Function.

- Joe Hodnicki

ECI for June Up 0.7 Percent

Total compensation costs for civilian workers increased 0.7 percent from March to June 2005, seasonally adjusted, the same increase as  occurred between December 2004 and March 2005, the Bureau of Labor Statistics of the U.S. Department of Labor reported today.  Benefit costs between March and June rose 0.8 percent, compared with the gain for wages  and salaries of 0.6 percent. 

Increases in benefit costs accounted for over 35 percent of the rise  in compensation costs for civilian workers from March to June 2005.  Among  private industry workers, benefit costs contributed nearly 35 percent of  compensation gains during the quarter; compared with nearly 60 percent  from December 2004 to March 2005.  Health insurance costs constituted  about 10 percent of the compensation gains during the quarter.  Among  State and local government workers, benefit costs comprised nearly one- half of compensation cost gains during the March to June period, virtually  unchanged from the December to March quarter.  Health insurance costs  represented nearly one-third of the gain in compensation costs from March  to June 2005.

Details at BLS Press Release.

- Joe Hodnicki