Page 1

Inside 1

72nd NYU Annual Conference on Labor: AI and Automation: Impact on Work and Workers

2

Joint Conference with HR Policy Association on AI and Evolving Workplace Technology

3

Joint Conference on Improving Employment Arbitration with the American Arbitration Association

12

Dealing With Repetitive Claims in Employment Arbitration: A Role for Non-Mutual Issue Preclusion by Samuel Estreicher

16

Recent Supreme Court and DC Circuit Decisions Concerning Arbitration by Samuel Estreicher and Holly H. Weiss

18

German Model of Codetermination: Lessons for the US?

19

Remembering the Labor Law Group at Cravath (Before They Broke Up) by Frank Cummings

NYU Labor and Employment Law News A publication of the Center for Labor and Employment Law Faculty Director: Professor Samuel Estreicher Issue 16 • Winter/Spring 2020

72nd NYU Annual Conference on Labor: Artificial Intelligence (AI) and Automation: Impact on Work and Workers

O

n June 13-14, 2019, the Center for Labor and Employment Law (“Labor Center”) hosted its 72nd

Annual Conference on Labor devoted to the theme: Artificial Intelligence (AI) and

Automation: Impact on Work and Workers. The conference was supported in part by Charles River Associates, HR Policy Association, and Jones Day. Solicitor of Labor Kate O’Scannlain, US

NLRB Chair John F. Ring, Frederick Braid LLM ’79, Prof. Sam Estreicher and Mark Brossman ’78 LLM ’81

19

Department of Labor, gave the keynote

20

National Labor Relations Board (NLRB)

board, (3) enhancing alternative dispute

John F. Ring and NLRB General Counsel

resolution programs, and (4) utilizing

Peter Robb. Chairman Ring shared news

rulemaking such as for joint employer stan-

of recent NLRB initiatives, emphasizing

dards. The board is keenly interested in new

processes for (1) expediting cases, noting

ideas on how to best advance the purposes

difficulty of delays caused by turnover and

of the National Labor Relations Act.

NYU’s 22nd Annual Employment Law Workshop for Federal Judges

UN Internal Justice Council by Carmen Artigas and Frank Eppert

22

Equitable Health Savings Accounts: Bridging the Left-Right Divide by Samuel Estreicher and Clint Wallace

24

Steven Greenhouse’s new book: Beaten Down, Worked Up

25

Board News

address. Other senior government representatives included Chairman of the

resolution of cases before they get to the

other outside influences, (2) encouraging

Continued on page 2.

UPCOMING Re-Training America for the Future of Work: April 30, 2020 featuring John P. Pallasch, US Department of Labor, Employment and Re-Training To register: http://bit.ly/ReTrainingAmericaNYULaborCenter

NYU 73rd Annual Conference on Labor: Pay Equity & Issues of Inequality at Work June 11-12, 2020


Top Left Matthew Bodie, Heather Sussman, Michael Gray, Sam Estreicher, Frederick Braid LLM ’79, Pauline Kim, Laurie Berke Weiss

Delegation from Ono Law School, Israel with Labor Center Executive Director, Torrey Whitman

Continued from cover. The first day of the conference addressed the job displacement effect of AI, in a panel led by economist Orley Ashenfelter (Princeton University), Cynthia Estlund (NYU Law), and Robert Seamans (NYU Stern School of Business). The afternoon sessions explored possible solutions to mitigate impact on workers, such as improving the earned income tax credit, expanding employee stock ownership, applying a robot tax on companies that replace jobs with “robots,” and implementing universal basic income. There was also a look at how companies are using AI, with comments by Robert O’Hara (Epstein Becker), David Skanderson (Charles River Associates), Kelly Trindel (pymetrics), and Roger King (HR Policy Association), moderated by Johnna Torsone (Pitney Bowes). The second day of the conference laid out the challenges that ensue when employees hand over personal information to their

US Solicitor of Labor Kate O’Scannlain takes questions from the audience.

employer as the line between personal life and work gets harder to keep distinct. Matthew Bodie (St. Louis University Law) described

artificial intelligence impact was also the subject of

the employees as sources of AI data, objects of AI decision-making,

The Labor and Employment Landscape as Workplace Tech-

and users of AI processes. Pauline Kim (Washington University

nology Evolves and Expands, a joint conference of the HR Policy

Law) outlined the risks of discrimination with AI and the algo-

Association and the Labor Center held on October 24, 2019. The

rithms behind these applications. Michael J. Gray (Jones Day)

conference explored the legal and human resources ramifications,

moderated the panel with comments from Laurie Berke-Weiss

practical issues, and policy concerns arising from this increasing

(Berke-Weiss Law) for the point of view of employees and Heather

trend. The HR Policy Association is a public policy organization

Egan Sussman (Orrick) on how to help clients through laws that

that brings together chief human resource officers representing

impact privacy around the world. The Annual Conference closing sessions included an insightful

the largest employers doing business in the US and globally to discuss how HR practices and policies should be improved, and

address by former EEOC Chair Jenny R. Yang ’96 and a discussion

to create a framework for HR initiatives that promotes job growth,

on professional responsibility issues moderated by former EEOC

employment security, and competitiveness.

General Counsel David Lopez (Rutgers Law), with comments by

The event, held at NYU School of Law, was attended by almost

Aryeh Friedman (Dun & Bradstreet), Adam Klein (Outten & Golden),

70 HR executives and employment law counsel. Labor Center

Aisling McAllister (Bond Schoeneck), and Julia Stoyanovich (NYU

Faculty Director Professor Samuel Estreicher and HR Policy

Tandon School of Engineering). n

Association Chief Executive Officer Daniel V. Yager opened with

The Labor Center is pleased to announce an agreement with the

employment arena generally. Panelists then addressed specific

an overview of recent legislative developments in the labor and ABA and the St. Louis University School of Law to have the pro-

legal and policy issues relating to AI in the workplace; the various

ceedings of the NYU Annual Conference on Labor published in a

ways employers are using AI in areas such as employee recruiting,

specially-dedicated annual issue of the ABA’s Journal of Labor

hiring, evaluation, and promotion; and the impact of technology

& Employment Law.

on displacement of workers and workforce engagement. n

2

NYU Labor & Employment Law · Issue 16 · Winter/Spring 2020


Addressing Challenges to Employment Arbitration

Addressing Challenges to Employment Arbitration The Labor Center collaborated with the American Arbitration Association (AAA) to host a joint policy conference, Addressing Challenges to Employment Arbitration, on October 25, 2019, at NYU Law. Almost 120 people registered for this event. The conference aimed to identify areas of consensus that would improve the acceptability of employment arbitration and address some of the recent criticisms aimed at it. While some issues defied consensus, several others elicited from the attendees innovative ideas and a sharing of perspectives. Some issues raised may benefit from possible amendment to the AAA’s rules or procedures. For more about the AAA: https://www.adr.org/about.

T

he Labor Center’s unique capacity to provide a nonpartisan, non-ideological forum offered panels with an employer- and employee-side attorney, along with

an arbitrator, for balanced discussions. Those discussions were

informed, in part, by a pre-conference survey sent to the Labor Center and AAA’s respective mailing lists. The interactive sessions included Top Challenges, Dealing with Pro Se Claimants; Cost Issues; and a sharing of positive experiences, What Works? The conference faculty included NYU Law alums Mark Brossman ’78, LLM ’81 (Schulte Roth & Zabel), Wayne Outten ’74 (Outten & Golden), Zoe Salzman ’07 (Emery Celli Brinckerhoff & Abady), and Martin Scheinman ’79 (Scheinman Arbitration & Mediation Services). Stirring up the morning energy, a group of NYU Law students quietly unveiled a banner relaying their objections to what they termed “forced” arbitrations and non-disclosure agreements, including by law firms. Faculty Director Samuel Estreicher acknowledged the students’ concerns and encouraged them to stay to listen to the different views.

Continued on page 4.

Students “speak” out in a peaceful protest

Newsletter of the NYU Center for Labor and Employment Law

3


Spaur

Stater

Scheinman

NYU Law third-year students Sara Spaur and Megan Stater served as conference reporters for the Labor Center. NYU Labor & Employment Law News is pleased to share their shorthand report below with our readers. Points raised by various attendees are noted as “Audience”; ideas proposed are in bold:

Gray

Salzman

Panel 1: Top Employment Arbitration Challenges and Solutions Facilitator: Martin Scheinman ’79 Presenters: Michael Gray (Jones Day) and Zoe Salzman ’07 (Emery Celli Brinckerhoff & Abady) Scheinman: In the last 5-7 years there’s been a change in views on arbitration. Senators etc. say they will either fix it or make it illegal, and “it’s your fault.” We should be able to say that what is happening right now isn’t something that we are necessarily

Estreicher

Newhall

Tuchmann

Welcome and Opening Remarks Professor Samuel Estreicher; Christine L. Newhall, Senior VP, Labor, Employment Elections, AAA; and Eric P. Tuchmann, Senior VP, General Counsel, and Corporate Secretary, AAA Estreicher: The focus is on things we can do to improve this process. We will not be proposing actual language to amend the AAA rules. We’ve tried to have balanced panels.

Newhall: In 2018, around 3,500 cases were arbitrated; there’s been a growth in cases in 2019, 4,184 cases so far. There’s also been a growth in group cases, but many of them don’t go forward; filing requirements are not met. What has changed: the AAA offers options like mediation, process masters, and discovery masters. Parties agree to try options and settle disputes.

Tuchmann: AAA views itself as a not-for-profit organization whose

proud of. We should be honest. And if you’re an arbitrator, many arbitrators don’t have the bandwidth to do cases today by themselves. The tradition of arbitrators being sole practitioners is unrealistic and parties should know if you are getting assistance. But we can fix the process.

Salzman: Skeptical about the ability of procedural change to address what ails employment arbitration. Fundamental points about public perception of arbitration: • Privatized justice system is fundamentally un-American; • There are tensions around privatizing amplified by inherent power imbalance between employee and employer; • To address issues of huge importance that are part of an evolving debate, like sexual harassment or age discrimination, in a private system without public review or ability for legislative response is troubling; • This issue is brought to the forefront because of increased use of mandatory arbitration clauses, which are now features of contract. If employees know about the clause at all (rare), they had no opportunity to cross it out. • Idea: Give employees the option to elect arbitration at the

mission is to provide cost-effective dispute resolution processes.

time of dispute with employer. They could elect it to get relief

It is non-partisan; it is not a trade group for unions or employers,

quickly; the confidentiality can also be appealing if they are

not a membership organization of arbitrators, not an advocacy

searching for a new job.

organization. AAA has taken a stated position of neutrality on class action waivers.

Gray: Cost benefits of arbitration are going away; defense and plaintiff attorneys take advantage of case scheduling in litigating cases. The roster of arbitrators is too polarized. But everyone is still working to get the right answer. Group filings are a real challenge for defense and plaintiff firms, which has led to further questioning of class action waivers and measures like the California Private Attorneys General Act. There’s been a rebellion among law associates to the arbitration provision at law firms. • Idea: We should have different rules for different claims (e.g., employment discrimination cases v. wage and hour cases).

4

NYU Labor & Employment Law · Issue 16 · Winter/Spring 2020


Estreicher: Compare with other countries: Europe has labor

Q from Audience: Statute of Limitations (SOL) restrictions

courts, the UK has very low awards, more like workers’ com-

and contractual disputes could be arbitrable; statutory cases

pensation system. Do we want to build on the tort model? We

(like discrimination) require a different analysis (and pose a

need to work out cost-shifting. But in general, employers are

greater issue with arbitration not being public).

picking up the cost.

Audience: Why does it have to be post-dispute voluntary arbi-

Q from Audience: How to make discovery be a level playing field: arbitrators should have the power and understanding to

tration, and could it instead be pre-dispute?

apply the level of discovery appropriate in the particular case.

• Right after the employee gets the job, they can check off which

• Opposed to forced arbitration when not knowing and voluntary,

dispute mechanism they want and employer won’t know until

but now stuck with it due to court decisions. Management bar

it comes up.

has overplayed their hand especially with class action waivers.

Salzman: In the post-dispute context, there is a shift in power

Salzman: Arbitrators could follow the federal rule approach

balance: employee is out of the job but no pressure in terms of how

and tailor discovery to needs of the case; judge should have

the employer will respond to a choice, and employee is more likely

discretion to deviate in smaller/bigger, less/more complicated

to have found a lawyer who can explain the options to them (hard

cases. Want more guidance and structure.

to understand when an employee is hired on day one). Pre-dispute choice could mean pre-imposed confidentiality, very restrictive.

Q from Audience: This is an empirical question and needs to be tested; haven’t seen strong empirical support that employment arbitration in practice expands access to justice; average salary of employment claimant and claim size is larger than found in civil litigation.

Gray: Must question what you are comparing it to—e.g., state court takes years and jury unlikely. Dispositive motions have gone totally awry in employment arbitration context.

Scheinman: He agrees we should have a different approach for wage and hour cases; question about whether arbitration should have an appeal system.

Salzman: Have also seen arbitration agreements restricting SOLs and picking a locale that is nowhere near the employee.

Estreicher: If there’s a short SOL in the agreement, it shouldn’t be administered/enforced by AAA. • AAA and JAMS can do more in pre-review arbitration agreement.

Estreicher: Arbitrators shouldn’t have the discretion of judges under the federal rules because that degree of discretion could raise costs unnecessarily; we should think about average case and need to have better info available about arbitrators. Should develop a model arbitration clause.

Tuchmann: 1) AAA says if the arbitration provision shifts costs to employee, that is a protocol violation; states vary in their approach; 2) locale: either where employee works or place of residence—

Q from Audience: There should be an appeals process and both

AAA will refuse to administer case if not; 3) discovery: there is

sides should be able to appeal because of lack of balance in favor

discretion; 4) statute of limitations is not addressed, which is an

of employer and no checks and balances, no jury of peers. In the

issue for discussion.

fee-shifting context, plaintiff who loses must now pay large fees.

Q from Audience: Is there a protocol that would ensure arbitra-

Gray: Employers with fee-shifting go way too far; there are fewer

tors are able to handle massive amounts of motions? Does AAA

such cases now.

have a way of being certain that an arbitrator has the capability

Q from Audience: Proposal to remove or increase the number

of handling the case?

of depositions available; there should be a fact-specific anal-

Newhall: AAA takes seriously the roster of arbitrators available;

ysis as to what is appropriate to keep it affordable.

there is mandatory training and follow-up training; discovery pro-

• E.g., in sexual harassment context, when stuck with two depo-

tocols guide parties and arbitrator to streamline to what is needed.

sitions, you can’t scratch the surface on evidence unless client has direct knowledge.

Scheinman: Send arbitrators copies of cases if you think they won’t be read (ideally this wouldn’t be necessary); ask what

Q from Audience: Litigation, the alternative to arbitration, isn’t

you can do to help them know what is going on; if you don’t

better (forever in state courts); re access, plaintiff firms shouldn’t

think the arbitrator did well and you still won, call up the

take a case unless the individual earns higher than $870/week—

AAA and say it.

which cuts out a lot of the population. • Brown & Root study1 as an example for change: 90% of claims resolved in a week and >90% of employees stayed employed; outside counsel fees went down.

Q from Audience: Can we ask the AAA to set up a phone call with the arbitrator candidate you are considering and ask what their attitude is toward discovery and dispositive motions?

1 William L. Bedman, “From Litigation to ADR: Brown & Root’s Experience,” Disp. Resol. J., Oct.-Dec. 1995, at 8, 13. The study states that of 1,000 matters, over 75% were resolved within eight weeks of the employee’s initial contact.

Newsletter of the NYU Center for Labor and Employment Law

5


Q from Audience: Should you remind your arbitrator that when

and vexatious. Question is how to accommodate the first type

Gilmer okayed arbitration in Title VII cases, the Court made clear

while controlling the arbitration; the cases can be minefields, some

you have the same substantive rights as in court; it is not pure

arbitrators have policy of not taking pro se cases because of it.

discretion?

Estreicher: Is there a role for a pro bono program?

Q from Audience: In the pre-conference survey, a theme was the issue of accessibility and transparency; searchability of arbitration awards is separate and discussion about it is largely absent.

Mesidor: Claimants are in the pro se position because: • 1) They don’t understand that an arbitration process is binding or has legal processes and procedures; 2) they may not under-

Tuchmann: Decisions are available online and are redacted,

stand the implications: binding, not appealable; 3) of a plethora

but they aren’t written for the public. Technology needs to be

of info on the internet, they could convince themselves they

improved for searchability; need to work with Westlaw on that.

don’t need a lawyer—the AAA website could help them think

Spreadsheet on AAA’s website gives the company, claim, who

that; 4) people can’t afford it—e.g., the attorney hourly fee; by

prevailed, the attorneys, and arbitrator.

Estreicher: Should be able to know readily if a company was in prior arbitration in which the issue was previously litigated; could require limited information to be available, anything above

the time they go to the clause, they could be at the end of SOL period; 5) when asked why they didn’t go to lawyer from the start, they said they thought process would take care of them and if they let an arbitrator hear their story, that’d be it.

Brossman: Damages for low-wage workers aren’t worthwhile

could be in the arbitrator’s discretion.

Scheinman: We don’t have any way of knowing if very similar issue was decided yesterday in another issue—so unless parties know a case is pending, they will go forward.

for most lawyers; lawyers charge contingency fees only for better cases; system leaves out a lot of people. Academic studies have been very helpful. If you make arbitration available, will people take it? Statistics show few people go to employment arbitration compared to the number of employment disputes that there are. Elephant in the room is how many claims/people (low wage pro se) are being shut out for reasons he doesn’t understand— suppressing claims.

Estreicher: Mediation option and good mediation program >> lower number of arbitrations. Drucker

Mesidor

Brossman

Panel 2: Dealing with Pro Se Parties Facilitator: Jacquelin F. Drucker (Arbitration Offices of Jacquelin F. Drucker) Presenters: Marjorie Mesidor (Phillips & Associates) and Mark Brossman ’78, LLM ’81 (Schulte Roth & Zabel) Comments by Samuel Estreicher, Christine Newhall, and Eric Tuchmann

• Q: Should there be a rule that there should be no dispositive motions in employment arbitration save for clear SOL cases, and a verbal directive/standard that arbitrators should be reluctant to grant such a motion? Clinics are only interested in impact cases, so they aren’t taking them.

Q from Audience: There are fewer claims because 1) arbitration is at end of dispute resolution process; b) elimination of class and collective actions: you won’t spend 20k to litigate a 10k case; precluded economically unless law firm takes on a mass arbitration. • Agrees with Estreicher proposal: motion process: there should be narrow exception for clear factual SOL issue or clear legal Q.

Newhall: AAA statistics: 1,167 pro se cases in 2018. Parties often

Drucker: Where there is clear logical basis for dismissal, can

end up being represented by counsel. In 2018 pro se cases, 43%

convene hearing on the motion; employee can explain basis

were consumer, ~20% were construction (business-to-business

of their case, get opportunity to be heard; helps to restore and

disputes), 11% were commercial, 10% were employment. 2019

maintain faith in system.

has had a growth in employment [24%] pro se cases. In business-to-business, common to have both sides unrepresented. AAA is looking for better ways to handle growing caseload.

Drucker: First want to define what we mean by pro se. Today we are focusing on employees bringing the claim who aren’t readily familiar with the process; the low-wage hourly employee. Some are earnest, believe they have a claim, and are looking for a fair opportunity to have the claim heard. But others are overzealous

6

NYU Labor & Employment Law · Issue 16 · Winter/Spring 2020

Brossman: Some employment cases are statutory, not contractual cases; impossible to expect pro se to have equal footing (and then can’t resolve disputes fairly). Don’t want to anger the workplace.

Mesidor: Prehearing for dispositive motions would be helpful, but the onus is on the arbitrator to educate pro se individuals who are not understanding the standard; there must be a process to educate pro se individuals.


Q from Audience: Issue of the illegal practice of law. Estreicher: Need legal clarification on the illegal practice of law question—if someone comes in with a representative who isn’t a lawyer but they function as one, does it raise the issue? May be okay for union reps in contractual issues to serve as the representative, but not statutory issues.

Mesidor: In NJ, if not admitted to practice in NJ, there are hurdles to represent an individual in an arbitration.

Q from Audience: Should have panel (of lawyers) to work with the non-lawyer representative. In NY there are clinical

Garrison

Kessler

Lupion

Panel 3: Cost Issues

to provide counsel?

Facilitators: Joseph Garrison (Garrison, Levin-Epstein, Fitzgerald & Pirrotti) and Christine Newhall (AAA). Presenters: Troy Kessler (Shulman Kessler) and Lisa Lupion (Orrick Herrington & Sutcliffe)

Newhall, Tuchmann: Have done outreach, website has listing for

Garrison: What happens when the party has a mandatory arbitra-

programs to fill the void and represent claimants in unemployment insurance (UI) proceedings. Doe AAA have thoughts on making alliances with law schools and clinical proceedings

unrepresented parties to contact clinics. But have to be careful

tion clause and AAA requests deposit and management refuses,

with neutrality. Not many clinics are interested.

which then ends the case?

Estreicher: NYU has a UI clinic entirely run by students. Q from Audience: Recommendation: If there is an evidentiary hearing, reach out to local law firms and ask for volunteers; young lawyers want experience. • We have done this and had success.

Mesidor: Bar associations/groups of attorneys can share experiences so people have a reference point (e.g., if a certain arbitrator was more willing to hear individual testimony or more interested in documents).

Mesidor: Even if it costs $30k to arbitrate a $10k case, there must

• Kessler: Parties have been unsuccessful in arguing that party has waived requirement to arbitrate on this basis. • Lupion: Distinction between waivers by default and intentional waivers. • Kessler: Agrees with Lisa—there is a significant difference between employer’s failure to pay at outset (not a timing issue because AAA has sent an invoice to client) and failure to pay during the course of an arbitration. • Garrison: AAA’s position is that if management chooses not to pay, then claimant has the choice to pay—but this is unsatisfying.

be a pathway for employees to get the $10k they need through

• This should be a basis for default judgment.

some process.

• Kessler: Problem is that the claimant would be respon-

Brossman: Tendency of arbitrators in pro se process to become the advocate, and that isn’t what should happen.

Mesidor: Judges on the bench do the same thing. Q from Audience: Hugh Baran, Skadden Fellow at NELP: Will represent employees in arbitrations (feel free to contact him).

Q from Audience: What is wrong with the arbitrator saying my job is to get the facts and if they don’t provide it, I should ask to get all the info, and if there is a claim/argument, I should recognize there is, even if they don’t say it?

sible to pay for the default judgment. • Q from Audience: If there’s a failure to pay, then this is a breach of contract (the contract is the mandatory arbitration clause), which should result in (a) letting out the non-defaulting party from the contract or (b) getting specific performance of mandatory arbitration contract. • Lupion: Motions for discovery can be used as a tactic by plaintiffs to drive up costs for management. What if a mandatory arbitration contract provides that the prevailing party gets its fees reimbursed by the non-prevailing party? (“Loser pays”/”prevailing party” clauses)

Q from Audience: There is a difference between judicial and

• Newhall: AAA rules are clear that companies pay fees with a

arbitrator function; arbitrators feel they’re there to decide the

narrow exception. AAA will bill fees, and compensation will

case the parties give us (debate over whether to do legal research).

be billed to the company.

But also want the process to be fair. Need greater focus on how

• Garrison: If such a clause comes to AAA, then they should

our role is different in a pro se case; this should be articulated

choose not to arbitrate a dispute arising under this clause.

and on the website.

• Kessler: If parties have agreed that they will share cost of arbitration, employer is supposed to pick up full cost of the

Newsletter of the NYU Center for Labor and Employment Law

7


arbitration. Some employers have argued that such a contract

• Garrison: Since these arbitrations are “forced,” the employees

controls over the AAA rules, and arbitrators have distributed

should get some benefit from the arbitration process. There

costs 50-50 between employees and employers.

should be presumption that summary judgment motions are

• Newhall: Could you write a rule that determines whether the

disfavored.

fee schedule as outlined in AAA rules or the contract governs?

• Q from Audience: Size and complexity of case should determine

• Garrison: It is very important for rules of the AAA to pre-

whether there can be summary judgment motions. Summary

clude “loser pays” clauses where a contract allows an

judgment motion cannot possibly make a case with a two-day

employer to pick up full cost from the claimant. • Newhall: Guidance in AAA fee schedule is clearly not enough. • Kessler: Arbitrators should not even consider motions for prevailing party fee-shifting. • Q from Audience: Why is this any different from the employer trying to change the SOL when it’s a statutory claim? • Lupion: For fairness, there should be an exception that if a claim or particular motion is frivolous, then there should be fee-shifting. Any potential AAA claim should include such an exception. Arbitrators are allowing more and more summary judgment motions. In mandatory cases, should an employee be forced to defend summary judgment? Makes a big difference because summary judgments are based on affidavits, which entails widespread

hearing more efficient. • Q from Audience: I could see summary judgment motions as helpful if there is a pure issue of law. • Lupion: But we can still figure out pure issues of law without a formal summary judgment process in arbitration.

Garrison: Plaintiff often gets more money out of litigation than out of arbitration. • Estreicher: But litigation awards require surmounting a motion to dismiss and summary judgment first, whereas arbitration awards occur more often. • Kessler: We’ve gotten good results out of arbitration awards, honestly. • Lupion: Higher awards do not necessarily mean that the awards are “just.”

depositions. If you don’t contest content of affidavits, court will take it as a given. Affidavits exponentially increase the cost of litigating a case. Since company bears cost, management is now arguing that only management, not the arbitrator, can move for summary judgment. It costs thousands of dollars to defend summary judgment motions. Question: Should summary judgment motions be limited or banned in arbitration? • Lupion: If discovery is treated the exact same way as in court, it is hard to say that there shouldn’t be motions for summary judgment. • Kessler: Arbitrators have asked for pre-motion conferences with basic proof as to why summary judgment should be granted. Have had some decent success with arbitrators convincing employers’ counsel not to make summary judgment motions. • Estreicher: How can summary judgment make sense in arbitration at all if there isn’t a clear issue of law (e.g., claiming discrimination that is not cognizable under Title VII)? • Q from Audience: Possible solution is for arbitrator to not require plaintiff to reply to a motion for summary judgment unless judge determines whether there is a material question of fact that the arbitrator agrees is meritorious. • Lupion: Not easy to get claimants to withdraw, even if claim is meritless. Need some mechanism to dismiss. • Q from Audience: No place for motions for summary judgment/

Heckman

Salvatore

Outten

Panel 4: What Works? Best Practices re Management of Cases in Arbitration Facilitator: Judge Carol E. Heckman, ret. (Lippes Mathias Wexler Friedman) Presenters: Paul Salvatore (Proskauer Rose) and Wayne Outten ’74 (Outten & Golden) Heckman: Should there be mandatory mediation before a case goes to arbitration, or at the very beginning of an arbitration case? • Outten: Suspicious of mandatory conditions, but mediation is an important tool. But there should not be a mandatory

motions to dismiss is common idea in arbitration community.

step, which wastes time and money, between claimants and

• Estreicher: You may want it both ways (formality of court

their arbitration cases. Don’t want a high threshold to entering

process with summary judgment but cheaper process), but if you want summary judgment, don’t compel mandatory arbitration.

arbitration, but largely in favor of this concept.

Heckman: What about additional cost that a requirement of mediation would impose on employers?

• Kessler: But summary judgment can be a useful tool in wage

• Salvatore: There should be a process by which employee

and hour arbitration cases to narrow the issues at play. So, from

disputes are heard, with an initial step (maybe just internal to

plaintiff’s perspective, I may sometimes want it both ways.

company), a mediation, and an arbitration. This happens in

8

NYU Labor & Employment Law · Issue 16 · Winter/Spring 2020


the collective bargaining context—in this context, there has

Affidavits exponentially increase the

always been mandatory mediation, which the employer pays for.

cost of litigating a case. Since company

Heckman: Should mediation be part of a mandatory arbitration provision or should it be required by the AAA rules? • Salvatore: “Muscular mediation”—e.g., mediator has ability to ask for evidence. Empowering mediator to do more makes them more effective. • Outten: Private mediation is often accompanied by a pre-agreement about sharing of information. Mediator could have authority to require that key, necessary information is

bears cost, management is now arguing that only management, not the arbitrator, can move for summary judgment. It costs thousands of dollars to defend summary judgment motions.

exchanged in order to enable a more effective process. • Outten: Executive contracts should always have dispute resolution provisions, with 3-step process including: (1) good faith

• Salvatore: As the federal courts have done, there must be a

negotiation, (2) mediation, (3) AAA arbitration if nothing else

concept of proportionality. Size/nature of the claim, number

works. Written agreement provides stepping-stones for this

of anticipated hearing days should be factors that should be

process. • Q from Audience: Maybe the AAA should point to particular employers’ policies as the “gold star” of dispute resolution, which includes, e.g., mediation step and avoids fee-sharing problems.

Heckman: “Muscular case management orders”: Can this be helpful? What is the utility of such a process? • Salvatore: “Muscular case management orders” is where the arbitrator brings counsel together, lays out timetable, including suggesting limitations on depositions, etc. Similar to what happens in federal court. • Outten: Everyone theoretically agrees that dispute litigation should be efficient. But in practice, the defense’s incentive is to slow the process down and make it more expensive. Fortunately, (federal) judges understand that and try to prevent unnecessary delay. So, muscular case management serves purposes of arbitration well, so long as it does not deprive due process rights of the other party. • Heckman: Greater emphasis in arbitration on trying to get consensus among counsel than case management in federal courts; looking for counsel’s buy-in. Arbitrator can use this later, if an issue arises, to show that there was agreement earlier. • Estreicher: Should the arbitrators try to narrow the issues? Garrison mentioned that some plaintiffs have multiple claims, and arbitrators try to narrow these issues. i. Outten and Salvatore: That’s appropriate.

Heckman: Component parts of best practices of case management—document discovery, depositions, expert discovery.

built into case management considerations. Case management orders should also include timetables, deadlines, etc., as in federal court case management orders. • Outten: Arbitrators should aspire to same availability as in federal court litigation to resolve discovery disputes in order to keep case moving. • Estreicher: How do you get arbitrators to be effective at muscular case management? i. Salvatore: This may require empirical information about how cases of different size/scope are treated by arbitrators. ii. Heckman: Arbitrators should require articulation of why counsel needs a particular amount of discovery. iii. Outten: The more pretrial discovery you have, the more efficient the hearing will be. iv. Salvatore: Cases should be clearly categorized—most cases in collective bargaining context are garden variety and are quickly settled before arbitration. Important that neutrals keep the exceptionality of the cases going to arbitration in mind as they administer these systems. • Salvatore: Suggestion of two-step process for case management—arbitration is not designed for elongated discovery/ motion process. • Outten: Just because counsel come to initial agreement about case management doesn’t preclude an arbitrator from challenging counsel’s perspectives. But if counsel agree to this ahead of time, I don’t see why arbitrator should have the prerogative to deny the counsel timetable. • Estreicher: What about survey and evaluation instruments

• Outten: Plaintiff has burden of proof for employment law

after the arbitration? Would be nice to know whether arbitrators

claims. But information is not evenly shared; employer has

are actually case managers. Would give a feedback mechanism

access to vast majority of information. Discovery rules are

to arbitrators.

crucial for plaintiffs; negotiated to ensure that—unlike labor/

i. Q from Audience: AAA sends out surveys after arbi-

commercial arbitrations—there would be sufficient opportunity

trations, but only 10%-15% response rate. Not publicly

for information-gathering.

available information. ii. Estreicher: But may be nice for this to be publicly available; could be helpful to the parties.

Newsletter of the NYU Center for Labor and Employment Law

9


iii. Salvatore: Not uncommon for counsel to speak to arbi-

iv. Q from Audience: Problem is that arbitrators are gen-

there was a joint employer relationship. Because employer had

erally not excited about sharing details of their process.

opportunity to join the three cases into one arbitration, then other two arbitrators decided sua sponte to wait for the first

Heckman: What, if anything, should be in a case management order regarding experts? What rules should be followed re experts, if any? •

arbitrator’s determination. •

with regard to experts?

a better idea. •

usually don’t agree and there’s a presumption that arbitrations are not class actions, but individual actions. Some streamlin-

there would be if they do testify.

ing should be part of AAA rules, while not getting in the

Outten: In class/collective actions, statistical experts are

way of the class actions. How can you make these cases more

necessary for discriminations case in arbitration. My earlier comment addresses individual claims. •

Heckman: Issue of experts should be addressed during initial

efficient without turning these proceedings into class actions? •

class actions.

too much disclosure and too many depositions. Would prefer

iii. Estreicher: My non-mutual claim preclusion suggestion

process that disfavors use of experts. Written reports by

seeks to avoid creation of class actions through arbitra-

experts are often sufficient, and you can just cross-examine

tion, while dealing with this problem.

them on the content of the report.

iv. Salvatore: Any solution must be within the limits of

Outten: Arbitrators may have control over number of depo-

Epic Systems.

sitions, including number of expert depositions. •

v. Outten: Consent must be additional—it’s not merely

Savlatore: Just as the Outten rule in summary judgment—you

consent to the arbitration itself.

should make a showing to explain why the claim should be dismissed, because presumption is that you’ll get a hearing— you should have to make a similar showing to explain why

Estreicher: Does there need to be a rule for special masters? i. Salvatore: There needs to be a rule that permits arbi-

counsel needs an expert.

trators to appoint special masters. ii. Outten: If I as counsel consent to a particular arbitrator,

Efficiencies in multiple cases on the same issue: •

there’s no reason why that consent extends to someone a

Outten: “Test case” approach. If you have more than 50 cases,

particular arbitrators wants to bring on in an advisory role.

you pick 10 of those cases, have 10 separate arbitrations with

Arbitration is a product of contract. Unless the contract

10 different arbitrators. After that process, you evaluate how

provides that an arbitrator has the power to sub-delegate

to dispose of the other 40 cases. Can incentivize looking for

something, then they have no power to do that.

settlements or a streamlining of the process. But this preserves

iii. Salvatore: Therefore, AAA rules must permit arbitrators

individuals’ rights because they can opt out if they want. But this whole process presumes attorneys’ consent. •

Heckman: You should be able to get access to information

to appoint special masters. •

tion for process, not a consolidation on the merits). E.g.,

subject to confidentiality.

Estreicher: Claim preclusion in arbitration. There may need to be relaxation of the confidentiality rules, where you can get limited disclosure as to whether the prior issue has been arbitrated before where the same employer was a party. Presumption that there should be the same outcome— non-mutual collateral estoppel.

Salvatore: But this requires a rule, not to rely on individual arbitrators.

Outten: AAA could increase efficiency by “bundling” cases for certain procedural or administrative cases (consolida-

as to whether an issue has been arbitrated before, but •

Outten: This situation is because employers have mandated arbitration, seeking to un-level the playing field and eliminate

conference. Federal standards are too onerous for arbitration;

Audience: If parties agree, coordinated discovery/special masters/consolidated cases streamline this process. But parties

Salvatore: Agreed re federal rules on experts. Arbitrator should set parameters on experts’ ability to testify and what disclosure

Estreicher: Requiring arbitrators to be bound by prior arbitrations may suggest to employers that class actions are actually

Outten: Most experience of experts in arbitration has been re damages issues. Why not use the federal rules for disclosure

Audience: Three separate cases. Informed other arbitrators that another arbitrator was determining question of whether

trators after a case—very different from federal court.

discovery, scheduling of conferences, etc. •

Outten: AAA could increase efficiency by ensuring that motions are decided promptly. Sometimes, arbitrators sit on cases and that defeats the purpose of speed in arbitration. i. Heckman: Ensure that arbitrators are setting a schedule, including return dates on motions. ii. Outten: Especially helpful if you have three arbitrators. iii. Heckman: Parties could always agree that one arbitrator could be the “discovery master” and could bring in other arbitrators only if there’s an especially difficult issue. iv. Salvatore: After Epic Systems, these issues have not been vetted as they have been in the courts. v. Outten: Of course, multiple arbitrators are more a feature of executive contracts.

10

NYU Labor & Employment Law · Issue 16 · Winter/Spring 2020


Panel 5: Wrap-Up Eric Tuchmann, Samuel Estreicher, Christine Newhall Question: What happens to claims that are denied from using AAA arbitrators? •

Tuchmann: In some parts of the country, if the AAA refuses

v. Pro se issue: Arbitrators should be incentivized to find

arbitration provision, whether of a court-appointed arbitrator

counsel for pro se plaintiffs, rather than thinking that

or ad hoc. This rids the AAA of the power of its protocols.

they can just give pro se plaintiffs more leeway. 1. Estreicher: Law firms could help out here—litiga-

Tuchmann: How can we improve the arbitration process? • Estreicher: Strong arbitrators don’t need to be backed up by a

tion associates should be appointed as counsel for pro bono plaintiffs. Clinics may be appropriate, but

rule, but a rule would give the average arbitrator more resolve

routine cases need more people than students.

to keep efficiency and fairness. •

2. But probably here, this is an issue in the profession,

Easy reforms:

not an issue for the AAA.

i. Mediation should be encouraged, with accommodations

3. Estreicher: Labor unions could also help with this.

to prevent it from being overly expensive.

vi. Group filings: What can we do by rule revisions? What is

ii. Guidance to arbitrations in terms of discovery and other

under the AAA’s authority? How can we avoid making

best practices.

an efficient process but sacrificing parties’ due process

iii. Case management efficiency. •

Really difficult reforms:

arbitration, the court will nonetheless still enforce a mandatory

rights?

Difficult reforms, but doable:

4. In some cases, terms of class action waivers pre-

i. Standard examination of how arbitrators deal with

vent dealing with cases as group cases. How do you

dispositive motions—currently, arbitrators may allow dispositive motions, but there must be a showing of substantial cause that the moving party would succeed. ii. Confidentiality: How do you expose bad, repeated conduct if it’s going through arbitration? 1. Publication of awards should be more searchable + transparent. iii. Cost issues need to be clarified through rule and the AAA needs to administratively decide how to communicate the rule to parties. Need more clarity in terms of the AAA’s position which is to refuse to arbitrate cases where employers do not bear the burden of fees. iv. Discovery guidelines and rules.

encourage efficiency in these situations? •

Audience: What is the AAA’s position on transparency about payment discussions between arbitrator and defendant? Plaintiffs’ counsel should be entitled to hearing about whether a defendant has not yet paid a filing fee, if the arbitrator continues to administer the case. vii. Tuchmann: It’s rare for a case to move forward without compensation on hand. But where it goes forward, it’s the AAA’s view that this is a positive outcome. viii. Audience: Claimants should know when arbitrators are communicating with defendant that they need to pay—e.g., an initial filing fee. ix. Estreicher: We should look into default judgments as well; employers shouldn’t be able to get away with not paying. n

RE-TRAINING AMERICA FOR THE

APRIL 30 Newsletter of the NYU Center for Labor and Employment Law

11


Dealing With Repetitive Claims in Employment Arbitration: A Role for Non-Mutual Issue Preclusion *Reprinted with permission from the October 30, 2019, edition of the New York Law Journal @2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.

In this Arbitration column, Samuel Estreicher writes: In view of the Supreme Court’s Epic Systems decision, it becomes imperative to take up the challenge of Justice Ruth Bader Ginsburg’s dissent and to see if there are ways to capture some of the efficiency gains of employment class actions without compromising the benefits of bilateral arbitration proceedings between the employer and its employee.

I

n Epic Systems v. Lewis, 138 S.Ct. 1612, 1624 (2018), the Supreme

one-way intervention by claimants outside of the test cases, as

Court held that, absent “a clear and manifest congressional

occurred, for example, in Katz v. Carte Blanche, 496 F.2d 747 (3d

command to displace” the Federal Arbitration Act’s (FAA)

Cir. 1974) (en banc)—preclusion to spare employees from having

requirement that arbitration agreements be enforced as written,

to separately relitigate against their employer an issue that has

class action waivers in employment agreements are generally

already been resolved in favor of other employees of the same

enforceable. One effect of the ruling is to spur possible legisla-

employer in previous arbitrations.

tive change, as evidenced by proposed legislation in California

Another approach, which does not depend on getting both

and the House of Representatives’ passage, on September 20,

sides to agree to a protocol at the outset, is utilization of issue

2019, of the so-called Forced Arbitration Injustice Repeal (FAIR)

preclusion principles. It is well-established that under the doc-

Act), H.R. 1423, which would render unenforceable pre-dispute

trine of collateral estoppel or issue preclusion, “[w]hen an issue

arbitration agreements for employment and consumer disputes.

of fact or law is actually litigated and determined by a valid and

State laws are likely to fall on the shoals of FAA preemption; the

final judgment, and the determination is essential to the judg-

House bill has no chance of becoming law until a change in the

ment, the determination is conclusive in a subsequent action.”

composition of the Senate occurs. Another effect has been the

Restatement (Second) of Judgments §27 (1982). While the doctrine

attempt by employee representatives, now presumably closed

was traditionally limited to parties involved in previous litigation,

from a class or collective action, to metastasize their case into a

the Supreme Court relaxed this requirement in Blonder-Tongue

welter of individual arbitrations in the hope that employers will

Laboratories v. University of Illinois Foundation, 402 U.S. 313,

see the wisdom of a class-wide resolution.

350 (1971), holding that a defendant may invoke non-mutual

The proliferation of single employment claims poses a serious

issue preclusion defensively against a plaintiff that had lost on

challenge for employment arbitration. Strong case management

the same dispositive issue in an earlier suit. The court further

by the arbitrator is critical. Borrowing a leaf from the experience

relaxed the mutuality requirement in Parklane Hosiery Co. v.

of courts handling mass tort claims, the arbitrator should con-

Shore, 439 U.S. 322, 331 (1979), permitting, as a matter of federal

vene an early conference where counsel for claimants would

common law, the offensive use of non-mutual issue preclusion.

inform the arbitrator and counsel for employers of the number

As a result of this decision, federal courts have “broad discretion”

and range of cases filed involving the same employer and the

to permit a plaintiff who had not been a party to the previous

same general factual setting. Counsel for both sides would then

lawsuit to “estop a defendant from re-litigating the issues which

explore with the arbitrator the possibility of using a “test case”

the defendant previously litigated and lost against another plain-

or series of test cases that would act as exemplars of the issues

tiff.” The Parklane Court cautioned, however, that “[t]he general

likely to arise in all of the cases. The results in these cases, which

rule should be that in cases where a plaintiff could easily have

would be tried first, would be used to help the parties and the

joined in the earlier action or where the application of offensive

arbitrator narrow the relevant issues and evaluate probability of

estoppel would be unfair to a defendant, a trial judge should not

outcomes. In some situations, it would be appropriate to allow

allow the use of offensive collateral estoppel.” In the Court’s view,

12

NYU Labor & Employment Law · Issue 16 · Winter/Spring 2020


it would be unfair to allow non-mutual issue preclusion: (1) if

Effect of Confidentiality Provisions

the defendant in the first action was “sued for small or nominal

Confidentiality provisions pose a practical obstacle to issue pre-

damages,” such that he had “little incentive to defend vigorously,

clusion insofar as they bar parties from disclosing information

particularly if future suits [were] not foreseeable”; (2) if the judg-

that would be needed for an arbitrator in a subsequent proceed-

ment relied upon as a basis for the estoppel is itself inconsistent

ing to determine whether an issue was “actually litigated” or its

with one or more previous judgments in favor of the defendant;

determination was “necessary” to the prior award. Additionally,

or (3) “where the second action affords the defendant procedural

confidentiality provisions may prevent employees from sharing

opportunities unavailable in the first action that could readily

or learning about the outcomes of other arbitrations of similar

cause a different result.”

issues against the same employer, as well as deny all parties the

It is now also well-established that “final arbitral awards are

ability to use past arbitrations as precedent. Courts that have

afforded the same preclusive effects as are prior court judg-

declined to enforce confidentiality provisions have relied on the

ments” (Manganella v. Evanston Ins. Co., 700

state law doctrine of unconscionability or on

F.3d 585, 591 (1st Cir. 2012)), that is because

the federal common law doctrine that bars con-

of a long-standing presumption that a “valid

tractual provisions that prevent the “effective

and final award by arbitration has the same

vindication” of statutory rights.

effects under the rules of res judicata, subject a judgment of a court.” The same principle is

State Law Restrictions on Confidentiality

implicitly codified in the FAA: When a party

Courts that have found confidentiality provi-

to the same exceptions and qualifications, as

obtains judicial confirmation of an arbitration

sions unconscionable and therefore unenforce-

award pursuant to §9 of the statute, §13 provides

able have done so mainly on two related but

that the confirming judgment “shall have the

distinct grounds. First, as held by the Ninth

same force and [thus preclusive] effect” as a

Circuit in a series of cases interpreting Cali-

judgment in an action. Courts have broad discretion to give arbitral

fornia law (until a California Court of Appeal Samuel Estreicher

rulings preclusive effect even for unconfirmed awards. As noted by the Fifth Circuit, relevant factors include

ruled otherwise in Sanchez v. CarMax Auto Superstores California, 168 Cal.Rptr.3d 473, 481 (Cal. Ct. App. 2014)), arbitration agreements are unconscionable if

whether: (1) “arbitral pleadings state issues clearly”; (2) “arbi-

they put the employer “in a far superior legal posture” relative to

trators set out and explain their findings in a detailed written

its employees by denying them access to precedent while at the

opinion”; (3) “procedural differences between arbitration and the

same time accumulating that knowledge as a “repeat player” or

district court proceeding might prejudice the party challenging

barring “an employee from contacting other employees to assist in

the use of” offensive, non-mutual preclusion; (4) procedural

litigating (or arbitrating) an employee’s case.” Davis v. O’Melveny

differences “might be likely to cause a different result”; (5) the

& Myers, 485 F.3d 1066, 1078 (2006). Second, as held by the Wash-

findings of the arbitral panel “are within the panel’s authority

ington Supreme Court, in hampering “an employee’s ability … to

and expertise”; and (6) “the arbitration proceeding affords basic

take advantage of findings in past arbitrations,” a confidentiality

elements of adjudicatory procedure, such as an opportunity for

provision can be found unconscionable because it “undermines

presentation of evidence.” Grimes v. BNSF Ry. Co., 746 F.3d 184,

an employee’s confidence in the fairness and honesty of the arbi-

188-89 (5th Cir. 2014). If the case is in arbitration, the question becomes whether the arbitrator will accord preclusive effect to a prior arbitral award.

tration process and thus potentially discourages that employee from pursuing a valid claim.” Zuver v. Airtouch Commc’ns, 109 P.3d 753, 765 (Wash. 2004).

There may be some reluctance among arbitrators, but, as the

While it was once the case that the larger number of jurisdictions

leading labor arbitration treatise suggests: “Any well-reasoned

held confidentiality provisions to be unconscionable and therefore

and well-written prior arbitration opinion has persuasive qual-

unenforceable, more recent decisions suggest a greater divergence

ities where it is ‘on point’ with the subject matter of a current

in views if not a trend away from the anti-enforcement position.

grievance … to be given preclusive effect it must be between the

Most notably, the 2014 California appellate ruling mentioned above

same parties, must invoke the same fact situation, must pertain

declared that “we see nothing unreasonable or prejudicial” about

to the same contractual provisions, must be supported by the

a confidentiality provision that covers the “hearing and record

same evidence, and must concern an interpretation of the spe-

of the proceeding.” Sanchez, 168 Cal.Rptr.3d at 481-82. The Ninth

cific agreement before the arbitrator.” Elkouri & Elkouri, How

Circuit subsequently followed suit. See Poublon v. C.H. Robinson

Arbitration Works 11-9 to 11-10 (Kenneth May et al., 7th ed. 2006).

Co., 846 F.3d 1251, 1266 (9th Cir. 2017).

There is no reason to believe that employment arbitrators will take a different view, if confronted with an attempt by one of the parties to relitigate an issue that was the subject of a prior arbitral award against that party. Newsletter of the NYU Center for Labor and Employment Law

13


FAA Preemption of State Law Restrictions on Confidentiality

tures or implicate the FAA’s equal-treatment rule requiring that

Even where courts have found confidentiality provisions to be

arbitration agreements be treated no differently than any other

similar issue, discussed above, target arbitration’s unique fea-

unenforceable under state law, recent US Supreme Court deci-

contract. See Kindred Nursing Centers Ltd. Partnership v. Clark,

sions raise the question whether such rulings are preempted by

137 S.Ct. 1421, 1426 (2017).

the FAA, that is because the court has narrowly construed the arbitration clauses are “valid, irrevocable, and enforceable, save

Confidentiality and Enforcement of Awards

upon such grounds as exist at law or in equity for the revocation

Any confidentiality bar, however, is likely to drop out once a party

so-called “savings clause” in §2 of the FAA, which provides that

of any contract.” 9 U.S.C. §2. As interpreted in AT&T Mobility v.

seeks to confirm or enforce an arbitration award in court, where

Concepcion, 563 U.S. 333 (2011), the FAA “permits agreements to

a strong presumption obtains that the award and (at a minimum)

arbitrate to be invalidated [only] by ‘generally applicable contract

dispositive pleadings produced during the arbitration must remain

defenses, such as fraud, duress, or unconscionability.’” Limiting

open to public view, notwithstanding even the existence of a

what counts as a “generally applicable contract defense,” the

confidentiality provision in the agreement. This presumption

Concepcion court cautioned that courts may not “rely on the

flows, as recognized by the US Supreme Court in Nixon v. War-

uniqueness of an agreement to arbitrate as a basis for a state-law

ner Commc’ns, 435 U.S. 589 (1978), from a well-established right

holding that enforcement would be unconscionable.” In essence,

of access to “judicial records.” In order to seal a judicial order

judicial attempts to interfere with the “fundamental attributes of

confirming an arbitration award, courts use a balancing test to

arbitration” are not saved by §2 and are preempted by the FAA. And

determine whether the presumption of public access is overcome

while we are not aware of any decision that treats confidentiality

by compelling interests that favor non-disclosure.

as a fundamental attribute of arbitration as such, the Fifth Circuit

The presumption in favor of disclosure does not kick in, how-

has suggested that restrictions on confidentiality are “in part, an

ever, if the winning party in the first arbitration does not seek

attack on the character of arbitration itself.” Iberia Credit Bureau

judicial confirmation of the arbitration award—as is likely to be

v. Cingular Wireless, 379 F.3d 159, 175 (5th Cir. 2004). If confidentiality cannot be imposed, the Fifth Circuit panel

the case if the employee prevailing on, say, a discharge, has no need to go to court for enforcement of the award. Thus, if confi-

reasoned, “one would expect that parties contemplating arbitration

dentiality provisions are valid and enforceable, and are properly

would demand discovery similar to that permitted under FRCP 26,

interpreted to block access to the awards and documents generated

adherence to formal rules of evidence, more extensive appellate

in prior arbitrations involving the same employer, there will be no

review, and so forth—in short, all of the procedural accoutrements

basis for invoking claim or issue preclusion absent independent

that accompany a judicial proceeding.”

knowledge of what was decided in a prior arbitration involving

On the other hand, some courts have continued to hold confidentiality clauses unconscionable even after Concepcion, with the

the same employer.

Supreme Court of Kentucky noting that “the potential obstacles

Proposed Disclosure Protocol

to arbitration presented by the forbidding of class action waivers

In order to secure the advantages of consistency of outcome and

are simply not present in the case of confidentially provisions.”

discourage repetitive arbitration of previously decided issues, we

Schnuerle v. Insight Commc’ns Co., 376 S.W.3d 561, 578 (Ky. 2012).

propose that the AAA update Rule 23 of its Employment Arbitra-

Indeed, in a context in which the parties to an employment arbi-

tion Rules and Mediation Procedures. In its current form, Rule 23

tration proceeding must anticipate that at least some awards will

imposes an obligation of confidentiality solely on the arbitrator,

be challenged in court, and where the disclosure rules of the AAA

who “shall maintain the confidentiality of the arbitration and

and other arbitration services organizations require prospective

shall have the authority to make appropriate rulings to safeguard

arbitrators to list prior awards involving the same parties, it is

that confidentiality, unless the parties agree otherwise or the law

unclear whether a limited carve-out from confidentiality sufficient

provides to the contrary.” Our proposal would create a limited

to assess whether a party’s plea that claim or issue preclusion is

exception to permit a subsequent arbitrator to allow parties to

warranted in a particular case in fact undermines the core benefit

the prior arbitration to disclose the award and opinion in cases

of confidentiality. Likewise, the FAA arguably leaves untouched

(1) involving multiple arbitration of statutory employment claims

state restrictions on confidentiality provisions insofar as those

against the same employer and (2) which involve similar issues,

provisions conflict with a “strong policy that justice should be

unless the parties to the previous arbitration had expressly agreed

administered openly and publicly”; and such a policy is applied

that the award and opinion may not be disclosed to non-parties,

even-handedly to all forms of adjudication. Given a well-estab-

or the second arbitrator finds that the harms caused by such

lished common law right to public judicial documents, discussed

disclosure outweigh any commensurate benefits.

below, it would seem difficult to argue that state laws requiring the

Our proposed disclosure protocol preserves the recognized

publication of redacted arbitration awards or limited disclosure

benefits of confidentiality in arbitration proceedings. For exam-

of prior awards involving the same employer and the same or

ple, it leaves untouched AAA Rule 23’s requirement preventing

14

NYU Labor & Employment Law · Issue 16 · Winter/Spring 2020


the arbitrator from disclosing the details of the proceeding; the proposed disclosure exception is limited to the prior award and any opinion. The proposal, moreover, establishes a default rule that the parties can opt out of but only by express provision. In addition, even in the absence of such an express provision, the proposal permits arbitrators to take into account the interests of the employer in sealing or redacting documents, the same way courts engage in a balancing analysis when deciding to confirm arbitration awards under seal (as held by the Seventh Circuit, for instance, “[w]hen there is a compelling interest in secrecy, as in the case of trade secrets, the identity of informers, and the privacy of children, portions and in extreme cases the entirety of a trial record can be sealed.” Jessup v. Luther, 277 F.3d 926, 928 (7th Cir. 2002)). Arbitrators, likewise, may decide to enforce confidentiality provisions where doing so would be the sole way to prevent the disclosure of highly embarrassing but otherwise irrelevant facts, and the risks of such disclosure are sufficiently compelling to outweigh the value of determining the preclusive effect of the issues on which those facts bring to bear.

Objections To Using Collateral Estoppel in Arbitration One objection that has been raised against extending the doctrine of issue preclusion into the world of arbitration is that plaintiffs will hold off pressing claims and wait for a favorable arbitral

Any confidentiality bar, however, is likely to drop out once a party seeks to confirm or enforce an arbitration award in court, where a strong presumption obtains that the award and (at a minimum) dispositive pleadings produced during the arbitration must remain open to public view, notwithstanding even the existence of a confidentiality provision in the agreement.

ruling and then file their claims. This “wait and see” approach is likely to be unavailing because, as the Supreme Court recognized in Parklane, such strategic behavior is a reason for withholding preclusive effect. If, on the other hand, the arbitration agreement

Conclusion

bars joinder of claims, such a clause would provide ample justifi-

In view of the Supreme Court’s Epic Systems decision, it becomes

cation for not intervening in the prior proceeding.

imperative to take up the challenge of Justice Ruth Bader Gins-

A second objection is that a prior arbitral award used as the

burg’s dissent and to see if there are ways to capture some of the

basis for claiming preclusion could be inconsistent with one or

efficiency gains of employment class actions without compro-

more previous awards in favor of the defendant. This point, too,

mising the benefits of bilateral arbitration proceeding between

was anticipated in Parklane, where the court counseled against

the employer and its employee. Employment arbitration is worth

applying issue preclusion “if the judgment relied upon as a basis

saving. If properly structured and regulated, employment arbitra-

for the estoppel is itself inconsistent with one or more previous

tion improves the likelihood that employees, and most especially

judgments in favor of the defendant.” Issue preclusion is thus not

those who are relatively low-paid, will be able to obtain an adjudi-

likely where prior awards have resulted in disparate results. It

cation on the merits of their rights disputes with the employer. We

may well be that non-mutual issue preclusion will be recognized

believe that greater use of issue preclusion in arbitration, subject

only when the employer has lost on the same issue in at least two

to the conditions laid down by the Supreme Court in Parklane, can

or more arbitrations and there are no conflicting decisions, but

promote a fairer process for both the employer and its employees.

that is precisely the kind of situation that calls for preventing the

Samuel Estreicher is the Dwight D. Opperman Professor of Law

employer from fighting a war of attrition against claimants—a

and Director of the Center for Labor and Employment Law, NYU

war that could not be fought in court and which no fundamental

School of Law. This column is a condensed version of Samuel

feature of arbitration requires that it be fought in arbitration.

Estreicher & Lukasz Swiderski, “Issue Preclusion in Employment

Even when multiple arbitrations result in several conflicting awards, it becomes all the more important that arbitration orga-

Arbitration After ‘Epic Systems v. Lewis,’” 4 Univ. of Penn. J. of L. & Pub. Aff’s 15 (November 2018). n

nizations like the AAA promote transparency, such that arbitrators can consider the outcomes of several ongoing arbitrations in deciding whether to apply issue preclusion—even if they are not ultimately bound by prior awards.

Newsletter of the NYU Center for Labor and Employment Law

15


Recent Supreme Court and DC Circuit Decisions Concerning Arbitration by Samuel Estreicher and Holly Weiss Reprinted with permission from the March 15, 2019, New York Law Journal online @2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited

The Supreme Court and US Court of Appeals for the DC Circuit Court have each recently decided cases involving arbitration. The Supreme Court, in New Prime v. Oliveira, ruled on an exception to arbitrability under §1 of the Federal Arbitration Act (FAA), 9 U.S.C. §1, and the DC Circuit, in Diag Human v. Czech Republic, ruled on the binding nature of foreign arbitral awards.

New Prime

establishing an independent contractor relationship. In regard to

In New Prime v. Oliveira, 586 U.S. ___ (2019), the Supreme Court,

the first question, the court held that “a court should decide for

in an 8-0 decision (Justice Kavanaugh did not participate in the

itself whether §1’s ‘contracts of employment’ exclusion applies

decision), expanded the scope of an exemption under the FAA

before ordering arbitration” even if the agreement contains a valid

that applies to certain transportation workers. The case con-

delegation clause. Delegation clauses are “merely a specialized

cerned Dominic Oliveira, a truck driver, who worked as an inde-

type of arbitration agreement” and are therefore subject to §1’s

pendent contractor for New Prime. When he

exception. Thus, it is for the court to determine

began working for New Prime, Oliveira signed

whether §1 applies.

an agreement that included an arbitration

Turning to the second question, the court

clause. After New Prime made deductions to

looked to the historical meaning of “contracts

Oliveira’s pay, Oliveira brought a class action

for employment.” Based on dictionary defini-

lawsuit against New Prime that alleged Fair

tions of the word “employment” from around

Labor Standards Act violations and state law

the time that Congress passed the FAA in 1925

claims. At the district court, New Prime moved

and the statute’s use of “workers” in the same

to compel arbitration. Under §2 of the FAA, an

context, the court concluded that “employment”

agreement to arbitrate is “valid, irrevocable,

should be construed as a synonym for “work.”

and enforceable, save upon such grounds as

Just as the term “employment,” as Congress

exist at law or in equity for the revocation of

intended it, does not distinguish between

any contract.” 9 U.S.C. §2. Oliveira responded that the court lacked authority to compel arbi-

Holly Weiss

tration because of §1 of the FAA, which provides an exception to

an employer-employee relationship and an independent contractor-purchaser of services relationship, the term “worker,” in the context of §1, also does not

the enforceability of arbitration provisions in disputes involving

distinguish between an employer-employee relationship and

interstate transportation workers. New Prime then argued that the

an independent contractor-purchaser of services relationship.

applicability of §1 was a question for the arbitrator, not the court.

Therefore, to give proper meaning to §1, the court determined

The district court denied New Prime’s motion to compel arbitra-

that the exception applies to both employees and independent

tion, and the US Court of Appeals for the First Circuit affirmed.

contractors working in transportation.

On appeal, the Supreme Court took up two issues: (1) whether

The holding in New Prime stands out in the court’s recent juris-

a dispute over the applicability of the FAA’s §1 exemption must

prudence concerning arbitration. Until now, the court’s decisions

be resolved in arbitration pursuant to a valid clause delegating

had worked to strengthen the FAA’s arbitration regime. New Prime,

the question of arbitrability to the arbitrator; and (2) whether the

however, in expanding §1’s exception to arbitration, serves as a

FAA’s §1 exemption, which applies only to “contracts of employ-

modest counterpoint.

ment” involving transportation workers, applies to agreements

16

NYU Labor & Employment Law · Issue 16 · Winter/Spring 2020


Diag Human S.E. The US Court of Appeals for the DC Circuit recently held that an arbitral award in favor of a Liechtenstein-based company, Diag Human, and against the Czech Republic, was not binding under the New York Convention because an arbitration review panel, authorized under Czech law for arbitrations held in that country, issued a “Resolution” discontinuing the proceedings without first confirming the underlying award. Diag Human S.E. v. Czech Republic-Ministry of Health, 907 F.3d 606 (D.C. Cir. 2018). Diag Human runs a blood plasma business and initiated arbitration in the 1990s with the Czech Republic after the Czech Republic allegedly interfered with its business. The initial arbitration panel found that the Czech Republic had wrongfully interfered and that Diag Human was entitled to damages. The panel, however, left the specific amount of damages for later proceedings. In 2002, another panel awarded partial damages of approximately $10 million, an amount representing damages that neither party disputed. Pursuant to the arbitration agreement that the parties had entered into, the parties were entitled to seek a review

Under the terms of the arbitration agreement, an appeal of an arbitral award to a review panel prevents the award from becoming binding. Because the appeal of the $400 million award was proper, that award was not binding unless the review panel confirmed the award, which it failed to do.

of arbitral awards. A review panel upheld the award for partial damages. Four years after the partial award, another arbitral panel awarded $400 million for the full extent of damages plus interest.

The DC Circuit affirmed, but with different reasoning. The

Again, the parties submitted the award to a review panel. This

appeals court looked to the language of the Resolution, which

time, the review panel issued a “Resolution” that discontinued

noted jurisdictional problems with the $400 million award. The

the arbitration. However, the panel did not explicitly affirm the

award, according to the review panel, was barred by res judicata

$400 million award.

because it was based on the same claim as the 2002 award. The

Diag Human sought to enforce the arbitral award in the US

DC Circuit interpreted the review panel’s Resolution to conclude

court system and filed suit under the New York Convention in the

that the 2002 award never specified that it was only in regard to

US District Court for the District of Columbia. The district court

a portion of the claims or a portion of the defendants. Thus, the

declined to enforce the $400 million award, finding that it was not

2002 award was not partial, but was the complete award.

binding on the parties. The district court reasoned that under the

The DC Circuit also looked to Czech arbitral law, which identi-

New York Convention, US courts will generally enforce foreign

fies two possible outcomes from an arbitral proceeding: an award

arbitral awards; however, under the Convention, a court will not

(which is judicially enforceable and imposes a legal obligation)

recognize an arbitral award if it “has not yet become binding on

or a resolution (which ends the proceedings). Because the review

the parties.” New York Convention Art. V(1)(e). Under the terms

panel chose to issue a resolution, and not an award, the panel did

of the arbitration agreement, an appeal of an arbitral award to a

not affirm the $400 million award but instead closed the proceed-

review panel prevents the award from becoming binding. Because

ings. The DC Circuit therefore held that the $400 million award

the appeal of the $400 million award was proper, that award was

was not enforceable and subsequently denied a request from

not binding unless the review panel confirmed the award, which

Diag Human for a rehearing en banc. The decision illustrates the

it failed to do.

perils of enforcing foreign arbitral awards in other countries. n Samuel Estreicher is the Dwight D. Opperman Professor and Director of the Center for Labor and Employment Law at New York University School of Law. Holly H. Weiss is a partner at Schulte Roth & Zabel.

Newsletter of the NYU Center for Labor and Employment Law

17


The German Model of Codetermination Lessons for the US? The Labor Center hosted a timely and animated informal breakfast discussion on codetermination, the German model of worker participation in company management that has gained attention in the US. Former NLRB Chair Wilma B. Liebman facilitated.

T

obias Schulze-Cleven (Rutgers School of Management and

its failure, due to regulatory and legal pushback, will discourage

Labor Relations) outlined the differences and similarities

other companies from trying new ideas, for fear of losing time

between German and US worker models. While the US

and money. Swirsky advocated that it is not unlawful to have a

model has developed more piecemeal, he noted both countries

worker organization that is not a traditional union and it is pos-

exhibit low union density and downward trajectories of employee-

sible to create work council models that are not “dominated and

union membership and collective bargaining in private companies.

controlled” by employers.

He suggested change in economic democracy is needed, encour-

Counter-balancing this was Professor Jeffrey Gordon (Columbia

aged by experimentation. The proposals offered by US Senators

Law School), who cautioned that putting workers on corporate

Elizabeth Warren and Tammy Baldwin were starting points to

boards can politicize/polarize management and undermine deci-

create discussion and solutions.

sion-making that is best for the company or its workers during

Both Liebman and Schulze-Cleven advocated that employee

times of economic stress. Gordon illustrated his view with the

equity combined with employee governance can be good for com-

United Airlines (UAL) bankruptcy, where that board friction, even

panies, leading to higher company performance on sustainability

within worker groups (pilots vs. mechanics vs. flight attendants),

and productivity.

contributed to its demise. There is pressure on employee board

Having been actively involved in the works council negotiations

representatives to protect jobs and wages over tough and perhaps

between the United Auto Workers (UAW) and Volkswagen (VW) at

necessary corporate economic decision-making. Gordon suggested

VW’s Chattanooga plant, Carsten Huebner (Transatlantic Labor

wage inequality may be better addressed at the government rather

Institute), like Schulze-Cleven, was encouraged by new discussions

than corporate level, with social policies such as expanding higher

and the potential for innovative models that include workers while

education and re-training opportunities, pointing to the growth that

also promoting company objectives. He believes the current model

occurred when the US expanded education from K to 12th grade.

is confrontational and not sus-

In all, it was a lively and diplomatic discussion, where all

tainable long term. Also involved in the UAW-

panelists concurred this is an

VW negotiations as counsel

area where ambitious thinking

for VW was Labor Center Advi-

is needed, whether at the cor-

sory Board member Steven

porate or economic, social, or

Swirsky (Epstein Becker &

political level. n

Green). Swirksy applauded the efforts of UAW/VW but worried

Steven Swirsky and Carsten Huebner

18

NYU Labor & Employment Law · Issue 16 · Winter/Spring 2020


Remembering the Labor Law Group at Cravath (Before They Broke Up, and Each Came Here to NYU School of Law) by Frank Cummings in the late 1950s there was a trio of labor law associates at Cravath Swaine & Moore (then down on Broad Street and later at Chase Manhattan Plaza—long before the firm moved uptown). The senior labor associate was Tom Christensen (from Iowa Law), a towering spindle of cheeriness. Next there was Dan Collins (from NYU Law), a genial genius. And lastly there was Frank Cummings (me), fresh out of Columbia (where I had come fresh out of the Army), and just as junior as I could be, but determined to learn how be a Cravath lawyer, which was then—and still is—no easy accomplishment. We shared two smallish Cummings

rooms for the three of us. No computers; just

stenographers who worked in shifts late into the night, every night. Those were the days when the old industrial unions—Steelworkers, Auto Workers, Shipbuilding Workers, Electrical Workers—had real muscle, as did their employers, and labor disputes were massive labor-management confrontations. Who would have guessed that, over the course of the next 45 years, each of us would find himself teaching here at NYU? Dan was the first, which was always a good bet—he had been a Root Tilden Scholar here at NYU Law in the first place. Years later Chris came to NYU and for a time headed up the labor law program here. In the meantime, I went on practicing labor and employment law in Washington, and had taught labor law for a while as an adjunct at Columbia, and later at Georgetown, but I took up an offshoot specialty (pensions and health benefit law), after doing the famous (infamous?) Studebaker shutdown in late ’50s and early ’60s, and then helping the late Senator Javits design a pension bill that ultimately passed and became “ERISA.” And last year, having taught ERISA at the University of Virginia

the labor center hosted its 22nd Annual Employment Law Workshop for Federal Judges in cooperation with the Federal Judicial Center (FJC) and the Institute of Judicial Administration at NYU School of Law in the Spring of 2019. The workshop provides the opportunity for federal judges from around the country to learn about updates and elements of labor and employment cases, as well as to gain practical insight for managing them. Each panel is comprised of a federal judge, an experienced employee-side attorney, and an experienced management-side attorney. Subjects ranged from staples such as “Retaliation and Whistleblowers” featuring Judge Carl E. Stewart to evolving issues of transgender rights, medical issues and disability in the workplace, evolving workplace technology, the use of data analytics in management decisions, and electronic discovery. Other faculty judges included: Helen Adams (US District Court for the Southern District of Iowa), Patty Shwartz (US Court of Appeals for the Third Circuit), George C. Hanks Jr. and Lee Rosenthal (US District Court for the Southern District of Texas), John Koeltl, Colleen McMahon, and Laura Taylor Swain (US District Court for the Southern District of NY), and Jack Zouhary (US District Court for the Northern District of Ohio). n

Law School for five years, I’m here following in my old Cravath colleagues’ footsteps teaching ERISA law at NYU—albeit only as an adjunct professor, and albeit not really in labor law, but still holding enormous respect for my old colleagues and for the shop down on Wall Street where all got our start. What fun. And it still is. n

UN Internal Justice Council

In 2016, United Nations (UN) General-Secretary Ban Ki-moon appointed Labor Center Faculty Director Samuel Estreicher to a four-year term as a distinguished external jurist on the UN Internal Justice Council, handling staff-management disputes at the international organization. Estreicher has asked his council colleagues to introduce the important work of the council to readers of NYU Labor & Employment Law News:

Continued on page 20. Newsletter of the NYU Center for Labor and Employment Law

19


Administration of Justice Reform at the UN—A View by Carmen Artigas and Frank Eppert The views expressed in this article are those of the authors only and do not represent the official views of the Internal Justice Council or all of its members.

A. Background

Member States, the system started to show its age and its inefficien-

The United Nations (“UN”) is a public international organization

cies. Two of the biggest complaints were the lack of management

established by treaty. When established in 1945, the UN was com-

engagement in ensuring that the system worked, and the systemic

posed of 51 Member States. Today, there are 193. Staff members of

delays in disposing of the cases. At the AT, the cases were almost

the UN and its funds, programs, and specialized agencies carry

entirely decided based on the papers alone. Justice was not seen

out their work in 120 countries around the world, very

being delivered. It was “normal” to see employment

often in challenging and dangerous circumstances.

disputes drag on for years. The staff representative asso-

In 2017, the staff of the UN consisted of 105,000 peo-

ciations demanded change and after some four years

ple and a further 90,000 soldiers (the so-called [UN]

of effort, succeeded—with support from progressive

“blue helmets”) serving in Security Council-authorized

managers—in lobbying the GA to enact legislation in

peacekeeping or peace-enforcement operations. It is

2009 establishing a new system for the administration

not possible to enumerate in this article the UN’s scope of work, which, regrettably, does not always receive its

of justice at the UN (“the New System”). Artigas

Education, justice, human rights, refugees, development

B. The New Administration of Justice System

assistance, emergency food and shelter, assistance

The New System represented a significant change from

just due from the general public or government leaders.

to migrants, health, trade, and anti-terrorism are but

the old. Peer review was eliminated, and a two-tiered

some of the activities undertaken by the UN to try to

judicial system was established composed of a Dispute

improve the human condition.

Tribunal (“UNDT”) and an Appeals Tribunal (“UNAT”).

All UN activities are carried out by its thousands of employees having different employment contracts and

Eppert

The UNDT, with nine full-time judges,1 was established with seats in three major UN duty stations: New York,

varying conditions of service. While generally considered to be a

Geneva, and Nairobi. The Old System was headquarters-centric

good employer, the UN is not a perfect one; nor is its staff perfect

in New York. Tribunal registries were also established, and staff,

human beings. The UN is not immune from misunderstandings,

including legal officers, was employed to assist the judges with

contract disputes, abuse of power, prohibited bias, and other employ-

their duties. The legislation (GA Resolutions 61/261 and 62/228)

er-employee disputes (collectively, “disputes”). Enter the adminis-

established the New System of justice as an “independent, trans-

tration of justice system, whereby the UN’s General Assembly (“GA”)

parent, professionalized and adequately resourced decentralized

legislatively provided various internal processes for the resolution

system.” It provided for the appointment of an ombudsman to

of disputes. The internal processes were necessary inasmuch as

encourage informal resolution of disputes and the establishment

the UN is immune from legal process under the Convention on

of a five-member Internal Justice Council (“IJC”) “to ensure inde-

the Privileges and Immunities of the United Nations (1 UN Treaty

pendence, professionalism and accountability in the system” and

Series 15). The primary—although not only—components of the

“to provide its views to the GA on the New System’s “implementa-

internal system were the Joint Appeals Board (“JAB”), the Joint

tion.” To accomplish this task, the IJC meets regularly and holds a

Disciplinary Committee (“JDC”), and a single-tier Administrative

week-long series of meetings with the New System’s stakeholders

Tribunal (“AT”). The JAB and the JDC were “peer review” bodies

to ascertain how the system is doing in achieving its goals. The IJC,

which would determine the facts and make recommendations to a

which is composed of two staff and two management nominees

decision-maker, normally a senior-level UN Under-Secretary-Gen-

and is chaired by a distinguished jurist recommended by them to

eral. That decision was appealable to the AT, which would issue a

the secretary-general, was also tasked with the important role of

binding publicly issued judgment on the cases.

recruiting and recommending judicial candidates to the GA for

In its early years, the administration of justice system described

appointment to the two tribunals. The judicial recruitment exercise

above (“the Old System”) seemed to work satisfactorily, dealing

is undertaken on a worldwide basis and seeks, in accordance with

with a relatively low number of cases. However, as the years went

resolution 65/251, to find “outstanding judicial candidates reflecting

by and the UN’s mandates and work were significantly expanded by 1 Starting this year, the UNDT is primarily a half-time bench: six half-time judges, and three full-time ones (resolution 73/276).

20

NYU Labor & Employment Law · Issue 16 · Winter/Spring 2020


appropriate language and geographical diversity, diverse legal sys-

Is the New System “professionalized”? Yes, the system is staffed

tems and gender balance.” The IJC undertook judicial recruitment

and serviced by professional, experienced judges, registrars, and

exercises this year and last.

attorneys. The New System has produced, and placed online for

C. The New System at 10 Years

internal and public access (see UN.ORG.AOJ), the tools considered necessary to understand and navigate the system. However, in a very

So, how is the New System being implemented? How is it doing

unexpected way, the professionalism of the system has been weak-

10 years on? In truth, it’s a work in progress. The New System’s

ened somewhat over the past two years by a lack of adherence in some

two benches function independently in carrying out judicial work,

respects to the Code of Conduct for judges (“Code”) by members of

although some former UNDT judges complained that they were

the UNDT bench. Diligent performance of judicial duties, and timely

insufficiently independent from the central administration due

issuance of judgments, were among the areas found wanting. So too

to lack of control over budgetary resources and the fact that the

was collegiality on the bench. In looking at the situation, and even

registry staff worked for the judges but, as staff members, were

attempting a failed mediation of sorts, the council noted that the

under the secretary-general’s authority. What counts in the IJC’s

authority of the tribunal presidents under existing instruments were

view is whether the judges were able to carry out their judicial

inadequate to effectively deal with individual judicial performance

work without interference from any source, including Member

objectively assessed as needing improvement. A number of remedial

States and the secretary-general’s representatives. Despite the

suggestions have been made by the IJC to improve the situation

complaints, and some concern about the New System’s structure,

(see A/74/169, paras. 15-31) and it has good reason to believe that,

there was no substantive concern regarding judicial independence.

professionally speaking, things will be back on a positive track soon.

Is the New System sufficiently “transparent”? In several respects, no. The AT, which convenes for two-week sessions three times a

D. Final Comments

year, was holding in recent years an insufficient number of open

The New System has made good progress in achieving the goals

hearings, including in cases of systemic importance to both employ-

set by Member States 10 years ago. Despite some bumps along the

ees and employers. Although being worked on, the New System

road during its first decade, and building on lessons learned, and

currently lacks both a readily accessible digest of AT jurisprudence

assuming continued future support from its Member States, the

and a publicly available electronic “dashboard” showing real-time

UN’s New Administration of Justice System’s future capacity for

case status. There is also no transparency for decisions taken by

rendering timely justice regarding employment disputes is looking

the secretary-general on referrals for accountability by judges,

good. Indeed, taking a look back not 10 but rather 20 years ago,

which is expressly provided for in the statutes of both tribunals.

the New System represents a real achievement. n

In its 2019 and 2018 reports (A/74/169 and A/73/218), the IJC has called the GA’s attention to these transparency-related issues and

Carmen Artigas, Uruguay, has been since 2013 an external expert

is expecting improvements will be forthcoming in the near term.

nominated by Internal Justice Council staff. From 1984 to 2013, she

Is the New System adequately resourced? Certainly, in com-

served as a member of the UN Internal Justice Council, pro bono staff

parison to the Old System, it is. But it’s not an “apples to apples”

advisor and representative on behalf of UN Unions and Associations,

comparison. The Old System had neither full- nor half-time judges

in matters referring to the administration of justice; harassment,

and largely relied on serving staff to undertake “peer reviews” as

including sexual harassment, discrimination and abuse of authority;

part of their work. Moreover, it is inadequately resourced in one

due process in investigations and disciplinary proceedings. During

particular respect having to do with the provision of “free” legal

the same period, Artigas was a pro bono litigator on behalf of staff

advice to the staff. The concerned office providing those services

members in the former and current systems of administration of

is partially funded by staff contributions from salary placed into

justice. From 1981 to 2016, she was a UN legal officer focused on the

a “voluntary” supplementary funding mechanism, which pays

right to development; international law of sustainable development

for some of the staff providing the free service. All staff members

and natural resources; peace building; and implementation of inter-

automatically contribute to this voluntary fund but may take

national legal instruments against transnational organized crime,

action to “opt out.” Apparently, there was a political demand

including smuggling of migrants and trafficking in human beings.

from Member States around the time the New System was being

Frank Eppert (JD, Brooklyn Law School, 1987) served with the UN for

established that the staff contribute to cover the cost of the free

37 years in a variety of positions and in different UN duty stations. His

legal services. The unfortunate aspect of that political decision

service includes 13 years in the Legal Office followed by years of service

is that it does not accord with Article 17 of the UN Charter, which

as chair, respectively, of the Contracts Committee, the Compensation

expressly provides that the expenses of the UN are to be borne

Board (workers’ compensation board), and the Joint Disciplinary

by its Member States. The IJC has flagged the issue in its last two

Committee. The secretary-general appointed him to the Internal

reports, but it is not expected that the GA will alter course.

Justice Council in 2016.

Newsletter of the NYU Center for Labor and Employment Law

21


Equitable Health Savings Accounts by Samuel Estreicher and Clint Wallace This essay is based on Samuel Estreicher and Clinton G. Wallace, “Equitable Health Savings Accounts,” 55 harv. j. on leg. (2019).

C

urrent policy provides a tax deduction for contributions

on cash grants, and that calibrates the government subsidy to

to HSAs made by individuals and families enrolled in

help the least well-off and to facilitate participation in health

certain high-deductible health insurance plans.1 Invest-

care markets. We critique.

ment gains on funds in an HSA account are exempt from taxa-

Our proposal introduces targeted cash grants to allow people

tion; the accounts are intended to cover medical expenses and

with few economic resources of their own to benefit from HSA

can be used for some other purposes as well. Republicans have

subsidies. This new version of HSAs will cover out-of-pocket costs

focused on HSAs as an element of various health reform plans,

that are not likely to be covered by an insurance program, so as to

but Democrats remain steadfastly opposed to expanding HSAs on

facilitate participation by individuals, including those at the lower

distributional grounds and have focused on larger-scale reforms

end of the income spectrum. The proposal consists of a multipart

such as “Medicare-for-all” and “single-payer” plans.

subsidy: a cash grant of $300-$1000 per individual for low-income

In any event, there will almost certainly be a continuing need

people, and a tax credit worth the same amount to higher-income

for policymakers to consider out-of-pocket costs—i.e., the costs

people. All gains on funds in Equitable HSA accounts will be exempt

incurred by patients to cover health care services

from income tax so long as the funds are used

that are not covered by insurance. These costs

for health care expenditures. This multiform

include deductibles, which are the amounts a

subsidy allows lower-income people to enter the

patient must spend before health insurance

market and incentivizes higher-income people

begins to cover costs, and co-pays and co-insur-

to set aside money for health care spending.

ance, which are flat fees or percentage shares

We also propose to loosen the prerequisites

that patients are charged for particular types of

for accessing an HSA—unlike current policy, a

services covered by insurance. A recent report

high-deductible plan would not be required—

by the Federal Reserve found that 23% of adults

while imposing more stringent requirements

had a “major unexpected out-of-pocket medical

to ensure that HSA funds are actually spent on

expense” in the prior year, and 25% passed on at

health care. Figure 1 summarizes the difference

least one health care intervention due to afford-

between current HSA policy and our proposed

ability during the same period.2 Moreover, 10%

Equitable HSAs.

of adults (24 million individuals) reported they

Clint Wallace

owed debt on out-of-pocket medical expenses

Along with other reforms we propose, this expansion of HSAs to a larger portion of the

incurred in the previous year, and 44% said they “could not cover

population will advance the Republican goal of stimulating market

an emergency [medical] expense costing $400” or could cover it

forces in health care provision and the Democratic goal of more

only by borrowing money or selling something.3

egalitarian health care policies.

Although the current HSA policy falls short of achieving the

More broadly, many market-based policies enacted since the early

stated goals of advocates, we believe HSAs hold the promise of

1980s have not included the cash grant mechanism and have tended

addressing the problem of inadequate savings to cover out-of-

to reduce redistributive benefits by shifting risks from government

pocket health care expenses, and can be designed to meet equity/

to private individuals, leaving individuals to fend for themselves

distribution concerns raised by their progressive critics.4 We

more often and in more contexts. For example, section 401(k) and

recently proposed “Equitable Health Savings Accounts,” which

403(b) retirement savings accounts (which have widely replaced

is a market-based, consumer-driven social program that relies

defined benefit plans for private and public sector employees alike)

1 26 u.s.c. § 223.

cies fail to account for individuals who simply do not have money.

2 bd. of governors of the fed. reserve, report on the economic well being of u.s. households in 2016, 2 (2017), https://www.federalreserve.gov/ publications/files/2016-report-economic-well-being-us-households-201705.pdf [https://perma.cc/U7BM-6ZWF]

to promote market participation with attention to distributional

shift the risks of retirement to individuals. But these sorts of poli-

3 Id. 4 This article focuses on health care expenditures not usually covered by insurance. It assumes the continuation of the ACA or other federal programs to subsidize hospital and provider costs on basic health care services.

22

NYU Labor & Employment Law · Issue 16 · Winter/Spring 2020

Support along the ideological spectrum for cash grants as a way effects offers hope of moving past partisan wrangling whereby progressives and market libertarians are essentially unable to engage with one another because they perceive their policy goals to be mutually exclusive.


It is past time for HSAs as they currently exist to be reexamined

concerned with equity in government aid. Equitable HSAs also

and reformed. Equitable HSAs can help control costs without

help illuminate the utility of cash grants as a policy mechanism

sacrificing health care consumer autonomy, focusing govern-

that can potentially bridge the divide between Democrats and

ment subsidies in a way that increases the government’s bang-

Republicans on some social program. n

for-its-buck in promoting informed consumption of health care services. At the same time, Equitable HSAs can strengthen the

To read the full article: https://harvardjol.com/wp-content/uploads/

progressivity of the tax code. This should be a win-win for propo-

sites/17/2019/08/HLL205_crop.pdf

nents of market-based policy solutions, as well as for egalitarians

Figure 1: Comparison of HSAs and Equitable HSAs Features of Policy

Health Savings Accounts (Current Policy)

Equitable Health Savings Accounts

Initial Subsidy Amount

$0 to $2553 per household depending on family size and income (higher subsidy for higher income because subsidy is in the form of deduction).

$0 to $300 per individual, varying based on income (cash subsidy for low-income people; limited and diminishing tax credit for households with income over 4x the Federal Poverty Line; no subsidy for incomes over 10x the Federal Poverty Line).

Deferral Benefit

Unlimited deferral of tax on balances (greater subsidy for higher-income account holders who pay out-of-pocket for health care expenses).

Deferral of tax on balances, but requirement that at least 70%-80% of health care costs each year must be covered from HSA funds, or lose tax benefits for the year.

Use of Funds for Medical Expenses

Funds can be withdrawn for qualifying medical expenses such as medications, doctors’ visits, and procedures.

Broadens what funds are allowed to be used for, including over-the-counter medications and treatments such as weight loss treatments, fertility treatments, and dental services.

Penalties for Non-Medical Expense Withdrawals

Funds withdrawn for other uses are subject to income tax and additionally taxed at 20%.

Withdrawals for any expenses other than qualifying health care costs are subject to a 100% penalty up to the subsidy amount, and withdrawals beyond the subsidy amount must be included in income and subject to an additional penalty of 20%.

Use of Funds Over Age Sixty-Five

Funds can be withdrawn for any purpose without any tax or penalty by any account holder over age sixty five.

Penalties remain applicable over age sixty-five; funds can be used without penalty for Medicare supplement premiums (and out-of-pocket medical costs).

Treatment When Account Holder Dies

Beneficiary includes HSA balance in income; no penalties for non-health care expenditures by beneficiary.

Beneficiary can continue to use HSA funds as HSA funds (with limitations described above), or include in income and pay 20% penalty to remove restrictions.

Newsletter of the NYU Center for Labor and Employment Law

23


Beaten Down, Worked Up: The Past, Present, and Future of American Labor Steven Greenhouse joined the Spring meeting of the Labor Center Advisory Board to discuss his new book: Beaten Down, Worked Up: The Past, Present, and Future of American Labor (Knopf, August 2019). Greenhouse was a reporter for the New York Times for 31 years, spending his last 19 years there as the Times’ labor and workplace reporter, before retiring from the paper in December 2014 as a senior writer.

Steven Greenhouse on his book:

Memphis Sanitation Workers’ Strike of 1968, I profile one of the

At a time when labor unions are on the defensive and millions

heroic strikers, Elmore Nickelberry, and describe Martin Luther

of American workers are being squeezed in myriad ways, I have

King Jr.’s fateful support of the strike.

written a book, Beaten Down, Worked Up, that I hope will be timely

In its third section, the book traces the decline of labor unions

and important. It explores how unions have lifted tens of millions

and worker power, examining the air traffic controllers’ disastrous

of American workers, played a pivotal role in building the world’s

strike against Ronald Reagan in 1981, globalization’s harmful

largest, richest middle class, and helped create

effects on unions and workers, and Scott Walk-

a fairer, more democratic America.

er’s assault against public-sector unions. I also

This book examines an important, but

devote chapters to how corporate America has

largely unappreciated issue: workers and

grown far more aggressive in battling against

unions were once at the center of the nation’s

unions and how unions have too often hurt

conversation and politics, but nowadays work-

their own cause—and hurt workers—through

ers’ concerns have too often been sidelined in

corruption and through discrimination against

politics and many workplaces. I explore how

women, blacks, Hispanics, and Asians.

this has fueled some of America’s biggest prob-

In its last section, I examine several highly

lems, including increased income inequality

innovative and successful modern-day efforts

and anemic wage growth.

that have lifted workers. There is an extensive

The book’s opening chapters describe the troubled state of workers, labor unions, and worker power in modern-day America. I pro-

history of the Fight for $15 and its successes. I also Steven Greenhouse

file a longtime, low-wage fast-food worker in Kansas City whose

write about the Coalition of Immokalee Workers, a far-sighted group that has done wonders in lifting thousands of Florida farmworkers, and the St. Paul Federa-

family has been pushed into homelessness, and I write about

tion of Teachers, which has pioneered a strategy called Bargaining

how the decline in worker power has led to, among other things,

for the Common Good that builds labor-community alliances and,

mining disasters and an increase in abusive practices like wage

in this case, has helped not just teachers, but also students and

theft and sexual harassment. I devote a chapter to the Culinary

parents. I also write about the extraordinary #RedforEd teachers’

Workers Union in Las Vegas to show what a

strikes in West Virginia, Oklahoma, and Arizona,

model union can accomplish—it has done an

and I devote a chapter to Kaiser-Permanente, the

extraordinary job catapulting thousands of

nation’s largest, most successful labor-manage-

hotel housekeepers and dishwashers into the

ment partnership, which has improved health

middle class, and on the political front, it has

care services along with workers’ morale and

done wonders to turn a red state, Nevada, blue.

wages. I also examine the fledgling efforts to

In the book’s second section, I recount

build worker power in the gig economy and

the rise of labor unions and worker power

labor’s response to the new wave of technology,

in America, focusing on inspiring episodes

robots, and artificial intelligence.

and historic figures that were pivotal in lift-

I conclude with a lengthy discussion of how

ing workers, including the women garment

we as a nation can increase workers’ power

workers’ Uprising of the Twenty Thousand in

and how strengthening workers’ power and

New York in 1909, the Triangle Fire, the great

voice could go far to fixing many of America’s

Frances Perkins, the Flint Sit-Down Strike of

most important problems, including income

1936-37, and Walter Reuther and the Treaty of

inequality, wage stagnation, and a political

Detroit, which played a seminal role in building

system that’s far too dominated by corporations

America’s middle class. In my chapter on the

and the wealthy. n

24

NYU Labor & Employment Law · Issue 16 · Winter/Spring 2020


Board and Friends of the Labor Center Steven Arenson (Arenson Dittmar & Karban) made the Labor Power 100 list honored with a profile in the special issue of City & State magazine. The special issue was unveiled at a reception gathering government, advocacy, academia, media, and business in lower Manhattan.

Mark Brossman ’78, LLM ’81 (Schulte Roth

David Gregory

& Zabel) was recognized as “Labor Lawyer

IN MEMORIAM:

of the Year—Management—New York City”

David Gregory It is with great sadness that the Labor Center reports of the passing of Professor David Gregory, who was the Dorothy Day Professor of Law and executive director of the Center for Labor and Employment Law at St. John’s University School of Law. Professor Gregory and his center were co-sponsors of the NYU Annual Conference of Labor for many years, and he was a frequent participant in our programs. The Labor Center has long admired his extraordinary dedication to his students and the pivotal

as selected by Best Lawyers.

Lee R. A. Seham ’87 (Seham, Seham, Meltz & Petersen) was featured on CNN in a whistleblower case alleging retaliation for a female Delta pilot disclosing safety concerns. The clip is available here: https://youtu.be/ opJFc7INAys. References to this case also appeared in the New York Times, Washington Post, Politico, Atlanta Journal-Constitution, and the Associated Press.

Michael Gray (Jones Day) was on the legal

role he has played in the development of St. John’s Labor

team representing McDonald’s in the closely

Center. To read recollections of and tributes to Professor

watched case of Salazar v. McDonald’s Corp.,

Gregory, please see NYU Labor & Employment Law News

securing a determination from the US Court

Issue 14, 2018.

of Appeals for the Ninth Circuit that McDonald’s was not a joint employer with its franchisee and thus not liable for wage and hour violations.

More Professor Estreicher in the news: “Untethered Textualism in the Seventh Circuit’s Kleber Ruling on Age Bias in Hiring,” by Samuel Estreicher, in Verdict on Justia.com, March 21, 2019: https://verdict.justia.com/2019/03/21/ untethered-textualism-in-the-seventh-circuits-kleber-ruling-on-age-bias-in-hiring “The Fifth Circuit Pushes Pre-Enforcement Review Too Far in Barring the EEOC from Publishing Guidance on Title VII’s Regulation of Ex-Convict Employment Bars,” by Samuel Estreicher, published in Verdict on Justia.com, August 14, 2019: https://verdict.justia.com/2019/08/14/the-fifth-circuit-pushes-pre-enforcement-review-too-far-in-barringthe-eeoc-from-publishing-guidance-on-title-viis-regulation-of-ex-convict-employment-bars “Right to Control and Employer Status—Is Actual Control Required?” by Samuel Estreicher and Sara Spaur ’20 published in the Daily Labor Report on bloomberglaw.com, September 25, 2019: https://news.bloomberglaw.com/ daily-labor-report/insight-right-to-control-and-employer-status-is-actual-control-required INSIGHT: “NLRB Wrongly Rejects Employee Access to Company Email for Organizational Purposes,” by Samuel Estreicher and Christopher S. Owens, Bloomberg Law Daily Labor Report, Feb. 12, 2020. Labor Law, 2nd Edition (Concept and Insight Series), by Samuel Estreicher and Matthew T. Bodie has recently been published by Foundation Press, 2020, available on West Academic.

Newsletter of the NYU Center for Labor and Employment Law

25


Welcome New Board Members

Hathaway also has a long history resolving highly contentious matters, from allegations involving CEO sexual misconduct to addressing and resolving corporate campaigns being run by international unions. Hathaway’s practice

The Labor Center is pleased to welcome the following

currently focuses mainly on conducting due

new Advisory Board members:

diligence of labor and employment compliance by targets in deals, mostly for private

William (“Bill”) Dugan is a partner in Baker McKenzie’s Employ-

equity funds and sponsors, and he also con-

ment and Compensation Practice Group, residing in Chicago and

ducts oversight of compliance by portfolio

NY, chair of the US Disputes Employment Group, co-chair of the

companies of private equity funds.

North American Employment Disputes Group, and a member of the

A former stagehand working out of IATSE

Steering Committee for the North American

Local 8’s hiring hall in Philadelphia while in college and law school,

Employment and Compensation Practice.

Hathaway represents a number of major studios, networks, talent

He has been recognized as a leader in labor

agencies and live entertainment venues and serves on the Board

and employment law by Chambers, Super

of Trustees of Philadelphia’s Walnut Street Theatre and Lincoln

Lawyers, and Legal 500. Dugan represents

Center’s Counsels’ Council. He is also a member of the Board of

management in complex litigation in fed-

Visitors of his law school, the University of Pittsburgh School of Law,

eral and state courts, administrative agen-

where he helped establish the Derrick Bell Fund. He is also helping

cies, and other tribunals throughout the US,

to fundraise for the full endowment of the Derrick Bell Lecture held

including on trade secret and restrictive covenant matters, class

every fall at NYU School of Law. Hathaway started practicing in

and collective actions, and labor arbitrations. He also counsels

Philadelphia in 1979 and moved to New York City in 1982.

employers on a wide range of labor and employment issues. Dugan routinely litigates against the EEOC defending clients in

Amy Traub is Chair of BakerHostetler’s national Labor and Employ-

high-profile systemic cases, as well as class and collective actions

ment Group. Traub has earned recognition from several leading

under the Fair Credit Reporting Act, the Fair Labor Standards Act,

ranking organizations for her work in the field. She has received

and state wage hour laws. Dugan routinely represents clients in

consistent rankings from Chambers USA and was named a “Cli-

the financial industry, and regularly litigates before the Financial

ent Service All-Star” by the BTI Consulting

Industry Regulatory Authority.

Group in 2016, making her one of just 28

Virginia (“Ginger”) Hardwick, founding partner of Hardwick Benfer,

named by in-house counsel as the best in

has extensive experience representing employees in discrimination,

the nation for client service.

employment lawyers nationwide who were

whistleblowing, restrictive covenant, and wage payment litigation.

Traub advises C-suite executives, human

She also represents employers in both litigation and compliance

resources professionals, corporate compli-

matters, and she conducts independent work-

ance officers, and legal departments on all

place investigations. Her practice is centered

aspects of the employer-employee relationship. She also serves

in Pennsylvania and New Jersey.

as designated outside employment law counsel for dozens of

Hardwick has spoken and published regularly at CLE panels sponsored by the ABA

clients with respect to federal, state, and city agency complaints and federal and state lawsuits involving employment disputes.

Section of Labor and Employment Law and the National Employment Lawyers Associ-

Joseph J. Vitale has been a partner at Cohen, Weiss and Simon since

ation. She has taught trial advocacy, depo-

1999. Vitale has represented public and private sector labor unions

sition skills, and negotiation skills for the National Institute for

in all aspects of litigation before federal, state and bankruptcy courts,

Trial Advocacy. She has had numerous leadership roles in the

arbitration boards, and federal government

ABA Section of Labor and Employment Law.

agencies, as well as in collective bargaining,

In addition to years of private practice, Hardwick served as a

union organizing campaigns, strategic plan-

clinical professor at Seton Hall Law School, where she also taught

ning, and union governance matters. He also

legal research and writing. She is a graduate of Cornell University and

represents union-affiliated employee benefit

NYU School of Law, where she served on the Law Review. She clerked

plans in a wide variety of litigation.

for Judge John J. Gibbons of the Third Circuit Court of Appeals.

Vitale graduated from Haverford College, working college summers at Greyhound

Gerald T. Hathaway, a partner of Drinker Biddle & Reath, has

Lines as a member of Local 1202, Amalgamated Transit Union.

been representing management his entire career. In traditional

He graduated cum laude from Fordham Law School, where he

labor matters, Hathaway has a long history of representing large

served as a commentary editor of the Law Review. He is married

employers in mature bargaining relationships, and he regards

with two wonderful teenage daughters.

his role as being opposite unions, not necessarily against them. 26

NYU Labor & Employment Law · Issue 16 · Winter/Spring 2020


New York University School of Law Center for Labor and Employment Law

Advisory Board 2020 Steven Arenson

Virginia Hardwick

Theodore O. Rogers Jr.

Marshall B. Babson

Gerald Hathaway

Zoe Salzman ’07

Lee F. Bantle ’83

Jerome B. Kauff ’61, LLM ’65

Lee R.A. Seham ’87

Arenson, Dittmar & Karban

Seyfarth Shaw

Bantle & Levy

Allyson L. Belovin Levy Ratner

Jonathan J. Ben-Asher ’80 Ritz Clark & Ben-Asher

Laurie Berke-Weiss Berke-Weiss Law

Philip M. Berkowitz Littler Mendelson

Michael I. Bernstein

Bond, Schoeneck & King

Frederick D. Braid LLM ’79 Holland & Knight

Mark E. Brossman ’78, LLM ’81 Schulte Roth & Zabel

Larry Cary Cary Kane

Michael Delikat

Orrick Herrington & Sutcliffe

William Dugan

Baker & McKenzie

Eugene G. Eisner

Eisner & Associates

Eugene S. Friedman Friedman & Anspach

Hardwick Benfer

Drinker Biddle & Reath

Kauff McGuire & Margolis

Troy L. Kessler Kessler Matura

Jeffrey S. Klein

Weil, Gotshal & Manges

Alan M. Klinger ’81

Sullivan & Cromwell

Emery Celli Brinckerhoff & Abady

Seham, Seham, Meltz & Petersen

Samuel S. Shaulson

Morgan, Lewis & Bockius

Ronald H. Shechtman ’72 Pryor Cashman

Stroock & Stroock & Lavan

Steven M. Swirsky

Walter (“Terry”) Meginniss ’77

Amy Traub

Gladstein, Reif & Meginniss

BakerHostetler

Marjorie Mesidor

Joseph Vitale

Phillips & Associates

Cohen, Weiss & Simon

James M. Murphy ’89

Scott J. Wenner ’75

Spivak Lipton

Raymond Nardo ’90

Epstein Becker Green

Schnader Harrison Segal & Lewis

The Law Office of Raymond Nardo

Robert Whitman

Wayne N. Outten ’74

Daniel M. Young ’95

Outten & Golden

Davida S. Perry

Schwartz Perry & Heller

Andrew Peterson LLM ’85 Jackson Lewis

Seyfarth Shaw

Wofsey, Rosen, Kweskin & Kuriansky

Pearl Zuchlewski

Kraus & Zuchlewski

Faculty Director Samuel Estreicher

James Philbin ’92

samuel.estreicher@nyu.edu

John Ring

Director of Operations Torrey L. Whitman

Ceres Global

Jones Day

National Labor Relations Board

(212) 998-6149 torrey.whitman@nyu.edu

Todd Gutfleisch

Mark D. Risk ’84

Deputy Director Allison H. Schifini ’95

Michael J. Gray

Wechsler & Cohen

Mark Risk, PC

Mark W. Robertson

(212) 992-6289 allison.schifini@nyu.edu

O’Melveny & Myers

Newsletter of the NYU Center for Labor and Employment Law

27


New York University School of Law 139 MacDougal Street, 4th Floor New York, NY 10012 Phone: (212) 992-8103 Fax: (212) 995-4769

Samuel Estreicher Dwight D. Opperman Professor of Law Faculty Director samuel.estreicher@nyu.edu (212) 998-6226 Torrey Whitman Director of Operations torrey.whitman@nyu.edu (212) 992-8103 Allison Schifini Deputy Director allison.schifini@nyu.edu (212) 992-6289

Follow us on Twitter! @NYULabor Check our website for updates www.law.nyu.edu/centers/labor To request joining our mailing list, email labor.center@nyu.edu

The Labor Center Needs Your Support! The Center for Labor and Employment Law is an independent entity that relies solely on contributions from individuals and organizations, along with event ticket sales, to fund its programs and mission. All donations are tax-deductible to the extent allowable by law.

Online: You can donate online at www.law.nyu.edu/centers/labor/contactus

By mail: You can also contribute to the center by check. Enclose your name and address and make checks payable to the NYU Center for Labor and Employment Law, then send to: NYU Center for Labor and Employment Law New York University School of Law Wilf Hall 139 Macdougal Street, Room 420 New York, NY 10012

Thank you for your support!


Millions discover their favorite reads on issuu every month.

Give your content the digital home it deserves. Get it to any device in seconds.