labor/employment
Annual Conference on Labor Still Vibrant at 56 Years Old ncreasingly, employment law claims are being brought as class and collective actions. For plaintiffs, the class action device helps promote broader compliance with legal rules and provides a mechanism for funding litigation. For defendants, the prospect of group action significantly enhances the stakes of litigation, and often involves “bet the company” claims. To be effective advocates, lawyers and human resources experts must master not only the substantive law, but also the federal rule-making developments, and must have the ability to negotiate difficult group dynamics. For that reason, more than 120 professionals from around the country braved overcast clouds and torrential rains to attend the 56th annual NYU School of Law Conference on Labor, a two-day event. The program, coordinated by NYU School of Law Professor Samuel Estreicher, director of the Center for Labor and Employment Law and co-director of the Institute of Judicial Administration, began with a breakfast reception. Faculty and professionals mingled with colleagues, friends, and former students. Estreicher gave the participants a warm welcome at the door before making his formal introductory remarks, during which he called the group before him “the future of the country.”
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He stressed the huge responsibilities held by attorneys in labor and employment law, and urged his colleagues to rise to meet them. Estreicher then introduced Dean Richard Revesz as a “leading scholar in any field.” Revesz proudly pointed out that at 56, the Conference on Labor has a very long and distinguished presence in the legal community. Dennis Duffy, an attorney at AOL Time Warner, moderated the first panel, titled “Class Action Issues on the Federal Rule-making Front.” Judge Lee Rosenthal of the U.S. District Court for the Southern District of Texas chairs a federal rule-making committee that is considering changes to Rule 23 of the Federal Rules of Civil Procedure. Rosenthal said she would give conference attendees a “voyeur’s look” into the rule-making committee. She discussed the use of proactive employment law audits to help companies avoid high exposure claims, and offered insight as to what federal rulemakers have in store for class actions. The rest of the day’s events included a special presentation by the litigators who handled the Robinson v. Metro North class action; a presentation by Alan Fuchsberg (’79) of the Jacob D. Fuchsberg Law Firm, Katherine Parker of Proskauer Rose, and Richard Seymour of Lieff, Carbraser, Heimann & Berstein, on the impact of the Civil Rights Act of 1991; and
a commentary on this presentation from Theodore Rogers of Sullivan & Cromwell. The participants engaged in a working lunch, during which Vice Dean and Professor Stephen Gillers (’68) led a discussion about the “No-Contact” Rule, moderated by Todd Gutfleish, an attorney at JP Morgan Chase. Jeffrey Klein of Weil, Gotshal, and Manges opened the events of day two by introducing Roger King of Jones Day, who spoke about challenging class status and focused in particular on efforts to promote and defend privilege
To be effective advocates, lawyers and human resources experts must master not only the substantive law, but also the federal rule-making developments.
for internal studies of employment practices. King suggested that intra-company “turf wars” between human resources and legal departments are a typical source of privilegedestroying studies. Interjecting, Klein said, “You won’t have any privilege if the HR department does an assessment of compliance by themselves.” King agreed. “It’s a lot of horse hockey, but it comes back to bite the employer in the backside,” he said. King recommended that counsel be substantively involved in all phases of an audit in their capacity as counsel, stressing his words about the capacity in which they should be involved. He said, finally, that the structure of the report is critical. Courts tend to “split the baby” and allow the fact section of the report to be provided upon discovery, but they later defer to the defense counsel’s description of the nature of the opinion section. “By careful and thoughtful drafting, you may be able to convince the court that the evaluative element can be shielded by privilege,” he concluded. The debate among the next Dennis Duffy (left), an attorney at AOL Time Warner; Professor Samuel Estreicher, faculty director, Center for Labor and group of panelists highlighted the Employment Law; and Judge Lee Rosenthal of the U.S. District Court for the Southern District of Texas shared their different perspectives held by insights at the 56th Conference on Labor. AU T U M N 2 0 03
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