Virtual Trials-The Future is Now-Are You Ready?

One of our most popular speakers – Jeff Bast of Bast Amron – recently published an article called: “Virtual Trials-The Future is Now-Are You Ready?” for the American Bankruptcy Association’s Business Section Summer Newsletter.

Jeff recently spoke at our program: Business Bankruptcy 101: Chapter 11 Nuts and Bolts. Jeff was the program favorite!

We wanted to share this article with you, given the timeliness of topic – we know that you will find it helpful.

Click here to get to Jeff’s article: “Virtual Trials-The Future is Now-Are You Ready?” .

 

 

 

Inoculating Against the Coming Spread of Employee Lawsuits Related to COVID-19

One of our fabulous speakers, Brendan Begley, from Weintraub | Tobin, wrote this post (below) for their blog and I wanted to share it with you. We hold programs for both plaintiff’s and defense attorneys, and usually have both speaking at our litigation related programs. The below post is from the defense perspective, and will be valuable for all types of attorneys who may need to deal with this subject or these types of suits.

Brendan is teaching at/taught at our August 2020 Two-Part Webinar on “Covid-19 Impending Employment Litigation: ​Liability, Privacy and Arbitration – the new dos and don’ts for both sides of the aisle” program.  As the title suggests, we will have both plaintiff and defense attorneys speaking to provide a good variety of perspectives and anyone who needs to know more about this, will want to attend. It is an online program, on August 25 and 27.

Read on below, for a thorough analysis of the issues, originally appearing on Weintraub’s Labor and Employment Law Blog.

Inoculating Against the Coming Spread of Employee Lawsuits Related to COVID-19
May 28 2020
by Brendan J. Begley

The Labor & Employment Law Blog

As workplaces begin reopening in the coming weeks, attorneys are predicting a rash of lawsuits by employees against their employers related to the COVID-19 pandemic.  It seems clear that workers-compensation preemption may immunize employers from most civil actions alleging that employees became infected with the virus on the job.  However, other types of employee lawsuits may reach fever pitch.
There does not appear to be any vaccination to alleviate many of the anticipated claims.  Still, just as good hygiene practices may help flatten the curve of the actual coronavirus, good employment practices can help reduce the incidence of such lawsuits in your workplace.  Here are four types of employment claims that are likely to spread like a contagion as employees are expected to (or actually do) return to their jobs, along with some inoculations that employers should consider:

Disability Claims

According to at least one media outlet, the head of the U.S. Equal Employment Opportunity Commission’s New York office reported this week that charges accusing employers of failing to accommodate workers’ disabilities are outpacing any other allegation tied to COVID-19 in the Empire State.  Employers should anticipate similar developments here in the Golden State.
Indeed, California’s Fair Employment and Housing Act (“FEHA”) and its federal counterpart, the Americans with Disabilities Act (“ADA”), both prohibit disability discrimination and require employers to provide reasonable accommodations to disabled employees.  An ounce of prevention – by engaging in the interactive process (from a safe distance) with infected or otherwise disabled employees to identify reasonable accommodations – often is more economical than the pound of cure that would come from prevailing in a failure-to-accommodate lawsuit.

In this regard, employers should remember that each request for an accommodation must be analyzed independently, and that a leave of absence may constitute a reasonable accommodation.  Thus, if employees request a leave of absence, either to get over their own COVID-19 infection or to reduce the risk of being exposed to the coronavirus due to some preexisting disability that puts them at greater risk, serious thought must be given to fashioning a workable accommodation.

Some employers may find respite in the notion that a coronavirus infection might not constitute an actual disability under the ADA or the FEHA, as the illness typically impairs its victims moderately or for only a short duration of time.  But this brand of comfort is often an ineffective placebo and not a recommended treatment to prevent the spread of disability lawsuits.  That is because the effects of a COVID-19 infection may be more long-lasting or create a more severe impairment for some individuals.  Thus, it would be a mistake for an employer to assume that such an infection can never amount to a protected disability.
At the same time, both the FEHA and the ADA prohibit employers from discriminating on the basis of a perceived disability.  Thus, it is foreseeable that some employers might decide to treat certain workers differently than others because they believe certain workers have some other actual or perceived medical condition (e.g., a persistent cough, or diabetes, or an immunodeficiency, or Chronic Obstructive Pulmonary Disease).

Employers may worry that letting such vulnerable employees return to the job or interact with coworkers might make them more susceptible to getting or spreading COVID-19.  While treating such employees differently in this manner may seem (or even might actually be) an act of caring and concern that would rival Florence Nightingale, such actions can lead to costly challenges in court (especially if they are applied in a clumsy fashion).
Disability harassment is another type of claim that employers may anticipate.  One way this type of claim may arise is when coworkers, managers or supervisors develop a notion that a particular employee was (or is) infected with coronavirus and spread (or is spreading) the sickness to the workplace.  If such coworkers, managers or supervisors are allowed to harass, insult or ostracize an employee on that basis, the employer may find itself in need of some urgent care from lawyers.

Tameny Claims

The so-called Tameny claim is named after the California Supreme Court’s decision 40 years ago in Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.  Under the high court’s ruling in that case, a worker may pursue a lawsuit when he or she alleges that the employer terminated his or her employment in violation of some public policy.

It is difficult to tally how many Tameny claims are spreading in California, as the administrative agencies that handle claims of disability discrimination (or other types of discrimination, harassment or retaliation) typically are not responsible for investigating a Tameny claim.  So we may not know for many months how many Tameny claims have been filed in court; nonetheless, there is good reason to think the number will be high.
Keep in mind that California has a public policy that requires employers to “furnish employment and a place of employment that is safe and healthful for the employees therein.”  (Cal. Labor Code, § 6400.)  Also bear in mind that California has a public policy that prohibits employers from “preventing an employee from disclosing information to a government or law enforcement agency,” or to a manager or supervisor, “who has authority to investigate, discover, or correct the violation or noncompliance.”  (Cal. Labor Code, § 1102.5.)

With those public policies in mind, there are two general ways to become exposed to a Tameny affliction.  One arises when an employee is fired for refusing to execute some task on the job that actually would be unlawful.  The second arises when the employee is fired for complaining about what he or she reasonably perceives to be unlawful activity in the workplace (even if the activity in question turns out to be legal).
Regarding the first variety, it is easy to foresee the following scenario developing:  An employer directs an employee to return to work and the employee refuses and is fired.  If the employer instructed the employee to return before the government lifted restrictions for that specific workplace, terminating the employee for refusing to return may violate a public policy.  Likewise, if the employer waits until the restrictions lift but then fails to enforce regulations requiring social distancing or sanitary practices or the donning of personal protective equipment (“PPE”), firing an employee for refusing to work under such conditions may also be in violation of public policy.

Turning to the second type of Tameny ailments, it is equally easy to anticipate these scenarios occurring:  An employer directs an employee to return to work either before the restrictions are lifted or after the restrictions are lifted but without implementing or enforcing policies for social distancing, sanitation, or PPE.  The employee complies, returns to the job, and performs his or her work, but not quietly or without protest.  Instead, the employee complains about the workplace conditions, either to a governmental agency or a supervisor, and is subsequently fired.  Terminating an employee for complaining about such workplace conditions may be in violation of public policy.

One aspect of many Tameny claims that make them look less severe than other types of claims is that they often do not result in the employer having to pay the employee’s attorney fees.  However, given the other undesirable symptoms and bad side-effects that such lawsuits can trigger (e.g., lost productivity due to litigation, or the risk of emotional-distress and even punitive damages), that is a bit like telling a sick patient suffering from simultaneous chills and sweats that a fever of 103.8 degrees is not as bad as one that is 104 degrees.

Leave Claims

There are a number of federal and state laws that require various employers to provide a certain amount of protected leave to covered employees; for example, the federal Families First Coronavirus Response Act (“FFCRA”), the federal Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”).
The FFCRA was passed just this year to provide workers with protected leave if they have been impacted in various ways by the coronavirus and related shelter-in-place orders.  It has already resulted in what some might call an epidemic of lawsuits where employees have claimed that their employer interfered with their protected leave, denied them benefits, or fired them in retaliation for requesting leave.

Meanwhile, the FMLA and the CFRA are not geared specifically for coronavirus-related leaves, like the FFCRA is, but those laws may still protect such leaves of absence.  Making things more complicated, there may be overlap between these leave entitlements and some employers may be subject to all of these laws, while others are subject to some or none of them.

It is very probable that employers will be faced with many more leave requests, either to care for someone who has been infected with COVID-19 or to stay at home with a child whose school or daycare facility remains closed while some restrictions are lifted.  Of course, employees also may request leave to deal with other health conditions that deteriorated while they were unable to get routine medical treatment while sheltered in place.  Each leave request should be given serious consideration.

Discrimination Claims

Whereas some employers may be struggling with too many employees in need of leave, others may be grappling with having to lay off employees due to downturns in business as a result of the shelter-in-place restrictions.  In either scenario, care must be given to how such decisions are made and serious thought must be devoted to the potential results.
Such decisions may trigger claims under the FEHA or its federal counterparts, Title VII of the Civil Rights Act or the Age Discrimination in Employment Act.  Those laws bar making employment decisions on the basis of certain protected categories; for instance, age, race, national-origin, gender or religion.

When deciding which employees are going to be given leaves of absence, or laid off, or assigned to certain duties, consistent procedures and rationales must be followed.  Even then, under what is called the disparate-impact type of claim, a neutral policy or practice can lead to discrimination liability if it has a statistically disproportionate impact on a certain class of workers.

Inoculate Against Such Claims

There is no vaccine that will prevent or get rid of all such claims, but the harmful effects of such lawsuits can be ameliorated by following certain precautions.

First, be sensitive to actual or perceived disabilities, do not make medical assumptions, work hard to identify and implement reasonable accommodations for disabled employees, and be vigilant in guarding against harassment of employees on the basis of some perceived or actual medical condition.

Second, take every request for a disability accommodation or leave of absence seriously and analyze each one independently on its own merits.

Third, do not violate or direct your employees to violate governmental shelter-in-place, social-distancing, sanitary or PPE restrictions or regulations.

Fourth, whenever making a termination decision, be sure it is for reasons that have absolutely nothing to do with the employee’s refusal to violate some public policy or the employee’s complaints about reasonably perceived violations of some public policy.

Fifth, make certain that personnel decisions have nothing to with protected classifications (e.g., age, race, gender, religion) and carefully analyze how decisions may impact protected classes of employees.
Just as there presently is no medicine that is sure to eradicate the current pandemic, there is no one-size-fits-all regimen that will completely wipeout such employment claims.  Even these steps cannot completely immunize employers against all these types of lawsuits, yet failing to adopt such protective measures probably will increase the risk of exposure to these afflictions.
Finally, it seems obvious that getting prompt medical attention may stem the more serious effects of a disease; by the same token, obtaining early legal advice may decrease the incidence or cost of these exorbitant types of lawsuits.

USSC declines to take up a challenge to mandatory bar dues constitutionality

The Recorder reported this morning that the USSC declined to take up a challenge to the constitutionality of mandatory bar dues:

“A divided U.S. Supreme Court on Monday declined to reconsider two decades-old decisions upholding the constitutionality of mandatory membership in state bar associations.

In the case Jarchow v. State Bar of Wisconsin, Adam Jarchow and Michael Dean argued that compelled membership and fees in their state bar violated their First Amendment speech and association rights.

The two lawyers asked the justices to overrule Lathrop v. Donohue (1961) and Keller v. State Bar of California (1990), contending that the justices’ modern free speech decisions and the court’s recent ruling in Janus v. AFSCME, striking down union “fair share” fees, had “knocked the legs out from under” the Lathrop and Keller decisions.:

Read more at the Recorder’s link here.

The ABA’s 10 favorite podcast episodes of 2019

Podcast

We hope you are all having a great holiday season!

In case you haven’t checked it out yet, the ABA has put together a list of their favorite podcasts of 2019. We’re so happy to share that Faith Pincus’ podcast with Ashley Alfirevic of ABA Publishing, “Public speaking skills every lawyer should master,” has made the ABA’s top 10 episodes list!

In this episode of the Modern Law Library, Ashley Alfirevic speaks to Faith Pincus about how to ditch the notecards, engage the audience and ask the right type of rhetorical questions. You can access the podcast HERE.

You can also find more tips and suggestions on public speaking for attorneys HERE.

 

Lisa Haidostian is our Latest Featured Speaker!

Our latest featured speaker is Lisa Haidostian from McDermott Will & Emery!

Lisa will be speaking at our upcoming 9th Annual Circuit Court Boot Camp in Chicago on December 6th. Thanks so much for speaking for us, Lisa!

Lisa Haidostian focuses her practice on complex civil litigation. She has worked on significant matters involving products liability, trusts and estates controversies, tax controversies and internal government investigations.

Lisa has a wide range of litigation experience in both federal and state court, including taking and defending depositions, arguing motions, working with expert and fact witnesses, and managing complex electronic discovery.

Lisa serves on her Firm’s Recruiting and Pro Bono Committees and co-chairs the Firm’s Chicago Associates’ Forum. Lisa also maintains an active pro bono practice, including having first-chaired and won a jury trial on behalf of an indigent plaintiff who sustained injuries from an attack.

Michelle West is our Latest Featured Speaker!

Our latest featured speaker is Michelle West from Robinson Calcagnie!

Michelle will be speaking at our upcoming 14th Annual Superior Court Boot Camp in Los Angeles on November 8th. We’re glad to have you with us, Michelle!

Michelle West joined Robinson Calcagnie, Inc. in 2008 and has devoted her practice to obtaining recovery for individuals who are catastrophically injured due to defective products including vehicles, tires, skylights, machinery, and pharmaceuticals, among others. In addition to her work in product liability, Ms. West also handles cases involving premises liability, government claims, dangerous condition of public and private property, industrial or construction accidents, wrongful death, traumatic brain injury, amputation, carbon monoxide poisoning, injuries on cruise ships and excursions, and accidents involving big-rig trucks and other commercial vehicles.

Ms. West has recovered numerous seven figure results for her clients at both settlement and trial. Ms. West has also prepared appellate briefs for the California Court of Appeal, including the California Supreme Court, and has argued in front of the 2nd District Court of Appeal in Los Angeles.

Ms. West has an AV rating‚ the highest rating for legal ability and ethical standards under the peer review system of Martindale-Hubbell. Ms. West was also recognized as a Southern California Rising Star in 2010 and 2011 (an honor given to no more than 2.5 percent of attorneys under the age of 40 or practicing less than 10 years) and has also been selected as a 2016 Southern California Superlawyer. In 2014 Ms. West became a Fellow of the ABOTA National Trial College. Ms. West is admitted to the California Bar and the United States District Court‚ Central District. She is a member of the Consumer Attorneys of California‚ Consumer Attorneys of Los Angeles‚ Orange County Bar Association‚ Orange County Trial Lawyers Association‚ Los Angeles County Bar Association‚ and Women’s Lawyers Association of Los Angeles. Ms. West also serves on the Orange County Bar Association’s Administration of Justice Committee, a “blue ribbon” committee which reviews and comments on rules of court and other subject provided for public comment by the Judicial Council, Superior Court and the California State Bar, upon approval by the Executive Committee.

Michelle West graduated cum laude from Pepperdine University School of Law where she graduated in the top 10 percent of the class. Ms. West was an editor of the Pepperdine Dispute Resolution Law Journal‚ a member of the Moot Court Board, and a research assistant to Professor Kristine S. Knaplund. Ms. West received several awards for achievement during law school including the Witkin/West Group award for Academic Excellence for the highest grade in several courses and the CALI Excellence for the Future Award. Ms. West was also on the Dean’s Honor List. She received her undergraduate degree cum laude from the California State University at Long Beach.

In her free time‚ Ms. West enjoys marathons, ultra-distance running events and triathlons (completing 10 full Ironman® triathlons and achieving All World Athlete status). Ms. West has completed more than 50 marathons, several 50-85 mile runs, several 100 mile runs (finishing 1st place female twice), and the 135 mile Badwater® ultramarathon. Ms. West has finished in the top 100 women in the Los Angeles Marathon‚ has run the Boston Marathon twice‚ and raised money for St. Jude’s Children’s Hospital for the Marine Corps Marathon. Ms. West has also completed numerous ultra-distance cycling events, including over 50 century and double century rides, and raised money for cancer research with the Orange County Livestrong® Century Ride.

As part of her charity work, Ms. West serves as a Silver Level Honorary Board Member of the Los Angeles Trial Lawyers Charities (LATLC), an organization that makes a positive difference in the lives of needy persons and groups in the greater Los Angeles area.

Need seats at the new L.A. Rams stadium?

It’s an exciting time in L.A. with the new Rams stadium being built and Faith Pincus’ niece is handling corporate and individual sales. Since she is Faith’s niece, we get to pass on the info everywhere and encourage you to call her if your firm or company would like some type of corporate subscription or if you’d like early access to seats as an individual.

If you’re interested in learning more about how to get and utilize seats, call or email Faith’s niece, Sydney Pincus, at (424) 396-6855 or spincus@lased.com. Get a sneak peak of the new stadium here!

John Ruskusky is our Latest Featured Speaker!

Our latest featured speaker is John Ruskusky from Nixon Peabody!

John will be speaking at our upcoming 9th Annual Circuit Court Boot Camp in Chicago on December 6th. We’re looking forward to your presentation, John!

John Ruskusky, a partner in Nixon Peabody’s Commercial Litigation practice group, is a trial attorney who represents companies and individuals in their business disputes.

John has more than twenty years of trial, arbitration and counseling experience involving the management of complex business disputes and disputes involving law firms. He counsels businesses and their executives, members and owners in a wide range of disputes, including large business transactions (such as distribution and purchase agreements), medical devices, fiduciary duty claims and dissolution and valuation.

He also represents business clients with pre-litigation resolution of claims against their former professionals, including a recent case that settled with a multimillion-dollar payment to the client relating to faulty tax and transactional advice.

John represents corporate clients in a variety of False Claims Act cases, including those at the pre-intervention stage. His experience includes Department of Defense, Department of Education and General Services Administration matters. Additionally, he represents clients in government investigations and proceedings, including the Department of Defense, the Department of Justice and the Internal Revenue Service.

John also represents corporate clients in a variety of construction and real estate disputes, including construction defect and delay, property management, general contract, indemnity, Fair Housing Act and zoning matters.