Nysba Fall 2017 | Vol

NYSBA FALL 2017 | VOL. 42 | NO. 2 Labor and Employment Law Journal A publication of the Labor and Employment Law Section of the New York State Bar Association www.nysba.org/LaborEmployment Message from the Section Chair By Seth H. Greenberg I write this message, my fi rst as Section Chair, in the has become this way as aftermath of Hurricanes Harvey, Irma, and Maria, and the result of the dedica- the recent bloodshed in Las Vegas, the worst mass shoot- tion and hard work of ing in recent U.S. history. Our thoughts and prayers are scores of practitioners with all those impacted by these events. Crises like these and neutrals in the fi eld put the daily “chaos” of our lives in perspective and force who have taken on us to prioritize what is most important. They also remind leadership roles. I want us of the value of organizations like our own, voluntary to thank our entire Ex- state bar associations that are committed to helping ecutive Committee for all those in need and to contributing thoughtful analyses to that you do: to promote the discourse on matters of public concern. Information and maintain the practice about how you can assist in the hurricane relief effort can of labor and employment be found on NYSBA’s website homepage. Also accessible law, to examine the pos- from the website is a 2013 report from State Bar’s Task sibilities of improvement Force on Gun Violence and a commitment by the Associa- and reform, to dissemi- tion to support bi-partisan legislation and other strategies nate and exchange ideas, and to further the education of for keeping guns out of the hands of violent people. The the Bar and the public, all central tenets of our mission. sympathy and support of NYSBA and its members for On behalf of everyone, I want to acknowledge and thank those most in need make me very proud of my involve- immediate past Section Chair Sharon Stiller and former ment and re-energizes my commitment to the Association Section Secretary Molly Thomas-Jensen for all of their and this Section. work over the past year. Their contributions have only made our Section even more vibrant. I also want to wel- The Labor and Employment Law Section, now more come our new Secretary Monica Skanes and Chair-Elect than 40 years old and a membership of more than 2,000 strong, is, in my own non-biased assessment, the best and continued on page 4 most accomplished Section in the entire Association. It NEW YORK STATE BAR ASSOCIATION Looking for past issues? Labor and Employment Law Journal www.nysba.org/LaborEmployment 2 NYSBA Labor and Employment Law Journal | Fall 2017 | Vol. 42 | No. 2 Table of Contents Message from the Section Chair..................................................................................................................2 (Seth H. Greenberg) Message from the Co-Editors ......................................................................................................................5 (Colin M. Leonard and Laura C. Monaco) How Do You Spell P-A-I-D-F-A-M-I-L-Y-L-E-A-V-E? An Exploration of New York’s Paid Family Leave Act ......................................................................................................................................6 (Theresa Rusnak) The Accelerating Evolution of Title VII’s Treatment of Sexual Orientation Discrimination ............12 (Geoffrey A. Mort) When Well-Intentioned Statutes Collide ..................................................................................................15 (Katie L. Birchenough) Rights Without Remedy: How Major League Baseball’s Collective Bargaining Agreement Denies Even the Game’s Biggest Stars a Legal Remedy Under the Theory of the Duty of Fair Representation, and Why This Is Not a Swing and a Miss ......................................................23 (Miller Lulow) ADA Reasonable Accommodations and the Interactive Process for Individuals with OCD ..........35 (Michael V. Gigante) Labor and Employment Law Section Fall Meeting Photos ..................................................................37 ERISA’s Church Plan Exemption: The Tragedy of St. Clare’s Underfunded Pension Plan .............48 (Kimberly Livingstone) Baseball Arbitration ....................................................................................................................................58 (Theodore K. Cheng) How Much Is Enough for a Fiduciary?: How Much Does a Mutual Fund Company Have to Disclose in Its Mutual Fund Disclosures Under the Department of Labor’s New Best Interest Contract Contract Exemption for Funds Governed by ERISA? ........................................61 (Rodgrick Hickman) The Labor and Employment Law Section Welcomes New Members .................................................71 Section Committees and Chairpersons ....................................................................................................72 Publication and Editorial Policies and Editors Contact Information ..................................................74 Section Officers ............................................................................................................................................74 NYSBA Labor and Employment Law Journal | Fall 2017 | Vol. 42 | No. 2 3 Cara Greene, both of whom I have and will continue to tive, and the speakers offered invaluable insight into their work with closely for the benefi t of the Section. subject areas. Mother Nature also played an important role, giving us beautiful weather that made the outdoor A few additional notes of appreciation are also in cocktail hour and our networking events (e.g. golf and order, though by no means is this an exhaustive list of in- a boat ride on Lake George) even more pleasurable. Our dividuals to whom we owe a debt of gratitude—to Allan dinner speaker featured the Honorable Paul Feinman, the Journal Bloom, outgoing Managing Editor of the , for all recently confi rmed Associate Judge on New York’s Court of his time and effort in putting together many fantastic of Appeals, who offered us insight into approaching ap- issues; to Colin Leonard and Laura Monaco, who have peals. Judge Feinman even attended portions of our edu- graciously agreed to take over for Allan as co-Managing cational program, offering compliments to our panelists Journal Editors of our (and who did a great job on this, for their grasp of the law and practice advice. We were their fi rst issue); to our CLE Co-chairs Alyson Mathews, also thrilled to have NYSBA’s President-Elect Michael Robert Boreanaz, and Abigail Levy, who did another Miller join us for the entire weekend, offering support amazing job in planning our Fall Meeting; and to our for our Section’s programs and encouragement for the unbelievable and awesome staff at NYSBA, with special continued success of our many efforts and initiatives. shout-outs to Section Liaison Beth Gould and Meetings Representative Cathy Teeter, both of whom are integral to The educational component of our Friday program our operations. featured plenary sessions on Independent Contractors and the “Gig Economy—A Developing Story and Back- There are so many things our Section does well—too lash Discrimination: National Original and Religious Dis- many to list here. From CLE programs and webinars to crimination in the Age of ISIS”. There were also breakout diversity and leadership development, our Section has workshops covering topics involving arbitration, immi- set the bar high and is often consulted for best practices gration, and retaliation. On Saturday, we were regaled by and “how to” tips. As I have said many times before, I be- a panel presenting “You’re Fired? The Current and Future lieve the strength of our Section lies within its committees Status of Labor and Employment Law at the Federal, which, through the outstanding leadership of our chairs, State and Local Levels Under the Trump Era”, and we fulfi ll the Section’s mission and goals. During my term as were reminded about (and offered advice on) “Ethically Section Chair, I hope our Section’s value can be further Dealing with Diffi cult Clients”. The sessions were interac- enhanced by a renewed emphasis on committee work. tive and engaging. Through our committees, we can continue to deliver great educational and networking programs, re-tool and We were also fortunate to have a number of fi rst re-energize our mentoring programs—both with new at- and second time attendees join us for the Fall Meeting, torneys and with new arbitrators—and double our efforts including several of our diversity fellows. Our Section’s in diversity and leadership development. I am hopeful Diversity Fellowship Program seeks to attract emerging we can also fi nally begin the planning process toward a leaders and increase the diversity of our Section’s mem- trial/arbitration academy and take a more active role in bership. Each two-year fellow is encouraged to attend advocating on issues and topics involving legislative and our meetings and participate in all Section activities. regulatory items. When we do all of these things, when Fellowship grants include payment of Section dues, Fall our committee system is running well, Section member- and Annual Meeting registration fees, and certain lodg- ship will grow, become even more diverse, and we will ing/travel expenses. Each fellow is also paired with a be able to attract active labor and employment law practi- member of the Section’s Executive Committee who will tioners to be our future leaders. act as a mentor, discussing leadership and professional opportunities among other issues

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