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Labor and Employment Law Journal a Publication of the Labor and Employment Law Section of the New York State Bar Association

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Labor and Employment Law Journal a Publication of the Labor and Employment Law Section of the New York State Bar Association NYSBA SPRING 2018 | VOL. 43 | NO. 1 Labor and Employment Law Journal A publication of the Labor and Employment Law Section of the New York State Bar Association Inside • New Feature: Section Spotlight • Quelled Speech: The Inconvenience of First Amendment Freedom of Speech • The National Labor Relations Board Arbitral Deferral Under Babcock • Representation and Reputation: The Old and New Variables of Arbitration • Annual Meeting Photos ...and more! www.nysba.org/LaborEmployment Message from the Message from the Outgoing Section Chair Incoming Section Chair By Seth H. Greenberg By Cara E. Greene “And do as adversaries Robert F. Kennedy do in law, Strive might- said, “Lawyers have ily, but eat and drink as their duties as citizens, friends.” but they also have spe- cial duties as lawyers. The Taming Of The Shrew, Their obligations go far Act 1, Scene 2 deeper than earning a living as specialists in Professionalism and corporation or tax law. collegiality are hallmarks They have a continuing of the legal bar. They are responsibility to uphold also the signature charac- the fundamental prin- teristics of a bar associa- ciples of justice from tion, and are the reasons which the law cannot why many of us joined. depart.” As busy labor Our Section has thrived and employment law because we foster relationships among our members. practitioners, it is easy to become so focused on the work CLE programs, academic periodicals, and vendor dis- that is on our desks (or computer screens) that we lose counts may be among the extra benefi ts members re- sight of our broader role in society. Active participation in the Labor and Employment Law Section reacquaints ceive. But the real value of our Section is the professional us with that role and provides us with tools to serve both community it creates, our group think approach to the our clients and society. law and legal practice, and the personal friendships that develop from active participation. The mission of the New York State Bar Association is consistent with Kennedy’s vision—attorneys who serve As Section Chair, I have sought to re-energize our their clients and the broader good. The mission of NYSBA committee system and to explore different ways to grow is (1) to cultivate the science of jurisprudence; (2) to pro- our membership. If bar associations, and our Section in mote reform in the law; (3) to facilitate the administration particular, are to remain relevant in 2018 and beyond, of justice; (4) to elevate the standard of integrity, honor, I believe we must always keep our focus on what we professional skill and courtesy in the legal profession; were looking for originally when we joined NYSBA. (5) to cherish and foster a spirit of collegiality among the Younger and newer attorneys may not care about the members of the Association; (6) to apply its knowledge insurance discounts that come along with bar association and experience in the fi eld of law to promote the public membership (though they should). Rather, they want good; (7) to promote and correlate the same and similar mentorships, networking, and writing opportunities, objectives in and among the bar organizations in the state of New York and in the interest of the legal profession the same benefi ts we sought when we fi rst joined and and the public; (8) and to uphold and defend the Con- what we continue to seek as more experienced attorneys. stitution of the United States and the Constitution of the Law students and newly admitted attorneys want to be state of New York. integrated into our committee work now. And we must embrace this energy and take risks, as risky as a group of NYSBA’s mission is fulfi lled in our Section through lawyers can be at least. excellent CLE programming; networking opportunities; monitoring of legislation; skills training for new attor- At our last Executive Committee meeting, I issued neys; diversity fellowships; and public interest efforts, the same challenge to our Section’s leadership that mo- among other things. I encourage you to take full advan- tivator Sean Corville issued to me and my friends when tage of all that the Section has to offer—join a commit- we ran our fi rst Tough Mudder (a 10 to 12-mile obstacle tee, sign up for a CLE or webinar, write an article for the course team challenge)—“When was the last time you Journal, participate in our online community, and come did something for the fi rst time?” It is the same chal- to beautiful Montreal, Quebec, October 12-13, 2018 for lenge I issue to all of you. Whether you are a law student, our Fall Meeting. Then take what you have learned back newly admitted attorney, or more experienced practitio- to your practices and use it to both help your clients and keep society moving forward. ner, I urge you to: Show up! Volunteer! Mentor! Serve on a committee! Write! Network! Organize a program! And, Thank you for the opportunity to serve as your chair yes, make lifelong friends! Along the way, I promise you this coming year. continued on page 4 Cara E. Greene 2 NYSBA Labor and Employment Law Journal | Spring 2018 | Vol. 43 | No. 1 Table of Contents Message from the Outgoing Section Chair ................................................................................................2 (Seth H. Greenberg) Message from the Incoming Section Chair ................................................................................................2 (Cara E. Greene) Message from the Co-Editors ......................................................................................................................5 (Colin M. Leonard and Laura C. Monaco) Section Spotlight ............................................................................................................................................6 (Carlos Torrejon, Jalise Burt and Nina Martinez) Quelled Speech: The Inconvenience of First Amendment Freedom of Speech ...................................7 (Onya Brinson) Ethics Matters ..............................................................................................................................................14 (John Gaal) New York Court of Appeals Establishes Lower Threshold for Punitive Damages Under NYCHRL ......................................................................................................................................16 (Anshel Joel “AJ” Kaplan and Howard M. Wexler) Book Review: Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality ........................................18 (Reviewed by Vivian Berger) Employee Threats to Critical Technologies Are Best Addressed Through a Formalized Insider Threat Risk Assessment Process and Program .....................................................................22 (Brian G. Cesaratto and Robert J. Hudock) The National Labor Relations Board Arbitral Deferral Under Babcock ...............................................25 (Dean L. Burrell) 2018 Annual Meeting Section Events Photos ..........................................................................................28 Join a Labor and Employment Law Section Committee .......................................................................30 Representation and Reputation: The Old and New Variables of Arbitration ....................................33 (Emily Little) Family and Medical Leave Act: The Need for a Uniform Policy in the United States .....................37 (Priyanka Verma) Abridgment of Employee First Amendment Rights: Bridging the Gap Between Employee Speech in the Public and Private Sectors .............................................................................................43 (Courtney Sokol) The Labor and Employment Law Section Welcomes New Members .................................................51 Section Committees and Chairpersons ....................................................................................................53 Publication and Editorial Policies and Editors Contact Information ..................................................55 Section Officers ............................................................................................................................................55 NYSBA Labor and Employment Law Journal | Spring 2018 | Vol. 43 | No. 1 3 continued from page 2 successes and always the voice of reason—we will dearly miss you! We wish Beth all the best of luck as she moves that your business will grow and you will have a more on to her next venture. I look forward to working with our personally fulfi lling legal career. Chair-elect Cara Greene and all of you to do my part in Over the course of the last year, our Section has fo- continuing to improve upon Section services and benefi ts. cused on many initiatives. We continue to produce timely and insightful CLE programs. This journal, along with With great appreciation, our other publications, offers great analyses of important Seth Greenberg legal topics. Our website has valuable resources and our Section Chair online Communities platform affords members the ability to push information out and to seek input from thousands 2018 Annual Meeting Retrospective of practitioners in the labor and employment community Our Annual Meeting took place January 25-26, 2018 in throughout the State. We continue to sponsor law school midtown Manhattan. On Thursday afternoon, three of our and trial academy programs. Our Executive Committee committees hosted special programs. In its annual tradi- members are becoming more engaged in the national and tion, the Committee on Labor Relations hosted the Region-
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