ISSUE 1 • FALL 2007 CONTENTS 1 60TH ANNUAL LABOR CONFERENCE Faculty and audience examine retaliation and whistleblowing in 2-day conference NYU Labor & 3 INAUGURAL AWARDS DINNER Peter Hurtgen receives Center’s Award of Appreciation for his contributions to the field Employment MARVIN MILLER ROUNDTABLE 4 Unique baseball legend returns to his alma mater to discuss MLBPA NEWSLETTER OF THE CENTER FOR LABOR AND EMPLOYMENT LAW 5 ABA JOINT PROGRAMS Law Center and ABA team up for Litigation Workshop and Mid-Winter New York University School of Law Meeting 10TH FEDERAL JUDGES 6 WORKSHOP IJA-Labor Center Program explores issues dominating federal dockets JUDICIAL REVIEW Estreicher 9 indexes Supreme Court Decisions without getting political 9 HOLLAND ROUNDTABLE Dutch study group meets with DOL, EEOC and NLRB attorneys to discuss differences and similarities NYU 60th Annual Conference on DEPARTMENT OF LABOR 9 TRAINING Center holds Training Labor Examines Retaliation and Program for DOL attorneys at New York Regional Office Whistleblowers in the Workplace 9 PROGRAM ON RECENT NLRA Paul M. Secunda, University of Mississippi School of Law DEVELOPMENTS Inflatable rats and grad students were topic of discussion during active dialogue N MAY 31 AND JUNE 1, OVER 200 ATTORNEYS, in Washington government officials and academics partici- 10 2007–08 CALENDAR pated in the NYU Center for Labor and Employ- 11 CENTER PUBLICATIONS ment Law’s 60th Annual Conference on Labor 15 IN MEMORIAM on NYU’s campus in New York City. The labor Everett E. Lewis Judith P. Vladeck conference is the premier event sponsored by the Center and Morris P. Glushien O typically involves a good cross section of the members of the 18 ADVISORY BOARD Center’s Advisory Board. The focus of this year’s conference 20 COMMUNITY NEWS was retaliation and whistleblowing in the workplace. Welcomed 20 CONTACT THE CENTER by conference organizer and Center Director Professor Samuel 23 CONTRIBUTION FORM Estreicher of the NYU School of Law, attendees were treated 24 ABOUT THE CENTER to six panels over two days on nearly every aspect of the law The Center for Labor on retaliation and whistleblowing. • In addition, former NLRB and Employment Law Board Chairman Peter Hurtgen, senior vice president of labor relations of the Stop & Shop Supermarket Companies, and formerly of Morgan Lewis & Bockius, was honored for his The first panel discussed anti- for lawyer whistleblowers under the retaliation law after the Supreme Sarbanes-Oxley Act. Court’s decision in Burlington Northern The fourth panel, moderated by Daniel v. White. Michael Bernstein of Bond, Clifton of Lewis, Clifton & Nikolaidis, Schoeneck & King moderated a panel focused on retaliation provision in the consisting of Zachary Fasman of Paul, union environment under the National Hastings, Janofsky & Walker and Wayne Labor Relations Act (NLRA). Daniel Left: hon. Jonathan Outten of Outten & Golden. Their talks O’Gorman of Ford & Harrison discussed L. Snare, acting from left to right: solicitor, U.S. Samuel Estreicher, focused on what constitutes a judicially the right of non-unionized employees to Department of Labor Jonathan Ben-Asher, cognizable adverse employment action be free from retaliation for work-related Willis goldsmith, Right: hon. Wilma John fullerton III, for purposes of retaliation law and the complaints under the NLRA. Peter Liebman, member of and Michael Delikat growing disagreement among various Clark, an experienced regional NLRB the NLRB courts about the limits on employee attorney now with Kauff, McClain & protections under retaliation law in McGuire, addressed non-suit and release contributions to labor and employment law, with Bruce Raynor, different contexts. Professor David Sherwyn of the Cornell provisions in collective bargaining and severance agreements. Nine other leading practitioners and academics will provide 2 president of UNITE HERE, providing after-dinner remarks. University School of Hotel Administration, and a NYU Labor Former AFL-CIO General Counsel Laurence Gold of Bredhoff additional commentary on retaliation and whistleblowing law 3 Conference participants also heard from luncheon speakers Center research scholar, provided commentary. & Kaiser concluded with remarks on the current state of anti- in this country and around the world. Contributors include Acting Solicitor for the Department of Labor Jonathan Snare The first panel focused on statutory retaliation protections retaliation protections in the traditional labor context. Professors Eric Schnapper of the University of Washington and Member Wilma Liebman of the National Labor Relations under Title VII and other laws. The second panel, which Starting the second day of the conference, overall School of Law, Deborah Brake of the University of Pittsburgh Board, with introductory remarks from former Board Member Frederick Braid of Holland & Knight moderated, concentrated moderator Jeffrey Kohn of O’Melveny & Myers welcomed the Law School, Richard Moberly of the University of Nebraska Marshall Babson of Hughes Hubbard & Reed. on federal and state whistleblower protection statutes. The conference participants back for another day of dialogue. School of Law, Jonathan Macey of Yale Law School, Terry first panelist, Eric Taussig, former vice president and associate Moderated by Lloyd Chinn of Proskauer Rose and with lively Dworkin of the University of Indiana Business School, Cynthia general counsel for Philip Morris (now Altria), who currently commentary provided by Robert Herbst of Beldock Levine Estlund of NYU School of Law, Richard Carlson of South Texas serves as an arbitrator, mediator and legal consultant, & Hoffman, the fifth panel explored the implications of the College of Law, Orly Lobel of the University of San Diego Law 60th Annual provided a comprehensive overview of the different types Supreme Court’s decision in Garcetti v. Ceballos for public School, and Erica Collins of Paul Hastings.• CONFERENCE ON LABOR of federal whistleblowing claims available under federal employee whistleblowers and First Amendment retaliation statutory law. Michael Curley of Morgan Lewis then reviewed claims. Professor Paul Secunda of the University of Mississippi st Panel state whistleblower protection, noting the key distinctions in School of Law discussed the diminishment of public employee 1 Anti-Retaliation Under federal and State state laws and discussing specific state laws in depth. Next, speech rights in light of Garcetti and how the recognition of Discrimination and Wage-hour Laws; implications Ethan Brecher of Liddle & Robinson addressed whistleblower public employer expressive association rights in the Court’s The Labor Center of Burlington Northern v. White claims before the NASD and NYSE and the relative success Solomon Amendment decision could further reduce employee claimants have had obtaining redress for adverse actions protections. Barbara Spain, a member of the U.S. Merit Celebrates Peter J. Hurtgen nd Panel sustained as a result of resisting or complaining about Systems Protection Board, then offered insight into how eld on ThE eveniNg Of ThE first day Developments in State and federal Whistleblower 2 unlawful conduct by their employers. Charles Fournier, whistleblower complaints by federal employees are handled of the 60th annual conference, the Labor Protection Laws employment counsel for NBC Universal, and Eugene Friedman by her agency and the federal courts. Center’s inaugural awards dinner celebrating rd Panel of Friedman & Wolf offered spirited commentary. The penultimate panel of the conference considered distinguished contributions to the field of labor 3 Developments Under the Sarbanes-Oxley Act The conference’s third panel turned to emerging developments under state wrongful discharge law. Moderated and employment law was a signal success. developments in whistleblowing law under the Sarbanes- by Pearl Zuchlewski of Kraus & Zuchlewski, she and Cornell HAccompanied by many notable guests and faculty, the Center th Panel Oxley Act (SOX). Moderated by Michael Delikat of Orrick, Professor Sherwyn examined whistleblowing and retaliation celebrated the very special role played in our field by the Anti-Retaliation Protections Under the NLRA and 4 Herrington & Sutcliffe, panelists Willis Goldsmith of Jones issues under the common law of various state court Honorable Peter J. Hurtgen. Collective Bargaining Agreements Day and John Fullerton of Sullivan & Cromwell, along with jurisdictions. Peter Hurtgen, a former partner in the labor and th Panel commentator Jonathan Ben-Asher of Beranbaum, Menken, The final session brought back Dennis Duffy, former employment law firm Morgan Lewis & Bockius, focused 5 government Whistleblowers; implications of Ben-Asher & Bierman, all considered whether the law was employment counsel for Time Warner and now with Baker his practice on representing senior management in labor garcetti v. Ceballos effectively protecting those who engaged in whistleblowing & Botts in Houston, who presented the ethical issues matters, particularly with respect to complex issues activity involving the reporting of fraud against shareholders. confronting the in-house labor and employment lawyer. involving collective bargaining and the NLRA. From 2002 th Panel While Delikat focused on preliminary reinstatement orders Plaintiff counsel Darnley Stewart of Bernstein Litowitz Berger until December 31, 2004, Hurtgen served as the director Developments Under State Wrongful Discharge Laws 6 under SOX and other emerging legal developments