Faculty & Research
Labor and Employment Law Roundtables
May 6-7, 2012: Eleventh Annual Labor and Employment Law Roundtable
Labor and Employment Law Roundtable Program
May 15-16, 2011: Tenth Annual Labor and Employment Law Roundtable
Labor and Employment Law Roundtable Photographs
Labor and Employment Law Roundtable Program
The tenth annual Labor and Employment Law Roundtable, sponsored by the Cornell ILR and Law schools, first discussed a hot topic involving social media. The National Labor Relations Board (NLRB) ruled regarding Facebook, determining that Facebook communications are protected under what we used to think of as union law. In a case where an employee was dismissed for posting comments about her company on Facebook, the NLRB announced in April 2011 that a settlement was reached, and the board's position is that employees may use social networking sites to comment on working conditions.
An analysis of union–management relationships in the hotel industry, presented by David Rothfeld, partner, Kane Kessler, and Jim Zuehl, partner, Franczek Radelet, pointed to the numerous provisions that impede efficient operations. For example, Zuehl discussed a current arbitration where the union is trying to prevent hotels from buying machine cut vegetables, which are cut to exact size and thus perform more consistently in recipes, on the grounds that purchasing the vegetables violates a subcontracting clause. A key question is whether the unions and management could work together to eliminate employment statutes that neither the employers nor the employees desire. The sentiment is that in the current environment this will not occur.
Of great interest is the status of class actions generally and the Dukes v. Wal-Mart case specifically. In this litigation, the Supreme Court will determine whether all Wal-Mart employees can be considered a class. Michael Heise, professor at the Cornell Law School, set up the issue and then Cornell Professor Dawn Chutkow laid out the issues of what is necessary for a class to be certified under Rule 23, which is the number of the applicable rule. Chutkow and Joe Baumgarten, partner, Proskauer, analyzed the issues that the Court will likely consider. Baumgarten further focused on the oral arguments and the Justices' questions. He believes that Justice Kennedy, the so-called swing vote, seems skeptical that Wal-Mart can have a national policy of discrimination that is carried out by giving local managers discretion.
The roundtable also addressed the growing cause of retaliation, and the Thompson case. Gregg Gilman, partner and co-chair, labor and employment, Davis and Gilbert, and Ilene Berman, chair of the labor department at Taylor English Duma, set forth the question of who is now protected. In Thompson, a woman complained of sexual harassment and the company terminated her fiancé. The panel questioned whether boyfriends, girlfriends, siblings, roommates, or lunch buddies are protected. The law is developing and is unclear.
Finally, Carolyn Richmond, partner, Fox Rothschild, and Paul Wagner, shareholder, Stokes, Roberts, and Wagner, discussed the wage and hour nightmare in which plaintiffs' lawyers are going to states without specific laws and making common-law wage and hour claims. The issue of service charges is hot, as some courts have held that service charges can only be kept by the house if the client is aware that this is the case. Thus, companies are now putting long language in their contracts and even on restaurant checks to explain.
May 2-3, 2010: Ninth Annual Labor and Employment Law Roundtable
Labor and Employment Law Roundtable Program
Labor and Employment Law Roundtable Photographs
Participants in this year's Labor and Employment Law Roundtable debated the possible tradeoffs between arbitration and at-will employment. They also analyzed possible changes in discrimination law. The roundtable, produced by the Cornell Center for Hospitality Research, and sponsored by Cornell Law School and Cornell ILR School, was chaired by Associate Professor David Sherwyn, of the Cornell School of Hotel Administration.
The arbitration discussion started when Dave Sherwyn noted that Stokes, Roberts & Wagner has a number of clients who essentially trade at-will employment for an agreement to arbitrate employment issues. Under these contracts employees will only be fired for cause, if they agree to arbitration instead of court action.
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Left to right: Adam Klausner, Adjunct Assistant Professor, Cornell University School of Hotel Administration; Barry Hartstein, Partner, Morgan Lewis; and Greg Smith, Executive Vice President, Human Resources, Denihan Hospitality Group |
However, two other roundtable participants, Gregg Gilman, of Davis and Gilbert LLP, and David Rothfeld, of Kane Kessler, argued that employment-at-will is an important standard that employers should maintain. Gilman and Rothfeld also thought that arbitrators seeing such a contract might apply union cause standards, which are difficult to overcome. John Gessner, general counsel for Texas Wings, questioned whether he should exclude class actions from his arbitration policies. All participants agreed that arbitrators and class actions do not mix well.
In June 2009, the U.S. Supreme Court caused a minor earthquake in discrimination law, as it applies to age discrimination. In this case, Gross v. FBL Financial Services, the Court held that Jack Gross, 54, had to prove not just that age was a motivating factor in his demotion, but that the decision was "because of age." The difference between "because of" and "motivating factor" is important in jury instructions, reported Sherwyn and Cornell Law School Professor Michael Heise. Although employers' liability is not increased by the "motivating factor" instruction, Sherwyn and Heise explained, it does mean that juries unwittingly are awarding the attorney fees to the plaintiffs, which were paid by employers, regardless of the case's outcome. Often the fees are greater than any potential back pay owed the employee.
Gilman pointed to the Gross case as one source of potential new employment legislation, which would overturn the Gross ruling. Another issue was mandatory arbitration, which some legislators propose to outlaw. Department of Labor rulings regarding overtime are also of great concern to hospitality employers.
May 3-4, 2009: Eighth Annual Labor and Employment Law Roundtable
Labor and Employment Law Roundtable Program
Labor and Employment Law Roundtable Photographs
Labor and Employment Law Roundtable Proceedings
The prospects for changes in labor law remain up in the air, but employers have a new headache even if Congress takes no reform action. Meeting at the Cornell School of Hotel Administration, participants in the 2009 Labor and Employment Law Roundtable considered the idea that reform may occur without Congress. The roundtable, held in May 2009, was organized by Associate Professor David Sherwyn, academic director of the Center for Hospitality Research, which produces the roundtable series. The center invites participation from its partners and from academic experts in labor law.
With the election of the new Congress, many observers expected passage of the Employee Free Choice Act (EFCA), which has a key provision allowing certification of labor unions based on card checks, rather than a secret ballot. Many of the roundtable participants doubted the law would pass, but Professor Samuel Estreicher, of New York University, contended that reform could occur through the actions of the National Labor Relations Board, which oversees labor and management interactions.
In addition, the panel discussed Congress's response to the Supreme Court's 2007 decision in the case of Ledbetter v. Goodyear Tire and Rubber, Inc. This 2007 decision determined that long-time Goodyear employee Lilly Ledbetter, who argued she had been discriminated against with respect to her pay many years before, had waited too long to file a claim of discrimination. This year, however, Congress overturned the Court and held that in such situations each paycheck constitutes a new discriminatory act. Accordingly, a female employee who received a 3% raise in 1990 while her male counterpart received a 5% raise can sue within 300 days of her last paycheck she received from the company. While these cases will be hard to prove, the roundtable panelists believe that it will result in record-keeping nightmares.
Meeting jointly with the roundtable on management contracts, members of the Labor and Employment Law Roundtable examined the effects of employment law on hotel management contracts. One particularly contentious issue is whether the management company or the hotel owner should take control of labor negotiations. Sherwyn pointed out: "In 2006, the unions used a brilliant strategy; they split ownership and management and got what they wanted from the negotiations." Participants agreed that the management company may or may not have different priorities than the union. If the sides do differ the union can use this to its advantage.
May 4-5, 2008: Seventh Annual Labor and Employment Law Roundtable
Labor and Employment Law Roundtable Photographs
Labor and Employment Law Roundtable Program
Labor and Employment Law Roundtable Proceedings
The prospects for labor and management to establish a rational approach to union organizing drew representatives of both groups to the seventh annual Labor and Employment Law Roundtable, held in May 2008 at the Cornell University School of Hotel Administration. This is the first year that the roundtable has included participants with ties to organized labor. In addition to the session on labor organizing, the roundtable examined how employers can work with the Equal Employment Opportunity Commission (EEOC) and the pitfalls inherent in wage-hour laws.
The roundtable session on union organizing examined the newly minted "Ethical Code of Conduct in Union Organizing for Management and Labor.” Joining this roundtable session were Rick Hurd, a professor at the Cornell ILR School, and Richard Bensinger, the former organizing director of the AFL-CIO and the founder of the Organizing Institute. Developed by union and management representatives to remedy what both sides see as potential flaws in current practice, this code calls for a campaign by both labor and management, followed by an election in which employees decide whether to organize. Among its provisions, the code establishes new rules that require, among other things, access for union, no promises by the union, and honesty from both sides. (For a full description of the code see: www.employeechoice.org.)
This discussion, which also featured Dean Stewart Schwab (Cornell Law School) and Dean Harry Katz (Cornell's ILR School), broke new ground as union and management representatives combined with leading academics to debate a "fair" way to deal with union organizing. The management lawyers were intrigued by the idea, but still saw potential pitfalls. Joe Baumgarten of Proskauer Rose, for instance, stated that he was leery of a system that did not include a dispute resolution mechanism.
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Left to right: David Sherwyn, academic director, Center for Hospitality Research, and Gregg Gilman, partner, Co-Chair, Employment Practices, Davis & Gilbert LLP |
Working with EEOC: Pain and Pleasure
In the second session, Gregg Gilman, of Davis and Gilbert, and David Sherwyn, professor at Cornell, presented their research on management’s responses to discrimination claims from the EEOC. They suggested a “bi-modal” distribution of reactions. When they are presented with a discrimination charge, corporate counsel will take the charge seriously if they believe the EEOC might initiate litigation on the claim. However, if management and counsel determine that EEOC is not inclined to litigate, the company often sends a perfunctory response to the claim, and then waits to see whether the EEOC would resolve the charge through mediation or whether the claimant retained a lawyer. In any case, participants expressed a common concern that EEOC litigation is on the rise in some areas.
Running Afoul of Wage-Hour Laws
Carolyn Richmond, of Fox Rothschild, and Paul Wagner, of Shea Stokes Roberts & Wagner, led a discussion in which employers reported the horrors of compliance with wage-hour laws and how unintended violations of unclear technical points could turn into lawsuits that threatened a company's viability. As explained by Martha Lomanno, a 2008 graduate of the School of Hotel Administration, her preliminary state-by-state analysis of wage and hour laws demonstrates the complexities facing employers. The roundtable closed with a discussion of the vicissitudes of immigration law, led by Stephen Yale-Loehr of Miller Mayer, LLP. A chief problem identified by participants is the difficulty of getting visas for lawful workers and ensuring that all members of their work force are legally in this country.
May 18, 2007: Sixth Annual Labor and Employment Law Roundtable
Labor and Employment Law Roundtable Program
A recent decision by the U.S. Supreme Court may have unintended results, according to participants in the 2007 Labor and Employment Law Roundtable co-sponsored by Cornell's Center for Hospitality Research, Cornell Law School, and Cornell School of Industrial and Labor Relations. The decision in Burlington Northern & Santa Fe Ry. v. White expanded the types of employer action that might give rise to an employee claim. The unintended result, suggested Gregg Gilman, of Davis & Gilbert, is that it now may make sense to terminate an employee rather than trying to save the employee with a job performance plan.
This was just one of the current hospitality labor law topics covered in the Roundtable, which was held in May 2007 at the Cornell University School of Hotel Administration. Looking at the Supreme Court’s decision, Gilman, as well as Fox Rothschild LLP's Carolyn Richmond, suggested that employers now need to make a retention or termination decision as soon as they have "cause," because any delay—even one that is well meant—can help support the employee’s claim against the employer.
Another session examined sexual harassment, a situation that is often difficult for employers to prevent or resolve. Despite the fact that most businesses attempt to train employees to avoid sexual harassment, a study by David Sherwyn, associate professor of law at the Cornell University School of Hotel Administration, showed that employers who fail to train employees regarding harassment will still prevail when an employee brings a sexual harassment complaint.
Even if employers can skip the sexual harassment training and get away with it, several Roundtable participants would still counsel their clients to maintain anti-harassment training. Ilene Berman, of Taylor, Busch, Slipakoff & Duma LLP and Joe Baumgarten, of Proskauer Rose LLP, for example, explained that if a case gets to court an employer needs to show the court that it did everything possible to prevent the harassment. Beyond that, John Longstreet, of ClubCorp, said that it’s better to stay out of court in the first place by ridding the organization of sexual harassment.
May 7-8, 2006: Fifth Annual Labor and Employment Law Roundtable
The Center for Hospitality Research hosted its fifth Labor and Employment Law Roundtable on May 7-8. A select group of industry leaders from the following companies attended:
- American Food & Vending Corporation
- Campus Door, Inc.
- Cendant Timeshare Resort Group, Inc.
- ClubCorp
- Davis & Gilbert LLP
- Fisher & Phillips, LLP
- Four Seasons Hotels & Resorts
- Franczek Sullivan, P.C.
- Friedkin Companies, Inc.
- Grotta, Glassman & Hoffman, PA
- Jones Day
- Little Mendelson's
- LMDBLT
- Proskauer Rose LLP
- Seyfarth Shaw, LLP
- Shea, Stokes and Carter ALC
- Taj Hotels, Resorts & Palaces
- Texas Wings, Inc.
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From left to right: Robert Bernstein, partner, LMDBLT; Carolyn D. Richmond, of counsel, Seyfarth Shaw LLP; John Meyers, partner, Seyfarth Shaw LLP; Michael J. Lebowich, partner, Proskauer Rose LLP |
Key topics discussed included:
- Retaliation: The Hottest EEOC Charge?
- Privacy Outside the Workplace: What Can and Should Employers Monitor?
- Unite/HERE Negotiations 2006: What Does the Union Want? What will Happen?
- Wage and Hour: Class Actions & Audits.
- Hot Topics
August 9, 2005: Fourth Annual Labor and Employment Law Roundtable
The Center for Hospitality Research at Cornell University's School of Hotel Administration and the Cornell Law School recently sponsored the fourth annual roundtable on legal issues in the hospitality industry. Participants included counsel from lodging and restaurant companies, members of private-practice law firms, professors in labor and employment law from leading law schools and universities, as well as corporate partners of the center.
Topics addressed included: Mixed Motive vs. Pretext - Do the Jury Instructions Matter?; Appearance Standards in the Hospitality Industry; Arbitration versus Litigation - What Do We Know, and What Should We Measure?; and HERE Organization and Negotiations.
"We continue to be very pleased with the success of the legal roundtable in building synergistic relationships between leaders in industry and academia," said Cornell Hotel School Associate Professor David Sherwyn, who has chaired the event since its inception in 2002. "Our interactive format allows these distinguished participants to engage in forthright debate around timely issues important to both educators and practitioners."
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Left to Right: Jonathan Perez, Associate General Counsel, Honeywell International and G. Roger King, Partner, Jones Day |
Alyse Jacobson, vice president and associate general counsel, Starwood Hotels & Resorts Worldwide, Inc., served as a discussion leader in the segment addressing appearance standards in the hospitality industry. "I find the roundtable useful because it allows me the opportunity to speak with my industry colleagues regarding employment law best practices in a non-competitive environment," Jacobson said.
May 9-10, 2004: Third Annual Labor and Employment Law Roundtable
Participants included counsel from lodging and restaurant companies, members of prestigious private-practice law firms, and professors in labor and employment law from leading law schools and universities, as well as corporate partners of the center.
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Participating in The Center for Hospitality Research Legal Roundtable are, from left: Steve Yale-Loehr, of Counsel, True Walsh & Miller; Jim Zuehl, Partner, Franczek Sullivan; Dave Sherwyn, Associate Professor, Cornell University School of Hotel Administration; Myron Roomkin, Dean, American University Kogod School of Business; Gary Thompson, Executive Director, The Center for Hospitality Research; and Scott Cordes, Senior Counsel, Friedkin Companies. |
The following organizations shared in the discussions:
- 20th Century Fox Film Corp.
- BR Guest Restaurants & JAMES Hotels
- Brinker International, Inc.
- Cendant Corporation
- ClubCorp.
- Cornell University School of Industrial and Labor Relations
- Cornell University Law School
- Davis & Gilbert, LLP
- Fisher & Phillips LLP
- Franczek Sullivan, P.C.
- Friedkin Companies, Inc.
- Grotta, Glassman & Hoffman, PA
- Kane Kessler, P.C.
- Littler Mendelson, NY
- McDonald's Corporation
- New York University School of Law
- Proskauer Rose LLP
- Roger Williams University Ralph R. Papitto School of Law
- Seyfarth Shaw, LLP
- Shea Stokes & Carter ALC
- Starwood Hotels & Resorts Worldwide
Representatives held a variety of leadership positions within their respective companies, including: dean; general counsel, business and legal affairs; general counsel, executive VP and secretary; partner; principal; professor of law; senior counsel; senior labor relations counsel; senior VP - legal; vice president and associate general counsel; and corporate V.P., global labor relations.
"We continue to be very pleased with the success of the roundtable in building important relationships and dialogue between the industry and academic communities," said Cornell Hotel School Associate Professor David Sherwyn, who chaired the event for the third year. "We have created an interactive format that allows all of our distinguished colleagues to be engaged in the debate around key issues. The roundtables reinforce the strong links between the Hotel School faculty members and industry leaders." Topics discussed included harassment training, new FLSA Regulations, the effect of the Merger of HERE and UNITE, Non-Resident Employees, and the Homeland Security Act.
Rob Liddle, corporate V.P., global labor relations, McDonald's Corporation, stated that "the roundtable provided a dynamic forum for the discussion of significant industry-related employment law issues with acknowledged experts." Seven roundtables are planned next year under Sherwyn's leadership and the CHR's sponsorship, on topics ranging from hospitality design to hotel revenue management to information technology.
May 4-5, 2003: Second Annual Labor and Employment Law Roundtable
The event continued an in-depth conversation on the critical legal issues facing the hospitality industry today. Participants included lawyers from some of the largest lodging and restaurant companies in the industry, members of prestigious private-practice law firms, and professors in labor and employment law from leading North American schools, colleges, and universities.
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From Left to Right: Michael Heise, professor, Case Western Reserve University; Joseph Baumgarten, partner, Proskauer Rose LLP; Jonathan Perez, associate general counsel, Darden Restaurants, Inc.; Ilene Weisbard Berman, of counsel, Fisher & Philips LLP |
"We are thrilled with how the roundtable has developed in the last two years. Instead of the typical conference where only the presenters actively participate, this format allows all of our distinguished colleagues to engage, argue, agree, and disagree over the topics that are vital to our industry," said Cornell Hotel School Associate Professor David Sherwyn, who chaired the event. The topics included: arbitration versus mediation as a way to resolve discrimination claims; the effect of the new legal standard for "mixed motive" instructions in discrimination claims; sexual harassment; and union organizing.
Jonathan Perez, associate general counsel at Darden Restaurants, who participated in the roundtable discussions, stated: "The roundtable was a great opportunity to discuss key legal issues facing the industry with experts well-versed in their fields. I have a great deal of respect for their opinions, experiences, and recommendations, all of which have been beneficial and invaluable to me and my company. Indeed, even our disagreements provide insight that allows me to position my company in a preemptive role, as opposed to preparing to defend an issue that was not on our radar. I look forward to participating at the roundtable for years to come."
Sherwyn added that the roundtable was "a great example of collaboration between the hospitality industry and faculty members from the Cornell Hotel School and Columbia, Cornell, NYU, and Roger Williams law schools. One of the main objectives of the Center for Hospitality Research is to build important links between the academic and industry communities, and this is accomplished through sponsorship of the annual legal roundtable."
May 5-6, 2002: First Annual Labor and Employment Law Roundtable
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Picture of 1st Annual Labor and Employment Law Roundtable participants |