2013  Holiday  Edition
Labor & Employment Law News
Official Publication of the Atlanta Bar Association
Labor & Employment Law Section
A Message From The Editor
by Ellen Malow, Malow Mediation & Arbitration
I am pleased to share the Holiday Edition of the Atlanta Bar Labor & Employment Law Section Newsletter. I want to thank all of the contributors to the newsletter. A special thanks goes to Ericka Henderson with the Atlanta Bar Association for all of her assistance in putting the newsletter together.

The newsletter has seven terrific articles spanning a wide variety of topics. The first article is authored by Dan Klein and provides practice pointers for preparing for the deposition of plaintiffs and how it dovetails with the way testimony can be used for summary judgments. The second article written by Lee Parks and Ed Buckley contains an analysis of the vanishing impact of jury trials in Title VII cases.


A Message From the Chair 
by Ian Smith, King & Spalding LLP 

The 2013-2014 bar year brings with it some lingering challenges, but it is undeniable that our Section's prospects are, like the Wright brothers, on the rise. While we continue to face a less than optimal economic environment, participation in Section events has been encouraging. On October 4, we held our Fall Luncheon at the Capital City Club and were pleasantly surprised to host more than 100 lawyers and law students for Judge Amy Totenberg's View from the Bench. Her honor's lecture was well deserving of the oversized turnout. Later the same month, the Section held a Happy Hour at the Lawyers' Club and may have earned the ire of the Fire Marshall as we exceeded the space's capacity. Our future is bright, but our work continues.
Plaintiff's Deposition Bootcamp 
by Daniel M. Klein, Buckley & Klein, LLP


In a world where discrimination is rarely out in the open, and where motive must therefore typically be proved by inference, the plaintiff must be prepared to say at his or her own deposition why a set of facts will support an inference of discrimination sufficient to survive summary judgment. The result: plaintiff's deposition boot camp, an intensive exercise in preparing the client to be deposed. 


In This Issue
2013-2014 Section Board of Directors


Ian E. Smith

Vice Chair/Chair-Elect
Benjamin I. Fink

A. Craig Cleland

Immediate Past Chair
William C. (Cory) Barker

Members at Large
Peggy M. Brockington
Andrea Doneff
Amanda Farahany
Marcia Alembik Ganz
Daniel Hart 
Dan Klein
Robert Lewis
Adriana Midence Scott
Michelle E. Shivers

Newsletter Editor
Ellen Malow 
Upcoming Events
December 6 - State Bar of Georgia/ICLE Labor & Employment Seminar

January 23 - Atlanta Bar Association L&E Section Happy Hour (Lawyers Club)

March - Annual Section CLE (Dates TBA)
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The Vanishing Jury Trial In Employment Discrimination Litigation
by A. Lee Parks and Edward D. Buckley   
The lawyers who regularly represent discrimination victims in this district have long experienced the wholesale dismissal of good claims, but they had no hard empirical proof that the referral process was in fact flawed, systematically eliminating Title VII cases from the docket. Now they do. Amanda Farahany and the law firm of Barrett and Farahany and its non-profit subsidiary "Justice at Work," conducted a study to objectively assess the impact of summary judgment on discrimination cases in this district.  They categorized and reviewed all discrimination cases decided in 2011 and 2012 where a defendant filed a motion for summary judgment.

Dance Class: What Lawsuits Filed by Exotic Dancers Can Teach Us About Employment Law in Georgia 
by John L. Mays, MAYS & KERR LLC

Lawsuits brought by exotic dancers to enforce wage and hour rights routinely make headlines due to their salacious settings. In a local case filed in early October, two dancers at "Pinups," an adult entertainment club in Decatur, has added a new layer of curiosity-pregnancy discrimination. Wage and discrimination claims can complement each other and create a case that is stronger than it may seem at first blush. 

Mediation: Q&A With Employees' Counsel Ed Buckley and Employers' Counsel Craig Cleland
by Lorene F. Schaefer, Esq., Schaefer & Associates, LLC   
The past decade has seen tremendous growth in the use of mediation to resolve employment lawsuits.  Unfortunately, because mediation is confidential, building the skills and developing the strategies necessary for a successful mediation can be challenging.  In an effort to uncloak the mysteries behind mediation, Lorene Schaefer interviewed Ed Buckley and Craig Cleland to share their perspectives on mediation with readers of this newsletter.
Reassignment and the ADA: Is It a Matter of Right and How Do You Prove It Up?
by William D. Goren, J.D., LL.M. 

One of the issues that employer's struggle a great deal with is the issue of reassignment. That is, assume you have a person with a disability that can no longer perform the job they are currently in, but that person with a disability does meet the requisite skill training and experience for another job within the company and that person could perform that other job with or without reasonable accommodations (what the Rehabilitation Act calls "otherwise qualified," and the ADA calls "qualified,") does the company have the obligation under Title 1 of the Americans with Disabilities Act (ADA) to transfer that individual with a disability to the other job? This article will explore that question as well as the question of assuming that the answer is yes, how do you go about proving it up?  
Coming in 2014: New OFCCP Affirmative Action and Non- Discrimination Obligations for Federal Government Contractors, Subcontractors and Suppliers - Veteran and Disability Hiring Goals and More
by Gene Caudle, OnesourceHRM and Lynn C. Stewart, Esq. Schreeder, Wheeler & Flint, LLP

The Office of Federal Contract Compliance Programs (OFCCP) is an agency within the U.S. Department of Labor which enforces Executive Order 11246, as amended and two laws that prohibit employment discrimination and require affirmative action by companies doing business with the Federal Government.  Specifically, covered Federal contractors must engage in affirmative action and provide equal employment opportunity without regard to race, color, religion, sex, national origin, disability or status as a protected veteran.

Is your Company BYOD or COPE?
by Benjamin Fink, Berman Fink Van Horn P.C.

In today's world, there are a myriad of personal electronic devices we have to choose from for our calls, emails, texts and other forms of communication. As individuals, we all have personal preferences and want the widest possible selection when deciding which device to use; however, as employers, we need to be mindful of how this issue can impact our ability to protect our confidential information and trade secrets. Whether the employer owns a device, or whether the employee owns the device can have critical implications when an employee leaves one company to join another, particularly when the other is a competitor.