Assessing the Workplace Law Curriculum from a Corporate Compliance Perspective Teaching Labor and Employment Law Conference, Saint Louis University School of Law Nicole Buonocore Porter, Visiting Professor of Law, University of Denver College of Law Professor of Law, University of Toledo College of Law

Roadmap 1.Quick Survey of the Workplace Law Curriculum in Law Schools Across the Country 2.Issues that Span the Workplace Law Curriculum 3.My proposal for an integrated workplace law, skills-based course: Corporate Compliance in the Workplace 4.Addressing the Criticisms

Workplace Law Curriculum by the Numbers Methodology: 197 schools on LSAC website. Research assistant researched course descriptions and/or course schedules, both of which were publicly available on the schools’ websites. Five schools: no readily discovered workplace law courses 24 did not offer Employment Law 35 did not offer Employment Discrimination 42 did not offer Labor Law 12 schools only offered Employment Law 4 of them taught a true survey workplace law course (employment law, discrimination, and labor law) 6 of them appear to cover employment law and discrimination, but not labor law

Workplace Law Curriculum by the Numbers 23 schools have some type of workplace law “program” 11 offer certificates Broad array of courses beyond the traditional three 73 schools: workers compensation 82 schools: employee benefits/ERISA 18 schools: public sector labor and/or employment law 38 schools: arbitration, ADR, mediation 19 schools: gender/sex (including discrimination, harassment, and work/family issues) 36 schools: international or comparative labor/employment law

47 Practical Workplace Law Courses Clinics and externships: 21 Litigation-based practical skills courses: 10 Drafting-focused courses: 5 Three courses that appear to follow the approach I am advocating here: teaching non-litigation skills required when representing employers to ensure compliance with workplace laws: Employment Law Counseling (Loyola Chicago) Employment Lawyering (Richmond) Employment Law Practice (Suffolk University)

Issues that Span the Workplace Law Curriculum Medical and Leave Issues FMLA ADA Workers Compensation PDA OSHA Termination and Severance Advice (the Giant Issue Spotter) Discrimination statutes, including harassment Leave of absence, injury in the workplace Union activity or other violation of Section 7 rights under NLRA Written contract, implied contract, handbook disclaimers, any violation of public policy claims Complaints about any workplace policy (retaliation claims)

Issues that Span the Workplace Law Curriculum Workplace Violence Issues ADA issues Possible workers compensation or OSHA issues (if violence occurs at the workplace) Violation of public policy or other termination claims if the person is terminated. Possible harassment claims by other employees. Audits Review hiring processes (ads, job descriptions, interviews, responsibility for hiring) Review of handbooks (including disclaimers) and all policies (including harassment/non-discrimination, confidentiality, non- compete policies, technology policies) Record-keeping (EEO, ADA, FMLA, and FLSA) Evaluation of HR policies and procedures for handling complaints, requests for time off or modification of duties, union activity in non- unionized workforce, termination practices.

Proposed Course: Corporate Compliance in the Workplace Substantive Law (options) Require prerequisites (at least Employment Law and Employment Discrimination) and do quick reviews of the substantive law before working on skills. No prerequisites but teach it as a true survey course (covering all three traditional courses) and integrate the substantive law into the practical skills exercises (e.g., Harassment policy and investigation—cover harassment cases first) Decisions regarding credits

Corporate Compliance Skills Counseling Clients when Termination is Contemplated 1.Checklist of causes of action and corresponding questions 2.Interview client 3.Advise client regarding assessment of risk and whether to give severance payment in exchange for settlement agreement 4.Draft severance and settlement agreement

Corporate Compliance Skills Opinion Letter to Clients 1.Giving bad news, especially when client has done something wrong. 2.Explaining complex area of law to non-lawyer (e.g., medical issue)

Corporate Compliance Skills Conducting an Investigation 1.Interview complainant, alleged harasser, and witnesses 2.Prepare report summarizing findings and consult with HR regarding proper course of action, including possible discipline. 3.Discuss with HR policies and record-keeping techniques for minimizing harassment

Corporate Compliance Skills Training Supervisors: students will prepare PowerPoint presentation covering: 1.Anti-discrimination laws (disparate treatment and disparate impact) 2.Interviewing techniques and advice 3.ADA, FMLA and other medical issues 4.Unionized workforce or union activity 5.Dealing with harassment and/or other complaints 6.FLSA basics

Corporate Compliance Skills The Audit 1.Students would first draft a checklist of everything the audit should include. 2.Review and identify problems with hiring process, including review of all advertisements, applications, job descriptions. 3.Review and identify problems and pitfalls of handbooks and policies, including a sexual harassment policy, technology and communications policy, confidentiality policy, non- compete agreements, etc. 4.Interview HR personnel to discuss policies and procedures for complying with record keeping requirements, policies for handling workplace complaints, medical and leave issues, workplace violence issues, etc.

Addressing the Criticisms Non-neutral course—biased in favor of employers Irrelevant to those who don’t plan to or won’t be able to practice in a large firm or in-house.