The Labor Depratment’s Office of Labor Management Standards issued a release today, June 20, on its long-anticipated reinterpretation of the “Advice Exception” from mandatory reporting and disclosure requirements. The release announced that the official Proposed Rule would be published on Tuesday, June 21. Interested parties will have a month to provide comments. Since as we described last February, the rule would drastically increase the scope and reduce the time for reporting, the employer community is likely to have a great deal to say. The rule’s likely impact on attorney-client privilege is another area of concern for both clients and lawyers.
Meanwhile, the Supreme Court refused to permit a multi-million member class action for employment discrimination to proceed against Wal-Mart. Finding that there was insufficient proof of uniform policies responsible for all the alleged gender-related actions, the Court reversed the Ninth Circuit’s ruling allowing the case to proceed as a class. As a practical matter, the decision reduces the leverage enjoyed by the plaintiffs’ lawyers to extract a large settlement from Wal-mart, but does leave Wal-Mart vulnerable to multiple individual actions in courts throughout the country. The Court also ruled that claims for monetary relief are not properly certifiable under Civil Rule 23(b)(2), but must be handled under Rule 23(b)(3), The practical meaning of this ruling is that courts must make much more detailed findings to support class certification and cannot simply assume, as did the Ninth Circuit, that representative samples can serve as a bridge among the various plaintiffs.
All in all, June 20, 2011 is a busy Monday in the Employment field.