Litigators at Work

Trial by Fire: Employment litigation verdicts, tips and strategies

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Litigator’s Guide to Navigating Virtual Court Proceedings

July 8, 2020

With the “new norm” losing some of its “newness” as the COVID-19 pandemic continues, virtual court proceedings are becoming widespread across federal and state courts. Here are some important areas to consider before and during remote court proceedings. Test Your Technology At this point, many people have participated in a conference call in which one participant is too loud or too quiet, has a poor internet connection, or otherwise cannot be understood because of technical…

Litigators at Work

Federal Courts Issue Guidance for Jury Trials During COVID-19: What Litigators Need to Know

By Jackson Lewis P.C.

June 23, 2020

The U.S. Courts’ COVID-19 Judicial Task Force has released guidance on conducting jury trials and convening grand juries during the pandemic. The task force’s guidance, released on June 4, 2020, makes clear that each tribunal will ultimately set its own rules for jury trials after considering things like location, budget, and physical facilities. Highlights from the guidance include: Communication. Courts are advised to ensure that jurors receive reasonable assurances about their safety prior to participating…

Litigators at Work

Zooming In on Remote Depositions during COVID-19 Pandemic

By Y. Jed Charner

June 9, 2020

As a result of the COVID-19 pandemic, fully remote depositions have become necessary and employment lawyers are quickly adjusting. Below are some areas to consider when taking a remote deposition. Technology Court reporting services use various audio-video technologies, including Zoom, Cisco Webex, and other platforms, to connect participants in a remote deposition. Being comfortable on a platform may depend on prior experience. Verify the security to ensure there are no surprise “crashers” in a deposition.…

Litigators at Work

Using Data from Wearable Devices in Litigation

By Jackson Lewis P.C.

February 18, 2020

Millions of people across the globe use some type of wearable device that constantly captures data including health information, fitness levels, location, and much more. These devices, such as Fitbit and the Apple Watch, are often referred to as “wearables.” Experts estimate that over 300 million wearables are in circulation and that the number of wearables could increase 55 percent each year. Because the use of wearables is so prolific in our society, the data…

Litigators at Work

Whistleblower Rights in Today’s Evolving Federal Statutory Landscape

By Mary L. Moore

February 14, 2020

All viable whistleblower cases arise from allegations of wrongdoing serious enough to run afoul of some statute or rule. Common issues in every whistleblowing case include: Who is subject to protection against retaliation as a whistleblower? What types of conduct or speech are entitled to protection as whistleblowing? What must a whistleblower do by way of exhaustion of administrative remedies or other effort to remediate wrongdoing in order to have a justiciable claim? What remedies…

Litigators at Work

Documentation: The Star Role in Defending Against Retaliation Claims

By Lauren A. Parra

January 28, 2020

Despite the heightened attention to avoiding and addressing sexual harassment claims in the wake of the #MeToo movement, retaliation remains the most-frequently filed employment law claim according to the Equal Employment Opportunity Commission’s FY 2019 Enforcement and Litigation Data. The agency received 39,110 retaliation charges in FY 2019 or 53.8% of all charges filed. The “ABC’s” of documentation can help employers lower the risk of retaliation claims. To establish a prima facie case of retaliation,…

Litigators at Work

Establishing Judicial Estoppel Defense Against Bankruptcy Plaintiff Just Became Harder

By Madonna M. Snowden

January 21, 2020

Establishing the judicial estoppel defense against a bankrupt plaintiff will be harder in the Eleventh Circuit following Smith v. Haynes & Haynes P.C., 940 F.3d 635 (11th Cir. 2019). Judicial estoppel is a legal defense used for early dismissal of cases against bankrupt plaintiffs. In a bankruptcy, judicial estoppel applies if a debtor plaintiff omits any claim that the plaintiff knew of at the time of filing for bankruptcy or learned of while the bankruptcy…

Litigators at Work

No Magic Words Needed in Employee Requests for Leave That Might Be Protected By FMLA

By Daniel P. Schwarz

January 8, 2020

A terminated employee may proceed with his Family Medical Leave Act (FMLA) retaliation claim even though he never specifically requested leave under that statute, a Maine federal court has ruled. Waterman v. Paul G. White Interior Solutions, No. 2:19-cv-00032-JDL (D. Me. Nov. 5, 2019). The employee worked as a floor finisher and installer for a flooring company. His father had been diagnosed with several serious health conditions. On April 8, 2018, the employee’s stepmother…

Litigators at Work

Four Ways of Avoiding Liability on Common Wage and Hour Compliance Issues

By Mary L. Moore & James M. McDonnell

December 23, 2019

Wage and hour lawsuits are big news these days. Jury verdicts and settlements capture headlines warning of damages and fees totaling seven or more figures, and class certifications in pending cases exponentially expand the risk posed by a single miscalculation or mistaken designation. How can employers best reduce the risk of becoming the next cautionary tale in wage and hour compliance? Generally, the Fair Labor Standards Act (“FLSA”) requires employers to classify employees as either…

Litigators at Work

Employers Must Ensure Their Leave Administrators Understand Who Is Entitled to FMLA Leave

By Heather C. Hili

December 17, 2019

Employers must ensure they understand who is entitled to leave under the Family and Medical Leave Act (FMLA). In a recent decision, a federal court has ordered a plaintiff’s claims to proceed to a jury trial to determine whether the plaintiff’s former employer interfered with her rights under FMLA. In Gibson v. New York State of Mental Health, et al., No. 6:17-cv-0608 (N.D.N.Y Nov. 25, 2019), the plaintiff requested a leave of absence to care…

Litigators at Work

Trial by Fire: Employment litigation verdicts, tips and strategies

Litigator’s Guide to Navigating Virtual Court Proceedings

Federal Courts Issue Guidance for Jury Trials During COVID-19: What Litigators Need to Know

Zooming In on Remote Depositions during COVID-19 Pandemic

Using Data from Wearable Devices in Litigation

Whistleblower Rights in Today’s Evolving Federal Statutory Landscape

Documentation: The Star Role in Defending Against Retaliation Claims

Establishing Judicial Estoppel Defense Against Bankruptcy Plaintiff Just Became Harder

No Magic Words Needed in Employee Requests for Leave That Might Be Protected By FMLA

Four Ways of Avoiding Liability on Common Wage and Hour Compliance Issues

Employers Must Ensure Their Leave Administrators Understand Who Is Entitled to FMLA Leave

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