James J. Sullivan, Jr., a shareholder in the Labor and Employment Section of Buchanan Ingersoll & Rooney's Wilmington office, was one of six attorneys featured in a roundtable discussion for an article published on December 8, 2010, in The Legal Intelligencer. The article titled, "Labor & Employment Law: A Year in Review," featured a discussion by six top attorneys on issues currently affecting labor and employment practitioners.
The moderator of the roundtable, John Morganstern, posed questions on a variety of issues currently affecting labor and employment practitioners, including social media in the workplace, electronically stored information (ESI), the use of social media in jury selection, work force reductions, wage and hour matters. He also asked about future trends in labor and employment litigation."
The discussion kicked off with hypothetical scenarios regarding social media in the workplace. Sullivan offered a portion of his experience as an example of the potential issues involved with this subject, "… nine years ago when I was in-house at Comcast, I remember getting a call about an Internet forum for cable technicians. A Comcast cable technician had posted information about a product that Comcast was very upset about because it was essentially a secret. This happens to companies all the time. They really have to monitor their employees' online activities, especially where confidential information is concerned, because even if you train employees and your train management, leaks are going to happen. Employees just can't resist taking about their latest developments, even though they're not for public disclosure."
Another participant in the discussion, Michelle Malloy, responded, "I agree. Years ago, everybody spoke face-to-face or over the telephone, so information didn't get out to the mass public. But people don't communicate that way anymore. Everything is Facebook, MySpace, blogs and text messaging. This opens their discussions to the public. Companies have to come to terms with that reality and create policies and train employees accordingly."
Later on in the article, the discussion turned to work force reductions and Morgenstern asked Sullivan what challenges he saw facing employers reducing their work forces. Sullivan responded, "I deal with organized labor quite a bit, and a host of National Labors Relations Act concerns arise in terms of the decision to lay off and whether there is any obligation to bargain with the union about the decision, as well as the results of the decision. I had an interesting case this year in which a client laid off approximately half of a bargaining unit because the client lost a large account. Six months prior to that, there had been a one-day strike when the contract expired, and that created a lot of animosity between local management and the union. After the layoffs, the union filed a grievance claiming that the layoffs were in retaliation for their conducting a strike. They finally withdrew the grievance, but it was the first time in my 30-year career that I had a retaliation claim basis of layoffs following a strike. That said, I think the same RIF issues that I've dealt with over the years still arise today."
The article went on to detail the end of the discussion in which the participants offered up what they see as future trends in employment litigation. Sullivan had this to say: "From the labor law perspective, 2011 is going to look like 2010 but with interesting twists. For example, in the public sector, I think we'll see much more contentious collective bargaining between cities, municipalities, states and their unions. I think we might even see some state law changes simply because of the dire straits that the state budgets are in. School districts' budgets, local municipalities' budgets, they just don't have the tax revenue to support them. This will lead to increased binding arbitrations, less resolution at the table and more infighting both at the bargaining table and in the legislatures."