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 LawProfessor 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 Curriculum3. My proposal for an integrated workplace law, skills-based

course: Corporate Compliance in the Workplace4. 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 WorkplaceSubstantive 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 Contemplated1. Checklist of causes of action and corresponding questions2. Interview client3. 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 Clients1. 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 Investigation1. Interview complainant, alleged harasser, and

witnesses2. 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 advice3. ADA, FMLA and other medical issues4. Unionized workforce or union activity5. Dealing with harassment and/or other complaints6. FLSA basics

Corporate Compliance Skills

The Audit1. 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.