Message from the Chair
Welcome to the September newsletter. It is packed with information regarding
recent Legal Quick Hits and legal developments that were reported by our
subcommittees. Our next monthly call
will be on September 6. You always can
find the meeting time and dial-in information on the ELLC’s webpage (http://www.acc.com/committees/ellc/index.cfm).
The October ELLC meeting will be held as part of
Annual Meeting in Washington DC, as described below. We also have a
great lineup of programs. We kick off with the ever-popular Employment
Law Update on Monday, October 16. Other
topics include multinational employment law practice, contingent workers
employment law primer for new in-house practitioners, as well as an
program. We look forward to seeing you
at the Annual Meeting!
Chair, Employment and Labor Law Committee
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6, 2017 at 3:00 PM ET, 7:00 PM GMT – Legal Quick Hit: Paid Family Leave: The
Next Big Leave Challenge.
This Legal Quick Hit will address the
growing number of paid family leave laws with a focus on New York’s Paid Family
Leave Law which becomes effective on January 1, 2018. Topics to be
Existing paid family leave
Paid family leave legislation
that has been enacted but is not yet effective
Pending paid family leave
legislation in other states
Brief Overview of New York's
Paid Family Leave Law, including:
Who is a covered employer
What employees are eligible
The reasons employees can
How much leave is available
Benefits accompanying leave
including pay, health insurance, and job restoration
Options for funding the
benefit, including payroll deductions
Interaction with FMLA and
Suggestions for compliance
Click here to register for the upcoming September Legal Quick Hit,
presented by Frank Alvarez, Principal at Jackson Lewis P.C.
Don’t Forget to Register
for ACC’s Annual Meeting in Washington DC, October 15-18, 2017.
will be holding a Business Meeting Lunch on Monday, October 16, 2017, at
1:15 p.m., during the Annual Meeting program. See http://www.acc.com
for additional details on the program schedule and conference registration
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Recent Presentations and Webcasts
Legal Quick Hit Presented by Patricia
Pryor, Principal at Jackson Lewis P.C.: Sick Leave – Is it Contagious?
this Legal Quick Hit, Ms. Pryor discussed how paid sick leave laws continues to
sweep the nation on a state level, and county/city level. Ms. Pryor examined which jurisdictions have
“caught” the bug, which have “vaccines” to prevent it, and practical solutions
for trying to “cure” (or at least limit) the negative side effects it has on
attendance policies. For more
information and current updates on paid sick leave laws, check out Ms. Pryor’s
Ms. Pryor can also be contacted at firstname.lastname@example.org or 513-322-5035.
Legal Quick Hit Presented by Jackson
Lewis P.C.: Protecting Your Company’s Most Important Assets: Talent and
In this Legal Quick Hit, Eric Winton, Principal at Jackson
Lewis P.C., discussed how with the recent passing of the Defend Trade Secrets
Act, and pending state legislation regarding non-competition agreements, reports
from the Treasury Department and White House and increasing press coverage,
non-competition and other restrictive covenants are more relevant than
ever. Mr. Winton also discussed how best to protect assets such as
company information and employees in this changing environment, while still maintaining
the ability to hire qualified new staff from competitors. For more
information, see the Quick Hit materials here.
Legal Quick Hit Presented by Jackson
Lewis P.C.: The NLRB under Trump Administration.
This Legal Quick Hit, presented by Linda Carlozzi, Shareholder
at Jackson Lewis P.C., discussed how many of the NLRB’s recent decisions have set
new rules or reversed long-standing precedents. Ms. Carlozzi discussed
how a Republican majority Board is likely to revise a number of NLRB policies
and decisions, including those concerning election rules, joint employer,
handbook policies, and social media. For more information, see the Quick
Hit materials here.
May Legal Quick Hit Presented by Jackson Lewis P.C.: Class Action Waivers.
A recap of this Legal Quick
Hit, and a link to the handout materials, was provided in our last newsletter
in May 2017. Since that time, Jackson Lewis P.C. issued its quarterly Class
Action Trends Report. A copy of this
report can be obtained here.
Materials and Handouts from other past Legal Quick Hits can
be found under the “Events “tab on ACC’s Employment and Labor Law Committee
webpage at: https://www.acc.com/committees/ellc/events/index.cfm
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Recent Committee Reports Highlights
A. New State and Federal Laws and Regs 1.
has been busy as usual. There are new regulations on gender identity and gender
expression discrimination. Gender identity can be male, female, combination,
neither or transgender or transitioning.
employers must notify new hires, and employees upon request, about their rights
if they are victims of domestic violence, sexual assault or stalking. If
accommodations are needed, engage in the interactive process.
Angeles passed the Fair Chance ordinance, prohibiting employers from seeking
criminal history until after conditional offer of employment. They must include
notices of the ordinance on job posting and at their worksite. To rescind an
offer, there's a fair chance process outlined in the ordinance.
California and Los Angeles use a "job related and consistent with business
necessity" standard in its ban the box regs which are much like EOOC
guidance but stricter.
recently amended the Fair Pay Act. It's stricter than federal Equal Pay Act. It
prohibits employers from paying one employee less than the wage rate paid to an
employee of the opposite sex or another race or ethnicity for substantially
similar work. The company would have to show that the pay differential was
based on factors other than sex, race, or ethnicity and it has to be job
related and consistent with business necessity, and that the factors were
relied upon reasonably. Prior salary alone can't justify the disparity. There
are criminal fines and imprisonment.
recently amended the Fair Pay Act. It's stricter than federal Equal Pay Act. It
prohibits employers from paying one employee less than the wage rate paid to
another employee of the opposite sex or another race or ethnicity for
substantially similar work. The company would have to show that the pay
differential was based on reasonable factors that are job related and
consistent with business necessity, other than sex, race, or ethnicity. Prior
salary alone can't justify the disparity. There are criminal fines and
is the second state in the nation requiring employers in the retail,
hospitality, and food services establishments that employ 500 or more worldwide
to give hourly workers advance notice of their work schedules. It has some
compensation rules and some limits on the hours employees can work without ten
hours of rest between shifts. They get overtime for working during rest periods
and other compensation when the employer changes the schedule, increasing or
decreasing the work hours. And it's complicated. This starts phasing in on July
1, 2018. Washington has a similar law.
is the third state to adopt a biometric privacy law. It requires notice and
consent or alternate safeguards.
Equal Pay Act of 2017 expands existing protections and imposes new restrictions
on use of salary histories in setting compensation. Applies to all covered
groups under anti-discrimination laws.
10. Massachusetts has the Pregnant Workers
Fairness Act now, which will take effect April 1, 2018. It's like many other
11. Immigration, Visas: Federal agencies are trending toward
merit-based awards of H1B visas and rejecting more visa applications before
they can get to the lottery. USCIS memos say: don't try to get entry level
workers such as computer programmers, or workers in jobs commanding only level
1 wages into the country. Those occupations are not specialty occupations.
Specialty positions are those that genuinely and for specific reasons need
college graduates to do complex duties.
12. USCIS: On July 17, USCIS released a revised
version of I-9 and accompanying I-9 handbook for employers. It's effective
immediately but you can use the current one through September 17, 2017. There
are subtle changes in wording and a few new prompts for preparer and translator
information. The revised I 9 form added consular report of birth abroad to List
C. The handbook is a handy reference guide. Each new paperwork violation on
each I-9 prepared on an expired version of the form can cost $2156.
B. Interesting Cases:
1. On July
13, 2017, the US District Court for the District of Hawaii found that the
Department of State's interpretation of the US Supreme Court travel ban decision
was too narrow. The Court said that the department of state had to broaden its
definition of "close familial relationship" between a person from one
of those six countries and a family member here. It must be broadened beyond
parents, parents-in- law, spouses, fiancées, children including adult
children, siblings and half-siblings. It must also include grandparents,
grandchildren, siblings-in-law, aunts, uncles, nephews, nieces and cousins.
Trump appealed and on July 19, the Supreme Court refused to modify the Hawaii
District Court's decision.
July 17, the Federal District Court for Maryland, in Levin v. Impact Office, LLC, denied the employer's motion to
dismiss. Plaintiff had resigned and the former employer had collected her
company-paid cell phone. She had previously deleted all e-mails stored on the
phone, including personal e-mails from her Gmail account. Of course, they
weren't gone. She sued her employer for unauthorized access to her personal
e-mails which violated the Stored Communications Act. They accessed and
forwarded to their attorney a number of pre- and post- resignation personal
e-mails which were still stored on Google servers, including e-mails between
plaintiff and her lawyer. The SCA is violated if someone gets unauthorized access
to a facility through which an electronic communication service is provided,
and thereby obtains, alters or prevents authorized access to an electronic
communication while it is in electronic storage in such system. Electronic
storage is any temporary, intermediate storage of an electronic communication
incidental to the electronic transmission thereof, and any storage for purposes
of backup protection of such communication. This is generally understood to
cover e-mail messages that are stored on a server, before they have been
delivered to or retrieved by the recipient. The e-mails would have needed to be
either unopened, or stored for backup purposes after delivery, to meet SCA's
electronic storage definition. Considering the court's interpretation of electronic
storage under the SCA, companies that issue mobile devices to employees for
work and personal use should consider the extent and manner to which they
access those devices collected from separated employees. By the way, if the
messages had been opened and were resting exclusively on the cell phone ISP's
server; this would not qualify as stored communication.
17: California Court certified a class of more than 40,000 applicants in an
FCRA case. The named plaintiff was convicted of battery in 1998 and it was
expunged in 2010. An inaccurate background report showed a battery conviction
in 2010. The company placed a no-hire recommendation in its file one day after
receiving the inaccurate report from the background check vendor, instead of
waiting five business days after sending the pre-adverse action notice
notification before denying employment. Then when they should have been sending
the post adverse action statement, they belatedly sent the plaintiff a
pre-adverse action communication. When the plaintiff finally straightened out
the inaccurate report, the employer no longer needed the position filled. In addition,
the background disclosure violated FCRA by including a statement that the
applicant fully understands that all employment decisions are based on
legitimate, nondiscriminatory reasons, which the Court saw as an implied
July 13, Arroyo v. Volvo Group North
America, LLC was decided by a federal district court in Illinois. The court
reduced the judgment to $850,000 but affirmed the jury's finding that Volvo
violated the ADA and USERRA. Over the course of the six years that Arroyo
worked for them as a material handler, they granted 900 days of military leave,
plus FMLA and disability leave. They also gave her many accommodations for her
service-related PSTD, including time off to attend VA therapy appointments, an
office in which to meditate, a mentor, breaks during panic and anxiety attacks,
and use of earplugs. She demanded many more accommodations which they did not
make. What caught the jury's attention, though, was evidence that management
considered disciplining Arroyo for her absences when she was in the hospital
for PSTD, even though they were aware of it and joked that she was really
vacationing in Hawaii and was really becoming a pain. They also repeatedly
expressed frustration with her military absences. Many of her attendance
related infractions which were the grounds for her termination involved her
being between 1 and 10 minutes late for work, and Volvo did not terminate other
employees for similar infractions. If management hadn't made inappropriate
jokes and if Volvo hadn't seized on minor infractions to justify termination,
liability could have been avoided.
July 12, the Supreme Court of New Jersey denied summary judgment for the
employer in Grande v. St. Clare Health
Systems. Grande was a registered nurse assigned to patients recovering from
strokes. One of the essential job functions included frequently lifting 50
pounds from waist to chest. She began working in 2000, but between 2007 and
2010, she had a series of job-related injuries from repositioning patients. She
took a total of more than twelve months in three years to recover. After her
last injury, her doctor cleared her to return to work with no restrictions, but
the hospital required her to undergo an FCE exam before returning to work. The
FCE people said that she had permanent lifting restrictions and could not
transfer patients without assistance. At the time, Grande's doctor concurred
with the FCE findings, but a month after she was let go for being unable to do
the job safely, her doctor cleared her to return to work without restrictions,
but the hospital did not rehire her. The issues precluding summary judgment
were as follows: At one end of the spectrum, there was an issue as to whether
her absences were sufficiently chronic and excessive to preclude her from
showing that she was actually performing the job for which she was terminated.
At the other end of the spectrum, there was also a dispute about whether the
lifting standards that the FCE relied on actually were the standards of her
position, and whether the report established that she could not perform her job
either with or without a reasonable accommodation. The record was silent on
accommodations. The hospital failed to provide objective evidence that she was
unable to perform her job without posing a risk of harm to herself or others.
The Court held that an employer relying on the "direct threat" must
show that it relied on factual or scientifically validated data. In and of
themselves, the three prior injuries in three years were not sufficient to
support the defense. The FCE was silent on whether she was at risk of injuring
herself or others if she continued to perform her job and the hospital failed
to present any expert evidence on the issue.
district court case, In Re Experian Data
Breach Litigation is a roadmap for how you get documents recognized as
covered by the work product privilege. The doctrine was found to protect a
forensic report prepared in response to a data breach suffered by Experian. The
third party that prepared the report was retained by outside counsel after the
company became aware of a potential incident. In subsequent class action
litigation brought by affected individuals, Experian refused to turn over the
investigator's report, claiming that it was privileged as attorney work
product. The court found that the report was prepared because of anticipated
litigation, among other reasons, and thus could be protected by privilege. The
court looked at the totality of circumstances and said it didn't matter that
anticipated litigation was just one of several reasons for preparing the
report. What was important was that the report was drafted in its particular
format because of anticipated litigation. Also, the investigator was engaged by
outside counsel and conducted its investigation at counsel's direction. In
addition, the report was used by counsel to evaluate Experian's legal
obligations and develop their legal strategy, was closely protected by counsel
and was not widely disseminated to the breach response team or other employees
working on remediation. So it was protected from discovery.
recent website accessibility case is - Lucia Marrett v. Five Guys Enterprise.
The SDNY dismissed Five Guys motion for summary judgment and held Title III
does apply to websites, which is a place of public accommodation. The
restaurant argued that they were trying to make their website accessible and
the court said, "Well you haven't done it yet."
accessibility cases: CD Cal, Gorecki v.
Hobby Lobby Stores, Inc. June 15, district court denied Hobby Lobby's
motion to dismiss and held that a retailer's website constitutes a public
accommodation under Title III of ADA, and noted that the website allows
consumers to buy products, search for store locations, view special pricing
offers, obtain coupons and buy gift cards. The court relied on DOJ regs
requiring public accommodations to use auxiliary aids and services to
communicate effectively with disabled customers.
But on June 13, a judge in the CDFLA handed down a bench
trial verdict against retailer Winn
Dixie. Gil v. Winn Dixie Stores, Inc. was the first website accessibility
case to go to trial. The Court said that a website which is a gateway to
physical locations, and therefore a public accommodation that is subject to the
ADA, Title III and must be made accessible to people with visual impairments.
The legal issues were whether the website was a public accommodation, whether
the plaintiff was denied equal and full enjoyment of the store's goods,
services, facilities, privileges, advantages or accommodations because of a
disability, and whether the requested modifications to the website are
reasonable and readily achievable. The plaintiff shopped there, and competitors
had accessible websites. The court said that the website's online pharmacy
management system, the ability to access digital coupons that link
automatically to a customer's reward cards, and the ability to find store
locations are services that would be important to the visually impaired. There
was testimony that accessibility issues could be corrected with simple
modifications to one or two source codes. Estimates of the cost of fixing the
website ranged from $37,000 to $250,000, but the court said that both figures
paled in comparison to the $2 million it spent in 2015 to open the website and
the $7 million it spent in 2016 to remake the website. The fact that third
party vendors operate certain parts of the website was not a legal impediment
to the store's obligation to make its website accessible to the disabled
because most of the third party vendors may already be accessible and if not,
the store had a legal obligation to require them to be accessible if they
choose to operate within the store's website. The Website Content Accessibility
Guidelines (WCAG) 2.0 were adopted as part of the injunctive terms of the
On March 20, 2017, in CD.Cal, court decided a website
accessibility action, Robles v. Domino's
Pizza LLC. The court held that it would violate Domino's due process rights
to hold that the website violated the ADA since DOJ failed to issue promised
website accessibility regs. But the court said that some type of accommodation
would be required so that the plaintiff could have full and equal enjoyment of
The lesson of these cases taken together, don't ask for
WCAG, just ask for "full and equal enjoyment of the website," which
is language from Title III in the ADA.
The Fifth Circuit found, in Coca-Cola, that a vending machine is not a place of public
accommodation and does not have to be accessible. The plaintiffs who lost in
the Fifth Circuit are appealing to the Supreme Court and the DOJ is on record
with a brief agreeing with Coke and the Fifth Circuit.
17, the Second Circuit adopted a motivating factor causation standard for FMLA
retaliation claims, not the but-for causation test, which is harder for
plaintiffs to prove. Woods v. Start
Treatment and Recovery Centers. They deferred to the DOL's standard,
because the statute is unclear and the interpretation is reasonable. In this
case, if the employee performed poorly and engaged in serious misconduct but
retaliation for FMLA leave was part of the employer's motivation, plaintiff can
win. This is consistent with Third Circuit.
a somewhat similar decision in Rhode Island, The Massachusetts Supreme Judicial
Court recently denied summary judgment to the employer, holding that an
employee terminated for testing positive for lawful medical marijuana use may
go to trial on a claim for disability discrimination under Massachusetts Law.
She was applying for a job and admitted that she used pot to treat Crohn's
disease and IBS. Barbuto v. Advantage
Sales and Marketing, LLC. The company said that they were following
federal, not state, law. The court found this argument irrelevant because the
protections were in Mass. disability law, not the medical marijuana act. The
employer said she couldn't be qualified under the state disability law because
the accommodation she sought was a federal crime. But the Medical Marijuana Act
implicitly recognizes that off-site medical marijuana may be a permissible
accommodation. The court also rejected an argument that the federal law should
preempt state law. The court held that only the employee was at risk of being
federally prosecuted for using pot, so the legality of its use should not impact the determination of its
reasonableness as an accommodation. Employers would have to show an undue
hardship to avoid accommodating medical pot, or show that the pot would do more
harm than good to the employee's work performance. Employers can still prohibit
its use in the workplace, though, in safety sensitive jobs.
10. A Washington federal district court judge
ordered an employer to pay a terminated employee a little over $1.8 million in
damages and more in punitive and emotional distress, for failing to accommodate
the employee's use of opioids that were prescribed for her migraines, and for
terminating her for a positive test result. She was a customer service rep for
over twenty years and had had migraines most of her adult life. She took off
work for injections of the opioid. Sometimes the drug caused confusion,
sleepiness, and slurred speech, but she could return to work if she rested for
a few hours after the injection. The company only gave her four hours between
the injection and return to work, which was not quite enough time. The
company's fitness for duty policy prohibited employees from working under the
influence of drugs or alcohol. There could be reasonable suspicion drug tests
if the supervisor believed they were impaired by drugs or alcohol. There was no
exception for prescription medications to treat disabilities. After a
reasonable suspicion test, which was given because she looked impaired, but
there was no evidence that she was really unable to work, she was sent for
counseling for substance abuse but no substance abuse was found by the
counselor. She tested positive again and was terminated. Her doctor always put
on the FMLA forms that a positive test didn't necessarily mean she was
impaired, but the company ignored that and never communicated with the lab to
explain the situation. Lesson: an employee on prescription opioids should be
presumed to be an employee with a medical condition, not a substance abuser,
which can be hard to do when we're always hearing about the opioid epidemic.
Don't address it through discipline but through interactive process. This was a
failure to accommodate case. They could have given her more time to rest; they
could have allowed her to remain at home for the rest of the day after an
injection. In general, employees have a protected right to use prescribed,
controlled substances and come to work unless such use creates a safety issue
or undue risk of harm.
For more information or to get involved with the Policy
Subcommittee, we encourage you to contact Committee Chairs Gregory Watchman at Gregory.email@example.com; Alice Conway at firstname.lastname@example.org; or Colleen
Higgins Schultz at email@example.com.
Traditional Labor Subcommittee
Justices to Hear NLRB Class Action Waiver Cases In October
The U.S. Supreme Court has set October 2, 2017 as
the date for oral arguments in a closely watched battle over the legality of
arbitration agreements requiring workers to waive their rights to file class or
collective actions against their employers. Arbitration agreements that require
employees to pursue claims in arbitration, rather than in court, have
traditionally been enforced via the Federal Arbitration Act (FAA). Relying on a
series of Supreme Court decisions, employers have used class and collective
action waivers in such agreements. However, the National Labor Relations Board
(NLRB) has challenged employers as having violated the NLRA when employees are
required to agree to such waivers in arbitration agreements a condition of
employment. Past Supreme Court decisions were narrowly decided by 5-4 and 5-3
votes in non-employment cases. Justice Gorsuch is expected to have replaced
Justice Scalia’s vacant position prior to the October 2, 2017 oral arguments.
5th Circuit Denies NLRB to Find Several T-Mobile Workplace Rules Pass
On July 25, 2017, the Fifth Circuit on Tuesday
mostly struck down a National Labor Relations Board ruling that invalidated
various T-Mobile and MetroPCS employee handbook rules, including workplace
behavior requirements, but upheld the NLRB’s challenge to a rule banning
workplace recordings. The Fifth Circuit declined to enforce three of the NLRB’s
rulings and upholding the legality of T-Mobile’s workplace rules on: (1) encouraging
employees to maintain a “positive work environment”; (2)
commitment-to-integrity policy that prohibits “arguing or fighting”; and (3)
acceptable use policy prohibiting employees from sharing nonpublic information
by email including wage information. The Fifth Circuit upheld the NLRB’s ruling
that T-Mobile’s recording policy that bans employees from “any and all
photography on corporate premises without permission from a supervisor” would
discourage employees from engaging in a protected activity.
Senate Labor Committee Advances NLRB Nominees
Republicans on the Senate Health, Education, Labor
and Pensions Committee on Wednesday signed off on the Trump administration’s
nominees to fill the two vacancies on the National Labor Relations Board over
objections from some committee Democrats. Attorneys Marvin Kaplan and William
Emmanuel were both advanced on 12-11 votes for the two remaining vacant seats
on the five-member NLRB. Both nominees still face a confirmation vote before
the full Senate.
For more information or to get involved with the Traditional
Labor Subcommittee, we encourage you to contact Committee Chairs Micah Heilbrun
at firstname.lastname@example.org or Darryl Uffelmann at Darryl.email@example.com.
1. 401(k) Plan Fix-It Guide -
The IRS recently updated the 401(k) Plan Fix-It Guide to reflect updates to the
Employee Plans Compliance Resolution System (EPCRS).
As background, IRS Fix-It Guides provide information on how to identify, fix
and avoid common 401(k) plan compliance failures. The recent changes mainly
reflect the modifications made to the EPCRS by Revenue Procedure 2016- 51. This
guide provides valuable information to plan sponsors who are looking to keep
their 401(k) plans compliant.
2. Cyber Security and HIPAA HHS
recently published its June cyber newsletter, which discusses security concerns
that HIPAA-covered entities and business associates (BAs) must take into
account when implementing file-sharing and collaboration tools.
In the newsletter, HHS
provides examples of how cloud computing and file sharing services can
introduce additional risks to the privacy and security of ePHI — risks that
employers subject to HIPAA’s security rule must identify as part of their risk
analysis process and mitigate as part of their risk management process.
Specifically, misconfigurations of file sharing and collaboration tools, as
well as cloud computing services, are common issues that can result in the
disclosure of sensitive data, including ePHI.
While no new employer
requirements are published, this HHS cyber Newsletter » and
the Guidance on HIPAA & Cloud Computing » can
be helpful to maintain compliance.
3. The ACA is here to stay...for now. After
dramatic votes, political horse trading and last minute please in the middle of
the night, the Senate failed to pass any form of repeal and replacement for the
Affordable Care Act. Although the Senate is said to be turning its attention to
tax reform, it is always possible that the ACA may find its way back to the
floor in coming months. For now, it’s important to maintain full compliance
with the ACA.
For more information
or to get involved with the ERISA Subcommittee, we encourage you to contact
Committee Chairs Ronald Peppe at firstname.lastname@example.org or Jennifer Fournier at email@example.com.
Access Subcommittee Reports on the ELLC Webpage! The ELLC posts its subcommittee reports on its web page. You can check out the subcommittee reports at:
https://www.acc.com/committees/ellc/index.cfm OR under the
Minutes & Agenda Tab on your ELLC homepage at: https://www.acc.com/committees/ellc/agendasminutes.cfm.
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Join Our Leadership!
ELLC is looking for
members interested in serving as Committee Secretary as well as leadership
positions for various subcommittees.
This is a great way to meet your colleagues and help shape the future of
the Employment and Labor Law Committee. If
you would like to volunteer or learn more about what’s available, please get in
touch with the ELLC Chair, Jack R. Erkilla, at Jack.Erkilla@onemainfinancial.com.
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