Tips on arbitration post-hearing briefs———>

The biggest mistake I see in post-hearing briefs is ignoring their strong points and ignoring your weak points. You know they're going to bring these up. You ignore these at your peril. Bring them up yourself.

I'm going to give you seven pointers:

First — Start your brief with a one-paragraph summary that gives a nutshell of your whole case. One paragraph.

Second — Remember your theme. You developed a theme for the hearing. So I want to see that theme developed throughout the brief.

Third — You're always dealing with rules: a collective bargaining agreement, a statute, government regulation, employer’s past practice. And these rules have elements: the verbs, the nouns, the adjectives.

Fourth — Tease out those elements and tie each one to a fact.
Element+Fact. Element+Fact

Fifth — Use headings to separate out the parts of your brief.

Sixth — If your brief is long, include a table of contents at the beginning, but after your one-paragraph summary.

Seventh — Close your brief by telling the arbitrator exactly what you want the arbitrator to do. Do not leave that to chance.

Retiree cannot recover under the Americans with Disabilities Act

With five separate opinions, the US Supreme Court (8-1) holds that a retiree cannot recover under the Americans with Disabilities Act (ADA) because a plaintiff must plead and prove that she held or desired a job, and could perform its essential functions with or without reasonable accommodation, at the time of an employer’s alleged act of disability-based discrimination. Stanley v. City of Stanford (US Supreme Ct 06/20/2025 [PDF].

Karyn Stanley claimed disability discrimination because the employer changed its retirement benefits—retirees with 25 years of service received coverage until age 65, but she had less than 25 years of service, so she received only 24 months of health insurance.

Under the ADA definitions, she was not a “qualified individual” because she didn’t have a job and was not seeking a job, and was not able to do the job after retiring.

Tips on arbitration cross examination———>

There are two reasons to do cross-examination. One I call constructive. The other I call destructive.

Constructive cross-examination (sometimes called hitchhiking) is where you're basically going to use the other side's witness as if they were your witness. That witness has things you need to know or the arbitrator needs to know. And you simply ask a series of questions to get that information from the witness.

The other one is called destructive cross-examination, sometimes called impeachment, where you're trying to discredit the witness. Maybe you can show that witness is a liar. That's difficult and infrequent but you can show sometimes the witness has a poor memory by asking a series of questions and see if they remember, or you can show bias by showing they’re related to somebody or they socialize with somebody. You don't come right out and say “Oh, well, you must be biased.” No.  You just let the arbitrator form the arbitrator's own conclusions on that.

If you're going to use constructive cross-examination, you're probably not going to want to then turn around and try to impeach that witness because you want the arbitrator to believe the constructive part of that testimony that you've got.

Let me give you six ideas.

Number one — Don't repeat the unfavorable information that the witness has already given. You’re just repeating stuff that you don't want to hear and you don't want the arbitrator to hear again.

Number two — Use short questions and use plain words. Don't go into great big long complicated stuff.

Number three — Use leading questions. People say don't use leading questions, but this is cross-examination and you can (and Irving Younger the great expert says you must) always use leading questions that would elicit either a yes or no answer.

You came to work at eight o'clock that morning? Yes. The supervisor was already at her desk? Yes. And so on  — very simple questions.

Number four — You should usually know what the answer is going to be before you ask the question. Otherwise, you might get surprised, unfavorably.

Number five — I want you to listen to the answer. I see it happen all the time where an advocate has a series of questions they want to ask and they go bowling through that series of questions, but they miss one of the answers that would have led them down a different rabbit hole that could have been quite favorable.

Number six — Do not quarrel with the witness. Do not argue with the witness. It only makes you look bad and it usually doesn't help your case at all. Save your argument for when the case is over and you get to make an argument to the arbitrator.

Remember — Always know why are you cross-examining. Is it constructive or destructive? And in advance of the hearing prepare a series of questions that lead you down the path you need to get to the answers that you want from the witness.

Tips on arbitration opening statements———>

Your opening statement is the one chance that you have to make a first impression.

It's the first chance you have to tell your story. And it's the only chance to warn me in advance about what I should be watching out for. I come to the hearing knowing nothing, and this is your chance to get in my head. This is your first final argument. This is your chance to tell your story before I hear the witnesses. So do one. Don’t skip it.

 Come into the hearing with an opening statement and start with a bang. Give me your theme. Tell me what your key witnesses are going to say. Tell me what your key documents are. If there's going to be a credibility problem in the case, explain to me in advance during the opening statement why your key witnesses are more credible or why their key witnesses are less credible, so when I hear those witnesses, I have your story about them in my mind, so I know what to watch for.

 When you do your opening statement do not shy away from your weak points and do not shy away from their strong points, because you know as well as I do that they will bring them up, and it's better if you bring them up first.

 So, do make an opening statement. Start with a bang. And then the hearing will go much better for you.

Tips on arbitration pre-hearing preparation———>

This is your key to success at your arbitration hearing.

You've got three things to work with: Facts. Rules. Your own skill.

The rules: In every case you're going to have some rules—a statute, a government regulation, a collective bargaining agreement, employer’s rules of conduct, past practice, something else. And the question ordinarily in an arbitration hearing is—was there a violation of that rule? Or the other side is going to be trying to show that that rule was not violated.

So take a careful look at the rules are that you're dealing with. Tease out the elements. Look for the nouns, the verbs, the adjectives.

And then take a look at your facts. Look to see what did happen. Look to see what did not happen. Look to see what actually happened but it happened in a different way than what the other side is trying to demonstrate.

Line up the elements that you've got from your rules, and put them side by side with the facts that you're going to want to prove—so you're combining the elements with the facts.
Element and Fact, Element and Fact, Element and Fact.

And what are your facts? These are your witnesses. These are your papers, your documents. emails, printouts of text messages, whatever documents you might have.

When you're looking at those facts, be sure to be clear on what your weak points are. Don't ignore your weak points. They're going to bring it up. And don't ignore their strong points. So: your strong points, their strong points, your weak points, their weak points. Make sure you have a good idea what those are.

Then? Most people will say you should develop a theme—something you can tell your story around, because really that's what you're doing at the hearing. You're telling a story. An employer might say “well, you know this employee just kept doing these things over and over and finally this was the straw that broke the camel's back.” Or they might say “good employee but did a very bad thing.” The union side might be saying, “you know, progressive discipline is the bedrock of the disciplinary system, and progressive discipline was not followed here.” Or they might say “the investigation was very sloppy and the employer rushed to judgment.” So have a theme, and you tell your story around that theme.

Then before the hearing get your exhibits in order. Make sure you have four copies: yourself, the other side, the arbitrator, and the witness. Put those together in some logical order. Maybe they're batched by witness, or in chronological order, or they're loose. Maybe they're three-hole punched and put into a binder.

And then figure out the order in which you're going to have your witnesses testify so the story get told in the way you want it to be told.

And don't forget to spend some time before the hearing preparing your cross-examination.

“Background circumstances” to the garbage heap

Watch video [HERE].

Funny [not funny!] that many courts were imposing an extra pleading burden on certain Title VII plaintiffs, such as males, whites, heterosexuals. They had to show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

That’s exactly the kind of discrimination Title VII was designed to eradicate.

Unanimous US Supreme Court to the rescue in Ames v. Ohio Dept of Youth Services (06/05/2025) [PDF]

They said: “The Sixth Circuit has implemented a rule that requires certain Title VII plaintiffs—those who are members of majority groups—to satisfy a heightened evidentiary standard in order to carry their burden under the first step of the McDonnell Douglas framework.  We conclude that Title VII does not impose such a heightened standard on majority group plaintiffs. Therefore, the judgment below is vacated, and the case is remanded for application of the proper prima facie standard.”

The end of "reverse discrimination"

As expected, the US Supreme Court was unanimous in Ames v. Ohio Dept of Youth Services (06/05/2025) [PDF].

The 6th Circuit held that a straight female had failed to meet her Title VII prima facie burden because she had not shown "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority."

In reversing, the US Supreme Court said: “The Sixth Circuit has implemented a rule that requires certain Title VII plaintiffs—those who are members of majority groups—to satisfy a heightened evidentiary standard in order to carry their burden under the first step of the McDonnell Douglas framework.  We conclude that Title VII does not impose such a heightened standard on majority group plaintiffs. Therefore, the judgment below is vacated, and the case is remanded for application of the proper prima facie standard.”

The death of Humphrey's Executor

Humphrey’s Executor v. U.S. (Supreme Court 1935) is the main case cited by individuals who dispute the President's authority to remove members of the NLRB and MSPB without cause.

Here's the thing: That case is just plain wrong. (And not because it’s 90 years old.)

It's wrong for three basic reasons.

In 1935 the Supreme Court had already held that the President could remove the heads of administrative agencies without cause.

So what made the Court think Humphrey's case was special?

One: A Multi-Member Board. Humphrey sat on a multi-member board instead of running an agency solo. Big deal, right? Why would the number of people on a board matter for a constitutional question? It doesn't.

Two: The Experience Factor. These appointees had relevant experience and would get even more by serving. My response? Who cares? Since when do experienced people get extra constitutional protection? That's nonsense.

Three: The "Quasi" Magic. This is the big one. The Court said these folks were doing "quasi-judicial" and "quasi-legislative" work—not executive functions. Notice that word "quasi"? It means "It looks like a duck but it ain’t actually a duck."

Sure, they hold hearings that look judicial—but they're not Article III judicial. It's just a smart way for executives to make good decisions.

And yes, they make rules that look legislative—but they're not Article I legislative. It's just how you create consistency and let people know what to expect.

Bottom line: NLRB and MSPB members are doing executive work under Article II, period.

And the Supreme Court stated it this way when they granted a stay in Trump v. Wilcox (05/22/2025): "The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power." Maybe not exclusively, but definitely "considerable."

When Trump v. Wilcox winds it’s way back to the Supreme Court, we'll finally get to watch Humphrey's Executor's funeral.

Amuse yourself. Go read the Humphrey's Executor case [HERE].:

NLRB & MSPB members are out, for now, forever

The Supreme Court has weighed in on the President's termination of a member of the NLRB and a member of the Merit Systems Protection Board. Trump v. Wilcox (05/22/2025) [PDF]

 Let me quote the Court: “The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.”  

District courts said this was illegal.

Now the Supreme Court has put a stay on those decisions until the case trickles up through the Court of Appeals.

It's pretty clear to me (this was a 6-to-3decision) that the Supreme Court has already made up its mind, and the President is going to win this one.

And meanwhile, both of those agencies are operating without a quorum.

SCOTUS keeps Wilcox off the NLRB

Trump v. Wilcox (US S Ct 0522/2025) [PDF]: SCOTUS slapped a stay on District Court orders that would have reinstated Gwynne Wilcox as a Member of the NLRB. The stay will remain until the case winds its way through the Court of Appeals.

 A take-away quote: “The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.”

 Three Justices dissented—Justices Kagan, Sotomayor, and Jackson.

NLRB’s General Counsel asks and answers “What about Thryv, Inc.?”

Without saying it’s dead, he says it’s dead: “In sum, both the majority and dissent in Thryv agree that foreseeable ‘harms’ or ‘losses’ should be remedied if they ‘result from’ the unfair labor practices or where the ‘causal link’ between the loss and the unfair labor practice is ‘sufficiently clear.’ Thus, at least for purposes of Settlements, Region’s should focus on addressing foreseeable harms that are clearly caused by the unfair labor practice. While this admittedly is the standard advocated by the dissent, it is the only standard reasonably capable of application.”

GC Memo: Seeking Remedial Relief in Settlement Agreements https://apps.nlrb.gov/link/document.aspx/09031d4583ffc1c3

Paul Grossman's 2025 update

Paul Grossman just sent out his 117 page Employment Discrimination Law Update for 2025. If you practice employment law, this is something you must have. It’s thorough, objective, accurate, and easy to read.

The UPDATE is a personal supplement to the book that was coauthored – Lindemann, Grossman and Weirich, Employment Discrimination Law (BNA – Sixth Edition 2020).

In an act of great generosity, Paul sends this out periodically during the year to those who ask for it. Simply send your full contact information to Paul's secretary Cathy Smith-Joo: cathysmithjoo@paulhastings.com.

Paul Grossman is a partner at Paul Hastings, and is based in Los Angeles. He is a management-side employment lawyer and a frequent speaker on employment law.

Surprise 5-4 RICO decision from SCOTUS

An employee bought and used a purportedly THC-free tincture for his pain, but he tested positive for THC on a drug test, so he was fired from his job.

He sued the maker of the tincture under RICO.

Note that RICO won’t apply to a personal injury such as loss of employment.

But the US Supreme Court (5-4) says that a plaintiff may seek treble damages under RICO for “business or property” loss even if the loss resulted from a personal injury. Medical Marijuana, Inc. v. Horn (US Supreme Ct 04/02/2025) [PDF]

Three Justices dissented, saying his personal injury can’t be transformed into a business or property loss.

Justice Thomas would dismiss the writ of certiorari as improvidently granted.

William B. Cowen appointed Acting General Counsel of the NLRB.

Press release, February 03, 2025:

Today, effective immediately, President Donald J. Trump appointed William B. Cowen Acting General Counsel of the National Labor Relations Board. Prior to today’s appointment, Mr. Cowen served as Regional Director in the Agency’s Los Angeles Regional Office (Region 21) since 2016.

“I am truly honored to be asked to serve as Acting General Counsel,” Cowen said. “The men and women of this agency represent the finest in public service and I thank the President for the confidence that he has shown in me by this appointment.”

Mr. Cowen began his NLRB career in 1979 and served in various capacities throughout the Agency at both Headquarters and in the field until he left to enter private practice in 1985. Mr. Cowen was later appointed by President George W. Bush to serve as a Board Member from January 22, 2002 to November 22, 2002. He then served as Executive Assistant (Chief of Staff) to NLRB Chairman Robert J. Battista. From 2006 to 2016, Mr. Cowen served as the Board’s Solicitor. Mr. Cowen holds a B.A. degree in Mathematics from Case Western Reserve University in Cleveland, OH, a Masters of Theological Studies degree from Wesley Theological Seminary, and his J.D. degree from Cleveland-Marshall College of Law - Cleveland State University.

Acting NLRB GC is fired

The President on Saturday fired NLRB Acting General Counsel Jessica Rutter, four days after firing General Counsel Jennifer Abruzzo.