Publications
Law360 published an opinion piece by Alan Kabat, “Congress Must Level the Employer Arbitration Playing Field.” Alan argued that the courts are undermining the attempts by Congress and state legislatures to restrict or ban arbitration of sexual harassment and sexual assault claims. The U.S. Supreme Court has consistently held that other types of state-level arbitration bans are pre-empted by the Federal Arbitration Act, and the lower federal courts have applied that to state-level bans on arbitration of sexual harassment claims. Even when Congress enacted the 2022 Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), some courts are requiring claim-splitting, with only sexual assault/harassment claims going to court, and all other claims going to arbitration. Alan recommends that Congress amend the federal arbitration statutes to provide broader protections to workers, by allowing the states to provide greater protections to their workers. Congress should also expand the EFAA to cover other categories of employment claims, as well as to allow all claims to be brought in court, not just the covered claims.
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Lynne Bernabei Published Works
Law360 published an analysis by Lynne Bernabei and Alan Kabat of an upcoming U.S. Supreme Court case, Muldrow v. City of St. Louis. Lynne and Alan discussed how the federal courts are split on the question of whether a lateral transfer (with no change in compensation), or the denial of a transfer, can be the basis for a discrimination claim under Title VII and other employment discrimination statutes. Lynne and Alan explain that the plain language of the statute – which prohibits discriminating against employees in their “compensation, terms, conditions, or privileges of employment” – leads to the result that decisions about transfers are a change in the terms or conditions of employment, and hence are covered by Title VII. The Supreme Court’s oral argument is likely to take place in December 2023.
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The American Association of Justice’s Trial Magazine published Lynne Bernabei and Devin Wrigley’s article, “A Course Correction,” in its September 2021 workers’ rights issue. Lynne and Devin analyze a trend through which courts are more carefully scrutinizing nondisclosure and noncooperation provisions in settlements and employment agreements, to advance the public’s right to know information related to widespread discrimination and misconduct in U.S. workplaces.
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The Independent published an article by Lynne Bernabei and Kristen Sinisi about the innovative ways that states, local governments, and progressive companies are closing the gender wage gap, in the absence of comprehensive federal legislation. Their article, published on Equal Pay Day, evaluates the United States’ progress in narrowing pay disparities between women and men. It discusses how salary history bans have contributed to increased pay for women and employees of color, and explores the business case for eliminating the pay gap.
There is a way to solve equal pay discrimination. We know because we’ve seen it | The Independent
Whistleblower and First Amendment Protections for Federal Employees
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Lynne Bernabei and Alan Kabat, “Law firms Penalizing Departing Partners? – That Goes Straight to the Penalty Box!”, The Practical Lawyer, October 2015
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Lynne Bernabei, et al., “Ethical Duties and Standards in Disqualifying, Retaining, and Communicating with Expert Witnesses,” The Brief (American Bar Association), Nov. 2013
https://pdfs.semanticscholar.org/388d/b483fb696b89a825a6859dc2179f5bca3148.pdf
Lynne Bernabei and Alan Kabat, “Invasions of privacy: Congress and state legislatures are properly barring employers’ demands for social-media passwords,” National Law Journal, July 23, 2012
https://www.law.com/nationallawjournal/almID/1202563811801/?slreturn=20180222095153
Lynne Bernabei and Alan Kabat, “The SEC properly expanded protection for attorney whistleblowers,” National Law Journal, Aug. 9, 2011
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Lynne Bernabei and Alan Kabat, “Protect whistleblowers,” National Law Journal, March 16, 2009
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Lynne Bernabei, Alan Kabat, and Jason Zuckerman, “Seven Questions for Sarbanes-Oxley Whistleblowers to Ask,” The Practical Lawyer (ABA), October 2007
Alan Kabat Published Works
Law360 published an analysis by Lynne Bernabei and Alan Kabat of an upcoming U.S. Supreme Court case, Muldrow v. City of St. Louis. Lynne and Alan discussed how the federal courts are split on the question of whether a lateral transfer (with no change in compensation), or the denial of a transfer, can be the basis for a discrimination claim under Title VII and other employment discrimination statutes. Lynne and Alan explain that the plain language of the statute – which prohibits discriminating against employees in their “compensation, terms, conditions, or privileges of employment” – leads to the result that decisions about transfers are a change in the terms or conditions of employment, and hence are covered by Title VII. The Supreme Court’s oral argument is likely to take place in December 2023.
Click on this PDF to read more.
Law360 published the analysis by Alan Kabat and Devin Wrigley of a recent and important college tenure case, Tudor v. Southeastern Oklahoma State University, which upheld a jury verdict in favor of a transgender Native American faculty member who was denied tenure because of bias against transgender individuals. Alan and Devin discussed how the Court of Appeals for the Tenth Circuit correctly rejected the University’s argument that there should be deference to academic tenure decisions. They also discussed how the Court held that expert testimony on the tenure process was properly admitted at trial, including an expert analysis of comparators (others who did get tenure). They also discussed why the Court correctly awarded reinstatement with tenure to Dr. Tudor, in order to remedy the discrimination.
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Law360 published a commentary by Alan Kabat and Samuel Finn, “Congress Must Act To Curb Workplace Arbitration Pacts”. They discussed the efforts by state legislatures to ban arbitration of employment disputes, and how the Federal Arbitration Act has been used to preempt those state laws. They also discussed the multiple pending bills in Congress that would amend the Federal Arbitration Act to exclude employment and other civil rights claims from mandatory arbitration.
Click on this PDF link to read more.
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Lynne Bernabei and Alan Kabat, “Law firms Penalizing Departing Partners? – That Goes Straight to the Penalty Box!”, The Practical Lawyer, October 2015
Click on this PDF link to read more.
Lynne Bernabei and Alan Kabat, “Invasions of privacy: Congress and state legislatures are properly barring employers’ demands for social-media passwords,” National Law Journal, July 23, 2012
https://www.law.com/nationallawjournal/almID/1202563811801/?slreturn=20180222095153
Lynne Bernabei and Alan Kabat, “The SEC properly expanded protection for attorney whistleblowers,” National Law Journal, Aug. 9, 2011
Click on this PDF link to read more.
Lynne Bernabei and Alan Kabat, “Protect whistleblowers,” National Law Journal, March 16, 2009
Click on this PDF link to read more.
Alan Kabat, “The High Court Gets It Right,” National Law Journal, June 16, 2008
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Lynne Bernabei, Alan Kabat, and Jason Zuckerman, “Seven Questions for Sarbanes-Oxley Whistleblowers to Ask,” The Practical Lawyer (ABA), October 2007
Katz, D. & Kabat, “No Windfall After All”, The National Law Journal, November 10, 2003
https://www.kmblegal.com/wp-content/uploads/NoWindfall_11-10-03.pdf
Kabat, A., “How (Not) to Litigate A Sexual Harassment Class Action”: The Labor Lawyer, Volume 19, Number 2, Fall, 2003
http://studylib.net/doc/8858033/alan-kabat–%E2%80%9Chow–not–to-litigate-a-sexual-harassment-class
Bernabei, L. and Kabat, A., “The Effect of Unemployment and Workers’ Compensation Agency Decisions on Employment Discrimination Litigation “, 3 Journal of Employment Discrimination Law 98, Spring, 2001
Bernabei, L. and Kabat, A., “How Revisions to the Federal Discovery Rules Will Increase Rather Than Curb Discovery Abuse “, 1 Journal of Employment Discrimination Law 101, 2000
Katz, D. and Kabat, A., “Electronic Discovery in Employment Discrimination Cases “, TRIAL, December, 1998
http://files.ali-cle.org/thumbs/datastorage/lacidoirep/articles/TPL1408_Bernable_Kabat_thumb.pdf
“Scarlet Letter Sex Offender Databases and Community Notification: Sacrificing Personal Privacy for a Symbol’s Sake “, 35 Am. Crim. L. Rev. 333, 1998
http://heinonline.org/HOL/LandingPage?handle=hein.journals/amcrimlr35&div=18&id=&page=
American Criminal Law Review, Member
Thirteenth Survey of White Collar Crime, Editor-In-Chief