Few specialists wear more hats than the employment lawyer. We spend the morning advising a client on a medical leave issue, pivot to a wage-and-hour collective action in the afternoon and worry at night whether our associates are quietly outsourcing their legal reasoning to ChatGPT. This issue of the Michigan Bar Journal addresses all three scenarios. For good measure, it throws in a plaintiff-side summary judgment playbook sharp enough to make this defense lawyer nervous.
Christina Nechiporchik tackles the maddeningly complex question of what happens to an employee’s benefits during a leave of absence. Her article is a reminder that the regulatory alphabet soup of FMLA, ADA, ERISA and COBRA is both a compliance headache and a potential litigation minefield.
Sean Dutton and Ryan Bohannon examine the fallout of the Sixth Circuit’s recent Clark v. A&L Homecare & Training Center decision, which raised the evidentiary showing necessary to obtain court-issued notice of FLSA claims to other potential collective-action members without clarifying whether the statute of limitations for those absent members may be tolled while discovery proceeds. Their article is required reading for anyone – plaintiff or defense – navigating the tension between the inherent delays of litigation and a statutory clock that refuses to stop running.
Richard Warren and Lauren Harrington offer a candid look at the use of artificial intelligence in the practice of law. This piece is no hallucination. It is an honest take on the ways that generative AI tools can both sharpen and dull an associate lawyer’s professional edge. It also addresses the influx of pro se litigation fueled by generative AI (including dueling opinions on work-product privilege over AI queries and outputs – one of them from the Eastern District of Michigan) and surveys the increasing use of AI by employers in decision-making.
Finally, fellow council member Sarah Prescott provides a plaintiff-side playbook for avoiding summary judgment in employment cases. The article covers everything from case selection and forum choice to the direct and circumstantial routes to establishing a triable discrimination case under state and federal law. And despite its content, the article is not merely helpful to the plaintiff’s bar. As I read it, I recalled Sun Tzu’s maxim “Know thy enemy.” Other defense counsel would do well to study Sarah’s piece with that in mind.
Taken together, these four articles give a hint at the breadth of what employment lawyers do. Enjoy the issue.