Using Deposition Testimony at Summary Judgment
Why Depositions Matter Before Trial
Depositions often determine the fate of a case before it ever reaches a courtroom. While many non-lawyers think of depositions simply as pretrial interviews, attorneys understand that these transcripts frequently provide the decisive evidence that wins or loses a case.
Because a large percentage of civil disputes end at the summary judgment stage rather than in trial, the testimony captured in depositions is critical. Summary judgment motions invite a court to decide whether the facts are so clear that no jury needs to weigh in. If deposition testimony supports one side’s version of events, the judge may resolve the dispute without further proceedings.
The way testimony is elicited, recorded, and later cited can shape how a judge perceives the case. Done well, depositions become the backbone of a persuasive summary judgment brief. Done poorly, they create confusion or leave damaging testimony unrebutted.
The Strategic Value of Depositions
Used correctly, deposition testimony frames dispositive motions and can define the narrative of a case before trial. Lawyers must think beyond the immediate questioning and consider how each answer might appear in a motion months later. Deposition testimony is sworn, transcribed, and admissible in ways that ordinary discovery responses are not which means every exchange has potential evidentiary significance.
As attorney Seth Horvath of Nixon Peabody LLP explains, “Each commercial case is unique, and the challenge lies in helping clients identify creative and effective legal solutions tailored to their business goals.” That creativity includes deciding which portions of deposition transcripts to highlight, how to frame them, and when to rely on them rather than affidavits.
Building a Record With Purpose
Good deposition practice means thinking about summary judgment long before motions are filed. Lawyers who anticipate how testimony may be used later are better prepared to create a clean, persuasive record. That involves asking precise questions, pressing for clarity when witnesses hedge, and objecting where appropriate to preserve the record.
“A well-structured deposition and a clear evidentiary record can make the difference in recovering assets and administering estates,” notes Matt Christensen of Johnson May.
One recurring question is whether affidavits can substitute for deposition testimony. Courts often prefer deposition transcripts because they are subject to cross-examination. Affidavits can supplement the record, but are not as powerful as sworn testimony. For that reason, a well-prepared deposition can save attorneys from having to rely on weaker forms of evidence.
A transcript full of jargon or vague testimony is less effective than one that clearly lays out the facts, which is why it is critical to create plain-English records that both judges and clients can understand.
Affidavits, Errata, and the Clean Record Debate
Another challenge arises when witnesses seek to revise their testimony. Rule 30(e) of the Federal Rules of Civil Procedure allows the use of errata sheets, but their scope is controversial. Clerical corrections are generally permitted, but substantive changes often raise red flags. Extensive errata changes can backfire, leading judges to question the reliability of testimony. Therefore, lawyers must weigh how aggressively to use or oppose errata, balancing strategic gains with the risk of undermining credibility.
“Counsel’s role is not only to fight hard but also to guide clients toward reasonable decisions that avoid unnecessary escalation, ”advises Richard Hellerman of The Law Office of Richard K. Hellerman, P.C.
Crafting the Story for Summary Judgment
At the summary judgment stage, lawyers must decide how to present testimony: whether to include full transcripts, selected excerpts, or carefully chosen quotations. Too much detail risks overwhelming the court, while too little may leave out critical facts. The form also matters. Some attorneys favor narrative presentations, while others rely on statements of undisputed facts. Increasingly, audiovisual clips are being used to provide judges with immediate, persuasive context.
In the end, the most persuasive briefs tell a coherent story while still meeting evidentiary requirements. In other words, deposition testimony should be woven into a larger narrative rather than dropped into briefs without context.
Defending Against Summary Judgment Motions
Deposition testimony is equally important when resisting an opponent’s motion for summary judgment. Attorneys can use testimony to demonstrate genuine disputes of fact, undermining the idea that the case can be decided without a trial. Motions to strike, objections to improper formatting or citations, and highlighting inconsistencies are all part of this defensive playbook.
Rule 56(d) of the Federal Rules of Civil Procedure provides a key tool for opposing premature motions. If a party can show that essential facts are unavailable despite diligence, courts may deny or delay summary judgment. State-law equivalents offer similar protections. Here again, deposition testimony is crucial; it can show that material facts remain contested, making judgment as a matter of law inappropriate. In business disputes, deposition testimony often reveals the intentions and credibility of key actors, making it indispensable when rebutting an opponent’s narrative.
Depositions as Case-Deciders
Most civil cases never make it to trial. Instead, they are resolved at the summary judgment stage, where deposition testimony often proves decisive. By approaching depositions strategically, anticipating summary judgment, avoiding credibility pitfalls, and crafting a coherent story, lawyers can turn hours of questioning into persuasive evidence that determines case outcomes. In this way, depositions are not merely procedural steps but essential investments in a case’s ultimate resolution.
To learn more about this topic, view Using Deposition Testimony at Summary Judgment. The quoted remarks referenced in this article were made either during this webinar or shortly thereafter during post-webinar interviews with the panelists. Readers may also be interested in reading other articles about litigation.
This article was originally published here.
©2025. DailyDACTM, LLC d/b/a/ Financial PoiseTM. This article is subject to the disclaimers found here.
The Art of the Appeal
Understanding Appellate Practice
Appeals are part of the broader lifecycle of litigation, shaping precedent and influencing settlement outcomes. A successful appeal can change not only the outcome of an individual case but also the interpretation of the law moving forward. In this way, appellate rulings often carry a precedential weight that shapes the legal landscape well beyond the immediate dispute.
Rather than retrying the case, appellate courts focus on whether the trial court applied the law correctly. This makes appellate practice a discipline all its own, requiring precision, patience, and strategic thinking.
When Can You Appeal?
Not every unfavorable ruling can be appealed. Most appeals are governed by the ‘final judgment rule,’ meaning they can only be brought once all claims and parties have been resolved.
As Timothy Anzenberger of Adams and Reese LLP explains, “An appeal is typically predicated on a final judgment in the district court. You can’t just appeal every ruling you don’t like.”
The concept of a ‘final judgment’ may seem straightforward, but in practice it often requires careful analysis. A judgment must be entered as a separate docket entry by the clerk of the district court, and until that occurs, the appellate clock does not start.
There are exceptions, however, such as ‘interlocutory appeals’ under 28 U.S.C. § 1292, which allow review of certain rulings before the case ends. For example, orders granting or denying injunctions are immediately appealable. Other orders may be appealed only if the district court certifies that the issue involves a controlling question of law where substantial grounds for disagreement exist, and the appellate court agrees to take the case. These rules strike a balance between efficiency, avoiding piecemeal appeals, and fairness, allowing immediate review when the stakes are high.
Filing an Appeal
The appeal process begins with a ‘Notice of Appeal’ filed in the district court, typically within 30 days of the final judgment. That deadline is unforgiving. The Notice must specify the parties appealing and identify the judgment or order being appealed. It is a deceptively simple document that carries enormous consequences if mishandled.
Appellants must also file a representation statement under Federal Rule of Appellate Procedure 12(b), serve notice on all parties, and comply with local circuit rules, which may impose additional requirements. Attention to detail at this stage prevents procedural missteps that could doom the appeal from the start.
Building the Record on Appeal
The record on appeal includes all documentation and exhibits filed in the trial court, as well as transcripts of hearings. This record forms the exclusive foundation upon which the appellate court will review the case. No new evidence or arguments are permitted.
“The appellate court is not a do-over; you are stuck with the record you built,” stresses Steven Reingold of Saul Ewing LLP.
This reality makes it critical for trial lawyers to think ahead to potential appeals, ensuring the record is well-developed. For instance, if an objection is not preserved in the trial record, it is generally waived on appeal. This principle highlights why collaboration between trial and appellate counsel can be so valuable.
Litigation strategy is strongest when it anticipates future appellate review. By building a careful record, parties protect their rights and enhance the chances of success if the case moves to the next level.
Writing the Appellate Brief
The appellate brief is the cornerstone of the appeal. It frames the issues, presents the facts, and makes the legal arguments. Briefs must comply with strict rules on length, formatting, and structure. A typical brief will include a statement of jurisdiction, the questions presented, a statement of the case, a summary of the argument, the argument itself, and a conclusion. Each section has its own conventions; mistakes, such as failing to cite the record or ignoring word limits, can undermine credibility.
“Good appellate briefs tell a story; they don’t just recite law,” advises Jeff Leon of Karon LLC.
In the end, clarity, organization, and credibility are what set winning briefs apart. Headings should act as road signs, arguments should be logically ordered, and citations should be precise. The most persuasive briefs often combine rigorous legal analysis with a narrative that makes the outcome feel fair.
Oral Argument: The Courtroom Conversation
Oral argument is less about restating the brief and more about engaging with the judges’ questions. Preparation is essential, often involving multiple moot courts. Lawyers must be ready for both a ‘hot bench’ (lots of questions) and a ‘cold bench’ (few interruptions). Regardless of style, oral argument is a high-stakes opportunity to address the court’s concerns directly.
“Think of oral argument as a conversation with the court, not a monologue,” suggests Max Stein of Maxson Mago & Macaulay, LLP. That mindset helps advocates remain flexible, responsive, and persuasive. A lawyer who insists on sticking to a script risks alienating the panel, while one who listens carefully and can adjust in real time demonstrates mastery and poise. Oral argument is not the time for grandstanding but for clarity, responsiveness, and persuasion.
After the Decision
If an appeal is unsuccessful, options narrow quickly. Parties may seek rehearing by the panel or en banc, but such motions are disfavored and rarely granted. A petition for certiorari to the US Supreme Court is even less likely to succeed, with only a small fraction of cases accepted each term. Once the appellate court issues its mandate, jurisdiction returns to the district court for further proceedings.
Practical Takeaways for Lawyers and Clients
Appellate practice is not about re-trying the case but about precision, preservation, and persuasion. Lawyers and clients alike should keep several practical lessons in mind:
Evaluate carefully whether to pursue an appeal at all, given the costs and low reversal rates.
Remember that not every adverse ruling should be appealed, and sometimes moving on is the wiser course.
Avoid technical mistakes such as missed deadlines and formatting errors.
Build the record carefully during trial with an eye toward appeal.
Write briefs that are clear, credible, and engaging.
Treat oral argument as a conversation, not a speech.
Remember that appeals are not just legal battles but strategic decisions that can impact reputation and resources.
To learn more about this topic, view Appellate Practice. The quoted remarks referenced in this article were made either during this webinar or shortly thereafter during post-webinar interviews with the panelists. Readers may also be interested in reading other articles about litigation.
This article was originally published here.
©2025. DailyDACTM, LLC d/b/a/ Financial PoiseTM. This article is subject to the disclaimers found here.
From MIT Biology to Employment Law: Insights from an Attorney’s Unconventional Journey – An Interview with Meghan E. O’Kane
Attorney Feature
I’m speaking with Meghan E. O’Kane, a partner at the Los Angeles firm Swerdlow Florence Sanchez Swerdlow & Wimmer that specializes in employer-side labor and employment law. In our brief interview, she offers valuable insights into how she approaches her practice and some good advice for new attorneys coming into the field.
O’Kane’s path to the legal profession is absolutely fascinating, because it’s so unusual. She earned a Bachelor of Science degree in Biology from Massachusetts Institute of Technology (MIT) and followed that up with a prestigious fellowship at the National Institutes of Health. I had the opportunity to discuss her practice and how her earlier experiences in the upper echelons of scientific research continue to inform her approach to practicing employment law in Los Angeles.
I’d be out of my depth if I tried to fake my way through a discussion of protein pathways, but your journey from Bio and Biochemistry at MIT to George Washington University Law School is intriguing. You traded the research lab for the courtroom – the white lab coat for the power suit. Can you tell us about making that transition from science into practicing law?
I get asked this question quite often. On paper, it may appear to be a circuitous path, but for me, the transition was really a natural evolution. At MIT, I developed this love for analytical problem-solving and research-based thinking. After graduation, I did a fellowship at the National Institutes of Health. Those experiences taught me how to dive deep into complex problems, analyze data methodically, and communicate findings clearly.
You seemed to be on a clear track to continue your research in cell biology. What was it about the law that appealed to you – why the switch?
What I discovered was that law, particularly employment law, offers a similar intellectual rigor but with immediate, real-world application. Instead of studying protein pathways, I’m analyzing wage-and-hour calculations or navigating the complexities of workplace safety regulations. The analytical skills translate seamlessly, especially when handling Private Attorneys General Act (PAGA) cases or complex litigation where attention to detail and data analysis are crucial. Law school felt like a natural next step because it combined my love of research and analysis with the opportunity to solve practical problems that affect people’s working lives every day.
What was your biggest surprise when you first started practicing law?
I have been quite surprised by how much I have learned about various businesses and different industries. As an employment lawyer representing employers across various sectors, I have found myself learning about everything from restaurant operations to construction safety protocols to tech company culture. Each client becomes a mini-education. I’ll work with a manufacturing company and learn about shift scheduling challenges, then switch to a healthcare client and need to understand their unique regulatory environment. What surprised me most was realizing that I learn as much from my clients as they learn from me.
I imagine your unique career journey involved much introspection and self-discovery. Looking back, what skill do you wish you had focused on earlier?
Relationship building and cultivating professional connections. As a young attorney, you quickly learn that you won’t have the answer to every legal question that comes your way. It’s important to be able to direct your client to another professional who can help –whether that’s a tax specialist, a securities expert, or someone who handles complex litigation in a different jurisdiction. As you gain more experience in your law practice, you realize that maintaining those professional relationships is absolutely critical, not just for building your practice but also for engendering trust and respect from your clients. Now I’m much more intentional about cultivating those relationships through bar associations, professional organizations, and simply staying in touch with colleagues across different specialties.
Tell us about your current practice as an employment lawyer representing employers.
My practice covers the full spectrum of employment law defense. I counsel employers on everything from employee onboarding to navigating difficult HR issues, discipline, leaves of absence, and terminations. I regularly provide California-required anti-harassment training both in person and remotely, and I defend companies in discrimination, harassment, and retaliation lawsuits. And I have defended a number of clients in PAGA and class-action matters.
Thank you for sharing your experiences and insights with our readers. As a wrap-up, if you could give one piece of advice to new attorneys today, what would it be?
Be genuinely curious about your clients and their businesses, not just their legal problems. The most successful lawyers I know are those who take the time to really understand their clients’ industries, operational challenges, and goals. Don’t just ask “What’s the legal issue?” Ask “How does your business actually work? What keeps you up at night? What are your business’s goals?” That understanding transforms the conversation from one where you are simply pointing out potential legal problems to one where you can provide practical solutions that actually work in the real world. And embrace being a lifelong learner. The law is constantly evolving, and if you’re not excited about continuously learning and growing, you’ll fall behind. But if you love the intellectual challenge and the variety, it can be incredibly rewarding.
DISCLAIMER:
The views and opinions expressed in this Attorney Feature are those of the author and/or of those quoted herein, and not necessarily those of The National Law Review (NLR). The NLR does not answer legal questions, nor will we refer you to an attorney or other professional if you request such information from us. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor. See NLR Terms of Use.
Behind the 97%: Claims of AI “Universality” Among Lawyers May Be Premature
A recent, widely circulated report, “Benchmarking Humans & AI in Contract Drafting” (Guo, Rodrigues, Al Mamari, Udeshi, and Astbury, September 2025), made headlines with a striking claim: 97% of lawyers use generative AI for legal work. While it is no secret that AI has become increasingly prevalent in legal practice, this figure suggests a true watershed moment where the technology has essentially reached “universality.” But when we explore the underlying methodology, a number of important concerns emerge and put in doubt the now oft-quoted 97% figure and possible claims of “universality.”
The study, based on research conducted in early 2025, was primarily a benchmarking exercise that compared the outputs of 13 AI tools against a group of in-house lawyers across 30 drafting tasks. This portion of the study, which found that top-performing AI tools matched or even outperformed human lawyers on first-draft reliability while lagging slightly on usefulness, is valuable. It provides concrete findings regarding the areas of law where AI outperforms, or still falls short of, human attorneys.
However, the widely cited “97% of lawyers use AI” statistic comes from a survey of just 72 respondents. Given that recent estimates place the total number of lawyers in this country at over a million, a sample of fewer than 100 may not be representative of the broader population.
The report did not disclose the demographic profile of the law firms/lawyers participating (e.g., the size of the law firm, corporate vs. consumer practice, law firm vs. in-house) or the recruitment methods used to source the 72 respondents included in the study. This left key questions about the reliability of the bold 97% statistic, especially given the small sample size. When contacted by The National Law Review (NLR), the report’s authors stated that the responses were obtained through “direct outreach, LinkedIn, and a practice-community network.” The authors further acknowledged “a risk of selection bias,” noting that lawyers already engaged with AI may have been more willing to respond.
In an email response to NLR, the authors reported their study included a diverse cohort of lawyers spanning 24 jurisdictions, and that a more comprehensive demographic overview of the study participants would be publicly released in the coming weeks, which may provide helpful nuance. Until then, however, a conclusion that AI use among lawyers has reached universality should be treated with healthy skepticism. In an era of frequent claims about technology now surpassing once-thought unreachable benchmarks (e.g., the passing of the Turing Test, reaching AGI, reaching superintelligence, and quantum supremacy), any new claim of this ilk should be based on a strong statistical foundation using best-in-class experimental methodologies. For claims to be accepted, the conclusion should be supported by multiple studies by different research groups and be of sufficient scale. Importantly, the results for any experiment should be demonstrated to be replicable.
The authors also acknowledged that the number of lawyers contacted for the survey was not recorded, pointing to the possibility of self-selection bias (i.e., a disproportionate number of lawyers who do not use AI may have simply chosen to opt out of the study for any number of reasons, including not wanting to appear out of date or due to embarrassment).
Moreover, “universality” itself has multiple dimensions. Does it refer to a lawyer who has tried a generative AI tool once, one who relies on it daily, or one who integrates it into substantive client work? The concept of “universality” has little value without a clear definition of what constitutes use.
While these limitations weaken the claims of universality, they do not diminish the value of the benchmarking work presented in the report. The report offers important and timely findings regarding how AI compares to humans in terms of reliability, usefulness, and workflow support. Still, adoption numbers should be treated with caution. While the study may offer interesting insights into how AI is being used by early adopters, without larger and more representative samples, adoption figures risk overstating the pace of change.
How Legal Practices can use AI to Vastly Improve the Client Experience
Businesses across all industries are transforming their approach to the client experience with AI – and law practices are no exception.
“Although traditionally reluctant to adopt new technologies, law firms are already making significant investments in internal and third-party approaches to generative AI,” law professors Catherine Gage O’Grady from the University of Arizona and Casey O’Grady of Harvard University wrote in a study published this year. They anticipate that legal practices “will start to move toward agentic systems that combine human lawyers with AI agents.”
Law firm adoption of these new AI technologies for client work can lead to the biggest opportunities but also expose firms to significant pitfalls. Here’s a roadmap.
Unify the Customer Experience
There are myriad uses for AI technologies in the practice of law. One of the most important things for law firms is to deploy AI technology to improve the underlying client experience (CX). Research demonstrates that even clients who obtain positive legal outcomes and are happy with the quality of their legal work are still often disappointed in their overall relationship because the CX is poor.
“Surveys reveal that at least 50% of successful clients report dissatisfaction with their attorneys, not due to incompetence or negligence, but because of poor communication,” Attorney Journals reported. “In a study of 44 successful clients, 60% cited communication issues as their primary concern. A significant report by the International Bar Association involving 219 senior counsels found that poor communication was the leading reason clients terminated their attorney-client relationships. This issue spans all demographics and practice areas.”
To be as accessible as possible, attorneys need to operate across as many channels as possible – cell phone, video conferencing, text, email, client portals, chat, DMs, LinkedIn, WhatsApp, etc. While this “omnichannel experience” may be essential, it is inherently disorganized and can lead to a scattered trail of information about clients and their important legal matters – and client communications will suffer.
Even the greatest lawyers can’t be expected to remember everything that was said, planned, and promised, particularly when balancing a packed roster of many clients. That’s why today’s legal practices would often benefit from a unified customer experience. This type of approach helps “ensure seamless customer journeys, enabling businesses to meet the evolving expectations of consumers,” a recent study in the American Journal of Economic and Management Business explains.
Unified customer experience management (UCXM) platforms transcribe calls, pull together information from every communication channel, and use natural language processing (NLP) to create useful summaries and key insights that attorneys can easily spot at a glance.
A growing number of law firms are adopting UCXMs. For example, The Law Offices of Lee Arter employed a UCXM solution from one of the industry-leading tech providers and saw terrific results. “Our aim is to be accessible and easy for people to get a hold of us,” explained attorney Eric DeBellis. The Californian consumer law firm “embraced” a UCXM “and we love it,” he added.
Top technology firms increasingly observe their clients in the legal sector gravitate toward adoption of these newer technologies that enhance connectivity. According to Jamal Khan, head of the Helix Center for Applied AI & Robotics (CNXN): “We continue to see strong interest from law firms in adopting AI tools to improve the way they communicate with clients. Whether it is analyzing conversations or helping surface insights more quickly, these solutions are becoming important to delivering a higher quality client experience.”
Ensure Access to All Pertinent Data
These tools go beyond just combining client interactions into a single record. They wrap in key documents and schedules, creating a holistic view of each individual. In a new study on AI contract review in the cloud, Gargi Sharma and Himani Sharma of Manipal University in India note that these technologies can extract and classify crucial information from legal documents.
“This consequently makes the search for important provisions much easier,” they write. Also, “The artificial intelligence recognizes disparities, risks, and improprieties that may pose a financial or legal risk by cross-referencing with predefined regulations, such as identifying inconsistencies, hazards, and non-standard terms that might be financially or legally risky.”
For all this to work, firms must ensure that these platforms have access to all the necessary data. Any AI tool is only as good as the information it ingests; data silos can stand in the way of an otherwise well-planned UCXM implementation.
Keep Humans in Charge
These new UCXM tools can help catch details that human reviewers at law firms may overlook, a huge potential benefit. Also, as AI-infused tech becomes increasingly ingrained in everyday life, clients may warm up to the idea of interacting regularly with AI agents employed by their legal counsel.
But none of this progress – in terms of the onward march of AI and technology in the legal profession – means disregarding the accountability of the lawyer directly to the client. Ken Withers, executive director of The Sedona Conference, is developing guidance on the implementation of AI by lawyers and the courts. He notes that Rule 1.4 of the ABA’s Model Rules of Professional Conduct requires regular communication and consultation with the client, and Rule 1.1 on “competence” addresses technological proficiency in running a legal practice.
“UCXM appears to be a potentially low-risk, high-reward application of AI to the practice of law,” Withers says. “But the lawyer’s ultimate responsibility is to make sure client work is done professionally, which means the lawyer must be assured that the technology performs as represented.” He adds, “It’s distinctly possible that in the near future, as this application of AI proves itself and is accepted by the profession, legal malpractice insurance carriers may insist on it.”
While tools such as UCXM solutions can operate without risking client privacy or confidentiality, it’s up to humans to oversee these systems and make sure they are used as intended. For example, attorneys must still independently verify and approve anything that is sent out publicly or filed in court. Adopting AI does not require replacing people; it can mean freeing people to focus on higher-level tasks.
Josh Gablin, an attorney specializing in AI and ethics, furthers this theme. “Many AI tools are now available for lawyers that make their work more efficient,” he says. “But lawyers must still abide by existing ethical obligations, such as keeping the client informed about their matter and explaining it sufficiently for the client to make informed decisions. The risk of poor communication with clients and a possible breakdown in the attorney-client relationship can be exacerbated by the modern hodgepodge of disjointed communication methods. Fortunately, new AI tools, such as a unified UX platform focused on enabling organized communication, are potential game-changers in this area.”
By harnessing these technologies, lawyers can deliver clients the personalized experiences they seek. Clients feel the difference – and so do prospects.
In a FindLaw survey of more than 2,000 people who had legal needs, more than half (56%) said they take action within a week or less. “Prompt responsiveness is key when it comes to capturing prospective clients, so incorporating web chat and call answering services on your website ensures that no lead is left unattended,” the survey reports. “These tools enable your firm to manage inquiries outside of regular business hours, facilitating quick connections with prospects while reducing time spent on pre-screening tasks.”
Today’s clients have higher expectations than ever. They don’t just compare and judge their client experience with your law firm to their experiences with other firms; they compare each experience with your law firm to the best customer experiences they’ve had with any kind of business. The bar is high. But with the power of AI, legal practices can pass it.
DISCLAIMER:
The views and opinions expressed in this article are those of the author or those quoted herein, and not necessarily those of The National Law Review (NLR).
PRODUCT DISCLAIMER:
The National Law Review (NLR) does not endorse or recommend any commercial products, processes, or services. References to any specific commercial products in this article are for informational purposes only.
Discovery 101: What to Expect in Your Employment Discrimination or Retaliation Case [Video]
You’ve filed a discrimination or harassment lawsuit—now what? The next phase, discovery, is where the real battle begins. It’s often the most time-consuming part of litigation, and it can make or break your case.
What Is Discovery?
Discovery is the court-supervised process where both sides exchange information about the claims. In plain English, it’s your chance to uncover the facts you need to prove your employer discriminated against you—and your employer’s chance to test your story.
Courts allow discovery into any non-privileged matter that’s relevant and proportional to the case, weighing factors like:
The importance of the issues at stake
The amount of money involved
Each side’s access to information and resources
Whether the burden of producing the information outweighs its value
Bottom line: discovery is about pulling together the evidence that will win (or lose) your case.
The Big Three Discovery Tools
Most discovery in employment cases happens through three methods:
Depositions – sworn, in-person questioning of you, your supervisors, and other witnesses.
Interrogatories – written questions you must answer under oath, often about your allegations and potential witnesses.
Requests for Documents – demands for emails, personnel files, performance reviews, pay records, and more.
Federal rules usually limit each side to 10 depositions (max 7 hours each) and 25 interrogatories, though local court rules may impose stricter limits.
What Each Side Wants
During discovery, you and your employer will both be digging deep. Expect requests like:
From your employer:
Prior complaints you made (internally or to the EEOC)
Witnesses you’ve spoken with about the discrimination
Documents supporting your claims
Details on your damages (lost pay, emotional distress, etc.)
From you:
Your personnel file and performance reviews
How your coworkers were treated in comparison
Other complaints of discrimination against the company
Records of the company’s investigation into your complaint
Emails, memos, or other communications about your claims
Each case is unique, but these categories are common battlegrounds.
Discovery Disputes and E-Discovery
Discovery often sparks fights. Employers may argue your requests are too broad, too costly, or too burdensome—especially with e-discovery (emails, digital files, old servers). On the flip side, employers often demand sensitive personal information from you, especially if you’re claiming emotional distress damages. These can include medical records, therapy notes, or even questions about past trauma.
Your attorney’s job is to push back on intrusive or irrelevant requests and make sure discovery stays focused on what truly matters.
The Proportionality Rule
Recent changes to federal rules added a proportionality standard, designed to prevent one side from forcing the other to spend massive amounts of time and money on minor disputes. But in practice, this has only fueled more arguments over what’s “proportional.”
Why You Need an Experienced Lawyer
Discovery is complex, invasive, and often overwhelming—but it’s also where cases are won. You need an attorney who knows how to uncover damaging evidence against your employer while protecting your privacy.
Saying Goodbye the Right Way
How To Minimize Risk When Terminating Employees
Firing an employee is never fun. It’s emotional, stressful, and, if done poorly, can open the door to lawsuits or government investigations. Still, terminations are an inevitable part of running a business. The key is knowing how to handle them in a way that is both humane and legally sound.
The Myth of At-Will Employment
In most of the US, the default employment relationship is ‘at-will.’ That means employers can terminate an employee for any lawful reason, or no reason at all, without notice. But as Amit Bindra of the Prinz Law Firm explains, that promise of simplicity often comes with strings attached:
“At-will employment is not a blank check. Anti-discrimination laws, retaliation protections, and public policy exceptions all limit when and how you can actually terminate someone.”
Bindra’s point reflects the reality that ‘lawful reason’ has a narrower meaning than many employers assume. Decisions based even partly on protected characteristics, such as age, disability, or race, can invite costly discrimination claims. Retaliation claims, meanwhile, are among the most common issues employers face.
Courts and agencies frequently side with employees when termination appears pretextual. The safest course is to combine clear communication of expectations with progressive discipline, so that an employee is never blindsided. Employers should document their decision-making process and ensure that performance, conduct, or legitimate business needs drive termination decisions.
Building a Strong Documentation Trail
One of the strongest defenses an employer can have is a well-documented personnel file. Performance reviews, written warnings, and consistent application of policies can all be invaluable in litigation.
Documentation does more than defend against lawsuits. It also builds internal credibility. Supervisors who keep accurate records show employees that feedback is consistent and fair. It can help avoid disputes before they escalate by giving employees a roadmap for improvement. Employers should train managers on how to write objective, fact-based notes, avoiding personal opinions or vague descriptors like ‘bad attitude,’ that rarely stand up in court.
“In litigation, documented action, timely communicated to the employee, is the most persuasive evidence,” notes Charles Krugel of the Law Offices of Charles Krugel.
This doesn’t mean managers should fill files with paper for paper’s sake. It means documenting meaningful performance issues, goals that were set, whether employees had a fair chance to improve, and how similar situations were handled in the past. Consistency is crucial. If two employees commit the same violation but only one is terminated, a court or agency may view the decision as discriminatory.
Should You Offer Severance?
Terminations raise another thorny question: whether to offer severance. Severance packages can provide a cushion for employees and a sense of goodwill, but they can also protect employers by securing a release of claims.
Severance agreements are also an opportunity to reinforce other business protections. Many employers include confidentiality clauses, reaffirm non-compete or non-solicitation agreements, and set ground rules for how company property, such as laptops or client data, must be returned. These terms reduce ongoing risk while providing closure to the employment relationship.
“If you’re paying severance, you should be getting something in return, usually a waiver and release of claims,” advises Helen Bloch of the Law Offices of Helen Bloch, P.C.
Common components of a severance agreement include a lump-sum payment, extended health insurance, or even outplacement services. In exchange, the employee typically agrees not to sue, disparage the company, or reapply for employment. But these agreements aren’t one-size-fits-all. Employers must comply with laws like the Older Workers Benefit Protection Act when seeking waivers from employees over 40. States may impose additional rules about enforceability. Getting legal counsel to review agreements before offering them is a best practice.
Conducting the Termination Meeting
The termination meeting is often the most stressful part of the process for both sides. Employers want to deliver the news clearly while reducing tension and avoiding missteps that could spark litigation.
Preparation is everything. Employers should decide in advance who will speak, what will be said, and how to respond to likely questions. Scripts may feel uncomfortable, but they help ensure consistency. Employees deserve directness and dignity, which is why experts caution against vague explanations like ‘we’re going in a different direction.’ Instead, tie the reason to documented performance or business needs.
“Tell the employee the real reason for the termination. Don’t sugarcoat it, but also avoid inflammatory language,” suggests Max Barack of the Garfinkel Group, LLC.
Best practices include having two company representatives present, choosing the time and place carefully, staying concise, and managing logistics like final paychecks and company property. Employers should also cut off access to company systems during or immediately after the meeting to protect intellectual property and confidential data.
The Aftermath
Once the employee has left, employers should focus on communication with the remaining team. Transparency builds trust, but so does discretion. Share only what is necessary and avoid discussing details of the termination.
The period after a termination can be fragile for morale. Remaining employees may fear more cuts or speculate about hidden reasons. Employers should reassure staff about the stability of the business while maintaining privacy. Leaders can also use the moment to restate company values, emphasizing fairness and respect for all employees even in difficult circumstances.
Employers should also decide how to respond to future reference requests. Many companies adopt a ‘neutral reference’ policy, confirming only dates of employment and position. This limits the risk of defamation or inconsistent statements. Finally, gather all documentation in one secure place. Good documentation can be the difference between quickly resolving a dispute and becoming bogged down in costly litigation.
The Bottom Line
Terminations will always be hard. The end of the employment relationship is as important as the beginning. Handling it poorly can lead to lawsuits, reputational damage, and lost productivity. Handling it well can protect both the company and its people. By preparing carefully, documenting consistently, and communicating thoughtfully, employers can minimize legal risk and preserve workplace morale.
Making a Lateral Move
Switching law firms is rarely a simple matter. For partners in particular, moving laterally means balancing fiduciary duties, ethical rules, and financial realities all while trying to protect client relationships and personal reputation. A misstep at any stage can cause real harm.
The Market for Lateral Moves
Economic pressures, shifting practice demand, and competitive compensation packages continue to drive lateral movement. In many cases, these shifts are also practice-area specific. For instance, corporate and M&A practices may slow down during economic uncertainty, while litigation, restructuring, and regulatory work may see increased demand. For attorneys considering a move, this means timing can be critical; joining a firm with growth in your practice area may be more valuable than chasing headline compensation numbers. Some lawyers also view lateral movement as a way to access stronger platforms, international reach, or cross-selling opportunities that their current firms cannot offer.
A typical lateral transition involves five broad stages:
Pre-departure issues
Completing the Lateral Partner Questionnaire (LPQ) and interviews
Receipt and negotiation of the offer
Providing Notice to the Firm and Related Issues
Post-departure issues
Each stage brings unique challenges. As Dan Binstock of Garrison explains, “It seems at first like all you need to do is pick up the phone and call someone you know. But it’s not until later that you realize how much more complicated it gets.”
Duties to Firm, Partners, and Clients
Lawyers making a move must navigate multiple fiduciary duties and ethical considerations, including those to their current firm, their partners, and their clients.
When planning a lateral move, it is critical to review the partnership agreement. Typical provisions to be mindful of include the following:
Notice Periods
Non-solicitation Clauses
‘Claw back’ Provisions
Payments to Withdrawing Partners
Return of Capital Payouts
Confidentiality
Beyond the rules themselves, attorneys need to appreciate the practical implications, particularly for their clients. Clients may be in the middle of transactions or litigation, and any disruption can damage both the lawyer’s reputation and the client relationship. Courts and bar associations emphasize that the client’s right to choose counsel must always come first, and any contractual terms that conflict with this principle are viewed with skepticism.
As Brock Naeve of Affirm Partners observes, “Your fiduciary duty to your clients is paramount. That’s your North Star.”
The rules below from the American Bar Association’s (ABA) Model Rules of Professional Conduct are particularly relevant during lateral moves:
Rule 1.4: Duty to Communicate Material Facts to Clients
Rule 1.6: Confidentiality of Information
Rules 1.7 & 1.9: Conflicts with Current and Former Clients
Rule 5.6: Restrictions on the Right to Practice
Tina Solis of Nixon Peabody advises that it is incredibly important to be mindful of Rule 5.6, as this is often tested by firm agreements: “If partnership agreements have restrictive covenants that limit a lawyer’s right to practice and impede a client’s right to choose their counsel, those provisions may be unenforceable.”
Be Mindful of Potential Obstacles
Certain circumstances can raise the stakes dramatically. These situations often create leverage points for both the departing lawyer and the firm. For example, a lawyer with pending receivables or unfinished matters may be pressured to remain longer, while firms facing financial stress may resist releasing capital accounts or lifting guarantee obligations. The terms of your agreements are critical and should be analyzed thoroughly before planning a lateral move. Attorneys in these scenarios are well advised to seek outside counsel familiar with these ethical, fiduciary, and contractual issues to minimize the risk of litigation or disciplinary action.
Communicating With Potential Employers
A critical step in the lateral move process is completing the Lateral Partner Questionnaire (LPQ). This document typically asks about:
Current clients and matters
Conflicts of interest
Book of business and billing rates
Compensation history
References
However, confidentiality rules limit what can be shared. Rule 1.6 of the ABA’s Model Rules of Professional Conduct generally protects client information, though ABA guidance allows disclosure of “the persons and issues involved” for conflict checks under certain conditions.
Alex Edelman of Klein Landau & Edelman, LLC adds perspective from the recruiter side of this process: “We’re in the business of collecting information all day. But I always tell laterals that my reputation depends on protecting confidentiality and giving good advice.”
Compensation and Negotiations
Several states, including California, Illinois, and New York, prohibit employers from asking about salary history during interviews. Others, like Michigan, allow it only after a conditional offer. Compensation structures themselves can vary dramatically from firm to firm, ranging from lockstep models to ‘eat-what-you-kill’ systems, or hybrid approaches. Understanding how origination credit, cross-selling, and overhead allocation work at a prospective firm can have as much impact on long-term earnings as base salary. Moreover, cultural fit around compensation philosophies is critical; misalignment is one of the top reasons laterals become dissatisfied after a move.
Naeve stresses the importance of managing offers carefully: “If you have a great recruiter, you want them involved as early as possible. But a bad one can really muck up the process at any stage.”
For lawyers juggling multiple offers, negotiation strategy is crucial. Transparency about expectations on both sides is key to preventing disputes later.
Notice Considerations
One of the most sensitive questions is who should be notified of your withdrawal first: your current firm or the clients?
The general rule in most jurisdictions is that the firm should be notified before any clients. For example, the guidance in Ohio provides that it is improper for a departing attorney to announce the departure to clients of the firm before the law firm is told. See Supreme Court of Ohio Board of Commissioners on Grievances and Discipline Advisory, Op. 98-5. Courts in New York have taken a similar stance. See e.g., Graubard Mollen Dannett & Horowitz v. Moskovitz, 86 N.Y.2d 112 (N.Y. 1995). Illinois, likewise, follows the majority rule. Dowd & Dowd, Ltd. v. Gleason, 352 Ill. App. 3d 365 (1st Dist. 2004) (holding pre-resignation surreptitious “solicitation” of firm clients for a partner’s personal gain is actionable.).
Jonathan Friedland of Much Shelist, P.C underscores the importance of this process: “Both the departing attorney and the firm have ethical responsibilities to the clients to ensure their representation is not adversely affected.”
Once the firm is notified, best practice is a joint client letter explaining the upcoming departure and the client’s options. If the firm refuses, ethics opinions in multiple states affirm that the departing lawyer can still contact clients independently.
Best Practices for a Successful Transition
A lateral move can open new doors, but it’s not just a career move; it’s a complex legal and ethical process. Transparency, careful planning, and professionalism throughout the process send important signals to both the old and new firms that the attorney is acting with integrity.
When considering a lateral move, remember to:
Plan Ahead: Don’t wait until you’re deep in talks with a firm to bring in recruiters and counsel.
Know Your Agreements: Review partnership and employment contracts early.
Put Clients First: Fiduciary duty to clients is the guiding principle.
Manage Communications Carefully: Follow ethical rules on notice and confidentiality.
Understand Compensation Laws: Stay compliant with state restrictions on salary history.
To learn more about this topic, view The Do’s and Don’ts in Connection with a Lateral Move. The quoted remarks referenced in this article were made either during this webinar or shortly thereafter during post-webinar interviews with the panelists. Readers may also be interested in reading other articles about employment & labor dynamics.
This article was originally published here.
©2025. DailyDACTM, LLC d/b/a/ Financial PoiseTM. This article is subject to the disclaimers found here.
New Requirements for Wind, Solar, and Storage Facility Leases in Texas
This article is a follow-up to a previous article on a similar topic: “House Bill 3809 Adds Obligations to Battery Energy Storage Lessees in Texas.”
On May 29, 2025, Texas Governor Greg Abbott signed House Bill No. 3809 into law, adding new provisions to the Texas Utilities Code that impose decommissioning and financial assurance requirements for certain battery energy storage facility agreements in the state [H.B. 3809]. Shortly thereafter, on June 20, 2025, Governor Abbott signed House Bill No. 3228 into law, creating similar decommissioning and financial assurance obligations for wind and solar facility leases [H.B. 3228].
Both bills took effect on September 1, 2025, and apply only to agreements entered into on or after that date [Section 3 of H.B. 3809; Section 8 of H.B. 3228]. Solar, wind, and energy storage developers operating in Texas should ensure that their lease forms reflect these new obligations.
Battery Energy Storage
Under H.B. 3809, battery energy storage facility leases, other than those involving an electric utility, must include specific obligations for the tenant relating to the decommissioning of the facility, including the safe removal of facility and storage resources and the recycling of all recyclable components [New Sections 303.0004(a)-(b) of the Tex. Util. Code]. Additionally, tenants must provide financial assurance to the landowner before the earlier of the facility lease’s termination date or the 15th-anniversary of the battery operation date [New Section 303.0005(e) of the Tex. Util. Code]. The assurance amount must be sufficient to cover the cost of removal, recycling or disposal, and property restoration, less the salvage value of the facilities and any portion of the value of the facilities pledged to secure outstanding debt [Id. at subsection (b)].
Wind Power Facilities
As amended by H.B. 3228, Section 301.0003 of the Texas Utilities Code now requires that wind facility leases include specific obligations for the tenant to recycle or reuse all recyclable components and to dispose of the remaining components at authorized facilities [New Section 301.0003(a-1) of the Tex. Util. Code]. H.B. 3228 also expanded financial assurance requirements for wind projects [New Section 301.0004 of the Tex. Util. Code]. The amount of financial assurance must be sufficient to cover the costs of removal, recycling or disposal, and restoration costs, less the salvage value and any portion of the value of the facilities pledged to secure outstanding debt [Id. at subsection (b)]. Updated cost and salvage estimates must be provided at least once every five years for the duration of the agreement, with the tenant responsible for all costs associated with compliance [Id. at subsection (c)].
Solar Facilities
As amended by H.B. 3228, Sections 302.0004 and 302.0005 of the Texas Utilities Code impose similar obligations for solar power facility agreements [New Sections 302.0004-.0005 of the Tex. Util. Code]. Solar power facility agreements must now require tenants to recycle or reuse all recyclable components and to dispose of all other components at designated facilities [Id. at Section 302.0004(a-1)]. Additionally, the amount of financial assurance provided must be sufficient to cover removal, recycling or disposal, and restoration costs, less the salvage value and any portion of the value of the facilities pledged to secure outstanding debt [New Section 302.0005(b) of the Tex. Util. Code]. The first updated estimate is required on or before the tenth anniversary of the commercial operations date and further updates must be provided at least every five years [Id. at subsection (c)(2)]. The tenant is responsible for all associated costs [Id. at subsection (d)].
Conclusion
When taken together, H.B. 3809 and H.B. 3228 impose new requirements for storage, solar, and wind projects in Texas to remove, recycle, and dispose of such facilities [H.B. 3809; H.B. 3228]. Because all leases entered into after September 1, 2025, are required to comply with these new requirements, developers should check their site control forms to ensure that they are compliant with the current version of the Texas Utility Code [Section 3 of H.B. 3809; Section 8 of H.B. 3228].
Extended Producer Responsibility for Packaging Mid-Year Update
As participation in Extended Producer Responsibility (EPR) programs continues to grow in the US, the financial burden of developing recycling infrastructure is being transferred to producers of products that fall under the EPR mandates. Since our last update in January, several key developments across multiple jurisdictions have occurred, including the beginning of several state programs.
Legislative Developments
When we last reported at the start of 2025, five states had passed EPR legislation: Maine, Oregon, Colorado, California, and Minnesota. The tally has now reached seven. Following the publication of its needs assessment in February, Maryland passed SB 901 in May, establishing a full EPR program for packaging. Washington, one of the states already imposing post-consumer recycled content and other requirements for plastic product packaging, enacted SB 5284 on May 17, establishing the seventh EPR program.
Momentum continues to grow in additional states. Since the beginning of 2025, two states, Hawaii and Rhode Island, have passed legislation tasking state environmental agencies with conducting needs assessments to evaluate the potential for an EPR program. Hawaii Governor Josh Green signed HB 750 on May 27. Rhode Island Governor Daniel McKee signed H6207 on June 30. In addition, in Massachusetts, an EPR Commission was established to recommend and propose EPR policies to the General Court, Massachusetts’s legislative body. The commission will host six public meetings and make initial recommendations and related findings no later than January 15, 2026.
Meanwhile, some states with existing EPR programs are exploring updates to their statutory programs. On June 20, Maine, the first state in the nation to pass an EPR for packaging law in 2021, passed SP 579, updating the program with the intent of reducing regulatory costs associated with the program, aligning the program with other states’ programs, and clarifying select definitions. On March 17, Minnesota introduced SF 2619 in an attempt to exempt all paper products from the list of materials covered under Minnesota’s EPR program. Despite initial buzz, the bill has not moved out of committee.
New York, which has been working on passing EPR legislation for several years, again failed to pass an EPR program this legislative session; however, the bill will remain active for the 2026 session.
Regulatory Developments
States with existing EPR legislation have been working on developing their regulatory programs. After California Governor Gavin Newsom declined to accept draft regulations in March, citing high costs for small businesses, CalRecycle went back to the drawing board. On August 22, CalRecycle submitted to the Office of Administrative Law a new proposed rule aimed at simplifying fee structures, clarifying definitions, and expanding product exemptions. The public comment period is open until October 7.
Multiple states continue to refine their plans regarding what materials must be collected by municipalities and the fees that will be required from producers for different packaging categories. These decisions depend, in large part, on whether circular solutions are currently available or whether more resources (generated from producer fees) are still needed to develop them. In August, Maine’s Department of Environmental Protection held a stakeholder meeting on the updated draft Packaging Material Types List that was issued in July. This list designates which types of packaging will be considered “readily recyclable,” “reusable,” and “compostable.” Similarly, on August 15, CAA issued a proposal that seeks to amend the “responsible end market” provisions in Oregon. This proposal is undergoing public comment until October 15.
Ecomodulation provisions are another area of ongoing activity. On May 16, Circular Action Alliance (CAA) issued a proposal seeking to amend the ecomodulation provisions of the Oregon Producer Responsibility Organization (PRO) plan. This proposal, which underwent public comment and is now awaiting a decision by the Department of Environmental Quality, would create “bonus” opportunities for producers that transition from single-use packaging to refillable packaging. On August 14, the Colorado Department of Public Health and Environment (CDPHE) opened a public comment period on draft amendments to the regulations focusing on ecomodulation. The proposed amendments specify the circumstances under which producer fees may be reduced (e.g., use of post-consumer recycled (PCR) content produced in Colorado, among other criteria). Notably, although the Advisory Board recommended approval of the proposal, its recommendation letter noted “significant concern” with CAA’s proposal to use mass balance accounting to support claims that covered materials contain PCR content and recommended that CDPHE request the Solid and Hazardous Waste Commission to conduct a rulemaking process on the allowance or disallowance of free allocation accounting in verifying PCR content. The outcome of this process could have a substantial impact on producers’ ability to claim incorporation of PCR into plastic packaging sold in Colorado.
Programmatic Developments
So far, Circular Action Alliance has largely cornered the market as the PRO in states with EPR programs, having now been selected in Colorado, Oregon, California, and Minnesota. There may be growing potential for sector-specific PROs to advance more tailored compliance plans, however. In August, Colorado approved the Lubricants Packaging Management Association as a PRO for certain petroleum and automotive products.
Oregon leads the nation on implementation of its program plan and its first disbursement of funds to communities. Producers reported data to CAA earlier this year, and CAA anticipates the program will cover 415,000 tons of material over the course of the two-and-a-half years covered by the current PRO Plan (ending in December 2027). In Colorado, producers were required to report by the end of July. Minnesota producers had to register with CAA by July 1, and CAA “encouraged” California producers to register by December 5.
Key Tasks for Producers
Producers should continue to focus on the following tasks in 2025:
Develop or refine data collection plans.
Assess opportunities for fee reduction by leveraging ecomodulation provisions and lifecycle assessments.
Identify “pain points” or areas of programmatic ambiguity that may warrant engagement with CAA or state agencies.
Monitor state enforcement activity.
Continue to monitor new legislation, regulatory processes, and updates from CAA.
Minnesota Provides Guidance on 2026 Meal and Work Break Amendments
The January 1, 2026, changes to Minnesota’s meal and rest break laws require employers to provide fifteen-minute breaks and a thirty-minute meal break depending on hours worked. However, the vague amendments left more questions than answers. The questions raised in our July 2025 article were submitted to the state, and the Minnesota Department of Labor and Industry (MNDOLI) has now published guidance in the form of frequently asked questions (FAQs) providing some clarity. While not law, the FAQs indicate how MNDOLI interprets the laws and how they are anticipated to enforce them. MNDOLI has indicated it is evaluating whether it will conduct breaks-related rulemaking.
Quick Hits
Minnesota’s break laws are only applicable to “employees” as defined by the Minnesota Fair Labor Standards Act, excluding exempt employees and some U.S. Department of Transportation (DOT)-related positions.
Employers must only provide one meal period per day if an employee works six hours or more.
An unpaid meal period of twenty minutes or more is not counted as “hours worked” for purposes of calculating rest breaks.
MNDOLI’s FAQs Guidance
Eligibility—Who Is Entitled to the Statutory Breaks?
Minnesota’s meal and rest break laws only apply to workers who are “employees” as defined by the Minnesota Fair Labor Standards Act (MNFLSA), Minn. Stat. 177.23, Subd. 7. Notably, this excludes, and thus does not apply to:
“any individual employed in a bona fide executive, administrative, or professional capacity, or a salesperson who conducts no more than 20 percent of sales on the premises of the employer” (note: these are exempt professionals as defined by the MNFLSA which does not always align with the federal Fair Labor Standards Act, such as the Minnesota 80/20 requirement related to outside sales);
“any individual in a position for which the United States Department of Transportation has power to establish qualifications and maximum hours of service under United States Code, title 49, section 31502” (certain U.S. Department of Transportation (DOT) qualified drivers, etc.);
certain agricultural and farming workers;
seasonal staff members of an organized and permitted resident or day camp;
nonprofit volunteers;
certain elected officials and others working for a political subdivision, including police and fire protection services; certain state natural resource managers; certain county-run home school and residence workers; and individuals under age eighteen working less than twenty hours for a municipality recreational program;
taxicab drivers, babysitters, and “seafarers”; and
certain members of religious orders “who serve pursuant to their religious obligations in schools, hospitals, and other nonprofit institutions.”
In addition, as before, employers and employees may establish rest and meal breaks different from those provided for by the law pursuant to a collective bargaining agreement. Employers are also reminded that under Minnesota’s Women’s Economic Security Act, pregnant employees must be provided more frequent or longer restroom, food, and water breaks, if requested.
Mandatory Meal Break
Minn. Stat. 177.254 (Mandatory Meal Break), as amended, provides: “An employer must allow each employee who is working for six or more consecutive hours a meal break of at least 30 minutes.” MNDOLI has provided its interpretation of this amendment as follows:
It only applies to one meal break per day, no matter whether an employee works six hours or twelve hours (or more).
If the meal break is more than twenty minutes and unpaid, it is not hours worked.
An employer may still require the employee to remain on site during this unpaid thirty-minute meal break.
A one-hour unpaid meal break that combines the thirty-minute meal break and two fifteen-minute rest breaks for an employee working from 8:00 a.m. to 4:30 p.m. is permissible.
Mandatory Work Breaks
Minn. Stat. 177.253 (Mandatory Work Breaks), as amended, provides: “An employer must allow each employee a rest break of at least 15 minutes or enough time to utilize the nearest convenient restroom, whichever is longer, within each four consecutive hours of work.” MNDOLI has provided its interpretation of this amendment as follows:
This expands the prior break to use the restroom—it may now be used for time to use the restroom and more.
The rest break must be allowed within the four-hour period—not at or after four hours.
Any time an employee performs work duties including training time and cleaning time is “hours of work.”
Hours worked does not include the unpaid meal break, so long as it is twenty minutes or more and the employee is completely relieved of all work duties.
An employee working from 8 a.m. to 5 p.m. with a lunch break from 12-12:30 would be entitled to two rest breaks.
An employee working from 8 a.m. to 4 p.m. with a meal break from 11:30 a.m. to noon would not be entitled to a rest break before lunch but would be entitled to one after.
Waivers—Employees May Choose to Work Through Their Breaks
MNDOLI has confirmed its position that the statutes allow an employee to voluntarily waive their breaks, and “it is a best practice to confirm this in writing with the employee. Employers may consider seeking the assistance of an employment law attorney to determine whether their policies and practices allow employees to take breaks as required by Minnesota law.”
MNDOLI’s stated position is that whether an employer “allows” its employees to take a break is based on the facts, which may include whether: (1) the employer has break-related policies; (2) the policies have been communicated to employees; and (3) work circumstances actually allow employees to take breaks.
Remedies for Violations—Liquidated Damages
Both statutes (as revised) provide that if such a break is not allowed, “the employer is liable to the employee for the rest [meal] break time that should have been allowed at the employee’s regular rate of pay, plus an additional equal amount as liquidated damages.” MNDOLI has declined to offer any guidance about how it will calculate such remedies in the case of a violation. The FAQs merely reiterate the law and state that the remedies may be pursued by the department or through a private right of action (i.e., the employee sues). Thus, there are still more unanswered questions than answers in this regard.
Key Takeaways
Employers may want to consider amending their current handbooks and/or policies by January 1, 2026, to reflect these break period changes.
Employers may also want to update timekeeping systems, policies, and procedures to account for a break waiver for employees to sign/acknowledge if they voluntarily choose to waive their break(s).
New Jersey Steps Into Fray, Bans Mandatory Employee Meetings
New Jersey Governor Phil Murphy signed into law significant amendments to the New Jersey Employer Political Communication Restrictions Act (the “Act”) on September 3, 2025. These amendments, which take effect on December 2, 2025, make New Jersey one of 12 states in the nation to prohibit employers from holding captive audience meetings to discuss unionization with employees.
KEY PROVISIONS
The Act Will Prohibit Employers from Holding Mandatory Meetings on Unionization
Employers and their agents will be prohibited from requiring employees to attend meetings or participate in communications where the purpose is to convey the employer’s opinion about unionization. This restriction will apply to all employers in New Jersey, including those in both the private and public sectors.
Enhanced Notice Posting Requirement
Once the Act goes into effect, employers must post a notice of employee rights under the Act in conspicuous locations frequented by employees. An example of a conspicuous location would be next to the timeclock where employees punch in and out or in the employee breakroom next to all other required employee notice postings.
Permitted Communications and Exceptions
Employers will still be able to communicate with employees about unionization, or hold other meetings, under certain circumstances:
If attendance at the meeting is voluntary and employees are notified of their right to refuse to attend the meeting without incurring any penalty or discipline.
Employers will still be able to communicate information to employees that is required by law or necessary for employees to perform their job duties.
Employers will still be able to require employee attendance at trainings to prevent unlawful workplace harassment or discrimination.
Institutions of higher education will still be able to conduct mandatory meetings related to academic programs.
Certain organizations, such as political committees and not-for-profits, will still be able to require staff to attend meetings for electioneering purposes.
Religious organizations will still be able to require attendance for communications regarding religious beliefs or practices.
Enhanced Employee Protections
Employers will be prohibited from discharging, disciplining, or otherwise penalizing employees for refusing to participate in these mandatory meetings or for making good faith reports of violations of the Act. If an employee feels their rights under the Act have been violated, they may bring a civil action in New Jersey Superior Court within 90 days of an alleged violation. Available remedies will include injunctive relief, reinstatement, lost wages and benefits, attorneys’ fees, and other appropriate relief. Courts may also award punitive damages up to treble damages or impose civil fines of up to $1,000 for a first violation and $5,000 for subsequent violations.
EMPLOYER RECOMMENDATIONS MOVING FORWARD
Before the Act goes into effect on December 2, 2025, employers should consider:
Reviewing and updating any workplace policies and training materials regarding mandatory meetings to ensure compliance with the Act’s expanded restrictions.
Preparing communications that can be issued to employees.
These communications should make it clear that employees may opt out of political, religious, or unionization meetings without any adverse action being taken against those who exercise this right.
Posting the required notice of employee rights in all appropriate locations.