My first legal writing assignment in law school was an e-mail memo. For the first few weeks or so of my introductory legal writing course, our professor guided my classmates and me through thorough examination and crafting of effective e-mail memos. At the time, I found the exercise mundane—lacking the excitement and wonder of a full memo or brief. It seemed more like diet legal writing that was focused on beginners. Boy was I wrong.
As a new associate, I spend much of my time researching developments in the law. One effective way to communicate and document my research and conclusions is to submit an answer by e-mail. Looking back now, I wish that I had had the principles we learned in that legal writing class in mind when submitting my first such e-mail memo to a more senior associate at our firm.
My first version of an e-mail memo in practice was a disaster. The question was simple: Whether there had been any new case or other law on a narrow issue. The answer, as I saw it based on my research, was just two sentences of text. So, I wrote down my answer in a colloquial e-mail, fired it off, and moved on to another matter. Oops.
Shortly thereafter, the senior associate that I sent that e-mail to walked into my office and politely asked me whether I had a copy of The Bluebook. Then it all came back: Identify the question; give an answer; justify and support the answer by stating what the law is and how it would likely apply to these facts; consider counter answers where applicable; offer further discussion; check your cites. Needless to say, my first e-mail memo in practice did not follow this blueprint.
Now, my experience might not be everyone’s, but if I could add to the heap of advice law students receive, it would be to refresh that recollection of how to write a superb e-mail memo before pressing the send button as a new associate in practice. E-mail memos are not mere introductions to legal writing.
Most of us are familiar with wellness programs—programs sponsored by our employer or health plan that try to incentivize us to eat healthier, sleep well, and get more exercise. If you’re anything like me, it helps to have that extra push or incentive, especially around the holidays when sweets abound, to stay on track—or at least, to not stray too far from health goals. Most of these programs have the added advantage of lowering health care costs, both by providing financial incentives to reduce immediate costs to the individual employees and by boosting the overall health of the employees as a whole, which could reduce future health care costs. However, extensive technical regulations and recent litigation by the AARP make implementing health and wellness programs increasingly tricky for employers.
Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) and the regulations promulgated by the U.S. Equal Employment Opportunity Commission (the “EEOC”) thereunder, generally prohibit “an employer [from] request[ing], require[ing], or purchas[ing] genetic information [which includes an individual’s family medical history] with respect to an employee or a family member of the employee.” 42 U.S.C. § 2000ff–1(b). However, there is an exception for wellness programs, as long as employers jump through a set of hoops. 29 CFR § 1635.8(b)(2). While not without its own problems and excesses, the exception in the EEOC regulations at least allows employers to provide incentives to those employees willing to participate in employer-sponsored wellness programs.
The AARP doesn’t like this whole “incentive” idea to begin with. It recently filed a lawsuit against the EEOC in an attempt to vacate the regulations entirely. AARP v. U.S. Equal Employment Opportunity Commission, No. 1:16-cv-02113 (D. D.C. 2016) (hereafter the “AARP Complaint”). This actually might not be a bad idea, except for the fact that the AARP thinks that the regulations do not have enough hoops. In fact, the AARP would prefer that the regulations abolish any permission for any incentives or penalties to induce participation in employer-sponsored wellness programs. The AARP alleges in its complaint that all employer incentives or penalties to induce participation in employer-sponsored wellness programs violate Title I of the ADA and Title II of GINA. AARP Complaint at 3. Continue reading “That Extra Incentive”