Current Developments in Employment Law
Why Attend?
Featuring:
• Bob Fitzpatrick on the U.S. Supreme Court's extraordinarily busy 2007-08 term, with commentary by Judges Bruce Black, Alia Moses Ludlum, Rebecca Pallmeyer, and Jerry Smith
• Frank Morris and Peggy Mastroianni on the Americans With Disabilities Act
• Evidence in employment cases, led by Judge Paul Grimm, plus a mock argument showing how "me too" evidence may play out after Sprint
What You Will Learn
During its 2007-08 term the U.S. Supreme Court addressed more employment law issues than in any other term within memory. This state-of-the-art annual course of study, comprising 16 hours of instruction, reviews not just the Supreme Court's decisions and opinions, but also developments across the entire spectrum of employment law.
The faculty includes federal circuit, district, and magistrate judges, who candidly share with registrants their perspectives on employment law developments and litigation issues.
Within the topical areas on the program, cutting-edge issues receive concentrated attention from an experienced faculty. The course emphasizes current developments and is taught at an advanced level. The substantial study materials include analyses, checklists, and forms. These not only flesh out the oral presentations, but also provide a desk reference of independent value.
Time is reserved throughout the program for the faculty to address questions submitted by the registrants and to assist registrants in any other ways that might render the course more productive for their practices, not just during sessions, but also informally and during the networking reception following the first day of the course.
Planning Chairs
Robert B. Fitzpatrick, Robert B. Fitzpatrick, PLLC, Washington, D.C. (also on faculty)
Frank C. Morris, Jr., Epstein Becker & Green, P.C., Washington, D.C. (also on faculty)
Faculty
Bruce D. Black, U.S. District Judge, Santa Fe
Paul W. Grimm, U.S. Magistrate Judge, Baltimore
Alia Moses Ludlum, U.S. District Judge, Del Rio, Texas
Rebecca R. Pallmeyer, U.S. District Judge, Chicago
Jerry E. Smith, U.S. Circuit Judge, Houston
Edward T. Ellis, Montgomery, McCracken, Walker & Rhoads, LLP, Philadelphia
Vanessa V. Fitzpatrick, National Manager, Litigation Technology Services, Gibson, Dunn & Crutcher LLP, San Francisco
Margaret A. Harris, Butler & Harris, Houston
Ellen C. Kearns, Foley & Lardner LLP, Boston
Laura M. Kibbe, Director, e-Discovery Litigation Consulting Services, Thomson Reuters, Stamford, Connecticut; former Senior Corporate Counsel, Pfizer, Inc.
Peggy R. Mastroianni, Associate Legal Counsel, Equal Employment Opportunity Commission, Washington, D.C.
Peter M. Panken, Epstein Becker & Green, P.C., New York
Barry D. Roseman, McNamara, Roseman, Martinez & Kazmierski LLP, Denver
Diana P. Scott, Greenberg Traurig, LLP, Los Angeles
Richard T. Seymour, Law Office of Richard T. Seymour, P.L.L.C., Washington, D.C.
John L. Utz, Utz, Miller, Kuhn & Eickman, LLC, Overland Park, Kansas
Gordon Waldron, Senior Trial Attorney, Equal Employment Opportunity Commission, Chicago
ALI-ABA Staff Attorney: William S. Stevens, Assistant Director, Office of Courses of Study (wstevens@ali-aba.org)
Program Schedule
WEDNESDAY, JULY 23, 2008
4:00-6:00 p.m. Early Registration
THURSDAY, JULY 24, 2008
8:00 a.m. Registration and Continental Breakfast
WEBCAST SEGMENT A
8:55 a.m. Introductory Remarks and Course Overview
9:15 a.m. U.S. Supreme Court Employment Law Developments - Mr. Fitzpatrick
• Disparate impact age cases after Meacham v. Knolls Atomic Power Laboratory
• Federal employee age retaliation cases after Gomez-Perez. v. Potter
• Retaliation claims under §1981 after CBOCS West, Inc. (Cracker Barrel) v. Humphries
• "Me too" evidence after Sprint/United Management Co. v. Mendelsohn
• The future of §1981 claims in general
• Protected activity under Title VII after Crawford v. Metropolitan Gov't of Nashville
• Intake questionnaire and charge filing after Federal Express Corp. v. Holowecki
• The presentment "requirement" in False Claims Act cases after Allison Engine Co., Inc. v. U.S. ex rel. Sanders
• Arbitration after Preston v. Ferrer: can employers require arbitration of claims that would otherwise be heard by state and local anti-discrimination commissions?
• The scope of review in arbitration claims after Hall Street Associates v. Mattel, Inc.
• Collectively bargained arbitration of statutory discrimination claims - 14 Penn Plaza LLC v. Pyett
• Recovery of fees for paralegal services after Richlin Security Service v. Chertoff
• Cases like the settled Huber v. Wal-Mart Stores, Inc.: does "reasonable accommodation" under the ADA require affirmative action or preferential treatment?
• The "class of one" equal protection case: Engquist v. Oregon Dept. of Agriculture
• Payroll deductions for political contributions: Ysursa v. Pocatello Education Association and Locke v. Karass
• Proof standards in Batson jury challenges after Snyder v. Louisiana, and their implications for employment cases
• Chamber of Commerce v. Brown and NLRA preemption
• Riegel v. Medtronic: obstacle preemption and implications for state and local health care mandates
10:00 a.m. Judges' Commentary on the U.S. Supreme Court Term - Judges Black, Ludlum, Pallmeyer, and Smith
10:45 a.m. Networking Break
11:00 a.m. Americans with Disabilities Act (ADA) Developments - Ms. Mastroianni and Mr. Morris
The annual tour de force review of recent cases
12:15 p.m. Lunch Break
WEBCAST SEGMENT B
1:45 p.m. Retaliation Claims After This Term's Supreme Court Opinions - Messrs. Fitzpatrick, Panken, Roseman, and Waldron; Commentator: Judge Smith
In-depth analysis of Crawford, Gomez-Perez, and Humphreys (the three retaliation cases on the Supreme Court's 2007-08 docket) and other developments
2:45 p.m. Religion in the Workplace - Ms. Mastroianni and Mr. Panken; Commentator: Judge Black
• Francis v. Mineta (3d Cir.): dreadlocks, a TSA employee, and the Religious Freedom Restoration Act
• Employees' refusal to perform certain job functions because of religious scruples
• Religious symbols at work stations or worn by or displayed on the employee
• Prayer in the workplace
• Proselytizing in the workplace
• The intersection of headscarves and security concerns
• The ministerial exception after Rweyemamu v. Cote (2d Cir., 2008)
3:15 p.m. Networking Break
3:30 p.m. Ethics and Professional Responsibility - Judge Grimm and Mr. Roseman
• Puffing and lying in settlement negotiations - where is the line?
• Outsourcing overseas review of documents and electronically stored information
• Special ethical issues in class and collective actions
• Pretexting and testers - the current state of the law
• Lawyer obligations regarding preservation of evidence and avoidance of spoliation
• Collaborative law: the ABA and the Colorado approaches
4:30 p.m. New Developments Under the FLSA - Ms. Kearns
• Compensable time issues:
• Pre-work activities at home - accessing the computer, checking voicemail or blackberry
• Donning and doffing non-unique gear such as goggles or rubber gloves
• Commuting time-when is it compensable?
• Must the employer know of the work time?
• Misclassification issues - who's not exempt:
• Assistant store managers in retail establishments?
• Claims adjusters?
• Loan originators?
• Computer assistance employees?
• Medical professionals?
• Vocational educator?
• Subdivision homes salespersons?
• Joint employment
• Contingent workers in the health care field
• Subcontractors in construction industry
• Security Guards
• Cleaners in office buildings
• Hybrid collective/class actions
5:30 p.m. Adjournment for the Day; Networking Reception for Registrants and Faculty
FRIDAY, JULY 25, 2008
8:00 a.m. Continental Breakfast
WEBCAST SEGMENT C
8:30 a.m. Saying Goodbye: Reductions in Force and Separation Agreements - Messrs. Panken and Utz
• Model clauses for separation agreements
• Dealing with the employee's tax concerns
• Getting it right under the OWBPA
• Executive compensation issues and 409A in settlement agreements
• Structuring a RIF
9:30 a.m. Family and Medical Leave Act (FMLA) Developments - Mr. Morris; Commentator: Judge Pallmeyer
• DOL's proposed new regulations
• New FMLA rights for military
• Proposed expansion of federal FMLA
• New state and local leave laws
• Intermittent leave issues
10:30 a.m. Networking Break
10:45 a.m. Non-Competes, Non-Solicitation Clauses, and Computer Fraud and Abuse Act Claims - Messrs. Ellis, Fitzpatrick, and Morris
• The ins and outs of the Computer Fraud and Abuse Act
• Conversion and misappropriation of trade secrets claims
• When is a "no raiding" clause permissible?
• How to draft an enforceable non-compete clause
11:45 a.m. Sexual Orientation Discrimination - Mss. Harris and Scott
• Proposed federal Employment Non-Discrimination Act (ENDA)
• The scope of state and local legislation
• The federal courts' reaction to Title VII claims arising out of sexual orientation discrimination
• Judge Robertson's decision in Schroer v. Billington
• 10th Circuit's decision in Etsitty v. Utah Transit Authority
• The bathroom issues
• Varying court interpretations of sex stereotyping
12:15 p.m. Lunch Break
WEBCAST SEGMENT D
1:45 p.m. Recurring Evidence Issues in Employment Cases - Judge Grimm, Moderator; Judges Black, Ludlum, and Pallmeyer; Messrs. Ellis and Seymour
• The authentication and admission of digital and electronically stored information
• Evidence supporting or tending against the award of emotional distress damages
• Privilege and spoliation issues presented by an employee's saving on or deleting personal material from an employer-supplied computer
• Evidence supporting an award of punitive damages
• Use of evidence in parallel proceedings, such as an ADA suit proceeding simultaneously with claims for unemployment compensation and social security disability benefits, including issues arising when only examiner's notes are available, rather than stenographic transcripts
• Evidence of hostile working environment - admissibility of customer complaints
• "Me too" evidence after Supreme Court decision in Sprint
2:45 p.m. Networking Break
3:00 p.m. "Me Too" Evidence After Sprint - Judge Pallmeyer, Moderator; Judges Black, Grimm, and Ludlum; Ms. Scott and Mr. Waldron
A mock argument on the admissibility of various types of "me too" evidence in the wake of the Supreme Court's Sprint decision
4:00 p.m. Emerging Employment Issues under State Law - Mr. Fitzpatrick and Ms. Scott
• State anti-discrimination laws and out-of-state employees
• States' more liberal interpretation of "disability"
• Anonymous blogger litigation for defamation and copyright infringement
• Nursing mothers laws
• States rejecting Delaware State College v. Ricks re start of statute of limitations
• States rejecting Faragher/Ellreth
• Lifestyle discrimination statutes
5:00 p.m. Adjournment for the Day
SATURDAY, JULY 26, 2008
8:00 a.m. Continental Breakfast
WEBCAST SEGMENT E
8:30 a.m. Practical Application of the Electronic Discovery Amendments to the Civil Rules - Judge Grimm and Mss. Fitzpatrick and Kibbe
A judge, a former in-house counsel, and the litigation technology services manager of a major law firm discuss how to structure an electronically stored information (ESI) retention program, how to implement a litigation hold, and how to address ESI discovery, with emphasis on spoliation problems and cost containment.
9:30 a.m. Networking Break
9:45 a.m. Executive Compensation and Employee Benefits Update - Mr. Utz
• The standard of review of ERISA benefit claims after Met Life v. Glenn
• Age discrimination in retirement plans after Kentucky Retirement Systems v. EEOC
• Effect of LaRue v. DeWolff, Boberg & Associates, Inc. on breach of fiduciary duty ERISA litigation
• Using VEBAs (Voluntary Employees' Beneficiary Associations) to fund or transfer liability for retiree health obligations
• Age discrimination developments
• Default investments under 401(k) plans
• Multi-State employers and the San Francisco, Massachusetts, and other state mandates
• 401(k) fee disclosure developments
• Termination payments and performance-based compensation under Internal Revenue Code §162(m) after Revenue Ruling 2008-13
10:45 a.m. Discrimination and Harassment in the Workplace: Race, Sex, Age, and National Origin - Mss. Harris and Scott and Messrs. Fitzpatrick, Seymour, and Waldron; Commentator: Judge Ludlum
• Accent discrimination cases
• Remedies for illegal aliens
• Pay compensation litigation after Ledbetter v. Goodyear Tire & Rubber Co.
• Age disparate impact litigation
• Increase in disparate impact testing litigation - Gulino v. New York
• Social networking sites: new challenges for employment lawyers
• Cash balance plans
• How employment law may change after the November elections
12:00 noon Adjournment
Total 60-minute hours of instruction: 16.25, including one hour of ethics
Suggested Prerequisite: Limited experience in legal practice in subject matter or completion of Basic CLE Course in subject matter
Educational Objective: Maintenance of professional competence as a practitioner; provision of information on recent legal developments; development of proficiency in performance of intricate and complex legal tasks within a narrow area
Level of Instruction: Advanced
Here's what registrants have said about this course:
"This is a wonderful course! I've been attending for years and will see you again next year!"
"I am making attendance at this course a term and condition of employment."
"An outstanding resource that makes me a much better practitioner. An excellent blend of the substantive and strategic."
"Thanks so much for the discussion regarding employee benefits and executive compensation and the excellent material. Please keep this type of information in the materials and program."
"The faculty was outstanding. Their knowledge and presentation skills were wonderful. I appreciate having the differing perspectives of judges, employer attorneys and plaintiff attorneys, and EEOC representatives."
"The materials (written) are fabulous."
"The course was full of useful information and extremely well-run."
"Just a great seminar."
"As usual, an outstanding course and related materials."
"Once again the presenters and materials were outstanding."
"'The' premier employment law presentation. First class and first rate in every way. The presenters live and breathe employment law, and their presentations shine."
"Bob Fitzpatrick's contributions are always valuable."
"It was a great program, as usual."
"Overall, this course is excellent! I really enjoyed the variety of backgrounds and expertise of the presenters. Combination of perspectives of plaintiff's lawyers, defense lawyers, EEOC, corporate lawyers, and judges was invaluable. Also, the judges on the panel were excellent. I also look forward to going through the course materials in depth and having them as a reference. I would definitely attend this course again and feel it is a must for employment law practitioners."
"All the judges were very, very good."
"This is a remarkable panel - extremely expert and generous and practical."
"The varied experience level of the faculty enriches the program as real life, and practical takeaways make this a unique opportunity for professional enrichment."
"I have attended this course for twelve years and each time the course exceeds my expectations. The course, faculty, and material open so many new opportunities to assist my clients. I have concrete, practical ways to successfully guide my clients' cases in litigation. I have substantive suggestions to guide clients that I counsel and advise. I have a unique perspective on the coming changes in employment law practice. There is nothing in this course that can't be used to the practitioner's advantage and his/her clients' benefit. Thank you!"
"The judges' panels and commentary were particularly well done. I greatly appreciated the spectrum of perspectives from the appellate court judges to trial court judges. Their comments were substantive, enlightening, and extremely helpful."
"Even after attending this course for twelve years, I can't express what an eye-opening experience it was. I have over a dozen, concrete 'follow ups' based on the course material, presentations, and comments that will directly benefit my clients. Very well done."
