Why Attend?
Featuring the Latest Developments in Areas Affected by the Financial Crisis, Including ERISA Litigation and Reductions in Force
Today's employment and labor law practitioner must stay up to date on potential significant changes in this area of law. Most significantly, the current financial crisis surely will affect various aspects of employment and labor practice. Additionally, by the time this course is offered, we will know which party will control the executive and legislative branches of our government in 2009 and thereafter and, as a result, what new legislation is likely to be adopted next year.
There have been many Supreme Court cases affecting employment and discrimination law, not to mention state law developments, and there has been a dramatic increase in wage and hour litigation under the FLSA and state laws, including many collective/class actions.
The electronic era, where internal communications often consist of hastily drafted, routinely deleted, but potentially troublesome email, has created litigation over employee privacy and discovery problems for the courts. The courts are also faced with questions about limiting the discovery and disclosure of masses of emails and defendants’ obligations to troll for relevant e-mails to comply with broad discovery demands.
In an economy beset by layoffs and bankruptcies, the courts are experiencing a tsunami of retaliation litigation, a plethora of mass/class wage and hour suits, and a new burden of proof scheme in reduction-in-force litigation. The interplay of state and federal laws barring disability discrimination and requiring Family and Medical Leave Act leaves for serious health conditions has also led to increased litigation.
The return of our armed forces from Iraq and Afghanistan, as well as the increasing demands on reservists create pressing issues of compliance with USERRA.
This annual Advanced Course of Study, comprising 16.25 hours of instruction, examines these trends and developments. It also focuses on litigation questions and techniques, with special emphasis this year on evidentiary problems.
While litigators are dealing with evidentiary problems, there are concurrent sessions for corporate counsel on counseling clients with respect to reductions in force, restrictive covenants, gender and harassment discrimination, and age discrimination. Updates on state employment-related cases, and cases involving discrimination on the basis of sex, age, disability, ERISA, and retaliation also are provided. A full hour is set aside for discussion of ethical problems in employment litigation.
In these challenging times, this is the annual event to get practical advice on the latest employment and labor law developments from a superb panel of national experts and have an opportunity to exchange ideas with attorneys from across the United States.
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What You Will Learn
This two-and-a-half-day program delivers 19 presentations on the hottest topics in employment law, including:
· EEOC Update
· Retaliation, Whistleblower Protection, and Sarbanes-Oxley Developments
· Proposed Legislation from a New Administration
· U.S. Supreme Court Highlights
· The Fair Labor Standards Act (FLSA): A Trap for Unwary Employers and the Trend to Class and Collective Actions
· Corporate Counsel Concurrent Sessions on Reductions in Force and Restrictive Covenants
· Gender and Harassment Litigation
· Age Litigation Update
· State Employment Law Update
The program also features a Live Mock Jury Demonstration!
As in past years, this course features a mock case presented to a jury by skilled trial attorneys. A federal magistrate judge then charges the jury, and their deliberations are viewed live by the registrants via closed circuit TV. Comments follow from a jury selection expert, the judge, and a panel of practitioners. This is a unique opportunity to understand how juries work and whom to select.
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Planning Chairs
Peter M. Panken, Epstein Becker & Green, P.C., New York
Robert B. Fitzpatrick, Robert B. Fitzpatrick, PLLC, Washington, D.C.
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Faculty
Fred W. Alvarez, Wilson Sonsini Goodrich & Rosati, P.C., Palo Alto, California
Stephen Z. Chertkof, Heller, Huron, Chertkof, Lerner, Simon & Salzman, P.L.L.C., Washington, D.C.
Ronald S. Cooper, General Counsel, Equal Employment Opportunity Commission, Washington, D.C.
Frank Cummings, Buchanan Ingersoll & Rooney PC, Washington, D.C.
Dennis P. Duffy, Baker Botts L.L.P., Houston
John M. Facciola, U.S. Magistrate Judge, Washington, D.C.
Joseph Z. Fleming, Greenberg Traurig, P.A., Miami
Daniel R. Gallipeau, Ph.D., President, Dispute Dynamics, Inc., Torrance, California
Kay H. Hodge, Stoneman, Chandler & Miller LLP, Boston
Dianna B. Johnston, Assistant Legal Counsel, Equal Employment Opportunity Commission, Washington D.C.
Debra S. Katz, Katz, Marshall & Banks, LLP, Washington, D.C.
Peggy R. Mastroianni, Associate Legal Counsel, Equal Employment Opportunity Commission, Washington, D.C.
Frank C. Morris, Jr., Epstein Becker & Green, P.C., Washington, D.C.
Diana P. Scott, Greenberg Traurig, LLP, Los Angeles
Richard T. Seymour, The Law Office of Richard T. Seymour P.L.L.C., Washington, D.C.
Samuel F. Wright, Tully Rinckey PLLC, Washington, D.C.
ALI-ABA Staff Attorney: Thomas M. Hennessey, Assistant Director, Office of Courses of Study
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Program Schedule
Thursday, December 4, 2008
8:00 a.m. Registration and Continental Breakfast
Webcast Segment A: EEOC Update, Retaliation, the ADA, and Proposed Legislation
9:00 a.m. Introductory Remarks
9:05 a.m. EEOC Update – General Counsel Cooper
The General Counsel of the Equal Employment Opportunity Commission shares presents the EEOC’s major initiatives in the past year and the EEOC’s goals, plans, and programs for 2009.
9:45 a.m. Retaliation, Whistleblower Protection, and Sarbanes-Oxley Developments – Ms. Katz and Mr. Panken
On top of the exponential rise in retaliation cases as an add-on or even stand-alone cause of action in employment cases, the Supreme Court has eased the burden on plaintiffs. In several cases, the Court expanded the definition of adverse employment action, and, last term implied a retaliation cause of action despite the absence of specific retaliation prohibitions in two separate statutes.
10:30 a.m. Networking Break
10:45 a.m. Americans With Disabilities Act (ADA) – Ms. Mastroianni and Mr. Morris
The number of disability discrimination cases continues to grow as courts deal with unanswered ADA issues. A senior EEOC official and a defense practitioner bring us up to date on the most recent developments, including disability definitions, the search for reasonable accommodation, safety concerns, and the ability to do the essential functions of the job.
11:45 a.m. Proposed Legislation – Messrs Fleming and Fitzpatrick and Ms. Mastroianni
In the aftermath of the 2008 presidential and congressional elections, what legislation affecting employment laws is likely to be enacted and what can lawyers do now to prepare? The new Congress will consider legislation to overturn the Supreme Court’s Ledbetter decision; to ban pre-dispute arbitration requirements; and to reform the substantive provisions of the ADA, the Civil Rights Tax Relief Act, and the Employee Free Choice Act, among others.
12:30 p.m. Lunch Break
Webcast Segment B: Arbitration, the Supreme Court’s 2007-08 Term, FLSA, and ERISA
2:00 p.m. Arbitration Update – Messrs. Alvarez and Fleming
The attack on agreements to arbitrate class cases and employment disputes continues. This session addresses the effect of the latest Supreme Court decisions on arbitrability under the Federal Arbitration Act and the ability to appeal from arguably wrong decisions.
2:45 p.m. U.S. Supreme Court Highlights – Mr. Fitzpatrick
This session reviews the largest employment term in the history of the Supreme Court, and previews its 2008-09 term. 2007-08 cases to be discussed concern:
· Arbitration (Preston v. Ferrer, 14 Penn Plaza LLC v. Pyett, and Hall St. Associates v. Mattel, Inc.);
· Retaliation decisions (Gomez-Perez v. Potter, CBOCS West, Inc. (Cracker Barrel) v. Humphries, and Crawford v. Metropolitan Gov’t of Nashville)
· Intake questionnaire/EEOC charges (Federal Express Corp. v. Holowecki);
· “Me too” evidence (Sprint/United Management Co. v. Mendelsohn);
· Disparate impact in age cases (Meacham v. Knolls Atomic Power Laboratory);
· Fees for paralegal services (Richlin Security Service v. Chertoff);
· False Claims Act presentment (Allison Engine Co., Inc. v. U.S. ex rel. Sanders)
· NLRA preemption (Chamber of Commerce v. Brown);
· Payroll deductions for political contributions (Ysursa v. Pocatello Education Association and Locke v. Karass); and
· The “class of one” (Engquist v. Oregon Dept. of Agriculture).
3:30 p.m. Networking Break
3:45 p.m. The Fair Labor Standards Act (FLSA): A Trap for Unwary Employers and the Trend to Class and Collective Actions – Ms. Hodge and Mr. Fitzpatrick
Federal and state wage and hour litigation continues to increase dramatically with plaintiffs pursuing individual, class, and collective actions. This session addresses pre-work activities at home, donning and doffing cases, commuting time, misclassification issues, joint employment, hybrid-collective class actions, innovative attacks on the classification of white collar employees, and the effect of Rule 68 offers on collective actions.
4:30 p.m. ERISA Litigation, Including Bankruptcy Developments– Mr. Cummings
Recent developments in ERISA litigation are presented, with emphasis on fiduciary litigation, “equitable” remedies, preemption (particularly of health benefit “pay or play” laws), “stock drop” 401(k) and ESOP controversies, plan freezes and terminations, and bankruptcy-related benefits and labor litigation.
5:30 p.m. Adjournment for the Day
Friday, December 5, 2008
8:30 a.m. Continental Breakfast
Webcast Segment C: Trial and Jury Deliberation Demonstration
9:00 a.m. Jury Demonstration – Judge Facciola, Dr. Gallipeau, and Mss. Katz and Lyons
Registrants observe closing arguments and jury deliberations in a hypothetical employment discrimination case. A judge, a jury expert, and litigators then offer practical advice on strategic trial practice issues.
10:15 a.m. Coffee Break
10:30 a.m. Jury Demonstration (continued)
12:30 p.m. Lunch Break
2:00 -3:30 p.m. Concurrent Sessions for Litigators and Corporate Counsel
Litigation Concurrent Sessions (Not Webcast)
2.00 p.m. Current Evidentiary Problems in Employment Litigation – Judge Facciola and Messrs. Fitzpatrick and Seymour
Since more cases can go to juries after Reeves, in limine motions and evidentiary problems assume greater importance. This session addresses the role of expert witnesses in employment litigation, attorney-client privilege issues, “me too” evidence after Sprint, authentication and admissibility of electronically stored information (ESI), the continuing vitality of the “stray remark” doctrine, and “comparator” evidence.
2:45 p.m. Electronic Discovery Problems – Judge Facciola and Messrs. Fitzpatrick
and Morris
The advent of both email and electronic recordkeeping has created discovery problems. How should attorneys obtain the nuggets buried in thoughtless emails and deal with the problems arising from deleted documents? Who should bear the burden of slogging through the electronic files? This session addresses the critical issues, including ESI retention programs, early case assessment, litigation holds, avoidance of the Qualcomm disaster, framing Rule 34 discovery requests in light of the new e-discovery rules, the importance of the Rule 26(f) conference, the role of experts in constructing search protocols, and techniques to manage exploding costs of e-discovery.
Webcast Segment D: RIFs, Restrictive Covenants, and Gender and Age DiscriminationCorporate Counsel Concurrent Sessions
2:00 p.m. Reductions in Force – Mr. Panken
This session examines issues pertinent to reductions in force, including structuring reductions in force, the effect of Meacham on RIF’s, safe harbors, WARN notices, the requirements of the Older Workers Protection Act require for a valid release, and structuring severance packages to avoid liability.
2:45 p.m. Restrictive Covenants – Messrs. Alvarez and Fleming
How far can employers go in preventing former executives from competing, poaching employees, soliciting customers, or using trade secrets? This session addresses the key topics: red-penciling and blue-penciling courts, enforcement mechanisms, and the doctrine of inevitable disclosure.
3:30 p.m. Networking Break
Plenary Session
3:45 p.m. Gender and Harassment Litigation – Ms. Scott and Mr. Chertkof
Sex or gender discrimination continues to be a significant area of litigation. The latest decisions in the area are outlined and discussed with special emphasis on harassment litigation and employer defenses.
4:30 p.m. Age Discrimination Update – Mss. Johnston and Scott
With the increase in unemployment and the aging of the baby boomers, an increase in Age Discrimination cases is likely. This session outlines the latest developments and risks involved in dealing with this aging population.
5:15 p.m. Adjournment for the Day
Saturday, December 6, 2008
8:00 a.m. Continental Breakfast
Webcast Segment E: Ethics, State Law Developments, FMLA, and USERRA
8:30 a.m. Ethical Problems in Employment Litigation – Messrs. Chertkof and Ms. Lyons
Conflicts among employers, corporations, supervisors, insurers, codefendants, individual plaintiffs, class members, and the class are analyzed. Settlement obligations, restrictions on attorneys, and dealing with purloined documents are addressed. Counsel’s new duties under Sarbanes-Oxley are also considered.
9:30 a.m. State Employment Law Update – Mr. Fitzpatrick and Ms. Scott
State and local laws add additional exposure for employment litigation, from common law causes of action to the increasing number of state statutes. This session addresses the more liberal interpretation of “disability” under some state laws, lifestyle discrimination statutes, states’ rejection of Ricks’ approach to statutes of limitations, anonymous blogger litigation, social networking sites, and privacy issues.
10:30 a.m. Networking Break
10:45 a.m. The Family and Medical Leave Act – Mss. Lyons and Scott
This panel review developments with special emphasis on the Department of Labor’s new regulations.
11:30 a.m. USERRA: Veterans Rights to Reemployment and Status – Mr. Wright
The ombudsman for the Reserve Officers Association discusses employers’ obligations in connection with the reemployment rights of returning service people.
12:15 p.m. Adjournment
Total 60-minute hours of instruction: 16.25, including one hour of ethics
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
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