Current Developments in Employment Law: The Obama Years
Why Attend?
Review and analysis of the Lilly Ledbetter Fair Pay Act of 2009 and other new legislation and regulations
Analysis of the employment provisions in the Economic Stimulus Bill, including the new COBRA provisions and the McCaskill whistleblower law that applies to federal contractors, both public and private, receiving stimulus money
Bob Fitzpatrick on the U.S. Supreme Court's 2008-09 term, with commentary by Judges Bruce Black, Judith Herrera, Rebecca Pallmeyer, and Jerry Smith
Frank Morris and Brian East on the ADA Amendments Act
Two segments on electronic discovery, featuring Judge Paul Grimm and Craig Ball
Public sector employment law developments
Immigration employment law update, including status of E-Verify
What You Will Learn
This state-of-the-art annual course of study, comprising more than 18 hours of instruction, reviews and analyzes all the key developments in employment legislation, regulation, and case law.
In Congress, the first law enacted immediately after President Obama’s inauguration was the Lilly Ledbetter Fair Pay Act of 2009, which could revolutionize compensation litigation and lead to a dramatic increase in such cases. Our faculty discusses the implications of this new law at length and reviews other new legislation and regulations, including the executive compensation limitations, the new COBRA rules, and the McCaskill whistleblower law, all of which are contained in the recently enacted federal stimulus legislation, the American Recovery and Reinvestment Act of 2009.
During its 2008-2009 term, the U.S. Supreme Court has addressed a host of employment law issues, including retaliation against witnesses in an internal investigation, collectively bargained arbitration of statutory employment rights, mixed motives and age discrimination, and the legality of an employer’s failure to award service credit to employees on pregnant maternity leave. Planning Chair Robert Fitzpatrick reviews the key rulings and a panel of federal judges provides nuanced analysis of the rulings.
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.
Frank C. Morris, Jr., Epstein Becker & Green, PC, Washington, D.C.
Faculty
Craig D. Ball, Attorney & Technologist, Certified Computer Forensic Examiner, Law Offices of Craig D. Ball, P.C., Austin, Texas
John C. Bienvenu, Rothstein Donatelli Hughes Dahlstrom Schoenburg & Bienvenu LLP, Santa Fe, New Mexico
Bruce D. Black, U.S. District Judge, Santiago E. Campos United States Courthouse, Santa Fe, New Mexico
Brian East, Advocacy, Inc., Austin, Texas
Edward T. Ellis, Montgomery, McCracken, Walker & Rhoads, LLP, Cherry Hill, New Jersey
Paul W. Grimm, Chief U.S. Magistrate Judge, U.S. District Court, District of Maryland, Baltimore
Judith C. Herrera, U.S. District Court, Albuquerque, New Mexico
Ellen C. Kearns, Constangy, Brooks & Smith, LLP, Boston
Maryanne Lyons, Baker Botts LLP, Houston
Rebecca R. Pallmeyer, U.S. District Court, Northern Illinois, Chicago
Peter M. Panken, Epstein Becker & Green, P.C., New York
Michael Schwarz, Santa Fe, New Mexico
Diana P. Scott, Greenberg Traurig LLP, Santa Monica, California
Jerry E. Smith, U.S. Circuit Court, Houston
Edward Still, Birmingham, Alabama
John L. Utz, Utz, Miller, Kuhn & Eickman, LLC, Overland Park, Kansas
ALI-ABA Staff Attorney: Thomas M. Hennessey, Assistant Director, Office of Courses of Study
NETWORKING OPPORTUNITIES Networking is an important reason to attend this and every other ALI-ABA course of study. The registrants for last year’s presentation of this course came from 30 states!
Program Schedule
WEDNESDAY, JULY 22, 2009
4:00 - 6:00 p.m. Early Registration
THURSDAY, JULY 23, 2009
8:00 a.m. Registration and Networking Session
Webcast Segment A
9:00 a.m.Introductory Remarks and Course Overview
9:10 a.m. Welcome-Judge Black
9:15 a.m. U.S. Supreme Court Employment Law Developments - Mr. Fitzpatrick
Protected activity under Title VII after Crawford v. Metropolitan Government of Nashville
The impact of AT&T v. Hulteen
Necessity for direct evidence to get a mixed motive instruction in an ADEA case, Gross v. FBL Financial Services, Inc.
Arbitration and statutory non-discrimination rights after 14 Penn Plaza LLC v. Pyett
The False Claims Act and Graham County Soil & Water Conservation District v. United States
The New Haven firefighters’ case, Ricci v. DeStefano
Section 1983 litigation predicated on non-discrimination statutes afterBarnstable
10:00 a.m. Judges' Commentary on the U.S. Supreme Court Term - Judges Black, Herrera, Pallmeyer, and Smith
10:45 a.m. Networking Break
11:00 a.m. Planning and Managing Reductions in Force and Furloughs in a Deteriorating Economy - Moderator: Ms. Kearns; Messrs. East, Panken and Still
With the economy deteriorating, employment lawyers frequently must work with corporate clients to plan and design reductions in force and furloughs, which will lead undoubtedly to an uptick in litigation and age discrimination complaints. Our panel members discuss best practices for the design and implementation of a reduction in force or furlough and plaintiff counsel discuss how to best position plaintiffs or plaintiff classes for litigation. Topics addressed include:
The WARN Act: Notice requirements; Exceptions to the notice requirements; Penalties for violations
ADEA impact on RIF program design: OWBPA "safe harbors"; Integration of retirement benefits with severance pay
The layoff process: Voluntary layoff programs; Selection of persons for layoff
Evidence indicating that selection of persons was aged-based
Exit incentives: Resignation benefits; Retirement benefits; Severance plan benefits
Release requirements: ADEA releases; Other releases
Outplacement
Taxation of RIF benefits
Effect of reducing the workweek of exempt employees
Collective bargaining issues
12:15 p.m. Lunch Break and Informal Open Microphone Q&A Session with the Judges (not webcast)
Webcast Segment B
1:45 p.m. The “Perfect” Severance Agreement and Release - Messrs. Fitzpatrick and Panken
This panel reviews the major components of a severance agreement and release, including provisions for cooperation, enforcement, confidentiality, non-disparagement, payment plans, restricted stock and stock options, choice of law, and Older Workers Benefit Protection Act (OWBPA) model agreements and optional model clauses are provided and discussed.
2:30 p.m. E-Discovery - Moderator: Mr. Fitzpatrick; Judge Grimm and Mr. Ball
Working from a series of fact patterns provided to the registrants in advance, the moderator poses questions to a panel of experts regarding the appropriate response to electronic discovery questions, and they provide state-of-the-art advice. For those not familiar with the work of Judge Grimm and Craig Ball, this is a segment of our program not to be missed.
3:30 p.m. Networking Break
3:45 p.m. Ethics and Professional Responsibility - Judge Grimm and Ms. Lyons
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
Ethical issues associated with electronically stored information
Collaborative law: The ABA and Colorado approaches
Attorney-client and inadvertent disclosure issues
Email: Preventing a litigation nightmare
4:45 p.m. Wage and Hour Class Actions Brought under the Fair Labor Standards Act - Ms. Kearns
Procedural Issues: Conditional certification; Communication with class members; Representative testimony; Hybrid class actions
Substantive Issues: Preliminary and postliminary time; Independent contractors; Executive exemption
5:30 p.m. Adjournment for the Day; Networking Reception for Registrants and Faculty
FRIDAY, JULY 24, 2009
7:30 a.m. Networking Session
Webcast Segment C
8:00 a.m. Public Sector Employment Law Developments - Messrs. Bienvenu and Schwarz
Overview of application of Section 1983 to employment claims
Developments in procedural and substantive due process claims
Developments in First Amendment claims after Garcetti v. Ceballos
Developments in equal protection claims after Engquist v. Oregon Dept. of Agriculture
8:45 a.m. Executive Compensation Developments - Mr. Utz
Analysis of executive compensation limits in TARP and stimulus bills
Litigation concerning executive compensation disputes/p>
Trends in compensating executives in a difficult economy
Federal government initiatives to constrain executive compensation and their likely effects
Corporate governance issues
Tax gross-up for ADA back pay awards
9:45 a.m. Networking Break
10:00 a.m. Family and Medical Leave Act (FMLA) Developments - Mr. Morris; Commentator: Judge Pallmeyer
Key issues under DOL's new regulations:
Verification and clarification of medical information
Bonus eligibility for employees under the FMLA
FMLA and overtime hours
Paid leave substitution
Retroactive designation
Intermittent leave issues
New FMLA rights for military personnel
Proposed expansion of federal FMLA
New state and local leave laws
11:00 a.m. Ten Nerdy Things You Need To Know about E-Discovery - Mr. Ball
Ever wondered why deleted data isn't gone or heard someone use buzzwords like "hashing" and "deduplication" but had no clue what they were talking about? You're not alone. Electronic discovery is the biggest challenge facing trial lawyers today, and could be your most powerful litigation tool or biggest ticking time bomb. In a lively, plain-spoken presentation, Craig Ball uses animation and audience interaction to unmask ten geeky mysteries of e-discovery that all employment lawyers need to know, including proven techniques for cutting data volumes and cost and improving the performance and efficiency of searches.
12:00 noon New Federal Legislation and the Obama Agencies - Messrs. Fitzpatrick and Morris
New COBRA rules in the Economic Stimulus Bill (The American Recovery and Reinvestment Act of 2009)
McCaskill whistleblower provisions applicable to certain federal contractors as well as state and local governments in the ARRA
The Lilly Ledbetter Fair Pay Act
Genetic discrimination regulations issued under the Genetic Information Nondiscrimination Act (GINA)
Vice President Biden’s task force on families and its priorities
Given the potential for enactment of many significant labor and employment laws (for example, the Paycheck Fairness Bill, the Employee Free Choice Act, Arbitration Fairness Act, Employment Non-Discrimination Act [ENDA], Re-Employment of Skilled and Professional Employees and Construction Tradeworkers [RESPECT] Act, repeal of state “right to work” laws, False Claims Clarification Act [S.458], and the Working Families Flexibility Act) and the very full program, this discussion may continue through the lunch break.
12:30 p.m. Lunch Break
Webcast Segment D
1:45 p.m. Americans With Disabilities Act (ADA) Developments- Messrs. East and Morris; Commentator: Judge Pallmeyer
This segment includes a discussion of the impact of the ADA Amendments Act and the annual tour de force review of recent cases, including failure to accommodate claims, medical-injury claims, and disability-based harassment.
2:45 p.m. Networking Break
3:00 p.m. Recurring Evidence Issues in Employment Cases- Moderator: Judge Grimm; Judges Herrera and Pallmeyer; Messrs. Ellis and Still
What evidence is necessary to obtain a "mixed motive" instruction six years after Desert Palace?
Common hearsay issues in employment cases
Rule 35 examinations: When can a party get an examination and what can a party do with the results?
The probative value of workforce demographic data and statistical evidence
Expert testimony and Daubert motions in employment cases
Developments in the law of after-acquired evidence
Summary judgment after the ADA Amendments Act
The latest in the law of spoliation of evidence and its consequences
4:30 p.m. Emerging Employment Issues under State Law - Mr. Fitzpatrick and Ms. Scott
Latest developments on common law claims arising from the economic downturns and layoffs
Evolving theories for negligence claims
State anti-discrimination laws and out-of-state employees
States' more liberal interpretation of "disability"
State rejection of Delaware State College v. Ricks regarding the statute of limitations
Lifestyle discrimination statutes
State wage and hour claims
Mixed motive analysis in the state courts
After-acquired evidence in state courts
Freedom of speech
Privacy in the workplace
5:30 p.m. Adjournment for the Day
SATURDAY, JULY 25, 2009
7:30 a.m. Networking Session
8:00 a.m. Open Microphone Q&A on the ADA Amendments Act (not webcast) - Messrs. East and Morris; Commentator: Judge Pallmeyer
Because the new statute raises so very many questions, our ADA experts will make themselves available to answer questions regarding the application of the statute as long as time permits. Registrants are encouraged to submit questions in advance; brief questions will be taken from the floor.
Webcast Segment E
8:30 a.m. Non-Competes, Non-Solicitation Clauses, and Computer Fraud and Abuse Act Claims - Messrs. Ellis, Fitzpatrick, and Morris
Choice of forum in non-compete litigation
Federal jurisdiction under the Computer Fraud and Abuse Act
Developments in the “inevitable disclosure” doctrine: Applicability to non-executives
Employers’ rights under common law or the Uniform Trade Secrets Act as distinct from employers’ rights under contracts
Judicial responses to overbroad contract language: Red pencil, blue pencil, and no pencil
Issues and reality in customer solicitation cases
9:30 a.m. Networking Break
9:45 a.m. 409A– Keeping It Simple - Mr. Utz
Simplifying the jargon
Spotting 409A issues
Common traps
Work-around solutions
Consequences of 409A violations
Whose problem is this – the employer’s or employee’s?
10:45 a.m. Discrimination and Harassment in the Workplace: Race, Sex, Age, National Origin, and Military Status - Moderator: Judge Pallmeyer; Ms. Scott and Messrs. Fitzpatrick, Panken, and Still
Latest developments on the definition of adverse employment action
Expanding the "because of sex" defense
Proving (or getting around), and exceptions to, the Faragher defense on summary judgment
Gender identity litigation
Demise of the prima facie case
Does Crawford v. Metropolitan Government of Nashville and Davidson County change internal harassment investigations?
Age disparate impact litigation
Social networking sites: New challenges for the employment lawyer
Increase in disparate impact testing litigation and Gulino v. The Board of Education of the City of New York and the New York State Education Department
Discrimination and retaliation claims under the Uniformed Services Employment and Reemployment Rights Act (USERRA)
11:45 a.m. Immigration Employment Issues Update - Ms. Lyons and Mr. Fitzpatrick
The continuing vitality of Sure-Tan
Remedies for illegal aliens
The new I-9
H-1B visas
The status of E-Verify
12:30 p.m. Adjournment
Total 60-minute hours of instruction: 60-minute hours of instructions: 18.5, 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 the second year I have attended this course, and I remain enthusiastic about its excellence and above standard delivery of current developments in the labor and employment field. The faculty is consistently impressive and the format of the course allows them to shine individually as well as collectively as a whole. Bravo!
Judge Grimm rocks!
Most up to date and current course I have taken. The materials are thorough and complete. The speakers not only know the material but can present. Judge Grimm alone is worth the price of admission.
As usual, the course was terrific. The presenters were knowledgeable, interesting, and up to the minute.
My 7th year – that speaks volumes. Great job.
This is the best course yet.‘Current Developments’ is always my one ‘don’t miss’ course every year.
The faculty is the best ever
I am doing more executive compensation over the last few years. Thank you for including such good coverage of this area of law.
The faculty is very capable and engaged in the topic.
The course illustrates how extensive and complex the field of employment law has become.
The coverage of recent decisions and their impact on practice considerations is useful and insightful.
It strikes a balance between the analytical evaluation of the law’s substance and its practical applications in actual matters of contest and disputes involving real issues and real people — the essence of a law practice.
While I am usually up to date with the current case law, I find it most beneficial to hear the judges’ comments and opinions and federal agencies’ insights.
The Friday afternoon panels with the judges were outstanding!!
Overall — speakers were top quality. Material presented very effectively and the written materials were absolutely fabulous.
This is a course densely packed with relevant information ranging over the gamut of employment law and related issues, such as electronic discovery. The speakers were tremendously knowledgeable, and the written materials will be a great resource.
This course is outstandingly excellent and I am privileged to benefit from not only the course presentations and materials but also the friendliness and professionalism of the faculty and staff.
I have attended this course in the past and it is always an excellent program. Bar none, it’s the best employment update program available. I look forward to next year!
Great content.
Bob, great great program. All others pale in comparison so I stopped going to the others years ago. I return to Santa Fe every July for this.
Always a great program. Topics very timely!
I have come to this program every other year for several years, and it only gets better.
I really enjoy ALI-ABA. Great job!!
Times
9:00 a.m. Mountain
10:00 a.m. Central
11:00 a.m. Eastern
7:00 a.m. Pacific and Arizona
6:00 a.m. Alaska
4:00 a.m. Hawaii
