Advanced Employment Law and Litigation
A New Wind from Washington: New Legislation, New Regulation,
and New Enforcement
Why Attend?
The new Administration in Washington — including newly appointed members of the Equal Employment Opportunity Commission and Department of Labor — has changed the political climate of the country with respect to Federal regulation of the employment relationship. Learn about the most significant recent changes, including:
The ADA has already been amended to broaden the number of people it protects, and the EEOC has just amended its regulations implementing these changes.
The Lilly Ledbetter Act has opened court doors to claims of gender and other discrimination based on decisions that occurred long before any applicable statute of limitations. The courts have just begun to explore the scope of that law.
The Department of Labor has added large numbers of additional staff to enforce the Fair Labor Standards Act, and private plaintiffs’ attorneys are busily bringing class and collective actions against the largest employers, who are settling the cases for millions of dollars, plus paying plaintiffs’ legal fees.
While the new wave has not yet reached a slim conservative majority of the U.S. Supreme Court, Congressional committees are reexamining many pro-employer decisions . Indeed, the Twombly-Iqbal line of cases, which permit dismissal of implausible complaints supported only by conclusory pleadings, could well be overturned in Congress. In addition, there are a plethora of new employment regulation bills in the Congressional hopper, many of which may be enacted.
The electronic era — when internal communications consist of hastily drafted, routinely deleted, but potentially troublesome e-mail — 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 e-mails and defendants’ obligations to troll for relevant e-mails to comply with broad discovery demands.
In an economy still beset by layoffs and bankruptcies, the courts are experiencing a tsunami of retaliation litigation, a flood of class wage and hour suits, and the threat of expensive litigation where reductions in force are common in the recession.
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.
The course features concurrent sessions for corporate counsel and litigators. Corporate counsel explore potential pitfalls when structuring reductions in force, then learn how to counsel clients on limiting post-employment restrictions on competition, poaching of employees, and protection of trade secrets. Litigators benefit from the expertise of a panel of judges and pracittioners who discuss current evidentiary and electronic discovery problems.
Updates on state employment-related cases and cases involving discrimination on the basis of sex, age, disability, ERISA, and retaliation are included, and a full hour is set aside for discussion of ethical problems in employment litigation.
Special Offer for on-site course attendees: Attend in D.C. and receive the ALI-ABA texts Defusing Workplace Time-Bombs with 2009 Supplement and the Supreme Court Update Supplement for FREE! A $158 value. Books will be distributed with registration packets at the course site.
What You Will Learn
Employment law has changed radically in the past year. If you’re an employment lawyer – either an old hand or a neophyte – you need this course to stay abreast of these changes and maintain your expertise. In just two and one-half days, this course updates you on all the key issues, with 18 presentations on the hottest topics in employment law, including:
Americans With Disabilities Act (ADA) Update
Retaliation, Whistleblower Protection, and Sarbanes-Oxley Developments
U.S. Supreme Court Highlights
Legislative Update
Trends in Fair Labor Standards Act Litigation
Age Discrimination Update
Evidentiary Problems in Employment Litigation
Electronic Discovery Problems
Reductions in Force
Restrictive Covenants
Gender and Harassment Litigation
Ethical Problems in Employment Litigation (one hour)
The Family and Medical Leave Act
Damages in Employment Cases
Planning Chairs
Peter M. Panken, Epstein Becker & Green, P.C., New York
Robert B. Fitzpatrick, Robert B. Fitzpatrick, PLLC, Washington, D. C.
Faculty
Frank Cummings, Washington, D.C.; Adjunct Professor of Law, New York University School of Law; Lecturer, University of Virginia School of Law
John M. Facciola, U.S. Magistrate Judge, District of Columbia, Washington, D.C.
Joseph Z. Fleming, Greenberg Traurig LLP, Miami
Daniel R. Gallipeau, Ph.D., President, Dispute Dynamics, Inc., Torrance, California
Paul W. Grimm, Chief U.S. Magistrate Judge, District of Maryland, Baltimore
Kay H. Hodge, Stoneman, Chandler & Miller LLP, Boston
David J. Marshall, Katz, Marshall & Banks, LLP, Washington, D.C.
Susan Martyn, Stoepler Professor of Law and Values, University of Toledo College of Law, Toledo, Ohio
Peggy R. Mastroianni, Associate Legal Counsel, U.S. Equal Employment Opportunity Commission, Washington, D. C.
Lynn McLain, Professor of Law, University of Baltimore School of Law, Baltimore
Frank C. Morris, Jr., Epstein Becker & Green, PC, Washington, D.C.
Diana P. Scott, Greenberg Traurig LLP, Santa Monica, California
Richard T. Seymour, Law Office of Richard T. Seymour, P.L.L.C.,Washington, D.C.
Jennifer M. Trulock, Baker Botts LLP, Dallas
Marley Weiss, Professor of Law, University of Maryland School of Law, Baltimore
ALI-ABA Staff Attorney: Thomas M. Hennessey, Assistant Director, Office of Courses of Study
Register Now!
Washington, DC: $1449 Add to Cart or Webcast: $1049 Add to Cart
Full-time employees of federal, state and local governments and government agencies
Live Course: $724.50 Add to Cart
Live Webcast: $524.50 Add to Cart
Lawyers practicing 5 years or less
Live Course: $724.50 Add to Cart
Live Webcast: $524.50 Add to Cart
Program Schedule
THURSDAY, FEBRUARY 18, 2010
8:00 a.m. Registration and Continental Breakfast
8:55 a.m. Welcome by ALI-ABA Staff
Webcast Segment A: ADA Update; Retaliation, Whistleblower Protection, and Sarbanes-Oxley Developments; U.S. Supreme Court Highlights
9:00 a.m. Introductory Remarks
9:05 a.m. Americans With Disabilities Act (ADA) Update - Ms. Mastroianni and Mr. Morris
The ADA Amendments Act has multiplied the potential plaintiffs covered by the Act and has shifted the focus of enforcement to implementing reasonable accommodations to permit people with disabilities to become and remain employed. The EEOC has issued regulations interpreting these new laws. This panel analyzes the Act and the regulations.
10:15 a.m. Networking Break
10:30 a.m. Retaliation, Whistleblower Protection, and Sarbanes - Oxley Developments - Messrs. Marshall and Panken
In addition to the exponential rise in retaliation cases as an add-on or even stand-alone cause of action in employment cases, the U.S. Supreme Court has eased the threshold for bringing a case to a jury with rulings that expand the definition of adverse employment action, imply a retaliation cause of action, and include internal protests as protected activity.
11:30 a.m. U.S. Supreme Court Highlights - Mr. Fitzpatrick
Robert Fitzpatrick's annual tour de force reviews last term's major employment cases, including Ricci, Gross, Hulteen, Pyett, and Barnstable School District, as well as the dramatic impact of Iqbal. In addition, he previews this term, including Perdue and Lewis.
12:30 p.m. Lunch Break
Webcast Segment B: Legislative Update; FLSA Trends; ERISA Litigation; AgeDiscrimination Update
2:00 p.m. Legislative Update - Messrs. Fleming and Fitzpatrick
The Lilly Ledbetter Act has already been signed into law. EFCA, ENDA, FPA, FOREWARN, POWADA, SAFE, the Family Fairness Act, the FMLA Inclusion Act, the Working Family Flexibility Act, Arbitration Fairness Act, Civil Rights Tax Relief Act, Protecting Older Workers Against Discrimination Act, proposed whistleblower legislation, and the Protection of American Workers Act have already been introduced and other new protections for employees will likely appear on the Congressional Agenda. The implications of these new and proposed laws are discussed by the panel.
2:45 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. Panken
Federal and state wage and hour litigation continues to increase dramatically with plaintiffs pursuing individual, class, and collective actions. Among the topics reviewed by this panel are pre-work activities at home, donning and doffing cases, commuting time, misclassification issues, furloughing exempt employees, joint employer liability, and hybrid- collective class actions. The panels also addresses the latest developments and trends in FLSA litigation, including innovative attacks on the classification of white collar employees and the use of Rule 68 offers to blunt collective actions.
3:30 p.m. Networking Break
3:45 p.m. ERISA Litigation, Including Bankruptcy Developments - Professor Cummings
Recent developments in ERISA litigation are presented, with emphasis on fiduciary litigation, "equitable" remedies, preemption (particularly "pay" or "play" laws), "stock drop" 401(k) and ESOP controversies, plan freezes and terminations, bankruptcy-related benefits, and labor litigation.
4:45 p.m. Age Discrimination Update - Ms. Hodge and Mr. Marshall
The increase in unemployment and the aging of the baby boomers has generated an increase in Age Discrimination cases. This session outlines the latest developments and risks involved in dealing with this aging population.
5:30 p.m. Adjournment for the Day; Networking Reception for Faculty and Registrants
FRIDAY, FEBRUARY 19, 2010
8:30 a.m. Continental Breakfast and Networking Session
Webcast Segment C: Trial and Jury Deliberation Demonstration
9:00 a.m. Mock Jury Trial Demonstration - Judge Facciola, Dr. Gallipeau, Mr. Seymour, and Ms. Trulock
Registrants observe the argument and a jury deliberation in an employment discrimination, harassment, and retaliation case. Then a judge, a jury expert, and litigators offer practical advice on strategic trial practice issues.
10:15 a.m. Networking 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 recorded or webcast)
2:00 p.m. Current Evidentiary Problems in Employment Litigation - Judges Facciola and Grimm, Professor McLain, and Mr. Fitzpatrick
This panel dissects the thorniest evidentiary problems in employments cases, including evidence of possible discrimination against other employees, evidence of similar acts in the workplace, limitations on the probative value of temporally remote evidence, hearsay issues in employment cases, the shield rule 412 in sex harassment cases, responsibility of the decision maker for a subordinate, admissibility of internal investigations, and rule 35 medical exams.
2:45 p.m. Electronic Discovery Problems - Judges Facciola and Grimm and Messrs. Fitzpatrick and Morris
The use of e-mail and electronic recordkeeping has created new issues and problems in employment litigation, particularly in discovery motions. This panel addresses the issues attorneys are most likely to confront in employment litigation: How to defend and obtain the nuggets buried in thoughtless e-mails; how to deal with the problems arising from deleted documents; who should bear the burden of slogging through the electronic files. The panel also addresses a number of related issues: ESI retention programs, early case assessment, litigation holds, cloud computing, access to metadata, 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; Gender and Harassment Litigation; Summary Judgment and Dismissal Motions
CORPORATE COUNSEL CONCURRENT SESSIONS
2:00 p.m. Structuring Reductions in Force: How To Choose Without Losing - Mr. Panken
What is the effect of Meachem on RIFs? What are the safe harbors? What WARN notice is required? What does the Older Workers Protection Act require for a valid release? How should severance packages be structured to avoid liability?
2:45 p.m. Restrictive Covenants - Mr. Fleming
This panel examines the contours of acceptable restrictive covenants and addresses the key issues: How far can employers go in preventing former executives from competing, poaching employees, soliciting customers, or using trade secrets? What enforcement mechanisms are available? When does the doctrine of inevitable disclosure apply?
3:30 p.m. Networking Break
PLENARY SESSION
3:45 p.m. Gender and Harassment Litigation - Ms. Scott and Professor Weiss
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, including the Faragher-Ellereth defense.
4:30 p.m. Summary Judgment and 12(b) Motions To Dismiss - Messrs. Fitzpatrick and Fleming
Iqbal and Twombly have given district judges tools to dismiss frivolous law suits which are implausible or supported only by conclusory allegations barely limning the elements of the cause of action. Does this mean a change in notice pleading requirements? The cases are just beginning to hit the lower courts, but judges seem to be viewing implausible cases with a more jaundiced eye.
5:15 p.m. Adjournment for the Day
SATURDAY, FEBRUARY 20, 2010
8:00 a.m. Continental Breakfast and Networking Session
Webcast Segment E: Ethics; State Law Developments; FMLA; and Damages
8:30 a.m. Ethical Problems in Employment Litigation - Professor Martyn and Ms. Trulock
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 also are considered.
9:30 a.m. State Employment Law Update - Ms. Scott and Mr. Fitzpatrick
State and local laws add additional exposure for employment litigation, from common law causes of action to the increasing number of state statutes. Among the topics discussed are recent defamation decisions, issues arising in the workplace as a result of employees' use of social network sites, the faithless servant doctrine, Schuler and other cases involving local human rights or anti-discrimination statutes, attempts to incorporate the federal ADA Amendments Act into state disability discrimination statutes, review of "cause" terminations in written contracts, counterclaims arising out of alleged ESI "theft", and attempts to claw back allegedly excessive bonuses.
10:30 a.m. Networking Break
10:45 a.m. The Family and Medical Leave Act - Mr. Morris and Ms. Trulock
FMLA developments, with special emphasis on the Department of Labor's new regulations, are reviewed.
11:30 a.m. Damages in Employment Cases - Mr. Fitzpatrick
Damage issues can be daunting, but not for this panel, which analyzes some of the toughest damage problems, including proof and defense against emotional distress, loss of enjoyment of life damages, punitive damage claims, damages for medical records discovery and mental exams, proof of future bonuses, valuing stock options and similar incentives, grossing up for tax impact, and calculating how many years a plaintiff can run front pay.
12:15 p.m. Adjournment
Total 60-minute hours of instruction: 16.25, including one hour of ethics
Suggested Prerequisite: Limited experience in practice in subject matter or completion of Basic CLE/CPE Course in subject matter
Educational Objective: Maintenance of professional competence as a practitioner; provision of information on recent developments; development of proficiency in performance of intricate and complex tasks within a narrow area
Level of Instruction: Advanced
Here's what registrants have said about this course:
I greatly enjoyed observing the jury deliberation, including the presenters’ after-action review.
The jury demonstration was excellent!
The observation of the jury deliberation was – as it usually is – particularly valuable.
Once again, an excellent seminar with lots of helpful information. This is the second time I’ve attended, and I will be back.
This is an excellent course for employment lawyers. It provides the most current information by actual judges and practitioners in the field. The highlight, which makes the course exceptional, is the mock trial. Getting a chance to peek into jury deliberation is an invaluable learning experience. — E. Ned Sloan, course registrant
The course was excellent. The materials were excellent and the presenters/presentations were extremely beneficial, including the jury presentation, which was terrific.
I am in awe of the thoroughness and quality of the material assembled for this seminar. It is excellent. This seminar is phenomenal.
This course pretty much has it all – great location, fabulous facilities, wide variety of important topics presented by a really top notch faculty! I’m already looking forward to next year’s conference. — Kathleen K. Lucchesi, course registrant
Times
Eastern Standard Time
9:00 a.m. Eastern
8:00 a.m. Central
7:00 a.m. Mountain
6:00 a.m Pacific
5:00 a.m. Alaska
4:00 a.m. Hawaii
