Advanced Employment Law and Litigation-2013 - CLE, Continuing Legal Education - ALI CLE.org
Advanced Employment Law and Litigation
Featuring a Mock Jury Trial of a Title VII Case!
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Available Online: | Coursebook

Why You Should Attend

Staying abreast of all the changes in employment law is a challenge for even the most sophisticated practitioner. However, this course makes it easy. With a lively mix of individual and panel presentations as well as breakout sessions, this advanced, accredited CLE program updates you on all the significant developments and helps you polish your litigation skills. Advanced Employment Law and Litigation provides:

 

Presentations on the hottest topics and thorniest issues, including Retaliation Claims, Class Actions after Wal-Mart, Calculation of Damages, Arbitration Developments, and Whistleblowing Litigation

A review of EEOC enforcement of The Americans With Disabilities Act

Updates on age discrimination litigation and Title VII claims of sexual, religious and racial harassment

A review of U.S. Supreme Court employment decisions by Bob Fitzpatrick

Analysis of emerging issues and trends in Fair Labor Standards Act and ERISA litigation

Breakout sessions for litigators on Evidentiary Issues and Discovery Problems

Breakout sessions for corporate counsel on Protecting Assets from Departing Employees and the NLRB and Non-Union Employers

Special presentations on Ethical Problems in Employment Litigation, State Employment Law Developments, and Veterans Rights to Reemployment

Networking opportunities each day, including a Thursday afternoon reception

 

By popular demand, this advanced course once again features a mock employment case presented to a jury by skilled trial attorneys. The issues presented in the case are sizzling hot, as the case includes both a Title VII discrimination claim and a retaliation claim. After a condensed presentation of the case, 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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What You Will Learn

This course outlines the key trends and developments that can affect your employment cases, including:

 

Legislation and Regulation. Federal agency officials appointed by the President continue to vigorously enforce and implement major changes in the enforcement of federal employment related laws (at the EEOC, Department of Labor, OFCCP, and the NLRB). The Department of Labor promises increased enforcement of Wage and Hour laws, the OFCCP is probing equal pay violations, the EEOC is filing many new cases involving disability discrimination, and the NLRB is offering protection for employees’ use of social media to criticize their employers and restrictions on at-will employment pronouncements by employers.

E-Discovery. The electronic era, where electronic communications are increasingly done by 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 but not privileged e-mails to comply with broad discovery demands.

Evidentiary Issues. Employment litigation generates is own peculiar evidentiary problems, including the relevance of testimony by nonaffected peers and discovery and admissibility of social media evidence.

Social Media. Employee use of social media both in the workplace and in non-work venues has created potential liability problems for employers. Issues arise about employer invasion of privacy and employees' rights to criticize their employers on Facebook, Twitter, and other social media.

Age, Race, and Sexual Discrimination Litigation. There have been numerous Supreme Court cases affecting employment and discrimination law, plus a torrent of state court rulings in state anti-discrimination cases.

Retaliation Litigation. In an economy still recovering from a recession, the courts are experiencing a tsunami of retaliation litigation by terminated employees.

Class Action Litigation. Class actions alleging violations of wage and hour laws continue to flood the courts.

Whistleblowing Litigation. With the passage of the Wall Street Reform and Consumer Protection Act, popularly known as the Dodd-Frank Act, and the Commodities Futures Trading Commission Whistleblower Incentive Program, additional laws protect employees from retaliation and indeed promote whistleblowing by offering cash incentives for the first to blow the whistle, as well as protection from retaliation.

 

This annual Advanced Course of Study, comprising 16 hours of instruction, examines and analyzes these trends and developments.

 

Other highlights of the course include the Mock Jury Trial Demonstration on Friday morning and concurrent sessions on Friday afternoon. Registrants have raved about past jury demonstrations, especially the part that allows them to view the jury deliberations. Litigators will love the concurrent afternoon sessions on the key evidentiary issues and electronic discovery issues that routinely confront litigators. Corporate counsel and defense counsel will be attracted to the concurrent sessions that address the protection of valuable assets from departing employees and the NLRB’s new rules regarding employment practices of non-union employers.

 

Updates on state employment-related cases and on ERISA litigation are reprised. A separate segment on damages in employment litigation includes sample jury instructions and calculations of front pay, and a full hour is set aside for discussion of ethical problems in employment litigation.

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Who Should Attend

Lawyers and other legal professionals who operate in the areas of employment law should attend this accredited continuing legal education program from ALI CLE.

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Planning Chairs

Peter M. Panken, Epstein Becker & Green, P.C., New York (also on faculty)

Kay H. Hodge, Stoneman, Chandler & Miller LLP, Boston (also on faculty)

Debra S. Katz, Katz, Marshall & Banks, LLP, Washington, D.C. (also on faculty)

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Faculty

Fred W. Alvarez, Wilson Sonsini Goodrich & Rosati, Palo Alto, California

Lisa J. Banks, Katz, Marshall & Banks, Washington, D.C.

Lynne Bernabei, Bernabei & Wachtell, PLLC, Washington, D.C.

Stephen Z. Chertkof, Heller, Huron, Chertkof & Salzman, PLLC, Washington, D.C.

Frank Cummings, Washington, D.C. Lecturer, University of Virginia School of Law; (Charlottesville); Adjunct Professor of Law, John Marshall Law School (Chicago)

Christopher Erath, Ph.D., BLDS LLC, Natick, Massachusetts

Edward T. Ellis, Littler Mendelson, P.C., Philadelphia

John M. Facciola, U.S. Magistrate Judge, U.S. District Court, District of Columbia, Washington, D.C.

Robert B. Fitzpatrick, Robert B. Fitzpatrick, PLLC, Washington, D.C.

Joseph Z. Fleming, Greenberg Traurig P.A., Miami

Christine Nicolaides Kearns, Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C.

Carolyn S. Koch, Principal, Jury Solutions, LLC, Fairfax, Virginia

Peggy R. Mastroianni, Legal Counsel, U.S. Equal Employment Opportunity Commission, Washington, D.C.

Frank C. Morris, Jr., Epstein Becker & Green, PC, Washington, D.C.

Joseph M. Sellers, Cohen Milstein Sellers & Toll PLLC, Washington, D.C.

Richard T. Seymour, Law Office of Richard T. Seymour, P.L.L.C., Washington, D.C.

Joyce E. Taber, Morgan Lewis & Bockius LLP, Washington, D.C.

Jennifer M. Trulock, Baker Botts LLP, Dallas

Larry L. Turner, Morgan Lewis & Bockius, LLP, Philadelphia

Kenneth M. Willner, Paul Hastings LLP, Washington, D.C.

Samuel F. Wright, Captain JAGC, USN (Ret.); Director, Service Members Law Center, Reserve Officers Association, Washington, D.C.

ALI CLE Staff: Thomas M. Hennessey, Program Attorney, Content Production 

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Program Schedule

THURSDAY, MARCH 14, 2013

8:00 a.m. Registration and Continental Breakfast

8:55 a.m. Welcome and Announcements - ALI CLE Staff
Video Webcast Segment A

9:00 a.m. Introductory Remarks

9:05 a.m. Retaliation: The Most Ubiquitous Discrimination Cause of Action - Messrs. Panken and Chertkof
In addition to the exponential rise in retaliation claims in employment cases, the Supreme Court has constantly eased the burden on plaintiffs. In several cases, the Court has expanded the definition of adverse employment action, implied a retaliation cause of action despite the absence of a specific retaliation prohibition in two separate statutes, and expanded protection to those associated with a complaining employee. The latest case law in this ever evolving field is reviewed.

9:45 a.m. Class Actions after Walmart - Messrs. Sellers and Willner
The biggest threat to Employers is the class action. In the Walmart case, the Supreme Court rejected a nationwide class action based upon statistical analysis without a nexus to a uniform policy alleged to have discriminatory effect or an alleged culpable individual whose actions affected members of the class. This session outlines the latest developments and clarifies the remaining viable class actions, not only in discrimination lawsuits but under state and federal wage and hour laws as well.

10:30 a.m. Networking and Refreshment Break

10:45 a.m. Americans with Disabilities Act Update - Ms. Mastroianni and Mr. Morris
With the passage of the Americans with Disabilities Act Amendments Act ("ADAAA"), the focus of litigation has shifted from who has a disability to whether there is discrimination and whether a "reasonable accommodation" is available which would permit a person with a disability to perform the essential functions of the job. A senior EEOC official and a defense practitioner bring us up-to-date on the most recent court rulings applying the ADAAA and the EEOC's final regulations, including claims under the broadened "regarded as" theory, the interactive process, and the reasonable accommodation requirement.

11:45 a.m. Age Discrimination: The New Frontier for Aging Boomers - Ms. Bernabei and Mr. Fleming
As the huge baby boom bubble ages and the lingering era of slow growth continues, there has been a large increase in age discrimination lawsuits. In their defense, employers have been asserting that their actions were based on reasonable factors other than age. The EEOC has issued regulations which seem to emasculate this defense, but it is not clear that the courts will follow suit. The latest developments regarding this defense and other defenses are discussed.

12:30 p.m. Lunch Break
Video Webcast Segment B

2:00 p.m. Title VII Update, Including Developments in the Area of Sexual, Religious and Racial Harassment - Mss. Katz and Taber 
The EEOC and plaintiffs' attorneys have been expanding their claims in discrimination litigation. This session outlines the latest developments, identifies the latest theories, and reports on the success and setbacks for the EEOC and parties in the Courts.

2:45 p.m. U.S. Supreme Court Highlights - Mr. Fitzpatrick
This annual review focuses on the holdings and implications of the Court's decisions from the 2011-2012 term, including:
   •  Christopher v. Smith Klein Beecham Corp. (overtime pay for sales people);
   •  Coleman v. Maryland Court of Appeals (constitutionality under state sovereign immunity of FMLA self-care provision);
   •  First American Financial Corp. v. Edwards (a non-employment standing case);
   •  Hosanna-Tabor Evangelical Lutheran Church v. EEOC (a ministerial exception case);
   •  Knox v. Service Employees Int'l Union, Local 1000 (mootness and constitutionality of special union assessment);
   •  Minneci v. Pollard (Bivens complaint);
   •  United States v. Jones (GPS tracking and privacy rights);
   •  Magner v. Gallagher (non-employment disparate impact case dismissed as moot);
   •  FAA v. Cooper (Privacy Act damages); and
   •  The arbitration decisions, including CompuCredit Corp. v. Greenwood, KPMG v. Cocchi, and Marmet Health Center, Inc. v. Brown

3:30 p.m. Networking and Refreshment 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. Panken
Federal and State wage and hour litigation continues to increase dramatically with plaintiffs pursuing individual, class, and collective actions. This session highlights the biggest issues for plaintiffs and defendants, including independent contractor issues, preliminary and postliminary activities, misclassification issues, joint employment, and hybrid-collective class actions under state and federal law.

4:45 p.m. ERISA Litigation: What's New and Important - Mr. Cummings
Recent development in ERISA litigation are presented with emphasis on fiduciary litigation, "stock drop" and similar 401(k) cases, the "presumption of prudence," and bankruptcy-related matters. Recent Department of Labor amicus positions are also considered.

5:30 p.m. Adjournment for the Day; Networking Reception for Faculty and Registrants

FRIDAY, MARCH 15, 2013

8:30 a.m. Networking Session and Continental Breakfast
Video Webcast Segment C

9:00 a.m. Mock Jury Trial Demonstration of a Title VII Case - Judge Facciola, Mr. Chertkof, and Mss. Kearns and Koch
Registrants observe the arguments and jury deliberations in an employment case involving both a Title VII discrimination claim and a retaliation claim. Then a judge, a jury expert, and litigators offer practical advice on strategic trial practice issues.

10:15 a.m. Networking and Refreshment Break

10:30 a.m. Jury Demonstration (continued)

12:30 p.m. Lunch Break

2:00 p.m. - 3:30 p.m. Concurrent Sessions for Corporate Counsel and Litigators
Corporate Counsel Concurrent Sessions
(not webcast or recorded)

2:00 p.m. Protecting Valuable Assets from Departing Employees - Messrs. Alvarez and Fitzpatrick
The latest techniques for protecting valuable employer assets along with practical ways to avoid judicial limitations protecting the departing employee's ability to obtain subsequent employment are outlined. (not webcast or recorded)

2:45 p.m. The NLRB and Employment Practices of Non-Union Employers - Ms. Hodge and Mr. Panken
The National Labor Relations Board has been issuing new rules concerning employment practices in non-union workplaces, including rules that limit the scope of employment-at-will provisions in employee manuals and that prohibit limitations on use of social media to denigrate employers. This panel addresses the risks and safe harbors. (not webcast or recorded)

                    Video Webcast Segment D

                    Litigation Concurrent Sessions

2:00 p.m. Current Evidentiary Problems in Employment Litigation - Judge Facciola and Messrs. Seymour and Willner
Two advocates and a leading judicial thinker on evidentiary matters discuss current topics, including relevance of testimony by nonaffected peers, discovery and admissibility of social media evidence, hearsay evidence, qualification of expert witnesses, in limine motions, and similar problems arising in employment litigation.

2:45 p.m. Electronic Discovery Problems - Judge Facciola, Ms. Bernabei, and Mr. Morris
Issues regarding the discovery and admissibility of email, social media, and other electronically stored information (ESI) continue to dominate employment law practice. A federal magistrate judge and two practitioners address preservation issues, how to properly frame discovery, staged searches of ESI, proportionality, and sanctions. The topics to be discussed include 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.

3:30 p.m. Networking and Refreshment Break

3:45 p.m. Damages Update - Messrs. Erath and Morris
This panel analyzes a study of future lost earnings, the latest developments in potential damage theories under the various anti- discrimination, retaliation, and whistleblowing statutes, and how to deal with front pay, compensatory damages, attorney's fees, and punitive damages. Our experts also discuss jury instructions and they review samples of suggested instructions.

4:30 p.m. Arbitration Update - Mr. Alvarez and Ms. Banks
Two practitioners discuss the effect of the latest Court decisions on arbitrability of employment related disputes under the Federal Arbitration Act and state laws, the scope of appeal from arguably wrong decisions, the attack on agreements to arbitrate class cases and employment disputes, and the enforceability of pre-dispute arbitration agreements.

5:15 p.m. Adjournment for the Day

SATURDAY, MARCH 16, 2013

8:00 a.m. Networking and Continental Breakfast
Video Webcast Segment E

8:30 a.m. Ethical Problems in Employment Litigation - Mss. Katz and Trulock
The effects of technology on ethics issues in employment litigation are featured as well as conflicts among employers, corporations, supervisors, insurers, codefendants, individual plaintiffs, class members, and the class. Settlement obligations, restrictions on attorneys, and dealing with purloined documents are addressed, and counsels' new duties under Sarbanes-Oxley are also considered.

9:30 a.m. Whistleblowing Litigation - Mr. Ellis and Ms. Katz
A series of federal and state laws offer wide-ranging protection for whistleblowers in a host of different industries. Our panelists discuss important legal developments in the area of Sarbanes Oxley Act ("SOX"), which has greatly expanded the scope and protection afforded to whistleblowers, and other statutory whistleblower claims administered by the Department of Labor. The panelists also discuss the Dodd-Frank Act, which created broad new whistleblower protections and incentive programs to reward and protect individuals who report violations of the laws that govern a wide range of activities in the financial and commodities trading sectors of the economy. Legal developments under the False Claims Act whistleblower protection provision are also reviewed.

10:15 a.m. Networking and Refreshment Break

10:30 a.m. State Employment Law Developments Update - Mr. Turner
This annual review focuses on significant non-compete cases, the state courts' approach to causation in state anti-discrimination cases, their approach to the plausibility pleading requirement of Twombly/Iqbal, the proliferation of new anti-discrimination and labor standards laws at the state level, e.g., breastfeeding rights, domestic worker rights, misclassification laws, and the "ban the box" movement regarding criminal history checks, as well as significant defamation, implied contract, and wrongful termination decisions.

11:15 a.m. USERRA: Veterans Rights to Reemployment and Status - Captain Wright
The ombudsman for the Reserve Officers Association discusses employers' obligations in connection with the reemployment of returning service people.

12:00 p.m. Adjournment

Total 60-minute hours of instruction: 16 hours, 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

Click Here for MCLE Credit Information

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Here's what registrants have said about this course:
“The jury demonstration was top-notch. Not only did it give insight, but it facilitated great discussion.”
“I have attended these courses many times over the last 20+ years. I always feel a sense of rejuvenation after attending. Top notch leaders in their practice areas who give the latest developments in the employment and labor field. The course materials alone are worth the tuition! Recommend regular attendance to stay abreast of current law. Well balanced between plaintiff and defense sides.” — Ricklin Brown, Bailey & Glasser
“From the outset of this course, I was inspired with new, practically applicable ideas for my existing cases, which I am confident will enhance the value of several of my cases. I will most certainly attend again.” — Anthony Allen, Graham, Allen & Brown PL
“Mock trial was a great presentation—very insightful. Use of employee/employer point/counterpoint is effective on most issues. Materials are excellent and in-depth, will be a great resource going forward.”
“This course provided me with a great understanding of various topics that I see in my current practice. I feel more confident handling employment law issues that develop in my work environment than I did leaving other courses that I have attended in the past.”
"A wonderful and very diverse set of topics in Employment Law and Litigation, which as its crown jewel and what was worth the total cost of the course was the 3 ½ hour ‘Mock Jury Demonstration.’ This jury demonstration served as an excellent barometer of all my past learning and experiences, as well as being a rare opportunity to see what ‘real people do, in real and emotional cases!"
” The course was a comprehensive yet wide-ranging survey of recent employment law developments. The information presented was highly detailed and very informative. I liked the format of presenting plaintiff and defendant perspectives during many presentations. The judge (Facciola) was an added bonus. The course was well organized administratively too. Very helpful staff, always friendly.
“I was very pleased that so many of the presenters were willing to answer questions and give opinions after the programs. I came with several specific issues that my jurisdiction (a city) is dealing with. Many of these issues I had researched and could not come up with a good answer. I was so impressed with the approachability and willingness to give thoughtful responses to my questions by the speakers.”
“I found the evidence segment extremely informative and I wish it was longer. This was a great panel and I could have listened to them discuss these issues all day. It is hard to find evidence CLE’s and most lawyers could use some direction on this issue.”
"I am in awe of the thoroughness and quality of the material assembled for this seminar. It is excellent. This seminar is phenomenal. "

 

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Times

All times are Eastern time

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