Why You Should Attend
Stay competitive and vastly enhance your practice by learning the latest trends in labor and employment law. Whether you represent plaintiffs or defendants, whether in the public or private arena, you will benefit from this unmatched comprehensive program that is renowned for its engaging presentations by national experts.
Register today for this annual advanced course, comprising more than 18 hours of instruction, including one hour of ethics, in which federal judges (including Rebecca Pallmeyer, Paul Grimm, Matthew Kennelly, and Jerry Smith), experienced practitioners (including Bob Fitzpatrick, Frank Morris, and Susan Ritz), forensic expert Craig Ball, and United States EEOC legal counsel Peggy Mastroianni dissect all the key developments in labor and employment legislation, regulation, and case law.
The in-depth and extensive course materials include analyses, checklists, and forms that not only flesh out the oral presentations, but also provide a desk reference of exceptional independent value. Many registrants say that the materials alone are worth the price of admission.
Due to the collaborative spirit of the program, attendees profit from ample opportunities to converse with faculty and fellow practitioners during the sessions, at the networking reception, and on the highly-anticipated tour of the historic Santiago E. Campos U.S. Courthouse in Santa Fe with Judge Bruce Black.
What You Will Learn
Our expert faculty of federal judges, government representatives, and private practitioners examine the cutting-edge topics, including:
Demystification of the Affordable Care Act
EEOC’s own take on its new Strategic Enforcement Plan
Trends in ADA, FMLA, and FLSA litigation
Analysis of the most important Supreme Court decisions
Commentary by trial and appellate judges on he U.S. Supreme Court's 2012-13 term
Discussion of (and drafting tips for) non-compete, trade secret, and non-solicitation agreements
Hot topics in e-discovery and social media
Post-Dukes class and collective action developments
Examination of current discovery and evidentiary issues
Emerging issues in ethics and professional responsibility
NLRB update, including the validity of recess appointments for non-union employers
Who Should Attend
This accredited continuing legal education from ALI CLE will benefit labor law and employment law attorneys who wish to stay competitive with the latest trends in these areas of the law.
Judicial Planning Chair (also on faculty)
The Honorable Rebecca R. Pallmeyer, Judge, U.S. District Court, Chicago
Practitioner Planning Chairs (also on faculty)
Robert B. Fitzpatrick, Robert B. Fitzpatrick, PLLC, Washington, DC
Frank C. Morris, Jr., Epstein Becker & Green, P.C., Washington, DC
The Honorable Bruce D. Black, Senior Judge, U.S. District Court, Santa Fe, New Mexico
The Honorable Paul W. Grimm, U.S. District Judge, District of Maryland, Greenbelt, Maryland
The Honorable Matthew F. Kennelly, U.S. District Judge, Chicago
The Honorable Jerry E. Smith, Judge, U.S. Court of Appeals for the Fifth Circuit, Houston
Craig D. Ball, Law Offices of Craig D. Ball, P.C., Austin, Texas
Daniel L. Bonnett, Martin & Bonnett PLLC, Phoenix
Edward T. Ellis, Littler Mendelson, P.C., Philadelphia
Peggy R. Mastroianni, Legal Counsel, U.S. Equal Employment Opportunity Commission, Washington, DC
Mark J. Oberti, Oberti Sullivan LLP, Houston
Peter M. Panken, Epstein Becker & Green, P.C., New York
Susan Ritz, Ritz Clark & Ben-Asher LLP, New York
Richard T. Seymour, Law Office of Richard T. Seymour, P.L.L.C., Washington, DC
Jennifer M. Trulock, Baker Botts LLP, Dallas
THURSDAY, JULY 25, 2013
7:30 a.m. Registration and Continental Breakfast
8:25 a.m. Welcome and Announcements - ALI CLE Staff
Video Webcast Segment A
8:30 a.m. Introductory Remarks and Course Overview
8:40 a.m. Welcome - Judge Black
8:45 a.m. U.S. Supreme Court Employment Law Developments - Mr. Fitzpatrick
A prominent practitioner reviews the most important Supreme Court cases involving employment issues, including:
Fisher v. University of Texas and the fate of affirmative action;
Genesis HealthCare Corp. v. Symczyk, involving offers of judgment, mootness, and FLSA;
Vance v. Ball State University, involving the definition of a supervisor and strict liability in harassment cases;
Univ. of Texas Southwest Medical Center v. Nassar, involving the application of the but-for standard of causation to Title VII retaliation claims;
LaFemine v. Wideman, involving attorneys' fees for a prevailing party in a civil rights action;
Kloeckner v. Solis, involving jurisdictional issues under the Civil Service Reform Act and anti-discrimination laws;
Hollingsworth v. Perry, involving California's Proposition 8;
United States v. Windsor, concerning the federal Defense of Marriage Act; and
Shelby County v. Holder, addressing The Voting Rights Act
9:45 a.m. Judges' Commentary on the U.S. Supreme Court Term - Judges Kennelly, Pallmeyer, and Smith
10:15 a.m. Networking and Refreshment Break
10:30 a.m. Americans With Disabilities Act (ADA) Developments - Moderator: Judge Pallmeyer; Speakers: Ms. Mastroianni and Mr. Morris
• Court application of the ADAAA
• Medical inquiries
• Intellectual disability developments
• Direct threat issues
• Attendance, telework and reasonable accommodation
• Wellness programs and the ADA
• Obesity as a disability
11:30 a.m. Hot Topics in Federal and State Wage and Hour Litigation - Moderator: Judge Kennelly; Speakers: Messrs. Bonnett and Fitzpatrick
• Management of hybrid wage and hour cases
• Post-Dukes v. Walmart issues
• Settlement issues: Is settlement approval required? May the agreement be sealed?
• Offers of judgment and mootness
• Donning and doffing - Sandifer v. United States Steel
• Splitting FLSA claims to avoid CAFA - Standard Fire Ins. Co. v. Knowles
12:30 p.m. Lunch Break and Tour of the Santiago E. Campos U.S. Courthouse
U.S. District Judge Bruce Black leads a tour of the historic federal Greek Revival courthouse in Santa Fe. Completed in 1889 and listed in the National Register of Historic Places, the courthouse contains six murals of landscapes commissioned as a WPA project and a Kit Carson memorial.
Video Webcast Segment B
2:00 p.m. Current Issues in E-Discovery - Moderator: Judge Pallmeyer; Speakers: Judge Grimm and Mr. Ball
• Computer-assisted review (predictive coding)
• ESI cost shifting
• Rule 26(g): Branhaven v. Beeftek, Inc.
3:00 p.m. Networking and Refreshment Break
3:15 p.m. Current Issues in E-Discovery (continued)
4:30 p.m. The Ever Evolving NLRB - Messrs. Bonnett and Panken
• What can and can't be said: no-solicitation and no-distribution policies in a social media era
• NLRB rulings on employer social media policies, at-will disclaimers, and non-compete agreements
• The NLRB’s position regarding workplace investigations
• Impact of Noel Canning, the recess appointment issue
• The NLRB’s position regarding enforceability of individual arbitration requirements that purport to prevent class arbitrations
5:30 p.m. Adjournment for the Day; Networking Reception for Registrants and Faculty
FRIDAY, JULY 26, 2013
7:30 a.m. Networking Session and Continental Breakfast
Video Webcast Segment C
8:00 a.m. Summary Judgment: Tips on Winning and Losing - Moderator: Judge Grimm; Speakers: Messrs. Ellis and Seymour
• The role of the Court
• Key issues for employers to win summary judgment
• Key issues for employees to defeat summary judgment
9:30 a.m. Networking and Refreshment Break
9:45 a.m. EEOC Developments - Ms. Mastroianni and Mr. Morris
• EEOC's strategic enforcement plan: What it means for employers
• Effect of the sequester on the EEOC
• EEOC v. CRST Van Expedited, Inc.
• Consideration of credit checks, arrests, and conviction records
• Transgender claims
10:30 a.m. Recurring Discovery and Evidence Issues in Employment Cases - Moderator: Judge Palmeyer; Speakers: Judges Grimm and Kennelly and Messrs. Ellis and Seymour
• Comparators and me-too evidence
• BYOD (bring your own device) issues
• LinkedIn accounts: Who owns them?
• Social media discovery developments, and authentication issues
12:00 p.m. Lunch Break
Video Webcast Segment D
1:30 a.m. Causation Issues in Employment Cases - Moderator: Judge Smith; Speakers: Messrs. Oberti and Seymour
In recent years, practitioners have had to grapple with a plethora of causation concepts. Our expert reviews and clarifies the concepts, including:
• Motivating factor
• Contributing factor
• But-for causation
• Proximate cause
• Substantial factor
• Mixed and single motive cases
2:30 p.m. Arbitration - Moderator: Judge Smith; Speakers: Messrs. Ellis and Seymour and Ms. Trulock
This panel provides practical advice on how the wording of arbitration clauses affects their enforceability, and includes or excludes claims and parties. The topics addressed include:
• What is the consideration for the arbitration agreement?
• Who bears the expense of arbitration?
• Specifically, which arbitration rules are being used?
• What are the arguments pro and con as to putting the arbitration agreement in an employee handbook?
• Do’s and don’ts of drafting the scope of claims covered
• Can the arbitration agreement reduce exposure to damages?
• Can the arbitration agreement prohibit class and collective claims?
• Can the arbitration agreement shorten statutes of limitation?
• Is the scope of review always limited to FAA review?
• How should the employer address the potential of no employee signature?
• How should the agreement address non-signatory third parties?
3:30 p.m. Networking and Refreshment Break
3:45 p.m. Non-Compete, Non-Solicitation, and Trade Secret Developments - Messrs. Ellis and Fitzpatrick
• Scope of non-compete
• Forum selection and choice of law
• Definition of confidential information
• Duration of non-compete and expiration of non-compete during court enforcement proceedings
• Non-solicitation/no-raiding clauses
• Removal of documents ESI
• Effect of change in job duties
• Waiver of jury trialarbitrationpreliminary injunction proceedings
• Clawback and forfeiture clauses
• Effect on enforceability of circumstances of and basis for termination
• Disclosure of non-compete to prospective new employer
• Blue-pencil clause
• Assignment/successorship clauses
4:30 p.m. Effects of the Affordable Care Act - Mr. Morris
• The employer’s January 1, 2014 requirements
• Determining the workforce for ACA purposes
• The part-time dilemma
• The pay or play determination and the consequences
• Preparing now to avoid the Cadillac Tax in 2018
5:30 p.m. Adjournment for the Day
SATURDAY, JULY 27, 2013
7:30 a.m. Networking Session and Continental Breakfast
Video Webcast Segment E
8:00 a.m. Ethics and Professional Responsibility - Judge Grimm and Mss. Ritz and Trulock
• Unique ethical issues when there is employment practices liability insurance.
• Communicating with class members
• Social media investigations
• In multi-jurisdictional matters, what is and isn’t unauthorized practice of law?
• Using client names in lawyer’s blog
• Unique ethical issues arising out of the use of the cloud
9:00 a.m. Emerging Issues in Retaliation and Whistleblower Law - Ms. Ritz and Messrs. Oberti and Panken
• Retaliatory harassment
• Internal complaints
• Third-party retaliation
• Retaliation against friends and family
• FDA Food Safety Modernization Act: Whistleblower claims
• Sarbanes-Oxley: Whistleblower Claims
• Dodd-Frank: Whistleblower claims
• Newly imposed exhaustion requirements by some courts
• Differing standards for protection of oppositional versus participatory activity
• Types of evidence that often significantly undermines or substantially supports a retaliation claim
• Extreme cases and surprising results
10:15 a.m. Networking and Refreshment Break
10:30 a.m. Complex Family and Medical Leave Act Issues - Moderator: Judge Kennelly; Speakers: Mr. Morris and Ms. Ritz
• Interaction with state and local leave laws
• Military caregiver protections
• Intermittent stress-related leave
• Travel while on FMLA
• Determining bona fide nature of FMLA request
11:30 a.m. Hot Topics in Employment Law – Moderator: Judge Pallmeyer; Speakers: Messrs. Fitzpatrick and Morris
• EEOC on LGBT employees and sex discrimination
• Paid sick leave legislation
• Cat’s paw’s application to age cases
• Religious conscience cases
• Ex Parte Young and individual liability under FMLA of public officials
• Conflicts of laws: Golden Archer Investments, LLC v. Skynet
12:30 p.m. Adjournment
Total 60-minute hours of instruction: 18.75 hours, including one hour of ethics and professionalism
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:
Kudos from the 2013 program:
I have thoroughly enjoyed this program for the past few years, and look forward to attending again next year.
The course materials are awesome, thank you!
Kudos from previous programs:
I have been attending this course for many, many years. There is nothing even remotely close to the comprehensive materials and the quality of speakers.
My most firmly held opinion is that the course presented the best ethics hour I’ve ever attended. I cannot recall ever before wishing there had been more time devoted to ethics. That session was timely, practiced, and allowed the panel and attendees to share opinions and experiences. Thank you. The format—panels—was very effective. I enjoyed the mix of attorneys (employer and employee), judges, and even a statistical expert. Overall, I was very impressed with this program.
The evidentiary issues and the judges various views were fascinating—I really enjoyed the personal viewpoints. Also, the lawyers on both sides did a great job.
A well-rounded conference and excellent use of time, presenters and resources. — Aaron Frankland
I really like panel discussion format, especially with judges.
All the judges did a great job moving conversations along and summarizing key issues. Appreciate their involvement.
The content of this course was excellent. The materials were excellent. Most of the presenters were excellent, very knowledgeable and very well prepared. WELL DONE!!!
Excellent seminar as usual.
As a plaintiff’s counsel in my first few years of practice, I found this course to be enormously helpful. This is the second year I have attended this course. I found that this year’s course had a more balanced presentation and I greatly appreciated the coverage of new information and update on foundational subjects.
This course continues to be outstanding year after year. Many thanks to Frank Morris and Bob Fitzpatrick for their hard work and dedication to this course. Thanks too for the exhaustive papers.
Extremely useful information.
This is by far the best and most comprehensive course I have taken. Not only is it particularly relevant to my practice, it was as complete as a semester long class in law school (but better). I really appreciate the massive materials which I know I will use often, if not daily. I like the ‘mock trial’ set up for evidentiary problems. The participants were great and the scenario was very fertile. — Karen Kilgore, Cuddy & McCarthy, Santa Fe
I have attended 7 consecutive ALI CLE conferences and would not miss it for the world. Although I am not an attorney, the education of ALI CLE has proven invaluable to me in staying alert and abreast of the trends in employment law. I attend this training with the City of Coppell’s employment lawyers and we are a better team and in sync in providing guidance to the City where I am employed because of our shared knowledge. Books are great this year! Thank you--the hard work is evident and appreciated! — Donna Jenkins, Lynn Pham & Ross, LLP, Fort Worth
This is my fourth time at the course and it has been consistently outstanding in bringing the latest developments in the field both timely and in depth. It is the best meeting I attend each year. Nowhere do I see such a broad range of topics covered with such thoroughness. — Dennis Kennelly, Menlo Park, California
I attended this seminar through webcast, and dreaded sitting at my computer for 2½ days just listening and watching a little screen. However, the experience, skill and manner of delivery of just about every speaker made the broadcast not only tolerable, but interesting and educational! I am quite surprised, and very pleased. Thank you!
All times are Mountain time