LEL Flash | Issue: July/August 2013

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Issue: July/August 2013

Annual Conference News

Annual Section Conference Programming Highlights

The Annual Section Conference has a multi-tracked curriculum that covers a full range of labor and employment law topics. In this and upcoming issues, the Conference Planning Committee will highlight programming areas that may be of special interest to attendees at the 7th Annual Labor and Employment Law Conference.

Wage and Hour Programs

Employees and employers continue to square off in multi-million dollar class and collective action litigation over wage and hour issues in state and federal courts across the country. At the same time, the Department of Labor (DOL) has continued its aggressive enforcement of the FLSA requirements, with a focus on workers classified as independent contractors. The Wage and Hour panels in New Orleans will provide litigators and counsel with the tools and information they need to keep up with the issues arising in this evolving and growing field, from introductory programs like the Wage and Hour Boot Camp through the advanced Recent FLSA Developments panel which will debate the most novel and complex wage and hour issues confronting the courts. Other panel highlights include the following:

Once again this year, Solicitor of Labor Patricia M. Smith will appear among other experts for a spirited panel that will debate the rules governing the classification of workers as independent contractors.

Other panels will focus on litigation in large scale wage/hour actions, including the class certification and trial management issues arising from Dukes v. Wal-Mart in which the Supreme Court cautioned against the use of "trial by formula."

Another panel will focus on the practical and ethical concerns in class and collective actions regarding communications with potential class members.

The "Compensable Time in a Digital Age: Beyond Donning and Doffing" will explore the cutting edge issues that extend past the meat packing context of Sandifer (Section 3(o) case pending in the United States Supreme Court) to focus on travel time and on-call time claims involving handheld devices, remote access to work, computer boot up time, and the limits of the de minimis defense.

Finally, since wage and hour cases, like most litigation, ultimately end in a negotiated resolution, another panel of experienced practitioners (including a prominent JAMS mediator), will address the legal and practical considerations of FLSA settlements, including the new issue of whether FLSA claims can be effectively released without judicial review and providing ideal language for addressing common deal breakers.

Labor Management Relations Programs

After many months of uncertainty, the NLRB now has five confirmed Board members. The Management Relations Programs give you the opportunity to interact with all five of the NLRB members as well as the NLRB General Counsel about the issues that face your clients on a daily basis. Of course, we have the always popular NLRB update program and then some other fascinating issues, including:

  • How Specialty Healthcare applies outside the health care industry;
  • Discussion of the many issues concerning charges and trials involving immigrant workers;
  • Regional Directors, Administrative Law Judge and NLRB attorneys take us through an inside view of the processing and handling of an NLRB case;
  • Bargaining in the Affordable Care Act world, and
  • Issues in the Education field.

The Labor-Management Relations programs promise to enlighten and also raise a few eyebrows as the speakers approach the issues of the day.

Workplace Problems and Solutions

The programs that make up this category are intended to help lawyers from all constituencies identify workplace issues and pursue, manage and find practical solutions for them. These programs each address cutting edge everyday issues that arise in the work environment, such as dealing with bullies in the workplace, the issues associated with employees bringing their own technology into the workplace, the ability to discipline employees for behavior outside the workplace, the how to managing employees who have filed discrimination claims but who are still in the workplace, the pitfalls of referring employees to EAP programs, employer obligations to employees who are employed abroad during times of crisis, and how to navigate the confusing alphabet soup of privacy issues in ADA, HIPAA and GINA. In addition you will get expert advice on how to coordinate criminal, civil and insurance claims associated with employee crime and how to determine if attorney-client privilege applies to internal communications. There will also be the basics of conducting workplace investigations as well as a more advanced practitioner program on some of the more complex issues that arise in these investigations.

All of the panels will be comprised of practitioners from management, in-house counsel, employee and union perspectives, so all points of view will be addressed with particular emphasis on practical solutions!

Ethical, Practical and Technological Issues in Managing a Labor and Employment Law Practice

This programming in this area is designed to assist practitioners assist labor and employment lawyers in managing their practices, maintaining ethical compliance and also staying abreast of the ever-changing technology being used in the practice of labor and employment law. The panels will include the following topics:

  • The Business and Ethics of Hanging Out Your Own Shingle
  • Do Lawyers Have An Ethical Duty to Learn About and Understand Technology?
  • Ethical Engagements
  • Apps for Labor and Employment Lawyers
  • Ethics of Social Media for Lawyers
  • Marketing Your Labor and Employment Law Practice
  • Recent Changes in the Ethics Rules: Wrapping Up the ABA Commission on Ethics 20/20

Come hear the fantastic panelists in this area and receive ethics credit, as well!

Discrimination and Retaliation Programs

Every employment lawyer needs to be informed about the ever-changing landscape of discrimination and retaliation claims. This year's conference features highly knowledgeable speakers, including government lawyers and EEOC commissioners. Whether you are an experienced practitioner or new to the field, you will find discussions that will broaden and deepen your knowledge about these central topics.

Unconscious bias affects every aspect of a claim of discrimination. Explore the latest developments in the science of unconscious bias, and learn practical strategies to incorporate this science in your litigation and trial practice. In a separate program, panelists will consider the use of criminal background checks by employers, and claims of discrimination because of those checks.

Retaliation claims are the most common EEOC charge, and are expanding to include third-party claims and retaliatory harassment. Our panel regarding the new frontier of retaliation claims will explore the changing landscape, and will include retaliation claims under discrimination laws, as well as under Dodd-Frank, SOX, ARRA, FSMA, NLRA and USERRA.

Are you worried about disability claims? You may be interested in the fundamentals panel discussion of the ADAAA five years later. Then try the advanced program on thorny issues such as:

  • Disciplining employees for disability related misconduct;
  • Disclosing private information, and the interplay of the ADA, GINA and HIPAA; and
  • Who is a qualified individual with a disability?

Join a lively discussion of issues that cross the boundaries of the Title VII, the FMLA, the ADA, and the PDA, in "Caregiver Responsibility Discrimination: Are You One Sick Kid Away from Losing Your Job?"

Fifty years after the passage of the Equal Pay Act, the panel "What Glass Ceiling?" will discuss the continued challenges of pursuing and defending pay discrimination claims. A separate panel will discuss sex stereotyping and sexual orientation claims under Title VII.

This article was prepared by the 2013 Annual Section Conference Planning Committee.


Opening Page

Comments from the Chair

Special Feature: Making Sense of Uncertainty in the Wake of Noel Canning

Ethics Corner: More Jurisdictions Adopt Admission by Motion Rules

LEL Committees Promote Pro Bono at Midwinter Meetings

Flash Co-Chairs:

Jeremy J Glenn, Meckler Bulger et al | Elana Hollo, National Labor Relations Board | Katherine Huibonhoa, Paul Hastings LLP | Amy F. Shulman, Broach & Stulberg LLP

American Bar Association Section of Labor and Employment Law
321 N Clark | Chicago, IL 60654 | (312) 988-5813