Program

Friday, October 17, 2014

7:30–9:00 a.m.

Registration & Continental Breakfast

8:45–9:00 a.m.

Welcome & Opening Remarks

9:00–10:30 a.m.

MSPB & EEOC Case Law Update
Moderator: Kristin D. Alden
Speakers: Peter B. Broida & Ernest C. Hadley

Peter B. Broida and Ernest C. Hadley, who literally wrote the book on EEOC and MSPB Litigation with Gary Gilbert and William Wiley, are among the most recognized names in federal sector employment law. They will provide updates on significant developments in the law affecting practice before the Equal Employment Opportunity Commission and the Merit Systems Protection Board, including relevant decisions from the U.S. Court of Appeals for the Federal Circuit.

10:45 a.m.–12:00 p.m.

CONCURRENT SESSIONS

 

Federal Sector 101: MSPB Basics
Moderator & Speaker: Daniel T. Raposa
Speakers: Wynter P. Allen & Paula Dinerstein

Litigating a case before the Merit Systems Protection Board requires a practitioner to have knowledge of a variety of substantive legal and procedural elements unique to this administrative tribunal. Designed for the beginning-to-intermediate employment law practitioner, or the practitioner who practices primarily with cases in the private sector, this panel will address a panoply of useful topics for lawyers taking cases to the MSPB. Among the topics to be discussed are MSPB jurisdiction; deadlines; filing an MSPB appeal; discovery and evidentiary strategies; preparation for hearing and hearing strategy; and election of remedies.

 

EEOC Class Actions
Moderator & Speaker: Bryan J. Schwartz
Speakers: Heidi Burakiewicz, John Mosby & David Weiser

The Equal Employment Opportunity Commission provides a class action mechanism designed to facilitate impact litigation against the federal agencies, which are supposed to be model employers when it comes to non-discrimination. Featuring veteran EEOC class action litigators, this panel will address a wide range of important issues in class discrimination complaint litigation for federal workers, including recognizing possible class issues; when to raise class allegations; the certification standard at the EEOC; how to obtain pre-certification discovery; class definition as to the scope of the class; and class settlement..

12:00–1:30 p.m.

Luncheon & Keynote Address By Gary Aguirre
Gary Aguirre is best known as the Securities Exchange Commission lawyer who pushed back when the SEC’s hierarchy decided to give preferential treatment to a prominent Wall Street banker. After a very successful 27-year career as a trial lawyer in California, Mr. Aguirre joined the SEC in 2004, where he headed an insider trading investigation of Pequot Capital Management, formerly the world’s largest hedge fund. Fired for his so-called insubordination, Mr. Aguirre would prove to the satisfaction of two Senate Committees, a federal court, and three federal agencies that the SEC had acted unlawfully. His story has been told in a 108-page Senate report, a dozen books, national and international television, and hundreds of news articles, including one on the front page of The New York Times. Now in private practice, Mr. Aguirre represents whistleblowers and victims of securities fraud and market abuse.

1:45–3:00 p.m.

CONCURRENT SESSIONS

 

Federal Sector 101: EEOC Basics
Moderator: Andrew J. Perlmutter
Speakers: Wendy Musell & Kenneth Wu

Veteran practitioners before the Equal Employment Opportunity Commission will provide answers to your questions about the federal sector EEO process covering EEO counseling, EEO investigations, deadlines, damages, exhaustion pitfalls and tolling, basic EEOC hearing procedures, work samples, and more. Panel members also will share their experiences on establishing a successful practice serving federal employees in the EEOC and the Merit Systems Protection Board fora. If you think you want to represent federal employees before EEOC administrative judges, or have already started doing so and have some questions, this session is for you.

 

The Increasing Role Of Security Clearances & National Security Issues
Moderator & Speaker: Lynne Bernabei
Speakers: Leslie McAdoo Gordon & Elizabeth L. Newman

The presentation will examine the security clearance process for government employees and government contractors. Speakers will discuss the effect of recent events (e.g., Edward Snowden’s situation and the D.C. Navy Yard shooting) on employees needing security clearance and other security determinations; the increasingly challenging landscape for government contractor employees requiring security determinations of any level; Kaplan v. Conyers, which created a broad national security exception that precludes Merit Systems Protection Board review for federal employees in an expanding category of "non-critical sensitive"; positions; and special considerations that an attorney must take into account when his or her client is alleging a pattern of discrimination, part of which involves a security clearance, as set forth by the D.C. Circuit in its two recent decisions in Rattigan v. Holder.

3:15–4:45 p.m.

Meet The Heads Of Agencies Responsible For Enforcing Federal Employee Rights
Moderator: Joseph V. Kaplan
Speakers: The Honorable Jacqueline A. Berrien,* Chair, Equal Employment Opportunity Commission, The Honorable Susan Tsui Grundmann,* Chair, Merit Systems Protection Board, The Honorable Carolyn N. Lerner,* Special Counsel, Office of Special Counsel & The Honorable Carol Waller Pope,* Chair, Federal Labor Relations Authority

Heads of the agencies most relevant to federal sector practitioners will join us for an interactive session to present us with their visions for their agencies, discuss elements of their strategic plans affecting federal employees, and share the challenges they face in light of limited resources that prevent them from keeping pace with the demand for services. NELA members will have the opportunity to pose questions and convey concerns about their interactions with these agencies.

5:00–7:00 p.m.

Reception
Generously sponsored by The Employee Rights Advocacy Institute For Law & Policy.

   

Saturday, October 18, 2014

7:00–9:00 a.m.

Registration & Continental Breakfast

9:00–10:30 a.m.

A View From The Bench & Bar
Moderator: Edward H. Passman
Speakers: Neil C. Bonney, The Honorable Jeremiah J. Cassidy, The Honorable Gladys O. Collazo & Debra L. Roth
This panel of esteemed administrative judges and practitioners will discuss the challenges faced by each in the day-to-day handling of federal employee agency cases and engage in a dialogue about potential solutions to the issues and difficulties they encounter that at times can seem intractable.

10:45 a.m.–12:00 p.m.

CONCURRENT SESSIONS


 

Maximizing Compensatory Damages
Moderator: Lynette A. Whitfield
Speakers: Gary M. Gilbert & Adria S. Zeldin

Veteran NELA practitioners will discuss best practices for maximizing awards of compensatory damages. Topics will include how to ascertain your clients' damages effectively, when to use lay witnesses, when expert witnesses should be used, and a review of the issues that move the Equal Employment Opportunity Commission to award damages of the highest amounts.

 

Election Of Remedies
Moderator: Denise M. Clark
Speakers: Susan E. Jewell & Robert C. Seldon

Thorny election of remedies issues permeate federal sector practice. This panel will explore many different types of elections that may need to be made when litigating an employment rights case on behalf of a federal employee. Issues to be explored are navigating mixed cases (discrimination claims that are appealable to the Merit Systems Protection Board), negotiated grievances, ADEA exhaustion, EPA claims, and special processes for legislative and judicial branch employees. They also will answer questions such as: What happens when the wrong choice has been made? Will tolling apply? What if the agency misled an employee? What if it also seems like a whistleblower case? In addition, our experts will review strategy considerations and substantive authority to help guide you in assessing the elections and hurdles faced only by a federal employee.

12:00–1:00 p.m.

Roundtable Box Lunch Discussions
Seminar participants will have an opportunity to share their own strategies and tips on representing federal employees over lunch in informal discussion groups led by facilitators. Potential topics include attorneys' fees, federal sector USERRA, "so you want to be a federal-sector practitioner," Privacy Act causes of action, and defending federal employees in criminal investigations among others.

1:15–2:30 p.m.

CONCURRENT SESSIONS

 

Emerging Issues In Protections For LGBT Employees 
Moderator & Speaker: Louis Lopez
Speakers: The  Honorable P. David Lopez

This presentation will examine recent efforts by federal agencies to combat LGBT discrimination in the federal workforce, including the effect of U.S. v. Windsor on benefits issues, the Equal Employment Opportunity Commission's decision in Macy v. Holder, the Office of Personnel Management's guidance on the employment of transgender individuals in the federal workplace, the Office of Special Counsel's role in combatting sexual orientation discrimination, and strategies for representing LGBT employees in the federal workplace.

 

Key Issues In Retirement, Disability Retirement & Workers' Compensation
Moderator: Michael L. Spekter
Speakers: Steven E. Brown & Zachary L. Wright

When your client suffers a disability, you need to know what options to explore and recommend. This session will discuss how to balance between Office of Personnel Management retirement, Social Security Disability, and workers' compensation. Panel members will address how to apply for these programs, the appeal process, the pros and cons of available options, the interplay with reasonable accommodations, and how to leverage these options in settlement.

2:45–4:00 p.m.

CONCURRENT SESSIONS

 

Motions Practice At The EEOC
Moderator: Jonathan C. Puth
Speakers: Daniel A. Katz & Johnathan P. Lloyd

Most of the time, getting to a hearing or negotiating a substantial settlement agreement for your client before the Equal Employment Opportunity Commission is contingent upon first successfully navigating the agency's motions practice. This panel will address how to litigate dispositive motions successfully, including motions for summary judgment and oppositions to motions for summary judgment. Speakers will also discuss litigating successful motions for default judgment and other sanctions, particularly in situations where the EEO investigation is not completed or is incomplete, or for other discovery abuses. Lastly, the panel will touch on best practices for non-dispositive motions, such as motions to compel.

 

Successful Strategies In Settlement Negotiations
Moderator: Michelle F. Bercovici
Speakers: Joshua F. Bowers & Cathy A. Harris

In the federal sector, obtaining a successful settlement for a client can often be complex—balancing case valuation, client expectations, and goals. Expert practitioners will address the unique aspects of settlement negotiations in the federal sector, including how to use Office of Personnel Management regulations to get more value without necessarily getting the agency to pay; discussion of the value of the various fora available to practitioners, such as the Merit Systems Protection Board's Mediation Appeals Program and Equal Employment Opportunity Commission settlement judges; limits of using disability retirement and Office of Workers' Compensation Program issues in settlement negotiations; strategies for creatively achieving settlement; working with and around the Back Pay Act; timing of settlement; and maximizing recovery for your clients.

4:15–5:15 p.m.

Strategies For Representing Whistleblowers In The Federal Government
Moderator & Speaker: Jason M. Zuckerman
Speakers: Thomas M. Devine, Bruce Fong & The Honorable Ronald J. Weiss

After a 13-year legislative campaign, Congress finally and unanimously passed the Whistleblower Protection Enhancement Act, which broadens the scope of protected conduct under the Whistleblower Protection Act, authorizes uncapped compensatory damages in WPA actions, establishes all-circuit review, and expands Individual Right of Action rights. Our speakers will examine the impact of the WPEA, offer tips for representing whistleblowers before the U.S. Office of Special Counsel and the Merit Systems Protection Board, and discuss the role of Inspectors General in investigating whistleblower disclosures and assisting whistleblowers.

  *Invited but not confirmed.