Friday, June 23, 2017

   Wednesday | Thursday | Saturday

7:00 a.m.

Tobias 5K Run
Participants are requested to meet in the lobby of the San Antonio Marriott Rivercenter at 6:45 a.m.

7:00–9:00 a.m.

Registration & Continental Breakfast

9:00–10:15 a.m.

Because “Cause” Matters: Causation Under Federal & State Employment Discrimination Laws
Moderator: Mary Anne Sedey
Speakers: Alice W. Ballard, Paul W. Mollica & Gillian Thomas
Terms like “but for” cause, “motivating factor,” and “sole cause” appear frequently in the case law interpreting every employment discrimination statute, but they do not always seem to mean the same thing to every judge in every jurisdiction. This presentation will explore both the latest court opinions and some underlying theory regarding how causation standards do or do not differ at various procedural stages of a case and when attempting to prove a claim of Title VII discrimination, Title VII retaliation, age discrimination under the Age Discrimination in Employment Act, and other common types of discrimination claims.

10:45 a.m.–12:00 p.m.

CONCURRENT SESSIONS

Discovery

Tweeting & Snapping: What You Need To Know About Preserving, Discovering & Using Social Media
Moderator/Speaker: Heather Newsom Leonard
Speakers: Lynne Bernabei & Peter Sung Ohr
Facebook, Twitter, and Instagram, as well as other lesser-known social networking platforms used within the workplace, can be a treasure trove of information about workplace culture, including discriminatory remarks and hostile work environments. These postings also can yield powerful evidence in the form of contemporaneous statements that undermine pretextual explanations later offered by an employer for why your client was fired, or disciplined, or not promoted. At the same time, social media postings can be a minefield creating distractions for your case and potentially damaging your client’s credibility, especially if you do not know ahead of time what surprises your client’s Facebook history may contain. Our speakers will discuss the state of the law as it relates to social media discovery, and provide practical advice on how to maximize the opportunities of social media for developing your case while avoiding traps for the unwary. In addition, they will explore how to best cull, preserve, download, upload, extract, and review social media discovery.

Trial Advocacy

Rules Of The Road: A Map For Plaintiffs’ Employment Lawyers
Moderator/Speaker: Brian P. Sanford
Speakers: Amanda A. Farahany & William B. Ryan
In a practice area where trials seem few and summary judgment proceedings take up so much time, it is sometimes hard to keep trial skills current and to practice new skills that might help us and our clients. In other legal specialties, such as personal injury law, the Rules of the Road are familiar and often used tools, but they may be considered as an off-road adventure for those who have never tried them in an employment context. Our experienced Rules of the Road litigators will provide tips and tricks for better applying the rules in our own cases so that we can make the trip from intake through victory with more ease.

Representing Vulnerable & Underserved Workers

Top Ten Things You Need To Know About Litigating Wage & Hour Cases 
Speakers: Richard J. (Rex) Burch & Michele R. Fisher
Join our veteran practitioners as they provide their countdown of the issues that must be at the forefront of every advocate’s mind when they are preparing to litigate a wage and hour case.

Where Are They Now? How Lower Courts Are Applying Recent U.S. Supreme Court Employment Decisions
Moderator: Leonard Bates
Speakers: Professor Scott A. Moss
Reviews of U.S. Supreme Court decisions are like profiles of new bands: they offer more detail than you need, with breathless hype about their potential. A year or three later, the bias toward writing about new things leaves you wondering what became of them. Like the semi-popular VH-1 television series Where Are They Now?, which detailed the usually sad eventual fates of bands that drew great attention before fading from memory, this presentation and accompanying written materials analyze what lower court decisions have arisen (through spring 2017) from major 2013–2015 employment law decisions such as EEOC v. Abercrombie & Fitch Stores (religious accommodation); Young v. United Parcel Service (pregnancy accommodation); Integrity Staffing Solutions, Inc. v. Busk (required off-the-clock tasks); Vance v. Ball State University (which “supervisors” trigger employer vicarious liability for harassment); and University of Texas Southwestern Medical Center v. Nassar (“but-for” causation standard for retaliation and certain other claims).

Money, Money, Money: How To Deal With Defendant’s Financial Condition Pre & Post Bankruptcy
Moderator: Daniel A. Katz
Speaker: Bonnie L. Clair, Reena I. Desai & Joseph Kenyon
The company tells you that it doesn’t have any money and it is potentially going to file for bankruptcy. How many times has this happened in one of your cases? How do you verify what it is telling you is true? What if the company files for bankruptcy, then what? Our panelists will discuss the ins and outs of a potentially insolvent defendant and educate lawyers (who are generally not so good at math) on how to determine if a company really doesn’t have money to pay a settlement or a judgment. They also will provide a checklist and practice tips on what to do if the defendant does file for bankruptcy.

 

Problem Solving While Record Building: Guiding A Client Through The Interactive Process
Moderator: Mary E. Kelly
Speakers: John A. Beranbaum & Lorrie McKinley
This session will provide practical tips on how to guide a client who is attempting to navigate the interactive process under the Americans with Disabilities Act (ADA). Our experienced ADA practitioners will explore the following questions, with practitioner examples: (1) What can employees do to trigger the interactive process?; (2) What determines which functions of a job are essential?; (3) What roles do the employee’s treating professionals and employer’s doctors have in the process of assessing the employee’s needs and the suitability of specific accommodations?; (4) When should we stop counseling our clients from behind the scenes and become directly involved in communications with the employer?; (5) What documentation should our clients seek, or create, to build a record in the event that litigation becomes necessary?; (6) How can common employer defenses be preemptively addressed during the interactive process?; and (7) How should we advise clients to deal with difficult employers/supervisors once it appears that there is a serious prospect of retaliation and/or termination?

12:00–1:45 p.m

Box Lunch
Box lunch is available to Convention registrants only.


NELA Members Forum: Be The Change!
Join NELA President Alicia K. Haynes, the NELA Executive Board, and NELA Staff to talk about how NELA members, NELA Affiliates, NELA Affiliate members, and our coalition partners are responding to the challenges in defending the progress our country has made on civil and workers’ rights, and our collective efforts to bring about positive change in the American workplace.

NELA Committee & Practice Group Meetings
Convention participants are welcome to attend the committee and practice group meetings of their choice. Please check the bulletin board at the Registration Desk for other meetings.

2:00–3:15 p.m.

CONCURRENT SESSIONS

Discovery

What To Do When Clients Access Employer Documents Outside The Formal Discovery Process
Moderator/Speaker: Ellen J. Messing
Speakers: Tylden Shaeffer & Jason M. Zuckerman
NELA members and our clients are beset with challenges when our clients access employer documents outside the formal discovery process. Documents can include materials generated by clients themselves or co-workers; materials called “confidential” by employers; materials that may be subject to the employer’s attorney-client privilege; and materials that the client wants to produce to a government agency. Clients can be at risk for sanctions and potential civil and even criminal liability; as their lawyers, we’re subject to several conflicting obligations and our own risks. This panel explores the risks and benefits of accessing employer documents from the contrasting perspectives of a lawyer representing whistleblowers; a criminal defense lawyer; and a longtime member of NELA’s Ethics & Sanctions Committee.

This presentation qualifies for 1.25 hours of ethics credits.

New Lawyers

Preparing For Your First Deposition
Moderator/Speaker: Marcus G. Keegan
Speakers: Jennifer Lin Liu & Kate Sedey
In this practical presentation, new lawyers will learn how to (1) develop potential evidence to support their own contentions as well as to undermine their opponent’s positions; (2) flesh out credibility evidence for (and against) both sides of the litigation, including evidence that might either explain or exploit an apparent inconsistency; (3) convert their potential evidence into topics to explore during their depositions; and (4) organize important topics into a useful deposition outline.

Trial Advocacy

Maximizing Damages In Civil Rights Cases
Moderator: Carla D. Brown
Speakers: Hal K. Gillespie, Jan Sawyer & Brooke Timmer
You’ve overcome the defense’s motion for summary judgment. How do you convince a jury what your client’s case is worth or that the employer’s conduct is so reprehensible that they should award punitive damages? Using trial strategies to assist the jury in placing value on your client’s emotional distress and economic losses is critical. Equally important are post-verdict strategies to assist the judge in evaluating whether to increase the initial verdict value by awarding damages for the additional tax liability to your client and/or for additional months of back pay resulting from the appellate process. Our panel of successful trial attorneys and a veteran jury consultant will share their strategies utilized in real-life victories where they obtained seven-figure verdicts in employment discrimination cases for their clients.

Representing Vulnerable & Underserved Workers

Creative, Cost-Effective Advocacy In Low-Wage, Immigrant & Undocumented Worker Cases
Moderator/Speaker: Bryce W. Ashby
Speakers: M. Nieves Bolanos & Aaron Johnson
The low-wage, immigrant, and undocumented worker communities are among the sectors of our country’s workforce most vulnerable to unlawful wage practices, discrimination, and retaliation. They often have difficulty securing legal representation when their rights are violated and employers regularly pursue scorched-earth tactics to suppress their claims. Our advocates will share practical strategies to minimize your risk in representing this significant component of the labor force and to maximize recovery for your clients.

Getting The Hint: Moving Implicit Bias Theory From The Classroom To The Courtroom
Moderator/Speaker: Thomas A. Newkirk
Speakers: Walt Auvil, Kathleen M. Cahill & The Honorable Bernice B. Donald
Reconciling the legal concept of “intentional discrimination” with the growing scientific evidence and sociological literature on how implicit bias leads to discrimination in the real world, and figuring out how to apply theories of implicit bias in our cases, is a subject fraught with both challenge and potential. A federal judge will be joined by NELA practitioners (with different views on how and when to invoke implicit bias theory in the course of litigating employment discrimination cases) to explore the evolution of the idea and discuss practical suggestions for incorporating implicit bias concepts into our pleadings, negotiations, and motion practice—as well as addressing the implicit biases of the decision-makers in our cases, our litigation adversaries, and ourselves.

This presentation qualifies for 1.25 hours of elimination of bias credit.

 

The Employee Who Stays: A Tangled Web
Moderator/Speaker: Nina T. Pirrotti
Speakers: Patricia A. Barasch & Jerome J. Dobson

This panel will explore the myriad of pitfalls and opportunities that present themselves when an employee who complains about discrimination remains employed by the offending employer. Topics will run the gamut from the manner in which the employee should lodge the complaint; how the employee should conduct herself after she does so in order to avoid giving the employer a legitimate reason to terminate her; navigating the employer’s investigation of the employee’s allegations (including how to make a record if that investigation is inadequate or biased); guiding the employee on documenting any retaliatory behavior; a discussion of the various forms a settlement for the employee who remains can take from economic damages (resulting from constructive discharge to emotional distress damages to promotion and/or transfer to a different supervisor, etc.) and, of course, the pros and cons of staying versus leaving and claiming constructive discharge as well as the circumstances in which one might be more preferable to the other.

3:45–5:00 p.m.

CONCURRENT SESSIONS

New Lawyers

Valuing Your Case & Persuading Others That You Are Right
Moderator/Speaker: Charles E. Guerrier
Speakers: Robert (“Bobby”) Lee & Shirley Lin
You face two questions when assessing the value of your case: First, what do you think the case is worth, and, second, how do you convince others (such as defendants, mediators, and insurance representatives) that you are right? The members of the panel will provide guides and tips on how to marshal evidence to support damages; identify and quantify items of relief (including back pay, prejudgment interest, tax consequences of lump-sum payment, attorney fees, and non-pecuniary compensatory damages); prepare a persuasive demand letter or mediation statement; respond to counter-arguments; and deal with difficult opposing counsel and mediators. Attention also will be paid to the pitfalls which can arise when negotiating attorney fees along with damages.

Representing Vulnerable & Underserved Workers

Successfully Managing Large Cases
Moderator/Speaker: Rachel M. Bien
Speakers: Lindsay Nako & Rachhana T. Srey
Whether it is a nationwide wage and hour case or a multi-plaintiff or class discrimination case, managing large cases tests one’s ability to juggle many balls in the air at once. In addition to the many moving parts that come with representing numerous plaintiffs (sometimes numbering thousands), there are other issues to deal with, such as the defense bar’s increasing desire for more discovery of plaintiffs (including written and deposition discovery), multiple expert witnesses, and document review and management. Practitioners will suggest best practices for overall case and team management, offer ways to preempt the defendant’s obstructive litigation tactics, and present strategies for communicating with large numbers of plaintiffs, gathering discovery from them, and keeping track of it all.

Introduction To Reasonable Accommodations Under The ADA & Leave Requests Under The FMLA
Moderator/Speaker: Darcie R. Brault
Speakers: William Bush & Thomas J. Crane
This presentation will provide an overview of the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) with a focus on requests for reasonable accommodation under the ADA, and requests for continuous or intermittent leave under the FMLA. You will learn about the types of accommodations that are available (including modified schedules and working from home), the process for requesting accommodations/FMLA leave, and the types of questions that employers may and may not ask—and medical documentation they may and may not require—as part of the request process. Our speakers will present fact patterns as a means of discussing common issues that arise in ADA failure to accommodate and FMLA interference cases, and discuss factors for attorneys to consider when the two types of claims overlap. Retaliation claims under the two statutes also will be briefly covered.

Arbitration Case Law Update
Moderator/Speaker: Karla Gilbride
Speakers: L. Steven Platt & Karen Roberts Washington
Our panel of experts will discuss the most important arbitration issues of the past year, including U.S. Supreme Court rulings dealing with arbitration issues, as well as notable federal and state court decisions. In addition, they will address important federal legislative and regulatory developments.

 

Settlement Of Federal Employee Claims
Moderator/Speaker: David Weiser
Speakers: Michelle F. Bercovici & Susan E. Jewell
Attorneys settling federal employee claims are presented with opportunities and challenges that are distinct from other types of settlements. NELA’s veteran federal employee rights lawyers will discuss the practical and strategic settlement considerations that arise when settling federal employee claims.

 

Current Issues In National Origin Discrimination Litigation
Moderator/Speaker: Rebecca L. Salawdeh
Speakers: A. Steven Porter & William R. Tamayo
In addition to a general overview of recent case law, our panelists will address linguistic characteristic discrimination, cases that overlap with religious discrimination, Section 1981 and 1983 issues, and special considerations related to representing low-wage or non-English speaking clients.

7:30–11:00 p.m.

NELA’s Annual Gala Fundraiser | Simply The Best
After 27 years, Executive Director Teri Chaw will be retiring in July 2017. As our greatest champion, she has had a positive impact on thousands of employee rights advocates, the field of plaintiffs’ employment law, and the American workplace. Please join the NELA and Institute family for an unforgettable farewell celebration honoring Teri at NELA’s 2017 Annual Gala Fundraiser, which fuels NELA’s Amicus, Judicial Nominations, and Legislative & Public Policy Programs, including the initiatives of our Washington DC Office.

    Wednesday | Thursday | Saturday
  Program subject to change without notice.