Thursday, June 22, 2017

    Wednesday | Friday | Saturday

7:00–9:00 a.m.

Registration & Continental Breakfast

8:30–9:30 a.m.

Roll Call Of The States & Opening Remarks
Paul H. Tobias, NELA Founder, Alicia K. Haynes, NELA President & Terisa E. Chaw, NELA Executive Director

9:30–11:00 a.m.

Be The Change: Honoring Courageous Plaintiffs
Moderator: Alicia K. Haynes
Honorees: Juan Alonzo-Miranda, Yosif Bakhit & Gretchen Carlson
Advocates: Lewis Chimes, John W. Griffin & Martin S. Hyman
The Convention’s opening plenary session will bring to life the stories of three remarkable individuals who stood up to their employers and held their ground in the face of immense adversity, not only to vindicate their own rights, but to improve the lives of others as well. Our honorees embody the change we want to see in the American workplace, and their perseverance and courage will inspire us to continue the fight for equality and justice for all. Their lawyers will share their legal theories and litigation strategies that led to their clients’ extraordinary victories.

11:15 a.m.–12:15 p.m.

Let’s Get To Work! Defending & Advancing Employee Rights
Moderator: Daniel B. Kohrman
Speakers: Katherine L. Butler, The Honorable Jenny R. Yang & Mariko Yoshihara
The Trump Administration presents challenges as well as opportunities for defending and advancing equality and justice in the American workplace. As the largest plaintiffs’ employment law firm in the country, NELA will harness the power of its members to ensure that we continue to protect employee rights at the federal and state levels. Our esteemed panelists will share lessons learned from the best pro-employee state laws and how to apply them to those states that offer little or no protections to workers; utilizing legislative and legal strategies to advocate for employee rights in a hostile environment; and how to make the most of the guidance and regulations promulgated by the U.S. Equal Employment Opportunity Commission over the last eight years to protect your clients. Let’s get to work to defend and advance employee rights in the years ahead!

12:15–1:45 p.m.

Annual Luncheon & Keynote Address By The Honorable Kevin H. Sharp
The Annual Luncheon is included in the registration fee for Convention registrants only. Guest tickets for the Annual Luncheon may be purchased at the Registration Desk or at the door.

2:00–3:15 p.m.

CONCURRENT SESSIONS

Discovery

ESI On A Shoestring Budget
Moderator/Speaker: Brian E. Koncius
Speakers: Enrique Chavez & Ariana J. Tadler
Plaintiffs face unique challenges in preserving and collecting evidence from a variety of sources. To mount a strong offense, we must have a strong defense. Managing e-discovery is an increasingly important part of any law practice, but the price tag of many document management systems on the market often puts them beyond the reach of small law firms, nonprofits, and legal service organizations. Our panelists will discuss creative alternatives for handling electronic discovery, especially in class actions and other large and complex cases, when your financial resources are limited.

New Lawyers

Starting Out: Basic Skills Training For New Lawyers
Moderator/Speaker: Susan D. Motley
Speakers: Phillis h. Rambsy & Hunter A. Swain
For new lawyers and those new to employment law, this session will offer suggestions to help newer plaintiffs’ employment lawyers succeed, including substantive tips from case intake to case closing, and practical pointers on managing time, money, and people—including opposing counsel and themselves.

Trial Advocacy

Title VII & The Equal Pay Act: Dynamic Duo When Challenging Sex Discrimination In Compensation
Moderator/Speaker: Deborah Marcuse
Speakers: David Sanford & David E. Schlesinger
There has been an increasing trend of bringing both Equal Pay Act (EPA) collective actions and Title VII class actions in one case, and there have long been examples of such claims being combined in individual litigation. This panel will address the pros and cons of bringing both claims simultaneously, and provide advice on how to maximize the benefits and minimize the risks from this combination. Specific topics include managing the administrative exhaustion process where one claim requires exhaustion and the other does not; strategic and logistical issues in handling opt in collective action and opt out Rule 23 classes; considerations related to comparators; how the defenses under the EPA and the disparate impact/business justification defenses relate to one another; the impact of adding EPA claims on the statistical analysis; how to prove these claims; and settlement issues.

Representing Vulnerable & Underserved Workers

Representing Guest Workers In Civil Litigation
Moderator: Michelle Lapointe
Speakers: Christopher Benoit & Christopher M. Willett
Guest workers represent a significant and growing sector of the American workforce. They also are some of the most vulnerable workers in the country, often experiencing wage theft, discrimination, retaliation, and human trafficking. Despite the high incidence of abuse within this sector, guest workers face barriers to justice, including finding counsel and accessing the courts. Our panelists are experts in guest worker litigation and will review the nuts and bolts of litigating all aspects of guest worker cases under various statutes, such as the Fair Labor Standards Act, Trafficking Victims Protection Reauthorization Act, Racketeer Influenced and Corrupt Organizations Act, and Title VII. They will review the challenges with representing guest workers, including those related to immigration status, and recent victories that have considerably expanded the laws that protect these workers.

Ten Rules For A Successful Mediation
Moderator/Speaker: Dana L. Sullivan
Speakers: Allen S. Blair & Michael L. Russell
Too often attorneys believe that putting together a mediation statement and calculating damages is sufficient preparation for mediating a case. This presentation by two individuals who have practiced extensively in employment law and have mediated hundreds of cases as attorneys and mediators will provide the best practices for mediation preparation, preparing your client for mediation, engaging in conversations with the mediator in advance of mediation, and common impediments to settlement in the mediation process.

 

“Was It Something I Said, Or Just Who I Am?”: Hiring Discrimination Issues Under Title VII, The ADEA & ADA
Moderator: Dara S. Smith
Speakers: P. David Lopez & Marni Willenson
Despite being a key impetus for Title VII, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act, hiring discrimination against job applicants persists in the 21st century. The use of “objective” screening tools such as online job applications have not solved the problem but rather can impede transparency and create new methods to disfavor jobseekers on prohibited bases. In response, hiring discrimination has become an EEOC strategic enforcement priority. This session offers practical guidance and strategies for NELA lawyers to help their clients in hiring discrimination cases. The panelists will discuss potential solutions to key procedural, factual, and legal challenges in hiring cases—such as exhaustion, tolling of limitations, effective pre-complaint investigation, the scope of legal protections against “illegal questions,” handling inaccuracies in job applications, developing evidence of implicit bias and illegal disparate impact, and varying burdens of proof. Also included will be an up-to-the-minute report on the extent of EEOC’s progress in challenging hiring bias, and the agency’s plans for stepping up its game in the future. Finally, attendees can expect an update on significant legal developments, including recent decisions affording strong protection from religious bias for applicants under Title VII (EEOC v. Abercrombie & Fitch Stores, Inc. (US, 2015)), and limiting protection for applicants under the ADEA (Villarreal v. RJ Reynolds Tobacco Co. (11th Cir., 2016)).

3:45–5:00 p.m.

CONCURRENT SESSIONS

Discovery

Impact Analysis: When To Use It & The Statistics To Support It
Moderator/Speaker: Bruce B. Elfvin
Speakers: Adam T. Klein, Toni S. Locklear Ph.D. & Candis A. McGowan
In Texas Dept. of Housing and Comm. Affairs v. The Inclusive Communities Project, Inc., the U.S. Supreme Court, while extending disparate impact analysis to cases brought under the Fair Housing Act, reaffirmed the viability of that theory under both Title VII and the Age Discrimination in Employment Act. Since that decision, the Court alluded to disparate impact analysis in other contexts, such as in EEOC v. Abercrombie & Fitch Stores, Inc. and Young v. UPS. Issues of statistical proof, both for liability and damages, have also arisen (Tyson Foods v. Bouaphakeo). Special considerations can arise when an employer relies upon computerized screening instruments and “Big Data” to identify candidates for hire. This session will explore the current state of disparate impact theory and the benefits and pitfalls facing disparate impact litigation, such as statistical evidence of impact and causation versus statistical evidence of treatment, expert analysis and Daubert, and limitations on remedies.

Trial Advocacy

Witness Interviewing, Examination & Lie Spotting
Moderator: Ethan Levin-Epstein
Speaker: Philip Mullenix
Philip Mullenix, an attorney and frequent consultant to law enforcement, will share his strategies on witness interviewing, examination, and lie spotting. Since 1976, Mr. Mullenix has provided instruction to hundreds of attorneys, military, intelligence, law enforcement, and security personnel in the detection of deception, interviewing, and interrogation. Mr. Levin-Epstein is a NELA member and a seasoned trial lawyer with over 40 years of experience in criminal law. His criminal law practice has enhanced his ability to represent individuals effectively in their employment-related matters as there is significant overlap between the two fields and where clients face situations which have implications from both an employment and criminal perspective. This presentation will include many valuable tips and techniques for taking depositions and conducting direct and cross-examination at trial.

The Practicalities Of Litigating In Arbitration
Moderator/Speaker: Daniel M. Klein
Speakers: Kathryn Burkett Dickson & Shannon Liss-Riordan
Our speakers will provide guidance on how to litigate individual, multi-plaintiff, and class cases in the strange world of employment arbitration. Topics include the impact of not having a jury, the costs of arbitration, discovery in the arbitration system, the application of the American Arbitration Association’s employment rules rather than its commercial rules, fighting provisions in the arbitration agreement, and other practical issues. Learn where your litigation instincts will fail you, and where the hidden obstacles—for one side or the other—lie.

Defining “Employment” Relationships In The 21st Century
Moderator/Speaker: Justin D. Cummins
Speakers: Robert A. Canino & Catherine K. Ruckelshaus
Keeping up with the economic realities of a rapidly changing workplace may prove to be more difficult than “Keeping Up with the Kardashians.” For decades regulation of workplace fairness and the social safety net has been based on protections for “employees” administered by and through “employers”: minimum wage and overtime protections; collective bargaining rights; unemployment and health insurance; and workers’ compensation. Likewise, social security and income tax collection have been managed largely through the “employment” relationship. Recently, however, new technologies and business structures have built their businesses off the backs of “independent contractors,” disrupting traditional concepts of “employee,” “employer,” and “employment” and causing courts and the NLRB to review these business models closely and consider new theories of employer liability. Commerce has increasingly used sub-contracting, franchising, staffing agencies, and employee leasing—approaches that separate employees from enterprises for which they work and that fragment legal accountability. This panel will discuss recent developments in the evolving definition of an employee and employer, and examine litigation strategies for holding companies responsible for their workforce and the struggle to apply traditional concepts to these new circumstances.

 

Not Just Plain Vanilla: Creative Settlement Terms In Employment Disputes
Moderator/Speaker: Wayne N. Outten
Speakers: Sheila Engelmeier & Margo Hasselman Greenough
Not every settlement follows the same vanilla agreement template. This presentation is designed to provide advice on crafting creative settlement agreements in order to preserve our clients’ rights, collect the money the defendant agreed to pay, and other extraordinary circumstances that may arise. On the employee’s side, our speakers will address release of claims for employee benefits, agreements not to re-apply for employment, the use of ill-defined terms like “agents,” and more. On the employer’s side, they will discuss including provisions in the settlement agreement in case the defendant sells their business, if the defendant files for bankruptcy, and requiring individual owners to sign a confession of judgment.

 

The ADEA At 50: Opportunities, Challenges & The Need For Reform
Moderator/Speaker: Laurie A. McCann
Speakers: Dennis E. Egan & Cathy Ventrell-Monsees
In December 2017 the Age Discrimination in Employment Act (ADEA) will celebrate its golden anniversary as a part of U.S. civil rights law. The Act has eliminated maximum age restrictions in hiring—which used to be prevalent, as well as mandatory retirement in all but a few exempt professions. It is virtually the only basis for challenging a discriminatory reduction-in-force under federal law. Yet, in the eyes of many NELA lawyers the ADEA is a poor relative, trailing Title VII, the Fair Labor Standards Act (FLSA) and even the Americans with Disabilities Act (ADA) as a reliable means for challenging employer misconduct. At this pivotal moment in ADEA history, it is time to again take stock: To what extent does the Act provide valuable protection for older workers; to what extent is it more or less powerful than Title VII and the ADA; are there aspects of the ADEA that that need fixing, and if so, what are they and why? This session will offer ADEA litigation tips, a historical perspective on age bias law, and ideas about bringing the ADEA up to parity with Title VII.

6:00–7:30 p.m.

Annual Reception
The Annual Reception is included in the registration fee for Convention registrants only. Guest tickets for the Annual Reception may be purchased at the Registration Desk or at the door.

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