Thursday, June 23, 2016

    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

9:30–10:45 a.m.

Implicit Bias In The Courtroom
Moderator/Speaker: Charlotte Fishman
Speakers: The Honorable Bernice B. Donald, Professor Anthony Greenwald & Therese M. Lawless
Given the substantial and growing scientific and popular literature on implicit bias in everyday life, the time has now come to address a number of questions: How can we use the latest knowledge about the operation of implicit biases (cognitive, stereotype, ingroup/outgroup) to enhance our ability to prevail in cases alleging discrimination in the workplace? What tools do plaintiff-side employment lawyers have to counter bias at key junctures, whether in arguing pre-trial motions, during jury selection, or at various points during the trial itself? Are there “de-biasing” techniques that our members have used to level the playing field for plaintiffs? Have they been effective or counterproductive? Are there innovative ways we can reframe certain types of cases (e.g., failure to hire or promote; disparate treatment; hostile work environment) that can strengthen a jury’s ability to connect the dots between differential treatment and plaintiff’s protected status? NELA members will have an opportunity to engage in a conversation with a distinguished panel of experts about how the science of implicit bias has changed the practice of employment law in the 21st century, and to share “lessons learned” in the ongoing battle to overcome fact-finder bias in the courtroom.

11:15 a.m.–12:15 p.m.

Litigating Under The New Federal Rules Of Discovery
Moderator/Speaker: Jennifer I. Klar
Speakers: The Honorable David G. Campbell & The Honorable Lee H. Rosenthal
Proportionality will be the new buzzword in discovery, and there are other changes to the Federal Rules of discovery that you need to know to litigate effectively on behalf of your clients. By the time of our Convention, the Federal Judicial Center and Duke Law School will have convened approximately 15 sessions in cities across the country, primarily educating judges, law clerks, and lawyers who pay the admission fee about guidelines and best practices to use to enforce the new discovery rules. Besides this significant educational effort, there may be case law developing interpreting the application of the new rules. Our distinguished panelists, who are veterans of the proportionality skirmishes throughout the country, will share strategies and tips that you can use to take advantage of the new rules and to minimize any adverse impact on your cases.

12:15–1:45 p.m.

Annual Luncheon
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

How To Deal With Discovery Of ESI
Moderator/Speaker: Linda M. Correia
Speakers: Brian E. Koncius & Ariana J. Tadler
Our panelists will discuss strategies to ensure you obtain everything that is relevant and responsive to your discovery requests for production of electronically stored information. Among the issues they will address are: (1) preparing for a Rule 26(f) conference on these issues; (2) when it is beneficial to conduct a 30(b)(6) deposition of an IT person to learn about storage systems and how information is stored; (3) identifying search terms without eliminating responsive information you should be getting; (4) if you know the defendant is using technology assisted review, how your clients can benefit from it without falling into the proportional expense trap; and (5) ascertaining custodians whose ESI should be searched.

Nuts & Bolts

Workplace Investigations From Start To Finish
Moderator/Speaker: Michelle Matheson
Speakers: Sue Ellen Eisenberg & Keith Rohman
Whether it is an investigation of a sexual harassment allegation, an investigation relating to an EEOC charge, or an investigation of a problem employee, you need to be prepared before you begin. This session will provide a practical overview and a step-by-step guide of workplace investigations, with special emphasis on pre-investigation considerations. Topics will include such critical issues as how and when to start an investigation, who should conduct the investigation, who should be interviewed and in what order, what questions should be asked, and how to document your conclusions.

Trial Advocacy

Proving A Pregnancy Discrimination Case After Young v. UPS: Comparators, Statistics & Accommodation
Moderator/Speaker: Brian East
Speakers: Sharon Fast Gustafson & Liz Morris
The U.S. Supreme Court’s decision in Young v. UPS last year created a new and complicated burden shifting scheme under the familiar McDonnell Douglas standard. The application of this standard in reasonable accommodation cases for pregnant workers will depend on how federal district and circuit courts construe (adapt, explain, broaden, or narrow) this new standard. Young is ripe for judicial interpretation and a first year review of its impact is essential for practitioners in this field to know. It may be that relying on the Pregnancy Discrimination Act is not the best way to litigate accommodation cases when state and local governments are increasingly passing accommodation bills that focus on needs test as a basis for requesting accommodation, as opposed to having to prove one’s client has a disability. NELA members cannot ignore the import of Young v. UPS.

Wage & Hour

The ABC’s Of Litigating Wage & Hour Collective And Class Actions
Moderator/Speaker: Anna P. Prakash
Speakers: William C. Jhaveri-Weeks, Lawrence Morales II & Michael Palmer
From making the right allegations to writing a persuasive brief to front-end loading your case with consents from opt-ins, this panel will examine the basics of how to litigate collective actions under the FLSA and class actions under applicable state laws. Our expert practitioners will explain how to address scheduling issues, getting people to join the case (even before it is filed), and how to improve the chances for conditional or class certification. They will also discuss discovery plans and litigating throughout the merits phase. Whether you are looking at a local case with a few potential class members or a companywide case with thousands of potential participants, practitioners who have never handled these cases or only handled a few of them will benefit from the panelists’ advice and learn how to avoid pitfalls in this type of litigation.

California Employment Law

Incorporating The Newly Adopted Employment Regulations Into A Winning Litigation Strategy
Moderator/Speaker: Brian C. Sperber
Speakers: Rachael Langston & Noah D. Lebowitz
Our panelists will provide a comprehensive review of the amendments to Fair Employment and Housing Act and California Family Rights Act regulations that were recently promulgated and adopted by the California Fair Employment and Housing Council, and will discuss the ways in which the new regulations can be used to supplement and strengthen the arguments that practitioners make on behalf of their clients.

 

Representing The Executive Whistleblower
Moderator/Speaker: Lisa J. Banks
Speakers: Tammy Marzigliano & Jordan A. Thomas
Our veteran practitioners will address issues that arise when representing a corporate executive whistleblower, from intake through settlement. When an executive comes into your office for a consultation, what facts might form the basis of a whistleblower claim? The lawyer must be cognizant of these issues, and the questions to ask, as many corporate executives who have been fired (or not) may have whistleblower claims under various federal and state statutes, or possess information that could lead to an award under one of the new whistleblower reward programs, such as the Securities and Exchange Commission (SEC) or Commodity Futures Trading Commission. Because of the unique position held by corporate executivesfor example, C-Suite executives, lawyers, and compliance or HR officers— issues may arise that do not for other employees and whistleblowers regarding privilege, fiduciary duty, purloined documents, and, in the case of HR/compliance professionals, the ability to bring claims of retaliation at all. Special issues also arise when drafting settlement agreements for executive whistleblowers, such as for those who have provided information to the SEC Whistleblower Program.

 

Breaking Into The Field: A How-to Guide For Aspiring Workers’ Rights Advocates
Moderator/Speaker: Clark Taylor
Speakers: Jean K. Hyams, Anna Y. Park & Matthew Sirolly
Law students and recent graduates are invited to join NELA and The Employee Rights Advocacy Institute For Law & Policy (The Institute) for an engaging and interactive discussion on a career in plaintiffs’ employment law. Experienced employment law practitioners will answer questions on how to enter the plaintiffs’ employment law field and tips on identifying and securing job opportunities in this ever-changing area of the law. The panel will discuss what skills and experience can help law students be successful employee advocates as they begin their legal careers. NELA and The Institute encourage Convention attendees to participate in this program as part of our continued commitment to developing the next generation of employee advocates.

3:45–5:00 p.m.

CONCURRENT SESSIONS

Nuts & Bolts

The NLRA Covers Nonunion Employees Too!
Moderator/Speaker: Yona Rozen
Speakers: Craig Becker & Thomas J. Gagliardo
The National Labor Relations Act (NLRA) protects the right to join a union and regulates union-management relations, however, nonunion employees are covered by the NLRA too. Our speakers will review the circumstances under which the NLRA protects nonunion workers, such as when they are engaged in concerted activity to improve working conditions, as well as the application of the anti-retaliation provision of the NLRA to employees who in concert with others complain internally about discrimination or sexual harassment and assist with identifying witnesses. They will also discuss class action waivers, access to the employer’s electronic communications systems, and social media posts by employees about the workplace.

Trial Advocacy

Picking A Winner
Moderator: Subhashini Bollini
Speakers: Randolph H. Freking, Darold Killmer & Cynthia Forman Wilkinson
What should we look for in deciding whether to take a case all the way to trial? In addition to having a case that is a winner under the law and being well-prepared for trial, what are some key criteria that make a case a good one to invest in for the long haul? A panel of successful NELA trial lawyers will discuss what makes a case a winner and offer advice on what to look for from when we select a case to when we reject a defendant’s last-minute settlement offer.

Wage & Hour

Planning For A Wage & Hour Trial—Starting With Discovery
Moderator: Cornelia Dai
Speakers: James M. Finberg, George A. Hanson & Jason C. Marsili
With class and collective action cases going to trial more frequently, veteran practitioners will provide insight on shaping discovery, crafting successful trial plans to support class certification and defeat decertification, and how to present a winning wage and hour claim in trial. Topics will include representative evidence, use of experts, damages models, and jury selection.

California Employment Law

Advanced PAGA Issues
Moderator: Cynthia L. Rice
Speakers: Thomas M. Diachenko & Michael D. Singer
Our presenters will address recent developments and advanced issues relating to the Private Attorney General Act (PAGA). More than just the basics, this panel will discuss: (1) discovery in PAGA actions (as addressed in Williams v. Superior Court); (2) briefing PAGA penalties and opposing reductions in penalties; (3) effectively opposing attempts to impose class certification-type requirements in PAGA actions (as addressed in Ortiz v. CVS Caremark); (4) trying PAGA claims; and (5) issues that arise when PAGA claims are brought in conjunction with other Labor Code violations (such as bifurcation and arbitrability).

 

What I Wish I Knew When I Was Starting Out As A Plaintiffs’ Employment Lawyer
Moderator/Speaker: Nina T. Pirrotti
Speakers: Elissa J. Hobfoll, Whitney Judkins & Brian Rochel
NELA members will cover a breadth of topical areas that they have learned and wish they would have known as new plaintiffs’ employment lawyers. They will provide practice tips, strategies, and pointers on client intake and interactions, dealing with opposing counsel, taking and defending depositions, discovery, summary judgment, preparing for trial, and more. While this presentation is aimed at newer lawyers, it will assume the audience knows the basics of each substantive area and thus will focus on more advanced techniques and concepts that the panelists believe a newer lawyer can learn from and integrate into their practice in the near future.

 

Forensic Mental Health Experts: Understanding Yours & Undercutting Theirs
Moderator: Kelly Brandon
Speakers: Paige Fiedler, Louise Fitzgerald, Ph.D. & Heather Newsom Leonard
Emotional distress evidence is an extremely important piece of the damages puzzle for employment plaintiffs. This presentation will provide litigators with insight into the minds of psychological experts; the testing provided to clients; and how to present evidence effectively and counter the defense at trial regarding complex medical evidence.

6:00–7:00 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.