Program

Friday, April 12, 2019

8:00–9:00 a.m.

Registration & Continental Breakfast

8:45–9:00 a.m.

Welcome & Opening Remarks
Introductions: Terry O’Neill, NELA Executive Director, James H. Kaster, NELA President,
Rachel M. Bien & Rachhana T. Srey, Program Committee Co-Chairs

9:00–10:30 a.m.

Key Cases & Shifting Grounds In The FLSA
Moderator/Speaker: Fran L. Rudich
Speakers: David Borgen, Richard (Rex) J. Burch, Catherine K. Ruckelshaus

A lot has happened over the last two years! Wage and hour veterans will provide updates on these new developments and the shifting landscape. Among other topics, the panel will discuss changes in the DOL’s practices including the revival of opinion letters, updates on the overtime regulations, new exemption regulations expected in 2019, post-Epic Systems arbitration clauses, evolving independent contractor tests, changes in the tip credit arena, and more.

10:45 a.m.–12:00 p.m.

Understanding & Preparing To Address Unique & Current Defense Strategies
Moderator/Speaker: Bryan Schwartz
Speakers: Shannon Liss-Riordan, Juno Turner

Defendants continue to come up with new and devious defense strategies and we need to be ready to push back. Learn about how plaintiffs are responding to these strategies, including jurisdictional challenges under Bristol-Myers Squibb, efforts to disqualify plaintiffs’ counsel from representing individuals in arbitration, and uncommon exemption defenses.

1:15–2:30 p.m.

Concurrent Sessions

Wage & Hour Litigation Basics
Moderator/Speaker: Andrew Santillo
Speakers: Sarah Arendt, Caitlin Madden

Experienced wage and hour practitioners will discuss the nuts and bolts of wage and hour litigation, including types of claims and defenses, drafting the complaint to avoid a motion to dismiss, common discovery topics and defense tactics, and strategies for avoiding summary judgment and getting to trial.

Arbitration Case Law Update: Contract Formation & Unconscionability
Moderator/Speaker: David Seligman
Speakers: Michael Reed, Christina Thomas Mazaheri

The case law continues to develop and evolve in this area as more and more corporations are requiring their workforce to sign arbitration agreements as a condition of employment. These panelists will get you up to speed on case law regarding contract formation and defenses such as unconscionability.

2:45–4:00 p.m.

Concurrent Sessions

Top Ten Practical ESI Pointers For Wage & Hour Lawyers
Moderator/Speaker: Reena I. Desai
Speakers: Eric L. Dirks, Zachary C. Flowerree

Raise your hand if you consider yourself an ESI pro? Big defense firms have lawyers whose only job it is to deal with ESI issues. Most plaintiffs’ firms don’t have that luxury. And, the help that is out in the market right now is either too expensive or not targeted to plaintiffs’ lawyers. But, we cannot afford to fall behind. This panel of practitioners will share their top ten practical ESI pointers that every wage and hour lawyer should know, so that we understand everyday ESI terms, are equipped to actively participate in ESI conferences with defense counsel and the court, are able to draft a reasonable ESI protocol, and more.

Embracing A “New Federalism” In The Fight For Workplace Justice
Moderator: Peter Winebrake
Speakers: Brian D. Gonzales, Professor Annie Smith, Trent Taylor

For generations, plaintiffs' lawyers have relied on federal law and the federal judiciary as the primary guardians against workplace injustice. But is such reliance misplaced in 21st Century America? This program will describe how lawyers are turning to state courts and exploiting state laws to expand wage and hour rights beyond the confines of the FLSA. The program also will address how state legislatures and agencies are poised to become the new battleground in the fight for workplace justice.

4:15–5:30 p.m.

Arbitration Administrators Hear From NELA Lawyers On The Challenges They Face In Arbitration
Moderators/Speakers: Michele Fisher, Justin Swartz
Speakers: Ann Lesser (Vice President of AAA), Kimberly Taylor (Chief Legal and Operating Officer of JAMS)

Arbitration is supposed to be cost-effective and efficient, but this has been far from the reality for many plaintiffs in the post-Epic Systems world. Challenges include: defendants who do not pay their fees; a roster of defense-friendly arbitrators; scheduling delays; the inefficiency of individually arbitrating multiple cases raising the same issues; among others. NELA lawyers will discuss these challenges with high-level administrators at AAA and JAMS and formulate potential solutions.

5:30–7:00 p.m.

Reception
Co-sponsored by Nichols Kaster, PLLP & The Employee Rights Advocacy Institute For Law & Policy

Saturday, April 13, 2019

7:30–9:00 a.m.

Registration & Continental Breakfast

9:00–10:15 a.m.

All Hope Is Not Lost: Post-Epic Systems Litigation Strategies!
Moderator/Speaker: Karla Gilbride
Speakers: Lauren E. Braddy, Catha Worthman

This panel will address the effects of Epic Systems on litigation in district court, discuss strategies for avoiding arbitration, including effective arguments for invalidating arbitration agreements and conditionally certifying a collective and getting out notice before opposing a motion to compel, and proceeding in parallel actions in court and arbitration when some clients have not signed an arbitration agreement or in California, under PAGA.

10:30 a.m.–12:00 p.m.

Concurrent Sessions

Effectively Managing, Litigating, And Trying Individual Arbitrations
Moderator/Speaker: Douglas M. Werman
Speaker: Matthew Dunn, Matthew C. Helland

Whether you are waging a mass individual arbitration ground war or getting ready to handle an individual arbitration hearing, this panel is designed for you. This panel of experienced attorneys, who have been at the forefront of the ground war game, will cover a variety of topics including the mechanics of, and case management tips for, filing and litigating individual arbitrations en masse, strategies for combatting the defendant's stall tactics, an effective discovery and trial plan for an individual arbitration hearing, and tips on reworking that trial plan if things don’t go your way.

Independent Contractors: Day Rates, “Salary” Guarantees, And Employee Status
Moderator/Speaker: Andrew H. Turner
Speakers: Andrew Dunlap, Rachel Terp

Panelists will update us on the current trends in independent contractor misclassification, including recent court decisions, FLSA vs. state law standards, and defense tactics. They will also discuss the industries where misclassification continues to be rampant, legislative and agency efforts to address these violations, and U.S. Department of Labor back-tracking.

12:00–1:15 p.m.

Lunch (On Your Own)

1:15–2:30 p.m.

Concurrent Sessions

Representing Low-Wage Workers & Immigrant Workers
Moderator: Bryce W. Ashby
Speakers: M. Nieves Bolaños, Rebecca Eisenbrey, Christopher J. Williams

Low-wage and immigrant workers are easily exploited and often become the victims of systemic wage and hour violations. Effectively representing these workers has and will continue to present unique challenges for private wage and hour lawyers. The panelists will discuss: the impact of immigration status on available relief; working with low-wage and immigrant-based community organizations; preparing clients for depositions and trial, including addressing immigration-related questions during the course of depositions; additional defense tactics and how to combat them; the legal implications for employers who report workers to ICE, and preventing and redressing retaliation.

Practical Advice For Locating And Communicating With Potential Plaintiffs And Cultivating New Cases Post-Epic Systems
Moderator/Speaker: Melissa Lardo Stewart
Speaker: Clif Alexander, C. Andrew Head

In the aftermath of Epic Systems, what avenues are available for plaintiffs’ lawyers to reach out to and communicate with workers interested in bringing individual arbitrations or identify workers who have opted out of their employer’s arbitration agreement? Practitioners will discuss how they have used various advertising strategies and mined their own contact lists to continue to exert pressure on employers by filing dozens or hundreds of individual cases in arbitration and the ethical issues such communications implicate, and how PAGA actions or arbitration agreements with opt-out clauses can be used to gain access to workers bound by arbitration.

2:45–4:00 p.m.

Concurrent Sessions

Cooperating And Collaborating With Other Plaintiffs’ Counsel In Wage And Hour Cases
Moderator/Speaker: Cornelia Dai
Speakers: Harris D. Butler III, Christopher McNerney

Post-Epic Systems, it has become even more critical that plaintiffs’ counsel team up and work together to wage a strategic war against defendants. The panel will address the different ways that counsel may collaborate with one another, types of co-counsel fee agreements, methods of allocating fees between firms, and what steps you should take to avoid filing on top of another plaintiffs’ lawyer. The panelists will also provide insight about the “reverse auction” problem, the “first-filed” rule, and contests over who should be appointed as class counsel.

Calculating Damages: Views From An Expert And Lawyers
Moderator/Speaker: Dan Getman
Speakers: Michael A. Hodgson, Dwight Steward, Ph.D.

One size doesn’t fit all when it comes to calculating damages. This panel breaks down the ins and outs of calculating and proving damages (and potentially liability) in wage and hour class and collective actions. The panelists will delve into best practices for obtaining the right types and formats of data, useful methods and tools for analyzing large and complex datasets, and the important question of whether and when to use an expert witness versus an FRE 1006 summary witness.

Program subject to change without notice.
*Invited but not confirmed.