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FRIDAY, MARCH 8, 2013
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7:30–9:00 a.m.
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Registration & Continental Breakfast
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8:45–9:00 a.m.
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Welcome & Opening Remarks
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9:00–10:30 a.m.
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Significant Legal Developments In Wage & Hour Law
Moderator & Speaker: Laura L. Ho
Speakers: Richard J. (Rex) Burch & Michael Sweeney
Our panel of experts will provide an overview of the most significant legal developments in wage and hour law, with a focus on the substantive law of the Fair Labor Standards Act. Topics to be addressed include important developments with respect to collective and class action certification, damages, and settlement. The panelists also will discuss opportunities for administrative advocacy before the U.S. Department of Labor.
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10:45 a.m.–12:00 p.m.
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Strategic Thinking In Defeating FLSA Defenses
Moderator & Speaker: David L. Kern
Speakers: Amanda A. Farahany & James M. Finberg
The defense bar is waging a well-organized and well-coordinated attack against FLSA collective actions, and the battle lines are becoming more focused. Such tactics include expanding the application of the fluctuating work week method of payment into more areas of FLSA litigation, as well as modifying and defeating the long-held principle that all exemptions to the FLSA must be narrowly construed in favor of employees. This session will center on the areas of attack of greatest concern to workers' rights advocates, and will engage the audience in thinking strategically about how to defeat them.
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12:00–1:15 p.m.
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Luncheon & Keynote Address
Nancy Leppink, former Acting Administrator of the U.S. Department of Labor's Wage & Hour Division, will deliver the Keynote Address. Ms. Leppnick is now the Assistant Commissioner for Enforcement of the Minnesota Department of Commerce.
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1:30–2:30 p.m.
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Concurrent Sessions
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Making The Economics Work In Cases Brought On Behalf Of Low-Wage & Immigrant Workers
Moderator & Speaker: Aaron Johnson
Speakers: Robin B. Potter & Edward J. Tuddenham
Low-wage and immigrant workers are among the most poorly paid in our country's workforce. The economics of their cases make it difficult for them to find legal representation when their rights are violated, especially in light of the costly scorched-earth tactics that employers aggressively pursue in these cases. Our advocates will share practical strategies and tips to minimize your risk in representing this significant component of the labor force and to maximize recovery for your clients. |
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The Day In The Life Of An FLSA Collective Action
Moderator & Speaker: Rachhana T. Srey
Speakers: Marguerite M. Longoria & Andrew Santillo
Designed for new practitioners, this presentation will cover the life of an FLSA case from initial intake to trial. Topics include the tricky issues that arise during the various phases, such as screening for bankruptcy issues and arbitration agreements during intake, drafting declarations for conditional certification to avoid the attacks on declarations, avoiding common mistakes in settlements, hard lessons learned, and more.
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2:40–3:40 p.m.
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Concurrent Sessions
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Tackling Proof Of Hours & Wages: Beyond Mount Clemens Pottery
Moderator & Speaker: J. Derek Braziel
Speakers: Dawson Morton & Anna P. Prakash
This session will examine the practical problems, methods, and techniques for proving wage and hour cases where employer pay records are missing, incomplete, or falsified. Issues to be explored include demonstrating that an employee actually worked on the job when pay records do not show that employee; unmasking falsified records in order to trigger the Mount Clemens Pottery standard and convincing judges and juries to apply that standard favorably to your case; combating inevitable counter-estimates of hours and wages from the employer or from co-workers still employed and dependent on the employer; and dealing with allegations that the plaintiff was responsible for the incomplete or false pay records. |
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Is Your Client An "Employee" Or "Independent Contractor"?
Moderator: Justin M. Swartz
Speakers: Eve H. Cervantez & Catherine Ruckleshaus
This panel of veteran practitioners will offer practical pointers on how to litigate an independent contractor case. They will address topics ranging from class and collective certification, depositions, how to respond to overbroad discovery requests seeking everything from the plaintiff's tax returns to other non-relevant discovery requests unrelated to whether the employer had "control" over the plaintiff, summary judgment, decertification, and issues relating to "joint employers," multiple defendants, and integrated enterprises.
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4:00–5:00 p.m.
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Concurrent Sessions
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Exemptions, Exemptions, Exemptions!
Moderator & Speaker: Jahan C. Sagafi
Speakers: Rachel M. Bien & Timothy C. Selander
This presentation will provide an overview of the hottest issues involving the FLSA's panoply of exemptions that are often abused by employers to deny workers their fair wages. Our speakers will highlight the pitfalls of which you should be aware, and share strategies to defeat the application of the exemptions. |
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Use Of Experts In Wage & Hour Cases
Moderator & Speaker: Marni Willenson
Speakers: Dorothy A. O'Brien & Sam J. Smith
Do we really need experts in wage and hour cases? Our own experts will debate the pros and cons of using them. They will address when you need experts and when you do not, what you need them for, avoiding or defeating Daubert challenges, and how to control the costs of an expert. They also will explore the use of survey experts, misclassification experts, statisticians, and others.
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5:00–7:00 p.m.
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Reception
Co-sponsored by The Employee Rights Advocacy Institute For Law & Policy
Join The Institute in celebrating its fifth anniversary of advancing equality and justice in the American workplace!
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SATURDAY, MARCH 9, 2013
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7:30–9:00 a.m.
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Registration & Continental Breakfast
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9:00–10:30 a.m.
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Challenging Forced Arbitration Of Statutory Workplace Rights
Moderator & Speaker: Michael Rubin
Speakers: F. Paul Bland, Jr. & Shannon Liss-Riordan
The U.S. Supreme Court's decisions in Stolt-Nielsen and Concepcion have made it easier for employers to force workers into individual arbitration. What can advocates do to stop this trend? Will D.R. Horton provide the answer? Can Concepcion, which dealt with consumer class actions, be meaningfully distinguished from employment class and collective actions brought to enforce statutory workplace rights? Our veteran advocates will answer these questions and more to help you successfully challenge the pernicious practice of forced arbitration.
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10:45–11:45 a.m.
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Ethical Considerations In Representing Workers In Wage & Hour Actions
Speakers: Jonathan A. Bernstein & Michael T. Kirkpatrick
Myriad ethical considerations arise in a variety of contexts when representing workers in wage and hour actions. These include representing low-level foremen and subcontractors along with the workers in their crew; outreach and solicitation by non-profit law firms and organizations; working in collaboration with community-based organizations and labor unions; representing workers who also are being organized by a community-based group or labor union; and representing the community-based group or labor union as a client. Our experts will help you avoid critical pitfalls in these and other situations.
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11:45 a.m.–1:00 p.m.
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Lunch (On Your Own)
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1:15–2:15 p.m.
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Concurrent Sessions
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Representing Transnational Workers In U.S. Employment & Labor Law Proceedings:
It Can Be Done!
Moderator & Speaker: Jessica Stender
Speakers: Enrique Martinez & Naomi R. Tsu
The number of transnational workers continues to grow, yet all too often they confront barriers to justice with regard to their labor and employment rights. The challenges of representing transnational workers in U.S. proceedings can seem daunting and may cause advocates to shy away from otherwise strong cases. This session will explore the tools and techniques that exist to allow private and public interest firms, as well as non-profit organizations, to represent successfully workers who have returned, or will likely return, to their home countries in various types of labor and employment cases. |
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Trying Wage & Hour Class And Collective Actions
Moderator & Speaker: David Borgen
Speakers: George A. Hanson & Paul J. Lukas
Employers increasingly are unwilling to settle collective or class actions, even after they are certified. Our panelists have tried such cases to judgment and will share lessons learned from their experiences. Topics include discovery strategies, multi-district litigation, maximizing opt-in participation, recovering attorney's fees, and overcoming stonewalling tactics by your opponent.
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2:25–3:25 p.m.
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Concurrent Sessions
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Combating Retaliation In Wage & Hour Cases
Moderator & Speaker: Justin D. Cummins
Speakers: Jenifer J. (J.J.) Rosenbaum & Maureen A. Salas
This presentation will address how to prevent retaliation in wage and hour cases, and where it has occurred, successfully litigating retaliation claims under the FLSA, state wage and hour laws, the National Labor Relations Act, and other worker protection statutes. Our veteran practitioners will share winning strategies to integrate prosecution of the retaliation claim with the underlying wage and hour action, and will explore special issues arising for undocumented workers. |
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Who Is An Employer Under The FLSA?
Moderator & Speaker: Bill Beardall
Speakers: Rachel Geman & Todd F. Jackson
Our experts will explore the possibilities of who is an "employer" under the FLSA to maximize liability for violations of your client's rights. Issues to be addressed include successor liability, and when owners, officers, and managers of the company can be considered as joint employers or individually liable for FLSA violations.
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3:45–5:00 p.m.
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Doing Well By Doing Good: Fulfilling The Promise Of The FLSA
Moderator & Speaker: James M. Finberg
Speakers: Kim Bobo, James H. Kaster & Hina B. Shah
Private enforcement is a powerful tool in fulfilling the promise of the FLSA, especially in collaboration with pro bono lawyers, workers, unions, and workers centers. Join our panelists for a discussion on how to navigate the complicated issues that may arise in the course of such litigation, including differing organizing and litigation strategies, ethical issues, and potential conflicts. They also will explore approaches to involve workers in their litigation so it is an empowering experience for them by becoming stronger and more effective as clients; being better prepared to recognize and prevent violations by employers in the future; enabling them to educate their fellow workers on how they can use the legal process to enforce their rights; and becoming employee rights advocates themselves.
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5:00 p.m.
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Adjournment
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