Program: Wednesday | Thursday | Friday | Saturday | Program Highlights

FRIDAY, JUNE 22, 2012

7:00 a.m.

Tobias 5K Run

7:00-9:00 a.m.

Registration & Continental Breakfast


Emerging Issues

Litigating ADEA Claims After Gross v. FBL Financial Services, Inc.
Moderator/Speaker: Eric M. Gutiérrez
Speakers: Jennifer S. Goldstein & Laurie A. McCann

This panel will focus on how the U.S. Supreme Court's 2009 decision has affected the ability of age discrimination plaintiffs to vindicate their rights under the Age Discrimination in Employment Act. Among other issues, the panelists will examine how the federal courts of appeals are interpreting Gross; what employee rights practitioners are doing to limit the effects of Gross in their cases; how they are tailoring their discovery to prove "but for" causation; and what instructions they are giving to juries.
  Employment Law 101

Cannot Practice Without It: Claim Spotting 101
Speakers: Kathleen M. Cahill & Robert J. Truhlar

Join this dynamic, interactive workshop to build your skills in claim identification and selection. Two complicated fact patterns will be unpacked (one relating to private employment and the other to public employment) challenging us first to identify all potential claims that could be brought—and working to assess which claims should be brought. The panelists will identify a broad array of potential claims, both common law and statutory, then work with the audience to analyze such critical issues as the strengths and weaknesses of the available claims; the merits of bringing certain claims in combination with others; the timing of bringing the different claims; mixing and managing different elements of proof corresponding to multiple claims; prioritizing the claims and optimizing case management; stacking remedies to maximize damage awards; crafting verdict forms to maximize damages; attorneys' fees implications, and knowing when less is more, or when more is more!
  Trial Advocacy

Defense Counsel's Objectives When Taking The Plaintiff's Deposition
Moderator/Speaker: Amy L. Coopman
Speakers: John R. Ates & Lewis H. Chimes

Your opposing counsel has only three objectives when deposing your client: to create a record which will support a dispositive motion, to minimize your client's claims for damages, and to obtain testimony which will be used to impeach your client at trial. Fully grasping these objectives prior to the deposition will help you to develop strategies to prevent your case from disappearing into the "summary judgment abyss." Our panelists include a NELA member who is a "recovering" defense lawyer, as well as NELA members who will discuss the creative and effective strategies that they have used to protect—and to improve—their clients' claims at deposition.
  California Employment Law

It's Not Just About Sex: How To Present & Prove Harassment Claims Based On Other Protected Characteristics
Moderator: Carol Gillam
Speakers: Darci E. Burrell & Gail A. Glick

Gather practical tips from expert trial lawyers on how to frame and prove harassment and hostile work environment claims that are not based on gender or sexual orientation. This presentation will focus on what is different about workplace harassment based on race, national origin, disability, age, and religion.

Representing Federal Employees: Preparation For & Trial Before The EEOC
Moderator/Speaker: Bruce B. Elfvin
Speakers: Susan E. Jewell & David Weiser

Intended for attorneys at the intermediate and advanced levels, this panel of experienced practitioners representing federal employees will examine a variety of issues confronted in the world of federal employee litigation before the U.S. Equal Employment Opportunity Commission. Differences with private sector representation will be highlighted. This presentation will focus on advocacy in individual cases and will identify effective strategies in both the preparation stage and presentation stage at trial before the administrative judges of the EEOC. The advantages and disadvantages of various federal fora will be discussed, as will the obstacles and opportunities presented in mixed cases before the U.S. Merit Systems Protection Board.

The Ties That Bind: Offensive & Defensive Navigation Through Restrictive Covenants
Moderator/Speaker: Alice W. Ballard
Speakers: Nola J. Hitchcock Cross & Michael J. Leech

Many new clients who walk in the door have post-employment issues with their former employers, sometimes without knowing it. Representing them effectively requires identifying and dealing with non-compete, non-solicitation and often onerous confidentiality agreements, as well as being certain that they understand limits on their conduct before employment ends. Former employers may go after the employee in court or may threaten new or prospective employers, leaving the employee without a livelihood even though the employee is right. This session will explore the practical and strategic tools that can help these clients, as well is outlining some innovative legal theories that may provide relief or leverage in certain situations. Attendees are encouraged to bring their ideas and brainstorm new approaches to protecting our clients in this area.
10:45 a.m.-12:00 p.m. CONCURRENT SESSIONS
  Emerging Issues

Reasonable Accommodation & Other Trends Under The ADAAA
Speakers: Brian East & The Honorable Chai R. Feldblum, U.S. Equal Employment Opportunity Commission

Join EEOC Commissioner Chai Feldblum and NELA's disability rights guru Brian East for an examination of the contours of "reasonable accommodation" and other emerging trends under the Americans with Disabilities Act Amendments Act. Learn first-hand about the EEOC's soon-to-be issued guidance regarding reasonable accommodation, which will place new emphasis on accommodating otherwise qualified applicants and employees with disabilities.

  Employment Law 101

Visualizing Your Evidence
Moderator: Rebecca M. Hamburg
Speakers: David M. deRubertis, Karen Jo Koonan & Laura Carlin Mattiacci

Telling your story visually can be a critical tool to catch the fact-finder's attention—whether it is the judge, jury, arbitrator or mediator—and help them retain what you have told them and emphasize your themes. Our experts will explore the use of demonstrative evidence, technology, and other techniques to help you convey your client's story, impeach witnesses, and more.
  Trial Advocacy

Jamming The Radar: Appellate Arguments To A Hostile Judiciary
Moderator: Matthew C. Koski
Speaker: Michael T. Anderson

It is not surprising to any NELA member that the judiciary has become more hostile to employees in recent years. Mr. Anderson will speak about the tactics of persuading hostile judges to rule for workers, even when their ideological sympathies dictate otherwise. Based on over 20 years of experience in the federal appellate courts representing unions and workers, he will suggest that success often depends on clarity and vividness of language, which is inseparable from clarity and force of thought. Using Orwell's Politics and the English Language as a guide, Mr. Anderson will walk you through a PowerPoint® presentation of over a dozen common mistakes in legal research, brief writing, and oral argument that leave plaintiffs' employment lawyers vulnerable to unsympathetic courts.

The Effects Of Immigration Status On Employment Litigation
Moderator: William R. Tamayo
Speakers: Alejandro Caffarelli & Cynthia L. Rice

Given the increase in anti-immigrant sentiment and the use of immigration status to intimidate, coerce, or otherwise chill workers from enforcing their rights, our practitioners will discuss how to handle immigration status issues at intake, when filing the complaint, in discovery, and at trial. This presentation will also address what questions to ask a client about his or her immigration status, when to seek immigration counsel, and using protective orders and motions in limine to prevent inquiry into immigration status to ensure that undocumented workers can pursue their civil rights.

FLSA Misclassification Cases: Combating The Fluctuating Workweek Defense
Moderator/Speaker: Joseph H. Gillespie
Edmond S. Moreland & Guy B. Wallace

Over the past few years, the Fair Labor Standards Act has been negatively changed by courts retroactively applying the "fluctuating workweek" method of calculating owed overtime to misclassified workers. Simply stated, this method allows the defendant to pay damages to harmed employees at one-half times their regular rate for any hours worked over 40 in a workweek instead of 1.5 times their regular rate, which lowers their damages by approximately two-thirds or worse. Our wage and hour practitioners will discuss how the courts are getting this issue wrong; arguments that plaintiffs' lawyers need to make in these cases; and discovery strategies to obtain facts that will help you beat back this bad defense.

The Ins-And-Outs Of Corporate Investigations
Speakers: Nancy Bornn & Ronald J. Nessim

Although employers are increasingly turning to internal investigations as a regular part of their toolkit in responding to employee charges of discrimination or corporate malfeasance, this process remains largely relegated to the status of a mystic art. This session will address the nuts-and-bolts of corporate investigations and cover the current state of the law on a number of issues commonly confronted by counsel representing witnesses (including the complainant) in an investigation. Topics include techniques for preparing your client for an investigation; how to deal with the obligation of witnesses to cooperate in an investigation; conflicts of interest and joint representations in investigations; the right to counsel in investigations; key ethical rules in the context of an investigation; tape recording; investigator bias and how to force a fair investigation; how to disqualify an investigator or counsel; who should pay for fees and costs of an investigation; and advising your client about how to proceed in the aftermath of an investigation.
12:00-1:30 p.m. Box Lunch; NELA Members Forum; Roundtable Discussion With EEOC Officials; Committee & Practice Group Meetings
  Emerging Issues

Cutting-Edge Issues In Winning Section 216(b) Collective Actions
Moderator/Speaker: David Borgen
Speakers: Rachhana T. Srey & Michael Sweeney

NELA lawyers face many difficult challenges in winning collective actions in federal courts. These include battling over communications with potential opt-in plaintiffs and employer efforts to chill participation in FLSA collective actions through retaliation and improper communications. This presentation will discuss how to respond and counteract efforts to chill participation, including taking steps to prevent improper communications, monitoring defendants' class communications, when to raise issues, how to frame the issues, remedies for improper defendant behavior, and how to increase class participation. In addition, the panelists will explore the hot issues that provide the basis for successful collective action claims, defeating decertification motions, settlement issues, and obtaining attorneys' fees in collective actions.

  Employment Law 101

Exploring Successful Themes & Strategies In Race And National Origin Discrimination Claims
Moderator/Speaker: Professor Herman N. (Rusty) Johnson, Jr.
Speakers: Christopher Ho & Diane S. King

Join our panel for an advanced presentation on selected themes and strategies for your next race and national origin discrimination case. Mr. Ho will discuss the need and process for obtaining protective orders on behalf of undocumented workers where the employer attempts to discover their immigration status. Ms. King will share her themes and strategies used in class actions against Yellow Cab and Swift, as well as the special challenges that arise in these cases and how to address them. Professor Johnson will examine the use of disparate impact claims on behalf of minorities to combat selection practices conditioned on credit history and prior criminal convictions, and he will also review the predicted constitutional challenge to disparate impact claims.
  Trial Advocacy

Maximizing Damages Through Direct Examination
Moderator/Speaker: Jonathan J. Margolis
Speakers: Janice Goodman, Margaret A. Harris & Joseph V. Kaplan

Trial lawyers spend a great deal of time on cross-examination, and whole libraries could be filled with tomes on the subject. The skills associated with direct examination, however, are often given short shrift, and the result is that the examinations of our own witnesses frequently constitute the least interesting parts of the trial, which can have disastrous effects. The absence of a well thought out road map for direct examination is probably most harmful in proving damages—which almost always rests on the plaintiff and friendly witnesses—but weak questioning can hurt all phases of the plaintiff's case. Our veteran trial lawyers will discuss effective direct examination techniques and strategies to maximize your client's damages, including the use of lay witnesses and experts.
  California Employment Law

Alphabet Soup For Employment Lawyers: Exploring The Interaction Of Leave & Disability Laws
Moderator/Speaker: Elizabeth Kristen
Speakers: Sarah B. Schlehr & Curt Surls

Understanding and maximizing the rights available to employees under the varying and overlapping laws covering leaves of absence can be a full-time job for employment lawyers. It is imperative that every plaintiffs’ employment lawyer understands the myriad federal and state laws, evolving interpretations, statutory amendments, and agency rulemaking activity. Our expert panelists will distill the basics and explain the tricks and traps when these laws intersect.

Ethics & Social Media For Plaintiffs' Employment Lawyers
Moderator/Speaker: Brian E. Koncius
Speakers: Cara Greene & Richard Zitrin

Social media affects the entire legal process, from jurors tweeting while sitting in the jury box to judges exposing potential biases on their Facebook accounts. What are the ethical pitfalls of which plaintiffs' employment lawyers should be aware when using social media, and how can they be avoided? What are the legal-related uses of social media? What is the standard of care associated with social media? What are the ethical issues that arise when you use social media to advertise and market your law firm? Our speakers will explore the myriad ethical issues associated with social media as they affect plaintiffs' employment lawyers.

Navigating The Supreme Court's Shifting Standards Of Causation In Employment Discrimination Cases
Moderator/Speaker: Charlotte Fishman
Speakers: Professor Michael L. Foreman & Paul W. Mollica

What does "because of" mean in the post-Price Waterhouse world? How on earth can plaintiffs' attorneys navigate through the burden of proof confusion created by the U.S. Supreme Court in Gross v. FBL Financial Services, Inc., Staub v. Proctor Hospital, and CSX Transportation v. McBride? When do tort law concepts trump statutory objectives? When do they enhance them? How can we cut through the forest of "but for" causation, "a" motivating factor, "the" determinative factor, mixed motive, sole motive, "played any part," proximate cause, and other causation standards to craft jury instructions that are fair to our clients? Our panelists will help you navigate these and other thorny causation issues that arise in employment discrimination cases.
3:15-4:15 p.m.

Taking Advantage Of The New Discovery Protocols For Adverse Actions In Employment Cases
Moderator/Speaker: Joseph D. Garrison
Speakers: Kathryn Burkett Dickson, Herbert Eisenberg, Margaret A. Harris, Jonathan J. Margolis & Ellen J. Messing

In November 2011, the Federal Judicial Conference's Advisory Committee on Civil Rules adopted Initial Discovery Protocols for Employment Cases Alleging Adverse Actions, which individual judges across the country are pilot testing. Designed to replace the inefficient initial disclosures, the Protocols will enable you to get to the substance of your clients' cases quickly and at a lower cost to all involved. Join the members of NELA's Federal Rules Task Force, who played a significant role in the development of the Protocols, to learn about this project, how to expeditiously and effectively obtain necessary information to pursue your clients' claims, and make use of the optional protective order included with the Protocols.

This presentation is co-sponsored by The Employee Rights Advocacy Institute For Law & Policy, NELA's charitable public interest organization.
4:15–5:00 p.m.

Keynote Address By Professor Anita F. Hill
Introduction By Joseph M. Sellers
Professor Anita F. Hill, who embodies this year's Convention's theme, "Full Speed Ahead: From Inspiration To Action," will deliver the Keynote Address.

6:00-7:30 p.m.

Annual Dinner
Annual Dinner is included in the registration fee for Registrants only. Guest tickets may be purchased separately. Please note the Annual Dinner precedes NELA's Gala Fundraiser and is a separate event.

8:00–11:30 p.m.

2012 Gala Fundraiser: Honoring NELA's Champions
Join us for NELA's Annual Gala Fundraiser to support NELA's advocacy initiatives to advance equality and justice in the American workplace. The Gala Fundraiser follows NELA's Annual Dinner and is a separate event.

Program: Wednesday | Thursday | Friday | Saturday | Program Highlights

Gala Exhibitors Program Highlights Hotel Overview Materials Scholarships Registration