ABA Section of Labor & Employment Law 6th Annual … Section of Labor & Employment Law 6th Annual...

ABA Section of Labor & Employment Law

6th Annual Labor and Employment Law ConferenceOctober 31–November 3, 2012Westin Peachtree Plaza Hotel • Atlanta, Georgia

Program Guide

www.ambar.org/laborconference

ABA Section of Labor & Employment Law

6th Annual Labor and Employment Law ConferenceOctober 31–November 3, 2012 • Atlanta, Georgia

Welcome to Atlanta! We are delighted that you are joining us for the Section of Labor & Employment Law’s Sixth Annual Conference. An enormous amount of work by many talented and dedicated people has been done to ensure that this will be the preeminent 2012 CLE event covering the broad span of the practice of labor and employment law.

This booklet outlines all of the activities that the Section is sponsoring during the Conference. Given the wide range of programming at this year’s meeting, you will have the opportunity to earn a year’s worth of CLE credit at this one Conference. These programs will focus on the cutting-edge issues in the labor and employment arena, and will be presented by a superb faculty.

In addition to outstanding CLE, the Conference provides the perfect forum to learn more about the Section and the work of our substantive standing committees, as well as that of our administrative committees and our task forces. We encourage you to take this opportunity to learn about, and become more involved in, Section activities. There will be a table with sheets to sign up for and express your interest in various activities of the Section, such as our trial advocacy, law student outreach, and pro bono initiatives, and the publications and other work of our standing committees.

We hope you will attend the social events at the Conference as well, to meet other attendees and the speakers and government officials who are here. Our Welcome and First-Time Attendee/New Section Member Receptions, our Diversity Reception, and Friday’s Conference Reception should be great opportunities to mingle.

We would be remiss if we did not thank our Conference Planning Committee Co-chairs and Vice Chairs, CLE/Institutes and Meetings Committee Co-chairs, and all of the Track Coordinators. These members have been working non-stop for more than a year to make this Conference a success.

We are interested in your thoughts and feedback as we plan our Seventh Annual Section Conference for November 6–9, 2013 in New Orleans.

Again, welcome to the Conference and to Atlanta!

Sincerely,

Stewart S. Manela Joel A. D’AlbaSection Chair Section Chair-Elect

2012 Conference Planning

CommitteeConference Co-ChairsJames F. Allmendinger

Union & EmployeeJonathan Ben-Asher

EmployeeAngie Davis

EmployerEric W. Iskra

Employer

Conference Vice ChairsDavid Borgen

Employee Melinda Burrows

Employer Richard Rosenblatt Union and Employee

Julie A. TottenEmployer

George L. Washington, Jr.Employer

Conference Co-Chairs Emeritus

Douglas E. DexterEmployer

Justin M. SwartzEmployee

CLE/Institutes and Meetings

Committee Co-ChairsPaula G. Ardelean

EmployerKaren N. Neilsen

Public Julie Richard-Spencer

Union and EmployeeRoberta Steele

Employee

Council LiaisonsBarbara J. D’Aquila

EmployerWilliam Lurye

Union and Employee

Program information is available on the Section website at

www.ambar.org/laborconference.

Follow us on Twitter

Connect with us on Facebook

Connect with other Conference attendees before, during and after

the meeting. Link to the pages from the Conference webpage at

www.ambar.org/laborconference.

6th Annual Labor and Employment Law Conference

From the Host CommitteeTogether with our Section colleagues, it is our pleasure to welcome you to Atlanta, a city rich in culture, history, diversity, progress and the site for this year’s 6th Annual Labor and Employment Law Conference. Located at the popular Westin Peachtree Plaza Atlanta, the Conference is ideally situated to take advantage of all that Atlanta has to offer. Whether it is world class shopping, fine dining, theaters, museums, gardens or parks, there is something for everyone to enjoy in Atlanta.

• Explore a one-of-a-kind aquatic experience at the Georgia Aquarium. As the world’s largest aquarium, you will explore fascinating exhibits and interact with aquatic animals from around the world, including the amazing whale sharks.

• Don’t forget to plan a visit to the World of Coca-Cola, where you can discover the history of the world’s most popular soft drink. You can experience the 4-D Theater, Pop Culture Gallery, fully functioning bottling line and even sample nearly 70 products.

• If you enjoy shopping, entertainment and dining, plan a visit to Underground Atlanta. At this unique attraction you can delve into a transformed subterranean marketplace of six blocks offering guided historic tours, more than 100 specialty stores, and Kenny’s Alley music and nightlife district. Or, hop the MARTA train to Buckhead’s Lenox Mall and Phipps Plaza.

• There is excellent theater throughout Atlanta, including the Fabulous Fox Theater, the unique Shakespeare Tavern, and the entertaining shows at Center Stage.

• Other attractions unique to Atlanta include the CNN Studio Tour, the High Museum of Art, the Martin Luther King, Jr. National Historic Site & Sweet Auburn District, Piedmont Park and the adjacent Atlanta Botanical Gardens, Centennial Olympic Park, and the Jimmy Carter Presidential Library.

If you choose to venture outside of the city and enjoy the natural beauty that Georgia has to offer, you can plan a trip to Stone Mountain Park. As Georgia’s most visited attraction, this is home to the world’s largest piece of exposed granite rock and the longest running laser music show, plus much more.

Your Atlanta Host Committee,

Section CouncilChair

Stewart S. Manela, Employer

Chair-Elect Joel A. D’Alba, Union and Employee

Immediate Past ChairRichard T. Seymour, Employee

Vice ChairsJoyce Margulies, EmployerWayne N. Outten, Employee

SecretaryHon. Mark Bennett, Public

Secretary-ElectMartin H. Malin, Academic

Section Delegates to the House of Delegates

Keith D. Frazier, EmployerCynthia E. Nance, Neutral

Don Slesnick, Union and Employee

Section Governance LiaisonsVictoria L. Bor, Union and Employee

John T. Neighbours, Employer

Council Members

ContentsGeneral Information .................. 2

Schedule at-a-Glance ............... 4

Sponsors........................................ 7

Program Schedule ..................... 8

Program Schedule Grid ........ 14

Networking and Social Events ............................ 26

Hotel Maps ................................ 28

Neighborhood Map ... inside back cover

C. Geoffrey Weirich, Host Committee Chair, EmployerR. Lawrence Ashe, Jr., Employer Eric L. Barnum, Employer John F. Beasley, Jr., EmployeeMichael G. Canaras, Employer

Amanda A. Farahany, Employee David E. Jones, Employer Robert M. Lewis, Jr., PublicKaren E. Mock, PublicJohn L. Quinn, Union and EmployeeDane L. Steffenson, Public

Paula Graves Ardelean,

Employer

Ruben R. Chapa, Member-at-Large

Denise M. Clark, Union and Employee

Richard S. Cleary, Employer

Barbara J. D’Aquila, Employer

Kelly M. Dermody, Employee

Douglas E. Dexter, Employer

Kathryn Burkett Dickson,

Employee

Joseph D. Garrison, Employee

Samantha C. Grant, Employer

Gail Golman Holtzman, Employer

Peter A. Janus, Employer

Wendy L. Kahn, Union and Employee

Barry J. Kearney, Member-at-Large

William Lurye, Union and Employee

Joyce A. Mader, Union and Employee

Joyce E. Margulies, Employer

Stephen B. Moldof, Union and Employee

Cynthia E. Nance, Member-at-Large

Mary K. O’Melveny,

Union and Employee

Lynlee Wells Palmer,

Employer

Arnold H. Pedowitz, Employee

Charles A. Powell IV, Employer

Julie Richard-Spencer,

Union and Employee Howard Z. Rosen, Union and Employee

Joseph E. Tilson, Employer

C. Geoffrey Weirich, Employer

2 ABA Section of Labor & Employment Law www.ambar.org/laborconference

Program LocationsAll CLE sessions will take place at the Westin Peachtree Plaza Hotel, located at 210 Peachtree Street. Meeting room assignments are listed on the schedule of events.

CLE InformationAll registered attendees seeking CLE credit (including speakers and moderators) must sign in for CLE credit. The majority of attendees only need to do this once for the entire Conference. New York and Delaware attorneys are required by their states to sign in and out of each session. The sign in books for New York and Delaware will be located in the back of each program room. Approximately 60 days after the Conference, Certificates of Attendance will be mailed to those who have signed in for New York CLE credit. Texas attorneys are required to sign-in for CLE credit in addition to the scantron forms provided. Attorneys seeking credit in Pennsylvania must pay a fee per credit hour directly to the PA CLE Board. This information is provided on PA handouts located with the CLE sign-in books. Additional information for each state is located on the Uniform Certificate of Attendance provided in the registration packet.

Accreditation has been requested for this program from every state with mandatory continuing legal education requirements for attorneys. Please be aware each state has its own rules and regulations, including its definition of “CLE.” Please check with your state agency for confirmation of general CLE as well as ethics credits approval for any programs.

Program MaterialsEach Conference registrant will receive the program materials on a CD-ROM. Registrants who pre-ordered bound copies of the course materials may pick them up in the registration area. No refunds will be provided for pre-ordered materials. Registrants who wish to purchase the bound course materials at the meeting may do so for $225 while supplies last.

Pro Bono Award Recipient The Frances Perkins Public Service Award recognizes individuals or organizations that demonstrate a significant commitment to providing pro bono legal services primarily in the areas of labor and employment law to persons of limited means or to nonprofit, governmental, civic, community or religious organizations designed primarily to address the needs of individuals with limited means. This year’s Award will be presented during the plenary session on Thursday, November 1.

Arvid Anderson Public Sector Labor and Employment Attorney of the YearThe Arvid Anderson Public Sector Labor and Employment Attorney of the Year Award recognizes valuable contributions to public sector labor and employment law. This year’s Award will be presented during the plenary session on Thursday, November 1.

General Information

Alternative Dispute Resolution

Frank C. BottaEmma Leheny

Laurence S. MoyAlan A. Symonette

Class ActionsRachel M. Bien

James M. FinbergMatthew W. LampeRonald E. Manthey

ConsultingWynter Allen

Jeffrey A. DretlerVirginia L. Hardwick

Nina T. PirrottiYona RozenGeorge L.

Washington, Jr.

Discrimination & Retaliation

Denise K. DrakeLouis Lopez

Anne B. ShaverBrenda Sutton-Wills

Employee BenefitsNicole A. Eichberger

Lisa M. GomezKaren E. Mock

EthicsAndrew Altschul

Gwen T. HandelmanLori W. Ketcham

David D. Powell, Jr.

Federal SectorHeidi R. Burakiewicz

Angelia WadeTamiko WalkerMichael Wolf

FundamentalsVictoria L. BorLori D. EckerEric E. Hobbs

Daniel M. HutchinsonMary JohnsonMiriam López

Lynlee W. PalmerCarmen R. Parcelli

Thomas E. Reinert, Jr.

Jennifer L. SabourinRayford H. TaylorAlvin Velazquez

2012 Track Coordinators

ImmigrationJonathan GrodeRebecca Smith

In-House Counsel

Michael G. Canaras

Tamika Lynch

InternationalJoseph Z. Fleming

Wendi S. LazarStephen B. Moldof

Law Practice DevelopmentWilliam DaleyGlenn A. DuhlJon W. Green

LitigationEric L. BarnumEvangelina F. HernandezWilliam M.

KinneyOssai Miazad

Grace M. MoraMark D. Risk

Plenary SessionsJohn F. Beasley

Ann H. FromholzAdele RapportHope J. Singer

Public SectorGary Bailey

George S. CrisciPeter R. Meyers

TechnologyAdam S. FormanWilliam HerbertHanan B. KolkoCynthia N. Sass

Traditional Labor Kathleen P.

BarnardBrent L. GarrenJonathan Kane

Tanja L. Thompson

Wage and HourSusan N. EisenbergJohn S. Ho

Jason C. MarsiliJahan C. Sagafi

Please join us at the Georgia Aquarium

on Friday, November 2 from 7:30 – 10:30 p.m. in celebration of the ABA 6th Annual Section of Labor

and Employment Law Conference.

Also on Display:

Daily Labor Report

BNA’s Employment Discrimination Report

Pension and Benefits Reporter

BLOOMBERG BNA CONGRATULATES THE SECTION ON THE 2012 CONFERENCEBloomberg BNA is pleased to be the publisher for the Section’s many treatises and an emerald sponsor of the conference. Please visit our booth in the exhibit hall to enter a drawing to win a free treatise of your choice!

VISIT OUR BOOTH TO VIEW THESE TITLES.

Section treatises on display at the Bloomberg BNA booth:

9023 ABA Annual meeting ad.indd 1 9/7/12 9:11 AM

Bloomberg BNA is pleased to be the publisher for the Section’s many treatises and an Emerald sponsor of the Conference. Please visit our booth in the exhibit hall to enter a drawing to win a free treatise of your choice!


Wednesday, October 31• 3:00 – 8:00 p.m.

Conference RegistrationAtlanta Ballroom

• 4:00 – 5:30 p.m.Pre-Conference Programs for Union: Augusta II Employee/Plaintiff: Roswell I Government Attorneys: Augusta I

• 6:00 – 6:30 p.m.First-Time Attendee/ New Section Member ReceptionPlaza Ballroom

• 6:30 – 8:30 p.m.Welcome Reception and Committee ExpoPlaza Ballroom

Thursday, November 1• 6:00 a.m. – 5:30 p.m.


• 7:00 – 8:00 a.m.Continental BreakfastAtlanta Ballroom

• 12:30 – 2:00 p.m. First-Time Conference Attendee/New Section Member Orientation LuncheonPlaza Ballroom

• 12:30 – 2:00 p.m. In-House Corporate Counsel LuncheonRoswell I-II

• 12:30 – 2:00 p.m. Pro Bono Luncheon and Workshop Augusta I-II

• 6:00 – 8:00 p.m.Reception Honoring Diversity in the Profession at the Martin Luther King, Jr. Center

• Alternative Dispute Resolution Track8:00 – 9:15 a.m.Keeping Your Client in the Driver’s Seat: Advanced Techniques for Employment MediationInternational D

9:30 – 11:00 a.m.The Suspension of Nurse Kevin: Advocacy Best Practices in Labor ArbitrationInternational D

3:30 – 4:45 p.m.A Graduate Course in Employment Arbitration: Beyond the Basics Vinings I-II

• Consulting Track8:00 – 9:15 a.m.A Penny for Your Thoughts: Employee Privacy, Employee Monitoring and Employer PerilsInternational G-H

9:30 – 11:00 a.m.Executive Behavior Run Amok: Ethical and Strategic Considerations for Counsel “Brave” Enough to Step into a High Level Workplace Investigation International G-H

2:00 – 3:00 p.m.The Government Cares About My Profile? Latest Trends in Federal Regulation of Social Media Peachtree Ballroom A-C

3:30 – 4:45 p.m.Family Responsibility DiscriminationInternational C

• Employee Benefits Track9:30 – 11:00 a.m.Is Your Executive Compensation Agreement Covered by ERISA?International B

2:00 – 3:00 p.m.Age Discrimination and ERISA Peachtree Ballroom D-F

• Ethics Track8:00 – 9:15 a.m.Electronic Dumpster Diving: The Legal Ethics of “TMI”Vinings II

3:30 – 4:45 p.m.Practicing in a Virtual World: E(thics) = MJP2

International D

• Federal Sector Track2:00 – 3:30 p.m.The Real Housewives, Househusbands, and Housepartners of Atlanta: Trends in Employment Discrimination against LGBT IndividualsInternational E-F

• Fundamentals Track(Co-sponsored by the ABA Young Lawyers Division)

8:00 – 9:15 a.m.Oh What a Tangled Web We Weave: The ADAAA, FMLA, Workers’ Compensation and GINA Knot International E-F

8:00 – 9:15 a.m.Bridge Over Troubled Waters: Dealing with the Problem EmployeeVinings I

9:30 – 11:00 a.m.Bankruptcy Boot Camp: What Employment Lawyers Need to Know Vinings II

9:30 – 11:00 a.m.Workplace Defamation Claims International C

2:00 – 3:00 p.m.Workers’ Compensation: Global Washout AgreementsInternational B

3:30 – 4:45 p.m.Wage and Hour Boot CampPeachtree Ballroom D-F

• In-House Counsel Track2:00 – 3:00 p.m.Document Retention Programs: What In-House Counsel Need to Know and Do Vinings I-II

3:30 – 4:45 p.m.Mirror, Mirror on the Wall, Who Is the Most Compliant of them All? The Ins and Outs of HR AuditsPeachtree Ballroom A-C

• International Track8:00 – 9:15 a.m.Managing a Multinational Workforce in a Global MarketplaceInternational B

9:30 – 11:00 a.m.Knowing Right from Wrong: International Investigations Facing Employees and Employers AbroadVinings I

2:00 – 3:00 p.m.Drafting Expatriate Agreements International C

• Plenary Session11:15 a.m. – 12:30 p.m.Supreme Court ReviewPeachtree Ballroom A-F

2012 Schedule at-a-Glance

6th Annual Labor and Employment Law Conference • October 31 – November 3, 2012 • Atlanta, Georgia 5

• Traditional Labor Track8:00 – 9:15 a.m.The Race to the Ballot Box: A Review of Current and Possible Future NLRB Election Procedures International C

9:30 – 11:00 a.m.Occupy NLRB: Social Protest and Labor Law International E-F

2:00 – 3:00 p.m.Sports, Labor and Antitrust Law: A Look Back and a Look Forward International D

3:30 – 4:45 p.m.Who Is Winning: An Up-to-the-Minute Update of Developments under the National Labor Relations Act International E-F

• Wage and Hour Track3:30 – 4:45 p.m.What’s Missing from the Department of Labor Regulations: A Litigator’s Wish ListInternational G-H

Friday, November 2• 6:30 a.m. – 5:30 p.m.



• 7:00 – 8:00 a.m.Standing Committee Business Meetings ADR in Labor & Employment Law, International DEthics & Professional Responsibility, Vining IIEqual Employment Opportunity Law, Augusta I-II Federal Labor Standards Legislation, International G-H International Labor & Employment Law, International CPractice and Procedure under the NLRA, International E-FState & Local Government Bargaining & Employment Law, (9:45–10:45 a.m.) International BWorkers’ Compensation, International B

• 12:30 – 2:00 p.m.Diversity Luncheon Plaza Ballroom

• 7:30 – 10:30 p.m.Conference Reception at the Georgia Aquarium

• Consulting Track9:45 – 10:45 a.m.The Interactive Process: Negotiating Accommodations under the ADAAugusta I-II

2:00 – 3:30 p.m.And the Two Shall Become One: Effectively Managing the Labor and Employment Implications of Mergers and Acquisitions Vinings I-II

3:50 – 5:20 p.m.Getting What You Want: Negotiating Skills and Strategies for Employment LawyersPeachtree Ballroom A-C

• Discrimination and Retaliation Track8:00 – 9:30 a.m.ADEA RFOA: Implications and Impact of the EEOC’s Final Rule International D

9:45 – 10:45 a.m.Counseling HR on National Origin and Language in the Workplace International C

2:00 – 3:30 p.m.Who’s Got the Ball: Practical Implications When “Too Many” Stakeholders Are Involved in LitigationInternational B

3:50 – 5:20 p.m.Harassment By Any Other Name Would Cost as DearPeachtree Ballroom D-F

• Ethics Track8:00 – 9:30 a.m.The Ethics of Advertising and Promotion in the 21st CenturyVinings II


8:00 – 9:30 a.m. (Concurrent Programs) Riffing About RIFs: Pursuing and Defending Claims Involving Reductions in Force Roswell I-II

8:00 – 9:30 a.m.I Went to Law School to Avoid Math: OFCCP 101 International G-H

9:45 – 10:45 a.m. (Concurrent Programs) EPLI For Dummies Vinings II

9:45 – 10:45 a.m.What Labor and Employment Lawyers Need to Know about Financial Statements Roswell I-II

2:00 – 3:30 p.m. (Concurrent Programs) Workplace Harassment: What You Need to Know Peachtree Ballroom A-C

2:00 – 3:30 p.m.Whistleblowing as Enforced by OSHAInternational G-H

3:50 – 5:20 p.m. (Concurrent Programs) Preparing for the Battle of the Experts: A Beginner’s Guide to Expert Discovery International C

3:50 – 5:20 p.m.Both Sides Want Out! Top Tips for Negotiating Enforceable Settlement Agreements Vinings I-II

• Law Practice Development Track8:00 – 9:30 a.m.Delivering Value and Efficiency with Technology International C

3:50 – 5:20 p.m.Agents of Change: A Fortune 250 Perspective on What Matters Most with the Lawyers and the Firms We HireInternational D

• Litigation Track8:00 – 9:30 a.m.Steps to an Effective Opening Augusta I-II

9:45 – 10:45 a.m.Better Direct Examinations: Special Problems and Suggested Solutions International D

2:00 – 3:30 p.m.Better Cross Examinations: Special Problems and Suggested Solutions Peachtree Ballroom D-F

3:50 – 5:20 p.m.Appellate Advocacy: How to Win at the Court of AppealsRoswell I-II

• Plenary Session11:00 a.m. – 12:15 p.m.The Future of Labor and Employment Law: Thought Leaders in Our Field Answer the Toughest Questions Peachtree Ballroom A-F


• Public Sector Track8:00 – 9:30 a.m.The Journalist Viewpoint: Does the Media Report an Accurate, Understandable and Complete Portrayal of Public Sector Collective Bargaining?International B

2:00 – 3:30 p.m.One Year after Wisconsin and OhioRoswell I-II

• Technology Track 8:00 – 9:30 a.m.Workplace Cyber Crimes: Are You a Victim or a VillainVinings I

9:45 – 10:45 a.m.Telepresence in the Workplace Vinings I

2:00 – 3:30 p.m.Social Media: Who’s Looking at You, KidInternational D

3:50 – 5:20 p.m.A Storm Is A-Brewin’: Preparing to Weather the Use of Cloud Computing in the Workplace International E-F

• Traditional Labor Track8:00 – 9:30 a.m.Meet the National Labor Relations BoardInternational E-F

9:45 – 10:45 a.m.Meet the National Labor Relations Board Acting General CounselInternational E-F

2:00 – 3:30 p.m.The Real Law: Meet the National Labor Relations Board Regional DirectorsInternational E-F

3:50 – 5:20 p.m.Come Fly with Me: Investment Decisions and Section 7International B

• Wage and Hour Track9:45 – 10:45 a.m.Compliance Issues from an In-House PerspectiveInternational G-H

2:00 – 3:30 p.m.Independent Contractor Misclassification Issues International C

3:50 – 5:20 p.m.Birds of a Slightly Different Feather: Wage and Hour Issues Affecting Labor and the Public Sector International G-H

Saturday, November 3• 6:00 a.m. – 1:00 p.m.



• 7:00 – 8:00 a.m.Standing Committee Business Meetings Development of the Law under the NLRA, International DEEmployment Rights and Responsibility, International, FGHFederal Legislative Developments, Vinings I-IIImmigration Law, International COccupational Safety & Health Law, Roswell I-IIRailway & Airline Labor Law, International BTechnology in the Practice and Workplace, Augusta I-II

• 12:45 – 2:00 p.m.An Exploration of Careers in Labor & Employment LawThe Overlook

• Class Action Track8:00 – 9:15 a.m.The Survivors Post-Dukes and Ricci: Cases About Biased Tests and Job Requirements That Have Not Been Validated Roswell I-II

9:30 – 11:00 a.m.Will Concepcion and Stolt-Nielsen End Class Litigation?Augusta I-II

• Consulting Track8:00 – 9:15 a.m.I’ll See You on CNN: Effective Use of the Media In and Out of LitigationInternational C

• Discrimination and Retaliation Track8:00 – 9:15 a.m.USERRA: What Every Practitioner Should Know When GI Joe and GI Jane Come Marching Home International FGH

9:30 – 11:00 a.m.Risky Business: Litigating Retaliation Claims International DE


8:00 – 9:15 a.m.Beyond Weingarten Rights: The NLRA’s Impact on Non-Union EmployersInternational DE

9:30 – 11:00 a.m.The Scylla and Charybdis of RLA Major Disputes: Presidential Emergency Board or Interminable DelayInternational B

• Immigration Track8:00 – 9:15 a.m.State and Federal Immigration Laws—The Crossroads of Unauthorized EmploymentInternational B

9:30 – 11:00 a.m.The Real Cost of Human Trafficking— What It Is and How U.S. Immigration Law Can Help International C

• Law Practice Development Track9:30 – 11:00 a.m.How to Rise to Pre-eminency: Developing a Best in Class Labor & Employment Law PracticeVinings I-II

• Litigation Track8:00 – 9:15 a.m.E-Discovery Atlanta: Aspects of Technology to Consider in E-Discovery Augusta I-II

9:30 – 11:00 a.m.Testing and Presenting Statistical Evidence in Employment Discrimination CasesRoswell I-II

• Plenary Session11:15 a.m. – 12:30 p.m.Personal Histories: Investigating and Forgetting on the Web Peachtree Ballroom A-F

• Wage and Hour Track8:00 – 9:15 a.m.Let’s Do the Math: Computing Damages in Wage and Hour Class Actions Vinings I-II

9:30 – 11:00 a.m.Point/Counterpoint: Hotly Contested and Unresolved Issues in Wage and Hour Law International FGH

• The College of Labor and Employment Lawyers 12:30 – 2:00 p.m.The Judges’ Perspective: An Inside Scoop on Civility and Professionalism in the CourtroomInternational C

2012 Schedule at-a-Glance


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• 4:00 – 5:30 p.m.Pre-Conference Programs for Employee/Plaintiff, Government and Union AttorneysEmployee/Plaintiff SessionRoswell IThe Gross case introduced a possible new burden of proof: “but for” the person’s age, would the adverse action in an ADEA case have occurred? What does that mean? Does it mean that age must be the sole factor? A contributing factor? Might such a burden of proof spread to other employment statutes? Answers to these questions will affect case selection as well as discovery and trial strategy. Our speaker will lead an interactive discussion of post-Gross developments, strategies to deal with Gross issues, and practical tips for confronting this burden at trial.

Government SessionAugusta IJoin us for an interactive roundtable discussion with representatives of the various government agencies to discuss current legal and practical issues affecting government attorneys.

Union SessionAugusta IIA roundtable discussion on recent legislation and regulations of concern to unions and their lawyers.

• 6:00 – 6:30 p.m.First-Time Attendee/ New Section Member ReceptionPlaza BallroomIf you are a new member of the Section of Labor & Employment Law or if you’ve just never attended a Section meeting before, begin the Conference on the right foot by joining your colleagues at this get-together preceding the Welcome Reception.

Thursday, November 1• 6:00 a.m. – 5:30 p.m.


7:00 – 8:00 a.m.Continental Breakfast

Sponsored by: Winston & Strawn LLP Atlanta Ballroom

• Alternative Dispute Resolution Track

• 8:00 – 9:15 a.m.Keeping Your Client in the Driver’s Seat: Advanced Techniques for Employment MediationInternational D Panelists will discuss the important steps in an effective employment mediation: initial client meeting, negotiation of terms for mediation process, pre-mediation conference call, mediation briefs or other submissions, opening joint session including whether and what type of statements are recommended for the mediator, clients and/or counsel. Experienced practitioners will provide advice about handling sensitive issues in caucuses and focus on getting past the barriers at the “make or break points” of mediation, including the negotiation of attorneys’ fees and when that should occur.MODERATOR:Frank C. Botta, Eckert Seamans Cherin

& Mellott, LLC, Pittsburgh, PA SPEAKERS:Hon. Mark R. Hornak, U.S. District

Court Western District of Pennsylvania , Pittsburgh, PA

Shalanda D. Ballard, 3M Company, St. Paul, MN

Jacquelin F. Drucker, Arbitrator/Mediator, New York, NY

Jon H. Rosen, The Rosen Law Firm, Seattle, WA

• 9:30 – 11:00 a.m.The Suspension of Nurse Kevin: Advocacy Best Practices in Labor ArbitrationInternational D Nurse Kevin was suspended for refusing to move a patient, citing concern for his oft-injured back. How would you present the grievant or employer’s case? Using film excerpts, members of the panel will comment on the presentations of the attorney/advocates and describe what they would have done to present their theory of the case.MODERATOR:Alan A. Symonette, Arbitrator/Mediator,

Philadelphia, PA SPEAKERS:Laura J. Cooper, University of Minnesota

Law School, Minneapolis, MNWilliam N. Hiers, Jr., Ford & Harrison

LLP, Atlanta, GA Nancy A. Walker, Walker Law Offices, PC,

Philadelphia, PA

All events will take place at the Westin Peachtree Plaza unless otherwise noted.

6th Annual Labor and Employment Law Conference Program Schedule

6:30 – 8:30 p.m.Welcome Reception and Committee Expo

Plaza BallroomAll attendees are invited to meet, greet and

network during this opening reception at the Westin Peachtree Plaza. Section Standing

Committees will provide information about publications, services and programs they provide

to labor and employment lawyers.

12:30 – 2:00 p.m.First-Time Conference

Attendee/New Section Member Orientation Luncheon

Plaza BallroomJoin other first time attendees for an

overview of the Section and the Conference. You’ll learn how to make the most of your experience while networking with other

newcomers over lunch.

12:30 – 2:00 p.m. In-House Corporate Counsel Luncheon

(In-House Corporate Counsel Only)Roswell I-II

12:30 – 2:00 p.m. Pro Bono Luncheon and Workshop

Augusta I-II The Pro Bono Workshop will feature the

2012 Frances Perkins Award Recipient who will speak on the importance of pro bono

work. In addition, attendees will be able to engage in discussions relating to providing pro bono services and to learn first hand

how the Pro Bono Work Committee interacts with the Section.

Thursday’s 11:00 – 11:20 a.m. refreshment break is sponsored by Winston & Strawn LLP.


• 3:30 – 4:45 p.m.A Graduate Course in Employment Arbitration: Beyond the Basics Vinings I-II Arbitration is no longer novel, and many neutrals and practitioners have arbitrated at least one or more cases, but what separates the truly excellent from the merely competent? What techniques and approaches impress the arbitrators the most? What do the most experienced lawyers and arbitrators do that the rest of us do not? This panel of seasoned neutrals and practitioners will share the answers to these questions and more.MODERATOR:Laurence S. Moy, Outten & Golden LLP,

New York, NYSPEAKERS:Dina R. Jansenson, JAMS, New York, NYRobert D. Weisman, Ice Miller LLP,

Columbus, OHPearl Zuchlweski, Kraus & Zuchlewski LLP,

New York, NY

• Consulting Track• 8:00 – 9:15 a.m.

A Penny for Your Thoughts: Employee Privacy, Employee Monitoring and Employer PerilsInternational G-H Before the cyber age, employers knew that employee talk about workplace issues might involve water cooler conversations and telephone calls. To ensure sensitive documents stayed where they should be, employers could inspect briefcases at the end of the day. At the same time, employees believed that their phone calls were theirs alone, and even with the advent of e-mail, many treated their employers’ networks as theirs. All those assumptions have evaporated. Employees now have far more effective ways of publicizing information employers would like to keep confidential. Meanwhile, e-mail monitoring, GPS devices, keystroke tracking, video monitoring and employer monitoring of Facebook and other social media sites have narrowed employees’ zone of privacy. This expert panel will focus on the latest developments in workplace privacy, discuss the impact for all parties of new court decisions, statutory changes (including proposed amendments to strengthen the Computer Fraud and Abuse Act) and technology developments, and provide practical advice about how employers, employees and unions can protect their interests and the information they want others not to know.MODERATOR:Julie A. Totten, Orrick, Herrington

& Sutcliffe LLP, Sacramento, CA

SPEAKERS:Thomas J. Conley, Law Office of

Thomas J. Conley, Minneapolis, MNJoan Feldman, University of Arizona,

Phoenix, AZAmanda Green Hawkins, United

Steelworkers International Union, Pittsburgh, PA

Nicole Walthour, International Paper Company, Memphis, TN

• 9:30 – 11:00 a.m.Executive Behavior Run Amok: Ethical and Strategic Considerations for Counsel “Brave” Enough to Step into a High Level Workplace Investigation International G-H Conducting a proper workplace investigation requires thoughtful planning and execution. Such an endeavor can be especially tricky when the subject of the investigation is a high performing senior executive. This expert panel will present a step-by-step analysis of a hypothetical sexual harassment complaint against a high performing senior level executive from formulation of an investigation plan to interviewing of witnesses, gathering of evidence and creation and dissemination of the investigative report. In addition to sharing best practices and common pitfalls, the panel will discuss attorney-client privilege issues, union rights and privacy issues. The panel also will focus on some of the ethical and strategic considerations involved when dealing with alleged wrongdoing by a senior executive, such as whom counsel is representing (i.e., company, board, executive); mandatory and permissible reporting of bad behavior both inside and outside the company; public relations concerns; controlling the dissemination of information both inside and outside the company; balancing alleged bad behavior against otherwise exemplary performance; counsel’s fiduciary role when confidential settlements or departures are arranged; and policies or training that should be implemented to deal with bad behavior at the highest levels.MODERATOR:Jeffrey A. Dretler, Prince Lobel Tye LLP,

Boston, MASPEAKERS:Laurie M. Burgess, Burgess Law Office,

Chicago, IL Laura H. Huggett, E.I. du Pont de Nemours

and Company, Wilmington, DEJulie A. Moore, Employment Practices

Group, Wellesley, MA Nina T. Pirrotti, Garrison, Levin-Epstein,

Richardson, Fitzgerald & Pirrotti, P.C., New Haven, CT

• 2:00 – 3:00 p.m.The Government Cares About My Profile? Latest Trends in Federal Regulation of Social Media Peachtree Ballroom A-C It should come as no surprise that the NLRB, the EEOC and various federal and state agencies have taken a special interest in how social media is being used when it comes to workers’ rights and employer responsibilities. There is a new wave of cases making their way through federal and state courts on what workers and employers can and cannot do. This panel will discuss how the courts are catching up to technology and what it means for the employment litigator.MODERATOR:Alicia K. Haynes, Haynes & Haynes, P.C.,

Birmingham, AL SPEAKERS:Hon. Lafe Solomon, National Labor

Relations Board, Washington, DC Melinda J. Caterine, Fisher & Phillips LLP,

Portland. ME Nora L. Macey, Macey Swanson and Allman,

Indianapolis, INMichael J. Marino, Warner Bros.

Entertainment Inc., Burbank, CA

• 3:30 – 4:45 p.m.Family Responsibility Discrimination International C In 1973, the Supreme Court in Frontiero v. Richardson referred to our “long and unfortunate history of sex discrimination,” and cited as an example an 1872 case barring women from practicing law because the “strife” of the bar would destroy femininity. The Frontiero court noted that discrimination was rationalized by an attitude of “romantic paternalism” that, the Court stated, “in practical effect put women not on a pedestal but in a cage.” Plaintiffs’ employment lawyers argue that this concept of romantic paternalism is alive and well today in one of the last “acceptable” forms of discrimination in the workplace—pregnancy discrimination and its more recently acknowledged counterpart, family responsibility discrimination. In these cases, pregnant women and women with young children are either terminated or de-selected from promotions or career building responsibilities, based, plaintiffs claim, on their motherhood or impending motherhood. This panel will explore the pitfalls of family responsibility discrimination (also referred to as caregiver discrimination) and discuss what laws such conduct may implicate even if a state’s statute does not expressly address it.

All events will take place at the Westin Peachtree Plaza unless otherwise noted.

6th Annual Labor and Employment Law Conference Program Schedule


MODERATOR:Mary K. O’Melveny, Communications

Workers of America, Washington, DC SPEAKERS:Joan M. Gilbride, Kaufman Borgeest

& Ryan LLP, New York, NYCaroline G. Hendel, Yale University,

New Haven, CT Mary Jo O’Neill, U.S. Equal Employment

Opportunity Commission, Phoenix, AZJoan C. Williams, University of

California Hastings College of the Law, San Francisco, CA

• Employee Benefits Track• 9:30 – 11:00 a.m.

Is Your Executive Compensation Agreement Covered by ERISA?International B Executive compensation is getting a lot of attention in the news these days. The legal issues can be complex, but they are critically important from the perspectives of employers, executives and sometimes other employees. This panel will discuss various types of executive compensation arrangements such as retirement plans, deferred compensation arrangements, top hat plans and severance plans. We will discuss how you can tell when these plans are subject to ERISA and what some of the consequences of ERISA coverage can be—including whether the arrangements are subject to state or federal law, issues of personal and fiduciary liability, reporting and disclosure and funding requirements. The panel also will cover these programs from the tax exempt employer’s perspective.MODERATOR:Karen E. Mock, U.S. Department of Labor,

Atlanta, GASPEAKERS:Miguel F. Eaton, Jones Day, Washington, DCSharon M. Goodman, Slevin & Hart, P.C.,

Washington, DCCatha Worthman, Lewis, Feinberg, Lee,

Renaker & Jackson, P.C., Oakland, CA

• 2:00 – 3:00 p.m.Age Discrimination and ERISA Peachtree Ballroom D-F While many labor and employment attorneys may attempt to steer clear of ERISA claims, these claims must be considered and the law behind such claims understood. Retirement plans must be designed to avoid liability under federal and state age discrimination laws, and after years of litigation involving cash balance plans and other types of plans, including the 8th Circuit’s recent decision in Northwest Airlines, Inc. v. Phillips, attorneys need to be aware of potential issues and how to deal with them. In addition to ADEA and state law issues, the discrimination protections of Section 510 of ERISA may

come into play when discrimination due to age is at issue. This panel will discuss the current state of the law in the intersection of age discrimination laws and ERISA and issues to be considered by practitioners.MODERATOR:Mary Ellen Signorille, AARP Foundation

Litigation, Washington, DC SPEAKERS:Judith P. Broach, Broach & Stulberg, LLP,

New York, NY Denise M. Clark, Clark Law Group,

Washington, DCJames A. (Al) Holifield, Holifield &

Associates, PLLC, Knoxville, TN

• Ethics Track• 8:00 – 9:15 a.m.

Electronic Dumpster Diving: The Legal Ethics of “TMI”Vinings II Panelists will explore what the resourceful, yet ethical lawyer must do in an age of too much information (“TMI”), where the boundaries between what is yours and what is mine are not always clear. Emphasizing the receipt of the unexpected, the panel will explore the ethical responsibilities of a lawyer who receives electronically purloined information (from whistleblowers or as after acquired information in employment cases), or who provides evidence of a client’s financial wrongdoing within the regulatory framework of Sarbanes-Oxley and Dodd-Frank. And what about the lawyer who wants to engage in surveillance of a client? Or the lawyer who stumbles onto evidence of client perjury or potentially privileged information on the Internet? Or the lawyer who teleworks and brings home client information, or whose computer screen displays confidential client information at an ABA conference? Come join what promises to be a lively discussion!MODERATOR:William A. Herbert, Public Employment

Relations Board, Albany, NY SPEAKERS:Nancy L. Cohen, Miletich Cohen PC,

Denver, CO Louis P. Malone, III, O’Donoghue &

O’Donoghue LLP, Washington, DC Cynthia N. Sass, Law Offices of

Cynthia N. Sass, P.A., Tampa, FL

• 3:30 – 4:45 p.m.Practicing in a Virtual World: E(thics) = MJP2

International D With changes in technology, the practice of law has broken through barriers of time and space. It is important for lawyers to understand how the ethics rules apply in a virtual world where the practice of law crosses state and international boundaries

and occurs 24/7, client files are stored in the cloud, and there is a zest for “Groupons.” Issues addressed include avoidance of: unauthorized practice, inadvertent formation of attorney-client relationships, and conflicts of interest in a variety of contexts, including when prospective clients seek legal advice on the web and when legal research is outsourced. The panel also will discuss enticements to join an attorney’s social networking site and related rules regarding the web, and the obligation to protect confidential information that is stored in the cloud. An update on relevant Ethics 20/20 Commission recommendations adopted at the 2012 ABA Annual Meeting will be included.MODERATOR:Paula J. Frederick, State Bar of Georgia,

Atlanta, GASPEAKERS:Michael P. Posner, Posner & Rosen LLP,

Los Angeles, CADavid D. Powell, Jr., Ogletree, Deakins,

Nash, Smoak & Stewart, P.C., Denver, CORachel See, National Labor Relations Board,

Washington, DC

• Federal Sector Track• 2:00 – 3:30 p.m.

The Real Housewives, Househusbands, and Housepartners of Atlanta: Trends in Employment Discrimination against LGBT IndividualsInternational E-F In light of the growing recognition of gay marriage and civil unions by states and localities, it is important for practitioners to understand the resultant impact in workplace across the country. This program will discuss state and local protections against lesbian, gay, bisexual and transgender (LGBT) individuals in the areas of employment discrimination and domestic partner benefits. Panelists will provide an update on how the existing prohibition of sex discrimination under Title VII of the Civil Rights Act of 1964 may cover claims of discrimination based on sexual orientation and gender identity, as well as same-sex harassment. The panel also will address recent developments in transgender protections, including the EEOC’s recent decision in Macy v. Bureau of Alcohol, Tobacco and Firearms as well as specific policies recommended for transgender and gender nonconforming employees. Finally, the program will offer best practices regarding policies and procedures affecting LGBT employees in both the private sector and the federal sector.MODERATOR:Louis Lopez, U.S. Department of Justice,

Washington, DC

6th Annual Labor and Employment Law Conference Program Schedule Thursday, November 1 – Friday, November 2


SPEAKERS:Shannon P. Minter, National Center for

Lesbian Rights, San Francisco, CAEdward J. Reeves, Stoel Rives LLP,

Portland, ORTeresa Renaker, Lewis, Feinberg, Lee,

Renaker & Jackson, P.C., Oakland, CADaniel T. Vail, U.S. Equal Employment

Opportunity Commission, Washington, DC

• Fundamentals Track (Co-sponsored by the ABA Young Lawyers Division)

• 8:00 – 9:15 a.m.Oh What a Tangled Web We Weave: The ADAAA, FMLA, Workers’ Compensation and GINA Knot International E-F Employee health situations raise a myriad of employment law issues and can leave employment counsel scratching their heads over the interplay between the various applicable statutes. In this program, panelists will analyze the similarities and differences between the ADAAA, FMLA, Workers’ Compensation laws and GINA, including specific examples of the tensions necessarily raised by these related but distinct workplace laws.MODERATOR:Katherine C. Huibonhoa, Paul Hastings LLP,

San Francisco, CASPEAKERS:Miriam F. Clark, Ritz Clark & Ben-Asher

LLP, New York, NY Peggy R. Mastroianni, U.S. Equal

Employment Opportunity Commission, Washington, DC

Myra L. McKenzie, Wal-Mart Stores, Inc., Bentonville, AR

Margo Pave, Zwerdling, Paul, Kahn & Wolly, P.C., Washington, DC

• 8:00 – 9:15 a.m.Bridge Over Troubled Waters: Dealing with the Problem EmployeeVinings I “Troubled” employees include those with chemical dependency, emotional and/or behavioral issues, physical illness, stress, and performance problems. This panel will discuss how to identify the troubled employee, best practices in documenting the issues and communicating with the employee. When may drug testing be required? What about insisting on a fitness for duty examination as a requirement of continued employment? Practical advice on when and how employers may intervene and a discussion of common mistakes employers make with troubled employees will be included.

MODERATOR:Karen M. Buesing, Akerman Senterfitt,

Tampa, FLSPEAKERS:Lori L. Deem, Abrahamson Vorachek

& Levinson, Chicago, IL Scott R. Koch, JPMorgan Chase & Company,

Chicago, ILHope J. Singer, Bush, Gottlieb, Singer,

López, Kohanski, Adelstein & Dickinson, Glendale, CA

• 9:30 – 11:00 a.m.Bankruptcy Boot Camp: What Employment Lawyers Need to Know Vinings II Bankruptcy issues can make or break any employment case, but most employment lawyers don’t know the Bankruptcy Basics. This program will outline the most common bankruptcy issues that arise in employment law cases so that counsel for employees and employers are prepared.MODERATOR:Joseph A. Kohanski, Bush, Gottlieb, Singer,

López, Kohanski, Adelstein & Dickinson, Glendale, CA

SPEAKERS:Theodore A. Cohen, Sheppard, Mullin,

Richter & Hampton LLP, Los Angeles, CA Linda M. Correia, Webster, Fredrickson,

Correia & Puth, PLLC, Washington, DCMarianne Goldstein Robbins, Previant,

Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., Milwaukee, WI

• 9:30 – 11:00 a.m.Workplace Defamation Claims International C With the economy forcing so many employees out of work, defamation lawsuits are on the rise. More courts are recognizing self-publication defamation actions in addition to defamatory comments. Social media makes the dissemination of harmful information about employees easier, quicker and on a much more massive scale while creating a permanent record. While employers are struggling with the often competing interests of dealing with a terminated employee and protecting the company, defamatory statements made by employers make it difficult if not impossible for employees to find re-employment.MODERATOR:Alisa B. Arnoff, Scalambrino

& Arnoff, LLP, Chicago, IL SPEAKERS:Tami A. Earnhart, Ice Miller LLP,

Indianapolis, INArnold H. Pedowitz, Pedowitz

& Meister, LLP, New York, NY Amy F. Shulman, Broach &

Stulberg, LLP, New York, NY

• 2:00 – 3:00 p.m.Workers’ Compensation: Global Washout AgreementsInternational B The panel will discuss the complexities of complete settlements of workers’ compensation cases and their interrelationship with releases of claims related to work unconnected with the accident.MODERATOR:Rayford H. Taylor, Casey Gilson P.C.,

Atlanta, GA SPEAKERS:Thomas L. Holder, Long & Holder, LLP,

Atlanta, GAHenry N. Patterson, Jr., Patterson

Harkavy LLP, Chapel Hill, NCGregory T. Presmanes, Bovis, Kyle

& Burch, LLC, Atlanta, GA

• 3:30 – 4:45 p.m.Wage and Hour Boot CampPeachtree D-FWage and hour lawsuits continue to be filed in droves, and settlements and verdicts for these cases have reached the hundreds of millions of dollars annually. Our panel of experienced wage and hour lawyers will provide the fundamentals of this area of law, including discussing substantive wage and hour issues and procedural issues involved in litigating collective, class and hybrid cases. Specific topics that will be covered include determining whether employees are excluded from overtime and minimum wage requirements under the FLSA’s white collar, outside sales, Section 7(i) “commissioned employees” and the motor carrier act exemptions. In addition, the panel will delve into the growing area of independent contractor litigation. Other topics include the regular rate of pay and the meaning of “work” and compensable time. Once these fundamentals are mastered, the panel will turn its attention to the litigation of wage and hour claims and provide tips regarding successfully bringing and defending these actions. This is a “basics” course that will push attendees to strengthen their understanding of wage and hour issues to at least an intermediate level.MODERATOR:Jonathan A. Keselenko, Foley Hoag LLP,

Boston, MA SPEAKERS:Bernhard R. Mazaheri, Morgan

& Morgan, P.A., Orlando, FLJennifer Williams, Akerman Senterfitt,

Miami, FL



• In-House Counsel Track• 2:00 – 3:00 p.m.

Document Retention Programs: What In-House Counsel Need to Know and Do Vinings I-II The vast amount of information available today presents challenges for companies in complying with retention obligations and discovery requests. Our experienced panel will discuss the latest trends in this area and what in-house counsel should be doing to protect their company and meet their obligations. Sample forms and correspondence also will be made available.MODERATOR:Ellen C. Kearns, Constangy, Brooks

& Smith, LLP, Boston, MASPEAKERS:Katherine E. Bissell, U.S. Department of

Labor, Washington, DCCorie Pauling, TIAA-CREF, Charlotte, NCAllegra J. Lawrence-Hardy, Sutherland

Asbill & Brennan, LLP, Atlanta, GACarla M. Siegel, International Association of

Machinists & Aerospace Workers, AFL-CIO, Upper Marlboro, MD

• 3:30 – 4:45 p.m.Mirror, Mirror on the Wall, Who Is the Most Compliant of them All? The Ins and Outs of HR AuditsPeachtree Ballroom A-C A company-initiated Human Resources Self-Audit can be a very cost-effective, proactive tool to determine whether employers are complying with Federal and State employment law and regulations. Our experienced panel will discuss the types of policies and procedures which can be included in an audit, including wage and hour practices, personnel files, hiring, promotion and termination policies, recruitment practices, EEO policies and pay practices, among others. This panel also will explore the risks and rewards for employers who confidentially assess their employment practices by conducting audits or other self-critical analyses. We will hear from management counsel who conduct such audits, as well as plaintiff and government representatives who may wish to use those assessments in subsequent litigation or agency investigations.MODERATOR:Debra A. Millenson, The Millenson

Law Firm, Washington, DC SPEAKERS:Patricia J. Craft, U.S. Department

of Labor, Atlanta, GABrett G. Rawitz, McDonald’s Corporation,

Oak Brook, ILLeslie E. Silverman, Proskauer Rose LLP,

Washington, DC

• International Track• 8:00 – 9:15 a.m.

Managing a Multinational Workforce in a Global MarketplaceInternational B This panel will explore how globalization has affected multinational expansion of the labor and employment market over the past five years and where it is moving in the future. What compensation structures and pay systems do companies use to produce equitable pay systems around the world? How do unions affect these choices and decisions? What approaches have or have not been successful for multi-nationals in recruiting talent and a secure labor force? How do local laws, statutes and regulations affect these approaches?MODERATOR:Stephen B. Moldof, Cohen, Weiss

and Simon LLP, New York, NYSPEAKERS:Hon. P. David Lopez, U.S. Equal


Owen E. Herrnstadt, International Association of Machinists & Aerospace Workers, AFL-CIO, Upper Marlboro, MD

Danny J. Kaufer, Heenan Blaikie LLP, Montréal, Québec

Anne M. Radolinski, Fredrikson & Byron, P.A., Minneapolis, MN

Gerlind Wisskirchen, CMS Hasche Sigle, Cologne, Germany

• 9:30 – 11:00 a.m.Knowing Right from Wrong: International Investigations Facing Employees and Employers AbroadVinings I How have the Foreign Corrupt Practices Act and the UK Bribery Act changed the face of global investigations? What are the roles of labor and employment lawyers in investigations and discovery in cases involving allegations of fraud, theft of a company’s trade secrets and other violations of local law? What considerations apply for e-discovery, privacy protections, and employee interviews?MODERATOR:Mark S. Dichter, Morgan, Lewis

& Bockius LLP, Philadelphia, PASPEAKERS:D. Jan Duffy, Management Practices Group,

San Francisco, CA Melissa Lea, SAPAG, Philadelphia, PA David A. Lowe, Rudy, Exelrod, Zieff &

Lowe, LLP, San Francisco, CARebekah J. Poston, Squire Sanders LLP,

Miami, FL

• 2:00 – 3:00 p.m.Drafting Expatriate Agreements International C This program will address the basic elements of an expatriate agreement when sending U.S. employees abroad. It will examine major provisions such as notice, termination, jurisdiction and choice of law and also focus on tax, social security and family issues unique to the expatriate employee.MODERATOR:Wendi S. Lazar, Outten & Golden LLP,

New York, NY SPEAKERS:Paul Callaghan, Taylor Wessing LLP,

London, EnglandJames P. Klein, Pillsbury Winthrop Shaw

Pittman LLP, New York, NYK. Lesli Ligorner, Simmons & Simmons LLP,

Shanghai, China Gary R. Siniscalco, Orrick, Herrington

& Sutcliffe LLP, San Francisco, CA Mary K. Williams, The Coca-Cola Company,

Atlanta, GA

• Plenary Session• 11:15 a.m. – 12:30 p.m.

Supreme Court Review Peachtree Ballroom A-F Attend this must-hear presentation by the ABA Section of Labor & Employment Law Secretary, who will provide a lively review of the U.S. Supreme Court’s 2011-2012 decisions.SPEAKER:Hon. Mark W. Bennett, U.S. District Court for

the Northern District of Iowa, Sioux City, IA


Thursday’s 3:30 – 3:50 p.m. refreshment break is sponsored by Seyfarth Shaw LLP.

• Traditional Labor Track• 8:00 – 9:15 a.m.

The Race to the Ballot Box: A Review of Current and Possible Future NLRB Election Procedures International C The rules may be changing. Are you poised to win the race? Will the race be over before you’ve even made your case? Join experienced labor law practitioners and an NLRB representative to discuss the legal and practical implications of the changing world of NLRB election rules. What is the effect of shortened elections? What is the effect of postponing the determination of unit issues until post-election? What has been the impact of bench rulings from the ALJ without the benefit of post-hearing briefs? These questions and more will be discussed and debated by the panel. The panelists will further discuss their thoughts around any additional anticipated changes in representation cases before the Board.


MODERATOR:Anne G. Purcell, National Labor Relations

Board, Washington, DC SPEAKERS:Stanley M. Gosch, Rosenblatt & Gosch LLC,

Greenwood Village, COM. Jefferson Starling, III, Balch &

Bingham LLP, Birmingham, AL

• 9:30 – 11:00 a.m.Occupy NLRB: Social Protest and Labor Law International E-F This panel will explore the issues stemming from the Occupy Movement, calls for general strikes, civil disobedience and the labor movement’s participation in such social protests, including which forms of social protest are protected under Sec. 7 and which forms give rise to liability for employees or unions under tort or secondary boycott law.MODERATOR:Denise M. Keyser, Ballard Spahr LLP,

Cherry Hill, NJSPEAKERS:Dora Chen, Service Employees International

Union, Washington, DC Richard G. McCracken, Davis Cowell &

Bowe LLP, San Francisco, CA Anneliese Wermuth, Meckler Bulger Tilson

Marick & Pearson LLP, Chicago, ILT. Jeff Wray, Fulbright & Jaworski L.L.P.,

Houston, TX

• 2:00 – 3:00 p.m.Sports, Labor and Antitrust Law: A Look Back and a Look Forward International D Antitrust and labor law considerations collided in the 2011 NFL and NBA lockouts. Expert litigators heavily involved in these disputes, along with media commentators, will give their views on what went wrong, what went right, and what the future holds after Brady et al. v. NFL. The panel will explore the intersection of traditional NLRB decertification, disclaimer of interest, bad-faith bargaining and labor injunction doctrines with the world of antitrust jurisprudence. Panelists also will offer their thoughts on the difficult ethical and business issues raised by the seriatim representation of unions, and then individual players, as clients.MODERATOR:David M. Prouty, Major League Baseball

Players Association, New York, NYSPEAKERS:Jeffrey L. Kessler, Winston & Strawn LLP,

New York, NYSteven D. Wheeless, Steptoe & Johnson LLP,

Phoenix, AZ

• 3:30 – 4:45 p.m.Who Is Winning: An Up-to-the-Minute Update of Developments under the National Labor Relations Act International E-F This program will provide a timely and thought provoking review of the new and important unfair labor practice and representation decisions issued by the NLRB, the Federal Appellate Courts and the U.S. Supreme Court.MODERATOR:Charles A. Shanor, Emory University

School of Law, Atlanta, GASPEAKERS:Susan Davis, Cohen, Weiss and Simon LLP,

New York, NYBrent L. Wilson, Elarbee, Thompson,

Sapp & Wilson, LLP, Atlanta, GA

• Wage and Hour Track• 3:30 – 4:45 p.m.

What’s Missing from the Department of Labor Regulations: A Litigator’s Wish ListInternational G-H Despite the nearly 75 years since the passage of the Fair Labor Standards Act, most practitioners would agree that the Act and its implementing regulations are silent or contain gaps in critical areas. Our experts will discuss some of these silences or gaps that may protract litigation given the uncertainty and perspectives on how to address them. Some of these issues will include (1) equitable tolling of the statute of limitations; (2) what type of affirmative defenses are or should be available, e.g., Farragher/Ellerth; (3) who are “similarly situated” employees; (4) contents of notices to join collective action lawsuits; and (5) whether the Act’s provisions requiring employers to inform employees of their rights, i.e., 3(m), require such communication to be in languages other than in English.MODERATOR:Jahan C. Sagafi, Lieff, Cabraser, Heimann

& Bernstein, LLP, San Francisco, CASPEAKERS: J. Derek Braziel, Lee & Braziel, L.L.P.,

Dallas, TXRandel K. Johnson, U.S. Chamber of

Commerce, Washington, DCTheodora R. Lee, Littler Mendelson P.C.,

San Francisco, CA Gregory K. McGillivary, Woodley &

McGillivary, Washington, DC Catherine K. Ruckelshaus, National

Employment Law Project, New York, NY

Friday, November 2• 6:30 a.m. – 5:30 p.m.



Sponsored by: Jones Day Atlanta Ballroom

• 7:00 – 8:00 a.m.Standing Committee Business Meetings ADR in Labor & Employment Law, International DEthics & Professional Responsibility, Vining IIEqual Employment Opportunity Law, Augusta I-II Federal Labor Standards Legislation, International G-H International Labor & Employment Law, International CPractice and Procedure under the NLRA, International E-FState & Local Government Bargaining & Employment Law, (9:45–10:45 a.m.) International BWorkers’ Compensation, International B


6:00 – 8:00 p.m. Reception Honoring

Diversity in the Profession at the Martin Luther King, Jr. Center

Presented by ABA Equal Opportunity in the Legal Profession Committee

Co-Sponsored by American Arbitration Association; Bradley Arant Boult Cummings

LLP; Butler Snow; Charles River & Associates; Fisher & Phillips; Fulbright &

Jaworski; Heenan Blaikie; Kass Shuler P.A.; Laner Muchin; Lieff Cabraser Heimann & Bernstein, LLP; Morgan, Lewis &

Bockius LLP; Morrison & Foerster; NERA Economic Consulting; Ogletree Deakins;

Orrick; Outten & Golden LLP; Proskauer Rose LLP; Schiff Hardin

Join us for a social and networking reception for lawyers of color; female

lawyers; lesbian, gay, bisexual and transgender lawyers; disabled lawyers;

and all those who support the Section’s vision of diversity and inclusion.

Transportation will be provided from the Westin beginning at 5:30 pm.

Continued on page 16


4:00pm – 5:30pm Pre-Conference Programs for Union, Employee/Plaintiff and Government Attorneys Union (Augusta II), Employee/Plaintiff (Roswell I), Government (Augusta I)

6:00pm – 6:30pm First-Time Attendee/New Section Member Reception Plaza Ballroom Plaza Ballroom

6:30pm – 8:30pm Welcome Reception and Committee Expo Plaza Ballroom

TRACKS Alternative Dispute Resolution Consulting Employee Benefits Ethics Federal Sector Fundamentals In-House Counsel International Traditional Labor Wage and Hour

TRACKS Class Action Consulting Discrimination and Retaliation Fundamentals Immigration Law Practice Development Litigation Wage and Hour

TRACKS Consulting Discrimination and Retaliation Ethics Fundamentals Law Practice Development Litigation Public Sector Technology Traditional Labor Wage and Hour

WEDNESDAY, OCTOBER 31

7:00am – 8:00am Continental Breakfast Atlanta Ballroom

7:00am – 8:00am Continental Breakfast Atlanta Ballroom / Standing Committee Business Meetings

7:00am – 8:00am Continental Breakfast Atlanta Ballroom / Standing Committee Business Meetings

12:30pm – 2:00pm First-time Conference Attendee/New Section Member Orientation Luncheon Plaza Ballroom

12:45pm – 2:00pm An Exploration of Careers in Labor & Employment Law The Overlook

12:30pm – 2:00pm Diversity Luncheon Plaza Ballroom

12:30pm – 2:00pm Pro Bono Luncheon and Workshop Augusta I-II

THURSDAY, NOVEMBER 1

SATURDAY, NOVEMBER 3

FRIDAY, NOVEMBER 2

8:00am – 9:15am Keeping Your Client in the Driver’s Seat: Advanced Techniques

for Employment Mediation

A Penny for Your Thoughts: Employee Privacy, Employee

Monitoring and Employer Perils

Electronic Dumpster Diving:

The Legal Ethics of “TMI”

8:00am – 9:15am The Survivors Post-Dukes and Ricci: Cases About Biased Tests and Job

Requirements That Have Not Been Validated

I’ll See You on CNN: Effective Use of the Media

In and Out of Litigation

USERRA: What Every Practitioner Should Know When GI Joe and GI Jane Come Marching Home

Beyond Weingarten Rights: The NLRA’s Impact on Non-Union Employers

State and Federal Immigration Laws: The Crossroads of Unauthorized

Employment

8:00am – 9:30am ADEA RFOA: Implications and Impact of the EEOC’s Final Rule

The Ethics of Advertising and Promotion

in the 21st Century

Riffing About RIFs: Pursuing and Defending Claims Involving Reductions in Force I Went to Law School to Avoid Math:

OFCCP 101

Delivering Value and Efficiency with Technology

9:30am – 11:00am The Suspension of Nurse Kevin: Advocacy Best Practices in

Labor Arbitration

Executive Behavior Run Amok: Ethical and Strategic Considerations for Counsel “Brave” Enough

to Step into a High Level Workplace Investigation

Is Your Executive Compensation Agreement Covered by ERISA?

9:30am – 11:00am Will Concepcion and Stolt-Nielsen End Class Litigation?

Risky Business: Litigating Retaliation Claims

The Scylla and Charybdis of RLA Major Disputes: Presidential Emergency

Board or Interminable Delay

The Real Cost of Human Trafficking: What It Is and How U.S.

Immigration Law Can Help

9:45am – 10:45am The Interactive Process: Negotiating Accommodations

under the ADA

Counseling HR on National Origin and Language in the Workplace

EPLI For Dummies What Labor and Employment Lawyers Need

to Know about Financial Statements

2:00pm – 3:00pm The Government Cares About My Profile? Latest Trends in Federal Regulation

of Social Media

Age Discrimination and ERISA

The Real Housewives, Househusbands, and Housepartners of Atlanta:

Trends in Employment Discrimination against LGBT Individuals

2:00pm – 3:30pm And the Two Shall Become One: Effectively Managing the Labor and Employment

Implications of Mergers and Acquisitions

Who’s Got the Ball: Practical Implications When “Too Many”

Stakeholders Are Involved in Litigation

Workplace Harassment: What You Need to Know

Whistleblowing as Enforced by OSHA

3:30pm – 4:45pm A Graduate Course in Employment Arbitration: Beyond the Basics

Family Responsibility Discrimination

Practicing in a Virtual World: E(thics) = MJP2

3:50pm – 5:20pm Getting What You Want: Negotiating Skills and Strategies

for Employment Lawyers

Harassment By Any Other Name Would Cost as Dear

Agents of Change: A Fortune 250 Perspective on What Matters Most with the

Lawyers and the Firms We Hire

Preparing for the Battle of the Experts: A Beginner’s Guide to Expert Discovery

Both Sides Want Out! Top Tips for Negotiating Enforceable Settlement Agreements

12:30pm – 2:00pm In-House Corporate Counsel Luncheon Roswell I-II

11:15am – 12:30pm Plenary Session: Supreme Court Review Peachtree Ballroom A-F

11:15am – 12:30pm Plenary Session: Personal Histories: Investigating and Forgetting on the Web Peachtree Ballroom A-F

12:30pm – 2:00pm The College of Labor and Employment Lawyers: The Judge’s Perspective: An Inside Scoop on Civility and Professionalism in the Courtroom International C

11:00am – 12:15pm Plenary Session: The Future of Labor and Employment Law: Thought Leaders in Our Field Answer the Toughest Questions Peachtree Ballroom A-F

6:00pm – 8:00pm Reception Honoring Diversity in the Profession at the Martin Luther King, Jr. Center

7:30pm – 10:30pm Conference Reception at the Georgia Aquarium

6th Annual Labor and Employment Law Conference Program Schedule at-a-Glance

6th Annual Labor and Employment Law Conference • October 31–November 3, 2012 • Atlanta, Georgia 15

TRACKS Alternative Dispute Resolution Consulting Employee Benefits Ethics Federal Sector Fundamentals In-House Counsel International Traditional Labor Wage and Hour

TRACKS Class Action Consulting Discrimination and Retaliation Fundamentals Immigration Law Practice Development Litigation Wage and Hour

TRACKS Consulting Discrimination and Retaliation Ethics Fundamentals Law Practice Development Litigation Public Sector Technology Traditional Labor Wage and Hour

Oh What a Tangled Web We Weave: The ADAAA, FMLA, Workers’ Compensation and GINA Knot

Bridge Over Troubled Waters: Dealing with the Problem Employee

Managing a Multinational Workforce in a Global Marketplace

The Race to the Ballot Box: A Review of Current and Possible Future NLRB Election Procedures

E-Discovery Atlanta: Aspects of Technology to Consider in E-Discovery

Let’s Do the Math: Computing Damages in

Wage and Hour Class Actions

Steps to an Effective Opening The Journalist Viewpoint: Does the Media Report an Accurate, Understandable and Complete

Portrayal of Public Sector Collective Bargaining?

Workplace Cyber Crimes: Are You a Victim or a Villain

Meet the National Labor Relations Board

Bankruptcy Boot Camp: What Employment Lawyers Need to Know

Workplace Defamation Claims

Knowing Right from Wrong: International Investigations Facing Employees and Employers Abroad

Occupy NLRB: Social Protest and Labor Law

How to Rise to Pre-eminency: Developing a Best in Class Labor

& Employment Law Practice

Testing and Presenting Statistical Evidence in Employment

Discrimination Cases

Point/Counterpoint: Hotly Contested and Unresolved Issues in Wage and Hour Law

Better Direct Examinations: Special Problems and Suggested Solutions

Telepresence in the Workplace

Meet the National Labor Relations Board Acting General Counsel

Compliance Issues from an In-House Perspective

Workers’ Compensation: Global Washout Agreements

Document Retention Programs: What In-House Counsel Need to Know and Do

Drafting Expatriate Agreements

Sports, Labor and Antitrust Law: A Look Back and a Look Forward

Better Cross Examinations: Special Problems and Suggested Solutions

One Year after Wisconsin and Ohio Social Media: Who’s Looking at You, Kid

The Real Law: Meet the National Labor Relations

Board Regional Directors

Independent Contractor Misclassification Issues

Wage and Hour Boot Camp Mirror, Mirror on the Wall, Who Is the Most Compliant of them All?

The Ins and Outs of HR Audits

Who Is Winning: An Up-to-the-Minute Update of Developments

under the National Labor Relations Act

What’s Missing from the Department of Labor Regulations:

A Litigator’s Wish List

Appellate Advocacy: How to Win at the Court of Appeals

Come Fly with Me: Investment Decisions

and Section 7

Birds of a Slightly Different Feather: Wage and Hour Issues Affecting

Labor and the Public Sector

A Storm Is A-Brewin’: Preparing to Weather the Use of

Cloud Computing in the Workplace

12:30pm – 2:00pm The College of Labor and Employment Lawyers: The Judge’s Perspective: An Inside Scoop on Civility and Professionalism in the Courtroom International C

6th Annual Labor and Employment Law Conference Program Schedule at-a-Glance


• 9:45 – 10:45 a.m.Standing Committee Business Meeting State & Local Government Bargaining & Employment Law, International B

and employees can properly utilize the interactive process to determine appropriate and effective accommodations for employees. The panel will provide guidance for the training of managers and supervisors on these issues and address the particularly relevant issues of accommodation and collective bargaining agreements and accommodation and conduct standards for employees.MODERATOR:Alison T. Vance, Butler, Snow, O’Mara,

Stevens & Cannada, PLLC, Jackson, MSSPEAKERS:Hon. Chai R. Feldblum, U.S. Equal


Wynter P. Allen, Alden Law Group, Washington, DC

Bobbie J. Fox, SCF Arizona, Phoenix, AZDaniel B. Kohrman, AARP Foundation,

Washington, DC

• 2:00 – 3:30 p.m.And the Two Shall Become One: Effectively Managing the Labor and Employment Implications of Mergers and Acquisitions Vinings I-II Even in a down economy, mergers and acquisitions activity remains robust as companies look to grow operations by combining with other businesses or try to reduce costs by spinning off divisions and business lines. Although corporate and financial matters attract the biggest headlines, a multitude of labor, employment and employee benefit issues are necessary and instrumental elements of the deals. Regardless of whether practitioners represent buyers, sellers, investors or workers who may be affected by the transactions, counsel need to understand these issues and to be armed with strategies for handling them. This panel will provide guidance on these issues and strategies and will highlight best practices for management, union and employee counsel. In particular, the panel will discuss key due diligence considerations from the perspectives of union, management and in-house counsel, provide guidance on employee benefits issues and data privacy obligations that arise in mergers and acquisitions, and offer insight into strategies for avoiding legal claims from employees who are affected by the transactions.MODERATOR:Vicki Lafer Abrahamson, Abrahamson

Vorachek & Levinson, Chicago, IL SPEAKERS:Donald C. Dowling, Jr., White & Case LLP,

New York, NYJ. Lindsay Johnston, Bryn Mawr, PADavid R. Jury, United Steelworkers Union,

Pittsburgh, PA

• 3:50 – 5:20 p.m.Getting What You Want: Negotiating Skills and Strategies for Employment LawyersPeachtree Ballroom A-C How can you meet your client’s goals as fully as possible in an employment negotiation? Success in negotiating requires as much preparation, strategy and focus as any step in litigation, and the lawyer who blithely charges into a negotiation without serious planning will likely perform poorly. This presentation by expert mediator and professional negotiation trainer David Ross will vividly demonstrate how you can negotiate employment disputes to maximize your chances of success, avoid tripping on unforeseen obstacles, and strengthen your relationship with your clients. You will leave with new insights about how the negotiation process works and practical tips you can use the next time you sit down at the negotiating table.SPEAKER:David S. Ross, JAMS, New York, NY

• Discrimination and Retaliation Track

• 8:00 – 9:30 a.m.ADEA RFOA: Implications and Impact of the EEOC’s Final Rule International D The program will feature an interactive discussion with the EEOC and private practitioners on insights on the final rule regarding RFOA (reasonable factors other than age) as well as case law interpreting RFOA. The panel also will offer practical strategies and considerations for age claim litigation.MODERATOR:Brenda Sutton-Wills, California Teachers

Association, Santa Fe Springs, CASPEAKERS:Paula Graves Ardelean, Butler, Snow,

O’Mara, Stevens & Cannada, PLLC, Ridgeland, MS

Eric L. Barnum, Schiff Hardin LLP, Atlanta, GA

Mika M. Hilaire, Appell, Hilaire, Benardo LLP, Sherman Oaks, CA

Dianna B. Johnston, U.S. Equal Employment Opportunity Commission, Washington, DC

• 9:45 – 10:45 a.m.Counseling HR on National Origin and Language in the Workplace International C Workplaces across America continue to become more diverse each year. While many employers and unions routinely welcome such diversity, sometimes sensitive issues regarding culture and language arise, leaving

6th Annual Labor and Employment Law Conference Program Schedule Friday, November 2

12:30 – 1:50 p.m.Diversity Luncheon

Plaza Ballroom Sponsored by: Arent Fox; O’Melveny &

Meyers; Outten & Golden; Proskauer RoseBen Foss is the inventor of the Intel Reader,

a technology for dyslexics, like him, that CNN called “too ground breaking to ignore.” Mr. Foss is an attorney and disability rights leader who empowers audiences to tap into

their creativity to change the world. His luncheon presentation will focus on diversity and workforce development for legal and human resource professionals, with an emphasis on the business and

social power of inclusion.


The Interactive Process: Negotiating Accommodations under the ADAAugusta I-II The EEOC’s regulations under the Americans with Disabilities Act (ADA) and the EEOC’s Enforcement Guidance on Reasonable Accommodations instruct that an interactive dialogue between an employee and employer is a vital component of the reasonable accommodation process. The passage of the ADA Amendments Act and the promulgation of the EEOC’s final updated ADA regulations have moved this long-neglected process back into the spotlight. This expert panel will discuss the elements of the interactive process as put forward in EEOC regulations, EEOC Guidance, and subsequent case law from a practical perspective, and focus on how employers

Friday, November 2Continued from page 13



type tort and criminal claims that employees and third parties can pursue and how employers can proactively prevent and promptly respond to such claims.MODERATOR:Monique Gougisha Doucette, Ogletree,

Deakins, Nash, Smoak & Stewart, P.C., New Orleans, LA

SPEAKERS:Christopher B. Dolan, The Dolan Law Firm,

San Francisco, CA Diane I. Smason, U.S. Equal Employment

Opportunity Commission, Chicago, ILJohn L. Quinn, Quinn, Connor, Weaver,

Davies & Rouco LLP, Atlanta, GA

• Ethics Track• 8:00 – 9:30 a.m.

The Ethics of Advertising and Promotion in the 21st CenturyVinings II The use of the Internet by legal service providers creates a wide range of ethical issues having to do specifically with lawyer advertising and solicitation. The ABA Model Rules of Professional Conduct were promulgated in 1983, more than a decade before the widespread use of the Internet as a tool for marketing legal services. This results in an imperfect fit between the technology and lawyer advertising that raises many questions about the nature of specific communication tools. This panel will discuss business-generating methodologies in light of 21st Century technologies. It also will address the constitutionality of restrictions on lawyer advertising and solicitation in light of recent technology.MODERATOR:Dayna E. Underhill, Hinshaw

& Culbertson LLP, Portland, ORSPEAKERS:Michael Z. Green, Texas Wesleyan

University, Fort Worth, TXChristina Petrig, State Bar of Georgia,

Atlanta, GABeth E. Terrell, Terrell Marshall

& Daudt PLLC, Seattle, WA

Friday’s 11:00 – 11:20 a.m. refreshment break is sponsored by Greenberg Traurig LLP.


• 8:00 – 9:30 a.m. (Concurrent Programs) Riffing About RIFs: Pursuing and Defending Claims Involving Reductions in Force Roswell I-II In a down economy, reductions in force are commonplace. They are also a frequent source of litigation involving claims of disparate

impact, among others. In this introductory program, illustrated by entertaining video clips, panelists will examine how to aid employers in legally structuring a RIF, how to pursue a claim involving a RIF gone wrong, and how to defend those claims.MODERATOR:Joyce E. Margulies, Margulies Employment

Law Consulting, Memphis, TNSPEAKERS:James F. Allmendinger, NEA-New

Hampshire, Concord, NHJeffrey C. Brodin, Phoenix, AZJ. Randall Coffey, Fisher & Phillips LLP,

Kansas City, MOVirginia L. Hardwick, Hardwick Collier LLC,

Doylestown, PA

• 8:00 – 9:30 a.m.I Went to Law School to Avoid Math: OFCCP 101 International G-H What is the Office of Federal Contract Compliance Program and how do OFCCP issues arise? What are the essential elements of an affirmative action plan and how are they developed? How are OFCCP statistics developed and used? This program will provide answers to these questions and more! Learn from the experts why you shouldn’t be afraid of numbers.MODERATOR:T. Scott Kelly, Ogletree, Deakins, Nash,

Smoak & Stewart, P.C., Birmingham, AL SPEAKERS:Hon. M. Patricia Smith, U.S. Department

of Labor, Washington, DC David S. Fortney, Fortney & Scott, LLC,

Washington, DCGrace H. Han, GE Industrial Systems,

Plainville, CT

• 9:45 – 10:45 a.m. (Concurrent Programs) EPLI For Dummies Vinings II What is Employment Practices Liability Insurance? What does EPLI cover and what doesn’t it cover? How does the existence of EPLI change the landscape of settlement negotiations at various stages of pre-litigation and litigation? Why do plaintiffs’ employment lawyers need to learn of the existence of EPLI and what information can be crucial to a successful settlement or a well-pleaded complaint?MODERATOR:Joseph H. Yastrow, Laner, Muchin,

Dombrow, Becker, Levin and Tominberg, Ltd., Chicago, IL

SPEAKERS:Stephanie D. Gironda, Wilentz, Goldman

& Spitzer P.A., Woodbridge, NJMichelle Lafferty, Hylant Group, Chicago, ILBridget A. Murray, The Chubb Group

Insurance Company, Pittsburgh, PA

many Human Resources professionals contacting their attorneys for legal advice. This panel will discuss recent developments in national origin discrimination and provide practical advice on common issues, such as implementing language policies in the workplace, hiring contingent workers from foreign countries, and adopting effective E-Verify practices.MODERATOR:Anne B. Shaver, Lieff, Cabraser, Heimann

& Bernstein, LLP, San Francisco, CASPEAKERS:William J. Daley, U.S. Foods, Rosemont, ILChristopher Ho, Legal Aid Society

Employment Law Center, San Francisco, CAGening Liao, Steinsapir, Dohrmann &

Sommers LLP, Los Angeles, CA Eric A. Tate, Morrison & Foerster LLP,

San Francisco, CA

• 2:00 – 3:30 p.m.Who’s Got the Ball: Practical Implications When “Too Many” Stakeholders Are Involved in LitigationInternational B Plaintiffs representing co-workers, the EEOC, union representatives, employers, EPLI providers, bankruptcy trustees, individual defendants, etc., all may have a significant role in just one lawsuit. Discrimination and retaliation lawsuits are likely to become complicated quickly when there really are too many cooks in the kitchen. This panel will provide insights and strategies with regard to the roles different parties should play when the roster is full. The panel will discuss ways to make the most of a disorganized group, as well as ways to streamline the work and cooperate, including various formalities that must be considered in different jurisdictions.MODERATOR:Denise K. Drake, Littler Mendelson P.C.,

Kansas City, MOSPEAKERS:Ellen L. Eardley, Mehri & Skalet, PLLC,

Washington, DCAnna M. Pohl, U.S. Equal Employment

Opportunity Commission, New York, NYMichael Reiss, Davis Wright Tremaine LLP,

Seattle, WA Jean Shin, California Teachers Association,

Santa Fe Springs, CA

• 3:50 – 5:20 p.m.Harassment By Any Other Name Would Cost as DearPeachtree Ballroom D-F Employees are facing and creating a variety of experiences at work that create hostile environments—bullying, intimidation, assault, gender stereotyping and sexual orientation discrimination. The panel of experts will discuss the variety of harassment


• 9:45 – 10:45 a.m.What Labor and Employment Lawyers Need to Know about Financial Statements Roswell I-II What are the most important parts of income statements and balance sheets to labor and employment lawyers? Experts will guide panelists through a how-to about interpreting and analyzing financial statements.MODERATOR:Kurt D. Needles, Needles & Associates LLC,

Denver, CO SPEAKERS:Howard S. Hisrch, Baker, Donelson,

Bearman, Caldwell & Berkowitz, PC, Atlanta, GA

Michelle C. Yau, Cohen Milstein Sellers & Toll PLLC, Washington, DC

• 2:00 – 3:30 p.m. (Concurrent Programs) Workplace Harassment: What You Need to Know Peachtree Ballroom A-C How much is too much? Through specific examples and video clips, this program will analyze the basic elements of a harassment claim, including how to identify, establish and defend against “severity,” “pervasiveness,” and “unwelcomeness.” Panelists also will address the pros and cons of lawyers acting as investigators of harassment allegations.MODERATOR;Lynlee Wells Palmer, Gilpin Givhan, PC,

Birmingham, AL SPEAKERS:Lisa C. Demidovich, United Nurses

Association of California, San Dimas, CADavid L. Johnson, Butler, Snow, O’Mara,

Stevens and Cannada, PLLC, Nashville, TNHeather F. Lindsay, Lindsay & Andrews,

P.A., Miami, FL Tamika D. Lynch, Siemens Industry, Inc.,

Buffalo Grove, IL

• 2:00 – 3:30 p.m.Whistleblowing as Enforced by OSHAInternational G-H To say that the number of federal whistleblower claims has risen to new heights of late and that the federal government encourages their filing would be to understate the matter. This session will focus on the newest legal developments in the area of whistleblowing, particularly under the 21 statutes with anti-retaliation provisions that OSHA is responsible for enforcingMODERATOR:Lisa J. Banks, Katz, Marshall & Banks, LLP,

Washington, DC

SPEAKERS:Eric J. Amdursky, O’Melveny & Myers LLP,

Newport Beach, CAMegan Guenther, U.S. Department of Labor,

Washington, DCPaul O. Taylor, Truckers Justice Center,

Burnsville, MN

• 3:50 – 5:20 p.m. (Concurrent Programs) Preparing for the Battle of the Experts: A Beginner’s Guide to Expert Discovery International C You have been called up to the Big Leagues and asked by the senior partner to prepare for the cross-examination of your opponent’s expert witness (or maybe you have been asked to work with your own expert on finalizing the expert report and prepping the expert for deposition). This session will provide top tips on what you need to know for your new role. When does the attorney-client privilege or attorney work product doctrine apply? What ethical issues are involved when consulting with experts on your client’s positions and their final reports? These issues, and more, will be explored through live demonstrations of expert witness preparation and deposition. We also will hear from the experts themselves on what they think you should be asking.MODERATOR:Richard W. Warren, Miller, Canfield,

Paddock and Stone, P.L.C., Detroit, MISPEAKERS:Mary D. Baker, ERS Group, Tallahassee, FLJoseph C. Liburt, Orrick, Herrington &

Sutcliffe LLP, Menlo Park, CARoberta L. Steele, Goldstein, Demchak,

Baller, Borgen & Dardarian PC, Oakland, CA

• 3:50 – 5:20 p.m.Both Sides Want Out! Top Tips for Negotiating Enforceable Settlement Agreements Vinings I-II With only a small percentage of employment cases reaching the trial stage, it is imperative that every employment lawyer know the ins and outs of effective settlement negotiations and enforceable settlement agreements. How should the parties prepare for mediation or facilitation? What factors are taken into consideration when determining the value of the case? Are there any taxation issues with the economic terms? Does your settlement involve reporting obligations under the Medicare Secondary Payer Act? What about the non-economic terms involved in negotiations, such as an agreement not to re-apply, confidentiality agreements and non-disparagement clauses? What do you do when a third-party, such as the EEOC, state civil rights agency or union has a concurrent

charge or grievance, and therefore, an interest in your settlement? Watch as the answers to these questions unfold during a mock settlement proceeding.MODERATOR:Jennifer L. Sabourin, Miller, Canfield,

Paddock and Stone, P.L.C., Detroit, MISPEAKERS:Jonathan A. Bernstein, Levy Davis

& Maher, LLP, New York, NYRachel J. Minter, The Law Offices of

Rachel R. Minter, New York, NYMichael J. Puma, Morgan, Lewis

& Bockius LLP, Philadelphia, PA

• Law Practice Development Track

• 8:00 – 9:30 a.m.Delivering Value and Efficiency with Technology International C Speakers will discuss such topics as using technology to make the law practice more efficient, thus improving service to clients and their own profitability, as well as the use of client based intranets and of technology for depositions and trial. The panel will cover hardware; software; tablets; portability issues, the cloud and selection, cost, training of users and practical applications of various forms of technology.MODERATOR:Douglas E. Dexter, Farella Braun + Martel

LLP, San Francisco, CASPEAKERS:Natalie R. Kelly, State Bar of Georgia,

Atlanta, GAHeather R. Pruger, Saul Ewing LLP,

Baltimore, MDMarisa Warren, Pedowitz & Meister, LLP,

New York, NY

• 3:50 – 5:20 p.m.Agents of Change: A Fortune 250 Perspective on What Matters Most with the Lawyers and the Firms We HireInternational D This program will consist of an interactive panel discussion by senior law department executives on strategic initiatives that align the focus of the outside law firms and vendors they utilize with company initiatives. Key issues like diversity, workplace balance, flexible work schedules, and partnering to promote a client’s business will be discussed.MODERATOR:Jeffrey D. Patton, Spilman Thomas

& Battle, PLLC, Winston-Salem, NC



SPEAKERS:Evelyn H. Brantley, E. I. du Pont de

Nemours and Company, Wilmington, DECarol Rick Gibbons, Capital One,

Richmond, VASharon R. Ryan, International Paper

Company, Memphis, TNMichael Spencer, Wal-Mart Stores, Inc.,

Bentonville, AR

• Litigation Track• 8:00 – 9:30 a.m.

Steps to an Effective Opening Augusta I-II Attorneys preparing for trial know that an effective opening can often make or break a case. This session will draw upon the knowledge of experienced attorneys in order to develop a litigation “story line,” and how to highlight this in the opening statement. Participants will leave with a road map of effective steps to use in generating an effective opening statement and communicating a litigation story line to the judge and jury.MODERATOR:Mark D. Risk, Mark Risk PC, New York, NYSPEAKERS:Hon. Steve C. Jones, U.S. District Court for

the Northern District of Georgia, Atlanta, GAGary B. Eidelman, Saul Ewing LLP,

Baltimore, MDAmanda A. Farahany, Barrett

& Farahany LLP, Atlanta, GAHal K. Gillespie, Gillespie, Rozen

& Watsky, P.C., Dallas, TXAdele Rapport, Chicago, IL

• 9:45 – 10:45 a.m.Better Direct Examinations: Special Problems and Suggested Solutions International D Experienced lawyers and a federal judge demonstrate and comment on a series of vignettes representing real life problems in presenting a direct examination. Issues might include how to tell a story through the witness, how to make the testimony more lively, problems unique to counsel for individuals, employers and unions. This will be an advanced program, specific problems will be identified, demonstrated and discussed.MODERATOR:Maureen S. Binetti, Wilentz, Goldman

& Spitzer P.A., Woodbridge, NJSPEAKERS:Hon. Wiley Y. Daniel, U.S. District Court

for the District of Colorado, Denver, COJuan C. Enjamio, Hunton & Williams LLP,

Miami, FLJohn L. Quinn, Quinn, Connor, Weaver

& Davies LLP, Decatur, GA

Dane L. Steffenson, U.S. Department of Labor, Atlanta, GA

• 2:00 – 3:30 p.m.Better Cross Examinations: Special Problems and Suggested Solutions Peachtree Ballroom D-F A companion program to the direct examination program, a federal judge and experienced litigators will demonstrate pieces of cross examinations highlighting issues and problems chosen by the panelists. Issues include contrasting styles of cross, proper tone, leading and non-leading questions, and impeachment techniques. This will be an advanced program in which the panelists identify and demonstrate particular issues and problems, and discuss solutions.MODERATOR:Elaine D. Koch, Bryan Cave LLP,

Kansas City, MOSPEAKERS:Hon. Rebecca R. Pallmeyer, U.S. District

Court for the Northern District of Illinois, Chicago, IL

Lynette A. Barnes, U.S. Equal Employment Opportunity Commission, Charlotte, NC

Robert L. Herbst, Giskan, Solotaroff, Anderson & Stewart, New York, NY

Julie Richard-Spencer, Robein, Urann, Spencer, Picard and Cangemi, APLC, Metairie, LA

• 3:50 – 5:20 p.m.Appellate Advocacy: How to Win at the Court of AppealsRoswell I-II Appealing is a difficult and expensive risk. Success rates are especially low for plaintiffs. A 2009 study found that winning employers are reversed 8.72% of the time, while winning plaintiffs are reversed 41.10% of the time. This experienced panel will discuss important factors in deciding whether to appeal, the timing of the appeal, and the difference in briefing at the trial court level and at the appellate court level. Learn strategies and best arguments from the filing of the notice to the final order.MODERATOR:Michael C. Subit, Frank Freed Subit &

Thomas LLP, Seattle, WASPEAKERS:Hon. Ronald L. Gilman, U.S. Court of

Appeals for the Sixth Circuit, Memphis, TNHon. Raymond J. Lohier, Jr., United States

Court of Appeals for the Second Circuit, New York, NY

Paul W. Cane, Jr., Paul Hastings LLP, San Francisco, CA

James Coppess, AFL-CIO, Washington, DC


The Future of Labor and Employment Law: Thought Leaders in Our Field Answer the Toughest Questions Peachtree Ballroom A-F After decades of legislation, court battles and policy debates, our society is at a critical point in how it handles crucial workplace issues. With the increasing diversity of our workforce, how relevant and useful are single-plaintiff employment discrimination cases? Are the divisions in our society still based as much on ethnicity or are they more a function of economic status? What wrongs remain to be remedied? Unions now represent a smaller fraction of private sector employees, and are on the defensive in many states in the public sector. Where would employees and employers be without them? Are non-unionized workplaces really in employers’ self-interest? With predictions for a significant shortage of highly trained, well-educated employees, and with the baby boomers retiring, how will employers recruit the talent they need, and will employees and unions find themselves with increased bargaining power? This panel of leading experts will discuss and debate what direction society will or should take on some of the most difficult public policy issues in labor and employment law.MODERATOR:Barbara J. D’Aquila, Fulbright & Jaworski

L.L.P., Minneapolis, MNSPEAKERS:Craig Becker, AFL-CIO, Washington , DCBarry Goldstein, Of Counsel, Goldstein,

Demchak, Baler, Borgen & Dardarian PC, Oakland, CA

Howard M. Radzely, Morgan, Lewis & Bockius LLP, Washington, DC

Friday’s 3:30 – 3:50 p.m. refreshment break is sponsored by Baker Hostetler LLP.

• Public Sector Track• 8:00 – 9:30 a.m.

The Journalist Viewpoint: Does the Media Report an Accurate, Understandable and Complete Portrayal of Public Sector Collective Bargaining?International B What does the media know of public sector collective bargaining and are they familiar with the law, the process and/or the issues? Do they accurately report the compromises? Do they know the difference between facts and propaganda? Panelists will discuss



what employers and unions can/should do to ensure that the public is appropriately informed without undermining the necessary confidential nature of the bargaining process.MODERATOR:Wendy L. Kahn, Zwerdling, Paul, Kahn

& Wolly, P.C., Washington, DCSPEAKERS:Philip M. Dine, Journalist/Author,

Washington, DC David R. Fernstrum, Mika Meyers Beckett

& Jones PLC, Grand Rapids, MIDonald D. Slesnick, II, Law Offices of

Slesnick & Casey, LLP, Coral Gables, FL

• 2:00 – 3:30 p.m.One Year after Wisconsin and OhioRoswell I-II Panelists will discuss what has happened legislatively, legally, politically, financially and contractually in the states where extreme legislation was the trend the last two years, as well as how the electorate has reacted and how might they react in the upcoming presidential election. In addition, the panelists will consider how unions have coped and how they are responding, what public employers are doing and if they have seen the financial and operational “reforms” from these legislative changes, and how agency employees have been impacted.MODERATOR:Daniel J. Nielsen, Arbitrator/Mediator,

Kenosha, WISPEAKERS:George S. Crisci, Zashin & Rich Co., L.P.A.,

Cleveland, OHJoyce Goldstein, Goldstein Gragel LLC,

Cleveland, OHTimothy E. Hawks, Hawks Quindel, S.C.,

Milwaukee, WISusan Martin, Martin & Bonnett, P.L.L.C.,

Phoenix, AZ

• Technology Track • 8:00 – 9:30 a.m.

Workplace Cyber Crimes: Are You a Victim or a VillainVinings I This panel will explore employee and employer liability under the Computer Fraud and Abuse Act, the Stored Communications Act, the Electronic Communications Privacy Act, and various state laws, including recent cases discussing the liability of departing employees for theft or misappropriation of trade secrets and confidential information stored on an employer’s computer network. The panel also will explore the circumstances under which employers should (or are obligated) to report certain cyber crimes—such as employees viewing or storing child pornography on the employer’s network.

MODERATOR:Gary Glaser, Seyfarth Shaw LLP, New York, NYSPEAKERS:Bryan Dunne, Matheson Ormsby Prentice,

Dublin, IrelandLeslie J. Hagin, McNaul Ebel Nawrot

& Helgren PLLC, Seattle, WAJoni H. Kletter, Meyer, Suozzi, English

& Klein, P.C., New York, NYMichael J. Stawasz, U.S. Department of

Justice, Washington, DC

• 9:45 – 10:45 a.m.Telepresence in the Workplace Telepresence Robot sponsored by Miller Canfield PLC and Orrick, Herrington & Sutfcliffe LLP Vinings I Technology is advancing quickly and the next wave is telepresence robots that can be used by telecommuters in the workplace. Have a big meeting and can’t get to the office? Have a physical disability and need to work? Use a robot. Telepresence robots provide the user with first-hand input via sight, sound and even touch. A robot’s physical presence at a conference table or work area has more impact and input than teleconferencing. The potential legal issues of using a telepresence will be discussed.MODERATOR:Adam S. Forman, Miller, Canfield, Paddock

and Stone, P.L.C., Detroit, MISPEAKERS:Eve H. Cervantez, Altshuler Berzon LLP,

San Francisco, CAHanan B. Kolko, Meyer, Suozzi, English

& Klein, P.C., New York, NYDavid Rogan, Anybots, Inc.,

Mountain View, CA

• 2:00 – 3:30 p.m.Social Media: Who’s Looking at You, KidInternational D Of all the social media evidence in the entire world, none of it amounts to a hill of beans if an attorney doesn’t obtain it and use it in ways that comply with ethics rules. The panel will explore just how far it is appropriate to go in looking at social media sites, including Facebook, belonging to potential witnesses and jurors. Issues include how to obtain witness impeachment material without engaging in deception and without violating the rule governing communications with represented parties and persons. The panel also will consider the circumstances under which it is appropriate for an attorney to look at a social media site belonging to a potential juror. Topics of discussion include whether it matters if the witness or juror knows that you are looking, whether it is appropriate to engage in an interactive communication with parties and witnesses on the site, and the strength of the privacy interest that

state bar opinions and court decisions have attributed to Facebook and social media sites. An update on relevant Ethics 20/20 Commission recommendations adopted at the 2012 ABA Annual Meeting will be included.MODERATOR:Cynthia E. Nance, University of Arkansas

School of Law, Fayetteville, ARSPEAKERS:David M. Cook, Cook, Portune & Logothetis,

Cincinnati, OHMichelle D. Craig, Adams & Reese LLP,

New Orleans, LAElizabeth Tarbert, The Florida Bar,

Tallahassee, FL

• 3:50 – 5:20 p.m.A Storm Is A-Brewin’: Preparing to Weather the Use of Cloud Computing in the Workplace International E-F Cloud computing provides a valuable platform for boosting productivity and managing information in the workplace. But there is a dark side to this increasingly popular technology. Whether because it provides another repository for employees to squirrel away corporate secrets for future employers, or because it enables litigant-employees to pursue self-help discovery by warehousing company information in databases outside the workplace, “the Cloud” can darken the sunny disposition of any employer. This expert panel will examine the intersection of cloud computing and employment law and will discuss challenges that employers face in managing employee use of the Cloud. Special attention will be devoted to policies and practices that protect an employer’s confidential data, to compensable-time issues that arise from off-the-clock use of the Cloud, and to the boundaries of control that companies can exert over employees who visit internal and external Clouds.MODERATOR:Andrew Altschul, Buchanan Angeli Altschul

& Sullivan LLP, Portland, ORSPEAKERS:Hon. Ira B. Warshawsky, Meyer, Suozzi,

English & Klein, P.C., Garden City, NYJoan M. Canny, Amerijet International,

Fort Lauderdale, FLConor R. Crowley, Crowley Law Offices,

McLean, VAMichael Wolf, Federal Labor Relations

Authority, Washington, DC

• Traditional Labor Track• 8:00 – 9:30 a.m.

Meet the National Labor Relations BoardInternational E-F The Board continues to make significant changes in the interpretation of, and the



application of, the National Labor Relations Act. It has also faced some significant challenges during the recent year. Join us for an enlightening discussion, including a peek behind the curtain to observe a “day in the life of a Board Member” as the Board considers cases and makes decisions.MODERATOR:Lester A. Heltzer, National Labor Relations

Board, Washington, DCSPEAKERS:Hon. Mark Gaston Pearce, National Labor

Relations Board, Washington, DCHon. Bryan E. Hayes, National Labor

Relations Board, Washington, DCHon. Richard E. Griffin, Jr., National Labor

Relations Board, Washington, DC Hon. Sharon Block, National Labor Relations

Board, Washington, DC

• 9:45 – 10:45 a.m.Meet the National Labor Relations Board Acting General CounselInternational E-F It has been a most unique year. This will be a frank and candid discussion of issues faced as well as a focus on rule making and a review of election procedures and unusual remedies.MODERATORS:Kathleen Phair Barnard, Schwerin Campbell

Barnard Iglitzin & Lavitt LLP, Seattle, WAJoseph J. Torres, Winston & Strawn LLP,

Chicago, ILSPEAKER:Hon. Lafe Solomon, National Labor

Relations Board, Washington, DC

• 2:00 – 3:30 p.m.The Real Law: Meet the National Labor Relations Board Regional DirectorsInternational E-F Our panel of regional directors will discuss what they find in important cases, how they make decisions, and the evidence they find to be the most convincing. They will discuss regional practices in investigation and case-handling procedures, agent training and other subjects that you can tweet and text to the panel moderator. There will be a focus on election procedures, practices and remedies.MODERATORS:Deborah E. Godwin, Godwin, Morris,

Laurenzi & Bloomfield, P.C., Memphis, TNAmy G. McAndrew, Pepper Hamilton LLP,

Berwyn, PA SPEAKERS:Margaret J. Diaz, National Labor Relations

Board, Tampa, FLClaude T. Harrell, Jr., National Labor

Relations Board, Atlanta, GAWayne Gold, National Labor Relations Board,

Baltimore, MD

• 3:50 – 5:20 p.m.Come Fly with Me: Investment Decisions and Section 7International B This panel will debate employer investment decisions that are made in significant part to place operations away from a unionized workforce and in what contexts those decisions comply with the NLRA or violate employees’ Section 7 rights and what role the state can play in influencing these decisions.MODERATOR:Cynthia L. Estlund, New York University

School of Law, New York, NYSPEAKERS:Charles I. Cohen, Morgan, Lewis

& Bockius LLP, Washington, DCChristopher T. Corson, International

Association of Machinists & Aerospace Workers, Washington, DC

• Wage and Hour Track• 9:45 – 10:45 a.m.

Compliance Issues from an In-House PerspectiveInternational G-H This panel will focus on the challenges faced by employers and in-house legal departments regarding difficult compliance issues such as: automatic deductions from time records, prevention of off the clock work, misclassification of employees, correction of mistakes without prompting litigation, and safe harbors. The panel also will discuss whether to initiate arbitration programs, and if so, whether to include class and collective action waivers. Hear directly from in-house counsel which tactics work and which can be problematic. Also, hear compliance advice from the Department of Labor, as well as practical advice from experienced wage and hour lawyers representing employers and employees.MODERATOR:David Borgen, Goldstein, Demchak, Baller,

Borgen & Dardarian PC, Oakland, CASPEAKERS:Kristen H. Albertson, Wal-Mart Stores, Inc.,

Bentonville, ARSusan N. Eisenberg, Akerman Senterfitt,

Miami, FLRobert Walter, U.S. Department of Labor,

Atlanta, GA

• 2:00 – 3:30 p.m.Independent Contractor Misclassification Issues International C This panel will explore the relevant regulations, case law and Department of Labor guidance involving the misclassification of independent contractors and analyze the elements of the various tests

used to determine independent contractor status under wage and hour laws. The panel also will explore common industry issues with respect to the use of independent contractors and provide practical advice on identifying and safeguarding against misclassification. The panel also will review recent federal and state legislation and initiatives designed to address misclassification.MODERATOR:Jenny Yang, Cohen Milstein Sellers

& Toll PLLC, Washington, DCSPEAKERS:Hon. M. Patricia Smith, U.S. Department

of Labor, Washington, DCLaura L. Ho, Goldstein, Demchak, Baller,

Borgen & Dardarian PC, Oakland, CAMark A. Knueve, Vorys, Sater, Seymour

and Pease LLP, Columbus, OHMarc R. Poulos, National Alliance for Fair

Contracting, Washington, DC

• 3:50 – 5:20 p.m.Birds of a Slightly Different Feather: Wage and Hour Issues Affecting Labor and the Public Sector International G-H Wage and hour litigation in public employment often involves unique considerations not contemplated in the context of private, non-union employment. Government employers, unions representing government employees, and attorneys who may represent either confront many issues not common elsewhere in terms of wage and hour law. Among the topics to be dicussed include, but are not limited to: ethical considerations in obtaining Section 216(b) consent forms from union employees, class-wide arbitration of FLSA violations, Section 3(o), special rules for public employees, peculiar exemption issues, the Federal Employees Pay Act (FEPA), the potential effects of OPM regulations on FLSA claims, as well as issues concerning the settlement of collective actions on behalf of union and non-union public employees.MODERATOR:Robert A. Boonin, Butzel Long, Detorit, MISPEAKERS:Paul L. Bittner, Ice Miller LLP, Columbus, OHJennifer S. Brand, U.S. Department of Labor,

Washington, DC Ryan A. Hagerty, Asher, Gittler & D’Alba,

Ltd., Chicago, IL


7:30 – 10:30 p.m. Conference Reception

at the Georgia Aquarium


Saturday, November 3• 6:30 a.m. – 1:00 p.m.



Sponsored by: Nathan Associates Inc. Atlanta Ballroom

• 7:00 – 8:00 a.m.Standing Committee Business Meetings Development of the Law under the NLRA, International DEEmployment Rights and Responsibility, International, FGHFederal Legislative Developments, Vinings I-IIImmigration Law, International COccupational Safety & Health Law, Roswell I-IIRailway & Airline Labor Law, International BTechnology in the Practice and Workplace, Augusta I-II

• Class Action Track• 8:00 – 9:15 a.m.

The Survivors Post-Dukes and Ricci: Cases About Biased Tests and Job Requirements That Have Not Been Validated Roswell I-II Were Dukes and Ricci just sound and fury signifying little—at least in testing cases or other cases that have “glue”? A panel of experienced lawyers and experts will discuss cases involving biased tests and job requirements that have not been validated. Panelists will discuss cases involving firefighters and prison guards, and employers who screen applicants using credit checks or criminal background checks, and how these cases have proceeded in the post Dukes and Ricci environment.

MODERATOR:James M. Finberg, Altshuler Berzon LLP,

San Francisco, CASPEAKERS:Fred W. Alvarez, Wilson Sonsini Goodrich

& Rosai, PC, Palo Alto, CAAdam T. Klein, Outten & Golden LLP,

New York, NY Kathleen K. Lundquist, APTMetrics, Inc.,

Darien, CT

• 9:30 – 11:00 a.m.Will Concepcion and Stolt-Nielsen End Class Litigation?Augusta I-II In the aftermath of the U.S. Supreme Court’s decisions in AT&T Mobility v. Concepcion and Stolt-Nielsen v. AnimalFeeds International Corp., many predicted the end of class actions as we know them. But did these commentators speak too soon? This panel will explore how courts have addressed motions to compel arbitration where arbitration agreements prohibit class arbitration outright or are silent with respect to whether class arbitration is permitted and the arguments that practitioners have made to defeat or win motions to compel.MODERATOR:Rachel M. Bien, Outten & Golden LLP,

New York, NYSPEAKERS:Kevin J. Hamilton, Perkins Coie LLP,

Seattle, WAJoseph E. Jaramillo, Goldstein, Demchak,

Baller, Borgen & Dardarian PC, Oakland, CA Barry J. Kearney, National Labor Relations

Board, Washington, DC


I’ll See You on CNN: Effective Use of the Media In and Out of LitigationInternational C Even seasoned litigators can feel an attack of nerves when the press comes calling. Some lawyers and clients avoid media attention at all costs; a few seek out positive press. Should the media be feared and avoided, or is there a place for effective use of the media to position your client’s situation in the court of public opinion? Interactions with the press need to be handled with the same care and preparation as any court appearance. Topics discussed will include whether the media should ever be used in litigation; the ethical considerations surrounding pre-trial publicity; the use of media (or the threat of going to the media) by employees’ attorneys to shift the balance of power against powerful corporate defendants; the dilemma of quotes taken out of context; the how-to’s and pitfalls of “off the record” discussions with the press; and how

attorneys should prepare themselves and their clients for media scrutiny and interviews. MODERATOR:Gail Golman Holtzman, Kass, Shuler,

Solomon, Spector, Foyle & Singer, P.A., Tampa, FL

SPEAKERS:Edward D. Buckley, III, Buckley

& Klein, LLP, Atlanta, GAWilliam Lurye, AFL-CIO, Washington, DC Douglas O’Brien, New York, NYBettina B. Plevan, Proskauer Rose LLP,

New York, NY

• Discrimination and Retaliation Track

• 8:00 – 9:15 a.m.USERRA: What Every Practitioner Should Know When GI Joe and GI Jane Come Marching Home International FGH The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects service members’ reemployment rights when returning from a period of service, including those called up from the reserves or National Guard, and prohibits employer discrimination based on military service or obligation. This program will discuss recent developments under USERRA, including the implications of the recent passage of legislation as well as the Supreme Court’s “cat’s paw” decision regarding consideration of the motivations of multiple individuals involved in the employment decision-making process.MODERATOR:John F. Beasley, Jr., JF Beasley, LLC,

Watkinsville, GASPEAKERS:Cathi J. Hunt, Starbucks Coffee Company,

Seattle, WAEsther G. Lander, U.S. Department

of Justice, Washington, DCLeisha Self, American Federation of

Government Employees, Washington, DC

• 9:30 – 11:00 a.m.Risky Business: Litigating Retaliation Claims International DE Retaliation remains a hotly contested area of employment discrimination law. Recent Supreme Court cases—including Burlington Northern v. White, Crawford v. Nashville, and Thompson v. North American Stainless—have redefined retaliation claims under Title VII. This panel of expert practitioners will discuss recent developments in, for example, the interpretation of “adverse action,” retaliatory harassment, and third-party retaliation claims. In addition, the program will address the risks and challenges of litigating retaliation claims in 2012.

6th Annual Labor and Employment Law Conference Program Schedule Saturday, November 3


MODERATOR:David Long-Daniels, Greenberg Traurig, LLP,

Atlanta, GASPEAKERS:Hon. Mark W. Bennett, U.S. District

Court for the Northern District of Iowa, Sioux City, IA

Ty Hyderally, Hyderally & Associates, P.C., Montclair, NJ


• 8:00 – 9:15 a.m.Beyond Weingarten Rights: The NLRA’s Impact on Non-Union EmployersInternational DE This panel will explore what Section 7 of the NLRA is and its wide-reaching implications on non-union employees’ workplace rights. We will provide a primer for seasoned employment lawyers, as well as new labor and employment lawyers, on understanding how handbook policies (including social media, arbitration, and off-duty conduct clauses), other workplace rules, and certain statements from managers can violate the NLRA.MODERATOR:Margaret Angelucci, Asher, Gittler

& D’Alba, Ltd., Chicago, ILSPEAKERS:Molly Eastman, Seyfarth Shaw LLP,

Chicago, ILCharles J. Muhl, National Labor Relations

Board, Chicago, IL

• 9:30 – 11:00 a.m.The Scylla and Charybdis of RLA Major Disputes: Presidential Emergency Board or Interminable DelayInternational B This panel will discuss major dispute resolution procedures under the Railway Labor Act, including railroad side experience of National Presidential Emergency Boards (“PEBs”) and Commuter Double PEBs, and the alternative of “interminable delay,” as illustrated by recent airline bargaining dealing with both the freight railroad PEB and the airline side disputes.MODERATOR:Harry R. Hoglander, National Mediation

Board, Washington, DCSPEAKERS:Donald J. Munro, Jones Day,

Washington, DC Carmen R. Parcelli, Guerrieri, Clayman,

Bartos & Parcelli, P.C., Washington, DC

• Immigration Track• 8:00 – 9:15 a.m.

State and Federal Immigration Laws: The Crossroads of Unauthorized EmploymentInternational B This program will provide an in-depth analysis of recent state law initiatives addressing unlawfully present foreign nationals, foreign nationals who are not authorized by the federal government to work in the United States, and the employers who hire such workers. As more and more states enact their own laws in this area, questions have arisen as to whether the federal government’s power on this subject is exclusive. New state laws not only complicate how labor and employment lawyers represent their clients, they also require a great deal of jurisdictional knowledge when representing employers and employees who operate in multiple states. This panel will use the recent laws enacted in Alabama as an example for discussion.MODERATOR:Jonathan A. Grode, Green and Spiegel LLC,

Providence, RISPEAKERS:Justin Cox, ACLU Immigrants’ Rights Project,

Atlanta, GARobert C. Divine, Baker, Donelson, Bearman,

Caldwell & Berkowitz, PC, Chattanooga, TNJohn Neiman Jr., State of Alabama,

Birmingham, AL

• 9:30 – 11:00 a.m.The Real Cost of Human Trafficking: What It Is and How U.S. Immigration Law Can Help International C This program will provide in depth analysis of the human trafficking problem currently plaguing the United States and the world. In addition, panelists will discuss the available tools to protect victims of labor trafficking under United States immigration law. Human trafficking is a key concern for the ABA Section of Labor and Employment Law, and this panel will allow attendees to better understand the problem and the limited solutions available.MODERATOR:Rebecca Smith, National Employment

Law Project, Seattle, WASPEAKERS:Ana Avendaño, AFL-CIO, Washington, DCRena Cutlip-Mason, U.S. Department of

Homeland Security, Washington, DC Joseph Z. Fleming, Greenberg Traurig LLP,

Miami, FLAnna Y. Park, U.S. Equal Employment

Opportunity Commission, Los Angeles, CAMeredith Rapkin, Friends of Farmworkers,

Philadelphia, PA

• Law Practice Development Track

• 9:30 – 11:00 a.m.How to Rise to Pre-eminency: Developing a Best in Class Labor & Employment Law PracticeVinings I-II There is no one clear pathway to success. This program will focus on the top (and varied) strategies experienced labor and employment lawyers have utilized to build their legal careers to become best in class practitioners and serious rainmakers. This program is geared toward the practitioner with less than 15 years’ experience.MODERATOR:Glenn A. Duhl, Siegel, O’Connor,

O’Donnell & Beck, P.C., Hartford, CTSPEAKERS:Shauna Clark, Fulbright & Jaworski L.L.P.,

Houston, TXKelly M. Dermody, Lieff, Cabraser,

Heimann & Bernstein, LLP, San Francisco, CA

Lynn S. Leary, Coca-Cola Bottling Company Consolidated, Charlotte, NC

Louis L. Robein, Jr., Robein, Urann, Spencer, Picard and Cangemi, APLC, Metairie, LA

• Litigation Track• 8:00 – 9:15 a.m.

E-Discovery Atlanta: Aspects of Technology to Consider in E-Discovery International E-F As attorneys navigate through the e-discovery procedures during litigation, multiple decisions must be made about how to manage the process. An expert panel will discuss processes that can be used to evaluate when an outside vendor may be best used to handle certain tasks, real world concerns about the evolving number and kinds of devices where electronic data may reside and the likely locations of the most valuable e-discovery data and content.MODERATOR:Howard Z. Rosen, Posner & Rosen, LLP,

Los Angeles, CASPEAKERS:Cecil A. Lynn, III, Littler Mendelson P.C.,

Phoenix, AZJohn R. Mooney, Mooney, Green, Saindon,

Murphy & Welch, P.C., Washington, DCHelen Bergman Moure, Aperta,

Seattle, WA



• 9:30 – 11:00 a.m.Testing and Presenting Statistical Evidence in Employment Discrimination CasesRoswell I-II This program will offer useful tips on presentation/rebuttal of statistics (or pattern data in individual disparate treatment cases) at trial and how to work effectively with testifying experts. Panelists will discuss general considerations in statistical employment analyses as well as specific concerns from the employee, employer and statistical expert’s perspective.MODERATOR:Richard T. Seymour, Law Office of Richard

T. Seymour, P.L.L.C., Washington, DCSPEAKERS:Nancy E. Rafuse, Ashe, Rafuse & Hill, LLP,

Atlanta, GAMichael P. Ward, Welch Consulting,

Los Angeles, CA


Personal Histories: Investigating and Forgetting on the Web Peachtree Ballroom A-F In a New York Times Magazine article, Jeffrey Rosen claimed that “The Web Means the End of Forgetting” and examined the problem of people trying to escape from the sometimes embarrassing on-line documentation of their past. Some have suggested the use of “cleaners,” social media expiration dates and other mechanisms that would purge on-line histories. To combat these techniques, some employers have sought to require applicants or employees to identify their social media presence and produce passwords as a condition of employment. This panel will examine these new technologies, employer responses and the legal issues they generate. In the employment context, where employers commonly use on-line research to investigate applicants and claims, how could these technologies benefit employees or hamper employers? What are the legal implications and perils of using them?MODERATOR:Heather A. Morgan, Paul Hastings LLP,

Los Angeles, CA SPEAKERS: David L. Scher, The Employment Law

Group, P.C., Washington, DC David C. Thompson, Munger, Tolles

& Olson LLP, Los Angeles, CAAlvin A. Velazquez, Service Employees

International Union, Washington, DC

• Wage and Hour Track• 8:00 – 9:15 a.m.

Let’s Do the Math: Computing Damages in Wage and Hour Class Actions Vinings I-II As the driving force in resolving most wage and hour class actions is damages, parties often disagree as to the proper method of calculating an employer’s exposure. This panel will explore how to determine back overtime pay for employees who have been misclassified as exempt employees, including whether or not the fluctuating work week rules apply in this context. The panel will address regular rate issues and how employees may seek to extend the FLSA statute of limitations. Our experts will discuss the availability of liquidated damages and the scope of the employer’s good faith defenses under the FLSA.MODERATOR:Jason C. Marsili, Posner & Rosen, LLP,

Los Angeles, CASPEAKERS:Lloyd W. Aubry, Jr., Morrison &

Foerster LLP, San Francisco, CA Jennifer Sung, Altshuler Berzon LLP,

San Francisco, CA

• 9:30 – 11:00 a.m.Point/Counterpoint: Hotly Contested and Unresolved Issues in Wage and Hour Law International FGH In an oral argument format, this panel will debate contested and unsolved issues under wage and hour laws including: the proper use of the fluctuating workweek method of calculating damages in misclassification cases; whether and in what circumstances would it be appropriate to shift wage and hour compliance to employees, e.g., meal periods, recordkeeping for off-site employees, call-in pay, etc.; what is the appropriate standard to establish similarly situated employees at both the certification and decertification stages.MODERATOR:John S. Ho, Bond, Schoeneck & King,

PLLC, New York, NYSPEAKERS:Stacia M. Jones, Abercrombie & Fitch

Company, New Albany, OHAllen S. Kinzer, Vorys, Sater, Seymour

and Pease LLP, Columbus, OHBruce S. Levine, Cohen, Weiss and

Simon LLP, New York, NYSam J. Smith, Burr & Smith, L.L.P.,

Tampa, FL

• The College of Labor and Employment Lawyers

• 12:30 – 2:00 p.m.The Judges’ Perspective: An Inside Scoop on Civility and Professionalism in the CourtroomInternational C Issues of professionalism and civility within the practice of law continue to be an important matter in the day to day activities of labor and employment attorneys. The 2006 adoption of “The College of Labor & Employment Lawyers’ Principles of Professionalism and Civility for Advocates” was done with the intention of encouraging widespread adherence to these Principles by all Fellows of the College, as well as other members of the labor and employment law bar. Panel members will focus on issues of professionalism and civility between attorneys and with respect to the courts and administrative agencies before whom they practice, providing a unique insight into protocol and practice from the perspective of arbiters at various levels of our judicial system. The panel also will discuss their expectations of attorneys practicing before them and methods of handling challenges within the standards that legal professionals aspire, and will share their views on how they handled those difficult situations. SPEAKERS:Hon. W. Harold Albritton, III, U.S. District

Court for the Middle District of Alabama, Montgomery, AL

Hon. Joel F. Dubina, U.S. Court of Appeals for the 11th Circuit, Atlanta, GA

Hon. Rebecca R. Pallmeyer, U.S. District Court for the Northern District of Illinois, Chicago, IL

Hon. Mary S. Scriven, United States District Court for the Middle District of Florida, Tampa, FL


12:45 – 2:00 p.m.An Exploration of Careers in Labor & Employment Law

The Overlook If you are a law student considering a career in labor and employment law, come meet,

talk and dine with leading labor and employment lawyers who will share their diverse perspectives

and their real-life experiences practicing on behalf of management, unions and plaintiffs

or serving as government attorneys.MODERATOR:

Rachel Bien, Outten & Golden LLP, New York, NYSPEAKERS:

Anthony C. Cleland, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Atlanta, GA

Jason C. Marsili, Posner & Rosen, LLP, Los Angeles, CA

Karen E. Mock, U.S. Department of Labor Atlanta, GA

Daniel. A. Sikka, McDonald’s Corporation, Oak Brook, IL


You are cordially invited to the Diversity Reception at the Martin Luther King, Jr. National Historical Site on Thursday, November 1 from 6:00 – 8:00 pm. Please join us for a social and networking reception for diverse attorneys and all those who support the Section’s vision of diversity and inclusion. Presented by the ABA Section of Labor and Employment Law Equal Opportunity in the Legal Profession Committee

Hosted by: Georgia Hispanic Bar Association; Georgia Association of Black Women Attorneys; Stonewall Bar Association; Georgia Asian Pacific American Bar Association; State Bar of Georgia YLD Labor & Employment Law Committee; South Asian Bar Association of GeorgiaCo-Sponsored by American Arbitration Association; Bradley Arant Boult Cummings LLP; Butler, Snow, O’Mara, Stevens and Cannada, PLLC; Charles River & Associates; Fisher & Phillips LLP; Fulbright & Jaworski LLP; Heenan Blaikie LLP; Kass Shuler Law Firm; Laner, Muchin, Dombrow, Becker, Levin and Tominberg, Ltd.; Lieff Cabraser Heimann & Bernstein, LLP; Morgan, Lewis & Bockius LLP; Morrison & Foerster LLP; NERA Economic Consulting; Ogletree, Deakins, Nash, Smoak & Stewart, P.C.; Orrick, Herrington & Sutcliffe LLP; Outten & Golden LLP; Proskauer Rose LLP; Schiff Hardin LLP

The Martin Luther King, Jr. National Historical Site is located at 450 Auburn Avenue. We encourage you to visit the Historic Ebenezer Baptist Church, located directly across the street, and Dr. King’s Tomb while on the National Park’s Campus.

Buses will depart the Westin beginning at 5:30 p.m.



First-Time Attendee/New Section Member ReceptionPlaza BallroomIf you are a new member of the Section of Labor & Employment Law or if you’ve just never attended a Section meeting before, begin the Conference on the right foot by joining your colleagues at this get-together preceding the Welcome Reception.

• 6:30 – 8:30 p.m.Welcome Reception and Committee ExpoPlaza BallroomAll attendees are invited to meet, greet and network during this opening reception at the Westin Peachtree Plaza. Section Standing Committees will provide information about publications, services and programs they provide to labor and employment lawyers.

Thursday, November 1• 12:30 – 2:00 p.m.

First-Time Conference Attendee/New Section Member Orientation LuncheonPlaza BallroomJoin other first-time attendees for an overview of the Section and the Conference. You’ll learn how to make the most of your experience while networking with other newcomers over lunch.

• 12:30 – 2:00 p.m.Pro Bono Luncheon and WorkshopAugusta I-IIThe Pro Bono Workshop will feature the 2012 Frances Perkins Award Recipient who will speak on the importance of pro bono work. In addition, attendees will be able to engage in discussions relating to providing pro bono services and to learn first hand how the Pro Bono Work Committee interacts with the Section.

Networking and Social Events• 6:00 – 8:00 p.m.

Reception Honoring Diversity in the Profession at the Martin Luther King, Jr. CenterPresented by ABA Equal Opportunity in the Legal Profession CommitteeCo-Sponsored by American Arbitration Association; Bradley Arant Boult Cummings LLP; Butler, Snow, O’Mara, Stevens and Cannada, PLLC; Charles River & Associates; Fisher & Phillips LLP; Fulbright & Jaworski LLP; Heenan Blaikie LLP; Kass Shuler Law Firm; Laner, Muchin, Dombrow, Becker, Levin and Tominberg, Ltd.; Lieff Cabraser Heimann & Bernstein, LLP; Morgan, Lewis & Bockius LLP; Morrison & Foerster LLP; NERA Economic Consulting; Ogletree, Deakins, Nash, Smoak & Stewart, P.C.; Orrick, Herrington & Sutcliffe LLP; Outten & Golden LLP; Proskauer Rose LLP; Schiff Hardin LLPTransportation will be provided from the Westin beginning at 5:30 p.m.Join us for a social and networking reception for lawyers of color; female lawyers; lesbian, gay, bisexual and transgender lawyers; disabled lawyers; and all those who support the Section’s vision of diversity and inclusion.

Friday, November 2• 7:00 – 8:00 a.m.

Standing Committee Business MeetingsSection of Labor & Employment Law Standing Committees will conduct business meetings in an informal setting. Continental breakfast will be provided.ADR in Labor & Employment Law, International DEthics & Professional Responsibility, Vining IIEqual Employment Opportunity Law, Augusta I-II Federal Labor Standards Legislation, International G-H International Labor & Employment Law, International CPractice and Procedure under the NLRA, International E-FState & Local Government Bargaining & Employment Law, (9:45–10:45 a.m.) International BWorkers’ Compensation, International B

• 12:30 – 2:00 p.m.Diversity LuncheonPlaza BallroomSponsored by: Arent Fox LLP; O’Melveny &Meyers LLP; Outten & Golden LLP; Proskauer Rose LLPBen Foss is the inventor of the Intel Reader, a technology for dyslexics, like him, that CNN called “too ground breaking to ignore.” Mr. Foss is an attorney and disability rights

leader who empowers audiences to tap into their creativity to change the world. His luncheon presentation will focus on diversity and workforce development for legal and human resource professionals, with an emphasis on the business and social power of inclusion. Please sign up in advance on the Registration Form as seating will be limited.

• 7:30 – 10:30 p.m.Conference Reception at the Georgia AquariumJoin with old friends and new to celebrate the 6th Annual Labor & Employment Law Conference as you enjoy good food and drinks.

Saturday, November 3• 7:00 – 8:00 a.m.

Standing Committee Business MeetingsSection of Labor & Employment Law Standing Committees will conduct business meetings in an informal setting. Continental breakfast will be provided.Development of the Law under the NLRA, International DEEmployment Rights and Responsibility, International, FGHFederal Legislative Developments, Vinings I-IIImmigration Law, International COccupational Safety & Health Law, Roswell I-IIRailway & Airline Labor Law, International BTechnology in the Practice and Workplace, Augusta I-II

• 12:45 – 2:00 p.m.An Exploration of Careers in Labor & Employment LawThe OverlookIf you are a law student considering a career in labor and employment law, come meet, talk and dine with leading labor and employment lawyers who will share their diverse perspectives and their real-life experiences practicing on behalf of management, unions and plaintiffs or serving as government attorneys.

Wolters Kluwer Law & Business connects legal and business communities with timely, specialized expertise and information-enabled solutions to support productivity, accuracy and mobility. Serving customers worldwide, our products include those under the Aspen, Best Case, CCH, ftwilliam, Kluwer Law International, LoislawConnect, Mediregs and TAGData names.

For more information visit www.employmentlawdaily.com

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