October 28, 2008
8:00 Registration Desk Opens and Continental Breakfast Served
9:00 Co-Chairs’ Opening Remarks
Lynne Hermle
Orrick, Herrington & Sutcliffe (Menlo Park, CA)
Steven G. Zieff
Rudy, Exelrod & Zieff (San Francisco, CA)
9:15 View from the Plaintiff’s Bar: Analysis of the Newest Claims and Where Wage and Hour Litigation is Going
Paul Lukas
Nichols Kaster & Anderson (Minneapolis, MN)
Steven G. Zieff
Rudy, Exelrod & Zieff LLP (San Francisco, CA)
Mark Thierman
Thierman Law Firm (Reno, NV)
Back by popular demand, this special panel composed entirely of top wage and hour plaintiff lawyers will give you their take on where they are setting their sights and why, and what they think the most significant trends are going down the road. Prepare for the next round of claims based on their analysis of key areas, including:
- Blackberry® claims
- Tip pooling cases: where are we now and what’s next?
- Accounting firms, financial institutions: recent cases and what they mean
- Bars, restaurants and smaller employees: more suits?
- Other new areas for misclassification and overtime litigation
10:30 Coffee Break
10:45 Meal and Rest Break Claims: Managing Changing Interpretations, Limitations and Increased Litigation
Lindbergh Porter, Jr.
Littler Mendelson, PC (San Francisco, CA)
- Certification of recent cases: what’s been greenlit and what hasn’t?
- Assessing the impact of Kenneth Cole, Cicairos and other recent cases on provision of meal/rest breaks:
- interpretations of “provide” and “authorize and permit”
- how many hours of premium pay penalties an employee can get in one day
- statute of limitations: 3 or 4 years?
- White v. Starbucks: how much more onus is on the employee than previously?
- California legislation on meal and rest breaks: status and implication for ongoing and future litigation
- Weight given by courts to releases obtained by employers for meal/rest period wage and hour violations
11:45 Exempt Status for Gray Area Employees: Fact-Specific Approaches to Assess “Winnability”
Plaintiff Perspective
Stanley D. Saltzman
Marlin & Saltzman (Los Angeles, CA)
Defense Perspective
Lynne Hermle
Orrick, Herrington & Sutcliffe (Menlo Park, CA)
- Technical workers: navigating the sometimes murky waters of computer worker exemptions and learned/administrative exemptions
- Independent contractors: current dangers around reclassification
- Pharma sales staff cases: status on appeal and effect going forward
- Steps in-house counsel should take to ensure existing exemptions aren’t destroyed by lack of (enforcement of) corporate policies
12:45 Networking Luncheon for Delegates and Speakers
Luncheon Address : Insurance for Wage and Hour Class Actions
Kirk Pasich
Dickstein Shapiro (Los Angeles, CA)
2:00 Wage and Hour Class Actions: Winning the Certification Battle
Defense Perspective
Francis J. Ortman, III
Seyfarth Shaw LLP (San Francisco, CA)
Plaintiff Perspective
David Borgen
Partner
Goldstein, Demchak, Baller, Borgen & Dardarian
(Oakland, CA)
- Conditional certification/decertification of cases: applying recent rulings, grounds and results to your current cases
- Circumstances where conditional certification can be advantageous for defendants
- Strongest arguments for/against certification:
- in exempt/non-exempt cases
- off-the-clock cases
- Critical timing for certification:
- Continuing impact of Gentry and Discover Bank on class actions expressly precluded by arbitration clauses
3:15 Afternoon Refreshment Break
3:30 Crafting and Arguing Dispositive Motions that Work: Behind-the-Scenes Strategies from Winning Litigators
Defense Perspective
Catherine Conway
Akin Gump (Los Angeles, CA)
Jeffrey D. Wohl
Paul Hastings (San Francisco, CA)
Plaintiff Perspective
Matthew Righetti
Righetti Law Firm, PC (San Francisco, CA)
Successfully using motions continues to be a huge part of wage and hour litigation strategy. And, as more cases go to trial than ever before, a myriad of issues are arising that challenge even the most experienced wage and hour lawyers. Hear from seasoned trial lawyers who have been involved in trying these actions and get their valuable insights into what’s involved to get the result you want for your client. Topics will include:
- Analysis of recent summary judgment cases of note (White v. Starbucks, Brinker) to determine to what arguments courts are most receptive/non-receptive
- Strategic use of demurrers and motions to strike: latest developments
- Trying the case early as opposed to settling it early: analyzing the criteria for making the call
- Motions for sanctions: are they getting out of hand?
- Examples of successful strategies and tactics for both plaintiff and defense
- Identifying – and managing – the unique issues that arise when litigating hybrid lawsuits
- War stories, wins and pitfalls: what’s worked and what hasn’t?
5:15 Day One Concludes
October 29, 2008
8:00 Continental Breakfast
9:00 Co-Chairs’ Opening Remarks
9:15 Expediting Settlement in Wage and Hour Cases—and When to Not Settle
Plaintiff Perspective
Dennis F. Moss
Spiro Moss Barness LLP (Los Angeles, CA)
Judicial Perspective
Hon. Richard Kramer
Superior Court Judge
Complex Litigation Department (San Francisco, CA)
Defense Perspective
Charles F. Barker
Sheppard Mullin Richter & Hampton LLP
(Los Angeles, CA)
Settlement Administration Perspective
Michael Buchanan
Senior Managing Director
FTI (Dallas, TX)
- Structuring the settlement: what elements are critical? What are the pitfalls?
- What are red flags that will lead judges to not approve a settlement?
- settlement where PAGA issues are involved
- settling successfully in the wake of the Oracle decision
- How plaintiff and defense counsel can work together to get settlement approval
- Settlement administration:
- what are the tax ramifications where employers cut checks and forward to administrator v. working from a fund
- how does the checks v. funds reimbursement affect the likelihood of a workers’ comp audit seeking additional compensation premiums based on the settlement?
- additional key administration considerations that can affect how settlement can/should be structured
- Obtaining positive outcomes when using mediation in wage and hour cases
- Making the call to go to trial rather than settle: what are the tipping points?
10:30 Coffee Break
10:45 Ensuring Ethical Conduct When Litigating/Settling Wage and Hour Claims
Dennis P. Duffy
Baker Botts LLP (Houston, TX)
Justin M. Swartz
Outten & Golden LLP (New York, NY)
- Obtaining pre-certification information for the putative class
- Ex parte communications: what’s appropriate and ethical?
- Solicitation of clients: complying with state requirements
- Solicitation v. obligations to let potential plaintiffs know statute of limitations is running: how do you draw the line?
- Opinion letters declaring websites/letters to potential plaintiffs are compliant: how useful are they?
- Defendant communications to plaintiffs and co-workers about the case: what’s appropriate and what’s not?
11:45 DOL Priorities: Enforcement, Audits and Impact on Private Litigation
Paul DeCamp
Jackson Lewis (Washington, DC)
Former Administrator, Department of Labor Wage and Hour Division
Richard J. (Rex) Burch
Bruckner Burch PLLC (Houston, TX)
- Top 10 mistakes employers make – and how to avoid them
- What to expect during an agency audit
- Recent audits: where is the focus?
- Fines and penalties: what’s the range for various types of conduct?
- How plaintiffs use information obtained from DOL investigations/litigation
12:45 Networking Luncheon for Delegates and Speakers
2:00 Judges Speak Out on Wage and Hour Litigation
Hon. John True
Superior Court Judge (Alameda, CA)
Hon. Anthony Mohr
Superior Court Judge (Los Angeles, CA)
- Mistakes lawyers commonly make when litigating wage and hour claims – and how to avoid them
- How the court can help the parties – and how the parties can help the court
- The effects of CAFA and the Attorney General CAFA notice of settlement provision
- Managing the mega-case: judicial administration of large class actions
- Noteworthy trends in wage and hour litigation: what are the judges seeing?
- Q and A with audience
3:15 In-House Counsel Roundtable: Best Practices for Preventing and Defending Against Wage and Hour Claims and Class/Collective Actions
Kimberly MacMillan
Vice President, General Counsel
The Gymboree Corporation (San Francisco, CA)
Russell K. Jenson
Chief Counsel – Labor & Human Resources
Cingular Wireless LLC (Atlanta, GA)
Paul Adams
Associate General Counsel
The Gap, Inc (San Francisco, CA)
Vann Vogel
Deputy General Counsel, Labor & Employment
Verizon Wireless (Basking Ridge, NJ)
Moderator:
Anna Segobia Masters
Winston & Strawn LLP (Los Angeles, CA)
In this valuable panel, get the views of in-house counsel on the front lines at leading organizations. Find out what they are doing internally to prevent and manage these claims, as well as what they expect from outside counsel. Join a great discussion with plenty of opportunities for Q & A.
4:30 Q&A Wrap-Up and Conference Concludes
Pre-Conference Workshop - Monday, October 27, 2008
Fundamentals of Wage and Hour Law
2:00 pm – 5:30 pm
Jessica R. Perry
Orrick, Herrington & Sutcliffe LLP
(Menlo Park, CA)
Kenneth J. Sugarman
Rudy, Exelrod & Zieff LLP
(San Francisco, CA)
Back by popular demand, this workshop is your best source of detailed information and practical analysis of the intricacies of wage and hour law. With all the rules, exemptions, definitions and exceptions counsel must apply in navigating this complex area of law, it can get extremely difficult for counsel, especially those new to wage and hour. The FLSA is one of the most complex federal statutes, and California wage and hour law provides for additional requirements about which both employers and workers need to be aware. Here’s your best opportunity to get clarity and a firm grasp of the nuts and bolts of federal and California wage and hour law, from seasoned practitioners. Topics will include:
- Relevant California and federal legislation
- California Labor Code wage and hour provisions
- FLSA
- Significant differences between federal and California wage and hour law
- Practical effects of the new DOL regulations under the FLSA
- The relevant regulators and their roles:
- scope of authority
- types of actions taken and typical orders/penalties
- Exempt v. non-exempt employees
- Ensuring compliance under the federal or California labor codes when compensating salaried and commissioned employees
- the salary basis test
- determining hours worked
- regular rate of pay v. bonuses, commissions, tips, etc.
- weekly overtime calculation
- special rules for inside salespersons
- Record keeping requirements
- Common problems with meal and rest periods – and how to deal with them
- Preparing for and responding to DOL audits
- Settlement of wage and hour claims: who is involved and what is the process?
Every year, this workshop generates new discussions and examines new areas of concern. Whether you are new to the area or just need a comprehensive refresher, this workshop will give you the tools you need to get the most out of the two conference days that follow.
Conference Details