Day One – Tuesday, September 20, 2011
7:20 Registration and Continental Breakfast
8:00 Co-Chairs’ Welcoming Remarks
Mary Thomas
Senior Corporate Counsel
Best Buy Enterprises Services, Inc.
Jacob J. Modla
Vice President, HR Operations & Supply Chain
Family Dollar Stores, Inc
8:05 In-House Roundtables: Preventing and Managing Wage and Hour Claims/Class Actions
Panel 1 | 8:05-9:05
Joseph E. Boyland
Vice President and Associate General Counsel
Fidelity Investments
Jay J. Price
Assistant General Counsel Bank of America
Teresa Hutson Senior Attorney
Microsoft
Alan H. Krystal
Corporate Counsel
Capital Contractors, Inc.
Lisa A. Kabula
Assistant General Counsel
Ryder System, Inc.
Lou Leidelmeyer
Vice President, Human Resources
Bebe Stores, Inc.
Philip L. Weis
Director & Senior Employment Counsel
Boehringer Ingelheim Pharmaceuticals, Inc.
Frank Barkan
Director - Claims Administration
RSM McGladrey, Inc.
Panel 1 Moderator:
Michelle Lee Flores
Fisher Phillips LLP
Panel 2 | 9:05-10:05 (10:05-10:10 coffee break)
Arturo J. Fernandez
Senior Counsel - Labor and Employment
Ryder System, Inc.
Marie Mackay
Sr. Dir. of HR; In House Labor Counsel
Bebe Stores, Inc.
Derek Bottoms
Senior Counsel - Employment Law
The Home Depot
Jeana Littrell
Managing Director of Litigation
FedEx Express
Michael Fox
Senior Vice President and General Counsel
Jamba Juice
Jacob J. Modla
Vice President, HR Operations & Supply Chain
Family Dollar Stores, Inc.
Deidre D. Rehfeld
Counsel
3M Legal Affairs - Office of General Counsel
Mary Thomas
Senior Corporate Counsel
Best Buy Enterprises Services, Inc.
Panel 2 Moderator:
A. Craig Cleland
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Panel 3 | 10:10-11:10
Miles R. Afsharnik, Esq.
Vice President; Claim & Legal Resource Director - Professional Risk Group
Wells Fargo Insurance Services USA, Inc.
Amy Elizabeth Loggins
AVP - Corporate Counsel
Crawford & Company
Joni F. Mason
SVP
EPL Product Manager
Chartis Scott T. Miller
Counsel
State Farm Insurance Companies
Jeff Rosier
Senior Employment Counsel
Marsh & McLennan
James B. Herman
Associate General Counsel, Employment and Benefits Law
ACE North America
Nancy L. Reynolds
Counsel Global Employment, Benefits and Labor Law Group
The Western Union Company
Panel 3 Moderator:
Jennifer M. Trulock
Baker Botts, LLP
Proactive Strategies for Reducing Exposure to Wage and Hour Claims
- Drafting employment agreements that adequately protect the employer’s interests
- Use of employment agreements as effective tools to reduce exposure to wage and hour claims
- Implementing and enforcing policies and practices that will protect employers, both locally and nationally
- Best practices for conducting internal audits
- Assessing your company’s specific risks, including:
- Reliance on independent contractors; sales representative exemptions; joint employer liability; off-the-clock risks
Preparing for Audits, Relying on DOL Administrative Interpretations, and Working with Outside Counsel
- Best practices for preparing for federal and state audits in light of enhanced enforcement efforts
- Perspectives on DOL Wage and Hour Division Administrative Interpretations in lieu of opinion letters
- Factors to consider when deciding whether to hire outside counsel or stay in-house
- Determining whether to utilize national counsel
- Coordinating your defense, both inside and outside the company
Managing Costs
- Managing costs in high stakes wage and hour claims
- Managing complex litigation on a realistic and accurate budget
- Narrowing the size of classes for more manageable discovery
- Utilizing experts in a cost efficient manner
11:10 View from the Plaintiffs’ Bar: Adjusting Your Litigation Strategies in Light of New and Innovative Wage and Hour Claims
Panel 1 | 11:10-12:10
Kevin T. Barnes
Law Offices of Kevin T. Barnes
Dennis F. Moss
Spiro Moss LLP
Michael D. Singer
Cohelan Khoury & Singer
Janette Wipper
Sanford Wittels & Heisler LLP
Matthew Righetti
Righetti Glugoski PC
Panel 2 | 12:10-1:05
David Borgen
Goldstein Demchak Baller Borgen & Dardarian
David A. Lowe
Rudy, Exelrod, Zieff & Lowe LLP
William Turley
The Turley Law Firm
James H. Kaster
Nichols Kaster PLLP
- The plaintiffs’ attorneys perspective on the top 10 biggest risk factors
- Which industries are the most susceptible?
- The types of actions the plaintiffs’ bar is focusing on and how they are succeeding in bringing diverse wage and hour claims and class action cases
- Examples of what makes a claim attractive and how plaintiffs succeed in bringing certain claims
- Multi-district litigation (MDL): Deciding whether to consolidate plaintiff claims
- Pros and cons
- Strategic issues
- Problems that can arise for both sides
- Trial analysis: a step by step discussion on a recent case(s) where plaintiff’s counsel succeeded at trial – examples from beginning to end, discussing which arguments were made and what worked for the jury/court
1:05 Networking Luncheon for Speakers and Delegates
2:05 Federal and State Wage and Hour Initiatives: New Priorities, Enhanced Enforcement Efforts and Aggressive Investigations
Susan Rincon
District Director-San Francisco Wage and Hour Division
United States Department of Labor
Ruben Rosalez
Deputy Regional Administrator
US DOL
Eric Rood
Assistant Chief
California Labor Commissioner’s Office
Mark E. Tabakman
Fox Rothschild LLP
- Responding to the increase in DOL regulation and enforcement
- What types of claims are now being brought by the DOL?
- Which industries are attracting scrutiny by the DOL and why?
- The DOL and ABA’s Attorney Referral Program: How to adapt to the DOL’s new practice
- As a result of this program, has there been an increase in claims filed?
- Does the DOL refer certain types of cases more than others? What are its selection criteria?
- IRS auditing due to employee misclassification
- what are the risks involved and how is the IRS responding to this practice?
- What is going on in different states in terms of new regulations (e.g. annual notification requirement in NY, OH and CT)?
- Many states are being proactive and making their regulations more restrictive and stepping up their enforcement as a result of the economy and in anticipation of the Federal rules (FLSA) updates
- Overcoming the difficulty national companies face in adhering to the specific laws of every state
- Methods to reduce the cost of compliance
- Overcoming dilemmas: How do companies reconcile conflicts between non-wage and hour laws and wage and hour laws
2:55 Adapting to the Growing Number and Diversity of Wage and Hour Claims, including Off-the-Clock Claims: Social Media, Blackberry, Donning and Doffing and Beyond
Apalla U. Chopra
O’Melveny & Myers LLP
Jeremy T. Naftel
Carlton Disante & Freudenberger LLP
Diana L. Hoover
Hoover Kernell LLP
Ellen C. Kearns
Constangy, Brooks & Smith LLP
- In light of recent court decisions and the overwhelming claims that continue to arise, many important questions remain, the most important being, what does “work” mean?
- A look into the tough wage and hour claims with which different industries wrestle
- Donning and doffing
- Litigating claims involving changing into and out of uniform and the time spent walking between changing areas and work locations
- Principal activities and compensable time (call centers)
- Continuing disputes over activities considered “principal” to the employee’s job versus preliminary or postliminary duties
- Break and meal periods
- What does “provide” mean?
- Automatic meal period deductions from reported time
- Blackberries/PDAs and Social Media
- Claims arising from employee off-the-clock use of social media and personal digital assistant devices
- Improper Tip Pooling
- The restaurant industry’s major battles
- Payment calculations
- Extent to which an employer can satisfy its payment obligations for pre- and post-shift activities
- Payment for a prescribed reasonable period of time for these activities
- Rounding time: potential risks
- Determining when an employer must pay employees on an individual basis for the actual time required for such activities
- Implementing best practices to accurately determine relevant timeframes on an individual basis
3:55 Afternoon Coffee Break
4:00 Employee Misclassification: Defending Against the New Wave of Independent Contractor Misclassification Claims and Ensuring Proper Exempt or Non-Exempt Classifications
Howard Simon
SVP, HR & Corporate Services; Associate General Counsel;
Chief Compliance Officer
InterMune, Inc.
Cheryl D. Orr
Drinker Biddle & Reath LLP
Mark Brossman
Schulte Roth & Zabel LLP
- What is an independent contractor?
- Which industries are most affected and why?
- Understanding the complex and conflicting definitions from the FLSA, IRS and other state and federal statutes
- Strategies for preventing misclassification of workers as independent contractors
- Ensuring that existing exemptions are properly maintained
- Potential risks involved in re-classification of independent contractors
- Joint employment exemption concerns
- Which company is in control of an independent contractor?
- How larger companies can protect themselves from the risks posed by use of employees from other businesses whose policies may run afoul of wage and hour laws
- The theory of vertical integration
- Exempt vs. Non-exempt
- Determining exemption status for executive, administrative, professional and pharmaceutical outside sales employees under the FLSA
- What job duties and tasks by their nature make an employee ‘administrative?’
- Analyzing and assessing the impact of recent rulings, including In re Novartis, and reconciling the split amongst the circuit courts, including Christopher v. SmithKline Beecham Corporation
5:00 Focus on Trial and Pre-Trial Procedure: Innovative Strategies for Defending Against Wage & Hour Claims (FLSA and Rule 23) – Strategies for Pleadings and Motions, E-Discovery, Choice of Law/Forum Selection, Attorneys’ Fees and More
Brett C. Bartlett
Seyfarth Shaw LLP
Sara Gullickson McGrane
Felhaber Larson Fenlon & Vogt, P.A.
Andrew S. Naylor
Waller Lansden Dortch & Davis LLP
William C. Martucci
Shook, Hardy & Bacon LLP
Courts still have not come up with a uniform way of addressing the manner in which to litigate wage and hour claims, therefore, a comprehensive panel on how to successfully defend against these claims is pivotal. Gain critical insights on:
Pleadings and Motions
- Using the pleadings stage to gain an advantage and implement effective strategies
- How to get motions for summary judgment granted
- Assessing when an Iqbal motion is warranted
- Attacking allegations through Iqbal motions
- How to get your motions for summary granted
E-discovery
- What is its role in defending against wage and hour claims?
- Overcoming e-discovery hurdles associated with data in off-the-clock litigation
- Implementing an e-discovery plan that ensures compliance while defending against overly aggressive requests
- Incorporating the new rules, including Rule 502, into your daily business practices and litigation strategies
- Softening the economic blow of retaining, collecting and producing e-documents
Attorneys’ Fees
- Defending against claims for attorneys’ fees
- Attorneys’ fees and its effect on judgments/settlements
- Closer judicial scrutiny of attorneys’ fees
Preparing for and Trying a Wage and Hour Case
- Key strategic considerations
- Common mistakes and pitfalls to avoid
- Forum selection and multi-district litigation
- Using employment agreements, written job descriptions, and employer policies effectively at trial
- Determining whether a hybrid action is permissible; understanding the unique issues and complexities that arise when litigating hybrid suits
Trying a Wage and Hour Class Action
- Common mistakes and pitfalls to avoid
- Determining when evidence from those who did not opt in is permissible
- Use of representative testimony: when can a few speak for all
6:00 Conference Adjourns
Day Two – Wednesday, September 21, 2011
7:30 Continental Breakfast
8:00 View from the Bench Part I: Federal and State Judicial Perspectives on Class Certification Issues, Settlement, the Latest Plaintiff Theories & Emerging Defense Strategies
Hon. Roger T. Benitez
U.S. Dist. Ct., S.D. Calif.
Hon. Mark W. Bennett
U.S. Dist. Ct., N.D. Iowa
Hon. Jeanne Scott (Retired)
U.S. Dist. Ct., C.D. Ill.
Hon. Michael W. Mosman
U.S. Dist. Ct., D. Ore.
Hon. Robert Freedman
Super. Ct., Alameda Co.Hon.
Anthony J. Mohr
Super. Ct., Los Angeles Co.
Moderator:
Joseph C. Liburt
Orrick, Herrington & Sutcliffe LLP
9:25 View from the Bench Part II: A Unique Opportunity to Hear How Federal Magistrate Judges Interpret Evidence/Arguments in the Wage & Hour Context
Hon. Suzanne H. Segal
U.S. Dist. Ct., C.D. Calif.
Hon. William V. Gallo
U.S. Dist. Ct., S.D. Calif.
Hon. Paul S. Grewal
U.S. Dist. Ct., N.D. Calif.
Hon. Bernard Zimmerman
U.S. Dist. Ct., N.D. Calif.
Moderator:
Theodora Lee
Littler Mendelson PC
10:35 Morning Coffee Break
10:40 Winning the Class Certification Battle and Clarifying What is Needed to Get Classes Approved/Denied
Robert W. Crandall
Resolution Economics LLC
Jeffrey D. Wohl
Paul Hastings Janofsky & Walker LLP
Martin T. Wymer
Baker & Hostetler LLP
D. Michael Reilly
Lane Powell PC
Linda Doyle
McDermott Will & Emery
- Examining the ramifications of the decision in Wal-mart Stores v. Dukes (S.Ct.) and what the decision could have/has on class certification and class actions
- “Opt out” vs. “opt in:”Hybrid wage and hour litigation
- Analyzing what the substantive and procedural issues are that face employees and employers involved in “hybrid” wage and hour litigation
- Assessing the latest trends and rulings involving class certification at both federal and state levels
- Clarifying what courts are requiring in order to approve classes and what is needed in order for classes to proceed (e.g. class size and commonality of issues and fact)
- Level of evidence needed between the first stage and second stage of certification
- Strongest arguments against certification in exemption and off-the-clock cases
- Defense strategies for opposing a class and narrowing a class
- E.g. using experts and scientific data to fight certification
- Impact of the Class Action Fairness Act (CAFA) on FLSA and related state law claims
11:50 Expert Witnesses in Wage and Hour Litigation: Selection and Permissible Use of Expert Testimony
Paul F. White, PhD
ERS Group
Michael A. Alaimo
Miller, Canfield, Paddock
Michael Rubin
Altshuler Berzon LLP
Todd Jackson
Lewis Feinberg Lee Renaker & Jackson PC
- What is the role of the expert? At trial? For class certification?
- Plaintiff and defense concerns when selecting an appropriate expert
- Selecting experts that provide meaningful assistance in the pre-trial phase of the case – why and how the expert’s experience in wage and hour litigation is a critical component
- Strategies for conducting expert discovery and taking the depositions of experts
- Foundational requirements for experts, specific to employment litigation
- Using expert testimony to assess the appropriateness of class certifications
- Whether to use and how to counter expert testimony in determining class certification
- Using experts in selecting representative class members and determining the reliability of representational evidence for use in liability and damages phases
- Preparing and presenting expert testimony at trial
- Reliability and validity of sample or representational evidence for use in liability and damages phases
- Analyzing the benefit of the Industrial Welfare Commission (IWC) expert testimony
- What are the concerns with pseudo governmental opinions at trial when expert testimony cannot be offered to prove the meaning of a law?
12:45 Networking Luncheon for Speakers and Delegates
1:40 Alternative Dispute Resolution (ADR): Making the ADR Decision and Assessing Structure and Administration Considerations of Settlement, Arbitration and Mediation
Michael Ranallo
General Counsel
Bridgestone Retail Operations, LLC
Margaret A. Keane
Dewey LeBoeuf LLP
Jay W. Waks
Kaye Scholer LLP
J. Timothy McDonald
Thomson Hine LLP
Robert R. Reinhart
Dorsey & Whitney LLP
- Making the Decision
- Determining whether and when to pursue arbitration or mediation, and which is the proper course of action
- Keys to preparation for successful mediation
- Settlement strategies
- Practical tips for handling arbitration and mediation proceedings
- Key elements and pitfalls to avoid
- The latest trends and settlement schemes
- Recent developments in the use of arbitration agreements
- Potential impact on future litigation
- Working with plaintiffs’ counsel to achieve an approved settlement
- Using collateral estoppel to avoid continuing claims and damages
- Class actions and arbitration
- How to draft valid class action arbitration clauses
- Long John Silver & Stolt-Nielsen
- impact on employment arbitration and mediation of the US Supreme Court decisions in AT&T Mobility v. Concepcion and 14 Penn Plaza v. Pyett
- Examples of successful resolution of major class actions
- Calculating Damages
- Determining how far back the damage calculation should go
- Fluctuating work week method; time and a half
- Understanding your client’s payroll system
- Impact of FLSA and state statute provisions on damage calculations
- Using proxy time records to calculate damages
- Using damage experts and accountants to achieve accurate calculations
- Settlement Administration
- Common mistakes and pitfalls to avoid
- Optimizing the use of settlement administrators
- Assessing and making use of web-based tools for settlement
- Timeframes for processing and payment schedules
- Overcoming the difficulties in locating class members
- Tax considerations
- Best practices for notice
- Ensuring court approval of a settlement: Key administrative and structural considerations
- Closer judicial scrutiny
- The latest criteria in approving class action settlements (e.g. Wren v. RGEIS Inventory)
2:40 Ensuring Ethical Conduct in the Litigation and Settlement of Wage and Hour Claims
Jennifer Trulock
Baker Botts LLP
Matthew W. Lampe
Jones Day
Martha S. Doty
Alston & Bird LLP
- Obtaining pre-certification information for the putative class
- Ex parte communications
- Ensuring ethical communication with actual and potential class members
- Appropriate communication when attempting to convey information about claims to the class
- Proper solicitation of clients
- Pretexting vs. proper investigations
- Attorney-client privilege and company networking systems
- Waiving the attorney-client privilege on employer computer systems
- Remedies for ethical violations
3:40 Conference Ends – Workshop B Registration Begins
Conference Details