Day One Thursday, January 24, 2013
7:20 Registration and Continental Breakfast
8:00 Co-Chairs’ Welcoming Remarks
Kevin E. Hyde
Partner
Foley & Lardner LLP (Jacksonville, FL)
Cheryl D. Orr
Co-Chair, Labor & Employment Practice Group
Drinker Biddle & Reath LLP (San Francisco, CA)
8:05 In-House Labor & Employment Counsel Speak Out on How They Manage the Business’s Expectations with Respect to Lawsuits and Exposure, How They Handle Executive Witnesses, and Where Outside Counsel Succeeds and Falls Short
Panel 1: 8:05 – 9:15
Lawrence Dietrich
Corporate Counsel Labor and Employment
Coca-Cola Refreshments (Atlanta, GA)
Kevin A. Madden (invited)
Employment Counsel
BJ’s Wholesale Club, Inc. (Westborough, MA)
Keith James
Corporate Employment Counsel
Masco Corporation (Taylor, MI)
Deborah Hilke
Principal Litigation Counsel
Medtronic, Inc. (Minneapolis, MN)
Panel 2: 9:15 – 10:25 (10:25 – 10:35 coffee break)
Michael Mason
In-House Counsel Pinnacle
West Capital Corporation (Phoenix, AZ)
Beth M. Gianopulos
Counsel Wake Forest University
Baptist Medical Center (Winston-Salem, NC)
Suzanne Alford
Senior Director & Corporate Counsel
Equifax Inc. (Atlanta, GA)
Jessica A. Neal
Senior Counsel – Employment Litigation
International Paper Company(Memphis, TN)
Ellen Rice
Director and Senior Counsel Office of the General Counsel
EMC Corporation (Rockville, MD)
Panel 3: 10:35 – 11:45
Brian K. Telfair
Deputy City Attorney for Litigation and Public Safety
City of Richmond (Richmond, VA)
Joseph E. Boyland
Vice President and Associate General Counsel
Fidelity Investments (Boston, MA)
Andrew H. Smith
Director, Associate General Counsel
Citigroup (New York, NY)
E. Jewelle Johnson
Senior Counsel- Labor and Benefits
Graphic Packaging International, Inc.(Marietta, GA)
Elizabeth Franklin
Executive Director and Associate General Counsel, Global Employment and Immigration
Maxim Integrated Products (San Jose, CA)
Panel Co-Moderators:
Cheryl D. Orr
Co-Chair, Labor & Employment Practice Group
Drinker Biddle & Reath LLP (San Francisco, CA)
Lorie Almon
Co-Chair, Wage & Hour Litigation Practice Group
Seyfarth Shaw LLP (New York, NY)
Heather Gatley
Associate General Counsel and Head of Global Labor and Employment
Ryder System, Inc. (Miami, FL)
- Preventing and managing wage & hour claims and ensuring compliance with the latest federal and state regulations, investigations and enforcement initiatives
- Preparing for and responding to audits and enhanced enforcement efforts
- Assessing your company’s specific risks and what companies do after they’ve been targeted
- Strengthening defense pre-litigation policies and procedures; reductions in force and other discharges; wage related audits
- ESI and Legal hold issues
- Internal investigations and early dispute resolutions
- In-House perspectives on recent trends in wage and hour settlements and resolutions, including mediation
- Case assessments and further defining key litigation strategies
- Issues in preparing witnesses and how to manage executive witnesses
- Strategies for trial preparation
- Specific examples of outside counsel relationships succeeding and failing in the wage context
11:45 Year in Review on FLSA, Class Certification, and Hybrid Claims: Hot Jurisdictions, Emerging Trends, and What to Expect in 2013 after the Presidential and Congressional Elections
Linda Bond Edwards
Partner
Rumberger Kirk & Caldwell (Tallahassee, FL)
Michael P. Maslanka
Partner
Constangy, Brooks & Smith, LLP (Dallas, TX)
Stacey McKee Knight
Partner
Katten Muchin Rosenman LLP (Los Angeles, CA)
David Long-Daniels
Shareholder
Co-Chair, Global Labor & Employment Practice
Greenberg Traurig LLP (Atlanta, GA)
This session will offer an in-depth examination of recent and emerging trends in wage and hour claims and litigation. It will explore recent developments impacting plaintiffs, defendants and counsel, recent cases of importance and what this will mean in terms of strategizing for the year ahead. With ample time for questions, this session will set the tone for an interactive and insightful two days.
FLSA Cases
- FLSA cases in the pipeline
- Judicial approval and supervision of settlements under the FLSA
- Martin v. Spring Break Productions (5th Cir.)
- How the 5th Circuit distinguished this case from Lynne’s Food (11th Cir.)
- How and when a defendant can moot an FLSA claim
- Symcyk v. Genesis Healthcare Corp. (3rd Cir.)
- Can a defendant employer moot a putative collective action by “picking off” the named plaintiff?
- Is a plaintiff entitled to attorney’s fees without having received a judgment?
- Dionne v. Floormasters Enterprises LLC (11th Cir.)
Class Certification
- Class certification in the wake of Wal-Mart v. Dukes
- State of Circuit Court decisions regarding certification, including issues of:
- Reversals of prior certifications
- Conditional certification under the FLSA
- Applicability of Dukes to wage and hour cases
- Chinese Daily News v. Wang (9th Cir.)
- Delodder v. Aerotek, Inc. (9th Cir.)
Hybrid Claims
- Clarifying the status of whether federal collective action and state class action can be maintained in the same lawsuit
- Knepper v. Rite Aid Corp. (3rd Cir.)
- Salim Shahriar et al. v. Smith & Wollensky (2nd Cir.)
- Ervin V. OS Rest. Servs. (7th Cir.)
- Strategic response to plaintiffs bringing more claims under both federal and state provisions
1:05 Networking Luncheon for Speakers and Delegates
2:05 Department of Labor Update: Responding to Enhanced Enforcement Initiatives and Aggressive Investigations
Dr. Elizabeth Becker
Senior Vice President, Employment and Labor Practice
NERA Economic Consulting (New York, NY)
Paul DeCamp
Partner
Jackson Lewis LLP (Reston, VA)
Jeffrey D. Patton
Member
Spilman Thomas & Battle, PLLC (Winston-Salem, NC)
Glenn G. Patton
Partner
Alston & Bird LLP (Atlanta, GA)
Kevin E. Hyde
Partner
Foley & Lardner LLP (Jacksonville, FL)
- Managing the increased government activity in and scrutiny of wage and issues
- Scrutiny of independent contractor classification, off-site employees and home healthcare workers
- Fluctuating work week
- Amicus briefs
- Developments in the Wage and Hour Division’s resolution of claims
- Demands for liquidated damages
- Limited releases in DOL approved settlements
- Targeted investigations
- Which industries are attracting the most DOL scrutiny?
- DOL mobile timekeeping app
- Enforcement trends
- Frequency and type of claims being brought by the DOL
- Increased DOL enforcement efforts and their impact on employers
3:20 Afternoon Refreshment Break
3:30 Defining “On the Clock” and Factoring in the Latest Developments in Meal and Rest Breaks and Tipped Employee Claims
Rob Crandall
Partner
Resolution Economics LLC (Beverly Hills, CA)
Andrea M. Kirshenbaum
Principal
Post & Schell, P.C. (Philadelphia, PA)
Patrick F. Hulla
Shareholder
Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Kansas City, MO)
Kelly H. Kolb
Shareholder
Fowler White Boggs P.A. (Fort Lauderdale, FL)
- Minimizing and controlling the dangers of “Blackberry claims”
- Portal-to-Portal Act
- Proactive measures to reduce the challenges in proving that the company was unaware of employees working off the clock
- Requiring accurate hour reporting through strict reporting policies
- Forbidding work related mobile activity and other off the clock work
- Implementing employee directed time card correction procedures
- Creating, distributing, and enforcing reporting policies
- Using the technological footprint to verify or refute a claim
- Requiring employees to sign weekly time records affirming that they have not worked off the clock and have recorded all hours worked
- Weighing the benefits of non-exempt employees having mobile devices, against the potential liability from “off the clock” claims
- What is meant by “de minimis” time
- How much time is acceptable for employee’s to have to log-in or access a computer or mobile device in order to be “on the clock”
- What triggers the start of the continuous work day
- Are the non-de minimis duties performed by employees at home causing commuting time potentially to become compensable
- What does it mean to provide a meal break
- What does the FLSA require?
- What constitutes a meal break interruption?
- Meal break and rest period issues in the healthcare industry
- Using proxies for time records
- Gang time and Exception time reporting systems
- How employers can ensure employees don’t work through provided meal break periods
- Clearly worded policies communicated to employees in a documented manner
- Meal break policy
- Overtime policy
- Enforcement of policies
- Spot check by supervisors
- Documentation of violations and corrective action
- Reinforcement of policies at employee meetings
- How companies with multiple locations can ensure compliance with varying meal break requirements and enforcement
- Policies requiring meal breaks and their potential impact on class-wide claims
- New types of “off the clock” claims being advanced by the plaintiffs’ bar- Uniform Maintenance
- Tipping and tip pooling claims
- The restaurant industry’s major battles with improper tip pooling
- Rotations within restaurant positions causing incorrect classification
- “Voluntary” (illegal) tip sharing
- Increased litigation involving tip credit
- New DOL regulations regarding notice of payment of tip credit and direct wages
- Using expert testimony to defend claims
- Preparing and presenting expert testimony at trial
4:45 Preventing Independent Contractor Misclassifications and Ensuring Accurate Exempt Employee Determinations
Michael G. Canaras
Senior Counsel – Employment, Labor & Benefits
The Home Depot (Atlanta, GA)
Sarah E. Bradbury
Legal Counsel Money
Gram International (Dallas, TX)
Joel S. Allen
Partner
Morgan, Lewis & Bockius LLP (Dallas, TX)
David A. Prather
Partner
Ford & Harrison LLP (Memphis, TN)
Tim K. Garrett
Member
Bass, Berry & Sims PLC (Nashville, TN)
- Evolution of the law
- Preventing the misclassification of workers as independent contractors
- Defending against independent contractor misclassification claims
- Determining exemption status under the FLSA of:
- Executive employees; Administrative employees; Computer professionals; Outside sales employees
- Ensuring exemptions are properly maintained
- Keeping tabs on the exemption status of current employees
- Monitoring individuals changing work roles due to the state of the economy
- Reclassifying employees when their responsibilities change
- Ensuring proper payment and classification of interns
- Application of the fluctuating work week
- Methodology of how to calculate
- Method of computation in large collective action cases
- Pharmaceutical sales representatives and the outside sales exemptions
- Christopher v. SmithKline Beecham
- State law technicalities, including wage statement violations, timing of pay requirements, deductions and reimbursements
6:00 Conference Adjourns
Day Two Friday, January 25, 2013
7:30 Continental Breakfast
8:00 View From the Bench: What Works and What Doesn’t in Their Courtrooms, Why Employers Succeed and Don’t Succeed in Wage & Hour Litigation, Novel Trial and Case Management Strategies, Examples of Bad Lawyering and More
The Honorable William S. Duffey, Jr.
District Court Judge
U.S. Dist. Ct., N.D. Ga.
The Honorable Colleen McMahon
District Court Judge
U.S. Dist. Ct., S.D.N.Y.
The Honorable Eric F. Melgren
District Court Judge U.S. Dist. Ct., D. Kan.
The Honorable Lisa Lenihan
Chief Magistrate Judge
U.S. Dist. Ct., W.D. Pa.
The Honorable Robert B. Collings
Magistrate Judge
U.S. Dist. Ct., D. Mass.
The Honorable Richard Kramer
Superior Court Judge
San Francisco Superior Court
Moderator:
Marcel L. Debruge
Partner
Burr & Forman LLP (Birmingham, AL)
- The role of the courts in the settlement of wage and hour cases
- What role can and ought the courts play in facilitating or hampering a settlement?
- The latest plaintiff strategies and emerging defense theories
- Common mistakes made by litigators, and how to avoid them
- Conveying messages to fact finders and effectively explaining complex theories
- Judicial perspectives on e-discovery and expert witnesses
- Working with a judge to limit the scope of discovery information without over-stepping your bounds
- Expectation of courts regarding admissibility of electronic records
9:35 View From the Plaintiffs’ Bar: Adapting Your Strategies to New and Innovative Techniques and Tactics
J. Nelson Thomas Founding
Partner
Thomas & Solomon LLP (Rochester, NY)
Paul J. Lukas
Partner
Nichols Kaster, PLLP (Minneapolis, MN)
Gary F. Lynch
Partner
Carlson Lynch Ltd. (Pittsburgh, PA)
- Assessing the latest trends in wage and hour claims, class and collective actions
- Conditional certification under the FLSA, and the use of collective action as a motivator for a defendant to settle
- Early settlement strategy: candid conversations with defense counsel
- How the plaintiffs’ bar has adapted to Wal-Mart v. Dukes and AT&T Mobility v. Concepcion
- New and emerging arguments they’re using to circumvent and overcome these landmark cases
- Types of actions the plaintiffs’ bar is focused on
- What makes a claim attractive?
- What industries are most susceptible?
- Which claims are having the most success?
- Deciding whether to consolidate plaintiff claims
- Strategic issues
- Pros and cons
- Methods used to find classes, and court restrictions on such methods
10:40 Morning Coffee Break
10:50 Minimizing Exposure to Wage Litigation Arising Out of the Use of Social Media: How to Counter the Rise of Claims Involving Social Media Given That Current Federal and State Laws Haven’t Adequately Addressed Changes in Technology
Robert L. Jones, Jr.
Labor Attorney
American Airlines (Fort Worth, TX)
Tamera M. Woodard
Labor & Employment Counsel
AT&T (Atlanta, GA)
Mirande Valbrune
Director, Employee Relations
AXA Equitable Life Insurance Company (New York, NY)
Moderator:
Tracey L. Ellerson
Partner
Baker Hostetler (Orlando, FL)
- Assessing an employee’s right to raise wage and hour and other employment matters using social media networks
- NLRB Decisions and Social Media Reports
- When are union and non-union employees’ online social media activities protected as concerted activity under the NLRA
- What can employers do to craft social media policies that comply with federal labor and employment laws
- How can employers craft and implement social media policies that adequately protect the company without stifling employees
- Analyzing off-the-clock claims involving employee use of social media and social networking
- What are the risks
- What are the lessons learned from the use of social media in the workplace
- Bring your own device policies
- Analyzing when and whether to use social media to screen potential or current employees
- Pitfalls to avoid under federal and certain state laws
- Analyzing when and whether to use social media sources to make employment decisions
- Managing and defending against claims arising from the use of social media
12:05 Avoiding Costly Litigation through the Proven Methods of Settlement and Mediation of Wage and Hour Claims
William F. Allen
Shareholder
Littler Mendelson P.C. (Washington, DC)
Reed L. Russell
Partner
Phelps Dunbar LLP (Tampa, FL)
Leslie Dent
Partner
Paul Hastings LLP (Atlanta, GA)
Andrew S. Naylor
Partner – Labor & Employment Law Practice Group
Waller Lansden Dortch & Davis, LLP (Nashville, TN)
J. Robert McCormack
Shareholder
Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Tampa Florida)
- Early evaluation and assessment for possible mediation
- Monetizing the case
- What models to use in making this determination
- Understanding each side’s goals
- Employee
- Defense counsel
- Employer
- Determining when and whether settlement is the right course
- Potential impact on future litigation
- Strategy in settlement
- Working with plaintiffs’ counsel to achieve an approved settlement
- Settlement administration and the use of administrators
- Best practices for notice
- Overcoming difficulties in locating class members
- Ensuring court approval of a settlement
- The state of judicial approval of FLSA settlements
- What triggers a court to reject a settlement?
- Pitfalls to avoid
- Confidentiality of settlement
- When and whether an agreement must be filed in the public record
- How to settle on a single plaintiff or collective basis without having to put the agreement in the public domain
- What mediators are doing to bring parties together
- What methods are most effective for resolving claims?
- How to set up alternative dispute procedures in order to keep cases under control
- How the lower courts are applying AT&T Mobility
- Impact of the NLRB’s decision in D.R. Horton to AT&T’s applicability to the employment context
1:15 End of Main Conference – Lunch for Workshop participants
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