Pre-Conference Workshop

Wage & Hour Boot Camp: An In-Depth Analysis of Wage & Hour Law Essentials for New Practitioners

Sep 25, 2016 4:00pm – 

Speakers

Cheryl D. Orr

Drinker Biddle & Reath LLP

Philippe Lebel

Drinker Biddle & Reath LLP

Day 1 - Monday, September 26, 2016

7:15
Registration and Continental Breakfast
7:55
Co-Chairs’ Welcome
8:00
In-House Insights on New and Emerging Areas of Risk in the Wage & Hour Landscape; Responding to Enhanced Enforcement Initiatives; Compliance Strategies and Pitfalls to Avoid; Selecting and Retaining Outside Counsel; Internal Audit Assessment; ​Managing Complex Litigation; and More
10:20
Morning Coffee Break
10:30
Tips and Strategies for Dealing with Ramped Up DOL Enforcement Policies, Targeted Investigations, Audits and Litigation; and Protecting Your Future Interests if an Audit Turns Into a Prosecution
11:20
The New Overtime and White-Collar Exemption Regulations – Practical Considerations for Employers in Restructuring/Reclassifying Workers & Effecting Organizational/Pay Practice Changes, Strategies for Minimizing Litigation Risks, and ​Defending Against Claims of Violation
12:10
Networking Lunch for Speakers and Delegates
1:10
The Latest Developments in Private Class Action Certification, Obtaining Decertification, the Implications of the Supreme Court Decision in Tyson v. Bouaphakeo, Managing Hybrid Class/Collective Actions, and Beyond
2:00
Wage and Hour Litigation in the Hotbed of California: Essential Updates for Companies with a California Presence – PAGA Litigation, Suitable Seating, Sick/Family Leave Laws, Time Rounding, Meal & Rest Breaks, Paystub & Payroll Debit Card Violations ​and Beyond
2:50
Afternoon Break
2:55
Pay Equity: Staying Ahead of the Curve on this Hot Button Issue, Tips for Ensuring Equal Pay Compliance, Pitfalls to Avoid for Employers Operating in California, New York and Other States, and Strategies for Defending Litigation
3:55
The Latest Claims Arising from Pre-Post Shift Activities and Offthe- Clock Work: 2016 Roundup of Notable Case Decisions and Proven Defense Strategies
4:40
Wage & Hour Liability Insurance: A Vital Part of the Solution to Burgeoning W&H Exposures
5:35
Recently Increased Settlement Hurdles, Obstacles and Scrutiny in Wage and Hour Cases: Obtaining Court Approval, Confidentiality of Settlement Terms, Non- Disparagement Provisions and Beyond – ​What Are Courts Looking at to Determine if Settlement is Valid
6:25
Conference Adjourns to Day Two

Day 2 - Tuesday, September 27, 2016

7:30
Registration and Continental Breakfast
8:00
Views 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, Judicial Perspectives on Class Certification, and More
9:35
Defending and Managing Against the Latest Misclassification Allegations: Innovative Strategies for Federal and State Claims Involving Mislabeling Nonexempt/Exempt Employees and Misclassifying Independent Contractors and Interns
10:25
Morning Break
10:55
Joint Employer Liability in the Wage and Hour Context: the Continued Fallout of the NLRB Browning-Ferris Decision, the Latest DOL Guidance, California Law Nuances, Mitigating Risk of Joint Employment Liability, and ​Defeating Joint Employment Allegations in Litigation
11:00
Litigating Wage & Hour Class and Collective Actions: Innovative Strategies for Pre-Trial Investigation, ESI, and Discovery
11:50
Interactive “Ask the Plaintiff ’s Bar” Session: Adapt Your Strategies to New and Innovative Techniques Being Brought by Your Adversaries Specifically in the Wage Context
1:05
Conference Ends

Day 1 - Monday, September 26, 2016

7:15
Registration and Continental Breakfast
7:55
Co-Chairs’ Welcome

Lee Schreter
Shareholder
Littler Mendelson P.C.

William C. Martucci

Shook, Hardy & Bacon LLP

Cheryl D. Orr

Drinker Biddle & Reath LLP

8:00
In-House Insights on New and Emerging Areas of Risk in the Wage & Hour Landscape; Responding to Enhanced Enforcement Initiatives; Compliance Strategies and Pitfalls to Avoid; Selecting and Retaining Outside Counsel; Internal Audit Assessment; ​Managing Complex Litigation; and More

PANEL 1 / 8:00 – 9:10

Mary Ulmer Jones
Associate General Counsel Senior Vice President
Bank of America

Richard Heller
Senior Vice President and General Counsel
Legal Sea Foods

Philip I. Weis
Director & Senior Employment Counsel
Boehringer Ingelheim Pharmaceuticals

Ron Peppe
Vice President Legal & Human Resources
Canam Steel Corporation

Ilyse Goldsmith
Vice President | Assistant General Counsel
U.S. Bank

PANEL 1 MODERATOR:

Cheryl D. Orr

Drinker Biddle & Reath LLP

PANEL 2 / 9:10 – 10:20

Elena Dietrich
Vice President – Litigation and Employment Law
Albertsons Companies

Miles R. Afsharnik
Senior Vice President & National Claims Director Professional Risk Practice
Wells Fargo Insurance

Kristen O’Connor
Employment Counsel
Marsh & McLennan Companies

Keith Thomas
Lead Counsel
FedEx

Jay J. Price
Former Associate General Counsel & SVP
Bank of America

PANEL 2 MODERATOR:

Mandana Massoumi

Manatt, Phelps & Phillips, LLP

10:20
Morning Coffee Break
10:30
Tips and Strategies for Dealing with Ramped Up DOL Enforcement Policies, Targeted Investigations, Audits and Litigation; and Protecting Your Future Interests if an Audit Turns Into a Prosecution

Antonio Caldarone

Laner Muchin, Ltd.

Jeremy Stewart
Assistant General Counsel
Kiewit Corporation

  • Update on the latest DOL wage & hour initiatives
  • Examining the current trends, practices and industries that the DOL is focusing on
  • What does the DOL’s recent shift towards a more aggressive enforcement policy mean for employers?
  • Strategies and best practices for employers who are targeted for investigation/audit – taking a more adversarial stance earlier on to protect your future interests
  • What rights do employers have during a DOL audit?
  • What types of cases are more likely to trigger litigation early on?
  • Examples of cases that fit the Wage & Hour Divisions “potential litigation” criteria
  • Best practices during the course of an audit to protect your future interests if the audit turns into a prosecution

11:20
The New Overtime and White-Collar Exemption Regulations – Practical Considerations for Employers in Restructuring/Reclassifying Workers & Effecting Organizational/Pay Practice Changes, Strategies for Minimizing Litigation Risks, and ​Defending Against Claims of Violation

Diane Krebs

Gordon Rees Scully Mansukhani LLP

Aaron A. Buckley

Paul, Plevin, Sullivan & Connaughton LLP

  • Examining the implications of the DOL’s new federal overtime regulations and “white collar exemption” requirements
  • Paying employees who no longer meet the salary basis test of the “white collar” exemption
  • The latest on the “duties” portion of the “white collar” exemption test
  • Restructuring and reclassifying workers as hourly-paid employees to avoid overtime payment – adapting new policies and practices to track hours worked by employees whose time wasn’t tracked before
  • What are the litigation risks associated with these new changes
  • What organizational and/or pay practice changes will employers need to make to achieve business objectives and minimize the litigation risks?
  • Trends in white collar exemption litigation
  • DOL enforcement strategies
  • What damages can a private litigant recover in these claims?
  • Strategies for defending against claims of violation once litigation is brought

12:10
Networking Lunch for Speakers and Delegates
1:10
The Latest Developments in Private Class Action Certification, Obtaining Decertification, the Implications of the Supreme Court Decision in Tyson v. Bouaphakeo, Managing Hybrid Class/Collective Actions, and Beyond

Rachel S. Brass

Gibson, Dunn & Crutcher LLP

Babak G. Yousefzahdeh
Partner
Sheppard, Mullin, Richter & Hampton LLP

  • The latest developments in wage and hour class and collective action treatment
  • Assessing the implications of the Supreme Court’s decision in Tyson Foods, Inc. v. Bouaphakeo – using statistical / representative evidence to certify and maintain a class; examining progeny of Tyson
  • The latest innovative strategies for winning and defeating certification motions
  • Leveraging lessons from Dukes, Comcast and Duran to challenge evidence on liability and damages
  • Fights over proper forum – state or federal court? Using merits and experts to defeat certification
  • The latest rulings on class treatment in misclassification, exemption and off-the-clock actions
  • Effectively managing hybrid federal and state law class actions
  • Rule 68 Offers of Judgment – the latest court decisions and treatment: can “picking off ” class representatives through a Rule 68 offer of judgment moot class action claims?

2:00
Wage and Hour Litigation in the Hotbed of California: Essential Updates for Companies with a California Presence – PAGA Litigation, Suitable Seating, Sick/Family Leave Laws, Time Rounding, Meal & Rest Breaks, Paystub & Payroll Debit Card Violations ​and Beyond

Brandon McKelvey

Medina McKelvey LLP

John Barber

Lewis Brisbois Bisgaard & Smith LLP

In regards to wage and hour litigation, the state of California is a leader. The volume of cases in CA courts is unprecedented, and the regulations continue to evolve and grow. As the FLSA is only one piece of the puzzle, it is imperative that companies with a California presence ensure that their wage and hour policies do not run afoul of the myriad of regulations in California. One size might not fit all as it relates to prevention and litigation strategies in California. In this session, industry experts will provide in-depth, California specific insights on:

  • Litigation under the Private Attorney General’s Act:
    • What’s new with PAGA? – the latest trends and treatment of PAGA claims
    • How is the plaintiffs’ bar using these PAGA rules to get around class action rules?
    • PAGA actions brought in federal court
    • Compliance with Rule 23 certification
  • Which claims are on the rise in California, and what industries are most susceptible?
  • The latest in claims related to:
    • Suitable Seating
    • Expense Reimbursement
    • Sick & Family Leave Laws
    • Time Rounding Policies
    • Payroll and Paystub Violations
    • Payroll Debit Card Usage
    • Meal and Rest Breaks
  • California workers’ compensation
  • Analysis of settlement/approval issues by county

2:50
Afternoon Break
2:55
Pay Equity: Staying Ahead of the Curve on this Hot Button Issue, Tips for Ensuring Equal Pay Compliance, Pitfalls to Avoid for Employers Operating in California, New York and Other States, and Strategies for Defending Litigation

Amy M. Aukstikalnis Ph.D.
Senior Economist
Welch Consulting

Scott Peartree
Senior Corporate Counsel
Cisco Systems

Lisa R. Gorman

Freeman Mathis & Gray LLP

  • Discussion of the recent equal pay movement and an overview of the latest key legislative and regulatory developments that employers should familiarize themselves with to stay ahead of the curve
  • Examining the recently ramped up pay equity laws enacted in California and New York — what are the implications? What ambiguities exist in the statutes? What are the pitfalls to look out for?
  • Which other states currently have new, more demanding pay equity bills enacted or pending and what do these bills propose? (e.g. Colorado, Connecticut, Florida, Hawaii, Illinois, Louisiana, Maine, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, Oregon, Vermont)
  • New pay equity rules issued for federal contractors
  • What industries are being spotlighted for demonstrating the most dramatic wage gaps between men and women?
  • Evaluating exposure to claims of compensation discrimination and tips for equal pay compliance
  • The latest litigation arising from pay discrimination or “glass ceiling” failure to promote cases
  • Under what circumstances are courts finding that employers can avoid liability for pay discrepancies? How are new state laws changing the standards to make it easier for employees to succeed on pay discrimination claims?
  • Employer defenses & strategies for defending claims of compensation discrimination
  • Status of the proposed EEOC Reporting Requirements on pay differences

3:55
The Latest Claims Arising from Pre-Post Shift Activities and Offthe- Clock Work: 2016 Roundup of Notable Case Decisions and Proven Defense Strategies

Joseph E. Tilson

Cozen O’Connor

Juan Lopez-Campillo

Cruser & Mitchell LLP

  • Latest FLSA and state wage & hour case law involving:
    • Use of mobile devices and emails (BlackBerry, smartphones, VPN) outside work hours
    • Bring Your Own Device (BYOD) policies
    • Telephone calls (texts): how are text messages interpreted?; identifying business versus personal calls and texts?; employee to employee calls/texts
    • Employees giving email and/or cell phone to customers or potential customers
    • Computer network log-in data
    • VPN or Virtual Desktop
    • Transaction data
    • GPS Data / Work order data
    • Work assignment upload and downloading data
    • Booting up and logging off computers
    • Pre/post-shift meetings
  • Innovative and proven defense strategies to claims involving the above

4:40
Wage & Hour Liability Insurance: A Vital Part of the Solution to Burgeoning W&H Exposures

Julianna Ryan

Kaufman Borgeest & Ryan LLP

Jeanne Deni Esq.
Senior Vice President, West Regional Leader
Willis Towers Watson

Michelle Pitcher
Senior Vice President Professional Liability Insurance
XL Catlin

Machua Millett
Chief Innovation Officer, FINPRO US
Marsh USA, Inc.

  • Assessing the rapidly increasing W&H exposures
  • Narrowing or non-existent coverage under other types of policies
  • The expanding insurance marketplace for W&H coverage
  • One size does not fit all when it comes to W&H coverage
  • What do underwriters look at in evaluating W&H risk?
  • How much or how little information must an applicant share to secure coverage?
  • The role of insurance in the defense and settlement of claims
  • What lies ahead in W&H insurance

5:35
Recently Increased Settlement Hurdles, Obstacles and Scrutiny in Wage and Hour Cases: Obtaining Court Approval, Confidentiality of Settlement Terms, Non- Disparagement Provisions and Beyond – ​What Are Courts Looking at to Determine if Settlement is Valid

Diana Estrada

Wilson Elser Moskowitz Edelman & Dicker LLP

Lee Schreter
Shareholder
Littler Mendelson P.C.

  • Examining the latest issues, trends and challenges in approaching settlement of wage and hour claims, including individual as well as FLSA claims and class/collective actions
  • Strategies for settlement in the face of recently increasing court scrutiny of, and restrictions on, settlement & settlement agreements
  • Tips and best practices for dealing with the court approval process
  • What are courts currently looking at to determine if settlement is valid?
  • Examining the latest case law rulings on: Confidentiality of settlement terms; Inclusion of non-disparagement provisions in settlement agreements; Restrictions on actions the plaintiff can take with respect to claims of other individual co-workers
  • What other restrictions are courts placing on what parties can mutually agree to under a settlement agreement?
  • Overcoming the hurdles of keeping settlement terms confidential
  • Best practices for conduct during settlements to avoid allegations of collusion between parties
  • Under what circumstances have courts rejected settlements based on a finding of collusion?
  • Challenges and hurdles associated with attorneys’ fees, costs and incentive payments

6:25
Conference Adjourns to Day Two

Day 2 - Tuesday, September 27, 2016

7:30
Registration and Continental Breakfast

William C. Martucci

Shook, Hardy & Bacon LLP

8:00
Views 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, Judicial Perspectives on Class Certification, and More

Hon. Nancy F. Atlas

U.S. Dist. Ct., S.D. Tx

Hon. Michael J. Watanabe

U.S. Dist. Ct., D. Co

Hon. Richard S. Schmidt

U.S. Bankr. Ct., S.D. Tex.

Hon. Robert B. Freedman

Alameda Cty, Sup. Ct., Calif.

Moderator:

William C. Martucci

Shook, Hardy & Bacon LLP

9:35
Defending and Managing Against the Latest Misclassification Allegations: Innovative Strategies for Federal and State Claims Involving Mislabeling Nonexempt/Exempt Employees and Misclassifying Independent Contractors and Interns

Wayne O. Adams III

Ice Miller LLP

  • Exempt v. Non-Exempt and Independent Contractor Misclassifications: What’s the latest key case law on the federal and state level and what are the latest strategies in defeating claims that employers have misclassified workers as “exempt” employees or as independent contractors?
  • Spike in claims related to motor carrier act exemption in oil field industry / energy industry
  • The latest claims involving application of the “combination exemption” (combined administrator/executice)
  • Examining the implications of the DOL’s latest guidance expanding the scope of who should be classified as an employee vs. independent contractor
  • New categories of employees raising class claims based on independent contractor misclassification
  • The latest “gig economy” cases – are Uber/Lyft drivers independent contractors?
  • Increased independent contractor misclassification cases involving delivery drivers
  • Staying on top of recent changes and nuances in Federal DOL and state rules governing classification
  • State law technicalities, including wage statement violations, timing of pay requirements, deductions, and reimbursements
  • Litigating state law technicalities when operating a multi-state business
  • The latest case law on intern misclassification
    • How are the courts determining if a person is an employee vs. a volunteer/intern? How are they currently applying the “benefits test?”
    • Strategies for defeating claims that an employer misclassified a worker as a volunteer/intern?

10:25
Morning Break
10:55
Joint Employer Liability in the Wage and Hour Context: the Continued Fallout of the NLRB Browning-Ferris Decision, the Latest DOL Guidance, California Law Nuances, Mitigating Risk of Joint Employment Liability, and ​Defeating Joint Employment Allegations in Litigation

Linda M. Doyle

McDermott Will & Emery

  • The fallout of the NLRB’s redefinition of “joint employer” in Browning-Ferris, and the decision’s implications on franchisor/franchisees, sub-contractors, and other businesses that use outsourcing or staffing agencies to supply their workers
  • The latest DOL guidance; how will this pan out after the DOL has its say?
  • What far reaching impacts will this have on business practices, transactions and litigation? What impacts are already being seen?
  • What industries are being targeted?
  • What litigation trends are being seen?
  • Advising clients to review their policies, procedures, business relationships and practices to limit their potential exposure to wage and hour claims based on a joint employer theory
  • Carefully examining contractual relationships with third-party employers to determine whether changes can be made to those agreements to reduce the risk of joint employer liability
  • The “red flag” issues that can lead to joint employer liability
  • Tips, strategies and best practices for avoiding and defending against these claims
  • Defeating joint employment allegations early in employment litigation
  • Attacking these claims at the pleading stage
  • Discovery strategies

11:00
Litigating Wage & Hour Class and Collective Actions: Innovative Strategies for Pre-Trial Investigation, ESI, and Discovery

Jason C. Marsili

Posner & Rosen LLP

Steve L. Hernandez
Partner
Barnes & Thornburg LLP

  • Communications with current and former employees that might be eventual class members
    • When/how do you contact potential future class members
    • How much communication can you have with putative plaintiffs?
    • What do you communicate in order to ensure ethical compliance
  • Strategies for conducting discovery
    • Sampling and statistical significance
    • What are judges requiring of attorneys in order to streamline the process?
    • ESI and email searches as part of discovery
  • Innovative strategies for pre-trial investigation, ESI and discovery in an FLSA collective action versus in a Rule 23 class action; and in a hybrid claim
    • Conducting discovery on an opt-in class
  • How to satisfy the CAFA standard
    • What evidence is needed to demonstrate that a claim will meet the monetary threshold?
  • How to challenge evidence as not representative for the purposes of trial
  • Practical strategies for reducing the cost and burden of e-discovery

11:50
Interactive “Ask the Plaintiff ’s Bar” Session: Adapt Your Strategies to New and Innovative Techniques Being Brought by Your Adversaries Specifically in the Wage Context

Aashish Y. Desai
Managing Partner
Desai Law Firm

J. Nelson Thomas

Thomas & Solomon LLP

Justin M. Swartz

Outten & Golden LLP

Gary F. Lynch
Partner
Carlson Lynch Sweet & Kilpela LLP

Todd M. Schneider

Schneider Wallace Cottrell Konecky LLP

Jason C. Marsili

Posner & Rosen LLP

Paul Lukas
Partner
Nichols Kaster, PLLP

  • Assessing the latest trends in wage and hour claims and class and collective actions, and cases that can survive all the current challenges
  • Methods of finding classes and court restrictions on these methods
  • How do plaintiffs’ attorneys meet their burden of putting on representative evidence?
    • Use of numbers and experts
    • Policy documentation and management testimony
    • Use of jury research
  • Plaintiffs leveraging discovery as a settlement tool
  • Why this is a great time for plaintiffs to take wage and hour cases to trial and win
  • Steps to take in order to avoid wage and hour lawsuits

1:05
Conference Ends