The 31st Annual Meeting of the Labor and Employment Law Section and the 20th Annual Public Sector Conference
Schedule for Saturday, April 26, 2014
31st Labor and Employment Law Section Annual Meeting

Event Time

Registration and MCLE Sign-In

8 a.m. - 3:30 p.m.

Continental Breakfast

8 a.m. - 9 a.m.

Concurrent Sessions -- (1.25 Hours of CLE Credit)

[9] NLRB in the Non-Union Workplace: Arbitration Agreements, DR Horton, and Protection of Concerted Activity

The field of traditional labor law has, through recent NLRB enforcement efforts and rulings, had increasing impact in the non-union workplace. Employee handbook policies, at-will relationships, and arbitration agreements face an additional level of scrutiny. The NLRB’s ruling in DR Horton to invalidate arbitration agreements with class action waivers has, in the view of some, come into direct conflict with the United States Supreme Court’s ruling in AT&T v. Concepcion, which approved class action waivers in arbitration agreements. The NLRB continues to prosecute employers who have followed their interpretations of AT&T v. Concepcion to allow class action waivers. As litigation in this area continues, this panel will explore developments in the law and prudent tips for practitioners representing employers and employees.

Moderator: Jill Coffman, National Labor Relations Board Region 20

Panelists:

  • Michael Rubin, Altshuler Berzon LLP;
  • Ron Novotny, Atkinson, Andelson, Loya, Ruud and Romo;
  • Joseph Frankl, Regional Director, National Labor Relations Board Region 20

[10] Location, Location, Location: Non-Compete Agreements, Trade Secrets, and Employee Mobility

This presentation will explore legal issues that arise when employees move from one company to a competitor. The panel will discuss criteria courts use to determine the enforceability of non-compete agreements, as well as tips for drafting, or avoiding the application of, restrictive covenants. The experts also will share their thoughts on strategic and practical considerations when a contingency-fee plaintiff unexpectedly becomes a defendant accused of trade-secret misappropriation or breach of a restrictive covenant. In addition, the panelists will focus on the theft of intellectual property by departing employees, including those who leave for a foreign competitor, and various tools available to prosecutors and companies to combat this theft.

Moderator: Baldwin Lee, Allen Matkins LLP

Panelists:

  • Jennifer Baldocchi, Paul Hastings LLP;
  • Wesley Hsu, Assistant United States Attorney;
  • Sharon Vinick, Levy Vinick Burrell Hyams LLP

[11] Proposed Amendments to the CFRA Regulations

In 2013, Senate Bill 1038 created and Governor Jerry Brown appointed a new Fair Employment and Housing Council (Council) within the Department of Fair Employment and Housing (DFEH). The Council is charged with rulemaking authority under the Fair Employment and Housing Act (FEHA) and other statutes enforced by the DFEH. One of the Council’s first rulemaking projects is to amend the 1995 regulations interpreting the California Family Rights Act (CFRA).This panel, comprised of the Council Chair and a Council Member and moderated by the DFEH Director/Council Ex Officio Member, will present the Council’s proposed amendments to the CFRA Regulations.

Moderator: Phyllis W. Cheng, Director, California Department of Fair Employment and Housing

Panelists:

  • Chaya Mandelbaum, Chairperson, DFEH Fair Employment and Housing Council;
  • Dale Brodsky, Councilmember, DFEH Fair Employment and Housing Council

9 a.m. - 10:15 a.m.

Break

10:15 a.m. - 10:30 a.m.

General Session -- (1.25 Hours of CLE Credit)

[12] The Future of Work: The Virtual Workplace

Welcome and introductions by Thomas A. Lenz, Chair, Labor and Employment Law Section Annual Meeting, Atkinson,
Andelson, Loya, Ruud & Romo, Cerritos.

The virtual workplace is the new paradigm of work. As technology evolves, the physical space known as “the office” is becoming less and less important. Work is now done anytime, anywhere, in real space or in cyberspace. For many employers the virtual workplace, in which employees operate remotely from each other and from managers, is a reality now, and all indications are that it will become even more prevalent in the future. In and of itself, this represents a dramatic change in how we work, and it presents new challenges for employees and employers alike. Thus, this program will examine this growing trend, and the technological issues arising from such information-age arrangements as telecommuting and virtual teams. The program also will address the myriad of legal issues that arise, including wage and hour compliance, privacy, ADA accommodations, OSHA, and workers’ compensation.

Panelists:

  • Theodora Lee, Littler Mendelson;
  • Lisa Lawson, Pennington Lawson LLP
  • Prof. Marrietta Reber, Chair of the Technical Writing Department, DeAnza College

10:30 a.m. - 11:45 a.m.

Break

11:45 a.m. - 12 noon

Conference Luncheon and Keynote Address (.75 Hours of CLE Credit)

[13] The U.S. Supreme Court: Where the Court Stands on Employment Issues, and Where It May Be Headed

Professor Eric SchnapperKeynote Speaker: Professor Eric Schnapper, Betts, Patterson & Mines P.S. Endowed Professorship in Trial Advocacy

No one in America has argued more labor and employment matters in the U.S. Supreme Court than University of Washington Law Professor Eric Schnapper, who has appeared in approximately 90 matters at the Supreme Court. Prof. Schnapper exclusively represents workers in his appellate advocacy, but is uniquely situated to discuss matters of interest to both employers and employees in the 2013-2014 term, including Sandifer v. U.S. Steel Corp., which he argued in October 2013 and which was decided for the employer, in a “donning and doffing” wage case. Cases of interest in the current term which Prof. Schnapper will profile include matters involving the Age Discrimination in Employment Act, the Labor Management Relations Act, the National Labor Relations Board, ERISA, the Sarbanes-Oxley Act, and public employee cases raising constitutional concerns. Prof. Schnapper will also gaze into his “crystal ball” to predict what major labor and employment Supreme Court decisions lie ahead.

12 noon - 1:15 p.m.

Break

1:15 p.m. - 1:30 p.m.

Concurrent Sessions -- (1.25 Hours of CLE Credit)

[14] Basics: Economic Realities Test and Martinez v. Combs -- Determining Who the Employer Is Under FLSA and California Law

With an increasing number of employees pursuing wage and hour lawsuits in the past several years, a determinative issue for purposes of liability is whether the defendant, or defendants, are the worker’s “employer” under FLSA and/or state law. This issue is often litigated at the inception of a lawsuit. The outcome typically dictates whether plaintiff(s) will be able to pursue her claims against a larger employer, a smaller subcontractor, both, or neither. In cases against smaller employers, holding individual owners liable as joint employers could mean the difference between recovering unpaid wages or not. The panel will explain the key differences in determining employer status under the Fair Labor Standards Act and California statutory and common law.

Moderator: Fernando Flores, Legal Aid Society - Employment Law Center

Panelists:

  • Lisa Van Krieken, Folger Levin LLP;
  • Bryan Schwartz, Bryan Schwartz Law;
  • Sebastian Miller, Goodwin Procter

[15] Ethics in Employment Litigation (1.25 Ethics Credit)

Satisfy 1.25 hours of your ethics MCLE requirements by attending this practical discussion of the real-life ethical issues we face litigating employment cases. Topics will include investigation and case evaluation before litigation begins, fee arrangements, joint representation, ex parte communication, spoliation of evidence, requests for production of troubling documents, testimony of dubious veracity, candor in legal arguments, and settlement negotiation. Speakers will include a former State Bar Court Judge.

Panelists:

  • Cara Ching-Senaha, Jackson Lewis P.C.;
  • Phil Horowitz, Law Offices of Phil Horowitz;
  • Michael Marcus, ADR Services, Inc.

[16] Practical Litigation Strategies and Ethical Concerns Post-Harris

The California Supreme Court’s decision in Harris v. City of Santa Monica has tremendous implications with respect to liability, damages, and attorneys’ fees in FEHA cases. Even if a plaintiff proves that discriminatory animus was a substantial motivating reason for an adverse action taken against him, he will receive no compensation if the defense establishes that it would have taken the same action at that time absent animus. In that situation, the defense can still be liable for the plaintiffs’ attorneys fees, which can reach seven figures. Four seasoned trial attorneys will discuss how the Harris decision has changed their practice, from intake to trial, as well as how they handle the ethical issues that arise as a result of the decision.

Moderator: Ramit Mizrahi, Mizrahi Law

Panelists:

  • Linda Savitt, Ballard Rosenberg Golper & Savitt LLP;
  • Tracey Kennedy, Sheppard Mullin et al;
  • J. Bernard Alexander, III, Alexander Krakow & Glick LLP;
  • Lawrance Bohm, Bohm Law Group

1:30 p.m. - 2:45 p.m.

Break

2:45 p.m. - 3 p.m.

General Session -- (1.5 Hours of CLE Credit)

[17] Annual Update

Renowned employment defense attorney Anthony J. Oncidi of Proskauer Rose LLP and prominent employment plaintiff lawyer Andrew H. Friedman of Helmer Friedman LLP will present a lively, fast-paced discussion about all of the significant new developments in employment law from the courts and legislature. Andrew and Tony have been presenting the Annual Employment Law Update for the State Bar of California and numerous other bar associations for close to 10 years -- and this year, they have their work cut out for them, as they help us navigate through the many new state and federal employment laws, regulations and cases.

Panelists:

  • Andrew Friedman, Helmer & Friedman LLP;
  • Anthony Oncidi, Proskauer Rose LLP

3 p.m. - 4:30 p.m.

Adjourn

4:30 p.m.