American Bar Association Section of Labor and Employment Law

National Conference on

Equal Employment Opportunity Law Presented by the Equal Employment Opportunity Committee with programs presented by the Ethics and Professional Responsibility Committee and Immigration Law Committee

March 21–24, 2012 Fairmont San Francisco San Francisco, California

Welcome! Dear Colleague: We are pleased to provide you with this invitation to register for the 2012 ABA National Conference on Equal Employment Opportunity Law, March 21–24, 2012, in San Francisco, CA. We are confident this will yet again be the most comprehensive program on EEO law offered in the coming year. The National Conference on Equal Employment Opportunity Law is presented by the ABA Section of Labor and Employment Law’s Committee on Equal Employment Opportunity Law. As the brochure outlines, the panel topics relate to EEO law and involve nationally-recognized speakers, including judges and top government officials, as well as private practitioners. The conference has a broad array of subjects which will interest any and all EEO practitioners—from the momentous recent developments in class action and pattern and practice cases to hot topics in LGBT rights, whistleblowing, equal pay, EEOC investigations, workplace issues relating to criminal convictions, international employment disputes, social media, and more. This year, we also have instructive panels with federal judges relating to litigating and appealing discrimination cases and shared programming with the Ethics Committee, providing multiple opportunities for interesting and informative discussions on critical topics of concern. The program will address and evaluate issues from the perspective of employee, management, union, and government counsel. While the conference program is packed, we have left time in the afternoons and evenings to explore and to enjoy the many wonders of San Francisco with your family, your friends, or with new friends made at the meeting! We hope that you will join us in San Francisco for this exceptional Conference! Sincerely, Carlos F. Bermudez

J. Randall Coffey

Union and Employee Co-Chair Employer Co-Chair

Michael C. Subit Employee Co-Chair

Wednesday, March 21 2:00 – 3:00 p.m.

EEO Committee Business Meeting 3:30 – 4:30 p.m.

Dukes I: The Opinion, Its Progeny, and the Effect On Class Litigation

San Francisco

Program Agenda

How have the lower courts interpreted Dukes? Does the opinion offer new ways for plaintiff and defense lawyers to assess and advise clients on the size and scope of classes and class claims? Have plaintiffs’ counsel developed new strategies to counter Dukes? Are there new employer defenses? How has Dukes changed the nature of class pleadings, discovery during the class certification stage and the role of experts? Moderator: Gary Siniscalco, Orrick, Herrington & Sutcliffe, LLP, San Francisco, CA Speakers:

Jocelyn Larkin, Impact Fund, Berkeley, CA Michael Reiss, Davis Wright Tremaine LLP, Seattle, WA

4:30 – 5:30 p.m.

Dukes II—Employer Policies & Practices Post-Dukes

Have employers adopted different approaches to selection and pay policies and practices? What are employers doing to ensure EEO compliance and reduce potential risks of class actions? Is testing on the decline? Will employers push more decentralized, individualized decision-making? What is the plaintiffs’ bar seeing that creates risks and pitfall for employers and avenues for new litigation? Moderator: Roberta Steele, Goldstein, Demchak, Baller, Borgen & Dardarian P.C., Oakland, CA Speakers:

Hon. Victoria Lipnic, Commissioner, U.S. Equal Employment Opportunity Commission, Washington, D.C. Jane Howard Martin, Toyota Motor Sales, USA, Inc., Torrance, CA Camille A. Olson, Seyfarth Shaw LLP, Chicago, IL

5:45 – 6:45 p.m.

“Newer” Attendee Reception

If this is your first or second year attending the conference, please join other newer attendees and the past and present Committee leadership for a “welcome” reception to learn more about our Committee.

6:45 – 8:00 p.m.

Committee Welcome Reception

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Program Agenda Thursday, March 22 7:00 – 9:00 a.m.

Constituency Breakfasts Enjoy the opportunity to have an open and private discussion with similarly situated practitioners concerning employment law subjects. Additionally, you will have the opportunity to network with colleagues nationwide who share your focus in EEO matters.

Employee/Plaintiff Counsel (Union Counsel Also Welcome) Host:

Rachel Bien, Outten & Golden LLP, New York, NY

Management and Defense Lawyers (Both Internal and External Defense Counsel Welcome) Join us for a little business and Committee announcements, but the highlight of this year’s Management Breakfast will be Paul Grossman’s annual update of significant EEO cases—not to be missed! (Paul’s EEO Update portion is open to all conference attendees, beginning promptly at 7:40 a.m.) Hosts:

Elaine Drodge Koch, Bryan Cave LLP, Kansas City, MO Jennifer L. Sabourin, Miller, Canfield, Paddock & Stone, P.L.C., Detroit, MI

Speaker:

Paul Grossman, Paul Hastings LLP, Los Angeles, CA

8:30 – 10:00 a.m.

Spouse/Partner/Guest Breakfast (optional ticketed event) This gathering has become a wonderful tradition and is the perfect time not only to reunite with old friends, but also to make new acquaintances. There will be a discussion of the many non-conference oriented opportunities available in and around San Francisco. The subsidized cost of this breakfast is $35 per person, and there is no charge for children age 16 and under. (Pre-registration is requested)

9:00 – 10:45 a.m.

Discussion with Government Lawyers on Litigation of Systemic and Pattern or Practice Cases Join two seasoned plaintiff and defense lawyers as they ask top government lawyers from EEOC, DOL/Solicitor, and DOJ burning questions about government litigation of pattern or practice and systemic cases, including the relevance of Dukes v Wal-Mart, intervention in private actions, and settlements. Facilitators: Barbara J. D’Aquila, Fulbright & Jaworski LLP, Minneapolis, MN Richard T. Seymour, Law Office of Richard T. Seymour, P.L.L.C., Washington, D.C.

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Hon. P. David Lopez, General Counsel, U.S. Equal Employment Opportunity Commission, Washington, D.C. Hon. Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, U.S. Department of Justice, Washington, D.C. [Invited] Hon. M. Patricia Smith, Solicitor of Labor, U.S. Department of Labor, Washington, D.C. [Invited]

10:45 – 11:00 a.m.

Section of Labor and Employment Law Initiatives and Announcements 11:00 – 11:15 a.m.

Break 11:15 a.m. – 12:30 p.m.

Track I—Are Class Arbitrations Dead? AT&T/Concepcion Arbitration Issues

San Francisco

Speakers:

The Supreme Court’s recent decision in AT&T Mobility v. Concepcion, finding California’s “Discover Bank” rule preempted and compelling individual, nonclass arbitration of a consumer dispute, when coupled with the Supreme Court’s prohibition in Stolt-Nielsen S.A. v. Animalfeeds International Corp. of class arbitration when the arbitration agreement is silent on whether class arbitration may proceed, join a long line of Supreme Court precedent that favors arbitration. Whether and to what extent these cases apply to workplace disputes is a subject of great controversy. Join our distinguished panel from all constituency groups as they grapple with ever-evolving issues related to arbitration of employment claims: What are the advantages and risks to employers in implementing such agreements after AT&T? How should arbitration/waiver agreements be drafted? What options are available to employees faced with such agreements or policies? What arguments may unions and the NLRB still make about these agreements? Do broad prohibitions on collective treatment of disputes pass muster under the NLRA? Is there a difference between volitional and unilateral, employer-mandated agreements or policies? These and many other issues will leave all with much to consider regarding the status of arbitration and waiver agreements of employment claims. Moderator: Michael Rubin, Altshuler Berzon LLP, San Francisco, CA Panelists:

Mark S. Dichter, Morgan, Lewis & Bockius LLP, London, UK and Philadelphia, PA Cliff Palefsky, McGuinn Hillsman & Palefsky, San Francisco, CA Brendan Sweeney, Luxottica Group, New York, NY

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Program Agenda 11:15 a.m. – 12:30 p.m.

Track II—Advanced Topics in Complex Leave of Absence Issues Leaves of absence were once governed by a relatively select number of federal laws, primarily the Americans with Disabilities Act and the Family and Medical Leave Act. Today, an increasing number of states and municipalities have passed their own leave laws that provide additional protections for employees. GINA and Workers Compensation Laws add further complications to this process. Our panel of experienced in-house and outside counsel practitioners will highlight some of the most significant developments in this area of law, including new state and local laws, the new regulations under the ADA, and recent developments in FMLA practice. This panel also will discuss trends in agency enforcement and litigation, including new activity by the EEOC and DOL and will provide best practices to enable experienced counsel to effectively navigate the myriad of overlapping legal requirements. Moderator: Grace Mora, Hunton & Williams, LLP, Miami, Florida Panelists:

Hon. Chai Feldblum, Commissioner, U.S. Equal Employment Opportunity Commission, Washington, D.C. Rosalind M. Gordon, Pitney Bowes, Stamford, CT Brian McDermott, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Indianapolis, IN Ramit Mizrahi, Allred Maroko Goldberg, Los Angeles, CA Brenda Sutton-Wills, California Teachers Association, Santa Fe Springs, CA

12:30 – 1:45 p.m.

Committee Diversity Luncheon Moderator: Barry Goldstein, Of Counsel,Goldstein, Demchak, Baller, Borgen & Dardarian, PC, Oakland, CA Luncheon Speaker:

Hon. Jacqueline A. Berrien, Chair, U.S. Equal Employment Opportunity Commission, Washington, D.C.

12:30 – 6:00 p.m.

Golf, Tennis, Tours & Other Activities Don’t forget to check the Information Board outside the plenary meeting room for details for golf/tennis and available tours and outings!

1:45 – 2:45 p.m.

Track I—The Scope of EEOC Investigations and More... Having heard the view from Washington, D.C, in this session you will hear from practitioners in the field who will focus on recent developments involving some of the more challenging issues during EEOC investigations, leading up to the EEOC’s decision to file a Complaint. Topics covered will include the scope of

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San Francisco

EEOC investigations, including a review of recent subpoena enforcement actions, conciliation, impact of settlement with a charging party, the role of plaintiffs’ and union counsel in the process and the role of intervention when lawsuits are filed by the EEOC. The focus will be on EEOC pattern or practice and systemic investigations by the EEOC. Moderator: Terrence H. Murphy, Littler Mendelson, P.C., Pittsburgh, PA Panelists:

Hon. Elizabeth Grossman, U.S. Equal Employment Opportunity Commission, New York, NY R. Lawrence Ashe, Jr., Ashe, Rafuse & Hill LLP, Atlanta, GA Julie Merten, BP America, Inc., Houston, TX William J. Smith, Law Offices of William J. Smith, Fresno, CA

1:45 – 2:45 p.m.

Track II—A Place at the Table? Legislative and Other Developments in LGBT Legal Rights

The past few years have seen tremendous developments on both the legislative and judicial fronts, ranging from gay marriage to statutory protections for transgendered individuals to increased efforts to afford benefits to partners of LGBT employees. Our panel of experts in this area will address the status of laws affecting LGBT employees at present, including recent statutory developments, legal theories relating to discrimination claims (such as Price-Waterhouse stereotyping contentions), and pending legislation. What are current best practices for employers regarding LGBT employees? What options do LGBT employees have? Answers to these questions and evaluations of coming changes will provide vital information about this rapidly evolving area of the law, regardless of which constituency you represent. Moderator: Ann B. Shaver, Lief Cabraser Heimann & Bernstein, LLP, San Francisco, CA Panelists:

Shannon P. Minter, National Center for Lesbian Rights, San Francisco, CA Jeff Siminoff, Morgan Stanley, New York, NY [Invited] Amy K. Todd, Wilson Sonsini Goodrich & Rosati, San Francisco, CA

2:45 - 4:00 p.m.

Track I—Equal Pay: Proving or Disproving the Existence of Unlawful Pay Bias

For decades, the EEOC and OFCCP have had authority to address pay bias. The Obama Administration has placed a priority on expansion and enforcement of equal pay. The OFCCP has taken the lead among the federal enforcement agencies. This session will address how and whether the Administration’s push, especially OFCCP’s new guidance and enforcement efforts, as well as the private bar, can really establish the existence of pervasive pay discrimination, or whether employers can show that existing pay differences are, for the most part, not due to unlawful employer conduct.

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Program Agenda Moderator: Ann Haley Fromholz, Caesars Entertainment Corporation, Las Vegas, NV Panelists:

Hon. Chai Feldblum, Commissioner, U.S. Equal Employment Opportunity Commission, Washington, D.C.[Invited] Barbara B. Brown, Paul Hastings LLP, Washington, D.C. Pam Coukos, U.S. Department of Labor, Washington, D.C. James M. Finberg, Altshuler Berzon LLP, San Francisco, CA Chris Wilson, SOL, U.S. Department of Labor, Washington, D.C.

2:45 - 4:00 p.m.

Track II—Whistleblowing and Dodd Frank The protections and incentives available to whistleblowers have undergone dramatic change in the last year The SEC has released their final regulations implementing Dodd-Frank. The first cases interpreting Dodd-Frank’s whistleblower retaliation provisions have interpreted the Act broadly. Recent SOX cases issued by a newly appointed ARB are departing dramatically from long-standing precedents regarding the scope of coverage under SOX, what constitutes SOX-protected activity, and whether employers may move to dismiss cases before the agency. This panel will explore all of these critical new developments and their significant implications for handling whistleblower matters going forward. Moderator: Carl Jordan, Vinson & Elkins, Houston, TX Panelists:

Michael Canaras, Home Depot, Atlanta, GA Michael Delikat, Orrick, Herrington & Sutcliffe LLP, New York, NY Jordan A. Thomas, Labaton Sucharow LLP, New York, NY

5:00 – 6:00 p.m.

Young Lawyer Get-Together Kick off your night with EEO leaders as they discuss opportunities for lawyers in the LEL Section and the EEO Committee. Topics include: what is involved in serving as a Chapter Chair for the Employment Discrimination Law Treatise, how to have input on programming for future conferences, and different pathways to leadership positions within the LEL Section and the EEO Committee. EEO Committee leaders will be present for a lively discussion and will be available to answer your questions. Cocktails will be served. All attendees are welcome.

6:00 – 7:00 p.m.

Diversity Reception Join us for this reception honoring diversity in the profession. The reception is open to all registrants.

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7:00 – 10:00 p.m.

The Great EEO Dinner Rush

Friday, March 23 Breakfasts: 7:00 – 8:00 a.m.

San Francisco

California is famous for the gold rush. The EEO Conference in San Francisco continues that tradition with the great dinner rush of 2012. So hurry to the Fairmont and stake your claim to a wonderful meal, discover a cocktail or two, and mine your colleagues’ minds for delightful conversation and good company. The dinner is always a highlight of the National Conference. So, be an EEO “Forty-Diner” by joining with old friends, making new ones, and dancing the night away (for those so inclined). This dinner is included with your registration so please don’t miss it.

International: Danny J. Kaufer, Heenan Blaikie LLP, Montreal, Quebec, Canada

7:00 – 8:00 a.m. Neutrals:

Lynne Rothschild Stern, New Orleans, LA Barry Goldstein, Of Counsel, Goldstein, Demchak, Baller Borgen & Dardarian, P.C., Oakland, CA Hunter Hughes, Rogers & Hardin LLP, Atlanta, GA

7:00 – 8:00 a.m. Union:

Margo Pave, Zwerdling, Paul, Kahn & Wolly, P.C., Washington, D.C.

7:00 – 9:00 a.m. In-house:

Eric D. Reicin, Sallie Mae, Reston, VA Mike Canaras, Home Depot, Atlanta, GA Ann Haley Fromholz, Caesars Entertainment Corporation, Las Vegas, NV

8:00 – 9:00 a.m.

Advanced E-Discovery Panel— Using Backdrop of a Race Discrimination Lawsuit

You cannot pick up a legal newsletter as of late without hearing some type of horror story about sanctions being issued for the mishandling of electronic information in litigation. Employment litigators are not immune from these concerns or risks. E-Discovery has become one of the most critical developments in the legal world, but compliance challenges remain. This session, using the backdrop of a race discrimination lawsuit, will focus on e-discovery that should be considered by both plaintiff and defense counsel, recent developments involving

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Program Agenda confidentiality and privilege based on the inherent electronic characteristics of ESI like metadata that did not exist in the paper world, meet and confer obligations, and legal risks involving spoliation of evidence. This panel of seasoned attorneys dealing with e-discovery issues will review recent case developments and provide practical advice in dealing with the ongoing challenge faced by inside counsel as well as attorneys representing employers and employees. Moderator: Kathryn Burkett Dickson, Dickson, Levy, Vinick, Burrell, Hyams LLP, Oakland, CA Panelists:

Hon. Elizabeth D. LaPorte, U.S. District Court for the Northern District of California, San Francisco, CA Daniel M. Hutchinson, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA Maureen O’Neill, DiscoverReady, San Francisco, CA Grace E. Speights, Morgan, Lewis & Bockius LLP, Washington, D.C.

9:00 – 10:15 a.m.

Litigating Race Discrimination Cases in the 21st Century A Federal District Court Judge with seasoned trial lawyers representing plaintiffs, defendants and unions will review some of the more challenging issues when faced with litigating a race discrimination lawsuit. Issues discussed will include alleged racial epithets, jury selection, Batson challenges and whether the current political landscape has affected the litigation of race discrimination lawsuits. Moderator: Barry A. Hartstein, Littler Mendelson, P.C., Chicago, IL Panelists:

Hon. Edward M. Chen, U.S. District Court for the Northern District of California, San Francisco, CA Darci E. Burrell, Dickson, Levy, Vinich, Burrell, Hyams LLP, Oakland, CA Shauna Clark, Fulbright & Jaworski L.L.P., Houston, TX Julie Richard-Spencer, Robein, Urann, Spencer, Picard & Cangemi, APLC, Metairie, LA

10:15 – 10:30 a.m.

Break 10:30 – 11:45 a.m.

Track I—Between a Rock and a Hard Place: Workplace Issues Relating to People With Criminal Convictions in the Digital Age Jobs are hard to get; the process is even more difficult for people with criminal convictions. Many employers believe they need to consider applicants’ criminal convictions or records in order to protect their businesses, customers, and

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San Francisco

employees. How do Title VII, the Fair Credit Reporting Act, and various state laws restrict employers from using the results of criminal background checks in making employment decisions? Where is the line between legitimate employer interests and legal protections for job applicants? Must employers consider job relatedness, risk and recidivism in their decision-making processes? Can hiring managers rely on their own searches of social media in making decisions about criminal convictions? This panel of experts will discuss these and other important questions about this subject. Moderator: Bradley Lundeen, Cabela’s Incorporated, Sidney, Nebraska Panelists:

Hon. Stuart J. Ishimaru, Commissioner, U.S. Equal Employment Opportunity Commission, Washington, D.C. Maurice Emsellem, National Employment Law Project, Oakland, CA Adam T. Klein, Outten & Golden LLP, New York, NY Donald Livingston, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C. Vicki R. Walcott-Edim, Macy’s, New York, NY

10:30 – 11:45 a.m.

Track II—Around the World in Ninety Minutes

Is America’s approach to EEO law and litigation influencing other jurisdictions? Topics will include: (a) Jurisdiction over international employment disputes, including the role of arbitration, the existence of “ex-pat” agreements and applicability of a choice of law provision. (b) Certain foreign jurisdictions have begun to consider and allow for US-style class actions—where and in what types of circumstances do these class actions apply in other jurisdictions? (c) Employers in many foreign jurisdictions are modifying the traditional workforce and permitting for greater use of independent contractors. What are the implications for employers and employees, and how are the rights of both parties affected? Our panel of experts will carefully consider all of these topics from both a European and North-American perspective. Moderator: Morton Mitchnick, Borden Ladner Gervais, Toronto, Ontario, Canada Speakers:

Michael Burd, Lewis Silkin, London, England Oscar de la Vega, Basham Ringe y Correasc SC, Mexico City, Mexico Anke Kuhn, CMS Hasche Sigle, Cologne, Germany Stephen B. Moldof, Cohen Weiss and Simon LLP, New York, NY Pierre Moreau, Gaggino, Schneider, Moreau, Montreal, Quebec, Canada

11:45 a.m. – 1:15 p.m.

Lunch (on your own)

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Program Agenda 1:15 – 2:30 p.m.

Track I—Tattletale or Head of the Class, Which Are You?: A Lawyer’s Obligations to Report Drug or Alcohol Abuse Jointly sponsored with the Ethics and Professional Responsibility Committee

The lives of most lawyers are challenging. In some instances, lawyers we know (including ourselves) turn to drugs and alcohol to help cope with life and work challenges. While this behavior can be self-destructive, it can also have a negative impact on one’s ability to provide competent client service. This panel will address the following questions: What are a lawyer’s ethical obligations or duties to report drug and/or alcohol abuse by a lawyer? Do I have to self-report drug or alcohol abuse? Do I have to report my partner’s or associate’s? May I? Does substance abuse render one disabled under the ADA? Are there other ADA implications at play? Through interactive dialogue, attendees will grapple with these difficult questions and be offered best practices on how to answer them in their own lives. Moderator: Myra L. McKenzie, Wal-Mart, Bentonville, AR Speakers:

Hon. Victoria Lipnic, Commissioner, U.S. Equal Employment Opportunity Commission, Washington, D.C. [Invited] Cydney Batchelor, State Bar of California, San Francisco, CA Michelle D. Craig, Adams and Reese LLP, New Orleans, LA Jeanne Marie Leslie, Alabama Lawyer Assistance Program, Montgomery, AL

1:15 – 2:30 p.m.

Track II—Anatomy of an Appellate Argument Renowned appellate advocates and federal court of appeals judges will provide a unique 360-degree perspective on preparing for, presenting, and evaluating an appellate employment discrimination argument. The panel will feature employee and employer oral presentations in a race discrimination case with active judicial questioning. It will be followed by an in depth discussion with the judges and advocates about their strategies and decision-making process, including whether issues have been preserved for appeal and effectively briefing and arguing appellate cases. Moderator: Margo Pave, Zwerdling, Paul, Kahn & Wolly, P.C., Washington, D.C. Panelists:

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Hon. Marsha S. Berzon, U.S. Court of Appeals for the Ninth Circuit Hon. David S. Tatel, U.S. Court of Appeals for the District of Columbia Circuit, Washington, D.C. Paul W. Mollica, Outten & Golden LLP, Chicago, IL Eugene Scalia, Gibson, Dunn & Crutcher, LLP, Washington D.C.

2:30 – 3:30 p.m.

Track I—Evolving Discrimination Issues In Work-Life Balance Law

Moderator/ Speaker: Bettina Yip, Del Monte, San Francisco, CA Panelists:

San Francisco

Employers are placing even greater demands on exempt employees (especially lawyers, bankers, executives and other highly compensated individuals) to work longer and harder. Women and men with caregiving responsibilities for infants, children, elderly parents, and relatives with disabilities are trying to figure out how to have more balance in their lives and juggle it all. But, in EEOC v. Bloomberg L.P. (2011), a New York federal district court observed that we are not in France; if the employer demands more work and less life, the law does not require employers to accommodate employees’ desire for work-life balance. This begs the question, however, which is: is the employers’ conduct discriminatory or retaliatory? This panel will debate the contours of discrimination and family leave laws, demographics, stereotyping, and social policy.

Hon. Constance Smith Barker, Commissioner, U.S. Equal Employment Opportunity Commission, Washington, D.C. Stephanie Bornstein, Hastings College of the Law, San Francisco, CA Eric S. Dreiband, Jones Day, Washington, D.C.

2:30 – 3:30 p.m.

Track II—Does the Cat Have Any More Lives?

In Staub v. Proctor Hospital the United States Supreme Court held that under USERRA an employer will be liable for the biased actions of a supervisor who was not the final decision-maker if the supervisor “proximately caused” the discriminatory action. Although Staub rejected the “cat’s paw” doctrine, the Court left many questions unanswered regarding employer liability. This panel will explore the implications of Staub with respect to other employment laws and provide practical advice for imputing or avoiding employer liability. Issues will include what proof an employee will need to show proximate case and ways employers can attempt to break the chain of causation including when and how an employer’s independent investigation will insulate it from liability. Moderator: Jon H. Rosen, The Rosen Law Firm, Seattle, WA Panelists:

Michael C. Subit, Frank Freed Subit & Thomas LLP, Seattle, WA Daniel Turner, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Atlanta, GA

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Program Agenda 4:30 – 5:30 p.m.

EEO Committee Feedback Meeting This is an open meeting at which all Committee members are welcome, to discuss the Committee’s upcoming business, including planning for the Section’s Annual CLE Conference and for next year’s Conference on Equal Employment Opportunity Law, and to receive feedback on this year’s Conference and other Committee activities.

6:00 – 7:30 p.m.

Reception Honoring Conference Speakers, EDL Editors and Chapter Monitors, Followed By Dinner On Your Own

Saturday, March 24 8:30 – 9:45 a.m.

ADAAA Final Regulations: A Year of Judicial Review Tremendous developments have taken place regarding the Americans with Disabilities Act. Congressional amendments, new regulations, and numerous additional federal court decisions combine to make this one of the most rapidly changing and developing areas of employment law. Associate Counsel Peggy Mastroianni of the EEOC and noted disability-law practitioners, will guide us through how ADAAA and the Commission’s newest ADA guidance are being received in the Courts and what issues are emerging under the new regimen. Moderator/ Katherine C. Huibonahoa, Paul, Hastings, Janofsky & Walker, LLP, Facilitator: San Francisco, CA Panelists:

Ava Barbour, International Union UAW, Detroit, MI Jennifer Mathis, Judge David L. Bazelon Center for Mental Health Law, Washington, D.C. Peggy R. Mastroianni, Associate Counsel, U.S. Equal Employment Opportunity Commission, Washington, D.C. T. Jeff Wray, Fulbright & Jaworski L.L.P., Houston, TX

10:00 – 11:00 a.m.

Track I—The San Francisco Tweet— Social Media Communications as Protected Concerted Activity under the National Labor Relations Act Social media enables employees to broadcast opinions about an employer to the world. We now know that an employee’s social media communications may be deemed concerted activity protected under the National Labor Relations Act, even

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Moderator: Adam Forman, Miller Canfield, PLC, Detroit, MI Panelists:

San Francisco

in a non-union employment setting. What factors determine whether an employee’s social media conduct is protected “concerted activity”? What non-disciplinary options does an employer have for combating adverse social media conduct? When does discipline for an employee’s Facebook and Twitter communications violate the NLRA? How may employees safely walk the electronic tightrope to express their opinions without risking their jobs? Is there anything an employer can do to prevent its workplace from being part of a YouTube video? Join this spirited panel, which includes the NLRB General Counsel, and EEOC official and lawyers from both union and management, as they discuss the traditional labor law principles that every employment lawyer must know to navigate these treacherous waters, and debate the thorny issues presented by the burgeoning use of “social media.” Edward Loughlin, U.S. Equal Employment Opportunity Commission, Washington, D.C. Brett Rawitz, McDonald’s Corporation, Oak Brook, IL Lafe Solomon, Acting General Counsel, National Labor Relations Board Steven Ury, SEIU, Los Angeles, CA [Invited]

10:00 – 11:00 a.m.

Track II—Give Me Your Lunch Money! Dealing With Bullies in Today’s Workplace

Workplace bullying has permeated the national headlines in recent years. While unlawful in other parts of the world, there are currently no state or federal laws in the United States that make bullying in the workplace illegal when it does not rise to the level of unlawful discrimination, harassment, assault or battery. The Healthy Workplace Bill, which has been introduced in more than 20 states since 2003, proposes to change the status quo by making such actions illegal and compensating employees when employers fail to take appropriate remedial actions. This panel will discuss what can be done to ensure that employees are safe without waiting for such legislation to pass, such as employer-and/or union-sponsored sensitivity training and employer promotion of a culture that rewards respect among all levels of employees and management. It will also include a discussion of recent cases highlighting increased allegations of bullied employees in a hostile work environment where the conduct is based on one’s race, gender, religion, etc. Moderator: J. Randall Coffey, Fisher & Phillips LLP, Kansas City, MO Panelists:

Sue Ellen Eisenberg, Sue Ellen Eisenberg & Associates, P.C., Bloomfield Hills, MI Carol Rick Gibbons, Capital One, Richmond, VA Danny J. Kaufer, Heenan Blaikie LLP, Montreal, Quebec, Canada Charles C. Warner, Porter Wright Morris & Arthur LLP, Columbus, OH

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Program Agenda 11:00 – 11:15 a.m.

Break 11:15 a.m. – 12: 20 p.m.

Managing the Perilous Ethical Tightrope in Internal Investigations Jointly sponsored with the Ethics and Professional Responsibility Committee

Internal investigations trigger numerous and significant ethical issues for the attorneys conducting the investigations. Plaintiffs’ counsel are ethically barred from speaking to certain employees when investigating their clients’ claims; and attorneys representing the employer must deal with hazardous issues which include attorney work product, indemnification and fee advancement issues, joint representations, deciding what disclosures are needed for the Faragher defense, and deciding what work should be delegated to non-attorneys. Moderator/ Speaker: Stephanie S. Padilla, Johns Manville, Denver, CO Speakers:

Thomas “Scott” Kelly, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham, AL Elizabeth Kristen, San Francisco Employment Law Center, San Francisco, CA Christopher Lage, U.S. Equal Employment Opportunity Commission, Washington, D.C. Sirtithon Thansombat, U.S. Equal Employment Opportunity Commission, San Francisco, CA

12:20 p.m.

Seminar Wrap-Up and Grand Prize Drawing The Committee’s Co-Chairs will draw a name from among those who have submitted a completed conference evaluation form. The winner will receive complimentary registration to the 2013 National Conference on Equal Employment Opportunity Law. Details will be forthcoming in the near future—see you there!

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Committee Co-Chairs Carlos E. Bermudez, International Union, UAW, Detroit, MI J. Randall Coffey, Fisher & Phillips LLP, Kansas City, MO Michael C. Subit, Frank Freed Subit & Thomas LLP, Seattle, WA

Program Co-Chairs Margo Pave, Zwerdling, Paul, Kahn & Wolly, P.C., Washington, D.C. Eric D. Reicin, Sallie Mae, Inc., Reston, VA Justin M. Swartz, Outten & Golden LLP, New York, NY

Program Planning Committee Carlos E. Bermudez, International Union, UAW, Detroit, MI Michael Canaras, Home Depot, Atlanta, GA J. Randall Coffey, Fisher & Phillips LLP, Kansas City, MO Barbara J. D’Aquila, Fulbright & Jaworski LLP, Minneapolis, MN Ann Haley Fromholz, Caesars Entertainment Corporation, Las Vegas, NV Rachel Geman, Lieff, Cabraser, Heimann & Bernstein, LLP, New York, NY Barry A. Hartstein, Littler Mendelson, P.C., Chicago, IL Margo Pave, Zwerdling, Paul, Kahn & Wolly, P.C., Washington, D.C. Eric D. Reicin, Sallie Mae, Inc., Reston, VA Richard Rosenblatt, Richard Rosenblatt & Associates LLC, Greenwood Village, CO Jennifer L. Sabourin, Miller, Canfield, Paddock and Stone, P.L.C., Detroit, MI Gary Siniscalco, Orrick, Herrington & Sutcliffe, LLP, San Francisco, CA Roberta Steele, Goldstein, Demchak, Baller, Borgen & Dardarian, Oakland, CA Michael C. Subit, Frank Freed Subit & Thomas LLP, Seattle, WA Justin M. Swartz, Outten & Golden, LLP, New York, NY C. Geoffrey Weirich, Paul Hastings LLP, Atlanta, GA

San Francisco Host Committee Kathryn Burkett Dickson, Dickson, Levy, Vinich, Burrell, Hyams LLP, Oakland, CA Jim Finberg, Altshuler Berzon LLP, San Francisco, CA Lindberg Porter, Littler Mendelson, P.C., San Francisco, CA Kathy Huibonahoa, Paul Hastings LLP, San Francisco, CA Maureen O’Neill, DiscoverReady, San Francisco, CA Roberta Steele, Goldstein, Demchak, Baller, Borgen & Dardarian, Oakland, CA Bettina Yip, Del Monte Foods, San Francisco, CA

Council Liaisons Joseph D. Garrison, Garrison, Levin-Epstein, Chimes, Richardson & Fitzgerald, P.C., New Haven, CT Mary K. O’Melveny, Communications Workers of America, Washington, D.C. C. Geoffrey Weirich, Paul Hastings LLP, Atlanta, GA

15

Registration Information Meeting Registration

Ground Transportation

The Conference registration fee is $525 per person for Section of Labor & Employment Law members and $625 for non-Section members. A discounted registration fee of $425 is available for “Early Bird” registration (prior to January 9, 2012). First-Time Attendees may register at the discounted rate of $395. Law Students, Government Agency and Non-Profit Employees may register for $275. The registration fees cover the Wednesday Welcome Reception, Thursday Cocktail Supper and Friday Networking Reception, as well as all meeting materials, continental breakfasts and refreshment breaks during the meeting. The guest/spouse registration fee of $125 ($50 for children 12-18) includes the Wednesday, Thursday and Friday evening events.

The Fairmont Hotel is located approximately 20 miles from San Francisco International Airport. Taxi fare from the airport averages $40.

You are encouraged to register on-line at www.abanet.org/labor. You also may register by filling out the attached registration form and returning it with your payment by March 7 to the Section office. Registration fees are refundable, less a $50 administrative fee, for cancellations received in the Section Office by March 7, 2012.

Group rates have been negotiated with Hertz for our meeting. Call Hertz’s toll-free reservation number at 800/654-3001 and mention the ABA CPD# 13000 for more details.

Spouse/Guest Breakfast On Thursday, March 22 from 9:00 a.m. – 11:00 a.m. there will be a Spouse/Guest Breakfast at the Fairmont Hotel. This gathering has become a wonderful tradition and is the perfect time to get together with longtime friends and new acquaintances. The cost to attend is $35 per person. Advance registration is required.

Golf Please check the appropriate box on the registration form if you are interested in playing golf on Thursday and/or Friday afternoons. The fee for each day of play will be $195.

Hotel Accommodations

Tennis

We have negotiated special group rates at Fairmont San Francisco of $224 (single or double occupancy). The reservation deadline for the group rate is February 27, 2012. If necessary, cancellations must be made at least 24 hours prior to the scheduled arrival to avoid a one-night cancellation charge. Reservations may be made by calling Fairmont Hotel at 800-441-1414. Be sure to mention you are attending the “ABA 2012 National Conference on EEO Law” to receive the group rate.

The Tennis Round Robin will be held on Thursday and Friday afternoons. Play times are set to begin at 1:00 p.m. each day. To register for tennis, please check the appropriate box on the registration form. Price per person is $25 (includes court time, tournament coordination and refreshments).

Air Travel Discounts American Airlines and United Airlines provide two types of airfare discounts to ABA meeting attendees. You can receive these discounts offline by calling, toll free, American Airlines at 800-433-1790 or United Airlines at 800-521-4041 or Orbitz For Business at 877-222-4185. For more information visit the ABA Travel Website.

16

Registration Form ABA Section of Labor and Employment Law

National Conference on Equal Employment Opportunity Law Presented by the Equal Employment Opportunity Committee March 21–24, 2012 • Fairmont Hotel • San Francisco, California

Registration Deadline: March 7, 2012 • Hotel Deadline: February 27, 2012

NAME

NICKNAME/BADGE NAME

FIRM/ORGANIZATION

STREET ADDRESS

CITY

STATE

ZIP CODE

PHONE

FAX

E-MAIL ADDRESS

NAME OF ATTENDING SPOUSE/GUEST(S)

Affiliation: ■ Employer ■ Union & Employee ■ Employee/Plaintiff ■ Public/Government ■ Neutral ■ Other

Registration Fees:

Quantity

Register by:

Early Bird Discount (on or before 1/9/12)

________ @ $425

Online:

Section Member (after 1/9/12)

________ @ $525

http://www.americanbar.org/ groups/labor_law/events_ cle.html

Non-Section Member

________ @ $625

First-Time Attendee

________ @ $395

(Credit card payments accepted online only)

Government Agency or Non-Profit

________ @ $275

ABA #_____________________________

Guest(s)

________ @ $125

Children (12-18)

________ @ $50

Printed Course Book

________ @ $85

Social Events and Optional Activities: Quantity Wednesday Welcome Reception

________ (Included in registration fee)

Thursday Cocktail Buffet

________ (Included in registration fee)

Spouse/Guest Breakfast

________ @ $35.00/person

Thursday Golf Tournament

________ @ $195.00/person

Friday Golf Tournament

________ @ $195.00/person

Thursday Tennis Round Robin

________ @ $25.00/person

Friday Tennis Round Robin

________ @ $25.00/person

Fax: (312) 988-5814 Mail: ABA Section of Labor & Employment Law Attn: Lynette Kelley, Meetings Registrar 321 North Clark St. Chicago, IL 60654 Enclose check (made payable to American Bar Association) If any special arrangements are required under the ADA, contact Judy Stofko at 312/988-5813.

■ I plan to attend the Ethics Meeting (3/22-3/24) in conjunction with the EEO Meeting ■ I plan to attend the Immigration Meeting (3/22-3/23) in conjunction with the EEO Meeting ■ I plan to attend both the Ethics and Immigration Meetings in conjunction with the EEO Meeting Total Amount Enclosed: $_____________________

Early Bird Registration Ends January 9!

Register Today!

http://www.americanbar.org/ groups/labor_law/events_cle.html

Online Registration

San Francisco

Equal Employment Opportunity Law

National Conference on

American Bar Association Section of Labor and Employment Law 321 North Clark Street Chicago, IL 60654 Non-Profit Organization U.S. Postage PAID American Bar Association