ABA Midwinter Meeting Events – March 13-17, 2023

RANCHO MIRAGE

Midwinter Meeting

Employment Rights and Responsibilities Committee

March 13–17, 2023

Omni Rancho Las Palmas • Rancho Mirage, California

ABA Section of Labor and Employment Law

Midwinter Meeting

Omni Rancho Las Palmas • Rancho Mirage, California

Employment Rights and Responsibilities Committee

March 13–17, 2023

Join Us in Rancho Mirage for Fun in the Sun!

Please join us in Rancho Mirage, California, for the ABA Employment Rights and Responsibilities (ERR) Committee Midwinter Meeting.

Our 2023 Midwinter Meeting will take place from March 13–17 at the beautiful Omni Rancho Las Palmas Resort in Rancho Mirage. Offering the best of southern California, the Omni presents a top tier resort experience, including a European spa, tennis courts, 27-hole golf course, lazy river, waterslides, and a cliff side hot tub. The Palm Springs area is a true desert oasis, combining natural wonders, like unparalleled views of the mountains from the Palm Springs Aerial Tramway, with a nightlife and restaurant scene that attracts Hollywood celebrities.

The ERR Midwinter Meeting will offer a wide range of thought-provoking and topical educational programming. Several years in the making, the subcommittees have joined forces to offer a mock trial that combines theory and practice in a multi-panel presentation. Presented through four separate panels, the mock trial will explore investigations, whistleblower and retaliation claims, and collateral torts. Other panels will discuss the Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization and its effect on labor and employment matters, emergency ethics matters, the future of employment arbitration agreements, and new developments in international labor and employment law. As always, ERR prides itself on membership diversity and balanced presentations reflecting the employer/management, employee/plaintiff, union, government, neutral and in-house corporate counsel perspectives.

The ERR Midwinter Meeting is also a place to enjoy meeting new friends and catching up with long-time ERR colleagues. Special events include a welcome reception, first-time attendee luncheon and subcommittee reception.

On behalf of the ERR family, we hope you will make plans to join us in beautiful Rancho Mirage for a one-of-a-kind Midwinter Meeting.

David J. Carr, Employer Co-Chair

Hon. John Alvin Henderson, Public Co-Chair

Tamika Lynch, In-House Corporate Counsel Co-Chair

Megan Mechak, Union & Employee Co-Chair

Scott Pollins, Employee Co-Chair

Please note that prevailing CDC Covid-19 safety protocols will be followed throughout the meeting.

Midwinter Meeting

ERR Presents: Tornadoes, Trailers and Turmoil A Four-Act Drama Analyzing, Investigating and Trying Whistleblower and Workplace Tort Claims

As ERR returns to California in 2023, so does the workplace intrigue. This year, we will present a four-act drama using a central fact pattern. Through panel discussions, investigation demonstrations and mock trial examinations, we invite you to explore the labor and employment law implications of the following fact pattern:

In an unreal turn of events, a tornado is forecasted to strike Palm Springs. Palm Springs Co. and the union agree to implement a “shelter in place” policy, requiring employees to remain at their workstations and continue working unless an actual tornado has been seen and confirmed. Following the discovery of an internal memo, union employee Rancho and their supervisor, Mirage, complain to management that the policy is not only unsafe but illegal, as well. They unabashedly voice their concerns throughout the company.

In an effort to silence the dissenters, Palm Springs Co. assigns Rancho and Mirage to work on a “special project” in a trailer on a remote area of the property. When the tornado rolls in, the employees are trapped in heinous conditions, without phone service and with no way out. They are eventually rescued but not before enduring lasting trauma. They are humiliated, ostracized and out for revenge. They hear of a scandal involving a highlevel executive . . . is it true or a trauma-induced illusion? Regardless, they complain of their experience and spread details of the scandal to all who will listen. Palm Springs Co. investigates, finds that the complaints are baseless and brought in bad faith, and terminate both employees. Rancho pursues their claims in arbitration, but Mirage’s retaliation and wrongful discharge claims proceed to trial.

Was the investigation a sham? Did the investigator use proper questioning techniques under these wild circumstances? What collateral tort claims can the employees bring against Palm Springs Co. to vindicate the treatment they endured? Will their story stand up under examination at trial? Can the decision-maker’s testimony save Palm Spring Co.?

Tune in this March for what promises to be the most dramatic—and entertaining—ERR ever!

Monday, March 13

• 5:30 – 6:30 p.m.

Welcome Reception at Omni Rancho Las Palmas

• 7:00 – 9:00 p.m.

Optional Activity (ticketed event)

Tuesday, March 14

• 8:00 – 9:00 a.m.

ERR Subcommittee Co-Chair Meeting

• 9:00 – 10:00 a.m.

Emergency Ethics for Employment Lawyers: How to Avoid Getting Burned While Extinguishing Fires

Presented by the Ethics and Professional Responsibility Subcommittee

The most challenging ethics problems are the ones that afford little time to consider before acting and where getting it wrong risks criminal liability. This panel will discuss ethics issues that employment attorneys face that call for a quick response. What are your obligations if a client learns of activities that may be criminal in nature or may require reporting to law enforcement (e.g., child pornography on a laptop, threats of violence)? How should you respond if a client asks about recording conversations or if an illegal recording has already occurred? What do you advise when an employee asks whether they have to retain electronic documents for use in litigation?

MODERATOR:

Sheree Wright, Vanderbilt University, Nashville, TN

SPEAKERS:

Maureen Binetti, Wilentz, Goldman & Spitzer, P.A., Woodbridge, NJ

Paula J. Frederick, State Bar of Georgia, Atlanta, GA

Loren Gesinsky, Seyfarth Shaw, New York, NY

Megan Mechak, McGillivary Steele Elkin LLP, Washington, DC

• 10:00 – 11:00 a.m.

Use of Experts in Class/Collective Litigation

Presented by the Complex Litigation Subcommittee

Class and collective actions alleging violations of the Fair Labor Standards Act (FLSA), Title VII of the Civil Rights Act of 1964, and state law equivalents have exploded. Expert witnesses who are thoughtfully selected and adequately prepared can be vital in proving or challenging compliance with EEO or wage and hour laws during motion hearings and at trial. Using experts, and effectively challenging the opposing party’s use of their expert, can mean the difference between winning or losing

class certification. Panelists will explore effective practices when selecting experts, preparing expert testimony, and using experts during motion hearings, mediation and trial.

MODERATOR:

Monique Olivier, Olivier & Schreiber, LLP, Oakland, CA

SPEAKERS:

Hon. Stephanie Herrera, U.S. Equal Employment Opportunity Commission, Baltimore MD

Stephen Fox, Sheppard Mullin Richter & Hapton, LLP, Dallas, TX

Jason Marsili, Rosen, Marsili, Rapp LLP, Los Angeles, CA

Dwight Steward, Ph.D., EmployStats, Austin, TX

10:00 – 11:30 a.m.

Corporate Counsel Caucus

This will be a caucus meeting for in-house corporate counsel focusing on emergent issues. The topics will be discussed from the unique perspective of in-house counsel responsible for providing legal advice to corporate clients. The meeting format allows participants to discuss and compare approaches for addressing risk management and other legal issues. Attendance is limited to in-house corporate counsel to promote a free flow of information. Discussion topics will be solicited from in-house registrants in advance of the meeting.

• 11:30 a.m. – 12:45 p.m.

First-Time Attendee Luncheon

Sponsored by Van Dermyden Makus Law Corporation

First-time attendees are invited to an informal luncheon with Section and Committee leaders who will discuss what ERR does and how to get involved.

• 1:00 – 1:30 p.m.

Welcome, Introductions and Section Leadership Report

COMMITTEE CO-CHAIRS

David J. Carr, Ice Miller LLP, Indianapolis, IN

Hon. John Alvin Henderson, U.S. Department of Justice, Baltimore, MD

Tamika Lynch, Siemens Mobility, Elk Grove Village, IL

Megan Mechak, McGillivary Steele Elkin LLP, Washington, DC

Scott Pollins, Pollins Law, Swarthmore, PA

PROGRAM CO-CHAIRS

Reena Desai, Nichols Kaster, Minneapolis, MN

Caryl Flannery, Centene Corporation, St. Louis, MO

Amber Trzinski Fox, U.S. Department of Justice, Washington, DC

Susan Hartmus Hiser, Fisher & Phillips LLP, Detroit, MI

Midwinter Meeting 2023

ADMINISTRATIVE CO-CHAIRS

Kristin M. Case, Case + Sedey, LLC, Chicago, IL

Kimberly Geisler, Scott Dukes & Geisler, Birmingham, AL

Cathi Hunt, Vontier, Seattle, WA

SECTION LEADERSHIP

Douglas E. Dexter, Section Chair, Farella Braun + Martel LLP, San Francisco, CA

Denise M. Clark, Section Chair-Elect, Clark Law Group, PLLC, Washington, DC

Robert M. Goldich, Employer Council Liaison, Greenberg Traurig LLP, Philadelphia, PA

Hon. Stephanie M. Jones, Public Council Liaison, Federal Agency, Knoxville, TN

Mark D. Risk, Employee Council Liaison, Mark Risk P.C., New York, NY

• 1:30 – 2:45 p.m.

Tornadoes, Trailers and Turmoil, Act I: Investigating the Issue: Exploring Trauma-Informed Interview Techniques

Presented by the Workplace Investigations Subcommittee

Drawing from the central fact pattern using a combination of mock interviews and panel discussion, panelists will explore trauma-informed interview techniques, investigating defamation claims brought by an alleged wrongdoer against a complaining employer. The panel will also discuss interviewing employees with a union representative present.

MODERATOR:

Brenna Schertz, National Labor Relations Board, Charlotte, NC

SPEAKERS:

Tiffanie Benfer, Hardwick Benfer LLC, Doylestown, PA

Kirsten Branigan, KSBranigan Law, PC, Montclair, NJ

Pamela Newport, Branstetter Stranch & Jennings PLLC, Cincinnati, OH

Sonya Richburg, Coca-Cola Consolidated, Inc., Charlotte, NC

• 2:45 – 3:00 p.m.

Break

• 3:00 – 4:00 p.m.

Tornadoes, Trailers and Turmoil, Act II: What’s the Fallout? State Whistleblower Claims and Other Torts

Presented by the Employment at Will/ Collateral Torts Subcommittee

Using the central fact pattern as a guide, this panel will explore Rancho and Mirage’s options for collateral tort actions against the company and union for practices that ultimately resulted in their emotional harm damage and termination. Panelists will illuminate the often-confusing world of collateral torts, including an analysis of wrongful discharge claims, state or common law whistleblower actions, tort actions against the union for violations of the collective bargaining agreement, and potential defamation claims.

MODERATOR:

Darren Cohen, New York State Department of Labor, New York, NY

SPEAKERS:

Samantha C. Grant, Sheppard Mullin Richter & Hapton, LLP, Los Angeles, CA

Bobby Simpson, GE Current, Louisville, KY

Pearl Zuchlewski, Kraus & Zuchlewski LLP, New York, NY

• 6:00 – 7:00 p.m.

Subcommittee Reception for First-Timer Attendees

For those having a hard time deciding which ERR subcommittee to join, the Membership Committee will present the Subcommittee Reception. First-time attendees are encouraged to meet with subcommittee co-chairs and other ERR and Section leaders in a festive and relaxed setting to learn more about ERR’s subcommittees and how to become involved in ERR activities.

We thank the following firms for their generous contributions in support of this reception:

Green Savits LLC

Hardwick Benfer, LLC

Homans Peck, LLC

Nichols Kaster, PLLP

Omega Daughter LLC

Pollins Law

Taylor English Duma LLP

• 7:00 – 9:00 p.m.

Networking Reception

We thank the following firms for their generous contributions in support of this reception:

Laner Muchin, Ltd.

Littler Mendelson P.C.

Outten & Golden LLP

Polsinelli PC

Saul Ewing LLP

Sheppard, Mullin, Richter & Hampton LLP

Wednesday, March 15

• 8:00 – 9:00 a.m. Breakfast Buffet

• 8:00 – 9:00 a.m.

*Breakfast Roundtable I: Developments in Immigration Law

This program will focus on what you need to know about key immigration law issues. Come prepared to ask questions and learn the latest updates.

SPEAKERS:

Jonathan A. Grode, Green and Spiegel LLP, Philadelphia, PA

Marcia Longdon, Kingsley Napley LLP, London, United Kingdom (invited)

*This Breakfast Roundtable is an informal gathering designed to permit group discussion. There will be no written materials distributed about the topic and, due to the informal nature, this session is not approved for CLE credit.

• 9:00 – 10:00 a.m.

Tornadoes, Trailers and Turmoil, Act III: Mock Trial, Part 1: Trial and Arbitration Hearing Strategies: Examination of the Plaintiff

Presented by the Whistleblower and Trial and Appellate Advocacy Subcommittees

Part 1 of the mock trial will delve into trial and arbitration hearing strategies of direct and cross examination of the whistleblower/plaintiff. Panelists will break down the necessary elements to establish and defend against whistleblower retaliation claims. They will offer practical and strategic pointers in witness examination and the effective use of exhibits. The panel discussion will be followed by a short mock cross-examination of the plaintiff, Mirage.

MODERATOR:

Hon. Bernice B. Donald, U.S. Court of Appeals for the Sixth Circuit, Memphis, TN

SPEAKERS:

Ty Hyderally, Hyderally & Associates, PC, Montclair, NJ

Jeffrey James, Sebris Busto James, Bellevue, WA

Tammy Marzigliano, Outten & Golden LLP, New York, NY

Patrick J. Walsh, Stulberg & Walsh LLP, New York, NY

• 10:00 – 10:15 a.m.

Break

• 10:15 – 11:15 a.m.

Tornadoes, Trailers and Turmoil, Act IV: Mock Trial, Part 2: Examination of the Corporate Decision-Maker

Presented by the Whistleblower and Trial and Appellate Advocacy Subcommittees

Part 2 of the mock trial will provide direct cross-examination strategies for examining the corporate witness who made the decision to terminate the whistleblower/plaintiff. This panel will highlight the key testimony to elicit from the witness’s examination. They will explore examination strategies for decision-maker witnesses, the investigation, and much more. The panel discussion will be followed by a mock cross-examination of the corporate witness, Coachella.

MODERATOR:

Hon. Bernice B. Donald, U.S. Court of Appeals for the Sixth Circuit, Memphis, TN

SPEAKERS:

Kathryn F. Abernethy, The Noble Law Firm, Chapel Hill, NC

Eric L. Barnum, Baker & Hostetler LLP, Atlanta, GA

Lloyd B. Chinn, Proskauer Rose LLP, New York, NY

Laura Mattiacci, Console Mattiacci Law, LLC, Moorestown, NJ

• 11:15 – 11:30 a.m.

Break

Tuesday, March 14

Wednesday, March 15

• 11:30 a.m. – 12:45 p.m.

The Evolution of Employment Arbitration: Best Practices for Drafting, Enforcing and Challenging Arbitration Agreements

Presented by the Alternatives to Litigation and Statutory Rights Subcommittees

Recent passage of the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” is the proverbial canary in the coal mine concerning changes in the continuing validity and implementation of arbitration agreements. These changes demand a holistic reassessment of how and when employers decide to create arbitration agreements and what form they take. It also demands a reassessment of how they are challenged and on what terms employees will participate. Panelists will opine on cutting-edge issues in arbitration agreements and best practices for drafting an agreement.

MODERATOR:

Zhanna Meggison, U.S. Equal Employment Opportunity Commission, Charlotte, NC

SPEAKERS:

Hon. John A. Henderson, U.S. Department of Justice, Baltimore, MD

Laura McKenzie Holt, Texas Children’s Hospital, Houston, TX

Marijana Matura, Kessler Matura PC, Melville, NY

Michael Royal, Littler Mendelson, Dallas, TX

Melissa S. Woods, Cohen, Weiss and Simon LLP, New York, NY

• 1:00 – 1:30 p.m.

Diversity, Equity and Inclusion Luncheon

We thank the following firms for their generous contributions in support of this luncheon:

Borden Ladner Gervais LLP

Case + Sedey LLC

Cozen O’Connor

Employment Practices Group

Fisher & Phillips LLP

Foley Hoag LLP

Green & Spiegel LLP

Greenberg Traurig LLP

Ice Miller LLP

Scott Dukes & Geisler P.C.

Spilman Thomas & Battle PLLC

Wilentz Goldman & Spitzer, P.A.

• 1:30 – 2:30 p.m.

Addressing Micro-Aggressions and Diversity, Equity and Inclusion in the Legal Profession

Presented by the Diversity Outreach and Inclusion Taskforce Microaggressions are actions that would never give rise to a claim of employment discrimination on their own, but that make the work environment inhospitable for minorities and people of color. It is often considered a major contributor to higher levels of workplace attrition and discontent. Many organizations have embraced implicit bias training

Midwinter Meeting 2023

to remedy microaggressions, but that is just one tool to address this widespread problem. The panel will discuss microaggressions, their effect on the labor market and new ways of addressing them.

MODERATORS:

Hon. Stephanie M. Jones, Federal Agency, Knoxville, TN Kelly M. Dermody, Lieff Cabraser Heimann & Bernstein LLP, San Francisco, CA

SPEAKERS:

Hon. Gwynne A. Wilcox, National Labor Relations Board, Washington, DC (invited)

David Lopez, Rutgers University School of Law, Newark, NJ Rosevelie Márquez Morales, Hogan Lovells, New York, NY (invited)

• 2:30 – 3:30 p.m.

Subcommittee Meetings

ERR’s subcommittees will meet to plan activities for the next year and their panels for the 2024 Midwinter Meeting. Newcomers are encouraged to attend!

• 3:30 – 5:00 p.m.

Membership Committee Activity

Sponsored by the Membership Committee

• 7:30 – 10:00 p.m.

Palm Springs Dine-Around

Meeting registrants and guests are invited to participate in an organized “dine-around” at some of the best restaurants in downtown Palm Springs. Sign-up sheets will be posted at the Registration Desk.

Thursday, March 16

• 8:00 – 9:00 a.m. Breakfast Buffet

• 8:00 – 9:00 a.m.

*Breakfast Roundtable II: Gab with the Government

Join a panel of government attorneys who will discuss the newest developments and provide the latest updates from their respective agencies. Come prepared to ask questions and learn about matters currently of interest to the federal government in the labor and employment law context.

MODERATOR:

Amber Trzinski Fox, U.S. Department of Justice, Washington, DC

SPEAKERS:

Jin Chong, U.S. Department of Labor, Washington DC (invited)

Brenna Schertz, National Labor Relations Board, Charlotte, NC

Joyce Walker-Jones, U.S. Equal Employment Opportunity Commission, Washington, DC

CONCURRENT PROGRAMS: TRACK 1

• 9:00 – 10:00 a.m.

Solidarity in Cyberspace: Technology and Union Organizing

Presented by the Technology Subcommittee

Social media and the increasingly virtual workplace caused by the pandemic have revolutionized union organizing efforts. From October 1, 2021 through March 31, 2022, the NLRB reported a 57% increase in union representation petitions compared to the prior year. Unions are developing sophisticated social media campaigns to help them connect with workers and win big elections. Employers have taken notice and are developing their own strategies on this front. This panel will discuss the uses of technology in organizing campaigns and the legal landscape.

MODERATOR:

Wynter P. Allen, Monro, Inc., Washington, DC

SPEAKERS:

Louis J. Cannon, Jr., Jackson Lewis P.C., Baltimore, MD (invited)

Hector De Haro, Bush Gottlieb, Glendale, CA

Lynn Ta, National Labor Relations Board, Los Angeles, CA (invited)

• 10:00 – 10:15 a.m.

Break

• 10:15 – 11:30 a.m.

Avoiding Traps in Common Employment Contract Terms

Presented by the Contracts and Executive Compensation Subcommittees

Negotiating executive contracts can seem like a navigating a minefield, with discussions about DEI goals, morality clauses and overly general “for cause” terminations presenting a host of contested issues beyond traditional disputes about compensation and benefits. This program will focus on the common pitfalls and traps in the drafting and negotiation of executive employment agreements, with particular attention paid to provisions that sometimes are overlooked while the parties focus on compensation, noncompete provisions and the like.

MODERATOR:

George L. Washington, Jr., Orange Business Services, Oak Hill, VA

SPEAKERS:

Lori L. Deem, Hughes Socol Piers Resnick & Dym, Ltd., Chicago, IL Vanessa Kelly, Clark Hill, Princeton, NJ

John Sands, Arbitrator and Mediator, Boca Raton, FL

• 11:30 a.m. – 12:45 p.m.

The State of Employee Benefits Post-Dobbs

Presented by the Employee Benefits Subcommittee

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court overruled Roe v. Wade, while in Bostock v. Clayton County, Georgia, the Supreme Court confirmed that federal law bars employers from discriminating against employees based on sexual orientation and gender identity. How do these landmark decisions impact employee benefit plans? We’re

*This Breakfast Roundtable is an informal gathering designed to permit group discussion. There will be no written materials distributed about the topic and, due to the informal nature, this session is not approved for CLE credit.

glad you asked. Panelists will provide an up-to-the-minute analysis of Dobbs-related benefits litigation, including ERISA preemption defenses to criminal liability for employers accused of “aiding and abetting” by providing travel/lodging benefits for reproductive services, as well as discuss strategies for managing subpoenas to employers requesting information about reproductive services. The panel will also discuss potential liability after Bostock for employers, unions, singleemployer plans and Taft-Hartley Plans, as well as the role Bostock will play in collective bargaining over benefits.

MODERATOR:

Erin Sweeney, DLA Piper LLP (US), Washington, DC

SPEAKERS:

Denise M. Clark, Clark Law Group, PLLC, Washington, DC Marcy J. Dunlap, Cohen Weiss and Simon LLP, New York, NY

J. Timothy McDonald, Thompson Hine LLP, Atlanta, GA

CONCURRENT PROGRAMS: TRACK 2

• 9:00 – 10:00 a.m.

New Developments in International Employment Law, Including When “Work from Anywhere” Means Working from Another Country

Presented by the International Law Subcommittee

When uncertainty was the only certainty, people adapted quickly. Tech maturity and the use of technology is an even more important performance differentiator than before March 2020, with cloud computing, AI, cybersecurity and workplace heath and safety at the top of the workplace agenda. These changes in turn have affected how we work, with full- and parttime remote work becoming a permanent fixture in today’s workplace, and hybrid workforces blending in-person workers with on-screen colleagues. How do employers, unions and employees ensure that employees are safe and supported in a remote environment? How can workers, unions and employers around the world thrive in a post-pandemic reality? Join this panel for a look into the future of work.

MODERATOR:

Justine Laurier, Borden Ladner Gervais LLP, Montréal, QC

SPEAKERS:

Claire Dawson, BDBF, LLP, London, United Kingdom

Wendi S. Lazar, Outten & Golden, New York, NY

Lexer Mayers, Allstate, Baltimore, MD (invited)

• 10:00 – 10:15 a.m.

Break

• 10:15 – 11:30 a.m.

How Far has COVID Opened the Barn Door?

The Pandemic’s Impact on Leave and Remote Work as Reasonable Accommodations

Presented by the Disabilities and Leaves of Absence Subcommittee

Many white collar employees have had the flexibility to work remotely for years even before the pandemic. Now, as some

Wednesday, March 15

Thursday, March 16

CEOs call for a return to the office and “normalcy,” others have pledged to permit remote work forever. Meanwhile, changes in the labor market have made it increasingly difficult for some employers to attract and retain employees without a robust telework policy. How has the legal landscape shifted when determining when remote work should or is required to be allowed? How have all these crosscurrents affected courts’ application of the ADA, FMLA and other laws regulating leave and remote work? Panelists will explore just how far we have come after two years of working in a pandemic.

MODERATOR:

Melinda J. Caterine, Littler Mendelson, PC, Portland, ME

SPEAKERS:

Jo Linda Johnson, Capital One, McLean, VA

Lucas J. Kaster, Nichols Kaster, PLLP, Minneapolis, MN

Joyce Walker-Jones, U.S. Equal Employment Opportunity Commission, Washington, DC

• 11:30 a.m. – 12:45 p.m.

The Impact of Worker Tracking/Monitoring on Employee Privacy and Productivity

Presented by the Employee Privacy Subcommittee

Employers increasingly use technology such as wearables, location tracking devices, and other productivity programs to improve worker performance and safety. However, in some cases this technology backfires, leading to increases in worker injury or discriminatory effects as workers attempt to meet unrealistic computer-generated standards. Increases in worker monitoring have also made inroads in office environments, with more employees working remotely and employers more reliant on computer monitoring and even video monitoring to track progress. What are the effects of these technologies on employee privacy? Does the use of tracking and productivity devices in warehouses and fulfillment centers increase or decrease workplace risk? Panelists will discuss the ramifications of worker tracking in the workplace.

MODERATOR:

Nina Pirrotti, Garrison Levin-Epstein, Fitzgerald & Pirrotti, New Haven, CT

SPEAKERS:

Barbara Dunlap, Panduit, Chicago, IL

Jeremy Edelson, Laner Muchin, Ltd., Chicago, IL

Danielle Van Lier, SAG-AFTRA, Los Angeles, CA

• 12:45 – 1:00 p.m.

Committee Business and Feedback Meeting

• 1:30 – 5:30 p.m.

Golf at Rancho Las Palmas (ticketed event)

• 7:00 – 11:00 p.m.

Reception, Dinner and Dance at Rancho Las Palmas

Sponsored by Morrison & Foerster LLP

Midwinter Meeting 2023

Friday, March 17

• 8:00 – 9:00 a.m.

Breakfast Buffet

• 9:00 – 10:15 a.m.

Dobbs v. Jackson Women’s Health Organization: Providing Clarity or Creating Controversy for Employers?

Presented by the State Law Developments Subcommittee

The landmark decision overturning Roe v. Wade has created numerous legal, medical and practical issues for labor and employment law practitioners. Several states have reacted with their own legislation to address the availability of abortion and birth control, with others likely to follow. Panelists will address the tidal wave of workplace issues stemming from Dobbs, including potential discipline for violations of state law, discrimination and accommodation issues, employee benefits, applications for FMLA leave, and whether criminal sanctions could be imposed against employers under a conspiracy theory.

MODERATOR:

Eugene Boyle, Vedder Price, Chicago, IL

SPEAKERS:

Pamela Devi Chandran, Washington State Nurses Association, Seattle, WA

Megan O’Malley, O’Malley & Madden, P.C., Chicago, IL

Bradley Rudley, Latah County Prosecutor’s Office, Moscow, ID

Adriana Trevino, PepsiCo, Plano, TX

• 10:15 – 10:30 a.m.

Break

• 10:30 – 11:30 a.m.

Burned Out and Lit Up: When Attorney Mental Health and Substance Abuse Impact their Ethical Duties

Presented by the Ethics and Professional Responsibility Subcommittee

With the pandemic entering a new phase, relatively little attention has been paid to the mental health crisis it has wrought for members of the legal community, who have higher historical rates of substance abuse than the public. In many cases, two years of forced isolation and the deaths of loved ones have exacerbated underlying mental health and substance abuse challenges. This panel will discuss the impact the pandemic has had on the legal community and the ethical implications that may result. Using the ABA Model Rules of Professional Conduct as a guide, the panel will discuss the ethical dimensions of mental health and substance abuse challenges and offer practical advice for addressing these issues before they arise. They will also offer guidance on understanding substance abuse, mental illness and stress management relating to the practice of law.

MODERATOR:

Emily Litzinger, Fisher & Phillips LLP, Louisville, KY

SPEAKERS:

Hon. Yvette Roland, State Bar Court, Los Angeles, CA

Dr. Kristin Schneider, Carmel Mental Health, Carmel by the Sea, CA Jillian Weinstein, O’Melveny & Myers LLP, Los Angeles, CA (invited)

• 11:30 a.m. – 12:30 p.m.

Will Non-Competes Survive? The Continuing Enforceability of Non-Competes in the Face of State and Federal Government Legislation and Agency Enforcement

Presented by the Covenants Not to Compete and Trade Secrets Subcommittee

Though used for many years, recently non-competes and other restrictive covenants have been the subject of more targeted state and federal enforcement. At the same time, state legislatures and Congress have placed non-competes on their radar for legislative actions that would, if enacted, greatly reduce their effect and narrow their application. Panelists will discuss recently enacted and pending state laws narrowing the enforceability of non-competes and recent legislative efforts at the federal level, including the proposed Workforce Mobility Act and President Biden’s Executive Order on Promoting Competition in the Economy. Panelists will also discuss federal enforcement actions, particularly those related to no-poach agreements.

MODERATOR:

Eric Akira Tate, Morrison & Foerster LLP, San Francisco, CA

SPEAKERS:

Caryl Flannery, Centene Corporation, St. Louis, MO

Megan S. Lewis, U.S. Department of Justice, Washington, DC

Amy Shulman, Outten & Golden LLP, New York, NY

Sponsors

We thank the following for their generous contributions in support of our 2023 Midwinter Meeting: Ruby Gold

Employment Rights & Responsibilities Committee

Subcommittee Descriptions

The Employment Rights & Responsibilities (ERR) Committee has 19 subcommittees, which embrace the wide spectrum of issues facing the labor and employment lawyer. ERR members are encouraged to participate in any of the various subcommittees. These subcommittees prepare and present a program each year at the Midwinter Meeting.

Alternatives to Litigation

Subcommittee – assists employment lawyers dealing with various alternative dispute resolution forums outside the courtroom. This subcommittee addresses legal developments and provides practical assistance to members practicing arbitration, mediation or other forums.

Complex Litigation Subcommittee

Established in response to the increase in class and collective employment litigation, this subcommittee’s focus is on the latest developments, issues and practice points associated with complex litigation.

Contracts and Executive

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Compensation Subcommittee –covers developments concerning key areas of employment contracts and executive compensation, including trends in contract terms; negotiation strategy for both sides; litigation and arbitration of contract disputes; equity, deferred and bonus compensation; change in control agreements; and contracts and statutory issues for special professions.

Covenants Not to Compete and

Trade Secrets Subcommittee –focuses on legal developments relating to disputes arising from the transition of employees from company to company, including issues where trade secrets and confidential information are likely to be exposed as part of that transition. The increasing frequency with which employers use non-disclosure and non-compete agreements, the disputes that arise from such agreements and state-by-state distinctions are explored by this subcommittee.

Disabilities and Leaves of Absences

Subcommittee – addresses a broad and complex set of statutory and regulatory protections for employees who have medical issues and/or need leaves of absence from work, including the rights created by the ADA and FMLA. This subcommittee address the legal developments with respect to the intersection of various laws regulating how employers may treat employees with disabilities and employees using statutorily protected leave.

Diversity Outreach & Inclusion

Taskforce (“DOIT”) – highlights diversity issues particular to both the legal profession as well as within the American workforce. DOIT addresses diversity and inclusion programs as well as the implicit bias in the legal profession and in society. This subcommittee updates the membership on cutting edge legislation

broadening protections based on gender identity and sexual orientation as well as diversity initiatives designed to eliminate bias in the U.S. based on race, ethnicity, gender, sexual orientation, gender identity and disability status.

Employee Benefits Subcommittee –provides updates on ERISA and employee benefits as well as executive compensation developments of particular significance to employers and participants. This subcommittee also focuses on how benefits programs are addressed in the collective bargaining context and how legislation impacts benefits programs in union and non-union workplaces.

Employee Privacy Subcommittee –focuses on issues arising out of the intersection of privacy and employment law, including but not limited to background checks, security of human resources data, employee monitoring and surveillance, mobile device management, privacy of employee health information, and employer regulation of employee off work activities and conduct.

Employment at Will/Collateral

Torts Subcommittee – keeps abreast of common law and statutory employment claims applicable to at-will employees throughout the U.S., including collateral torts (e.g., negligent hiring, retention, and supervision and personal harm torts), implied contract, whistleblower, wrongful discharge and public policy claims. The subcommittee’s focus is to identify trends and to report innovative or otherwise noteworthy cases to ERR membership.

Ethics & Professional Responsibility

Subcommittee – examines ethics issues arising under the ABA Model Rules of Professional Conduct, and federal and state law, which particularly implicate the activities of labor and employment lawyers. The subcommittee focuses on traditional conflicts and other common ethics problems as well as emerging areas of interest involving the intersection of law and technology.

International Law Subcommittee –addresses the increasing number of international issues faced by employment lawyers, including legal developments in the global environment, jurisdictional issues, conflicting laws, and developments in domestic and foreign employment law. Members include counsel from many countries.

State Law Developments

Subcommittee – focuses on labor and employment issues that develop state-by-state, addressing state case law and statutory law regarding the employee-employer relationship. Where distinct from the federal approach to labor and employment issues, the subcommittee also reviews cutting edge state legislation and judicial interpretation of state and federal law.

Statutory Rights Subcommittee –maintains a broad focus on the varied state and federal laws governing the employment relationship, including Title VII, the ADEA, the ADA, and the Equal Pay Act; compensation issues under the FLSA; federal and state whistleblower and retaliation provisions, and state legislation impacting the employment relationship. This subcommittee also provides in-depth analysis of emerging trends regarding statutory interpretation of labor and employment statutes to assist with compliance and litigation avoidance. Technology Subcommittee – examines how technological changes impact labor and employment law, litigation and the practice of law generally. Topics addressed by the subcommittee include social media at work, discovery of electronic documents, and privacy.

Trial and Appellate Advocacy

Subcommittee – covers trial practices and procedures relating to labor and employment issues, including trial preparation issues, pretrial motions and conferences, selection and use of witnesses, expert witness issues, voir dire, jury selection, jury instructions, opening and closing arguments, and examination of witnesses.

Whistleblower Subcommittee –focuses on advanced compliance and litigation issues arising from protected activity by workers, including recent developments related to the variety of laws prohibiting retaliation against whistleblowers. Topics addressed by this subcommittee include burdens of proof, forum selection, alternative dispute resolution, and remedies as well as provide practical and strategic tips for litigators in this area.

Workplace Investigations

Subcommittee – focuses on legal developments and compliance issues that trigger investigations as well as best practices in conducting prompt and thorough investigations. The subcommittee also focuses on the impact of investigations on evidentiary issues, available remedies when litigation occurs, and how investigations may support both claims and affirmative defenses.

Registration Information

Hotel Accommodations

We have negotiated a special group rate of $299 at the Omni Rancho Las Palmas Resort., and the resort fee has been reduced to $15 for our group. The reservation deadline for the group rate is February 13, 2023

If necessary, cancellations must be made 72 hours prior to the scheduled day of arrival to avoid a one-night cancellation charge. Reservations may be made online at:

Omni Rancho Las Palmas Resort & Spa | ABA – Midwinter Meeting (omnihotels.com)

https://www.omnihotels.com/hotels/palm-springs-rancholas-palmas/meetings/aba-midwinter-meeting-03092023

Social Events

• Welcome Reception

The Welcome Reception will be held on Monday, March 13 from 5:30 to 6:30 p.m. All Midwinter Meeting attendees and registered guests are welcome to attend. Light snacks and an open bar will be served.

• Subcommittee and Networking Receptions

Following the Subcommittee Reception for First-Time Attendees, New ERR Committee Members and Subcommittee Co-chairs on Tuesday from 6:00 to 7:00 p.m., the Committee will host a Networking Reception from 7:00 to 9:00 p.m. at the Omni Rancho Las Palmas.

• Dine-Around

On Wednesday, March 15, you are invited to join your colleagues for an organized “dine-around” at some of Palm Spring’s best restaurants. Sign-up sheets will be available at the ABA Registration Desk beginning Tuesday, March 14.

•

Thursday Reception, Dinner and Dance

You will not want to miss our Thursday party for meeting attendees and registered guests. The evening will feature great food, drinks and wonderful local entertainment. The cost of this event is included in the registration fees.

Continuing Legal Education Credit

The ABA will seek 15.25 hours of CLE credit in 60-minute states (including 2.0 ethics hours) and 18.3 hours of CLE credit for this program in 50-minute states (including 2.4 ethics hours). Credit hours are estimated and are subject to each state’s approval and credit rounding rules. Visit www.americanbar.org/mcle for general information on CLE at the ABA.

Financial Assistance

Visit the Section of Labor and Employment Law website at www.americanbar.org/labor for information about the Section Development Fund and Government and YLD Fellowship Program opportunities. Full or partial fee waivers may be available based on financial hardship. For registration fees over $500, qualifying attorneys could receive at least a 50% reduction in the course fee. This does not include any reduction in meals, lodging or travel costs associated with the course. Please send written requests to laborempllaw@americanbar.org

Persons with Disabilities

Services for persons with disabilities are available. If special arrangements are required, please notify the Section Office at laborempllaw@americanbar.org at least four weeks prior to the meeting.

Meeting Registration

The Midwinter Meeting registration fees cover the Monday and Tuesday Receptions and the Thursday Reception, Dinner and Dance, breakfasts, and refreshment breaks during the meeting. The Spouse/Guest registration fee includes all evening events.

You are encouraged to register online at https://ambar.org/ lelmidwinter by March 6, 2023. Early discounts are offered for registrations received by January 13, 2023. You also may register by calling the ABA Service Center at (800) 285-2221 (Monday – Friday 9:00 am – 6:00 pm ET). Registration fees are refundable, less a $50 administrative fee, for cancellations received in the Section Office by March 1, 2023.

Registration Fees

Early Discount Standard Category (on or before 1/13/2023) (after 1/13/2023)

*Section of LEL Member $650 $750

ABA Member $850 $950

Non-ABA Member $950 $1,050

Government Agency, Non-Profit or Full-Time Academic $450 $550

First-Time Attendee $550 $650

Spouse/Guest $250 $250

Child (12-18) $75 $75

Child (<12) No Charge No Charge Event Fee

*Not a Section of LEL Member? Join online at www.americanbar.org/join/ to register for the meeting at the Section Member rate.

Tuesday Welcome Reception included in registration fee

Wednesday Networking Reception included in registration fee

Friday Reception, Dinner & Dance included in registration fee

Safety Protocols

Prevailing CDC and ABA Covid-19 safety protocols will be followed throughout the meeting.