Summary of ABA Labor and Employment Law Conference
The American Bar Association (ABA) Labor and Employment Law Conference brings together labor and employment law practitioners from across the nation to discuss the latest trends, developments, and challenges in this ever-evolving legal area. As the largest national organization of attorneys who practice labor law under federal and state laws, the ABA’s Section of Labor and Employment Law (SOLEL) is dedicated to ensuring that practitioners remain at the forefront of changes in legislation, litigation, and technology that affect their practices.
The conference, which is held annually, serves as a platform for a diverse group of legal professionals to network and share insights into the nuances of labor and employment law. With a committee focusing on equal pay and ADA Disability Insurance Benefits , attendees gain a comprehensive understanding of the intersection between these issues and the complex world of labor and employment law.
Not only does the ABA Labor and Employment Law Conference explore current legal trends and challenges, but it also provides a glimpse into the future of the field. Discussion panels and keynote addresses by leading experts offer a unique opportunity to consider what practitioners can expect on the horizon and how they can prepare to meet the challenges ahead.
Overall, the ABA Labor and Employment Law Conference serves as an invaluable resource for attorneys who want to stay informed and connected with the latest developments in labor and employment law.
Topics Addressed at the Conference
Each year the conference features a rich discussion of the current state of Labor and Employment Law, with highlights this year including analysis of the more important decisions from the prior year’s Supreme Court Term, examination of Federal and State Legislative Developments and Federal Regulatory Updates, and consideration of trends in class and collective litigation. Several particularly noteworthy decisions were examined at the conference, including Janus v. AFSCME, 138 S. Ct. 2448 (2018), which many of the commentators felt only drew the inevitable connection with the Court’s decision in Friedrichs v. California Teachers Association, 136 S. Ct. 1083 (2016). In addition, a panel discussion of Wells Fargo v. EFTC et al., 582 S.W.3d 1 Tex., 2019, rehearing overruled (Tex. 2019) was a highlight of the conference. That case centered on interpreting two provisions involving employee stock plans. One of those provisions, Section 409A, is governed by Federal law while the other, Section 422, is governed by state law. The panel discussed the differences between the two even though they shared the same language, and provided analysis as to how one could draft a plan to comply with both provisions. In addition, the current penal ramifications of the Administrative Procedure Act were discussed in light of Department of Homeland Security v. National Federation of Independent Business, 138 S. Ct. 2613 (2018). The panel also provided an overview of the proposed new U.S Citizenship and Immigration Services (USCIS) fee rule. That rule proposes more than doubling certain naturalization fees, and further direct attention at the Public Charge Rule. On that last subject, the Conference noted that HR professionals would need to ensure that their I-9 Forms and processes were ready for the rule’s implementation; the panel’s review showed how to ensure compliance. Finally, the conference considered emerging trends in class and collective litigation. New rules for litigating Fair Labor Standards Act (FLSA) claims, the growing trend of misclassification cases, and the agenda of the new National Labor Relations Board were discussed at the conference. The panel further promise that the Employer Misclassification Taskforce (working with the U.S. Department of Labor) would continue pursuing its agenda. The panel observed that while DOL has not yet addressed joint employment under the FLSA, it is reasonable to conclude that it will, since those provisions are directly tied to many employer misclassification cases.
Notable Speakers and Sessions Offered
Prominent speakers and sessions at the ABA Labor and Employment Law Conference included former Secretary of Labor Robert Reich, who delivered the key note address, and Angela R. Styles, who discussed the Administration’s efforts in the area of regulatory reform.
Mr. Reich, who served as the Administration’s Labor Secretary from 1993-1997, was a member of President Bill Clinton’s Cabinet. He now teaches economics and national and global policy at University of California, Berkeley’s Goldman School. He is founder and professor of "The Center for Labor and the Working Poor," an organization that promotes policies that enable working Americans to be able to support their families despite working hard. He writes frequently on issues, including income inequality, workplace mobility, consumer protection and other topics related to the American Working Class. Ms. Styles serves as Chief Counsel for Regulatory Reform to Vice President Mike Pence and previously served as Assistant Administrator of the Office of Federal Procurement Policy to President George W. Bush. She is a former partner with the law firm Akin Gump Strauss Hauer & Feld and has been a partner at Crowell Moring, a D.C. law firm. Also speaking at the conference was William Emanuel Senior District Judge of the National Labor Relations Board, who focused on union election processes and the standards of evidentiary reviews.
Networking and Career Benefits
The ABA Labor and Employment Law Conference offers a multitude of networking opportunities for attendees with shared interests and backgrounds. Such networks can be the difference between stagnation and growth in what is a relatively small and niche bar. Our hope is that each attendee leaves the conference with a sense of having made new professional contacts who share common interests, work experiences, and professional goals. But these networks do not have to disappear back at the office. They can be the genesis for new business development, joint client representation, and potential referral and mentoring opportunities. It is also gratifying to see practice groups spawn from such networks, resulting in new sections of the bar, task forces, and other professional opportunities. In turn, this helps keep the bar active , fresh, and engaged in our own fields of Labor and Employment law as well as the broader field of legal practice in general. As such, attendances at the ABA Labor and Employment Law Conference are two-fold. Some attendees may come only for the engaging content of the panel discussions. But equal attention is paid by many to the enthusiasm of the various networking receptions, meals, and other discussion venues to connect with others in a more one-on-one level. This is true especially with those who might be new to our conference, or who might seek substantive or other continuing contacts with our attorneys and judges. The good news about these professional networks is that they are available to anyone, whether you are a new or old hand in attendance at the ABA Labor and Employment Law Conference.
Lessons for Practicing in Labor and Employment Law
Our takeaways from the conference are that labor and employment law practitioners must remain cognizant of the reality of cases being lost in trial settings, as well as the cost and time that litigation can consume (whether in the role of counsel for the employer or the employee). There is no ready recipe for a favorable settlement, and neither is there magic in delaying a case unreasonably. More than lawyering and advocacy, we must understand the need to "achieve closure" and help our clients to that end. A referral to a third party for mediation and settlement purposes may even be an order of the court, or may be required by contract. This theme was taken up by The Honorable Mark E. Walker, who moderated a panel on mediation/settlement concerns. Judge Walker, Judge Michael P. Mills of the Northern District of Mississippi, and Judge Susan R. Nielsen of the Southern District of Ohio have teamed up to develop rules in the areas of advocacy and settlement. The panelists suggested to practitioners that they should not present a case at trial that they could not settle. Judge Walker remarked that mediators are "underutilized," in part because they are too "neutral" when suggesting a settlement position for consideration while in fact more vigorous advocacy may be necessary to accomplish a meaningful arms’-length resolution of the case. But Judge Walker also assured practitioners that simply meeting with the client and an opposing party’s lawyer to discuss settlement does not require use of a mediator. I was struck by the fact that Judge Walker advised practitioners to use the terms "plaintiff" and "defendant" instead of "claimant" and "respondent." He also remarked that trial judges and juries would be amenable to the simpler "yes" and "no" deposition formats in close cases, another suggestion made by Professor Ronald J. Allen. Professor Allen also a offered the advice that it is better for legal practitioners to try some cases, even when the case may be weak, than to always settle them. In a similar vein, litigation is about knowing when to take a shot when you have an opportunity, and knowing the right opportunity of the case that warrants going to trial. Although the year in review presentation by David Walsh and others from a plaintiff side perspective discussed new developments in areas such as retaliation, FLSA collective actions, and access to relevant personnel files, the recurring theme of "Judge Martinez’s insightful comments" (as noted in the program) was that "time = money" and that even though practitioners in bankruptcy and ERISA cases may not be affected by the civil case of CMMF-Tennessee v. City of Memphis, this case is a strong reminder that the need to control costs in litigation exists in every situation. As Judge Martinez pointed out, in this case Ms. Pamilla Jones sued the city for its alleged failure to provide her documents in response to her civil rights and ERISA claims (in an effort to get a settlement). However, the city granted her request at no cost to Ms. Jones. She then sued for "attorney’s fees" related to her claim to get documents (even though her present lawyers did not do any work for free). Judge Martinez observed that using a small number of lawyers (including solos) in this type of case does not really reduce costs and he will continue to keep a close eye on litigation costs and not grant excessive attorneys’ fees when awarding them. Aside from these panels, summations in areas such as the impact of the Patient Protection and Affordable Care Act (PPACA) indicate clear trends and challenges for both employers and employees. Practitioners must be aware of the various developments affecting labor and employment law issues, including trust (or "employee stock ownership plans" or "ESOPs"), the impact of the attorney-client privilege in internal corporate investigations and government oversight, the lawful production of documents (and the competition with state law regarding employer notice obligations), and medical marijuana and disability rights under the ADA. Lawyers must also appreciate the weaknesses in areas such as continuances, settlement data memoranda, and the challenges inherent in controlling discovery costs in class action litigation.
Where to Sign up for Upcoming Conferences
Whether you are an experienced attendee at the ABA Labor and Employment Law Conference or are new to attending, the information below can help you plan for a successful trip next time.
Where will our next conference be?
The next ABA Labor and Employment Law Conference will be held in New Orleans, Louisiana, from November 8-9, 2019. The theme is appropriately: "Labor and Employment Law – 40 Years of Change, 40 Years of Forcasting Futures." Topics range from a general update on litigation trends and ADA Title III testing to avoiding social media tantrums with helpful tips on ethics and compliance.
When can I register?
While conference registration has already been open for quite some time, there are still several months before the next conference to register and attend . Registration is currently open on the LEL eLearn website through the ABA’s Center for Professional Development webpage.
How do I plan my trip?
Most years, the ABA Labor and Employment Law Conference adopts a two-day conference schedule, typically starting on the first Friday in November. The upcoming 2019 conference will be no different. The conference resumes early in the morning and proceeds through the afternoon the next day. As in previous years, attendees will once again have the chance to attend the annual National Employment Law Conference (NELC), a collaborative effort between the ABA and the National Employment Law Practice Section.
The ABA has reserved a block of rooms at the Lowe’s New Orleans. A full schedule of events and conference details is available on the LEL eLearn website and they will be updating the information as the conference approaches.