Employment Law Institute West 2018

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Both Days
Marriott Pittsburgh City Center
112 Washington Place, Pittsburgh PA, 15219
STARTTue., Nov. 13, 2018
8:30 AM
ENDWed., Nov. 14, 2018
4:35 PM
CLE 12 sub/3 eth PRICE Regular: $499.00
New Attorney: $250.00
Day One
Marriott Pittsburgh City Center
112 Washington Place, Pittsburgh PA, 15219
STARTTue., Nov. 13, 2018
8:30 AM
ENDTue., Nov. 13, 2018
4:35 PM
CLE 6 sub/1 eth PRICE Regular: $350.00
New Attorney: $175.00
Day Two
Marriott Pittsburgh City Center
112 Washington Place, Pittsburgh PA, 15219
STARTWed., Nov. 14, 2018
8:30 AM
ENDWed., Nov. 14, 2018
4:35 PM
CLE 6 sub/2 eth PRICE Regular: $350.00
New Attorney: $175.00


The biggest and best employment law event in Western Pennsylvania!

Join us to be updated on the critical legal issues impacting the workplace in 2018 and beyond

The Employment Law Institute West is the premier employment law event in Western Pennsylvania. The Institute brings together hundreds of employment lawyers, human resource professionals and judges, as well as agency representatives, for a robust educational experience. You’ll be updated on the important new cases and developments of the year. And, just as crucially, you’ll pick up practice pointers to fine-tune your advocacy skills and strategy.

The popular Year in Review is back
The Institute opens with a lively point/counterpoint discussion between plaintiff’s lawyer Samuel Cordes and management lawyer Douglas Smith, moderated by Louis Kushner, as they examine the most interesting and significant employment law cases of the year. You’ll not only learn the holdings of recent cases, but get practical insights into how these changes impact your clients. You’ll also learn what’s trending in 2019!

You will have the chance to learn from national speakers at the Institute

Philip Miscimarra is the former Chairman of the National Labor Relations Board (NLRB). He leads the firm’s NLRB special appeals practice at Morgan Lewis & Bockius in Washington, DC. He is uniquely qualified to bring you up-to-speed on key decisions of the Board, including his perspectives regarding areas in which the Board has had divergent views. It promises to be an eye-opener!

Dr. Ann Greeley is a jury consultant at DecisionQuest in State College. Are you frustrated by trying to figure out what the jurors believe, what they will understand, what they will find confusing and what they want to know about the case? Using video clips from jury research, allow Dr. Greeley to take you inside the minds of jurors.

Richard Seymour is a nationally renowned plaintiff’s attorney in Washington, DC. He will share his encyclopedic knowledge of evidence and damages in employment litigation. And, he will help you fine-tune your skills for your next employment case.

Learn from the judges who decide your cases in Western Pennsylvania
Once again this year, judges from the Western District will share their experiences in employment litigation. Joining us this year are the Honorable Joy Flowers Conti, the Honorable Mark R. Hornak, the Honorable Maureen P. Kelly and the Honorable Arthur J. Schwab. You will explore situational awareness in trial advocacy, the new ADR policies in the Western District, strategic trial decisions and how to avoid pitfalls in employment litigation from the judges’ perspectives. Take this opportunity to learn tips and strategies from the judges.

Invest in your practice
With so many compelling topics, outstanding faculty and useful resource materials – the Institute offers you an amazing educational experience. It’s an investment in your professional development and is well worth two days of your time. Plus, the Institute provides a networking opportunity unlike any other – you’ll enjoy renewing old friendships, meeting new colleagues and networking with others who deal with the same employment law issues as you.

35 exciting workshops
Sessions on every development in employment law are included in this year’s Institute. You can hone in on the sessions that are most important to your practice.

New in 2018 – digital download of course materials
We’ve created a new format that provides user-friendly electronic access to the extensive written materials prepared by our faculty. One copy of the electronic Institute materials is included for the day(s) of your registration. Before the Institute, a link for the downloadable materials will be emailed to you.

Tuesday, November 13, 2018

8:35 – 9:35 am
What’s New in Employment Law? A Tour of the Year’s Highlights
Mr. Cordes, Mr. Smith, Mr. Kushner (moderator)
Have you stayed abreast of the recent employment cases during the past year? The Institute will kick off with a spirited point/counterpoint exchange between Samuel Cordes and Douglas Smith who will examine some of the most interesting and significant employment law cases of the year. You will learn the holdings of the recent cases and take away practical advice on how these changes impact your clients in 2019.

9:50 – 10:50 am
1. Super Workshop: Situational Awareness in Trial Advocacy in Employment Litigation
Judge Schwab, Ms. Johnston, Ms. Jones
Take this opportunity to learn from Judge Schwab about trial advocacy. Using his experiences, Judge Schwab, facilitated by plaintiff attorney Colleen Ramage Johnston and defense attorney Marie Millie Jones, will help you understand how to be the best advocate for your client.

2. Wage and Hour: Traps for the Unwary Under the Pennsylvania Minimum Wage Act
Mr. Chivers, Mr. Pritchard
Although similar, the Pennsylvania Minimum Wage Act (PMWA) and the Fair Labor Standards Act (FLSA) are not identical. We will examine the most significant differences between the FLSA and PMWA, including how to calculate an employee’s “regular rate,” what is considered compensable “work,” and differences in application of the white-collar exemptions. We will also provide an update on developments at the US Department of Labor and the Pennsylvania Department of Labor & Industry with respect to proposed amendments to the regulations governing the white-collar exemptions.

3. Beyond the FMLA and ADA: The Other Leave and Break Laws You Also Need to Know
Mr. Myers, Mr. Roberts
Tired of talking about leaves and breaks under the FMLA and ADA? So are we. Examine the federal, state (and even local) leave and break laws you may not always be thinking about, such as jury duty leave, witness duty/crime victim leave, emergency response leave, military leave, lactation breaks, meal and rest breaks, and more. Explore the rights and obligations of employees and employers under the law.

11:00 am – 12:00 noon
4. Wage and Hour: The Implications of Encino v. Novarro on the FLSA
Mr. Chivers, Mr. DuMont, Mr. Linkosky
Join us for a discussion on case developments in light of Encino, including the DOL perspective. We will explore the requirements for a valid exemption such as that at issue in Encino, which will most likely be affected by the holding in that case. Learn how this important case will affect future FLSA decisions.

5. Super Workshop: The New NLRB: What’s Changed, What’s Real, What’s Not, and What Does the Future Hold?
Past Chair Miscimarra
In recent years, employers, unions and employees have seen lots of change at the National Labor Relations Board. During President Obama’s term, the Board adopted many new principles that expanded joint employer status, accelerated union representation elections, invalidated many work rules and employee handbooks, prohibited the waiver of class action claims in non-NLRB lawsuits, and more. During the Trump administration, the NLRB has adopted some changes, engaged in rulemaking, and some observers predict more is yet to come. In this session, join former NLRB Chairman Philip Miscimarra who will discuss his tenure on the NLRB, describe the latest NLRB developments, and make predictions for the future.

6. Effective Investigations – Assessing Credibility and Writing the Report
Mr. Adams, Mr. Schroeder
This advanced level session on workplace investigations will provide guidance on assessing credibility of witnesses, and on making investigative findings and presenting them in a report.

1:00 – 2:00 pm
7. What Do You Expect? The Ethical Line Between Parties’ Expectations and the Obligations of the Mediator/Early Neutral Evaluator (ETHICS)
Ms. Cimini, Mr. Kushner
When engaging in a mediation or early neutral evaluation, parties often have clear expectations about the messages they expect the neutral to send to opposing parties. When engaging in settlement negotiations, attorneys, attorney mediators and early neutral evaluators must follow the Rules of Professional Conduct. In addition, Mediators’ conduct is dictated by the Model Standards of Ethics developed by the Association for Conflict Resolution, the American Bar Association and the American Arbitration Association. We’ll explore where the ethical boundaries lie and how parties and neutrals can better accomplish their goals in the ADR process while complying with the ethics rules.

8. Super Workshop: Off-Duty? Maybe Not…The Intersection of Off-Duty Conduct, Social Media and the Workplace
Ms. Clancy, Mr. Millett, Ms. O’Connor, Mr. Roberts, Mr. Robic, Ms. Smith (moderator)
A panel of in-house counsel will discuss how social media has affected the workplace including pros and cons of using social media to the business’ advantage and best practices when managing through the challenges that arise when off duty conduct becomes known in the workplace.

9. Two Sides of the Same Coin: Evaluating the Strengths and Weaknesses of Discrimination and Harassment Cases
Mr. Carroll, Ms. Presley
What facts are most significant for plaintiffs vs. defense? What can attorneys do to be sure they are looking at cases from both sides and avoiding blind spots in their analysis of the case? Using a hypothetical, we will discuss the differences and similarities in our assessment of the same facts, as well as provide suggestions for how to view a case from all angles to provide clients with the best legal analysis and advice.

2:10 – 3:10 pm
10. When Is Social Discourse Too Coarse for Work?
Mr. Paul, Mr. Phillis
Employers need to be able to balance an employee’s right to free speech and freedom of expression both in and out of the workplace with the employer’s obligation to have a workplace free from harassment and discrimination. Get some best practices tips on balancing free expression and avoiding discrimination, harassment (including sexual orientation and gender identity), religious discrimination, and retaliation claims.

11. Maximizing and Minimizing Monetary Awards
Mr. Seymour
Attorneys on both sides need to know the possible ways available to them and to their opponents that can affect the ultimate awards of money as damages or attorneys’ fees. Choosing which ways to exploit or guard against damages can be extremely valuable to our clients, and greatly affect the value of cases.

12. Maintaining Attorney-Client Privilege During Internal Investigations (ETHICS)
Mr. Ramsey, Ms. Stahler
The #MeToo movement has brought an increased focus to the importance of prompt and thorough internal investigations. One key aspect of such investigations is maintaining attorney-client privilege, which is the focus of this presentation. Explore case law developments and take away suggestions for best practices to maintain privilege. It is important that all in the business are aligned on the approach so that certain departments are not sending communications and drafting work product that could be discoverable in litigation.

13. Religious Accommodations
Ms. Jenca, Mr. Logan, Mr. Robic
Join us for a discussion on Title VII’s religious accommodation requirement. We will also discuss recent cases pertaining to religious accommodation in the context of forced vaccines and offer tips for handling employees’ religious accommodation requests with respect to scheduling, job changes and proselytizing.

3:20 – 4:20 pm
14. Recurring Evidence Questions
Mr. Seymour
Some questions of evidence arise frequently. These include the authentication of electronic evidence such as emails, the authentication of alleged electronic signatures to documents, the admissibility of information from past web sites, hearsay and its exceptions, the admissibility of other claimed instances of discrimination, spoliation, the admissibility of stolen documents and whether to offer them in the first place, surreptitious recordings, circumstances in which traditionally “no go” documents such as settlement offers and character evidence might be admissible and the like. The session will be based on the Federal Rules of Evidence. There will also be a discussion of the ways in which evidence rules operate, or not, in arbitration.

15. PBI’s Got Talent: An Interactive Study of a Sexual Harassment Case
Mr. Chivers, Ms. Elzer, Mr. Phillis, Ms. Salvatore, Ms. Pagac (moderator)
A panel of four attorneys will compete to impress you with respect to how they would handle a sexual harassment case from inception to completion. Each panelist will analyze the case and ask you to hire them, perhaps making a pitch about when and how to settle the case and then ultimately giving a brief summation as if the case went to a jury. You will get to vote on the most talented lawyer at the end.

16. Changing Your Mind: Supporting Mindfulness Training for Lawyers (ETHICS)
Ms. Danaher
Attorneys works in fast-paced and high-stakes environments, with (they believe) little time to disconnect from those environments for a few moments of quiet reflection, or any “stress reduction” programs. However, research has shown that stress levels of individuals participating in a mindfulness program of even a few minutes a day drop dramatically. The beauty of mindfulness is that although it does require patience and practice, it can be practiced almost anywhere at any time. Learn about mindfulness practice; how it can increase your attention span, decision making capabilities and memory; and why both the ABA and State Boards are beginning to look at the ethical pitfalls of “distracted” law practice.

17. Developments in Pay Equity
Ms. Johnston, Mr. Quinn
Over the last 50 years, courts have addressed pay equity in employment cases. There are recent developments in this area of law and we will help you navigate federal and state pay equity laws, court decisions and administrative initiatives. The presentation would review these various efforts, and outline practical advice for practitioners representing employees or employers.

8:35 – 9:35 am
Morning with the Judges
Chief Judge Conti, Judge Hornak, Ms. Ryan (moderator)
Chief Judge Conti and Judge Hornak will share their experiences and tips on employment litigation. Take advantage of this opportunity to get inside the minds of the judges. You won’t want to miss this quick-paced, eye-opening session in which Casey Ryan moderates our distinguished panel of judges.

9:50 – 10:50 am
18. Developing an Effective ADR System for Employers
Mr. Ennis
Join us for a discussion on the use of mandatory waivers of class actions after the Supreme Court’s decision in Epic Systems. Hear how this very significant decision will impact employers and employees in the future.

19. Super Workshop: Strategic Trial Decisions: Perspectives from Counsel and the Court
Judge Hornak, Mr. Cordes, Mr. Murphy, Ms. Diulus-Myers (moderator)
Here is your chance to discuss difficult strategic trial decisions with Judge Hornak, as well as input from plaintiff’s counsel and defense counsel. Topics will include: • demographic composition of the trial team • objections during openings/closings • use of demonstratives/ technology in the courtroom • length of testimony • me-too evidence complications • offers of judgment.

20. The Impact of Artificial Intelligence on the Workforce
Mr. Glunt, Ms. Weimer
Artificial Intelligence (AI) applications are disrupting entire industries and profoundly impacting the workplace. There is a critical need for employers and employees to prepare for and participate in the implementation of transformative technologies in order to best position for long-term success.
We will discuss integration of technologies, immediate impact of AI on the workforce and long-term predictions for what is to come. Specific topics to be addressed include the impact of AI in areas such as recruiting; selection of employees for promotion and termination; accommodation of workers with impairments; and job creation/displacement.

11:00 am – 12:00 noon
21. The Collision of Confidential Employer Information and ESI: Safeguarding Confidentiality in the Expansive World of E-Discovery
Mr. Creasy, Ms. Tuite
Examine how employers can protect confidential information about and from employees. We will review best practices for protecting confidential information – including preservation and retention strategies, confidentiality policies, restrictive covenants, and employee exit protocols. Take away sample checklists and policies, as well as tips for using ESI in litigation.

22. Super Workshop: Top Ten Pitfalls in Employment Litigation
Judge Kelly, Mr. Passarelli, Mr. Spear
Learn best practices for trying your next employment case directly from Judge Kelly, as well as plaintiff attorney David Spear and management attorney Mariah Passarelli. Here is your opportunity to learn from Judge Kelly’s experiences and help her guide you away from the pitfalls that could happen as you try your case.

23. Use and Risks of Data Analytics in the Workplace
Mr. Murphy
Employers are making greater use of predictive algorithms to select employees, promote employees, predict which employees are most likely to leave the organization, set compensation, etc. Proponents of big data say it helps employers make better decisions, but its misuse may unlawfully discriminate and/or exclude persons from employment and opportunities within employment. Explore the legal considerations in the use of Big Data.

1:00 – 2:00 pm
24. Difficult Problems in Litigating Cases in the #MeToo Movement
Mr. Lamberton, Mr. Lee
Examine best practices for trying a sexual harassment case. What are the hurdles you will face? Take away strategies and tips to avoid these difficult problems and keep your case on track.

25. Federal Court ADR: Understanding the Court’s Rules and Expectations
Judge Kelly, Ms. Cimini
The U.S. District Court for the Western District of Pennsylvania has a robust alternative dispute resolution (ADR) program that is mandatory for most civil cases pending in the Court. In February and April 2018, the Court made significant changes to its ADR program in response to an increased number of motions for sanctions relating to ADR. We will discuss the Court’s “good faith” definition, the procedures for opting out of mediation where a party does not intend to make a settlement demand or offer or when the parties are waiting for the disposition on a motion, and procedures for bringing motions for sanctions associated with ADR.

26. Ethics and Evidence: How to Handle Information You Wish You Might Not Have Known (ETHICS)
Ms. Passarelli, Mr. Sansone
repeated at #34
Take away practical steps attorneys should take to protect themselves and their clients when the client, a company employee or an associate lawyer offers sensitive documents, purloined emails, secretly recorded conversations or other evidence that may help prove the case, establish the defense or embarrass the other side into a favorable settlement.

27. Wage and Hour: The Wage and Hour Mistakes That Cost Employers Millions: Best Practices for Preventing a Class or Collective Action Lawsuit
Mr. Dougherty, Mr. Etter
Wage and hour class and collective actions can adversely impact your organization’s business operations, jeopardize or cut short the careers of executives and members of senior management, and cost the company millions of dollars. Examine the wage and hour mistakes that are most likely to result in a class action lawsuit and the trends and emerging issues you need to understand to avoid these mistakes and minimize your organization’s potential exposure.

2:10 – 3:10 pm
28. EEOC Update
Ms. Kane, Mr. Murray
Find out what is happening at the U.S. Equal Employment Opportunity Commission, including the status of new and continuing cases filed by the Commission, enforcement priorities, and tips for interacting with local enforcement staff.

29. What ARE Jurors Thinking and How Do I Find Out?
Dr. Greeley
Since lawyers and jurors often view the world through different lenses, it can be frustrating to figure out what jurors will believe, what they will understand, what they will find confusing and most importantly, what they want to know that you haven’t told them about your case. Using video clips from jury research, we will discuss: • the psychology of juror decision-making • what is important to jurors in deciding employment cases • tools for risk assessment in employment litigation.

30. Medical Marijuana in the Workplace
Ms. Block, Ms. Sell
The large majority of states now have medical marijuana legislation, which has also taken effect in PA. Employers are struggling with whether they need to accommodate medical marijuana use like medication for other disabilities, particularly for safety-sensitive positions, and how to do so. Join us for a discussion of the varying state laws and how to navigate ADA and state disability law requirements.

31. Pre-Employment Traps: Fair Chance Acts, Salary History Bans and the FCRA Implications in the Hiring Process
Ms. Elzer, Ms. Michael
Many employers run background checks on applicants. However, it is sometimes illegal to consider certain criminal convictions, or even to ask about criminal convictions too early in the hiring process.
Employers also want to make sure they are paying competitive wages by inquiring about applicants' past salaries. However, doing so may perpetuate longstanding wage gaps that disfavor women and minorities. Explore the laws and best practices surrounding pre-employment inquiries.

3:20 – 4:20 pm
32. Navigating Joint Employment Liability
Ms. Garrett, Ms. Schonbeck
Employers increasingly rely on independent contractors and contingent workers to solve their business needs. These non-traditional work arrangements can raise a variety of complex legal issues related to joint employment, including but not limited to discrimination and other potential claims against the entity utilizing the non-traditional workers. We will discuss the most recent developments in this area, and the best ways to avoid liability as a joint employer under increasingly disparate tests pursuant to various federal and state statutes, case law, and regulatory schemes.

33. ADA, FMLA and WC Trifecta – It’s a Race to Get Sued!
Mr. Hobaugh, Ms. Salvatore
Examine case studies and hypotheticals, with real-time voting, to analyze the complex interaction of how and when a work-related injury or illness can trigger the FMLA and/or ADA. Explore workplace issues under FMLA and ADA, the interactive process, leave and other reasonable accommodations, while identifying the biggest triggers that lead to getting sued (and how to avoid getting sued) regarding the ADA/FMLA/WC trifecta.

34. Ethics and Evidence: How to Handle Information You Wish You Might Not Have Known (ETHICS)
Ms. Passarelli, Mr. Sansone
repeat of #26

35. NLRB Scrutiny of Employee Handbook Policies Relaxed – GC Memo Provides Updated Guidance on Common Employer Work Rules
Ms. Evans, Ms. Fellows
On June 6, 2018, the NLRB’s General Counsel issued a Memorandum to Regional Directors providing guidance on how to analyze employee handbook rules in the wake of the Board’s December 2017 decision in The Boeing Co. We will discuss the additional leeway employers now have to implement commonsense policies and will address how employers should reevaluate their workplace rules and policies to ensure ongoing compliance.


William E. Adams Esq. PPG Industries Inc
Brian D. Balonick Esq. Cozen O'Connor (Pitts)
Beverly Block Esq.
James W. Carroll Jr, Esq. Rothman Gordon PC
Joseph H. Chivers III, Esq. The Employment Rights Group
Sally Griffith Cimini Esq. Leech Tishman Fuscaldo & Lampl LLC (Pitts)
Samantha M. Clancy Esq. GNC
Hon. Joy Flowers Conti US District Court for the Western District of Pennsylvania
Samuel J. Cordes Esq. Rothman Gordon PC
Brett Creasy CCE bit-x-bit LLC
Maria Greco Danaher Esq. Ogletree Deakins Nash Smoak & Stewart PC (Pitts)
A. Patricia Diulus-Myers Esq. Segmiller & Associates, P.C.
Colin D. Dougherty Esq. Fox Rothschild LLP (Blue Bell)
John E. DuMont Esq. US Department of Labor
Christine T. Elzer Esq. Elzer Law Firm LLC
Richard L. Etter Esq.
Melissa L. Evans Esq. Segmiller & Associates, P.C.
Sunshine R. Fellows Esq. The Levicoff Law Firm PC
Lisa L. Garrett Esq. Cohen & Grigsby PC
James F. Glunt Esq. Reed Smith LLP (Pitts)
Ann T. Greeley PhD DecisionQuest
Adam K. Hobaugh Esq. Murtagh Hobaugh & Cech
Hon. Mark R. Hornak United States District Court
Tiffany A. Jenca Esq. Cozen O'Connor
Colleen Ramage Johnston Esq. Johnston Lykos LLC
Marie Milie Jones Esq. JonesPassodelis PLLC
Deborah A. Kane Esq. U.S. Equal Employment Opportunity Commission
Hon. Maureen P. Kelly US District Court for the Western District of PA
Louis B. Kushner Esq. Rothman Gordon PC
Charles A. Lamberton Esq. Lamberton Law Firm LLC
Albert Shun Lee Esq. Tucker Arensberg (Pitts)
John R. Linkosky Esq. John Linkosky & Associates
James H. Logan Esq. Logan & Logan
Jessica B. Michael
Timothy W. Millett Esq. PNC
Philip A. Miscimarra Esq. Morgan Lewis & Bockius LLP (DC)
Terrence Herrin Murphy Esq. Littler Mendelson PC (Pitts)
Gregory Allen Murray Esq.
John J. Myers Esq. Eckert Seamans (Pitts)
Tara Harper O'Connor Esq. University of Pittsburgh
Shelly R. Pagac Esq. Pietragallo Gordon Alfano Bosick & Raspanti LLP (Pitts)
Mariah L. Passarelli Esq. Cozen O'Connor
Gregory G. Paul Esq. Morgan & Paul PLLC
Mark T. Phillis Esq. Littler Mendelson PC (Pitts)
Marla N. Presley Esq. Jackson Lewis PC (Pitts)
Robert W. Pritchard Esq. Littler Mendelson PC (Pitts)
Joseph F. Quinn Esq. Cozen O'Connor (Pitts)
Christopher K. Ramsey Esq. Morgan Lewis & Bockius LLP (Pitts)
Terry D. Roberts American Eagle Outfitters Inc
Michael P. Robic II, Esq. Allegheny Health Network
Casey Ryan Esq. Reed Smith LLP (Pitts)
Bethany Salvatore Esq. Cozen O'Connor
Joel S. Sansone Esq. Scanlon & Sansone
Lisa Schonbeck Esq.
Theodore Allen Schroeder Esq. Littler Mendelson PC (Pitts)
Hon. Arthur J. Schwab US District Court
Leah K. Sell Esq. Leech Tishman Fuscaldo & Lampl LLC (Pitts)
Richard T. Seymour Esq. Law Office of Richard T Seymour PLLC
Andrea Clark Smith Esq. UPMC
Douglas G. Smith Esq. Jackson Lewis PC (Pitts)
David B. Spear Esq. Minto Law Group LLC
Mary Pat Stahler Esq. Dick's Sporting Goods Inc
Jaime Serinity Tuite Esq. Buchanan Ingersoll & Rooney PC (Pgh)
Melvin L. Vatz Esq. Law Office of Melvin L Vatz
Jill M. Weimer Esq. Littler Mendelson PC (Pitts)
Faculty may vary by location.
PBI reserves the right to substitute speakers at all programs.