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NELA 2016 Retaliation and Whistleblower Seminar Manual



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Date: 04/08/2016

Reining In Retaliation & Winning Whistleblower Cases reviewed recent developments and analyzed cutting-edge issues, as well as provided tips and tactics that can help you maximize your chances of success, whether you are representing clients before regulatory agencies, in mediation, or in court. Our expert panelists addressed the unique issues applicable to particular groups, such as federal employees, corporate whistleblowers, and low-wage immigrant and guestworkers.

Recent Developments & Current Trends In Retaliation Law
Speakers: Lisa J. Banks, Robert S. Mantell, Marc Siegel & Jordan A. Thomas
The U.S. Supreme Court decisions in Burlington Northern v. White and Thompson v. North American Stainless adopted less restrictive requirements for what potentially constitutes an “adverse action” and who qualifies as a protected person for purposes of applying the anti-retaliation provisions of Title VII. Those encouraging decisions were tempered by the Court’s 2013 ruling in University of Texas Southwestern Medical Center v. Nassar, which held that retaliation claims must satisfy a higher causation standard than discrimination claims brought under Title VII. In addition to reviewing the effects that Nassar has had on the success of retaliation claims in the years since it was decided, our panelists provide an overview of recent developments in retaliation law and discuss other emerging trends, such as the implications of recent rulings in the Fourth, Fifth, and Sixth Circuit Courts of Appeals rejecting the so-called “H.R. manager exception/exemption.” They also examine ways in which both new and existing whistleblower protection programs may be leveraged to help advocates more effectively pursue traditional retaliation claims on behalf of their clients, and vice versa.

Overview Of Whistleblower Protection Laws
Speakers: Thad M. Guyer & Richard R. Renner
The universe of available whistleblower protection laws is more expansive than many practitioners may realize. Our panelists summarize the programs that are available under various federal statutes, review industry-specific whistleblower protection provisions, and provide advice on how to select the one(s) that best fit the needs of your client.

Representing Corporate Whistleblowers
Speaker/Moderator: Carla D. Brown
Speakers: Lynne Bernabei & Jason M. Zuckerman

Exposing corporate malfeasance can have far-reaching positive effects within specific industries and in American society more generally. This panel reviews the mechanisms that are available to ensure that even the largest, most resourceful private corporations cannot act unlawfully with impunity. Our panelists also discuss key issues related to negotiating and drafting settlement agreements on behalf of corporate whistleblowers, and, in light of the Securities and Exchange Commission’s successful enforcement action against KBR, Inc., provide tips on how to advise and represent potential whistleblowers who have signed agreements that may include unlawful restrictions on those employees’ ability to report corporate wrongdoing.

Representing Employees In ADA & FMLA Retaliation Cases
Moderator: Subhashini Bollini
Speakers: Brian East & Brooke Timmer

Our panelists discuss the unique legal framework that applies when one is representing employees who have faced retaliation for exercising their rights under the Americans with Disabilities Act (ADA) and/or Family and Medical Leave Act (FMLA). The presentation includes a review of the differences between interference, failure to accommodate, and retaliation claims. It also focuses on some of the particular legal and factual roadblocks that may arise in these types of cases, such as the requirement for employers to alter performance goals so that employees taking leave are not set up to fail, and the ways in which the types of claims being brought affects the scope of available remedies.

Protecting Low-Wage Immigrant, Migrant & Guestworkers From Retaliation
Moderator/Speaker: Meredith Stewart
Speakers: Dawson Morton & Christopher Willett

Low-wage immigrant, migrant, and guestworkers represent a large and highly vulnerable sector of the American workforce. These workers are particularly vulnerable to workplace exploitation, and are also uniquely susceptible to particularly devastating forms of retaliation if they raise complaints about their unlawful treatment. The threat of deportation to an undocumented worker or the loss of a guestworker’s employment authorization, in addition to the risk of being blacklisted by other employers in an industry, are powerful deterrents to asserting one’s rights. Our panelists describe the practical and legal challenges involved in litigating these types of cases and share the lessons they have learned from recent victories, such as the $14 million verdict in favor of a group of Indian guestworkers in David v. Signal International. They also review other actions currently proceeding on behalf low-wage immigrant, migrant, and guestworkers, and suggest ways in which employee rights advocates can get involved and support ongoing efforts to raise awareness of the problems faced by such workers, and help seek justice for them.

Meet The Agency Enforcers
Moderator: Alicia K. Haynes
Speakers: Michael Mabee, OSHA Assistant Regional Administrator - Whistleblower, Adam Miles, Deputy Special Counsel, Office of Special Counsel & The Honorable P. David Lopez

As retaliation and whistleblower claims continue to represent a large and growing portion of charges filed with the government, a robust enforcement program led by the relevant federal agencies is vital to the success of our anti-retaliation and whistleblower protections. This panel features some of our most active, progressive agency leaders whose efforts to enforce anti-retaliation and whistleblower protection laws are essential to ensuring that employees do not have to sacrifice their livelihoods when they stand up to expose unlawful discrimination, waste, corruption, and abuse. In addition to reviewing current trends and challenges in agency enforcement of anti-retaliation and whistleblower laws, our panelists identify ways in which federal agencies and the private employee rights bar can work together to maximize the effectiveness of these worker protections.

Effectively Combatting Retaliatory Counterclaims & Countersuits
Speakers: Ellen J. Messing & Jason M. Zuckerman
Whether rooted in overly broad confidentiality agreements, or undertaken in response to our clients engaging in informal discovery to support their claims, the prospect of facing even frivolous counterclaims can have a serious chilling effect on employees who are otherwise willing to stand up to unlawful activity in the workplace. Our panelists review the current lay of the land in this dynamic area of the law, describe the types of cases in which the risk of counterclaims is particularly high, and suggest best practices for both avoiding (to the extent possible) retaliatory counterclaims and responding to them in the event they are brought against our clients.

Successful Strategies For Mediating Retaliation Claims
Moderator: Paula Greisen
Speakers: Loretta T. Attardo & Michael J. Leech
Federal court dockets remain heavily impacted, and as fewer cases are resolved at trial, more courts are encouraging early mediation and other forms of alternative dispute resolution. In appropriate circumstances mediation can be an efficient method for resolving retaliation claims. Drawing on their experiences as both advocates and neutral mediators, our panelists identify the types of cases that best lend themselves to being resolved through mediation, and share best practices for working productively with both your client and the mediator before, during, and after mediation.

Working With Current Employees To Perfect Your Case
Speakers: Charles E. Guerrier & Mark A. Kleiman
Representing workers who are still employed by the defendant employer presents a unique set of legal and practical challenges, but also offers opportunities for the advocate that is prepared. Too often our clients must choose between standing up for their or their co-workers’ rights and keeping their job. This panel will help you understand and successfully navigate the legal minefield that exists when one is representing a plaintiff who is still working for the offending employer.

Charting A Successful Course In Retaliation And Whistleblower Cases
Moderator/Speaker: Elizabeth A. Rodgers
Speakers: Jeffrey A. Newman & Emma Quinn-Judge

Why do courts, juries, and the public tend to be more receptive to retaliation claims than other employment claims?  What can we learn from the fact that retaliation claims tend to have higher rates of success than discrimination claims that will help us be more effective advocates in all of our cases? Our panelists draw on their experiences as advocates and neutrals and share their perspectives on what separates retaliation cases from other employment cases, and discuss how that understanding can inform our efforts on behalf of all of our clients.

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2016 Retaliation and Whistleblower Seminar Manual
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