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Agenda the American Employment Law Council HOME Agenda The American Employment Law Council Twenty-Third Annual Conference The Ojai Valley Inn & Spa Ojai, California October 21–24, 2015 Protecting Domestic and Global Employers from High-Stakes Challenges While Gaining a Competitive Edge in an Age of Unprecedented Change and Governmental Scrutiny The American Employment Law Council (AELC) 2015 conference will take a deep dive into pressing international employment law developments and strategies, the unprecedented volume and scope of federal government compliance and enforcement initiatives, the effect of new technologies on employment practices and litigation, what pay equity means and what it will take to make it a reality, worker centers and new forms of concerted activity, pitfalls and pratfalls in classifying employees in light of federal exemption regulations, and advanced techniques for defending individual and class employment litigation—among others. Senior lawyers from national and multi- national companies and experienced outside counsel from around the world will address the most pressing legal issues and offer key insights and advice for tackling the major challenges we face. The plenary sessions, smaller group discussions, and afternoon panels will offer attendees an opportunity to meet and benchmark with peers, address issues of mutual concern and interest, and socialize throughout the three-day conference. Hope Eastman, Chair, Board of Directors Paley, Rothman, Goldstein, Rosenberg, Eig, & Cooper, Chtd. Lawrence Ashe Parker, Hudson, Rainer & Dobbs LLP Mark Dichter Morgan, Lewis & Bockius LLP Paul Grossman Paul Hastings LLP Jocelyn Hunter The Home Depot Carl Jordan Vinson & Elkins LLP Mark Nordstrom General Electric Company Michael Reiss Davis Wright Tremaine LLP Gary Siniscalco Orrick, Herrington & Sutcliffe LLP 1 AELC 2015 PAGE 1 HOME Wednesday, October 21, 2015 12:00 noon – 1:30 p.m. AELC Board of Directors Meeting 1:30 p.m. – 2:30 p.m. AELC Advisory Board Meeting (Board of Directors and Members of Advisory Board) 2:30 p.m. – 5:30 p.m. Working Sessions: A Deep Dive into Pressing International Employment Law Developments and Strategies Wednesday’s sessions are designed for international practitioners, in-house counsel with global operations, and U.S. counsel who coordinate international employment advice. Participants are encouraged to contribute actively in these sessions through advance submission of documents that will be included in the program materials and/or remarks during the sessions that will focus on recent developments, experiences and strategic advice on: 2:30 p.m. – 3:50 p.m. The Challenges of Acquiring Businesses Internationally: Legal Overview and Best Practices for In-house Counsel This panel will focus on the practical and legal aspects of managing an international M&A transaction (i.e., a stock sale, asset sale or merger) from an employment law perspective, including topics such as the Acquired Right Directive in Europe and other unique requirements elsewhere; planning and executing reductions in force; establishing new terms and conditions; the content and timing of consultation with unions and works councils; challenges regarding global announcements; practical solutions to assist in- house counsel in achieving business targets and limiting legal exposure, litigation costs, and business disruption. Panelists and Discussion Leaders: Melanie Crowley Mason Hayes & Curran Ming Henderson Seyfarth Shaw (UK) LLP Sally Sommers Western Union 3:50 p.m. – 4:10 p.m. Break 4:10 p.m. – 5:30 p.m. Self-Inflicted Agony: Background Checks that Bite. How Much (or Little) Can Domestic and Global Employers Find Out About Candidates and Employees? Global organizations increasingly use background checks as part of their hiring process, but legal restrictions on their permissible use. content, and retention of results vary from country to country. Drawing on U.S. and a number of international examples, the panel will discuss data privacy restrictions, including employee consent and transfer to the U.S.; reliability of background checks; the onslaught of class claims and systemic cases arising from background and credit checks based on the Fair Credit Reporting Act or the EEOC’s guidance on reliance on criminal convictions; and best background check practices for domestic and global employers. Panelists and Discussion Leaders: Teresa Hutson Microsoft Corporation Trishanda Treadwell Parker, Hudson, Rainer & Dobbs LLP 5:00 p.m. – 8:00 p.m. Registration Open 6:00 p.m. – 7:30 p.m. Welcoming Reception for All Registrants and Their Guests 2 AELC 2015 PAGE 2 HOME Thursday, October 22, 2015 7:15 a.m. – 8:00 a.m. Continental Breakfast 9:00 a.m. Spouse/Guest Breakfast 7:15 a.m. – 3:30 p.m. Registration Open 8:00 a.m. – 8:10 a.m. Welcome and Greetings Hope Eastman, Chair, Board of Directors Paley, Rothman, Goldstein, Rosenberg, Eig, & Cooper, Chtd. Nancy Abell, 2015 Program Chair Paul Hastings LLP 8:10 a.m. – 9:00 a.m. Corporate Counsel Roundtable: Challenging Issues Confronting In-House Counsel of Global Employers Our corporate counsel lead-off will explore the threats and disasters that keep in-house counsel up at night and the proactive strategies they have adopted (or wish they had adopted) to best protect their companies: Foreign corrupt practices; trusted-advisor-turned-whistleblower; BYOD gone wrong; cyber breaches; labor organizing using the company email; and anticipating, training for and managing challenges that employees face on global assignments— from security of employees and their families, to hatred directed at multi-racial couples, LGBT employees and religious minorities, to exposure to life-threatening illnesses. Moderator and Panelist: Jane Howard-Martin Toyota Motor Sales, U.S.A. Inc. Panelists: Ted Borromeo McKesson Corporation John Hamlin Marsh & McLennan Companies, Inc. Shawna Swanson The Walt Disney Company 9:00 a.m. – 10:15 a.m. Finding a Needle in a Haystack or Something More Painful: The Use of Algorithms and Big Data in the Hiring Process One of the EEOC’s enforcement priorities is curbing discriminatory barriers to hiring. Dozens of hiring software programs and vendors promise to harness the power of big data by using proprietary algorithms to search the universe of potential job applicants and narrow the field to a few extremely qualified candidates. Streamlining and improving the hiring process is tantalizing but presents legal risks that must be carefully analyzed and addressed. This panel will introduce the available technology; present empirical results and validation studies thus far; identify applicant-tracking, privacy and data-loss challenges; caution of the vulnerabilities, if a plaintiff or the EEOC demonstrates that alternative software is equally accurate with less adverse impact; discuss the ADA implications of personality testing; review Fair Credit Reporting Act liability theories, including whether a vendor’s actions subject it and the employer to FCRA liability; evaluate whether individual arbitration agreements in the application process minimize class-action risks; and reveal best practices for hiring processes that garner the new technology’s benefits and protect against what may become the next big wave of class actions. Panelists: Allan King Littler Kathleen Lundquist, Ph.D. APTMetrics, Inc. Heather Morgan Paul Hastings LLP 3 AELC 2015 PAGE 3 HOME 10:15 a.m. – 10:30 a.m. Break 10:30 a.m. – 11:45 a.m. Pay Equity: A Close Look at the Actions by Regulatory Authorities and Private Claimants to Level the Compensation Playing Field and Employer Processes to Define and Achieve Gender Equity Plaintiffs have taken to heart the Dukes Court’s insistence that plaintiffs point to an “employment practice” that had an effect on pay differences. Their statistics now attempt to parse out the effect of performance evaluations, starting pay or 360-degree reviews. This panel will review key domestic and international policies, guidance, data collection requirements and demands, audit tactics, and recent enforcement and litigation actions to address the gender gap. It will conclude by presenting the details of some programs that actual employers have used to manage starting pay on a domestic and global basis to avoid the contention that it perpetuates the impact of societal discrimination. Moderator and Panelist: William Sailer Qualcomm Incorporated Panelists: Donald Livingston Akin, Gump, Strauss, Hauer & Feld LLP Janet Thornton, Ph.D. ERS Group Juana Schurman Oracle Corporation 11:45 a.m. – 12:15 p.m. Post-Dukes, Pre-Tyson: An Important Update on Class Actions for In-house Advisors and Litigators Four years after the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, class actions continue unabated. General Counsel regularly identify employment class actions as one of the main issues keeping them up at night. The speaker will discuss the current battleground in the class action wars; plaintiffs’ new “innovative procedural devices”; and how the landscape likely will change with the Supreme Court’s decision next Term in Tyson Foods, Inc. v. Bouaphakeo, which presents in the FLSA context the questions (1) whether differences among individual class members may be ignored, and a class certified, when plaintiffs use statistical techniques that presume rather than demonstrate that class members are identically situated, and (2) whether a class may be certified where a substantial number of class members have no legal right to damages at all. Moderator: Mark Nordstrom General Electric Company Speaker: Jeffrey Klein Weil, Gotshal &
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