NACUA Spring 2010 Workshop: Higher Education Employment Law: Changing Campuses, Continuing Challenges

Wednesday, March 17, 2010

1:00 p.m. - 1:15 p.m.


Introduction to the Program

Derek Langhauser, Maine Community College System

Miles Postema, Ferris State University

Kathleen Curry Santora, National Association of College and University Attorneys


1:15 p.m. - 2:30 p.m.


01. Faculty Behaving Badly: How to Effectively Address Faculty Misconduct

  • Establishing a workable and enforceable code of conduct
  • Implementing training and other proactive measures to minimize code violations
  • Effective strategies for investigating and resolving claims
  • Determining the appropriate level of discipline

Darryl Hamm, Moderator, California State University

Stephen Hirschfeld, Curiale Hirschfeld & Kraemer, LLP

Chris Melcher, Colorado College


2:45 p.m. - 4:00 p.m.


02. Be a Finder and a Keeper: Attracting and Retaining a Diverse Workforce

  • Incentive programs – are they ever legal?
  • What's Ricci got to do with it?
  • Practical suggestions for outreach and retention
  • You're only as strong as your weakest link – suggestions for putting it all in action

Gerard St. Ours, Moderator, Johns Hopkins University

Jaffe Dickerson, Littler Mendelson

Pamela Heatlie, University of Michigan


4:15 p.m. - 5:30 p.m.


03. Best Practices in Hiring Faculty and Staff

  • Search committees missteps and training
  • Reference and background checks
  • Applications and contracts
  • Applicant flow data collection
  • Adverse impact analysis
  • Internet research on candidates (e.g., RateMyProfessor.com, Google)

Marc Williams, Moderator, North Carolina A&T State University

Mary Brockington, Strickland Brockington Lewis LLP

Ann Franke, Wise Results, LLC


5:30 p.m. - 6:30 p.m.


Reception for Registrants and Presenters


Thursday, March 18, 2010


7:00 a.m. - 8:00 a.m.


Continental Breakfast


8:00 a.m. - 9:15 a.m.


04A. Buy the Numbers: What Every Employment Lawyer Needs to Know About Statistics

  • Why statistics matter now more than ever: compensation, diversity, and discrimination
  • Common (and very dangerous) mistakes in interpreting employment data
  • Managing the risks of internal data requests and analyses
  • Tips for working with labor economists and controlling costs

Stephen Bronars, Welch Consulting

Bruce Melton, University of Chicago


04B. The First Employment Litigation “Top 10” List (with Apologies to David Letterman)

  • The top 10 recent cases you should welcome (or worry about)
  • The top 10 litigation "do's" and "don'ts" at trial
  • The top 10 litigation "do's" and "don'ts" in preparing for trial
  • The top 10 implications for In-House Counsel (and their clients) who manage employment litigation

Jeffrey Nolan, Moderator, Dinse, Knapp & McAndrew, P.C.

Angeline Covey, Stanford University

J. Eric Paltell, Kollman & Saucier, P.A.


9:30 a.m. - 10:45 a.m.


05A. The Compensation Freight Train: New Laws and What to Do Now to Stay on Track

  • Lilly Ledbetter Fair Pay Act with case law update
  • Anticipated Equal Pay Act amendments
  • Impact of legislation on record retention
  • Practical tips for avoiding and defending compensation claims
  • Meaningful pay equity analyses including statistical methods

Stephen Bronars, Welch Consulting

Janilyn Brouwer Daub, Barnes & Thornburg LLP

Maya Kobersy, University of Michigan


05B. The Anatomy of a Successful Mediation: Practical Perspectives From The Mediator, The Defense Attorney, and the Plaintiff's Attorney

  • Presenting Your Case: "Do the Dance or Cut To the Chase?"
  • What is the other side thinking?
  • What is the mediator telling the other side?
  • How to get from "no" to "yes"

Raymond Baldwin, Seyfarth Shaw

David Birnbaum, University of California

Jay Folberg, JAMS Arbitration and Mediation Services

Michelle Reinglass, Law Offices of Michelle A. Reinglass


11:00 a.m. - 12:00 p.m.


06A. FLSA Issues in Higher Education

  • Discussion Group

Gerard St. Ours, Johns Hopkins University


06B. Employee Wellness Programs

  • Discussion Group

Raymond Baldwin, Seyfarth Shaw


06C. Employee Threat Assessments

  • Discussion Group

Natasha Baker, Curiale Hirschfeld & Kraemer, LLP

Vickie Gillio, Northern Illinois University


06D. Internal Investigations Gone Awry

  • Discussion Group

Kelly Capen Douglas, University of San Diego


06E. LGBT Issues

  • Discussion Group

Laura Todd Johnson, University of Arizona

Jeffrey Nolan, Dinse, Knapp & McAndrew, P.C.


12:15 p.m. - 1:30 p.m.


Luncheon


1:30 p.m. - 2:45 p.m.


07A. Web 2.0: Employee Use of the Internet and Social Media

  • Balancing free speech rights and the duty to prevent or remedy discrimination, harassment, cyberbullying
  • Why you should have a policy
  • What the policy should cover
  • When should you act and when should you refuse to act?
  • Best practices in establishing and enforcing a policy (including a model policy)

Cheryl Ives Smith, Moderator, Western New England College

Richard Paul, Paul, Plevin, Sullivan & Connaughton LLP

Margaret Wu, University of California


07B. Latest Developments on Collective Bargaining and Unionization

  • Employee Free Choice Act-Potential impact on union avoidance strategies
  • Graduate student unionization
  • Contingent faculty unionization

Marc Williams, Moderator, North Carolina A&T State University

Shelley Carthen Watson, University of Minnesota

Nicholas DiGiovanni, Morgan, Brown & Joy, LLP


3:00 p.m. - 4:15 p.m.


08A. ADA - Latest Developments and Cutting Edge Issues

  • ADA Amendments Act and EEOC Regulations:
  • The brave new world of "substantially limits" and "major life activities"
  • "Regarded as" claims
  • The employee with bad behavior: is "reasonable accommodation" required?
  • The near extinction of "mitigating measures"
  • The expanded definition of disability: how should institutions change their policies and practices?

Robert Rieder, Moderator, The University of Alabama System

Darrell VanDeusen, Kollman & Saucier, P.A.

Susan Wheeler, James Madison University


08B. Taking a Faculty Academic Misconduct Case to Jury Trial

  • Reviewing research misconduct rules
  • Handling internal research misconduct cases
  • Setting cases up for trials and forum selection
  • Quasi judicial immunity
  • Issues that arise at trials (Ward Churchill case in particular)
  • Jury selection in faculty cases

Monica Barrett, Moderator, Rutgers, The State University of New Jersey

Theodora Lee, Littler Mendelson, P.C.

Patrick O'Rourke, University of Colorado


4:30 p.m. - 5:30 p.m.


09A. Whistleblower Issues Including the False Claims Act Amendments

  • Discussion Group

Lisa Estrada, Arent Fox LLP


09B. Current Immigration Issues

  • Discussion Group

Nancy Williamson, University of Maryland University College


09C. FMLA and Other Leave Issues

  • Discussion Group

Amy Foerster, Saul Ewing LLP

Darrell VanDeusen, Kollman & Saucier, P.A.


09D. Employee Benefits Including Early Retirement Incentives

  • Discussion Group

Tara Schulstad Sciscoe, Ice Miller LLP


09E. Tenure Policy Issues

  • Discussion Group

Ellen Babbitt, Franczek Radelet P.C.


Friday, March 19, 2010


7:30 a.m. - 8:30 a.m.


Continental Breakfast


8:30 a.m. - 9:45 a.m.


10. Navigating the Ethical Labyrinth

  • Who is the client?
  • What are the lawyer's duties to preserve evidence and to prevent perjury?
  • How do conflicts arise and how can they be addressed?
  • How can confidentiality and privilege be used and not abused?

Maya Kobersy, Moderator, University of Michigan

Leonard Niehoff, University of Michigan

Daniel Sharphorn, The University of Texas System


10:00 a.m. - 11:15 a.m.


11. When Difficulty Justifies Discharge: Managing the Risks of Problem Employees

  • Employees who think attendance is optional
  • Leaves of absence that never seem to end
  • Performance that chronically falls short
  • Employees in need of "attitude adjustment"
  • Faux whistleblowers: the troublemaker's "Hail Mary" (or "Sanctuary")
  • Employer pre/post nuptials: last chance and severance agreements

Margaret Wu, Moderator, University of California

Jeffrey Brown, Payne & Fears LLP

Kelly Jennings Yeoman, Vorys, Sater, Seymour and Pease LLP


11:30 a.m. - 12:30 p.m.


12. The Graying of the Workforce and Resultant Implications for Reductions in Force

  • Demographics of today's higher education workforce
  • Age discrimination - new cases, new enforcement trends
  • Latest OWBPA releases: Statutory requirements applicable to mass layoffs; Crafting effective, honest explanations that comply with OWBPA; Handling performance related terminations arising during mass layoff; 11th Amendment Immunity
  • Early retirement alternatives
  • Additional tips for managing potential age discrimination claims on campus

Elise Traynum, Moderator, Hastings College of the Law

Ellen Babbitt, Franczek Radelet P.C.

Donald Newman, California State University