Labor and Employment Law Section Fall 2024 Meeting

AGENDA:

7.0 MCLE Credits (5.5 MCLE Credits in Areas of Professional Practice; 1.5 MCLE Credits in Ethics & Professionalism)

Friday, September 27, 2024

• 11:00 a.m. Registration and Check-In | Dollar Island Foyer
• 12:00 p.m. Boxed Lunches | Dollar Island Foyer
• 12:15 p.m. – 4:20 p.m. CLE Programs | Dollar Island W + E

Welcome Remarks

Loren Gesinsky, Esq., Seyfarth Shaw LLP, New York, NY

A. Plenary One – Section 7 Rights - What Do They Apply To, To Whom Do They Apply, When Do They Apply, and Where Do The Lines Begin? - 12:30 p.m. – 1:45 p.m. | (1.5 MCLE Credits in Areas of Professional Practice) 

The question of what impinges on the Section 7 rights of employees is of paramount importance to unions, employers, and employees insofar as it has relevance in the unionized and non-unionized context. Within the last eighteen months, the National Labor Relations Board (“NLRB) has indicated that the proffer, maintenance, and enforcement of confidentiality and non-disparagement clauses in severance agreements can violate the National Labor Relations Act (“NLRA”). In addition, the NLRB General Counsel has asserted that non-compete clauses may also violate the Act which opens the door as to whether Training Repayment Agreement Provisions may do the same under certain circumstances. This workshop will discuss the implication of how Board decisions and agency directives impact the critical question as to the rights and obligations of Employees and Employers in both the unionized and non-unionized context.

Panelists:

Alicia P. Stanley, Esq., Senior Field Attorney, National Labor Relations Board, Albany, NY

Sarah E. Ruhlen, Esq., Partner, Sarah Ruhlen Law Firm PLLC, Syracuse, NY

Howard M. Wexler, Esq., Partner, Seyfarth Shaw LLP, New York, NY

Moderator:

Andrew P. Scott, Legal Fellow, NYSUT Office of General Counsel, New York, NY

B. Plenary Two – "Can We Talk" ... The Latest on Rule 4.2 and 4.3 of the NY Rules of Professional Responsibility - 2:00 p.m. – 3:15 p.m. | (1.5 MCLE Credits in Ethics & Professionalism)

Rule 4.2 precludes attorneys from speaking with a represented party. The rule also precludes attorneys from scripting a client’s communication with a represented party. What are the limits of Rule 4.2? When is scripted communication permitted? How much scripted communication is too much? Are the rules different when the represented party is an in-house counsel? And what about the ever-present question of a “Reply All” e-mail? On the other hand, Rule 4.3 imposes responsibilities on attorneys when speaking with an unrepresented party on behalf of a client—including the responsibility of correcting any misunderstanding about the attorney’s role. This plenary session will address numerous questions as we ponder the extent of Rules 4.2 and 4.3 in the realm of labor and employment law.  

Panelists:

R. Scott DeLuca, Esq., Of Counsel, Ogletree, Deakins, Nash, Smoak & Stewart PC, Buffalo, NY

Cara Greene, Esq., Partner, Outten & Golden LLP, New York, NY

Kaylin L. Whittingham, Esq., Principal, Whittingham Law, New York, NY

Concurrent Workshops (3:30 P.M. – 4:20 p.m.) | Select one at the time of registration

Workshop A – Untangling Employee Leave Laws (1.0 MCLE Credit in Areas of Professional Practice)

There are a myriad of federal, state, and city leave laws that serve a variety of purposes. Knowing which law to apply and under what circumstances has become a major challenge for employees and employers alike. Our panelists will guide us through the maze of leave legislation to a greater understanding of how best to utilize this critical jurisprudence.

Panelists:

Miriam F. Clark, Esq., Partner, Ritz Clark & Ben-Asher LLP, New York, NY

Bridget Holohan Scally, Esq., Deputy Counsel to the New York State Department of Labor, Albany, NY

Joshua D. Seidman, Esq., Partner, Seyfarth Shaw LLP, New York, NY

Moderator:

Joan C. Lenihan, Esq., Joan C. Lenihan, Attorney at Law, New York, NY

Workshop B – Public Sector Employees’ Individual Rights: Engaging in Free Speech, Association, Off-Duty Conduct, Political Activities, Social Media Use, and the Like (1.0 MCLE Credit in Areas of Professional Practice)

This panel will explore the rights, and limits on those rights, for public sector employees to engage in free speech and other on and off-the-clock personal activities.

Panelists:

Monica R. Lenahan, Esq., Partner, Whiteman Osterman & Hanna LLP, Albany, NY

Jennifer Zegarelli, Esq., Senior Counsel, CSEA, Inc., Albany, NY 

Moderator:

Alyssa L. Zuckerman, Esq., Member, Keane & Beane, P.C., Melville, NY

Workshop C – Cutting Edge Issues in Employment Arbitration (1.0 MCLE Credit in Areas of Professional Practice)

Employment arbitration, whether embraced or reviled, plays a major role in the resolution of employment disputes. Congress and the courts have increasingly weighed in on the scope of claims subject to arbitration through, for example, the End Forced Arbitration Act or recent case law on the enforceability of arbitration agreements and arbitrators’ award. This Panel will review and debate -- from the perspective of employers, employees, and neutrals -- these developments along with topics such as class action waivers, mass arbitration, claim arbitrability, and discovery and motion practice in employment arbitration.

Panelists:

Jeremiah Iadevaia, Esq., Partner, Vladek, Raskin & Clark, P.C., New York, NY

Ephraim J. Pierre, Esq., Partner, Seyfarth Shaw LLP, New York, NY

Moderator:

Alfred G. Feliu, Esq., Feliu Neutral Services LLC, New Rochelle, NY

Conclusion of Friday Programming

Evening Activities

• 6:00 p.m. – 7:00 p.m. Welcome Reception | Dollar Island Terrace | The Sagamore
• 7:00 p.m. – 9:00 p.m.. Welcome Dinner | Dollar Island Terrace | The Sagamore

Saturday, September 28, 2024

• Morning Activities
• 7:00 a.m. - 9:00 a.m. Continental Breakfast | Dollar Island W+E
• 7:00 a.m. - 12:00 p.m. Registration and Check-In | Dollar Island Foyer
• 8:00 a.m. – 8:55 a.m. Committee Breakfast Meetings
• 9:00 a.m. – 12:00 p.m. CLE Program | Dollar Island W+E

Welcome Remarks

Loren Gesinsky, Esq., Seyfarth Shaw LLP, New York, NY

A. NY Labor Law 740 – 9:10 a.m. – 10:25 a.m. (1.5 MCLE Credits in Areas of Professional Practice)

State whistleblower developments: Issues and cases under the new Labor Law 740, including burdens of proof, requirements for an adverse action, whether employees can "double dip" by claiming they were retaliated against for complaining that an employer was violating an anti-discrimination statute, and the implications for out-of-state employees of New York companies.

Panelists:

Louis P. DiLorenzo, Esq., Member, Bond, Schoeneck & King PLLC, New York, NY

Marc A. Susswein, Esq., Law Office of Mark Susswein PC, New York, NY

Moderator:

Sharon P. Stiller, Esq., Of Counsel, Abrams Fensterman, LLP, Rochester, NY

Refreshment Break | Dollar Island W+E

B. Restrictive Covenants Today: Are Non-Competes on the Way Out? – 10:45 a.m. – 12:00 p.m. (1.5 MCLE Credits in Areas of Professional Practice)

Non-competition agreements, long disfavored in California and a few other jurisdictions, may become a thing of the past - or at least face declining use and acceptance - in the near future. In April 2024 the Federal Trade Commission issued a final rule banning most non-compete provisions. The FTC rule would pre-empt state laws that permit non-compete provisions and could have broader implications as well, such as restricting the use of clawback provisions in employment agreements and elsewhere. For the time being, however, the status of the rule (which was to take effect on September 4) is uncertain after a U.S. District Judge in Texas ruled that it exceeded the FTC's rulemaking authority. That decision is likely to be appealed. Meanwhile, in New York, in its next session the legislature is likely to re-introduce a ban on non-competes in the hope that the Governor will not veto it, as she did in 2023, and the New York City Council introduced a broad ban on non-competes in March. Our panel will explore the content of and prospects for the FTC rule, assess the status of non-competes as some states move to restrict or abolish them, examine any proposed New York legislation and its chance of passage, and look at the landscape of these provisions long criticized for suppressing competition and unfairly restricting employee mobility.

Panelists:   

Professor Miriam A. Cherry, Faculty Director, Center for Labor & Employment Law, St. John’s University School of Law, Queens, NY

Jason B. Levin, Esq., Principal, Jackson Lewis P.C., New York, NY

Laura Padin, Esq., Director of Work Structures, National Employment Law Project, Washington, D.C.

Moderator:

Geoffrey Mort, Esq., Of Counsel, Kraus & Zuchlewski, New York, NY 

Conclusion of Saturday Programming

12:00 p.m. Lunch on your own

• Afternoon Activities
• 2:00 p.m. – 3:00 p.m. The Morgan – Some of the best views of the Adirondacks can be seen while cruising through the Narrows section of Lake George. 
• 2:00 p.m. – 3:00 p.m. Pickleball Lessons and open-play 
• 1:00 p.m. 18-hole Round of Golf at the Sagamore (Boxed Lunches Included) - $190.00 per person
• 1:00 p.m. – 4:00 p.m. Nature Trails at the Sagamore 
• Evening Activities
• 5:00 p.m. – 6:00 p.m. Closing Reception at the Sagamore
• 7:00 p.m. – Open Dinner Reservations (For more information and to add your name to a reservation, please email Emily Kurtzner at [email protected]) 

Sunday, September 29, 2024

• Morning Activities
• 7:00 a.m. - 9:00 a.m. Continental Breakfast | Diamond Island Foyer
• 8:30 a.m. – 10:00 a.m. Executive Committee Meeting | Dollar Island West

Conclusion of the Meeting