Labor and Employment Section Fall Meeting 2024

11:00 a.m.

Registration and CLE Program Check-In – Dollar Island Foyer

12:00 p.m.

Boxed Lunch

12:15 p.m. – 12:30 p.m.

Welcome & Introduction – Dollar Island W + E

Opening Remarks: Loren Gesinsky, Esq., Section Chair

12:30 p.m. – 1:45 p.m.

Section 7 Rights – What Do They Apply To, To Whom Do They Apply, When Do They Apply, and Where Do The Lines Begin?

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.

Speaker

Linda M. Leslie, Esq. | Regional Director of Region 3 National Labor Relations Board (NLRB), Buffalo, NY

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

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

Moderator

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

1:45 p.m. – 2:00 p.m.

Break

2:00 p.m. – 3:15 p.m.

“Can We Talk” … The Latest on Rule 4.2 and 4.3 of the NY Rules of Professional Responsibility

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.

Speaker

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

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

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

3:15 p.m. – 3:30 p.m.

Coffee Break

CONCURRENT WORKSHOPS

3:30 p.m. – 4:20 p.m.

Workshop A – Untangling Employee Leave Laws

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.

Speaker

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

Marlin Duro-Martinez, Esq. | Associate Seyfarth Shaw LLP New York, NY

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

Moderator

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

3:30 p.m. – 4:20 p.m.

Workshop B - Public Sector Employees’ Individual Rights: Engaging in Free Speech, Association, Off-Duty Conduct, Political Activities, Social Media Use, and the Like

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.

Speaker

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

3:30 p.m. – 4:20 p.m.

Workshop C – Cutting Edge Issues in Employment Arbitration

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.

Speaker

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

6:00 p.m.

Reception – Dollar Island Terrace

7:00 p.m. – 8:30 p.m.

Dinner – Dollar Island Terrace

7:30 a.m. – 9:00 a.m.

Continental Breakfast – Dollar Island W + E

8:00 a.m. – 8:55 a.m.

Committee Breakfast Meetings

9:00 a.m. – 9:10 a.m.

Welcome and Introduction

9:10 a.m. – 10:25 a.m.

NY Labor Law 740

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.

Speaker

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

10:25 a.m. – 10:40 a.m.

Coffee Break

10:45 a.m. – 12:00 p.m.

Restrictive Covenants Today: Are Non-Competes on the Way Out?

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 non­compete 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 chances of passage, and look at the landscape of these provisions long criticized for suppressing competition and unfairly restricting employee mobility.

Speaker

Prof. 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

1:00 p.m. – 4:00 p.m.

On-Site Activities

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

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

5:30 p.m. – 6:30 p.m.

Reception

7:30 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 Meeting