2021 UPPER MIDWEST EMPLOYMENT LAW INSTITUTE
Institute
ITEM #:  1033212101   |   EVENT CODE:  353496    |   CREDIT STATUS:  APPROVED
MEMBER PRICE
$695.00
STANDARD PRICE
$795.00
MSBA MEMBER, NEW LAWYER, AND OTHER DISCOUNTS, IF APPLICABLE, WILL BE APPLIED DURING CHECKOUT.

IN-PERSON PASSHOLDERS:
You may use your Pass to register for the live webcast at no charge.

Monday, May 24, 2021 - Tuesday, May 25, 2021

8:50 AM - 5:00 PM   |   Check-In:  8:05 AM

LIVE ONLINE ONLY – NO IN-PERSON ATTENDANCE
In-Person Passholders – You may use your Pass to register for the live webcast at no charge.

2021 Upper Midwest Employment Law Institute

Take Part in the Nation’s Best Employment Law Event – Online in 2021!


The comprehensive, practical content of the Upper Midwest Employment Law Institute is the trusted, convenient way to get the important, practical advice you need. It’s also a highly efficient and one-of-a-kind chance to compare your practices with what the team of 120+ Institute faculty members are advising their clients.

Guest speakers include:

  • Joseph Hughes, Jr., Deputy Assistant Secretary for Pandemic and Emergency Response | OSHA
  • Jessica Looman, Principal Deputy Administrator, Wage and Hour Division | USDOL
  • Carol Miaskoff, Acting Legal Counsel | EEOC
  • Chai Feldblum | DEI Consultant | Former EEOC Commissioner (2010 to 2019)
  • Joseph Fuller, Professor of Management Practice, Co-Lead, Project on Managing the Future of Work | Harvard Business School
  • Mike Jackson, Assistant General Counsel/Senior Director, Global Workplace Investigations Team; Diversity and Inclusion Lead, Corporate, External and Legal Affairs | Microsoft

Powered by the EventMobi platform, the 2021 Institute will feature:

  • Annual Updates on New Laws, New Rules, New Cases and New Trends
  • 70+ New and Updated Sessions – All Designed to Provide Practical Analysis, Tips and Strategies
  • Helpful Session Materials, Posted Online
  • New Handbook on Diversity, Equity and Inclusion in the Workplace
  • 15.0 Live Credit Hours (12.0 at the Institute, 3.0 in free post-Institute webcasts)
  • Access to View All Breakouts for 1 Year Following the Institute (not for CLE credit)
  • $100 in Minnesota CLE Bonus Bucks
  • 3 Post-Institute Webcasts
  • And So Much More!


Co-sponsored by Minnesota CLE, the MSBA Labor and Employment Law Section and the Twin Cities Society for Human Resource Management

All times listed are CDT.


Day 1 – Monday, May 24, 2021


8:05 – 8:50 a.m.
JOIN


8:50 – 9:00 a.m.
WELCOME & INTRODUCTION


9:00 – 9:30 a.m.
The Future of Work
“Tackling the changing nature of work will require companies to move beyond outdated workforce development models and human resource practices. Instead, they will need to embrace new ideas, create new institutions, and forge new alliances with external stakeholders – in ways that build competitive advantage for the firm and strengthen the communities in which they operate.” This statement from the Harvard Business School’s Project on Managing the Future of Work centers the research it does. The co-leader of this initiative – Professor Joseph Fuller – kicks off our conference with insights about the next developments post-COVID and further beyond, including the evolving on-demand workforce, on-premises vs. remote work, technology and artificial intelligence, workforce demographics, and more.
– Joseph B. Fuller


9:30 – 10:00 a.m.
Insights from Microsoft’s Diversity and Inclusion Lead for Corporate, External and Legal Affairs: The Power in – and Potential Pushback from – Stating Concrete D&I Goals and Being Transparent with Diversity Data
In June 2020, Microsoft announced that – as one part of its diversity, equity, and inclusion efforts – it “will double the number of Black and African American people managers, senior individual contributors, and senior leaders in the United States by 2025.” Several months after that announcement, OFCCP contacted Microsoft asking whether that commitment to a specific number implied that Microsoft may be planning employment actions illegally based on race. Mike Jackson, a senior in-house counsel and Microsoft’s Diversity and Inclusion Lead for Corporate, External and Legal Affairs, joins us to share his insights on pivotal decision-making for diversity, equity, and inclusion efforts when weighing the rewards and risks of stating clear numeric goals and being public with an entity’s diversity data.
– Mike Jackson
– Nikki Odom (moderator)


10:00 – 10:15 a.m.
BREAK FOR A GOOD CAUSE
Check out the Institute’s online gathering space! There, during all the breaks, you can easily meet up with other attendees – old friends and new acquaintances. First you just need to get set up in the gathering space – and that’s quick and easy. To encourage you to check things out, Minnesota CLE will offer this incentive: The more attendees who login to that gathering space during these first two breaks, the higher the donation amount that Minnesota CLE will give a local charitable organization. It’s a win-win! (More details at the Institute.)


10:15 – 11:15 a.m.
Choose the MAIN PLENARY or the ALTERNATE PLENARY

MAIN PLENARY

10:15 – 10:45 a.m.
New Administration, New Congress, New Supreme Court – Key Developments for the Employment Law Practitioner
This session features the insights of experienced employment attorney and former EEOC commissioner (2010-2019), Chai Feldblum. She will discuss new developments and predicted changes for federal agency policy, rules, and enforcement – as well as potential new legislation and new US Supreme Court decisions – and how these developments affect the workplace and how we advise our clients.
– Chai R. Feldblum

10:45 – 11:15 a.m.
State and Local Employment Law Hotspots – National Trends
State and local governments continue to increasingly regulate the workplace. This fast-paced session will focus on recent and anticipated trends in state and local employment laws across the country, including laws addressing paid leave, independent contractor vs. employee classification, minimum wage, wage theft and other wage and hour laws, pay equity, sexual harassment training, the legalization of recreational marijuana, limitations on non-competition restrictions, and, of course, the many executive orders, laws, and ordinances that have been passed to address the COVID pandemic.
– Daniel G. Prokott


ALTERNATE PLENARY

10:15 – 11:15 a.m.
Employer Check-Up — Working Effectively with Employees with Mental Health Conditions
Employee mental health conditions can present unique issues and considerations – and that is more true than ever in the midst of a pandemic that has dramatically altered the workplace and increased the number of people experiencing mental health issues. This session will explore common issues including: when does an employer know an employee has a mental health condition; what are potential reasonable accommodations; what if an employee engages in misconduct or experiences performance issues; what if an employer has safety concerns; and when can an employer get more medical information.
– Jana O’Leary Sullivan


11:15 – 11:30 a.m.
BREAK FOR A GOOD CAUSE
Check out the Institute’s online gathering space! There, during all the breaks, you can easily meet up with other attendees – old friends and new acquaintances. First you just need to get set up in the gathering space – and that’s quick and easy. To encourage you to check things out, Minnesota CLE will offer this incentive: The more attendees who login to that gathering space during these first two breaks, the higher the donation amount that Minnesota CLE will give a local charitable organization. It’s a win-win! (More details at the Institute.)


11:30 a.m. – 12:30 p.m.
BREAKOUT SESSION A

001
The Future of Work – Q&A with Joe Fuller

Opportunity for a deeper dive and Q&A with Joe Fuller as a follow-on session to his plenary presentation. Professor Fuller is the co-leader of Harvard Business School’s Project on Managing the Future of Work.
– Joseph B. Fuller
– Mary B. Thomas (moderator)

002
4 Rules of Discipline Documentation – 
Includes comparative examples of ineffective and effective disciplinary memos!
A legal “how-to” guide for documenting and communicating employee performance and behavior problems. This fast-paced session is filled with examples of good and bad documentation, plus instruction on how to successfully document to improve performance and prepare for litigation.
– Robert C. Boisvert

003
“The Question I Get Most” – More Real-World Leave Scenarios and Real-World Solutions

Ask employment law advisers and almost invariably they'll tell you that questions about leave are consistently among those they are most asked about. Using case studies, experienced employment attorney Penny Phillips will examine best practices when employees need leave.  What are the employer’s legal rights, what are the employee’s legal rights, and how do various difficult situations play out? What are mistakes made by employers in these leave request scenarios – and how do you help your client avoid them?
– Penelope J. Phillips

004
Marijuana and CBD Use by Employees in 2021 – The Critical Questions

With the new Biden Administration, is anything changing with respect to the federal stance on marijuana? What are the trends in legalization of medical and recreational marijuana at the state level? Which states provide employment protections for marijuana use – and of those that do, what are the types of protections? How does the trend of legalized marijuana use impact employer drug testing policies? What about CBD use? Is medical marijuana use protected under workplace disability laws? And more answers to the questions we’re getting asked each day about this hot topic!
– Catherine A. Cano

005
Complex Discipline and Discharge Issues Facing In-House Counsel in 2021

One of the most complicated issues facing in-house counsel continues to be how to deal with difficult employment issues that are likely to result in lawsuits, even if an employer does “everything right.” Our seasoned panel of attorneys will review some of the more difficult employee situations encountered in the workplace, such as dealing with long-term employees, valuable employees who also create employment liability hazards, disability issues that may not be obvious, and a lack of objective documentation supporting a termination decision. The panel will review these and other issues to provide practical advice on how to handle difficult workplace situations and minimize the risk of litigation.
– Jana E. Bruder, Ann Clowser & Michelle A. Miller
– Michael J. Moberg (moderator)

006
Sex Harassment – The Newest Developments and How They Impact Advisors, Litigators, and In-House Counsel

Plaintiff and defense analysis of the latest case decisions and other developments in workplace sex harassment, and the implications for advisors, litigators, and in-house counsel.
– Howard Bolter & Judy Langevin

007
COVID Employment Litigation – Statistics, Trends, and Case Updates

Experienced employment litigators – one plaintiff-side, one defense – will give you the rundown on helpful statistics and trends on employment litigation stemming directly from the COVID pandemic, plus discussion of noteworthy cases that courts have ruled on and ones to watch.
– Jessica D. Causgrove & Anna P. Prakash

008
Retaliation and Whistleblower Claims – Navigating 4 Crucial Issues

Repeated at Super Breakout #4 on Tuesday
A panel composed of union, employer, employee, and NLRB counsel analyze legal, strategic and other considerations surrounding decisions at the following crucial points of retaliation and whistleblower matters:

  1. When counseling potential clients, how should lawyers talk to individuals about the practical impact of becoming a whistleblower, and the potential challenges and negative consequences that may arise, even for a successful whistleblower? 
  2. When counseling employers, how can an attorney most effectively advise their clients about how to prevent reprisal claims?  What tips can help an employer balance the risk of a retaliation claim against the legitimate need of an employer to manage a current employee’s work performance and behavior?
  3. Is there a difference between situations where an employee refuses to perform a job duty based on it being an alleged violation of an agency’s guidance (for example COVID-related guidance), as opposed to an agency rule?  What are the risks and considerations if an employer wants to discipline the employee for failure to perform the duty?
  4. If a client has multiple and parallel potential causes of action available, what factors should an attorney and their client consider, when selecting which claims and remedies to pursue?

– Justin D. Cummins, Gina K. Janeiro, Meg Luger-Nikolai & Benjamin Mandelman
– Timothy Y. Wong (moderator)

009
Judicial Deference to Arbitrators in Government Employee Misconduct Matters – Where We Are Now, Where We May Be Going, and How It Impacts Your Clients
Longstanding principles and applications of judicial deference to arbitrator authority are being scrutinized and challenged by the public’s perception of lack of accountability and transparency in government employee misconduct matters. What deference standards currently apply, and what are the arguments supporting or criticizing those standards? How might calls for reform shape the arbitration process going forward? And how might those calls for reform impact your clients now, despite the uncertainty of whether or in what form proposed changes may occur?
– Stephen Befort, Javier Morillo & James R. Rowader
– Patricia Y. Beety (moderator)


12:30 – 1:30 p.m.
LUNCH BREAK – INCLUDES 15 MINUTES WITH A SURPRISE GUEST!
Last year it was Whisper the barn owl from the University of Minnesota Raptor Center. Who will it be in 2021?


1:30 – 2:30 p.m.
BREAKOUT SESSION B

101
Hiring 101 – What Can Companies Do and Say?

What can companies do and say when posting job positions, recruiting and screening job applicants, and interviewing individuals for a job?  Can they review applicant social media posts?  If so, how far can they go?  What about pre-employment testing, such as medical exams or drug and alcohol testing?  Once a hiring decision is made, what’s the best way to communicate the decision to the selected applicant – and those who were not selected?  The hiring decision is fraught with legal risks and you don’t want to miss this session!
– Susan E. Ellingstad

102
How to Structure and Conduct Investigations Regarding Retaliation Claims

As of the most recently released statistics out of the EEOC, retaliation continues to be the most frequently filed charge. This session provides a roadmap for preparing for and conducting investigations into retaliation claims. Learn how to tackle the special challenges that come into play in these types of cases.
– Fran A. Sepler

103
Working Parents and Other Caregivers – Practical Advice for Real-World Scenarios Regarding Their Workplace Rights and Responsibilities

Employers have always needed to stay informed of their responsibilities and rights with respect to working parents and other caregivers of dependent family members, ensuring that the employer’s policies and practices are in line with applicable law. Now the pandemic has added once-in-a-lifetime complexities and extraordinary stressors to account for, for employees and employers alike. Join experienced employee and employer counsel as they analyze and provide practical advice, using real-world scenarios.
– Jenny Gassman-Pines & Steven Andrew Smith

104
OSHA Investigations and COVID Enforcement Trends – Be Aware and Be Prepared!

Employers are required to provide safe and healthy workplaces for every employee, and COVID-19 has made that task even more difficult. This session will touch on what is trending in OSHA enforcement relating to COVID-19 and will also walk you through the OSHA inspection process and provide tips on managing an inspection if/when OSHA comes calling.
– Karen M. Charlson

105
Where Did Everybody Go? Best Practices for Managing a Remote Workforce

The COVID pandemic caused a sudden and mass transition of employees to remote work.  As this became a “new normal,” employers have faced a wide variety of challenges such as supervising from a distance, maintaining team engagement, determining how tax and employment laws apply to employees in new locations, maintaining data security in employees’ homes, reimbursing employee costs, and the duty to bargain over these issues in union environments.  This panel of veteran in-house lawyers will share practical advice for navigating these issues and more.
– Zeb Curtin, Jen Dellmuth & Laurie Olson
– David J. Lauth (moderator)

106
2021 ADA Case Law Update – Key New Cases and Their Practical Implications

– Danielle W. Fitzsimmons & Matthew S. Nolan

107
U.S. District Court Judges Panel – Summary Judgment, Injunctions, and More!

Hear what the Article III judges think about employment law cases, and find out what works and what does not work. This panel will provide insight into how the federal judges approach employment law disputes that reach the United States District Court for the District of Minnesota.
– Hon. Michael J. Davis, Hon. Donovan W. Frank & Hon. Eric C. Tostrud
– Patrick R. Martin (moderator)

108
Litigating Reduction-in-Force Cases – Strategic Discovery and Motion Practice

Plaintiff and defense counsel perspectives on an important, timely topic – application of strategic and other considerations in critical discovery and motion practice matters in RIF cases. Sara and Chris will talk about (1) when to discuss early resolution; (2) how to conduct effective, strategic discovery; (3) whether to move for summary judgment; and (4) whether COVID has changed these analyses.
– Chris D. Jozwiak & Sara Gullickson McGrane

109
The 4th Amendment and Electronically Stored Information – Legal Issues in Public Sector Employment Investigations

Smart phones and watches, social media, e-mails, and texts have changed how public sector employers investigate allegations of employee misconduct.  What can public sector employers permissibly search without violating the 4th Amendment? This session answers this critical question with application to real-world examples, with added insights on working with law enforcement.
– Debra M. Corhouse & Jennifer K. Earley


2:30 – 2:45 p.m.
ACTIVITY BREAK
Sponsored by Halunen Law


2:45 – 3:45 p.m.
BREAKOUT SESSION C

201
The Termination Meeting, When It’s In-Person and When It Must Be Virtual – A Step-by-Step Guide

You know you must terminate; the question is how to do so without inviting lawsuits. Learn how to plan and execute the termination meeting – including talking points that deter problems and increase comfort and respect, and potential questions and how to answer them; practical tips on what and how to collect employer property; and more. This session will include valuable insights for when you must carry out the termination meeting remotely.
– Sheila Engelmeier

202
LGBTQ+ Employee Rights – 17 Common Questions and Their Answers

Answers to important questions about legal protections afforded to LGBTQ+ workers. For example, “What are the compliance implications of the Supreme Court’s June 2020 Title VII ruling in the Bostock companion cases?” “What are an employer’s obligations related to restrooms, locker rooms and the like?” “What are some of the best practices for creating a nondiscriminatory and inclusive workplace?” And more!
– Megan L. Anderson & Joni M. Thome

203
COVID and Post-COVID Disability Accommodations – How to Successfully Manage Accommodations Through Change

A practical discussion of real-world hypotheticals exploring disability accommodation requests, the interactive process, evaluation of what constitutes undue burden on the employer, and oversight of how an implemented accommodation is working for the employee and the employer. Within this discussion, Penny also will share her insights on how pandemic-related accommodations for employees both with and without disabilities may impact disability accommodations post-COVID.
– Penelope J. Phillips

204
Practical Tips for Creating a Diversity, Equity, and Inclusion Policy and Implementing Effective Programs

1.0 elimination of bias credit applied for
This session covers the importance of formal DEI policies and programs and provides hands-on guidance for how your organization can develop and implement a DEI policy and implement effective DEI programs to accomplish your organization’s DEI goals. Find out what works and how to avoid pitfalls in the assessment of your organizational culture; creation of DEI policies and programs; and implementation of a DEI action plan.
– Rebecca J. Bernhard

205
Navigating Privacy and Employment Risk in Managing COVID Testing, Vaccinations, and Exposure Mitigation

For employers trying to determine how to deal with COVID-19, a clear course of action remains elusive and presents businesses with new and continuing challenges as they consider workplace safety requirements. This session will provide the most up-to-date information on the latest employment and privacy law and regulatory developments to consider when mitigating risk to your employees, customers, and others. Our employment and privacy law experts will discuss new developments related to these issues, including: what steps employers should take to implement a testing program; updates on guidelines related to COVID-19 vaccinations for the workforce, including notice, authorization, confidentiality and response; competing privacy and data security concerns, including the scope of medical and other information employers can collect, retain, store, and access from employees, customers and facility visitors alike; notice and consent obligations; and legal risks associated with data breaches.
– Mandana Massoumi & Brandon P. Reilly

206
New OFCCP Developments – What Federal Contractors Need to Do Differently

During this session, we will identify and discuss the practical implications of new developments out of the OFCCP – both in the months immediately prior to the end of the Trump administration and, now, new and anticipated developments from the Biden OFCCP. Concretely speaking, what has changed or is likely to change for federal contractors – and what remains the same – in light of: the OFCCP’s November 2020 issuance of a major new rule relating to enforcement and standards of proof; Biden’s revocation of the Trump executive order on limiting what diversity and inclusion training may discuss; the ways in which the OFCCP is likely to move forward to prioritize racial equity and gender equality; and more. Additionally, with the Black Lives Matter movement motivating many employers to enhance their diversity, equity, and inclusion efforts, we will discuss the opportunities and pitfalls for federal contractors in pursuing aggressive diversity programs.
– Chris Gokturk & David J. Goldstein

207
New Wage and Hour Cases and Trends in 2021

Wage-hour: Always an important area for updating, and even more so with the change in Administration and the implications of COVID. What claims are being asserted? What industries are being targeted? What are the case results? Practical guidance for litigators as well as for advisors looking to help mitigate wage-hour exposure.
– Michele R. Fisher & Joseph K. Mulherin

208
What Really Matters When Injunctive Relief Is at Issue in an Employment Dispute – and How the Circumstances of the Pandemic May Dramatically Impact Your Arguments

Barb D'Aquila and Larry Schaefer cut to the core of the decision points that make or break requests for temporary or permanent injunctive relief in employment cases – including when and how the circumstances of the pandemic may color your arguments even if the case isn’t directly related to COVID-19.
– Barbara D’Aquila & Lawrence P. Schaefer

209
2021 Public Sector Case Law Update – Highlighting 11 Key Federal and Minnesota Cases

Experienced public sector attorney Shelley Carthen Watson identifies 11 key cases from the past year in federal and state court actions that every public sector employment attorney should be thinking about. And she’ll share her insights about the practical implications of each case for your litigation, arbitration, and advisory matters.
– Shelley Carthen Watson


3:45 – 4:00 p.m.
BREAK – YOGA!
Reset your posture with a short guided yoga session.


4:00 – 5:00 p.m.
BREAKOUT SESSION D

301
FMLA Basics – What You Need to Know About FMLA Eligibility, Coverage, and Leave Requirements

After almost 30 years, compliance with the FMLA still puzzles many. If you are new to the FMLA or just need a refresher on the FMLA’s eligibility, coverage, and leave requirements for parenting, serious health conditions, and certain military-related absences, then this session is for you! Lenny will also address the status of the pandemic-related FMLA emergency leave and whether it even remains in effect in 2021.
– Leonard B. Segal

302
Real Solutions to Religious Accommodation in 2021 – Including Updated EEOC Guidance

The increasing demand to accommodate diverse religions in the workplace is challenging. This session will focus on the practicalities of providing religious accommodation and on recent legal guidance - including the EEOC's guidance updated in January. We will look at strategies for responding to real life scenarios including COVID vaccination exemptions, scheduling requests, requests to be excused from dress code and grooming standards, and modification to job duties.
– Shirley O. Lerner

303
Practical Tips for Successful Data Retention and Disposal Policies and Practices

In this session, you’ll get an overview of the legal framework governing data retention while learning concrete steps for effectively implementing the policies, training, technology, and ongoing maintenance required to meet organizational needs and compliance requirements.
– Teresa M. Thompson

304
How to Respond to a Charge Filed with the EEOC or State Agency – A Checklist Approach

There are many process details, fact-gathering requirements, deadlines, and other critical tasks that accompany receipt of notice from the EEOC or a state human rights department that an employee or former employee has filed a charge of discrimination or harassment with them. Experienced employment attorney Ann Huntrods walks you through a checklist to help you make sure that you’re not missing anything. In the process, you’ll learn helpful practice tips, pitfalls to avoid, rules to follow, strategic considerations to ponder and more. Benefit from Ann’s experience as she shares the insights she has gained.
– R. Ann Huntrods

305
The Hybrid Workplace Revolution – How Employers Can Successfully Navigate Complex Decisions and Implementation

One senior market research analyst puts it this way, “Many companies succeeded working remotely in 2020 largely because everyone was doing it – there was no built-in preference for office workers or stigma against remote workers. Hybrid is going to make managing this difference harder.… It's no longer: ‘Do you offer remote work?’ But, do you offer it with enough organizational support so I can be as successful as the people who work in the office?” (Kathryn Vasel, The pandemic forced a massive remote-work experiment. Now comes the hard part, CNN Business, March 11, 2021) (quoting Andrew Hewitt of Forrester). This session tackles key employment law and HR challenges and provides practical tips in this quickly evolving area. Topics will include: How does an employer decide who can/must work from home and who can/must be onsite (on a full-time or part-time basis) – and are there possible employment law risks attendant to those decisions? If having at least some onsite work is determined to be desirable, how does an employer successfully map out the necessary logistics (e.g. schedules, workspaces) to meet those objectives? How does an employer make sure that mentoring, promotion, and other types of job opportunities that have traditionally involved in-person interactions continue successfully in a new hybrid environment? How does an employer effectively train managers to make and implement these decisions in a way that is compliant and effective? How does an employer address employees who want to have their primary work location be from home? What if that home is another state or country? And much more.
– Daniel G. Prokott & Nicole A. Truso

306
Pay Equity Best Practices

Get an overview of the Federal Equal Pay Act and significant cases and enforcement trends. Learn how to recognize and address the caretaker penalty and other common pay equity issues. Plus, tips and best practices for remediating and litigating pay equity issues.
– E. Meaghan Clayton, Sonia Miller-Van Oort & Kristin Jones Pierre

307
8th Circuit & Federal District Court Update

Focusing on the cases that impact employment law and litigation in the 8th Circuit.
– Cynthia A. Bremer & Justin D. Cummins

308
True or False? Test Your Anecdotal Assumptions Against an Empirical Study of Minnesota State and Federal Employment Law Cases

The results are in! Faegre Drinker has performed an extensive analysis of the employment cases filed in Minnesota state court and U.S. District Court of Minnesota from 2010-2020. How often are motions to dismiss granted? How long do decisions take to issue? When punitive damages are granted, what’s the range been? Hear about these and many other findings, test them against your own assumptions, and discuss key takeaways from what this research tells us.
– Terran C. Chambers, Charles F. Knapp & Samantha M. Rollins

309
Legal Ethics and the Sysdyne Defense in Restrictive Covenant Litigation – How the Employer’s “Get-Out-of-Jail-Free Card” Can Land Lawyers in Hot Water

1.0 ethics credit applied for
Restrictive covenant lawyers know that the advice-of-counsel defense to a tortious interference claim is a legal opinion stating that a prospective employee’s restrictive covenant agreement is unenforceable (the Sysdyne defense). But asserting that defense necessarily means some attorney-client privilege is waived.  How does the employer find separate opinion counsel to provide that opinion, provide enough facts to opinion counsel on which to ground the opinion, and communicate with litigation counsel about opinion counsel’s work, all without more broadly waiving the privilege than necessary? This panel will explore the ethical and practical implications of asserting the Sysdyne defense, including privilege waivers, joint representation issues, and what parts of the in-house counsel’s work are protected by attorney-client privilege in the first place.
– Katie M. Connolly & Joel O’Malley


5:00 – 6:00 p.m.
THE 2021 INSTITUTE RECEPTION – MIXOLOGIST INCLUDED!
Networking and meeting up with friends in face-to-face casual conversations in the Institute’s virtual gathering space. Plus a mixologist showing you how to shake up delectable cocktails and mocktails!
Sponsored by JacksonLewis



Day 2 – Tuesday, May 25, 2021


8:05 – 8:50 a.m.
JOIN


8:50 – 9:00 a.m.
WELCOME & INTRODUCTION


9:00 – 10:00 a.m.
Choose the MAIN PLENARY or the ALTERNATE PLENARY

MAIN PLENARY

9:00 – 9:30 a.m.
2021 Minnesota Update
New legislation, regulations, and case law, plus the latest on local ordinances.
– Shalanda D. Ballard

9:30 – 10:00 a.m.
2021 NLRB Update – New Decisions and Directions Implicating Both Union and Non-Union Workplaces
– Paul J. Zech


ALTERNATE PLENARY

9:00 – 10:00 a.m.
Avoiding 10 Discipline and Discharge Mistakes Employers Make
A plaintiffs’-side employment lawyer and an employer legal counsel – both with many years’ experience – share a rich set of insights to better meet the challenges in discipline and discharge situations. Learn 10 important lessons for employers: what mistakes to avoid and what to do instead.
– Kaarin Nelson Schaffer & Liane M. Wong


10:00 – 10:15 a.m.
BREAK


10:15 – 11:15 a.m.
Choose the MAIN PLENARY or the ALTERNATE PLENARY

MAIN PLENARY

10:15 – 11:15 a.m.
2021 EEOC, USDOL Wage and Hour, and OSHA Updates – From Senior Agency Leaders
In a panel moderated by the General Counsel of the Minnesota Department of Human Rights, you’ll hear the latest updates on federal agency guidance and rules, policy directions, and enforcement from:

  • Joseph Hughes, Jr., Deputy Assistant Secretary for Pandemic and Emergency Response, OSHA, Washington D.C.
  • Jessica Looman, Principal Deputy Administrator, Wage and Hour Division, USDOL, Washington D.C.
  • Carol R. Miaskoff, Acting Legal Counsel, EEOC, Washington D.C.

– Nick Pladson (moderator)


ALTERNATE PLENARY

10:15 – 11:15 a.m.
Everyday Conflict Management in the Workplace
Conflict is part of being human, and conflict within a workplace is inevitable. You may witness workplace conflict or experience it yourself over resources, styles, work pressure, roles, values, or policies. You may also see conflict situations playing out as the driving forces that have created the very workplace matters you’ve been entrusted to handle. In this session, Carolien Moors provides insights that will help you expand your conflict resolution approaches – insights gained from her Master degrees in psychology and education and her 29 years of experience in conducting executive coaching, running team sessions, and consulting on change management. Adding these new strategies to your toolbox can help you more effectively manage conflict between two or more parties and, as a result, help mitigate the tolls that workplace conflicts have on trust, collegiality, wellbeing, and efficiency – tolls that might also ultimately be the motivating factors for an employee to file a legal claim.
– Carolien Moors


11:15 – 11:30 a.m.
BREAK – POST A PICTURE OF YOUR PET!
Post a Pic of Your Pet #MNELI – Post a photo of your pet watching the Institute...or just taking a nap in the nearest sunbeam! Plus, enter to win a fun prize – anyone can enter, pet pic or no pet pic!


11:30 a.m. – 12:30 p.m.
BREAKOUT SESSION E

401
You Can Take That to the Bank – The Answers to 19 Key Employee Pay Matters

A fast-paced session that tests your knowledge – and gives the answers – regarding 19 pay questions in areas like calculating overtime pay on bonuses, final paychecks, training and travel time pay, payment of vacation time at separation, and more!
– Mary M. Krakow

402
Strategic Use of Employee Performance Improvement Plans – How to Develop, Implement, and Hold Employees Accountable – Including an Annotated PIP

With increasing frequency employers are turning to Performance Improvement Plans (“PIPs”) to set expectations and hold employees accountable in the workplace. When used effectively and strategically, PIPs can be a powerful tool to correct deficient performance or to move an employee out of the organization. This fast-paced session will focus on how to create and execute PIPS and avoid common mistakes that lead to legal exposure.
– Brian T. Benkstein

403
Hottest Issues in Employment Law for Healthcare Institutions – COVID Safety Protocols, Frontline Worker Mental Health, and More

– Krista Hatcher, Chelsey Jonason & Alissa Raddatz
– Sara Gullickson McGrane (moderator)

404
The Virtual Hire – Successfully Hiring, On-Boarding, and Training the Employee You’ve Never Met in Person

Penny Phillips identifies the unique challenges with all-virtual hiring, on-boarding, and training processes. She'll provide practical tips and strategies to making sure that those processes are best positioned for success for the employer and the applicant/employee, as well as in compliance with employment law obligations.
– Penelope J. Phillips

405
Across Jurisdictions – 5 of the Toughest Compliance Issues with Employees Working in Different Cities and States

Explore strategies for handling recurring challenge with: How to make more effective the process of keeping up with new developments across many jurisdictions – and what outside counsel can do to help. How to weigh decisions about implementing a change that impacts only a portion of your workforce. What developing substantive areas across jurisdictions we are particularly keeping an eye on these days.
– Uzodima (Frank) Aba-Onu, Heather Fokken & Sandy Schlafge
– Ryan E. Mick (moderator)

406
2021 EEOC Case Update – Including Insights from EEOC Acting Legal Counsel

A can’t-miss session identifying and analyzing key EEOC cases.
– Tina Burnside & Carol R. Miaskoff

407
How the Practice of ADR in Employment Cases Evolved During the COVID Crisis: A Review of the Useful Lessons, Tools, and Insights We Gained

1.0 ADR credit applied for
Dispute resolution professionals from private practice and government share how they and their organizations responded to the pandemic. Learn how they adjusted and innovated to adapt to difficult circumstances. Hear about their experiences with online dispute resolution platforms and other tech tools. Discover the lessons they learned and what changes they plan to retain even when life returns to “mostly normal.”
– Julie C. Bretz, Thomas A. Jacobson & Robert Reinhart
– Elise M. Chambers (moderator)

408
New Minnesota Cases Strengthen Employee Rights – Top Takeaways from Diverse Perspectives

Over the last year, the Minnesota Supreme Court and Court of Appeals have ruled for employees in noteworthy cases involving handbooks with contract-disclaimers, unpaid interns, hostile work environment discrimination, pregnancy discrimination, sick-and-safe time regulation, and wage-and-hour matters. Hear what two experienced employment lawyers – one plaintiffs’ counsel, one defense – make of these cases. How will these decisions change Minnesota employment practices and litigation strategies? And what future litigation may result from the holdings in these decisions?
– Melissa Raphan & David E. Schlesinger

409
Ripped from the Headlines! Exploring First Amendment Rights of Public Employees

Can a government employer fire an employee for posting something on a personal Facebook page?  What about for participating in a protest? Or in a riot? This session will address the always-exciting topic of the First Amendment, exploring the freedom-of-speech rights of public employees and discussing ripped-from-the-headlines scenarios.
– Jana O’Leary Sullivan


12:30 – 1:30 p.m.
LUNCH BREAK – “THE BEST MEAL I EVER ATE”
Grab your lunch and meet in the Institute’s virtual gathering space! Make plans to hang out with friends who are also attending the Institute. Or join any table to meet new people. We even have an ice-breaker topic to get things rolling if you want it: What’s the best meal you ever ate?


1:30 – 2:30 p.m.
BREAKOUT SESSION F

501
Updating Your Handbook for These Rapidly Changing Times – Keeping Current with COVID and Beyond 

Regardless of your size, whether publicly-owned or a private start-up, having an up-to-date handbook is time-consuming, and you want to do it right. What should (or should not) be included in a handbook, and how can you make it manageable and easier to read? What policies do you need for COVID-19 remote work, and for when you bring your team back to the office? How will the Biden administration affect your handbook policies? For employers with Minnesota employees, what revisions are needed based on a significant new Minnesota Supreme Court case on handbooks? Get answers to these and many more – including a cheat sheet with a handbook outline and a few sample policies.
– Jessica L. Roe

502
Managing Intermittent Leave in a Post-COVID Workplace and 7 More Thorny Attendance and Scheduling Issues

Using real-life scenarios, including lessons learned through the COVID-19 pandemic, attendees will learn strategies to help curb disruption to the workplace and remain legally compliant when faced with matters involving intermittent leave or other thorny attendance and scheduling issues.
– Grant T. Collins

503
Elimination of Bias – Ways to Address Bias in Investigations and Disciplinary Decision-Making

1.0 elimination of bias credit applied for
The goal of any investigation or disciplinary decision should be an impartial, neutral, factually correct, fair decision. Bias undermines these objectives and creates unnecessary risk for your organization. This session gives you guidance for eliminating bias from your employee investigations and disciplinary decision-making and creating policies and procedures that promote equity.
– Lucas Kaster, Toni Newborn & Dr. Abdul M. Omari

504
New NLRB Decisions and Guidance Impacting Both Union and Non-Union Workplaces – In-Depth 2021 Update

Learn about the new and anticipated developments since the Fall – a time period spanning the end of the Trump administration and the beginning of the Biden administration. You’ll get insights from experienced in-house and outside counsel on policies and practices of the NLRB impacting both union and non-union workplaces.
– Tim Louris, Aaron Tharpe & Paul J. Zech

505
Reductions in Force – Planning and Executing a RIF While Avoiding Legal/HR Mistakes

Reductions in force occur in times of crisis – such as a pandemic – and as part of ordinary life in corporate America. This session will analyze the best practices for planning, structuring and implementing RIFs during emergencies and during ordinary times to accomplish business objectives while avoiding litigation, ensuring legal compliance and minimizing human resources problems.
– Joseph G. Schmitt

506
The Top 15 Retaliation and Whistleblower Cases of 2020-21

Two experienced employment attorneys – one plaintiff side, one defense – identify 15 of the most noteworthy retaliation and whistleblower cases from the past year in federal and state court actions. And they’ll tell you the practical implications of each case for your litigation and advisory matters.
– Neil Goldsmith & Nicholas G.B. May

507
Race Discrimination Litigation – The Impact of the Black Lives Matter Movement

This session focuses on the impact of the Black Lives Matter movement and growing societal awareness of racial bias as lawyers evaluate, bring, and defend employment cases alleging race discrimination or harassment. What is the strategic impact for litigators in terms of approach to burden of proof, theme of the case, and settlement valuation? How are systemic discrimination allegations being used in both class action and individual cases? How do employers’ newly increased diversity efforts and public statements potentially influence litigation? Is there an impact on summary judgment and increased exposure at trial?
– Donald M. Lewis, Antone Melton-Meaux & Lawrence P. Schaefer

508
Successful Deposition Practice – How to Effectively Depose (or Defend) the Plaintiff and the Key Employer Witness

Experienced plaintiff and defense counsel share practical strategies to make the best use of one of the most powerful tools of discovery - the deposition of a key witness. Executing successful depositions – whether as the deposer or as the attorney defending the witness – sets the stage for what will happen next in negotiations, mediations, motion practice, or trial.
– Clayton D. Halunen & Gregory Stenmoe

509
Applying the Minnesota Data Practices Act to Public Sector MDHR Charges

In this practical session, Paul Ziezulewicz will answer 10 important questions and discuss real-world situations where important Minnesota Government Data Practices Act (MGDPA) principles come into play in public sector employment matters before the Minnesota Department of Human Rights. Does the MGDPA permit a public employer to object to an agency investigator’s request for personnel data? What parts of the MDHR’s case file must the agency release in response to an MGDPA request? Answers to these questions and more!
– Paul Ziezulewicz


2:30 – 2:45 p.m.
BREAK – CELEBRATE ICE CREAM!
Missing the annual ice cream break? Yep, we are, too. Join a virtual celebration of one of our favorite treats, including a prize drawing!


2:45 – 3:45 p.m.
BREAKOUT SESSION G

601
Answers to 20 of the Biggest Employment Law Questions Facing Employers in 2021

Does the patchwork of paid leave laws cover your workplace? Pro or con - what would the proposed PRO Act mean for employers? What new Upper Midwest laws apply to gig/freelance workers? Does giving it our best shot mean requiring COVID-19 vaccinations? What are some immediate implications of remote work? These are just 5 of the 20 questions Marko will answer in this fast-paced presentation.
– Marko J. Mrkonich

602
When Can the Employer Seek a Medical Exam or an Exam for Fitness for Duty?

When circumstances arise under the ADA and FMLA, can an employer obtain independent medical information – when and how? What has the COVID-19 pandemic taught us about “medical examinations” and when they are “job-related and consistent with business necessity”?
– Grant T. Collins

603
Diversity in Hiring and Retention – Practical Tips to Minimize Legal Risk

Employers are increasingly seeking to diversify their workplaces, and many have announced hiring and promotional goals in recent months. This session will discuss some of the legal risks associated with diversity initiatives and explore low-risk methods of attracting and – just as importantly – retaining a diverse workforce representative of an organization’s values.
– Sarah Riskin

604
Hiring an Employee with a Non-Compete Agreement

Jeff Oberman analyzes the legal risks, potential claims and defenses, and tough decisions facing employers who want to hire an employee with a non-compete agreement. Jeff will share practical tips and successful strategies to help employers make the hiring decision, substantially decrease their odds of getting sued, and minimize their legal risks and exposure.
– Jeffrey B. Oberman

605
Employee Benefits Trends in 2021 – What All Employment Counsel Need to Know

Darcy and Bob will provide a plain-English, practical update on key employee benefit developments in a session specifically tailored for employment lawyers. They’ll identify and help you avoid potential unintended benefits-plan consequences as you advise on: (1) employer COVID testing and vaccination programs; and (2) common practices that employers are using to manage workforce size and cost due to COVID conditions (e.g., furloughs and rehires). In the final 15 minutes of the session, Darcy and Bob will take you on a lightning-round tour of other employee-benefits news, including developments with respect to employee classification, executive severance, paid leave under USERRA, and more.
– Darcy L. Hitesman & Bob Seng

606
Dreamers, TPS Recipients, and Employer-Sponsored Visa Applicants – What to Expect from the Biden Administration and What It Means for Employers and Employees

– Veena Iyer & John T. Medeiros

607
Lessons Learned from Handling Jury Trials in Employment Cases During COVID

Litigators who have tried employment cases before juries during COVID-19 will share the ins and outs of how the pandemic has significantly affected all facets of trial, from the jury pool and voir dire to the presentation of argument and witness testimony.  The focus will be on how the pandemic altered the presentation of a case to a jury and what strategies and lessons learned during COVID-19 can be applied to future trials.
– Ellen A. Brinkman, Erin S. Conlin & David A. Schooler

608
Winning Key Discovery Battles in Employment Litigation

An in-depth discussion by three seasoned plaintiffs’ attorneys about some of the most important discovery battles they face in employment cases. What are the legal standards and the facts that drive outcomes when the following are in dispute: the scope of discovery when a plaintiff alleges emotional distress; whether the defendant can obtain the employment records of the plaintiff's new employer; the plaintiff’s ability to get "me too" and "pattern and practice" evidence from the defendant; the scope of preservation holds for all parties; and the complexities inherent in collecting e-discovery in today's remote world.
– Amy E. Boyle, Celeste Culberth & Martin Ho

609
Public Sector Layoffs, Furloughs, and Limitations on Work Hours – Answers and Practical Advice Regarding Frequently Asked Questions

This session will focus on the legal and collective bargaining issues surrounding layoffs, furloughs and limitations on work hours, and other issues arising from the radical change in public sector daily operations in 2020.  The pandemic, work from home mandates and associated changes in operations threw what we thought we knew about these subjects into a blender.  Find out what worked, what didn’t and how staffing issues may play out going forward.
– Scott M. Lepak & Emily Marshall


3:45 – 4:00 p.m.
BREAK


4:00 – 5:00 p.m.
SUPER BREAKOUTS

SUPER BREAKOUT 1
10 Red Flags of Employment Law Risk That an Employer Ignores at Its Peril

If it seems too good to be true, it probably is. From carefully responding to resignation letters citing “a workplace that left me no choice but to leave” to failing to recognize a request for an accommodation, employers need to know what to look for and how to respond to steer clear of liability and do the right thing. In this lively session chockful of real life examples, you will get insights from the plaintiff and defense perspective on the signs (you don’t want to miss) and the solutions!
– M. William O’Brien & Melissa Raphan

SUPER BREAKOUT 2
Sexual Harassment – How to Implement the Most Effective Policies, Training, and Complaint-Handling Systems

Your client’s policies and procedures aimed at dealing with sexual harassment may be compliant but ineffective. Learn about the evidence based approach to policies, training, and complaint-handling systems most likely to prevent sexual harassment and root out problems where they exist.
– Fran A. Sepler

SUPER BREAKOUT 3
Ethics: How to Handle Sticky Professional Conduct Issues – Advice for the Well-Intentioned Attorney

1.0 ethics credit applied for
You don’t steal money from your client, you don’t shred smoking-gun evidence, you don’t lie to opposing counsel. You are an ethical attorney.  Not all prohibitions, however, are so clear cut. Here’s a discussion about some of the important professional conduct issues that can trip up even the best-intentioned attorney, based on insights from the Director of the Minnesota Office of Lawyers Professional Responsibility.
– Susan M. Humiston

SUPER BREAKOUT 4
Retaliation and Whistleblower Claims – Navigating 4 Crucial Issues

Repeat of #008
A panel composed of union, employer, employee, and NLRB counsel analyze legal, strategic and other considerations surrounding decisions at the following crucial points of retaliation and whistleblower matters:

  1. When counseling potential clients, how should lawyers talk to individuals about the practical impact of becoming a whistleblower, and the potential challenges and negative consequences that may arise, even for a successful whistleblower? 
  2. When counseling employers, how can an attorney most effectively advise their clients about how to prevent reprisal claims?  What tips can help an employer balance the risk of a retaliation claim against the legitimate need of an employer to manage a current employee’s work performance and behavior?
  3. Is there a difference between situations where an employee refuses to perform a job duty based on it being an alleged violation of an agency’s guidance (for example COVID-related guidance), as opposed to an agency rule?  What are the risks and considerations if an employer wants to discipline the employee for failure to perform the duty?
  4. If a client has multiple and parallel potential causes of action available, what factors should an attorney and their client consider, when selecting which claims and remedies to pursue?

– Justin D. Cummins, Gina K. Janeiro, Meg Luger-Nikolai & Benjamin Mandelman
– Timothy Y. Wong (moderator)



Post-Institute Webcasts

Choose 3 of 8 webcasts to view for free. Instructions on how to register for free will be provided to attendees during the Institute.

Dates and times to be determined.

Topics include:

Preventing Harassment in a Remote Workforce
– Cynthia A. Bremer & Dennis A. Davis, Ph.D.

Got Workers in California? Here’s What New Developments Require You to Do
– Mandana Massoumi

The Fundamentals of Diversity, Equity, and Inclusion – Getting It Right from the Start
– Shirley O. Lerner

Making Diversity Work – Building a Sustainable DEI Training Program
– Andriel M. Dees & Jenny Gassman-Pines

Independent Contractor/Joint Employer – An Expensive Error
– Gina K. Janeiro & Michael J. Moberg

Ethics for Employment Lawyers – 6 Ethics Hot Spots and How to Approach Them
– Amy B. Conway, Susan M. Humiston & Timothy Y. Wong

Mass Individual Employment Arbitrations Post-Epic
– Reena Desai & Joseph G. Schmitt

When Work Isn’t Working – Using Leave and Reassignment Effectively to Accommodate Disability
– Heather Fokken & Kristin Berger Parker

LIVE WEBCAST
Monday & Tuesday, May 24 & 25, 2021
Attend Online


IN-PERSON REPLAYS

There are no in-person replays.

$695 MSBA members
$695 TCSHRM members
$695 paralegals
$795 standard rate

Other discounts that may apply:

Scholarships available!
Need-based scholarships are available for in-person and online seminars. For further information or to obtain a scholarship application, contact us at 800-759-8840 or customerservice@minncle.org.

CLE

Minnesota CLE has applied to the Minnesota State Board of CLE for 12.0 hours standard CLE credit for this year’s Institute. Minnesota CLE has general credit approval with the states of Wisconsin and North Dakota. We anticipate this course also will qualify for 12.0 civil trial specialist credits, 12.0 labor and employment law specialist credits, and 12.0 CJE credits for judges. 

We also anticipate that Breakout #309 and Super Breakout #3 each will qualify for 1.0 ethics credit and that Breakouts #204 and #503 each will qualify for 1.0 elimination of bias credit. If you attend any of these sessions and claim ethics or elimination of bias credit, you must deduct those special credits from the 12.0 hours of “standard” credit. For example, if you attend sessions #309 and #503, you would claim 1.0 ethics credit, 1.0 elimination of bias credit and 10.0 standard credits for a total of 12.0 credits. In no case may you claim more than 12.0 total CLE credits for the 2021 Upper Midwest Employment Law Institute.


HRCI
Minnesota CLE also has applied to the Human Resource Certification Institute for 12.0 HR (General) recertification credit hours.


SHRM
Minnesota CLE is recognized by SHRM to offer Professional Development Credits (PDCs) for the SHRM-CPSM or SHRM-SCPSM. This program is valid for 12 PDCs for the SHRM-CPSM or SHRM-SCPSM. For more information about certification or recertification, please visit www.shrmcertification.org.


ADR
We anticipate that session #407 will qualify for 1.0 ADR credit.


CEU
This course may also qualify for CEU credits. Check with the appropriate accreditation organization to ensure CEU accreditation. 

Course materials include the Institute manual, the NEW Workplace Diversity, Equity, and Inclusion Handbook, and 5 Legal QuickSheets. 

Can't attend? The Institute materials are available in hard copy for $195 (plus tax and handling) or electronically for $195 (plus tax). Either may be purchased online at www.minncle.org after the Institute. (Workplace Diversity, Equity, and Inclusion Handbook and Legal QuickSheets sold separately.)

SPONSORED BY:
MEMBER PRICE
$695.00
STANDARD PRICE
$795.00
MSBA MEMBER, NEW LAWYER, AND OTHER DISCOUNTS, IF APPLICABLE, WILL BE APPLIED DURING CHECKOUT.

IN-PERSON PASSHOLDERS:
You may use your Pass to register for the live webcast at no charge.

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