Sixty Fellows and their guests gathered at the midtown Manhattan offices of Jones Day for the semi-annual meeting on May 22, 2014. Through the hospitality of Fellow Willis Goldsmith and the Jones Day staff, a light supper was provided along with 3.5 CLE credits, at no cost to participants. Regional Program Chair Evan Spelfogel served as program moderator for the three part program on matters of grave concern to management, labor, and employee interests alike: (i) Whistle Blowing/Sarbanes Oxley; (ii) New York City Sick Leave Law; and (iii) Labor, Employment and Collective Bargaining implications of Obama Care- The Affordable Care Act (ACA).
View materials from the 2nd Circuit Regional Meeting
Agenda and Handouts
Whistleblower Panel Presentation
New York City Sick Leave Law Presentation
1. Whistle Blowing/Sarbanes Oxley:
In this in-depth and informative presentation, Panelists Jonathan Ben-Asher (Ritz Clark & Ben-Asher LLP), Frances H. Nicastro (Barclays), Jill L. Rosenberg (Orrick Herrington & Sutcliffe LLP), and Terri Wigger (U.S. Dept. of Labor, Assistant Regional Administrator for Region 2 OSHA Programs), provided an overview of SOX's whistle blower protections, Dodd-Frank's amendments to SOX protections, and Dodd-Frank's anti-retaliation and bounty provisions. The presentation included the type of covered adverse actions, the "reasonable belief" standard, the types of predicate frauds covered by SOX, and the differences between SOX and Dodd-Frank protections. Panelists also reviewed recent developments in this area, including the Supreme Court's decision in Lawson v. FMR, applying the protections of SOX Sec. 806 to privately held contractors, subcontractors and agents of public companies, as well as the tension between Dodd-Frank's bounty provision and companies' efforts to encourage internal reporting. Panelists also touched on practical questions such as how to establish a corporate culture that encourages internal reporting, when and how to investigate reports of fraud, how to treat whistle blowers during the course of the investigation, the types of complaints that OSHA will investigate, the investigative process generally, and recent enforcement and bounty statistics. Not only were the plaintiff and defense bars well represented on this panel, but the addition of corporate counsel and an agency representative to this engaging presentation added valuable perspectives on the practical implications of SOX and Dodd-Frank whistle blower protections and recent developments this area.
2. New York City Sick Leave Law - Update:
Presenter Gerald T. Hathaway (Mitchell, Siberberg & Knupp LLP) provided a brief but jam-packed presentation on the New York City Earned Sick Time Act that went into effect on April 1, 2014. Topics included employee rights to sick time, accrual and use of sick time, anti-retaliation protection, and remedies and penalties for violations under the Act. This presentation raised relevant practical issues and provided helpful guidance for practitioners watching the contours and ramifications of the Act unfold as employers implement or update their paid sick time policies.
3. Labor, Employment and Collective Bargaining Implications of Obama Care – The Affordable Care Act (ACA):
In this fascinating presentation, Presenters Bruce S. Levine (Cohen Weiss & Simon LLP), and Catherine E. Livingston (Jones Day), explored the collective bargaining challenges posed by the ACA. The presenters discussed the requirements for coverage under the ACA, including how employer size is determined, control group and seasonal employee issues, who must be offered coverage, the affordability and minimum value tests for coverage, services that must be covered under group health plan requirements, and when coverage must begin. Relevant practical issues raised included gaps in employee coverage upon termination, discrimination and retaliation concerns, and how group rates are calculated. Against this backdrop, the presenters went on to discuss pre-bargaining decisions and relevant considerations such as whether an employer should provide coverage at all, what benefits to offer, and applicable penalties for no coverage and inadequate coverage. The presentation also covered bargaining strategies related to the Cadillac Tax and tips on how to leverage the ACA's requirements and costs during the bargaining process.