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(Transcribed and edited lightly by The Employment Law Group)

R. Scott Oswald: So we are in David Greenspan’s office and we’re going to talk a little bit about his panel at “Changing Currents in Employment Law” — Use of Experts in Employment Cases.

David, give us a sense of what we can expect for the panel on experts in employment cases. If I’m at the Changing Currents CLE, what might I see at that panel?

David Greenspan: We’re going to cover a couple of things at a high level, and we’re going to drill down into each of them.

First thing we’re going to talk about is selection issues. What makes a good expert and how you select experts, coming at it from the plaintiff side and the defense perspective. And we’re going to talk about things that we see in terms of what makes a good expert — and what things you might want to avoid.

We’re also going to talk about the rules. There have been changes — the 2010 [federal] amendments, in DC there were amendments in 2015. So we’re going to talk through all those technical issues in terms of discovery, the reports, the requirements. We’ll focus on qualification issues, as well as some Daubert cases, recent developments in that regard.

And then we’re going to talk a fair amount about depositions and trial issues. How the expert really plays into the narrative of a case, whether you’re telling the story of the plaintiff or you’re telling the story as an employment defendant.

Oswald: So let’s take a situation where you have a new case. You’re talking to your client about the use of experts. When do you use experts in an employment case?

Greenspan: So I have to break that question into two parts.

There’s traditional employment cases, single-plaintiff cases where somebody is bringing a disparate treatment claim based on their belief that something happened to them with respect to their employment. That’s, from a management-side perspective, more of a defensive posture. I have various experts in fields that I’m always watching out for — but I want to let the plaintiff lead the dance, for lack of a better term. Whether or not there’s going to be a vocational expert or an econ expert. Whether or not there’s going to need to be an IME, any medical issues that come into play.

And then there’s always that fourth category that folks don’t focus on, but we’re going to talk about [on the panel], which is attorneys’ fees — on both sides, quite frankly. Sometimes having expert testimony ready for attorneys’ fees is something that people forget about. They get to trial and it’s either too late or it’s insufficient.

Now, the other type of employment case that we frequently litigate, I call them employment mobility cases — trade secret, non-compete, defamation cases. Those are cases where I think both sides are looking at it from an offensive and defensive posture. In those regards I think valuation of things, whether it’s a document, a line of business, a person’s value to a practice or company — those are the types of issues where we have to be a lot more, in my opinion, proactive.

We’ll talk through those issues in the session.

Oswald: So what makes a good expert, in your mind?

Greenspan: I think first and foremost a good expert is someone who can tell a story.

Being qualified and having the chops to opine to a reasonable degree of certainty — everybody that you retain ought to be able to do that. It’s our job as lawyers to make sure that we put that person in front of the client, in front of the court, and eventually in front of a jury.

But a good expert can come in and weave their portion of the narrative into your overall story. It requires the ability to talk like a human being. It requires the ability not to talk at people. It requires the ability to actually be vulnerable in some regards.

One mistake I see — and this is not just an issue for experts, I think [it applies to] lawyers, witnesses, everybody through the narrative — is, “[I’m] infallible: Everything I’m saying is true, and there’s nothing about what I’m saying that’s at all gray.” I don’t think that’s an appropriate way to tell a story and I think for experts that’s very much true.

I want an expert who can say, “Here’s my opinion, here’s how it fits in. Here’s what’s strong — and here’s where there might be two sides. But here’s why [my] perspective is the stronger of the two.”

Oswald: Talk to us a little bit about the vocational expert — what you look for in a good vocational expert, and when you’re using a vocational expert in a case.

Greenspan: It’s interesting because in this area, in the DMV, there aren’t that many vocational experts. I think we are recycling the same handful of folks in this field, as compared to other fields, more often than not.

My view on vocational experts is that they need to be able, again, to tell a story about, from my perspective, here’s what a person in a reasonable position — this is how long it should take them to find employment, and this is the level of employment they can expect to find.

I think we’ve talked about this before, recently: It really does go to how it fits into the story. If a witness is on the stand, as a plaintiff, saying, “I haven’t been able to find work in the 18 months since I filed my lawsuit,” and there’s an expert who’s saying, “Yes, the average person with your experience could do this in nine months and could have earned an income at 80 percent of what you were making” — well, not only is that impactful for mitigation, but it also undercuts the story that the plaintiff is telling about what kind of person they are, and how hard they’re looking for a job.

Oswald: So the mitigation story matters?

Greenspan: The mitigation story matters. This is something that that I’ve always viewed, from a defense perspective, as what a vocation expert is there to do — not just to set the parameters, but also to limit exposure in terms of mitigation and the credibility of the plaintiff if that person isn’t really trying as hard to get employment as they say they are.

A lot of people are out there looking every day, they’ve got their LinkedIn profiles, they produce volumes of documents — nowadays it’s easier to do that. And you can see that they’re trying very hard. It doesn’t work then.

But a lot of people are not that aggressive in looking.

Oswald: I got it. So tell us a little about you. When you’re not lawyering and you’re not with your family, where do you spend your time? What’s your passion?

Greenspan: Sports. I actually am with my family or lawyering 99 percent of the day, like most of us are. But I love local sports. I play tennis a fair amount — and would like to play a fairer amount.

I also do pickup basketball with the same group of guys. So in the evenings, after homework is done and the kids are getting ready for bed, off I go and hopefully once or twice a week I get to play with my buddies.

Oswald: That sounds great. David, thank you.

Greenspan: Thank you!

———-

R. Scott Oswald is managing principal of The Employment Law Group, P.C. David Greenspan is a partner at McGuireWoods LLP.

 

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(Transcribed and edited lightly by The Employment Law Group)

R. Scott Oswald: We are here with Carla Brown, who is one of our panelists at this year’s “Changing Currents in Employment Law.” She will be on one of our panels talking about how the #MeToo movement has changed the workplace.

Carla, I want to ask you: When you first saw what was happening with the #MeToo movement — maybe in the first 30 days — did you have any sense that it would catch fire as it did, you know, in those first few months, and even carrying through to today?

Carla Brown: No. I really had no idea. I was hopeful, I was optimistic. A lot of my friends called me and said, “Wow, are you hearing about this?” I thought Yes! — but [then], over time, so many different industries, so many influential people out of each of those industries. I really had no idea. I’m pleasantly surprised.

Some lawyers who have been around … said, “Well, you know we had Anita Hill back in the day, and we had some very influential people come forward over time. What’s different?” I never anticipated you’d have so many industries, so many different people coming forward. And, really, both sides of the table — not just people who represent employees, but people who represent employers, really taking it seriously and at least talking about it.

The fact that we’re having this conversation — that we’re having it in the context of the DC Bar and that we’re having it in the context of both sides of the table — I think signifies how huge this issue is.

So, no, I had no idea.

Oswald: Do you think that the #MeToo movement has maybe removed the stigma, or at least made it not as great, for people to come forward? Do you feel as if your clients maybe are a little more comfortable with saying “Me too”?

Brown: Probably a little bit yes, and a little bit no.

I think, at the end of the day, nobody wants to be the woman who came forward and said, “I was discriminated against.” They don’t want to come out against powerful people. There’s really a lot of fear there — which I think is individual, it’s situational. It’s not going to be cured by the fact that somebody else said “Me too.”

But on the flip side of that, there is an expectation that somebody at the company should really be paying attention to these issues. And maybe they’ve had a discussion about coming forward, which makes a big difference.

But, you know, I’m reminded that in 2016 [co-chairs Chai] Feldblum and [Victoria] Lipnic produced a study that really said only 25 percent of people come forward — and I don’t think the #MeToo movement, or anything else, is going to cure that, to be honest.

Oswald: How about the workplace? Do you see that companies in the wake of the #MeToo movement maybe are treating these claims differently than they were even just a few years ago?

Brown: Yes — yes. It does seem like companies are taking them more seriously. They’re certainly being investigated. The rhetoric at least is there, that they want to do something about it.

But I do think there has to be a deeper understanding within the company. It’s great that you fired somebody, but you didn’t do anything for my poor client, who is still working there and still isn’t sure if [the perpetrator’s] friends are laughing behind her back, or something along those lines.

I think companies are taking it more seriously. I know, over time, that the workplace will be better because of this. But at the end of the day, the goal is that you get to go to work, and work on your work, and not have to deal with all these other issues that really detract from your ability to focus — so I’m hopeful that there’ll be [more] change.

Oswald: So, for those who are watching and thinking, “Well, gee, what will I learn in the upcoming Changing Currents programming?” — what are just a few things that one can expect to learn in this year’s program on the #MeToo panel?

Brown: One thing I would say is that the case law has always been there. The support for plaintiffs has always been there.

And for employers, I sort of see us as being on both sides of the table [saying that] we want you to fix the problem before it becomes a lawsuit — we want you to help the person, we want you to do something about it.

And I hope that, at least for … plaintiffs, we need to figure out how to walk people through these situations and be there [for victims] — not only once it’s a lawsuit, but even maybe prevent it from getting there.

[Again] for employers: You know, you have to correct the problem. We want to help you understand how that can be done. It’s not just one solution; there’s lots of remedies you could have for plaintiffs.

I would hope that someone would walk out of [Changing Currents], on the plaintiff’s side, more willing to support a deeper understanding, going back to the case law that’s already there and has been established. And for employers, I still want you to fix this problem before people have to live two or three years in a lawsuit.

To the extent that anything we provide on the panel might be helpful, I would hope that that’s something [attendees will] get out of it.

Oswald: What do you see for the future — the future of the #MeToo movement from your perspective? Let’s say it’s a year down the road and we’re sitting here again, talking about the #MeToo movement. What do you see for the future?

Brown: Hopefully more jury verdicts.

You know, one thing [holding back] the #MeToo movement — and one thing [that still affects] sexual harassment claims — is [that] I think there’s a lot of intent [to get victims to] placate or avoid or play along even [with harassers], and that is not welcoming conduct and that is not inviting the conduct.

I hope that’s understood more, and we continue to see more jury verdicts where the public has said that it’s not acceptable to force people to engage in different conduct they don’t want to simply to keep their jobs, or get the promotion, or get the bonus, or stay in their projects.

So a year from now I’d love to get some great opinions from jurors, and obviously even on bench trials from judges, just explaining that even more.

Oswald: Carla, thank you.

Brown: Thank you for having me.

———-

R. Scott Oswald is managing principal of The Employment Law Group, P.C. Carla Brown is a partner at Charlson Bredehoft Cohen & Brown, P.C.

 

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(Transcribed and edited lightly by The Employment Law Group)

R. Scott Oswald: We are here in Paul DeCamp’s office and we are talking to Paul about his panel at “Changing Currents in Employment Law,” which is on October 30th of this year, 2018.

Paul, you’re doing a program on hot topics in Fair Labor Standards Act litigation and things to look for. Give us a sense, for folks that are watching right now, of what they can expect if they come to Changing Currents.

Paul DeCamp: Well there’s really been a lot going on in the last year. We’ve had a number of Supreme Court decisions that significantly affect the practice. One is Encino Motorcars v. Navarro, dealing with the standard for looking at exempt v. non-exempt classification. We’ve had Epic Systems v. Lewis, dealing with enforcement of arbitration agreements with class waivers — that affects a lot of the litigation that we see.

We’ve also seen the Department of Labor trying to update its regulations concerning the executive, administrative, and professional exemptions. That’s been a saga that’s been ongoing for the past several years: There’s litigation going on right now, as well as active rule-making, and so employers need to get ready for that.

We’ve seen the Department of Labor resuming issuing opinion letters, which it had suspended for a number of years. It has now gotten back into issuing opinion letters, so that is an area of guidance that employers are going to see.

And we’ve also seen recently an amendment to the FLSA regarding the tip credit provisions, relating to tip-pooling among other things. So it’s important for employers in those industries, like restaurants and hotels, to really have a good handle on what is — and is not — allowed under federal law.

Oswald: With so many Supreme Court decisions coming down in the area of the Fair Labor Standards Act, my guess is your clients are on the phone with you all the time, saying, “Hey, you know, how does this affect me?”

What are some of the issues that are coming up for them? What’s the advice that you’re giving right now to your clients?

DeCamp: One of the hot topics right now is arbitration agreements and class waivers.

A lot of employers right now — a lot of clients — are trying to figure out, “Should we have class waivers or not?” That gets wrapped up in a number of issues: Some legal, and some more employee-relations, related to #MeToo and some other types of allegations. We’ve had some clients that want to have arbitration for some types of claims, but not for others.

And so employers are trying to think about what is most consistent with how they want to treat their workers.

We’ve also seen a lot of questions regarding the contingent workforce and the gig economy, and whether people really should be classified as employees, or contractors, or potentially something else.

And there’s the ongoing saga of exempt/non-exempt. I think every employer has that issue to some extent.

Oswald: So let’s take class-action waivers. What’s the kind of advice you’re giving to clients who are coming to you and saying, “Hey, you know, in light of the Supreme Court’s decisions, should we be putting class action waivers in our arbitration agreements?”

DeCamp: We are suggesting that it’s something that employers ought to take a close look at.

For employers that are doing business in California, there are separate issues under California law about the enforceability of the waivers for certain claims under state law. But generally speaking we’re advising clients that at least the risk of potentially violating the National Labor Relations Act has been dealt with now by the Supreme Court — so one big concern that employers had, one reason not to have waivers, has been removed.

There are still other issues that clients need to work out, including the downside of having the waivers — meaning you might find yourself with a lot of individual arbitrations — but it’s a decision that we think clients ought to be making now, informed by the recent changes in the case law.

Oswald: So can you have class-action … well, let’s just take waivers in general. Can you have waivers for some kinds of claim, but not for others? Where’s the line?

DeCamp: Probably yes. I mean, the courts have been enforcing arbitration agreements that the parties agreed to. As long as an agreement doesn’t seem to be procedurally or substantively unconscionable, courts are enforcing them.

Employers [will] want to make sure that they can articulate a good reason for why they’re drawing the lines they’re drawing, and agreements should not be one-sided. We’re encouraging employers, for example, to make sure that if they’re requiring employees to arbitrate, the employers are also agreeing to arbitrate claims — so that it’s bilateral.

But if the agreements overall are fair, it’s looking increasingly like the courts are going to enforce them.

Oswald: Got it.

Let’s talk about the gig economy, because that really is a hot topic right now. What kind of issues are coming up there — and what kind of advice are you giving to clients that are, you know, right in the thick of it?

DeCamp: The gig economy is one of the most challenging areas of the law, because we’re seeing new business models cropping up.

Some folks say, “Well, there’s nothing new about that — some of those models have been around in various iterations for decades.” But we’re seeing new industries involving a lot of I.T. components, a lot of just-in-time matching of services, in a variety of industries.

[These] companies are popping up with a contractor model and then reaching a certain level of business — a volume of revenue where they start to draw attention and maybe want to go public, or maybe want to get into more of a growth mode. And they’re finding they have to address this issue head-on in a way that they did not when they were smaller.

So we’re having a lot of interesting, challenging conversations with businesses in that space about what the future looks like for them.

Oswald: So what does the future hold? Give us a little sense of, you know, if we sat down a year from now, what are the issues we’d be talking about in, let’s say, summer of 2019?

DeCamp: I think in summer of 2019 we’ll be much closer to having a sense of what the Department of Labor is doing with the overtime regulation. We will probably have a proposed rule at that point, so there’ll be a lot of discussion about what companies are going to do to adapt to what we presume will be an increase in the salary requirement for those exemptions.

And I think we’ll also be talking about the gig economy: That’s not going to go away. I think those issues are only going to become more intense because we’re seeing a divergence of the FLSA — which is a very old and venerable statute, been around 80 years this year, designed with factories and farms in mind — being superimposed on industries that are very I.T.-based.

We’re seeing competition now from robots and artificial intelligence, and a lot of price pressure on labor at the lower end of the wage scale. It’s not clear how all of those concerns are going to coalesce going forward. I think ultimately we’re going to see a lot of pressure for some legislative change at the state and federal level.

These are challenges that I think both sides of the aisle recognize are real. They disagree as to the solutions for them, but I think something’s going to have to give because right now there’s a lot of pressure on jobs at the lower end of the pay scale — [not just] in terms of pay, [but] even on the existence of those jobs.

Oswald: I’d like to talk a little bit about you personally. When you’re not lawyering, advising your clients, and you’re not parenting — you’ve got three kids — where are you spending your time?

DeCamp: Trying to catch up on sleep! And music, and exercise. Those are my main activities.

Oswald: Paul, thank you so much. It was great to spend some time with you today.

DeCamp: Thanks very much, looking forward to it

———-

R. Scott Oswald is managing principal of The Employment Law Group, P.C. Paul DeCamp is a member of Epstein Becker & Green, P.C.

 

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