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Wage & Hour Litigation and Compliance 2019

Speaker(s): Alexander J.. Passantino, C. Andrew Head, David S. Fortney, Ellen C. Kearns, Emily J. Martin, Hon. Kate S. O'Scannlain, Jenny R. Yang, John S. Ho, Karla Gilbride, Lisa "Lee" A. Schreter, Matthew C. Helland, Michael A. Josephson, Michele R. Fisher, Reed L. Russell, Terri E. Gerstein, Timothy J. Long
Recorded on: Feb. 12, 2019
PLI Program #: 254128

Lisa "Lee" A. Schreter is a former chairperson and current member of Littler’s Board of Directors. Lee focuses on representing employers in complex class and collective actions involving discrimination, overtime and other wage-related claims and specializes in helping employers to develop forward-thinking compliance measures that reduce wage and hour disputes and other employment-related issues.

Lee also specializes in representing management clients in negotiations with the U.S. Department Labor in national matters that involve such issues as the exempt status of employees and compliance with the Fair Labor Standards Act. 

Lee represents and counsels clients in connection with many other labor and employment matters arising under federal and state laws such as The Equal Pay Act, The Service Contract Act, Title VII of the Civil Rights Act of 1964 and state law wage and hour requirements.

Prior to becoming an attorney, Lee worked in human resources where she gained extensive experience in wage and hour issues, employee relations, salary and benefit administration and general employment matters.

C. Andrew (“Andy”) Head is a plaintiff’s side wage and hour law attorney with over twenty-five years of employment law practice experience. Mr. Head is the managing owner of Head Law Firm, LLC, an employee rights class and collective action litigation firm with offices in Atlanta and Chicago. He began his career exclusively representing management and corporate clients as an associate and then partner at Holland & Knight, LLP, followed by a mixed employer/employee-side practice as a partner at two Atlanta area firms before forming Head Law Firm, LLC and dedicating his practice primarily to the representation of employees in class and collective action wage and hour litigation.

Through his nationwide wage and hour litigation practice, his active service in various employment law organizations, and as a frequent presenter at continuing legal education seminars by the ABA, PLI, NELA, ICLE, and others, Mr. Head has developed a national reputation as a leading practitioner in wage and hour class and collective actions. He has litigated over a hundred class, collective, and multi-plaintiff actions involving complex challenges such as fluctuating workweek pay plans, misclassification of employees as exempt from applicable state and federal overtime laws, regular rate violations, and other highly technical issues of wage and hour law compliance.

Mr. Head currently serves as the Co-Chair of the FMLA Subcommittee of the American Bar Association’s Federal Labor Standards Legislation Committee, Chapter Editor for the ABA’s Fair Labor Standards Act Treatise published by BNA, and Chapter Editor for the ABA’s Wage and Hour Laws: A State-by-State Survey also published by BNA. He has received many peer recognition honors, including being named to Super Lawyers, Georgia’s Legal Elite, Georgia Top Lawyers, Top Attorneys in Georgia, and invitation to Lawyers of Distinction and Elite Lawyer.

Mr. Head graduated cum laude from Vanderbilt University, and received his Doctor of Jurisprudence from the Vanderbilt University School of Law in 1995. 

Michele Fisher is a managing partner at Nichols Kaster, PLLP, and the Chair of the Firm’s Business Development and Marketing Groups, which originate class and collective actions and market the firm. She has dedicated her career to litigating wage and hour cases in an aggressive, creative, and strategic manner. She is one of the leaders of a practice group that has been described as a "powerhouse" for mass wage and hour litigation and arbitration. Michele has the experience, resources, and staff to take on any company regardless of size.  She has handled several jury trials and arbitrations in her fight for employee rights and prides herself on the firm's reputation as a leader in national wage and hour class and collective action litigation. Michele has litigated hundreds of class and collective actions involving positions such as health care workers, delivery drivers, loan officers, loan processors, retail salespersons, oil and gas workers, background investigators, logistic representatives, assistant managers, branch managers, field service engineers, call center representatives, school bus drivers, caretakers, convenience store clerks, exotic dancers, inside sales representatives, restaurant workers, insurance adjusters, property specialists, property managers, installers, service technicians, and construction laborers. 

Michele is active in several organizations. She is a Co-Chair and faculty member of the Practicing Law Institute’s Wage & Hour Litigation and Compliance conference, and the Co-Chair of the ABA Labor and Employment Law Section’s Annual Conference Planning Committee. She has served as the Vice Co-Chair of the ABA Labor and Employment Law Section’s Annual Conference Planning Committee, Co-Chair of the ABA Labor and Employment Law Section’s Federal Labor Standards Legislation Committee, Co-Editor-in-Chief of the ABA Labor and Employment Law Section’s Federal Labor Standards Legislation Committee FLSA Midwinter Report, Co-Chair of the ABA Labor and Employment Law Section's Revenue and Partnership Development Committee, Track Coordinator for the ABA Labor and Employment Law Section’s annual conference, editorial board member for BNA’s the Fair Labor Standards Act Treatise, and a chapter editor for BNA’s Wage and Hour Laws: A State-by-State Survey. She is a Fellow in the College of Labor and Employment Lawyers, has been named to the Best Lawyers, Super Lawyers, Top Women Attorneys, Lawyers of Distinction, and Rising Star lists repeatedly, is a member of the Top 10 Wage and Hour Lawyers, Top 100 National Trial Lawyers, Top 100 High Stakes Litigators, and LawDragon 500 Leading Plaintiff Employment Lawyers. Michele volunteers as an attorney for a foster child through the Children's Law Center. She also created and administers

Reed Russell partners with clients to guide them through a wide range of employment matters, particularly complex EEO and wage and hour issues. As the former legal counsel of the U.S. Equal Employment Opportunity Commission, Reed has the benefit of having viewed legal problems from a government enforcement and defense perspective – and brings that insight to clients’ legal concerns. Clients trust Reed’s diverse experience and insight as they navigate the fluid world of employment law.

Reed handles employment counseling and litigation for clients in a wide variety of sectors and industries. As employment laws evolve, Reed’s counseling keeps clients updated and gives them peace of mind in an area fraught with uncertainty. His counseling practice spans a variety of employment issues facing employers, especially wage and hour and equal employment opportunity law.

When litigation arises, Reed is a thoughtful and strategic advocate for his clients, helping them achieve resolution consistent with their goals and the risks presented. Clients value his willingness and ability to view the matters from both sides and give clear-eyed assessments of risks and opportunities. He represents employers in collective and class action litigation and other complex litigation matters. He also represents employers in single-plaintiff employment litigation and administrative proceedings and provides advice on employment practices, including through policy audits and advice on statistical analyses.

Reed is a regular author and speaker on labor and employment issues and serves as the regional practice coordinator for the firm's labor and employment practice. In addition, he is a former major in the Army National Guard and a veteran of Operation Iraqi Freedom.

Emily Martin, Vice President for Education & Workplace Justice, oversees the National Women’s Law Center’s advocacy, policy, and education efforts to ensure fair treatment and equal opportunity for women and girls at work and at school and to forward policy frameworks that allow then to achieve and succeed, with a particular focus on the obstacles that confront women and girls of color and women in low-wage jobs. Emily also oversees the operation of the TIME’S UP Legal Defense Fund, a more than $22 million fund dedicated to enabling individuals challenging workplace sexual harassment and related retaliation to obtain legal representation and storytelling assistance.  The TIME’S UP Legal Defense Fund is housed and administered by the National Women’s Law Center Fund LLC.

Prior to joining the National Women’s Law Center in 2009, Ms. Martin served as Deputy Director of the Women's Rights Project at the American Civil Liberties Union, where she spearheaded litigation, policy, and public education initiatives to advance the rights of women and girls, with a particular emphasis on the needs of low-income women and women of color. She also served as a law clerk for Senior Judge Wilfred Feinberg of the U.S. Court of Appeals for the Second Circuit and Judge T.S. Ellis, III, of the Eastern District of Virginia; as Vice President and President of the Fair Housing Justice Center in New York City; and previously worked for the National Women’s Law Center as a recipient of the Georgetown Women’s Law and Public Policy Fellowship. Ms. Martin is a graduate of the University of Virginia and Yale Law School.

Emily speaks frequently on issue related to women’s workplace rights, is frequently quoted in major print and broadcast media outlets, and is the co-author of The Rights of Women: The Authoritative ACLU Guide to Women’s Rights (4th Edition).

Jenny R. Yang joined the OFCCP as its Director on January 20, 2021. In the Obama-Biden Administration, from 2013-2018, she served as Chair, Vice-Chair, and Commissioner of the U.S. Equal Employment Opportunity Commission (EEOC), after unanimous Senate confirmation. She led efforts to tackle systemic discrimination, including enhancing the EEOC’s annual data collection to include employer reporting of pay data and initiated the Select Task Force on the Study of Harassment in the Workplace. She led comprehensive investments in agency-wide technology, launching new digital systems to expand access to the public.

After her service on the EEOC, as a Senior Fellow at the Urban Institute, Ms. Yang worked to revitalize anti-discrimination laws to better protect workers as structural and technological changes transform work. In addition, as a strategic partner with Working IDEAL, Ms. Yang assisted employers in preventing harassment and promoting equality of opportunity in hiring, pay and promotion through the design of employment practices. Prior to joining the EEOC, Ms. Yang spent a decade representing workers in complex nationwide employment discrimination class actions and wage and hour collective actions as a partner at Cohen Milstein. Before that, she served as a Senior Trial Attorney with the U.S. Department of Justice, Civil Rights Division, Employment Litigation Section. She began her career at the National Employment Law Project as a fellow advocating for the workplace rights of garment workers. After law school, she clerked for the late Judge Edmund V. Ludwig, of the United States District Court for the Eastern District of Pennsylvania. She is a graduate of Cornell University and New York University School of Law, where she was a Root-Tilden Public Interest Scholar.

John S. Ho exclusively represents employers on all labor and employment matters and regularly handles wage and hour matters involving federal and state laws, such as the Fair Labor Standards Act, the New York Labor Law, New York’s Miscellaneous Industries Wage Order, and New York’s Hospitality Wage Order which includes numerous cases involving New York’s Wage Theft Prevention Act, tip credits and tip pooling issues. John also routinely works with the Occupational Safety and Health Act, in addition to handling discrimination claims, ADA public accommodation cases, drafting employee handbook policies and procedures and employment contracts, conducting workplace investigations, and arbitrations. John has defended a wide range of employers against hybrid class and collective actions under the FLSA and the New York Labor Law. He also frequently assists companies with internal wage and hour audits, as well as Department of Labor audits, including those generated by misclassification of independent contractors in New York State unemployment filings. John also has extensive experience with assisting businesses with internal safety and health audits and resolving and contesting OSHA citations including but not limited to fatality investigations as well as defending against claims of retaliation under OSHA and New York’s Workers’ Compensation Law.

As a former prosecutor with the U.S. Department of Labor, Office of the Solicitor, John was part of a litigation team that recovered approximately $4 million under the FLSA on behalf of New York State Environmental Conservation Officers. While at the DOL, he also received a commendation from OSHA’s regional administrator for his prosecution of a discrimination complaint under the Surface Transportation Assistance Act.  

John serves as the co-chair of Cozen O'Connor's OSHA-Workplace Safety Practice and is also the author of its safety and health blog, the OSHA Chronicle.

Karla Gilbride is the Cartwright-Baron Senior Attorney at Public Justice, working out of its Washington, DC office, where she specializes in litigating challenges to the use of pre-dispute, mandatory arbitration provisions in contracts with employees and consumers. Karla has successfully briefed and/or argued such cases before the U.S. Courts of Appeals for the First, Fourth, Eighth, Ninth, Tenth and eleventh Circuits, as well as before state appellate courts in New Jersey and Maryland. She has also testified on the topic of pre-dispute arbitration clauses before the state legislatures of California and New York.

In addition to her work on mandatory arbitration, Karla litigates cases on behalf of low-wage workers and against predatory lending schemes. Before coming to Public Justice in 2014, she pursued employment discrimination and wage and hour cases at Mehri & Skalet PLLC in Washington, DC and class actions on behalf of people with disabilities at Disability Rights Advocates in Berkeley, CA. She graduated from Georgetown Law School in 2007 and clerked for Judge Ronald Gould on the Ninth Circuit Court of Appeals.

Kate S. O’Scannlain is the Solicitor of Labor. President Trump announced his intent to nominate Ms. O’Scannlain on September 28, 2017, and her nomination was confirmed by the U.S. Senate on December 21, 2017.

Before joining the U.S. Department of Labor, Ms. O’Scannlain was a partner in the Washington, D.C., office of Kirkland & Ellis LLP, where she worked for 12 years. Her practice focused on employment and labor law, including commercial litigation on behalf of clients in federal and state court, providing regulatory advice, and counseling on mergers, acquisitions, restructuring, and private equity.

Ms. O’Scannlain has wide experience in complex commercial and class-action litigation matters, including contract disputes, insurance disputes, fraud and fiduciary duty claims, defamation claims, securities fraud, bankruptcy, and pension and retirement law. She also provided pro bono representation to a variety of clients on diverse matters ranging from child-custody disputes, to helping Iraq War veterans obtain combat-related special compensation, to employment-related claims and issues. She has served as a regular volunteer with Catholic Charities Legal Network Clinic.

Ms. O’Scannlain grew up in Portland, Oregon, and received her B.A. from the University of Notre Dame, cum laude, and her J.D. from Notre Dame Law School, where she serves on the Notre Dame Law Association Board. 

Ms. O’Scannlain lives in Maryland with her husband and their four children.


Matthew C. Helland is an experienced and tenacious litigator who has fought for workers’ and consumers’ rights throughout his career. Matt serves as the managing partner of Nichols Kaster’s San Francisco office, where he focuses his practice on class and collective wage and hour cases filed in California and throughout the country. Handling both large class actions and individual matters throughout this career, Matt has developed a record of success in significant and complex litigation.

Matt litigates each of his cases with the same zealous advocacy and passionate protection of his clients’ rights, whether the case involves millions of dollars and thousands of clients, or thousands of dollars and one individual. In addition to representing workers across the country in wage and hour actions, Matt has also handled cases involving WARN Act violations, breach of contract, and severance negotiations. Matt has prevailed on behalf of clients at all stages of litigation, from individual arbitrations to the United States Court of Appeals for the Ninth Circuit.

An active volunteer within the legal community, Matt serves as the WARN Act subcommittee co-chair for the ABA Federal Labor Standards Legislation Committee; the Employee Vice Chair of the ABA Labor and Employment Law Section Webinar Committee; a member of the Education Committee of the California Employment Lawyers Association; and a Chapter Editor of the Fair Labor Standards Act Midwinter report for the ABA Section of Labor and Employment Law. Matt is an also active volunteer at Workers' Rights Clinics through Legal Aid at Work, where he supervises student attorneys in providing legal assistance to low wage workers.

Matt graduated magna cum laude from the University of Minnesota Law School in 2005. While attending the University of Minnesota Law School, Matt was a staff member and Managing Tribute Editor of the University of Minnesota Journal of Global Trade. He also participated in the Child Advocacy Clinic, representing the interests of children as a student attorney in both Family and Juvenile Court. Matt graduated magna cum laude from Rhodes College in 2002 with a Bachelor of Arts degree in English Literature.

Matt is admitted to practice in front of the United States Supreme Court, the United States Court of Appeals for the Eighth and Ninth Circuits, and the state and federal courts of Minnesota and California.

Michael A. Josephson is managing partner of Josephson Dunlap, LLP—a nationally recognized worker advocate litigation boutique. 

For almost twenty years, Michael has represented employees in state and federal wage and hour class and collective actions.  Michael has extensive litigation experience and has been lead counsel or co-lead in over 1,000 class and collective actions, individual cases and arbitrations seeking damages for unpaid overtime and wages based on allegations that employees worked off-the-clock, were misclassified as exempt or as independent contractors, or were the victims of regular rate and/or technical violations of both state and federal wage laws. He has represented tens of thousands of workers over the years and has litigated cases involving in almost every major industry, including oil and gas production and service companies, staffing companies, national food processors, retailers, transportation, government agencies, call centers, chemical plants, technical companies, stadium service providers, and litigation service companies.  These efforts have generated hundreds of millions of dollars in unpaid overtime payments and industry-wide changes to challenged wage practices.

Michael and his firm welcome referrals and joint venture opportunities.

Mr. Fortney is a co-founder of Fortney & Scott, LLC, a Washington, D.C.-based law firm counseling and advising clients on the full spectrum of work-place related matters, including employment discrimination and labor matters, compliance programs, government contracting, and developing strategies for avoiding or responding to workplace-related crises. Mr. Fortney’s broad-based practice includes equal employment opportunity requirements, wage and hour matters, federal contractor’s affirmative action and non-discrimination obligations, collective bargaining, and workplace health and safety. He brings experience from the public and private sectors, and he represents clients before federal and state agencies, including the U.S. Department of Labor’s agencies, the Equal Employment Opportunity Commission, and the National Labor Relations Board.

Previously, Mr. Fortney served as the chief legal officer and other positions at the U.S. Department of Labor in Washington, D.C. during the term of President George H.W.  Bush.

Mr. Fortney is on the Board of Directors of the American Employment Law Council, a co-founder of the Institute for Workplace Equality, and a Member of the ABA Council for the Labor & Employment Section.  Mr. Fortney has been recognized as one of the leading employment lawyers in Washington, D.C. by the CHAMBERS USA survey of America’s Leading Lawyers for Business in all years from 2005 through present.  He was selected for inclusion in the 2008 through present editions of The Best Lawyers in America, Washington D.C.’s, Washington D.C.’s Best Lawyers, and Super Lawyers.  Mr. Fortney received an AV rating (the highest level) by Martindale-Hubbell.

Mr. Passantino is a Co-Chair of the firm’s Wage and Hour Litigation Practice Group.  Mr. Passantino, the former Acting Administrator of the U.S. Department of Labor’s Wage and Hour Division, focuses his practice on all aspects of wage and hour law, including advising employers on federal and state wage and hour compliance issues, auditing payroll and employee classification practices, representing employers before the U.S. Department of Labor, and defending class and collective action litigation.  In addition, Mr. Passantino provides guidance and counseling to government contractors who are subject to the Service Contract Act and the Davis-Bacon Act.  He advises clients on implementing compliance programs, auditing and correcting wage and hour issues, and responding to the ever-changing wage and hour legal landscape.

Mr. Passantino is active in the hospitality, construction, retail, financial services, and energy industries, and regularly assists trade associations and individual employers in those industries with public policy, legislative, regulatory, and administrative issues.  He has testified before a number of congressional committees, including the House Committee on Education and Workforce and the House Committee on Oversight and Government Reform.  He is a frequent speaker on wage and hour issues, at conferences, webinars, and client-specific training sessions.

Mr. Passantino served as the Deputy and Acting Administrator of the U.S. Department of Labor, Wage and Hour Division (WHD) from 2006 until 2009, after joining the Department in 2005.  In this role, he led the WHD in its interpretation and enforcement of the FLSA, the FMLA, the Davis-Bacon Act, the Service Contract Act, and numerous other federal statutes.  Nominated by the President, Mr. Passantino was responsible for enforcement policy, field operations, strategic planning, budgeting, media relations, legislation, regulations, opinion letters, compliance assistance, and personnel matters.

Before his work at the Department of Labor, Mr. Passantino served as a law clerk to the Honorable John F. Nangle in the Southern District of Georgia, after which he practiced law for eight years in Atlanta and Nashville, focusing on FLSA, employment discrimination, First Amendment, and consumer and financial services litigation.  Mr. Passantino received his law degree at the University of Georgia School of Law, and graduated from Emory University with a B.A. in political science.  He lives in Alexandria, Virginia, with his wife and their four children.

Terri Gerstein is the Director of the State and Local Enforcement Project of the Harvard Law School Labor and Worklife Program. The project examines and strengthens state and local initiatives and enforcement of worker protection laws. Terri recently completed an Open Society Foundations Leadership in Government fellowship. Previously, she worked over 17 years in New York state government, including as the labor bureau chief in the attorney general’s office, and as a deputy labor commissioner overseeing wage and hour enforcement throughout New York State.

Prior to her government service, Terri worked at nonprofit organizations in Miami, representing immigrant workers and domestic violence victims, and also co-hosted a Spanish-language radio show on workers’ rights. She was a law clerk to the Honorable Mary Johnson Lowe in the U.S. District Court for the Southern District of New York, and she is a graduate of Harvard College and Harvard Law School.

Terri’s writing on workers’ rights issues has appeared in a wide variety of publications including the New York Times, the Washington Post, Slate, the Guardian, the Hill, the Nation, and the Daily News. 

Timothy Long has deep experience litigating complex labor and employment issues, having served as lead counsel in multiple class, collective, and representative actions and advising on dozens more. Tim litigates wage-and-hour matters, including exemption, incentive compensation, independent contractor, off-the-clock, and pay practice claims. He also has defeated class and collective certification (including at Stage One) in exemption, off-the-clock, and pay practice cases.

Tim advises businesses on employment litigation and other types of claims. He litigates employment discrimination and wrongful termination claims, as well as matters involving trade secrets. Tim provides counsel on many corporate matters and often advises entertainment industry employers on emerging issues. Tim has both prosecuted and defended employers in trade secret and unfair business practices litigation. He has also resisted competitor efforts to enjoin the lawful practices of his clients.

Tim represents employers before state and federal administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Internal Revenue Service, the U.S. Department of Labor (DOL), the California Department of Fair Employment & Housing (DFEH), Division of Labor Standards Enforcement (DLSE), and Employment Development Department (EDD). He also conducts workplace investigations and audits.

Tim has wide-ranging experience handling traditional labor relations matters, including advising on certification and decertification elections. Throughout his career, he has litigated dozens of traditional labor disputes, representing clients in courts, before the National Labor Relations Board (NLRB), and in private arbitration. Tim also advises clients on labor relations issues that arise in mergers and acquisitions.

Ellen Kearns is the office head and senior partner in the Boston office of Constangy Brooks Smith & Prophete, LLP, a law firm specializing in labor and employment law.

Ellen represents management in a full range of traditional labor and employment law matters. She has appeared before federal and state courts and administrative agencies with respect to employment discrimination, sexual harassment, wrongful discharge, wage and hour, and other employment related litigation. Ellen is recognized nationally for her wage and hour expertise, having served as Editor-in-Chief of the first, second, third and fourth editions of the ABA/BNA Treatise, The Fair Labor Standards Act. She is the former chair of the ABA Editorial Board for the Journal of Labor & Employment Law.

Ellen has been recognized by Chambers USA Guide, Best Lawyers in America, American Registry, and Super Lawyers (Top 100 in Massachusetts, Top 50 Women in Massachusetts, Top 50 Women in New England). She is a frequent speaker on wage and hour law.

Ellen graduated from Boston College Law School and Regis College.