Labor and Employment

In a nutshell

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Labor and employment law comprises a myriad of federal, state and local regulations and laws that govern the workplace and the relationships between employers and employees; managers and unions; and employers and the government. BigLaw firms tend to represent employers.

Employment work accounts for much of what firms currently do and involves both litigation and counseling. The former tackles claims of discrimination, including age, disability, national origin, race, religion, whistle-blower/retaliation, sex and sexual harassment. Such claims are brought by individuals or administrative agencies like the US Equal Employment Opportunity Commission (EEOC). Other common disputes concern unpaid overtime ('wage and hour' claims) under the Fair Labor Standards Act (FLSA), and claims relating to the Family and Medical Leave Act (FMLA), both of which may be filed with the US Department of Labor (DOL).

Lawyers who offer employment counseling advise on compliance with various employment laws like wage and hour, antidiscrimination or FMLA. This involves advising on clients’ wholesale employment policies and practices, as well as on 'difficult situations', be they sexual harassment complaints or reductions in force. They will often be called in to advise on the employment aspects of business transactions like M&A or restructurings. Attorneys will either provide both litigation and counseling advice, or specialize in one or the other.

BigLaw labor lawyers commonly advise management on union matters governed by the National Labor Relations Act (NLRA), which is administered by the National Labor Relations Board (NLRB). They have expertise in collective bargaining, union and strike avoidance, and strike breaking. They will also advise on Occupational Safety and Health Act (OSHA) matters, which the DOL (via the Occupational Safety and Health Administration) enforces. Labor attorneys may also engage in litigation of NLRA and OSHA disputes.

Employee benefits and executive compensation are also areas that come into the mix, though many firms treat them separately.

What labor and employment attorneys do

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Employment litigation 

  • Receive notice of a charge or complaint filed with the EEOC or DOL, respectively.
  • Advise client on how to respond to the EEOC, DOL or other government investigations.
  • Negotiate with the agencies, work with them in investigations, and try to come to settlement in appropriate cases.
  • If a class action, oppose class certification.
  • If no settlement can be reached, begin discovery – paper and electronic. Settlement can occur at any stage of a case.
  • Interview witnesses and take depositions.
  • Write brief.
  • Go to trial.
  • Handle post-trial steps and/or motions.

Employment counseling 

  • Review and draft employment contracts and policy documents.
  • Advise client on the steps to take when problems arise.
  • Keep client abreast of new changes to laws and regulations, often by way of newsletters or seminars.
  • Advise on the employment implications of business transactions.

Labor relations 

  • Act as a liaison between management and unions.
  • Lead negotiations between the different sides.
  • Litigate cases before the NLRB and in federal courts.

Realities of the job

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  • Only a small percentage of cases filed in the courts are putative class actions. Most of them are wage and hour or discrimination cases.
  • Cases are heard in state and federal courts, as well as before administrative and regulatory boards.
  • Many labor and employment laws will sound familiar to you: Americans with Disabilities Act, Civil Rights Act of 1964, Equal Pay Act, Age Discrimination in Employment Act and National Labor Relations Act.
  • The federal EEOC received almost 100,000 charges of discrimination in 2011, the highest number in the agency's 46-year history. It only litigated 300 cases, however, which may be a slight uptick on 2010 but still the second lowest figure in over a decade.
  • Most charges are found to have 'no reasonable cause' and many others will be settled before litigation.
  • The EEOC and NLRB are separate administrative agencies and are not part of the DOL.
  • The best labor lawyers will have good people skills, because they will be interacting with both management and unions. Some attorneys choose antagonistic tactics, which makes them unpopular with representatives of organized labor and can make negotiations more fraught. The most successful ones will be able to convince both management and unions that they have common goals.
  • When the economy is down, clients are concerned about surviving, which often involves downsizing. Advising on reductions in force is never pleasant.

Current issues

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  • The past couple of years have seen an increased focus on reductions in force.
  • Labor lawyers, until recently considered something of a dying breed, have been given hope of a renaissance as a result of the Obama administration. Healthcare reforms – and the potential enactment of more labor laws – are already having a major impact on employment. It will be interesting to see who will fill the shoes of current labor partners when they retire, since not many younger attorneys have labor expertise.
  • There have been a number of legal changes to employment law in 2011. Work related to the abolition of the default retirement age; changes to maternity and paternity leave provisions; plus aspects of the Equality Act and the Bribery Act both passed in 2010, will be keeping lawyers' plates full in the near future.

What top labor and employment lawyers say

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Eric Dreiband, partner, Jones Day 

“There is a great element of passion in the work I do – how people earn a living is important to them, their families and their employers. Understandably, workplace disputes involve emotional, personal and complex legal issues, and, often, issues of personal integrity and reputations are at stake.”

“The hardest thing for many junior associates to learn is that they have a lot to learn. Law school provides them with a basic understanding about how the law works, but upon entering the world of private practice, there’s a whole lot to learn about specific laws, problems clients face, and creative ways to solve those problems to the extent possible within the legal system. It takes many years of long days and hard work to develop expertise.”