In a nutshell
Labor and employment law governs the workplace and the relationships between employers and employees; between managers and unions; and between employers and government. BigLaw firms tend to represent employers.
Employment work 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. 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 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 discipline.
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, Executive Compensation & ERISA
Many firms have a distinct practice focused on executive compensation, employee benefits and ERISA work. For the uninitiated, ERISA is the Employee Retirement Income Security Act of 1974 – the federal statutory framework that governs the administration of employee benefit plans and the rights of the beneficiaries. Kyoko Takahashi Lin, partner at Davis Polk, tells us: “The work we do is really about people: how do you motivate them? How do you get them to be incentivized and work hard and do the right thing and treat employees well? That is what we are trying to advise companies on.” There is much, much more to this specialization, however.
What lawyers do
- Receive notice of a charge or complaint filed with the EEOC or DOL, respectively.
- Advise the 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.
- Provided the case is not settled, standard litigation will commence.
- Review and draft employment contracts and policy documents.
- Advise the client on the steps to take when problems arise.
- Keep the client abreast of changes to laws and regulations, often by way of newsletters or seminars.
- Advise on the employment implications of business transactions.
- Focus on minimizing risk for the client, by instilling a proactive and preventive approach.
- 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
- Only a small percentage of cases filed in the courts are putative class actions. Most 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: the Americans with Disabilities Act, the Civil Rights Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act, and the National Labor Relations Act.
- Most charges are found to have 'no reasonable cause' and many others will be settled before litigation.
- The best labor lawyers will have good people skills, because they will be interacting with both management and unions. The most successful ones will be able to convince both management and unions that they have common goals. According to Thomas Linthorst, a partner in Morgan Lewis's labor & employment practice, “those that really can get close to their clients, understand what the client needs, and can think creatively about meeting the client's needs will find that to be a successful approach.”
- When the economy is down, clients are concerned about surviving, which often involves downsizing. Advising on reductions in a labor force is never pleasant.
- Alison Marshall, of counsel at Jones Day, says: "I do think that we move more quickly in comparison to some of the big commercial litigation cases. Also, our cases are not always as big, so associates often get more responsibility. That is a plus, but juniors need to be prepared to take on that responsibility."
- Sometimes the intensity of the workload is high, especially when lawyers are gearing up for a big trial. Being responsive is critical. Bettina Plevan, a partner at Proskauer Rose, points out: "Sometimes clients have pressing emergencies, and you have to be responsive immediately."
- Often lawyers will be dealing with a non-lawyer – an HR professional for example – so they need to be able to translate complex legal principles into clear concepts for them. It’s critical to be able to write well, with a view toward addressing practical problems, and not overwhelming the client. This is also true when it comes to explaining elements of a case or situation to the judiciary.
- Joseph Costello, a former partner at Morgan Lewis, warns: “This is an area of law that requires flexibility and adaptability. Every day there’s a new challenge, and the issues are not always predictable: an employee may have a disability that needs to be accommodated; there might be a union-organizing drive; or maybe an employee has complained about a post on social media, which another employee has published. Any of these situations could trigger a call to us."
- Stephen Poor, chair emeritus of Seyfarth Shaw, informs us that in this field, “there is still that focus on the real world, which can be messier and stickier than the relatively sterile laboratory of the justice system. In other words, success in this field requires a practical bent and a propensity to solve problems rather than win arguments.”
- The Business Insider reveals that the first half of 2022 saw an employment boom in the US. However, wages are still being affected by inflation despite a record number of jobs being added.
- Though for some industries such as technology, media and finance, inflation has adversely affected employment rates. With more demand for tech products in 2020 and 2021 due to lockdowns, these companies hired a large number of employees and are currently trying to reverse those actions. For example, tech companies like Google, Amazon and Meta cut more than 104,000 jobs in the last year.
- Despite this, a March Reuters article indicated that there has been a decrease in Americans applying for unemployment benefits. Even with the big-tech layoffs, the labour market is gaining strength.
- According to the Washington Post, the “red-hot” labour market in 2022 gave employees bargaining power. This led to a number of wins for unions against companies such as Trader Joe’s and Chipotle. This momentum has received support from the public with 71 percent of Americans in support of unionization.
- New York Times bestselling author and managing partner of Workplace Intelligence, Dan Schawbel, predicts that employees will increasingly hold their companies accountable. “Companies can no longer just be in business to make a profit;” says Schawbel, “now they have to make a societal difference, especially during these times of hardship and political and social polarization.” Future litigation may well be an outcome to consider here.
- When it comes to employee benefits, there is still no federal law mandating employers to grant paid leave. Though, some states have already taken matters into their own hands and implemented paid sick, medical or family leave laws. Such states include California, New York, Illinois & Massachusetts with Maryland and Delaware expected to join the list over the next two years.
- In terms of new legislation, The Pregnant Workers Fairness Act is set to take effect from June 2024. It will require most employers to give employees “reasonable accommodations” in pregnancy and childbirth. Most US states already have a similar law in place, but this hasn’t stopped some from expanding their legislation. In November 2021, New York state added siblings to paid family leave, expected to take effect on January 1, 2023. California has also pushed to increase paid family leave from six weeks to eight weeks and has allowed birth mothers to take an extra six to eight weeks.
- Pay transparency is also a hot topic moving into 2023. From January 1st, California employers are now required to publish salaries alongside job adverts. This adds to the growing number of States enacting such legislation, which includes New York & Washington State.