In a nutshell
Labor and employment law governs 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 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 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 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.
- 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: Americans with Disabilities Act, Civil Rights Act of 1964, Equal Pay Act, Age Discrimination in Employment Act and National Labor Relations Act.
- 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. 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 & Bockius' 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 force is never pleasant.
- Alison Marshall of 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.
- Often lawyers will be dealing with a non-lawyer – a 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.
- Bettina Plevan, partner at Proskauer Rose, says: "Sometimes clients have pressing emergencies, and you have to be responsive immediately."
- Joseph Costello, 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 posting on a social media website, which another employee has published. Any of these situations could trigger a call to us."
- Stephen Poor, chairman 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.”
- Following the death of Justice Scalia in 2016, Donald Trump appointed Neil Gorsuch to the Supreme Court. In the employment law context, some predict he will be unwilling to give judicial deference to labor and employment agency regulations and unlikely to interpret statutes in a manner as to benefit employees – his dissent in the Tenth Circuit decision of TransAm Trucking v. Administrative Review Board has been cited by some as an example of this. The National Employment Lawyers Association expressed strong opposition to his nomination.
- In February 2018, the Supreme Court ruled unanimously that employees are not protected from retaliation if they report alleged corporate misdeeds unless they take it to the Securities and Exchange Commission. This comes two years after the Whistleblower Augmented Reward and Nonretaliation Act of 2016 (or WARN Act) was introduced, which aimed to strengthen the protections and incentives available to whistleblowers who report financial crimes. Instances of whistleblowing in the US have risen year-on-year since 2011, according to the Annual Report on the Dodd-Frank Whistleblower Program, released by Office of the Whistleblower (OWB).
- One area that has also been very active is the SEC's stance on policies and agreements that it contends may chill reporting to regulators, such as overbroad confidentiality agreements and nondisparagement provisions. “The SEC has brought several enforcement actions against companies where it claimed the policies or agreements were overbroad,” Linthorst informed us. “This means companies are generally reviewing their policies and agreements to make sure they don't preclude or chill employees from reporting potential violations of law to regulators."
- Another hot area is that of wage and hour claims. A new overtime rule will likely be issued in October 2018, and is predicted to raise the minimum exempt salary threshold level (which exempts workers from qualifying for overtime pay) for white-collar workers above the current benchmark of $23,660. The new threshold could be in the $30,000 – $35,000 range. There are questions over whether the Department of Labor has the power to implement a provision that could allow for automatic adjustments to be made to the threshold, so that the minimum salary matches the rate of inflation; if implemented, employers may have to raise salaries outside of normal time-frames (i.e. not in conjunction with performance reviews and at the end of the fiscal year).
- Linthorst gives us his view on the topic of wage and hour claims: “There has been lots of class and collective action litigation as everyone seems to be suing for overtime.” Some of the claims are being brought by those covered by the 'white-collar exemptions' to the overtime requirements, while others have been brought by employees claiming that they have not been properly compensated for 'off-the-clock' work. "One of the reasons for this spike,” explains Linthorst, “is that under the federal overtime law, the Fair Labor Standards Act, a claim can be filed on behalf of all those who are 'similarly situated’ to the plaintiff and, upon a determination by the court that the case is appropriate for notice, notice can be sent to all others ‘similarly situated’. When that happens, there can suddenly be hundreds of claims.”
- More generally, Linthorst pointed to “the rise of labor and employment laws, regulations and ordinances at the state and local level.” He continued that “a lot of state and local governments are passing laws; some of them are around wage theft, some relating to paid sick leave, and some are just new posting requirements for existing laws, but it creates a real challenge for those employers that operate nationally.”
- Experts predict that allegations of sexual harassment in the workplace are likely to increase as the #MeToo movement gains traction, and could extend to claims against managers and executives of all types of companies.