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, a partner 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 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.”
- COVID-19 has had a profound effect on this sector, with a significant increase in activity as businesses reduce staff costs to survive in a recession or adapt to new ways of working.
- The Biden administration’s vaccine mandate and the Supreme Court’s involvement is a significant case in this sector. Mask mandates continue to be scrapped and re-instated in different industries, venues and states. Individual businesses also face pressure from people pro- and anti- mask to change their masking rules. Employees may face discrimination for their choice to wear or not wear a mask. This also intersects with religious and medical mask exemption grey areas.
- As companies navigate return-to-work and hybrid working, there are questions surrounding the legality of certain surveillance tools that monitor employee productivity. Employers looking to do this will need to ensure that they’re not breaching the privacy of their employees.
- A recent push for a federal mandate for paid family leave has seen many employers revamp their paid family leave offerings. 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.
- A recent report by Forbes documents that 4.3 million Americans left their jobs in December 2021 – a near-record number. This is a turn from previous concerns around mass-layoffs, as it’s clear that employers are struggling to recruit and retain talent.
- One area of legal work that is likely to increase is that which focuses on employers’ liability as it pertains to health and safety. Several class-action suits may be brought against companies for their handling of the pandemic in the next few years, bringing in their wake a host of new regulatory and compliance issues.
- Related to this is mental health. In 2021, Forbes predicted increased levels of burnout caused by the pandemic, while the McKinsey report highlights the dangers of high stress levels and notes that only 26% of “leaders create psychological safety for their teams.” Deloitte’s “Five workforce trends to watch in 2021” piece, argues “Organizations that integrate well-being into the design of work at the individual, team, and organizational levels will build a sustainable future where workers can feel and perform at their best.” In response to similar concerns, employers began offering their employees mental health days. As we see a steady return-to-work, there are questions surrounding whether this offering will continue, and if so, how many days should be offered.
- New York Times best selling 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.
- Wage and hour claims are a hot topic heading into the new decade. The Department of Labor has raised the level of pay at which white-collar workers no longer qualify for overtime pay. Currently, employees covered by the FLSA are entitled to receive overtime pay at ‘a rate not less than one and one-half their regular rate of pay.’
- Also relating to wages: as cryptocurrencies creep into the mainstream market, employers are looking at whether they can pay their employees in Bitcoin, Ethereum, or the like. There are concerns employers may be at risk of violating wage and hour regulations by compensating their employees with a non-fiat currency.
- The Trust for America’s Health reported in 2019 that only 55% of US workers are legally entitled to paid sick leave. There are currently no federal legal requirements for employers to offer paid sick leave.