Labor and employment

In a nutshell

Labor & employment

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

Employment litigation

  • 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.

Employment counseling

  • 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. 

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

  • 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, former 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."

  • 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.”

Current issues

June 2024

  • For some industries such as technology and media & finance, the job cuts of 2023 are continuing into the start of this year. With a certain amount of economic uncertainty, companies like Amazon, Google and Microsoft have been continuing to downsize their workforces since the hiring boom in these industries created by the COVID-19 pandemic in 2020 and 2021.

  • Despite this, a February Reuters article indicated that the number of Americans applying for unemployment benefits is continuing to decrease. Even with the big-tech layoffs, the labor market is gaining strength.

  • According to the Washington Post, the “red-hot” labor market in 2022 gave employees bargaining power, and striking was a big theme of the US labor & employment scene in 2023, with hundreds of thousands of workers walking out at some point in the year. Some of the most high-profile strikes were held by the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) and the Writers Guild of America. The latter of which lasted 148 days, and employers had a victory here, as the Supreme Court held that striking unions could be held liable for damages to an employer’s property as a result of any strikes held.

  • New York Times bestselling author and managing partner of Workplace Intelligence, Dan Schawbel, predicts that due to “some economic uncertainty as we had into 2024,” we’re likely to see “continued friction between organizations and employees on issues ranging from work arrangement, wages, climate change, artificial intelligence, employee monitoring, and more.”

  • 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, Oregon, Massachusetts, and Washington DC.

  • In terms of new legislation, The Pregnant Workers Fairness Act went into effect on June 27, 2023. It requires most employers to give employees “reasonable accommodations” for pregnancy and childbirth. Most US states already have a similar law in place, but this hasn’t stopped some from expanding their legislation. . In June 2023, New York state introduced new protection for breastfeeding mothers, including the provision of a suitable lactation room by employers.

  • Pay transparency was also a hot topic moving into 2023, and remains significant in 2024. Both the Salary Transparency Act and the Pay Equity for All Act were brought to Congress in March of 2023, and if these Acts pass, employers all over the nation would have to disclose the salaries for every single job posting. Even so, some states are already ahead of the curve; as from January 1st 2023, California’s employers are now required to publish salaries alongside job adverts. Ten states, including New York & Washington State have enacted such legislation, and there are a growing number of states considering legislation related to pay transparency this year.