Jones Day's Labor And Employment Law Practice: A 25-Year Evolution

Saturday, July 1, 2006 - 01:00
Willis J. Goldsmith
Andrew M. Kramer

Editor: Would each of you gentlemen tell our readers something about your background and professional experience?

Goldsmith: I graduated from law school in 1972 wanting to be a labor and employment lawyer. After a few years with the U.S. Department of Labor and in private practice in New York, I joined the Seyfarth Shaw firm in Washington, DC in 1977 and began working with Andy. We practiced together and basically handled any matter that involved the employment relationship. At this point, my practice is probably 85 percent litigation - federal and state courts, agency litigation, labor arbitration and appellate work.

Kramer: I graduated from law school in 1969 and joined a firm in Chicago. Taking a leave from that firm, I drafted the executive order giving Illinois state employees the right to bargain and went on to chair the agency charged with implementing the order. After rejoining the firm, I moved to its Washington office in 1977 and there met Willis, with whom I have had the pleasure of practicing ever since.

My practice has encompassed just about everything in the labor area. At one point this included a great deal of litigation, including appellate work. Today I handle a considerable amount of traditional labor work for large companies, including legacy issues and new contracts.

Editor: How did each of you come to Jones Day?

Goldsmith: We joined Jones Day on the same day in June of 1983. We had talked about it together, and while we were content where we were, Jones Day was looking to grow its labor and employment practice. We knew of Jones Day's reputation, and we believed that we could contribute to that reputation by developing a high-quality labor and employment practice. This is our 24th year with the firm.

Editor: Please tell us about your practice. How has it evolved over the course of your career?

Kramer: When I started practicing in 1969, the types of litigation we have today were not in evidence. Until 1963 and the Equal Pay Act, there were no federal antidiscrimination statutes. In 1965 Title VII appeared, and then over the next few years, the Age Discrimination Act, OSHA and ERISA. All of this has served to transform labor law from what was thought of as dealing with union-related issues to a litigation practice that addresses causes of action brought under a host of federal laws, as well as state-related causes of action.

Goldsmith: As a consequence of that development, we have seen an increase in specialization within our area. Our lawyers tend to see themselves as employment lawyers or labor lawyers, but generally not both. Frankly, I think that is too bad. Andy and I grew up doing everything and believe that having a broad base of experience results in a better grasp of the issues we are called upon to address.

Kramer: Today we have lawyers who are experts, for example, on the Family Medical Leave Act but who do not enjoy the same level of expertise with respect to, say, the National Labor Relations Act. When we began, it was expected that we would be able to function across the full spectrum of labor and employment law. That is harder to do today, given the wide variety of potential causes of action.

Editor: And the firm's labor and employment law practice? What is its origin and how has it developed?

Kramer: When we joined Jones Day, the intention was for us to build a national, and indeed international, labor and employment law practice. Over the years that followed, we made some conscious choices. For starters, we would not have a labor and employment lawyer in every office of the firm. To build a national practice, it was more important to have the right mix of people and talent across the firm and in the places where it really mattered. In the early 1990s Willis took over running the practice, and he has brought into the fold a spectacular group of practitioners. As a result, we have built a terrific client base that is worldwide and looks to us on a wide array of labor and employment issues.

Editor: How is the firmwide practice organized today?

Goldsmith: We have labor and employment lawyers in most of our domestic offices, ranging in number from three or four to 12 or 14, depending on the office. They all work together on a daily basis. We staff matters by bringing the appropriate expertise and experience to the problem, typically without much regard to geography. For example, we are handling a major matter in federal court in San Francisco where the lead partner is from our Columbus, Ohio office supported by lawyers from San Francisco, New York and Washington. This is the pattern we have followed in building the practice, and it has served us well.

Of course, we also have local practices, where we service clients in the cities and regions where our offices are located.

Editor: What specialties does the practice include?

Goldsmith: Over the past five years there has been an explosion of wage and hour class action cases, and we have a large number of these cases pending in state and federal courts around the country. We also handle the usual range of discrimination matters, including age, race, sex, sexual harassment, and so on. We are especially proud of our expertise in traditional labor matters, as well as our general administrative experience in dealing with the EEOC, OSHA, and various other federal, state and local agencies regulating the marketplace.

Editor: Global business today is conducted across a multiplicity of jurisdictions. How does a practice like this function in a multijurisdictional framework?

Goldsmith: We have to be mindful of the law in all of the jurisdictions in which our clients conduct business. Of our 30 offices, 15 are overseas. In the EU countries we have 17 full-time labor and employment lawyers. Because of the highly integrated way in which the firm and our practice operate, we draw upon resources across all of our offices as necessary to deal with a client's issues in a particular jurisdiction. This is largely a question of effective communication, which we focus on constantly.

Editor: Mr. Goldsmith, last year you moved from the firm's Washington office to New York. Since you are chair of the firmwide labor and employment practice, an obvious question is what were the reasons for the move?

Goldsmith: Jones Day has a significant commitment to our New York office and to all of the practices represented here. I have represented companies in the New York area for years, but only fairly recently concluded that we should have labor and employment lawyers residing in New York.

Today we have six full-time practitioners in New York, and we will continue to grow. This is consistent with our strategic objectives, which are driven by our clients' needs.

Editor: Mr. Kramer, I understand much of your focus is on heavy industry and traditional labor relations activities. Please give us an overview of this aspect of the firm's practice.

Kramer: We represent a considerable number of manufacturing companies, including companies from the automotive, steel, aluminum and tire industries. Today, many of these companies have legacy costs which constitute balance sheet and survival issues for them. The ratio of active workers to retirees today is the opposite of what it was 30 years ago. As a consequence, we are engaged in negotiating and strategizing on billions of dollars of liability. Our efforts in this regard will determine the future of some of these enterprises. It is an interesting time to be a labor lawyer.

Editor: The business press seems to feel that, in the discussion between management and the unions today, all the cards are held by management. Do you agree?

Kramer: I do not. If the issues were simply the traditional management-labor issues of the past, management would appear to be ascendant, but the fact is, the issues are new. In the aluminum industry, for example, there are 12 smelters in the United States - there were 34 in 1975 - and metal prices are much higher than in the past. The cost of a strike for management today in these circumstances is infinitely greater than it was in the past. In the automobile industry, management is confronted with a market that is replete with alternative choices for the consumer that did not exist 30 years ago, and that serves to put whatever cards management may hold vis--vis the unions in a completely different perspective. Management today cannot afford to stand still and be passive at the bargaining table.

Editor: Do the negotiations require bargaining between equals?

Kramer: There is no question but that globalization has changed the world in which these companies operate. In the past the heavily unionized industries were cartels: they produced the goods, and consumers paid the price. Period. That is no longer the case. It is not so much that negotiations require bargaining between equals, but there must be a candid and full discussion between people on both sides of the table who are invested in finding a real solution, not a short-term, cosmetic solution that only serves to hold the problem at bay for a brief time.

I think the new dialogue is underway. That is not to say, however, that the unions are going to give up some of the things they have gained over the years. Their membership may believe that it makes no sense to afford the company relief if the plant is going to be shut down anyway. There is a general recognition that a restructuring of the relationship between management and organized labor is necessary if American heavy industry is to survive - with systemic changes on both sides of this equation called for - but how the discussion is going to proceed, and where it will lead, is uncertain. This is an interesting, and difficult, time.

Editor: Where would you like to see the firmwide labor and employment law practice in, say, five years?

Goldsmith: I would like to see the practice continue along the same trajectory it has been on for the last 23 years. That is, measured growth, a continuing ability to appeal to the highest caliber of law school graduates and laterals, and, most importantly, a continuation of our pattern of excellence in serving our clients on a national and international basis. If we continue to serve our clients as we have, I'm confident that our future will continue to be bright.

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