The Need For Wise Counsel In The Face Of Ever-Changing Labor And Employment Law

Thursday, November 1, 2007 - 01:00

Editor: Please describe the Labor, Employment and Immigration Group at Ballard Spahr. Of your 11 offices, how many are engaged in this practice?

Langel: We have a national practice in the traditional labor area - even in places where we do not have an office. Our lawyers have traveled throughout the country assisting management with a wide variety of labor matters. In the employment area, we actively practice in all states where we have offices. In states outside our footprint, we frequently work with local counsel. We handle immigration matters and provide immigration advice nationally.

Editor: Most full-service law firms have active labor and employment practices. What makes Ballard Spahr different?

Langel: We are unique in that our traditional labor law practice continues to grow. When clients are unionized, we provide advice regarding collective bargaining agreements, often serving as the chief negotiator. We handle grievances, arbitrations, unfair labor practice charges and counsel clients on their day-to-day relationships with their bargaining unit employees. When clients are union-free, we counsel, train and educate them on how to remain union-free.

Within the past decade or so, perhaps due to declining union membership, unions have become more creative in their organizing activities. Mounting a "corporate campaign" against a large company is one tactic that unions are now employing. Corporate campaigns may include, among other things, negative advertising and publicity about the company and its officers, lobbying for legislation that will negatively affect the company, and picketing or boycotts of company locations and products. We assist clients in crafting effective strategies to address corporate campaigns.

We have several former National Labor Relations Board lawyers and a number of partners and associates who work daily in the traditional labor area.

Editor: What industries does the firm assist?

Langel: We assist in all industries from professional sports teams to the public sector. These industries include manufacturing, construction, health care, education, professional services, real estate and resorts.

Some industries are a product of our various geographic locations. For example, in the Philadelphia region, thanks in part to the resuscitation of the Philadelphia Navy Yard, the shipbuilding industry has become a primary focus. Other industries are a product of our national full service law firm. For example, as a part of our extensive national real estate practice, we do a great deal of work with the resort and hotel industry. Other specific engagements, by industry, include work with cable communications, blood collection, higher education and oil companies.

Editor: You currently have 65+ attorneys working in this area. What accounts for your rapid growth - was it organic or by acquisition?

Langel: Both. Almost 25 years ago we started the group with two lawyers. Of the 65, more than 30 are home-grown. We've had several lateral partners who have been critical to our success. Most recently, we added six employment lawyers in our Phoenix office. Presently, we are actively looking to develop an on-the-ground presence in our newly opened southern California office.

Editor: Do some offices, such as the Phoenix office, specialize in practices that are endemic to their given regions?

Langel: As a rapidly growing city, Phoenix has an abundance of construction and development companies. In addition to employment counseling and litigation, clients in these industries have a supplemental need for OSHA and immigration counseling and litigation. Phoenix is a full service practice doing the full panoply of employment counseling and litigation, but they also have become proficient specialists in OSHA advice and counseling and OSHA litigation. Additionally, our Phoenix employment lawyers have been in the forefront of immigration, particularly with recent developments. In fact, we are currently representing the U.S. and Arizona Chambers of Commerce, along with ten other business groups, in a nationally prominent lawsuit to declare unconstitutional an immigration law scheduled to take effect on January 1, 2008. The Phoenix lawyers are truly leading authorities throughout the Southwest for their OSHA and employer immigration compliance expertise.

Editor: A recent court ruling relating to immigration held that no-match letters could no longer impugn employers for having knowledge of mismatches. What result will this have in the way you advise employers?

Langel: Our counseling has been cautious regarding the no-match letters insofar as our lawyers believe that some of the new regulations and new legislation, like that in Arizona, violate the law. Our lawyers counsel clients to pay attention to the new laws while at the same time not to engage in behavior that might otherwise be in violation of constitutional rights.

The new injunction from the federal District Court in California puts a temporary halt to the proposed regulations on using the SSA no-match letters. Prior to these regulations, we had been advising employers to take particular action to contact the employee and to solicit information from the employee, asking for replies. The new regulations continue to provide for reply times. We, therefore, are telling employers to continue to contact employees for replies. We're being circumspect; we don't want to violate anyone's rights, but we are not counseling our clients to violate the law.

Editor: Perhaps, you could share with our readers some of the advice you give clients on best practices for avoiding and dealing with wage and hour claims.

Langel: We're encouraging clients to engage in self audits and not to rely on job descriptions alone. Although the job description, if followed strictly, might result in someone being an exempt employee, his actual day-to-day tasks might place him in a non-exempt status. There are constant new developments, new class actions and new litigation. We stay current on what is being challenged and advise employers to be vigilant, making sure that employees are not working off the clock, such as working through lunch, and inadvertently creating an overtime situation.

Editor: Your firm is a recognized leader among law firms in the area of diversity, having been chosen by DuPont over the years to represent it, owing in part to your diversity practice within the firm. Do you have special tools for your clients that help them to follow good diversity practices?

Langel: Our lawyers specializing in diversity have developed best practices based on counseling, audits and training. We welcome the opportunity to roll up our sleeves and get on site at the employer's place of business. We think working with HR, labor relations, supervisors and employees onsite is a very effective mechanism.

When Ballard went through its own diversity training four years ago, we hired an outside consultant. He didn't look at our numbers, didn't look at empirical evidence, but rather met with every partner to help us determine what the climate of the firm actually was and what it possibly could be in the future. That training was incredibly healthy and eye-opening. In the same way, our being able to go onsite with our clients allows us to determine what is really going on in their workplace and where we can offer our best advice. We can then apply best practices to the particular client situation.

Editor: What new trends have you seen in the way in which collective bargaining agreements are now being structured? Is health care one of the principal focuses?

Langel: Perks - sick time, vacation, pension benefits - continue to be issues. Health benefits continue to be very expensive. In the industries where there haven't been extensive co-premiums and co-pays, I believe we will continue to see an emphasis on that area with an increase in the employee's participation. You will see employers, when dealing with modifying health benefits, seek to swap wages for benefits when the union insists on less employee participation. The wage increases will be lower when the health benefits remain the same. Many companies may follow the lead of General Motors in taking health benefits for retirees out of the year-to-year expense line.

Editor: Which of the current federal laws relating to employment do you feel is time for an overhaul? The FLSA is frequently mentioned along with immigration laws.

Langel: The FLSA is out of date notwithstanding the attempt by the Department of Labor to make changes in 2004. Our feeling is that from 2004 to 2007 not enough clarity has been added - that the exceptions and exemptions in the legislation don't match reality, thereby calling for a closer look by Congress. The last 20 years have witnessed a high tech age and jobs have changed - jobs, where traditionally management labor lawyers would have claimed they were exempt because they apply a certain amount of judgment, have been held otherwise. The counter argument now is that the employee's judgment has been taken away because we're in a high tech age - and the employee's work is more clerical. Management lawyers don't accept that premise, but we are seeing more and more lawsuits being brought as a result of technology. The area is subject to a guessing game. We really believe that Congress needs to take a close look at the FLSA and match the current workforce with the legislation.

We also think the FMLA needs to be looked at closely. We continue to be concerned about the use of intermittent leave and its effect on productivity on a day-to-day basis. And of course, there needs to be a resolution regarding immigration. That goes without saying.

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