The Next Election: A Watershed For Labor And Employment Law Issues? Veteran Labor and Employment Lawyer Jay Krupin Discusses the Potential Impact of a Democratic Victory in 2008

Thursday, November 1, 2007 - 01:00
Allen B. Roberts

Editor: Jay, there are quite a few important Labor and Employment law issues that are likely to become hot topics in Washington as the national elections approach that we'd like to hear your views on. Before we discuss these, however, let's first talk about your big news: you have just announced that you have brought your entire Labor and Employment team from your own firm, Krupin O'Brien, to join Epstein Becker & Green.

Krupin: Yes, I'm very excited to say that 11 of us have moved from Krupin O'Brien to Epstein Becker & Green. Two of the team are joining as Members of the Firm-Ana Salper, who will be resident in the New York City office, and Kara Maciel, resident in the Washington, DC office. In addition, there are eight associates joining in the Washington and New York offices.

Editor: What led you to this crucial career decision?

Krupin: For more than a decade, we built up the boutique firm Krupin O'Brien, specializing in Labor and Employment law, with particular expertise in traditional labor law, collective bargaining, wage/hour disputes and strategic planning. We attracted clients in universities, companies in the public and private sectors and airlines. And about 50 percent of our practice was involved with the hospitality industry. From the hospitality industry, we moved into ancillary businesses, from hotels to resorts, to casinos, to restaurants, and so on.

Recently, we had been a popular target for firms that wanted to enhance their practices. We visited with a lot of suitors and found that most did not have the same type of culture as our firm. We built our firm on the ideas of having a strong commitment to each other, to loyalty and to client service at the highest level. And Epstein Becker & Green shares these values. Moreover, our client-base is national, and Epstein Becker & Green's 11 offices throughout the country will allow us to better serve those clients.

Editor: Allen, from Epstein Becker & Green's perspective, what does Jay and his team's arrival mean for the firm?

Roberts: While Epstein Becker & Green is a national firm, it maintains a boutique approach to the practice of law, with Labor and Employment being a crucial part of our practice. But adding this extraordinary Labor and Employment capacity does far more than further strengthen the firm's Labor and Employment practice. Jay and his team also will bridge our five core practice groups with yet another link. In addition to Labor and Employment, our other core practice groups are Business Law, Health Care and Life Sciences, Real Estate, and Litigation. The arrival of Jay's group capitalizes on the commonality of Epstein Becker & Green's broader client base and substantive practice areas. This allows us to expand services to existing clients and those clients that come to us with Jay's group. So, this addition of top lawyers goes well beyond merely enhancing our Labor and Employment capabilities.

Editor: Jay, how do you view your team's role within Epstein Becker & Green?

Krupin: I agree with Allen, that this combination creates incredible synergies across many legal practice groups at Epstein Becker & Green. First, our team's particular experience in the hospitality sector will integrate perfectly with other areas at the firm. The hospitality sector will, over time, have to address health care issues, another of Epstein Becker & Green's strengths. For instance, almost every major hospitality company in the United States has, or will soon have, a senior-living program, such as assisted living. They see that as using the same resources of housekeeping, food service, engineering, even concierge services. Hotels are not just being built as free-standing entities, they're being built with residences attached. We're seeing resorts are being built with health centers, with a health care component. For the next 20 years, as baby-boomers move from their fifties and sixties to their seventies and eighties, the hospitality industry will change. It will cater to the older person who will have significant savings and some discretionary income.

Roberts: In addition, Jay's team will enhance Epstein Becker & Green's Real Estate practice opportunities, because the hospitality industry is always dealing with real estate issues. Now, at Epstein Becker & Green, Jay won't have to farm out real estate work, with so many top real estate lawyers at our offices around the country who can handle this work.

Editor: Let's shift the discussion to the upcoming elections in Washington. Jay, as an experienced Labor and Employment attorney who has been based in Washington for many years, would you share your insights as to what will emerge as the key issues for labor and employment lawyers to watch?

Krupin: We are at a watershed time in Labor and Employment law. By that I mean there is a very real possibility that on January 20, 2009, there will be a Democratic president with a Democratic Senate and a Democratic House of Representatives majority. If that happens, I think it is likely there will be a review of many national labor and employment issues.

As for specific issues - in traditional labor law, the Employee Free Choice Act, which was recently debated and voted on in Congress and would strengthen union organizing, will definitely come to the fore. Companies are going to have to learn how to deal with that.

The definition of discrimination under the Americans With Disabilities Act under the present administration and the judges that have been appointed by the present administration could well become more encompassing.

Caps on punitive damages for EEOC claims - there has been a movement to either raise that cap or eliminate it - will be a key issue.

Sexual orientation is not a protected category under the federal equal employment statute. I think that is going to change as well. I suspect that half of the first 10 bills that come out of a new Democratic Congress, if such is the case, will deal with labor and employment matters.

Editor: Can you elaborate on these important political and legislative issues?

Krupin: If indeed a Democrat is President and the Senate has a majority of Democratic seats, the opportunity to frame the agenda is clearly going to be change. For the last eight years there's been a pent-up demand for those on the Democratic side of the aisle to institute more employee-friendly legislation.

That's why the Employee Free Choice Act is clearly going to be a hot topic - because it gets to the issue of how employees organize for purposes of collective bargaining and is an attempt at changing 70 years of federal labor law. The Democratic agenda would be to adjust this law, in order to make it easier for unions to organize. Instead of having secret ballot election by employees on whether or not they wish to join a union, the labor movement wants to move to a card-check process, which is potentially fraught with issues such as coercion, intimidation and interference.

Editor: You mentioned the several other legislative issues that also could be prioritized among federal lawmakers?

Krupin: As for the ADA - since it was passed 17 years ago, there has been a narrowing of the definition of a disability under the act. If Democrats end up holding increased power in Washington, the broadening of the definition of a disability is sure to be a key area of debate.

Regarding equal employment opportunity - when amendments to Title VII were passed in the early 1990s, they permitted punitive damages to be awarded. To get that legislation passed, certain caps on punitive damages were implemented. There's a belief that those caps are antiquated and possibly aren't high enough to punish those entities that willfully and wantonly commit discrimination violations. So, the caps could be either increased or eliminated entirely - of these options, we can clearly count on the caps being raised rather than eliminated under a Democratic majority in Washington.

The other key area is individual protection in the employment arena of sexual orientation. In many key states, sexual orientation is a protected category, precluding discrimination on that basis. But in the years since the Civil Rights Act of 1964 was passed, on the federal level, sexual orientation has never been considered a protected category. With a shift in Washington, as noted above, it will be viewed that the time has come to change this.

Editor: Is there any connection between these upcoming issues and your move to Epstein Becker & Green?

Krupin: Amid these potential changes, we believed that to best serve our clients and to remain in the forefront in the areas of law in which we've practiced, we must join with a firm that has also seriously considered these changes, wants to further develop capabilities and already has a major presence nationally. Looking ahead, I think this combination is going to offer tremendous opportunities for our clients to deal with these burgeoning issues.

Roberts: The central common element of our five core practice areas is addressing business risk in a legal context for our clients. As Jay suggests, an election that can effect a new mood in any of the three branches of government is likely to impact our clients. Having a substantial DC office and the addition of Jay's group contributes in an important way to our ability to identify emerging trends and discern nuances of administrative and legislative developments for our clients.

Editor: Moving back from politics to law practice again: Jay, when a name partner of a law firm moves after 11 years to a completely new firm, it must be a daunting process in many ways. What exactly have you been focusing on since you arrived at Epstein Becker & Green, and what are your priorities in the coming weeks?

Krupin: Yes, it certainly has been a busy time, and even more, a very exciting time for me and my team. We have been having meetings with people throughout the firm to explore in more detail just how our practices will combine. The most important thing I have been doing is making sure that the clients we've brought with us feel comfortable and are satisfied. We're progressing as we'd planned; I couldn't find a more receptive, more interested and more intellectually stimulating group.

Roberts: And we are tremendously pleased and excited that Jay and his group have decided to join Epstein Becker & Green.

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