Labor & Employment


Contributed by Seyfarth Shaw LLP

The past year has seen many victories for businesses in the labor and employment context, with several favorable court rulings in class action and discrimination law and judicial checks on overreach by the EEOC. Going into a midterm election year, Senate Democrats are pushing legislation aimed at increasing pay for constituents, but meet opposition from Republicans and the businesses that would absorb the economic effects of this legislation, where existing legislation already exists to address various concerns raised in the proposed legislation.

Major Labor and Employment Case Law Developments

The wake of Comcast v Behrend and Dukes v Walmart witnessed a continuing trend of employer-friendly decisions. After the Dukes plaintiffs’ class was decertified by the Supreme Court, they filed a “rebooted” fourth amended gender discrimination complaint that narrowed the scope of the class to mainly California employees. Judge Charles Breyer denied certification under the Supreme Court’s rationale, finding again that the proposed class still suffered from a fatal lack of commonality. Several corresponding regional claims that were filed after the Supreme Court’s decision have been dismissed, dealing yet another defeat to the Walmart plaintiffs.

The Supreme Court handed down highly anticipated Title VII rulings in 2013. In Vance v Ball State University, the Court defined the term “supervisor” under Title VII as an employee empowered with the ability to take tangible employment actions, such as hiring and firing, against the complaining employee. This definition provides some protection from vicarious liability, but as Judge Richard Posner notes, there is still some ambiguity that companies should guard against by clarifying reporting relationships within their organizations.

The Court further refined Title VII in University of Texas Southwestern Medical Center v Nassar, holding that a successful Title VII retaliation plaintiff must prove “but for” causation; the employee must show that he or she would not have been subjected to an adverse employment action if he or she had not complained of discrimination. While most courts interpreting Nassar have found in employers’ favor, companies should not take more comfort in this decision than is warranted – some courts have proceeded more cautiously, finding that the “but for” cause of an adverse employment action is a material issue of fact that precludes early disposition by summary judgment.

Employers are now awaiting the Supreme Court’s decision in Sebelius v Hobby Lobby Stores, Inc. For-profit companies whose owners’ religious beliefs conflict with some of the Affordable Care Act’s birth control coverage requirements are closely following this case, which will decide whether they can refuse to comply with those provisions on religious grounds.

EEOC Overreach 

Continuing down its path of aggressive enforcement, the EEOC collected $372.1 million from employers in 2013 through the administrative charge process. Conversely, it only brought in $38.6 million through litigation, which the agency claims is due to successful conciliation and its policy to only litigate as a last resort. The EEOC has suffered significant blows in the form of large fee awards to prevailing defendants in the EEOC’s unsuccessful systemic cases. In EEOC v CRST, a pattern or practice sexual harassment case that was found to be groundless, the court ordered the EEOC to pay $4.7 million in attorneys’ fees and costs. In EEOC v Peoplemark, the court upheld a fee award of $751,942 for continuing to pursue litigation based on an alleged blanket no-convict hiring policy, even after it learned during discovery that no such policy existed.

Other hot topics surrounding the EEOC’s policies include its recent attention to background checks and social media policies. Companies have found it difficult to balance the EEOC’s 2012 guidance on employers’ use of background checks in hiring and retention decisions against state laws requiring background checks for certain jobs, but the EEOC has recently suffered substantive losses on this issue. In EEOC v Freeman, a pattern or practice claim alleging that the company’s policy of running credit and criminal background checks disparately impacts African-American and Hispanic male applicants, was dismissed (but currently on appeal to the Fourth Circuit). In EEOC v Kaplan, the Sixth Circuit affirmed summary judgment in favor of Kaplan in a disparate impact case involving Kaplan’s pre-hire credit history screening after Kaplan uncovered that the EEOC itself checks applicants’ credit histories as part of their hiring process. Despite these rulings, many employers are tailoring their processes to comply with the EEOC’s guidance, while keeping an eye on pending cases (including State of Texas v EEOC, EEOC v BMW, and EEOC v Dollar General) to see how this issue unfolds.

The EEOC may soon expand the scope of its enforcement into the realm of employers’ use of social media. The agency recently held a public hearing on social media’s impact on recruitment and hiring, harassment, records retention and litigation (particularly with respect to the discoverability of plaintiffs’ social media activities). While the agency indicated that the hearing was for information-gathering purposes only and that it does not intend to issue formal guidance, this will be something to watch moving forward.

Finally, of particular concern is the EEOC’s focus on the issue of implicit bias – the theory that humans have a natural tendency to develop unconscious thoughts and feelings towards social groups that may lead to disparate treatment discrimination. Despite the Court’s rejection of this theory in Dukes v Walmart, the EEOC continues to push for its adoption in its policy guidance and litigation. To guard against potential EEOC enforcement in this area, action – rather than thought – or belief-based training is encouraged; rather than identifying individual biases and blind spots, managers should be identifying and committing to strategic performance and policy-based solutions.

Pay Equity on the Legislative Agenda 

Leading up to midterm elections, Democrats face tough challenges to retain their narrow majority in the Senate and are expected to keep pushing buzzworthy legislation to get out the vote, including legislation aimed at raising the minimum wage and closing the pay gap between men and women. To show the administration’s commitment to pay equity, President Obama issued an Executive Order in February of this year raising the minimum wage to $10.10 for federal government contractors and subcontractors. However, Democrats have not secured the necessary Republican support to hold a vote on a bill that would raise the federal minimum wage.

Consistent with the worker-friendly agenda, Senate Democrats are also expected to continue to push for passage of the Paycheck Fairness Act (PFA), which would amend the Equal Pay Act of 1963 to significantly tighten the defenses available to employers and increase the damages available to plaintiffs. Efforts so far have been unsuccessful, with Republicans successfully stopping a pending debate and vote in April 2014 after businesses convincingly lobbied against it. Democrats have vowed to get the vote on the PFA back on the agenda before the midterm elections, and will continue to drive legislation that will make the headlines leading up to November.

Moving Forward 

While the stable economy and encouraging court rulings have given businesses some breathing room, diligence is of paramount importance in the face of aggressive EEOC enforcement and a highly politicized legislative agenda in the Senate majority in an election year. A proactive approach to compliance and active participation in the legislative process is the best way to safeguard against future headaches and navigate the changing legal landscape.

Labor & Employment - Nationwide


Band 1 | Jones Day

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Basic facts about the department
Key offices include Chicago, Cleveland, Dallas, Atlanta, Los Angeles, New York and Washington, DC.

What the team is known for A global powerhouse handling all aspects of labor and employment law, from providing counsel in traditional labor matters to complex employment litigation. Represents significant clients, achieving victories in disputes with far-reaching implications. Has particular experience in defending class actions in wage and hour disputes. 

Strengths (Quotes mainly from clients)
"They understand our business and care about what we're doing - they're a good partner. We've used them in a number of jurisdictions and have nothing but good things to say across the board. They're very strong everywhere we've used them and we're very happy."

"Their knowledge of the law and their strategic advice have been invaluable. Their ability to handle complex matters and consistently produce a top-quality brief is amazing."

Work highlights Achieved numerous victories in diverse matters for Verizon Wireless, including in wage and hour matters and alleged misclassification class actions, as well as several putative collective actions under the FLSA.

Represented United States Steel in gaining Seventh Circuit affirmation of the non-compensable nature of protective clothing changes, in connection with the Portal-to-Portal Act.

Notable practitioners  

Chicago partner Lawrence DiNardo heads up the global labor and employment practice. 

Significant clients IBM, BNSF Railway, McDonald’s, CITGO Petroleum, United Continental Holdings.

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Basic facts about the department
Key offices include Miami, Princeton, New York, Houston, Chicago, Philadelphia, San Francisco and Washington, DC.

What the team is known for Outstanding bench strength and top-tier coverage across numerous states, offering supreme breadth of experience and support. Particularly well known for its expertise in handling class and collective action suits, as well as its outstanding internal training programs for clients ranging from small businesses to Fortune 500 companies.

Strengths (Quotes mainly from clients)
"Historically in the US, they have established themselves as a preeminent labor and employment firm. Over the years they've maintained those high standards, and it always comes down to the people. I've always been quite happy with the quality of work."

"We use them for labor work and they are great! I think they are particularly strong for complex issues. My experience is they have a good network internally in all areas."

Work highlights Continues to act as external labor counsel to the US Postal Service, advising on matters affecting the largest unionized employer in the USA.

Acted for Paula Deen in the highly publicized matter of Lisa T. Jackson v Paula Deen et al, which alleged employer sexual harassment and discrimination.

Notable practitioners  

Philadelphia-based Joseph Costello is head of the labor and employment practice group.

Significant clients American Airlines, Bimbo Bakeries USA, Morgan Stanley, JPMorgan Chase, Rolls-Royce.

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Basic facts about the department
Key offices include New York, Los Angeles, Atlanta and Washington, DC.

What the team is known for Adept at high-stakes employment representation covering a range of matters, including discrimination, employee mobility and trade secrets. Places a strong emphasis on the financial services, corporate and real estate sectors, among others. Additional acumen in labor negotiations and disputes.

Strengths (Quotes mainly from clients)
"We're very pleased with them - they are consistently responsive, practical and knowledgeable, providing creative answers to difficult problems."

"A really good, high-end employment firm - not just in New York, but on the West Coast as well."

Work highlights Achieved a succession of significant wins for Cintas in the Sixth Circuit, concluding nine years of discrimination class action litigation.

Assisted AMR (American Airlines) in labor proceedings during its bankruptcy filings, which included the renegotiation of labor agreements with three unions, and achieved two trial wins, a 20% reduction in labor costs and advantageous merger positioning.

Notable practitioners  

Los Angeles partner Nancy Abell is global chair of the employment law department.

Significant clients Google, Facebook, Target, Disney, PepsiCo.

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Basic facts about the department
Key offices include New York, Los Angeles, Boston, New Orleans, Newark, Chicago and Washington, DC.

What the team is known for An expanding team offering broad and versatile national coverage, with additional expertise in the employee benefits, compensation and ERISA arenas. Also has niche sector specialties, including providing labor and employment support for major professional sports leagues.

Strengths (Quotes mainly from clients)
"They live and breathe this work. They have unmatched experience. I love their strategizing on lawsuits - their approach is so practical."

"Everybody on the team is great and everyone I've ever worked with there is terrific."

Work highlights Handled initial collective bargaining agreement negotiations between the Professional Referees Organization (a joint venture between US Soccer and Major League Soccer) and the Professional Soccer Referees Association.

Represented a number of clients in noncompete litigation, including Sientra, Silver Lining Asset Partners and Creative Artists Agency.

Notable practitioners  

New York partners Elise Bloom and Joseph Baumgarten are the co-heads of Proskauer's labor and employment law department.

Significant clients Sprint Nextel, McDonald's, Hess Corporation, McGraw-Hill, NBCUniversal.

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Basic facts about the department
Key offices include New York, Boston, Chicago, Houston, Los Angeles, Atlanta and Washington, DC.

What the team is known for An imposing presence in the labor and employment arena, particularly in high-profile, high-exposure litigation. Earns effusive praise from market commentators for its cost-effective representation and forward-thinking approach to handling matters, whether by undertaking proactive training or embracing technological innovation.

Strengths (Quotes mainly from clients)
"I consider them the top employment law firm I've worked with and really appreciate their national expertise. They make great use of their technology and help provide training for our internal clients. They are very team-oriented."

"I'm very impressed! I have worked with other firms, but consistently return to them because of the depth of their experience and the breadth of their offering."

Work highlights Represented Hewlett-Packard in a contractual dispute with Oracle valued at more than over $4 billion, and in a subsequent $95 million counterclaim.

Achieved denial of class certification for Prudential Financial in a nationwide collective action concerning independent contractor classification. This case had far-reaching implications for the insurance industry.

Notable practitioners  

Boston-based partner Lisa Damon is chair of the labor and employment department. 

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Basic facts about the department
Key offices include Los Angeles and Washington, DC.

What the team is known for Packs a punch in high-stakes labor and employment cases, including bet-the-company class actions and litigation defense. Has a wealth of high-level experience and is significant in shaping the employment law landscape for preeminent business clients.

Strengths (Quotes mainly from clients)
"The firm is very well regarded. There are many high-profile people at the firm with strong reputations. They are always good people to talk with."

"They are very good on high-level Supreme Court and Court of Appeals work. They have general litigation strength. I have enormous respect for them."

Work highlights Acted for Bell Helicopter on successfully dismissing a series of union charges filed against the client at the NLRB.

Advised Sunrise Senior Living Management on a wage and hour class action, and secured an order denying class certification.

Notable practitioners  

Catherine Conway is cochair of the group and a key contact.

Significant clients Cincinnati Bell, Delta Air Lines, Dow Jones, Northrop Grumman, Farmers Insurance Exchange. 

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Basic facts about the department
Key offices include New York, Chicago, Los Angeles, Dallas, Miami, Boston, Cleveland, Seattle, Las Vegas, Phoenix, Atlanta, Philadelphia and New Orleans.

What the team is known for An expansive destination firm for labor and employment matters. Provides a full range of management support for Fortune 500 companies and smaller businesses across a range of industries. Has considerable litigation mettle and substantial experience in complex multiplaintiff disputes.

Strengths (Quotes mainly from clients)
"We have been thoroughly impressed and pleased with Jackson Lewis's client service. They have been responsive to our needs, and have been outstanding in establishing a strategic vision that will help us meet our goals."

"What I like about them is that they have experts in each area that comes up, which is very economically efficient - experts can answer in two minutes, which is very reassuring."

Work highlights Gained summary judgment on all claims brought against Liberty Mutual Insurance Company in a large-scale ERISA class action in the District Court for the Southern District of California.

Lead counsel for Nassau County in actions brought by a number of public employee unions against wage freezes.

Notable practitioners  

Vincent Cino and Joan Ackerstein are key contacts, based in Morristown and Boston respectively.

Significant clients Pfizer, IBM, Boehringer Ingelheim, Brinker International, Hilton Hotels.

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Basic facts about the department
Key offices include San Francisco, Boston, Chicago, Philadelphia, Dallas, Las Vegas, Phoenix, Cleveland, Atlanta and Washington, DC.

What the team is known for A vast labor and employment boutique with impressive global coverage due to its continued national and international expansion. Offers expertise in litigation and advises on cutting-edge business management provisions.

Strengths (Quotes mainly from clients)
"We've used them throughout the country. They have significant coverage nationwide - pretty much anywhere you need to be, they're there. These are lawyers who know the courts and the judges locally."

"We use them for all of our labor and employment matters. They do world-class work in that area."

Work highlights Continued to represent Safeway in long-running multiplaintiff action Giordano et al v Safeway Inc, concerning manager exemption status.

In the Court of Appeals for the Sixth Circuit, the team acted on behalf of Rent-A-Center to achieve reversal of an order refusing to compel arbitration in a discrimination complaint leveled by a former employee.

Notable practitioners  

Co-presidents and managing directors Tom Bender and Jeremy Roth are key contacts at the firm. 

Significant clients 

National Retail Federation, Securitas Security Services USA, Arkansas Best, HCR ManorCare, Rent-A-Center.

第三等 |

Basic facts about the department
Key offices include Atlanta, Greenville, Chicago, Boston, Miami, Los Angeles, Houston, Phoenix, Memphis, Denver and Washington, DC.

What the team is known for A labor and employment giant with expansive domestic and international coverage. It is home to government-trained lawyers and offers traditional labor and litigation counsel in a broad range of sectors, including higher education, sports, entertainment and transportation. 

Strengths (Quotes mainly from clients)
"The Ogletree attorneys have taken the time to get to know our company and have truly invested in our lawyer-client relationship. I feel they are an extension of my team."

"The geographic footprint of this firm is a great match for our business and another real asset - there is no substitute for having someone on the ground who knows the opposing counsel, the judge, and the ins and outs of tricky local rules."

Work highlights Achieved complete summary judgment for the City of Boston and Boston Police Department in long-running litigation brought by multiple plaintiffs concerning drug testing. 

Engaged as global transactional labor and employment counsel for multinational enterprise software company IntraLinks, providing a broad range of employment law counsel, including advising on global mobility and wage and hour matters. 

Notable practitioners 

Indianapolis-based Kim Ebert is a key contact.

Significant clients Amsted Rail Company, Metropolitan Marine Maintenance Contractors Association, Vulcan Construction Materials, IntraLinks, Novell.

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What the team is known for
Key offices include Atlanta, Las Vegas, Houston, Boston, Fort Lauderdale and New Orleans.

What the team is known for A midsized boutique providing employees with cost-effective support and practical, business-minded advice on litigation prevention. Covers the full spectrum of labor and employment law, from advising on traditional labor relations to providing full-suite immigration assistance. Experienced at counseling clients in the healthcare, hospitality, automotive, retail and education sectors.

Strengths (Quotes mainly from clients)
"It is evident that they are experts, and I could not accomplish what we need to do without them."

"They have represented us in traditional labor matters as well as employment litigation, and have been a preferred provider."

Work highlights Acted for Virtus Partners in litigation concerning allegations of race-based harassment and wrongful termination of an employee, among other claims.

Represented the City of Boston in major interest arbitration and union negotiations involving the police union and other public safety concerns.

Notable practitioners  

Atlanta-based Roger Quillen is managing partner of the firm and a key contact.

Significant clients Comcorp of Tyler, General Dynamics, Caesars Entertainment, University of Massachusetts, Starwood Hotels & Resorts Worldwide.

第四等 |

Basic facts about the department
Key offices include New York and Los Angeles.

What the team is known for Skilled in implementing innovative early-resolution strategies. Provides counsel on numerous internal and whistle-blower investigations, and has significant litigation experience, which is bolstered by a robust first-chair trial group. Handles issues including wage and hour disputes and trade secrets.

Strengths (Quotes mainly from clients)
"They are very skilled employment litigators. They handle the defense and give us the options that we need to know for case decisions."

"They offer superior client service and are extremely responsive. They provide strategic excellence."

Work highlights Continues to act as worldwide employment law counsel for Facebook, providing representation in disputes and advising on employment-related matters, among others.

Defended venture capital firm Kleiner Perkins in a high-profile gender discrimination and retaliation claim brought by a female partner.

Notable practitioners  

New York partner Mike Delikat chairs the global employment law and litigation practice.

Significant clients Credit Suisse, Lawrence Livermore National Laboratory, Morgan Stanley, AllianceBernstein, Microsoft.

Foreign Experts

Foreign Experts are individuals with expertise in a different jurisdiction to the one they are based in. These individuals are particularly highly regarded for international and cross-border work. Usually, they will be identified in the jurisdiction in which they are based and in their country of expertise.

Senior Statesman

A 'Senior Statesman' is a lawyer who no longer works hands-on with the same intensity but who, by virtue of close links with major clients, remains pivotal to the firm’s success.

Eminent Practitioners

'Eminent Practitioners' are highly influential lawyers in a particular practice area who, due to managerial or client relationship commitments, are less active in day-to-day work but remain key players in the team.

Other Noted Practitioners

Other Noted Practitioners are individuals who have not yet been ranked but are seen to be active and accomplished in this area of law.

Other Noted Firms

Other Noted Firms are firms that have not yet been ranked but are seen to be active and accomplished in this area of law.