Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

Hunton & Williams works with clients to develop strategies to enhance workplace safety and to avoid OSHA violations, and have extensive experience in the development, implementation and auditing of occupational safety and health programs.  Our advice practice includes the development, implementation, and audits of occupational safety and health compliance programs for employers; drafting of policies with respect to obligations under OSHA; development and review of employee safety manuals and procedures; preparation of emergency response action plans for employers; counseling of employers, including government contractors, with respect to all facets of the employer/employee relationship, including safety and health issues; and advise employers regarding OSHA obligations.  In addition, our attorneys conduct frequent seminars for managers and employees on preventative practices to avoid employment litigation; employment law compliance; safety and health compliance; and pandemic/disaster preparedness.

We have defended clients facing citations by both state and federal OSHA agencies, and provide comprehensive representation throughout the process.  Our attorneys contest citations, appeal decisions, and handle civil actions based on alleged OSHA violations and represent employers in lawsuits and agency proceedings throughout the country in cases involving OSHA issues.  The firm has defended clients in North Carolina, Iowa, Maryland, Minnesota, Florida, South Carolina, Virginia, Pennsylvania, Ohio, Alabama, Georgia, California and Texas against significant OSHA fines, including the largest proposed fines in Maryland and North Carolina history and fines arising out of employee fatalities.

As part of our practice, attorneys monitor and update clients on legislative and regulatory developments in the workplace safety arena and maintain relationships within OSHA, allowing the firm to provide up to the minute information and advice to clients.  We also work to be part of the crafting of the law and regulations for our clients.  We work with our Government Relations team to advocate for favorable legislative changes and we file comments with the Department of Labor on proposed regulatory changes on behalf of our clients. 

Contact
Susan F. Wiltsie | swiltsie@hunton.com | (202) 955-1546

There are few firms that can match our experience.  Our attorneys have litigated virtually every substantive class claim that is brought against companies today under federal and state law, are familiar with the tactics of leading plaintiffs’ class attorneys, and have successfully litigated multiple high-profile, large-stakes governmental agency cases, including defending pattern and practice cases against the United States Department of Justice, the EEOC, and multiple state agencies.  Our attorneys have successfully tried a large number of cases to verdict, and are some of the few lawyers in the country who have tried complex wage and hour claims to jury verdicts using representative proof.  This experience provides significant value to our clients, and helps produce favorable settlements in those cases where doing so is in a client’s best interest.  Our attorneys have collaborated with a number of leading labor economists, statisticians, and other consultants to establish defenses in appropriate cases, and particularly in adverse impact cases.  Our attorneys are also aware of the business and consumer pressures associated with litigation and have extensive experience working with public relations professionals to minimize adverse media attention or consumer reactions to litigation.

The Hunton & Williams LLP class action team is led by a group of talented and experienced trial lawyers who are acknowledged leaders in their fields and have earned deserved reputations as “go to” lawyers for major labor and employment, wage and hour, and public accessibility class, collective, and mass action litigation.  They have been recognized by The National Law Journal, Best Lawyers in America, Chambers USA, and various labor and employment industry guides.  Backed by the extensive resources of a renowned national and international law firm, they lead teams who represent a large and diverse client base of major national employers in cases pending across the nation.

Contacts
Phillip J. Eskenazi | peskenazi@hunton.com | (213) 532-2149
Kevin J. White | kwhite@hunton.com | (713) 229-5708

Many companies today rely not only on regular employees, but also on alternative staffing or “contingent workers” who are compensated and treated differently from regular employees. Such workers can include independent contractors, “freelancers,” leased employees, temporary staffers, and others in non-traditional roles. In addition, many companies work together with other entities to accomplish mutually beneficial objectives, with their respective employees performing roles that perhaps serve other organizations in addition to their own employers.  These types of arrangements can have many benefits, but also can carry significant risks, including the risk of unwanted liability based on a determination that workers are employees when they were intended to be non-employees.

Disputes over the employment status of workers can arise under a variety of circumstances. A government audit might challenge a company’s position that workers are independent contractors and seek to collect back taxes and penalties based on an argument that the workers are employees. A group of workers might claim entitlement to overtime or employment benefits and seek back wages and other damages. Claimants might invoke the “joint employer doctrine” and assert that they are simultaneously employed by two or more entities (such as a business and a temporary agency). Others might assert that two or more affiliated companies constitute an “integrated enterprise” and bring claims against a parent or sister company.

There are also potential implications for corporate officers or business owners. A group of claimants might argue that the business is the “alter ego” of such individuals and bring claims for back wages and other damages against the individuals. In federal wage and hour cases, for example, corporate officers or business owners can be sued directly if they fall within the definition of “any person acting directly or indirectly in the interest of an employer in relation to an employee . . . .”

Scrutiny of the employment status of workers is intensifying not only as a result of civil lawsuits, but also due to efforts by federal and state legislative bodies and enforcement agencies. Federal and state agencies, including the Department of Labor and the Internal Revenue Service, are stepping up their investigative and enforcement efforts with respect to failure to pay overtime or to withhold taxes due to alleged misclassification. A significant number of employers face legal challenges sponsored by organized labor, which also is active in promoting legislation—state and federal—to make it more difficult to establish independent contractor relationships, to increase the penalties in the event of misclassification, and to discourage the use of contingent workers generally.

There are a number of tests that are used to determine if a worker is an employee. These tests are similar but not identical, and can vary depending on the legal theory pursued by the worker or government agency. Thus, an individual might be an employee for one purpose but not for another. The inconsistencies among state laws increase the complexity for an employer with operations in various states attempting to ensure that it has properly classified its workforce.

Our Labor and Employment Team regularly works with companies to address the risks and to provide guidance and counsel with respect to the employment status of contingent workers and other types of potential claimants. We have formed an Employment Status Task Force to coordinate our knowledge and experience and ensure that clients remain abreast of issues and solutions associated with alternative work arrangements. We help clients achieve their business and legal objectives through proactive planning, guidance on contracts with staffing and employee leasing companies and other entities, audits of current engagements, litigation and advocacy before state and federal agencies or courts, and numerous other possible solutions. Our experience and familiarity with such issues provides clients with important leverage in maximizing business opportunities and minimizing risk.

Contact
Fraser A. McAlpine | fmcalpine@hunton.com | (415) 975-3726

The ERISA litigation group at Hunton & Williams provides that key level of depth and support. Our diverse experience allows us to provide clients with legal solutions that are informed by our experience, knowledge and history of client service. Our team has successfully defended clients in a broad range of ERISA suits, including:

• Stock drop cases alleging ERISA fiduciary breaches
• Class actions involving alleged ERISA fiduciary breaches and discrimination
• Cases involving multi-employer plans, including matters arising in collective bargaining
• Alleged wrongful denial of benefits under pension and welfare benefit plans
• Cases raising complex medical issues, such as experimental care
• Cases involving difficult financial issues
• Cases involving equity compensation and executive deferred compensation arrangements

Contacts
Terence G. Connor | tconnor@hunton.com | (305) 810-2517
Patricia K. Epps | pepps@hunton.com | (804) 788-8249
Wood W. Lay | wlay@hunton.com | (704) 378-4753

The firm has had a traditional labor practice for well over 50 years.  Our client base includes companies who do not have unions and wish to remain non-union as well as companies who have historical union relationships.  As a consequence, we regularly handle a wide range of labor relations matters, including union representational proceedings, unfair labor practice charges, labor arbitrations, collective bargaining, and strike contingency planning.  Through our ProWorkplace subsidiary, we have developed highly effective training programs for supervisors on a variety of labor relations topics, including programs on managing a union work force, maintaining a union-free work force, collective bargaining strategy, and conducting work place investigations. 

Corporate Campaigns.  We have extensive experience representing our corporate clients who have been the targets of corporate campaigns by labor unions and other organizations.  Our Task Force maintains information, both electronically and hard copy, regarding corporate campaigns and the tactics used by those who promote them.

Union Representation Petitions.  We have represented companies in over 500 election petitions.  Our Task Force maintains a database and library regarding union elections, specific national, international and local unions and union organizing campaign materials.  We typically handle a representational matter from the pre-petition stage through post-election proceedings, including hearings on objections to election conduct, unfair labor practice blocking charges, and appellate proceedings before the NLRB or the courts.

Our representation of employers in union organizational attempts involves not only legal representation in proceedings before the NLRB but also the full range of advice and services applicable to the employer’s campaign strategy and its communications efforts.

Unfair Labor Practice Charges.  When unfair labor practice charges are filed, we handle not only the investigation stage of the case but also any subsequent proceeding, including trials before an administrative law judge, and related appellate proceedings.  Our Task Force provides litigation assistance to our lawyers handling various aspects of unfair practice proceedings.  Because so many of our Task Force members have extensive NLRB experience, they can be of significant assistance at any stage of the ULP process.  We have a track record of successfully defending clients who are charged with committing unfair labor practices and are skilled at advising clients on how to meet their business objectives through measures that do not run afoul of the law.

The foregoing cases are representative of our experience in unfair labor practice proceedings but are by no means a complete list.  We have handled literally hundreds of unfair labor practice charges for employers in various industries throughout the United States.

Arbitrations.  Our attorneys handle a large number of labor arbitrations each year which are processed through the grievance/arbitration procedure of collective bargaining agreements.  Our Task Force maintains a database concerning arbitrators and their track records which assists our lawyers in advising clients concerning the selection of arbitrators.  We have handled over 1500 labor arbitrations for clients in various industries, including package delivery, chemical, tobacco, mining, power generation, steel fabrication, packaging, paper manufacturing, hotel and restaurant, health care, and telecommunications.

Collective Bargaining / Response to Strikes.  Our labor attorneys regularly assist clients in preparation for collective bargaining.  On many occasions, we serve as the principal negotiator for the client and help determine the successful strategy for achieving our client’s business goals.  Again, because our Task Force members have negotiated literally hundreds of collective bargaining agreements, our lawyers are always supported by a wealth collective bargaining experience.  In addition, the Task Force maintains a library of collective bargaining agreements, model clauses and contract articles.  We also help train the members of the employer’s negotiating team in the art of negotiations.  For many clients, we prepare strike contingency plans, including guidelines on communications to employees and the public, and we provide advice on how best to deal with personnel and benefit issues that typically arise during a work stoppage.  We also work closely with the client’s security team to address important security concerns and provide advice on steps to preserve evidence that may be necessary to support an injunction if a strike should occur.  Finally, when necessary, we obtain injunctions and other sanctions against offending parties when our clients’ property, collective bargaining or business rights have been violated.

Section 301 and 303 litigation.  In addition to the injunction actions described above, we also have substantial experience in representing companies in civil actions for damages or other relief brought in the federal courts under Section 301 and Section 303 of the Labor Management Relations Act (LMRA).  These actions have involved a variety of claims, including breach of contract allegations, secondary boycott violations, violations of no-strike obligations, unfair representation allegations, and suits to set aside labor arbitration decisions.

Conclusion.  Because members of our Task Force individually have as much as 40 years of traditional labor law experience, our lawyers are well-supported in virtually every aspect of a traditional labor practice.

Contact
Gregory B. Robertson | grobertson@hunton.com | (804) 788-8526

Our attorneys have litigated multiple hiring, pay, and promotion cases, including class and mass actions, adverse impact class actions, and agency pattern and practice matters.  We are on the cutting edge of multiple new governmental agency initiatives, and we are actively tracking legal and legislative developments to help our clients achieve their business and legal objectives through proactive planning and audits of current pay and promotion practices.  We fully understand the importance of developing practical business strategies against the backdrop of industry nuances.  Our experience and familiarity with pay and promotion issues and industry-specific solutions provides clients with important tools to maximize business opportunities and minimize risk.

Contacts
M. Brett Burns | mbrettburns@hunton.com | (415) 975-3725
Emily Burkhardt Vicente | ebvicente@hunton.com | (213) 532-2153

Employer downsizing initiatives, if not carefully planned and coordinated, can trigger a host of potential liabilities, including:

• Discrimination charges; 
• Wage and hour claims based on improperly executed furloughs and other cost-saving initiatives related to the number of hours worked by employees;
• Wrongful discharge and breach of implied and express contract claims;
• Unfair Labor Practice charges and, potentially, Section 301 lawsuits related to employer obligations under collective bargaining agreements (including issues such as treatment of seniority, work preservation, subcontracting, fragmentation of business units, etc.);
• ERISA liability based on the application or modification of existing benefit plans or arising out of a well-intentioned (but legally faulty) severance plan;
• WARN and other claims based on laws requiring employer notice prior to workforce reductions; and
• Invalid releases for failure to comply with the OWBPA.

Our team combines the knowledge and resources of attorneys focused on virtually every area implicated by the current economic and financial climate.  Hunton & Williams’ RIF Taskforce stands ready to help clients navigate these turbulent economic waters.  Please contact us today if we can assist you in planning a way forward for your company or business.

Contacts
Wood W. Lay | wlay@hunton.com | (704) 378-4753
Julie I. Ungerman | jungerman@hunton.com | (214) 979-3039

Litigation over information theft and non-competition restrictions is a specialized effort unlike traditional business litigation.  It requires preparation and experience tailored for emergency proceedings, expedited or compressed discovery, and the ability to proceed to trial without the benefit of advance disclosures.  It also requires capabilities to quickly grasp and articulate to the court the special nature of the information and the business risks in peril.  This variety of litigation does not often allow time for extensive legal research and analysis prior to court appearance without jeopardizing the client’s position.

To take maximal advantage of the rapid pace of such litigation and to leverage our firm’s expansive resources and experience, Hunton & Williams maintains and regularly updates a library and database of laws, trends, and procedures in various jurisdictions that can be quickly incorporated into trial plans and briefing without causing delay.  We also have a complex knowledge management system that allows us to access briefs and memoranda and increase efficiency in analyzing legal issues and facts in various jurisdictions.  In addition, we have robust practice groups in virtually every area of corporate law and industry who can provide whatever expertise is needed to achieve the best and most cost effective results for our clients.

While thorough and expedited preparation is a hallmark of our Team, we also recognize the vital importance of presenting a case in the most clear, strategic, and persuasive manner possible.  Our Team boasts some of the nation’s most capable trial lawyers and courtroom veterans.  They apply decades of complex litigation experience to strategic issues such as choice of forum, timing, use of witnesses and evidence, cross-border enforcement, and use of appropriate leverage outside the courtroom.  Part of being an effective litigator is understanding the business objectives of the client, and achieving those objectives directly and efficiently, whether through avenues inside or outside the courthouse.  Our Team’s attorneys never lose sight of the business objectives.

Litigation is not the only service in which we provide a high value.  We regularly assist clients in developing an overall protection scheme, which may include the use of non-competition and/or non-solicitation agreements, policies and procedure manuals, facility security and data security protocols, among other measures.  We draw upon our litigation experience to provide guidance and counseling of clients not only in how to ensure that restrictive covenants are enforceable under applicable laws, but also in what practical measures can be taken to prevent and deter misappropriation of trade secrets and confidential information by departing employees.  We also regularly partner, where necessary, with appropriate vendors to design facility and data security measures. 

Contacts
Robert T. Quackenboss | rquackenboss@hunton.com | (404) 888-4186
Alan J. Marcuis | amarcuis@hunton.com | (214) 979-3060
Roland M. Juarez | rjuarez@hunton.com | (213) 532-2145
Juan C. Enjamio | jenjamio@hunton.com | (305) 810-2511