A business is only as good as its people. This time-honored maxim is as true today as ever, as the success of any company hinges upon its relationships with its employees. LeClairRyan’s Labor & Employment team works closely with our clients to develop effective strategies and policies to avoid employment litigation, resolve employee disputes, and successfully dismiss labor and employment claims when litigation is filed.
Attorneys on this multi-disciplined team focus their practices on all facets of Labor & Employment law. Some have years of experience in helping unionized companies handle the challenges associated with collective bargaining, or in assisting non-union firms to stay that way. Others focus on occupational safety and health, with its industry-specific dynamics, complex regulatory universe and ever-growing imperative to reduce risk and avoid litigation.
In today’s business environment, a manager’s thoughtless comment or an employee’s ill-advised YouTube video could end up costing an employer millions of dollars in costs and damages. Attorneys on our Labor & Employment team routinely work with employers to adopt best practices and keep pace with fast-changing trends and regulations related to sexual harassment, workplace violence, racial diversity and other highly charged workplace-liability issues. Our straightforward approach—namely, to develop smart compliance strategies with effective, no-nonsense training—gets results while saving clients’ time and money.
Our attorneys have years of experience counseling employers on issues related to retirement plans, health benefits, executive compensation and the legal and strategic intricacies associated with mergers, acquisitions and bankruptcies. Today’s businesses must stay ahead of the curve on the range of labor and employment law challenges facing the workplace.
Our Labor and Employment services include:
Employment Litigation
An unfortunate reality of doing business today is that employers never know when they will come under fire for any number of alleged claims or violations. No matter how diligent an employer is ensuring compliance with all federal and state employment laws, employers face an ever increasing array of employment claims ranging from discrimination, harassment, retaliation, failure to pay wages or benefits, breach of contract, wrongful termination, negligent hiring or retention, defamation and more. Our Labor & Employment attorneys routinely defend employers against such claims in both individual and class actions and in both federal and state courts nationwide.
Our goal is to minimize clients’ involvement in employment claims and litigation. LeClairRyan’s Labor and Employment Team understands how to defend and dismiss these cases, and routinely defend employers’ interests before the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor and the National Labor Relations Board and in federal and state courts across the country. Our employment lawyers possess a successful track record of dismissing a majority of these claims before trial but, unlike many other national employment practices, LeClairRyan’s employment litigators have successfully tried to verdict scores of cases for clients who refuse to pay off unwarranted claims.
Moreover, we have significant experience representing employers in employment and labor arbitrations and mediations. In addition to our appearances before trial courts, administrative agencies and mediators and arbitrators, we have a successful track record of affirming our clients’ trial and summary judgment victories before appellate courts in Virginia and throughout the nation, including most of the United States Courts of Appeals, and the United States Supreme Court.
Our attorneys have particular experience in representing employers in disability discrimination claims under the Americans with Disabilities Act; age discrimination claims under the Age Discrimination in Employment Act; claims for relief under the Family Medical Leave Act and Fair Labor Standards Act, and claims of sexual harassment and race and gender discrimination under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.
We are well-known for thoroughly preparing each case as if it were going to trial. Our interdisciplinary, team approach draws upon resources from throughout the firm and enables us to make strategic use of industry-specific knowledge. This combination of deep resources, intra-firm teamwork and full preparation means we can personally respond to client requests promptly, and respect specific cost needs. In addition to benefiting us in the courtroom, this also gives us a competitive advantage should settlement become an option. Ultimately, that puts us in a strong position to win optimal results for our clients.
Representative cases:
- Obtained defense verdict for nationwide emergency services company which was sued for $20 million by an employee claiming sexual assault in the workplace
- Obtained favorable judgment and $500,000 award of attorneys’ fees for nationwide publishing company from former employee who violated covenant not to compete
- Obtained defense verdict for nursing home chain in religious discrimination lawsuit
- Received summary judgment for nationwide HMO organization in gender discrimination case regarding COO of company and for large federal financial institution on race discrimination claim
- Successfully defended nationwide food retailer and government contractor from defamation claims made by former employees
- Conducted successful defense for nationwide airline in 15 separate binding arbitrations regarding racial harassment and discrimination in the workplace
- Obtained summary judgment for national retailer in ADA action alleging disability discrimination and retaliatory discharge
- Won defense verdict for defendant employer in Title VII action for unlawful harassment and termination
- Received summary judgment for retail employer in FMLA ADA termination case
Labor Law
Our Labor & Employment team works with all types and sizes of employers, from international conglomerates with large and active labor unions to local firms manned by non-union workers. Our attorneys have broad experience helping clients develop effective collective-bargaining strategies, draft contracts and respond to employee-filed grievances. We regularly represent employers in arbitration proceedings and in hearings before the National Labor Relations Board. When striking workers threaten to disrupt business operations, we work closely with employers to develop and execute strategies that will keep offices, factories and stores up and running. If labor conduct threatens to turn violent or unlawful, moreover, our attorneys aggressively seek injunctions aimed at keeping the workplace civil and safe.
Our Labor & Employment team is also experienced in helping non-union companies stay that way. We offer management-training programs and union-avoidance strategies that take into consideration each client’s on-the-ground labor realities. Keeping unions at bay requires an all-out effort. Our team understands how to mount anti-unionization campaigns at every turn, whether labor organizers are at the card-signing stage or on the cusp of electing officers. Moreover, our attorneys know how to recognize the opportunity to have unions decertified.
Representative engagements:
- Assisted a large, union-free national auto parts distributor in its efforts to comply with NLRA, defend against charges of unfair labor practices and stop a unionization drive
- Worked with a national chemical manufacturer to develop and implement an offensive lockout of all production and maintenance employees in support of the company’s bid to win contract concessions
- Managed the arbitration docket for an international fiber manufacturer, an effort that involved presenting up to four labor arbitrations per month
- Assisted an international truck manufacturer in the development of collective-bargaining proposals, a strike contingency plan and potential law-and-order injunction papers
- Currently assisting a growing number of employers in their efforts to counter union-organizing activity, in part through anti-card-signing strategies
- Represented a national paper manufacturer in crucial arbitration case involving the start-up of state-of-the-art production equipment that would be staffed with the most qualified, rather than the most senior, employees
- Partnered with a major fiber manufacturer to develop and successfully negotiate major revisions of its collective-bargaining agreement with a view toward becoming more competitive in the global marketplace
Employment Counseling, Training, and Audits
Today’s employers face an ever-lengthening list of legal obligations. To avoid liability and provide a workplace free of unlawful discrimination and harassment, businesses must provide employees with extensive training on a range of issues, from unlawful harassment and discrimination to retaliation workplace violence and wage and hour compliance.
We help our clients meet this considerable challenge by constantly monitoring federal and state legislative changes, case developments and federal and state agencies for developments that might affect employers’ training obligations. We regularly audit our clients’ operations, communications and employee-training policies and programs with a view toward reducing liability risk from defamation, discrimination, retaliation and other employment claims.
Our attorneys routinely help employers put HR policies in place that significantly lower risk. We also work closely with clients to draft and enforce executive and other employment contracts, confidentiality agreements, and covenants restricting employees’ post-employment conduct.
Our WorkForce: Employment Law Compliance Training Group offers no-nonsense solutions specifically designed to help employers minimize risk through employee training.
The group creates and presents customized training programs for clients on topics such as sexual harassment, interviewing and hiring, discipline and discharge, and compliance with important laws such as the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).
Our attorneys have significant experience in developing and implementing national arbitration programs that require employees to submit employment disputes to binding arbitration as an alternative to costly litigation. We regularly assist employers covered by Executive Order 11246 with preparation and maintenance of affirmative-action plans. We also respond to audits of their compliance efforts. Each day, our attorneys provide timely and practical legal advice to help a wide range of clients manage employment-related issues in the workplace.
Our compliance audits cover all applicable state and federal employment laws relating to matters such as minimum-wage and overtime compensation, discrimination, workplace privacy, child labor, family, medical and military leave, and much more. Along with close examination of employers’ policies, procedures and documents, our audits include fact-gathering interviews with key personnel. They culminate in a comprehensive report that includes “best practices” recommendations.
Representative cases:
- Worked with national retail chain to develop a program to manage FMLA, disability and workers’ compensation leave and benefits, to ensure regulatory compliance and reduce abuse of intermittent leave and overtime restrictions. Program included audit of current practices and customized training and process flow-charts for human resource and benefits managers
- Assisted national professional services firm in responding to an audit of its affirmative-action plan by the Office of Federal Contract Compliance Programs. Effort included assistance with annual-plan updates, preparation of new, model plans for all divisions and subsidiary companies, auditing of pay equity issues, and creation of an “action plan” for reaching compliance goals
- Conducted a Fair Labor Standards Act audit for a private college and assisted with implementation of new job classifications, as well as personnel policies and training aimed at ensuring compliance with new overtime regulations
- Assisted a manufacturer of upholstered furniture with implementing a Restructuring and Reduction in Force program, including evaluation of potential adverse impacts and management of exit incentives
- Developed and presented a customized Leadership Training Program for a national aquarium products company to train its senior management and supervisory employees on interviewing and hiring practices, managing employee leave, and harassment issues. Process included a review and update of all related company policies and practices
- At the behest of the U.S. Department of Transportation, created a Drug-Testing Policy and Administrative Procedures program for the Federal Highway Administration and the Research and Special Programs Administration
- Guided a high-tech manufacturer as it established a program to protect its trade secrets. Effort included an audit of its current practices and potential exposures, as well as the drafting of new policies and procedures and confidentiality and non-disclosure agreements for employees, contractors, clients and vendors, along with non-compete restrictions and intellectual property assignment agreements for key personnel
- Helped a large retirement and assisted-living healthcare facility evaluate and implement a workplace violence-prevention program and train supervisory employees
Compensation & Benefits
Given the formidable—and growing—complexity of laws and regulations covering employee benefits, today’s employers would do well to seek advice only from legal teams with years of experience in this critical practice area. That is precisely what our Labor & Employment team brings to the table. Our attorneys know the importance of helping employers maximize benefits coverage, minimize costs and avoid the liability risks associated with lack of compliance with benefits-related laws and regulations. Triangulating these imperative requires careful consideration of factors such as the client’s labor situation, competitive position, compliance status and overall strategic goals.
Our clients range from publicly held companies with more than 25,000 employees to privately held firms with workforces a fraction of that size. In addition to providing comprehensive executive-compensation and employee-benefits services, our attorneys help clients implement and maintain welfare benefits plans, tax-qualified retirement plans, nonqualified deferred compensation plans and executive compensation programs. We address compliance and fiduciary issues associated with the Internal Revenue Code and the Employee Retirement Income Security Act (ERISA), and are adept at handling the benefits aspects of mergers, acquisitions, and bankruptcies. We routinely help employers resolve benefits claims and ERISA litigation, and frequently deal with the IRS, the U.S. Department of Labor (DOL) and the Pension Benefit Guaranty Corp. (PBGC) in order to help clients obtain private-letter rulings, determination letters, exemptions and informal guidance.
Our Labor & Employment attorneys advise clients on all aspects of qualified retirement plans, including:
- Designing, drafting, and implementing plans
- Pension or defined benefit plans
- Cash balance plans
- 401(k), profit-sharing, and other defined contribution plans
- Employee Stock Ownership Plans (ESOPs)
- Obtaining rulings and determination letters on plan qualification and other issues from the IRS, DOL, and PBGC
- Providing advice on plan-administration and operational requirements
- Assisting with selecting, retaining and monitoring plan service providers, including investment advisers and third-party administrators
- Assisting with employee communications
- Correcting plan-administration and other errors through voluntary compliance initiatives such as the IRS Employee Plans program
- Compliance Resolution System and the DOL Voluntary Fiduciary Correction Program
- Representing clients in plan audits and other IRS or DOL investigations
We advise clients on nonqualified retirement plans, as well as on the securities laws and tax and ERISA requirements covering executive-compensation arrangements. We regularly negotiate and draft plans and programs and assist employers with:
- Employment and consulting contracts
- Severance agreements
- Deferred compensation and supplemental executive retirement plans (SERPs)
- Incentive compensation/bonus plans
- Change in control arrangements/rabbi trusts
- Stock options/restricted stock
- Split-dollar arrangements
- DOL and SEC filings
In the area of health and welfare benefits, our Labor & Employment attorneys frequently draft and offer operational advice about medical, dental, vision, cafeteria, disability, life insurance and severance plans. We assist clients with all aspects of such plans, including:
- Plan design, drafting and implementation
- Cafeteria plans, including premium conversion plans and flexible-spending accounts
- Dependent-care assistance programs
- Adoption-assistance programs
- Voluntary Employee Beneficiary Associations
- Providing advice on self-insured arrangements
- Assistance with selecting, retaining, and monitoring plan service providers and insurance carriers
- Providing advice on compliance with the Consolidated Omnibus Budget Reconciliation Act (COBRA) and the Health Insurance Portability and Accountability Act (HIPAA)
Our Labor & Employment team routinely helps employers negotiate the complex, benefits-related adjustments that arise from mergers, acquisitions and bankruptcies. This includes performing both legal and quantitative due diligence, negotiating and handling the benefits-related aspects of the transaction or bankruptcy, and following through with and addressing:
- Plan set-ups, plan spin-offs, plan mergers or plan asset and liability transfers
- Plan terminations, whether voluntary terminations or “distress” terminations
- Participant communications
- IRS, DOL and PBGC filings
- Providing advice on successor liability under COBRA and compliance with HIPAA
- Designing, drafting and implementing early retirement incentives, window retirement, and welfare benefits and severance programs
We provide fiduciary advice to clients on the ERISA implications of their business activities. These consultations cover the likes of plan-related asset issues, prohibited transactions and available exemptions, and fiduciary standards of conduct. We assist clients with all aspects of fiduciary compliance, including designing, drafting and implementing operating policies for administrative and investment committees and other ERISA fiduciaries; designing, drafting, and implementing investment policy statements or guidelines for plan investment committees; and serving as counsel at administrative and investment committee meetings.
Our Labor & Employment team also works closely with both clients and LeClairRyan litigation attorneys in handling benefit claims and appeals, as well as other issues affecting retirement and welfare plans, including:
- Disputed benefit claims (administrative proceedings and litigation)
- Breach-of-fiduciary-duty claims
- Retaliation or discrimination claims under Section 510 of ERISA
- COBRA and HIPAA claims
- Multi-employer plan withdrawal liability claims
Representative engagements:
- Currently serve as outside employee benefits and ERISA counsel to numerous companies handling all legal and regulatory compliance aspects of all benefit plans, including litigation strategy
- Currently serve as counsel to numerous plan investment and administrative committees
- Successful DOL VFC filings to resolve fiduciary issues raised by delinquent plan contributions
- Successful IRS VCP filings to resolve qualification issues raised by administrative errors associated with plan loans and hardship distributions
- Successful “distress” termination of numerous pension plans with PBGC
- Representation of multi-employer plans, including withdrawal liability issues
- Successful defense of claims by beneficiaries and unions, seeking additional benefits and claims breach of fiduciary obligations
- Defense of employers against employee groups seeking class action in employee benefit claims
- Defense of fiduciary litigation, including successful defense at multi-week trial
Occupational Safety and Health
Our Labor & Employment team includes attorneys with years of experience in negotiating the complex and ever-changing standards and regulations promulgated by the U.S. Occupational Safety & Health Administration (OSHA). We understand the critical role of health and safety in any workplace, from the kitchen of a roadside diner to the loading dock of a grocery store. Indeed, health and safety issues are highly industry-specific. That is why our multi-disciplined Labor & Employment team includes veteran lawyers who focus on particular economic sectors, such as residential construction or chemical manufacturing. Because these lawyers already understand their clients’ specific regulatory and operational challenges, they can hit the ground running.
We work closely with clients to create safer and healthier workplaces that comply with all applicable OSHA standards and regulations. When conducting workplace health and safety audits, we pay particular attention to the most heavily scrutinized standards, such as those that govern fall-protection, scaffolds, concrete and masonry construction, demolition, excavation, machine-guarding and respiratory protection. The goal of these audits is to identify and eliminate problems that might otherwise have led to citations. And when fatalities, catastrophic accidents and other tragedies do occur in the workplace, we manage OSHA inspections with a view toward protecting our clients’ interests.
Our attorneys strive to persuade OSHA to withdraw citations without costly litigation, and they regularly secure drastic reductions of monetary penalties by winning dismissals of serious and willful citations by OSHA. We place a high priority on finding practical and cost-effective solutions that help employers avoid litigation whenever possible, but we also have years of experience in tackling OSHA-related trial and appellate litigation before both federal and state agencies and courts. When litigation does prove unavoidable—whether the task at hand is contesting citations or defending against warrants and injunctions—we represent our clients with tenacity and skill.
Representative engagements:
- OSHA issued a willful citation to our client, an excavation contractor who was replacing a sewer line, for failing to protect employees from trench cave-ins. Following a trial, the administrative law judge vacated the willful citation and the government appealed. The Third Circuit Court of Appeals subsequently awarded our client $147,000 in attorneys’ fees.
- Following a fatal accident caused by the collapse of a wall at a demolition site, OSHA issued three willful citations, each alleging a violation of the demolition standard. After a trial and appeal, two willful citations were vacated and the remaining citation was downgraded to serious. Our client was awarded attorneys fees.
- OSHA issued a willful citation after a construction worker suffered a fatal fall when a 10,000-pound concrete slab located on the 10th floor of a parking garage collapsed as he was attempting to demolish the slab while standing on it. Following a trial, the administrative law judge vacated the willfulness classification.
- Following a lengthy OSHA inspection of a large metal-stamping company, an administrative law judge either vacated or assessed no penalty for 10 serious citations, in which OSHA had alleged violations of standards for emergency response, personal protective equipment, materials handling and machine-guarding. The judge also vacated the willful classifications of two citations, one alleging a violation of the machine-guarding standard and the other alleging a violation of the occupational noise-exposure standard.