Labor and Employment

Our lawyers regularly represent employers involved in collective bargaining negotiations. Depending on the client’s needs and wishes, we serve as chief spokesperson at the bargaining table, or act in a more advisory role, either at or away from the bargaining table. We have successfully negotiated literally hundreds of collective bargaining agreements. These negotiations have included both cooperative negotiations under “Win/Win” or “Collaborative” bargaining, and more traditional, “hard knocks” bargaining. They have included the negotiations of extensive and lengthy initial contracts, and simple reopener agreements. They have also included negotiations where the union has threatened or even initiated work slowdowns and strikes. We are well-versed in dealing with varied atmospherics and approaches at the bargaining table, from the constructive and positive to the confrontational and table-pounding . We are particularly experienced in assisting employers with restructuring collective bargaining agreements under the Bankruptcy law.

We excel in complex or otherwise difficult negotiations. Our lawyers have represented employers in public-sector negotiations with multiple unions at separate bargaining tables involving more than 75,000 employees. We have also successfully coordinated labor representation for a large employer with more than 100 divisions in five distinct industries operating throughout the US. We have bargained within intricate regulatory environments. We have also been called to the table for clients when their negotiations and relationships with their bargaining unit have become difficult or even dysfunctional. The keys to our success in complex or difficult negotiations include open communication with every important component of the employer’s operations, as well as familiarity with the specific industries and labor climates in which the employer operates.

Since the 1960s, O’Melveny has represented clients in matters related to fair employment practices under Title VII, the Americans with Disabilities Act, the California Fair Employment and Housing Act, and other major laws and orders. When discrimination claims arise, our clients count on us to help them prepare for trial and steer them through all manner of related litigation.

As one of the first firms to treat class action cases as a unique practice, we have handled numerous employment class actions in general and discrimination class actions in particular. In addition to our trial work, we have significant experience in discrimination appeals, as well as mediation and settlement.

Of course, the best advice is preventative in nature. Our lawyers recommend legal and practical strategies for limiting exposure to liability and minimizing the risk of litigation. We counsel clients on matters such as equal employment opportunity compliance in the hiring, job assignment and promotion processes, preventing sexual harassment, properly conducting and documenting employee performance reviews, and the pitfalls to avoid in terminations. We are also often involved in training and other preventative programs aimed at eliminating problems before they arise.

Sexual Harassment
O’Melveny lawyers began writing and speaking on the topic of sexual harassment in 1979 – two years before the EEOC first issued its guidelines defining sexual harassment as a form of gender discrimination, and more than seven years before the United States Supreme Court issued its first decision on the subject. We have been major contributors to the sexual harassment literature, including publications in books and journals, as well as serving as keynote speakers on the topic of sexual harassment at national legal meetings such as the American Bar Association and the American Employers Law Council.

We have handled literally thousands of sexual harassment cases, in many instances counseling our clients in handling internal allegations of sexual harassment promptly and effectively to head off threatened litigation. We have defended hundreds of sexual harassment cases in the litigation process, successfully disposing of most of them without a trial. We have developed highly successful mediation and settlement techniques and strategies, allowing our clients to resolve many sexual harassment cases at the earliest possible time for the least possible amount of money. And we have tried (and achieved positive results in) a number of sexual harassment cases, including trying a number of successful jury trials in high-profile cases.

We work with our clients to draft and revise sexual harassment policies and to provide training programs for our clients’ supervisors and employees to educate them on preventing sexual harassment in the workplace. We are often called on by clients to conduct audits of their internal policies and procedures for training employees. We have developed checklists for our clients to use in investigating (and remedying when necessary) claims of sexual harassment. We understand that each allegation of sexual harassment within a client company or against an individual client creates significant workplace disruption and angst, and we have become experts at counseling our clients through the various steps to take in handling the allegations in a productive manner. We are experienced in working with our clients to minimize these disruptions and to prevent (or control) outside publicity surrounding the allegations.

In addition to our experience in most industries for most types of employers, we also have considerable experience under a wide range of federal, state, and local statutes and regulations. We regularly advise and defend clients accused of sexual harassment under the following:

• Title VII of the Civil Rights Act of 1964, including EEOC guidelines
• Title IX of the Civil Rights Act of 1964
• California Fair Employment and Housing Act, including FEHA guidelines
• California Workers’ Compensation Code
• California Unruh Act, covering harassment against nonemployees
• California Education Code, covering harassment against students
• New York Human Rights Act
• Federal and state privacy statutes
• Municipal codes in many jurisdictions
• Other nondiscrimination statutes

O’Melveny has a nationwide group of lawyers who focus exclusively on labor and employment law compliance and issues. Each day, we counsel employers across the country on a myriad of issues. These issues range from employee hiring to firing and all the possibilities in between. We cover union avoidance (the most successful strategies in union organizing campaigns, unit determination hearings, employee and supervisor “dos and don’ts,” elections and challenges to the same) to arbitrations, strikes, and court injunctions. We address alleged discrimination, drug testing, workplace violence, family and medical leave, workplace privacy issues, and reasonable accommodation.

Because our Labor and Employment lawyers focus in this area of the law, they have the knowledge and experience to provide well-informed, carefully considered advice. We do so with a common sense and practical approach. We strive to identify our client’s objectives, and find ways to reach those objectives without creating legal liability.

We are particularly effective in providing preventative counseling. We recognize that the most valuable advice a client can receive is that which prevents a problem before it arises. We routinely audit our clients’ policies and procedures to ensure that they comply with the law, and provide maximum protection from lawsuits. We publish a quarterly newsletter to advise our clients on changes in the law, and to explain the impact those changes might have on their business. We also publish frequent “Client Alerts” when the changes are sufficiently significant that clients should be informed immediately.

Our lawyers provide advice and preventative counseling on the spectrum of Labor and Employment law issues, including:

• Hiring systems and processes
• Workplace privacy laws
• Procedures for evaluating employee performance
• Compensation and benefit systems
• Employee discipline and termination
• Internal systems for resolving employee problems
• Record retention systems
• Employment contracts and offer letters
• Discrimination and retaliation
• Sexual harassment and other forms of harassment
• Reasonable accommodation
• Mergers/corporate transactions
• The National Labor Relations Act and Railway Labor Act
• Federal and state polygraph statutes
• Federal and state whistleblowing statutes
• Federal and state fair credit reporting laws
• Worker Adjustment and Retraining Notification Act (WARN) and state plant closing laws
• Federal and state family and medical leave statutes
• Federal and state privacy laws
• Federal and state statutes regulating hiring, termination, wages, and benefits
• Title VII of the Civil Rights Act and comparable state laws
• The Age Discrimination in Employment Act and comparable state laws
• Federal and state OSHA regulations
• ERISA
• The Americans with Disabilities Act and comparable state laws
• Union organizing campaigns, negotiations, and contract administration
• Noncompetition agreements, restrictive covenants, and trade secrets

 

While all of our lawyers can and do help our clients with day-to-day employment issues, we also have nationally recognized experts in particular subjects who can provide specialized advice if the need arises. We take pride in developing partnering relationships with clients that allow us to deliver the most valuable services possible. By understanding our clients and their businesses – by becoming partners with them – we enhance our ability to provide practical legal and strategic advice. We provide service as well as judgment with our legal expertise. The personal, practical, timely advice we provide makes us an important addition to our client’s team.

Across the nation, employers face a complicated web of laws and regulations that impact the workplace. Changes in the law are frequent, and the consequences for violations can be severe. On a daily basis, employers are challenged to navigate this ever-changing landscape in a manner that allows them to achieve their business objectives without incurring liability for violation of employment laws.

The most effective way for employers to stay abreast of the rapid and increasing changes in employment law is through training programs. Our training programs are aimed at educating in-house counsel, managers, and supervisors about potentially dangerous and costly employment law pitfalls, and providing them with specific, practical, and methodical advice on how to spot issues as they arise and minimize the risk and expense of employment litigation.

Our lawyers’ long, diverse experience in counseling and defending employers provides us with the unique ability to explain not only the law, but also its practical application, and in a cost-effective manner. Our attorneys provide employer training programs on a full spectrum of employment law issues, ranging from employee hiring to firing and all the possibilities in between. Training programs on the hiring process, for example, have proven to be valuable tools for preventing future employment problems and claims. Proper screening, hiring strategies, effective recruiting of a diverse workforce, and clearly establishing the terms and conditions of employment all can play an important role in enhancing employee retention and minimizing the risk of employment litigation. Conversely, improper hiring procedures—impermissible and discriminatory inquiries, unlawful background investigations, or unauthorized promises of job security—may invite employment litigation. Training programs specifically addressing the “dos and don’ts” are an employer’s first line of defense against employment-related litigation.

We have extensive experience representing employers with regard to the Federal WARN Act, the California WARN Act, and other applicable laws and regulations related to reductions in force. In recent years, clients have increasingly sought our advice in advance of reductions in force regarding the design, criteria, implementation, and communication of such RIFs. We regularly advise clients on avoiding liability under WARN, assist with structuring RIFs that comply with WARN, and advise on alternatives to reductions in force, disparate analysis, severance packages, and release agreements. When litigation is unavoidable, we defend employers’ actions under these statutes.

O’Melveny has been at the forefront of occupational safety and health matters for many years. In 1975, we handled the first case to test the constitutionality of the California Occupational Safety and Health Act of 1973 (California Act). We also brought the first case to test the scope of the federal Mine Safety and Health Act of 1977 (MSHA). Our lawyers have enjoyed a national reputation in occupational safety and health that includes work under the Federal Occupational Safety and Health Act of 1970 (Federal Act), MSHA, the California Act, and many other state plans.

For more than 35 years, we have represented clients in proceedings at the state and federal levels, ranging from a single citation to actions involving millions of dollars in penalties. Our attorneys have also provided effective counsel nationwide in hundreds of incidents involving serious injuries, fatalities, and possible criminal prosecution. Years of experience have sharpened the skills we use in contesting citations before the appropriate commissions and appeals boards and dealing with related civil and criminal proceedings.

As part of a recent criminal proceeding, we successfully challenged the constitutionality of the California Corporate Criminal Liability Act of 1989 (commonly called “Be A Manager, Go To Jail”). Our lawyers successfully led the defense of one of the few cases actually tried in this area and successfully resolved in another case the largest civil penalties issued under the California Act.

We provide extensive services not only after accidents have occurred and citations have been issued but at the preventative stage as well. We train supervisors and managers to recognize their legal rights and risks under the myriad of safety and health regulations applicable to the workplace. These include recording and reporting obligations, dealing with workplace toxins, including warnings, training, removal and protection programs, ergonomics, workplace violence, and what to do and how to act when OSHA comes knocking on your door. Our lawyers are trained and equipped to provide advice and guidance every step of the way in ensuring a safe and healthful work environment and in coping with incidents and accidents when they do occur.

O’Melveny has been advising our clients regarding their obligations under federal and state wage and hour laws for decades, and long before the current deluge of wage and hour class actions. O’Melveny has lawyers who dedicate their entire practice to the field of labor and employment, and we have specialized in wage and hour law at O’Melveny for more than 40 years. Our labor and employment practitioners provide counseling on wage and hour requirements, auditing payroll and wage and hour practices for our clients, lobbying state and federal administrative agencies (and, for example, obtaining favorable legislation acknowledging our clients’ employees’ exempt status or favorable opinion letters in support of our client’s payroll practices), and speaking and writing on the topic. Simply put, we are experts in this area and know the law better than just about anyone.

Regarding the litigation of class actions, we believe we have the premier class, multi-party and collective action practice in the country. We have a dedicated group of practitioners that concentrate almost exclusively on litigating class actions. We are intimately familiar with the strategy, tactics and parameters of the class action practice. In fact, our expertise is such that we were closely involved in the drafting and obtaining passage of the federal Class Action Fairness Act. Our lawyers have spoken, written and testified before Congress on the topic of class action reform. As part of this practice, we have represented clients in some of the largest class and multi-party actions in recent history, including the Vioxx Litigation, the Firestone Tire litigation, and the Exxon Valdez litigation.

Specifically with respect to wage and hour class actions, we have litigated and continue to litigate literally dozens of such cases. As a conservative estimate, and in the last few years alone, we litigated or are currently litigating more than 100 wage and hour class actions and dozens more class action and multi-plaintiff labor cases.

It is important to note that we have obtained these representations not only based upon our extensive wage and hour experience described above, but also because of our significant and preeminent class action experience generally. Quite honestly, O’Melveny has the premier class action practice in the country — having been named “Litigation Department of the Year” by The American Lawyer in 2004. In addition to winning this highly coveted award, O’Melveny received honorable mention or was chosen among the finalists in 2002, 2006, 2008, and 2010, making us one of only two US law firms that have both won the top award and achieved a clean sweep in the five contests covering the last 10 years.

We also have significant experience in appellate work, including appeals involving wage and hour issues. Particularly because case law in the wage and hour area continues to develop at the appellate level, appeals are likely to result from this litigation. Our premier appellate practice, led by a former Solicitor General of the United States, Walter Dellinger, provides an incomparable advantage to clients faced with cutting-edge litigation. Recently, we obtained a victory for our client hertz Corporation before the United States Supreme Court in its defense of a case involving violations of California’s wage and hour laws. Our team has also argued issues before state Supreme Courts.

Finally, it must be recognized that many (if not most) of these class actions are mediated and settled. We are skilled in this area too, having recently, for example, consolidated and then mediated and settled eight nation- and state-wide wage and hour class actions for Citigroup, obtaining a national settlement that released all federal claims and all state claims from all 50 states.

In addition to our more general expertise in representing employers in employment litigation generally, O’Melveny’s Labor and Employment lawyers have significant experience in handling the complex employment aspects of “whistleblower” claims under the federal False Claims Act, other civil fraud statutes, and most recently, claims relating to Sarbanes Oxley (SOX). We counsel employers through the thicket of overlapping federal and state criminal and civil laws regulating the employment relationship and reporting obligations and protections. Historically, these issues were most acute in heavily regulated industries, such as defense and healthcare, where we have considerable experience. Today, this experience serves our clients in those traditional areas as well as the increased challenges presented by the whistleblower protections created by SOX—protections that even criminalize the mishandling of some whistleblower situations.

A myriad of legal obstacles are imposed on employers attempting to manage a current employee who asserts him/herself as a “whistleblower.” Effective counseling of employers requires a firm like O’Melveny with a breadth and depth of experience in both employment law and fraud claims. In addition to counseling employers through these difficult situations, we regularly defend employers and their executives in related civil and criminal litigation. We also understand the importance of managing employee morale issues, media coverage, shareholder actions, and even congressional scrutiny that can often accompany allegations of financial impropriety and False Claims Act investigations. Accordingly, we help our clients develop comprehensive and effective strategies to achieve favorable outcomes.

With the explosion of information technology, employers now have the ability and tools to collect, monitor, and measure information regarding employee performance as never before. This same technology, however, also places an employer’s own interests in protecting confidential, proprietary information at risk. Moreover, in utilizing information regarding employee performance and seeking to protect proprietary information, an employer must also consider and balance the rights of its employees to a certain level of privacy.

We advise clients on the full range of employee privacy rights issues, including workplace monitoring and surveillance techniques involving Internet, e-mail, and voicemail policies, as well as use of polygraph, medical confidentiality, drug, alcohol, theft, and no-smoking ordinances. We help our clients develop policies to minimize the risk of exposure and significantly increase their protection against potential liability from invasion of privacy claims. We advise on compliance with laws regarding background checks, the types of information that can be retained from the employee interview process and methods for retention, and issues relating to drug and alcohol testing. Our lawyers are particularly well-versed in privacy laws in California, where, by public referendum, state constitutional privacy protections have been extended to the private sector. As the need arises, O’Melveny defends our clients against invasion-of-privacy claims brought by employees.

Workplace privacy issues, of course, arise in many different contexts. Although technological advances have presented new and difficult issues that have dominated the legal landscape in recent years, our lawyers have been providing advice on workplace privacy issues for decades. We regularly counsel our clients regarding the:

• Right to search and inspect employee workspaces, files, equipment, and personal property
• Issues of drug and alcohol testing, including the development of drug and alcohol policies that meet employers’ needs while also complying with the law
• Development of procedures for conducting internal investigations (such as sexual harassment investigations) that are thorough and legally sufficient, but which protect the confidential nature of the information often deduced through those investigations
• Legal requirements under federal and state law for background checks, credit reporting, and employee surveillance, including the monitoring of telephone and electronic communications 
• Navigating the complex web of state laws that protect the use and dissemination of employment records, especially confidential medical information, that employers often retain regarding their employees

Because our Labor and Employment lawyers devote their entire practice to addressing labor and employment issues, they are able to focus quickly on the problem, ask the right questions, and provide prompt and meaningful, yet practical, advice.

Our lawyers are also skilled litigators who are experienced at defending employers against lawsuits alleging the violation of privacy rights. Because our practice is nationwide, we can, and do, defend our clients in privacy-based lawsuits wherever they arise. Moreover, we have often advised our client before the lawsuit ever arises. In such instances, we are already intimately familiar with the subject matter of the litigation, and have already placed our client in the most advantageous position possible for purposes of successfully defeating the litigation.

Our goal is simple: to provide practical advice, in a timely manner, which allows our clients to achieve their business objectives. We add value to our clients’ deliberations by suggesting options and alternatives designed to help them achieve their goals while minimizing the legal risks. In the area of workplace privacy, we help protect proprietary information, access relevant information and measurements of employee performance, and effectively deal with important employee relations issues without incurring unnecessary legal liability.