Practice/Industry Group Overview
Drinker Biddle’s Labor and Employment Practice provides businesses with a full range of employment-related legal services. Our clients include a broad range of foreign and domestic corporations, including industrial manufacturers, retailers, nonprofit educational and public institutions, health care organizations, financial services providers and consulting firms. For many of these clients, we serve as national counsel for labor and employment matters, especially in the retail and financial services industries. We are committed to providing real-time, real-world solutions to workplace problems.
Employment Litigation. Our trial lawyers are some of the best in the business, having collectively tried hundreds of cases in the state and federal courts throughout the United States and before the state and federal administrative agencies. We have successfully litigated employment discrimination, retaliation, harassment and wrongful termination claims based on sex, sexual orientation, race, national origin, ethnicity, religion, disability, age, citizenship, family and medical leave status and other statutorily-protected characteristics. We have also handled numerous wage and hour, breach of contract, severance, employee benefits, non-competition, confidentiality, trade secret, whistleblower, invasion of privacy and defamation claims. Our lawyers have particular experience litigating employment class actions. We also have a team of lawyers who specialize in ERISA and benefits-related litigation.
The following is just a sample of claims litigated:
- We prevailed at a federal jury trial in an FMLA, ADA and state law disability retaliation and wrongful discharge case on behalf of a real estate management and construction company.
- We won a federal jury trial on behalf of our client, a major insurance company, involving failure to promote and pay claims based on race.
- When one of the nation’s leading mortgage companies faced a federal lawsuit alleging reverse discrimination and retaliation, we obtained dismissal of the case after the first day of trial.
- We obtained a defense jury verdict in favor of our foreign-based client in a religious discrimination case filed in federal court in Massachusetts.
- In a pregnancy discrimination case tried before a jury in state court, we demonstrated that, the employee’s termination was lawful.
- We obtained summary judgment on a state whistle blowing claim on behalf of a Fortune 50 company.
- We obtained summary judgment, affirmed on appeal, in a federal age discrimination and breach of contract case brought by an executive against a major insurance company.
- We successfully defended an educational services enterprise in a series of race, ethnicity, gender and retaliation trials in the federal courts in New York, New Jersey and Massachusetts following a corporate reduction in force.
- We have successfully defended several qui-tam and whistleblower claims brought under the Federal False Claims Act and Sarbanes-Oxley.
While we have successfully tried numerous cases, we recognize that most often it is in the client’s best interest to resolve these cases prior to trial either through a motion to dismiss, summary judgment or negotiated settlement. Therefore, we take an approach that positions these cases for early dismissal or settlement. First, we conduct a thorough initial evaluation of every case prior to the lengthy discovery process and before the parties have become entrenched in their litigation positions. We have successfully resolved cases immediately after and sometimes even before the complaint has been filed. We have substantial experience with, and often recommend, mediation, arbitration and other forms of ADR in order to achieve the best outcome. Where a case is not settled, this preliminary evaluation permits us to develop a strategy which often leads to summary judgment.
Second, we communicate our strategy and recommendations to our clients throughout each step of the litigation. We value the collaboration between lawyer and client and fully appreciate the client’s insight and active participation in litigation strategy. With many clients, we provide a detailed written analysis and budget within the first 30 days of the case.
Third, we staff our cases leanly but with the right attorneys on the right case. We avoid unnecessary discovery squabbles, redundant research or other tasks that do not advance the overall outcome of the case.
Finally, we have the experience and knowledge of the claims, judges, jury pools and adversaries to make the appropriate judgments concerning the risks, costs and likely outcomes. We take a client-oriented approach that recognizes above all the client’s view of a successful outcome.
Employment Counseling and Training. Every day, we help our clients avoid litigation. We believe we can best serve our clients by anticipating and resolving employment issues before they ripen into litigation. In collaboration with in-house legal counsel, executives and managers and human resources professionals, we regularly counsel our clients on such issues as:
- Affirmative Action
- Anti-harassment education and training
- EEO compliance
- Hiring and employee background issues
- Employee discipline and termination
- Executive employment agreements
- The Americans with Disabilities Act
- The Family and Medical Leave Act
- Mandatory arbitration policies
- Non-competition, trade secret and related matters
- OSHA investigations and complaints
- Privacy, the internet and off-duty conduct
- Reductions in force
- Sarbanes-Oxley requirements
- Substance abuse and drug testing
- Union-management issues
- Voluntary retirement programs
- Whistleblower issues
- Wage and hour practices
- Workplace violence
We take a creative approach to counseling which includes fixed-fee retainer agreements that provide clients access to timely advice on day-to-day workplace legal issues. We have developed in-house training programs on a variety of workplace issues. We conduct workplace audits of personnel policies, wage and hour compliance, and hiring, promotion and compensation practices.
Some examples of counseling approaches include:
- We conducted a series of “lessons learned” training sessions for in-house managers and HR professionals following the successful resolution of a multi-plaintiff employment litigation against a major university.
- We conducted a statistical analysis of our client’s hiring, promotion and compensation practices designed to prevent anticipated class action claims.
- We developed training for a national financial services company on such topics as sexual harassment, the ADA and wage and hour laws. A fixed retainer agreement gave the client’s HR professionals the option to contact us any time on emerging employment matters.
- At a bottling company’s annual human resources conference, we advised on recent trends in U.S. labor law in order to enable the human resources managers to anticipate and prepare for the latest developments in the employment arena.
- We helped a national manufacturer implement a mandatory employee arbitration program. This program has resulted in the reduction of fees and costs associated with employment litigation.
- We prepared affirmative action programs for a client with numerous nationwide locations. We then represented that same client in an OFCCP audit that was successfully concluded in the client’s favor.
- We conducted an internal investigation of racial and sexual harassment complaints against a national clothing retailer. The investigation resolved these claims prior to litigation.
We also conduct comprehensive workplace audits designed to uncover and solve employment law compliance issues. Our sensitivity to our clients’ business needs, in addition to our understanding of the current and future legal environment, enables us to provide comprehensive risk assessments and develop appropriate prevention programs.
Union / Management Relations. Our services include helping non-union employers develop forward-thinking and comprehensive approaches that deny unions a ready market and to work productively with those employers whose employees are represented.
The Corporate Campaign. The Change to Win Coalition and AFL-CIO have developed new strategies designed to exploit a company’s vulnerability to union organizing attempts. Also known as the “corporate campaign,” unions have targeted certain employers and industries through media/public relations advertisements, customer boycotts, shareholder and investor pressure, new legislation, attacks on individual executives and directors, and internal employee activity such as whistleblower complaints, sick outs and slow downs. Our labor specialists are on the cutting edge when it comes to advising companies concerning these issues and have develop successful comprehensive approaches to combat the corporate campaign. Through our contacts in the public and private sector, we have worked with clients and business coalitions to educate and lobby legislators concerning these union efforts and proposed legislation such as the Employee Free Choice Act.
Traditional Labor Management Relations. We also regularly represent employers who are the target of more traditional union organizing campaigns. We place a high priority on providing strategic guidance to our clients to minimize the risk of employee interest in union representation. Our guidance includes vulnerability audits, policy development and management effectiveness analysis. Should union activity occur, we can respond quickly and develop a successful response to union organizing campaigns. We also have extensive experience representing management in labor contract negotiations, defending management’s actions through the grievance process and at arbitration, representing management in unfair labor practice proceedings, and obtaining injunctive relief from unlawful picketing, secondary boycotts and other unlawful union activity.
Some sample engagements include:
- We worked with several clients to develop a communications plan in response to the Employee Free Choice Act.
- We successfully represented a trailer manufacturer in defeating an organizing effort. After a five-week election campaign, the employer won the election by a 5-to-1 margin.
- We successfully challenged an election petition seeking to organize a group of hospital employees under the healthcare bargaining unit rules resulting in the withdrawal of the petition before the election.
- We advised a transportation maintenance company on avoiding joint employer status that could arise from a management agreement with a unionized workforce in Florida.