Practice Areas & Industries: McGuireWoods LLP

Practice/Industry Group Overview

To stay competitive, you must constantly meet market conditions and implement changes in your business. But doing so becomes increasingly difficult, as you face state and federal regulations regarding the employment relationship. In turn, experienced, proactive legal counsel has become a necessity. You'll find that counsel at McGuireWoods.

McGuireWoods has nearly 100 labor and employment lawyers who are committed to anticipating and resolving issues in the employment relationship.

This team represents companies ranging from Fortune 500 companies to sole proprietorships, in almost every type of industry.

Our labor and employment department covers six areas: employee benefits/executive compensation litigation, employment discrimination, government compliance, labor-management relations, non-competition matters and wrongful discharge.

Our team is known for handling traditional labor issues in an innovative manner, particularly in union and employment related anti-discrimination matters. For example, we train supervisors and personnel managers on ways to reduce the risk of discrimination charges, wage and hour and OSHA claims, and wrongful discharge suits. We have also developed a unique approach to help companies stay union free -- one that emphasizes the strengthening of the management-employee relationship.

This team also reviews employment policies and benefits, handles unfair labor practice matters before the National Labor Relations Board, advises management on how to respond to union publicity efforts and corporate campaigns, and represents companies in strikes.

When our clients are sued, we vigorously defend their interests. We have extensive experience in every type of federal and state civil rights and anti-discrimination claims. We also are active in representing companies when unions have petitioned for representation elections. Our group has handled more than 50 campaigns in the last three years alone.

We have a unique, experienced team that is well equipped to relate to both managers and employees. Two of our lawyers are former union organizers, and most held jobs before they went to law school. Some worked construction and other manual labor jobs.

To ensure efficiency, we use technology to link our offices and our lawyers. This allows us to communicate electronically, conduct on-the-spot research, review sensitive employer communications on a moment's notice, and stay in the field longer. We also keep our clients up to date on the latest developments through a Web page, an electronic mailing list and periodic seminars.

Services Available

Employee Benefits/Executive Compensation Litigation

Your company invests a great deal of resources in its employees. When one of them decides to sue the company, it's not pleasant. When multiple employees bring a class action suit, it's a potential crisis.

McGuireWoods is the ideal choice to help in these matters. We have a rare combination of ERISA expertise, nationwide reach, and litigation experience. We regularly defend employers and insurers against claims involving denial of retirement, health, life, disability, and severance benefits, alleged breaches of fiduciary duty, and alleged misrepresentations regarding benefits.

Lawyers on our benefits litigation team come from the firm's labor and employment, employee benefits, and commercial litigation groups. Our litigation capabilities are enhanced by our broad ERISA, tax, and securities expertise and experience with retirement and welfare benefit plans, service contracts, and plan administration.

Our practice is national in scope. We have experienced benefits litigation attorneys in offices in major commercial centers such as New York, Chicago, Charlotte and Atlanta, as well as Washington D.C. and Richmond, and we can field a team to represent a client in any jurisdiction in the country.

The firm uses extensive resources and technology to stay current with recent legislative and regulatory developments affecting employee benefit plans. One of our partners is a member of the ABA Labor Section's Employee Benefits Committee, and several have been named among the "Best Lawyers in America."

Relevant Experience

• McGuireWoods lawyers strive to end ERISA litigation at the earliest stage possible and have succeeded in numerous instances including the following:

• Summary judgment for a technology company against 56 former employees seeking severance benefits, statutory penalties, and damages for alleged § 510 discrimination.

• A successful motion to dismiss on a claim against a large chemical company for alleged violations of "rollover" plan distribution notice rules under 29 U.S.C. § 402(d), affirmed on appeal.

• Summary judgment on class action claims under ERISA for early retirement incentive benefits, breach of fiduciary duty, and claims for statutory penalties for failing to produce plan documents.

• Summary judgment on fiduciary breach claims in connection with annuity withdrawals and allegedly resulting tax losses.

• Summary judgment in a class action alleging breach of ERISA fiduciary duties with respect to change of control provisions in ESOP plan.

Employment Discrimination

When your company is being sued for alleged discrimination, the repercussions run deeper than your bottom line. Your company's stature as a good corporate citizen is called into question.

At McGuireWoods, we have the experience and resources to deal with these cases on a financial as well as a public-relations level.

We deal with cases in jurisdictions across the country, and our experienced litigators have handled everything from small state court claims to national class actions in the federal court system. While some firms provide lawyers for these cases based solely on geographic proximity, we assemble teams with the proper skill set for each particular case. And whether our teams are formed from across the hall or across the country, we keep them connected with a centralized knowledge sharing system. This technology allows us to deliver a seamless consistency of quality service that clients appreciate.

We also deal with anti-discrimination matters proactively. Our services include:

• Interpretive guidance and review of company-wide personnel forms, policies, and procedures

• Preparation of affirmative action plans and policies

• Training supervisors and other personnel on ways to reduce the risk of discrimination charges

• Coordinating alternative dispute resolution

Our consulting arm is practiced in the art of bringing the client's reputation through the court of public opinion whole and intact. McGuireWoods Consulting litigation assistance services include:

• On-site media assistance

• Advising attorneys on the impact court filings will have on public opinion

• Preparation of talking points and press releases

Representative Work

• When a former male regional manager of a national communications company accused his female human resources director of sexual harassment and retaliation, we came to the company's defense. After a 2 ½ -week trial, including testimony from over 20 witnesses, the jury deliberated for just over 5 hours and returned a verdict in favor of our client.

• An employee of a business services company complained that he was the victim of race discrimination. Two days later, he was fired for insubordination unrelated to the prior complaint. Although in many cases such a close proximity in time between protected activity and termination would be difficult to defend even in front of a jury, we succeeded in winning summary judgment for our client.

• We won summary judgment in this age discrimination / breach of contract case for an electronics manufacturer. After his position was eliminated due to a sale of his business unit, the Plaintiff (a long-time sales manager) claimed that he had been frozen out of alternative jobs based upon his age. He claimed over $1 million in past and future damages, including loss of pension benefits, and retained multiple expert witnesses to support his damages claim. However, the judgment in favor of our client was later affirmed by the Seventh Circuit Court of Appeals.

Government Compliance (Affirmative Action, OSHA)

...Your company has just been notified of an impending audit. You have 30 days to make sure your hiring practices comply with nondiscrimination standards.

...In a tragic accident, an employee was killed recently in one of your plants. A representative from OSHA just showed up in your lobby.

...A group of exempt employees feel they have been misclassified. They bring suit for overtime pay.

No matter which of these -- or similar -- problems you are facing, McGuireWoods can help.

We represent clients in government investigations, including Department of Labor (DOL) compliance checks and audits, and in proceedings before the DOL administrative forums and in federal court. We provide interpretative guidance and conduct training for supervisors and personnel managers. We also prepare affirmative action plans and policies and review related personnel forms and procedures.

In the occupational safety and health area, our lawyers advise clients on how to comply with complex OSHA regulations. We help prepare written safety programs that are required by law, represent management in government investigations and inspections and in negotiations with state and federal enforcement authorities, and litigate civil and criminal citations. We handle small cases alleging routine violations as well as larger cases involving fatalities, "willful" violations and six figure fines.

Compliance issues under the Fair Labor Standards Act (FLSA) and state wage and hour and wage payment laws are important for employers of all sizes. We counsel clients on how to adopt proper policies and procedures to assure compliance; advise on ways to minimize the cost of compliance and the risks of non-compliance; provide training for managers and supervisors, assist employers in responding to government investigations and represent employers in litigation in federal and state courts.

Labor-Management Relations

Conflicts in labor-management relations can cripple a company. The key is to take a proactive, positive approach. Doing so requires foresight, experience, and a close relationship between your management and your counsel.

At McGuireWoods, our years of experience have led to in-depth relationships with our clients. Our labor group is made up of a diverse group of attorneys, including a recent member of the National Labor Relations Board, a former Regional Director for the National Labor Relations Board, and two former union organizers. This diversity and our emphasis on client service ensure our clients unsurpassed representation in all aspects of traditional labor law, including

• Union avoidance
• Client assistance during unionization campaigns
• Representation of companies with existing unions
• Strike or boycott management
• Unfair Labor Practice proceedings

In the case of union avoidance, our view is that the best way to avoid unionization is to avoid underlying problems and tensions that give rise to union activity. Therefore, we work extensively with our clients to identify potential problem areas before they lead to union interest and activity, and to train supervisors regarding employee management and potential signs of union activity.

We have also successfully represented employers' interests in hundreds of unionization campaigns. In these cases we use a positive "pro-company" approach, educating employees about unions, showing them what to expect in a unionized work environment, and highlighting the company's positive attributes. Our experience is that well-informed employees are less likely to support a union during an election and are more likely to return to normal relations with management following an election.

As for clients who have existing unions, we provide equally important services, assisting in the effective auditing, negotiation and administration of collective bargaining contracts; handling arbitrations dealing with issues such as sub-contracting bargaining unit work, incentive pay, discharge, work slow-downs, and recall rights; and working with our clients to resolve union grievances. Our experience in resolving union grievances amicably or winning outright has allowed our clients to operate efficiently even in a unionized environment.

We also are there for our clients when they face what every unionized employer fears: a strike or boycott. We assist and advise our clients with pre-strike planning, limiting a strike's affects on our clients' business, enjoining any illegal strike activity, and facilitating a return to normal operations after a strike. Through our efforts, we help clients minimize the disruption and damage caused by these unfortunate events.

Finally, we represent clients in all manners of unfair labor practice proceedings. We regularly assist clients with charges arising out of every situation from a non-union environment to an election campaign to a unionized environment to a strike situation to a plant shutdown. Our attorneys have extensive experience assisting clients at the charge stage, before an Administrative Law Judge, before the National Labor Relations Board, and before various Courts of Appeal.

Representative Work

• The head of our Labor and Employment Department was significantly involved in developing a national strategy opposing Teamsters initiatives for a Fortune 500 company, and was extremely successful in defeating the Teamsters in the locations where he was given responsibility for the campaigns.

• We achieved a massive victory in the largest decertification election ever conducted by the NLRB. After months of intensive work by our labor attorneys from around the country, approximately 4,000 employees of a leading aerospace company voted to decertify SCPEA as their collective bargaining representative.

• We assisted our client, a paper and wood products manufacturer, with a huge win at one of their Kentucky facilities. The Paper, Allied-Industrial, Chemical and Energy Workers International Union (PACE) was attempting to organize the employees in its 4th campaign in only 8 years. The company won the union election 46-43, although the team had initially been told that a win was believed all but impossible.

Non-competition Matters

In business, the best idea wins. Therefore, the success of your company often depends on the security of your proprietary information. But new technology is making that security more difficult to enforce.

Business relationships must also be protected, as accounts are at risk of "moving on" with employees. Your company needs to safeguard against such threats, and take instant action when problems do occur.

McGuireWoods stands ready to guide your company in these matters. With experience in all areas of non-competition, we can also call on the resources of our Labor and Employment Group, Commercial Litigation Group or Intellectual Property Litigation Group.

This team primarily represents employers in developing, challenging and defending non-competition agreements. We counsel employers on how to draft non-compete and secrecy agreements, negotiate settlements prior to litigation, and, when needed, fight for our clients' interests in court. Our extensive experience in this area has allowed us to litigate non-compete matters successfully in many states, for clients in industries such as banking, business consulting, health care, manufacturing and insurance.

We have pursued former officers or employees on theories such as:

• unfair competition
• conspiracy
• unjust enrichment
• misappropriation of trade secrets (including inevitable disclosure theories)
• quantum meruit
• breach of fiduciary duty (based on activity against the employer's interest while still employed) and similar bases

At McGuireWoods, we believe that companies at risk must have an up-to-date arsenal of agreements that are both well drafted and readily enforceable in court. As our economy has gone global, these agreements have taken on a much greater scope. Worldwide non-competition agreements were once unheard of. It was inconceivable that such broad geographic protection would or could be necessary. Today, these same agreements are gaining acceptance, as e-commerce allows for competition from across the world.

Should a non-compete agreement be broken, we'll offer you appropriate advice and information with which to make a sound business decision about the best course of action. Often, parties do not realize the level of commitment required to engage in such litigation until they are already in the middle of it. We believe a well-defined analysis of the risks and rewards always serves our client's interest.

That said, once the decision is made to proceed, we move rapidly and decisively (in many cases, the same day) to pursue the appropriate course of action. Speed is often critical in such matters, and we not only have the legal experience, but also the practical experience and necessary resources, to strike quickly. We have an established network of supplemental resources, such as investigators and computer forensic analysts, allowing us to maneuver effectively when prompt action is required.

Relevant Experience

• When the former chief engineer for a commercial rail testing company attempted to take critical technological information to a major competitor, we pursued him on behalf of his former employer. We sued the engineer and his new company in two jurisdictions simultaneously, arguing the theory of inevitable disclosure -- that in his new job he would inevitably use or disclose our client's trade secrets. Despite the fact that he did not originally have a non-competition agreement, we obtained an injunction preventing him from working for the competitor in an engineering capacity for one year.

• The firm represented a company from which several high-level executive officers and employees resigned en masse, taking entire databases of information critical to the ongoing operation of the companies. With no time to lose, we obtained an ex parte injunction from the court that allowed the seizure of the client's competitor's computer systems to determine if they contained trade secrets or confidential information. Trade secret information was indeed discovered and, not surprisingly, the case was favorably settled shortly thereafter. Although the non-competition agreement in place was unenforceable, our team nevertheless obtained a temporary restraining order and proved that the defendants were in violation of it.

• At a hearing for this breach of non-compete agreement case involving a managed care company, we showed that the defendant had offered an administrative staff person $10,000 in exchange for removing his non-compete agreement from the company's files. Following this, the case was predictably resolved in favor of our client.

Wrongful Discharge

Terminated employees today challenge management decisions from just about every angle. Companies face accusations of race, gender, age, disability and a host of other types of discrimination. Conversations may be interpreted as oral contracts and employee handbooks are often considered binding. To make issues even more complex, wrongful discharge laws vary state by state.

An area this complicated requires the expertise of McGuireWoods. Our Labor and Employment team has deep and diverse experience on every aspect of wrongful discharge, which makes us well equipped to counsel management on:

• Employment handbooks and procedure manuals
• Work rules
• Attendance and leave policies
• Smoking rules
• Drug testing and other procedures to prevent drug and alcohol abuse in the workplace
• Issues concerning AIDS and contagious diseases
• Employee contract and discharge matters
• Litigating wrongful discharge claims
• Employment contracts
• Employment tort claims
• Employment-at-will issues
• Strategies for reducing employment contract and employment tort claims

Our Labor and Employment team is familiar with federal statutes, workers' compensation, unemployment compensation and other state employment laws, including anti-retaliation provisions.

Representative Work

• In 2002, in the Portsmouth Circuit Court, we obtained a defense verdict in an OSHA whistleblower case filed by the Virginia Department of Labor and Industry. The terminated employee claimed she was fired because she lodged a safety complaint.

• In 2005, in the Western District of Virginia, we successfully argued to the court, against the plaintiff's motion to remand, that individual managers could not be liable for the tort of wrongful discharge in violation of public policy.

• In 2004, the Circuit Court for the City of Richmond sustained our demurrer on behalf of the former employer, finding that the plaintiff could not establish a wrongful discharge claim based on the Virginia Constitution, as a matter of law.

• In 2005, in the Federal District Court in Arkansas, plaintiff alleged he was terminated in retaliation for complaining about potential environmental issues at the site at which he worked. The Court granted our motion for summary judgment, finding that plaintiff failed to establish he had reported conduct that constituted a violation of federal or state law as required by the narrow public policy exception to the general rule of at-will employment under the state's law.

• In 2003, in the Circuit Court for the City of Richmond, we filed a motion for summary judgment on behalf of plaintiff's former employer. In that suit, plaintiff claims he was forced to retire after he made several health and safety complaints. The employee also asserted claims for both negligent and intentional infliction of emotional distress. After we filed the motion for summary judgment and before the Court had a chance to consider it, plaintiff voluntarily dismissed his case, and never refiled.

• In 2004-5, in the Circuit Court of Hendry County, Florida, we successfully negotiated the resolution of a breach of contract and fraud case filed by one of the founders of the company.