Labor & Employment

“I always feel confident going to them with questions.  If it’s a matter that may go to litigation, I always go with them.  If it’s a technical expertise matter, I also go to them.  Or even if I just want to know that I’m thinking correctly on something.  They’re proactive in how to deal with matters at an early stage to avoid further problems.  I value their expertise.”

“I’m extremely impressed by their professionalism, concern for the best interest of our organization, responsiveness and quality of work.”

— Chambers USA America’s Leading Lawyers for Business

E-mails from three of the managers you supervise have just hit your inbox.  One advises that a longtime employee on a performance improvement plan wants to talk “options.”  Another reports three new union grievances, and requests help preparing for arbitration.  The third says that the new sales staff seems great, but needs HR to do some training, and asks whether the employee handbook needs updating.  In the morning snail mail, you find a newly filed discrimination charge from the local EEOC office, as well as what appears to be a summons or subpoena in another matter.  You aren’t sure where to stack these, because your desk is covered with materials for the RIF you’re organizing.

Feel like a typical day at the office?  We can help.

Wyatt’s Labor and Employment Team understands the daily demands managers and supervisors face.  Whether you are a Human Resources Director for a large company, a CEO for a small start-up serving as your own HR manager, or supervising employees in any other capacity, effectively managing people is the key to your organization’s success.

Wyatt’s Labor and Employment lawyers have experience in resolving all manner of employment difficulties: hiring and firing decisions; labor relations; employee training; compliance issues; and suits filed by current and former employees.  Below are examples of the employment matters with which we regularly help our clients.

Employment Practices Liability Experience. Wyatt’s employment team has vast experience with employment practices liability (“EPL”) defense, including defending insureds for claims brought against them in state and federal courts, before all administrative agencies, and prior to lawsuits when demands are made. Our attorneys have experience defending insureds pursuant to all state and federal employment laws, including Title VII, ADEA, ADA, FMLA, FLSA, NLRA, GINA, and OSHA. We also defend clients against employment-related torts. Insureds are often so pleased with our defense of EPL claims that they often become clients after the claims have resolved, which shows the dedication and depth of service we provide insureds.

Our lawyers are experienced with the defense of EPL claims, so we know the value of timely reporting, providing realistic budgets, and efficient staffing of cases. We also know the value of early assessment of cases.

We have seen every type of matter covered by EPL policies and have been successful in this practice area. Our recent successes include:

• Defended an insured bank on a charge alleging discrimination. The EEOC found no probable cause after investigation.
• Represented an insured private college on labor and employment matter involving dismissal of professor. After jury trial, obtained defense verdict for client.
• Represented an insured city in a religious discrimination lawsuit brought by a former employee and removed to federal court. Obtained summary judgment dismissal after discovery.
• Obtained early summary judgment and dismissal of civil rights suit against medical provider brought by a former employee alleging wrongful discharge and retaliation, and discrimination based on age and race.
• Attained voluntary dismissal of $750,000 federal civil rights case involving state and federal employment claims after favorable plaintiff’s deposition.
• Obtained favorable settlement of matter for an insured private college wherein a former employee alleged discrimination.
• Obtained unanimous jury verdict in favor of insured college in breach of tenure contract case.
• Obtained unanimous jury verdict in favor of insured client rejecting employee’s claim of pay discrimination.

Our employment lawyers have been honored by their peers and many of the EPLI team have been recognized as Super Lawyers and Rising Stars in the field of employment law. They are also nationally known in the field. For instance, EPLI Team Leader, Sharon Gold, has spoken at the ACI National Conference on Employment Practices Liability Insurance in 2014, 2015 and January 2016.

Our lawyers stay abreast of EPL marketplace and underwriting trends; tactics for moving EPL litigation to early resolution; and EPL risk management “best practices.” We bring that information back and share it with our clients through regular employment law seminars and individual training sessions with clients at their places of business. We have even brought in EEOC Commissioner Constance Barker to speak to our employment law clients on the current initiatives, emerging trends and “lessons learned.” Our clients enjoy keeping up to date with employment law issues with our Employment Law Blog that is available here.

We believe in preventative counseling and are frequently asked to advise employers prior to termination or discipline of an employee in order to minimize the risks thereof.

Counseling and Training. Our first priority is keeping our clients out of trouble, and compliant with the many employee protection laws.  One of the best services we can provide to our clients is timely guidance that will save them from costly litigation.

Our attorneys  provide pre-litigation counseling and training. We also advise clients about personnel matters including: hiring, handbook content, policy changes, FLSA and state wage and hour laws, discipline and termination, federal and state discrimination laws, severance or separation agreements, and non-competition and confidentiality agreements.  In addition, our attorneys train human resource personnel about applicable laws, rules, regulations, and best practices.

Team members have recently provided sexual harassment training for a client’s workforce, given multiple presentations on writing social media policies for the workplace, explained to a group of human resources professionals the ways that the Genetic Information Nondiscrimination Act is effecting workplace policies and procedures, and conducted a mock trial to educate HR managers about the litigation process.

In addition to long-term planning, advice and solutions, our clients count on us to provide quick help in the midst of critical situations.  Some examples of recent questions fielded by our team include:

• Can we terminate this employee based on recent misconduct if it was not documented?
• Must we provide Spanish translations to our Spanish-speaking employees?
• Is this employee’s complaint a request for an accommodation of a disability?
• How should we respond to this employee’s Facebook post that disparages a supervisor?
• Is this waiver of ADEA claims enforceable or should we reword it?
• Is this non-compete agreement enforceable?
• What can we do to prevent our former employee from trying to induce other employees to come to work for him?

We can help to analyze these kinds of issues before they become troublesome.

Employment Litigation. While we want to help our clients avoid litigation, we’re also here to assist them in disputed matters in all state and federal courts, before all administrative agencies, and in mediation and arbitration.  Our attorneys have experience with all state and federal employment laws, including Title VII, ADEA, ADA, FMLA, FLSA, NLRA, GINA, and OSHA.  We also defend clients against employment-related torts, in contract actions, and in litigation arising from non-solicitation and non-competition agreements.

Examples of our recent successes in court have included defense against:

• claims of age, race, sex, and disability discrimination, sexual harassment, racial harassment, and retaliation.
• certification of class action
• class action litigation after certification of class
• breach of non-competition covenants
• contract claims arising from dismissal of tenured professors
• claims for defamation, wrongful termination, and intentional infliction of emotional distress
• agency claims for discrimination, unemployment benefits, overtime or other wages, and OSHA violations

Traditional Labor Matters. Wyatt, Tarrant & Combs, LLP’s Labor and Employment Service Team includes labor lawyers who represent management in all phases of traditional labor work.  They provide the breadth and depth of legal talent to address all legal needs quickly, competently and cost-effectively.  We understand that good legal representation includes not only sound legal knowledge, but creativity, tenacity, and responsiveness.  Our labor lawyers often work in collaboration with other Wyatt service teams, such as Corporate Transactions, where, for instance, a company with a union organized workforce is about to be bought or sold.

Our traditional labor lawyers are available to handle:

• Union organizing campaigns;
• National Labor Relations Board (NLRB) representation litigation;
• NLRB unfair labor practice charges;
• Collective bargaining negotiations;
• Litigation involving unions or union members;
• Arbitration cases;
• Strike-related litigation;
• Advising and counseling employers who face unionization; and,
• Supervisor training.

Three recent cases illustrate the successful outcomes our traditional labor lawyers have achieved:

• In one case, we assisted a national client of the Firm in connection with a union organizing campaign and succeeded in obtaining an NLRB ruling on the scope of the voting unit that led to the client winning the union representation election.
• In another case, our traditional labor lawyers worked with a Fortune 50 company to prepare for a possible strike by its unions upon expiration of the labor agreement which included preparation of state court breach of the peace injunction papers, and advice and counsel regarding evidence gathering of possible strike violence.  We have also on many occasions filed for and obtained injunctive relief against striking unions for strike-related misconduct.
• In a third case, we provided supervisor training to a major client whose employees are not represented by a union on the “do’s and don’ts” should an organizing campaign take place, as well as training on good employee relations practices and strategies.

Agency Practice. Our attorneys have extensive experience in counseling and defending clients with regard to investigations being conducted by state and federal agencies, including the Equal Employment Opportunity Commission, various state fair employment practices agencies, the U.S. Department of Labor, the U.S. Department of Justice, the Office of  Federal Contract Compliance Programs and the Federal Bureau of Investigations.   Whether a client has questions regarding how to respond to an investigation of its employment practices by one of these agencies, desires policy development to insure compliance with the laws regulated by these enforcement agencies, or needs defense of a complaint made to an employment practice agency, Wyatt’s labor and employment team has the experience to handle such matters.

Our team members are experienced in preparing responses to EEOC, DOJ and DOL agency charges,  assisting employers with on-site investigations by state and federal agencies, developing Affirmative Action Plans, assisting employers with OFCCP audits and compliance reviews and defending employers in settlement negotiations with state and federal agencies. In addition, our team members can assist with the development of policies and procedures often reviewed by these employment practices agencies, as well as with the development of training programs.

Specific experiences include:

•  drafting position statements for employers in response to EEOC charges of discrimination
• defense of employers in wage and hour investigations by the Department of Labor
• defense of employers in ADA and Title VII investigations  by the Department of Justice
• preparation of Affirmative Action Plans for both governmental employers and private corporations
• on-site assistance to employers during EEOC, DOL, DOJ, HUD and OFCCP audits and compliance reviews
• preparation of management training programs
• defense of employers during EEOC mediations
• counseling with regard to ADA compliance
• practice before the U.S. Dept. of Education Office for Civil Rights

Below are examples of recent services our team members have provided clients with regard to agency matters:

• Defense of a political subdivision in response to the filing of multiple interconnected charges of race discrimination following the termination of a group of employees for misconduct.  All charges against the employer were dismissed.
• Assistance in negotiations between large employer and NAACP in order to resolve a departmental pay dispute, resulting in favorable resolution to all parties.
• Defense of multinational employer during EEOC investigation of race and sex discrimination as well as subsequently filed federal lawsuit, ultimately resulting in the dismissal of all claims in favor of the employer
• Counseling for charitable organization with regards to an audit by the U.S. Department of Labor

Class and Collective Action Defense. Our Labor and Employment Service Team includes lawyers who regularly defend companies in class and collective actions.  Our team members have experience in all phases of class and collective actions, including briefing and hearings on certification and decertification, discovery, trial, and appeal.  We have worked with employers on crafting appropriate communications to employees concerning pending class litigation.  Our attorneys have worked on class action matters involving claims of gender discrimination, race discrimination, and retaliation.  In addition, our lawyers have experience at both the state and federal level defending class and collective actions on wage and hour issues, including misclassification of employees, payment and calculation of overtime, claims of off-the-clock work, and meal and rest breaks.

Recent examples of our successes include:

• Decertification of a wage and hour action involving meal and rest breaks;
• Denial of certification of a class where plaintiffs sought damages for breach of contract, unjust enrichment and other common law claims related to a Fortune 500 Company’s alleged failure to pay overtime wages;
• Denial of certification of a class alleging failure to properly calculate overtime; and
• Successful defense of multiple Fair Labor Standards Act class actions involving donning and doffing of protective clothing and equipment, with related meal and rest period claims