Labor and Employment

Akin Gump Strauss Hauer & Feld LLP has the experience and resources to provide sound advice and vigorous representation to employers regarding all aspects of employment law and labor relations. These lawyers, including former officials and lawyers from the U.S. Department of Labor, Equal Employment Opportunity Commission and National Labor Relations Board, represent clients ranging in size from small businesses with only a handful of employees to some of the largest of the Fortune 500.

The labor practice regularly provides advice and representation in traditional labor matters such as organizing campaigns, collective bargaining, unfair labor practice proceedings, discrimination charges and lawsuits, and day-to-day employment matters. We also provide assistance in addressing today's cutting edge labor issues, such as handling major class action wage-hour and EEO litigation, analyzing and implementing the labor aspects of major corporate reorganizations and acquisitions, concession bargaining, restructuring labor contracts in bankruptcy, designing and implementing employee health and welfare benefit plans, and, for those employers with facilities in Europe, understanding and complying with the social legislation of the European Union. The labor practice group has attained particular prominence in recent years as a result of our representation of a client in a significant case before the U.S. Supreme Court involving the scope of management rights in the railroad industry, our involvement at both the trial and appellate levels in high-profile bankruptcy cases in which labor unions vigorously opposed the debtors' efforts to reorganize, our participation as lead counsel in several nationwide class actions alleging employment discrimination and wage-hour violations by retail grocery chains, and our representation of employers in responding to multi-faceted union "corporate campaigns."

Our lawyers are frequent speakers at local and national seminars on a wide variety of labor and employment law subjects. When circumstances warrant, we provide private presentations to our clients—conducted by our own lawyers and by knowledgeable public officials—on timely and important labor and employment topics.

Some of the principal areas of our experience are described more fully in the following.

Labor Litigation and Large Case Management

Our ability to assist clients in evaluating strategies and options is backed by solid experience in administrative and courtroom litigation, including jury trials and appellate review through the Supreme Court. We have extensive experience with high-profile, large-stake cases such as major EEO class actions and injunction proceedings. Our lawyers are familiar with the case management problems presented by such major actions, including procedures for document control and case coordination. In addition, we have extensive experience in working with public relations professionals to minimize and eliminate any adverse media attention or consumer reaction that often accompanies labor disputes.

The more sophisticated and complex strategies increasingly being utilized by unions to bring pressure to bear on employers, such as "corporate campaigns," require correspondingly sophisticated litigation and coordination strategies on the part of the employer. We have particular experience in developing and implementing such strategies, including the coordination of efforts in a variety of different arenas, such as responding to simultaneous union initiatives in legislative, regulatory and litigation forums. Because it is often difficult to recognize seemingly minor and unrelated labor disputes as part of a larger union campaign effort, we frequently serve our clients as national labor counsel, providing an oversight and coordination role that local counsel dealing with the individual disputes are not in a position to provide.

Development of Labor Strategies for Complex Transactions

Our lawyers have extensive experience in developing and implementing comprehensive labor relations strategies for clients planning significant changes in their operations, such as restructurings, sales of assets, acquisitions, mergers and downsizings. Even relatively straightforward corporate transactions often have hidden and potentially significant labor implications. The proliferation of mergers, ESOPs and corporate restructurings in recent years has prompted unions to devise more creative and damaging schemes to thwart the realization of corporate objectives. Early identification of potential areas of labor controversy and incipient union activity, as well as imaginative and coordinated responses to both, are often key to a transaction's success. We have experience in providing innovative and effective strategic advice regarding the labor problems that accompany such transactions.

We also have extensive experience in evaluating restructuring options as a means of minimizing labor-related costs and problems. We have advised companies on the benefits and implications of strategies such as the creation of a holding company, non-union subsidiaries, sale of assets and similar changes in corporate structure.

Labor-Management Relations

The firm regularly provides advice and assistance to employers in union organizing campaigns and elections, including representation before the NLRB in unit determination hearings; negotiation and administration of collective bargaining agreements; arbitration and litigation of disputes under existing contracts; counseling and litigation in connection with strikes and related issues, such as striker replacement and strike-related violence; and the defense of unfair labor practice charges before the National Labor Relations Board. For those clients needing such assistance, we provide intensive training programs for supervisors on their obligations in union organizing campaigns or similar critical aspects of dealing with employees.

Union Corporate Campaigns

As the strike has lost favor with unions as a means of bringing economic pressure on employers, unions have begun to rely on a multi-faceted strategy, referred to as a coordinated "corporate campaign," to achieve their goals. Such campaigns are generally tailored to the specific vulnerabilities of a particular employer, but commonly include public relations, employee communications, regulatory, legislative and litigation components. We have had extensive involvement in devising and implementing strategies for dealing with union corporate campaigns.

Effective implementation of a regulatory strategy in relation to union-generated complaints before federal regulatory and law enforcement agencies is an aspect of corporate campaigns in which the firm is especially experienced. Devising sophisticated, strategic approaches to union-generated complaints before administrative and regulatory agencies with oversight or licensing responsibility is imperative in combating a coordinated corporate campaign. We have assisted numerous clients in creating and implementing such strategies.

Equal Employment-Wrongful Termination Counseling and Litigation

We provide extensive services to clients in all areas of equal employment opportunity law, including counseling to avoid or minimize the risk of liability, establishing affirmative action programs under Executive Order 11246, defending litigation under all the major civil rights statutes and formulating alternative dispute resolution procedures. We have developed procedures for auditing written policies and practices to ensure compliance with statutory and regulatory requirements, as well as statistical audits to identify areas of vulnerability to class allegations. In conjunction with Akin Gump's public law and policy lawyers, we closely monitor labor-related legislation under consideration by Congress.

In recognition of the trend toward modification of the traditional employment-at-will doctrine in many jurisdictions, our practice includes defense litigation and counseling to increase awareness of contractual, tort and public policy theories of recovery. We also assist clients in drafting and modifying employee handbooks and personnel policies, drafting drug and alcohol testing programs, reviewing employment applications and pre-hire testing procedures, and evaluating workforce reduction programs for compliance with EEO requirements and other statutory obligations such as the Worker Adjustment and Retraining Notification Act, the Older Workers Benefit Protection Act, COBRA, and the Family and Medical Leave Act.

Wage and Hour Matters

Minimum wage and overtime obligations under the Fair Labor Standards Act and state statutes often involve detailed and complex regulations and can result in substantial liability. We counsel clients on how to avoid such liability by drafting policies on overtime pay, determining which activities constitute "hours worked" under the law and reviewing job descriptions and duties to determine which employees are exempt from overtime pay. If litigation cannot be avoided, we have extensive experience representing employers in large wage-hour class action lawsuits. We also represent clients regarding wage disputes arising from government contracts, including those governed by the Davis-Bacon Act and the Service Contract Act, and other federal and state prevailing wage statutes, in addition to employee claims of entitlement to non-retirement benefits, such as severance, health benefits, vacation pay, or other types of compensation governed by both ERISA and state law. Our representation extends to matters under investigation by agencies and in state and federal courts.

Employee Benefits-Employee Retirement Income Security Act

The firm offers all aspects of counseling and litigation related to employee benefit plans, including the design, implementation and administration of employee health, workers compensation, pension, profit sharing, deferred compensation and other benefit plans; evaluation of withdrawal liability exposure in multiemployer pension plans, and effects of asset sales and corporate transactions on potential withdrawal liability; arbitration of disputes concerning withdrawal liability assessments; litigation of a broad range of ERISA issues, including individual benefit claims and Department of Labor enforcement actions; procurement of administrative exemptions from the ERISA prohibited transaction restrictions; terminations of overfunded pension plans; and amendment of employee benefit programs.

Our experience also includes counseling employers and insurance providers on the design, administration, auditing and cost containment aspects of self-insured benefit plans, multiple employer plans, group insurance arrangements, HMO's, and worker compensation and occupational injury plans.

Occupational Safety and Health Act

The firm represents employers in regulatory matters before the Occupational Safety and Health Administration and in compliance actions before the OSHA Review Commission. Lawyers in the firm are nationally recognized for their experience in "megafine" cases alleging "egregious" violations initiated by OSHA in the past several years. We have extensive experience in negotiating precitation settlements that avoid unnecessary publicity that can force OSHA to seek higher fines.

We also counsel clients to ensure compliance with safety, health and environmental regulations, as well as offer a range of litigation services before the OSHA Review Commission, various government agencies and the federal courts. We regularly participate in the legislative and rulemaking processes of Congress and government agencies, having established experience in the regulatory enforcement and Washington representational aspects of OSHA enforcement, including representation before congressional committees with oversight responsibilities for OSHA.

Labor Policy and Legislation

Combining the skills of the firm's legislative and labor practices, Akin Gump provides clients with constant monitoring and analysis of congressional and executive branch legislative initiatives and policy actions. We also assist clients in the direct and effective presentation of their views to Congress and the administration. The firm has organized and coordinated the government relations efforts of large coalitions and served as lead counsel in major legislative and policy efforts involving, for example, labor, employee benefit and pension issues.

Lawyers for the firm regularly meet with or appear before various agency heads in all federal labor policy agencies, such as the National Labor Relations Board, Equal Employment Opportunity Commission, National Mediation Board, Occupational Safety and Health Administration, Office of Federal Contract Compliance Programs, Wage and Hour Administration, Office of the Solicitor of Labor, Office of the Assistant Attorneys General with labor enforcement authority, and the Office of Management and Budget.

In addition to the depth and breadth of access to the various agencies within the executive branch, lawyers in the labor and public law and policy practice areas regularly meet with or appear before congressional committees with jurisdiction over labor policy agencies or labor-related legislation, including the Senate Committee on Labor and Human Resources and its Subcommittee on Labor, and the House Committee on Education and Labor and its various subcommittees.

Labor Issues in Bankruptcy

Our lawyers have particular experience in dealing with the labor problems of clients in bankruptcy, where effective solutions to labor disputes and claims may be of critical importance to a company's very existence. We have advised and represented debtors, creditors and potential purchasers of assets from the debtor's estate on such matters as valuing contractual, non-contractual and ERISA claims arising from the filing of a petition in bankruptcy; pre- and post-bankruptcy concession bargaining; the interrelationship between bankruptcy law and the National Labor Relations Act and the Railway Labor Act, including the possible modification or rejection of collective bargaining agreements; and restructuring of labor relations.

European Union

Another unique aspect of Akin Gump's labor practice is our experience in the field of European Union regulation of labor, employment and related social issues. The labor practice works closely with the firm's Brussels office on behalf of multinational corporations in monitoring developments in employment-related regulations in the European Union. In addition, we have represented clients in cases brought before the International Labor Organization and the Organization for Economic Cooperation and Development.

Our monitoring efforts cover legislative and administrative actions in all relevant European Union institutions. We prepare detailed analyses and work with clients to mitigate the adverse impact of many of the European Union directives affecting labor relations.

Among the services we offer our international clients are: advising on site selection and location, providing background on local labor and employment legislation, developing legislative strategies for clients wishing to participate in the rulemaking processes within the European Union, advising clients on employment contracts for executives and on the unique issues presented when dealing with an expatriate workforce; and counseling clients on effective means to combat the international ramifications of labor's coordinated corporate campaigns.

Representative Cases

Significant labor cases handled by the firm include:

representation of clients in the airline, grocery and food industries in evaluating and implementing corporate restructurings in order to minimize labor costs
defense of a national grocery chain in a nationwide class action alleging race discrimination
defense of large class actions in multiple forums alleging violations of wage-hour law against several clients, including national restaurant chain and national grocery chain
defense of a major class action alleging sex discrimination against a national grocery chain
defense of a large trucking company involving group claims of discriminatory practices in hiring dock workers for seniority positions from pool of casual labor
defense of multiple claims under ADEA, by employees discharged in reductions in force by a large oil and gas exploration and production company
defense of ERISA claims against an oil field services company that modified health and welfare plans resulting in loss of coverage to participants with pending claims
defense of major class actions alleging racial harassment and a pattern and practice of discrimination in promotion and assignment
defense of an unfair labor practice complaint brought against a professional sports league involving claims of a nationwide unfair labor practice strike and discriminatory treatment of striking players
defense in district and appellate courts of a series of section 301 suits brought by labor unions against a major telecommunications company alleging breach of subcontracting and dispute resolution provisions of national collective bargaining agreements
representation of clients in significant cases establishing the scope of management rights in the railroad industry and the proper application of a federal statute governing hours of service in the railroad industry, both of which culminated in oral argument by our lawyers before the U.S. Supreme Court
defense of claims in arbitration under both the National Labor Relations Act and the Railway Labor Act that employer had subcontracted, outsourced, or transferred work or closed or abandoned facilities in violation of collective bargaining agreements, including one in which potential liability was in excess of $50 million
pre- and post-citation representation of employers in "megafine" cases alleging egregious violations of the Occupational Safety and Health Act, including a substantial number of the largest "megafine" cases filed in the last two years
representation at the trial and appellate levels in high-profile bankruptcy reorganizations that involved vigorous challenges by labor unions opposing the debtors' efforts to restructure their operations and lower their labor costs
counseling and representation in litigation of a company facing a sophisticated "corporate campaign" initiated by unions, public interest groups and multiple groups of plaintiffs' lawyers, including developing coordinated responses to legal, regulatory, legislative and public relations initiatives, and counter-strategies, including the initiation of litigation involving state tort and federal claims, including antitrust and RICO, to counter continued efforts to "destroy" the company.