Amid a flurry of surveys that paint a bleak picture of the legal industry’s financial health in 2012, the one bright spot in an otherwise low-demand market is labor and employment work.
According to a recent Hildebrandt peer monitor index report issued this summer, demand for labor and employment work rose 4.7 percent in the second quarter and is one of the only practice areas that has been consistently positive in terms of demand for the last year-and-a-half.
That positive growth trend has been felt at Pennsylvania firms that have strong labor and employment practices. A more active National Labor Relations Board, an increase in collective bargaining battles and a rise in employment litigation reaching the courts after exhausting their administrative remedies have led the boom, keeping area labor and employment lawyers busy.
And regardless of what November’s presidential election may bring, those attorneys say they expect continued demand from clients post-election when it comes to things such as consulting on labor and employment policies and health benefits.
Labor and employment lawyers most often noted traditional labor work before the NLRB as one of the fastest-growing areas of their practices. Under the Obama administration, the lawyers said, the NLRB is much more active.
Thomas G. Servodidio, chairman of Duane Morris’ employment, labor, benefits and immigration group, said the NLRB is particularly looking to expand the parameters for when employees at non-unionized companies have claims under the National Labor Relations Act.
And as with many areas of the law, social media is having a big impact on labor work.
Servodidio said the idea behind applying the NLRA to non-unionized employees in general is to protect the nascent stages of union organization. If an employee was critical of a supervisor on Facebook, that could have resulted in termination or reprimand in the past, he said. But now, it is viewed as the beginning stages of employees reaching out to one another to share gripes about the job and possibly look to unionize. The NLRB has found that activity to be protected and the result is more litigation, he said.
“The NLRB is trying to apply that vintage 1930 statute to a new world that would include social media,” Servodidio said.
As a result, labor lawyers have been developing and revising corporate social media policies and training supervisors, he said. Doreen Davis, co-chairwoman of Morgan, Lewis & Bockius’ labor-management relations and labor disputes practices, said the social media cases are continuing to come in. Her firm is hiring two labor and employment associates in Philadelphia next month to help keep up with the demand.
Ballard Spahr labor and employment lawyer Steven W. Suflas said the NLRB cases will be dramatically affected if Mitt Romney is elected.
“If it is a Republican White House, you’re going to see a tremendous change in this area. All of these NLRB cases will be reversed,” Suflas said. “As a practitioner, I think that all lawyers who practice in the NLRB space would really like to just have some predictability and right now there’s not.”
Regardless of what happens in the election, November through January will be a busy time for labor lawyers, Davis said. If Obama loses, the board will try to change as much as it can in those few months. If he wins, it will be empowering to the board, she said. If Obama does win, Davis said she hopes the recess appointments will be replaced with a fully constituted board that will then lend some certainty to the board’s rulings.
Another area that will be busy regardless of the election results is advising clients on the health care reform legislation, Servodidio said. If Obama is re-elected, many of the reforms will kick into high gear and employers will need to adapt their benefits programs. If Romney is elected, “that will also trigger a whole set of advice and counsel” in the benefits arena, Servodidio said.
“Either direction is going to be good for business,” he said.
On the employment side, Servodidio said his firm is seeing an increase in single-plaintiff employment litigation. When the economy tanked, firms were doing a lot of work advising clients on restructuring their workforces. Some of the people that were fired decided filing a claim might be more lucrative than the severance package. Those cases have since worked their way through the administrative process and are now hitting the courts, Servodidio said.
Suflas said there seems to be an “inexhaustible supply” of wage-and-hour class actions.
“It’s really hard in the 21st century for any employer to comply with the voluminous wage-and-hour laws established in the ’30s [for] a blue-collar, manufacturing workforce [to now be applied] in a service economy,” Servodidio said.
In the aftermath of Dukes v. Wal-Mart, in which the Supreme Court found there was not enough evidence of classwide gender discrimination in Wal-Mart’s promotion policies to support a class action, Suflas said plaintiffs lawyers are realizing they have to file these cases on a smaller level.
Suflas said he thinks there has been a rise in single-plaintiff employment cases because plaintiffs lawyer associations are focusing a lot of their training on employment matters. Plaintiffs lawyers hurting from a tough economy are turning to those cases to file instead of the $10,000 slip-and-fall case, Suflas said.
Davis’ firm is also seeing an uptick in wage-and-hour cases and ERISA litigation cases. Class actions regarding discrimination in general “seem to be doing very well,” she said.
Another positive sign for labor and employment lawyers comes from the corporate space. Servodidio said there has been an uptick in mergers and acquisitions and labor and employment work is an integral part of getting those deals done. He is advising clients on things like collective bargaining agreements, benefits plans and employment or severance agreements.
Both Suflas and Servodidio said their firms are also working on advising clients when it comes to collective bargaining agreements. Ballard Spahr has represented municipalities and Duane Morris has focused on representing private corporations.
Servodidio said this is an exciting time for labor and employment lawyers and one he doesn’t view as an aberration.