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When Marilyn Holifield joined Tampa, Fla.-based Holland & Knight in 1981 as a commercial litigator, labor law might as well have been called big labor law. Unless a case involved a company’s relationship with a labor union, big law firms weren’t interested. Representation of employers or employees in job discrimination cases was rare. But that was before enactment of the 1990 Americans with Disabilities Act and the 1993 Family and Medical Leave Act. It was before Congress in 1991 let plaintiffs request jury trials for cases filed under Title VII of the Civil Rights Act. And it was before Florida passed its own Civil Rights Act in 1992 and the Whistleblower Act of 1996. Plaintiff attorneys hadn’t yet caught on to the anti-retaliation provisions of these laws, which allowed employees to sue if employers fired or punished them for complaining about or reporting harassment, discrimination or other legal violations. By the early 1990s, however, these smaller-scale employment disputes began taking up more and more of Holifield’s time. That prompted Holland & Knight to create an employment practice group. Today, Holifield is a partner and the head of the firm’s labor and employment section in Miami. In less than 10 years, the section has grown from two lawyers to eight. Holland is hardly alone. At Eckert Seamans Cherin & Mellott in Fort Lauderdale, managing partner Henry Latimer says employment law has grown so explosively that it now comprises half of his personal practice and may reach 60 percent of his work this year. “Any lawyer who works with me now, they’ve got to do both commercial litigation and labor and employment law,” Latimer says. “And I don’t make exceptions to that rule.” Today, federal and state employment laws permit lawsuits for a wide range of wrongs, including racial discrimination, sexual harassment, firing of employees who take time off to care for sick family members, age discrimination, firing of workers who report violations of the law, religious discrimination and claims of unequal pay. The hottest growth field is retaliation lawsuits. But statistics from the U.S. Equal Employment Opportunity Commission show that other types of employment claims have remained flat in the last eight years. Kent Spriggs, a veteran plaintiff attorney and partner at Spriggs & Davis in Tallahassee, says retaliation suits have outpaced other types of claims for one simple reason — they’re easier to win. The expansion of laws and the rise of employment lawsuits has inevitably prompted more lawyers to concentrate on employment law. “The numbers have grown exponentially,” says Robert Sniffen, immediate past president of the Florida Bar’s labor and employment section and a shareholder at Moyle Flanigan Katz Raymond & Sheehan in Tallahassee. The section, established in 1981, now has 2,153 members. The increase in employee lawsuits has forced employers to work much more closely with defense attorneys to head off litigation. Attorneys now cultivate advisory roles with corporate clients to keep them abreast of changes in employment law and issues to watch for. They essentially serve as preventive care specialists. Joan Canny, a shareholder at Stearns Weaver Miller Weissler Alhadeff & Sitterson in Miami, says even the most ethical employers can now count on being sued for discrimination or retaliation. To make this as infrequent as possible, she says, lawyers must keep a sharp eye on the wording of clients’ personnel policies to ensure compliance with constantly changing laws. Canny, formerly a commercial litigator, was drawn into employment law by accident while handling a labor dispute at Eastern Airlines. She found she enjoyed a human element that was missing from her practice. “There’s nothing more devastating than being a manager for 25 years and being accused of something reprehensible,” she says. “Representing that manager is very gratifying.” Employment lawyers must ensure that clients have supervisors and managers properly trained to handle worker conflicts. Above all, Canny says, lawyers must cultivate a level of trust so that clients notify them of employment problems at the first sign of trouble. There have been big changes as well in how plaintiff attorneys practice employment law. They now have many more options with respect to venue and causes of action. But that has made employment law much more complex — and has made it easier for attorneys to make critical litigation mistakes. Loring Spolter, a Fort Lauderdale solo practitioner, says practitioners must be able to think strategically about whether the federal or state approach is best for a client. Spolter, who previously worked as a prosecutor, says his diabetes led him into employment law. Diagnosed 12 years ago, he was routinely denied health insurance because insurers deemed him too high a risk. Spolter’s travails led to invitations to speak about diabetes and health insurance. After having presented a lecture, people asked him for help with their own employment law issues. They became the initial client base for his solo practice. “I love practicing employment law, because I can really relate to the difficulties my clients experience,” Spolter says. “I see them being discriminated against because of who they are, not because of what they do. And that’s very painful.” Spolter notes that knowledge of administrative law is crucial for practitioners, because an error in filing claims to the EEOC — required before a federal suit can be filed — can kill a case. “It’s become a game of three-dimensional chess,” he says. John McLuskey, a partner at McLuskey McDonald & Payne in Miami, says the state whistleblower law has been a boon to conscientious employees. It enabled him to represent an air-conditioner repairman who balked at illegally dumping Freon. The law, he says, provides “ammunition to assist the worker who’s essentially done the right thing.” Another growth area has been same-sex sexual harassment cases. Before the U.S. Supreme Court ruled that Title VII governed such behavior, plaintiff attorneys based such actions on various statutory anti-retaliation provisions. In Florida, retaliation claims now account for 14 percent of all employment claims, according to the state Commission on Human Relations. The EEOC reports that nationally, retaliation claims have nearly doubled in eight years, from 11,096 in 1992 to 21,613 in 2000, even as the number of other employment claims, including racial discrimination, have remained constant. Kent Spriggs explains why. Juries, he says, often are hesitant to place the damning label of racist or sexist on an employer without a heavy showing of proof. But they don’t seem as hesitant to nail an employer for retaliation, he says. Sean N.R. Wells, a defense lawyer and partner at Feldman Gale & Weber in Miami, agrees. He says it has become risky for employers in many types of employment cases to take a case to trial, because juries tend to be pro-employee. Still, plaintiff lawyers insist that it’s never easy to win. That’s particularly true for employment classification cases. Walter Aye, a senior partner at Aye Law Firm in Tampa, says class-action cases aren’t increasing because they seldom succeed. “A lot of people get involved without knowing how difficult and expensive they can be,” he says. “And some of them just get clobbered.” Nevertheless, defense lawyers urge employers to maintain strong preventive policies. Canny advises corporate clients on when and how to issue written or verbal warnings to employees, and how to respond to written employee complaints. Latimer says he encourages employers to carefully document worker performance. Latimer says, however, that company executives and managers often are resistant to change. For instance, they often balk when he suggests that the company establish a 24-hour hotline for anonymous complaints. “That kind of attitude is what gets companies into trouble,” he says. Some defense lawyers fear that the current economic slowdown and accompanying layoffs, may lead to more frivolous discrimination and retaliation complaints. Workers who know they’re on the way out are more likely to report workplace safety and other types of violations, laying a basis for a retaliation claim. But Spolter contends that corporate downsizing and leaner, meaner workplaces are to blame for the rise in retaliation cases. Too many managers have neither the time nor staffing to adequately address grievances like sexual harassment. “They find themselves needing a quick fix, so they fire the employee,” he says. “Out of sight, out of mind.”

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