Labor and Employment Law Advice Vigorously Sought by Employers

The Wall Street Journal has a story today about the boom in workplace legal advice spawned by recently enacted and pending legislation in the labor and employment law arena.  Of particular interest to employers is advice on legally preventing union organization due to the Employee Free Choice act looming in Congress currently.

The article points out that labor lawyers are using EFCA to their advantage:

Labor consultants and lawyers are looking to profit from interest in the Free Choice Act by briefing companies large and small on a range of matters such as complying with current and recently enacted legislation, and how to detect union organizing and prevent it without breaking the law. Another pressing issue is whether companies have opened themselves to union organizing drives because they have cut jobs, pay or benefits to weather the economic slump.

Now the question is: if the Free Choice Act falls apart like it seems it might, or gets negotiated into a watered-down shell of its former self, will the offshoot work dry up, too?  Or worse – will clients, having just spent precious money on EFCA training (or as the AFL-CIO calls it, “fear mongering ” to sell “products”), feel squeezed and back off?

To be sure, EFCA will mean across-the-board changes for most companies’ labor policies, and it should be given the weight it deserves.  But if the economy has taught us anything, it’s the need to balance consumers’ emotions with their actual needs.

99% of clients seeking L&E work out of fear probably do need help, many more than they realize.  It’s our job as their lawyers to get it to them without exploiting their fears.

Employment Firm Sets Up Website to Help with FMLA Changes

It’s still January, and already 2009 seems on-schedule to be the biggest year ever for changes in labor & employment law.  And as employment laws get re-written, employers must do some writing, too – their handbooks, policies, procedures and forms will all need updating, new posters will have to be hung, and somewhere among all the paper revisions, HR professionals have to learn what the changes actually mean for their businesses.

Responding to the first round of big changes this year, Chicago-based Labor and Employment Firm Franczek Radelet & Rose has set up a website dedicated exclusively to the the sweeping FMLA regulations that went into effect January 16th.

FMLAregs.com links to a section of the firm’s website that will serve as “a portal for employers seeking guidance and solutions regarding the new FMLA regulations,” according to the firm.  The new section includes an executive summary of the recent changes, discussion of the DOL’s new forms, and an implementation “to do” list for businesses.  Visitors can also view a webinar led by firm attorneys, and download copies of the materials and the Q&A session that followed.

“The new FMLA regulations require employers to significantly change the manner in which they administer FMLA leave,” said Jeff Nowak, a partner with the firm.  “Although employers now are able to obtain more detailed and timely information from employees about the need for FMLA leave, they also take on a greater responsibility to notify employees of their rights under the Act. 

“The website is meant to provide employers the information they need to get a running start in updating their FMLA policies, procedures and forms.”

And a little information could go a long way.  For example, Nowak said, while employers have more rights to verification info under the new regs, “the ‘model’ Department of Labor FMLA forms simply do not capture all the information to which employers are entitled.”  So using the DOL’s stock forms will result in employers getting less information than they could otherwise. 

“We strongly encourage employers to work closely with their employment attorneys to develop forms, policies and procedures that fully take advantage of their new rights under the revised rules and also fully comply with the rules,” Nowak said.  ”Even a single complaint of an FMLA violation can result in thousands of dollars in legal expenses, so a small investment in this area will prove worthwhile, even in this cost-conscious economy.”

Plus, given that employers are probably going to have to deal with new versions of both the FMLA and ADA, changes to discrimination and fair pay laws, new executive compensation and disclosure rules, and state, federal and supreme court decisions altering the landscape of WARN Act, Title VII and Wage Payment litigation, a one-stop shop for FMLA information may be enough to keep HR Execs sane, at least until EFCA gets going.

Law Firm Collapse Leads to WARN Suit, Possibly Against Other Firms

One of the many misconceptions “corrected” by the financial crisis is that law firms are recession-proof.  That notion was buried last month when Thelen, an interneational legal presence, voted to dissolve.

While this is tragic on many levels, the biggest is of course the thousands of employees who found themselves out of work as a result.  Good news, then, when reports started coming in that other firms, including Reed Smith, Winston & Strawn and Duane Morris started snatching up chunks of the former firm.  Nixon Peabody brought over partners in every practice group, tripling the size of its Silicone Valley office.  They plan on hiring staff and associates too.  That’s got to be a good thing.  Right?

Maybe not.

Some of the former Thelen attorneys have filed class-action suits alleging that Thelen violated the WARN Act when they closed offices without the proper 60-day notice.

The ABA Journal is reporting that the attorney who filed one of the suits is now saying the firms hiring these large collections of former Thelen offices may be liable as well.  His theory is this:

To the extent that the company is dissolved, the individual partners of Thelen may be responsible, and any law firm that’s taken on a large group of Thelen partners could potentially be considered a successor company, which is liable under labor laws to make good on Thelen’s obligations to its employees.

Interesting.  It may be worthwhile to think about the strategy of suing the hiring firms, though.  In an economy where over 1 million people have lost their jobs in the past year, it may be a tough sell to force the firms willing to hire to pay for Thelen’s sins.