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Date Created: 12/21/15
CAREER COUNSELOR'S CORNER 1.800.973.1177 Labor & Employment Law [by Erica Winter] Interested in finding a job that involves thinking about other people’s jobs? Well, since the month of September includes Labor Day, we thought we’d take a look at the only legal specialty that directly corresponds to a federal holiday – labor and employment law. The Rubik’s Cube of legal specialties classifications of legal work available within Society for Labor Law and Social Security. Labor and employment law encompasses this specialty. such a wide range of legal work that it’s “Some employment lawyers – those who more like having a “general practice all in “Generally, ‘labor law’ means that you are work on issues not pertaining to collective one area,” says John V. Berry, a labor and working on issues involving collective bar- bargaining agreements – prefer to be seen employment lawyer in Washington, DC. gaining agreements and unions,” explains as members of a stand-alone specialty, Dr. Clyde Summers, who has been teaching separate from labor law,” says Hannah Berry’s uncle, Victor Hanson, was a labor labor and employment law at the University Schwarzschild, an employment attorney lawyer in his native Detroit, inspired Berry of Pennsylvania Law School for 60 years. with the firm Willig, Williams & Davidson in to enter this field. Berry, who received his Summers is one of the nation’s experts on Philadelphia. J.D. from the University of Detroit and his labor and employment law. “’Employment LL.M. from George Washington University in law’ generally means that the attorney is Schwarzschild, an alumna of Boalt Hall Washington, DC, represents police unions as dealing with individual employee problems School of Law at the University of California well as union members involved in individual which fall outside of the scope of a collec- at Berkeley, has been practicing law for 15 disputes. tive bargaining agreement, where there is no years, 10 of which have been focused on union involved,” continues Summers. employment. She began her employment After working for a law firm for two years, work with HIV-discrimination cases and now Berry accepted an in-house position for both [Since we wanted to spend time talking about works on civil enforcement of employment the Park Police and Capitol Police unions this legal specialty, Dr. Summers agreed that laws, particularly discrimination and whistle- blower retaliation. in Washington. There, he was, as he puts I could give you information on his profes- it, “one attorney handling 3,500 members sional experience from the University of with issues,” and usually dealth with 60 to Pennsylvania Law School web site. I have “The differences in your actual job between 65 cases concurrently. This gave him good summarized the information from that site in the legal areas of ‘labor’ and ‘employment’ experience and enabled him to hang out his the following two paragraphs.] break out even further,” says Summers. own shingle. An alumnus of the University of Illinois “In labor law, dealing with collective bargain- All the lawyers we spoke with concurred: and Columbia law schools, he has written ing agreements, a lawyer works primarily There is a wide variety of opportunities and hundreds of law review articles, co-edited in arbitration, negotiations, and settlements settings in this field. five casebooks on labor law, and his writings of grievance disputes,” advances Summers. have laid the foundations for labor laws such “You would also deal with legal problems Some examples are in-house at a union; as the Landrum Griffin Act and the Commis- of union organizing, and then strikes and local, state or federal government agency; sion of Uniform State Laws’ Model Employ- boycotts. There is not as much work in these corporation; solo practice; boutique firm; ment Termination Act. two last arenas as there used to be,” says and large firm. Again, if you are looking for a Summers. specialty in which there are several types of Summers has been awarded fellowships work environments, labor and employment from the Ford, Fulbright, German Mar- The “employment” piece of this specialty law is a good choice. shall, and Guggenheim foundations, as well involves litigation over discrimination issues as from the National Endowment for the and violations of federal and state laws. Most Before you choose a work environment, Humanities. Summers is currently President often, you would be either suing or defending however, you should understand the various of the World Congress of the International an employer in civil court over violation of PAGE 1 continued on back CAREER COUNSELOR'S CORNER 1.800.973.1177 Equal Employment Opportunity Commission vindication for those who have been wrongly #1: Overtime laws (EEOC) rules. fired or discriminated against. Schwarzschild also likes to work with broad social issues Having just released the federal rules gov- “If you are trying employment cases that in- – such as racial discrimination or sexual erning changes regarading which employees volve unions, you would be in federal court,” harassment or issues of retaliation against can be paid overtime, the Department of says Summers. “If the employment case is whistle-blowers. Employment cases can be Labor may have to break out the shredder an issue of discrimination, it could be tried in far more than just a lawsuit. and start all over again, as the U.S. House of either federal or state court,” says Summers, Representatives came in at the eleventh hour “although it is most likely to be in federal Still, the process of litigating employment and put a hold on the new rules. court.” cases can be “nasty, brutish, and long,” says Schwarzschild. “Cases are extremely conten- “The new rules are pretty controversial,” Where to go? What to do? tious and hard-fought,” she says, “and have says Neil Klingshirn. “Unions say the rules become less and less civilized over the past remove overtime pay for many, while the De- Do you have to be in a big “labor” town 15 years.” partment of Labor is saying that it gives more (Philadelphia, Cleveland, Detroit) to get a job payment rights to workers,” says Klingshirn. in this field? Neil Klingshirn got into labor and employ- ment law in law school and stayed with it. He In simplest terms, the changes state that Well, no, but… enjoys the contentiousness of litigation. He workers earning less than $23,000 per year loves working with people and also recom- qualify for overtime pay (time and a half for It’s not like divorce law, where there is a mends this specialty to those who “like to every hour over 40 hours per week) – no mat- demand for lawyers everywhere. Despite the fight and do battle.” Klingshirn has been ter how managerial their duties. A manager fact that people do work – and have employ- practicing labor and employment law for 17 at a fast-food restaurant, for example, might m ent issues – in all areas, if you are looking years. fall into this category. On the flip side, if a for a job in this specialty, you should consider worker earns more than $100,000 annually, the location. Currently with the two-lawyer firm Fortney they do not qualify for overtime pay, even & Klingshirn in Akron, OH, he previously if they are not managers – say, a unionized “If you want to do labor and employment law, worked five years at a boutique firm before longshoreman. you do need to look in a fairly large city,” he joined another associate who had struck says Summers, “in order to get enough work out on his own. “Also,” says Ronald Schwartz, “there is a new to sustain a practice.” “Albany, NY, Colum- ‘long test’ and a new ‘short test’ that employ- bus, OH, Pittsburgh, PA., or Memphis, TN, Changes and hot topics in this field. ers can use to show than an employee does would all fit the bill,” says Summers. Accord- not qualify for overtime pay. These measures ing to Summers, if you have your heart set on Some legal specialties mirror the economy have been changed so that it is easier to living in a town of fewer than 50,000 people (real estate, for example). Labor and employ- show that an employee does not qualify,” and exclusively practicing labor and employ- m ent law is linked to the legislative and po- says Schwartz, who has been practicing labor m ent law, you wouldn’t make a living. litical climate on the state and federal level, and employment law for 20 years. as well as the make-up of the U.S. Supreme “The exception to this is going to a town that Court. An alumnus of Chicago Kent Law School, has a large local industry that is unionized, Schwartz got his start as a staff attorney at like the coal industry in Wheeling, WV,” says Changes in the law and its interpretation the Chicago Kent Legal Clinic. There, he built Summers. have a direct impact on how (and which) em- up the employment law section and taught ployment and labor lawsuits can be brought, law students how to practice in the field. In But is it fun? how they are defended, and who benefits. 1995, he left to join the small Chicago firm of Plus, changes in the social climate of the Hedberg, Tobin, Flaherty & Whalen. This work, especially on the employment country have a direct impact on labor and front, can be “challenging, rewarding, employment cases. “Those currently suing for restoration of frustrating, and sometimes infuriating,” says overtime pay may see their cases hinge on Schwarzschild. It is “enormously satisfy- Here is a list of what’s going on in labor and timing,” says Schwartz, “depending on how ing” to get a person their job back or to find employment law right now. the law shapes up when their cases are being PAGE 2 continued CAREER COUNSELOR'S CORNER 1.800.973.1177 decided.” impairments – are now being judged in a highly • “There has been a shift in focus towards age restrictive context. discrimination,” says Schwarzschild, “as Baby #2. Interpretation of the Americans with Dis- Boomers age and remain in the workforce.” abilities Act (ADA) “The ruing had a devastating impact,” says Economic pressures are causing some employ - Schwartz, who believes it has eliminated some ers to cut staff, and they are doing it illegally “In the past ten years, it is striking how unfa cases altogether. One of Schwartz’s clients – by age. Also, older people now feel they can - vorable the [U.S.] Supreme Court has been to has heart disease and was absent from work not afford to retire and stay in the workforce the ADA,” says Schwartz. The ADA has been for six weeks. She was able to return while on past age 65. “These issues appeal to juries,” significantly weakened, making it harder for medication but was fired soon thereafter. In the says Schwarzschild, “since everyone can relate employees to bring lawsuits against employers middle of her case, she became ineligible for to getting older.” based on issues of disability. coverage under the ADA. Advice “Specifically,” says Schwartz, “in the case “It is awful to turn people away who may have Sutton v. United Airlines, the Supreme Court had a case under the ADA before these ruling 1. Some lawyers we spoke with see this as a ruled that, in determining whether a plaintiff is but now do not,” says Schwarzschild. “You can, growing field, while others are seeing their disabled and may sue under the ADA, a court however, look at the case in alternate ways,” business drop and looking to branch out must consider “mitigating measures” of that she says. What might at first appear to be an into other areas of law to supplement their person’s impairment.” issue of disability may reveal itself to be an practices. Take a look at the climate in your issue of age. preferred niche (and location) of this specialty A mitigating measure is something that, when before committing yourself. done by the person, alleviates the effect of the #3. Tax laws disability and allows the person to function 2. “If you are making a lateral move into labor as one who is not impaired. For example, if This might not leap to mind when you think and employment law, be willing to move down a diabetic takes her medication, she can live about labor and employment law, but it could a spot from where you are to break into the a normal life. Without the medication, she is impact your ability to do this job. specialty,” recommends John Berry. Also, for impaired, but with it, she is not, according to those just out of law school, he recommends the Supreme Court. In 1996, in order to pass a law increasing the that you be willing to sacrifice high earnings at federal minimum wage, a deal was struck to first in order to get the experience you need. Previously, the EEOC had said that mitigating include a rider on the bill that would impose a measure should not be considered in assessing tax on damages earned for emotional distress 3. “For better or worse, labor and employment inclusion under the ADA. But that has changed. on lawsuits (other than personal injury cases). law is not really seen as being ‘big time,’ as This includes a tax on attorney fees. What this corporate law is,” says Summers. Within large Sutton was not the best case to champion the means is that any settlement an employee law firms, there is not much competition to rights of the disabled. Two pilots, sisters, were might win will be far lower than it was prior do labor and employment work; so if you want not hired by United Airlines because they wore to the new tax rule. “In some situations,” says experience in this arena, just tell your firm’s glasses. They had been pilots for smaller, re - Schwartz, “a client could find that, even if they partners. gional airlines and sued United under the ADA, win their case, they would end up paying more saying they were being discriminated against then they won in combined taxes and fees.” 4. “It is easier to get in to the field on the because they were disabled. “It was a bad set management side,” says Summers. If you want of facts for an ADA case,” says Schwartz. Other changes to get a gig on the worker side, it’s a bit more challenging. He does not see a lot of hiring by The Court ruled that the two pilots were not • “As union membership has dropped, collec - unions for in-house counsel these days, and covered under the ADA since their glasses tive bargaining issues have shrunk; and the it is harder to get a job at a worker-side firm allowed normal function in everyday life. It employment side of this specialty has gained than it is to get one on the management side. did not rule, however, on the issue of United’s prominence,” says Summers. Boutique firms representing employees or policy of only hiring those who do not need • “As recently as 15 years ago, there were few unions are usually smaller than management- glasses (a policy implying that those who need women to be seen going into this field,” says side firms and do less hiring, especially if the glasses are too impaired to fly their planes). So Summers, “but now there are more women do - candidate is right out of law school. ADA cases – for all people who have physical ing labor and employment law than men.” PAGE 3 continued on back CAREER COUNSELOR'S CORNER 1.800.973.1177 5. “Attorneys representing unions now are a very small group,” agrees Klingshirn. Even in Cleveland, an old union town, there are far more jobs now representing individual employees than unions or union members, he estimates. 6. “Try to gain experience by working in govern - ment,” recommends Summers, “at the EEOC or National Labor Relations Board (NLRB).” One caveat: “Those agencies may be looking for lawyers with a few years of experience, not those just out of school,” says Schwarzschild. [An EEOC representative we spoke with said that they hire based on experience, but there is no specific years-of-experience cutoff for hiring.] 7. “Do what I did,” recommends Klingshirn. He found strong attorneys to be his mentors at a large management-side firm for seven years before joining another associate (his partner, Michael Fortney) in their small firm. “If you want to be on the management side after gain - ing experience with a large firm, your options are open from there,” he says. “You can stay and go for partner, join a company in-house, or start your own firm.” 8. “Especially if you want to go into the employ - ment side of this specialty, litigation experience will stand you in good stead,” says Schwar - zschild. If you are just starting out, doing DA or public defender work for a few years will give you good litigation chops. Litigation experience makes a huge difference in succeeding in this field.” 9. “There are opportunities out there to get into labor and employment law,” says Schwartz. “And you won’t earn far more money than other legal specialties. Still, if this field interests you, he says, go for it!” PAGE 4
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