Labor & Employment

Ellen M. Dwyer, Crowell & Moring's managing partner, offers her perspective on maternity leave policies in this article which highlights advice given by best-selling author Sheryl Sandberg in her book "Lean In." Dwyer notes, "I believe that when you have policies that make it really clear and transparent ... all of the ways that an employer can accommodate employees who have needs that take them away from the workplace, it's sending a message to your employees that you are committed."

Washington, D.C. based-partner, Kris Meade, answers questions for Employment Law360 in their "Practice Leader Q&A Series." Kris discusses career highlights and lessons learned over the course of his career.

Washington, D.C.-based counsel, and member of the firm's Labor & Employment Group, Rebecca Springer comments on the jurisdiction of the Office of Federal Contract Compliance Programs (OFCCP) after a Washington, D.C. federal court recently ruled that the U.S. Department of Labor (DOL) can treat certain hospitals as federal subcontractors for the purposes of affirmative action regulations.

Thomas P. Gies, partner in the firm's Labor & Employment Group, discusses sequestration, its impact on government contractors, and whether government contractors need to notify employees of the possibility of layoffs from the sequestration under federal law.

The testimony on behalf of the American Benefits Council  from Washington, D.C.-based partner Seth T. Perretta, who leads Crowell & Moring's Employee Benefits practice, is cited in Government Executive and Accounting Today regarding the Internal Revenue Service's responsiveness to American Benefits Council members during the health care reform law rule making process.

Washington, D.C.-based Labor & Employment Group counsel Christopher Calsyn speaks to InsideCounsel about the 11th Circuit's ruling that even though employees are not eligible to take an unpaid leave under the Family and Medical Leave Act (FMLA) until they have worked for a company for a full year, their protection against retaliation starts as soon as they inform their employer that they will be taking leave.

According to the article, Calsyn advises in-house counsel to work with human resources and benefits coordinators to make sure they don't reject out-of-hand requests for leave. Calsyn said, "The FMLA is a hyper-technical statute. Even seasoned lawyers don't know every nook and cranny."

New York-based Labor & Employment  Group co-chair Jeffrey W. Pagano speaks to Broker Dealer (BD) Week about a change that the Financial Industry Regulatory Authority (FINRA) has proposed to its arbitration system that would assure employees have a right to file more claims in court, as opposed to being forced into arbitration. The change comes shortly after a similar, but broader, ruling was issued by the National Labor Relations Board (NLRB) regarding private employers that use arbitration programs.

According to Pagano, "The recent NLRB decision gives employees even broader latitude to file collective claims in court than FINRA's proposal does."

Crowell & Moring is listed among 17 firms that received praise from corporate counsel for improving their client focus in the BTI Client Service A-Team 2012 report by the BTI Consulting Group Inc.

According to the article, “While many firms have been increasing their emphasis on client service to remain competitive, a few made strong pushes toward more in-person meetings, satisfaction surveys and follow-up calls this year, earning them the designation of most improved in a new survey of corporate counsel.”

Washington, D.C.-based Labor & Employment Group partner, Thomas P. Gies, is featured in Law360’s “How They Won It” column for his victory in an employee misclassification suit on behalf of firm client DeWolff Boberg & Associates (DB&A). Crowell & Moring counsel Christopher Calsyn and firm associate Arash Jahanian were also on the winning team that defended DB&A against a collective action in Texas federal court, which returned a favorable jury verdict in less than an hour of deliberation.

According to Gies, “Very, very early on the client determined that this was the place to fight the fight. The settlement demand was unrealistic, and their business model depends on these folks being classified as salaried exempt employees, so they needed to be vindicated. The case was filed in May 2010, and I told everybody on my team within the first month that we were either going to win on summary judgment or go to trial.”

Labor & Employment Group counsel Rebecca L. Springer is featured for her comments in a piece about how U.S. federal contractors will face more scrutiny under the Labor Department’s new auditing process and comprehensive reviews. This comes as a result  of the Obama Administration increasing the funding for the Office of Federal Contract Compliance Programs.

According to Springer, "The length of audits varies from several months to as long as 10 years. The audit length will probably grow under the Obama push as the office moves toward more onsite visits."

New York office Labor & Employment Group partner James E. Kellett is featured in Employment Law360 for his comments on three circuit courts chapter 7 rulings in the past six months that say the Bankruptcy Code does not bar private employers from refusing to hire a job candidate because they've filed for bankruptcy.

Of the three circuit court’s rulings,  Kellett said, "They are clear and unambiguous in their findings, and their findings really stand up when viewed in terms of statutory construction principles… And while there's a strong basis for the Third, Fifth and Eleventh Circuit's decisions, prudent employers should be mindful of any potential disparate impact of refusing to hire people who have declared bankruptcy."

Kellet explains that risks could include triggering an EEOC investigation or setting the stage for a private class action.

Labor & Employment Group co-chair and partner Kris D. Meade and counsel Rebecca L. Springer are featured for their thoughts on the Office of Federal Contract Compliance Programs (OFCCP) increased scrutiny of contractors and the lack of compliance guidance.

Springer said the change in presidential administrations is partially responsible for the agency's increased enforcement activities. However, the OFCCP also has more resources than it did previously, including a bigger budget and significantly more auditors.

With respect to compensation guidance for contractors, Meade said, "even when the existing compensation guidance came out in 2006, the agency declined to describe at any length what it actually does with compensation data..the rescission of this guidance will mean more on-sight audits and more discrepancy in how different district or regional offices approach audit issues."

Partner Seth T. Perretta has joined Crowell & Moring LLP's Corporate, Labor & Employment, and Health Care groups in the Washington, D.C. office.

Speaking to Employment Law360 about his move to the firm, Perretta said he was "looking forward to taking the skill set he had at a boutique firm and applying it across a broader base of clients and practice groups."

Washington, D.C. – based Labor & Employment Group counsel Rebecca L. Springer is featured for her comments on the federal government changing case management procedures, signaling more aggressive and broader enforcement of anti-discrimination laws. In December 2010, the Office of Federal Contract Compliance Programs announced that it was discontinuing its Active Case Management procedures that have been in practice since 2003, impacting government contractors accused of discriminatory practices.

According to Springer, “We’re seeing renewed vigor from the Office of Federal Contract Compliance Programs right now and a more aggressive agency than it has been in the past. The OFCCP wants the flexibility to go after alleged discrimination and not be tied down to a particular process.”

Kris D. Meade, partner with Crowell & Moring LLP and co-chair of the firm's Labor & Employment Group, is featured in a Employment Law360's "Practice Leader" Q&A on his practice, the complexity of his cases, and his most notable accomplishments as a lawyer.

Crowell & Moring LLP Labor & Employment Group partner Thomas P. Gies is featured on www.Politico.com as a panelist in the outlet's online "POLITICO Debate: The Employee Free Choice Act - Rebuttals." In his Rebuttal to pro-Card Check voices, he states: "One thing comes through loud and clear in reading the essays submitted by proponents of the bill. The case for card check has been revealed as an unapologetic plea for income redistribution."

Click to read the full POLITICO Debate: The Employee Free Choice Act-Rebuttals.

Crowell & Moring Labor & Employment Group partner Thomas P. Gies is featured in Forbes for his comments on the Employee Free Choice Act (EFCA) and his American Enterprise Institute for Public Policy Research white paper on the EFCA titled, "Card Check: Changing the Rules for Collective Bargaining." Gies has also been quoted on this issue in Employment Law360.

A Crowell & Moring team led by Labor & Employment co-chair Jeffrey W. Pagano, with assistance from Herbert Meyer, Glenn Grant and Ira Saxe, successfully argued before the Court of Appeals for the D.C. Circuit ("DCCA") on behalf of Mail Contractors of America ("MCA"), and obtained reversal of a decision of the National Labor Relations Board ("NLRB") that found that MCA had unlawfully refused to bargain regarding a unilateral change of a driver relay point. The right of MCA, the largest U.S. Postal Service depot to depot mail carrier, to unilaterally change the relay point was contained in the Management Rights provision of MCA's final offer, implemented after impasse. The DCCA squarely rejected the NLRB's position that exercise of that right violated the National Labor Relations Act. The Court's Opinion is a landmark decision, and was featured as the lead article in the January 31, 2008 edition of the BNA Daily Labor Report, as it ensures an employer's ability to operate its business without interference of a union after implementation of a final offer.

Court Documents:
Mail Contractors of America v. NLRB, Nos. 06-1338, 06-1380, 2008 WL 220637 (D.C. Cir. Jan. 29, 2008)

Thomas P. Gies, partner in Crowell & Moring LLP's Labor & Employment Group, made Monday's argument in the Supreme Court on behalf of C&M client DeWolff, Boberg & Associates. LaRue v. DeWolff, Boberg & Associates Inc. et al. involves the scope of remedies available to 401k plan participants under ERISA, in a case where a former employee and plan participant claims lost profits in his 401k plan account as a result of an alleged failure to follow his instructions to change his mutual fund investment allocations in the plan. The case is featured in several media outlets including New York Times, Wall Street Journal, Associated Press, Bloomberg News, Employment Law360, BNA's Daily Labor Report, etc... The Court's decision is expected by the end of June, 2008. 

LaRue v. DeWolff Documents
Respondents' Brief on the Merits [PDF]
Fourth Circuit Opinion [PDF] 
Fourth Circuit Order denying Appellant's Petition for Rehearing and Rehearing en banc [PDF]

Crowell & Moring LLP has added 20 attorneys from King Pagano Harrison (KPH), one of the nation's leading health care and labor & employment litigation law firms, and a trio of intellectual property partners from Morgan & Finnegan LLP, The moves add a total of 23 new lawyers, including 12 partners, to Crowell & Moring's Washington, D.C. and New York offices. The news of the additions to the firm is also highlighted in Bloomberg News, Crain's New York Business, Legal Times, New York Law Journal, The Lawyer, Washington Post and other publications.

November 13, 2006 – Health Law360, IP Law360, Employment Law360