Courtroom Litigation / Arbitration / Mediation
No matter how much care has been taken to make and implement sound employment decisions, employees often sue. This is the unfortunate reality of doing business in America. As litigators, we aggressively but economically represent our clients in proceedings before Federal, State and Local courts and agencies in discrimination lawsuits alleging age, race, sex, pregnancy, religion, disability, gender identity, and other protected classes; wage and hour violations; wrongful discharge; retaliation; and all other workplace issues.
Employment Discrimination
Employment discrimination cases often start with an administrative charge before a Local, State, or Federal agency such as the Equal Employment Opportunity Commission, Connecticut Commission on Human Rights and Opportunities, New York State Division of Human Rights, and New York City Commission on Human Rights, and other state civil rights agencies across the country. The current or former employee may assert a claim based on any protected status such as age, race, gender, national origin, color, caregiver status, pregnancy, gender identity, religion, etc.
In addition to employment discrimination, the current or former employee may assert a harassment or hostile work environment claim. While the most widely litigated and well known form of harassment and hostile work environment claims are oftentimes based on gender or sex, any protected class can serve as the basis for a harassment or hostile work environment claim.
Retaliation Claims: A Persistent Challenge
Beyond discrimination and harassment, retaliation claims have become an additional claim in almost every case. Surprising to some, employers can lose a retaliation claim even though they win the underlying discrimination claim. In fact, employees do not even have to allege an underlying act of discrimination to prevail on a claim of retaliation. As a result, retaliation claims are the hottest and one of the most difficult issues to defend.
While we successfully defend the majority of administrative charges against our clients, they cannot all be won. In fact, even if the charge is won at the administrative level, the case is not necessarily over. Regardless of the outcome of an administrative investigation, employees have the right to take their case to State and Federal Court. At this point, the costs in terms of both dollars and business interruption have to become a major consideration.
Strategic Litigation Management
We understand the realities of litigation in today’s world. With the prevalence of e-mail, text messages, instant messaging, etc. the amount of documents for potential review can be tremendous. This makes the discovery process costly for employers. Understanding the burden litigation brings, we work with our clients to find creative solutions to minimize litigation costs. We do this by utilizing an aggressive motion practice to limit the scope of discovery, hiring specialized e-discovery vendors to control costs, and focusing on the key issues early on in litigation.
When needed, we are aggressive court room advocates, but we also recognize the need to seek alternatives to a court room fight. We use mediation and other settlement strategies to resolve cases that can’t be won or need to be resolved so our clients can return to their business. As needed, we urge this strategy even though we realize settlement can be a very bitter pill to swallow.
Wage and Hour
Wage and Hour claims are the most prevalent cases we see. This includes both misclassification cases, i.e., incorrectly classifying the worker as exempt from overtime (salaried) versus non-exempt (hourly), and cases for failure to pay minimum wage (usually caused by not paying all hours worked) and overtime.
These cases can be costly for a number of reasons. First, the length of time for which back pay is owed. For instance, under the Fair Labor Standards Act, an employee is entitled to recover back pay for two to three years while State law allows recovery for six years in some states. Employees also can recover liquidated damages equivalent to the entire amount of back pay recovered. There is also a provision in almost every Wage and Hour law for the recovery of legal fees if the employee wins. In almost every case, this exceeds the award of back pay. And as with all litigation, the time drain to the company could be more damaging than everything else combined. We zealously defend our clients in these cases and know when to resolve the cases early in litigation.
Alternative Methods of Dispute Resolution
Because of the explosion of litigation costs, alternative dispute resolution systems can be a cost effective mechanism for dispute resolution. We first attempt to resolve these disputes through mediation, where a neutral third party is used to help the parties voluntarily resolve the dispute. This allows both sides to see the strengths and weaknesses of their respective case. Where this succeeds we can save our clients tens of thousands of dollars and hundreds of hours of management time. But if mediation fails, and we still wish to avoid the courtroom, commercial arbitration is a good alternative. Two of our most common venues are FINRA and the American Arbitration Association. These “mini” trials require all the skills of courtroom trials but on an abbreviated time schedule and with limited discovery.
Restrictive Covenants (Non-Competition/Non-Solicitation Clauses)
Entire businesses can be decimated through lost client lists, vanishing trade secrets, and employee raiding. We realize that protecting client relationships and employees is vital to ensuring the continuation of business operations. A common defense is covenants not to compete and other restrictive covenants. We aid our clients in enforcing these agreements and defending against such enforcement as our client needs arise. This litigation arises quickly and often a response must be time sensitive. We understand this is bet-the-company litigation. We have appeared in both Federal and state courts to advocate for our clients with little notice. When the stakes are this high, we focus all our resources to stop the bleeding.
