Labor And Employment Practice: Proskauer Rose LLP At Home In New Jersey And Throughout The World

Tuesday, June 30, 2009 - 00:00

Editor: Please describe your professional background. What brought you to Proskauer's Newark, New Jersey office, which you head?

Sandak: I have been practicing for 30 years, the first 21 of which were in New York. From the beginning, my primary focus has been on employment counseling and litigation. In 2000, Allen Fagin, who now chairs Proskauer Rose, invited me to join Proskauer's then- one- year- old Newark office. The office was small, but Allen's vision, shared by the founding partner of the office, Marvin Goldstein, was big. They foresaw a full service labor practice offering employers a range of services covering a wide breadth of disciplines including employment counseling and litigation, executive compensation and benefits, labor negotiations and immigration. They envisioned a large contingent of Newark-based lawyers who could work seamlessly with Proskauer's 70 or so Labor Department lawyers in New York and dozens more around the country. I looked at the New Jersey market and concluded that there was a significant need for just such a practice and in August, 2000, I joined the firm. Our Newark office grew from eight lawyers to 40 in its first three years.

Editor: Why did Proskauer decide to provide so much firepower to labor and employment in New Jersey?

Sandak: There is a huge market for labor and employment legal services in New Jersey. In order to offer to that market the broad range of services that I described, we needed to staff our office with lawyers who were experienced and knowledgeable in their respective disciplines. That required an office of substantial size and depth, and that's what we put together in Newark. As a result, we rarely encounter a situation or issue that someone in the office has not already addressed and resolved. For our clients, this means getting good, practical and cost-effective advice and representation.

Editor: Proskauer has been aggressively expanding its global footprint. How has that impacted your practice in New Jersey?

Sandak: In recent years the firm has opened offices in Chicago, London, Hong Kong and Sao Paulo. We think it's important to be where our clients are, and many of our New Jersey-based clients have offices and operations across the country and around the world. At the same time, we have found that many of our global clients have facilities in New Jersey, and we have established new relationships with them and grown our local business as a result.

Editor: In addition to heading the New Jersey office, you co-chair Proskauer's Law Firm Advisory Group. What services does Proskauer provide to law firms?

Sandak: It may seem counterintuitive, but very few law firms have a full range of in-house legal expertise on the business of managing a law firm. Proskauer's Law Firm Advisory Group brings together a large number of lawyers experienced in advising and representing law firms in litigation, employment matters, ethical matters, partnership structure and the defense of malpractice cases. My co-chair, Steve Krane, for example, is a nationally recognized authority on legal ethics. In Newark, we have a team of lawyers working under my supervision who have assisted some of the nation's largest and most prominent law firms confront employment issues arising out of the economic downturn and the need to reduce their size. That team worked in conjunction with lawyers in Proskauer's Law Firm Advisory Group, in Paris and Los Angeles, to provide complete coverage to these law firm clients. Given our substantive and geographic breadth and our many years of experience representing law firms, we are uniquely qualified to advise and represent businesses in the legal profession.

Editor: How has the economic downturn affected your labor and employment practice in New Jersey?

Sandak: Actually, the practice of labor and employment law is relatively immune to changes in economic conditions. In a growing economy, you will typically find employment work associated with hiring, expansion, corporate transactions, compensation and benefits. In a receding economy, the work tends to focus more on layoffs, severance plans, office and business closures and defending wrongful termination and discriminatory discharge claims. In the last year or two we have also seen a significant uptick in work related to non-competition and other forms of restrictive covenants. So, even in the current economic environment the business of our office has remained strong.

Editor: Let's discuss some particular legislative initiatives. The New Jersey Mini-WARN Act differs from the federal WARN Act in several important respects. What do New Jersey employers need to know about the state law?

Sandak: Most importantly, New Jersey employers must be careful to comply fully with the requirement of providing a minimum 60 days' notice prior to any mass layoff or other triggering event. Under federal law, an employer is liable for back-pay and benefits for each day there is a violation of WARN, up to a maximum of 60 days. Under New Jersey's Mini-WARN, however, any full time employee who does not get 60 days of notice is entitled to severance pay of one week for every full year of service. So, as an example, take an employee with five years of service who gets 59 days of notice rather than 60. He or she would be entitled to one day of pay and benefits under federal law, but under New Jersey law this employee would be entitled to five weeks of severance, mitigated only by the one day he or she received under federal law. There are other important substantive differences between the federal and New Jersey WARN Acts, so any employer thinking of closing a facility in New Jersey or laying off large numbers of employees should have a clear understanding of those differences.

Editor: It is well known that the New Jersey Legislature has passed laws making the state one of the most employee-friendly in the nation. Do you feel that the state court system provides a good balance against what some consider hostility towards businesses?

Sandak: The courts can only interpret and apply the statutes as they are written; they cannot and should not legislate themselves. That said, there can be little doubt that New Jersey state courts are a tough place for employers, and that starts at the top of the judicial system. Every year, the New Jersey Supreme Court is called upon to interpret one or more of the state's employee protection laws. Those laws are some of the most far reaching of their kind in the country. Yet, in interpreting those laws the Supreme Court, with a high degree of consistency, has said that as social legislation the laws should be liberally construed. So, you take a law which typically starts out creating more rights for employees than you can find in most other states, and the jurisprudence of the state Supreme Court has tended to expand those rights, or the scope of those laws, still further.

Editor: Turning to federal law, what is your thinking about the Obama Administration's Employee Free Choice Act in terms of how it will affect unionization of plants in New Jersey?

Sandak: If the Employee Free Choice Act passes in its current form - which, by the way, does not appear likely at this time - there is little doubt that it will result in an increase in unionization in New Jersey. As the draft legislation now stands, EFCA would eliminate the secret ballot vote. Instead, employees would be placed in a position of delegating their votes to coworkers or to a paid union organizer by merely signing a card. Obviously, this process could lend itself to abuse. And, it would mean that employees would not have the opportunity to be educated about the issue prior to making a choice. From a macro perspective, I'm concerned that a significant increase in unionization will increase the rate at which service jobs are transferred overseas and therefore drive businesses out of New Jersey. For these reasons, at the end of the day I don't see New Jersey workers benefiting from EFCA.

Editor: Having just passed the ten year anniversary of Proskauer's opening its office in Newark, do you feel that the firm's vision for the office has been satisfied?

Sandak: Personally, I'm never satisfied with what is; I'm always striving for what could be. But by any measure the office has been a resounding success. The Newark office now maintains practice groups in employment counseling and litigation, in traditional labor, in employee benefits and executive compensation, in ERISA litigation and in business immigration. John Barry co-heads the firm's national Non-Compete and Trade Secrets Practice from Newark. Marvin Goldstein, who literally wrote the book on New Jersey employment law, co-heads the firm's EFCA task force, and David Grunblatt, one of the true giants of the immigration bar, heads our national immigration practice from Newark. We have staffed our office with a group of outstanding lawyers whose abilities and accomplishments are second to none. We have become an integral part of Proskauer's global network of offices and its supremely talented team of labor and employment lawyers.

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