A Labor And Employment Litigator Addresses The Tough Issues

Editor: Mr. Coleman, would you tell our readers something about your background and professional experience?

Coleman: I grew up in Washington, DC and spread my wings by going to Princeton and eventually New York City. I was the educational and geographic exception in my family since everyone went to Georgetown, and most of my immediate family remains in DC. I went back to Georgetown to get my law degree and initially clerked at the NLRB to one of the five Board Members prior to coming to New York City.

Editor: How did you come to Nixon Peabody? What were the things that attracted you to the firm?

Coleman: After the NLRB, I joined Townley, Updike, Carter & Rogers, a mid-sized general practice New York City firm with very strong labor law and litigation concentrations. A major client was The Daily News, which had six craft unions and the Guild. The management/labor relations were quite contentious, which meant an exciting practice for lawyers, including stoppages, strikes, injunctions, arbitrations and the like. In the mid-'90s the firm was growing in different directions, and we decided to bring our labor and employment practice to Nixon Hargrave Devans & Doyle. Townley & Updike closed its doors at the end of 1995, a sad conclusion to a once great firm, but a fate shared by many fine mid-sized firms in New York City.

We had great opportunities to move to any number of firms, but we came to Nixon Hargrave because we liked the quality of the practice, the fine reputation, and the terrific people we already knew at that firm. It was an easy move and a terrific cultural fit.

Editor: Please tell us about your practice. How has it evolved over the course of your career?

Coleman: It has evolved quite dramatically. When I graduated, the NLRB was the place to work - akin to a graduate course in labor law, where you worked with smart and influential people and learned inside baseball, so to speak. When I started practice, about 85 percent of the work was traditional labor law, the remainder litigation and advice work. Now, most attorneys in this area are employment lawyers offering advice and litigation skills. Management, and its lawyers, have done a superb job in being pro-active in fostering and maintaining a union-free workplace environment in the private sector, and private sector union membership has plummeted in the last 20 years. I retain my practice in traditional labor law such as NLRB work, workplace advice, collective bargaining, arbitrations and the like, but the majority of my work now is employment advice and litigation. Fortunately, as a young practitioner I did quite a bit of commercial litigation, including jury trials, so when litigation became the coin of the realm over the last half generation, I already knew my way around a courtroom.

Editor: You have been on the cutting edge of developments in the labor and employment field for a long time. Would you give us an overview of some of the current issues that practitioners in this area are addressing?

Coleman: A recent survey of General Counsel of U.S. businesses identified labor and employment problems as the single greatest litigation concern, with 50 percent of the respondents listing such litigation as among their top three concerns, a marked increase from the 25 percent who listed such concerns in the top three last year.

Legislative developments have increased litigation in Fair Labor Standards and SOX whistleblower matters. And the shift to our service and technology-based economy from manufacturing emphasizes human capital, the value of information, and the easy portability of both. Trade secret and restrictive covenant litigation is prevalent in a developing economy, just as reductions in force are of active concern, particularly as regards protected categories, in a shrinking one.

Those who regularly counsel and litigate in the areas of non-competes and trade secrets in the employment context are fully aware of the fluid nature of this jurisprudence, and that even the most sage advice lacks the predictability that clients and litigants expect in other areas of labor and employment.

There are good reasons for this. Only one-third of the states have statutes in the area. Judges therefore apply principles of common law, creating varying state law judicial precedents, guidance which the federal courts sitting in diversity are supposed to, but do not always apply to the cases before them.

Another reason for the lack of uniformity in this area is that judges in these cases sit as "equity" judges, a concept largely unknown to the most recent generations of law students who were not compelled to study equity as a separate discipline. These equity judges apply their own concepts of fundamental fairness to the decisional points of reasonableness of terms in time, place and space, undue hardship, overreaching, balancing of the equities, and public policy. They are empowered to modify, limit or essentially disregard apparently clear contract terms. Moreover, in the context of injunctive relief, judges also consider irreparable harm and likelihood of success on the merits. These judges obviously have great leeway in the application of the dynamics of all of these concepts, and can often cite precedent one way or the other as indicated or necessary to support their decisions.

This is an enjoyable and challenging practice which commands the attention of General Counsel and top management, and is generally over at the preliminary injunction stage.

To make this litigation arena of even more interest to the practitioner, attorneys may find themselves plaintiffs one week seeking to enforce covenants and protect trade secrets, and defendants the next seeking to invalidate restrictions and demonstrate that alleged trade secrets are illusory.

These equitable concepts, and their corollary of fiduciary obligations, actually pre-date the development of the English common law. Indeed, Saints Matthew and Luke speak to this in The New Testament - that a man cannot serve two masters, for "either he will hate the one, and love the other; or else he will hold to the one, and despise the other."

There are always new things on the horizon, whether legislative, regulatory or judge-made law (as was sexual harassment, originally). As to other litigation, we remain a largely at-will employment environment (as opposed to a just cause for termination workplace in most other developed countries), but creative plaintiffs' attorneys continue to plug away at creating exceptions in contract (such as oral promises in hiring), and tort (fraud, public policy, wrongful discharge).

While class action litigation in sex, race, age (and Fair Labor Standards) matters grab the headlines, individual cases continue to vex employers as well. Though the Americans with Disabilities Act has not spawned the cataclysmic results predicted when President Bush (pere) signed the ADA into law in the Rose Garden amidst hundreds of handicapped workers, it remains an effective challenge to every employer to properly and reasonably accommodate the workplace. And as the Boomers remain in the workforce, we will see more age claims as well, even though courts have been sympathetic to a company's "stray remarks" that might otherwise reflect discriminatory intent.

Increasingly, we are called upon to conduct corporate investigations in conjunction with an alleged discriminatory matter, or a corporate governance issue. Boards are more attuned than ever to fiduciary and ethical obligations, whether or not the client is publicly traded.

Many of our clients are turning to mediation for dispute resolution, and courts and the EEOC and the NLRB have embraced the procedure. We have trained partners and associates in these skills to good effect, and positive results.

Our firm has also been recognized for our great strides in diversity hiring and retention. It's good for the profession and our firm, and smart business with our clients.

Lest we forget, labor organizations have stepped up resources and activity particularly in the health care field. Companies must remember to be a good employer, pay at least market wages and benefits, be fair, and provide a "happy shop" (with a nod to Justice Stewart, you know it when you see it). Prophylactic labor relations is always prudent, and worth every penny.

Our area of the law is one of the most dynamic, and you simply must stay on top of developments. I remember reading Bill Bradley's A Sense of Where You Are when I was a budding hoop devotee, and he said if you were not practicing, someone else was, and would be better prepared than you when you met him on the court.

Take blogging in the workplace, for instance. Is it misconduct or "free speech?" Only a couple of years ago companies had only a vague idea of blogs. Now, whole departments and consulting firms are devoted to managing blogs, including "watch your back" services to combat industrial sabotage. Employees who have been "dooced" (terminated for an offensive blog) are suing in increasing numbers. The first management reaction, to ban blogs concerning the company, will likely violate not only NLRB law regarding concerted activities, but also individual state laws protecting "off-duty" recreational activity, such as New York's Labor Law, Section 201-d.

And the EEOC continues enforcement of retaliation actions as an independent cause of action against companies which, while they may not have violated the rights of a member of a protected category in the first instance, are alleged to have retaliated against them in lack of promotions, job assignment and pay adjustments, for asserting their underlying rights in the first instance.

And on December 1 of this year new provisions of the Federal Rules of Civil Procedure go into effect regarding e-discovery that place new responsibilities on clients and their outside attorneys regarding compliance in the identification, retrieval and exchange of documents stored electronically. Again, we are fully engulfed in the information age.

Editor: What about employer accommodation of religion in the workplace?

Coleman: Religious proselytizing in the workplace has become a vexing issue, and there is an upsurge in litigation involving the rights of returning veterans to their previous employment positions and status. And new legislative and regulatory developments are keeping benefits lawyers busy.

Editor: Is there anything that you would like to add?

Coleman: We are a litigious society, and employees are aware of their myriad rights, whether common law, legislative, regulatory or developing as we speak, and they are not afraid of protecting or expanding those rights. It's our responsibility to be pro-active with our clients in spotting issues and potential problems, and resolving them. But if litigation results, to use our judgment and experience to bring home a win for the client.

Published November 1, 2006.