Litigation and Alternative Dispute Resolution
Labor and employment claims often are prolonged and may include discrimination, wrongful discharge, whistleblower claims and retaliation, along with claims of fraud, breach of fiduciary duty, breach of contract, and tortious interference arising out of business relationships and transactions, and we have the skills to handle cases with any level of complexity. Our record of achievement extends to all facets of employment litigation and dispute resolution in the US and European courts and administrative agencies, such as the US Equal Employment Opportunity Commission and the US Department of Labor. We also have experience representing companies in class actions brought by employees, and in post-trial and appellate litigation.
Even in the best-managed businesses, employment disputes inevitably arise, and can result in litigation. We encourage active client participation in determining goals, strategies and tactics and in evaluating risks and costs associated with the litigation process.
Within the US, we represent clients at trial and on appeal at both the state and federal court level in multiple jurisdictions, in claims that span all areas of employment law, including discrimination, harassment, retaliation, wrongful termination, privacy, wage and hour, ERISA allegations and matters arising from executive employment agreements, non-competition and confidentiality agreements, and severance agreements—as well as in Sarbanes-Oxley and Dodd-Frank and other whistleblower cases, nationwide class actions, post-trial litigation, complex settlements, and negotiations in multiple plaintiff cases. In recent years, we have litigated cases of first impression and under the wage and hour laws resulting in beneficial outcomes for our clients. We also regularly represent clients before administrative agencies, including the US Equal Employment Opportunity Commission; the US Department of Labor, Wage and Hour Division; the US Occupational Safety and Health Administration; the US Office of Federal Contract Compliance Programs; the National Labor Relations Board; state fair employment practice agencies; and state departments of labor.
Companies can face significant—and expensive—legal ramifications for incorrectly classifying employees as independent contractors or as exempt under the wage and hour laws. If a court determines a company has made a classification mistake, that company may have to compensate employees for any overtime pay or minimum wages to which they are legally entitled, and pay back taxes and hefty penalties to state and federal agencies. Misclassifications can also lead to discrimination suits or other legal actions from workers. Our legal team guides clients through the complex factors that determine employee vs. independent contractor status, and exempt vs. non-exempt status. We also defend clients faced with legal action from their workforce, developing strong strategies that protect both an organization’s financial interests and its reputation.
Executive and Workforce Training
One of the most valuable investments a company can make is in training managers, supervisory staff and human resources professionals on how to manage efficiently within the confines of applicable labor and employment laws. Clients look to us to provide training as a preventative measure, to help avoid litigation and minimize legal exposure, as well as to enhance the effectiveness of their managers.
Throughout the United States we offer a wide range of customized training programs and workshops at our clients’ premises, as well as seminars and innovative programs adapted to clients’ specific needs. Our training programs include: providing a legal-psychological perspective on managing employees through effective communication; preventing, identifying and dealing with sexual and other unlawful harassment; advising on unions and management-employee relations; dealing with violence in the workplace; managing the interaction between the FMLA, ADA and workers compensation; enhancing interviewing skills and hiring while minimizing legal risks; and understanding restrictive covenants (e.g. non-competition agreements).
Traditional Labor Law
We counsel clients in all facets of traditional labor law, both in the United States and internationally. We have represented many clients in administrative proceedings before the National Labor Relations Board and in union elections.
We work closely with the firm's Corporate Practice in numerous transactions each year, providing counseling advice in connection with mergers and acquisitions and all the related complexities of dealing with what is often the most important asset (or liability concern) in a deal—the workforce. Our advice can include negotiating key parts of the primary transaction documents, analyzing risks in due diligence, assisting management with transitioning senior talent, dealing with workforce reductions, and overall company integrations.
When employers or senior executives need assistance with employment, severance or retention arrangements, they turn to us for our combination of technical knowledge and practical, market-based advice. We have assisted employers of all sizes with hiring and transitioning their most senior executives and provide advice on arrangements for other employees. While we more commonly represent employers, many executives have found our experience to be an excellent counterweight to the employer’s leverage in many negotiations.
InvestigationsClients benefit from our broad experience conducting wide-ranging and complex internal investigations, including those in highly public matters for the boards of directors and management of some of the largest, most recognized companies in the world. We regularly undertake and guide investigations into employee complaints of discrimination and harassment, and also conduct high profile internal investigations and confidential reviews into corporate culture generally, drawing as appropriate on the knowledge and experience of our preeminent Litigation practice. Our support includes conducting investigations directly, managing internal investigations, and/or providing advice and counsel on process and resolution. Corporate clients regularly rely on WilmerHale’s wide-ranging experience and sophisticated capabilities to counsel them through a variety of issues related to sexual misconduct and corporate culture, and we take pride in our reputation as the go-to firm when trusted and independent representation is needed. We also often serve on an interdisciplinary team of investigators to provide employment law expertise on the personnel consequences stemming from the core investigation such as a Sarbanes-Oxley or Foreign Corrupt Practices Act matter.
Our HR Services Group combines a deep understanding of the HR marketplace and best practices with seamless access to quality legal resources. We serve companies navigating all facets of human resources management, systems, policy development and legal compliance. Whether clients require consulting, contract services, training and development programs, or strategic staffing assistance, our HR professionals have the experience to help meet their goals.
The HR Services Group is a team of senior-level certified HR professionals (non-lawyers), also with decades of combined experience, who perform discrete HR projects and/or ongoing HR counseling and support for firm clients, including HR systems assessment and development, compensation and pay equity analyses, salary surveys, benefit plan assessment and design, talent acquisition, management training, affirmative action program development, compliance/audit support, and support for EEO efforts and development of diversity and inclusion programs.
Our HR consultants work to understand a client’s business plan and existing processes to design a customized menu of services that fits the company’s objectives and budget. From the challenges facing startups to the concerns of maturing companies, our HR professionals can provide comprehensive, timely and cost-effective solutions.
The HR Services Group guides affirmative action program development and reporting (including EEO-1 and VETS-4212 reports), statistical analysis, self-audit monitoring support, and OFCCP audit support, teaming with our employment lawyers who bring affirmative action legal experience to ensure a unique complement of legal and HR proficiency for our clients at a highly competitive price point. Should an audit occur, our legal and HR affirmative action teams will jointly manage the audit process from the day the compliance review notice is received, through the many requests for information, possible on-site representation, and through closure, continually working to manage and minimize client risk at each step in the process. We are proud of our track record for successful closure of client audits.
Sarbanes-Oxley Act and Whistleblower Claims
Sarbanes-Oxley and Dodd-Frank broadened whistleblower protections to include other federal offenses and enhance remedies, and protect corporate whistleblowers bringing claims of fraud and SEC violations against their employers. Countering such claims effectively requires not only an excellent employment law team, but also skilled securities and corporate lawyers. The depth and collaboration of WilmerHale’s Labor and Employment, Corporate, and Securities Practices mean we can successfully counsel and defend clients on all aspects of the matter.
European Employment Practice
We advise clients based in Europe on consultations with unions and works councils, and—where clients are not unionized—on the processes required to elect representatives for the purposes of information and consultation in collective redundancies and business transfers in the European Union.
- Set new law in what is now the seminal employment discrimination case respecting retaliation and attorney's fees in Massachusetts, won what appeared at the outset to be an unwinnable, restrictive covenant injunction case in the US District Court, Southern District of New York which is now one of the seminal cases in that area of the law, won at the First Circuit Court of Appeals and set an important precedent on “attributable bias”, won a Sarbanes-Oxley case before OSHA in Texas and negotiated a favorable settlement of a multi-state FLSA collective action case in federal court in Tennessee.
- Won a significant victory for our client Teradyne, Inc. At the summary judgment stage, the Superior Court overwhelmingly ruled in Teradyne's favor, dismissing 14 of 16 plaintiff claims. At trial, a jury found Teradyne not liable for discrimination—plaintiff’s primary theory of liability. Following trial, we successfully persuaded the Court, on behalf of our client, to vacate an award of punitive damages on plaintiff’s retaliation claim (the only relief awarded) and to deny plaintiff any recovery of attorneys' fees. We continued to represent Teradyne in appellate proceedings, where the Massachusetts Appeals Court affirmed the lower court's post-trial rulings, resulting in a complete and total victory for our client.
- Successfully obtained summary judgment for Amphenol Printed Circuits on the plaintiff’s FMLA retaliation claim and then prevailed on appeal in the First Circuit Court of Appeal. The case was the feature story in the Massachusetts Lawyers Weekly as it set an important precedent on the issue of "attributable bias."
- Successfully obtained dismissal of New York wage claims and common law claims at the motion to dismiss stage in a case before the Federal District Court, Southern District of New York.
- Successfully obtained dismissal at the motion to dismiss stage in a Delaware Court of Chancery of an interference with contractual relations claim.
- Successfully obtained dismissal at the motion to dismiss stage in a Massachusetts state court of claims of age discrimination and various common law claims.
- Successfully represented the Boston Celtics in the enforcement of the team's rights under the NBA collective bargaining agreement in a precedent setting case decided by former Commissioner Stern.
- In a class action wage and hour case against a franchisor and a number of franchisees in Massachusetts Superior Court, our Labor and Employment attorneys successfully obtained dismissal at the motion to dismiss stage for our client franchisee, while a number of the other defendants remained in the case.
- Successfully obtained dismissal of a Sarbanes-Oxley complaint at the US Department of Labor involving alleged international tax irregularities, and after the decision was appealed, obtained a withdrawal by the complainant just prior to trial.
- Successfully settled two class action lawsuits in the Federal District Court of Tennessee against Imperial Distributors, brought by a group of employees claiming they were entitled to overtime under the Fair Labor Standards Act.
- Successfully obtained dismissal of three cases brought against the same private school alleging age discrimination and retaliation at the Massachusetts Commissions Against Discrimination.
- Achieved important and hard-won victory for TransUnion Holding Company in a restrictive covenant suit in the Southern District of New York, which involved a no-hire agreement with LexisNexis Risk Solutions, a division of Reed Elsevier.
- Represented the audit committee of a big box retailer to investigate allegations of an inappropriate personal relationship with an employee by the then-CEO.
- Conducted privileged, independent corporate culture reviews of a financial institution’s policies and procedures. We provided legal advice to improve the firm’s culture and to foster best practices following the filing of a lawsuit alleging gender discrimination and a hostile work environment, pay inequality and retaliation.
- Conducted investigations and provided counselling on offshoot of a Congressional Hearing matter.
- Conducted a number of high-profile investigations for federal banks and international companies.
- Providing timely and critical advice across a wide array of disciplines as members of the firm’s Coronavirus (COVID-19) Task Force. The labor and employment members of the task force assist clients with issues involving labor, employment and worker safety; anti-discrimination; and many other areas affected by the COVID-19 pandemic.
- Represented an app platform business against allegations of misclassification brought by the Massachusetts Attorney General’s Office.
- Represented a company before the Massachusetts Department of Unemployment Assistance against a claim that the majority of its independent contractors were misclassified.
- Represented numerous government contractor clients in a variety of industries in OFCCP audits, resulting in successful closures.
- Regularly counsel and assist our clients on the wide variety of labor and employment compliance issues, and conduct comprehensive audits on matters ranging from workforce classification (i.e., proper classification of employees under state and federal wage and hour laws, and appropriate designation of service providers as independent contractors), to review of clients' I-9 records and procedures in place for verifying (and, where appropriate, reverifying) employees' right to work in the United States, to in-depth analysis of clients' compensation practices. We also provide extensive support and guidance to clients during government agency audits.
- Chambers USA: America's Leading Lawyers for Business – Chambers described our labor and employment lawyers as a “practical team that provides sound advice,” with a “recognized capacity to handle an array of labor and employment matters, including employment litigation, traditional labor law and management training.” Partner Jonathan Rosenfeld who has been recognized by Chambers every year since 2006, “receives warm praise from interviewees, with one source attesting: ‘He treats us like we're his number one client.’”
- U.S. News – Best Lawyers® – Our Labor and Employment Practice was recognized in the 2014–2021 editions.
- Boston Magazine – Recognized Ariella Feingold, Jonathan Rosenfled, Laura Schneider and Andrew Stauber as top employment lawyers in the inaugural 2021 Top Lawyers List.
- Massachusetts Super Lawyers – Jonathan Rosenfeld has been recognized as a super lawyer every year since 2007.
- Best Lawyers in America – Laura Schneider has been recognized for her employment law – management practice in the 2016–2021 editions.