Audits by the Office of Federal Contract Compliance

Vedder Price also assists clients in their preparation for and the conduct of OFCCP audits. Firm attorneys are prepared to:

• Assist you with preaudit planning by conducting a preaudit of your facility to enable the client to identify and address potential compliance issues.
• Assist you during the audit. This means that our attorneys can be available to you during the audit process to ensure that everything goes smoothly.
• Provide follow-up assistance with any problem areas that were discovered during the audit process and assist in negotiating a resolution with OFCCP.
• Help with ongoing reporting requirements as a result of an OFCCP audit.

Wrongful Discharge

Since its founding in 1952, the firm has concentrated and excelled in employment litigation. Vedder Price has been at the forefront in the burgeoning area of employment law known as wrongful discharge. With the potential of multiple claims, jury trials, and punitive, pain and suffering and other damages, the firm counsels clients on the best strategies to minimize the risk of litigation and, when litigation does occur, defends retaliatory discharge, breach of contract, fraud and other claims falling within the wrongful discharge rubric. The firm’s attorneys closely follow the ever-changing developments in this complex area through hands-on counseling and litigation experience.

Counseling

The firm’s employment practice includes counseling its clients on the difficult and sensitive compliance, litigation and other employment-related issues they face. The firm’s approach to employee relations is involved and progressive. Vedder Price’s attorneys counsel clients on personnel policy development and sensitive individual employment decisions, with a view toward enhancing employee relations and productivity, while minimizing litigation risks. The firm is regularly called upon by clients to review employee handbooks and personnel policies and procedures for their impact on potential wrongful discharge, equal employment and other claims.

Employment Litigation and Avoidance

The new millennium demands imagination and sophistication in human resources management. Legislation, including the Americans with Disabilities Act (ADA) and the Civil Rights Act of 1991, mandated changes in employment practices and allowed stiffer penalties against errant employers. The media’s day-in, day-out attention to sexual harassment issues has made all employers more vulnerable to these claims. Today, even informed personnel choices can spawn lawsuits, and too often the outcome is shaped by claimants looking for a deep pocket and sympathetic juries who view employers as presumptively guilty. Today, more than ever, management needs skilled and experienced legal advisers to help them wend their way through this minefield of regulation and risk.

Vedder Price seeks to solve client employment problems before they become costly. To that end, our firm offers an array of services to help clients achieve their economic goals and avoid expensive employment-related litigation. If litigation ensues, we aggressively defend our clients, bringing to that task a superior level of proficiency acquired through years of experience representing companies of all sizes in both service and manufacturing industries.

However, we are attuned to the realities of employment litigation. Our firm maintains appropriate lawyer staffing geared to the type of suit involved, adheres to established parameters in litigation expenses, and never loses sight of economies that may be achieved by reasonable settlement.

Vedder Price offers customized counseling on how to accomplish cost savings and workforce improvements, while minimizing litigation exposure. Our services include:

• Advice on personnel decisions, including how to interview and assess job applicants, monitor and control alcohol and drug abuse, develop and maintain appropriate personnel records, and use progressive discipline effectively;
• Assistance in identifying problem terminations and developing strategic alternatives;
• Development of alternative dispute resolution procedures;
• Suggestions for reduction-in-force methodologies, such as the establishment of RIF committees, RIF procedures and voluntary retirement packages;
• Advice on compliance with WARN Act requirements associated with mass layoffs or plant closings;
• Statistical analyses necessary to audit workforce composition and determine if proposed personnel actions will have an adverse impact on protected individuals or groups;
• Assessment of pension and welfare benefit plans and plan changes affecting salaried and union-represented employees; and
• Evaluation of workplace safety and health programs, and advice on compliance with federal and state Occupational Safety and Health requirements.

The firm has approximately 40 labor and employment lawyers in Chicago and New York. We have been litigating in the labor and employment law field for more than 50 years. We are well equipped to effectively and creatively defend any type of employment litigation and have represented and continue to represent a broad cross section of public employers, Fortune 100 and New York Stock Exchange corporations, as well as smaller, privately held companies. Issues successfully litigated for these clients include:

• Race, sex and other employment discrimination suits, both individual and class;
• Wrongful discharge claims of all types, including those based on alleged handbook-created contracts or in tort for retaliatory discharge, fraud or negligence;
• Charges and suits brought by unions and employees under Sections 8 and 301 of the Labor Management Relations Act, including actions to enjoin illegal strikes;
• Fair Labor Standards Act and Equal Pay Act actions, both individual and class;
• ERISA litigation raising individual and class claims for benefits, and assertions of breach of fiduciary duty or improper modification or termination of plan benefits;
• OSHA litigation involving hazardous substance and ergonomic issues; and
• Employment arbitration based on employment contracts and securities registration agreements.

Cost-Containment

Because litigation is expensive and costs accelerate as a case develops, we are sensitive to our clients’ interest in efficient case management and resolution. We take care to avoid excessive lawyering, without sacrificing quality representation.

Because our clients’ economic interests are paramount and ultimately control the outcome of litigation, the firm regularly prepares risk analyses, including "decision trees" that enable clients to evaluate the cost-effectiveness of continued litigation.

Occupational Health Law

The firm’s occupational health law practice involves representing clients nationwide in federal and state occupational safety and health proceedings, including citation actions, standard-setting, variance requests, criminal and contempt proceedings, and related discrimination matters. As one of the leading law firms in the country in this practice area, Vedder Price has played a major role in the development of the law under the Occupational Safety and Health Act. Vedder Price’s practice also involves significant consulting in connection with the establishment of work force medical screening and employee training programs and the implementation of occupational health and safety policies that interface with other labor and employment laws, such as policies relating to workplace reproductive hazards, drug and alcohol testing, communicable diseases, exclusionary rules and genetic testing of applicants and employees.

Employee Benefits Law

As part of the labor and employment practice, Vedder Price employee benefits lawyers are uniquely conscious of the human resource implications of a client’s benefit plans. The firm is responsible for the design, implementation and legal compliance of profit sharing, pension, welfare and executive compensation programs of all types. Vedder Price attorneys provide benefits experience related to collective bargaining, merger and acquisition activity, and federal agency investigations. The firm also has litigated hundreds of cases arising under the Employee Retirement Income Security Act of 1974 involving claims for benefits, alleged breaches of fiduciary duties, withdrawal liability claims, plan amendments and terminations, and many other subjects.

National Labor Relations Act

Vedder Price attorneys are well versed in substantive and procedural law under the National Labor Relations Act, with many years of experience appearing before the National Labor Relations Board and its regional offices in unfair labor practice and representation (election) matters nationwide. Firm services include counseling to avoid unfair labor practices, handling NLRB investigations, defending NLRB complaints (through the appellate levels, if necessary) and ongoing advice – both legal and practical – during union election campaigns. One of the firm’s founding partners was General Counsel to the NLRB.

Strike Support

Although the avoidance of needless strikes is a primary goal of the firm’s employment attorneys, the practice area is well equipped to provide timely and efficient support when strikes do occur. Vedder Price attorneys have often been successful in obtaining injunctive relief against violent picketing and breach-of-contract strikes, and are able to respond swiftly in such fast-breaking situations. Vedder Price attorneys also are experienced in supporting pre-strike planning from a legal and practical perspective, including strike preparation manuals and supervisory training.

Collective Bargaining

The firm has extensive experience in successfully negotiating collective bargaining agreements on behalf of management with representatives of virtually every major union in the country. Depending upon the client’s wishes, firm attorneys serve as spokespersons at the bargaining table, as support members of the management bargaining team, or as off-site resources for counseling, preparation and drafting of contract language. Due to their wide-ranging experience, Vedder Price attorneys bring both legal and practical experience to the management side of the bargaining table.

Labor Arbitration

Clients call upon the firm to handle labor arbitrations ranging from simple questions of employee discipline to complex issues of contract interpretation involving substantial monetary exposure. For the critical task of arbitrator selection, Vedder Price maintains three services that track labor arbitrator performance: on-line computer access to the Labor Arbitration Information System (LAIS) national database; Simpson’s multi-volume Arbitrator Qualification Reports; and the firm’s own continuously updated evaluation files, based on Vedder Price’s own experiences with specific arbitrators. In presenting management’s arbitration case, the firm stresses complete and thorough preparation consistent with cost considerations.

Labor and Employment Supervisory Training

Vedder Price frequently provides its clients supervisory training in the area of labor and employment law. We tailor our presentations to the client’s needs, including specific problem areas, policies and regulations, and supervisory levels of knowledge and sophistication. Within that framework, we stress the practical, as opposed to theoretical, application of legal guidelines and try to stay as down-to-earth as possible.

Some of the topics we offer are:

• Administering Discipline – How to investigate an incident. Interview techniques. Documentation. Reporting and information sharing. Determination of penalties. Mitigation factors.
• Impact of Discrimination Laws – Scope of Title VII, ADEA, ADA and related discrimination regulations in hiring, assignment, promotion, layoff, discipline and other day-to-day employment actions. Selected problem areas, such as sexual harassment or reasonable accommodation for disabled employees.
• Administering Drug and Alcohol Policies – Legal and contractual limitations. Testing – reasonable cause and random selection. Objective factors for reasonable cause. Referral to Employee Assistance Programs. "Last chance" agreements.
• Staying Union-Free – The differences in working conditions between a union and nonunion environment. The legal framework for organizing. What supervisors may and may not do (and what they should and should not do). Proactive policies and management habits to prevent desire for unionization. Profiles of types of supervisors the union likes and doesn’t like.
• Violence and Threats in the Workplace – Legal liability and exposure of the employer. Duties to investigate, protect and/or warn. Profiles of potential problem areas.
• Wage and Hour Laws – Overtime requirements. The "8 and 80" hospital option. Measuring "hours worked." Work that is not directed, but that is "suffered and permitted." Determining exemptions. Selected problem areas, such as on-call and standby time, compensatory time and time off for salaried employees.

Maintaining Union-Free Status

Vedder Price has found that effective, preventive counseling and supervisory training can identify and resolve employee relations problems so that the situation never deteriorates to the point where a union organization drive is triggered. We have many attorneys who not only can provide expert legal guidance but also are adept at training and working with supervisors to polish and enrich their people skills, heighten their sensitivity to employee concerns and attitudes and alert them to the early warning signs of a union organizing drive. We also conduct employee relations "audits" to examine both hourly and supervisory employee morale, two-way communication and employee relations generally. In a relatively brief period, we can identify employee and supervisory concerns and employee relations issues or problems and work with your management team to suggest realistic actions that should both improve morale and help avert a serious, costly union organizing effort. The expense of such an "audit" in terms of both dollars and valuable management time is negligible when compared with the cost of a union organizing drive.

• Pre-Petition
  If the union organizing drive is in a pre-petition phase, we normally recommend that an aggressive employee communication program be embarked upon concerning the meaning and risks attendant to signing a union card. We also conduct meetings with managers and supervisors to identify issues of concern to employees. This program might include small group meetings between management and the targeted employees.

• Post-Petition
  If a union organizing drive already is under way, we first meet with relevant company officials to obtain an overview regarding campaign issues, information about levels and sources of union support, a work force and operation analysis and a general assessment of management and supervisory strengths and weaknesses. We then meet individually with key plant management personnel and supervisors to more fully develop this process and to assess supervisory morale and capabilities. All too frequently, the importance of supervisory morale is not adequately appreciated or addressed.

• Campaign Development
  If a representation petition has been filed, we work with management to develop campaign themes, determine the most effective vehicles for employee communication and prepare a tentative campaign outline and calendar. Naturally, we also see to it that we promptly analyze relevant union constitutions, bylaws, financial reports, strike reports, election reports and any available, relevant union contracts and information from other employers. This effort is greatly facilitated and enhanced by our firm's extensive experience with virtually all major unions, as well as our own internal experts who are familiar with this process.

• Supervisory Training
  Very early in the campaign we also meet with the supervisors and local management in a group to discuss and furnish general campaign "dos and don'ts," answer questions, provide information regarding the election process and motivate them to take an appropriately active and confident role. Employers frequently err by assuming that supervisors fully understand what union representation means to an operation and that they are vigorously opposed to unionization. We have found that it is well worth the effort to effectively drive these points home, provide real-life examples and see to it that the supervisors are appropriately motivated.

• Employee Meetings
  We normally work with the employer to plan a series of small group meetings, which are conducted by appropriate local management. Naturally, the number of meetings and subjects vary. Typically, each of the meetings is conducted enough times so that it can take place in a small group setting. The first meeting usually is designed to provide information about such topics as employee benefits, the employer, the local operation and competitive realities, and also to create a setting that encourages employees to air their problems, concerns and goals. Depending upon the situation, we may recommend that plant management acknowledge that some mistakes have been made, but stress achievements, the difficult competitive realities and that problems can best be solved by working directly with one another.

• Subsequent meetings usually deal with such subjects as the facts concerning union representation, including: the realities of the lengthy negotiation process; the meaninglessness of union promises; the possibility and impact of strikes; information about union dues, fines, and rules and regulations; and any helpful strike and election information. Communication vehicles and source materials that we might recommend to underscore these points include: guarantee coupon books, which employees are encouraged to attempt to get organizers to sign to enforce their promises; copies of all or portions of the relevant union constitutions, bylaws, financial reports and court decisions reflecting the applicable union's efforts to enforce its fines; a collage of newspaper accounts of union strikes, violence and corruption; videos, flip charts and other visual aids; and a shopping cart full of food representing a year's worth of union dues – which a unit employee may win during a drawing held after the election. Obviously, the use of any or all of these tools must be carefully considered and fully explored with the management team. Their effectiveness depends upon many factors – most notably, the issues, the union and the work force culture.

• Ongoing Counsel
  Usually, throughout the campaign we meet individually with local managers and supervisors to monitor their efforts and effectiveness and the campaign's progress, to answer questions and to provide ongoing guidance, both generally and with respect to developments as they unfold. Naturally, written communications in the form of letters, Q & As and supervisor fact sheets are utilized as well. However, it is critical that the personal touch always be maximized and that written communications primarily be used to form a basis for dialogue.

• 25th-Hour Speech
  We normally recommend that management hold its final, captive audience campaign meeting a day or two before the election. This talk underscores the campaign themes and, among other things, stresses successes/benefits that have been accomplished by working directly with one another and without dues or the risk of strikes, reminds employees that negotiation is a two-way street, the results of which no one can predict or guarantee, asks for a chance to complete the job of making the operation the best that it can be, points out that unions create barriers that reduce efficiency and impair communication and teamwork and mentions that there will always be a union around that is ready to take their hard-earned dues money in the unlikely event that they ultimately believe they need one.

• Post-Election
  After the election, we meet with management to discuss all issues that were raised in the campaign and how they will be addressed. We thoroughly review the compensation and employee relations program and discuss necessary and desired improvements in the context of what is practical. If the employer desires that we do so, we return six to eight months later to review the employee relations situation for the purpose of avoiding another union organizing effort.