Staving off litigation in new regulatory climate: An employment law expert weighs in
There is a lot going on in the labor and employment world, says Denise Keyser, practice leader for the labor and employment group at Ballard Spahr.
Denise Keyser was recently named practice leader for the labor and employment group at Ballard Spahr, which encompasses 32 lawyers in 10 offices. She has more than 30 years of experience representing employers in a variety of industries, from health care and education to chemical manufacturing, food production and distribution, and public safety. During the pandemic, Keyser and her colleagues have been coping with a surge in coronavirus-related employment litigation, including suits protesting employer vaccine mandates and disputes related to employers refusing to permit or extend remote work arrangements. Working from the firm’s Mount Laurel office, she expects the coming year will see more employers focus on heading off litigation with projects such as revising potentially overbroad restrictive covenants and adding internal complaint policies.
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Keyser spoke with BenefitsPRO sister site New Jersey Law Journal about practice trends and what she sees coming in the near future. Here are her answers, edited for length and news style.
What sort of matters do you deal with in your practice?
Management-side labor and employment work falls broadly into three buckets: First, traditional labor law matters arising under the National Labor Relations Act and generally, but not always, involving unions or union organizing. This work includes collective bargaining negotiations, labor arbitrations, and defending unfair labor practice charges before the National Labor Relations Board and its reviewing courts.
Second, litigation spanning the gamut of other employment-related matters. These matters include wage and hour, equal pay, discrimination, harassment and hostile work environment, retaliation and whistleblowing, and restrictive covenant litigation before federal and state courts and before administrative agencies such as the Equal Employment Opportunity Commission, similar state agencies, and federal and state departments of labor.
And third, counseling and internal investigations. This work includes writing and reviewing policies and employee handbooks. It involves providing advice on day-to-day issues such as discipline, terminations, leave and accommodation requests, reductions in force, voluntary severance/separation plans, and closing and opening new facilities. And it includes management training in such areas as harassment and diversity and inclusion.
Ballard’s labor and employment practice includes matters in all three of these categories. My personal practice is divided about evenly among them.
In addition, especially in light of the pandemic, I should mention my OSHA work as well. I usually include that in buckets 2 and 3, but this year it bears special mention. Since President Biden’s inauguration, OSHA has been much more active on COVID-19.
What’s the biggest employment law litigation trend you are seeing right now?
There is a lot going on in the labor and employment world. It is hard to single out just one trend. Let me give you three.
First, restrictive covenant litigation has sharply increased in recent years. Although there are moves afoot in some states across the country, including New Jersey, and on the federal level to limit the use of restrictive covenants, such as noncompetes, we nevertheless have seen more lawsuits recently and expect to see this continue.
As our economy becomes more knowledge-based, employers increasingly seek to protect their most important asset: knowledge. And employees who have that knowledge seek to leverage that to seek better opportunities elsewhere. That’s a recipe for litigation.
Second, whistleblower and retaliation claims have been on the rise for many years. It is the most frequent cause of action in EEOC filings. And New Jersey’s Conscientious Employee Protection Act is one of the most expansive in the country.
Generally, these cases involve employees complaining that their employers have retaliated against them for internal complaints and other instances where they have exercised their legal rights. The continuing COVID pandemic has only increased these types of claims, as employees allege adverse employment actions in retaliation for their having expressed concerns about workplace safety.
Third, we are seeing and will see more COVID-related litigation beyond whistleblower and retaliation claims. We are seeing claims attacking employer vaccine mandates, which have been almost uniformly unsuccessful. We are also seeing claims relating to employers refusing to grant continued telework accommodations to employees, and claims for religious and medical exemptions from vaccine mandates.
What issues will be top of mind in 2022?
The litigation trends that I already noted will continue and will generate work for labor and employment lawyers in New Jersey and across the country. But businesses have the opportunity to be proactive and address some of these issues ahead of potential litigation. For example, reviewing and revising potentially overbroad restrictive covenants now will allow employers to protect the information they need to protect and put them in a better position for us to defend any lawsuits that may develop. As another example, adding an internal complaint policy and procedure to an employee handbook may go a long way in minimizing and defending retaliation claims.
The Biden administration is bringing significant changes to many areas of my practice. Here are two examples. The NLRB now has a majority of Democratic appointees and is poised to return to many of the decisions and policies advanced by the board under President Obama. The new general counsel to the NLRB (in effect, the chief prosecutor for cases coming before that agency) has announced new enforcement priorities, and they are far more favorable to unions and employees than under President Trump.
Topics the NLRB and/or the new general counsel have already flagged include student-athletes and grad students as employees entitled to the protection of the NLRA, meaning they can engage in collective action, including forming unions, and a more relaxed test for finding that two, separate businesses are joint employers of certain workers, such that one may be liable for the NLRA violations of the other, and that both can be required to bargain with a union over terms and conditions of employment.
We expect that the Biden NLRB will return to a greater focus on applying the NLRA to nonunion workplaces. The NLRA protects collective action in both union and nonunion workforces and, under President Obama, the board issued many decisions striking down various workplace rules and policies that were found to chill rights protected under the NLRA. We expect to see an uptick in that type of litigation before the NLRB.
What are the major threats to your practice, and what are you doing to adjust?
The labor and employment practice is very resilient; it’s an area of the law that is never quiet. At times, litigation may be trending upward, and at other times, counseling clients, new laws, or government initiatives may take up the majority of our time.
Political winds generate new or renewed emphasis on different statutory schemes, and often result in brand-new legal obligations for businesses.
Social movements impact the workplace as well and often raise awareness of employee rights, or help create new ones. It’s this very resilience that may create the biggest concern.
Increasingly, companies want one-stop shopping for labor and employment services across larger regions or the country as a whole. But I got into this practice representing smaller and regional employers, and I want to continue serving clients who’ve been with me for more years than I want to remember.
Walking the line between being big enough to service our largest clients and flexible enough to stay with smaller businesses that have relied on us for years is an undeniable challenge. I believe we can meet this challenge because we have both deep roots in New Jersey and the resources and broad perspective of a large, national firm.
How did you gravitate toward labor and employment law? Who had the greatest influence in your career?
Most days I love what I do — and I wouldn’t be doing it but for my father and baseball great Tom Seaver, both of whom passed away last year.
My father was a high school teacher. He taught French and Spanish. He was on the negotiating team for the teacher’s union for many years. I was an indifferent French student, but was absolutely riveted by his stories of the give-and-take at the bargaining table and the behind-the-scenes strategy sessions among committee members. When I decided to be a lawyer, I knew that I wanted to be a labor lawyer. (It’s true, as a lawyer representing management, I’m on the opposite side from Dad, but that’s a story for another day.)
Where does baseball come in? My father was a diehard New York Mets fan. When I was growing up their best player was Hall of Fame pitcher Tom Seaver. Dad and I would watch almost every game he pitched and talk about what went into being great at your chosen profession.
I’m not suggesting I’m a Hall of Fame lawyer and I’ll probably never learn to speak French, but I wouldn’t be any good at all without Dad and Tom. Of course, I’ve been helped along in my career by many senior—and some junior—lawyers, but that list is far too long to print.
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