When the economy soured, the practice of labor and employment law exploded.

Corporate law firms responded by adding attorneys to their labor and employment practices to defend lawsuits waged at employers. Plaintiff firms, too, saw their caseload increase as laid-off workers initiated discrimination and employment-related lawsuits against their former employers.

Now, another event appears likely to make the legal specialty even more in demand — healthcare reform.

“All of a sudden, health insurance is an employee benefit that’s being mandated,” says Cheryl Wilke, a partner with Hinshaw & Culbertson in the firm’s Fort Lauderdale office. “Employers see it as something that increases their overhead and they want to know if there’s any way around it.”

Benefit questions

Wilke says clients such as restaurant owners, car dealers and employers with commissioned sales staff are concerned, and are turning to her for legal advice. They’re asking questions about how to avoid having to pay the newly required health insurance benefit such as: “Can I break apart my business to have less than the statutory number of employees? Or, “Can I make my employees independent contractors?” So far, she’s been telling clients that most of their ideas for ways around the mandated provision for health insurance won’t work. “I tell them not to overreact to something that may be watered down.”

Kelly H. Kolb at Fowler White Boggs in Fort Lauderdale says there is speculation that labor lawyers could get a boom in business as companies tweak their benefits plans to comply with the complex healthcare law.

“There is discussion of a component that allows employees to sue for not providing benefits they are supposed to be given.” But he says it’s still too early to know how healthcare reform will affect employers and what role labor lawyers will play.

Perplexed clients

For now, Mark Neuberger, of counsel with Foley & Lardner in Miami, says his clients, mostly human resources directors, are perplexed and looking to him for general legal guidance on healthcare reform. “They want to know what further change is likely and what this means for them.”

Even without the new legal business the Affordable Healthcare Act could generate, labor lawyers say they are seeing more employment cases involving overtime disputes, prevailing wages complaints, discrimination and retaliation charges.

Attorneys say much of their legal work comes from a dramatic increase in workers suing employers under federal and state wage and hour laws. Last year, 7,006 wage-and-hour suits, many of them class actions, were filed in federal court nationwide, nearly quadruple the total in 2000.

Florida’s courts are ranked among the highest in the country for the number of filings of Fair Labor Standard Act (FLSA) cases involving unpaid overtime. Not only are FLSA lawsuits on the rise, but the plaintiff’s bar has had a penchant for turning these suits into class action complaints.

Kolb says a preponderance of relatively highly skilled workers employed by healthcare businesses in Florida such as hospitals and elder care facilities, coupled with aggressive regional plaintiffs’ attorneys, has made for a “perfect storm” for such litigation here.

Suits rising

In addition, Kolb who has defended employment claims for over 20 years, says as employers expect more efficiency from existing staff, overtime lawsuits are rising. Combine that with the fact that lawyers who initiate these lawsuits for workers are entitled to legal fees under the Fair Labor Standards Act and Florida judges find their dockets flush with these cases. “You might have $1,000 in lost wages and $30,000 in legal fees,” Kolb says.