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 thats being mandated, says Cheryl Wilke, a partner with Hinshaw & Culbertson in the firms Fort Lauderdale office. Employers see it as something that increases their overhead and they want to know if theres any way around it.
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. Theyre 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, shes been telling clients that most of their ideas for ways around the mandated provision for health insurance wont 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 its still too early to know how healthcare reform will affect employers and what role labor lawyers will play.
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.
Floridas 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 plaintiffs 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.
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.
Neuberger of Foley says its not only the actual suits providing legal work. More companies are contacting their attorneys on the front end, to ensure compliance and avoid getting sued.
At Morgan Lewis in Miami, labor lawyers Mark Zelek and Anne Marie Estevez have seen their caseloads soar with more lawsuits initiated over violations of the Fair Standard Labor Act and the Florida Constitutions minimum wage provision.
There are a lot of plaintiff lawyers who are advertising workers rights to overtime and drumming up business, Zelek explains. These cases can be expensive for employers who choose to fight them, Zelek says. Most often, employers settle or cases are decided on summary judgment without going to trial.
Kelly Amritt of the Law Offices of Robert Rubenstein in Miami is one of the increasing number of lawyers in South Florida who initiate suits on behalf of workers. Most of her clients are service personnel waiters, bartenders, line cooks and even managers. Amritt says most of the lawsuits she files are against employers failing to pay required wages, or for misclassifying managers as exempt and failing to pay them overtime. It can be hard to prove but we use the job description and witness testimony.
At the same time, claims of employment discrimination are at an all-time high. In a tough job market, more and more workers particularly terminated workers are accusing their employers of discrimination. The Equal Employment Opportunity Commission reported that 2011 saw the highest level of new discrimination cases ever recorded.
Florida ranks second in the country in workplace discrimination complaints filed with the (EEOC). New data for 2011 released by the commission shows that Florida workers filed 8,088 complaints last year nearly 32 complaints filed on average every working day of 2011.
The record numbers of people on unemployment in recent years and the length of time that people have been on unemployment, I believe adds to the uptick in lawsuits filed against former employers, said Truth Fisher, a labor and employment lawyer with Gordon & Rees in Miami.
Court rulings also are affecting the practice of labor and employment law. Florida employment attorneys say they are inundated with retaliation related suits, due largely to a recent U.S. Supreme Court ruling that made it easier for employees to prove retaliation by employers.
Employment attorney Stuart Grossman, a partner at Levine Kellogg Lehman Schneider + Grossman in Miami, spends much of his time giving seminars and coaching clients on preventing lawsuits. Im encouraging them to have more oral communication with employees and to do more follow-up documentation. If its not documented, even if you fire someone for a legitimate reason it becomes he said, she said.
Diane Katzen, a shareholder with Richman Greer in Miami, says the increase in employment-related lawsuits also has generated legal work assisting companies in preparing and revising employee manuals and negotiating separation agreements. Properly written handbooks are a must. This provides guidance to all levels of the organization from top management to the bottom.
Layoffs a factor
From where she sits, Katzen says layoffs are continuing and that ensures more legal work. Recent calls are from higher ranking executives who have employment agreements but want her help negotiating severance packages, she says: Employers may be more open to negotiation because they want release from potential claims. She also represents employers in preparing separation agreements when they are about to terminate high-ranking executives.
Fisher believes the dynamic landscape in labor and employment law will continue to keep this practice area booming.
As the workforce ages, technology advances, and people need (or want) to continue working past the historical age of retirement, we may see a growing number of age-related lawsuits, she says. Employers will need to be wary.