An overview of modern employment practice
Labor and employment practice as we know it was born during the turbulent 1960s. While the United States was invading Vietnam, back home battles were being fought over social and political issues, including women's rights, free speech and the growing anti-war movement. In 1964, in the midst of these developments, Congress passed Title VII of the Civil Rights Act, which would become the foundation of the equal employment opportunity movement. Title VII prohibits an employer from discriminating against an employee or applicant with regard to hiring, firing, compensation, terms, conditions or privileges of employment based on a "protected characteristic." Protected characteristics under Title VII include race, color, sex, national origin and religion. Federal statutes modeled after Title VII brought additional characteristics under the scope of federal protection. For example, in 1967, the Age Discrimination in Employment Act (ADEA) added age to the list of protected characteristics, and in 1990 the Americans with Disabilities Act (ADA) added physical and mental disabilities.
Following the federal government's lead, nearly every state adopted fair employment practice statutes modeled after Title VII. In fact, some state laws now go beyond Title VII and provide more sweeping protection for employees. California's Fair Employment and Housing Act (FEHA) incorporates additional protected characteristics (such as medical condition and marital status) and is generally more protective of employee rights than the federal statutes. Title VII also established the Equal Employment Opportunity Commission to enforce the provisions of these federal anti-discrimination laws.
Litigation, counseling and transactional work: the basics of employment practice
For many attorneys, employment practice is litigation-focused, and these lawyers spend much of their time litigating cases under Title VII, related federal laws or their state equivalents. At employment boutiques, many small firms and some large law firms, associates might spend up to 80 percent of their time on litigation-related matters. If you shy away from litigation-oriented clinical courses and hate civil procedure and moot court, employment practice may not be for you. On the other hand, if the thought of litigation gets you excited, there might be no better place to practice than in the employment arena. Employment discrimination cases are some of the most exciting cases around. Hardly a week goes by without a discrimination claim hitting the news or popping up in an episode of The Practice or re-runs of Ally McBeal. Other employment litigation can involve wage and hour violations, wrongful termination, employee benefits, trade secrets and countless other conflicts arising out of the workplace.
Not all employment attorneys are heavy-duty litigators; at some larger firms, employment litigation may be handled by the general litigation department while employment lawyers focus on counseling and transactional work or corporate support. Other employment attorneys on the management side spend a significant amount of time on transactional matters, working with colleagues in other departments like corporate, tax and finance, to advise on the employment- or benefits-related aspects of proposed mergers and acquisitions or to assist in due diligence.
In addition to litigation and transactional work, employment attorneys counsel clients on matters ranging from the benefits for an individual employee to broader issues like layoffs or restructuring. The extent of counseling a particular lawyer engages in will depend on the nature and structure of her firm. Some employment attorneys report that non-litigation counseling can take up to 40 percent of their time; for others, counseling forms a relatively small part of their practice.
The amount of time individual attorneys devote to each of these areas - litigation, transactional work and counseling - varies from firm to firm, as well as from associate to associate. Litigation may be the bread and butter for small firms and employment boutiques, but for some large firms with in-house corporate departments, corporate support might play a more substantial role.
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