The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Aaron Agenbroad, Partner—Labor & Employment
Aaron Agenbroad serves as partner-in-charge of the San Francisco office and has represented companies in labor and employment disputes for more than 20 years. His practice includes all aspects of labor and employment law, with a focus on representing corporate clients in complex labor and employment disputes.
In the employment arena, Aaron’s practice includes litigation of California wage and hour class actions and FLSA collective actions; California discrimination cases under FEHA and CFRA; and federal discrimination cases, including ADEA, FMLA, ADA, and Title VII claims. Aaron has experience with all phases of litigation and has tried multiple cases to verdict in both bench and jury trials. He also regularly counsels employers in employment matters, including reductions in force, employee terminations, FMLA and CFRA issues, and EEOC and FEHA charges.
In his traditional labor work, Aaron’s experience includes representation of management in labor arbitrations in the telecommunications, health care, refining, and manufacturing industries. He also has represented clients in NLRB unfair labor practice proceedings, led collective bargaining negotiations, and worked in defending union-organizing campaigns.
Describe your practice area and what it entails.
I am a management-side labor and employment lawyer in the true sense of those terms (i.e., I represent large companies in all aspects of both employment and traditional labor issues and disputes). The largest part of my practice involves the defense of companies in lawsuits alleging wage and hour claims, discrimination, harassment, and other violations of state and federal law. My practice includes all aspects of litigation, including trying multiple cases to successful defense verdicts in both bench and jury trials.
I also counsel companies on compliance with the ever-changing landscape of municipal, state, and federal laws governing the hiring, supervision, management, and termination of employees. Additionally, I work with companies on their traditional labor issues involving unionized employees. Unionized work environments present an additional overlay of rules and processes that an employer must follow in connection with union-organizing efforts, collective bargaining, contract enforcement, and unfair labor practice proceedings before the National Labor Relations Board.
What types of clients do you represent?
I traditionally represent large companies across a variety of industries, including retail, oil and gas, technology, manufacturing, health care, and media. Our clients include well-known Fortune 500 companies and other notable organizations.
What types of cases/deals do you work on?
In employment litigation, I counsel clients on both large-scale class actions and smaller cases involving individual employees. One recent—and representative—class action case involved working with a clothing retailer concerning the legality of its commission pay plan and pay practices in defense of wage and hour claims alleged on behalf of all of its sales associates across the state of California.
A recent, smaller case involved defending a retailer against claims of race discrimination when it terminated a territory manager for poor performance and dishonesty. We took that case through trial and were thrilled to receive a full defense verdict on all claims. It was particularly rewarding because our investigation had demonstrated that the company had not done anything wrong and was fully justified in terminating a bad employee. These issues can be very personal for the managers involved, so it was great to see the verdict come out the right way.
On the traditional labor side, I have recently been helping a media company with its unionized newsroom reporters at newspapers across the country. This matter has involved assisting the company with the initial union campaign and election process, working with the management team on negotiating an initial collective bargaining agreement that still provides the company with the operational efficiency and flexibility it needs, and working through disputes with the union through both NLRB and arbitration processes. You get the opportunity to really learn the business of various companies and partner with them to find options that allow for their continued success.
How did you choose this practice area?
I really liked how closely connected it is to business. I was a business administration major in college and originally intended to get an M.B.A. That later shifted to a J.D./M.B.A. and ultimately shifted again to just getting my law degree. So once I landed at law school, I was very interested in exploring practices and tried projects that related to business in a number of areas.
Labor and employment resonated because it’s very people oriented—what people do for a living is very central to many people’s identity. You could also easily see the companies’ interests—companies need to be able to manage their workforce and get rid of poor performers. And I liked being able to help companies continue to prosper and grow as they managed through these issues.
While I am not helping companies with their marketing, accounting, or other business functions in the way I thought I might when I was in college, I am assisting them with their human resource and personnel issues, which are just as critical to their success.
What is a typical day like and/or what are some common tasks you perform?
I’m not sure if there is a “typical day,” but a recent two-week window provides a pretty fair sampling. In the first week, I tried a three-day arbitration in Los Angeles involving claims that sales associates had been misclassified and, therefore, were entitled to unpaid overtime.
That matter was followed by a day advising a handful of companies about financial options for wage proposals, WARN Act obligations in connection with a restructuring, and potential changes to a commission plan.
That action was followed by a day of negotiations with a nurses’ union working to establish an initial collective bargaining agreement for a large health care institution. The following week, I returned to Los Angeles for depositions in a disability discrimination case filed in California state court. I then went to eastern Oregon for a mediation in a federal court case alleging violations of the Family and Medical Leave Act.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
I think classes in employment law and traditional labor law can be helpful. However, you learn even more through practice, especially since many of the substantive employment laws will vary by state. I also think any practical experience a student could get would be beneficial, through either a clinic or an internship or externship with the EEOC, NLRB, or other agency or organization. A basic class in or exposure to human resources would be useful as well.
What is the most challenging aspect of practicing in this area?
I am a defense-side labor and employment lawyer, which means that I only defend companies in employment disputes. I have found that many people, including those who end up on juries, fail to recognize that these large corporations are made up of people who work very hard each day to make fair and lawful decisions. Companies try to treat their personnel well. I think that in too many instances, people default to giving the benefit of the doubt to the individual employee and view the company as a cold and heartless Goliath. It’s too bad because that’s just false.
What do you like best about your practice area?
I’ve always appreciated the variety that labor and employment provides, both in the type of matters that you get to handle and their size. As my two-week snapshot shows, you get to do a lot of very different things. From advising clients on plant closures to trying arbitrations and cases to bargaining with unions for solutions that work for both the company and the employees, no two weeks look the same.
The practice also includes large class actions that make national news as well as single-plaintiff cases. As a result, you get diversity of responsibility very early in your career. The economics of single-plaintiff cases lend themselves to the staffing of one partner and one associate. That means that, as a second- and third-year associate, I received opportunities with depositions and some arguments. I appreciated that responsibility as an associate and value it now as a developmental opportunity for the associates with whom I work.
What misconceptions exist about your practice area?
I think the biggest one is that, as a defense lawyer, you will be defending the “bad guys.” When I first interviewed with Jones Day, I was asked how, as an African American man, I would deal with defending a manager or company accused of racial discrimination. What I have learned is that, in more than 20 years of practice, I have yet to be asked to defend someone that my investigation has shown to be a bad actor.
In those few instances where I have determined that a manager has sexually harassed someone or discriminated against someone on the basis of race, age, or gender, the company ends up firing the bad actor and writing a significant check to the plaintiff. The cases you end up fighting to the end are the ones where the company was wholly justified in the actions it took.
What are some typical tasks that a junior lawyer would perform in this practice area?
Because of the range of cases our Labor and Employment practice handles, our junior lawyers are able to perform a broader spectrum of activities than most other practices offer. Certainly legal research and the writing of legal memoranda or motions will be part of what junior associates do.
In addition, they will directly conduct fact-witness interviews, take and defend depositions in both single-plaintiff and class action cases, handle some court appearances, and assist with mediations. On the traditional labor side, our junior and mid-level associates are able to first-chair discharge cases, where they are given the opportunity to make opening statements, conduct direct and cross-examination of witnesses, and either orally close or draft a post-hearing brief. It was great to have these stand-up experiences early as an associate. I think our practice provides more of them—and provides them earlier—than most.