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2019 DIVERSITY DATABASE UNDERWRITER Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The following is an excerpt from Practice Perspectives: Vault’s Guide to Legal Practice Areas.

Rodolfo R. (“Fito”) Agraz and Gregory C. Cheng,
Shareholders—Labor & Employment

Rodolfo (“Fito”) Agraz has experience helping a broad spectrum of clients with labor and employment challenges. He represents clients in diverse industries during union organizing attempts and litigation before the NLRB, contract negotiation, and labor arbitrations. Additionally, he advises clients on best practices in employee relations and the development of comprehensive labor strategies to preserve the ability to maintain direct relationships with employees. He works with executive leadership and first-line supervisory staff to build a positive working environment. Mr. Agraz is fluent in Spanish and serves as a member of the firm’s traditional labor and diversity and inclusion steering committees.

Greg Cheng has exclusively practiced management-side labor and employment law in California for the past 15 years. As an experienced litigator, Greg has handled hundreds of matters for employers in state and federal courts, during arbitration, and before administrative agencies. Additionally, Greg has significant experience advising and counseling. He regularly partners with in-house legal attorneys; C-Suite executives; finance, operations, human resources, payroll, and benefits professionals; and business owners and private equity groups in providing day-to-day advice and counsel on all facets of California employment and wage/hour issues. Greg is currently the co-chair of the Ogletree Asian-American Attorneys Business Resource Group and serves on the firm’s Client Steering and Credit Guidelines committees.

Describe your practice area and what it entails.

Fito: My practice is traditional labor—representing management in labor relations matters primarily focused on the National Labor Relations Act.

Greg: I have been practicing exclusively labor and employment law for my entire career. In addition to representing management/companies in litigation (e.g., discrimination, harassment, wage and hour violations, etc.), I also provide advice/counsel on a daily basis to many multinational companies on all topics related to employment law. For many large employers, I play a point-guard model where the client comes to me first for all of their employment issues (for any state or any part of the world), and I help to locate the Ogletree attorney with the requisite skill set/experience, as well as expedite the response time (internally) on behalf of the client.

What types of clients do you represent?

Fito: Our firm represents employers, and I am fortunate to work with clients in many different industries, including food manufacturing, transportation, health care, manufacturing, retail, financial services, logistics, telecommunications, and petrochemical.

Greg: I represent a diverse range of clients in terms of size and industry, including but not limited to companies in the retail, technology, food/beverage, pharmaceutical, real estate, and semiconductor fields. Employment laws affect virtually every single employer in some way, so we are fortunate enough in our practice to represent an extremely diverse group of clients.

What types of cases/deals do you work on?

Fito: My work includes union representation election cases processed by the National Labor Relations Board, representation of clients in collective bargaining, labor arbitrations, and NLRB unfair labor practice charges filed against employers by individuals and by labor unions.

Greg: In litigation, I am currently defending dozens of different clients in state and federal court. All of them are in different phases of litigation, with some being more hotly contested than others. I am also involved in a significant number of pre-litigation settlement discussions. A lot of our practice involves demand letters from employees and their attorneys. If these matters do not settle, the next step is typically litigation in court or arbitration.

How did you choose this practice area?

Fito: If I was not a lawyer, I would likely be a human resources professional. I am very fortunate because I entered law school with an idea of practicing in the labor and employment area, and during school, I became convinced that traditional labor was most interesting to me. I would like to say this was very scientific on my part, but it was not. Growing up in the 1970s I was a bit of a car enthusiast, and it appeared to me that the relationship between U.S. automakers and the unions was poor. I was fascinated with that human dynamic, and that interest continues more than 30 years later.

Greg: In law school, I had planned to be a mergers and acquisitions attorney. However, during law school, I interned in the legal department of a major pharmaceutical company. One of the cases I worked on involved a claim of harassment. I thought it was interesting because employment law involves the human element, and these cases always live in the gray area. We rarely have smoking guns in a typical harassment or discrimination case. After law school, I clerked for Judge William F. Highberger of the LA County Superior Court. Judge Highberger formerly practiced as a partner in the labor and employment department of one of the largest private law firms. I was fascinated with how Judge Highberger looked at the issues in employment cases. As a clerk, I was exposed to almost every area of civil law, and the facts in employment cases were always more relatable and interesting than the non-employment cases. After my clerkship, I was hired by a boutique employment defense firm and have never looked back.

What is a typical day like and/or what are some common tasks you perform?

Fito: Part of what I love about this area of the practice is there really is no typical day because many of the matters I work on come up suddenly. Many times, our firm or I will be interviewed by a potential client only after a labor issue has arisen. This specialty requires a significant amount of travel, as it tends to be location specific—whether that is providing legal advice to a client on how they can legally communicate with their employees regarding unionization, representing a client in a labor arbitration, or representing a client in collective bargaining. All of these tend to be location-based activities.

Greg: A typical day for me consists of many phone calls with clients regarding advice on particular employee issues or potential claims. I help clients draft or revise internal documents, contracts, or other writings, which would require legal scrutiny. I am also communicating with clients regarding active litigation, strategy development, or analysis of various issues involved in a case. In addition, I am communicating with opposing counsel on settlement discussions or discovery disputes. In our practice, we write a lot, whether it is legal analysis in a formal brief, an email to a client, or a presentation on writing legal strategy (internally or externally) on specific issues.

What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?

Fito: First and foremost, it is important to develop a deep understanding of the law in this area. Since it is so specialized, clients expect you to have a high level of knowledge specific to the NLRA. In law school, you should seek out any labor class and arbitration class available and pursue independent study with a professor who is also a practitioner. I also recommend that you focus your early career on developing trial skills, as the discipline you gain from trial work will serve you well in a labor career as we tend to try cases. They may be administrative and non-jury, but they are trials. In your CLE, look for any labor topics. You may have to do a bit of digging as they are not as commonly offered.

Greg: For any attorney, I believe that legal writing skills are paramount. Even if you do not immediately work in the employment law space, it is very important that attorneys get repetition in legal writing so that they can hone this skill. Employment law is very much about presentation of facts, or a story, and requires a skilled, persuasive presentation of facts. Additionally, it is extremely important that employment lawyers take the time out—daily or weekly—to stay on top of hot employment topics. Employment law is always evolving, and clients need to have the confidence that you are keeping abreast of the issues coming their way. There are a lot of great litigators out there, but a true employment lawyer cannot build a sustained relationship with their clients without understanding the contours of employment law and how they impact businesses.

What is the most challenging aspect of practicing in this area?

Fito: The most challenging aspect of practicing labor law is the travel demand. It is not for the faint of heart, and you must have the ability to drop and go at a moment’s notice. This can be difficult both professionally and personally. It can also be the most rewarding aspect. If you need an adrenaline rush, this practice is for you.

Greg: Staying on top the new laws and cases, which are coming out on a daily and weekly basis from all jurisdictions and then being able to competently communicate with sophisticated clients on how these different laws impact their businesses.

What do you like best about your practice area?

Fito: I love the constant interaction with clients at all levels of the organization. I have personally learned that I am truly an extrovert, and I need to have people around me in order to breathe. This practice area satisfies that need by the bucketful.

Greg: During good and bad economies, there is always a lot of work in employment law. We are never starved for work. I also like this practice area because it gives you a greater chance to develop a book of business. You do not always have to wait for the next case to be filed to receive work from a client as there is plenty of compliance-related work to keep everyone busy.

What misconceptions exist about your practice area?

Fito: This is an easy one. The typical misconception is that because we represent management, we are opposed to employees or to labor unions. My father is an immigrant. My grandfather was a butcher in a union shop. I love working with employers to make a better workplace. We are all human, and we are not perfect, but working with and counseling employers, I believe, puts me in the best position to improve the working lives of all employees.

How do you see this practice area evolving in the future?

Fito: Much of our practice and training for clients involves advising them on how to effectively communicate. As the workplace continues to evolve—whether through technological advancements that allow us to work from virtually anywhere or through potential changes in manufacturing such as 3D printing—the need to effectively communicate will continue. As we become more and more of a cultural melting pot, I believe those who practice in this area will need to be leaders in inclusiveness and cultural competence.

Greg: Instead of generalists, there will be a lot more specialized lawyers with specific skill sets of knowledge bases. The various practice areas or subject matters are so broad that it does require us to bring in specialists who only focus on one area. One example is in the area of background checks. Once upon a time, we could master California and federal law on the subject. Now, because companies are not just in one state, and they are drawing applicants from all over the globe, we need to involve specialists within the firm who are up to speed on background check laws in all 50 states.