The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Dianne Baquet Smith, Partner, and Matthew Tobias, Associate—Labor & Employment
Dianne Baquet Smith has extensive experience representing management in litigation of wrongful discharge, discrimination, harassment, wage and hour, breach of contract, and other types of employment cases through trial. Prior to joining Sheppard Mullin in 1991, Dianne was senior labor and employment counsel with Sears, Roebuck and Co., where she litigated cases and provided legal advice to facilities in 14 western states. Dianne graduated with an A.B. in Political Science from Stanford University and a J.D. from the University of California Berkeley, School of Law.
Matthew Tobias specializes in labor and employment matters on behalf of employers, including wage and hour violations, employment discrimination, wrongful termination in violation of public policy, and sexual harassment. Prior to joining Sheppard Mullin, Matthew worked for the City of Los Angeles in the personnel department. Matthew graduated with a B.S. in Business Administration from the University of Southern California, and a J.D. from Southwestern Law School.
Describe your practice area and what it entails.
Dianne: I defend management in litigation of employment disputes, ranging from discrimination and harassment to wage and hour and breach of contract. Additionally, I handle high-level investigations, as well as provide strategic advice and counsel regarding sensitive employment matters.
Matthew: I mostly handle wage and hour class action litigation and have spent a lot of time going to trial lately. I also defend employers against alleged suits of discrimination, harassment, and retaliation, as well as handle traditional labor matters involving union contract negotiation, union organizing campaigns, and charges with the NLRB.
What types of clients do you represent?
Dianne: I represent employers of all sizes, from Fortune 100 companies to regional and family-owned companies in California and beyond. A lot of my clients are in the health care space, which includes representation of the largest public health plan in the U.S. I also represent financial institutions, nonprofit organizations, and entertainment companies, including an international satellite broadcaster and a major concert promoter.
Matthew: In addition to the industries noted by Dianne, I also represent professional sports organizations and energy companies, as well as a national retail grocer. We see a considerable amount of union organizing activity in the trucking and waste hauling area, and most of the wage and hour cases I handle are for our hospital and health system clients.
What types of cases/deals do you work on?
Dianne: I work on litigation cases (asserting discrimination, harassment, and whistleblower retaliation claims), that are gearing up for trial. Those cases require court filings and appearances, discovery, and pre-trial submissions. Among others, I have tried a sexual harassment case for a major ice cream manufacturer, a whistleblower/retaliation case for a nonprofit health plan, and a disability discrimination case for a major satellite broadcaster. Recently, in addition to litigation, I have been assisting my clients with high-profile investigations and counseling them on executive personnel matters.
Matthew: Wage and hour requirements are extremely complex, and employers rely on us to guide them through the labyrinth of rules in this area. We take a preventive approach by conducting internal audits and providing clients with day-to-day compliance advice. My practice also includes the defense of employers against large, complex, and potentially devastating wage and hour class action lawsuits. For example, I recently assisted in obtaining a complete denial of class certification of claims involving overtime and meal periods for a hospital client in Northern California. That decision was upheld in a recent appeal. I also handle litigation involving discrimination, harassment, and retaliation. For example, I worked on another exciting case for a sports and concert arena in Orange County where we defended the arena against claims of disability and gender discrimination brought by a high-level executive in a jury trial where we received a victory.
How did you choose this practice area?
Dianne: I came to a point a law school where I knew I wanted to practice civil law. I was then recruited to the NLRB where I started my career as a trial attorney investigating and trying unfair labor practice cases and handling representation matters and injunction proceedings. After a couple of years with the NLRB, I went to Sears, Roebuck and Co.’s Regional Law Department, where I was senior labor and employment counsel. There, I litigated cases in California and counseled Sears facilities throughout the 14 western states. After nearly nine years of working in-house, I wanted to round out my practice by working at a large firm with a strong labor practice—which led me to Sheppard Mullin.
Matthew: I sort of “fell” into an HR job working for the City of Los Angeles in its personnel department. During my time there, I represented the City in grievances and arbitrations involving union-represented employees and was involved in risk management and conducting internal discrimination investigations. It is a funny story about how I was originally introduced to Sheppard Mullin. While working for the City, my supervisor had our team attend a labor and employment seminar to be trained on anti-discrimination laws in order to effectively do our job. The seminar happened to be held by Richard Simmons, a then-and-now-partner with Sheppard Mullin. After that seminar, I decided I wanted to become an employment lawyer. I started night school at my local law school while continuing to work for the City. I was fortunate to summer with Sheppard Mullin and join as an associate after graduation.
What is a typical day like and/or what are some common tasks you perform?
Dianne: One of the largest operating expenses for any business are personnel costs. Similarly, an individual spends most of his/her adult life working. Because of that, the “challenges” we are called on to help solve are often key to the functioning of the business and very emotionally charged. We quickly establish strong relationships with our clients due to the sensitive nature of the matters we handle for them; you truly become their trusted advisor. Additionally, the landscape of our work is constantly evolving with new laws and regulations; even after a litigation ends, you must begin thinking about “lessons learned” and how you can continue to protect your client going forward.
Matthew: I think one of the most exciting things about being a labor lawyer is that there are not many “typical” days. I could start my morning at a hearing, come back to the office to find a voicemail about an emergency situation involving a difficult employee, then transition into writing an opposition to a motion for another client. I am working on anywhere from 20-25 matters for 10-15 clients at a time. The matters range from full-blown wage and hour lawsuits to providing employment advice to clients; there is so much variety in our work—there is never a “dull” moment!
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
Dianne: Take advantage of the clinics your law school may offer to gain experience interacting with and counseling clients. Once you begin your practice, attend local bar association meetings focused on employment law topics. Our partner Richard Simmons is a go-to expert on wage and hour laws, and he puts on a number of great seminars. In fact, we send all of our first-year L&E lawyers to attend. And, hold on to that learning mindset—you never stop learning with a labor and employment practice!
Matthew: Of course I have to recommend Richard Simmons’ seminars. I wouldn’t be a labor lawyer today had I not attended one of his programs. Also, it may seem obvious, but it is important to choose electives that are focused on labor and employment in law school—anything related to labor; class actions; trial advocacy; and negotiation, which is a critical skill, especially in a litigation-heavy practice. You should also excel in writing and civil procedure if you want to be a labor attorney. Sheppard Mullin is great at offering its associates challenging opportunities early on; however, you are only in a position to handle those types of opportunities if you have a strong foundation of the skills mentioned above.
What is the most challenging aspect of practicing in this area?
Dianne: The laws in our field are multi-faceted and constantly evolving. While it is rewarding to have such a close relationship with your client as their trusted advisor, you are who they rely on to keep them abreast of the laws and changes that affect their businesses.
Matthew: As Dianne notes above, the laws are ever-changing—especially in California, and we are responsible for keeping our clients up to date on these niche areas of the law.
What do you like best about your practice area?
Dianne: The work we do is interesting, challenging, and intellectually stimulating. I learn something new with every matter I handle—in all of my years of practice, I have never been bored! The relationships you build with your clients by working “in the trenches” alongside them to help solve challenges that are critical to the success of their businesses are extremely rewarding.
Matthew: For me, it is the tight-knit relationships that you build with your clients because of the nature of the work we do. I enjoy thinking “big picture” about how a situation or regulation can affect my client’s business. You get to know their business inside and out, and come to them as an expert in your field with a deep understanding of theirs.
What misconceptions exist about your practice area?
Dianne: When you are on the defense side representing employers, people have a tendency to think that you are representing the “bad guy.” That is a big misconception; all of my clients truly care about their employees and want to comply with the law and do the right thing.
Matthew: People tend to hear “litigation” and associate that with something that is all adversarial all of the time. However, we do a lot of thought-provoking work, whether it is writing a compelling brief or incorporating an innovative legal concept into our work. There are more ways to do well by your client than battling it out with the other side in front of a judge and jury.
What is unique about this practice area at your firm?
Dianne: I have a unique perspective because I was with a government agency and was a client at one time. At Sheppard Mullin, we staff our matters leanly, which conserves costs for clients and allows associates to get broad and substantive experience early on in their careers. I make a point to introduce associates to our clients from the beginning, which expands the relationship and our service to the client.
Matthew: I think we are an innovative and collaborative group. For example, when a new law comes out that is going to affect our practice, we organize a meeting to tackle the issue and come up with cutting-edge approaches to defending lawsuits. The solutions we come up with can only be achieved by strategizing as a group.