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Overview

Attorneys in this area serve as advisors and represent companies and individuals arising out of labor and employment disputes. The “labor” side deals with union issues, advising companies on avoiding unionization of their workers, negotiating collective bargaining agreements, administering labor contracts, and litigating issues arising from union issues, including cases alleging unfair labor practice charges. On the employment side, attorneys advise companies on day-to-day employment issues, draft policies and procedures, develop and sometimes conduct trainings, draft employment and separation agreements, and litigate cases dealing with employment issues—including charges of discrimination before the EEOC or similar state agency or via individual suits. L&E law relies heavily on state law, so many firms in this area are local, but there are—of course—larger firms who focus on this area. L&E attorneys are well situated to go in-house because every company, no matter the industry, deals with labor and/or employment issues and nearly every in-house department includes one or more attorneys who have practiced in this area.

Featured Q&A's
Get an insider's view on working in Labor & Employment from real lawyers in the practice area.
Elena Baca, Partner and Global Chair
Paul Hastings LLP

Describe your practice area and what it entails.

With employment law being a core practice area since the firm’s founding, Paul Hastings is a national market leader for complex employment law issues. The firm regularly secures successful outcomes through dispositive motions, at trial or on appeal.

As the chair of Paul Hastings’ Global Employment Law department, I have the honor to collaborate and lead one of the most impressive groups of employment attorneys in the nation that is singularly focused on serving its clients. We are known for our thought-leadership role on evolving, timely, and cutting-edge legal issues related to employment. My practice ranges from advising on employment issues impacting the C-suite to complex, high-profile litigation and class actions asserted against some of the most recognized companies in the world. “Complexity” can mean many things. At times, it means the sheer number of plaintiffs (certified or potential classes consisting of thousands of people). On other occasions, it means we are addressing unsettled areas of law—for example, navigating the COVID-19 legislation as it was drafted and implemented. It could also mean the sheer amount of potential liability—or potential associated negative press—that may render the matter complicated and require a multifaceted approach.

What types of clients do you represent?

My clients include talent agencies, entertainment companies, web-based services, online social media and networking platforms, video game developers and publishers, financial institutions, medical technology and research companies, law firms, public utilities, major manufacturers, and leading consumer brands. Specifically, some of my key clients include Activision Blizzard; Creative Artists Agency, LLC; Caesars Entertainment; Dollar Tree; Family Dollar; Facebook; Gilead Sciences; Goldman Sachs; Live Nation; Mattel; Montage Resorts; Pacific Gas & Electric; and Ticketmaster.

What types of cases/deals do you work on?

I work on company-critical legal issues. While much of my time is spent as a trial attorney—averaging at least one trial/arbitration that goes to verdict annually—I also represent clients in regulatory proceedings. The substantive breadth of my practice includes collaborating with company leadership and in-house counsel as they address EEO issues and claims, whistleblower/retaliation claims, and wage and hour claims, both on individual and class bases. Additionally, I am frequently called upon to turn around cases after significant motions have been lost or mishandled by other law firms, particularly when cases are headed to trial.

How did you choose this practice area?

My practice area chose me. I practiced general litigation when I graduated from law school and then proceeded to a federal court clerkship. When my clerkship ended, I returned to private practice and again focused on general litigation. Sometime after my clerkship ended, I joined Paul Hastings. While I began in Litigation, I found I was most interested in employment law and the area provided me with the most opportunity. I requested (and was permitted) to join the Employment department. This opportunity, to join an employment practice led by some of the most accomplished practitioners in the field, changed the entire course of my professional career.

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

In prior years, my typical day was focused on moving my various litigation and arbitration matters forward. This would include conferencing with my team, developing strategy, monitoring progress, and looking ahead to major milestones in the litigation. On other days, my time might be more focused on client meetings and interactions. Finally, as the chair of the Global Employment practice, I find ways to stay current on emerging areas of the law and focus, with others in the Employment department and the firm, on how best to approach and serve the legal market.

This year, with the rise of COVID-19 globally, our practice shifted to primarily an advice and consultation practice. Since March 16, 2020, when the first shelter-in-place orders were issued, my day-to-day consisted of whatever employment issues were triggered by the pandemic. We immediately mobilized a cross-functional COVID-19 Response team. We advised clients regarding workplace safety; employee education; workforce planning; evolving government orders and legislation, as well as their likely interpretation and application; and protection against potential COVID-19 litigation.

While the COVID-19 pandemic continues to present novel issues—including issues related to the eventual return to work—courts and arbitrators are again moving disputes forward. Thus, at present, my typical day is starting to return to its pre-COVID-19 pace and focus, but COVID-19 and its related workplace complications will continue to present themselves.

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

I recommend taking an Employment Law or Labor Law course in law school. Advanced Civil Procedure and Legal Writing and Analysis courses are also beneficial. Becoming proficient in legal research is a must. In addition to Lexis and Westlaw, there are newly evolving AI research tools and data forensic tools being used more frequently in the practice of law. Someone entering the practice of law should become familiar with the tools and their functionalities and be prepared for the practice of law to integrate more technology as it looks to secure more efficiencies. I also recommend developing public speaking skills, especially for those interested in labor and employment. Attorneys work in teams, so everyone on the team must be able to effectively communicate to move the overall project forward. No matter what practice area someone is entering into, it is important to be good at logistics and task management. New lawyers should understand how to break apart an entire process into steps—delegating, communicating, and keeping tasks moving.

What are some typical tasks that a junior lawyer would perform in this practice area?

Junior associates are responsible for a wide range of tasks throughout the entire litigation process, starting with initial fact investigation (scheduling and conducting witness interviews, document collection, and review), research, and preparation of responsive pleadings. Within the discovery phase, junior attorneys are responsible for preparing initial drafts of discovery requests and preparing for depositions (including document review and preparation of outlines). Junior lawyers are also heavily involved in motion practice, including performing legal research and preparing initial drafts of briefing. Even at the trial phase, junior associates are involved as part of the trial team and may be responsible for preparing witness outlines, researching for briefs, and assisting with preparation of trial motions. If a junior associate wants to bolster a particular skill or have a particular experience, all they have to do is ask.

What kinds of experience can summer associates gain in this practice area at your firm?

The summer program within the Employment Law department is an immersive program that previews the type of work that associates can expect when they start at the firm (e.g., legal research and writing, fact investigation, document collection and review, etc.). In addition, there is a heavy emphasis on observational learning during the summer, including opportunities to attend depositions, mediation, court hearings, and even trials. Summer associates also participate in mock litigation work (e.g., depositions) to practice these skills on their own. Social events are also built into the summer program to allow new associates the opportunity to meet and get to know the department.

In what ways has the coronavirus pandemic affected your practice? How have you adjusted to lawyering in the wake of COVID-19?

From the substantive perspective, COVID-19 has changed my typical day-to-day. During the beginning stages of the pandemic, courts were closed, which meant that all litigation moving forward was put on hold. I had to be nimble and swift by learning about the epidemiology of the virus, how it might be transmitted, and, in turn, how that would impact someone’s ability to be in the workplace. I studied and tracked legislative activity, proposed and passed, to better advise my clients on what they might expect in terms of assistance and obligations stemming from COVID-19. Much of the activity was driven at the state (rather than federal) level. This meant a lack of consistency—something that makes operating a business more challenging.

From a functional perspective, my teams and I now rely more heavily on technology to stay connected. Fortunately, the firm was already technology focused, with laptops issued and office phones and video cameras available for home use, as well as a number of applications that allow for video conferencing with clients and teams. We rely on our technology heavily to stay connected as a team and a firm.

What advice do you have for junior lawyers in keeping on top of complex labor and employment laws and the changes to these laws?

Notably, the largest line item in a company is typically labor and employment expenses. Approximately 60 years ago, there were very few claims that an employee might be permitted to bring against an employer. They might bring a claim for breach of contract, but the employment relationship was not as highly regulated as it is today. As employment law evolved, Paul Hastings became the industry leader. With that history in mind, it is important for junior lawyers to understand the evolution of labor and employment law—how it developed and where it is going. It is important to stay informed and sensitive to the technological, social, and political influences that affect the degree to which the workplace may be regulated, as well as the evolving concept of what work and/or the workplace is. My advice for junior lawyers is to subscribe to legal publications cataloging recent employment trial and appellate decisions and to track proposed and passed legislation. The more you know about the evolution of employment law, the better able you will be to understand the current state of the law as you walk in the door on your first day of work.

Elena Baca, Partner and Global Chair of the Employment Law Department

Elena Baca is the global chair of the Paul Hastings Employment Law department. Elena’s litigation practice is primarily focused on employment-related issues, such as employee mobility, discrimination, wage and hour, and whistleblower issues. An experienced trial lawyer, Ms. Baca has established an impressive record of defense verdicts and arbitration wins representing a wide variety of corporate clients. She is considered a “go-to” employment lawyer for many large employers with high-profile disputes involving high-level executives and contentious high-stakes litigation (including class action claims). Her clients include talent agencies, entertainment companies, web-based services, online social media and networking platforms, video game developers and publishers, financial institutions, medical technology and research companies, law firms, public utilities, major manufacturers, and leading consumer brands.

For or more information about Elena’s practice, please refer to: https://www.paulhastings.com/professionals/
details/elenabaca.

Dianne Baquet Smith, Partner • Matthew Tobias, Partner
Sheppard Mullin

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.

Dianne Baquet Smith, Partner, and Matthew Tobias, Partner—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.

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