On-the-Job Training

Skoler, Abbott & Presser Helps Employers Navigate Legal Minefields

Employment litigation was a lot easier a generation ago.
“In the late ’70s and early ’80s, the courts started looking for exceptions to employment at will,” said Ralph Abbott, a partner with Springfield-based employment-law firm Skoler, Abbott & Presser, referring to a company’s right to fire someone for any reason. “Prior to that, when somebody sued a company on an employment matter, you went to court and said the magic words ‘employment at will,’ and then it was over.”
However, the regulatory landscape surrounding employment law has changed dramatically since Title VII of the Civil Rights Act of 1964 barred discrimination on the basis of sex, race, color, religion, and national origin. The evolution of that law, and new protections under the Americans with Disabilities Act (ADA) of 1990 and the Family Medical Leave Act (FMLA) of 1993, just to name two developments, have significantly broadened the scope of workers’ rights.
“Now, if an employee feels they’ve been treated unfairly and looks around for a reason to file a lawsuit, it’s pretty easy to find one,” said Susan Fentin, another partner at the firm.
“It’s just become so much more complicated,” added Timothy Murphy, another partner. “You really do need to have the support of a law firm that specializes in this.”
Specifically, Skoler, Abbott & Presser practices only management-side employment law, counting among its clients businesses of all types, from mom-and-pop companies to multinationals. However, its work spans much more than defending companies against worker grievances in court.
“We much prefer keeping clients out of trouble than defending them when they get into trouble,” Fentin said. “With just a 15-minute phone call, we can say, ‘let’s handle it this way.’ It doesn’t always mean we avoid litigation, but they can set themselves up in a better position.”
Abbott explained that the practice is divided into three “buckets.” There’s traditional labor work, such as negotiations, arbitrations, and advising clients on remaining union-free. Another bucket is employee litigation, including actions under the Mass. Commission Against Discrimination and a host of other state and federal agencies. The third area of practice is the everyday work, as Fentin described, of advising clients on the ever-changing world of employment law and how it applies to their companies.
Take wage-and-hour claims, which Abbott called the “lawsuit du jour” in his field these days, with issues ranging from unpaid overtime hours to misclassification of employees as independent contractors.
“The state law changed a few years ago, with triple damage mandatory for any state wage-and-hour violation — even ones that are good-faith mistakes,” Murphy noted. “As you can imagine, as these claims become more lucrative, more folks are looking at these types of lawsuits, so we’ve seen a real spike there.”
The result, Abbott said, is that there’s more risk than ever for employers and their management and human-resources teams, who often don’t have the resources to keep up with how quickly regulations are changing.
“People aren’t born to be managers; they don’t come out of the womb like that,” he told BusinessWest. “They’ve been promoted, usually because of meritorious service, but they need the skills and training to avoid the pitfalls. People just don’t know this stuff.
“That’s where we come in,” he continued. “We see employers as basically well-meaning people trying to do the right thing under difficult circumstances.”
They might do everything right and still get sued, Fentin noted. “All we can do is manage the level of risk and minimize the possibility of a suit to the greatest extent possible.”

Union Labels
Since its inception in 1964, Skoler, Abbott & Presser has worked with employers in the realm of labor relations and collective bargaining, including all aspects of the National Labor Relations Act of 1935.
But that law, too, has evolved with the times. “One major change is that it’s starting to expand the concept of protected, concerted activity into areas where it was never utilized before,” Abbott said. “We’re seeing that they’re poking more into employment relationships than they have in the past.”
Take the brave new world of social media, for example. The National Labor Relations Board (NLRB), which administers labor law under the act, has made several high-profile rulings regarding the right of employees to complain about their jobs on Facebook and other sites.
Abbott cited the term ‘electronic water cooler’ when talking about the Internet and social media. “In the old days, when employees gathered around and moaned and groaned about their supervisor or what the company was going or not doing, they’d do it around the water cooler. Now it’s done online, and that has created problems for employers, who see all their dirty linen exposed to the world.”
The NLRB has stepped forcefully into this new paradigm, ruling on multiple occasions that such speech is protected. “The world has changed, and (so has) the way people communicate; people will say things on Facebook and not realize the implications,” Abbott said — and companies must understand and learn to deal with this reality.
This federal push for expanded workers’ rights comes at a time when only seven in 100 private-sector workers in the U.S. are in a union, Murphy noted.
“The NLRB is trying to establish some relevance in an environment where the standard labor relationship is not as predominant as it used to be,” Fentin added.
Abbott agreed. “We’re not seeing the uptick in union organizing — in New England and other parts of the country — that was expected with the present administration and its pro-labor view,” Abbott said of President Obama’s five years at the helm. “That hasn’t materialized into greater numbers of new members for unions or significant organizing drives, so the NLRB is now looking for relevance; they’re looking to expand their clout in the world.”
That’s evident in the recent strikes of fast-food restaurants by employees looking to significantly increase their wages. “That’s not related to a union,” he said, “but it’s clearly aided and supported by unions that want to pressure the fast-food industry on the wage issue.”
Meanwhile, unions are certainly not dead, Fentin said, which is why the firm continues to offer strategies to clients looking to remain non-unionized. “The manufacturing sector in Massachusetts has obviously shrunk over the years,” she noted, “but a fair number of clients in human-services agencies are now big targets for unions. We’ve had a couple of clients targeted by union-organizing drives.”

Educate and Connect
The firm’s client training goes well beyond union avoidance, however, encompassing seminars and briefings on topics such as personnel policies, sexual harassment, wage-and-hour laws, discipline and documentation, drug testing, workplace safety, and, of course, the broad implications of the aforementioned ADA and FMLA.
“The firm teaches master classes in both of those,” Fentin said. “The FMLA is a complicated statute to administer; it requires a lot of procedural paperwork.”
It also has a higher profile than it used to, she added. “More people are aware of it, and more likely to believe that they were treated wrongly because of their protected class.”
In addition, “we do a lot of training in discipline and documentation to make sure supervisors understand the importance of being fair and having a business-based reason” for firing, she explained. “We have an at-will law in Massachusetts, but, frankly, if you don’t give a good reason, people will feel they’re not being treated fairly.”
The firm’s educational efforts extend beyond its clients, she added. “We also write and edit the Massachusetts Employment Law Letter. That requires us to be constantly on top of what’s going on. It’s really written for the HR professional — it’s not esoteric; it’s written in plain language so anyone can take an issue we’re talking about and apply it to their own situation.”
Fentin said her work sometimes feels more like family law than business law because it often involves people with long-standing relationships, and when someone feels wronged, the process can get messy. “I had a mediation yesterday that failed because the employee wanted her day in court, and wanted to be vindicated,” she recalled. “It can be an emotional relationship.”
Murphy said the firm encourages clients to talk with a lawyer before they make any personnel decision that can lead to litigation.
“We walk through what the options are so the problem doesn’t happen,” he said. “We take a lot of pride in keeping people out of trouble, even though that’s not the most lucrative course. We’re building long-term relationships — we’ve had some clients since the 1960s. We don’t want to have one transaction with a client; we want to understand their business and be a partner with them, to help them thrive without having to worry about litigation or union problems.”
Abbott said a good result often comes down to simply treating people well and keeping the lines of communication open. “Unions aren’t going to get any traction in a company that treats their employees fairly. You don’t have to be the best-paying company in the world, but you do have to be focused on the employer-employee relationship. And that commitment starts at the top of the company.”
Fentin sees much of her role as trying to keep honest business people out of trouble. “All they’re trying to do is run their businesses. They don’t want to discriminate against anybody, and they want to make sure they’re doing things the right way.
“It is expensive if it ends up in court,” she added. “Talk about a drain on management morale, a time drain, a financial drain. It’s not fun. The better route is to develop strategies that keep you out of trouble.”

Something New
From anti-bullying policies in the workplace to regulations regarding the use of smartphones at work, “there’s always something new bubbling up,” Fentin said. “There’s never a dull month.”
Medical marijuana is another one of those new, hot issues, partly because of the rift between state laws, in states like Massachusetts where its use has been sanctioned, and federal law, which still maintains that it’s illegal. For instance, what if someone uses marijuana for health reasons at home, then fails a drug test at work because traces are still in his system?
“We’re still looking for court guidance on that,” she said. “Frankly, these decisions will take a long time to bubble through.”
Yet, such uncertainty isn’t frustrating to Fentin, but gratifying in a way, because she knows that clients have much at stake from such issues, and she and her fellow attorneys at Skoler, Abbott & Presser are equipped to help employers deal with them.
“This isn’t something abstract — I’m talking about people and how to help them keep their jobs and make their businesses more efficient,” she said. “I love my clients; my clients are my friends.”
Abbott had a similar take. “I believe a lot of people think of a company as a logo, a building, a product,” he said. “Our view of a company is of people — it’s managers, it’s HR people, trying to do the best they can under tough circumstances.”

Joseph Bednar can be reached at [email protected]