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Management Side Labor Practice: Safeguarding Employer Rights

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Management-side labor attorneys practice either in private law firms or in corporations as in-house counsel. Variations in both size and organizational structure of management-side law firms and in-house counsel offices produce diverse practice responsibilities.

Management Side Labor Practice: Safeguarding Employer Rights



The nature and scope of labor law issues dealt with by a corporation's in-house legal staff depend upon a number of factors, including the legal needs of the corporation, as influenced by the number of employees in the corporation; the existence and also the size of the in-house corporate legal staff; and the in-house attorneys' areas of particular expertise and interest.

A large corporation with a large legal staff tends to handle more work in-house. Corporate in-house offices are often structured in a manner similar to that of a large law firm, in that there are separate departments of attorneys specializing in specific areas of law practice. The in-house labor relations department would handle most labor-related legal matters, referring only the more complex labor problems to outside counsel.

For example, management-side labor attorneys' at large firms having more than 50 attorneys often represent a corporation having a legal in-house staff of more than 200 attorneys. The corporation's attorneys handle only the corporation's labor litigation whilst the the in-house counsel handles all of the other more complicated labor-related work.

In contrast, the in-house legal staff of a smaller corporation may not be big enough or specialized enough to handle specific labor law issues. They would instead deal with the corporation's more general legal needs and refer out most, if not all, of their labor relations practice, including contract negotiations, discrimination suits, arbitration, unfair labor practices, and all labor litigation.

Corporations that do not employ an in-house legal staff usually hire a law firm to provide all of their legal representation, including labor relations issues.

In general, while corporate in-house counsel attorneys do vary in the work they refer to outside counsel, private law firms, they all serve as advisors to the management of their company, and thus they assist in policy formulation in most operational areas, including investments, real estate development, taxes, personnel policies, and pension and benefit programs, to name a few.

In private law firms that represent management, the focus and extent of the firm's practice also varies, depending upon the size of the firm and whether it is departmentalized into areas of specialization. In large firms divided into such departments of new associates entering the firm typically rotates through the various departments, eventually choosing an area in which to specialize.

A Washington, D.C., lawyer describes how he chose labor as his area of specialization: his first rotations were in the tax and real estate departments; when he moved into the labor department, represented a hospital in its contract negotiations and collective bargaining with a hospital employees union. He found the work challenging and interesting and subsequently expressed his desire to stop the rotation cycle and settle in the labor relations department. The firm, pleased that he was so enthusiastic about labor relations work, honored his request.

In smaller and medium-sized firms, the practice is often not so specifically divided, nor the initial associate training and supervision so structured. These firms handle a wide variety of legal work, even if they have decided to focus on management-side labor law. The practice areas they tend to handle may include any of those typically found in a general practice, such as domestic relations, civil litigation, and even criminal law.

Clients:

Clients who employ management-side labor attorneys tend to be financial or corporate business organizations, although they can and do include manufacturers, educational institutions, insurance companies, nonprofit corporations, hospitals, restaurants, brokerage houses, banks, municipalities, railroads, and airlines, among others.

Practitioners indicate that, overall, there are no real differences in the nature of the work they perform for different types of clients. For all clients, the basic responsibility is that of representing the client in all aspects of the employer and employee relationship. There are, however, some substantial structural differences among clients which do affect the services they require.

One such difference involves whether the corporation's employees have organized, i.e., joined a union. If they have, the management-side attorney would be involved in the initial election to determine union representation, and then in the collective bargaining with the union-side attorney or representative. The collective bargaining process would result in a contract spelling out all specific aspects of the employer/employee relationship.

Areas typically included in contracts include wages, benefits, grievance procedures, holidays, overtime policies, vacation time, sick leave and educational incentive programs. The contract would be in effect for an agreed-upon period of time. The average life of a contract is three years. Both sides would be governed by the terms of the contract and the management-side attorney would assist the corporation in its administration. The management-side law firm attorney for a non-organized, i.e. non-union employer would be involved in a much less formal labor relations structure. The practice would depend much more on the number of employees and the services provided them by the company.

Some corporations ask outside counsel to establish personnel policies; others request assistance with employment litigation or hearings involving workers' compensation, unemployment compensation, and any discrimination charges.

In contrast to law firm attorneys, who may represent a wide range of clients, in-house counsel represents only one client: the organization by which they are employed. The in-house counsel serves as an advisor to both the upper level management structure and to line management, such as department heads having questions regarding policy, e.g., personnel management might typically have questions related to labor relations.

In recognition of the rapidly expanding role of the lawyer as corporate counsel, and the potentially conflicting interests of the many individuals representing the organization who may be advised by lawyers, the American Bar Association included a separate section dealing with the organization as its client in its 1983 Model Rules of Professional Conduct. Model Rule 1.13 establishes that the corporation, the "entity" itself is the lawyer's client, and directs the lawyer's conduct in situations where the objectives of the individual, e.g., director, officer, manager appear to conflict with the best interest of the corporation.

Services provided by a management-side law firm also differ depending upon whether the client is in the public or private sector. For example, in the public sector, counsel for small towns frequently refer a great deal of labor representation to law firms. Such firms would provide representation in negotiations with public employees' unions. Management-side law firms often represent towns in grievances or suits charging the town with violations of civil service regulations. These regulations govern an employer's conduct as regards hiring, firing, promotions, demotions, holidays, benefits, and so on. All labor management relations must conform to these well-established civil service rules.

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