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74
Legal Focus
JANUARY 2013
Employment and Labour Law USa
eBay Inc. was recently sued by U.S. Justice Department and the state of California for an allegedly illegal agreement with Intuit Inc., a technology company, to not employ former employees. The agreement was said to have instructed eBay’s recruiting staff to dismiss resumes from Intuit employees, which in turn, restricted competition for employees, limiting their access to better employment opportunities. This type of case simply highlights the many potential problems that lie within employment and labour law, and to explore this further, Lawyer Monthly speaks to Michael Grubbs, a labour and employment attorney at Denver-based law firm, Sherman & Howard.
can you briefly introduce yourself and your firm?
Established in 1892, Sherman & Howard is Denver, Colorado’s oldest law firm. The firm now has offices throughout the United States and employs approximately 190 lawyers who serve a broad range of clients, including privately held businesses, multi-national corporations and government entities. The firm’s labour and employment attorneys represent management in litigation involving all aspects of labour and employment law. Additionally, in order to limit lawsuits, we assist employers in crafting workplace policies, procedures and practices that facilitate productive employee relations and thus limit litigation. If litigation arises, we aggressively represent our clients, working with them to develop a solution that will both minimize costs and maximize the likelihood of success.
As a labour and employment attorney based in Sherman & Howard’s Phoenix, Arizona office, I also represent businesses in a broad range of labour and employment-related issues. My primary focus is getting to know my client’s business and culture so that any legal advice given is tailored to my client’s specific needs and conveyed in the way that is most helpful to my client. In addition to guiding clients through the complex issues that arise in labour and employment law, I spend time writing and speaking on legal topics. Most recently, I wrote several chapters for the newly-published Arizona Tort Law Handbook. Finally, a recent selection as a Super Lawyers’ “Rising Star - Southwest 2012” in Employment & Labour Law was particularly gratifying for me given that it was a designation voted on by my peers in the Phoenix legal market.
What are the key types of employment- related cases you deal with?
Among the more prevalent or “key” employment- related cases we defend are cases involving claims of discrimination or retaliation under the Americans with Disabilities Act and Title VII. Claims of misclassification of employees or wrongful failure to pay overtime under the Fair Labor Standards Act continue to affect employers, both large and small. Finally, cases involving employment agreements, including non-compete agreements, non- solicitation agreements, and confidentiality agreements, are always “key” in employment law. At any given time, we are litigating several such cases.
What are the main challenges you face?
Aggressive government agencies that pursue employee-related claims that have little, or no, substantive merit pose a significant challenge to all employers. Enforcement agents for agencies like the EEOC, NLRB, and DOL likely think they are helping employees when they engage in hardline tactics aimed at forcing employers to settle or face costly and time-consuming litigation. However, these actions ultimately impact employees by imposing unjustifiable costs on employers. Another often overlooked cost is the negative impact on both employers and employees when employers are constrained by aggressive agency action to keep employees whose performance would otherwise warrant termination.
When employers are forced to incur these unnecessary expenses, their ability to invest in