Goodbye Old Employee Handbook: Denise Keyser explains how employers are trying to avoid litigation in the new regulatory climate

Denise Keyser was recently appointed Practice Leader for the Labor and Employment Group at Ballard Spahr, which consists of 32 lawyers in 10 offices. She has over 30 years of experience representing employers in a variety of industries, from healthcare and education to chemical manufacturing, food production and distribution, and public safety. .

During the pandemic, Keyser and his colleagues have faced an increase in work-related litigation related to coronaviruses, including lawsuits protesting employer vaccination mandates and disputes related to employers refusing to allow or extend them. remote working arrangements. Working from the firm’s Mount Laurel office, she expects the coming year will see more employers focus on preventing litigation with projects such as reviewing potentially overbroad covenants and addition of internal complaints policies.

Keyser answered questions about trends in the practice and what she sees in the near future. Here are his responses, edited for the length and style of the news.

What kind of topics do you deal with in your practice?

Management side work and employment work broadly fall into three categories: First, traditional labor law issues arising from national labor relations law and usually, but not always, involving trade unions or union organization. This work includes collective bargaining, labor arbitrations, and defending claims of unfair labor practices before the National Labor Relations Board and its review tribunals.

Second, litigation spanning the gamut of other employment issues. These issues include wages and hours, equal pay, discrimination, harassment and the hostile work environment, retaliation and whistleblowing, and restrictive covenant litigation in federal and state courts and before administrative agencies such as the Equal Employment Opportunity Commission, similar state agencies and state labor departments.

And third, internal advice and investigations. This work includes writing and reviewing employee policies and manuals. This involves providing advice on day-to-day matters such as discipline, layoffs, leave and accommodation requests, downsizing, voluntary departure / separation plans and the closure and opening of new facilities. . And that includes management training in areas like harassment, diversity and inclusion.

Ballard’s work and employment practice includes questions in these three categories. My personal practice is spread more or less equally between them.

Additionally, especially in light of the pandemic, I should also mention my work at OSHA. I usually include this in buckets 2 and 3, but this year it carries a special mention. Since President Biden’s inauguration, OSHA has been much more active on COVID-19.

Credit: Chris Nicholls / ALM

What’s the biggest litigation trend you’re seeing right now?

There is a lot going on in the world of work and employment. It is difficult to distinguish a single trend. Let me give you three.

First, restrictive covenant litigation has risen sharply in recent years. Although steps are being taken in some states across the country, including New Jersey, and at the federal level to limit the use of restrictive covenants, such as non-competition, we have nevertheless seen more lawsuits recently and we let’s wait for this to continue.

As our economy becomes more knowledge-based, employers increasingly seek to protect their most important asset – knowledge. And employees with that knowledge seek to leverage it to seek better opportunities elsewhere. It is a recipe for litigation.

Second, denunciations and reprisal complaints have been on the rise for many years. It is the most common cause of action in EEOC filings. And New Jersey’s conscientious employee protection law is one of the most extensive in the country.

Typically, these cases involve employees complaining that their employers have retaliated against them for internal complaints and other cases where they have exercised their legal rights. The continuing COVID pandemic has only increased these types of claims, as employees allege adverse employment actions in retaliation for raising concerns about workplace safety.

Third, we are seeing and will see more litigation related to COVID beyond whistleblowing and retaliation. We see allegations attacking employers’ vaccination mandates, which have almost always failed. We are also seeing complaints about employers refusing to grant continuous telecommuting accommodations to employees, and complaints for religious and medical exemptions from vaccination mandates.

What opportunities do you see for your practice in 2022?

The litigation trends I previously reported will continue and generate work for labor and employment attorneys in New Jersey and across the country. But companies have an opportunity to be proactive and resolve some of these issues before possible litigation. For example, reviewing and revising potentially overly broad restrictive covenants will now allow employers to protect the information they need to protect and put it in a better position to enable us to defend any legal action that may develop. As another example, adding an internal complaints policy and procedure to an employee manual can go a long way in minimizing and defending retaliation claims.

The Biden administration is making significant changes in many areas of my practice. Here are two examples. The NLRB now has a majority of nominated Democrats and is set to reverse many of the decisions and policies put forward by the board of directors under President Obama. The new NLRB general counsel (in fact, the chief prosecutor for matters brought before that agency) has announced new enforcement priorities, and they are far more pro-union and worker-friendly than under President Trump. Topics that the NLRB and / or the new General Counsel have already flagged include student-athletes and graduate students as employees entitled to NLRA protection, meaning they can engage in a collective action, including union formation, and a more flexible test to find that second, separate companies are joint employers of some workers, so one can be held responsible for the other’s NLRA violations , and that both may be required to negotiate with a union on terms and conditions of employment.

We expect Biden’s NLRB to once again focus on applying the NLRA to non-union workplaces. The NLRA protects the collective action of union and non-union workers and, under President Obama, the board of directors has made numerous decisions overturning various workplace rules and policies that have been found to restrict rights protected by the NLRA. We expect to see a slight increase in this type of litigation before the NLRB.

What are the main threats to your practice and what are you doing to adjust?

The practice of work and employment is very resilient; it is an area of ​​law that is never quiet. Sometimes litigation can be on the rise, and at other times advising clients, new laws or government initiatives can take up the majority of our time.

Political winds generate a new or renewed emphasis on different statutory regimes and often entail entirely new legal obligations for companies.

Social movements also have an impact in the workplace and often raise awareness of employee rights or help create new ones. It is this very resilience that can create the greatest concern.

Increasingly, businesses want a one-stop-shop for labor and employment services in major regions or across the country. But I got into this practice representing smaller, regional employers, and I want to continue serving clients who have been with me for more years than I can remember.

Distinguishing between being big enough to serve our larger customers and flexible enough to stay with the small businesses that have relied on us for years is an undeniable challenge. I believe we can meet this challenge because we have both deep roots in New Jersey and the resources and broad perspective of a large national cabinet.

How did you gravitate towards labor and employment law? Who has had the greatest influence in your career?

Most of the time, I love what I do – and I wouldn’t do it without my dad and baseball great Tom Seaver, both of whom passed last year.

My father was a high school teacher. He taught French and Spanish. He was part of the teachers’ union bargaining team for many years. I was an indifferent French student, but I was absolutely captivated by his stories of give-and-take at the bargaining table and the behind-the-scenes strategy sessions among committee members. When I decided to be a lawyer, I knew I wanted to be a labor lawyer. (That’s right, as a lawyer representing management I’m the opposite of daddy, but that’s a story for another day.)

Where’s the baseball? My dad was a die-hard New York Mets fan. When I was young, their best player was Hall of Fame pitcher Tom Seaver. Dad and I would watch almost every game he pitched and talk about what has turned out to be great in your chosen profession.

I’m not saying I’m a Hall of Fame lawyer and will probably never learn to speak French, but I wouldn’t be at all good without Dad and Tom. Of course, I have been helped in my career by many senior lawyers and some junior lawyers, but this list is far too long to print.