Labor and Employment

Disciplinary Actions – Employee discipline and discharge frequently trigger challenges in grievance arbitration, unfair labor practice proceedings, employment discrimination proceedings, and in other forms of employment litigation. Understanding the principles that underlie effective and defensible discipline is essential. Because our attorneys are experienced in defending employment claims once disputes materialize, they are particularly well suited to provide guidance to employers during workplace investigations and in the decision making process that will either minimize the risk of a later dispute or put an employer in the most defensible position if a dispute does arise.

Personnel Policies – An employer's personnel policies are often the first line of defense in many labor and employment law disputes. Sound personnel policies provide the framework for consistent decision making based on legitimate factors, as well as effective notice to employees about workplace rules, procedures, and the terms and conditions of employment. We regularly assist clients in developing personnel policies that not only meet legal requirements, but serve their business needs.

Increased scrutiny by the U.S. Department of Labor, Office of Federal Contract Compliance Programs has made federal contract and affirmative action compliance critical to ensure an employer’s continued business with the government. Employers are increasingly facing back pay awards and liability due to disparate compensation claims as a result of affirmative action audits. We routinely assist employers in the preparation of affirmative action plans and during compliance audits. Our involvement is designed to avoid legal liability and minimize risks for those employers subject to compliance reviews by the Department of Labor’s Office of Federal Contract Compliance Programs.

Alcohol and controlled substance issues implicate the intersection of on-duty and off-duty conduct, fitness for duty, compliance with state and federal licensing regulations, and the approved medical use of controlled substances, including medical marijuana. These issues may also intersect with collective bargaining obligations and compliance with state and federal EEO laws, requiring a wholistic approach to get employers to the right legal and practical results. Our labor attorneys routinely navigate these intersecting areas, providing sound practical advice based on industry and employer needs.

There are times when litigation is necessary, and in those times we are prepared to provide a client with knowledgeable and experienced representation. But we also recognize that not every disagreement or dispute must be resolved through costly and time-consuming litigation. Some disputes can be more efficiently resolved through alternative dispute resolution methods, such as mediation or advisory or binding arbitration. Our attorneys have the knowledge and experience necessary to represent you effectively in the ADR process.

Given the sheer size and state-wide presence of Bond's Labor and Employment practice, it is rare that a set of facts will arise that is not at least similar to an earlier arbitration handled by one of our attorneys. This perspective allows us to better assess the likelihood of specific employment decisions being upheld or overturned by an arbitrator, which, in turn, helps clients identify which cases should go to arbitration and which might be better resolved in some other fashion.

Bond also maintains an extensive database of arbitration decisions issued by arbitrators who frequently hear cases. Oftentimes, we are able to determine how a particular arbitrator can be expected to rule on a particular issue based on his or her prior awards. Again, this information would help a client evaluation the potential benefits and risks of proceeding to arbitration.

In today’s business climate, employers are continuously dealing with change to their organizational structure and/or staffing.

Mergers and Other Organizational Changes – Mergers, sales, relocations, and other organizational changes cannot be undertaken without considering the labor and employment law impact of those decisions. Bargaining obligations, contractual obligations, discrimination issues and employee benefit implications must be taken into account. Our attorneys regularly advise employers to ensure legal compliance and effective results when such organizational changes are being planned and implemented. Rather than allow Labor and Employment Law concerns to obstruct change, we will assist you in achieving your goals. We can also analyze and recommend organizational changes to achieve desired outcomes with respect to union representation and contract matters.

Reductions-In-Force/Early Retirement Incentives – Given the application of disparate impact theories of discrimination and the advent of such statutory protections as the Worker Adjustment and Retraining Notification Act (WARN), reducing the work force is no longer a straightforward task. Various reviews must be undertaken to ensure compliance with these statutory mandates. Our attorneys are well versed in the interplay of these statutes and will assist you in establishing procedural safeguards and required notices to affected employees and/or their bargaining representatives. We can also help you manage the negative impact of layoffs on employee relations and/or labor relations.

As an alternative to forced reductions of staff, employers often should consider the value that can be derived from early retirement or other separation incentive plans. Our attorneys have extensive experience in navigating the employee relations, ERISA, Older Worker Benefit Protection Act and tax issues associated with these various staff resizing options.

Individual Changes – Sometimes the most important organizational change does not involve a merger or acquisition or even a mass layoff, but rather a change involving a single individual in a critical corporate function. Our lawyers can assist in designing an effective approach to deal with those necessary changes, as well as designing an appropriate severance or separation arrangement that can achieve a smooth transition while protecting the employer’s vital interests.
 

Constitutional and civil rights litigation is a complicated area of law, requiring both skill and experience, and successful defense depends on counsel understanding all areas of 42 USC 1983 and its interplay with other laws. Failure to vigorously defend these claims may subject defendants to punitive damages. 

Over the years we have defended a wide array of claims to the overwhelming satisfaction of our clients. The majority of claims handled by Bond end in dismissal prior to or at the close of discovery, yet our ability to defend cases at trial is equally impressive.

The areas with which we have experience include:

• Failure to train;
• Deliberate indifference;
• Excessive force;
• Denial of health care;
• Failure to protect;
• Improper procedure;
• Unlawful detention; and
• Violation of due process.

One of the greatest litigation risks to employers over the past several years has been the class/collective action or other multiple plaintiff claims, which carry potentially staggering consequences. Bond has a long history of defending employers not only in individual plaintiff cases but also in class action employment litigation and collective actions. Our more than 70 Labor and Employment Law and employee benefits lawyers and our extensive litigation experience provide both the breadth of experience and depth of knowledge necessary to successfully defend these unique types of claims.

Our class and collective action experience covers Title VII, Title IX, the ADEA, the FLSA, the ADA, ERISA, the FMLA, Section 1981, antitrust law, and the New York Labor Law, over a wide range of industry/service sectors, including health care, hospitality and restaurants, utilities, municipalities, retail and manufacturing, higher education, and insurance. A recent employment litigation survey indicates Bond has defended more employers facing employment litigation in the Western and Northern Districts of New York State than any other law firm.
 

Unique labor and employment law issues permeate the construction industry. Effectively responding to lawful strike and/or picketing activity through the use of reserved gates or comparable devices, to unlawful secondary activity, or to the presence of the “rat“ or union bannering all requires quick action and a thorough understanding of construction industry labor relations and labor law. Bond’s attorneys can provide that knowledge without “reinventing the wheel.” In addition to representing numerous construction industry employers and project owners for nearly 40 years, Bond has been labor counsel to one of the world’s largest engineering and construction companies.

Bond’s attorneys also have extensive experience in the use of project labor agreements. Our attorneys have been involved in the negotiation, use, and defense of project agreements on a wide variety of construction projects, with construction values ranging from $15 million to $15 billion.
 

The attorneys in our employee benefits and executive compensation practice advise clients on matters of statutory compliance and ERISA, COBRA and HIPAA, as well as provide litigation defense counsel. We focus on individually designed plans and the host of services they require, including preparation of cost and benefit projections; design of specific plan features (such as benefit funding, eligibility, retirement options, and loan provisions); advice and assistance in the selection, oversight, and retention of service providers; preparation of legal notices and election forms for the administration of the plan; and advice on fiduciary obligations and liabilities. Our attorneys are also experienced with non-qualified pension arrangements, such as deferred compensation plans, non-qualified stock-based compensation arrangements, and deferred compensation plans for tax-exempt organizations. We also have experience navigating employers through the waters of distressed plan terminations, including in a union environment.

In addition, we have developed experience in multi-employer pension issues which we believe few can match. Representing some of the largest employers in the country in connection with their multi-employer pension issues, we have worked with employers in assessing, planning for and litigating withdrawal liability issues.
 

A well-drafted handbook will set the tone for your organization. Our attorneys counsel and assist employers in developing employee handbooks that contain clear, defensible policies and procedures, and provide onsite training tailored to our clients’ business needs. 

Our philosophy is that employers should adopt employment policies and procedures before they are needed, thereby insuring there is a roadmap for managers and human resource professionals. Our extensive experience representing employers uniquely positions us to counsel clients, draft and review policies and procedures addressing every aspect of the employment relationship – from employee screening and hiring to individual terminations and large reductions-in-force. 

However, employee discipline and discharge frequently trigger challenges in employment discrimination proceedings and in other forms of employment litigation. Understanding the principles that underlie effective and defensible discipline is essential. Because our attorneys are experienced in defending employment claims once disputes materialize, they are particularly well suited to provide guidance to employers during workplace investigations and in the decision-making process that will either minimize the risk of a later dispute or put an employer in the most defensible position if a dispute does arise.

EEOC and State Agency Discrimination Investigations – Discrimination claims can be brought before a variety of federal, state, and/or local agencies with jurisdiction to enforce equal employment opportunity laws. The best strategy at the agency level often differs from the best strategy once a case proceeds to court. Because our lawyers have extensive experience with these governmental agencies, we are in a position to advise a client on the best approach with that agency, while keeping in mind the larger litigation picture. Due to the extent of our practice, in many cases our attorneys will have had experience dealing with the particular government investigators and decision makers assigned to your case.

Employment Contracts, Torts, and Other Litigation – Our experience extends beyond traditional labor and employment discrimination litigation. It includes employment contract, tenure denial, tort and restrictive covenant litigation, in both state and federal courts. Whether these additional legal theories are asserted in combination with discrimination claims or by themselves, we are prepared to vigorously defend your organization on all fronts.

Federal and State Court Discrimination Litigation – According to a survey, Bond labor and employment law attorneys represented one in every four employers involved in discrimination cases decided in federal court in Upstate New York - far more than any other law firm. We believe that Bond is the firm of choice because our attorneys have experience in the full range of labor and employment law services - from counseling clients on difficult employment decisions through defending those decisions in litigation, if necessary. We are not just litigators - we are labor and employment counselors. Our experience in advising clients gives us a better understanding of human resources management and allows us to be more effective advocates when presenting management's case to a jury or a judge. U.S. News & World Report has ranked Bond in the top tier of management side labor and employment litigation nationally.
 

We have extensive experience handling federal and state discrimination charges in both administrative proceedings and in civil actions, and represent the most employers in federal court in upstate New York by a wide margin. According to a survey, Bond handled more than 300 employment discrimination cases in the Northern and Western Districts during the first fifteen years of the 21st Century—more than the next two law firms combined. We are knowledgeable of the judges, clerks and the procedures, and likewise are well known in the labor and employment legal community.  

Click here to view Bond's Human Resources Audit and Compliance Training Services brochure.

As the business world becomes more of a global marketplace and as skilled worker shortages become more pronounced in the United States, employers in a number of industries often have to look abroad to find qualified personnel. Lawyers in our Immigration Practice Group can work with you to develop the best approach for meeting those employment needs within the framework of existing immigration laws and restrictions. Much of the firm's immigration law practice involves employment-based applications and petitions (particularly non-immigrant workers and permanent residents), and related labor condition and certification applications. Bond represents clients throughout the preparation, filing, and processing of immigration-related applications and petitions with government agencies. The firm also provides general assistance and advice to clients concerning the proper visas for employees and potential employees; governmental procedures and pitfalls; and the content and format of applications, petitions, and related documents. Our attorneys also routinely counsel human resources managers on I-9 compliance issues and represent employers facing immigration audits and enforcement actions.

Collective Bargaining – The United States Supreme Court has observed that during the collective bargaining process, negotiating skills and the rendering of legal advice are "inextricably intertwined." Our attorneys understand the legal pitfalls in bargaining and we have extensive experience in negotiating initial agreements, successor agreements, concession agreements, merger agreements, transfer agreements, and shut-down agreements, for both large and small bargaining units. The knowledge and skills we bring to the table will help ensure that your short-range business objectives are met, and that a solid foundation is laid for your long-term business strategy.

Grievance and Arbitration – While it is every unionized employer's goal to keep grievances and arbitrations to a minimum, inevitably there will be some disputes that cannot be resolved any other way. We have substantial experience in the arbitration process generally, and we likely have experience with the specific issue that you are confronting. In addition, in many cases, our attorneys will have prior experience with the Arbitrator who will decide your case.

Strikes and Lockouts – No employer wants to confront a strike or the prospect of locking out its employees. But sometimes circumstances dictate that result. Dealing with both strikes and lockouts is complicated and the stakes associated with a mistake are high, both from a labor relations perspective and financially. In the course of its extensive experience with all facets of traditional labor law, Bond’s attorneys have counseled numerous employers on strike preparations and responses, including the use of temporary and permanent replacements, effective implementation of Laidlaw rights, and negotiation of strike settlement agreements. Our attorneys are equally versed in the use of lockouts as a lawful negotiating tactic or as a defensive measure.

Unfair Labor Practice Charges – Unions and employees are more often turning to the National Labor Relations Board to litigate disputes that in the past might have been left to negotiation, arbitration, or even inaction. In addition, unions are increasingly relying on unfair labor practice charges as a tool in the organizing process. These trends mean that more and more employers find themselves on the respondent side of unfair labor practice charges. For many, this is unfamiliar territory. Our attorneys have both a thorough working knowledge of the substantive law at issue in these disputes, and a thorough understanding of the intricacies of practice before the National Labor Relations Board.

Union Organizing and Related Matters – In the global economy, most employers consider flexible and efficient management of their human resources to be a critical ingredient to the success of their business. This means having the ability to deal directly with employees. Bond's attorneys are well equipped to analyze your organization's vulnerability to possible unionization and to recommend lawful union avoidance measures, including comprehensive supervisory training. When actual organizing activity is underway, we can provide the legal representation you need before the National Labor Relations Board or equivalent state board, as well as help you manage an effective information campaign to lawfully communicate with your employees. When a union knocks on your door, we are always prepared to provide immediate and exclusive attention to your needs. Given many of the National Labor Relations Board’s recent decisions and its current push for expedited elections, it has never been more important to have access to attorneys who are already well versed in the intricacies of these procedures.
 

Since the original passage of the National Labor Relations Act in 1935, right up through today, our labor attorneys have been at the forefront of representing employers in NLRB proceedings. We help employers navigate the rules applicable to union organizing, collective bargaining and unfair labor practice and all other proceedings before the NLRB. This area changes cyclically and rapidly with the changing presidential administrations. We are there to advise our clients on those developments, as well as chart a course that is robust and works within, and beyond, the changing composition of the NLRB and the constant changes in NLRB decisions over time.

We know how to navigate any union climate. Bond attorneys have negotiated more than 450 collective bargaining agreements. We guide our clients through all facets of negotiating the agreement, including: development of bargaining positions; serving as chief negotiator at collective bargaining negotiations or advising institutional representatives behind the scenes; drafting and negotiating collective bargaining agreements; and representing our clients in all forums for dispute resolution.

Public employers in New York are subject to s statue commonly known as the Taylor Law, which sets the rules for union recognition and collective bargaining. As is the case in the private sector with the NLRB, collective bargaining disputes and other improper practice charges in the public sector in New York are processed by a government agency – PERB.

Our lawyers represent employers in PERB proceedings throughout the state, from including cases involving impasse resolution, mediation, interest arbitration for police and fire personnel (compulsory by statute), and improper practice allegations related to alleged refusals to bargain and discrimination charges. Collective bargaining in the public sector also implicates rules regarding maintenance of the status quo pending bargaining under New York’s Triborough Amendment, which are also adjudicated by PERB – we routinely represent employers in cases involving those allegations.

Our attorneys assist employers in protecting their intellectual property, human capital, and important client relationships. We assist clients in both litigated matters and non-litigated resolutions. On the non-litigation front, we provide advice and counsel concerning the many factors associated with hiring and firing employees who possess confidential information or otherwise have restrictive covenants. We routinely prepare confidentiality, non-compete, non-solicit, pre-invention assignment, and equity-based compensation arrangements, along with policy manuals on information, ownership, and protection. With respect to litigation, we have experience in pursuing and opposing applications for injunctive relief. Bond attorneys have the knowledge and experience necessary to represent employers effectively with respect to non-compete arrangements and trade secrets.
 

Bond houses a practice group dedicated to workplace occupational safety and health law. The practice includes attorneys from other practice areas in the firm, such as business, construction, labor and employment, litigation and environmental law. This allows us to integrate advice and counsel on safety and health matters across the range of our client industries.

The New York State Paid Family Leave law (PFL) is a groundbreaking law that is intended to apply to virtually all private employers in New York. When fully phased in, PFL will provide eligible employees with up to 12 weeks of job-protected, paid family leave while they are out of work for certain qualifying reasons. Covered employers must maintain an employee’s health insurance coverage during the leave, provide the employee with certain reinstatement rights after the leave, and may not retaliate against any employee who uses PFL.

Bond’s Labor and Employment Practice understands that PFL is both new and complex. We also understand that employers should be primarily focused on running their business, rather than worrying about compliance under the PFL. Our labor and employment practice has the depth and experience to understand the intricate details of the law and regulations so that we can work with clients on compliance issues and best practices.

Bond has extensive experience in the negotiation and use of Project Labor Agreements (PLAs) in connection with special construction projects, in both the public and private sectors. In fact, Bond pioneered the use of PLAs on public construction projects in the State of New York, including the negotiation and the landmark defense of the use of a PLA on behalf of the New York State Thruway Authority in connection with the Tappan Zee Bridge. 

We advise clients on RIF design and implementation. We also compile and review statistical data for potential adverse impact on protected classes. This process involves gathering relevant data, organizing it into relevant decisional units and running three statistical tests commonly used by courts and the EEOC to determine whether any adverse impact exists.

We also review severance agreements used in conjunction with RIFs to ensure enforceability and compliance with Older Workers Benefit Protection Act.

It is an accepted principle of law that employers must provide sound training programs for their supervisors and managers in areas such as sexual and other forms of harassment in order to avoid litigation.

• The failure of an employer to provide manager and supervisory training regarding the requirements of discrimination laws is an "extraordinary mistake." (United States Court of Appeals for the Seventh Circuit)
• Only those employers that adopt anti-discrimination policies and take affirmative steps to educate their employees (especially their supervisory and management employees) about workplace anti-discrimination laws fall within the protection from punitive damages offered by Supreme Court decisions. (United States Court of Appeals for the Tenth Circuit)
• Employers must not only provide anti-discrimination training for supervisors and managers, but that training must be mandatory. (New Jersey Supreme Court)
• The EEOC's published Guidelines provide that "reasonable care" to prevent harassment must include training, and that the promulgation of workplace policies standing alone is not enough.

Bond has the knowledge and experience to provide cost-effective training programs for your supervisors and managers. You can choose from our existing programs or we can design one specifically for you. Either way, you will find this to be a prudent approach to risk management.

Our supervisory and management training includes programs focusing on:

• ADA and FMLA Compliance
• Avoiding Discrimination
• Conducting Workplace Investigations
• Discipline and Discharge
• Diversity
• Documentation and Recordkeeping
• Employee Evaluations and Appraisals
• Fostering Positive Employee Relations
• Interviewing and Hiring
• Layoffs Without Lawsuits
• Problem Resolution (Procedures)
• Sexual and Other Harassment
• Supervising Sick, Injured, or Disabled Employees
• Working With and Without Unions

In the #MeToo era of awareness on sexual assault and harassment, especially in the workplace, employers need to understand how this landscape is evolving and how to respond proactively. While sexual harassment in the workplace is not new, traditional reactive approaches and policies are no longer optimal. At the same time, harassment claims are evolving, with claims by men increasing and claims alleging harassment on bases other than gender also on the rise. As a result, it is more important than ever that employers be prepared to take proactive steps to identify harassment concerns and respond appropriately when an employee complains. Our attorneys are sensitive to the current climate. We've worked with hundreds of clients, advising them from the training phase to investigation and beyond.

Myriad statutes impose obligations on employers, such as the Fair Labor Standards Act, Family and Medical Leave Act, Worker Adjustment and Retraining Act, ERISA, OSHA, Davis-Bacon Act, etc. In our more than 75 years of representing management in the field of Labor and Employment Law, we have had substantial experience advising clients on day-to-day compliance with virtually all of the issues which permeate the regulatory scheme. From auditing your policies, procedures, and practices to ensure compliance, to representing you in agency audits and compliance reviews, we can assist you in identifying areas of vulnerability and in taking steps to minimize your liability.
 

All too often, companies react to trade secret theft and competitive threats due to employee departures, rather than position for it. Under these circumstances, they are faced with no choice but to engage in costly litigation.

Our Trade Secret Protection Audit assists companies in identifying critical intangible assets and guides the development of procedures, contract language, employment and non-disclosure agreements designed to protect them. Undertaken periodically, audits are able to help companies anticipate possible threats and reduce the areas of risk most often encountered in the course of conducting business. In performing this due diligence, our attorneys may also call upon other professionals in connection with the evaluation and testing of protocols related to the protection of computer data.

See the link below for more information on the Trade Secret Protection Audit.

In addition to the audit, our capabilities include:

• Cease & Desist Letters
• Computer & Information Use Policies
• Confidentiality Agreements
• Departure/Exit Protocols
• Employment Agreements
• Fraud & Security Audits
• Invention Assignment Agreements
• Non-compete Agreements
• Non-disclosure Agreements
• Restrictive Covenant Agreements
• Technology Use Agreements
• Trade Secret Theft Claims
• Trade Secret Litigation 

Click here to view Bond's Trade Secret Protection Audit brochure.

Unemployment insurance matters can be challenging for employers. Decisions as to when, and how, to challenge an application for unemployment and how to assert your rights before the Unemployment Division can be difficult. If there is the potential for related employment litigation in the background, these strategic decisions can be even more critical. Our labor attorneys can help you work through the puts and takes and reach decisions that work for you and your business.

Our nationally recognized labor practice commands a comprehensive view of the union organizing landscape. Our attorneys are keen in their dealings with unions—handling collective bargaining, responding to strikes, and advising with regard to compulsory dues, to list a few among the full array of potential labor law issues. 

We provide in-depth training on topics such as: how to recognize union organizing activity; supervisor “do’s and don’ts”; and understanding secret ballot elections and collective bargaining. We also help clients determine campaign fundamentals, such as who is likely to be eligible to unionize and review handbook or policy manuals for policies declared unlawful by the NLRB. We also help clients develop a communications strategy with a leadership team; we assess common themes raised during campaigns, review communication and logistics – what you can say and how you can say it.

Employers face increased scrutiny and regulation with respect to wage and hour compliance. We have extensive experience representing employers under the Fair Labor Standards Act, the New York Labor Law, and laws of other states regarding unpaid wages, overtime claims, meal and rest breaks, and donning and doffing. Our wage and hour work includes assisting employers with self audits designed to identify and avoid problem areas, as well as forging creative solutions to wage and hour issues encountered by employers. Our attorneys have successfully represented employers in a wide variety of industries with respect to unpaid wage and overtime claims, misclassifications, recordkeeping obligations, unpaid meal breaks, vacation pay claims, and other benefits claims. Our experience also includes representing employers in audits and lawsuits brought by the U.S. and State Labor Departments and other government agencies.
 

Employers today face numerous workplace health and safety issues: OSHA compliance, workplace environmental hazards, violence in the workplace, drug and alcohol issues, AIDS, and smoking, just to name a few. Our attorneys are experienced in dealing with these issues both at the preventive stage and after problems have arisen. We regularly advise clients with respect to the creation, implementation, and enforcement of appropriate workplace health and safety policies. Bond attorneys also provide workplace training to help supervisors understand how they can and should react to health and safety issues in the workplace.
 

Our supervisory and management training includes programs focusing on:

• ADA, FMLA and PFL Compliance
• Avoiding Discrimination
• Conducting Workplace Investigations
• Discipline and Discharge
• Diversity
• Documentation and Recordkeeping
• Employee Evaluations and Appraisals
• Fostering Positive Employee Relations
• Interviewing and Hiring 
• Layoffs Without Lawsuits
• Problem Resolution (Procedures)
• Sexual and Other Harassment
• Supervising Sick, Injured, or Disabled Employees
• Working With and Without Unions

In addition, Bond’s labor employment law department holds periodic breakfast briefings throughout the year and an annual daylong seminar in more than ten locations across New York State covering a myriad of employment law topics with various breakout sessions allowing company supervisors to choose the various topics they find most helpful.