Elena R. Baca

Whether it’s taking on high stakes litigation or managing an ever-increasing amount of internal investigations in an era of heightened corporate scrutiny, Baca’s approach to employment defense requires staying abreast of modern social and legislative developments.

“There are more workplace investigations that we’re called in to do than in the past. The idea is that with employees in the workplace, we continue to have an array of claims and issues presented to employees still flowing from the #MeToo movement,” she said.

“Within the workforce, with respect to employers, is a much more active workforce that wants to be part of the dialogue,” she said.

That influence, according to Baca, flows from the growth of communication on social media allowing people to publish and discuss thoughts about conditions at work. Given the rapidity with which accusations spread, she added that keeping a level head and pursuing due process is paramount.

“The idea has to be that just because you’re accused doesn’t mean you’ve done it, and it doesn’t mean it’s unlawful,” she said. “I think it’s a more challenging time for companies and management, who I find have a legitimate desire for a workforce that is professional and content, when there are so many voices.”

As an example, Baca pointed to law students opposing their schools’ mandatory arbitration clauses in employment contracts, such as at Harvard.

“The clients with whom we work are uniformly trying to do the right thing. There are just a lot of competing demands and not everyone is fully informed of the information,” she said.

“Another strain is that there certainly have been legislative changes, and they affect whether or not we can use some of those perceived safeguards like confidentiality,” she added.

Either way, though the employment field’s complexity has grown, Baca said her defenses have echoes outside the courtroom and remaining cognizant of that is important.

“We have to understand it’s more than just that individual issue. While it might be related to an investigation or a lawsuit, everything we are speaking on is not just the legal issue, but reflecting the values of the company,” she said. “That means that understanding what appears to be a potentially straightforward claim a decade ago can present a much higher risk.”

“Employment litigation just poses a lot more risk than it has in the past and it makes what we do, the discretion we show, and how we approach and evaluate our work all the more significant,” she added.

—Andy Serbe