The uniqueness and satisfaction of practicing employment law

It wasn’t a straight path, but it rarely is. First, I had to flunk out of the architecture program at college. Then, a realization mid-way through law school that a foreign service career was impossible because I couldn’t learn a foreign language. Then, no job offer from any firm practicing antitrust law. But, something else was waiting, and it wasn’t third base for the Yankees.

It had action and immediacy. Within ten days of being sworn in, I was representing the United Auto Workers on strike against a major employer. There were federal court proceedings, state court proceedings, NLRB proceedings, collective bargaining negotiations, and television coverage. Thirty days later, a new contract was signed and everything was over. I learned to keep my eyes on the prize.

It had intellectual rigor. One early assignment was to advise trust fund clients on the Employee Retirement Income Security Act of 1974 (ERISA), a new, lengthy, cumbersome and technical statute. I still didn’t know it after a year, but neither did the Department of Labor, which was issuing almost-daily clarifications, postponements and advisory opinions. I learned to deal with ambiguity.

It had drama. State court cases. Federal court cases. Appellate court cases. Administrative proceedings. Arbitrations. Uncertain outcomes. Wins and losses, cheers and tears. I learned to deal with risk.

It was constantly changing. There were early glimmers of contract- and tort-based workplace claims during the 1970s, and there were added statutory protections against discrimination and retaliation. However, we were all still “Labor Lawyers,” a title I proudly wore. In the 1980s, the explosion of wrongful termination cases, and the resulting monthly appellate opinions, created, shaped, and grew the field of “Employment Law.” But, there were no standard jury instructions for wrongful termination causes of action. You took to trial, or settled, cases in an environment of skepticism and ambiguity. The 1990s brought recognition with protections against sexual harassment and whistleblowing, as well as Disability Act rights. The 2000s brought wage and hour class actions – where once a collective remedy was rare and uncertain, it was now expensive and everywhere. The 2000s also mainstreamed arbitration with due process protections and financial burden-shifting. The 2010s brought “Me-Too,” saw PAGA and eDiscovery expand and complicate litigation, and had us wrestling with “cat’s paw” liability, associational retaliation, “mixed motives,” worker misclassifications, and many other issues. The 2020s are a work in progress.

No wonder employment attorneys are among the most fortunate in our profession. We are smart, bold, personable, creative, savvy and provide great value to clients … both sides.

Not that it is easy. It has always required: careful client intake; careful, ethical, advice to clients and witnesses; careful case preparation, particularly for depositions and with experts; careful and continuous case analyses, with an open mind to weaknesses; and thought, focus, and confidence without arrogance.

For me, after 45+ years, it has never been boring, never totally predictable, and never duplicative. You cannot be complacent. If you are not continuously learning, the field will leave you behind.

So, I will share some thoughts about employment law and lawyers drawn from the past four years as a full-time mediator and arbitrator.

1. Good employees lose their jobs and the law does not always provide a remedy. But that does not mean the employer is unwilling to recognize and try to amicably ameliorate the situation. Within limits, however.

2. Marginally-performing employees rarely make good plaintiffs. A poor or mediocre work record needs to be fully explained – and it is not always someone else’s fault. And character matters. My rule of thumb that evolved out of decades representing employees: My plaintiff-side case would not be taken to trial if I wouldn’t have the plaintiff to dinner with my family.

3. Bad supervisors sink ships. Even good supervisors sometimes mess up.

4. Poor HR practices are often linked to a lack of independence and authority.

5. Damages are, mostly, objective in nature and driven by facts and math.

6. Sometimes a higher-than-typical initial mediation offer from defendant is disarming and effective because it shows respect, commitment and control.

7. Opposing counsel is gauging your state of preparation as an important element in valuing the case.

8. Five-figure, six-figure, and seven-figure cases are ultimately self-defining. I did successfully defend at a ten-week jury trial a nine-figure class action, but that is too small a sample size to comment further. Have perspective. Have patience.

9. The recognition of weaknesses in your case is not a sign of your weakness. Every case has them. How you address weaknesses provides an opportunity to show your excellence.

10. Employment lawyers are enjoyable to be around. We speak the same language, understanding this mix of law, personality, strategy and savvy. You don’t find employment lawyers switching fields. I have never heard, “I used to be an employment lawyer, but now I do mergers and acquisitions.” Not that there’s anything wrong with that more lucrative field. It’s just that our preference is for stories, people, contests and uncertainty.

So, here’s to our future careers, with interesting people, cases, choices and decisions.

May you find continued fulfillment and success in our chosen field.