Labor & Employment

Our Labor & Employment Practice Group is made of a unique, integrated team of attorneys – allowing us to address labor and employment, immigration and employee benefits and compensation issues. We provide this range of services to clients on a national basis. Our diverse labor and employment client base includes, among others, companies such as an American multinational corporation that designs, manufactures, markets and distributes vehicles and vehicle parts globally; a large Midwest hospital system; an American mass media holding company; a global technology, infrastructure and financial services company; and a multinational power management company. We are actively involved with clients in industries such as hospitality, retail, automotive, health care, manufacturing, trucking, technology, construction, food and beverage distribution, industrial product distribution, professional services and banking, to name just a few.

Our attorneys are committed to building strong client relationships. Client service is our number one priority, and we are dedicated to being accessible, communicative, responsive and available on each client’s schedule. The firm maintains that partnering with our clients, learning about their businesses and operations, anticipating their legal needs and providing solutions will ensure long-term relationships. We learn about and fully understand our clients so that we can offer legal advice that is not only practical, but customized, innovative and the best fit for each client’s unique needs.

Having Peter Kirsanow, a former member NLRB member and active member of the U.S. Commission on Civil Rights, as a partner in the Group provides added awareness and insight to the work we do on behalf of our clients. Our group has a strong national presence with trade associations and Congressional members and staff, providing us with timely insights concerning trends and developments.

Benesch's Labor and Employment practice is recognized by Chambers® and the firm is ranked nationally in Employment Law - Management, and Litigation - Labor and Employment by Best Lawyers® “Best Law Firms.” 

Labor Management Relations and Collective Bargaining 

In the area of “traditional” labor law our labor & employment attorneys represent employers in collective bargaining and union avoidance before the NLRB and in arbitration.  The clients we represent in their relationships with unions, or in attempting to remain union-free, come from diverse industries such as steel, health care, construction, building materials, household product manufacturing, retail, and transportation and logistics.  Our Labor and Employment Group, in conjunction with our Employee Benefits Group, also routinely work with clients to address and minimize withdrawal liability arising from multiemployer pension plans.  A sampling of matters our labor & employment attorneys have handled in this area include:

• Represented the National Association of Manufacturers in litigation brought against the NLRB, seeking to vacate the Board’s newly-announced rule requiring employers to post a notice of employee rights under the National Labor Relations Act. The U.S. Court of Appeals for the District of Columbia ruled that the Board exceeded its powers in issuing the rule and vacated it entirely. This ruling impacted over 6.1 million employers nationwide.
• Managed the closure of a global clothing manufacturer’s unionized Cleveland operations, including advising senior management on personnel and union issues, drafting comprehensive separation agreements, providing WARN notices, assisting in public relations responses to various public entities and responding to an unfair labor practice charge filed with the NLRB. In addition to managing the closure, our team also led the negotiations for the purchase of all assets by an out-of-state buyer, initiated or received all public relations with local newspapers, television stations, U.S. Senator Sherrod Brown, and other local governmental officials regarding the regulatory issues and a potential wool tariff credit for the buyer, and negotiated the limitation of withdrawal liability through successful negotiation of an ERISA 4204 agreement. The closure and associated withdrawal liability issues were settled.
• Prepared an amicus brief on behalf of several major trade associations in support of the appeal of Browning-Ferris, Inc. to the D. C. District Court of the National Labor Relations Board’s joint employment decision that has momentous consequences for all employers nationwide.
• Represented a shopping center management firm in the Sixth Circuit Court of Appeals, successfully overturning a National Labor Relations Board order involving a union’s right to picket on private property. This matter was a case of first impression and greatly expanded management’s right to control access to private property.
• Currently representing the National Association of Manufacturers, the National Restaurant Association and the National Waste & Recycling Association as amicus curiae before the National Labor Relations Board in a case regarding the application of the joint employer doctrine.
• Successfully represented a health care employer through collective bargaining, a strike and ultimately the withdrawal of recognition from the union. The matter  was the subject of extensive litigation before the NLRB and the Sixth Circuit Court of Appeals.  The Court of Appeals found that the client engaged in lawful hard bargaining, reached a legitimate impasse, lawfully implemented its final  offer and lawfully withdrew recognition from the union after two-thirds of the bargaining unit resigned from the union and crossed its picket line.
• Represented a hospital in bankruptcy which included the rejection of the collective bargaining agreement in the Bankruptcy Court, counseling the client through a bitter strike and obtaining Court ordered injunctive relief during the strike, significantly limiting the number of pickets around the hospital’s premises.
• Represented a platform company in the baked goods industry, which acquired the foodservice and bakery division of a major publicly-held company, with operating plants and distribution throughout the U.S. During the acquisition, the Benesch team protected the buyer from liabilities relating to the seller’s closing of a major plant, and re-negotiated a collective bargaining agreement for a key facility, obtaining concessions in a number of areas. This contract is enabling our client to be more competitive in its industry.
• Negotiated collective bargaining agreements with most major unions in many states including Kentucky, Texas, Illinois, Michigan, Minnesota, New York, Ohio and Pennsylvania.
• Successfully represented employers in maintaining union free status in the face of organizing campaigns by United Steelworkers, Teamsters, Machinists, SEIU, and others.

Employment Litigation 

We have represented employers in virtually every type of lawsuit, in every kind of forum.  This includes discrimination charges before the EEOC and state fair employment practice agencies; employment discrimination, wage/hour, wrongful discharge and breach of contract claims in federal and state courts; prosecuting and defending claims for enforcement of non-competition agreements and trade secret rights; and arbitrations under employment and collective bargaining agreements.  Whether it’s the arbitration of a single employee’s discharge or complex class action defense, our attorneys have the experience necessary to provide the highest quality representation available.

Our attorneys also possess the awareness that client needs and desires vary with each case.  Litigation demands that counsel not only provide sound legal analysis, but also design a strategy consistent with the client’s business objectives.  Our approach is to work with our clients to formulate the best legal strategy, understand the client’s business needs and goals and then together devise the approach best suited to achieve the desired result.  Just some of the employment litigation matters handled by Benesch’s Labor & Employment Practice Group are summarized below:

• Defended an international financial institution, as well as several related entities and individuals, in an age discrimination trial. The Plaintiff in that case was represented by a firm which had obtained the largest single-plaintiff employment discrimination verdict in Ohio history.  Prior to trial, the Plaintiff demanded $11 million to resolve his claim of age discrimination arising out of a reduction in force.  Following a two-week trial, the jury rendered a complete defense verdict in favor of each of our clients. This verdict was upheld on appeal.
• Represented the National Association of Manufacturers in litigation brought against the U.S. Department of Labor, the OFCCP and others to enjoin implementation of the OFCCP’s rule requiring federal contractors to post notices informing employees of their rights to unionize and engage in other concerted activity.
• Represented the largest private label snack manufacturer in North America in a wage and hour audit at the company’s largest facility in Burlington, Iowa. The facility was acquired and the issues arose from timekeeping practices which had been maintained through the transition.  The DOL determined employees were improperly paid and were potentially owed significant back wages (well into six figures due to the rounding procedures of the previous owner, which had been maintained by our client).  Benesch implemented a legally-acceptable rounding strategy, and negotiated with the DOL to utilize this post-applied rounding strategy as a basis for determining a settlement amount. Through Benesch’s efforts, our client greatly reduced its liability to less than 5% of what it might otherwise have been obligated to pay, and also implemented compliant rounding policies at the new facility to prevent future wage and hour issues.  
• Represented a San Antonio-based medical device and biologics company that provides surgeons with implants paired with instrumentation and biologics, in a trade secret/non-compete case in Ohio. The plaintiff asserted claims for breach of contract, misappropriation of trade secrets, tortious interference with contract, and unfair competition against the client.  We were able to obtain dismissal of the breach of contract claim early in the case.  Benesch then filed a key motion to modify the ex parte temporary restraining order that had been entered prior to Benesch’s involvement. In order to dispose of the temporary restraining order (which was entered prior to our involvement in the case) and buttress the motion to modify the order, we took a skillful  deposition of plaintiff’s primary witness.  We obtained several key admissions from plaintiff’s witness, ultimately resulting in the Court granting the client’s motion to modify the temporary restraining order, lifting the restrictions upon the client and forcing a favorable settlement for the client.  Due to our strategy as local counsel, the client was able to hire one of plaintiff’s former engineers and successfully bring several of its spinal products to market.
• Represented a building products company in DOL wage and hour audits in Tennessee, Ohio, New York, Texas, Indiana, Colorado and Illinois. In each instance, we assisted the client in minimizing violations in three cases and a finding of compliance in the remaining cases. Benesch’s long-standing relationship and understanding of the client’s business model also led the Company to implement an internal audit program to address potential additional wage and hour issues.
• Successfully enforced arbitration agreements to avoid court litigation of discrimination claims brought against multi-national retail jewelry chain client in California, West Virginia, Arizona and Ohio.
• Obtained summary judgment on behalf of a nursing home in a wrongful discharge and defamation matter in Ohio and recovered attorney fees on behalf of the client pursuant to Ohio’s Frivolous Conduct Statute.
• Represented a national beverage distributor in a wage/hour class action, obtaining summary judgment by establishing that the client’s employees were exempt from overtime.
• Obtained a defense verdict in a jury trial in a wage and hour class action lawsuit in federal court in the Northern District of Ohio.
• Secured summary judgement in a disability discrimination case based on lack of notice of disability.
• Defeated certification of class in FLSA collective action litigation brought in the Northern District of Ohio based on the retail sales exemption to the FLSA.

Client Counseling 

We recognize that proactive, preventive maintenance is the most effective way of avoiding costly litigation.  To that end, we are very active in counseling clients on day-to-day employment issues as they arise.  This counseling takes many forms, such as reviewing disciplinary or discharge decisions; reviewing policies, programs and compensation plans for compliance with the Title VII, FMLA, ADA, FLSA, ADEA, O.R.C. § 4112 and the myriad of other employment laws; advising employers during reductions in force; providing supervisor training on issues such as employment-at-will, equal employment opportunity and workplace harassment; preparing employment agreements; and implementing alternative dispute resolution programs.  The counseling we provide is always with complete recognition that maximizing the client’s business position is as important a priority as avoiding litigation. Specific examples of the counseling we have provided include the following:

• Advised a multi-national retail jewelry chain regarding employment policy implementation in the areas of background checks, FMLA compliance, media relations, ADA compliance, telecommuting and workers’ compensation.
• Advised a multinational client on the consolidation of manufacturing plants in several states, together with the reduction in force of its national sales organization, which involved the implementation of layoffs and severance programs, as well as WARN compliance.
• Counseled a multinational office supply chain on the structuring and implementation of an alternative dispute resolution program for its employees.
• Counseled an international telecommunications company in connection with the downsizing of several plants and compliance with WARN and Older Worker Benefit Protection Act requirements.

OSHA 

Attorneys in the Labor & Employment Practice Group represent clients in administrative and judicial forums in the many types of matters which arise from workplace injuries and illnesses.

A serious employee injury can result in not only an OSHA complaint, but also a lawsuit and a workers’ compensation claim. The same injury may draw into question and interpretation the employer’s policies regarding leaves of absence and accommodation of disabilities. Giving competent advice in an OSHA matter may require resolving issues regarding workers’ compensation, the Family and Medical Leave Act, the Americans with Disabilities Act and state disability discrimination law. The extensive experience of the Labor & Employment Practice Group has prepared our attorneys to be responsive to the full gamut of potential issues. In addition to the experience of the Group’s attorneys, a nurse paralegal plays an active role in preparing for hearings and responding to inquiries from investigators, pleadings and discovery requests. Examples of our representative OSHA experience are as follows:

• Representation of many clients in various industries in OSHA investigations from opening conference through trial. Matters ranged from drafting responses to letter inquiries to representing several employers in death cases.
• Provided training to risk management professionals.
• Assisted clients in their recordkeeping compliance and provided related representation in the employment intentional tort and workers’ compensation areas.
• Representation of a metal fabricator in resolving an OSHA complaint, VSSR and workers’ compensation claim from an employee’s accident resulting in the amputation of a finger.
• Representation of a foundry before OSHA and the Industrial Commission after one of the company's employees died, allegedly from a workplace injury.
• Representation of a steel processing manufacturer in OSHA, workers' compensation and personal injury litigation proceedings following a machine failure resulting in the death of the machine operator.

Workplace Safety, Workers' Compensation & Unemployment Compensation 

Attorneys in the Labor & Employment Practice Group represent clients in administrative and judicial forums throughout the country.

A client’s problems related to workplace safety, unemployment and workers’ compensation matters are often linked with other aspects of labor and employment law. For example, a serious employee injury can result in a lawsuit, an OSHA complaint, and a workers’ compensation claim. The same injury may draw into question and interpretation the employer’s policies regarding leaves of absence and accommodation of disabilities. Giving competent advice in a workers’ compensation matter may require resolving issues regarding the Family and Medical Leave Act, the Americans with Disabilities Act and disability discrimination laws.

The extensive experience of the Labor & Employment Practice Group has prepared attorneys to be responsive to the full gamut of potential issues. In addition to the experience of the Group’s attorneys, a nurse paralegal plays an active role in preparing for hearings and responding to pleadings and discovery requests.

With the advent of managed care organizations (MCOs) in the workers’ compensation system, employers are reviewing their overall workers’ compensation administration. Some are now relying on their MCOs to provide basic administrative and gatekeeping services and relying on their attorneys to represent them in disputed claims and in administrative matters with the Bureau of Workers’ Compensation. The following examples show the breadth of the services provided to clients in workplace safety issues:

• Represented a major North American energy company in a workplace fatality claim brought by the deceased’s estate. All claims were settled favorably for our client.
• Represented an aerospace parts manufacturing client in a union arbitration, a workers’ compensation court appeal and a court case involving disability discrimination and workers’ compensation retaliation. Won a two-day arbitration hearing and settled retaliation and workers’ compensation cases.
• Negotiating a favorable settlement for a plastic products manufacturer, which was defending against its employee’s application for an award for the violation of a specific safety requirement.
• Represented a foundry in defending against its employee’s application for an award for the violation of a specific safety requirement.
• Represented a computer manufacturer in court and before the Industrial Commission and the Bureau of Workers’ Compensation in Columbus, OH, on matters dealing with the company’s unintentional failure to pay timely its workers’ compensation premiums.
• Working with a large health care provider to lower both its claims and administrative costs by advising on how to handle more of its own workers’ compensation administration.
• Proving that an employee of a national rental chain was feigning total disability for months and was entitled to no benefits.
• Successfully representing a furniture retailer in defending against a claim made by a disgruntled worker for unemployment compensation and a subsequent lawsuit for workers’ compensation retaliation.
• Successfully defending a large forgings producer in a workers’ compensation appeal by asserting that the trial court did not have the jurisdiction to hear case.
• Successfully representing a national market research firm, which had 150 Ohio employees, before the Court of Appeals in Columbus, OH, in an unemployment compensation contributions dispute.
• Representing clients at Industrial Commission hearings. Few employers realize that only their attorneys are authorized to cross-examine witnesses and argue facts and points of law to the Commission’s hearing officers. Other representatives, even if they are attorneys, can simply present facts on behalf of employers. This distinction was important when, on behalf of a steel fabricator, one of the Group’s attorneys successfully argued that a claimant was not entitled to the hefty percentage permanent partial disability award that he requested for the loss of his arm.