What is most gratifying about representing employees in litigation?
What we do is rescue individuals from serious conflicts at the most difficult times of their lives. In employment discrimination matters, knowing we are on the right side of the law and morality is the most gratifying aspect.
What are some of the challenges for plaintiffs’ firms?
It is challenging to maintain the economic viability of a law firm without compromising its ideals, values or social justice mission.
How did you decide you wanted to represent employees in particular?
I made the decision in 1998 when I was lead counsel in a nationwide race discrimination case against Cracker Barrel. The matter lasted five years and
was the only civil rights case during the George W. Bush administration in which the U.S. Department of Justice intervened. The Title VII case raised class discrimination matters and successfully concluded with a monetary settlement on behalf of thousands of economically marginalized employees of the restaurant chain across the United States.
This case made me aware of the impact my representation could have on low-income individuals’ lives, and I realized representing employees was a way of effectuating dramatic changes – both on a large social scale as well as at an individual, personal level.
If you could change something about labor and employment law, what would it be?
I would do three things:
Since you represent former employees in litigation, what would be your top three suggestions for management/human resources?
What do you see as the biggest litigation trends coming in 2020? How do you think management can prepare?
In 2020, I foresee more employment discrimination cases filed against BigLaw firms; more cases filed under the Equal Pay Act in all sectors; and more gender discrimination cases filed. Management can prepare for the changes ahead by being compliant with all applicable federal and state employment laws.
It is no secret the firm has taken the lead in challenging law firms. What risks do you see for law firms in terms of labor and employment violations? How can they do better?
The major risk for law firms is the lack of transparency in their compensation structures and decisions. Law firms can do better by paying their female lawyers at rates commensurate with the compensation of male lawyers. Firms should be sure to include more female lawyers in positions of leadership, power and decision-making.
One thing that comes up in my discussions during the research cycle is the infrequency of labor and employment trials. How many of the firm’s cases wind up at trial? From your perspective, what are some of the reasons cases tend not to get to the trial phase of litigation?
At Sanford Heisler Sharp, we have taken eight cases to trial in the past two years, including a class action against Oracle and a matter with 22 plaintiffs now being tried in state court in San Diego. Settlements are simply more cost-effective and smart defense lawyers settle cases. If cases don’t settle, it usually means that one side or the other has an unrealistic view of the outcome of the matter.
How does this affect future case law and precedents in labor and employment law?
Settlements mean we don’t have a full body of case law to guide practitioners and employers.
Who are three lawyers, past or present, that you look up to?
Washington, D.C.-based Paul L. Knight is one of the hardest working lawyers I know as well as the most knowledgeable person on the planet on the topic of legal ethics. He has been a resource for me and the firm for more than a decade. Being on the other side of litigation from Nancy E. Rafuse, a labor and employment lawyer in Atlanta, for five years in the Cracker Barrel case was an education. She is hard-working, very intelligent and one of the country’s best defense lawyers. Glen D. Nager is another attorney I admire. Glen is one of the smartest attorneys I know; he always devises creative solutions to very difficult problems.
What suggestions or advice would you give to up-and-coming lawyers in labor and employment litigation?
First, always think outside the box. Second, take cases and risks that other lawyers are unwilling to take. Third, always work harder than the other side.