Category: Labor & Employment

Wal-Mart Class Action Defense Cases–Dukes v. Wal-Mart : Ninth Circuit Court Affirms Class Action Certification Of Largest Labor Law Class Action In U.S. History

The National Law Review’s Featured Guest Blogger Michael J. Hassen of Jeffer, Mangels, Butler & Mitchell LLP discusses the recent California Employment Class Action cases involving WalMart’s female employees.  

Labor Law Class Action Alleging Wal-Mart Discriminates Against Female Employees in Violation of Title VII of the Civil Rights Act of 1964 Properly Certified As Nationwide Class Action by District Court Ninth Circuit Holds

Plaintiffs filed a class action against Wal-Mart alleging violations of Title VII of the Civil Rights Act of 1964; specifically, the class action complaint alleged that Wal-Mart discriminates against its female employees. Dukes v. Wal-Mart Stores, Inc., ___ F.3d ___ (9th Cir. April 26, 2010) [Slip Opn., at 6137, 6146]. According to the allegations underlying the class action complaint (originally filed in 2004), Wal-Mart discriminated against women employees in violation of Title VII of the 1964 Civil Rights Act because “women employed in Wal-Mart stores: (1) are paid less than men in comparable positions, despite having higher performance ratings and greater seniority; and (2) receive fewer—and wait longer for—promotions to in-store management positions than men.” Id., at 6147. The class action complaint sought to represent a nationwide class on the grounds “that Wal-Mart’s strong, centralized structure fosters or facilitates gender stereotyping and discrimination, that the policies and practices underlying this discriminatory treatment are consistent throughout Wal-Mart stores, and that this discrimination is common to all women who work or have worked in Wal-Mart stores.” Id. The proposed class included “women employed in a range of Wal-Mart positions, from part-time entry-level hourly employees to salaried managers.” Id. Plaintiffs’ counsel moved the district court to certify the litigation as a class action, defined as “All women employed at any Wal-Mart domestic retail store at any time since December 26, 1998 who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.” Id., at 6148. Defense attorneys opposed class certification and stressed that the proposed class would consist of as many as 1.5 million current and former employees who worked at 3,400 stores in 41 regions. Id., at 6148 and n.3. The district court granted the motion and certified the litigation as a class action, id., at 6146-47. The Ninth Circuit affirmed. The Circuit Court opinion is quite lengthy, so we simply “hit the highlights” in this article. Defense attorneys may contact the author of the Blog for a more detailed discussion of the case.

The Ninth Circuit spent a considerable amount of time discussing the standard governing district court consideration of class certification under Rule 23 and clarified the “proper standard of Rule 23 adjudication.” See Dukes, at 6149-83. This analysis includes a discussion, and rejection, of the dissent’s “significant proof” standard. See id., at 6177-83. The Circuit Court then turned to the merits of the Rule 23 analysis, beginning with Rule 23(a)(1)’s numerosity requirement, which was not contested given the enormous size of the class. Id., at 6185. The Court also found that Wal-Mart had not waived its right to object to Rule 23(a)(3)’s typicality requirement, see id., at 6209-10, but concluded that the district court did not err in finding that the named-plaintiffs’ claims were sufficiently typical of those of the class: “Even though individual employees in different stores with different managers may have received different levels of pay or may have been denied promotion or promoted at different rates, because the discrimination they claim to have suffered occurred through alleged common practices—e.g., excessively subjective decision making in a corporate culture of uniformity and gender stereotyping—the district court did not abuse its discretion by finding that their claims are sufficiently typical to satisfy Rule 23(a)(3).” Id., at 6210. Moreover, “because all female employees faced the same alleged discrimination, the lack of a class representative for each management category does not undermine Plaintiffs’ certification goal.” Id., at 6211. And the Ninth Circuit found no difficulty in finding that the adequacy of representation test in Rule 23(a)(4) had been met. Id., at 6212.

The Circuit Court spent the vast majority of its time discussing Rule 23(a)(2)’s commonality test. See Dukes, at 6186-6209. The district court found that this test had been met: “Plaintiffs have exceeded the permissive and minimal burden of establishing commonality by providing: (1) significant evidence of company-wide corporate practices and policies, which include (a) excessive subjectivity in personnel decisions, (b) gender stereotyping, and (c) maintenance of a strong corporate culture; (2) statistical evidence of gender disparities caused by discrimination; and (3) anecdotal evidence of gender bias. Together, this evidence raises an inference that Wal-Mart engages in discriminatory practices in compensation and promotion that affect all plaintiffs in a common manner.” Id., at 6186-87 (citation omitted). The Ninth Circuit agreed, id., at 6287. Despite the wide-ranging nature of the class, the Court held that there was sufficient evidence of a common policy of discrimination, see id., at 6187-6207. The Circuit Court also found that the district court did not err in finding “substantial evidence suggesting common pay and promotion policies among Wal-Mart’s many stores” and that “Wal-Mart’s decision to permit its managers to utilize subjectivity in interpreting those policies offers additional support for a commonality finding.” Id., at 6207. Thus, the Court concluded at page 6209:

Plaintiffs’ factual evidence, expert opinions, statistical evidence, and anecdotal evidence provide sufficient support to raise the common question whether Wal-Mart’s female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII. Evidence of Wal-Mart’s subjective decision-making policies suggests a common legal or factual question regarding whether Wal-Mart’s policies or practices are discriminatory.

Finally, “Plaintiffs moved to certify the class under Rule 23(b)(2), which requires showing that ‘the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a whole.’” Dukes, at 6214. The Circuit Court recognized that a (b)(2) class was inappropriate if the primary relief sought by the class action complaint is monetary. Id., at 6214-15. The Ninth Circuit previously had adopted “a test that focuses on the plaintiffs’ subjective intent in bringing a lawsuit.” Id., at 6215. But the Court now reversed that position and adopted an entirely new standard, set forth at page 6217 as follows:

Rule 23(b)(2) certification is not appropriate where monetary relief is “predominant” over injunctive relief or declaratory relief. To determine whether monetary relief predominates, a district court should consider, on a case-by-case basis, the objective “effect of the relief sought” on the litigation. [Citation.] Factors such as whether the monetary relief sought determines the key procedures that will be used, whether it introduces new and significant legal and factual issues, whether it requires individualized hearings, and whether its size and nature—as measured by recovery per class member—raise particular due process and manageability concerns would all be relevant, though no single factor would be determinative.

The Court then concluded: “Under this standard…, the district court’s decision to include claims for back pay in a class certified under Rule 23(b)(2) was not an abuse of its discretion. On the other hand, the district court did abuse its discretion by failing to analyze whether certifying Plaintiffs’ punitive damages claims under Rule 23(b)(2) caused monetary damages to predominate, notwithstanding its decision to require notice and an opportunity for Plaintiffs to opt-out of the punitive damages claims.” Dukes, at 6217. Thus, the Ninth Circuit reversed and remanded the matter to the district court for further consideration of the punitive damage relief claim. Additionally, the Circuit Court agreed with Wal-Mart that (b)(2) class may not be proper as to employees who no longer worked for Wal-Mart at the time the class action was filed because those individuals “do not have standing to pursue injunctive or declaratory relief.” Id., at 6228. Wal-Mart argued that since former employees lacked standing to seek injunctive relief, monetary relief would predominate for those class members. Id. But while the Court reversed the district court order to the extent it included former employees in the (b)(2) class, it remanded the matter for further consideration as to whether a (b)(3) class could be certified for such individuals noting, “The district court may, in its discretion, certify a separate Rule 23(b)(3) class of former employees for back pay and punitive damages.” Id., at 6229. Accordingly, the Court affirmed in part and reversed in part. Id., at 6236-37.

Judge Graber filed a brief concurring opinion to stress the “unremarkable” nature of the Court’s holding: “The majority and the dissent have written scholarly and complete explanations of their positions. What the length of their opinions may mask is the simplicity of the majority’s unremarkable holding: [¶] Current female employees may maintain a Rule 23(b)(2) class action against their employer, seeking injunctive and declaratory relief and back pay on behalf of all the current female employees, when they challenge as discriminatory the effects of their employer’s company-wide policies. [¶] If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a class. Certification does not become an abuse of discretion merely because the class has 500,000 members.” See Dukes, at 6237-38.

NOTE: Judge Ikuta dissented, joined by Chief Judge Kozinski and Judges Rymer, Silverman and Bea. See Dukes, at 6238-6279. The dissent argued that “the district court abused its discretion in two ways. First, it failed to follow the Supreme Court’s direction to ‘evaluate carefully the legitimacy of the named plaintiff’s plea that he is a proper class representative under Rule 23(a),’ [citation], and to ensure ‘after a rigorous analysis’ that the prerequisites of Rule 23(a) have been met, [citation]. Second, the district court erred in ignoring Wal-Mart’s statutory right to raise defenses to liability for back pay and punitive damages under Title VII, see 42 U.S.C. § 2000e- 5(g)(2); Rules Enabling Act, 28 U.S.C. § 2072(b), and therefore abused its discretion in holding that the proposed class could be certified under Rule 23(b)(2).” Dukes, at 6243.

Chief Judge Kozinski joined the dissent and added the following concise explanation: “Maybe there’d be no difference between 500 employees and 500,000 employees if they all had similar jobs, worked at the same half-billion square foot store and were supervised by the same managers. But the half-million members of the majority’s approved class held a multitude of jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed depending on each class member’s job, location and period of employment. Some thrived while others did poorly. They have little in common but their sex and this lawsuit. [¶] I therefore join fully Judge Ikuta’s dissent.” Dukes, at 6279.

© 2010 Jeffer Mangels Butler & Mitchell LLP. All rights reserved.

About the Author:

Michael J. Hassen is a Litigation Partner at Jeffer Mangels Butler & Mitchell LLP with more than 23 years experience in general business and commercial litigation, including class action defense and matters involving intellectual property, securities and unfair competition.  415-984-9666 / www.jmbm.com


Are You Calling, E-mailing or Texting Employees While They Drive? You May Want to Reconsider.

National Law Review Guest Blogger David Carr discusses the every day issue of communicating with employees while they’re driving with a colorful fact pattern.  

A recent court decision involving particularly bizarre circumstances may signal a warning of importance to employers about not so bizarre business practices.  Prudent employers will take heed. 

At first blush, the case of Buchanan v. Vowell appears to have no bearing on any significant employment law issue.  Jerry Buchanan, the plaintiff, brought suit as a pedestrian who was hit by a car operated by the defendant, Candice Vowell.  However, Buchanan also sued Candice Vowell’s mother, Shannon Vowell.  (Other facts involve the Vowells’ consumption of alcohol and Shannon Vowell’s employment with Brad’s Gold Club.)  The key facts generated the question of whether Shannon Vowell possessed liability for the unfortunate accident that occurred when Candice Vowell struck Buchanan with her vehicle after leaving Brad’s Gold Club.  Brad’s Gold Club also found itself a defendant in the resulting lawsuit.  However, the importance of this case arises not from the potential liability of Brad’s Gold Club.  Presumably, most employers know about the dangers of serving alcohol to an employee and the attendant liability that arises if an intoxicated employee leaves an employer party or event and injures someone.  If this proposition constituted all the case stood for, no novel issue exists. 

Instead, what makes this case important and novel is the question of the liability of Shannon Vowell.  The issue in question revolves around whether Shannon Vowell possessed liability for the injuries suffered by virtue of Candice Vowell’s striking Buchanan with her car.  How could liability exist? 

It turns out Shannon and Candice Vowell consumed alcohol together at Brad’s Gold Club and Shannon Vowell determined that, upon leaving, rather than call a cab or have Candice Vowell ride as a passenger in Shannon Vowell’s car, the two would traverse the streets of Indianapolis in two vehicles with Candice Vowell leading and Shannon Vowell following.  At the time of the accident, Shannon Vowell was following Candice Vowell in a separate vehicle, and was engaging Candice Vowell in a conversation on a cell phone.  Under these facts, could Shannon Vowell be found liable?   

Buchanan alleged that, at the time of the accident, Shannon Vowell knew Candice Vowell was operating her vehicle while intoxicated and knew, or should have known, that talking on her cell phone would further impair or distract Candice Vowell, making her even more dangerous to other persons using the streets.  Buchanan further alleged that Shannon Vowell “negligently made the affirmative, conscious effort to call Candice Vowell, distracting her from maintaining a proper lookout.” 

In determining Shannon Vowell’s liability, the court looked at the Restatement (Second) of Torts § 324(a) which provides “one who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third party or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise a reasonable care to protect his undertaking, if (a) his failure to exercise  reasonable care increases the risk of such harm or (b) he has undertaken a duty to perform a duty owed by the other to the third person or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” 

The trial court chose to dismiss Shannon Vowell as a defendant.  The Court of Appeals reversed and found that Shannon Vowell had acted in a negligent fashion by communicating with Candice Vowell on her cell phone when she knew that Candice Vowell was driving a car.  The Court concluded that Shannon Vowell, as an individual, may have breached her duty of reasonable care “by calling and distracting a person she knew was operating a vehicle . . . .” 

Perhaps you now see the potential significance of this case.  One suspects that every day supervisors call, e-mail or even text “mobile” employees in the act of driving.  It certainly appears an avenue now opens for employers to be liable for any action that occurs while the employee attempts to drive and text or talk via cell phone with the employer.  While such a ruling would require an extension of the precise holding of Buchanan v. Vowell due to the added element of consumption of alcohol, it does not appear to be a difficult stretch.  Wise employers will consider this case and set specific standards and protocols for when employees should and should not use their cell phones and text in the course of operating a company vehicle or carrying out company duties.

© 2003-2010, Ice Miller LLP

About the Author:

David J. Carr is a partner in the Labor and Employment Law practice group of Ice Miller LLP, focusing his practice in the areas of litigation of employment contracts involving trade secrets, confidential information and covenants against competition, complex wage and hour law issues, employment discrimination, and personnel policies. Mr. Carr is a veteran labor negotiator and has handled numerous labor arbitrations, union avoidance and other collective bargaining matters in both the public and private sectors. He also has substantial experience representing employers in wrongful discharge lawsuits and employment discrimination investigations, including sexual harassment situations.

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  • david.carr@icemiller.com
  • www.icemiller.com

    • Outgoing ABA President Carolyn Lamm Discusses Next Steps to Achieving a More Diverse Legal Profession

    The Business of Law Guest Blogger this week at the National Law Review is Vera Djordjevich of Vault Inc. with an interview of outgoing ABA President Carolyn Lamm Discussing the  Next Steps to Achieving a More Diverse Legal Profession. 

     On July 30, 2010, Vault and the Minority Corporate Counsel Association (MCCA) held their 5th Annual Legal Diversity Career Fair at the Renaissance Hotel in Washington, D.C. More than 1,000 law students and lateral associates registered for the event, where hiring partners and recruiters from some 30 law firms, government agencies and corporate law departments were on hand to meet with candidates, review their resumes, offer advice and answer questions.

    The event kicked off with a special breakfast where Brian Dalton, Vault’s managing editor, unveiled the company’s 2011 Law Firm Diversity Rankings, the result of Vault’s annual Law Firm Associate Survey. Vault also honored the Top 20 law firms—led by this year’s overall winner, Carlton Fields—who were the most highly rated by their own associates for their commitment to hiring, retaining and promoting diverse attorneys.

    The event’s lunch featured Carolyn Lamm, outgoing president of the American Bar Association and a partner at White & Case, as the keynote speaker. Recently named one of “Washington’s Most Influential Women Lawyers” by The National Law Journal, Ms. Lamm has, during her tenure as ABA president, established a Presidential Commission on Diversity as well as a Commission on the Impact of the Economic Crisis on the Profession and Legal Needs. On August 10, 2010, Ms. Lamm turns over the helm to President-Elect Stephen Zack, a partner at Boies, Schiller and Flexner and the first Hispanic American to serve as ABA president. 

    Before her address, Ms. Lamm sat down with me to discuss the state of diversity in law firms, highlight some of the ABA’s goals and initiatives, and forecast what a truly diverse profession will look like.

    VAULT:  How would you characterize the state of diversity in the legal profession today? 

    In a word: evolving. In 2009, the ABA conducted an extensive national assessment of the state of diversity in the legal profession, including hearings held around the United States—with practitioners, academics, corporate counsel—whose results were synthesized into a report, “Diversity in the Legal Profession: The Next Steps.” We found that, although our profession today is more diverse and inclusive, and has made significant advances, many obstacles to free and equal professional success remain. For example:

    • While women make up just over half of the U.S. population and half of the entering classes in law schools, they represent one third of the lawyer population, about 18 percent of law firm equity partners and 20 to 25 percent of the judiciary.  
    • Racial and ethnic minorities make up approximately one third of the U.S. population, but they represent only 10 percent of the lawyer population, less than 16 percent of judges and 6 percent of equity partners.

    These numbers do not nearly reflect the diverse range of talent in our profession. Our lack of diversity runs counter to the promise of fairness and equality that is our profession’s bedrock, depriving the community of a bench that reflects the community and of legal advice that is a product of diverse views.

    VAULT:  What are the principal challenges to increasing diversity at law firms?

    First, through what are known as “pipeline programs,” we need to get more racial and ethnic minorities into law school. We must do all we can to encourage young people of all backgrounds that a career in the law can be fulfilling, and that we welcome them to the profession. Through educational and scholarship programs, we must make it easier for qualified people of diverse backgrounds to pursue legal careers.

    Then, once people enter the profession, we must work on retention. An ABA report from the Commission on Women in the Profession, titled “Visible Invisibility: Women of Color in Law Firms,” revealed startling realities about the experiences of women of color, including anecdotal evidence that nearly half of women of color have been subjected to demeaning comments or other types of harassment while working at a private law firm (compared with only 2 percent of white men reporting the same experiences). A substantial number also report being passed over for desirable work assignments, being excluded from networking opportunities, and having received at least one unfair performance evaluation. These and other disparities allow us to better understand why women of color have a nearly 100 percent attrition rate from law firms at the end of eight years.

    Another challenge facing law firms—especially those that have been addressing diversity issues for a while now—is to evolve from the traditional idea of diversity to understand and embrace inclusion. Diversity basically speaks to the numbers: proactively doing things to increase the numbers of diverse persons in the firm. While that is absolutely essential, it’s not enough. We now must focus on building inclusive work environments that demonstrate that we value diverse perspectives and understand how they benefit the organization overall.

    VAULT:  Has the current state of the economy further exacerbated these difficulties? 

    Yes. The ABA’s “The Next Steps” report found that the “recession is drying up monies for diversity initiatives and creating downsizing and cutbacks that may disproportionately and negatively affect lawyer diversity—thereby undoing the gains of past decades.”

    The American Lawyer’s annual report on diversity confirmed the anecdotes that have been voiced throughout the legal community. Its 2010 Diversity Scorecard reported that for the first time in 10 years the proportion of lawyers of color has decreased, based on a survey of the country’s 200 largest firms. While big firms lost 6 percent of their attorneys between 2008 and 2009, they lost 9 percent of their minority lawyers. Some experts fear that this could be the start of a new downward trend, given a climate of slower law firm hiring, fewer African-American and  Mexican-American law students, and law firm layoffs.

    VAULT:  Where are you seeing the most improvements?

    Both the quantity and quality of pipeline diversity programs have improved in recent years. The ABA, in collaboration with the Law School Admission Council, has an online Pipeline Diversity Directory. In the past year, the number of entries in the directory has almost doubled and it now includes over 400 programs across the country that work to improve diversity in the educational pipeline to our profession, such as the judicial clerkship program.

    Collaboration is another area of noted improvement. More firms, bar associations, law schools, corporate law departments and other groups are pooling their resources and building partnerships to address diversity and inclusion. 

    VAULT:  Tell us about some of the ABA’s diversity initiatives and goals.

    Nearly all entities throughout the ABA work to foster greater diversity in the legal profession. The ABA’s Center for Racial and Ethnic Diversity is a centralized resource for many of these activities. Within the Diversity Center, there are three groups that each addresses a distinct area:  

    In addition, the Commission on Women in the Profession works to secure the full and equal participation of women in the ABA, the legal profession and the justice system. The Commission on Mental and Physical Disability Law addresses disability-related public policy, disability law, and the professional needs of lawyers and law students with disabilities. The Commission on Sexual Orientation and Gender Identity seeks to secure for lesbian, gay, bisexual, and transgender persons full and equal access to and participation in the ABA, the legal profession and the justice system.

    This year I appointed a Presidential Commission on Diversity, which produced the “Next Steps” monograph. The report gives recommendations for next steps to increase diversity in the different sectors of the legal profession, recognizing the different challenges within each one: law firms and corporations, the judiciary and government, law schools and the academy, and bar associations. The commission is working with the ABA’s existing efforts to provide practical resources and guidance for women lawyers, lawyers of color, disabled lawyers, and lawyers of differing sexual orientations and gender identities to help pierce the glass ceiling. Central to the commission’s efforts is a series of distance-learning CLE programs to help diverse lawyers advance their legal careers. The programs are available on the ABA website as podcasts.

    VAULT:  What do you think about the reporting of diversity metrics and rankings, such as the Vault/MCCA Diversity Survey and Vault’s Diversity Rankings, as a means of encouraging law firms to step up their commitment to hiring, retaining and promoting diverse attorneys?

    It can be an effective tool if it is used properly and in conjunction with other tools and incentives, and if it is transparently done. If reporting on diversity metrics or rankings is used only to prod and push law firms to engage in diversity  efforts, those efforts will not be sustainable. But we must know the statistics in order to know where we are and where to devote resources in order to move forward. If we can help more firms understand the value diversity brings to every aspect of their operations, metrics and rankings will become a welcome opportunity to showcase how well they are doing with hiring, retention and promotion of diverse attorneys.

    VAULT:  How do diversity-focused events like this career fair help advance diversity objectives?

    So much of hiring involves networking and word-of-mouth referrals—hardly just help wanted ads. In such a difficult job market, it is great to bring excellent candidates together with organizations that want to hire from diverse candidate pools. It’s important for employees and employers to get out there, network and explore career options—face to face whenever possible. Events such as these are especially useful when employers are hiring out of a regular recruiting schedule. But even if such leads don’t lead directly to job placements, they form the basis of career exploration and ideas that can, and do, produce results.

    VAULT:  What will success look like? 

    A diverse profession that reflects our community. A diverse legal profession is more just, productive and intelligent, because diversity often leads to better questions, analyses, processes and solutions. We are committed to see a Supreme Court that reflects our population and a profession in which each lawyer, no matter what their gender, racial or ethnic background, sexual orientation or disability, has the opportunity to achieve all they are capable of.

    The only way we will see success is if our profession is a true reflection of our communities—even if it’s one person in one position at a time.

    © 2010 Vault.com Inc.

    About the Author:

    Senior Law Editor, Vault.com

    Vera Djordjevich is senior law editor at Vault.com, where one of her areas of focus is diversity in the legal profession. She oversees the research and publication of information about law firm diversity initiatives and metrics for the Vault/MCCA Law Firm Diversity Database. She also edits Vault.com’s content related to law practice in the UK and co-authors Vault’s law blog, which provides career news, advice and intelligence to the legal community.   publicity@vault.com 212-366-4212 www.vault.com

    For Health Care / HR Professionals ASHHRA's 46th Annual Conference & Expo Sept. 25-28 in Tampa, FL

    For Health Care – HR Professionals – the National Law Review wants to remind you that the Advanced Registration Discount date in August 25th  for the 46th Annual ASHHRA Conference in Tampa, FL.  The  conference runs from September 25th – 28th.  For more info:    http://dld.bz/rBN8

    Surviving the Economy: Dancing in the Economic Storm

    “Life isn’t about waiting for the storm to pass… It’s about learning to dance in the rain.”
    Vivian Greene

    Americans remain apprehensive about the economy, their job prospects and their incomes, even as a recovery is taking shape. We as a country are going through a financial crisis, which is testing us in many ways. Although, individually, we are being and will be affected to different degrees and in various ways, as a country, we are learning how to deal with these challenging times.

    It is natural for us to be concerned about our future when we see the economy struggling and people getting laid off and lacking basic necessities. Anger is building in many sectors of society. Like many others, you may be feeling pain, fear, anxiety, betrayal, anger and even hate towards those you believe are responsible for what has happened. However, these emotions will not help you deal with the situation effectively.

    Each of us desires the kind of comfort that will keep us steady in times of crisis, regardless of the circumstances. The process of remaining steady in challenging times begins with our outlook. It is important to remember that during difficult moments, we are not powerless. Rather, the contrary is true. We have the power to overcome many of the challenges we face. All too often, we feel so overwhelmed by negative possibilities that we fail to see opportunities before us.

    Linkedin Logo Neon It is imperative to maintain an optimistic attitude and arm yourself with practical tools for survival. Since the job market is harder to penetrate now, making it even more competitive, you must be flexible regarding such issues as the type of employer, industry and compensation. Experience and education are more vital than ever. Professional networking sites such as LinkedIn have become an excellent venue for reaching a vast pool of potential employers and should be considered an important resource when looking for jobs. Statistically, over 75% of jobs are found as a result of networking.

    It also is essential to know what is going on in the job market and, specifically, the legal industry. This year, small and midsize law firms have been busier than larger ones. Some of these firms are litigation boutiques whose business has increased as a result of litigation related to failed companies and financial institutions or disgruntled investors. Securities and white-collar litigation also has begun to improve. Labor and employment litigation has increased since more companies have implemented layoffs. IP litigation also has remained a strong practice area in most markets. Bankruptcy and reorganization practices have thrived as a result of the economic impact on companies. Additionally, many smaller firms are busier because corporate clients have sought (or demanded) lower fees. Undoubtedly, this trend is likely to continue in the foreseeable future.

    Employers of all sizes are taking longer to make hiring decisions. Consequently, finding a job has become a much slower process. It is an employers’ market because they can afford to be more particular about which candidates they interview and hire given that they have a much larger pool of applicants to consider. Therefore, do not assume you have been rejected simply because you have not heard from a prospective employer in a few weeks.

    It is a tough job market out there – probably one you never thought you would encounter in your lifetime. Opportunities are scarce in this economic climate and this is the new reality. Multiple job offers are likely a thing of the past, at least for the time being. If you already have a job, remember that anyone in this economy could be the next person let go. Even if you are a star who has great training, experience and skills, and has formed alliances at work, you could be one step away from a job search.

    With that said… now is the time to outdress, outspeak and outsmart your competition. And most importantly… it’s time to learn to dance!

    Contributed by Guest Blogger Rodney L. Abstone II of  Chicago Legal Search, Ltd.

    ©2010 Chicago Legal Search, Ltd. All Rights Reserved.

    How Law Firms Can Leverage Their Relationships With Alumni (Including Those Not Leaving of Their Own Accord) and Why It Matters

    From Guest Blogger Kate Neville of Neville Career Consulting, LLC – why keeping good relations with firm Alumni is important: 

    A. Challenges of the New Economy

    In 2009, more people were laid off by more firms than had been reported for all previous years combined.1 Letting attorneys go in significant numbers is not something large law firms have had a great deal of experience with until recently. Standard practice in most large law firms had been to retain attorneys until a partnership decision was made. These firms did so in part because they feared the reputational stigma attached to firing one of their own; as one blog explains, the “vast majority” of prospective lawyers “turned up their noses at firms…[that] laid people off.”2

    How quickly times have changed. Despite the novelty of big firms having to let their attorneys go, it still comes as a surprise how poorly some large law firms have handled the process of layoffs over the past year. To be fair, firms made these decisions under great stress and uncertainty, when the risk of total firm collapse existed and in fact happened to some, which certainly influenced the choices they made.  Many firms insist that they have only let attorneys go for performance rather than economic reasons, even when it strains credulity. It is difficult to believe that a firm suddenly realized, all at once, that dozens of its attorneys had sub-par performance, particularly when some of those lawyers were recently made junior partners, or when those attorneys were in their first or starting their second year of practice.

    Most analysts (and other attorneys in private conversation) recognize that these lawyers would never be let go in a stronger economy as long as they made money for employers. To their credit, some firms forced to make layoffs have stated this explicitly and expressed regret at having to say goodbye to respected colleagues.  Even at firms that have been up front about the economic necessity of layoffs, however, stories abound of attorneys being given almost no notice, little or no severance, and no assistance in securing a new position.  Departing associates have told of working closely with a partner for years, only to receive an email message in farewell.  In a few cases, attorneys have been shut out of the firm’s computer system while they were being given the news, and others have been immediately escorted out of the building with their personal items forwarded separately by messenger. Such jarring departures, while common in investment banking and internet start-ups, had been unheard of for members of the bar in good standing whose only misdeed was that they were caught in a down legal economy.

    Certainly, not all firms have handled things so poorly. Indeed, some have worked to create a “soft landing” for their attorneys who have been laid off. These efforts have typically included providing career counseling and outplacement services, offering appropriate severance packages, making office space available, and keeping attorneys’ phone lines and email accounts active.

    By far, the most helpful — and loyalty engendering– thing a firm can do for its former attorneys is to make calls on their behalf and provide contacts who are knowledgeable about opportunities for the individual now looking. In the past, once it was decided that a senior associate was not going to be made partner, almost all large firms made an effort to place the individual in a position with a client or somewhere one of the firm’s partners was well known. While some individual attorneys have asked for and received this type of help in the past year, the courtesy has not been extended as a matter of practice to attorneys told that they no longer have a position with their firm.

    There is of course no public data on which firms did what in the process of letting go of attorneys, so it is impossible to calculate how things were handled by the field as a whole.  Nevertheless, it remains clear that in the face of hard times and increasing financial pressures, it is in a firm’s interest to avoid unnecessarily aggressive, and arguably self defeating, approaches to downsizing their workforce.

    B. The Business Rationale: Why It Matters

    As one large firm associate noted in early 2009,

    I remember back in 2003, one of my colleagues was laid off from our firm, and they provided him with six months’ salary and hired a professional career consultant/placement agent to help him land safely.…This firm did all the right things, including telling him that it was purely for economic reasons and not performance related. The rewards to the firm were obvious — he joined the in-house legal team of a Fortune 50 corporation, and still looks back fondly at our former firm despite being laid off.3

    The absence of far-sighted strategies on the part of some large firms in letting attorneys go exists, of course, in large part because firms are under pressure to save money—the driving force behind the layoffs in the first place. Economic conditions have changed drastically since 2003 — firms no longer feel flush, there is no reassurance that business will increase in the near future, and fewer Fortune 50 corporations are hiring.

    It seems that, in their rush to adapt to changing economic conditions, decision makers at some firms may have lost their long-term perspective. In some cases, administrators in charge of marketing and business development have made the case internally for substantive severance packages in order to maintain goodwill among departing attorneys only to be turned down by managing partners or others on the management committee.

    The question remains at what cost firms make these decisions. Eventually the downturn will end. Law firm alumni will find jobs somewhere, very possibly with potential clients, and firms will get back into hiring mode. Consequently, it makes economic sense for firms to handle layoffs sensitively and to do as much as they can for outgoing employees in the midst of tough economic times.

    When firms insist on claiming performance issues and treat their former employees so poorly, it not only poisons the relationship with the individual but also can quickly ruin the firm’s reputation with that individual’s former colleagues, clients, and fellow alumni. These procedures and processes — or the lack thereof — also mean that a firm assumes the risk of driving away future candidates and causing prospective clients to question the firm’s judgment, placing its future in jeopardy. It is difficult to see a rationale for some of the problematic things firms have done.

    Accounting firms and management consulting firms have for many years invested in maintaining good relations with their former employees. They have, of course, not done so out of the goodness of their hearts but rather because it has proven to be good business. Through measures such as developing alumni networks to keep in touch and developing programs that attract alumni to remain engaged with their former employers, these companies regularly develop future business contacts and promote loyalty and goodwill that can help attract top candidates and clients in the future. The business argument that has persuaded business leaders across industries to maintain good relationships with their former employees follows.

    First, attorneys already have a lifetime affiliation with a firm for which they have worked because the firm is always on their resume. When asked, as will be the case in almost any new position, alumni will of course speak more highly of the firm if their departure is handled well. The reverse is also true.

    Second, the market will improve at some point, and firms will again compete for talent.  It is much less expensive to rehire people who have already been trained by the firm than to invest the huge sums that firms have traditionally put into their recruiting programs or paying recruiters to hire laterals.  Alienated former employees will not want to return and, even if they do, are not likely to perform at their best. In addition, any negative information about a firm will impact future law student candidates who often listen closely to the experience their school’s alumni have had with a firm. These recruiting circles are small.

    Third, especially in a tough economy, it is critical to leverage relationships for business development. A firm has no way of knowing where its former attorneys will end up; and, if they happen to land in a large potential client’s office, their opinion of the firm matters a great deal. Conversely, if attorneys retain a positive view of their experience there, the firm could have much to gain.

    Law firms have an opportunity to learn from corporate America and recognize that it is always good business to create a web of connections and to invest in developing positive relationships among people. Over the past year, only a limited number of law firms have seemed to understand that it is in their interest to help their attorneys land well.

    C. What: Programming For Big Impact With Little Dollars

    The lack of foresight many firms have demonstrated in how they let attorneys go is not only due to pressure to save money but is also explained in part by the legal field’s record of lagging behind other industries in developing and leveraging alumni networks.  Some law firms have taken the lead in developing such programs in recent years, but making the case for a law firm to develop procedures to maintain goodwill with their attorneys on their departure and going forward will likely be an uphill climb in the current economy. Virtually all businesses are concerned about how to do more with less, so law firm leaders are likely to question what can be done when most are already having to make budget cuts.

    Even though law firms lack the infrastructure that other industries have created, measures to maintain good alumni relations do not need to be cost-intensive. At their core, successful networks are a combination of strong communications, networking, and follow-up. As other industries have learned, such programming is all about relationships; and, while it may be nice to have money to support them, hosting receptions and other costly events is not the only option.

    In fact, inviting alumni to a law firm social event may not be the most effective route to maintaining good relations with attorneys who have been asked to leave. In one example, associates who had been laid off received their firm’s alumni end-of-the-year newsletter, which included an invitation to the firm’s holiday party. To its credit, the firm was making clear it considered these former employees to be just like other alumni of the firm, but several of the laid-off attorneys expressed incredulity that the firm that fired them now wanted to celebrate the end of the year with them. Further, the firm seemed to lack sensitivity when the letter it sent went on to tout how successful the firm had been that year — one in which it also laid off 55 attorneys, all of whom were receiving this news.4

    Other kinds of interaction could prove to be both more productive as well as less expensive than formal events. Particularly when administrators within a firm have seen their responsibilities expand because fewer people are left to do the work, the measures a firm is most likely to adopt are those that will not require much additional work. A few lowcost examples of steps to maintain good relations with law firm alumni follow.

    First, the loyalty-engendering practice mentioned above — of partners giving departing attorneys contact information for those who are knowledgeable about the individual’s field and making calls on an attorney’s behalf — costs nothing but a little time. Particularly since it has now become standard practice solely to confirm dates of employment, law firms willing to reach out on an individual’s behalf, give candid recommendations, or at the very least provide an objective reason for the departure, will stand out among their competitors.

    Second, a firm can piggyback the steps it takes to develop alumni networks onto other initiatives already being undertaken. These can include incorporating alumni into client seminars and events, offering discounted continuing legal education (CLE) programs to keep bar memberships current, and inviting alumni to program events already planned as part of women’s or diversity initiatives or of particular practice areas.

    Third, a firm can inexpensively create an alumni directory, keeping email addresses and other contact information updated so that individual alumni can reach out independently to one another. Maintaining such a directory provides a fair-value exchange for the firm, which gets up-to-date employment information and business leads.

    Fourth, disseminating job postings has been a low-cost item that many attorneys have appreciated in firms that have begun this practice. The firm’s clients are often happy to have applications from alumni, and posting positions of which a firm’s individual attorneys are aware helps build their personal networks as well.

    Finally, in headier economic times a number of firms developed a component of their websites specifically dedicated to alumni of the firm, but creating a firm-specific alumni group on Linked In and Facebook can achieve similar results at lower cost. Content is typically driven by determining what information alumni want, which has included career programs (webinars, conference calls, or in-person) and allowing alumni to opt in to different newsletters that practice areas put out with practice/industry-related news.

    The future hiring model for large law firms remains up in the air, and the rise in the use of contract attorneys may change these equations so that law firms make money without modifying the way they let their attorneys go. The return on investing in continuing relationships will be great for firms that still want to compete for top talent and loyal clients.

    For those firms that want to compete but might have handled layoffs in ways that were less than productive last year, future success will largely depend upon senior management creating a culture that recognizes the value of strong relationships and leverages opportunities to maintain them.

    1 “The Year in Law Firm Layoffs – 2009,” LawShucks. According to the blog LawShucks and as cited in the ABA Journal on January 8, 2010, 4,633 lawyers were laid off at 138 large firms.

    2 Ibid.

    3 Anonymous posting to Above The Law, February 5, 2009.

    4 As posted on Above The Law, December 8, 2009.

    © 2007-2010 Neville Career Consulting, LLC

    Posted by: Kate Neville

    Kate Neville, Esq., a Harvard Law graduate, is founder of Neville Career Consulting, LLC, which provides guidance to attorneys considering a job change or career transition, whether within the practice of law or to another field.She began her career practicing law at Simpson Thacher & Bartlett and as an in-house attorney for New York City government before shifting to positions in management consulting and policy analysis. After serving as an advisor in Georgetown Law’s Office of Career Services, Kate decided to use her experience to help practicing attorneys identify the full…

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    Labor Law and the First Amendment: An Argument Against Faith-Based Schooling

    I went to Catholic School and I survived
    I went to Catholic School and I survived

    This post from NLR’s weekly guest blogger Huma Rashid is sure to give some folks a wedgie – Huma is addressing the interplay between religious schools and organized labor:

    As of 2009, a little over six million American students (or 11% of all students in this country) attended a private school. The majority of private schools in the United States are operated by a religious institution. Religiously affiliated and denominational schools form a large subcategory of private schools, and instruct pupils in religious subjects and practices as well as secular subjects. These religious schools are privately financed, and as a result are usually able to skirt certain state regulations. Their costs are funded largely through tuition and donations. Out-of-pocket costs to the student attending these religious schools are usually much greater than a comparable private school, though the actual cost on a per-student basis is, on average, nearly double for public schools. Teachers, at these schools, despite the relatively high cost of attendance, were shown to be paid 45% less, on average, than public school teachers.

    But salary isn’t the only area in which teachers at private, religiously oriented institutions miss out. Aside from making considerably less than their counterparts at public schools, private school teachers lack the statutory protections of the National Labor Relations Act, a vulnerability that can completely change the nature of employment at such an institution and has caused many to wonder if faith-based schooling is a worthwhile alternative for American students.

    The full text can be read at:  http://www.natlawreview.com/article/labor-law-and-first-amendment-argument-against-faith-based-schooling