Banking. As federal depositories, most banks are required to maintain affirmative action plans and are often the targets of compliance reviews and corporate management "glass ceiling" reviews by the Department of Labor’s Office of Federal Contract Compliance Programs ("OFCCP"). The banking industry is also vulnerable to employment-related lawsuits, particularly those alleging discrimination on the basis of sex or race. Because banks are relatively new to multistate operation, geography also creates challenges to effective legal defense.

Constangy’s Affirmative Action practice group and its experienced Litigation team are ready to assist with any discrimination issues that might arise. Our offices throughout the Southeast and in the Midwest allow us to better provide a unified defense to financial institutions doing business in multiple states.

Constangy also plays a substantial advisory role with its banking clients – by reviewing and developing policies, and conducting training – to assure legal compliance.

Hospitality/Restaurant. The hospitality industry is disproportionately affected by the minimum wage, overtime and child labor requirements of the Fair Labor Standards Act ("FLSA"). This is because the industry is well-known for providing relatively low-wage, entry-level jobs to young people who have little or no prior work experience. Long work hours are also typical. Additionally, the industry generally suffers from relatively high turnover because of the large number of young employees, part-time and seasonal workers.

Constangy offers internal FLSA compliance audits which can be of vital importance in determining potential exposure to wage and hour liabilities, and corrective action, when necessary. One of Constangy’s members is General Counsel to the National Council of Chain Restaurants, and its litigators have extensive experience in wage and hour litigation, including the defense of class and collective actions.

Public Sector. Human resource professionals in the public sector face many specialized issues foreign to the private sector arena. For example, public employees enjoy a unique panoply of constitutional and civil rights against their employers, supervisors, and co-workers. Moreover, the fastest growing area of unionization in the United States is in public employment. Up to 50% of public employees are now covered by collective bargaining agreements. This is a vastly greater percentage than in private employment. Labor relations in the public sector presents novel questions not faced in private sector collective bargaining, because the public good and other public interests are at stake. The contours of public sector bargaining are still being developed as the landscape of public sector bargaining continues to be explored by state legislatures, administrative agencies and the courts.

Retail. The retail industry continues to see challenges to the exempt/non-exempt status of employees for purposes of payment of overtime, payment for "off-the-clock" work (particularly in the retail grocery industry), and promotion of minorities to management positions. Constangy offers internal FLSA compliance audits which can be of vital importance in determining potential exposure to wage and hour liabilities, and corrective action, when necessary. Likewise, Constangy works with its clients in identifying, analyzing, and resolving institutional barriers to promotion of qualified minorities, and can also ably defend retail employers in discrimination actions before government agencies and the courts.

Transportation. The transportation industry faces the full range of labor and employment law issues: workplace safety, union avoidance, collective bargaining, NLRB charge defense, claims of discrimination, and lawsuits. We anticipate continued challenges from regulatory agencies at the federal, state and local levels, including new Hours of Service rules, changes in pension and insurance funding, compliance concerns under the Health Insurance Portability and Accountability Act, and growing litigation threats. The Teamsters union, which has withdrawn from the AFL-CIO and become a founding member of the “Change to Win Coalition,” has vowed to renew and expand its organizing activities and power. Constangy takes pride in its unmatched depth of experience in all aspects of labor and employment laws affecting transportation industry clients.

Utilities. Utilities must comply with industry-specific regulations, such as those promulgated by the Nuclear Regulatory Commission, in addition to the labor and employment laws governing employers in other industries. These additional regulations affect the manner in which utilities handle a variety of employment matters, ranging from personnel policies and fitness-for-duty programs to the provisions that may be included in settlement agreements. Utilities are also faced with wage and hour issues that are unique to the industry, including industry-specific job classifications, performance of "non-exempt work" by supervisors, and special circumstances arising from emergency outages. Similarly, parent-subsidiary and sub-contractor relationships that are typical of utilities frequently raise distinctive "joint employment" and "integrated employer" issues. Finally, utilities have not escaped the recent focus on corporate accountability, and have experienced increased exposure for retaliation claims under Sarbanes-Oxley and other laws protecting whistleblowers.

Health Care Topics.
Health Care
Labor Relations/Union Avoidance Consulting
Employment Litigation & Employee Relations Consulting
Wage and Hour Compliance
Employee Benefit Plans
Affirmative Action Compliance
Employment and Non-Competition Agreements
Safety and Health Challenges

Health Care
Constangy’s labor and employment attorneys represent health care providers throughout the United States. Our health care clients range from some of the largest hospital systems in the country to long-term care facilities to physician practice groups. The extensive experience we have representing these employers combined with our firm’s exclusive focus on labor and employment counseling allows us to deliver responsive and effective legal advice to health care employers.

Our Health Care Business Practice Group counsels health care employers on all aspects of the labor and employment relationship, including:

• Labor Relations/Union Avoidance Consulting
• Employment Discrimination/Harassment
• Counseling and Litigation
• Wage and Hour Compliance
• OSHA Compliance
• Immigration
• Federal and State Affirmative Action Compliance
• Employee Benefits Programs
• Non-Competition and Employment Agreements

Like our health care clients, we recognize that prevention and early intervention is often the key to achieving desirable outcomes. Accordingly, in addition to advocating for clients in judicial and administrative settings, we partner with our clients to assist them in addressing issues before they can become problems. We provide responsive day-to-day counseling on the most sensitive and confidential employment decisions to help clients avoid potentially costly claims. We develop and implement effective policies, procedures and training programs to ensure legal compliance with the numerous statutory obligations and to reduce the potential for workplace disputes. We evaluate and respond to employee-relations issues before they turn into full-scale union organizing efforts or class action lawsuits. Our years of experience representing health care providers gives us the background and knowledge to develop effective responses to the most challenging and unique labor and employment issues in the health care setting.

For additional information about our Health Care Business Practice Group, contact any one of our offices.

Labor Relations/Union Avoidance Consulting
Labor unions have made health care employees their number one organizing target. By capitalizing on issues such as the nation-wide nursing shortage, legally mandated staffing ratios, managed care restrictions, government reimbursement limits, escalating costs of providing care and the obvious need for health care providers to protect their public image, unions have found health care fertile ground for new membership drives. The increasing number of Labor Board elections and union victories in these elections demonstrates a need for health care employer to adopt new, proactive and comprehensive employee-relations/union avoidance strategies.

Our Labor Relations Team was formed in recognition of the need for a multi-disciplinary approach to modern union tactics. Off-the-shelf responses not tailored to each organization’s individual issues have proven to be ineffective and often result in negative employee and public relations outcomes. Our team consists of labor lawyers/consultants with years of experience developing and implementing union avoidance strategies for health care clients, professional registered nurses who themselves were once targets of union organizing efforts and certified health care administrators who worked on the front lines at their own facilities during organizing campaigns. This diverse combination of experience, background and education allows us to tailor effective responses to each client’s unique labor relations challenges. The labor relations’ services we provide include:

Employment Litigation & Employee Relations Consulting
The health care industry is unique when it comes to litigation involving transactional, operational, and regulatory issues and health care providers frequently retain legal specialists to assist them in these areas. Often overlooked, however, are the unique challenges the industry faces with regard to labor and employment litigation and the need for experienced advice in this area as well. While our lawyers remain informed on the transactional, operational and regulatory issues in the health care field, our litigation team exclusively handles employment disputes. Although not exhaustive, below is a sampling of the issues that make employment disputes in the health care industry unique:

Our litigation attorneys understand the unique aspects of the health care industry and undertake defense of employment matters within a framework taking these factors into account. They also provide day-to-day preventative employment counseling within that same framework.

Wage and Hour Compliance
The challenge of assessing and properly ensuring wage and hour compliance on both a federal and state level can be a daunting task for any business. Employers are often required to negotiate their way through a labyrinth of complex statutes, regulations and guidelines in order to determine their obligations. To make matters worse, employers who fail to achieve compliance can face significant liability. Although wage and hour compliance is a difficult and complex endeavor for any business, the rules, regulations and statutes that uniquely pertain to employers in health care make the task of complying with federal and state wage and hour laws even more challenging.

The attorneys in our Health Care Practice Group have a long history of representing health care clients and ensuring that they achieve and maintain compliance with all applicable wage and hour laws. Whether establishing overtime agreements for hospital employees, developing compensation strategies and controls for non-exempt staff or correctly applying the exempt classification “tests” to the numerous job categories in health care, we understand the subtleties and nuances and can assist our clients in developing creative solutions to difficult wage and hour issues.

Employee Benefit Plans
Our Employee Benefits Practice Group has significant experience and expertise in advising employers in the health care industry. We understand the unique perspective and challenges of health care employers in designing employee benefit programs to attract and retain an economically diverse employee population. Whether advising a small medical practice or a large hospital with numerous subsidiaries, we assist our clients in making the challenge of complying with a myriad of complex state and federal laws manageable. We are actively involved with health care employers in evaluating, implementing and administering benefit plans and programs, combining many years of experience and knowledge of traditional benefit programs with a commitment to remaining on the cutting edge of new developments in the employee benefits arena.

Whether a health care employer is for-profit, tax-exempt or governmental, our attorneys understand the complexities of designing benefit programs to achieve the employer’s objectives and maintaining the programs in compliance with a maze of complicated laws and regulations. We provide responsive daily assistance with plan administration as well as many types of training to avoid costly compliance issues. We have substantial experience with HIPAA compliance, including preparing all required documentation for HIPAA compliance and providing several types of training programs to comply with the mandated training rules. Our expertise in employee benefits law and our substantial experience in advising health care employers provides our attorneys a unique perspective and opportunity to partner with health care employers in meeting the challenges in implementing and administering employee benefit plans.

Affirmative Action Compliance
Constangy’s Affirmative Action Group is different than those in most other law firms and affirmative action consulting organizations. Our team consists of attorneys with extensive experience counseling clients on all federal and state affirmative action requirements and Affirmative Action Specialists who exclusively develop and defend affirmative action plans. We recognize that in the health care arena the challenges are often more difficult and complex than those faced by other employers. Health care providers have widely varying types of government contracts that impose special EEO and affirmative action obligations. Health care employers also have widely varying job titles and groupings, expansive organizational structures and unusual compensation plans that further add to the complexity. By combining our unique background in health care and our extensive knowledge of the federal and state obligations we provide effective guidance and affirmative action solutions for our health care clients.

Our Affirmative Action Group prepares affirmative action plans and responds to OFCCP surveys for hundreds of clients each year utilizing the most up-to-date technology and statistical software applications. This allows our team to provide the highest possible quality and service in an efficient and cost-effective manner. Our attorneys and Affirmative Action Program Specialists also defend the plans we develop in OFCCP desk audits and plan reviews. The level of knowledge we obtain in developing and defending these plans allows us to recognize when more difficult facts and challenges may be present that could lead to individual litigation or even class action lawsuits.

Employment and Non-Competition Agreements
The health care industry faces unique challenges in the quest to protect confidential and proprietary information. We work with clients to take strategic, proactive steps to protect such organizational assets as patient and third party relationships, good will, investment into training and employee development, research and product development, marketing and growth plans/strategy and financial condition. Judicial enforcement of employment and non-competition agreements can be a frustrating experience with often less than satisfactory results. However, when agreements and policies are drafted with the legal, equitable, practical and logistical aspects of enforcement litigation in mind, their value is greatly enhanced. Clear, tightly drafted documents have the effect of dissuading parties from breaching and risking legal consequences as well as facilitating enforcement if litigation is necessary.

Our attorneys’ experiences in litigating non-competition and trade secrets cases involving physicians, hospitals and other health care employers provides a solid, practical base for assisting clients with drafting employment, non-competition and confidentiality agreements. We also serve clients in the development of document retention policies and practices; coordination with HIPAA privacy requirements and providing legal and technical perspectives on identifying and remedying misuse and misappropriation of electronic information.

Safety and Health Challenges
Health care businesses today face a growing array of occupational safety and health challenges, ranging from hazardous biological and chemical exposures to ergonomics and workplace violence. How effectively these safety and health challenges are addressed affects not only the risk of citation by the Occupational Safety and Health Administration (OSHA), but also impacts the health care business’s bottom line. Occupational injuries and illnesses impose very real costs in terms of workers’ compensation claims, absenteeism, employee morale, and labor-management relations. For hospitals in particular, which have the second highest rate of non-fatal injury and illness cases among U.S. industries with 100,000 or more such cases, these costs can be especially significant.

The numerous safety and health issues associated with health care facilities include, among others: bloodborne pathogens and biological hazards, such as HIV, hepatitis, and tuberculosis; potential chemical and drug exposures; waste anesthetic gas exposures; ergonomic hazards from lifting and repetitive tasks; laser hazards; hazards associated with laboratories; and radioactive material and x-ray hazards. Some of the potential chemical exposures include: formaldehyde, used for preservation of specimens for pathology; ethylene oxide, glutaraldehyde and paracetic acid used for sterilization; and numerous other chemicals used in health care laboratories. In addition to the medical staff, large health care facilities employ a wide variety of trades that have health and safety hazards associated with them. These include mechanical maintenance, medical equipment maintenance, housekeeping, food service, building and grounds maintenance, laundry, and administrative staff.

Since 9/11 and the anthrax incidents that followed, protecting health care workers who respond to emergencies involving hazardous substances has become especially critical. Health care workers dealing with emergencies may be exposed to chemical, biological, physical or radioactive hazards. Hospitals providing emergency response services must be prepared to carry out their missions without jeopardizing the safety and health of their own workers. Of special concern are the situations where contaminated patients arrive at the hospital for triage or definitive treatment following a major incident.

Many of these safety and health issues are addressed in OSHA guidelines and standards. For instance, OSHA now provides on its website a computerized graphical “eTool” to help employers identify and address potential occupational hazards in hospitals. OSHA also has recently published an updated informational booklet on its “Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers,” as well as a 160-page draft guideline titled “OSHA Best Practices for Hospital-Based First Receivers of Victims” for which the Agency is currently seeking written comments. In addition to these guidelines, OSHA standards on Bloodborne Pathogens, Respiratory Protection (which now applies to tuberculosis exposure), Personal Protective Equipment, Hazard Communication, Hazardous Waste Operations and Emergency Response, Ethylene Oxide, and Emergency Action Plans all apply to the health care workplace. Even when there is not an OSHA standard that addresses the particular hazard, the “catch-all provision” in the Occupational Safety and Health Act (called the General Duty Clause) allows OSHA to cite employers for failing to furnish “employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm.” Currently unregulated safety and health issues such as ergonomics, laser hazards, workplace violence, and latex allergy, therefore, are often “fair game” for OSHA citations.

To assist our health care clients in meeting these safety and health challenges, Constangy’s OSHA Practice Group has a cumulative total of over 75 years of experience dating back, in the case of one of our attorneys who was formerly head of OSHA, to the Agency’s beginning over a quarter of a century ago. Through that experience, which has included representing and counseling both large and small health care employers, the OSHA Practice Group has developed a sophisticated understanding of the regulatory requirements and how those various requirements interrelate and apply in a health care setting. Our OSHA attorneys have developed and honed the ability to assist health care employers in structuring and managing their safety and health programs in a way that not only achieves compliance and avoids liability, but also results in tangible reduction of the workers’ compensation costs, absenteeism, and lost productivity associated with occupational injuries and illnesses. Moreover, our OSHA attorneys are attuned to the interrelationship of occupational safety and health and overall employee relations. They understand how noncompliance with basic safety and health requirements can be both a cause and a symptom of poor management-employee relations.

When a client has been cited, our OSHA attorneys work aggressively to bring all their knowledge of both compliance and the Agency to bear in mounting a defense. They have successfully defended companies facing proposed penalties of over a million dollars. More importantly, they have successfully defended companies not only when a large monetary penalty was at stake, but also when the company was faced with abatement requirements that could have multi-million dollar implications for the company’s facilities nationwide.

Whether counseling, defending, or helping shape safety and health policy, Constangy’s attorneys know how OSHA works. At the same time, our attorneys are ever mindful of the unique practical concerns in running a health care business and the importance of maintaining the positive employee relations often found in safe and healthful workplaces.

Construction. The legal landscape for the construction employer is unique and unlike that faced by employers in other industries. A full range of labor and employment issues include prevailing wage, project labor agreements (PLA's), "salting" (union COMET program), job targeting, OSHA regulations specific to construction, and job site picketing which necessitates the need for reserve/"dual gate" systems. These issues represent a special challenge to employers in the construction field.

Constangy's expertise on these and other construction related matters allows for the ability to work closely with clients to develop a strategic planning and partnership process. Our clients in this field range from employer associations to large developers, general contractors and subcontractors on all types and sizes of commercial and residential construction projects. Constangy has worked closely with our clients to develop a practical approach designed to manage legal issues specific to this industry.

Manufacturing. The manufacturing industry in the United States has been forced to compete in a globalized economy with other nations whose employment standards fall far short of our own. It is imperative that Constangy’s manufacturing clients, upon whose representation our firm was founded, continue to retain workforce flexibility and yet follow “best practices” in compliance with government-required safety, health and benefit regulations. Our litigators are trained to help manufacturing clients avoid and, when necessary, defend claims of discrimination and wrongful discharge. They can also defend claims brought under ERISA, state and federal wage and hour laws, and selected states’ workers’ compensation laws. Our OSHA and Affirmative Action teams are well equipped to assist with compliance with those complex laws.

The Constangy response to union organizing and bargaining efforts in the manufacturing sector began with the Taft-Hartley Act of 1947. Our labor attorneys have successfully represented employers in representation of cases and collective bargaining ever since. Whether its challenges posed by the “Change to Win” Coalition or other union efforts yet to be seen, Constangy will meet the challenges on clients’ behalf with the same level of expertise and intensity as its done since 1946.

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