Counseling & Prevention

“An ounce of prevention
is worth a pound of cure.”

An overused expression, perhaps, but it is nonetheless true.  Some of the least expensive but most valuable work that we do involves advising clients before a dispute arises.  We often do this over the telephone and through the exchange of draft documents through e-mail.  

Questions Answered.

Clients call us with their legal questions.  We provide practical answers that clients can use.  We don’t just identify all the possible options and leave you guessing.  We can’t guarantee results, but we can give you our best recommendations.  We help our clients make difficult decisions by applying our legal knowledge and offering our best counsel to evaluate probabilities, risks and pros and cons to contemplated action.  Sometimes labor and employment matters go beyond a black and white legal answer.  We go beyond, as counselors, to offer our best judgment to help you make the best decisions possible.  

Preventing Problems, Resolving Disputes.™

In addition to answering legal questions, we help prevent problems in a variety of ways:

Document Review.

When it comes to documentation, a second set of eyes accustomed to how ordinary documents can be used (or misconstrued) during trial or in an administrative hearing can be invaluable.  We often help our clients by quickly reviewing and editing personnel action or termination notices, disciplinary warning notices, a new form or policy, or an offer letter or employment agreement.  A few wording changes, the edition of a disclaimer and the deletion of a phrase or two can make all the difference.  

Pre-termination Review.

Any time a significant adverse personnel action such as termination or demotion is contemplated, it is advisable to plan ahead for potential claims or litigation by having the decision reviewed by counsel in advance.  By reviewing the documentation in the personnel file, we can offer insight into the likelihood and severity of any risk of liability for discrimination, retaliation, breach of contract or other legal basis for a subsequent dispute.  Often those risks can be reduced by carefully planning the personnel action to ensure full compliance with existing policies and practices and applicable law.  

Confidentially-Protected

Claim Investigation.

In appropriate circumstances, we can perform an independent investigation of a particular claim or complaint and provide confidential recommendations and findings to the extent allowed by the attorney-client confidential communication and attorney work product privileges.  This helps protect from unwarranted disclosure or discovery of internal findings.

Layoffs, RIFs and Plant Closing Counseling.

We are experienced in advising clients who are undergoing a layoff, reduction in force (RIF), down-sizing and plant closings, including those where compliance with the Federal Worker Adjustment & Retraining Notice (“WARN”) Act may be required.  Often, with careful planning, we can assist an employer in reducing employment without triggering the WARN Act and without violating its regulations.  We also advise with exit incentives and layoff demographic analysis to determine the risk of potential adverse impact under applicable discrimination laws.  We draft and negotiate severance agreements and exit incentives.  We also advise regarding retention incentive programs that may be used to keep key personnel until a sale or closure is completed, as well as releases of liability.  

Regulatory Compliance.

We assist in the interpretation of existing and new laws and regulations by analyzing whether and how the law applies to your operation.  Often we can prevent potential liability through the implementation of appropriate procedures and systems to help prove ongoing compliance, thereby minimizing risk of violation before an agency launches an investigation to find alleged violations.  We often can help you reduce or even eliminate proposed penalties if you get us involved early on.  The most common types of investigating agencies that we assist with are:

• DOL: Department of Labor, Wage & Hour Division (overtime, minimum wage and other violations).
• TWC: Texas Workforce Commission (unemployment benefits, wage claims).
• OSHA: Occupational Safety & Health Administration (safety standards, Sarbanes-Oxley and OSHA whistleblower claims).
• EEOC: Equal Employment Opportunity Commission (discrimination and retaliation).
• TDI: Texas Department of Insurance, Division of Workers’ Compensation.
• DOJ: Department of Justice (disability accessibility).
• ICE: Immigration and Customs Enforcement (e.g., I-9 and work permit regulation).
• NLRB: National Labor Relations Board (unfair labor practice charges, representation petition).

Confidentially-Protected Due

Diligence and Compliance Audits.

We are experienced with labor and employment due diligence reviews in the event of an entity’s merger or acquisition, or for investor, lending or other underwriting purposes.  We have represented the acquiring entity’s interests as well as the acquired client’s interests.  We can
also work with consultants or provide a voluntary, internal audit of labor and employment policies and procedures so that the results are kept confidential and have the maximum protection of the attorney client confidential communication privilege and work product privilege.  This is important to prevent future litigants from obtaining copies of constructive criticism found in reports from your own consultants, which could be damaging in defending litigation where a violation of some sort  is alleged against the employer.

Insurance recommendations.

We often advise our clients about the pros and cons of different forms of insurance that may be offered or up for review.  Sometimes this involves advising about the coverage differences of the same type of policy from competing carriers.  Here are some of the types of insurance policies with which we assist our clients in evaluating and choosing for their circumstances:

• EPLI: Employment Practices Liability Insurance (provides coverage for certain discrimination and wrongful discharge claims).
• D & O: Director’s & Officer’s Liability policies often have provide EPLI coverage.
• Comp: Workers’ Compensation Insurance (self-insured, self-insured retention, traditional).
• EL: Employer’s Liability (for gross negligence death liabilities for those with Comp).
• AD&D: Accidental Death & Dismemberment (provides benefits direct to employees).
• OccAcc: Occupational Accident (may offer health, wage, AD&D benefits).
• STD: Short Term Disability Income (usually limited to first 30 to 90 days).
• LTD: Long Term Disability Income (may or may not cover occupational disabilities).
• EEI: Employer’s Excess Indemnity (may provide negligence liability coverage to a nonsubscribing employer with a combined single limit benefit and liability policy)

Our assistance is usually in combination with recommendations from your insurance broker and is limited to legal and practical considerations from our experience in working with employers and a wide variety of liabilities and coverage.   We can assist with choosing between two different carriers with the same type of policy to determine which is best suited to the client’s potential legal exposure.  We can also aid in making a decision between two or more different types of insurance options (e.g., understanding the differences between buying Workers’ Compensation Insurance versus “opting out” of the workers’ compensation system and purchasing some form of nonsubscriber alternative insurance or an occupational accident or accidental death and dismemberment policy).