Welcome to a New Era of Labor-Related Legal Matters: Three Steps to Cost-Effectively Address L&E Investigations
By Charlie Sandel
Here’s what we know
This ain’t your grandparents’ labor market.
Call it the Great Resignation, the Great Upgrade, or as we at Axiom like to call it, the Great Reflection, but no matter what you call it, it’s clear we’re in an era in which employees’ priorities and goals have evolved into something radically different from their pre-pandemic aspirations. Even with a looming recession, employees are rejecting workplaces, practices, and remuneration that no longer align with their evolving personal goals or expectations of their employers. Your grandparents certainly never had that same sense of opportunity or career autonomy.
But here’s the twist
What your grandparents did have were unions, and we are just now starting to see a bit more of a resemblance to that bygone era. According to the United States Bureau of Labor Statistics, the percentage of workers belonging to a union peaked in 1954, with almost 35% of the workforce unionized. The percentages have been steadily declining since that time (to about 20% in the early 80s and 10%+ last year). Now, they’re on the rise again.
Why the shift?
The Great Reflection–induced labor shortage means that in a talent-constrained market, workers feel like they can be more demanding, individually or collectively (in part because of the number of open opportunities and also because remote working enables a more location-agnostic job search). Experts suggest that some of the more effective unionization efforts taking place (within Big Tech, media, and retail) could create forward momentum across more industries. What’s also behind the shift? The regulatory and anti-trust balance of power seems to be shifting.
Enterprise legal concerns related to labor are far broader than unionization
Of course, it’s not just unionization. Broader regulatory concerns also make this current landscape much different than that bygone era. NLRB, EEOC, and other regulatory oversight have increased, while growing substantively more complex. Oversight has also become increasingly aggressive, as more companies face government investigations and individual claims for labor and employment concerns related to wage and hour compliance, discrimination, retaliation, independent worker classifications, worker safety policies, etc.
The long arm of the law has only grown longer as it relates to labor protections and company intervention.
What does this mean for you?
- You’re the head of compliance or the legal head of employment/HR.
- You’re facing potential unionization attempts – and whether your enterprise embraces unionization or feels it runs counter to innovation and opportunity, either way it’s an issue that takes significant legal resources to address.
- You a have backlog of investigations (sidelined by the pandemic, but now very much on your already full plate).
- Your company is contemplating a reduction in force, which requires careful planning and consideration of federal, state, and local notice and other relevant regulations, and may carry increased risk of investigations and claims arising from the execution of reductions.
- You’re dealing with two intersecting trends: The Great Resignation, which has made finding expert labor and employment (L&E) lawyers harder, longer, and more expensive; and the looming recession, which has made budgets tighter, and in some cases, frozen headcount.
Traditionally, you’ve had two approaches to handling large-scale matters, when your L&E cup runneth over: staff up (internally) or send out (to a law firm).
The problem with the in-house L&E hire
The problem with the former is those two competing “Rs” – Reflection and Recession. The L&E lawyer market is still tight and still expensive. The time it takes to get someone in seat is only growing. Even in normal circumstances, data suggests that it typically takes over six weeks to fill an open legal position, and 11 weeks to fill one at the managerial level. Legal recruiters say that even despite an expected downturn, we’re not in normal circumstances – we’re in an open war for talent. Demand, particularly for seasoned in-house L&E attorneys, has outstripped supply, which in turn means it’s taking much longer to find L&E specialists.
And the problem with that is that your L&E matters very much exist in the here and now. Moreover, the last thing you want to do, when budgets are constrained in a pre-recessionary economy, is sink more cost into fixed headcount, especially when the matters at hand are constantly evolving (requiring equally evolving specialty expertise) and transient (investigations have both a start and end).
The problem with sending your L&E work to a law firm
The problem here is threefold.
First, law firms are expensive and are only growing more so. Last year, we saw an aggregate rate increase of 5–10% for their services, with increases expected to continue.
Second, even if you’re willing to stomach these price increases, there are still no assurances you can find a law firm with an available bench to handle your L&E matters. "Law firms just don’t have enough folks to go around and pick up all of the L&E and commercial work that’s floating around… because everyone is looking to hire the same people."
Third, beyond cost and supply, law firms must also be educated about the critical context of the L&E matters for which they are engaged, which adds to both the cost and management time required to bring them up to speed. They also often lack the unique experience of in-house lawyers in building practical solutions that can be operationally carried out throughout the organization – something that is particularly essential when dealing with the organizational ethos around labor, talent, and employees.
So…what are YOU to do?
- A single, complex employment initiative (think updating employee policies as we return to work); or
- Multiple employment matters that require central resource coordination (think employment actions involving multiple employees across the organization presenting the risk of inconsistent and alleged discriminatory treatment of presumably similar cases); or
- Employment matters that require multiple lawyers with deep industry or functional expertise (think coordinating a backlog of investigations).
- A legal team who can immerse into your department, but that can independently tackle your labor-related matters
- Lawyers with expertise around specific L&E investigation work
- The ability to tap into a broader bench of expertise should your L&E matter evolve, expand, or require a different level of experience
- Oversight to handle the team and the matter, so your internal department can resume practicing the critical work aligned to your company’s broader business objectives
- Specialized expertise that doesn’t require permanent hire investment or the exorbitant costs of an external law firm
- A team that can immediately be scaled up or down as needs change
- Experienced L&E lawyers…and you need them right now
Axiom’s structured team approach to L&E enables companies to engage a coordinated team of flexible employment lawyers and legal professionals, led by an experienced team lead, to efficiently handle employment law compliance, investigations, and the creation of policies and procedures.
An Axiom-structured team can handle challenging, large-scale employment projects end-to-end, combining extensive experience designing team solutions with vetted and proven L&E lawyers and team leaders. Common engagement types include:
Experienced L&E lawyers: Axiom’s network of 6,900 lawyers includes attorneys with extensive L&E experience at leading law firms, enhanced by in-house experience, that can be assembled into a winning team.
- 175+ L&E lawyers
- 175+ L&E engagements since 2019; Axiom teams currently support multiple L&E projects
- 3,400+ lawyers with F500 experience
- 1,000+ lawyers with AmLaw 100 experience
- 15+ years average experience
Talent management: Solve pressing L&E matters without having to turn to your law firm, divert in-house resources, or manage the process.
- Unique insights mined from 20+ years of experience building teams of 3 to 50 lawyers
- Experienced team leaders, capable of managing L&E matters and investigations end-to-end
- Performance management and feedback, with configurable onboarding, regular check-ins, and end-of-engagement management, reducing your administrative burden
Leverage best practices and technology: Allows you to better monitor resource allocation and optimize your results.
- Comprehensive playbooks include detailed templates for navigating the lifecycle of L&E scenarios
- Leading technology partners who ensure a productive and efficient remote work environment and resource optimization
- Detailed reporting and insight into work being performed, allowing for data-driven decision-making
Axiom L&E structured teams designed for your project need and scope
Three steps to immediately and seamlessly engage your L&E legal team
Step 1: Click here to review available L&E lawyers: Review pre-vetted lawyers and legal professionals for detailed lawyer biographies including rates, specific L&E expertise, industry experience, and/or geographic needs.
Step 2: Customize your team: Easily search our network of active L&E lawyers and legal professionals.
Step 3: Reach out to Axiom: Contact us to start a discussion about your specific needs and to build your customized team.
Charlie Sandel is Vice President, Senior Client Advisor at Axiom. He’s a former GC of American Eagle Outfitters and Regional GC of Levi Strauss.
How to successfully conduct virtual employment investigations, work with Labor and Employment lawyers, and avoid risk in a remote work environment.
Axiom lawyer Essence McGill Arzu brings 20+ years of experience to mergers and acquisitions, corporate restructuring, and corporate governance work at Fortune 100 companies.
Alina Denis Jarjour brings experience in life sciences, compliance, and mindfulness to her work and practices law in both English and Spanish.