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Representing IndividualsOutten & Golden (O&G) represents individuals (e.g., employees, executives, and partners) in all areas related to work. Most of our clients are employees or former employees with problems or claims relating to their jobs. The kinds of problems O&G handles include discrimination in the terms and conditions of employment, discriminatory or wrongful termination, breach of contract, denial of benefits, harassment, and retaliatory conduct. Our core practice includes the following: employee rights, employment contracts, executive contracts, partnership agreements, severance agreements, employment discrimination or retaliation on the basis of age, race, sex, sexual orientation, gender identity/expression, disability, religion, national origin, pregnancy, sexual harassment, racial harassment, and hostile work environment; civil rights (Title VII, ADA, ADEA); executive compensation; employee pensions and benefits (ERISA); family and medical leave (FMLA); employment-related disputes; wrongful or retaliatory termination or discharge; breach of contract; unfair competition; covenants not to compete; restrictive covenants; whistleblower protection; wage and hour claims (FLSA); alternative dispute resolution (ADR); mediation; arbitration; civil litigation; and appellate practice.
Employment AgreementsO&G represents individuals, typically executives and professionals, in negotiating and honoring employment agreements. Such agreements are used to clarify and secure an employee's expectations regarding job security, compensation and benefits, and related issues. Given New York's employment-at-will rule, employment agreements can be an important protection. Employment agreements typically involve the following: the term of employment, including extensions or renewals; the employee's position, title, duties, and responsibilities; compensation, including salary and bonuses; benefits (e.g., medical, dental, disability, and life insurance, and retirement benefits); grounds for early termination by the employer (e.g., "with cause") or by the employee (e.g., "for good reason"); and severance benefits upon termination of employment. Compensation may also include restricted stock and stock option grants, supplemental executive retirement plans, deferred compensation plans, long-term compensation plans, and incidental benefits (automobile, club dues, etc.). Other common issues include non-competition, non-solicitation, and non-disclosure clauses, and change-of-control provisions. O&G also represents individuals (e.g. lawyers, doctors, accountants, and bankers) in connection with partnership agreements. Severance AgreementsO&G represents employees whose employment has been terminated often as part of reductions in force and reorganizations, common to the last decade. We help terminated employees understand the conditions of a severance agreement, evaluate the severance benefits, ascertain ways the severance package might be improved, determine what leverage the employee might have, and develop a plan of action. While the objective is typically to gain a longer or larger severance payment, there are other critical issues to consider. These may include deferring the effective date of termination, assuring maximum payment for vacation and other leaves, obtaining full or partial bonus payments, bridging to vesting dates for stock options or retirement benefits, extending employer-paid medical benefits, securing consultation payments (where and if applicable), and limiting the scope of any non-competition clause. Direct attorney involvement is not always a necessary requirement of severance settlements. There are situations where employee initiative is perceived positively by the employer, or when the employee can speak directly with the decision maker. In such cases, an O&G attorney works with employees to provide behind-the-scenes advice and coaching. (For more on negotiating severance arrangements, see the Articles of Interest subsection under the Resources section of this website.) Multinational EmploymentO&G lawyers have considerable experience with situations that arise for employees working abroad for American employers or working in the United States for foreign employers (e.g., governing law, repatriation rights, compensation, and tax adjustments). These issues usually arise in connection with employment agreements and severance situations. They may also come up in relation to compensation disputes, unfavorable assignments, and repatriation problems, as well as federal and state anti-discrimination laws covering employees working abroad for American companies and employees working in the United States for foreign employers. Discrimination and RetaliationO&G represents and counsels employees, prospective employees, and former employees with respect to all types of discrimination, harassment, and retaliation. Federal, state, and city laws prohibit discrimination on the basis of race, sex, national origin, religion, age, disability, and other grounds. New York State laws prohibit discrimination based on sexual orientation, on marital status, and on conviction and arrest records; New York City laws prohibit discrimination based on sexual orientation. These laws also prohibit harassment of employees for the grounds listed above, as well as prohibiting employer retaliation against employees who complain about such discrimination or harassment, against themselves or others, within the company or in any agency or court proceeding, or who participate in any such proceedings. Discrimination is not limited to on-the-job issues. It may occur before employment begins (e.g., discriminatory hiring practices or questions), during the employment relationship (e.g., discrimination in compensation, promotions, or other terms and conditions of employment), or at the end of employment (e.g., discriminatory discharge). WhistleblowingO&G works with individuals who are considering blowing the whistle, i.e., reporting on or refusing to participate in illegal, unsafe, or other improper practices by their employers. Numerous federal, state, and city laws protect the rights of employees who step forward to report such practices. New York's Whistleblower Protection Act offers conditional protection for private sector employees who blow the whistle on employer conduct that violates the law and that presents a substantial and specific danger to public health or safety. The federal False Claims Act offers similar protection to employees who blow the whistle on fraud against the federal government. In certain cases, reporting employees can sue the employer on behalf of the government to recover damages for fraud. They may also receive a "bounty" for a successful recovery. Breach of ContractO&G represents employees whose contractual rights have been violated. Typically, such claims arise under employment or compensation agreements and relate to unpaid compensation or severance pay, such as claims for failure to pay bonuses or commissions and for compensation and benefits after termination of employment. Under certain circumstances, oral promises, if provable, and promises made in company manuals may be enforceable. CompensationO&G helps individuals evaluate and pursue compensation claims, most of which are contractual in nature. A number of these claims are covered by New York State Labor Law provisions that provide for attorneys' fees for a prevailing employee and for liquidated damages for willful failure to pay. In addition, federal and state laws, including the federal wage and hour laws, govern matters such as minimum wages, overtime pay, equal pay, and employment of minors. In many cases, individuals who are treated as independent contractors are covered by such laws and are entitled to receive the same wages and benefits as full-time employees. Employees who are terminated in a mass layoff or a plant closing may be entitled to at least 60 days notice under the federal Worker Adjustment and Retraining Notification Act (WARN). BenefitsO&G helps employees protect and enforce their rights to employment benefits. Some fringe benefits, such as vacation leaves, are contractual in nature. Many others, such as pension benefits, are covered by the federal Employee Retirement and Income Security Act (ERISA). Certain severance benefits may also be covered under ERISA. Medical and dental benefits are protected under the federal statute commonly known as COBRA. Many employees are also covered under disability and life insurance policies. LeavesO&G lawyers help employees define, understand, and enforce their rights to vacation time and leaves of absence. Under the federal Family and Medical Leave Act (FMLA), covered employees are entitled to up to 12 weeks of continuous or intermittent leave (which need not be paid) to attend to their serious health conditions or to those of their immediate family. Under the Americans with Disabilities Act (ADA), employees with disabilities may be entitled, under certain circumstances, to the "reasonable accommodation" of some time off from work. Many employees are entitled to unpaid or paid pregnancy or maternity/paternity leave. Restrictive CovenantsO&G represents employees in understanding the applicability and enforceability of so-called restrictive agreements or covenants. It is an increasingly common practice of employers to require employees to sign non-disclosure, non-competition, and non-solicitation clauses. These may arise in initial employment agreements, in special agreements required as a condition of initial or continued employment, as a condition to receiving bonuses, stock grants, or other compensation, or as part of a severance agreement. O&G has considerable experience with these agreements, in particular in negotiating the language and scope of such clauses, in negotiating the termination, narrowing, or construction of such clauses, and in litigating their enforceability. Problem Solving & Dispute ResolutionThere are numerous ways to resolve employment disputes without the direct involvement of an attorney and without the commencement and prosecution of a lawsuit. O&G lawyers are well versed in dispute resolution without resort to litigation. We have expertise in empowering employees to deal with employment problems directly with management, with our behind-the-scenes guidance. Some disputes are handled using Alternative Dispute Resolution (ADR) techniques. O&G lawyers have also participated in the mediation of employment disputes using private mediators, agency mediators (e.g., the EEOC), and court-annexed mediation programs. Such resolutions are often achieved even before a charge or complaint has been filed. When appropriate, of course, O&G lawyers negotiate directly with employer representatives and lawyers. Even in these situations, a dispute may be resolved without protracted agency proceedings or litigation. LitigationWhile O&G emphasizes its counseling and negotiation roles, all O&G lawyers are trained as litigators. Most have clerked for federal judges and have substantial litigation experience. When disputes cannot be resolved through negotiation and ADR techniques, O&G is ready, willing, and able to engage in legal proceedings in federal and state courts and in arbitration forums. We have successfully handled many appeals in federal and state courts. We also handle many class actions, typically involving wage and hour and discrimination claims. Labor LawWhile O&G supports labor unions, it does not represent them. We will, however, represent individual union members with respect to their rights: as employees, against their employers; as participants and beneficiaries under retirement and other benefit plans; and, as union members, to free speech and democracy within their union and to fair representation by their union. |
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