Spencer Fane LLP Logo

Labor and Employment

Labor and Employment Header Image

Affirmative Action and OFCCP Compliance

Spencer Fane is recognized throughout the Midwest as a leading employer advocate in federal contractor affirmative action and OFCCP compliance. Our Group is headed by experienced attorneys and staff who have drafted affirmative action plans for federal contractors ranging in size from 51 to several thousand employees, as well as defended numerous federal contractors in OFCCP audits and enforcement actions. Given the current aggressiveness of the OFCCP and the unprecedented penalties being levied against federal contractors, the choice of who drafts your Affirmative Action Plans (AAP) is more important than ever. Although there are a number of third party consultants who can “run your data,” we offer affirmative action plans that are prepared by experienced attorneys and staff for very competitive rates. By partnering with our law firm to draft your AAPs, you not only get the benefit of our knowledge of the “hot spots” being focused upon by the OFCCP during audits but also the distinct advantage of the right to engage in privileged discussions with us as your legal counsel should we identify any areas of concern. After the completion of every AAP, we prepare a detailed analysis of the findings and provide specific action items to improve next year’s results.

At Spencer Fane, we realize the AAP landscape has changed dramatically over the past few years and that the “cookie cutter” plans that may have been acceptable in the past will no longer pass OFCCP scrutiny. Our team gets to know every client’s business, develops each plan on an individualized basis, and carefully drafts each plan as though it will eventually be subject to audit by the OFCCP. If you are audited, we strongly suggest that you engage experienced counsel such as Spencer Fane to defend you in what is for all intents and purposes an adversarial proceeding.

In addition to preparing affirmative action plans, we offer the following services:

  • Defend OFCCP desk audits and on-site visits
  • Prepare your management and human resources team for OFCCP on-site interviews
  • Defend OFCCP enforcement actions
  • Negotiate a Conciliation Agreement with the OFCCP
  • Conduct a mock OFCCP on-site audit to ensure you are in compliance before you are audited
  • Review and update your existing AAPs
  • Review your compensation data for disparate impact indicators (subject to the attorney-client privilege)
  • Determine whether you are a federal contractor or subcontractor
  • Determine whether your companies’ affiliates or subsidiaries also fall within the definition of federal contractor
  • Provide advice regarding best practices for record keeping requirements such as applicant tracking
  • Provide training to your managers, human resources, and recruiters regarding their AAP duties as federal contractors, as required by OFCCP regulations
  • Provide advice regarding outreach to improve minority, female, veterans, and disabled individual’s application numbers and hiring rates

Employment Litigation

The employment litigation group at Spencer Fane offers decades of experience in all kinds of litigation – from single plaintiff and multi-plaintiff cases to collective and class actions to arbitrations. We have expertise in litigating issues surrounding all aspects of the employment relationship and in connection with all areas of the law: ADA, ADEA, FMLA, Title VII, §1981, employment contracts, public policy retaliation, workers’ compensation retaliation, and more. We partner with our clients to determine the best outcome possible based on the unique circumstances of each case, and we employ a variety of technological tools to improve the efficiency of our work while limiting expense.

Human Resource Counseling and Training

The Spencer Fane Human Resource Counseling and Training practice provides preventive legal services designed to assist clients in avoiding or minimizing employment claims. These services include ongoing or as-needed counseling and consulting; reviewing or drafting HR policies, handbooks, and forms; preparing employment-related contracts (e.g., releases, reimbursement, employment, severance, compensation, non-compete, arbitration, etc.); training; providing guidance on complying with employment laws; auditing HR practices; conducting internal investigations; and preparing responses to charges filed with government agencies like the EEOC, DOL, OFCCP, and others.

Non-Competes and Trade Secrets

Sometimes, maintaining control over your company’s trade secrets is the mark of success or failure, and Spencer Fane attorneys routinely advise clients on effective measures to protect trade secrets. We understand your competitive edge relies on effective information security, and we work with clients to review existing trade secret programs and provide advice about additional measures to protect those trade secrets. If litigation is required, we have a demonstrated track record in litigating trade secrets cases, as well as in enforcing non-competes and other restrictive covenants, in a multitude of jurisdictions and different industries. We have litigated non-competes in the following states: Alabama, Arizona, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Missouri, Montana, New York, Ohio, Puerto Rico, South Carolina, Tennessee, Texas and Virginia.

Social Media

Spencer Fane is one of the leading law firms on issues of social media and networking in the workplace. Our attorneys are sought after speakers on social media, social networking and virtual worlds and their impact on employees and employers. They are experienced in using social media and are closely following the evolving laws that impact its use. We routinely assist clients in drafting policies for employee use of social media and advise them of its risks, including, disclosure of private information or trade secrets, non-compete and non-solicitation concerns, invasion of privacy, harassment, and the risks of terminating and disciplining employees for use of social media. Our goal is to help clients minimize the risks and maximize the benefits of using social media sites.

Traditional Labor

For more than sixty years, Spencer Fane has had an extensive practice in the traditional area of labor management. Our firm’s traditional labor practice includes representation of several clients on a national basis in the defense, retailing, transportation, and construction industries, and several Fortune 500 companies with major facilities in the Midwest.

Multi-employer Negotiations and Contract Administration: Our Group has substantial experience representing multiemployer bargaining groups in the construction, trucking, supply and distribution industries, including administration of the contract, arbitrations, and counseling with respect to conflicts between collective bargaining agreement provisions and the requirements of federal, state, and local laws governing employment. Representation in these areas has given rise to cases before the National Labor Relations Board concerning the rights of multi-employer bargaining groups to take economic action in bargaining and cases seeking injunctions regulating work stoppages, picketing or strike violence.

National Labor Relations Act Practice: Our Group has represented employers from virtually all industry groups before the National Labor Relations Board, including matters involving jurisdictional disputes, unfair labor practice charges against employers and unions, and representation cases involving major bargaining units in the health care, manufacturing, retail, distribution, transportation, and construction industries.

Representational Campaigns: Our Group has represented employers in union election campaigns throughout the Midwest involving industries from bookbinding to light manufacturing to public utilities to health care. The units have ranged in size from a handful of employees to thousands. This representation not only involves determining the appropriate bargaining unit and eligible voters, but counseling and advising employers concerning the legal aspects of employer communications during the campaign and counseling employers concerning the potential effect of certain employer activities during the election process. Our handling of decertification petitions, and counseling employers concerning the employer’s posture during the decertification process, has increased in recent years. The firm’s heavy involvement in public employee labor relations has led to numerous appearances before state boards of mediation concerning public employer unit representation issues, public employer “bargaining,” and the rights of public employers under the various federal and state laws regulating their activities.

Facility Closures: We have advised clients in a variety of industries regarding the issues which arise in closing a facility. These include issues under the WARN Act, including the preparation and serving of appropriate WARN notices. For unionized facilities, we have advised clients as to whether the decision to close is a mandatory subject of bargaining under the National Labor Relations Act and have represented them in any required bargaining over the decision or its effects. We have assisted clients in developing appropriate communications to employees, customers, and the public regarding the closure. We have also developed, and if necessary negotiated, various forms of “stay plans” designed to create incentives for employees to remain on the job until the last day they are needed.

Grievance Negotiation, Mediation and Arbitration: Spencer Fane lawyers represent management in dozens of contract grievance and arbitration proceedings each year. We develop a close working relationship with our clients’ management teams to facilitate efficient preparation of cases for hearings. Spencer Fane also maintains a log of all our firm’s experience with individual labor arbitrators, which we use to assist our clients in selecting the best arbitrator available from the panels we are provided.

Union Prevention: Employers are frequently unaware of the issues that actually drive employees toward unionization, particularly the hot buttons used by organizers to stoke organizing campaign fires. We assist clients on how to recognize and avoid organizational activity.