Message From the Chair

by

Message From the Chair

By Amy Oppenheimer

Amy Oppenheimer is an attorney and retired administrative law judge whose law firm focuses on workplace investigations. She has written a book about investigations, testifies as an expert witness on employer practices in responding to and investigating harassment, and is the founder and past-president of the board of the Association of Workplace Investigators (AWI). Ms. Oppenheimer has trained employers and employees throughout the country in preventing and investigating workplace harassment, discrimination, and retaliation, and on understanding and eliminating implicit bias.

Attorneys who practice labor and employment law often find that most of their colleagues represent the same side as they do (plaintiff, defense, union, etc.). Although some defense attorneys will take an occasional plaintiff’s case and vice versa, and although on occasion an attorney may switch sides (from representing plaintiffs to working for a defense firm or vice versa), for the most part, attorneys practice on one side or the other.

The Executive Committee for the Labor and Employment Law Section is a rare opportunity for attorneys to work collaboratively with attorneys from the "other side" and others with diverse legal backgrounds. We try to maintain a balance on our committee and we also try to provide that balance in our programming, and in that way we are unique. Working with people from different perspectives can be challenging but also eye-opening. As we work together, we find unexpected commonalities.

At our Executive Committee retreat in October, I recalled that thirty years ago, just out of law school and living in our nation’s capital, I was in a Jewish lesbian discussion group. For some reason, our group of about a dozen women decided we should have a name. We spent weeks trying to come up with a name that took into consideration who we all were. The name we finally came up with was "Needless Worry" – the one thing that we discovered we all had in com-mon – which of course included the needless worry that we ought to have a name to begin with!

What binds us labor and employment lawyers together? This was something I wanted to understand in facilitating my first Executive Committee meeting: What does each person want to do on the committee, and what are we all passionate about? What I found out is the same thing I have been learning throughout my time on the committee: we all care about prevention. I recall in my early years on the Committee doing presentations for new labor and employment lawyers that included plaintiff, defense, and neutrals talking about what they liked about their work. As you might expect, plaintiffs’ attorneys talked about helping workers enforce their rights. But what struck me was Cara Ching-Senaha, one of our advisors from the defense side, saying what she liked was helping people, too – helping employers learn to do the right thing and become compliant with the law. I also recall committee member Bill Crosby, a plaintiff’s attorney (and one of the founders of CELA), talking about wanting to work on better compliance: he thought that would benefit plaintiffs more than anything else.

Indeed when we determined at our October retreat what our top priorities are, prevention came in first. This is something we can all agree on – that prevention benefits employers and employees alike. Although much of what the Executive Committee does is educating attorneys (through live programming, webinars, and the Law Review), we do have a committee that works on prevention by educating the public about labor law and administering small grants for programs that assist underserved populations. This committee, Community Law (chaired by Charles Thompson and vice-chaired by Latika Malkani), is embarking on a new effort to put on programs for small employers about prevention. In this way, our committee can put our passion for prevention into practice in a concrete manner, by helping educate small employers who can in turn benefit their employees by establishing stronger HR practices. Indeed, as an investigator I see all too often that the issues that led to the problem go back to management practices, and if there had been better training and processes, the problem could have been avoided.

Another new project our committee is embarking on was sparked by Deborah L. Rhode’s new book, The Trouble With Lawyers. Rhode, who will be speaking at our annual conference in April, looks at widespread dissatisfaction by the public with lawyers and dissatisfaction by lawyers with our own work, focusing on issues including a lack of access to justice and lack of diversity in the legal field. Our committee’s vice-chair, Bryan Schwartz, wants to use the book as a jumping-off point for looking at work satisfaction among labor and employment lawyers and seeing how that might be improved.

Interestingly, before I learned of Rhode’s book, I had bookmarked an article in Law360 for mention in this column, titled: Employment Attorneys, The Happiest Lawyers Around. The article is based on a survey of lawyers that found that the most satisfied group were the labor and employment lawyers, despite the fact that overall they earned less than the other lawyers surveyed. The article posits that as employment lawyers, we find more meaning in our work because we address issues that make a difference in people’s lives: "Whether an attorney is representing workers, unions or employers it’s given that people will dominate an employment practitioner’s experiences." The article specifically mentions the client-counseling focus of offering "preventative maintenance," something less common in other practices, as an aspect of employment law providing meaning and satisfaction to employment attorneys.

[Page 38]

Maybe it should not be surprising that what turns out to be our top priority and our common passion – prevention – is also a big part of what brings all of us the most satisfaction in our work.

[Page 39]