Metropolitan Corporate Counsel, Vo.l. 14, No. 11, November 2006, page 24

Copyright 2006 Metropolitan Corporate Counsel
All Rights Reserved
Metropolitan Corporate Counsel

November 2006
Northeast Edition

SECTION: Pg. 24 Vol. 14 No. 11

HEADLINE: Helping Companies To Address Workplace Issues Proactively And Effectively

HIGHLIGHT:
Please email the interviewee at hcooperman@saul.com with questions about this interview.
[Harriet E. Cooperman -- see http://www.saul.com/attorneys/AttorneyPdf/attorney255p0lgy0.pdf ]

BODY:
Editor: Please tell our readers about your background.
Cooperman: I graduated from Cornell University School of Industrial Labor Relations and the University of Maryland School of Law. I have been practicing labor and employment law for over 25 years.
I handle all areas of labor and employment law representing management in a wide variety of service, healthcare and health related industries, manufacturing, retail, technology, aerospace, defense and government contracting. I also represent nonprofits, public sector clients and law firms in their employment issues.
In addition, I serve as Vice Chair of the Maryland State Higher Education Labor Relations Board, which functions like the National Labor Relations Board but for non-teaching employees of state universities and colleges. We hear unfair labor practice cases, representation matters and the like.
Editor: What are some examples of the workplace issues that confront employers today?
Cooperman: There are disability and leave time issues under both the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). In my experience, employers sometimes have difficulty grappling with the intricacies and complexities of these laws, as well as the health-related issues and leave needs of their employees. Can an individual with a disability perform the essential functions of his/her position? This is a different analysis than what employers are used to dealing with in other areas protected by antidiscrimination laws and regulations. A disability actually may affect a person's ability to do a job, unlike a person's race or gender. The company needs to understand the analysis required and to identify whether a person is able to do the job and, if needed, what types of accommodations the employer can provide to disabled individuals. The key is to meet the needs of the business while at the same time providing disabled individuals with employment opportunities and appropriate accommodations.
Complexities of the FMLA are areas of concern for employers. The Act entitles a worker who has leave covered under FMLA with up to 12 weeks off. Employers at times experience difficulty in identifying that a particular leave event is covered by the FMLA, particularly when a serious health condition of the employee or the employee's spouse, child or parent is involved. The employee has an obligation to notify the employer of the need for the leave and to provide the appropriate certification from the healthcare professional to justify the leave. The employer then needs to determine whether the leave is covered by the FMLA. If so, the employer must advise all employees of his/her rights and obligations. I often find that an employer will give the employee time off under the company's sick leave policy but then fail to acknowledge that the leave also is covered by the FMLA. In such situations, the employer may end up granting the employee FMLA leave after he/she has exhausted his/her sick leave. As a result, the employee is out for more than twelve (12) weeks for the event. This can cause havoc for an employer.
If the leave time lapses and the individual cannot return to work, the employer's obligations do not end. For example, if the employee has a serious health condition that also is deemed to be a disability under the ADA, additional leave may be necessary to reasonably accommodate the disability.
Another minefield under the ADA is the notion of perceived disability - where an individual is not disabled, but is believed to be and is treated as such by the employer. The key is to stay away from using preconceived notions and stereotypes in determining whether the individual is disabled just because he/she has certain physical impairments or demonstrated erratic behavior. The mere fact that an individual has an impairment does not mean that he/she is disabled or unable to perform certain job functions.
Disloyal and departing employees create turmoil in the workplace and serious issues for employers. We have seen a tremendous rise in the number of employers requiring employees to sign non-compete, non-solicitation and non-disclosure agreements. Further, more and more employers are suing their former employees and the companies they move to or from.
The electronic workplace raises a panoply of other issues. Some employees are more technology savvy than their employers. They find innovative ways to steal the employer's business.
Many workers do not take their email communications as seriously as their written documents. They treat email and text messaging as oral communications, and they send inappropriate remarks to other employees and outsiders. Such communications, moreover, are preserved and discoverable.
Another significant issue confronting today's employers arise in the traditional labor area - union organizing. With the AFL-CIO/Change to Win breakup last year, unions are making a greater effort to organize industries beyond the traditional manufacturing, construction, trucking, etc. that had been the hotbeds of unionization in the past. Reflecting our country's changing economic base, unions are focusing more on service industries, healthcare, education and government as the source of the organized workforce of the 21st century.
Some unions are engaging in aggressive corporate campaigns to obtain recognition. We see unions virtually declaring "war" against specific corporations and engaging in a variety of tactics, such as a negative publicity blitz, stockholder action (by buying stock of the public company), and even creative litigation to put pressure on the corporation.
Editor: In what ways do you anticipate the pattern of workplace issues evolving in, say, the next five years?
Cooperman: I see an intensified shift to a global economy. Labor and employment practices here in the U.S. will, of necessity, evolve with the globalization of the workforce.
Other labor and employment challenges arise because many traditional or old economy jobs are no longer being done in the U.S., or are eliminated by consolidation and technology. This not only includes manufacturing, but also service functions, including accounting and legal, which are increasingly being outsourced overseas. This shift to an offshore workforce and the elimination of conventional jobs creates a challenge as to what the workers who had performed those tasks will do. New and different job opportunities in the U.S. are being created each day, but these jobs typically and increasingly require greater training and higher levels of education.
Our workforce will continue to be more and more diverse. As a labor and employment lawyer, I see the need for employers and employees alike to understand that a diverse workforce makes a company and its workforce much stronger. With diverse backgrounds, a company is exposed to a wealth of different ways of looking at things and a variety of ideas towards approaching and solving problems and issues. The outcome frequently moves the company to the next level because people begin to think more creatively.
Editor: In what ways can seasoned labor and employment litigators help companies to address common workplace issues proactively and effectively?
Cooperman: It is important to build relationships with clients. Part of that is getting to know the clients, their businesses and what they do day to day. It also includes understanding a client's particular approach and philosophy as to how they conduct their business and deal with their employees. Every business is different. Understanding a company's business philosophy, culture and approach to business, and employee matters is the first step in helping to address their problems. You have to communicate in a way that the client understands and appreciates.
When I work on a litigation matter, I assess the issue in contention and see how the client handled the situation that led to the dispute. I examine the business' policies and practices to see what went right and what may have gone wrong in how the matter was addressed. I'm always looking for ways that policies and practices can be improved, that management can become more knowledgeable and better trained to address the multitude of issues that arise, that a matter may be handled differently to prevent a similar situation from happening in the future.
It is that added experience that seasoned labor and employment lawyers provide to employers. They help the client not only to prevail in litigation, but also to benefit from a more educated management and satisfied workforce, which in turn leads to greater productivity and the company's ultimate success.
Editor: Congratulations on the many awards you have received for your outstanding professional skills.
Cooperman: The nice thing about being recognized as one of the Best Lawyers of America is that selection is made by your peers. I also feel honored to have received the Leadership in Law Award in Maryland. Only a few people have received that award, which recognizes achievement in a substantive area and leadership in the business and practice of law. Mentoring is an important part of that award. I received the Maryland Top 100 Women three times, and, consequently, I was admitted into the Circle of Excellence.
Editor: What recommendations do you have for young lawyers wanting to follow in your footsteps?
Cooperman: Nothing replaces hard work. Young lawyers need to work to be the best lawyers they can be. This requires them to focus on the work and doing an excellent job for their clients. This takes time and commitment. An associate, just like a partner, needs to take ownership of the client matter.
They also need to give back to their community. Many non-profit organizations need assistance of professionals like attorneys, whether the need is in the attorney's particular area of legal experience or his/her brain power, creativity and energy. The young lawyer's commitment to serving such organizations is invaluable. From a business development standpoint, volunteer work enables young lawyers to meet people in the business and nonprofit community, and to start developing a network of contacts.
Young lawyers should also develop their reputations by being involved in bar associations, which allows them to know others in their practice area. Speaking engagements and writing articles help young lawyers become recognized as knowledgeable and significant players. This can be the key to distinguishing a junior attorney from the multitude of other young lawyers, at an early stage in his/her career.