Labor and Employment

Over the past few years, KCO’s attorneys have established an exceptional record in the area of wage and hour litigation, having successfully handled over 100 federal and state wage and hour class and collective actions. The issues involved in these cases include, among other causes of action, misclassification, off-the-clock, independent contractor/joint employer, and regular rate claims, as well as state-based wage and hour lawsuits including PAGA and California Labor Code cases, and claims brought under New York State’s and New York City’s regulatory framework. The key to our group’s success is our focus and creativity in identifying and asserting “silver bullet” defenses and meritorious dispositive motions that highlight the individualized nature of the claims at issue before the case ever gets to the certification stage. This approach has allowed our group to successfully obtain dismissal of many of the class action lawsuits on first motion, obtain summary judgment in numerous cases, and settle many of the other lawsuits for nominal amounts on an individual plaintiff basis. The group has also successfully handled numerous single plaintiff wage and hour actions, as well as lawsuits, investigations, and audits conducted by the U.S. Department of Labor.

Representative Wage and Hour Litigation Matters

• In a putative nationwide wage and hour class action based on allegation that client’s rounding policy was unlawful, defeated class certification and obtained summary judgment on all claims. In a published opinion that contained favorable rulings on multiple issues of first impression, the Ninth Circuit affirmed the district court’s order in its entirety. Corbin v. Time Warner Entm’t-Advance/Newhouse P’ship, 821 F.3d 1069 (9th Cir. 2016).
• KCO’s labor and employment group serves as national wage and hour counsel to one of the nation’s largest cable telecommunications companies. In this role, the Firm’s attorneys have successfully defended the company in over 60 federal and state court class and collective actions alleging almost every type of federal and state wage and hour claim. The claims include traditional minimum wage, overtime, misclassification and joint employer claims, as well as California-specific meal and rest break, reimbursement, wage statement, and waiting time claims. The Firm’s attorneys have obtained great results in these cases, having resolved the cases through dismissal on first motion or on summary judgment prior to class certification, negotiating nominal settlements on an individual basis, obtaining “walk-aways,” or negotiating favorable settlements in resolution of class claims. See, e.g., Deleon v. Time Warner NY Cable LLC, No. CV10-2468 AG (RNBx) (C.D. Cal. Aug. 31, 2011); Deleon v. Time Warner Cable LLC, No. CV 09-2438 AG (RNBx), 2010 WL 669116 (C.D. Cal. Feb. 22, 2010); Fregoso v. Time Warner Cable Inc., et al., CV 10-1668 AG (RNBx) (C.D. Cal. May 23, 2011); Durazo v. Time Warner Cable LLC, et al., No. CV10-04496 AG (RNBx) (C.D. Cal. Apr. 27, 2011); Peabody v. Time Warner Cable, Inc. et al., No. 2:09-cv-06485 AG (RNB) (C.D. Cal. Nov. 9, 2010); Harding v. Time Warner, Inc., No. 09CV1212-WQH-WMC, 2010 WL 457690 (S.D. Cal. Jan. 26, 2010).
• Defended Fortune 50 telecommunications company in Southern District of Florida (Miami) in FLSA call center collective action alleging off-the-clock work. Settled individual opt-in claims on favorable basis, resulting in dismissal of class claims.
• Obtained summary judgment in nationwide wage and hour class action on complex issues of first impression involving proper computation of the employees’ “regular rate of pay” for purposes of calculating overtime compensation.
• Obtained summary judgment for national telecommunications company on class action wage and hour and meal/rest breaks claims in federal court in California, and prevailed on appeal in matters of first impression before Ninth Circuit. Deleon v. Time Warner NY Cable LLC, No. 11–56699, 510 F. App’x 545 (9th Cir. 2013).
• Obtained summary judgment prior to class certification in matter of first impression in Sixth Circuit on behalf of Fortune 50 telecommunications provider in Fair Labor Standards Act collective action. Fields v. AOL Time Warner, Inc., 261 F. Supp. 2d 971 (W.D. Tenn. 2003).
• In ERISA/unjust enrichment class action and FLSA collective action, prevailed on motion to dismiss various state common law and statutory claims, obtained summary judgment on ERISA claim, and defeated conditional class certification motion. Botello, et al. v. COI Telecom, L.L.C., et al., No. SA-10-CV-305-XR, 2010 WL 5464824,
  50 Employee Benefits Cas. 1916 (W.D. Tex. Dec. 30, 2010).
• Defended national telecommunications company in FLSA “off-the-clock” work collective action in Western District of Oklahoma. Obtained nominal settlement of named plaintiff’s individual claims with dismissal of all class claims following named plaintiff’s deposition.
• Retained by national computer company after conditional certification of FLSA collective action. Defeated plaintiffs’ motion for final certification and obtained decertification of class in matter of first impression in District of Idaho. Smith v. Micron Electronics, Inc., Case No. CV-01-244-S-BLW (D. Idaho Feb. 4, 2005).
• Represented international consulting company in FLSA collective action in District of Massachusetts. Bifurcated discovery and moved for summary judgment against named plaintiff on grounds that she was exempt from overtime under FLSA administrative exemption. While motion was pending negotiated favorable settlement of plaintiff’s individual claims and dismissal of all class claims.
• Successfully defended numerous clients in wage and hour matters before the United States Department of Labor.

Too often, firms treat employment litigation cases in a “cookie-cutter” fashion, following the same rote script in each case. At KCO we take a different approach, evaluating each case on its own merits and establishing a strategy with our clients with an eye toward an efficient and successful resolution of the case, be it through a motion to dismiss, summary judgment, advantageous settlement terms, or, in rare cases, through a trial on the merits. This approach has allowed our labor and employment group to successfully resolve almost all of our client’s cases through early dismissal, summary judgment, or favorable settlement.

KCO’s labor and employment group handles the full range of employment litigation matters, including lawsuits alleging violations of the Family and Medical Leave Act, the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, Section 1981, the Age Discrimination in Employment Act, and the Equal Pay Act. The group also handles trade secret and restrictive covenant litigation, Department of Labor investigations, and Equal Employment Opportunity Commission and state Fair Employment Practices charges.

Representative Employment Litigation Matters

• Represented international consulting company in class action Americans with Disabilities Act and ERISA lawsuit brought by former employee. Obtained dismissal of all claims on first motion (motion to dismiss). Craig v. BearingPoint, Inc., No. 1 08-CV-2476 (N.D. Ga. Dec. 10, 2008).
• Defended national telecommunications company in federal district court in Ohio in a seven-person disparate treatment and disparate impact race discrimination lawsuit. Obtained summary judgment against all plaintiffs.
• Obtained dismissal of all claims on motion to dismiss on behalf of Fortune 600 company in ERISA/age discrimination/wrongful discharge litigation in federal district court in West Virginia.
• Defended national telecommunications company in ADA lawsuit in Louisiana federal court. Won motion to dismiss all claims based on untimely filing of lawsuit (91 days after receipt of EEOC right-to-sue notice) and successfully defended against appeal of same.
• In defense of discrimination/retaliation lawsuit, won summary judgment on after-acquired evidence defense and on counterclaims for breach of fiduciary duty and breach of contract against former in-house attorney of northeastern power company.
• Represented national insurance company in a race discrimination/retaliation claim in the Northern District of Georgia. Obtained dismissal of the race claim on a Motion for Judgment on the Pleadings and settled the retaliation claim for nuisance value.
• Defended distribution company and individual defendants against multi-state civil RICO, computer theft, non-compete, and trade secret claims. Negotiated de minimis settlement resolving all claims.
• Assist clients with affirmative action compliance obligations including defending clients against Office of Federal Contract Compliance Programs affirmative action audits.
• Routinely represent clients before the Equal Employment Opportunity Commission and state Fair Employment Practices agencies.

KCO attorneys have extensive experience in all aspects of the labor-management relationship and have had great success representing employers in matters including union organizing, collective bargaining, labor arbitrations, and union picketing. Specific experience includes:

Union Organizing

The firm’s attorneys have had great success assisting clients in opposing union organizing efforts, including:

• Assisting a national telecommunications company in successfully opposing organizing efforts by the Communications Workers of America and the International Brotherhood of Electrical Workers in operations across the nation including Marietta, Georgia, Reading, Pennsylvania, Milwaukee, Wisconsin, and Bakersfield, California;
• Helping an aircraft parts manufacturer to defeat repeated organizing efforts by the International Association of Machinists;
• Assisting a southeastern box manufacturer to defeat a Teamsters effort to organize its drivers and production and maintenance employees;
• Working with a national cement manufacturer to defeat a Paperworkers union effort to organize the company’s South Carolina facility;
• Helping a national ready-mix manufacturer defeat an organizing effort by the Teamsters Union;
• Working with a long-term care facility to fight off an organizing effort by the United Food and Commercial Workers Union; and
• During negotiations for collective bargaining agreement, assisted a long-term care facility to withdraw recognition of the United Food and Commercial Workers Union.

Collective Bargaining

KCO’s attorneys have negotiated collective bargaining agreements in many industries. Our experience includes:

• Leading collective bargaining negotiations with the Service Employees International Union for an Ohio long-term care facility and negotiating an employer-friendly three-year labor agreement;
• Leading collective bargaining negotiations with the Graphic Communications International Union for a Wisconsin-based printing company and successfully negotiating a cost-neutral three-year labor agreement;
• Leading mid-term bargaining negotiations with the United Auto Workers Union for an Ohio die casting company and negotiating a favorable supplement to the collective bargaining agreement;
• Leading collective bargaining negotiations with the United Food and Commercial Workers Union for a long-term care facility in Georgia;
• Leading initial bargaining with the International Brotherhood of Electrical Workers for the newly organized facility of a meter reading company and guiding client through the closing of the location and the negotiation of a closing agreement; and
• Assisting a Pennsylvania-based freight car manufacturer in negotiations with multiple locals of the United Steelworkers.

Labor Arbitrations and NLRB Disputes

When disputes arise in unionized facilities, KCO’s labor and employment group has experience representing its clients before the National Labor Relations Board and in labor arbitrations. Our experience includes:

• Successfully representing a Wisconsin-based printing company in numerous labor arbitrations including winning denial of a grievance demanding the return of work that the company had placed at a non-union facility. Perry Judd’s, Inc. and GCIU Local 309C, 117 Lab. Arb. (BNA) 1134 (2002) (Kenis, Arb.);
• Successfully representing a freight car manufacturer in multiple labor arbitrations including winning a number of “just cause” grievances involving the termination of union officers and union-represented employees. Johnstown America Corporation and USWA Local 2635, 1994 WL 854709, FMCS File No. 94-08208 (1994) (Tharp, Arb.); Johnstown America Corporation and USWA Local 2635, 1994 WL 838177, FMCS File No. 94-04167 (1994) (Franckiewicz, Arb.);
• Successfully defending a Wisconsin-based printing company against an unfair labor practice charge alleging that the company’s elimination of work areas violated the NLRA and obtaining dismissal of the unfair labor practice charge and two related labor arbitrations; and
• Working with national hotel clients to respond to union area standards picketing at multiple hotel properties.

KCO’s labor and employment attorneys routinely assist clients in drafting and implementing policies and programs that allow for the prevention and resolution of employment disputes. This includes preparing employment agreements, severance agreements, executive compensation agreements, employee handbooks and policies, auditing client employment practices and wage and hour compliance, and defending clients in audits by the Department of Labor and the Office of Federal Contract Compliance Programs.

The group also provides advice to clients on day-to-day employment issues and assists clients with training in all areas of labor and employment law, under both federal and state law, including:

• Anti-harassment/discrimination;
• Proper hiring, discipline, and discharge;
• Compliance with FMLA and ADA obligations (and similar state law obligations);
• Union avoidance;
• Workplace violence; and
• Layoffs and related WARN issues.