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Labor & Employment

Carlsmith Ball's attorneys understand the impact that labor and employment laws can have on you and your business. Our mission is to keep your organization free of trouble through sound, practical and understandable advice. The attorneys in this Section will assist your business managers and human resource professionals with understanding statutes, court cases and regulations that address everything from job interview questions, to the proper accommodation of victims of domestic violence, to employee terminations and the proper treatment of benefits thereafter. We offer decades of experience in defending employers, always striving to obtain positive outcomes consistent with the goals of your business at a cost commensurate with the work performed.

EQUAL EMPLOYMENT OPPORTUNITY AND CIVIL RIGHTS

Businesses rarely prosper by treating employees unfairly. Successful businesses, particularly in nonunion settings, are a meritocracy. People are selected because of their qualifications and are advanced because of their performance. While commendable, this simple rule is not enough to avoid EEO legal pitfalls. In Hawai`i, for example, an employment application that inquires into felony convictions is unlawful on its face and can expose well-meaning employers and their individual managers to thousands of dollars in damages. The key to EEO compliance is depth of knowledge of the law and how it applies to your business. Here is our compliance and loss prevention approach.

Policy and Practice Audits

We will meet with your senior management and human resource professionals to review your organization's employee handbook, job application, work rules and policies, both written and unwritten. We will recommend changes to bring your organization into compliance with federal and local laws and prepare language that can save your organization significant litigation costs, such as arbitration/mediation clauses and "safe harbor" provisions with respect to FLSA disputes. We will give you redlined versions showing changes and clean versions that can be downloaded for ease of use. We will explain the reasons for our recommendations.

Education and Training

We will travel to your place of business, learn how your organization works, and provide informal learning sessions for management , giving clear and understandable approaches for dealing with common EEO problems such as harassment investigations and legal issues in hiring, firing and employee discipline.

Effective Agency Responses

We treat agency civil rights complaints as a direct threat to your business. We understand that a "reasonable cause" finding of discrimination by an EEO agency may attract plaintiff's attorneys who can remove the case from agency consideration, sue with additional claims, and ratchet up settlement demands. Our response on your behalf is thus a critical opportunity to deflate allegations and end the dispute quickly before it "gets traction." We do this with facts. We will obtain witness statements, gauge credibility and comb personnel files for exculpatory evidence. If there is a "post-it" in the file showing that a supervisor had no knowledge of protected activity prior to a decision to terminate, we will make sure the agency sees a copy and that it understands its significance. If we conclude there is viable evidence of discrimination, we will alert you, provide a frank assessment, and recommend a course of action to limit liability.

UNION ISSUES, CONTRACT NEGOTIATION AND ARBITRATION.

You find a union authorization card in the employee locker room and realize your company is being organized. What are your rights? What can you tell employees without triggering an unfair labor practice? What constitutes a lawful no-solicitation policy? Who will be eligible to vote if there is an election? We have the experience to guide you through organizing drives and election campaigns. We offer skilled advocacy before the National Labor Relations Board in both election and unfair labor practice proceedings. We have proven expertise to either lead your management bargaining committee or advise it in union contract negotiations. We view arbitrations as an important component of labor contract administration. We understand that unions rely on arbitrations to attack management rights and to gain what they could not negotiate at the bargaining table. We also understand the impact on morale when a poor employee is restored by an arbitrator who strays from the contract. We prepare for arbitrations thoroughly, and well in advance. We take care in selecting the appropriate arbitrator. Our hearing presentations are crisp, organized and to the point. We do not personalize the issues, and we avoid theatrics. Our post-hearing briefs are well written, cogent and thorough. We aim to win.

WRONGFUL TERMINATION AND CIVIL RIGHTS LITIGATION

Disgruntled former employees commonly view litigation as a cause célèbre, where reason is abandoned in the name of personal vindication. For your company, it is a wasteful drain of resources and a threat to reputations, growth and profit. As defense counsel, our task is to apprise you of potential exposure, understand your organization's objectives, and marshal resources efficiently to win or end the dispute on favorable terms. This means "taking one step back" at the outset and analyzing the case for quick settlement opportunities or alternative dispute resolution, where advisable. It means efficient use of discovery and avoiding wasteful motions by maintaining courteous and business-like channels of communication with opposing counsel and judges. It means thinking strategically and identifying opportunities as the facts unfold. A plaintiff's emotional admission at deposition may be the signal for a "walk down the hall" with opposing counsel to discuss ending the dispute. A well-crafted defense motion for summary judgment may coincide with a settlement conference request to the judge before the motion is adjudicated. We also understand that trial preparation and the will to go to trial if necessary are absolutely essential to effective representation. If trial is necessary, we anticipate questions and prepare witnesses, reduce the case to its essential facts, establish a clearly understandable theme and advocate strongly to win.

EMPLOYEE BENEFITS

Our employee benefits and tax attorneys advise employers and fiduciaries in structuring and administering pension, welfare benefit and compensation plans. They have advised hundreds of employers in the tax treatment and fiduciary obligations relating to the design, investment and maintenance, of plans, including profit sharing, 401(k) money purchase, defined benefit, target benefit, age-weighted, cash balance, ESOPs, and other plans. They also service jointly administered Taft Hartley welfare and pension funds on all facets of tax, fiduciary and ERISA compliance. In addition they have solid experience in structuring executive compensation packages.

WAGE AND HOUR LAW

Back pay litigation is a growth area for plaintiff's lawyers, because of the complexity and ambiguity in our state and federal wage and hour laws. Common pitfalls include inadequate record keeping that creates a presumption favoring even exorbitant wage claims; "suffering or permitting" employees to work outside work schedules; improperly docking salaried employees who take time off; and failing to conduct a rigorous, fact-bound analysis of actual job duties to determine exempt status. We audit compensation policies for compliance problems. We provide in depth guidance on exempt status questions. We craft important language modifications such as FLSA "safe harbor" provisions, clarifications to vacation accrual and permissible deductions in the event of employee misconduct. We provide guidance and counsel in the event of agency audits and will aggressively defend clients in order to achieve favorable outcomes in wage and hour litigation.

GOVERNMENT CONTRACTING

State and federal government contracts are creating major business opportunities in the Pacific Basin. With those opportunities come unique obligations. Employee compensation under public contracts may be regulated by the federal or state Davis Bacon laws or the Contract Work Hours and Safety Standards Act. Federal contractors must meet EEO affirmative action compliance obligations. We have the expertise to help companies understand and honor their commitments under these laws and to defend in the event they are sued.

BUSINESS TRANSACTIONS

Carlsmith Ball is well positioned to provide the highest caliber legal services with respect to the labor, employment and employee benefits issues in connection with business sales, mergers and acquisitions. Our section collaborates with our transactional lawyers to assist with due diligence, drafting and advice on matters that may prove critical to a successful transaction. We review transaction documents and advise the client on such matters as the purchaser's duty to recognize and bargain with the incumbent union; implementation of new terms and conditions of employment pending labor contract negotiations; compliance with state and federal WARN statutes and, ERISA pension withdrawal liability.

SAFETY, HEALTH AND WORKPLACE VIOLENCE

We advise employers on state and federal OSHA obligations and provide representation and counsel in OSHA investigations and hearings. If addition, we provide effective guidance and legal support for issues concerning workplace violence, including, where necessary, restraining orders and enforceable trespass notices. We work with your security personnel to take reasonable measures necessary to deal with threats of violence.

EMPLOYMENT CONTRACTS, NONCOMPETITION PROVISIONS AND THE PROTECTION OF TRADE SECRETS AND PROPRIETARY INFORMATION.

From the Employer's perspective, a well drafted employment contract will bring clarity to each party's rights and responsibilities, and will cement important employer protections and provide clear terms for ending the relationship without incurring liability. Important provisions may include enforceable noncompetition agreements, proprietary information and trade secret protection, as well as language defining "cause" for termination and mandatory arbitration provisions for disputes arising out of the employment relationship. We will work closely with management in drafting an employment contract specific to your organization's needs and can assist you in negotiating an agreement that accomplishes your objectives.

BUILDING A RELATIONSHIP

Our goal is to earn and keep your business. This means providing consummate legal representation in manner than never loses track of the business perspective. Our watchwords are accessibility, promptness and effectiveness. We will return your phone calls and e mails in a timely manner and will respond with clear advice and sound judgment. Our analysis will reflect not only the most current research but also the depth of understanding that comes from decades of practicing and helping to shape labor, employment and employee benefits law in Hawai`i and the Pacific Basin.

The Carlsmith Difference

Our no-nonsense approach, coupled with our extensive experience and commitment to client service, serves to provide our clients with strategic counsel and practical guidance designed to offer them maximum protection and flexibility.