Labor, Employment & Immigration

Williams Mullen’s Labor, Employment & Immigration (LEI) Section has a nationwide practice that is consistently recognized by Chambers USA. We pride ourselves on offering “can do” business-oriented solutions to clients’ increasingly complex labor, employment, and employment-related immigration issues. Responsiveness, efficiency and client communication are the cornerstones of our practice. Our depth of experience in the labor and employment field enhances our ability to represent clients successfully.

LEI section attorneys represent local, regional and national clients by providing advice and counsel in three primary service areas: Labor, Employment and Immigration. Full descriptions including representative experience are provided below.

LABOR

The LEI Section’s traditional labor law practice includes representation of employers facing threats of unionization, as well as employers dealing with the challenges of organized workforces. We develop strategies to maintain union-free workplaces, provide advice in the course of initial organizing and decertification election campaigns, defend companies charged with committing unfair labor practices, negotiate collective bargaining agreements and arbitrate grievances arising under those agreements.

•  Representative Proactive Labor Management Experience 
  • Protect employers’ interests in connection with injunctions in labor disputes, including recognitional strikes, unfair labor practice strikes, and economic work stoppage
  • Work to defeat union organizing attempts for clients in major manufacturing sectors, such as steel, paper, health care, printing, construction and mining. Represented clients in decertification of unions
  • Negotiate long-term labor agreements, including work rules and health insurance concessions for Fortune 500 companies
  • Defend allegations of unfair labor practices before the National Labor Relations Board and representation in appeals of NLRB orders before various U.S. Circuit Courts of Appeals
  • Represent employers in grievance and arbitration matters arising under collective bargaining agreements

EMPLOYMENT

The employment counseling and litigation team of the LEI Section provides advice to public and private employers of all sizes on human resources issues and assists them to minimize liability and comply with applicable laws and regulations. Our attorneys represent management in all areas of employment litigation, including before administrative agencies and arbitrators and in state and federal trial and appellate courts across the U.S.

•  Representative Employment Litigation 

  THE CASES LISTED BELOW ARE ILLUSTRATIVE OF THE MATTERS HANDLED BY THE FIRM. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. NOT ALL CASE RESULTS ARE PROVIDED. CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY THE FIRM.

  Defense of Employment-Related Lawsuits and Claims in All Courts and Administrative Forums 

  • Defended commercial real estate company in a shareholder derivative lawsuit, breach of contract, and various business tort claims, including breach of fiduciary duty, statutory business conspiracy, tortious interference, and violation of the Virginia Computer Crimes Act brought by a former employee/owner. The case lasted approximately two years and was settled in January 2020, three days before the start of a three-week trial. The matter settled for significantly less than the client was obligated to pay under a shareholder’s agreement for the disgruntled former shareholder’s shares. The discount was primarily due to the former shareholder’s improper actions when departing the company and due to his spoliation of evidence.
  • Defended a restaurant in a Title VII sexual harassment case, in which the employee alleged that she was harassed by a co-worker and then was terminated in retaliation for complaining about the harassment. Despite an Equal Employment Opportunity Commission (EEOC) “for cause” determination, a majority of the case was dismissed on summary judgment, and the remaining claim for harassment was settled.
  • Defended a debt collection company in an Americans with Disabilities Act (ADA) lawsuit alleging that the client violated the ADA when it would not allow an employee to transfer to another supervisor and when it terminated her for violation of the Company’s workplace violence policy several months after it had denied her request for an accommodation. Plaintiff also alleged claims for assault. After discovery, summary judgment was granted resulting in dismissal of the entire case.
  • Represented a higher educational institution in a case alleging violations of Title VII and multiple other related claims for discrimination. We briefed three motions to dismiss because the Court continued to grant leave to amend the complaint to plaintiff.
  • Defended a medical school in an educational discrimination claim brought by a former medical school student who was dismissed from the program for failure to adhere to the school’s code of professional conduct. The plaintiff alleged that she was dismissed for her race and national origin. The case was been heavily litigated with numerous motions, all of which were granted in our client’s favor, and then the matter was settled at a mediation.
  • Defended a Fortune 500 retailer in an arbitration where plaintiff alleged violations of the ADA. After the close of discovery, the case was settled for less than the client had originally offered at an EEOC mediation.
  • Represented a national healthcare staffing company in alleged tortious interference with contracts and business relationships following the client’s hiring of a former employee of the plaintiff and the client’s receipt of several multi-million accounts previously held by the plaintiff, which the plaintiff alleged were wrongfully taken by our client. The case lasted over 2.5 years and was settled for about 5% of the original demand.
  • Represented a national information technology staffing company in a class/collective action wage and hour case brought by approximately 1,500 of the company’s current and former staffing recruiters for alleged unpaid overtime and off-the-clock work. Following briefing on a motion to compel arbitration applicable to approximately 46% of the class, and full summary judgment briefing, the case settled following mediation on the eve of trial and was dismissed.
  • Defended a national IT staffing company in a Sarbanes-Oxley whistleblower action filed with the US Department of Labor (DOL) in which the claimant alleged that he was terminated from his employment after complaining of waste and fraud at the third-party company workplace to which he was assigned. Our client won at the DOL regional office review level, but the claimant appealed the DOL’s decision to an Administrative Law Judge (ALJ), which resulted in full discovery followed by our motion for summary adjudication which was granted by the ALJ and the case was dismissed. The dismissal was affirmed by the Administrative Review Board of the DOL.
  • Represented a global healthcare logistics company in an alleged Massachusetts state law sex discrimination and Equal Pay Act claim that continued for approximately four years. The plaintiff alleged that she was paid comparably less than her male counterpart, despite evidence that she actually earned more than her closest male counterpart in 2018 and 2019. Ultimately, the Massachusetts Commission Against Discrimination (MCAD) ruled in favor of our client and dismissed all of the claims.
  • Represented a national logistics company in a multi-count lawsuit filed in state court in California alleging various business torts, including tortious interference with contract, tortious interference with business expectancy, conspiracy, aiding breach of fiduciary duty, and others. After extensive discovery, the case proceeded to a bench trial in Los Angeles. We submitted a motion for directed verdict at the close of the plaintiff’s nearly four days of evidence, and in response, the plaintiff made a demand for nominal settlement of all claims, and the case was dismissed.
  • Represented five officers and directors in a shareholder derivative suit brought under the Employee Retirement Income Security Act (ERISA), as well as state law claims of breach of fiduciary duty and breach of contract, relating to the alleged improper use of funds and improper loans (alleged prohibited transactions) that adversely affected the company’s Employee Stock Option Plan (ESOP). Following extensive motions and partial dismissals of claims and parties, the case was settled on the eve of trial following mediation.
  • After two years of litigation and having twice won at the EEOC level and before a federal district court in Maryland, we represented a technology control and video surveillance products company before the United States Court of Appeals for the Fourth Circuit in a race discrimination claim. In a lengthy opinion, the Court ruled in the company’s favor and the dismissal by the lower court was affirmed. The company then successfully opposed plaintiff’s motion for reconsideration and motion for en banc review.
  • The Department of Labor (DOL) filed a civil action against an import/export company seeking a six-figure recovery for allegedly unpaid wages and liquidated damages on behalf of five allegedly current and former employees of the client who served as delivery drivers or driver “helpers.” The company lodged a novel defense under the Motor Carrier Act of 1935 applicable to delivery drivers moving goods in interstate commerce and got the case dismissed, and then the DOL amended the complaint and refiled. Ultimately, the use of surveillance evidence helped to leverage a settlement that was approximately 10% of the government’s initial settlement demand.
  • Represented an engineering and consulting design firm in a case alleging trade secret misappropriation, computer trespass and conversion. The case was dismissed early at the Rule 12(b)(6) stage with regard to the computer trespass claims, and the case is now in discovery on the other claims.
  • Represented a health care provider and its managing partners in litigation against another health care provider and its management/operating company, relating to the latter’s refusal to release our client from a series of non-competition and non-solicitation covenants contained in their partnership and employment agreements. We filed an offensive declaratory judgment proceeding, in which the court agreed with our client and invalidated the non-competition covenants as overbroad and unenforceable under state law. The victory allowed our client to withdraw from the partnership with the provider and to pursue a new relationship with a university-based hospital system.
  • Represented a restaurant owner in a lawsuit against former head chef who stole client’s master recipe book and threatened to sell it to a direct competitor. The lawsuit involved trade secret misappropriation, conversion, and unfair trade practices. The court granted a permanent injunction and final judgment that required defendant to return the stolen recipes and other trade secrets and affirm under oath that he had destroyed and not retained any of the information at issue.
  • Defended a technical staffing and recruiting firm that allegedly falsely reported to a prospective employer that plaintiff was a marijuana user, resulting in the retraction of a lucrative employment offer. The claims in the case were for libel and slander under state law. All claims were settled for a fraction of the initial demand while a motion to dismiss was pending.
  • Represented several building and construction companies in Virginia and North Carolina, each of which had experienced a workplace death. We assisted the clients throughout the resulting fatality inspection conducted by the state Occupational Safety and Health Administration (OSHA), as well as counselled the clients on the related workers’ compensation claims and other liability-related issues. We contested the OSHA citations until a favorable settlement was reached. In a couple of matters we also provided independent counsel to the client in the civil wrongful death action independent of the panel counsel designated by the insurance carrier.
  • Represented a fire protection and life safety services company in a matter involving a group of three former employees who breached their non-solicitation and non-competition covenants by recruiting colleagues to join a competitor. The matter was significant because the action by the former employees and their new employer amounted to a raid of one branch office, implicated the client’s willingness to enforce the covenants binding most of its existing workforce, and could have signaled an acceptance of the competitor’s aggressive recruitment practices. We made a demand on the former employees and their new employer, and the parties entered into a favorable pre-litigation settlement.
  • Based on hundreds of complaints received from newspapers and consumers, the Federal Trade Commission (FTC) filed an enforcement action against the operators of a complicated maze of dozens of interrelated and interdependent companies, charging them with deceiving customers by using fake newspaper subscription notices. A federal district court found as a matter of law that millions of “Notice of Renewal/New Order” mailers sent by defendants for subscriptions to newspapers were deceptive. Two defendants sued our clients and blamed them for prompting the FTC investigation and prosecution. After positioning the case for a dispositive motion, we were able to negotiate a walk-away settlement to avoid the uncertainty and expense of a trial.
  • We represented an operator of chain restaurants in reaching a settlement with a workers’ compensation claimant, which included the payment of the claim in exchange for a general release and voluntary resignation. The claimant signed a resignation agreement, and the client and its workers’ compensation carrier fully performed their respective obligations under the settlement. But, the now-former employee then sought unemployment benefits. The Appeals Referee found that the employee was “forced to resign” to accept the workers’ compensation settlement. The Appeals Referee concluded that the employee had met his burden of showing good cause attributable to the client for his resignation. Accordingly, the former employee was deemed qualified for benefits. That decision was reversed by the Commission to avoid double dipping.
  • Represented a wealth management company in which a former financial advisor resigned and immediately began to solicit the client’s customers using trade secret information. In addition to prosecuting the contract and misappropriation claims, we had to defend the defamation counterclaim asserted against the client’s owner.
  • Defended large national IT staffing company in a union election petition in which a union attempted to unionize the client’s employees. The union sought to organize the client’s employees by including them in the same collective bargaining group as the employees of five other staffing companies and a prime contractor. We argued that their client was not a “joint employer” of the employees with the other companies, and the union’s petition to organize was dismissed.
  • Defended a large regional HVAC company against the issuance by Virginia Occupational Safety and Health (VOSH) of willful citations arising out of an accident involving a subcontractor’s employee on the client’s work site and for which VOSH sought $225,000 in fines and penalties. We represented the client during the informal conciliation process and subsequent litigation, and moved for dismissal of VOSH’s complaint. The matter was settled with substantially reduced fines and with no willful violations.
  • Represented religious-affiliated organization in Nebraska state court for defamation claims raised by a former overseas missionary who was removed from his appointment for improper conduct with a third party.  After extensive discovery and the filing of a motion for summary judgment, the case was settled for a nominal amount and other confidential non-monetary terms.
  • Defended religious-affiliated organization in multiple EEOC and state workforce commission Charges of Discrimination raised by former missionaries. The Charges were dismissed without investigation based on application of the “ministerial exception” to Title VII of the Civil Rights Act and the ADEA, as well as on general constitutional grounds prohibiting the interference with churches by the state.
•  Diversity Initiative Management, Affirmative Action Plans, and Defending OFCCP Audits 
  • Prepare affirmative action plans for company headquarters and branch offices
  • Advice and training on affirmative action initiatives and diversity and inclusiveness recruiting and retention strategies
  • Defend government contractors in DOL/OFCCP compliance audits
•  Human Resources Advice and Training 
  • Conduct labor and employment due diligence for clients contemplating acquisitions and divestitures to ensure compliance with state and federal employment laws
  • Assess vulnerability of multi-establishment employers to class or mass actions regarding pay selection practices
  • Advise companies regarding the implementation and management of lawful diversity initiatives and recruiting / advancement plans
  • Train all levels of management in union avoidance, conducting workplace investigations, preventing unlawful harassment and discrimination, implementing successful progressive discipline techniques, using lawful techniques to hire, retain and terminate employees, and performance management
  • Provide on-going counseling in all areas of human resource management, including, but not limited to, obligations under minimum wage, overtime and record-keeping requirements, restrictive covenants, substance abuse policies, OSHA, whistleblowing claims, severance and release agreements, plant closings, relocations and layoffs
  • Review personnel policies and draft employment applications and agreements for compliance with federal and state anti-discrimination laws
  • Advise employers on proposed personnel actions including discipline and discharge and reductions in force

IMMIGRATION

The LEI Section’s Immigration practice group advises companies in the U.S. and abroad on how to structure and streamline their employment of foreign nationals. We also represent clients in worksite enforcement investigations, and Form I-9 and E-Verify compliance and audits. We regularly partner with senior management and human resource professionals to develop solutions for their short-term and long-term immigration matters.

•  Types of Services 
  • Dedicated access to an experienced business immigration attorney who will partner with you to make the crucial decisions regarding the initial hiring of the foreign nationals, and how best to retain their services as they move from a nonimmigrant process to U.S. permanent resident status (i.e., green card) and then naturalization to obtain U.S. citizenship
  • Timely preparation of nonimmigrant petitions and applications for qualified foreign nationals and their family members, including H-1Bs, TNs (for Canadian and Mexican citizens), L-1s, Blanket L-1s, E-1s, E-2s, E-3s (for Australian citizens), O-1s, P-1s, R-1s and others within pre-established deadlines (“deliverables”), with special services for clients with high volumes or fluctuating caseloads
  • Providing guidance and handling all aspects of the lawful permanent residency application process (i.e., green card application) for individuals including Form I-140 (EB-1) petitions including multinational executive and manager and outstanding researcher petitions PERM-based Form I-140 immigration petitions, and Form I-360 petitions for religious workers
  • Providing strategic advice to clients regarding the use of the Electronic System for Travel Authorization (“ESTA”) or B-1/B-2 visas for permissible business visits to the United States
  • Experience in handling Department of Homeland Security (“DHS”) and Immigration and Customs Enforcement (“ICE”) enforcement on social security no-match issues, security and background checks, Form I-9 and E-Verify compliance and new restrictions on visa issuance and international travel
  • Comprehensive Form I-9 and E-Verify compliance training to keep up with changes in ICE enforcement and state law sanctions
  • Creative solutions to anticipate or minimize the impact of caps, quotas, backlogs and delays, including strategic advice for retaining foreign nationals awaiting issuance of green cards while employed in nonimmigrant status
  • Use of Blanket L-1 visas, E-1 visas, E-2 visas and other transfer visas for employees of foreign subsidiaries, parents and affiliates working temporarily on assignments in the United States
  • In-house training and client alerts so that your company can stay ahead of upcoming changes in the fast-paced and often confusing area of immigration law, and
  • Innovative pricing options that include fixed-fees per visa, project pricing, or a blend of fixed and hourly fees that encourages in-house training of staff to handle routine and repetitive matters
•  Representative Business Immigration Experience 
  • Business visitor visas for all foreign countries requiring visas for employers’ key managers, executives or specialists, whether U.S. citizens, permanent residents or foreign nationals
  • Experience in representing Indian and Chinese nationals working in the U.S. who may encounter special issues affecting business travel to Europe and the Americas
  • Foreign consulate visa processing to meet differing document requirements and assistance with urgent matters for foreign travel
  • Work visas abroad for specialists, technicians, managers and craft employees
  • Renewals or extensions of work permits and changes in status from visitor to work classifications, after entry into the foreign country
  • Transfers of managers and executives between a company and its foreign affiliate or subsidiaries
  • Advice on the use of technical advisory or business visitor categories and alerts on changes in standards for security checks and entry clearances
  • Representation in obtaining waivers for past criminal convictions or visa violations
  • Participation in strategic planning regarding evaluation of the cost, time to approval and feasibility of transfers of key production or technical staff between countries
  • Advice on foreign treaties and their application to visas, work permits and green cards, including Treaties of Foreign Commerce and Navigation affecting investment and trade visas; and North Atlantic Free Trade Agreement (NAFTA) issues in Canada and Mexico
  • Management of international employment project work and advice on harmonization of international employment contracts with domestic or local legal regulations and requirements

LEI Section attorneys also partner with the Trade Secrets, Employee Mobility and Restrictive Covenants Practice including intellectual property and litigation attorneys, to help clients develop and implement best practices and defend against threats.

When foreign companies seek Foreign Direct Investment guidance to establish business operations in the United States, LEI attorneys partner with the Corporate, Tax, Intellectual Property and International Sections to advise on the major business and legal issues that must be considered.