Employment Law
McAfee & Taft’s Labor and Employment Group represents employers in all areas of employment law and is considered one of the premier employment practices in the region. In fact, 18 of our attorneys are listed in either The Best Lawyers in America or Best Lawyers: Ones to Watch for their work in representing management in employment and labor law.
Our expertise and experience in representing clients in employment matters encompasses a broad range of legal services, including:
- Counseling employers of all sizes and types on employment issues on a daily basis.
- Drafting and auditing written policies of all kinds, including company policy statements, employee handbooks, interviewing/hiring procedures, drug/alcohol and medical testing programs, and affirmative action programs and compliance measures.
- Litigating employment disputes in state and federal courts and before state and federal administrative agencies.
- Litigating discrimination and retaliation claims based on age, national origin, gender, religious orientation, disability/handicap and pregnancy, as well as other protected classifications such as ERISA-based claims.
- Defending state law wrongful termination claims. Our attorneys have been instrumental in developing pro-employer law in this area, both in Oklahoma and elsewhere, including the federal circuit courts.
- Defending contract-based employment claims, and employment-related claims such as intentional infliction of emotional distress, invasion of privacy, and defamation.
- Defending and prosecuting lawsuits involving the enforcement of non-competition and non-solicitation agreements, as well as claims involving the improper release and disclosure of proprietary and trade secret information.
- Defending claims ranging from single plaintiff claims, to complex and to class action litigation. We have extensive experience in defeating class certification and at defending against and presenting complex statistical evidence in collective and class actions.
- Designing and reviewing reduction-in-force programs for compliance with federal and state equal employment opportunity laws, including the Worker Adjustment and Retraining Notification Act (WARN), Employee Retirement Income Security Act (ERISA) and Older Worker Benefits Protection Act (OWBPA), among others.
We also actively encourage alternative dispute resolution, including voluntary submission of claims to mediation; mediation pursuant to agency programs, such as the Equal Employment Opportunity Commission’s mediation program; and court-sponsored mediation programs. We also handle employment arbitrations under individual employee arbitration agreements and also assist with the planning and implementation of those types of arbitration programs.
It has been our experience that we can represent management in diverse locales from our Oklahoma City and Tulsa offices less expensively — and every bit as effectively — as most firms can even in their hometown. We are able to do this through a combination of factors, including:
- Depth of talent and experience in all areas of employment law
- Group-based approach to the practice of law which facilitates the exchange of information and ideas
- Efficient approach to litigation
- Effective use of the newest technology, which we adapt to client needs
- Relatively low overhead and fees
For more details on some of our specific employment-related areas of expertise, please select from one or more of the following links:
Administrative Actions
McAfee & Taft represents employers before the Equal Employment Opportunity Commission, Department of Labor, Occupational Safety and Health Administration, Office of Federal Contract Compliance Programs, and all types of state agencies, including state human rights and employment security commissions and public employee boards, among others. We are expert at formulating administrative responses, handling on-site investigations, participating in administrative mediation programs, securing favorable administrative dismissals and in setting up defenses during the administrative process which will be useful in the event of related litigation.
Age Discrimination
Firm attorneys are expert in counseling on age-related employment matters and in defending age discrimination claims. Specifically, we have extensive experience in planning and implementing reductions in force which may have an adverse impact on protected-age employees; in developing and defending against statistical evidence in such cases; in defending collective actions brought under the Age Discrimination in Employment Act; and in ensuring employer compliance with Older Worker Benefit Protection Act requirements for group separation programs and separation and release agreements. Our attorneys have been lead counsel in several prominent federal circuit age discrimination cases challenging reductions in force.
Because of our expertise in these areas, McAfee & Taft was asked by the Society for Human Resource Management Foundation to author a treatise on age discrimination in the workplace for human resource professionals.
Alternative Dispute Resolution
The Labor and Employment Group actively encourages alternative dispute resolution for employment disputes. Employment litigation is labor-intensive and costly, and court rulings and jury verdicts are not predictable. Our practice group members routinely participate in voluntary mediation, agency mediation programs, court-sponsored mediation programs, and both non-binding and mandatory binding arbitration programs under employee arbitration agreements. We also design and revise alternative dispute resolution programs for clients.
Business Immigration
McAfee & Taft assists employers in obtaining employment-related visas for their employees seeking to enter the United States to work in a variety of professional positions, including healthcare, science and research, technology, and education. Our attorneys also provide guidance to employers on I-9 compliance, audits, and E-Verify compliance. In addition, our attorneys provide a broad range of immigration services to meet the needs of individuals and businesses.
Disability Discrimination
The Americans With Disabilities Act and related state laws prohibiting disability discrimination in the workplace have imposed complicated obligations on employers in hiring and retaining impaired and disabled persons. Our attorneys advise employers in all aspects of disability law, including pre-employment interviews, inquiries and testing issues, workplace accommodations, and lawful termination of protected persons. We have extensive experience and insight into the relationship between disability laws, workers compensation laws and other protected-leave statutes such as the Family and Medical Leave Act.
McAfee & Taft has many clients with unionized workforces, and we have extensive experience in analyzing the effect of collective bargaining obligations on an employer’s duties under federal and state disability laws. In particular, we have routinely counseled such employers on accommodations under collective bargaining agreements, to include reconciliation of accommodations with seniority provisions and other collectively bargained provisions.
Our attorneys have also been instrumental in developing pro-employer legal precedent in disabilities law. We have numerous published opinions on disability law, including some of the earliest, if not the first, federal circuit opinions on the definition of “disability” under federal law; the interplay between state and federal disability laws; and employers’ accommodation obligations under collective bargaining agreements.
Discrimination Litigation
McAfee and Taft has extensive experience in defending every conceivable type of employment discrimination claim, including claims under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, the Pregnancy Discrimination Act, the Fair Labor Standards Act, and state fair employment practices statutes; as well as state law claims for wrongful termination and public policy tort violations.
We have a well-founded reputation for successfully defending all types of discrimination claims before administrative agencies and in state and federal courts, including the appellate process.
Our attorneys have developed a very efficient process for employment litigation, which includes streamlined procedures for discovery and briefing, and efficient staffing of cases. As a result, legal fees routinely are significantly less at McAfee & Taft than at comparable firms in Oklahoma and elsewhere. The practice group’s litigators also are well known for innovative motion practice, which often results in early dismissals or which makes possible early, favorable settlement. Also, our group-based approach to legal practice is intentionally designed to ensure a free flow of information and materials between attorneys, which makes our practice more efficient and effective. The end result is better results for clients at less cost to them.
Drug and Alcohol Testing
Our attorneys have extensive experience in developing and revising drug and alcohol testing programs for clients with employees in Oklahoma and in locations throughout the United States, including employees who are subject to testing under regulations promulgated by the Department of Transportation. We offer supervisor and employee training on topics such as identifying chemically dependent employees, appropriate documentation, intervention options and the legal risks associated with drug and alcohol testing and employee searches. We are also experienced in defending litigation related to employee testing programs.
Employment Agreements and Contracts
Our attorneys are skilled at analyzing, drafting and litigating all types of employment agreements, including contracts for employment of all kinds; key executive agreements; non-competition agreements; privacy/trade secrets agreements; patent agreements; and separation and release agreements. We are especially skilled at structuring and drafting all employment documents necessary for large-scale reductions in force, including conditional offers of employment/re-assignment; informational materials required under state and federal employment laws, such as the Older Worker Benefit Protection Act; demographic and statistical analyses for EEO compliance issues; and separation agreements and releases.
Employment Harassment
Unlawful employment harassment includes not just sexual harassment, but all other types of workplace harassment, including racial, gender and age-based. There has been significant growth in this type of litigation recently. Our attorneys are experts at related on-site training for both hourly and management employees, development of anti-harassment policies, investigation of harassment claims and defense of related litigation.
Employment Training
Our attorneys have extensive experience in all types of employment law training, including frequent on-site training for hourly and management employees on compliance issues of all types, workplace harassment and violence, workplace investigations and ethical issues. We have an excellent reputation for professional and lively presentations. Our services include providing training on an affordable fixed-fee basis, conducting semi-annual complimentary seminars for clients, and distributing complimentary newsletters and updates on labor, employment and benefit issues which are authored exclusively by our attorneys.
Equal Employment Opportunity
Federal and state laws require equal opportunity in employment, without regard to an applicant’s or employee’s race, national origin, gender, religious orientation, pregnancy status, disability, age, or for having exercised legally-protected rights. Every aspect of the employment relationship is affected by these laws. Our attorneys educate employers and their employees on duties and obligations under these laws, counsels employers on compliance, helps employers implement preventive policies and practices and, when necessary, aggressively litigates every type of employment discrimination claim.
ERISA Litigation
Our ERISA litigation and controversy practice has significant experience representing employers and insurers in administrative review proceedings, claims decisions, benefits lawsuits, subrogation/reimbursement actions and protected rights litigation. We also handle litigation involving claims for prohibited transactions, alienation of benefits, plan service provider malpractice and withdrawal liability. Additionally, we represent fiduciaries in a wide variety of ERISA fiduciary litigation. We also represent plans, plan sponsors, administrators and fiduciaries in matters involving the Department of Labor, the IRS and the PBGC.
Our ERISA litigation attorneys practice closely with our Employee Benefits plan design attorneys and our labor and employment attorneys, bringing a richer perspective to these areas of practice.
Executive Agreements and Compensation
Working together with our highly skilled Employee Benefits attorneys, we assist our clients in the design and implementation of a wide variety of executive compensation plans, including:
- Employment agreements
- Equity compensation programs, such as stock option plans, phantom stock plans,and restricted stock award plans
- Long-term incentive awards
- Supplemental retirement plans
- Protections for executives in the event of a takeover or other change in control.
Learn more about our extensive Employee Benefits practice.
Family and Medical Leave
The Family and Medical Leave Act and similar laws in some states require many employers to give employees time off in connection with the birth, adoption or placement of a child or the serious health condition of employees or their immediate family members. The obligations under these statutes are complicated and often the laws prohibiting disability discrimination in the workplace and pertaining to workers compensation are also involved. McAfee & Taft’s attorneys have the knowledge and insight to assist with compliance and the experience to defend employers should litigation arise.
Noncompetition and Nonsolicitation Enforcement
Oklahoma law is very unique and pro-employee in the area of noncompetition and nonsolicitation enforcement. That is why it is imperative that employers seek counsel from attorneys who have considerable expertise in this specific area of practice. McAfee & Taft attorneys have extensive trial and practical experience in both enforcing and defending against nonsolicitation and noncompetition agreements. As a result, we are very familiar with how each of our state and federal district court judges view these issues, and that insight and experience gives our clients a considerable courtroom advantage.
From the employer’s perspective, the best course of action is to ensure that contractual obligations with employees are enforceable. Our employment attorneys have the expertise and skills to draft such contractual agreements so as to put the employer in the most advantageous position if enforcement of nonsolicitation or noncompetition clauses becomes necessary.
Occupational Safety and Health
McAfee & Taft provides consultation and representation on the entire range of safety and health issues. We counsel clients on occupational safety and health compliance issues and handle administrative inquiries by state and federal agencies, including audits and on-site investigations. This includes advice on compliance with safety and health standards, OSHA workplace inspections, and administrative proceedings before the Occupational Safety and Health Review Commission and state departments of labor. We have also provided input on new safety and health regulations to governmental agencies.
Personnel Management
We counsel clients on all types of personnel management issues, whether it is a discipline or discharge matter, a union avoidance matter, a benefit design issue or a search for a key executive. Our expertise includes the following areas: design and implementation of reduction-in-force and hiring programs; termination-related areas, including legal compliance and separation agreements and releases; employment contracts; hiring-related areas, including drug/alcohol testing and medical inquiries/examinations; review and drafting of handbooks and policies; design of compensation and benefit plans, including executive compensation plans; employment training; use of alternative workforces, including temporary services and independent contractors; affirmative action programs/plans; administrative agency relations; labor relations; and litigation avoidance.
Professional Employer Organizations
McAfee & Taft’s lawyers are experienced and actively involved in the full range of legal issues that affect the organization, operations, registration and regulation of professional employer organizations. We were primarily responsible for drafting the Oklahoma Professional Employer Recognition and Registration Act, which is being used by industry organizations as model legislation for regulatory oversight of PEOs throughout the country, and assisted in obtaining its enactment.
Our professional employer organization clients include both independent and captive PEOs who rely on McAfee & Taft’s experts for advice concerning issues unique to the PEO industry and on the expertise of other members of the Firm in a full range of business matters.
In addition to being actively involved in all aspects of employment and employee benefits law, our attorneys are familiar with various types of agreements and contracts, including co-employment and client service agreements unique to the PEO industry, as well as marketing, agency, and other agreements which are common to many business organizations. We have represented PEOs in many corporate transactions, including organization, mergers and acquisitions, shareholders agreements, and disposition of business units, as well as resolution of many disputes, including negotiation, settlement, arbitration, and litigation of various employment, corporate, insurance coverage and premium payment disputes, and other types of claims.
Reductions in Force
Our attorneys have the experience and resources to provide effective advice on issues arising during the planning and implementation of reductions in force and reorganizations. Our goals are to assist management in achieving its business goals, to minimize the potential for subsequent individual or class litigation, and to help maintain good employee relations during and after reductions in force. We assist both union and nonunion employers in reduction-in-force planning and implementation, including:
- Analysis of business structures and staffing needs
- Identification of appropriate selection criteria
- Design of selection procedures
- Implementation of appropriate documentation procedures
- Compliance with WARN Act requirements
- Preparation of severance and release agreements
- Negotiations with unions
- Impact analysis for protected groups
Retaliation
Employment retaliation claims are among the most difficult to defend and, as a result, they have become commonplace. They affect almost every aspect of the employment relationship, from internal and administrative complaints of any kind of unlawful treatment, to workers compensation retaliation claims, to applications for re-employment. Our attorneys have extensive experience in counseling and training employers on how to avoid or minimize these types of claims, and in defending such claims before administrative agencies and in the courts.
Trade Secret and Confidential Information
In today’s business environment, it has become extremely important to legally protect trade secret and confidential information. The first step in adequately protecting such information from improper use or disclosure is to enact policies and put into place contractual agreements with key employees. McAfee & Taft’s attorneys are highly skilled in drafting and implementing practical and enforceable confidentiality policies and agreements. Our attorneys also have extensive trial experience in enforcing such provisions and obtaining injunctive and equitable relief to prevent the misuse of such information.
Unemployment Claims
Our employment lawyers have the experience and resources to assist management in all phases of unemployment compensation claims, including:
- Analysis of potential claims before implementation of termination decisions
- Crafting employment separations to avoid claims or to provide effective defenses to claims
- Anticipating and preparing for related employment litigation in district courts
- Preparing timely administrative responses
- Preparing for evidentiary hearings
- Preparing for appellate proceedings
- Defending appeals before the district courts
- Making administrative contacts
Wage and Hour Issues
McAfee & Taft has extensive experience handling issues under the Fair Labor Standards Act, as well as similar state wage and hour laws. We routinely counsel private and public employers on compliance and change in status issues and handle all types of administrative inquiries and hearings before the Department of Labor and state wage and hour commissions.
Workplace Investigations
When counseling management in conducting all types of workplace investigations, our goal is to achieve prompt, thorough fact-finding in a professional and confidential manner.
Specifically, we assist management in:
- Determining the appropriate type of investigation
- Determining the appropriate personnel to conduct the investigation
- Determining the appropriate witnesses
- Determining appropriate questions and questioning techniques
- Identification of relevant documents
- Implementation of appropriate documentation procedures
- Analysis of appropriate discipline and discharge issues
- Anticipating and preparing for potential related litigation
