Memorandum from Professor Marshall
TO: Rising 2L and 3L Students
FROM: Adj. Prof. David Marshall, Dir., St. John’s Center for Labor & Employment Law
RE: Registration For Next Semester: The Labor & Employment Career Pathway
With the opening of course registration for the next semester, you are probably asking yourself, “What should I take next semester?” If you’re thinking beyond the next semester, you also may be asking, “What courses should I choose that will prepare me for a job next year and a long-term career after graduation?” This memo is designed to offer you some guidance in answering both questions.
The memo’s format parallels that of the Career Pathways that appear on the Law School’s website, so that you can compare this pathway with others. The “Discover” section describes the broad variety of entities and institutions in which lawyers in the labor and employment field (“L&E”) typically practice. The “Employment” and “Labor” sections refine that general description by detailing the ways in which practitioners tend to concentrate their practice in one of two major subspecialties. The “Practice” section describes the current state of the job market and client demand for well-trained L&E practitioners. The “Learn” section lists the courses that provide the basic training you need to prepare you for the L&E job market and, ultimately, a successful career as an L&E lawyer. The “Experience” section provides an illustrative, but by no means complete, list of places where St. John’s students have previously worked or our alumni are currently working in the L&E area.
Don’t miss the “Suggested Path” at the end of this memo for suggestions as to which courses to take and which semester to take them. Keep in mind that employers in the L&E field strongly, if not exclusively, prefer to hire law students who have shown a “demonstrated interest” in the L&E field. Relevant coursework on your transcript is the first place employers look for that showing of interest.
Discover:
Work is essential to every organization of a governmental, social, educational, political, or charitable nature, every business enterprise, and nearly every individual and family. Consequently, labor and employment law has an impact that is broad, continuous, and profound. This legal discipline is not only national, but increasingly international, in scope. The rapid evolution of technologies, economic and political conditions, social customs, and the needs and aspirations of employees demands frequent adaptation of labor and employment law to changing circumstances and regularly puts L&E lawyers at the cutting edge of important legal and social controversies.
L&E practitioners are called upon to use their knowledge and skills in an extremely wide variety of professional contexts. Among them are:
- L&E departments of large global law firms and corporations;
- Small and medium-sized law firms that advise employees, unions, independent contractors, and entrepreneurs on legal compliance and represent them in contract negotiations and civil litigations;
- Regulatory agencies, at every level of federal, state, and local government, that make policy, handle enforcement, and adjudicate claims under a myriad of labor and employment laws;
- Unions and professional associations that represent the interests of their members in negotiation, litigation, and lobbying with respect to workplace issues;
- An almost infinite variety of for-profit businesses and non-profit entities that engage L&E lawyers to serve in-house as executives, counsel, and consultants in the management of the enterprise, from investment and financial services companies, manufacturers, retailers, and emerging technology companies to sports teams and leagues, arts organizations, schools, hospitals, utilities, public benefit corporations, and universities;
- Non-governmental organizations and associations that conduct issue advocacy concerning workers’ rights, civil rights, union rights, wages, health and safety, immigration, human trafficking, the gig economy, and the interests of the business community; and
- As trial lawyers representing employees, employers, unions, or government agencies before courts, arbitrators, and administrative tribunals.
Labor Law: This branch of the L&E field is commonly understood to encompass the law governing the right of employees to engage in collective action and form unions, the privileges and obligations of unions when representing employees in dealings with their employers, and the rights and responsibilities of employees, unions, and employers in their relations with each other and the government agencies that regulate the workplace. Labor lawyers typically advise parties during union organizing campaigns and elections, negotiate collective bargaining agreements between unions and employers, handle legal issues associated with strikes, lockouts, picketing, and boycotts, represent parties in arbitrations over contract disputes, appear in proceedings before administrative agencies such as the National Labor Relations Board and the Department of Labor, and litigate claims filed in court under various labor laws. The National Labor Relations Act is the federal statute that forms the primary basis for regulating the relationship between employees, unions, and employers in the private sector. State and local laws create a parallel regulatory scheme for employees, unions, and employers in public sector workplaces, including public schools, public hospitals, public transportation systems, government agencies, and other public, tax-payer supported entities.
Employment Law: Employment law, on the other hand, typically encompasses the law governing the individual rights and responsibilities of applicants and employees in the workplace and the duties of employers with respect to their employees’ individual terms and conditions of employment, such as wages, hours, health, safety, privacy, pensions, and time off from work. The principal body of law governing individual workplace rights is found in the numerous federal, state, and local laws prohibiting discrimination, harassment, and retaliation. Another important and detailed body of law comprises the federal, state and local regulations governing hours of work and compensation, including minimum wage rates, overtime pay, deductions from pay, the form, timing, and manner of delivering pay, eligibility for and forfeiture of vacation, sick and other paid time off, and the right to layoff pay. Other legal rights encompassed within the broad and ever-expanding category of “employment law” are too numerous and varied to be sub-classified, and include not only statutory rights under such laws as the Occupational Safety and Health Act (OSHA), the Employee Retirement Income Security Act (ERISA), and the Family and Medical Leave Act (FMLA) but also common law rights arising out of the availability of causes of action for breach of employment contract, defamation, breach of a duty to preserve trade secrets, and breach of non-disclosure, non-competition, and non-solicitation covenants.
Employment lawyers representing employer clients, whether as in-house counsel or as the member of a law firm (usually referred to as “management-side” lawyers), play an essential role in advising employers regarding compliance with the many employment laws under which employers operate. They draft policies and procedures to ensure compliance with those laws; they evaluate the risk of lawsuits or adverse administrative agency determinations associated with a proposed policy change, disciplinary action, discharge, restructuring or layoff; and they draft offer letters and negotiate employment or severance contracts that seek to achieve the employer’s business objectives while complying with the employer’s legal obligations. Management-side lawyers also conduct due diligence, render advice, and draft contract provisions that protect their client’s interests in the sale or acquisition of a business, which has an inevitable impact on the seller’s employees and on the allocation of liability between buyer and seller for past and present violations of employment laws. Lawyers representing individuals (usually referred to as “individual” or “plaintiff’s-side” lawyers) likewise advise applicants and employees on a regular basis regarding compliance with employment laws. Typically, in the first instance, they do so in the context of negotiating an employment contract or a separation from employment, when they are called upon to determine whether the individual’s rights are at risk or have been violated, the extent to which those rights have monetary or other value, whether it is prudent or necessary to take steps to protect or enforce those rights, and whether to seek protection or vindication through negotiation, a government agency investigation, or a civil lawsuit. Ultimately, L&E lawyers on each side of the employee, management, and union relationship have the opportunity to become seasoned litigators and trial lawyers because the advice they provide to their clients during the counseling phase of their engagement is often tested in a court of law, administrative proceeding, or arbitration. In that situation, the L&E practitioner provides the client with an evaluation of the risks and rewards of litigation, explores with the client, opposing counsel, and the trier of fact the possibility of resolving the dispute through settlement, and from time to time takes cases through pleading, discovery, motion practice, trial, and appeal in the quest for a favorable final judgment for the client.
The Practice of L&E Law: For the past three decades, there has been a steady and substantial increase in the number of employment laws and the amount of employment litigation. The civil dockets of the New York federal district courts reflect that surge, making litigation under the employment discrimination, wage and hour, and civil rights statutes the largest part of the federal court docket after contract, personal injury, and property claims. Over the same period of time, there has been a decrease in the number of unionized employees in the workforce. As a result of these two phenomena, the demand for employment lawyers has increased in comparison to the demand for labor lawyers. Fortunately for those interested in practicing traditional labor law, New York has the most heavily unionized workforce in the country. Certainly, the most capable and desirable lawyer is one who is trained in both aspects of L&E law. Many lawyers, however, focus their practice in one branch or the other of the L&E field. Another characteristic of L&E practice has been the traditional preference of clients for lawyers who limit their practice to one side or the other of the labor/management divide. Today, that expectation is becoming less rigid as more L&E lawyers devote the bulk of their practice to cases involving litigation over individual employment rights, rather than the rights of unions or unionized employees. No matter which branch or side of the L&E field one practices, most practitioners will readily affirm that labor and employment law is an always engaging, challenging, and rewarding field of endeavor. Until work and workers become obsolete, there will always be plenty for an L&E practitioner to do.
Learn:
Foundational Courses: Employment Discrimination; Labor Law; Wage & Hour Law; Employment Law; Protective Legislation for Workers; Public Sector Labor Law; Transnational Employment Relations; Pension & Employee Benefits.
Advanced Courses: Labor & Employment Arbitration; Labor Law-Special Topics; Sports Law; Entertainment Law; Education Law Seminar; Fashion Law; Health Law; Federal Practice; New York Civil Practice; Federal Courts; Federal Civil Discovery Seminar; E-Discovery; Social Media and The Law; Transnational Litigation in U.S. Courts; Law and the European Union; International and Comparative Sports Law; Advanced Topics in International and Comparative Sports Law; Comparative Equality Seminar; Issues of Race and Gender in the Law; Catholic Social Thought and the Law; Evidence; Administrative Law; Business Organizations.
Writing Courses: Transnational Litigation Drafting; Legal Writing-Advanced; Fact Writing and Persuasion in Legal Documents; Applied Legal Analysis Parts I & II; Drafting: Litigation Documents and Contracts; Drafting: New York Civil Practice; Directed Research.
Skills Courses: Alternative Dispute Resolution; Legal Research-Advanced; Legislation and Statutory Interpretation; Law and Interpretation; Negotiation; Negotiation (Intensive); Salary Negotiation and Arbitration in Sports; Trial Advocacy-Advanced; Appellate Advocacy; Appellate Advocacy Seminar; Interviewing and Counseling Seminar; Representing Clients in Complex Litigation; Civil Rights Litigation Seminar; Accounting for Lawyers.
Experience:
Externships: U.S. Department of Labor – Office of Solicitor; National Labor Relations Board; U.S. Department of Labor – Employee Benefits Security Administration; United States District Court, Southern District of New York and Eastern District of New York; Equal Employment Opportunity Commission; New York State Division of Human Rights; New York City Commission on Human Rights; New York City Office of the Corporation Counsel; New York Attorney General, Labor Bureau; Seyfarth Shaw; Jackson Lewis; Clifton Budd; Epstein Becker; Farrell Fritz; Meltzer Lippe; Millman Labuda; Levy Ratner; Cohen Weiss & Simon; Vladeck Elias; Outten & Golden; Directors Guild of America; Realty Advisory Board; National Football League; National Basketball Association.
Clinics: Refugee and Immigrant Rights Clinic; Economic Justice Clinic; Bread and Life Immigration Clinic. Co-Curricular Activities: Labor Relations and Employment Law Society; Dispute Resolution Society; Entertainment and Sports Law Society; Federal Bar Association; Journal of Civil Rights and Economic Development; Polestino Trial Advocacy Institute.
Network:
Law school provides an ideal opportunity to begin building a life-long network of scholars, judges, practitioners, and fellow students who are engaged in some way in L&E law or a related discipline. Visit professors during their regular office hours, and schedule appointments with adjunct professors who practice in the field, to become familiar with the work they do and the career path they followed into the field. Let them get to know you, your background, and your professional interests so that they can alert you to relevant jobs, externships, or scholarships. Join the Law School’s Labor and Employment Law Society (LRELS) and take an active role along with your fellow students in planning the activities sponsored by the LRELS, such as panel discussions, social events, and the creation of content for the LRELS blog. Become a student member of an L&E related committee of the New York State Bar Association, American Bar Association, or the Bar Association of New York City, New York County, Queens County, or Nassau County, and volunteer to assist the practitioners and scholars on your committee in organizing a seminar, conducting research, analyzing a piece of proposed legislation, or drafting a report. Seek out and apply for the many prizes, fellowships, and scholarships offered by unions, law firms, corporations, and bar association committees in the L&E field. Whenever possible, attend events where you will meet St. John’s Law School alumni, who are very loyal to the School and its graduates, very generous with their time, very large in number, and very wellplaced in a wide variety of L&E positions throughout the city, state, and country.
Suggested Path:
1L Year
Fall: Required Courses; Polestino Trial Advocacy Institute (“PTAI”) 1L competitions.
Spring: Required Courses; Hugh Carey Dispute Resolution Society (“DRS”) 1L negotiation competition; PTAI 1L competitions.
Summer: Law School journal competitions; internship with a judge, union, government agency, or employment-related advocacy organization; Peggy Browning Fund fellowship position; preparation of submission to NYS Bar’s Emanuel Stein Writing Competition or NYS Bar Association’s Kaynard Memorial Service Award.
2L Year
Fall: Employment Discrimination; Labor Law; Evidence; Business Organizations or Administrative Law; an elective in a survey course related to an industry in which you are interested in practicing L&E law, such as Sports Law, Entertainment Law, Education Law, Health Law, or Fashion Law; compete in PTAI or DRS competitions; pro bono work in litigation or client counseling.
Spring: Labor & Employment Arbitration; Wage & Hour Law; additional required core courses as needed to meet graduation requirements (e.g. Administrative Law, Business Organizations, Evidence or Tax Law); an elective in New York Practice or Federal Practice; an Advanced Writing elective or Directed Research elective that fulfills APWR; PTAI and DRS competitions; pro bono work in litigation or client counseling.
Summer: Obtain a summer associate position with a law firm, union, or government agency in the L&E field; prepare the required application, essay or article for submission to an L&E-related prize, scholarship or fellowship committee, such as the Stein and Kaynard L&E writing and service award competitions.
3L Year
Fall: Labor Law or Employment Discrimination (if not already taken); complete remaining core courses required for graduation (e.g., Administrative Law, Business Organizations, Evidence, Tax Law or Trust & Estates); E-Discovery or Federal Discovery; a skills elective to satisfy the Advanced Skills Requirement such as a Trial Advocacy elective, a Negotiation elective, a Drafting elective, or a Client skills elective; clinical course work; part-time work for an L&E-related employer in an area of the L&E field different from your prior work experiences; PTAI or DRS external competitions; pro bono work in litigation or client counseling.
Spring: Employment Law; Labor Law-Special topics; Professional Responsibility; if not already completed, a skill elective in drafting, writing, research or client to satisfy Advanced Skills Requirement for graduation; if not already completed, an Advanced Writing elective to satisfy the APWR for graduation; continue clinical work or part-time work related to the L&E field; participate in PTAI or DRS competitions; complete New York State Bar required hours of pro bono work in litigation or client counseling.
Employers:
See Adj. Prof. David Marshall or your Career Development Office counselor to obtain a list of employers in this pathway and for assistance in conducting targeted mailings.