As an employer who operates one or more retail sales outlets, you've probably heard or asked yourself some of these questions:
- How can I make sure we're complying with the various state laws on wages for breaks and meals?
- Can I justify that all of the employees I have classified as exempt from overtime under the Fair Labor Standards Act meet the tests for the exemptions?
- My store is currently non-union. How can I best stay that way?
- How can I comply with the Family and Medical Leave Act while still having the coverage I need at peak shopping hours?
- ICE just showed up and wants to see all my I-9's, right now. What do I do?
- Can I fire that cashier who has piercings in her nose and lips and tattoos all over her arms and legs?
- Do I have to allow the Muslim sales associate to wear a head scarf?
- Can I fire the worker who used social media to bash store management?
- How will my company survive this class/collective/EEOC lawsuit?
The retail industry has a diverse and high-turnover workforce, and the employees are the primary point of contact with customers. Because retail stores rely on positive customer relations, effective management of the workforce can be as important to sales volume, shrink and company profitability as the products you carry and the prices you charge. FordHarrison's Retail Industry Team members are committed to having the lawful answers to these questions that also meet your business needs.
WE KNOW RETAIL. FordHarrison's Retail Industry Team combines the resources of our over 200 lawyers in 30 offices throughout the country, including five of counsel affiliates, who practice exclusively in labor/employment law with the more than 50 lawyers with extensive knowledge and experience working with retail clients. This unique knowledge and insight into the industry enables us to provide clients with legal advice specific to their demands, whether they are a nationwide big-box retailer, a regional chain, or a family-owned single retail outlet. This depth of experience and industry knowledge allows us to "hit the ground running" on retail labor and employment matters. Simply put, our attorneys speak the language of the retail industry.
NATIONWIDE FOOTPRINT; LOCAL PRESENCE. FordHarrison's Retail Team is positioned effectively and economically to assist retail employers of all sizes wherever located. Our larger clients recognize the advantage of having one go-to law firm for all labor and employment matters to assure quality and consistency, and our smaller clients understand that the expertise of a labor/employment "boutique" firm cannot be matched by "general practice" firms. Our nationwide team of lawyers with specific industry experience and client institutional knowledge provides a broad base of resources for servicing our clients. Our firm technology allows us to communicate with and share information among attorneys and clients across the country, and at the same our national geographic footprint means we can have "boots on the ground" anywhere in the country within hours.
Our Retail Team partners with retail clients on the following labor & employment issues:
Labor Relations. The "Change to Win Coalition" (UFCW, SEIU, IBT, UFW) – which is chaired by and whose international vice president comes from leaders of the United Food and Commercial Workers Union, the union with the highest representation among retail employers – presents a formidable challenge for retail employers. Recent significant NLRB rules and decisions less favorable to management also make it important for retail employers to stay informed and think strategically. We recognize that maintaining consistently high customer service is a priority for retail employers, and that service may be adversely affected if your store is faced with organizing efforts, difficult negotiations, or other union activity. We can help you maintain a union-free workplace through positive employee relations training, best practices, and strategic winning campaigns. For unionized retail employers, we effectively negotiate favorable terms for collective bargaining agreements, handle arbitrations, help deal with work stoppages or strikes, and defend against unfair labor practice charges.
Employment Discrimination Claims. Compliance with employment discrimination statutes can be a major concern for retail employers. We represent employers before local, state and federal agencies and courts across the country, including defense of claims of discrimination based on race, color, gender, religion, national origin, age, disability, and other protected classifications. We also assist clients in responding to and investigating employee claims of discrimination, sexual or other harassment, and retaliation.
Wage and Hour. Retail stores have been frequent targets of wage and hour claims and investigations. We help to ensure compliance with regulations regarding minimum wage, overtime, working off the clock, meals and breaks, split shifts, uniforms/dress codes/appearance standards, child labor, wage deductions, employee classifications and exempt status issues. Our attorneys have successfully helped clients faced with a DOL audit or lawsuit avoid liability and, when appropriate, negotiated liability-limiting settlements. See also discussion of FLSA collective actions in Complex Litigation.
Complex Litigation: Class, Collective, Multi-Plaintiff and EEOC-Plaintiff Cases. In recent years, retail employers have become a favorite target for class, FLSA collective, and multi-plaintiff lawsuits seeking millions of dollars and often driven by attorneys' fees claims. The EEOC also has targeted retailers as part of its E-Race and Systemic Discrimination initiatives. While such claims are inherently costly and often publicized, utilizing counsel with experience in the industry, experience handling class/collective cases and/or EEOC litigation can minimize the impact of these lawsuits. FordHarrison's Retail Industry Team has represented retail employers in all of these types of cases. Our team has the knowledge and experience to develop an early strategic plan, the geographic reach to deal with nationwide allegations, and the bench strength to appropriately staff these important cases.
Counseling and Policy Development/Review. Retail employers are faced with unique and challenging day-to-day employee issues that require quick decision-making and action. Rather than using firms who dabble in employment law or HR consultants with "one size fits all" answers, our clients know their best option is to take advantage of FordHarrison's decades of experience in the hospitality industry, specialized expertise in labor/employment law, and national footprint. FordHarrison helps retail employers minimize the risks of liability for labor or employment claims by helping clients at the front-end to make the right decisions and implement the right policies to avoid costly bad decisions and policies that invite problems or don't comply with the law. When issues do arise, our Retail Industry Team is accessible to answer questions and provide timely, client-focused advice and solutions.
Training. The actions of a single "rogue" employee in a store or at a district or regional level can expose the employer to significant liability in today's increasingly regulated and litigious world, and that risk is heightened for chain retailers. The high turnover frequent transfers among stores in the retail industry make it critical to have established, ongoing training programs. To help our clients avoid potential labor and employment claims, FordHarrison provides retail-targeted training in key areas such as discrimination and harassment (including specific state-mandated training); diversity and sensitivity in the workplace; effective hiring, discipline and discharge practices; FMLA/ADA/workers compensation interplay; and wage and hour regulations.
Leaves of Absence, Disability Accommodation, ADA Title III Accessibility. Navigating the ADA/FMLA/worker compensation maze is a special challenge for retail employers. Our lawyers can help you successfully manage issues such as FMLA and other leave eligibility and rights; disabilities and accommodations; and workers compensation claims. As natural corollary to its disability employment representation, FordHarrison provide assistance to retailers faced with ADA Title III accessibility issues and litigation.
Alternative Dispute Resolution Programs. Supermarkets and retail chains were some of the first employers to implement alternative dispute resolution programs as a way to provide employees an alternative to litigation and to reduce legal costs. We have been actively involved in developing these programs and in handling various steps in the procedure such as mediation and arbitration, and in defending the enforceability of such programs when challenged in court. Whether a one paragraph arbitration agreement, a jury waiver provision, or a multi-step ADR procedure, we can tailor an ADR program to your retail workforce and company culture. This continues to be an evolving area of the law, with frequent court decisions and proposed legislation. FordHarrison's team stays abreast of all key legal and legislative developments and can review and refine any existing program to ensure ongoing compliance.
Immigration. Our retail lawyers have significant experience with I-9 compliance and responding to ICE audits and investigations, which often require an expedited and expert response.
Affirmative Action Plans/OFCCP Audits. Retail employers who do business with the government may be required to file Affirmative Action Plans. Our AAP/OFCCP attorneys have experience working with clients to draft these plans and update them as needed. In addition, the Department of Labor has increased its use of OFCCP audits to secure large-scale relief for employees who may not qualify to bring a class or collective action. At the same time, the OFCCP has pledged to drastically expand its compliance audits, to include more on-site investigations and to scrutinize more employee-specific compensation data.
Workplace Safety. From OSHA compliance and investigations to workplace violence to emergency preparedness policies and training, FordHarrison can meet your workplace safety challenges.
Employee Benefits. Qualified retirement plans and many types of welfare plans contain discrimination rules that require those plans to cover a broad base of employees and to provide nondiscriminatory benefits. In the retail industry, you may find it difficult to satisfy these rules due to high turnover and/or low wages. Our employee benefits attorneys can discuss plan design options and alternatives to help you meet legal requirements. In fact, our employee benefits attorneys can address all of your employee benefits needs, whether they relate to ERISA, COBRA, HIPAA, qualified retirement plans, nonqualified executive compensation or welfare benefits.