Employment & ERISA

A collaboration of employment litigators and ERISA lawyers with in-depth knowledge of all facets of employee benefit plans, Jorden Burt's Employment and ERISA Practice Team offers counseling and litigation representation in complex employment and on employee benefit plan issues.

EMPLOYMENT

With an ever-changing landscape of labor and employment law, Jorden Burt's employment lawyers are armed with the most cutting-edge knowledge to provide expert legal advice and representation to employers of all sizes. Whether in the private sector, in the financial services, manufacturing, construction, health care, energy, not-for-profit, academic and service sectors, or in public sector institutions, including state governments, municipalities, school boards and quasi-governmental corporations, Jorden Burt is exclusively dedicated to the interests of employers and management. The lawyers of Jorden Burt's employment team are experienced in the areas of:

• litigation and alternative dispute resolution, including mediation and arbitration;

• sexual harassment and workplace violence counseling and prevention;

• disability and reasonable accommodation related matters;

• internal investigations coordination and management;

• employee relations issues;

• corporate compliance and defense of government audits;

• personnel decisions, such as hiring, screening, discipline and termination;

• representation and counseling on competitive hiring issues;

• personnel manuals, handbooks and workplace policies;

• management training on federal and local labor laws and employment practices;

• affirmative action compliance and reporting;

• employee benefits and ERISA issues; and

• collective bargaining and negotiation.

Our Services

Litigation and Dispute Resolution

Jorden Burt's employment litigators assess and evaluate cases consistent with that client's goals and objectives, providing analysis and strategy for dispute resolution. Early assessment of the risks and rewards of prompt settlement versus vigorous defense enables our clients to make well-informed decisions for the most efficient and effective course of action. With focused attention and aggressive litigation techniques, our lawyers have earned a reputation for delivering exceptional results.

Our labor and employment lawyers regularly represent and defend the interests of employers and management in litigation matters involving claims of employment discrimination of all kinds, sexual and other types of harassment, retaliation, wrongful discharge, whistleblower, wage and hour disputes, family and medical leave, breach of contract, emotional distress, negligence and a variety of other claims. The Firm's lawyers have appeared before state and federal courts, state human rights agencies, the Equal Employment Opportunity Commission, the National Labor Relations Board, and a variety of administrative tribunals.

With a niche in class action defense, Jorden Burt offers its clients unsurpassed ability and resources to defend employment class actions and other complex litigation matters.

Counseling, Training and Risk Avoidance

Jorden Burt's lawyers also counsel and train employers on the most effective practices for litigation avoidance. Labor and employment laws are ever changing and vary by locale. We keep our clients informed of the latest developments in labor and employment law. By working as a team with our clients to ensure compliance with the myriad and ever changing landscape of employment laws governing the workplace, we limit and sometimes completely avoid exposure to liability in costly lawsuits and government audits.

With this goal in mind, Jorden Burt's employment lawyers devote a significant amount of their time and efforts to reviewing and advising our clients on their employment policies and practices, which includes assistance with drafting and implementing employment policies and procedures, preparing employment agreements, and training supervisors, managers and human resource professionals on employment law compliance. Because each business is different, our services are specifically tailored and geared toward the individual needs of each client. Our risk assessment program is aimed at preventing lawsuits and reducing employer liability.

Internal Investigations and Employee Relations

Despite training and counseling, some problems are unavoidable. How quickly an employer responds to problems in the workplace, and how effectively it remedies the issue, frequently determines whether a lawsuit is filed. Prompt, effective solutions can avoid exposure to liability altogether, while a slow, ineffectual response can sometimes result in an award of punitive damages.

Guiding our clients and providing them with advice to take maximum advantage of that brief window of opportunity that exists to address workplace problems, is where Jorden Burt's labor and employment lawyers stand out. Jorden Burt clients have easy access to our employment lawyers, dramatically reducing the likelihood of a lawsuit. In addition to providing our clients with the highest caliber litigation and trial services, Jorden Burt's employment lawyers counsel the most effective practices for litigation avoidance.

Relevant Experience

• Advised reinsurer in reduction in force and drafted release documents.

• Advised life company on acquisition of agents from competitor.

• Successfully defended broker/dealer before state department of labor in a dispute over classification of its financial representatives as independent contractors instead of employees.

• Negotiated complex separation agreement for high-level officer of world-wide luxury hotel, casino and resort developer.

• Obtained injunctive relief and money damages for large life company in case where departing agent stole trade secrets and manipulated or destroyed electronic data.

• Counseled financial services firm on classification of employees and independent contractors.

• Helped international manufacturing company downsize and close one of its U.S. plants. Represented same company in investigating copyright piracy and theft of IT software and equipment by corporate employees.

• Successfully defended municipality and obtained favorable jury verdict and summary judgment against claims of discrimination by eight municipal employees.

• Won summary judgment for Fortune 50 pharmaceutical company in breach of employment contract case.

• Obtained summary judgment for Fortune 50 package delivery company in case under state drug testing laws.

• Obtained dismissal of professor's whistle blower claims made to the Nuclear Regulatory Commission against a state university.

• Obtained dismissal at EEOC and states' human rights commissions of discrimination claims against numerous clients.

• Successfully defended publicly traded auto retailer against threatened collective action under the FLSA.

• Obtained a favorable defense jury verdict following the one-week trial of an Americans with Disabilities Act (ADA) action for a major insurance company.

• Obtained federal district court summary judgment in age discrimination complaint filed by a former senior executive of a major insurance company; the decision was affirmed by circuit court of appeal.

• Obtained summary judgment on a claim by a former senior executive of a major insurance company seeking severance benefits.

• Negotiated favorable settlement for construction industry client in age discrimination class action following a reduction in force.

• Obtained a dismissal by the National Labor Relations Board (NLRB) of unfair labor practices and charges of retaliation asserted by faculty members of a South Florida University.

• Work with numerous insurers to provide defense services under D&O and EPL programs.

ERISA

Jorden Burt's ERISA lawyers have represented financial services clients in complex arbitration, litigation and mediation for more than 25 years. Our ERISA practice focuses on the representation of insurers, financial institutions, and employee benefit plan sponsors in the areas of complex litigation, financial product development, regulatory compliance, and regulatory monitoring and advocacy. The ERISA team has extensive knowledge of our financial services clients' products and business operations, where such knowledge is of critical importance to a successful result.

Most of our ERISA litigation work has been on the defense side, representing plan sponsors, insurers and financial institutions who are alleged to have violated ERISA (and/or other federal and state laws) in connection with the management of pension or welfare plan funds, administration of pension and welfare benefit claims, amendments to pension and welfare benefit plans, and/or the provision of trust, custodial, actuarial, accounting and other services to plans. Many of these cases are brought as putative class actions and draw upon our considerable experience in defending class actions. We also have considerable experience in representing clients in enforcement proceedings initiated by the Department of Labor and the Pension Benefit Guaranty Corporation.

Relevant Experience

Jorden Burt acts as counsel for a number of financial institution and insurance company clients in the area of ERISA litigation involving both employee welfare and retirement plans. In the health and welfare benefit plan area, we represented clients in the multi-district litigation class action litigation against major managed care providers. Further, on behalf of insurers and plan sponsors, we have won cases involving such cutting edge issues as:

• the inapplicability of the "make whole" doctrine to a health insurer's or health plan's enforcement of a plan reimbursement provision;

• use and enforcement of the "gender rule" for purposes of coordinating plan benefits;

• preemption of state law enforcement of a plan reimbursement provision;

• whether death benefits resulting from autoerotic asphyxiation are covered under an accidental death policy provision that excludes benefits for death resulting from the intentional inflection of bodily injury;

• whether bipolar disorder is a mental or physical illness for purposes of limiting long-term disability benefits to twenty-four months;

• whether future medical benefits become vested and irrevocable for individuals receiving long-term disability benefits at the time of disability or at the time the medical benefits are incurred

In the retirement plan area, our experience includes:

• defending 401(k) plan service providers in on-going nationwide class action litigation involving their receipt of revenue sharing fees;

• successfully obtaining a dismissal on behalf of a life insurance client in a putative class action involving IRC § 412(i) plans;

• prevailing on a motion to dismiss for a 401(k) plan directed trustee in an ERISA breach of fiduciary duty stock-drop case;

• successfully represented 16 state guaranty funds in litigation in federal court in California relating to claims by holders of over $200 million in guaranteed investment contracts against the guaranty funds for alleged breaches of ERISA fiduciary duties in connection with the Rehabilitation Plan for Executive Life approved by the California state courts;

On the administrative side, we have secured prohibited transaction exemptions from the Department of Labor including exemptions for "synthetic GICs."

In addition to our day-to-day work in this area, Jorden Burt lawyers regularly speak at conferences and seminars and write on the topic of ERISA. Three of our partners - James F. Jorden, Waldemar J. Pflepsen and Stephen H. Goldberg - co-authored the Handbook on ERISA Litigation (Wolters Kluwer Law & Business/Aspen Publishers, 3d ed. 2007), which is frequently cited by courts in ERISA decisions. We have also acted as ERISA counsel to leading trade associations, and prepared amicus briefs on their behalf in cases before the U.S. Supreme Court and Federal circuit courts of appeal, including Harris Trust, Mertens, and Sereboff . Additionally, Jorden Burt acted as lead counsel for a stop-loss insurer before the Supreme Court in Knudson v. Great-West Life & Annuity Insurance Co. , 534 U.S. 204 (2002), a case clarifying the limited circumstances in which monetary relief is available under ERISA for breach of fiduciary duty claims.