Allegra Lawrence-Hardy, founding partner of Atlanta-based boutique Lawrence & Bundy, speaks with Benchmark editor Shailyn Tirado about trending issues across the employment law landscape, how to prepare for workplace disruptions throughout a pandemic, and best practices for remaining innovative during trying times.
Are there any trending issues in employment litigation that you consider game-changers these days?
This year has been a challenging one for employers, as the trends we predicted at the end of 2019 have, in some regards, been overshadowed by COVID-19, which has brought on its own set of employment litigation trends that will forever change the legal landscape. Our clients, like many companies, have had to reimagine and establish new business practices in all areas of their business, including hiring, interviews, wage and hour compliance, immigration considerations, working hours, childcare, leave and accommodation requests, and managing employee productivity. They are making these decisions, however, in the face of new rules and pitfalls leading to liability. We are seeing a myriad of lawsuits across the country for employers’ COVID-19 related decisions, and we will see these issues being litigated for a long time to come.
Social media in the workforce also continues to be a trending litigation issue—not only because it continues to evolve and grow, but also because most of the world is spending more time on the internet right now, using social media to social distance and connect with others. As clients become more comfortable with social media and the new normal, we are seeing a number of them actively encouraging employees to utilize social media to build business. Of course, more time online means more opportunities for employees to engage in troublesome social media activities that might go viral, damaging a company’s reputation or leading to significant liability. We are working with clients to mitigate these risks proactively by advising a measured approach in social media rules and policies. I expect we will continue to see more litigation in this ever-developing area of law, particularly on social media account ownership/privacy issues.
Finally, I would be remiss if I did not mention the highly anticipated United States Supreme Court case Bostock v. Clayton County, where the Court unambiguously stated that sexual orientation and transgender status fall within the purview of Title VII’s protections. Although most of our clients are among those employers who have championed inclusive work environments for years, this landmark case will build a new era of case law.
All in all, it has been an exciting time for labor and employment practitioners. At Lawrence & Bundy, we are Lawyers Representing Management Who Do the Right Thing. It has been an honor to stand shoulder-to-shoulder with our clients as they navigate the new normal.
You specialize in complex litigation and crisis management cases. Can you share a recent professional experience that required you to leave your comfort zone to achieve favorable results for a client?
Our firm represents local government officials in actions filed against them by police officers terminated from their positions due to use of excessive force. These officers’ conduct was caught on video and shared on various social media sites and national and international news outlets, and subject to criminal prosecution. While wrongful termination claims are not uncommon in my area of practice, police brutality and criminal charges are. To prepare a comprehensive defense strategy for the wrongful termination piece, I had to quickly familiarize myself with the criminal law process, acceptable use-of-force standards, and the weapons used in detaining suspects. This learning curve, coupled with the public focus of these cases, has been an interesting, yet gratifying, experience—particularly because we secured the dismissal of one of these actions within a few months of its filing, thereby underscoring the client’s commitment to ending police brutality.
Your practice is also inclusive of investigating claims of racial and sexual harassment. We are seeing a raft of large corporations and even law firms facing serious sexual harassment allegations. What changes has this generated from the employment law landscape?
In the wake of the #MeToo movement, there have been both positive and negative changes. On the positive side, we have seen an increased awareness of and appreciation for prompt and thorough investigations. Employers have invested significant resources in updating policies to address workplace conduct. They have also provided training to prompt all levels of management and employees to identify inappropriate conduct and be proactive in their reporting of any potential policy violations, even if the conduct is not directed to them or even witnessed by them.
The negative changes we have seen include where a company’s policies and training initiatives are not properly drafted and delivered, it can create a chilling effect on the interpersonal relationships of management and employees to the detriment of productivity, creativity, and collaboration. We have heard reports of opposite gender managers and employees refusing to have one-on-one meetings, travel together, etc. due to fears of potential accusations of harassment. This mindset should be guarded against and promptly addressed to avoid other potential issues.
There have also been significant changes within the realm of employment law recently, specifically as it relates to layoffs, employee discrimination, and mitigating risk and workplace disruption. How do you address these challenges for clients?
Our clients know that they need not face these new challenges alone. We believe it is vital to not only keep current with the legal issues, risks, and trends, but also to understand and dedicate significant time educating ourselves as to our clients’ businesses and objectives. By knowing our clients’ businesses and closely monitoring employment law trends, we can proactively work with our clients to provide practical advice to mitigate risks and be ready for a zealous defense if and when litigation ensues.
The wave of COVID-19-related workplace lawsuits is something that many legal professionals saw coming down the pipeline. What are some things attorneys in the labor and employment practice area should be doing to better prepare for this surge?
Employers and their counsel need to address potentially outdated policies and practices that are no longer practicable in today’s workforce. Some things counsel should be addressing with their clients are (1) plans for employees returning to the workplace, including safety plans for a masked or non-masked work environment; (2) whether identified essential job functions remain essential, as they will affect any subsequent accommodation requests; (3) discussing with their clients the criteria for furlough and layoff decisions to guard against potential disparate impact claims; and (4) updating and auditing pay practices and policies to mitigate wage and hour issues (the typical state and federal wage and hour laws are not the only pitfalls anymore; now, the Families First Coronavirus Response Act and new state laws in response to COVID-19 provide additional grounds for wage and hour violations).
You served as 2018 campaign chair of gubernatorial candidate Stacey Abrams. What would you say are some of your biggest takeaways from that experience? What are the top factors you attributed to your success in that role? And how have these factors affected your outlook and perspective as a litigator in private practice?
Although I knew it would be a new and challenging opportunity, my biggest takeaway was the fast-paced nature of a campaign versus the pace of legal practice. Even though lawyers often work under tight and demanding deadlines, we typically have time, even if brief, to collaborate with our colleagues, conduct research, and contemplate an issue before responding. Whereas, during the campaign, such luxury is often not afforded to a candidate. We had to be prepared to respond in real-time to press inquiries and social media posts because a candidate’s silence on an issue is not an option.
While the pace of the campaign was a new experience, my commitment to providing honest, direct, and focused feedback combined with my experience working on voter issues, including the 2000 Bush v. Gore recount, allowed me to contribute to the campaign in unique ways. The voters who came forward with their stories of voter suppression led to my firm’s continued fight to ensure that all Georgia voters’ voices are heard and counted.
You previously served as chair of Diversity and Inclusion at your prior firm, where you also developed a no-cost summer pre-law school workshop for students from historically black colleges and universities. You also helped bring a historic federal lawsuit against the state of Georgia challenging the mismanagement of the 2018 election that disenfranchised many voters. How has your advocacy as a trial lawyer intersected with your passion for diversity and inclusion?
Our firm’s passion for and commitment to diversity, inclusion and equity are a fundamental component of who we are as practitioners. We are fortunate to be in a position to be selective in our cases and clients, and we leverage that privilege by representing clients who are committed to doing the right thing. And we do it in a way that utilizes the authentic cognitive diversity offered by our very talented team.
How has your law firm remained innovative and competitive within the local and national market these days? Whether it be technology advancements for remote work, internal operations, how you work with clients, etc.?
We are very fortunate to have been busier than ever despite a global pandemic. I used to believe I had to jump on an airplane to generate business, but I have quickly learned that at least in the current climate, remote technology is just as effective, if not more, in partnering with clients who, like us, measure the success of their business not just in financial metrics, but also employee engagement and customer enthusiasm. Less time traveling has given us the ability to be even more responsive to our clients’ needs, and remote work has not dampened our diversity of talent and experience and a desire to perform well regardless of the circumstances. We have been able to show clients we are true partners, and that we will be a constant by their side despite an anything but constant world.
What suggestions or advice would you give to up & coming lawyers in labor and employment litigation?
You need to be agile and flexible as there is no such thing as a typical day—one day you could be drafting a social media policy in the morning and by afternoon, you find yourself in court (or nowadays, on Zoom) seeking a temporary restraining order against an employee violating a non-compete provision. You should also prioritize and routinize business development strategies; the earlier you start this essential habit, the better. You should not treat your practice as a silo; learn to work collaboratively with your colleagues and others. And to that end, do not be territorial of a client relationship; it impacts the service provided to the client. Finally, no matter what practice area you are going into, always be willing to ask for opportunities and invest your time.
Published October 2020