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VOL. 124 | NO. 24 | Thursday, February 5, 2009

Lewis Addresses Proposed Legislation, Possible Changes in Employment Law

By Rebekah Hearn

Print | Front Page | Email this story | Email reporter | Comments ()
Position: Shareholder
Firm: Ogletree, Deakins, Nash, Smoak & Stewart PC
Basics: Lewis, who has been practicing for more than 35 years, has been named to the 150 Best Lawyers 2009 list published by BusinessTN magazine.
“What we have seen are lots of companies turning for advice on laying people off, reducing the work week, those things that I have not seen much of in prior bad economic times.”
– Frederick J. Lewis

Frederick J. Lewis, a shareholder in the Memphis office of Ogletree, Deakins, Nash, Smoak & Stewart PC, has been named to the 150 Best Lawyers 2009 list published by BusinessTN magazine. Lewis was one of only eight labor and employment lawyers named to the list.

Lewis has practiced labor and employment law for more than 35 years. He has served as lead counsel in a number of class-action cases and is admitted to practice in numerous federal district courts and courts of appeals, as well as the U.S. Supreme Court.

He is a member of the College of Labor and Employment Law, a fellow of the Tennessee Bar Association and a former member of the Advisory Committee for the Western District of Tennessee, established pursuant to the Civil Justice Reform Act. He has taught both collective bargaining and labor legislation as an adjunct faculty member at the University of Memphis Cecil C. Humphreys School of Law.

Q: You have been named to the 150 Best Lawyers 2009 by BusinessTN, and last year you were ranked as a top attorney in the labor and employment field in the 2008 edition of Chambers USA. Also, you have received several other professional accolades. Is there any one of which you are most proud?

A: I would say the fact that I have been listed in the Best Lawyers In America for each year that the publication has published the list. They’re celebrating their 25th edition, and I think there are about 1,400 people (nationwide) who have been in each edition, so, if nothing else, I’ve got longevity.

Q: There is proposed labor and employment legislation that, if passed, will impact businesses, such as the Employee Free Choice and Respect Acts. How do you feel these pieces of legislation, if passed, will affect local businesses?

A: There are expected changes on the horizon for employment lawyers and for their company clients. It’s really hard to project what the outcome can be from all of them. In addition to the two that you mentioned, which deal with labor unions or organizing efforts, the Obama administration has backed a number of bills that would change the discrimination laws to be more inclusive in terms of people who have a right to file a claim.

Interestingly, the EFCA seems to be going backwards a little bit in terms of support. There was a lot of speculation that was one of the bills that was going to be pushed by the administration and Congress, but now there’s some dissent in the ranks, even on the Democrat side. So I think the bill will be passed, but I question whether the card-check will be a part of the final bill. It’s got enough other issues that it’s still going to be problematic for employers. Supposedly, the trade-off for maintaining the secret ballot will be a “quickie” election; I’ve seen everything from five to 10 days after the union files a petition, but the current average is 42 days. That would shorten the campaign frame significantly. There’s another feature of that bill that’s gotten a lot less attention that I think will be as much of a problem for employers who get into negotiations with a union for the first time. The bill provides that if they don’t reach a contract within 120 days, which is a short period of time for negotiating an entire agreement the first time, then the government can appoint an arbitrator who can come in and dictate the terms of the contract. You would think employees would also have some concerns about that, certainly employers do; but when you have someone coming in from the outside who doesn’t necessarily know or understand the issues of a company, and that person is empowered to tell you what the wages, hours and working conditions will be, that could be a real headache for both sides, too. … The idea that private employers could have somebody dictate the terms, that’s a new concept.

Q: Because the economy has gone downhill very quickly in the past year, does your practice grow, as more employment cases come before you? Are the types of cases different from those you see in good economic times?

A: We haven’t seen a real explosion of litigation from people who are contesting employment decisions as yet. I frankly don’t think that’s going to be that far away. What we have seen are lots of companies turning for advice on laying people off, reducing the work week, those things that I have not seen much of in prior bad economic times, but it certainly seems that companies are getting more sophisticated and more interested in making sure that they are touching the bases before they reduce the work force.

Almost 40 years ago, most of the cases that we saw were race discrimination cases. And there’s been pretty much a steady decline of race discrimination cases as a percent of the whole in employment matters. Obviously, sex harassment, which is a relatively new concept, at least from a legal standpoint, has been growing every year. We’re also seeing more age discrimination cases, and I think that’s something that we’ll continue to see more of through the bad economic times, because people who are laid off and who have been with the company for a period of time (are) therefore more likely to have some age on them.

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