In the News

Texas Super Lawyers Features 91 Haynes and Boone Lawyers

Ninety-one Haynes and Boone, LLP lawyers have been recognized in the Texas Super Lawyer 2013 award listing. >>

Haynes and Boone Highlighted in Chambers USA 2013

Haynes and Boone, LLP has been recognized in Chambers USA: America’s Leading Lawyers for Business 2013, an annual law firm directory. Chambers highlighted 19 of the firm’s practices along with 51 individual firm lawyers in their rankings.

The firm’s Bankruptcy/ RestructuringFranchising and Intellectual Property practices each earned national rankings. >>



Recent Publications

NLRB Roundup: A Year in Review, and a Look Ahead

The National Labor Relations Board (“NLRB” or “Board”) began 2013 as it began 2012, facing questions regarding whether a quorum of its members had been constitutionally appointed. >>



Arthur T. Carter

Partner

Dallas


2323 Victory Avenue
Suite 700
Dallas, 75219
T +1 214.651.5683
F +1 214.200.0393

Áreas de Practica

Educación

  • J.D., University of South Dakota, 1976, Lead Articles Editor, South Dakota Law Review
  • B.A., University of Minnesota, 1973

Bar Admissions

  • Texas
  • South Dakota
  • Nebraska
  • Arizona

Court Admissions

  • U.S. District Court for the Northern District of Texas
  • U.S. District Court for the Western District of Texas
  • U.S. District Court for the Eastern District of Texas
  • U.S. District Court for the Southern District of Texas
  • U.S. Court of Appeals for the Fifth Circuit
  • U.S. Court of Appeals for the Eighth Circuit
  • U.S. Court of Appeals for the Ninth Circuit
  • U.S. Court of Appeals for the Tenth Circuit
Arthur T. Carter

Arthur Carter is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. He has more than 30 years of labor and employment law experience. He advises employers on the labor law aspects of mergers, acquisitions, asset and stock sales, business reorganizations, consolidations, shutdowns, and bankruptcy. He also counsels employers on strategic considerations relating to collective bargaining and labor relations, and regularly serves as principal spokesman for management in labor contract negotiations.

In litigation matters, he arbitrates cases under labor agreements, and handles whistleblower complaints under the health, safety and environmental laws administered by OSHA, and cases involving wrongful discharge, breach of employment contract, employment discrimination, employment-related torts and restrictive covenants.

Art has represented employers in the federal and state courts of Texas, Arizona and Nebraska and several U.S. district courts including the District of Alaska, Central and Eastern Districts of California, District of Minnesota, Eastern and Western Districts of Missouri, District of New Mexico, Eastern District of New York and Western District of Oklahoma. Additionally, he has handled matters for employers before NLRB regional offices throughout the country, as well as before other administrative agencies such as the U.S. Department of Labor, the EEOC, and OSHA. Finally, Art has taken part in bankruptcy court proceedings as the labor law member of the Haynes and Boone bankruptcy team.

Art has been recognized as a leading labor and employment practitioner in various peer, industry and client review based surveys including Chambers USA: America's Leading Lawyers for Business, Texas Super Lawyers, and Best Lawyers in America. In addition to his legal practice, Art writes and lectures on labor and employment issues facing employers and is an adjunct professor at Southern Methodist University's Dedman School of Law, Dallas, Texas where he teaches labor law, and labor and employment arbitration.

Representative Experience

  • Advice and counsel to private equity fund and other corporate buyers concerning labor law aspects of stock and asset transactions, due diligence requirements, assessment of collective bargaining agreements, benefit plans, feasibility of asset purchase exception to withdrawal under multi-employer pension plan, and lawfulness and practicality of pre-sale collective bargaining.
  • Advice, counsel and necessary drafting concerning shutdown, curtailment of operations, transfer of work, and WARN compliance.
  • Advice and counsel to unionized employers regarding strategies concerning soft or hard pension freezes, retiree health insurance, and bargaining and contractual duties concerning same.
  • Advice and counsel to debtors and holders of debt or equity on labor and employment issues in bankruptcy, compliance with Section 1113 and 1114 of the Bankruptcy Code, the negotiations of collective bargaining agreements, labor options and related litigation.
  • Labor contract negotiations for employers in Alabama, Arizona, Arkansas, California, Georgia, Illinois, Indiana, Kentucky, Missouri, New Jersey, Ohio, Pennsylvania, South Carolina, Tennessee, Texas and Virginia with various unions including CWA, UAW, IAM, USW, IBT, and IUOE.
  • Labor arbitrations for employers involving safety rules, seniority, skill and ability layoffs, drug testing, subcontracting, contract interpretation, jurisdictional disputes, return to work requirements, modification of health insurance plans, setting of rates for newly created jobs, setting of incentive rates, discharge, and final offer arbitration (baseball arbitration) over wages and benefit levels.
  • Defense of employers in NLRB Unfair Labor Practice proceedings, related subpoena enforcement litigation, and pre-election hearings involving bargaining unit issues.
  • Defense of employers under Department of Labor procedures concerning alleged retaliation against health, safety, and environmental whistleblowers.

Honors

  • Fellow, The College of Labor and Employment Lawyers
  • Board Certified, Labor and Employment Law, Texas Board of Legal Specialization
  • Chambers USA America's Leading Lawyers for Business, Labor Law, 2007-2013
    • 2012 - noted as "extremely thorough, intelligent, and absolutely committed to the client's success. He never stops at just answering the question, but offers context, strategy, and practical solutions on how to get there."
    • 2010 - sources told Chambers they admire him as someone who "can hold his ground during tense negotiations."
  • Texas Super Lawyer, Employment & Labor, 2009-2013
  • Best Lawyers in America, Labor Law - Management, 2012-2014
  • Best Lawyers 2012, Dallas Labor Law - Management Lawyer of the Year
  • M&A Advisors 2011 Turnaround Award, Distressed M&A Deal of the Year, Under $100 Million Category: Member of the Haynes and Boone bankruptcy team honored with this award for handling an $85 million 363 sale of a portion of debtors' operating assets at two times the stalking horse bid
  • Global M&A Network's 2009 Turnaround Atlas Award of the Year, Deals Above $100 Million Category: Member of the Haynes and Boone team honored with this award for handling the complex asset purchase and reorganization of a company bought out of bankruptcy
  • Martindale Hubbell® Law Directory with a Peer Review Rating of AV® Preeminent™

Selected Presentations and Publications

  • "NLRB Roundup," co-author with A. John Harper III and Alex Stevens, Employee Relations Law Journal, Vol. 39, No. 1, Summer 2013.
  • Arthur T. Carter, A. John Harper III, and Alex Stevens, "NLRB Developments: New Election Rules, Class Action Waivers and (Maybe?) Recess Appointments," Employee Relations Law Journal, Vol. 38, No. 1, Summer 2012.
  • Kenric D. Kattner and Arthur T. Carter, Labor and Employment Issues, in Collier Guide to Chapter 11: Key Topics and Selected Industries 12-1 (Alan N. Resnick & Henry J. Sommer eds., 2013).
  • Arthur T. Carter and Felicity A. Fowler, "Educating and Updating Clients on Recent Trends and Developments in the Employment Law Arena," in Inside the Minds: The Impact of Recent Regulatory Developments in Employment Law 7 (Thomson Reuters/Aspatore 2012).
  • "Economic Pressure: Strikes and Lockouts Under the National Labor Relations Act," co-presenter, and "Employment and Labor Arbitration: Comparison, Contrast and Overlap," presenter, The Center for American and International Law, 50th and 51st Annual Course Labor Law and Labor Arbitration Conference, May 3-4, 2012 and May 7-10, 2013.
  • "Using the Grievance and Arbitration Process to Resolve Statutory Claims," co-presenter, The Southwest Region of the National Academy of Arbitrators, March 2011.
  • Contributing author to the 3rd through 6th Editions, 2008 Supplement, Elkouri and Elkouri: How Arbitration Works (BNA Books).

Selected Professional Activities

  • Conference Co-Chair, The Center for American and International Law, Annual Course on Labor Law and Labor Arbitration, May 2010-2012.

Memberships

  • American Bar Association, Section of Labor and Employment Law: Committee on the Development of the Law Under the National Labor Relations Act; Committee on ADR in Labor and Employment Law
  • American Bar Association, Section of Litigation, Committee on Employment and Labor Relations Law

Selected Representative Experience


Labor Law Representation in Chapter 11 Proceedings
Provided advice and counsel to debtor, and holders of debt or equity in a number of high profile bankruptcy cases, including the ASARCO multi-billion dollar contested bankruptcy plan confirmation hearing resulting in rejection of union objections and confirmation of plan after extended contested confirmation hearing; defending WARN Adversaries and advising on Section 1113 issues impacting plan confirmation in the ATA and Arrow Air airline bankruptcies; providing strategic advice on disclosures required and necessary financial analysis to approach unions involved to secure concessions under labor agreements in the Marcal Paper Chapter 11 and serving as chief spokesman and working closely with company’s financial advisors regarding necessary concessions concerning health and welfare benefits, pension benefits, retiree insurance, operational provisions of labor agreements, and follow-up advice and motion practice with bankruptcy court to secure approval of the revised labor agreements; and labor law counsel to the debtor, The Penn Traffic Company and its subsidiaries in their Chapter 11 cases, in the Delaware bankruptcy court.

Pre-Acquisition Labor Law Advice and Counsel
Counseled private equity fund concerning purchase of unionized industrial maintenance contractor with numerous national and local agreements that was engaged in providing specialized services at electrical and nuclear generating facilities, refineries and chemical plants, concerning labor law successorship, single employer and joint employer issues, scope and jurisdiction of labor agreements, and impact of transaction on affiliated non-union portfolio companies.

Final Offer Arbitration (also Known as Baseball Style Arbitration)
Final offer arbitration is where an arbitrator either picks one party's proposal or the other. Representation of mining and natural resource company concerning final offer arbitration over retroactive and going forward adjustments to wage rates and classifications under letter agreement mandating wage standardization across company locations and classifications. Arbitration over multiple days, involved numerous factual witnesses and competing expert witnesses. The company prevailed in the arbitration.

RP Holdings Inc. Restructuring
Haynes and Boone was engaged by RP Holdings Inc. in August 2011 to assist in its restructuring efforts. At that time, the company had just hired a new CEO, was facing liquidity challenges due to the nationwide stoppage of foreclosure prosecutions, and had completed internal audits showing a total of approximately $20 million was owed to it by its two largest customers. Its senior secured facility was due to mature in August 2012. In the fall of 2012, the company pursued a restructuring transaction with its private equity sponsors, the secured lenders and the two law firms, which failed to materialize on the eve of a possible closing in early January 2012.

Bankruptcy Related Advice on WARN Compliance and Litigation
  • Defense of WARN suit in United States District Court against parent company alleging de facto control of bankrupt subsidiary. Case settled based on capped dollars and percentage of recovery on claim by subsidiary and parent company against financial entity related to cancellation of credit line.
  • Negotiated settlement with union WARN adversaries each seeking approximately $30 million in damages in addition to negotiating settlement with a class action plaintiff as predicate to consensual plan of liquidation.
  • Pre-petition advice on WARN compliance, severance and contractual liabilities; and 1113 negotiations with IBT as aspect of motion to approve plan on behalf of bankrupt cargo airline; advice addressed status of CBA, furlough and severance demands, resolution of pending grievances, and wind up matters and to effectuate settlement of WARN claims.


Advice Regarding Neutrality Agreement and Interest Arbitration Agreement
Provided advice and counsel concerning issues relating to unfair labor practices challenging neutrality agreement and access policies, and conduct of interest arbitration provision triggered if contract could not be reached within short period of time after selection of union as bargaining representative.

Pre- and Post-Petition Advice on 1113 Requirements, Pension Obligations and Negotiations to Modify CBAs
  • Pre- and post-petition advice to a bankrupt grocery store chain regarding WARN compliance, obligations under labor contracts, duty to bargain, evidentiary and procedural requirements under 1113, content of economic information to be disclosed to the UFCW and IBT, and liability under single and multiemployer pension plans, including withdrawal liability issues.
  • 1113 negotiations on behalf of bankrupt airline with ALPA, AFA, IAM and TWU to extinguish CBAs and address liabilities thereunder.
  • Review of labor agreements of targeted bankrupt companies. Advice and counsel on bargaining issues and evaluation of proposals made by stalking horse and rival companies for same operations and possibility of pre-acquisition CBA, 1113 rejection, or pursing a 363 sale with a comprehensive free and clear order.


Collective Bargaining and Strike Planning
Representation of large mining and natural resource company concerning collective bargaining negotiations covering five locations, seven unions, and approximately 2,200 employees. The work consisted of assessment of agreements, identification of negotiations priorities, coordination of planning, preparation of legal portion of strike contingency plans, leadership of company’s negotiations team, and serving as chief spokesman in negotiations with the unions.

Defense of Unfair Labor Practice Charges and Subpoena Enforcement Litigation
Defended integrated cement company owning manufacturing plants, aggregate operations and ready-mix facilities against NLRB unfair labor practices complaint alleging failure to bargain, failure to apply collective bargaining agreement of unionized operation to non-union operation, improper reduction-in-force and diversion of work. Also defended against subpoena enforcement litigation in United States District Court securing protective order on behalf of employer.

Guidance Concerning Duty to Bargain and Labor and Employment Law Compliance
Provided strategic advice and counsel to electrical generation and distribution company operating with coal, oil and gas-fired generating facilities in six states regarding sale and closure of facilities, retiree health insurance, increased cost sharing of health insurance, use of independent contractors and subcontractors for bargaining unit work, and handling and litigation of arbitrations concerning contract interpretation, reservation of rights language in benefit plans, contracting out, and terminations of employees.

Litigation over Labor Issues Concerning Proposed Plan of Reorganization and Sale of Operations
  • Litigation concerning union objections and attack on proposed plan of reorganization based on special successorship provisions of CBA mandating that precondition to plan approval was recognition of union and entering into new CBA rather than assuming existing CBA, and union assertion that it would likely strike if plan approved, involving debtor company engaged in copper mining and smelting in Arizona and Texas.
  • Representation of acquiror of assets concerning NLRB objections to 363 sale and free and clear order.


Advice on Purchase of Debtor Entities Concerning Labor Issues and Negotiations with Unions
  • Representation of private equity fund and corporate buyers in assessing feasibility of improving CBAs and lowering labor costs in event of acquisition of distressed and bankrupt entities.
  • Negotiations with union's outside bankruptcy counsel and financial advisors concerning CBA in the event that plan of reorganization approved.
  • Advice on content and structure of asset purchase agreement and related bankruptcy issues for hedge fund acquiring bankrupt paper mill and related negotiations with the USW and the IBT. Successfully negotiated new CBA to become applicable upon closing of transaction providing for streamlined work rules, 12-hour shifts, job consolidations and wage and benefits freezes. Negotiations with PBGC over underfunding of a single employer pension plan.
  • Negotiations on behalf of acquisition company seeking to obtain brewery out of bankruptcy. Entered into three-year agreement with IUE-CWA contingent on hiring of workforce and acquisition of assets and wage and benefits concessions.


Defense of Class Action Suit Brought Under WARN Statute
Defended employer in United States District Court litigation alleging failure to provide proper notice under WARN and attempting to pursue upstream liability against holding company alleged to be single employer with operating company, or that was in de facto control of operating company. The case also involved the issue of the faltering business exception defense to WARN notice, effect of assignment of claims by employees to third parties in exchange for consideration, and related and propriety of class claims.

Union Elections and Related Unfair Labor Practices
Successful represented hospital in NLRB-conducted election in RN unit. Hospital prevailed by a 2-to-1 margin with a bargaining unit of nearly 800 employees. Successful defense of numerous unfair labor practice claims arising out of union campaign, relating to alleged unlawful discharges, interference with employee rights and challenges to solicitation, distribution and access policies. Provided follow-up advice and counsel, supervisory and management training.

Grievance Arbitrations Under Collective Bargaining Agreements
Handled substantial numbers of labor arbitrations under collective bargaining agreements involving discharge and discipline, skilled wage rates, subcontracting, leave of absence and contract interpretation.

Online Publications

02/18/2013 - NLRB Roundup: A Year in Review, and a Look Ahead
The National Labor Relations Board (“NLRB” or “Board”) began 2013 as it began 2012, facing questions regarding whether a quorum of its members had been constitutionally appointed.

05/18/2012 - NLRB Halts Implementation of New Election Rules: Vote on NLRB Election Rules Lacked Quorum, Judge Rules
On May 15, 2012, a federal district court judge for the District of Columbia struck down recent changes to the National Labor Relations Board’s representation election procedures, which were intended to streamline the Board’s representation election process.

04/20/2012 - Update: NLRB Suspends Implementation of Notice Posting Rule Pending Legal Challenges
On April 17, 2012, the Court of Appeals for the District of Columbia Circuit issued a decision enjoining the National Labor Relations Board (“NLRB” or the “Board”) from implementing a controversial rule requiring employers to post a notice informing employees of their rights under the National Labor Relations Act (“NLRA”). 

03/07/2012 - Update: Court Upholds NLRB Adoption of Notice Posting Rule But Limits Sanctions
On March 2, 2012, a federal district court in Washington, D.C. upheld the National Labor Relations Board’s authority to adopt a proposed regulation requiring employers to post a notice informing employees of their federal labor law rights.

02/03/2012 - NLRB Roundup Part 3: New Election Rules, Class Action Waivers and (Maybe?) Recess Appointments
The National Labor Relations Board has had a busy few weeks. This alert discusses new developments.

12/28/2011 - Update: NLRB Delays Notice Posting Rule’s Effective Date
On December 23, 2011, the National Labor Relations Board (NLRB) announced that it would postpone its requirement that employers post a notice informing employees of their federal labor law rights until April 30, 2012.

12/12/2011 - NLRB Roundup Part 2: Board’s Aggressive Agenda Unabated: Required Notice, Rulemaking, Social Media, and the Boeing Case
As promised, Part 2 of our NLRB Roundup takes a step back from the case law summarized in Part 1 to address other issues surrounding the current Board and its effect on the labor law landscape.

11/30/2011 - Labor and Employment Issues in Bankruptcy, Chapter 12 of Collier Guide to Chapter 11: Key Topics and Selected Industries
This chapter provides a detailed treatment of the significant labor and employment issues that arise in chapter 11 bankruptcy cases.

10/14/2011 - NLRB Roundup Part 1: Obama Board Continues Apace Reversing Bush Board Decisions, Expanding Labor Laws
Since our last summary, the Obama Board has taken significant steps to further outgoing Chairman Liebman’s stated goal of bringing the Board “back to life after a long period of dormancy.” Our roundup will be addressed in two parts. Part one, that follows, addresses Board decisions and case law developments. Part two will address other issues involving the current Board and its effect on the labor law landscape.

03/09/2011 - Employers’ Cat’s Paw Liability: Watch Out for the Monkey Business of Supervisors
In a case decided last week, Staub v. Proctor Hospital, a unanimous United States Supreme Court finally addressed the application of the “cat’s paw” theory of liability to employment discrimination claims, holding that an employer can be liable for an employment action motivated by a non-decision maker’s discriminatory animus.

02/22/2011 - OSHA 2010 and 2011: A Review of OSHA’s Expanded Enforcement Initiatives in 2010 and the Outlook for 2011
The business community has been placed on notice. OSHA has been actively pursuing its regulatory agenda, while also arming its arsenal to enforce compliance.

02/09/2011 - NLRB Roundup: More Frequent and Significant Action from Obama Appointees
The Obama National Labor Relations Board (“NLRB”) has started to make its mark on the labor laws through a series of changes that collectively may have a significant impact on the labor law environment.

02/03/2011 - Have You Checked The Records? OSHA Continues to Emphasize Recordkeeping Compliance in 2011
After launching a National Emphasis Program (“NEP”) on recordkeeping in 2009, OSHA has focused increasingly more on recordkeeping compliance when conducting workplace inspections.

11/19/2010 - Employers' Eye on the Court: The U.S. Supreme Court Will Decide a Host of Employment-Related Cases During its Current Term
The U.S. Supreme Court began its new 2010-2011 term on October 4, 2010 with a number of employment-related cases on the docket, many of which have already been orally argued, that could potentially impact employers concerning such matters as arbitration, retaliation, immigration, and employee benefits.

10/28/2010 - Change is on the Way from the NLRB
The Obama-appointed NLRB has now issued its first significant batch of decisions serving notice, as is typical in the transition from one administration to the next, of a shift in the interpretation of the labor laws. The decisions include a new standard regarding secondary boycotts and union bannering; potential reconsideration of prior precedent; and a differing application of the law to facts than the predecessor NLRB.

10/15/2010 - Carter, Foreman and Glass Guest Column in Law360: Retiree Benefits And Bankruptcy Code Compliance
Once a company files a Chapter 11 bankruptcy petition (to sell its assets, reorganize or liquidate), Bankruptcy Code § 1114 sets forth a detailed procedure for the employer to follow to modify or terminate certain retiree benefits.

10/12/2010 - If It Looks Like a Picket, But Doesn’t Walk Like a Picket…It’s a Banner
On August 27, 2010, the National Labor Relations Board issued its long-awaited decision holding that bannering at a secondary employer’s place of business was not an unfair labor practice.

09/28/2010 - Weathering the Storm: Third Circuit Rules Regardless of Plan Reservation of Rights Language, Bankruptcy Debtor Must Comply with the Bankruptcy Code to Amend, Modify or Eliminate Retiree Benefits
Once a company files a Chapter 11 bankruptcy petition (to sell its assets, reorganize or liquidate), Bankruptcy Code § 1114 sets forth a detailed procedure for the employer to follow to modify or terminate certain retiree benefits.

07/29/2010 - Litigating Arbitration Agreements: Recent United States Supreme Court Decisions Provide Guidance to Employers Looking to Avoid Court
Despite entering into arbitration agreements with their employees, employers all too often find themselves in court adverse to the very employees who have signed an arbitration agreement. The U.S. Supreme Court recently issued three arbitration decisions that have important implications for employers seeking to avoid the inside of a courtroom.

06/30/2010 - U.S. Supreme Court Upholds Employer Searches and Underscores Importance of Electronic Communications Policies
The United States Supreme Court issued a unanimous decision that provides guidance on steps employers can take to reduce an employee’s privacy expectations and emphasizes the importance of having a clear, well-defined privacy policy.

06/09/2010 - Federal Government Implements Pro-Union Notice Requirement for Government Contractors
Government contractors and subcontractors now have a new, unsavory obligation. On January 30, 2009, President Obama signed Executive Order 13496 – which requires government contractors and subcontractors to post a notice informing employees of their right to engage in concerted, collective activity.

04/22/2010 - Employers Beware: How the Recent Health Care Reform Legislation Affects Employers
On March 21, 2010, the House of Representatives passed the Patient Protection and Affordable Care Act (“PPACA”), which President Obama signed into law on March 23, 2010. The health care reform law will make far-reaching changes to the United States health care system over the next several years. 

03/30/2010 - Time for Recess: Becker, Pearce Appointed to NLRB
The National Labor Relations Board (“NLRB”) is finally moving towards its full complement of five members. On March 27, 2010, President Barack Obama made two recess appointments (a procedure not requiring legislative approval), increasing the NLRB’s membership from the two that have been serving the past couple of years to four members. The appointments still leave the NLRB one member short; however, three members constitute a quorum that can unquestionably decide cases before the Board.

07/31/2009 - Employers Beware: Unions Win Battle in War Over E-Mail Use
With the advent of information technology, union supporters have frequently used employer e-mail systems to solicit support during union organizing campaigns. Recognizing the difficulty in monitoring these activities, the National Labor Relations Board (NLRB), in Register-Guard, concluded that employees have no statutory right to use an employer’s e-mail system for union-related activities.

06/19/2009 - U.S. Supreme Court Increases Employee Burden of Proof in Age Bias Cases
In Gross v. FBL Financial Services, Inc., decided on June 18, 2009, a deeply divided U.S. Supreme Court imposed a heightened proof burden on employees to establish age discrimination against their employers. In a 5-4 decision, the Court concluded that the literal text of the Age Discrimination in Employment Act (“ADEA”) does not allow a worker to prove discrimination by demonstrating that age was one “motivating factor” for the employer's adverse employment action.

06/19/2009 - Weathering the Storm: Options to Remove Liabilities for High Retiree Medical Costs from a Company’s Balance Sheet: VEBAs
High legacy costs for retiree medical benefits, along with Financial Accounting Standards Board Standard No. 158, which requires balance sheet recognition of such liability, has forced many companies to face the true size of the retiree medical obligations and to consider ways to reduce or limit costs.

05/27/2009 - Weathering the Storm: Retiree Benefits and Section 1114
Retiree benefits are often a central issue in bankruptcy cases. For many employers the high cost of retiree medical benefits has been a significant contributing factor to the Chapter 11 filing and a matter of ongoing concern if the debtor is to be able to successfully reorganize. Understandably, employees, retirees and unions are equally concerned about the status of retiree benefits. This alert discusses Section 1114 of the Bankruptcy Code.

05/06/2009 - Restructuring Compensation During Economic Challenges
Employers are facing a number of economic and financial challenges. Some employers have considered restructuring their compensation arrangements with employees as an alternative to avoid a reduction in force or layoffs. Restructuring of compensation packages raises a number of issues. 

04/22/2009 - Texas Supreme Court Provides Greater Protection to Employers Seeking to Enforce Non-Compete Covenants
Building on its 2006 decision in Alex Sheshunoff Management Services, L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006), the Texas Supreme Court has further expanded the enforceability of non-compete covenants in the at-will employment setting. In Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, No. 07-0490 (Tex. April 17, 2009), a decision with significant practical implications for Texas employers, the court held that an employer’s implied promise to provide confidential information to an at-will employee may give rise to an enforceable covenant not to compete.

04/09/2009 - Weathering the Storm: Terminations, Uncertainty, and Strategies to Reduce Workplace Liability
In the current economic state, many employers are seeking to reduce operating costs. More employees are being let go as corporate layoffs have accelerated and workers are looking to complain that they have been unfairly or improperly dismissed. The Obama administration has publicly announced that it will be more aggressive in enforcing employment laws.

04/03/2009 - Supreme Court Holds That Employees Under Collective Bargaining Agreement Are Blocked From Going to Court On Age Discrimination Claims, Must Arbitrate Instead
In 14 Penn Plaza LLC v. Pyett, a decision with significant practical ramifications for unionized employers, the United States Supreme Court, on April 1, 2009, held that employees covered under a collective bargaining agreement were required to arbitrate claims of age discrimination under the arbitration clause of that agreement instead of allowing them to sue in Court.

03/04/2009 - President Obama Signs Fourth Executive Order Concerning Unions
On February 6, 2009, President Barack Obama signed his fourth executive order concerning federal contractors and labor matters. This order (the “Order”) encourages federal agencies contracting with private businesses for large-scale construction projects to mandate project labor agreements (“PLA”) for the entirety of the project. 

02/16/2009 - U.S. Supreme Court Protects Workers from Retaliation in Workplace Discrimination Investigations
On January 26, 2009, the United States Supreme Court, in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, concluded that Title VII’s anti-retaliation provision protects an employee-witness who “speaks out” about alleged discrimination “not on the employee’s own initiative,” but in answering questions during the employer’s internal investigation.

02/05/2009 - President Obama Signs Three Executive Orders Concerning Unions
On Friday, January 30, 2009, in a move targeting Bush-era policies that some viewed as unfriendly to organized labor, President Barack Obama signed three executive orders: Notification of Employee Rights Under Federal Labor Laws; Nondisplacement of Qualified Workers Under Service Contracts; and Economy in Government Contracting. Regarding these orders, President Obama commented, “We need to level the playing field for workers and the unions that represent their interests. . .”

01/30/2009 - President Obama Signs Lilly Ledbetter Fair Pay Act
On Thursday, January 29, 2009, in a widely anticipated move, President Barack Obama signed his first bill into law, approving the Lilly Ledbetter Fair Pay Act. This legislation focuses on salary bias in the workplace. Discussed in greater detail below, the Ledbetter bill essentially negates a 2007 United States Supreme Court decision that limited a woman’s ability to sue for pay discrimination long after the first discriminatory paycheck occurred.

01/20/2009 - House Passes Two “Fair Pay” Bills
On January 9, 2009, the United States House of Representatives passed the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act. The bills now go to the Senate for consideration, and President Obama is expected to sign both into law should they reach his desk.

11/21/2008 - The ADA’s Rebirth: Complying with the ADA Amendments of 2008
Based on several new amendments to the Americans with Disabilities Act (ADA), the statute has been reborn – it offers vastly expanded coverage to a wide variety of employee physical and mental impairments and will require employers to focus on creating and offering reasonable accommodations to individuals with disabilities. On January 1, 2009, the ADA Amendments Act of 2008 (ADAAA) will become effective and, in large part, it removes an employer’s common defense that the individual’s particular impairment does not constitute a “disability” under the ADA.