Employment Law

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The firm focuses on Collaborative Measures for Resolving Conflict as there is an ever-growing evolution to explore alternative measures to litigation and craft solutions to address workplace conflict.

The firm has employment negotiations and litigation experience from both the employee/plaintiff and employer/defense perspectives. The firm handles a wide array of employment law matters, including high-level executive matters requiring navigation of sophisticated compensation packages and separation terms.

The firm handles independent fact-finding employment investigations, including complex investigations involving upper levels of organizational management in sensitive departments such as human resources, compliance and legal departments.

The firm provides neutral services, such as arbitrations, mediations, expert opinions and training on conducting investigations, preventing harassment and discrimination and managing employees.



INVESTIGATIONS

Effective Conflict Management involves assisting clients with crafting proactive measures in an effort to remediate problematic conduct in the workplace. Independent fact-finding investigations into complaints of employment-related complaints are key remedial components. Such investigations need to be promptly and effectively performed to minimize risk and correct impermissible activity.

The firm handles complex investigations which often involve the upper echelon of organizational management and high-level executives, such as:

  • Board Members
  • Executive Directors
  • Chief Executive Officers
  • Chief Financial Officers
  • Chief Operating Officers
  • Owners
  • Presidents
  • Fortune 200 and 500 Companies
  • Senior Vice Presidents

The firm has experience with investigations, including in sensitive departments such as human resources, compliance and legal departments and dealing with sophisticated and highly confidential issues.

  • Global International Companies
  • Large National Companies
  • Fortune 200 and 500 companies
  • Small to Mid-sized Privately-held Businesses
  • Educational Institutions
  • Health Care Facilities
  • Car Dealerships
  • Non-Profit Entities
  • Public Entities
The firm has experience in conducting investigations in a wide array of industries, including:
  • Pharmaceutical
  • Publishing
  • Communications
  • Information Technology
  • Manufacturing
  • Distribution
  • Retail
  • Automotive
  • Education
  • Beauty Products
  • Health and Fitness
  • Healthcare
  • Pet-care
  • Addiction Services
  • Community Social Services

Examples of published investigation articles are: "Effective Measures in Harassment Cases: Have New Jersey Courts Established a Reasonable Standard of Care?," New Jersey Labor and Employment Law Quarterly (July 2013) and New Jersey Law Journal (April 2011); "Importance of Workplace Investigations (Corporate Preventative and Remedial Measures)," New Jersey Lawyer (October 30, 2006); and "Conducting and Attacking Employment Investigations," New Jersey Law Journal (March, 2003).

Ms. Branigan recently presented "Advanced Investigations: What Am I Missing?" at the American Bar Association 8th Annual Labor and Employment Law Conference (Los Angeles, November 7, 2014) and "Workplace Investigations: Getting to the Bottom of Complex Matters without Falling into a Trap," at the American Bar Association 7th Annual Labor and Employment Law Conference (New Orleans, November 9, 2013).



ARBITRATION AND MEDIATION

Effective Resolution Measures involve Arbitrations and Mediations, which play an increasingly important role in alternative resolution measures to the litigation process.

Ms. Branigan has provided Alternative Dispute Resolution (ADR) services since 2008. Ms. Branigan is an Arbitrator on the Commercial/Employment panel with the American Arbitration Association ("AAA").

In her role as an AAA Arbitrator, Ms. Branigan has case-managed large, complex employment matters involving breaches of shareholder agreements and executive compensation packages, and cases involving harassment, discrimination, retaliation, and breach of contract, including express and implied contracts based upon employment handbooks.

As an AAA Arbitrator, Ms. Branigan has conducted hearings and issued comprehensive written arbitration award opinions. Prior to becoming an AAA Arbitrator, she handled employment arbitrations filed with the AAA, as an advocate from both the claimant and respondent perspectives.

Ms. Branigan received a gubernatorial appointment in 2007 to serve as a Commissioner with the New Jersey Public Employment Relations Commission ("PERC"), a seven-member, quasi-judicial administrative agency charged with administrating public sector labor issues, unfair practices, mediation, fact-finding and arbitration. Ms. Branigan served as a PERC Commissioner from 2007 until 2009. In her role as a PERC Commissioner, Ms. Branigan participated in the rendering of legal opinions issued by PERC on various public sector labor issues, unfair practices. As a PERC Commissioner, she was charged with reviewing records from underlying hearings, factual positions and legal authority submitted by the parties in connection with the issuance PERC's legal opinions.

Ms. Branigan also provides private employment mediation services and serves on the AAA Mediation panel and the New Jersey Superior Court Roster of Civil Mediators. Ms. Branigan has experience serving as a Mediator since 2008 and has mediated employment disputes, including various types of harassment, discrimination, retaliation and breach of contract cases.

Prior to becoming a Mediator, throughout her career, Ms. Branigan has participated in mediations and settlement conferences on complex employment matters. Ms. Branigan has been able to employ her use of "collaborative measures for resolving conflict" in her mediation practice and has assisted parties in resolving their disputes.

Ms. Branigan has also published the following article in the area of ADR, "Rule Changes Ease ADR Process for Cross-Border Attorneys," New Jersey Law Journal (March 28, 2011).



EXPERT OPINIONS

The firm has experience in providing expert opinions in employment matters, including with respect to the effectiveness of employer efforts to engage in effective preventative and remedial measures.



NEGOTIATIONS & LITIGATION

Negotiations also play a critical role in all aspects of employment law. A strong emphasis is placed upon reaching common goals through Collaborative Measures such as negotiations and pre-litigation efforts. Litigation is necessary in some cases, but other measures can first be fully explored.

The firm has experience in providing legal counsel in complex matters involving high level executives requiring navigation of sophisticated compensation and separation terms often implicating sensitive issues of whistle-blowing or discrimination at upper management levels. Such representation is in a broad array of industries, including pharmaceutical, financial, insurance, education, real estate, technology, news, and publishing.

At the beginning and end of employment, it is important to review and assess:
  • High Level Executive Severance Agreements
  • Executive Compensation Contracts
  • Non-Disclosure Agreements
  • Restrictive Covenants
  • Non-Competition Provisions
  • Non-Solicitation Clauses

The firm has experience in litigation and negotiations from both the plaintiff and defense perspectives and in handling complex, multi-party matters and class action lawsuits.

Litigation experience is in state and federal courts and before state and federal administrative agencies, including New Jersey State and Federal Courts, and before various agencies such as the Division on Civil Rights, the Equal Employment Opportunity Commission, the Office of Administrative Law, New Jersey Department of Labor, Divisions on Unemployment, Wage and Hour Compliance, and the Office of Administrative Law.

The types of matters handled include whistleblower, retaliation, gender/sex discrimination, sexual harassment, pregnancy discrimination, and care-giver responsibilities discrimination, age, race, religion, national origin, sexual orientation, and disability discrimination/harassment and retaliation, Family and Medical Leave Act (FMLA), Title VII of the Civil Rights Act of 1964 (Title VII), Americans with Disability Act (ADA), Age Discrimination in Enforcement Act (ADEA), Fair Labor Standards Act (FLSA), Law Against Discrimination (LAD), Conscientious Employee Protection Act (CEPA), New Jersey Family Leave Act (FLA), New Jersey Minimum Wage Law, the New Jersey Wage and Hour Law, tenure dismissal, invasion of privacy, defamation, breach of employment contracts, public policy, tortious interference with economic advantage, and restrictive covenant claims.

Some relevant published articles are: "The "Enterprise Test": Third Circuit Establishes a New Joint Employment Test under the FLSA (In re: Enterprise Rent-A-Car) - Impact on Employment Law Practitioners, New Jersey Law Journal (August 27, 2012); and "Legislature Considers Further Expansion of LAD: New legislative proposals create definitions of what and how we define employment discrimination," New Jersey Law Journal (March 17, 2008).



TRAINING AND EDUCATION

Effective Conflict Management involves assisting clients with crafting proactive measures in an effort to prevent improper conduct in the workplace.

Training is available for human resources and in-house legal staff on how to handle complaints and investigations into allegations by employees that implicate a myriad of state and federal employment laws, including those that prohibit harassment, discrimination, retaliation for whistleblower activities and other unlawful conduct. These training seminars are provided to all staffing levels, including upper management, from both a compliance and practical perspective.

Workshops include:
  • Conducting Investigations
  • Harassment, Discrimination Prevention
  • Hiring, Interviewing
  • Medical Inquiries/Exams
  • Job Descriptions
  • Performance, Discipline
  • Credit Checks, Privacy
  • Disability, Family Leaves
  • Reorganizations, Reductions
  • Drug and Alcohol Testing
  • Termination, Separation

The training is adaptable to different settings - such as auditorium venues with large audiences (100+), smaller groups in roundtable settings, and individual one-on-one training to alleged harassers. The training sessions focus on role-playing vignettes that provide an interactive forum to engage the audience in understanding the legal requirements, while also exploring practical and effective solutions.

Programs are also available to facilitate education in the area of conducting investigations. A dynamic program such as "HR UNDER FIRE -- Legal Preparation of the Human Resources Professional as a Litigation Witness," embraces an innovative and interactive method of teaching. The HR on Trial Program is a mock investigation workshop that explores the multiple layers of investigating a complaint, the deposition process and the trial. The program is a three-act simulation where designated individuals play the roles of an HR Professional, Victim, Harasser and Lawyer, with ongoing commentary by the two attorney presenters. The first act involves the HR Professional investigating a simulated complaint of harassment/ discrimination. The second act involves the deposition of the same HR Professional during subsequent simulated employment discrimination litigation. The third act involves the same HR Professional testifying at a trial.

HR on Trial has been successfully performed internally for a major New Jersey Retailer Cooperative as part of its in-house Human Resources/Management University. The HR on Trial program can be tailored to fit the client's business and industry and has been performed for a statewide Garden State Conference of the Society of Human Resources Management ("SHRM") in 2006, the Morris County SHRM program in 2006, as well as privately to business professionals in March and June 2008.



COMPLIANCE AUDITS, COUNSELING, RISK ASSESSMENT, POLICIES AND PROCEDURES

Effective Conflict Management involves assisting clients with crafting proactive measures in an effort to prevent improper conduct in the workplace such as drafting effective Policies and Procedures, providing Counseling and conducting Compliance Audits and Risk Assessments.

Compliance review, advice, and risk assessments are critical preventative measures for business clients and organizations. Such work includes the creation and implementation of effective handbooks, policies and procedures geared toward preventing instances of unlawful conduct related to the workplace. These assessments involve a comprehensive review of adherence to legal requirements.

  • Discrimination, Harassment
  • Overtime Exemption Misclassifications
  • Independent Contractor Misclassifications
  • Family and Medical Leave
  • Family Leave Insurance
  • Workers' Compensation
  • Whistleblower, Retaliation
  • WARN, Health and Safety
  • Unemployment
  • Fair Credit Reporting, Privacy

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SPOTLIGHT

Kirsten Scheurer Branigan co-authored with Jessica Stein Allen: A Preview of Proposed EEOC Enforcement Guidance and Effects of #MeToo: Combatting workplace harassment with "fully resourced" complaint systems, independent investigations and a new approach to training, New Jersey Law Journal (March 2018)

Kirsten Scheurer Branigan spoke on panel entitled, Workplace Investigation Subcommittee, Dealing with a Dishonest Party with a Twist: Truth or Consequences at the ABA, Labor and Employment Section, ERR Committee 2018 Midwinter Meeting.

Kirsten Scheurer Branigan received a gubernatorial appointment to serve on the New Jersey Council on Diversity & Inclusion, which will focus on the important role of minority and women-owned businesses in New Jersey.

Kirsten Scheurer Branigan, Esq. spoke on complex and advanced issues in independent workplace/employment investigations at the ABA 8th Annual Labor and Employment Law Conference, Los Angeles, CA and at the ABA 7th Annual Labor and Employment Law Conference, New Orleans, LA.

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HR ON TRIAL

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