TABLE OF CONTENTS ABOUT JACKSON LEWIS 2 CLASS ACTIONS AND COMPLEX LITIGATION PRACTICE COORDINATORS 3

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1 EEOC Position Threatens Employers Ability to Defend Individual Employment Decisions in Systemic Discrimination Cases 2009

2 TABLE OF CONTENTS ABOUT JACKSON LEWIS 2 CLASS ACTIONS AND COMPLEX LITIGATION PRACTICE COORDINATORS 3 EEOC POSITION THREATENS EMPLOYERS ABILITY TO DEFEND INDIVIDUAL EMPLOYMENT DECISIONS IN SYSTEMIC DISCRIMINATION CASES 4 WAL MART V. DUKES: THE NINTH CIRCUIT S SEMINAL DECISION 4 THE EEOC WEIGHS IN: COURTS CAN AWARD CLASS WIDE PUNITIVE DAMAGES AND BACK PAY WITHOUT INDIVIDUAL DETERMINATIONS OF WRONGDOING WHAT SHOULD EMPLOYERS DO? 7 THE JACKSON LEWIS APPROACH TO CLASS ACTION LITIGATION OTHER JACKSON LEWIS AREAS OF PRACTICE This Special Report is designed to give general and timely information on the subjects covered. It is not intended as advice or assistance with respect to individual problems. It is provided with the understanding that the publisher, editor or authors are not engaged in rendering legal or other professional services. Readers should consult competent counsel or other professional services of their own choosing as to how the matters discussed relate to their own affairs or to resolve specific problems or questions. This Special Report may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome. Copyright: 2009 Jackson Lewis LLP Page 1

3 JACKSON LEWIS SERVING THE DIVERSE NEEDS OF MANAGEMENT Jackson Lewis is one of the largest law firms in the country dedicated exclusively to representing management on workplace issues. The firm has successfully handled cases in every state and is admitted to practice in all Circuit Courts of Appeal and in the United States Supreme Court. With 41 offices and more than 560 attorneys, the firm has a national perspective and sensitivity to the nuances of regional business environments. For over 50 years we have represented a wide range of public and private businesses and nonprofit institutions in a vast array of industries. When issues arise, we devise optimal solutions that minimize costs and maximize results. Whether we are counseling on legal compliance or litigating a complex case, we assist our clients in achieving their business goals. In addition, we help employers create policies and procedures promoting positive employee relations. We have built our practice and earned our national reputation over the years by helping companies reduce workplace related litigation by educating management on legal trends, judicial developments, and statutory and regulatory compliance in the rapidly evolving area of workplace law. Our state of the art preventive law programs utilize the firm s expertise and unmatched experience to evaluate employment trends and related litigation, minimizing the risk of exposure in future lawsuits. Page 2

4 Jackson Lewis Class Actions and Complex Litigation Practice WILLIAM J. ANTHONY NATIONAL COORDINATOR OF CLASS ACTIONS AND COMPLEX LITIGATION PRACTICE 90 State House Square 8 th Floor Hartford CT Telephone (860) Direct Dial (860) Facsimile (860) anthonyw@jacksonlewis.com CENTRAL REGION Jane McFetridge 320 West Ohio Street, Suite 500 Chicago, IL (312) mcfetridgej@jacksonlewis.com SOUTHWEST REGION Dan G. Hartsfield 3811 Turtle Creek Blvd., Suite 500 Dallas, TX (214) hartsfieldd@jacksonlewis.com METROPOLITAN NEW YORK REGION Felice B. Ekelman 59 Maiden Lane, 39th Floor New York, NY (212) ekelmanf@jacksonlewis.com NORTHEAST REGION William J. Anthony 90 State House Square, 8th Floor Hartford, CT (860) anthonyw@jacksonlewis.com SOUTHEAST REGION Stephen X. Munger 1155 Peachtree Street, Suite 1000 Atlanta, GA (404) mungers@jacksonlewis.com René E. Thorne 650 Poydras Street, Suite 1900 New Orleans, LA (504) thorner@jacksonlewis.com WESTERN Mia Farber 725 South Figueroa Street, Suite 2500 Los Angeles, CA (213) farberm@jacksonlewis.com Cary G. Palmer 801 K Street, Suite 2300 Sacramento, CA (916) palmerc@jacksonlewis.com Mark S. Askanas 199 Fremont Street, 10th Floor San Francisco, CA (415) askanasm@jacksonlewis.com JoAnna L. Brooks 199 Fremont Street, 10th Floor San Francisco, CA (415) brooksj@jacksonlewis.com Rob Pattison 199 Fremont Street, 10th Floor San Francisco, CA (415) pattisonr@jacksonlewis.com Page 3

5 EEOC POSITION THREATENS EMPLOYERS ABILITY TO DEFEND INDIVIDUAL EMPLOYMENT DECISIONS IN SYSTEMIC DISCRIMINATION CASES Just days prior to a much awaited oral argument before the U.S. Court of Appeals for the Ninth Circuit, the U.S. Equal Employment Opportunity Commission ( EEOC ) staked out its position in the historic Wal Mart v. Dukes class action. Though the federal agency charged with interpreting and enforcing Title VII did not express a view on whether the Court properly upheld class certification in its previous Wal Mart decision, the EEOC took the position that class wide punitive damages can be determined by a jury in Title VII pattern or practice cases and back pay determinations may be made without individualized hearings when appropriate. If the EEOC s view prevails, employers could lose their ability to defend individual employment decisions in large class actions with evidence of wrongdoing turning on statistics alone. The EEOC s decision to file an amicus brief in the Wal Mart case is no doubt connected to its aggressive pursuit of potential systemic discrimination cases. Regardless of whether the Ninth Circuit accepts the EEOC s position, it is important that employers proactively review their pay, promotion and decision making practices and policies to avoid costly and burdensome class action litigation and EEOC enforcement actions. WAL MART V. DUKES: THE NINTH CIRCUIT S SEMINAL DECISION Background In 2001, seven female Wal Mart employees filed a class action lawsuit in San Francisco federal court on behalf of themselves and similarly situated individuals alleging that, nationwide, the retailer's female employees received lower pay and fewer and slower promotions than their male counterparts. Despite the enormous number of potential class members over 1.5 million past and present employees spread across 3,400 stores and positions throughout the country the plaintiffs argued to the district court that the case should proceed as a class action. They offered factual, expert, statistical and anecdotal evidence of alleged company wide gender disparities. Plaintiffs sought declaratory and injunctive relief, as well as punitive damages and back pay. The district court ruled that the plaintiffs could proceed as a class on both their pay and promotion discrimination claims. According to the district court s trial plan, if the plaintiffs were successful in proving a pattern or practice of discrimination in the first phase of the trial, the court would determine back pay based on computerized calculations. Only women who the court found eligible for back pay would be entitled to punitive damages. At no point would the company have an opportunity to demonstrate that its employment decisions toward individual class members were lawful. Ninth Circuit Affirms District Court, Twice Employers suffered a major setback in February 2007 when a panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court s decision. The Ninth Circuit once again upheld the lower court s ruling in December 2007 and denied the company s request for rehearing en banc. Dukes v. Wal Mart, Inc. (9 th Cir. Dec. 11, 2007). In order to meet the requirements for class certification under Rule 23(a) of the Federal Rules of Civil Procedure, the Ninth Circuit explained, plaintiffs must prove that: (1) each class is so numerous that joinder of all members as separate litigants is impracticable; (2) there are questions of law and fact common to the classes; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the classes; and (4) the representative parties will fairly and adequately protect the interests of the classes. In addition, plaintiffs must satisfy the conditions of one of the Rule 23(b) sub sections. Plaintiffs here sought to satisfy Rule 23(b)(2), which mandates that the defendant acted in a manner generally applicable to the class and plaintiffs claims for declaratory Page 4

6 and injunctive relief predominate over monetary relief. According to the district court, plaintiffs exceeded the permissive and minimal burden of establishing commonality by providing: (1) significant evidence of company wide corporate practices and policies, which include (a) excessive subjectivity in personnel decisions, (b) gender stereotyping, and (c) maintenance of a strong corporate culture; (2) statistical evidence of gender disparities caused by discrimination; and (3) anecdotal evidence of gender bias. The Ninth Circuit, which focused primarily on the Rule 23(a)(2) commonality prong, agreed and found that the district court did not abuse its discretion in finding that all four prongs were met. The Ninth Circuit also upheld the district court s finding that plaintiffs met the requirements of Rule 23(b)(2) despite their request for punitive damages and back pay, which the company argued predominated over their request for injunctive and declaratory relief. Although a request for back pay may weigh against class certification under Rule 23(b)(2), the Court explained, prohibiting class members from seeking back pay awards would put discrimination victims to the Hobson's choice of having to settle for only a partial remedy in order to proceed as a class action or having to bear the enormous costs of an individual lawsuit in order to receive the make whole injunction plus back pay remedy authorized by Title VII. Similarly, it would be non sensical to prevent victims of particularly egregious discrimination from simultaneously proceeding as a class action under Rule 23(b)(2) which was specifically designed to facilitate discrimination class actions and seeking the punitive damages provided for under Title VII, the Court said. In dissent, Judge Kleinfeld argued that plaintiffs failed to meet any of the Rule 23 requirements except for numerosity. Based on their own descriptions of the wrongs done to them in the complaint, the interests of the seven named plaintiffs diverge from each other, as will the interests of other members of the class, he explained. Even worse than the Rule 23 violations, the district court's management plan for this class action violates Wal Mart's constitutional rights to due process and jury trial, Judge Kleinfeld said. Ninth Circuit Grants En Banc Review After the Ninth Circuit s December 2007 decision, Wal Mart petitioned the Court to review the case en banc, meaning that the full Court would consider and rule on the case rather than a threejudge panel. According to Wal Mart, en banc review was necessary for the following key reasons: (1) class certification was inappropriate under Rule 23(b)(2) because plaintiffs request for monetary damages back pay and punitive damages that could be in the billions of dollars predominates over declaratory and injunctive relief; and (2) the case presents intractable manageability problems because the proposed trial plan does not provide for individual assessments of wrongdoing and harm in violation of Title VII, as well as the Due Process Clause and the Seventh Amendment, which give defendants the right to mount every defense and challenge plaintiffs entitlement to back pay and punitive damages. Class claims for monetary relief Wal Mart argued, generally must proceed under Rule 23(b)(3), which requires notice to absent class members, allows opt outs, and imposes strict requirements of predominance, superiority, and manageability. Numerous organizations, including the U.S. Chamber of Commerce, filed a friend of the court amicus briefs urging the Court to review its prior decision. In February 2009, the Ninth Circuit agreed to an en banc rehearing. Oral argument took place on March 24, Several days before, on March 19th, the EEOC made its first appearance in the case and submitted an amicus curiae brief to the Ninth Circuit. Page 5

7 THE EEOC WEIGHS IN: COURTS CAN AWARD CLASS WIDE PUNITIVE DAMAGES AND BACK PAY WITHOUT INDIVIDUAL DETERMINATIONS OF WRONGDOING The EEOC s Position Though the federal agency charged with interpreting and enforcing Title VII did not express a view on whether the Ninth Circuit properly upheld class certification in the Wal Mart decision, the EEOC took the position that class wide punitive damages can be determined by a jury in Title VII pattern or practice cases and back pay determinations may be made without individualized hearings when appropriate. The EEOC also emphasized in its brief that the agency need not obtain class certification to bring an enforcement action alleging a pattern or practice of discrimination; however, according to the Commission, the Ninth Circuit s resolution of issues relating to class wide punitive damages and back pay could directly affect the Commission s enforcement of Title VII, particularly its systemic litigation. Punitive damages lend themselves to classwide determination in a Title VII pattern or practice case since neither the claim nor the damages focuses on individual victims of discrimination, the EEOC said. The Commission also rejected the notion that punitive damages must be based on some actual measure of harm and that employers are entitled to present every available defense to punitive damages awards. In the 1991 Civil Rights Act, the EEOC explained, Congress placed a cap on Title VII punitive damages. In combination with the high threshold of culpability for punitive damages awards, the statutory cap ensures that punitive damages awards will not violate due process. The EEOC also opined that, despite the Supreme Court s holding in Teamsters v. United States, 431 U.S. 324 (1977), employers are not necessarily entitled to individualized hearings regarding back pay. While Teamsters held that the make whole relief is usually determined in some kind of additional proceedings, courts construing this language have held that separate mini trials for individual victims may not always be either necessary or, indeed, preferable, the EEOC explained. In cases where any attempt to reconstruct individual employment histories would drag the court into a quagmire of hypothetical judgments, class wide determination of back pay awards may be appropriate, the Commission reasoned. This is true in EEOC enforcement actions no less than in private class actions. Consequences Regardless of whether the Ninth Circuit upholds its December 2007 decision, the EEOC will likely take the same position on class wide punitive damages and back pay awards in other Circuits and before the U.S. Supreme Court should the high court grant certiorari in Wal Mart or a comparable case. If the EEOC s position is accepted by the Ninth Circuit or other courts, employers could lose their ability to defend individual employment decisions in large class actions with evidence of wrongdoing turning on company wide statistics. Such a ruling would have implications not only for pay discrimination claims, but also for a broad variety of employment related claims. As the U.S. Chamber of Commerce stated in its amicus brief, which takes the opposite position from the EEOC s, If employers are denied an opportunity to present evidence demonstrating that their actions were lawful, then they can only avoid liability by making it impossible for any plaintiff to establish a prima facie case of discrimination in the first place. Additionally, by obviating the need for individualized mini hearings on employer wrongdoing and employee harm, the EEOC s position would make it easier for courts to determine that manageability concerns do not preclude class certification in large pattern or practice cases. This would make it harder for employers to settle class actions at the class certification stage, with plaintiffs gaining a great deal of bargaining leverage once a class has been certified. It is important to note that the EEOC did not address compensatory damages in its amicus brief. Under current law, a case involving compensatory damages, rather than equitable back pay relief, Page 6

8 must be maintained under Rule 23(b)(3), which has stricter procedural and certification requirements, because monetary damages would predominate. However, if accepted, the EEOC s position could result in an increase in punitive damages only cases where plaintiffs forego compensatory damages in order to certify a class under Rule 23(b)(2) where they could not do so under Rule 23(b)(3). Employers should also note that the EEOC does not need to meet any of the certification requirements associated with class action litigation when it brings systemic discrimination actions against employers, which the agency has been focused on recently. Back in April 2006, the EEOC unanimously approved a comprehensive program to substantially expand the Commission s emphasis on the identification, investigation and litigation of systemic cases of discrimination. The Commission defined systemic cases as pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company or geographic location. The EEOC s decision to file an amicus brief in the Wal Mart case is no doubt connected to its aggressive pursuit of potential systemic discrimination cases and evidence that the Commission will seek huge damages awards in these cases. WHAT SHOULD EMPLOYERS DO? An employer s best defense to pay and promotion class action claims regardless of whether the EEOC s view prevails is continuous proactive monitoring of their employment processes for red flag statistical indicators that could indicate potential barriers to equal employment opportunity. To afford some degree of protection under the attorney client and/or work product privilege, employers should consider conducting the analyses suggested below in coordination with counsel as self analyses may be discoverable in litigation and may be the plaintiffs best evidence of discriminatory practices. Review Compensation Policies Pay Equity Analysis: Employers should examine compensation structures to ensure equitable treatment between similarly situated male/female employees and nonminority/minority employees. Are there employees who started on the same date with the same job title who are earning vastly different amounts not otherwise explained by performance or contribution, prior experience, education, level of responsibility and/or other factors? Audit Current Pay Documentation Practices: Employers should audit their compensation practices to determine whether there is sufficient documentation supporting compensation decisions. Performance based specifics underlying such decisions will be essential to defending a wage disparity claim. Develop Specific Criteria for Compensation Decisions: Employers should develop objective, measurable guidelines for compensation decisions to be applied consistently and uniformly with job classification, work group, department or business unit. Review Compensation Decisions: Employers should create a process to ensure that managers and supervisors do not have unfettered discretion when making compensation decisions. Rather, employers should consider adopting a review system so that compensation decisions are subjected to the same rigorous scrutiny that terminations, discipline or other adverse actions typically receive. Revise Document Retention Practices: Employers should review their current document retention policies to determine how long they maintain documentation regarding compensation decisions. Employers may need to consider electronic archiving given the voluminous nature of pay related records. Page 7

9 Train Supervisor and Managers: Employers should train all supervisors and managers to ensure that they understand the need to support objectively all compensation decisions. Review Personnel Selection Processes Promotion Analysis: Examine the percentage, frequency and time of promotions among female and minority populations and compare resulting data to promotions among similarly situated male and non minority employees. If statistically significant variations are found, examine promotion processes to determine if a particular set of practices (i.e., promoting from a pool of predominantly male candidates) may contribute to the adverse data or if there are legitimate factors which explain the difference. Evaluation Analysis: If the results of the promotion analysis are affected by disparities in performance evaluation scores, review the performance evaluation system to ensure the presence of nondiscriminatory reasons for any disparities. Analyze the data obtained in performance evaluations to determine whether there is a correlation between evaluation results/scores and a protected characteristic. Training Opportunities Analysis: Compare training opportunities offered to female and minority employees to similarly situated nonminority and male employees to determine whether there is a negative correlation between provision of training opportunities and a protected characteristic. Glass Wall: Analyze placement of employees throughout the company to determine whether a disproportionate share of a protected class is found in a particular function or department. Termination Analysis: Study the termination rates among female, minority, and over 40 employee populations, and compare them to the rates of similarly situated male, nonminority, and under 40 populations. THE JACKSON LEWIS APPROACH TO CLASS ACTION LITIGATION To effectively manage any class action, it requires a vigorous and focused defense, coupled with lean staffing by experienced class action attorneys all of which Jackson Lewis can provide in an efficient manner and at a reasonable cost. Not only do our attorneys provide realistic assessments of liability and damages as early as possible in litigation, but we pride ourselves on developing strategies that make business sense. Our ability to dispense proactive advice and practical workplace solutions makes Jackson Lewis a leading provider of valuable preventive workplace training. In all phases of class action litigation, Jackson Lewis brings to bear vast internal resources on every conceivable type of claim. With practice area specialists in Disability, Leave and Health Management, Employee Benefits, including Complex ERISA Litigation, Workplace Privacy and Executive Compensation, Wage and Hour Compliance and Workplace Safety Compliance, among others, our clients have immediate access to an unparalleled body of knowledge on virtually any employment law issue that may arise in the litigation context. In addition, Jackson Lewis Affirmative Action and OFCCP Diversity Planning Practice Group has the resources to analyze large volumes of data and model estimated damages in class and collective action litigation. Initial Planning and Goal Setting In our experience handling class action cases, we find it critical to have a thorough discussion to best understand our client s goals and our defense at the very beginning of the case and at regular intervals thereafter. Some clients prefer to settle as quickly as possible, while others refuse to even consider settlement until the class certification motion is decided. Still, other clients want to ultimately settle, but feel they cannot achieve a good settlement without first mounting a strong defense. Page 8

10 Our initial discussions and planning will impact such issues as: (a) the steps a client can take to limit ongoing potential exposure while the case is pending; (b) whether the litigation in one state is likely to lead to similar litigation in other states; (c) whether the client believes it may have some exposure and may want to settle the case at some point; and (d) the timing and financial disclosure implications of its decisions. Investigation The most important initial step in defending the case is collecting and analyzing all of the documents and data relevant to the claims, both internally and of plaintiffs. This often includes the following: Collect and review documents involving the policies and practices in question; Assess whether particular records may exist; Collect and assess electronic time and pay records; and Create a list of all potential class members, including their addresses, telephone numbers, the locations where they worked, the dates they worked there, rate(s) of pay, and related information. An early internal fact investigation, including identification, preservation, collection and analysis of pertinent documentary evidence, serves several key purposes: First, the client ultimately may be required to preserve and/or produce some or all of the evidence in response to discovery requests. Second, the information and data are needed to analyze a company s potential liability and create an accurate exposure analysis. Third, the information contained in the documents and data will help determine arguments to oppose class certification on a number of different grounds. In opposing class certification, our goal is typically to convince the court the case is so complex, with so many variables, that it is impossible to decide the case based on representative testimony, or rather, that there is insufficient commonality to warrant class treatment. Managing Discovery Jackson Lewis has extensive experience managing large scale discovery, including the collection and production of millions of pages of documents in major litigation. We have state of the art electronic resources and expert personnel at the ready to efficiently handle any volume of document handling. We are accustomed to plaintiff s counsel propounding written discovery early in the case. In addition, many plaintiff s counsel also seek the names, addresses and telephone numbers of class members. We are prepared to offer several options on how best to manage this process. Plaintiff s counsel will also likely notice depositions of corporate representatives on various topics, usually after the paper discovery has been completed. It is becoming increasingly common for plaintiff s counsel to pursue such depositions early in the case. Of course, it will be necessary to depose the plaintiff. At some point, it may be necessary to depose some of the class members, but it is better to tie down as many class members as possible at an early stage through declarations. Generally speaking, decisions concerning who to depose and when are best made after the initial investigation is completed. Some courts generally will limit discovery initially to issues pertinent to class certification; other courts permit discovery on the class issues and on the merits to proceed simultaneously. Mediation If a client desires to pursue mediation, we are wellequipped to recommend an appropriate mediator and to prepare for mediation. The success of mediation often depends on the mediator and our efforts in obtaining valuable evidence and declarations. We have participated in numerous class action mediations and have developed effective approaches designed to achieve the best possible resolution. We are also aware of other settlements in these types of cases. As a result, we will be able to provide clients with a helpful frame of reference in this matter. Page 9

11 Motion for Class Certification and Summary Judgment Plaintiff s motion for class certification is a critical point in any class action litigation. From day one, we will focus on developing the evidence that will help us present the strongest possible opposition to the plaintiff s motions for class certification. In the event the case is certified, we are prepared to review and pursue other vehicles for dismissing the action in whole or in part, including moving for summary judgment. * * * Jackson Lewis has the in house expertise to perform class based liability vulnerability audits that evaluate employers personnel processes and practices. Jackson Lewis also has the experience and knowledge necessary to aggressively defend class action discrimination claims. We have successfully opposed class certification, negotiated favorable settlements, and even convinced class counsel to withdraw claims in a multitude of cases, often working with labor economists and statisticians to defeat plaintiffs commonality arguments and disprove their allegations. Page 10

12 OTHER JACKSON LEWIS AREAS OF PRACTICE Affirmative Action and OFCCP Diversity Planning: We have one of the largest and most active affirmative action practices in the country. Using specially designed proprietary software, our diverse practice group of 35 lawyers, paraprofessionals, and operators prepare over 1500 affirmative action plans ( AAPs ) annually for our federal contactor clients. We defend against the imposition of citations and allegations of discrimination in connection with audits by the Office of Federal Contract Compliance Programs ( OFCCP ) and have successfully defended hundreds of such audits. We offer liability avoidance services, including vulnerability audits and statistical analyses employing the methodology used by the OFCCP to identify potential discrimination. We also prepare AAPs for, and defend against, audits by state and local affirmative action agencies, help design and review lawful diversity plans and offer strategic planning counseling. Disability, Leave and Health Management: The Americans with Disabilities Act and Family and Medical Leave Act have significantly changed the obligations of employers when dealing with employees who cannot work due to injuries or illnesses. Jackson Lewis offers clients imaginative solutions to the difficult legal and operational problems in managing employee absences and requests for accommodations. We work closely with clients to develop workplace safety programs; draft policies concerning leaves of absence, reasonable accommodation and related issues; and train managers to understand the interplay between federal and state laws. As employers evaluate leave, accommodation, and return to work requests, we provide guidance about communicating effectively and lawfully with employees and their health care providers. Our litigation specialists have extensive experience defending legal challenges to disability management decisions before courts and administrative agencies. Employee Benefits, including Complex ERISA Litigation, Workplace Privacy and Executive Compensation: Jackson Lewis represents employers in all aspects of employee benefits law, including counseling with respect to administration and establishment of tax qualified pension, profit sharing and stock bonus plans, as well as non qualified and executive deferred compensation plans. Our attorneys also assist clients in administration and compliance efforts regarding health, welfare and related fringe benefit programs areas that have become the subject of increased regulation, employee claims and litigation. We represent clients in connection with liabilities under collectively bargained benefit arrangements and multiemployer pension and welfare plans, including guidance regarding amendment and termination of retiree welfare arrangements and defense of withdrawal liability claims and claims for contributions. When necessary, we provide litigation defense to our clients in cases ranging from mainstream benefit denials to complex class actions involving fiduciary and plan investment issues. Jackson Lewis also helps companies develop comprehensive data privacy and security programs. Global Immigration: We help obtain temporary employment visas, approval of labor certification applications, and immigrant visas authorizing permanent residence and employment in the U.S. We educate management about the U.S. visa system, facilitating long term career planning for key employees, and establishing in house visa programs that ease international transfers. Using our network of international law firms, we assist employers in obtaining short and long term work visas for assignments in countries other than the U.S. We also advise about complying with I 9 Page 11

13 employment authorization verification requirements and social security number issues. necessary, we litigate immigration matters in administrative and federal court proceedings. When Labor, including Preventive Practices: Jackson Lewis is committed to the practice of preventive labor relations through issue assessment, supervisory training, advice and counsel with respect to policy development, and lawful/positive communications. Jackson Lewis has been retained to advise many employers who have succeeded in winning NLRB elections or in avoiding union elections altogether. Our labor attorneys have represented clients in thousands of matters before arbitrators, mediators, the National Labor Relations Board, state labor boards, government agencies, and state and federal courts. On a daily basis, we advise employers regarding corporate campaigns, neutrality agreement requests, union organizing, NLRB elections, contract negotiations, grievance and arbitration proceedings, unfair labor practices, traditional third party pressures (such as picketing or hand billing), new age public appeals (such as websites and blogs), work stoppages, purchase/sales, reductions and reorganizations, as well as the entire range of pre and post hire employee relations issues. Litigation, including Class Actions, Complex Litigation and e Discovery: The majority of our attorneys devote all or most of their time to employment litigation. We have unparalleled experience and results, having litigated over 8,000 employment cases in the last five years alone in state and federal courts.. We defend individual lawsuits and class actions alleging discrimination, sexual harassment, wage hour violations, wrongful discharge, defamation, breach of contract, intentional torts, emotional distress and other serious workplace issues in federal and state trial and appellate courts. To prevent class actions and complex litigation, we assist companies in assessing their vulnerability and identifying early warning signs of group activity. We employ various procedures to help our clients control litigation costs. We typically conduct an early case assessment before engaging in extensive discovery or taking other adversarial measures. An early case assessment process helps us develop appropriate strategies for evaluating settlement options and determining whether an aggressive defense is likely to be successful and cost effective. In addition, our employment litigators have developed the expertise to conduct discovery in a focused, cost efficient manner, dispose of cases before trial through aggressive motion practice, and present cases during trial in a manner persuasive to judges and juries. Trade Secrets, Non Competes and Workplace Technology: The mobility of the workforce has increased the need for employers to protect their confidential information, trade secrets, and competitive position. Jackson Lewis attorneys advise on executive and individual employment agreements, post employment restrictive covenants, non competition agreements, and related protective instruments effective during and after employment. Our attorneys prosecute and defend lawsuits involving post employment non competition and non solicitation agreements, employee raiding claims, unfair competition claims, and other employment related business torts. These matters often proceed on an expedited basis; we are prepared to rapidly respond to the unexpected entry of a temporary restraining order or to seek immediate judicial protection for an employer. Our knowledge of unfair competition law nationwide, combined with our expertise in litigating statespecific injunction proceedings, enables us to structure creative solutions to post employment issues. Page 12

14 Wage and Hour Compliance: The complex and often ill defined laws governing independent contractor status, compensation and overtime pose costly risks for employers. We represent employers in administrative and judicial proceedings, including class action and multiple plaintiff litigation, with respect to challenges to independent contractor status, entitlement to and calculation of overtime or other premium pay, record keeping obligations, determining when vacation, personal or sick days must be paid, and developing personnel policies to comply with wage hour and paid timeoff requirements. We assist employers with the development and audit of wage and compensation policies; classifying exempt, nonexempt and independent contract workers; structuring bonuses, incentive payments, and other compensation; determining eligibility for overtime pay, commissions, and bonus plans; and administering other compensation programs. Workplace Safety Compliance: When a business is subjected to an OSHA inspection, Jackson Lewis provides the necessary representation to ensure our clients rights are fully protected. In cases where an employer is subject to criminal or civil legal action based on alleged violations, we provide the expertise to defend the allegations. We have extensive agency experience at the national and regional levels with respect to settlement negotiations and the expertise to contest citations before the Occupational Safety and Health Review Commission, all state safety and health commissions, and in federal and state court review proceedings. To assist with the array of complex issues such as ergonomics, fatality and catastrophe investigations, safety management of hazardous chemicals, and workplace violence, we offer a number of services including facility and personnel risk assessment, management training, and policy and procedure analysis. In addition, Jackson Lewis provides advice nationally in other workplace law areas, including: Reductions in Force, WARN Act; Corporate Governance and Internal Investigations; Drug Testing and Substance Abuse Management; International Issues; Management Education, including e Based Training; Alternative Dispute Resolution; Public Sector Issues; and Government Relations. Page 13

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