Busy times may lie ahead for labor and employment attorneys, depending on how current trends shake out.

Much has been written about unionization, labor negotiations and strike activity in Southern California in recent months. Some attorneys see this as a byproduct of the Covid-19 pandemic and the economic conditions — including inflation — it left in its wake.

“I think there are a number of reasons related to the pandemic and the jump in inflation rate that have combined to increase that interest,” observed Art Silbergeld, an employment litigation partner at the Century City office of Thompson Coburn LLP.

With the heightened trend in organizing labor, that means employers are in need of attorneys skilled in labor negotiations, mediation and arbitration matters. It’s become even more necessary as workforces that have not traditionally unionized have begun exploring the option.

“It’s been pretty significant. There’s definitely a lot of work out there and I can see this becoming more important for clients in various other industries,” said Jon McNutt, a partner at downtown-based Musick, Peeler & Garrett LLP. “Across all of those industries and likely more, I think the traditional labor workload is becoming more intense for both sides. For the attorneys out there, there’s a lot of work.”

Labor strife

Labor issues have been making headlines in Los Angeles for much of the year.

The Writer’s Guild of America has been on strike since May, and SAG-AFTRA went to the picket lines last week. Tensions at the Port of Los Angeles and Port of Long Beach between shippers and the International Longshore and Warehouse Union for 12 months resulted in a dip in cargo imports here. (The parties agreed to a tentative contract in June.) Delivery drivers and dispatchers for Amazon in Palmdale began striking in June. UPS workers nationwide involved in the Teamsters are threatening to strike if labor negotiations fall through. Starbucks workers are running a big unionization push, and in recent years, news media workers have also unionized in Southern California.

Silbergeld noted that from 2021 through last year, there was an increase of about 99,000 union members in California, although because of the hiring boom the overall percentage of union participants in the workforce declined.

“During the same time period, the National Labor Relations Board reported an increase in union petitions of 50%, so there is certainly an increase in interest in union membership,” he added. “That to me indicates there is a pretty wide interest among workers to seek the protections of the unions.

“At the same time,” Silbergeld continued, “the employers saw a loss of revenue and profit margins and they knew that they couldn’t afford to have wage increases, so they fought very hard against union organization drives, and, I think, very successfully.”

Job security became a problem in the early days of the Covid-19 pandemic, and even after the workforce had largely opened, available work hours were often diminished. Workers who benefited from more robust unemployment insurance during that period also naturally wanted more from their employers once they found work again.

And then inflation hit.

“With the ‘Great Resignation,’ as some called it, I think people are taking a harder look at their jobs and trying to decide whether they can do better, whether it’s financially, benefits or working conditions,” McNutt said. “They often see unions as a hope for a resource to improve those conditions. I think the pandemic had a huge impact on that.”

Temporary trend?

However, some speculate that this will be a temporary bump in the road rather than a mid- or long-term trend.

Silbergeld noted that labor organization attempts in SoCal “typically lost more than won” in recent years. And when he worked for the NLRB’s office in L.A. years ago, the outpost was “underworked” on account of the lack of activity. As a result, he said he felt the current trend was temporary.

“The SoCal workplace environment has never been very inviting to unions. The percentage of employees who are union members in Southern California is probably as low as it gets in any highly developed economy across the United States,” Silbergeld said. 

“I think because California has always had a higher wage than the federal minimum, employees are paid relatively well even if they’re working at minimum wage. Most working environments compel the employer to be very sensitive to employee rights and obligations. Employers tend to have workplaces that are more employee-friendly and employees, for the most part, like their jobs. This is not a factory environment, compared to several other states in the Midwest and on the East Coast.”

McNutt, by contrast, said that while he agrees that California politicians tend to be “very receptive” to what workers and unions seek for themselves, he still felt like this wave of labor activism could go on a while. He added that unions have also increasingly focused on communication and political engagement recently and that they have expanded into industries that they’re “not attuned with naturally.”

“I do think it is more than a short-term issue,” McNutt said, adding that the combination of Covid-19 and cost-of-living increases has, despite wage growth, “created a perception that people are overall earning less than they have historically. Between that and working conditions, I think they’re looking for the union as the potential solution to that problem. It’s hard to say whether it’ll be a long-term issue, but I don’t think it’s a blip on the radar.”

Staffing up

Regardless, there’s work to do now, so firms are making sure they’ve got the attorneys to field it.

Jennifer Post, the managing partner of Thompson Coburn’s Century City office, noted that transaction work is still reeling from the pandemic and that the regulatory nature of the state means labor and employment lawyers are always bringing clients up to speed on new rules.

“We consider the labor and employment bench here to be critical to the service of our clients in California and who come to California who may be based elsewhere,” she said. “In fact, across our offices in different states, we’re really in a push to hire labor and employment talent at different levels. It’s been organic. We’re trying right now to hire at the associate level to support the case work here.”

Musick Peeler, which has offices throughout the state, has similarly been busy, McNutt said.

“We’ve been hiring more and probably will be over the coming year,” he said of the labor and employment group.