As employers come under pressure to provide policy responses to issues as important as Covid-19, racial justice and abortion rights, U.S. law firms are taking on a deeper advisory role – and one that will beyond traditional labor law.
The pandemic, the Black Lives Matter movement, and the reversal of Roe vs. Wade — the U.S. decision enshrining a constitutional right to abortion for nearly 50 years — have all increased demand for multidisciplinary legal services. These must now cover labor law, human resources and social relations.
Lawyers also increasingly need to understand the political climate and the complex moral issues at play – both within an organization and in the broader societal conversation – at all times.
“Politics used to be left at the doorstep of the workplace,” says Sharon Masling, partner at Morgan Lewis. “And that separation no longer exists because all of these issues that happen externally affect employees internally.” This has left some employers figuring out how to navigate the political winds alongside what’s happening in the workplace.
The pandemic has triggered a wave of employment challenges, with employees working from home or from other states, and with adjustments to tax and sick leave policies. Then, in May 2020, the murder of George Floyd brought racial justice to the forefront, placing greater emphasis on employer diversity and inclusion efforts. And the Supreme Court’s decision in June this year to eliminate the constitutional right to obtain an abortion has raised questions about an employer’s role in supporting employees if they are barred from having a layoff. in their state of origin.
“I think what you’re seeing is different stakeholders raising their voices in different ways,” says former U.S. Attorney General Loretta Lynch, now a partner at law firm Paul, Weiss, Rifkind, Wharton & Garrison.
How an organization responds to the demands surrounding such political hot spots can affect not only its work culture, but also its public reputation, with long-term strategic and public relations implications.
After the #MeToo movement gained momentum in 2017, Morgan Lewis created a workplace culture consulting and training practice, which Masling co-directs. It aims to guide organizations of different sizes to meet the demands not only of workers, but also of customers, customers, boards of directors, shareholders and the public. “We realized that instead of just standing up for our customers after harassment, we could help our customers more by helping them prevent harassment,” says Masling.
When the Supreme Court overturned Roe vs. Wade, the law firm set up a reproductive rights task force, led by Masling. He also had a Covid-19 task force earlier in the pandemic.
But the biggest change for law firms in this age of more complex legal issues has been the integration of typically isolated legal practices.
“We had to break out of our traditional legal silos and find the best way to work together. . . from all of these diverse perspectives to serve our customers,” says Masling. “They need a one-stop shop.”
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At Paul, Weiss — which has a civil rights and racial equity audit unit — there has been an increase in client inquiries about racial equity audits, especially from those who have made proclamations of diversity, equity and inclusion, and seek to create or evaluate their own internal measures.
“The practice of racial equity has been driven in large part by a growing movement by shareholders to ask questions about how publicly traded companies are living up to their stated values,” Lynch says.
In the case of reproductive rights, clients had to consider: employee health benefits; whether they would provide workers with financial assistance to travel out of state to obtain an abortion; how would internal groups of women and religious affinities each react; and how exactly leaders should discuss the topic internally and externally.
Employers also had to prepare for legally precarious scenarios — for example, what to do if they received a subpoena for private information in an abortion-related law enforcement investigation.
“We had questions about criminal responsibility and [about] some of these state laws that talk about aiding and abetting abortion,” Masling says. “All of a sudden, our customers found themselves in the middle of a firestorm.”
While lawyers can’t predict what the next big issues will be, Morgan Lewis now knows that for every subject he needs a small management team as well as subject matter experts, a method to follow any relevant legislation and a way for staff to share information quickly with each other and with customers.
Companies often turn to Lynch and his colleagues for advice after shareholders have proposed certain goals or changes to improve diversity and inclusion, such as a greater focus on retention. Or, if the company provides financial services, a proposal could aim to increase access for people who have been historically excluded.
Audits can involve examining demographics, pay equity, workplace culture and, through focus groups, how employees feel about working in this environment. Third parties, such as civil rights organizations, may also be invited to provide input.
The most recent topic of customer interest has been affirmative action – intended to encourage a more diverse influx of students into US universities – now that the Supreme Court has taken up two cases that could see it eliminate the ability of universities consider race in admissions decisions.
It’s ironic, says Lynch, that people claim to want equality for all but, when it’s implemented, they say “more equality for you means less for me.” [But] it is not limited. It is not finished. We can, frankly, all ride together.”