Kunkel Miller & Hament is one of the few firms in Florida with a nationwide practice devoted exclusively to counseling and representing management in labor and employment law matters, including employment law defense litigation. The Firm represents private and public sector employers in virtually every major business and industry and appears regularly before federal, state and local administrative agencies and in federal and state courts.
As the complexity of labor and employment law has increased in the years since the Firm was founded, the knowledge, diverse back-grounds and wide range of litigation experience possessed by members of the Firm have enabled Kunkel Miller & Hament to remain on the cutting edge of the emerging and changing law.
We endorse the preventive approach to labor relations and employment law issues as the best way to avoid labor problems and litigation, and to preserve management's rights to effectively and profitably manage its business.
The underlying philosophy of Kunkel Miller & Hament is to provide its clients with the highest quality and most cost-efficient counseling and representation to achieve their objectives within the parameters imposed by applicable labor and employment laws.
We limit our practice to labor and employment law. We believe that this focus enables our attorneys to offer our Clients the best solutions more promptly and economically than a general practice firm. Because we do not encourage departmentalization within the Firm, each attorney of the Firm is able to provide our clients legal counseling and representation in each of the areas that comprise labor and employment law today, including:
Labor and employment law, perhaps more than any other area of the law lends itself to a preventive approach. Whether the problem involves unions, discrimination, discipline, discharge or any other human resources issue, when we analyze the genesis of the problem we find that there was an identifiable point at which the problem often could have been avoided or at least minimized. Advising employers at or before those critical points is one of our most important services. We encourage employers to consult with us when there are difficult employment decisions to be made. Our attorneys are readily accessible either for telephone consultation or a face-to face meeting. We analyze the relevant facts and circumstances, consider the options, and assess the risks. We then make a reasoned judgment and advise our client accordingly. Most conflict can be avoided, but if not, the employer's position can often be optimized and the risk of litigation minimized. Our litigation experience provides the foundation for litigation avoidance.
In furtherance of the preventive approach, we also help employers in the development and implementation of personnel policies; review employee handbooks, supervisory manuals and employment applications for legal compliance; draft employment and separation / release agreements; and conduct employee and supervisory training in all facets of labor and employment law, such as harassment, discipline and union avoidance.
The Firm's defense litigation practice extends to all federal and state trial and appellate courts. We also represent management before administrative agencies, and in arbitration and mediation proceedings. Our knowledge and experience in labor and employment law, both the private and public sector, gives us an important advantage over attorneys who are general litigators. In addition to defending employers against all forms of employment discrimination claims, our litigation practice includes defending against the increasingly prevalent common law employment actions, which often accompany discrimination counts, such as: defamation; breach of contract; negligent hiring, retention and supervision; fraud; intentional infliction of emotional distress; battery; and invasion of privacy. We also represent employers in both private and public sector Whistleblower lawsuits, as well as all other types of employment and labor law litigation.
Many of our larger clients have general corporate counsel either outside or in-house, who are responsible for overseeing our litigation on behalf of the client. Utilizing a teamwork approach, we work closely and cooperatively with such counsel to develop the optimum litigation strategy for achieving the client's objectives.
The Firm is proud of its reputation for being aggressive litigators, and for representing its clients in an effective and cost-efficient manner.
Mediation is now mandatory for many cases filed in Florida state courts, as well as in many other state courts, and is becoming more wide-spread in federal court cases. Our attorneys are not mediators. Rather, we represent employers when employment lawsuits and charges are mediated. An experienced mediator can often bring the parties to agreement in a much earlier and less expensive stage than would be the case if they went to trial. Our experience in the selection of the mediator and our understanding of the mediation process, coupled with our negotiating skills, can facilitate the process and help our clients achieve their objectives. We actively pursue this form of alternative dispute resolution on behalf of our clients in appropriate cases to reduce litigation costs and avoid protracted, time-consuming judicial proceedings.
Discrimination laws have proliferated since the passage of the Civil Rights Act of 1964. Recently enacted federal and state statutes have greatly expanded the number of employees who are protected by one or more laws, as well as the number of employers who must comply. Most discrimination laws require the employee to file a charge with a government agency such as the Equal Employment Opportunity Commission (EEOC), before filing a lawsuit. In most cases, plaintiffs can and do demand jury trials, and if they prevail, they can often recover compensatory and punitive damages in addition to back pay, reinstatement and attorney's fees.
A large part of our Firm's practice involves helping our clients avoid discrimination claims through preventive advice and counsel. In addition, we have an excellent track record in successfully defending employers in both federal and state courts as well as before the EEOC and state and local administrative agencies against employment discrimination claims.
Many of the labor and employment laws governing our clients are enforced by a variety of federal and state governmental agencies such as the EEOC, FCHR, OSHA, DOL, NLRB, OFCCP, PERC, DBPR and others. Our attorneys stay abreast of each agency's particular set of rules, regulations and procedures. Our experience and rapport with these agencies' officials can also be an important advantage for our clients. The Firm represents the interests of management in administrative investigations, inspections and audits, and in formal proceedings. We are often successful in achieving our client's objectives by virtue of our attorneys' particular experience in negotiating a favorable settlement to resolve the matter.
The firm counsels and represents both union and non-union employers, private and public sector, in traditional labor law matters.
For clients that are non-union and desire to remain union-free, we provide guidance and counseling to management to ensure positive employee relations, including effective communications coupled with sound policies and practices. The aim is to avoid or minimize employee discontent which often leads to the perception of a need to elicit the aid of a third party such as a union. We also advise management of current union organizing trends and issues, and in addition, keep them apprised of new administrative and judicial decisions which affect the rights and responsibilities of non-union employers.
Our attorneys also assist employers in defending union organizing campaigns. We help develop the employer's campaign strategy and also review employer campaign materials to ensure they are persuasive and in legal compliance. We counsel managerial and supervisory personnel on their rights and responsibilities, and regarding the applicable rules and regulations of the NLRB (private sector) and PERC (Florida public sector), to help them avoid committing unfair labor practices. We counsel and represent employers during union elections and in related proceedings before the NLRB and PERC.
For clients whose employees are represented by a union, we focus on preserving management's rights to manage its business. Our attorneys often serve as chief negotiator on behalf of management in collective bargaining, or we advise the employer's negotiator on bargaining strategy and specific issues behind the scenes. We a]so counsel management on the administration of the collective bargaining agreement during the course of its term, including grievance processing, and provide representation in arbitration, administrative and judicial proceedings involving labor-management disputes. If a strike is threatened or occurs, we develop plans to maintain the operation of the business, protect persons and property from violence, and communicate management's position to employees, customers, the public and the media.
The Firm provides guidance to employers concerning compliance with federal and state wage and hour laws and regulations, including the Fair Labor Standards Act (FLSA), the Service Contract Act, Davis-Bacon and related Acts, child labor laws and the Migrant and Seasonal Agricultural Worker Protection Act. Our attorneys are experienced in representing clients in investigations by the Wage and Hour Division of the U S. Department of Labor (DOL), and in wage and hour cases in federal and state courts To supplement our resources in this area, the Firm has engaged a wage and hour consultant, a former DOL official, who is also available to advise our clients and evaluate their compliance status.
The Firm is in the forefront of the rapidly expanding area of restrictive covenants. We assist employers in drafting restrictive covenants, such as non-compete and confidentiality agreements, to comply with applicable state law, and also represent employers in litigation to enforce and defeat non-competition, confidentiality, trade secrets and non-solicitation agreements.
Members of the Firm have particular experience in respect to compliance with OSHA standards, as well as management's rights and obligations during OSHA workplace inspections. The Firm represents the interests of management when citations are issued in proceedings before the Occupational Safety and Health Administration, including informal conferences, formal evidentiary hearings and judicial appeals. Our experience in OSHA matters has proven particularly valuable to employers in serious OSHA cases, such as those involving fatalities, where there is the potential for significant monetary penalties, as well as the risk of civil liability and criminal prosecution of corporate personnel.
We counsel employers in the area of unemployment compensation consistent with the proposition that it is a cost that be managed. We provide the Human Resources the answers to obscure questions, advice on how to contest m d guidance on how to shape policies to reduce the incidence of charges against the employer's tax account. Our attorneys will represent clients in appeal hearings, or they can simply provide assistance to management behind the scenes in their preparation for conducting the cases. We are also experienced in litigating unemployment compensation appeals before State appeals agencies and in court. Recognizing that the unemployment compensation claim is often the precursor to other claims such as discrimination charges or lawsuits, we employ a defense strategy to ensure that all critical substantive and procedural defenses and evidentiary issues are exploited and preserved.
The representation of public sector employers is an important part of our practice. Our attorneys counsel these clients so as to not run afoul of the constitutional law protections enjoyed by their employees which are not applicable to private sector employers and employees. When employees feel their constitutional rights have been infringed upon by their governmental employer, they may sue in state or federal court. The typical constitutional employment case involves alleged violations of an employee's right to freedom of speech, equal protection under the law, due process or invasion of privacy. We consult with governmental employers to help them avoid acts that would give rise to such claims. We also defend such claims in state or federal courts when asserted.
When a company performs work under a government contract or is a recipient of government funds, there are often affirmative action obligations imposed. In some cases, a company may need to implement a sophisticated written affirmative action plan designed to increase the number of minorities and/or females in the workforce, or in certain positions. We advise employers in the development and writing of affirmative action plans as well as in their annual record keeping and administration of the plan. It is important to design a plan that meets the requirements of the law and that actually produces the intended results, without unduly burdening the employer or compromising the quality of the work force. An affirmative action plan that is not efficiently designed and administered can result in loss of funding, reverse discrimination and may cause an employer to assume burdens greater than required by law.
Drug and alcohol testing of job applicants and employees is an increasingly widespread practice. It is mandatory for a significant number of employers engaged in the transportation industry, and is actively encouraged by the State of Florida and other states as a means of reducing workers' compensation costs and increasing the safety and productivity of the workforce. Public employers face special requirements with regard to drug and alcohol testing. A variety of state and federal laws regulate this area. Unfortunately, they are not necessarily consistent with each other. We help the employer who is required, or who chooses, to engage in drug / alcohol testing to recognize and understand the differences in the various legal requirements. Developing the written program is but the first step. A seemingly endless variety of new questions continue to arise as drug and alcohol tests become more and more widely used. Explaining the program to employees and giving consideration to the impact of the program on employee morale and employee relations is also an important part of the overall drug testing picture. Our experience enables us to provide advice on all aspects of drug and alcohol testing in a cost-effective manner.
Violence in the workplace is on the rise and is something no employer can afford to ignore. Appropriate background checks on applicants can provide important guidance in selecting the right person and avoiding the potentially troublesome individual. When current employees suffer from problems, they may develop previously unseen potential for violence in the workplace. When clients are discharging employees, we offer advice to minimize the risk of an adverse reaction and a retaliatory lawsuit. Identifying these situations in advance, developing contingency plans and being able to rapidly access the necessary resources, can often prevent violence against people or damage to property. Our goal is to avoid the problem through preventive measures.
The Firm has a long history of counseling and representing major hospitals, nursing homes, assisted living facilities, medical practices and other employers within the health care industry. This experience has given us insight into the often unique employment law issues that these entities face. As labor counsel to the Florida Health Care Association as well as national health care providers, our Firm is regularly called upon throughout the country to provide guidance on employment law issues. We also stay abreast of current union organizing trends and assist our clients in defending against organizing efforts of unions which often attempt to exploit the economic pressures facing the industry.
The Firm has represented Professional Employer Organizations (PEOs) since 1986 and regularly advises PEOs throughout the country. We have written or played a major role in drafting every significant Florida law pertaining to the employee leasing / PEO industry, including the law which recognizes the PEO's status as the employer for unemployment compensation purposes, and the law which grants PEO clients immunity in workers' compensation cases. We also represent PEOs in contractual, licensing and other regulatory matters and serve as General Counsel to the Florida Association of Professional Employer Organizations (FAPEO). In litigation among PEOs, clients and their leased employees, we ensure that the interests of the PEO in maintaining employer status while avoiding liability are fully protected. We regularly lecture on this evolving area of law and are instrumental in shaping the laws in this dynamic industry.
As members of the NSBA Council of School Attorneys, our Firm's attorneys have a long history of serving as outside counsel to Florida school boards for labor and employment law matters. Our services to school boards include general advice and counsel on human resources and union-related issues; design of employee policies and practices; conducting investigations of allegations of employee misconduct, such as sexual harassment; prosecuting teacher and support staff contract terminations; serving as Chief Negotiator in teacher and support staff collective bargaining; and representation in arbitration, administrative and judicial proceedings involving labor-management disputes, including the defense of unfair labor practices. We have litigated numerous school law cases, including Section 1983 and Section 1981 actions, constitutional law claims, Americans with Disabilities Act FMLA, and Pregnancy Discrimination Act cases, sex discrimination (including sexual harassment), age, race and national origin discrimination cases.
We have also represented school boards / superintendents in numerous school administrative proceedings as lead counsel. These consist primarily of formal administrative hearings involving the termination or discipline of instructional and non-instructional employees. The arbitrations (under the auspices of AAA and FMCS) involve disputed interpretations of union contracts, including employee discipline cases.