Minnesota Lawyer
But some employment areas need more attention, O’Brien said. One is pay equity, which remains a problem because some employers “run on fumes” and don’t change their practices. The number of underpaid women would surprise some employers, he said.
One reason for inequity is the limited reach of organized labor, he said. It has been difficult for unions to be effective. It’s also difficult to get data to support the claims, which is a reason employers continue to run on fumes, he said. “We’re going to bring more lawsuits,” with the goal of persuading employers to fill up their tanks and avoid being defendants.
Another reason is restrictive covenants. Legitimate interests for the noncompete should be narrowly defined and enforced with a scalpel, not a blunderbuss, he said. (A bill narrowing the effect of noncompetes is in committee at the Legislature.)
Some of these issues never go away, but continue to disappoint, O’Brien said.
A worry to many plaintiff’s lawyers is what O’Brien calls the “creeping conservatism” on the bench. With the burden of proof on plaintiffs, any changes to the burden can redound to them.
“It is hard for courts not to extend rights and protections to minorities,” O’Brien said. The hard thing is where judges start “tinkering around the edges.” He said, “that probably will be the trend as long as conservative judges are in control.”
The tone and tenor of employment law practice has changed a lot over the years, O’Brien said. Minnesota is still a small pool of lawyers. “The sooner you learn, the better your reputation, credibility and rapport with opposing counsel,” he said.
The practice is very much about relationships, said O’Brien. “Try to partner in the issues for your clients. The lawyers who do that will stay around.”
O’Brien noted that opposing counsel will know the weakness in your case, but the attorney needs the courage to speak freely and openly (in a tactical way). “To me this is critically important.”
