Understanding the Business
On the job with employment defense attorney Sabrina A. Beldner
Published in 2013 Southern California Rising Stars magazine
By Michael Estrin on June 13, 2013
When Sabrina A. Beldner tells new acquaintances that her practice involves labor and employment law, they usually take the opportunity to dish on a workplace gripe. They may even ask for advice. Call it an occupational hazard for a lawyer whose job is to think about other people’s jobs.
If they’re looking for representation, however, they’re probably asking the wrong attorney. Beldner almost exclusively represents employers, a group, she’s quick to remind, “has a right to a defense,” especially, she says, when you consider the high number of dubious claims out there.
Beldner says the vast majority of labor and employment disputes are seldom as clear-cut as the handful of egregious cases that make headlines. In her past six years as senior counsel at McGuireWoods, and five years before that with two other firms, Beldner says she can count on one hand the number of instances she’s seen where an employer singled out an employee because of factors like race or gender. More often, she adds, the matters with merit she handles stem from “mistakes or human emotions,” and tend to be nuanced.
Sometimes she represents clients in unionized settings, other times it’s strictly employment law. But to do her job effectively, Beldner sometimes finds herself climbing a ladder in a warehouse, putting on a hard hat at a flour factory or learning how hotels credit housekeepers for the rooms they clean.
“People see the suit and sometimes they clam up,” she says. “But I try to be as unobtrusive as possible when I’m visiting a client.”
The stakes are high. Defending a single-plaintiff case all the way to trial can run a client $200,000; class actions cost more. If they lose, the client is often on the hook for plaintiff’s fees and damages.
But while Beldner works the employer-side, she doesn’t see her practice as defense per se.
“It’s actually a mix of defensive litigation, taking the offensive on occasion, and giving a lot of advice and counsel,” she says. “There’s no typical day for me.”
Beldner was probably destined to be a lawyer. “You came out arguing,” her parents told her.
Like a lot of lawyers, Beldner first became interested in law because of a TV show. For her, it was Law & Order. “I either wanted to be DA or a criminal profiler,” she says.
After her first year at Loyola Law School, Los Angeles, she clerked at the Los Angeles County District Attorney’s Office in Van Nuys, working with the hardcore gang unit. In the end, she felt there was too much misery to call even a conviction a win. So she switched to the civil side. She emailed Linda Miller Savitt, a partner at Ballard Rosenberg Golper & Savitt, to ask about a clerkship for her second summer.
“I don’t usually respond to cold emails,” Savitt says. “But Sabrina just caught my eye.”
Beldner wound up clerking at Ballard Rosenberg Golper & Savitt, one of LA’s top boutique labor and employment law firms. “What was really impressive was her passion,” says Savitt. “She took it upon herself to go beyond the facts and the law in order to understand the client’s business. That’s an essential part of this type of law, because oftentimes the choices a company makes can only be understood if you know how their business works.”
Beldner still takes pride in this. Case in point: a pair of cases Beldner recently helped handle for Performance Food Group, a national foodservice distributor with more than 10,000 employees.
Lawsuits alleging that meal and rest breaks weren’t given in accordance with state labor law have been a thorn in the side of the trucking industry for the past six years, according to McGuireWoods partner Matthew Kane, who was lead counsel on the two most recent PFG cases—one filed in California’s Central District, the other in a state court.
PFG delivers food to restaurants, hospitals and schools. It’s time-sensitive work with little margin for error. If a delivery comes too early, the client may not be prepared to receive it, but if it comes too late the customer won’t have the food they need to serve their patrons. The essence of the business is logistics.
State law, though, has relatively rigid meal and rest break scheduling rules. For example, a meal break must be provided no later than the fifth hour of an eight-hour shift, while a 10-minute rest break must be granted for each “four-hour portion or major fraction thereof” of a shift. With unpredictable traffic conditions and narrow windows for delivery, Beldner says trucking companies like PFG can’t always guarantee set times for drivers to rest and eat. Accepting the plaintiffs’ position, Beldner argued, would force a dramatic shift in the way PFG and other carriers deliver goods, literally taking drivers off the road when their employer and customers need them the most.
But federal law, if it could be applied, would have a very different result.
To win, PFG would have to convince the court that the Federal Aviation Administration Authorization Act of 1994 preempted California’s meal and break laws. Working closely with Kane, Beldner drafted motions arguing that a provision in the FAAAA forbade states from enacting or enforcing laws related to “price, route, or service of any motor carrier.” State laws that set rigid rules for scheduling meals and breaks for most workers couldn’t be applied to PFG because of its carrier status. Under federal law, carriers are immune from regulations that force them to reschedule routes and undermine their ability to promise delivery within specific time windows.
The theory was simple enough. It was also somewhat novel. Only one court had ruled that the FAAAA preempted the enforcement of state meal and break laws, but that was after class certification and extensive amounts of discovery. At the same time, other courts had held that the wage provisions of those laws did apply to carriers like PFG, which meant that in at least one important context, the FAAAA had been found not to preempt state law. Beldner’s assignment was to knock the case out at the pleading stage. She recalls thinking that their argument was sound but was unsure what the court’s response would be.
Turns out, Judge Jacqueline Nguyen granted PFG’s motion to dismiss in a February 2012 ruling that tracked closely with Beldner’s arguments. A month later, the same argument prevailed in the sister case, where plaintiffs were suing PFG on much the same grounds in a state court in Bakersfield, Calif.
“Our client went from facing two [potential] class actions in two forums, to none,” says Beldner.
While the 9th Circuit is still considering a similar case that could impact the trucking industry, Kane says he thinks the PFG cases will stem the tide of meal-and-rest-break lawsuits against carriers.
“To win at the pleadings stage on something like this is huge,” says Kane. “What Sabrina did was critical because she crafted a motion that allows clients like PFG to argue preemption before going through the expense of fighting class certification and discovery.”
Trials and arbitrations being costly and unpredictable, Beldner’s clients have a strong desire to stay out of court. But sometimes employers need to go on the offensive. Beldner doesn’t mind when they do.
One of Beldner’s clients, a global beverage manufacturer, recently terminated a warehouse employee for instigating a fight at work with a security guard who was employed by a third-party vendor. The two men reportedly exchanged words, and then, at some point thereafter, the employee struck the guard in the back of the head, sending him down hard onto a cement floor. The victim was treated at a local hospital and the matter was referred to the Los Angeles City Attorney’s Office, which prosecuted the employee for assault and battery.
Typically, a criminal prosecution would have ended the matter, but the employee ended up being acquitted. Cleared of all the charges, the employee and his union sued Beldner’s client, demanding reinstatement.
The union’s position seemed logical to Beldner—after all, a jury had acquitted the man. But something unseemly had clearly transpired that day, and from the employer’s perspective reinstatement seemed a bad idea.
“We knew we had to do something,” Beldner recalls. “But we weren’t sure we could win, either.”
Among other problems, her best witness was a supervisor who wasn’t in a great position to see the incident. There wasn’t any video evidence and several employees had changed their statements or said they didn’t remember anything after the criminal trial.
During a two-day arbitration in October 2011, Beldner did her best to explain her client’s position, relying heavily on police and medical reports that, she hoped, would persuade the arbitrator that the plaintiff had committed an act of violence at his workplace, even if a criminal acquittal and several witnesses said otherwise.
“The arbitrator ultimately ruled in our favor and found that the other witnesses just weren’t credible,” says Beldner. “We hoped they would see it that way. But in the middle of a hearing like that, you never know who is going to be believed.”
While wins in court or arbitration are great, much of Beldner’s practice never gets that far. It’s what she calls advice and counsel work. This includes drafting a new employee handbook, keeping clients up to date on changes in the law, or helping a client manage a situation with a potentially difficult employee. The work varies but one constant is the looming threat of harassment. It’s a big concern—especially given the dramatic social, cultural and technological changes that have swept through the American workforce in the last decade.
“So much has changed since I graduated law school,” Beldner says. “There was no such thing as a social media policy a decade ago, but today every client asks about one.”
A decade ago, equality for gays and lesbians wasn’t embraced by corporate America, either. But today, equality for LGBT employees is the “new normal” in corporate America, according to the Human Rights Campaign, the largest civil rights organization that advocates on behalf of LGBT Americans. In 2013, a record 252 companies achieved a 100 percent score on the HRC’s Corporate Equality Index. When the survey was first launched 11 years earlier, only 13 businesses did.
While the social shift has been nothing short of extraordinary, Beldner says there’s nothing all that noteworthy about her own experience. The National LGBT Bar Association recognized her as one of the best LGBT lawyers under 40, and recently she bought a house in Sherman Oaks with her fiancée, Jessica Lewis. But Beldner’s sexual orientation is a non-issue at the office. You might say McGuireWoods heeds the advice it gives clients during regular harassment training courses: be personable without getting personal.
Each year, Beldner runs three or four multiday harassment training courses for her clients’ managers. She likens it to a continuing legal education class, and the general idea is to teach managers how to avoid the kinds of behaviors that can create a hostile work environment and lead to lawsuits. As you might imagine, Beldner’s students tend to stress over the lesson plan, worrying that the casual way most of us behave at work wouldn’t look so good under a legal microscope.
“I like to say that it’s OK until it’s not OK,” Beldner says. “Very often, it’s not as simple as a manager hugged an employee and the employee felt uncomfortable. If there’s an issue, it’s usually something that was building up over time.”
Defusing those problems can be challenging. Often, Beldner is called in to help in-house counsel or the client’s human resources department to document a dispute that could last months or years.
“Documenting these events is key because if it ever goes to trial, those documents help us put the plaintiff’s claim in context and demonstrate our client’s credibility,” says Beldner.
Usually, the problem is resolved without litigation, which means the real wins don’t result in much credit for Beldner. But she prefers it that way.
“We call it preventative,” she says. “You can’t really tell [in those situations] that we’re helping. But if you don’t get sued, we’re helping.”
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