Photo by Hugh Williams.
Wayne Outten, founder and managing partner of employment and labor firm Outten & Golden in New York City, was pretty sure of what he wanted to do after law school. He wanted to make a living doing something that is socially useful, so he decided to become a civil rights attorney. But after being asked by his mentor, Norman Dorsen, then president of the American Civil Liberties Union, to write a volume in a book series on employee rights, he got sidetracked.
By the time his book, “The Rights of Employees and Union Members,” was published in 1984, he was already successfully representing employees in employment disputes. Today, his firm, which he started with partner Anne Golden in 1998, has 35 lawyers with satellite offices in Stamford, Conn. and Chicago, and is reputedly the largest firm in the country that represents only employees.
“Twenty, thirty years ago, I sort of envisioned much of what I’m doing now, which is basically helping people,” Outten says. “But I honestly didn’t envision founding a firm and building such a large practice.”
Lawdragon: You’re the co-chair of your firm’s Executives and Professionals Practice Group. Can you briefly describe that practice group?
Wayne Outten: Our firm has a broad-based practice with two main parts - the individual side and the class side. The latter category, which represents a substantial part of our practice, consists of large class and collective actions, including discrimination cases, wage-and-hour cases, and WARN Act cases. Of course, that practice area is focused mainly on litigation. I personally don’t do those cases. I spend all of my time on the individual side. For the past 15 years or so, I’ve focused mainly on representing executives, bankers, and professionals.
Our Executives and Professionals Practice Group represents executives, managers, and bankers, in all aspects of their employment - from negotiating an employment agreement or offer letter at the front end, to negotiating a severance package at the back end, and everything in between (including compensation issues and non-competition issues). Within that practice area, we have a niche practice representing expats – U.S. employees working abroad.
We do the same kind of work for professionals, particularly lawyers, doctors, accountants, and consultants. For example, we represent lawyers who are changing jobs, including advising them about their rights and responsibilities as partners. Although our Executives and Professionals Practice Group focuses on transactional matters, it also asserts and prosecutes claims when appropriate, whether based on breach of contract or on discrimination or retaliation. That practice has grown steadily to the point that we are one of the largest groups in the country on the employee side with a focus on representing executives and professionals.
LD: How did you develop your reputation in this area?
WO: I’ve been practicing in this field a long time. I wrote a book that came out in 1984 called the “Rights of Employees and Union Members.” A second edition came out in 1994. I’ve written many other chapters and articles on employment law, and I have made hundreds of presentations on employment subjects at CLE programs and elsewhere. I’ve been a very active participant in various bar associations and other professional organizations. I helped found the National Employment Lawyers Association (NELA) in 1985, and I was the founder and president of its New York affiliate for about 16 years. And of course I have represented literally thousands of individual employees over the past 30 years. Through those activities, I’ve come to know lots of people in all aspects of employment law.
As a result when somebody is looking to refer a client or a friend of a friend for advice on an employment agreement, a separation agreement, or any other employment issue, a great many of them think of me or my firm. Roughly a third of our clients are referrals from clients or former clients, roughly a third are referrals from other attorneys, and the rest come to us through other routes, such as internet research, top lawyer listings, and word of mouth. During a typical week, we receive more than a hundred calls from prospective clients. We have established an intake process for the incoming calls, starting with a staff assistant taking preliminary information, followed typically by a call back from one of our lawyers.
LD: How has the economy affected your practice?
WO: Our practice is both cyclical and counter-cyclical. During recent years, our firm created and built a practice under the Worker Adjustment and Retraining Notification Act, or WARN Act (a federal law passed 27 years ago requiring an employer to give 60 days’ notice to its employees in the event of a plant closing or mass layoff). We probably have the largest WARN Act practice in the country, with about 50 lawsuits pending at the moment. That practice, you can imagine, is pretty busy when times are bad. But even when the economy is improving, plant closings and mass layoffs still occur. So that practice area is busy whatever the economic climate.
Our executives and professionals practice works much the same way. For the last several years, we’ve had a higher number of clients whose employment was terminated due to reductions in force and reorganizations - hundreds of them in the financial services sector alone. But when times are good, we are busy representing employees who are changing jobs, whether voluntarily or involuntarily. There’s always competition for talent, so we always have a steady flow of executives, bankers, and professionals looking for advice on employment agreements, non-competes, and related issues.
LD: What skills are required for this kind of practice?
WO: The most important skills are negotiating, strategizing, and understanding the personal and business dynamics in any employment transaction. The employee’s lawyer needs to be able to determine the wants, needs, and interests of both the employee and the employer in a transaction, whether the employee is joining or leaving the employer. I spend a great deal of time counseling and coaching. Frankly that involves a lot of psychology. I’ve been “accused” on occasion of being an amateur psychologist. I try to identify who the decision makers are, what pushes their buttons, whether they feel guilty for what they did to my client, etc. I often work with my client on identifying which people in the company have the disposition to help them and/or the power to help. Those same principles can apply not only when the client has been terminated or is having problems at work, but also when the client is negotiating a new job offer.
I’ve been honing these skills for more than 30 years now. I think I’m a very good problem solver and a good strategist; and, of course, I have a foundation of substantive knowledge of the law.
LD: How do you hire and train new lawyers in this area?
WO: We have an extraordinarily talented workforce. We usually hire two to four lawyers each year. We look for lawyers who have three traits. First, a candidate must be a star or a star in the making; we want people who have all the skills required to succeed in the legal profession – having good grades, being smart, having leadership experience, being willing to work hard, and having the drive to excel. Many of the traits and skills that enable people to succeed in college and in law school will enable them to succeed in the practice of law also. The main things we’re looking for are leadership skills, the ability to learn, and the drive to excel.
Our firm’s goal is to provide excellent service to every client or matter all the time. We are in a service business and profession, and every lawyer who works for our firm comes to work every day trying to do excellent work. That is something that has to be part of a person’s personality.
The second trait we look for is a passion for the kind of work that we do. We are a civil rights and employee rights firm; to that extent, ours is a political practice. We want people who are passionate about helping people and representing employees and about promoting human rights and dignity.
The third trait we look for is niceness. As corny as it might sound, we want to hire only lawyers who work well with others as part of a team and who will treat others with dignity and respect. That is important to the culture of our firm.
One of the ways that we succeed in finding the right associates to join our firm is by having our hiring process run by the associates in the firm. The associate leaders of our recruiting and hiring committee review the applications and narrow them down to those candidates who will be interviewed; and then the members of that committee, mostly associates, conduct the interviews and, in consultation with management, determine who will receive offers. Having our associates pick their future teammates is beneficial in many ways; among other things, it helps insure that the new attorneys we hire will be people that the existing associates will be happy to work with.
LD: What makes your firm different from other labor and employment law firms?
WO: We are by far the largest firm in the U.S. that represents employees exclusively. Some other firms of comparable size that do employee-side employment law also handle securities or mass tort class actions or do traditional labor law. We also place a high value on the rights and well-being of our own employees. It is important to us to have a great place to work. Obviously we can’t pay our lawyers as much as some larger firms, but we try to be at the top of the market for our field in terms of compensation and bonuses. We also have very generous benefits and leave policies. As a result, I believe that we have become not only a preeminent firm for employees seeking representation but also for lawyers seeking employment in our field.
LD: It is not exactly easy to be a rainmaker in this area, unless you have developed a reputation, so what is the best advice you can give to a young lawyer who’s thinking of embarking on a similar career path as yours?
WO: First, you’ve got to love what you do and to want to do this kind of work. If you do, chances are you’ll do it well and be able to make it a living. If you don’t, you’re not going to enjoy it and it’s going to be a hard way to make a living. You need to want to help people generally – particularly employees – and to be willing to do battle on behalf of the little guys against the big guys.
LD: Are you still teaching and writing employment law books?
WO: I still do many CLE programs every year. I haven’t written a book lately, but I have been asked by a prominent publisher to do another one. Maybe when my life is less busy, I will write a how-to book on representing employees and developing the skills to be successful at it. It would cover such things like how to get into this field of law, how to select clients and cases, how to handle the economics of such a practice, and how to build and run a law firm in the field. I hope to get to it someday.