Photo by Ken Richardson.
On the employee side of the employment bar, few lawyers have accomplished as much as Nancy Shilepsky has in more than 35 years of practice. The managing partner of Boston-based Shilepsky Hartley Michon Robb LLP has excelled in litigating discrimination and wrongful termination cases, and she is one of the few Lawdragon 500 members to specialize in counseling high-level professionals in their employment matters.
This year, Shilepsky, a graduate of Boston University School of Law, was selected as a Fellow of the Litigation Counsel of America. Massachusetts Lawyers Weekly also chose her for induction into its Circle of Excellence. “The Circle of Excellence recognizes women who exemplify continued professional, civic and mentoring achievements in the Massachusetts legal community,” Shilepsky said about the honor. “I am thrilled and humbled by this recognition.”
Lawdragon: You went to Tufts, and then BU Law. Were you also born and raised in the Boston area or did you first make the move for school? What about Boston has kept you there as opposed to maybe trying another city?
Nancy Shilepsky: I was born and raised in Westport, Conn., and I came to Boston for college. During and after law school, I tried living elsewhere – San Francisco, New York City and Western Massachusetts – but I always returned to Boston. This is where I have a network of friends and colleagues. I enjoy the culture of our city, especially of the legal community. It is large enough that one gets to do varied and sophisticated work, but small enough that lawyers get to know each other. The employment law bar has been a particularly close community and, by and large, one that fosters civility.
LD: Was there a professor or experience at BU that was particularly influential in the course of your career? How did you begin to develop an interest in an employee-side employment practice?
NS: Bob Burdick ran the legal services clinical program in which I took part while in law school. I worked with Bob representing people with psychiatric disabilities opposing involuntary commitment and forced medication. I learned from Bob how to represent disempowered clients effectively. What I learned served me well throughout my career. We had to work harder and smarter, and do our best to level the playing field for our clients.
Wrongful termination cases are not that different. In both, it is my job not just to respond to allegations made against my clients but to point out the other side’s flaws. In wrongful termination cases, that involves poking holes in the alleged legitimate reasons for a termination. I describe it as turning on the overhead lights so as to expose what is really going on. It is why discovery is so important in employment work. The discovery "abuses" I see are employers' counsel playing "hide the ball" with the evidence the employee needs to impeach an employer's alleged lawful motive and, in discrimination cases, prove pretext. Those are the types of issues that make employment work intellectually challenging and rewarding.
LD: What do you find satisfying about representing executives and other high-level professionals?
NS: I find executive advocacy to be professionally satisfying work. It has allowed me to use my brain in different ways. For example, I am not a tax lawyer, and we always work with tax lawyers, but years ago I realized that I needed to understand certain aspects of tax law so as to properly represent my executive clients. As a BU alum, I had the opportunity and honor to audit Jonathan Zorn’s graduate-level tax class on executive compensation. Also, as jury trials, and even bench trials, become increasingly uncommon, executive advocacy allows me to continue to litigate, albeit in the arbitral forum.
LD: Are there any trends you are seeing with the types of issues that high-level employees are facing these days – any type of counseling that is occupying your time more now than in the past?
NS: In the past, regarding new employment and retention arrangements, I was able to rely heavily on “comps” – the arrangements provided to other executives in comparable companies and industries. Now, Compensation Committees and their consultants may be interested in tightening the belt on executive compensation, sometimes just to make a point. Some, however, are doing this just as more diverse candidates are stepping up and into top executive roles. I have pointed that out and have suggested that the timing of such belt-tightening is, perhaps, not ideal.
Also, turnover is faster than ever. I remind clients of the importance of having protections in place should things not work out before, for example, equity is fully vested. This is especially true in private start-ups and during changes in control. A founding CEO may not be the person who the next round of investors think has the expertise to position the company for acquisition, or an acquirer may not need another senior executive. Everyone likes to be wooed, but it is my job to be sure that there is substance and protections behind flowery words.
LD: What about on the litigation front, when it comes to discrimination and termination cases that the firm has taken on? A layperson might assume that there is less discrimination now, given increases in tolerance and training.
NS: Sadly, uncertain economic times seem to bring out the worst in some people. Discrimination and wrongful termination are as prevalent as ever, as are the unconscious biases that erode what should be a level playing field. Maybe it is because this generation of employees has grown up watching things like Survivor, but workplace bullying is worse than ever as far as I can tell. At least for now, like ice cream parlors, employment law is recession proof.
LD: I assume most clients want to avoid litigation, as does the employer. This process gets less attention than lawsuits, but what is your strategy or philosophy in terms of calling a company for the first time on behalf of the client, to help make sure that the interactions get off on the right foot?
NS: I do not begin by pounding the table or anything like. My strategy is to build out the analysis as to why the company has a problem, legally and otherwise. Whether or not the employer’s counsel agrees with my evaluation of the situation, most employers want to avoid a protracted dispute. I can help them do that. I begin as a problem-solver.
LD: Can you discuss an attorney on the employer side of the fence that you have come to admire over the years, and why?
NS: Over the years, I have developed good relationships with many of my adversaries – management-side employment lawyers. I came to especially admire many of the in-house employment lawyers whose values and expectations shaped the practice of employment law in Massachusetts. It is hard to single out any one person but I am thinking particularly of Ann Leibowitz of Polaroid and Anne Morrill of Wang and Boston Scientific. They set a high bar for integrity and civility, and also for contribution to the community and diversity.
LD: You’ve also earned accolades for public service. Can you discuss an extra-practice or public-interest activity that is near and dear to your heart?
NS: One aspect of my public service is the mentoring I do primarily for newer lawyers. To take our mentoring work up a notch, we created the Women’s Bar Association’s Women’s Leadership Initiative. Along with Michele Whitham of Foley Hoag, I co-chaired the Initiative during its formative years. I am proud to say that Massachusetts Attorney General Maura Healy was a member of our pilot class.