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In the labor and employment arena, boutique and full service firms were active in advising on compliance following legislation gridlock in Congress and the Obama administration’s championing of enforcement actions and creation of laws outside of Congress through executive orders and agency rules.

The Department of Labor (DOL) introduced several controversial laws that were temporarily enjoined or permanently blocked. Among these were the Fair Pay and Safe Workplaces Executive Order, better known as the ‚ÄėBlacklisting‚Äô order; new regulations for overtime pay that would have increased minimum wage for exempt employees; and the ‚Äėpersuader rule‚Äô, which would have required employers and consultants to report their activity concerning labor relations advice and services with the purpose of dissuading employees from participating in union organization and collective bargaining.

Since becoming president, Donald Trump has stated that he intends to repeal many of Obama’s executive orders. However, it was confirmed in January 2017 that Trump will continue enforcing the order barring discrimination against LGBT employers that work for federal contractors.

At the state and local level, an influx of new laws filled in the gaps left by federal legislation. Recent changes included Washington State’s enactment of a minimum wage rule from the beginning of 2017 and Missouri bringing in a right-to-work law, which will come into effect later in 2017. California remains one of the most liberal and employee-friendly states, having increased its minimum wage and revised overtime exemption for teachers in 2017.

Attorneys noticed an uptick in whistleblower, restrictive covenant and trade secret legislation, as well as pay equity counseling. Wage and hour class and collective actions remain popular, especially in cases challenging employee misclassification and related overtime claims.

In previous editions, employee benefits and executive compensation work was covered in a single editorial table. However, market feedback indicated that this lumped together firms engaged in vastly contrasting work. In an effort to make the rankings more accurate, this chapter has been divided into two sections: Employee benefits and executive compensation (transactions) and Employee health and retirement plans. The former will pertain to pension and health plan work stemming from corporate transactions and senior executive contracts, while the latter covers day-to-day and ongoing advice on the regulatory and legislative landscape in the areas of healthcare, fiduciary relations and pension plans.

In the transactions space, it was an active year for capital markets and M&A, especially in the private equity area. Firms noticed a slight sense of uncertainty in public M&A in the wake of the presidential elections, and reported that some clients adopted a ‚Äėwait-and-see‚Äô attitude while hoping for a degree of deregulation at the hands of the future administration. The coal and energy sectors continued to experience a slump, thereby forcing some of its biggest players into bankruptcy, restructuring and/or takeovers. Firms representing senior management teams or individuals found a significant amount of work in these proceedings. Some also expect a new political climate to tame an active and inquisitive DOL, which has generated considerable compliance as well as litigation work for firms, whose clients looked to prepare for potential audits or Internal Revenue Service (IRS) investigations. Verizon‚Äôs acquisition of Yahoo! involved eight firms, including Cravath, Swaine & Moore LLP, Skadden, Arps, Slate, Meagher & Flom LLP, Weil, Gotshal & Manges LLP and Gibson, Dunn & Crutcher LLP and stands out as one of the most significant transactions of the year, alongside AT&T‚Äôs merger with Time Warner and Monsanto‚Äôs acquisition by Bayer. All three generated considerable employee benefits and executive compensation issues.

The employee benefits sphere continued to provide steady work for firms, including advice relating to retirement and health plan design as well as administration and management. On the healthcare side, serious doubts were raised over the future of the Affordable Care Act (ACA) in light of Donald Trump‚Äôs victory in the presidential race. This generated a significant amount of work for ACA experts, who were sought out by health plan sponsors and providers to advise on future options. Recent legislative changes regarding same-sex marriage also affected providers, especially in the context of ‚Äėchurch plans‚Äô, which had to amend their plans to comply with the new regulatory environment and avoid litigation. In other important developments, the financial services and insurance sectors were marked by the DOL‚Äôs landmark redefinition of the term ‚Äėfiduciary‚Äô, which pushed clients to review their products and seek compliance advice from firms. On the ERISA front, the US market witnessed a surprisingly high level of DOL and IRS activity in terms of audits and investigations. As far as non-litigious matters go, firms were involved in compliance and pre-emptive counsel for clients expecting or seeking to avoid such exposure.

Some firms are expecting a wave of ERISA litigation in connection with the expected changes to - or possible repeal of - the ACA promised by the incoming Trump administration and are already involved in advisory and compliance work with clients. Firms noticed a high level of activity in class action suits related to 401(k) plans. These tend to either be stock-drop cases alleging overly cautious or excessively risky investment line-up management or excessive fee actions. There also emerged a dozen high-profile suits directed at elite universities’ 403(b) plans, keeping firms such as Greenberg Traurig, LLP and Jenner & Block LLP considerably busy.

Firms such as Gibson, Dunn & Crutcher LLP are heavily involved in the new regulatory environment created by the DOL‚Äôs landmark redefinition of the term ‚Äėfiduciary‚Äô, which has generated a significant amount of litigation work for defendant firms. Church plans also came under scrutiny following the legislative decision on same-sex marriage. Plan participants have brought suits against these plans claiming that this change in legislation affects the benefits owed to them and their spouses.

Prior to the Trump administration, immigration was already a hot topic. Immigration deportations hit record levels under President Obama and there were also movements to restrict the H-1B visa scheme to clamp down on US outsourcing companies using the program to bring in cheap labor. Immigration policy looks set for further restrictions under Trump, who made immigration reform one of the cornerstones of his election campaign. Against this political backdrop, immigration practices are reporting that compliance work has never been busier, as companies look to analyze their potential exposure to stricter immigration regulations. Due diligence work is also rising, as acquisitive companies look to ensure that all key non-US personnel are legally secure and locked into the target company before committing to deals, particularly in the technology sector. In fact, immigration generally has climbed up the boardroom agenda, as multinational corporations look to safeguard - and to continue attracting - the best global names in their industry against a backdrop of ever-tightening foreign labor restrictions. To keep up with demand, firms are looking at hiring new staff and broadening their practices to make sure they have robust capability across the full spread of visa procurement, compliance, corporate support and, increasingly, enforcement matters.

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The law firm market is an interesting mix of major international immigration law specialists such as Berry Appleman & Leiden LLP and Fragomen, Del Rey, Bernsen & Loewy; smaller boutiques such as Foster LLP and Chin & Curtis LLP; firms specializing in labor and employment law such as Ogletree Deakins and Jackson Lewis P.C.; and full-service firms with a long track record in labor and employment work such as Morgan, Lewis & Bockius LLP, Seyfarth Shaw LLP and Proskauer Rose LLP.

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