Deep-rooted problems require radical solutions. The legal community has identified numerous challenges faced by BigLaw attorneys, yet often falls short of proposing solutions that both (1) address more than just surface-level concerns, and (2) realistically answer the market forces that create extreme conditions in the first place. 

 

Skeptics may question a BigLaw union's feasibility. But part one of this two-part article demonstrated why law students are uniquely positioned to forge a viable path to establishing a union by leveraging their rights under the National Labor Relations Act to curtail BigLaw firm direct hiring practices during students' 1L year of law school, also referred to as precruiting.

 

Part two explores the broader set of issues that students and associates could address with the support of the NLRA and, ultimately, a BigLaw union.  

By shifting the power balance, a BigLaw union movement addresses market realities head-on, paving the way for profound change. 

 

What's Protected Under the NLRA, and What Is Not 

 

As discussed in part one, the NLRA provides both law students and associates considerable freedom to engage in a wide variety of labor-related speech and activities, beyond direct union advocacy. 

 

And, as mentioned in part one, once a union at any given firm is either voluntarily recognized or elected, that firm is obligated to collectively bargain with the union as the representative of the associates with respect to mandatory subjects.[1] 

 

It's important to keep in mind that the NLRA generally protects applicants' and employees' speech and activities only to the extent they reasonably relate to wages; hours; and other terms and conditions of employment, including policies on off-duty conduct. 

 

In contrast, speech and activities that criticize firms' client-facing work — e.g., condemning a firm's representation of particular clients or matters — may not be protected under the NLRA.[2] 

 

Students and associates should keep this distinction in mind as they lay the groundwork for unionization.

 

Below are several topics that would generally be covered by the NLRA's speech and activities protections and qualify as mandatory subjects of collective bargaining. 

 

BigLaw Union Advantages Beyond Precruiting 

 

While certain issues, such as a lack of control over time demands, are, in some ways, fundamental to how BigLaw serves its clients, there are other creative ways to restructure associate staffing, time off, compensation, benefits and advancement opportunities that could make meaningful improvements to associate well-being and diversity. 

 

Terminations and Layoffs 

 

In the current, nonunionized landscape, BigLaw associates are generally at-will employees that firms may terminate or lay off without prior notice, and for any reason that does not constitute illegal discrimination, e.g., on the basis of gender, race, NLRA-protected activities, etc. 

 

Barring that, associates often have no protection against, for example, involuntary hours reductions or relocations that can imperil their status. They may be singled out and disciplined for behavior that other associates engage in without consequence. They often have no right to an investigation, no chance to state their case, and no opportunity to seek representation or cure issues before termination. 

 

By contrast, union-represented employees have the right to have a representative present during an investigative interview that the employee reasonably believes could lead to discharge or other adverse job consequences.[3] 

 

In addition, a BigLaw associate union could negotiate for "just cause" protections in their collective bargaining agreement. This common clause, while not always applied with perfect consistency by labor arbitrators, may generally encompass the following:

 

• The employer's standards must be reasonably related to efficient and safe operations;
• Standards must be applied fairly and consistently across employees;
• The employee must be adequately warned of the consequences of their conduct;
• The employer typically must investigate before administering discipline;
• The investigation must be fair and objective;
• The investigation must produce substantial evidence of the conduct in question; and
• Any resulting discipline must be reasonably related to the seriousness of the conduct and the employee's past record.[4]

 

In addition to a general just cause provision, the union could negotiate for specific standards and procedures tailored to the BigLaw context. 

 

For example, it could negotiate for provisions addressing reduction-in-force events, where the firm must provide a minimum amount of notice, and negotiate with the union before it lays off or otherwise terminates a threshold number or percentage of associates within a rolling time frame or otherwise as part of a plan.[5] 

 

The collective bargaining agreement could also provide rules on: 

 

• Disclosure of the termination criteria and business justification; 
• How competitive areas are defined — i.e., how groups of associates are defined (based on seniority, office location, practice area, etc.) for purposes of determining who is competing with whom for retention; 
• Exit packages; and 
• How and when the firm may make new hires following a reduction-in-force event. 

 

Political Speech and Activities 

 

Law360 recently reported that "standards are murky," both within and across BigLaw firms, regarding the political speech and activities that current and prospective associates can engage in without risking discipline, rescinded or withheld offers, or termination. 

 

A separate question arises as to whether and when such measures constitute illegal discrimination based on factors such as religion or national origin. 

 

However, it's generally clear that BigLaw firms would violate Section 8 of the NLRA if they were to discipline, rescind or withhold offers from, terminate, or otherwise discriminate against applicants or employees for supporting a movement that (1) criticizes those measures, (2) calls for clearer and more equitable firm policies on political speech and activities, or (3) demands consistency and transparency on the methods used to screen applicants and employees. 

 

The upshot is that students and associates may better protect themselves from adverse employment consequences by framing their speech and activities in terms of labor rights, rather than direct political terms,[6] and integrating them into a pro-union platform.

 

Pay and Hours 

 

An April report by Major, Lindsey & Africa and Leopard Solutions, which surveyed junior associates primarily at large law firms, found that over half of the Generation Z lawyers who responded would take a pay cut for fewer billable hours, and a significant portion would take reduced pay for flexible working schedules, more time off and fully remote work. 

 

And yet, so-called Cravath-scale associate salaries increased in both 2022 and 2023, despite some firms having excess associate capacity and experiencing financial stress from the increases.[7]

 

A union could address this disconnect. Associates could negotiate for different salary and billable hour tiers, where some associates could continue with traditional market salaries and billable hour expectations, while others could opt for a billables-capped tier. 

 

Because unpredictable client needs will continue to be a factor, firms could rethink how they arrange staffing and coverage and systematically stagger time off for billables-capped associates. 

 

Whereas daily or weekly hour caps would present significant challenges, associates could continue to have unlimited day-to-day billables expectations to meet client needs, but have an annual limit that would allow them to take true time off at the beginning, middle or end of the year. 

 

Associates could also negotiate for banning overtime requests, or else negotiate for rules on how overtime requests are handled. This could include hourly overtime pay — perhaps with increasing tiers of compensation per hour, based on the extent of the excess — for associates who voluntarily exceed their cap at their firm's request. 

 

This type of pay structure would be more predictable and correlate more closely with associates' efforts and sacrifices than, e.g., typical year-end bonus calculations, which can be subject to all-or-nothing billable hour cutoffs and amount to low per-excess-hour rates. 

 

In any case, associates would have union representatives to help back them in enforcement of the policies. 

 

This could also help ameliorate another pervasive issue, which is that attorneys who switch to part-time or reduced-billables status too often (1) take a significant salary cut, but with a disproportionately modest reduction in hours expectations; (2) are assigned to matters without proper consideration for their reduced hours, compelling them to exceed their hours expectations to meet client needs; and (3) permanently impair their viability as partnership candidates, even when an extended path to partnership could account for a delay in their cumulative experience.[8]

 

Promotion to Partner 

 

The Major Lindsey and Leopard Solutions report also found that significantly fewer Gen Z women (37%) than Gen Z men (55%) surveyed reported that making partner was their ultimate career goal. 

 

Commentators argue that the issue isn't a lack of ambition, but the inflexible time demands required to make partner. This can hinder transparent discussions about issues such as temporary hours reductions for raising young children, which can coincide with what are now considered critical career junctures, but which needn't jeopardize longer-term advancement. 

 

In addition to the hours considerations above, a union could address this disparity by negotiating for more equitable criteria and a more transparent process for promotion to partner. 

 

While partners are generally not considered employees eligible for protection under employment laws, Title VII of the Civil Rights Act has been found to prohibit sex discrimination in the promotion of employees to partners.[9] It stands to reason that the NLRA is likely to cover partner promotion criteria as terms and conditions of employment subject to mandatory collective bargaining. 

 

Additionally, courts generally use a case-by-case analysis to determine whether a partner is actually a protected employee for employment law purposes, considering criteria such as voting and management power and participation in firm profits.[10] 

 

If similar reasoning were used in the NLRA context, BigLaw nonequity partners may actually continue to be classified as employees subject to the NLRA's protections, eligible for union membership and capable of collective bargaining for, among other things, criteria for promotion to equity partner. 

 

Origination Credit 

 

Reforming the system for how attorneys are compensated for business origination is essential to making BigLaw more equitable and inclusive. 

 

Experts on a 2020 New York City Bar Association panel highlighted that origination credits primarily reward white, male partners, who historically have had greater access to business. The panelists explained that when, e.g., these partners receive origination credit as relationship partners without doing the associated billable work, this encourages hoarding and impedes the advancement of female attorneys and attorneys of color. 

 

These disparities can take root at the associate level, since business generation requires cultivating relationships and networks over time. Law360's 2023 Law Firm Compensation Survey found that: 

 

• On average, women have lower compensation at every level (associate, nonequity partner and equity partner); and 
• This gender gap widens with seniority due in large part to origination credit, with female equity partners receiving an average of $1 million less in origination credits than male equity partners.[11] 

 

Associates often expand on existing client relationships by bringing in new matters and performing most of the day-to-day work. Yet, the Law360 survey found that, of the 79% of respondents reporting that their firms track originations, only "52% reported that their firm allows associates to receive origination credits," and just 7% of associate respondents reported a value received. 

 

This is despite the fact that "45% said their firm's policy is to share credits among attorneys (i.e., pitch, timekeeper, relationship)." 

 

One issue is that credit allocation often lacks transparency. This leaves associates without clear insight into what makes them valuable and, therefore, promotable. Associates may make significant sacrifices, expecting to be rewarded as partners, only to find out that their efforts don't make them eligible for partnership or that the monetary payoff is less than expected. 

 

As a complement to a more equitable partner promotion process, a union could negotiate for origination credit transparency and a process for associates and nonequity partners to challenge allocations. 

 

While associates may feel intimidated by the prospect of raising such challenges, having knowledgeable union representatives to guide the process could lower those barriers. 

 

Return to Office 

 

In addition to more general return-to-office challenges, some associates may feel that their firms have been intentionally vague about attendance policies.

 

Some associates have indeed found the transition frustrating, sometimes due to a lack of transparency on issues such as how much in-office attendance is expected, how attendance is counted and monitored, and consequences for noncompliance, as well as lack of a system for associates to provide feedback.[12] 

 

In the absence of clear guidance, many associates may feel pressure to err on the side of caution, working in person as much as possible even when it conflicts with other demands. Some associates are experiencing mental health challenges as a result of this uncertainty.

 

Collective bargaining could help shape a system that addresses associate concerns by, e.g., making a portal available where associates can view their attendance record and read comprehensive and up-to-date policies, including an explanation of how the firm tracks and counts attendance. 

 

This would relieve much of the stress associates experience due to questions like: 

 

• Is attendance tracked using security card access to the building? 
• Does an associate have to arrive before a certain time, or leave after a certain time, for attendance to count? 
• If an associate leaves the office temporarily for any reason (e.g., lunch), how does that affect whether attendance is counted for that day? 
• If attendance is monitored manually by firm personnel, how and when is that done? 
• If an associate is away from their desk during a manual attendance check, what procedure can they use to make sure their attendance is counted? 
• If an associate has been given permission to reside an extended distance from any office, how does the attendance policy apply to them? 

 

The portal could also allow associates to provide explanations for marked absences and could serve as a basis for associates to contest findings of noncompliance. 

 

Consequences for noncompliance could also be made subject to the just cause protections outlined above. More specifically, the union could negotiate for bonuses not to be affected by in-person attendance or, at a minimum, for banning all-or-nothing bonus determinations in favor of proration based on the number of noncompliance days. 

 

Attorney Well-Being and Legislated Benefits and Protections 

 

Associates may fear that asking about mental health benefits, medical leave or time off for family crises will make them appear uncommitted, jeopardize their chances at partnership, or even make them targets for layoffs. Addressing these concerns is essential, as mental health challenges in BigLaw are widely recognized and demand urgent attention. 

 

Even when employers offer mental health benefits or resources, employees may be unaware of them or hesitate to pursue them.[13] They may be uncertain whom they can trust or approach, experiencing these barriers — whether real or perceived — as overwhelming stressors, ultimately choosing to suffer in silence. 

 

Informed union representatives can serve as intermediaries between attorneys and their firms, potentially reducing the stress and other barriers associated with expressing personal concerns, raising issues about working conditions, and obtaining information about available benefits and resources. 

 

Indeed, unions have been shown to increase health benefits, vacation time and paid leave, as well as enforcement of labor laws and other legislated benefits and protections for workers.[14] 

 

As one example, a 2003 Economic Policy Institute Briefing Paper notes that employers often misunderstand when and how the Family and Medical Leave Act applies, citing evidence that this can lead employers to reject legitimate claims for leave.[15] 

 

According to the EPI paper, union members are more likely to be aware of the FMLA, more likely to understand their eligibility, and "have significantly less anxiety about losing their job or suffering other employer-imposed penalties for taking leave." [16] 

 

Training and Generative Artificial Intelligence 

 

Some BigLaw firms have begun training summer associates on the use of generative AI,[17] and while it's too early to predict all the effects on associate training and staffing, a union would give associates a voice in a rapidly evolving landscape that may dramatically affect their careers. 

 

A union could negotiate parameters regarding the balance between AI training and more substantive training and experiences that each associate receives annually. This balance could adjust by class year to accommodate differing learning curves and ensure a well-rounded experience trajectory. 

 

Billable hours could track higher-profile practical experiences, such as contact with clients and counterparties, and empower associates with the right — but not the obligation — to get more exposure.

 

This approach would prevent junior associates from being confined solely to support roles for senior attorneys, ensuring that their experiences are meaningful and support their long-term growth and advancement. 

 

Conclusion 

 

These issues are not just academic — they are the real, pressing concerns that shape the lives and careers of countless attorneys. 

 

The time for complacency is over. Now is the moment for students and attorneys to seize this opportunity, channel their momentum, and push beyond what is merely good enough. 

 

This is about more than just the problem du jour. It's about harnessing the collective strength and untapped potential of the next generation of attorneys to shape a more equitable, transparent and humane professional landscape. 

 

In doing so, they may not only create a better future for attorneys, but also set powerful examples and establish precedents that can uplift workers across all industries.

Copyright © 2024 Tara Rhoades

All rights reserved.

 

Tara Rhoades is the founder at The Sanity Plea LLC. She is a former associate at Cravath, Swaine & Moore LLP, and a former partner at Kirkland & Ellis. 

 

[1] National Labor Relations Act, 29 U.S.C. § 158(d). To negotiate for consistent policies across BigLaw firms, the unions and the firms could explore the possibility of multi-employer bargaining, which is discussed in more detail in part one of this article. 

 

[2] Section 7 of the NLRA (29 U.S.C. § 157) gives employees (and where relevant, prospective employees) the right not only "to form, join, or assist" broadly defined "labor organizations" (defined in NLRA, 29 U.S.C. § 152(5)), but also "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection" so long as the concerted activities (generally meaning "group" activities, see, e.g., Meyers Indus., Inc., 281 N.L.R.B. 882 (1986)) are reasonably related to wages, hours, or other terms and conditions of employment (see, e.g., Eastex, Inc. v. NLRB, 437 U.S. 556 (1978)) and are done by "permissible means" (see NLRB v. Local Union No. 1129, IBEW (Jefferson Standard), 346 U.S. 464 (1953), where employees' speech disparaging the employer's products was unprotected). See, e.g., Three D, LLC v. Nat'l Labor Relations Bd., 629 F. App'x 33 (2d Cir. 2015) for an example where employees' activities were protected even in the absence of union activity or discussions. Section 8(a)(1) of the NLRA (29 U.S.C. § 158(a)(1)) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of" their Section 7 rights. The courts have interpreted Section 8(a)(1) violations to include not only threats against employees, but also conduct that is favorable to employees if the conduct is intended to influence employees against exercise of their Section 7 rights. See Labor Board v. Exchange Parts Co., 375 U.S. 405 (1964) ("We have no doubt that [Section 8(a)(1) of the NLRA] prohibits not only intrusive threats and promises, but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect.").

 

[3] https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/weingarten-rights. 

 

[4] See https://teamster.org/wp-content/uploads/2020/07/JustCause.pdf and "Using 'Just Cause' to Defend Against Unfair Discipline," Labor Notes (January 15, 2019), https://labornotes.org/2019/01/using-just-cause-defend-against-unfair discipline. 

 

[5] If associates are entitled to representatives and investigations ahead of terminations, this would help alert the union if the firm failed to provide proper notice of a reduction-in-force event. 

 

[6] Law360 recently pointed out that private employers aren't subject to the same First Amendment restrictions as are government employers when it comes to hiring and employment decisions and that the existence and extent of prohibitions on hiring and employment discrimination on the basis of political speech and activity vary widely across state and local jurisdictions. (https://www.law360.com/articles/1843583/standards-are-murky-as-legal-employers-vet-protesters) This gives the NLRA an additional advantage since its protections are both federal and apply to private employers. 

 

[7] https://www.reuters.com/legal/legalindustry/us-law-firm-salary-raises-spread-second-year-row-2023-11-29/. 

 

[8] For a discussion of these issues, see "Gen Z Women Are Shunning BigLaw Partnership. Here's Why," Law360 (May 17, 2024). 

 

[9] Hishon v. King & Spalding, 467 U.S. 69 (1984).

 

[10] See, e.g., Simpson v. Ernst & Young, 100 F.3d 436 (6th Cir. 1996). A former nonequity partner at Thompson Hine LLP recently sued the firm, claiming that, despite her title, she is entitled to make discrimination claims as an employee under Title VII. Thompson Hine responded to her suit in a letter to the Equal Employment Opportunity Commission, asserting that, as a partner, she wasn't eligible for Title VII protections. See "Non-Equity Partnership Lawsuits Test Big Law Employment Model," Bloomberg Law (August 12, 2024), https://news.bloomberglaw.com/business-and-practice/non-equity-partnership-lawsuits-test-big-law-employment-model. 

 

[11] Based on 2022 compensation and 862 responses (59% of which were from firms of 100+ attorneys). 

 

[12] See, e.g., "Associates Frustrated by Unclear Expectations, Opacities in Return-to-Office Planning," The Recorder (September 14, 2023), https://www.law.com/therecorder/2023/09/14/associates-frustrated-by-unclear-expectations-opacities-in-return-to-office-planning. 

 

[13] "Are Organizations All Talk and No Walk When It Comes to Mental Health Benefits?," SHRM (May 28, 2024), https://www.shrm.org/topics-tools/news/employee-relations/are-organizations-all-talk-and-no-walk-when-it-comes-to-mental-h. 

 

[14] "How unions help all workers," Economic Policy Institute (August 26, 2003), https://www.epi.org/publication/briefingpapers_bp143. 

 

[15] "How unions help all workers," Economic Policy Institute (August 26, 2003), https://www.epi.org/publication/briefingpapers_bp143. 

 

[16] "How unions help all workers," Economic Policy Institute (August 26, 2003), https://www.epi.org/publication/briefingpapers_bp143. 

 

[17] "Law Firms Start Training Summer Associates on Using Generative AI," Bloomberg Law (June 4, 2024), https://news.bloomberglaw.com/business-and practice/law-firms-start-training-summer-associates-on-using-generative-ai.