Trained on the coal side of the law, Erin Magee, a labor and employment lawyer with Jackson Kelly, now juggles between fossil fuels, with oil and gas representing a growing part of her practice. "We move between industries but apply the same law," Magee said.
QUESTION: What employment issues are common to each industry and which ones are unique?
ANSWER: The most unique aspect of the oil and gas industry from an employment law standpoint is the workforce and the use of independent contractors at the operations level.
When coal companies have wage and hour issues, they often revolve around the timing or calculation of pay, particularly issues with overtime pay. Wage and hour issues in the oil and gas industry often revolve around whether workers should be classified as contractors or employees and the implication of misclassification of workers – which can lead to overtime pay, penalties and the like under state or federal law.
The federal Department of Labor under the Obama administration early on identified misclassification of workers as an investigation and enforcement priority.
Q: How are states dealing with these issues?
A: The state agencies in our region are growing more accustomed to the use of independent contractors at (oil and gas) operations.
I think initially, the practice was met with some suspicion because 20 or 30 years ago, it was common for coal companies to contract the mining process to independent contractors, which on occasion would disappear without paying final wages and benefits to their employees. There was a good deal of resulting litigation about who would pay those wages and benefits, and it is understandable that the state agencies don't want to go back to those days.
Q: Do you tend to get the call when a client is already in trouble or before?
A: The best part of my career is that I can say that it is evolving. Now, I get calls on the front end much more than I did 10 years ago, and I really hope that spending a little time calling a lawyer to walk through an employment issue before taking any action prevents litigation on the back end.
I even have flat-fee arrangements with some of my clients so they don't feel hesitant to pick up the phone and call me before taking action that could get them into a much more expensive dispute.
Q: Fill in the blank: In the next five years, the biggest labor and employment issue in oil and gas will be ... .
A: Wage and hour, benefit and leave issues will continue to be major concerns. However, I believe we also will see expansion of statutes or judicial decisions that address conduct in the workplace. I expect that workplace violence, and even "bullying," will be the subject of new laws or legal decisions in the near future.
We also need to watch for harassment in the workplace, whether based on a protected class like age or even same-sex sexual harassment where locker-room behavior and horseplay at work becomes the subject of more and more legal scrutiny.
Q: How long are the lines for the ladies' room at energy events? Are they longer or shorter than at legal seminars you go to?
A: I hate to admit it, but they are still pretty short.
Q: What's a question you have a great answer to but no one ever asks?
A: "How can I help get more women involved in the energy industry?"
I can help make connections and hopefully give some advice from my 20-plus years of experience. Getting our local chapter of the Women's Energy Network up and running will probably be one of the highlights of my career. I had no idea how much I would gain from the organization, and I hope other gals will too.
I tend to say that as a young woman growing up working for the coal industry, I got very accustomed to being the only female in the room or at the table. I want it to be very different for the next generation and I hope to play a part in that inevitable change.
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